On World Adivasi Day in 2022, I got my hands on a pamphlet circulated by a tribal rights activist in Jharkhand, an east Indian state. Among the grievances listed was the Subarnarekha Multipurpose Project (SMP), a decades-old network of dams, barrages and canals intended to transform irrigation, power generation, and flood control across eastern India. After its commission, the government took more than 55,000 acres of land , but till today there is no water in most of those canals, so droughts persist and the agriculture, forest products and animal husbandry that sustain tribal livelihoods are threatened. The families displaced by the Chandil Dam alone give the numbers a face. A 2019 report found 116 villages and 19,115 families uprooted, with land for rehabilitation allotted to only 1,350 of them by 2018. One oustee described the change plainly: “Before displacement, everyone had at least three acres of land, but everything is lost now.”
India voted in favour of the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. In its explanation of vote at the General Assembly, India’s representative grounded the decision in Article 46, which preserves the territorial integrity of states and prohibits acts contrary to the UN Charter. India has since maintained, through successive UPR cycles and through its Ministry of Tribal Affairs, that the concept of ‘indigenous peoples’ does not apply domestically, since every Indian is indigenous to the subcontinent.
I. India’s Position on the UNDRIP
This position allows India to rhetorically endorse the Declaration’s values while rejecting the rights-based framework it actually creates. Virginius Xaxa showed in 1999 that indigenous status in India turns on historical marginalisation and dispossession rather than first inhabitancy, and that Scheduled Tribe groups meet every criterion the UNDRIP uses for identification. Bengt K Karlsson traced the government’s underlying anxiety to the fear that recognising an indigenous-rights framework would fuel separatism. But India’s reliance on Article 46 in its own explanation of vote negates such justifications as it was inserted to ensure that recognition of indigenous rights without compromising the territorial integrity of states. As India grounded its affirmative vote in that provision, it amounted to an acknowledgement that UNDRIP had already addressed the concern of sovereignty.
India’s own Fifth Schedule, the Panchayats (Extension to Scheduled Areas) Act, 1996 (‘PESA’), and the Forest Rights Act, 2006 are all premised on the recognition that these communities require distinct legal treatment, which is difficult to reconcile with the claim that no distinct indigenous population exists. This is the incoherence Xaxa, Karlsson, and scholars like C.R. Bijoy have identified. Articles 10 and 19 of the UNDRIP require free, prior and informed consent (‘FPIC’) before any measure affecting indigenous peoples is adopted. As long as India does not engage with these provisions as applicable to Scheduled Tribes, tribal communities have no international framework through which to assert them. But recognition is where the analysis must begin, not end. Even full formal recognition would leave intact a problem that runs deeper than India’s international posture.
Chhatrapati Singh argued that India inherited from colonial governance a model in which law functions as a tool for reforming and uplifting populations rather than for settling disputes between equal subjects. The colonial administrators, through Cornwallis, through Macaulay, through Fitzjames Stephen’s Hobbesian jurisprudence, used law as a command directed at populations conceived as objects of improvement. Independent India’s constitutional framers, largely lawyers trained in this tradition, carried the same assumptions forward. The result is a legal order in which the state protects and guides the underprivileged through welfare schemes it designs and administers, rather than one in which the underprivileged hold rights the state must respect.
The Land Acquisition Act, 2013 requires consent of 70 to 80 per cent of affected families for private and PPP projects, but that consent is solicited, measured and certified by the same executive implementing the project. PESA mandates Gram Sabha (village council) consultation for land acquisition and mineral leasing in Scheduled Areas, but enforcement is vested in the state governments that approve the leases. The Forest Rights Act, 2006 gives Gram Sabhas authority under Section 6, but adjudication of whether consent was validly obtained rests with the same state. The project proponent, in each case, is also the consent authority. There is no mechanism through which a tribal community can refuse a development project and have that refusal be legally binding on the authority proposing it.
II. SMP and Consequences
Development projects displaced approximately three million people in Jharkhand between 1951 and 1995, of whom roughly 90 per cent were tribal and only about a quarter were ever rehabilitated. The SMP was a substantial contributor. The project began in 1978 with approval from the Chief Ministers of Bihar, Orissa, and West Bengal. The World Bank withdrew because of pressure groups advocating against the project’s human rights violations, besides questions regarding misappropriation of funds.
A strike held against the SMP interrupted construction. The Emergency’s onset forced activists into hiding, and construction resumed. Promises of rehabilitation and improved living standards were made, but none materialised. Protests followed as tribal communities organised a rally in March 1978, where they made six demands: land at a minimum of Rs. 15,000 per acre, rehabilitation, employment preference for the displaced, support through small industries and project contracts, a tribal-majority oversight committee, and action against corrupt officials – these were largely ignored. Land was acquired at a fraction of the proposed value, sometimes as little as Rs. 200 per acre. Only one job was provided for every twelve displaced families, with less than 10 per cent of promised employment materialising.
On 6 January 1979, over 10,000 tribals demonstrated against the project near the Chandil Dam site. The police opened fire. Four people died. Construction continued. Land acquired but not used was given to officials’ associates instead of being returned to those displaced. This was then built into colonies occupied by non-tribals and project employees, leaving the truly displaced homeless and landless. Article 26 of the UNDRIP protects the indigenous people’s right to their traditionally owned lands. Offences worth crores of rupees, including illegal removal of government property, excess payment withdrawals and false bank guarantees implicating the project’s executive engineer and senior bank officials, were documented and ignored. Every tribal movement was monitored and all forms of resistance suppressed.
UNDRIP’s Articles 7, 23, and 28 require that states protect indigenous peoples from violence, involve them in determining programmes that affect them, and ensure redress extending beyond monetary payment to restoration of livelihoods, dignity, and long-term social security. The SMP records show categorical violations against every single one. In the Kolhan region, where the river’s course was altered by dam construction, water scarcity has become acute for farming communities, endangering Article 24’s recognition of indigenous peoples’ right to the highest attainable standards of health.
III. What Needs to Change
The grievances reflect demands for participation in decisions affecting ancestral lands, livelihoods, and futures. The tribals were not consulted before the project began, not adequately compensated after it did, not protected when they protested, and remain excluded from the inter-governmental negotiations governing its completion. The past is a clear indication of what follows when Articles 7, 10, 19, 23, 24, 26, and 28 of the UNDRIP are not effectuated.
India’s current position is not required by its constitutional framework. Scheduled Tribes are already a legally recognised, differentiated category. A formal domestic recognition instrument, acknowledging that Scheduled Tribe communities meet the UNDRIP’s identification criteria, would not create a new category. As the UNDRIP is a non-binding General Assembly resolution rather than a treaty, this would be a political act rather than a legal obligation. Still, it would close India’s exploitative manoeuvring and make the ‘all Indians are indigenous’ position internationally untenable. Article 46, as India’s own explanation of vote acknowledged, already resolves the territorial-integrity concern.
The Xaxa Committee on the Socio-Economic, Health and Educational Status of Tribal Communities, reporting in 2014, found that “the protective measures have been violated by the very State which is supposed to ensure the enforcement of these protections,” and that Tribes Advisory Councils have been “near completely usurped by the political parties in power.” PESA, the Forest Rights Act, and the Land Acquisition Act should be amended to vest FPIC adjudication in an independent body rather than the implementing executive, with power to stay project implementation pending a consent determination. Tribes Advisory Councils should be given approval functions over development projects in Scheduled Areas, beyond their present advisory role. The Bhuria Commission, in 2004, found that state governments “do not put any important matters to the Council for advice.”
India should implement these articles and recompense the past victims of Jharkhand’s progress in a manner that complies with international law. Tribal consent should carry the force of legal consent, because currently, India’s approach to the UNDRIP has done little to protect the people the covenant seeks to.
Apala is a fifth-year law student at Jindal Global Law School. Her areas of interest are international law, environmental law and children’s rights law.
