Protecting cultures and identities of India's indigenous peoples

The Draft National Policy on Tribals of the government of India seeks to address concerns of indigenous and tribal peoples on traditional wisdom, intellectual property rights and traditional practices like shifting cultivation. However, neither the indigenous peoples’ worldview on such critical issues nor the effects of forced evictions and land alienation are duly reflected in the Draft National Policy on Tribals.

Article 8(j) of the United Nations Convention on Biological Diversity ratified by the government of India is instructive for preservation of traditional knowledge and wisdom of the indigenous peoples. However, the Biological Diversity Act (BDA) of India of 2002 fails to protect and promote the rights of indigenous and tribal peoples’ traditional knowledge. First, the BDA fails to recognize the fact that many of the indigenous knowledge and cultural heritage are collectively developed through generations and therefore, no single person can claim ownership over an invention or discovery of medicinal plants, seeds and other living things. The community owns it. Second, there is no recognition of the indigenous communities (local bodies) to determine benefits sharing. Third, it does not prohibit the Indian nationals who can exploit indigenous peoples’ traditional knowledge like foreigners (individuals/corporations). Regrettably, the Draft National Policy on Tribals seeks to give further legitimacy to this process through its suggestions to “transfer such knowledge to non-tribal areas” without any guarantees for benefit sharing and the right to free, prior and informed consent.

The Draft National Policy on Tribals also contains similar misconceptions on the Intellectual Property Rights (IPR) that are given to persons or corporates over the creations of their minds. Contrary to the IPR regime of the World Trade Organisation agreements, indigenous and tribal peoples’ knowledge and cultural heritage are usually evolved through generations and owned by the community. Under the present IPR regimes, the collective ownership of knowledge is not recognised. If indigenous peoples were to protect their intellectual property rights, it would require identification of individual inventors. This can create further disintegration of the community values and practices and cause infighting between indigenous communities as to who can claim ownership over a particular knowledge or innovation. The identity and survival of indigenous peoples as distinct peoples to a large extent depend on the age-old practices of common sharing of some resources, knowledge and skills which are not alienable.

The Draft National Policy on Tribals also supports fallacies about shifting cultivation pertaining to soil erosion and low productivity. The few quantitative studies on the experiences in Sarawak and Thailand have shown that land clearing in traditional shifting cultivation had the lowest amount of erosion and sediment loss from the system compared to any other forms of land clearing and tillage systems. The reasons for low erosion despite farming on steep slopes are very short periods with exposed soil (after burning, before plant establishment), limited or no tillage, and traditional measures such as placing unburned logs horizontally on the slope.  Permanent farming of crops such as oil palm, cassava or annual upland crops on the other hand require complete and permanent removal of natural vegetation and in certain cases extensive modification of the landscape with terracing and drainage. These systems are much more dependent on nutrient inputs and are more likely to cause erosion during establishment.

Low productivity is not more inherent to shifting cultivation than any other farming systems. Rather, the lack of productivity improvements is the result of a consequent neglect of shifting cultivation in agronomic research and extension. Yields of staple crops such as rice, maize, or cassava, are often quite low, but many other plants are intercropped in the swidden fields and collected from the secondary forest, making overall productivity much higher. Moreover, shifting cultivators often have poor access to agro-chemicals because of poverty, inadequate extension systems and a general disregard of their farming practices by authorities.

The problem is that shifting cultivation is more frequently compared with forestry activities or even natural forests rather than with other farming systems. It is unrealistic to expect shifting cultivation to be as benign as natural forest - it is a farming system, which makes use of forests and should be considered as such. 

The traditional wisdom and practices of indigenous and tribal peoples are greatly affected by large-scale forced evictions and land alienation. The National Policy on Tribals provides that the indigenous and tribal peoples who constituted 8.1% of the total population of India in 1991 also constituted 55.16% of total displaced people. Yet, the Draft National Policy on Tribals fails to suggest any measures both to provide justice to past victims of forced evictions and prevent future evictions. Rather, it suggests “displacements” which are inevitable.

International human rights law provides that appropriate procedural protections and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions, which directly invoke a large number of the rights, recognised both under the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. In India, there is no law to provide protection against “forced evictions”. If State wishes to take away land for undefined “public interest” under the Forest Conservation Act of 1980, Wild Life (Protection) Act of 1972, the Land Acquisition Act of 1894 or any other legislations, forced evictions must take place according to the procedure established by law and not necessarily due process of law. What might be questioned is the process of evictions and not the decision to evict itself.

In addition to displacement, land alienation has been responsible for pauperization of indigenous and tribal peoples. According to the 10^th Plan of the Government of India “as per the information available with the Ministry of Rural Development, as many as 4.65 lakh cases of alienation of tribal land covering an area of 9.17 lakh acres were registered in the states of Andhra Pradesh, Assam, Bihar, Gujarat, Himachal Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Orissa, Rajasthan and Tripura in January 1999. Against this, only 2 lakh cases were disposed of in favour of 1.56 lakh tribal families covering an area of 5.31 lakh acres. The Draft National Policy fails to suggest effective measures for restoration of the alienated lands and prevention of further land alienation".

The Draft National Policy on Tribals is also silent on the implications of the Supreme Court judgement and the order of Union Ministry of Environment and Forests of 3 May 2002 on the eviction order issued in furtherance of an order of the Supreme Court of India on 23 November 2001 in Interlocutary Application of the Amicus Curiae in Writ Petition No. 202 of 1995. The Supreme Court in its order has restrained the Central Government from regularisation of alleged encroachments of forest lands in the country under the Forest Conservation Act, 1980 and ordered to frame a time bound programme for eviction of the alleged encroachers from the forest lands. Majority of about 10 million victims are indigenous peoples. A large area of cultivable lands of indigenous tribal peoples are being categorised as encroachment areas. Many of these cultivable lands are not encroachments but existed prior to both the Indian Forest Act of 1927 and the Forest Conservation Act of 1980.  Moreover, the differentiation between the pre-1980 and post-1980 encroachments is quite immaterial at the ground level. The National Commission on Scheduled Castes and Scheduled Tribes noted that as a result of the Forest Conservation Act, 1.48 lakh persons, mainly tribals, occupying 1.81 lakh hectares of lands in forest areas in Madhya Pradesh suddenly became encroachers on October 24, 1980, and thus liable for eviction.  Many State governments have submitted requests as per the provisions of the National Forest Policy of 1988 to the Central Government for conversion of forest villages into revenue villages. The government of India is yet to take any effective measures.

It is essential that the government of India recognises collective rights of indigenous and tribal peoples over their traditional knowledge by making necessary amendments in the Biological Diversity Act of 2002, provides resources for documentation, promotion and preservation of their traditional knowledge and wisdom, develops mechanisms for benefit sharing of traditional knowledge by the community through necessary amendments in the Biological Diversity Act of 2002 and bans transfer of traditional knowledge and wisdom of indigenous and tribal peoples to non-tribal areas without guarantees for benefit sharing and the right to free, prior and informed consent. The government of India should adopt “Indigenous and Tribal Peoples Intellectual Property Rights Act” to provide for a system of community intellectual rights protection of indigenous and tribal peoples with respect to the development of genetic resources and the conservation of the country’s biological diversity in consultation with indigenous peoples.

The Draft National Policy also should recognize shifting cultivation as a separate agricultural sector and among others, should also provide budgetary allocations and establish a research center on shifting cultivation.

The Draft National Policy should ban forced evictions with the exception of natural disasters or armed conflicts until those indigenous and tribal peoples who have already been displaced since the constitution came into force are fully and properly rehabilitated. A “National Commission on Forced Evictions of the Indigenous and Tribal Peoples” be set up to study incidents of forced evictions since the constitution came into force and make appropriate recommendations for resettlement and rehabilitation of the victims of forced evictions and their descendents consistent with the guarantees provided under the constitution (5^th Schedule and 6th Schedule and other related provisions) and in the event of indigenous and tribal peoples giving free, prior and informed consent for undertaking certain projects, no development projects, private or State, be launched unless all the potential victims are fully rehabilitated first.

A National Land Commission should be set up to prevent the growing incidence of tribal land alienation and restoration of alienated land to the tribals in accordance with the provisions of the Fifth Schedule and Sixth Schedule and a central Law on the “Land Rights of Indigenous and Tribal Peoples” be adopted, inter alia, to address loopholes in the State Acts prohibiting transfer of tribal lands to non-tribals and commercial entities under any circumstances and to recognize oral evidence in the absence of records in the disposal of tribals’ land disputes.

(To be continued)