Executive Summary

General comments:

While examining India's 15th to 19th periodic reports (CERD/C/IND/19), it is essential to keep in mind that given the federal nature of the country, the States (provinces) have legislative and administrative powers including maintenance of law and order, education, health care etc. Therefore, indigenous/tribal peoples, the Dalits and the minorities also face discrimination because of the action of the State governments. 

Article 1:

On the denial of the applicability of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, India at the outset of its reports recognizes “diverse origin” (para 3) of its peoples and India's “ethnic, religious, linguistic and economic diversity” (para 6). After having recognized the existence of one of the grounds of racial discrimination i.e. discrimination on “ethnic” origin, it denies applicability of Article 1 of the Convention. The government of India cannot probate and reprobate at the same time.

The government of India's denial of the existence of racial discrimination is inconsistent with the directions of constitutional bodies like the Election Commission of India. In its report (para 74), the government of India referred to inclusion of names of 1,500 Chakmas into electoral rolls in Arunachal Pradesh. With regard to the exclusion of the same Chakma and Hajong eligible voters from electoral rolls in Arunachal Pradesh, the Election Commission of India in its order No. 23/ARUN/2003 of 3 March 2004 held that they “have not been included in the electoral rolls mainly for the reason that they belong to the Chakma tribe/race (emphasis ours)”.

The government of India's lack of coherence is reflected in many of its policies. In one hand, it promotes “where appropriate integrationist multi-racial organisations and movers and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division”; on the other hand, various regiments of Indian Army are named after their ethnic/caste origins as Rajput Regiment, Jat Regiment, Sikh Regiment, Dogra Regiment, Naga Regiment, Gorkha Rifles etc. Naming of various regiments in Indian army contributes to “race, ethnic, caste and regional consciousness” (emphasis ours). The colonial British named such regiments as a part of its “Divide and Rule policy”, and the government of India continues the practice. Having a Regiment of Indian Army means recognising the status/strength of the community/caste concerned. In fact, in May 2004 the present Minister of Chemical, Fertilizers and Steel of the government of India, Mr Ram Vilas Paswan  demanded that forming a “Dalit Regiment on the pattern of Sikh Regiment, Jat Regiment or Mahar Regiment” should be included in the Common Minimum Programme of the United Progressive Alliance government. [1]

Article 2:

The government of India released the revised Draft National Tribal Policy on 21 July 2006 with the deadline to submit comments by 10 August 2006. It spoke of the proforma consultation held by the Government of India.

There are no criteria to define Scheduled Tribes. Under Article 342, the President is empowered to declare “the tribes or the tribal communities or parts of or groups with tribes or tribal communities” as Scheduled Tribes. “The Scheduled Areas and Scheduled Tribes Commission” appointed by the President of India on 28 April 1960 under Article 339 of the Constitution of India in its report of 14 October 1961 stated that “As these groups are presumed to form the oldest ethnological sector of the population, the term “Adivasi” (`Adi'= original and `Vasi'= inhabitant) has become current among certain people. The International Labour Organization has classified such people as “indigenous”. [2]

Because of the lack of criteria, many groups are actually excluded from the benefits meant for the Scheduled Tribes. The government of India has special programmes for the socalled “Primitive Tribal Groups” (PTG) who are on the verge of extinction. But many PTGs are excluded. For example, only 23 families comprising of about 100 members of Karbong tribe were reportedly surviving in Tripura state of India. The only primary school in Karbong Para village was set up in 1989 by the Autonomous District Council (ADC), but it started to function only from 1993. Three teachers were appointed and fifteen students enrolled in the first batch. However, most of the students left the school even before they reached the third standard due to financial problems. [3]

As of today, the government of India failed to make the report of Justice Jeevan Reddy Committee to Review the Armed Forces Special Powers Act of 1958 public. The report was submitted to the government of India in June 2005. In order to further delay the implementation of the recommendations of the Committee, in November 2006 the Central government sent the report of the Review Committee to the concerned State governments for their comments. This is despite the fact that the Committee had already taken the views of the concerned State governments before finalizing its recommendations.

Indigenous/tribal peoples were also victimized under the Prevention of Terrorism Act (POTA) of 2002, especially in Jharkhand. A total of 128 POTA cases were filed by the Jhakhand Police and 281 persons, majority of whom were Adivasis, were arrested under the Act. Both the youngest POTA detainee in the country, Gaya Singh (12 years) and the oldest of them, Rajnath Mahato (81 years) were from Jharkhand. The official numbers of POTA arrests in other states were: 181 in Jammu and Kashmir, 83 in Gujarat, 44 in Delhi, 42 in Maharashtra, 41 in Tamil Nadu, 40 in Andhra Pradesh, 28 in Uttar Pradesh, 6 in Sikkim, and 3 in Himachal Pradesh. [4] In 2004, the government repealed the POTA and established Review Committees to examine abuse of the POTA. The Review Committees exonerated a number of persons arrested under the POTA because of the lack of evidence to arrest under POTA but the State governments continued to detain many of them under other laws.

The government of India has not adopted the policy of providing budgetary allocations proportionate to the targeted groups of indigenous/tribal peoples and the Dalits. The government of India failed to ensure financial autonomy of the Autonomous District Councils (ADCs) established under the Sixth Schedule of the Constitution of India. The ADCs, which have been touted as “state” within a State, are not given funds proportionate to their populations and cannot even seek direct funds from the Central government. The State governments continue to create hindrance for effective functioning of the ADCs. The implementation of the Special Component Plan or Tribal Sub-Plan remained dismal mainly because of the diversion of funds meant for the Dalits and the tribals for others, lack of monitoring, lack of transparency and unwillingness to involve the beneficiaries concerned or the civil societies in the implementation of the programmes.

Article 5:

Neither the central government of India or the State governments has no system to collect data on trafficking. The National Crime Records Bureau (NCRB) of the government of India recorded a total of 3,518 cases of kidnapping and abduction of children during 2005. It also recorded 28 cases of buying of girls and 50 cases of selling of girls for prostitution during 2005. [5] Obviously, the figures of the NCRB are far from the reality. The National Human Rights Commission in a report in July 2004 stated that every year an average of 44,476 children went missing during 1996-2001 and about an average of 11,008 children per year were never traced during the same period. [6] Between 500 and 1,000 children, majority of them girls, have been reported to be missing from different parts of Assam every year and only about one third of them could reportedly be traced. [7]

The government of India also does not have a refugee law. All asylum seekers are treated under the Foreigners Act of 1946 and can be arrested under Section 14 of the Foreigners Act for illegal entry into the country and therefore committing a criminal offence. According to 2005-06 Annual Report of the Ministry of Home Affairs of the government of India, there were 1,08,414 Tibetan refugees and 50,750 Tamil refugees from Sri Lanka. The government of India provides basic assistance to the Tamil and Tibetan refugees. [8] However, an estimated 82,000 Burmese refugees who have fled to India ever since the military regime cracked down the pro-democracy movement of 1988 do not receive any assistance from the government of India or the State governments. Their conditions are deplorable. In Mizoram, they live under the fear of eviction and deportation.

Article 5 (a): Right to equal treatment before the tribunals

Indigenous/tribal peoples do not have access to equal treatment before the tribunals and all other organs administering justice because of the discriminatory application of the Criminal Procedure Code, identification of certain tribes as “born criminals” under the Habitual Offenders Act of 1952,  lack of separation of judiciary in tribal States like Arunachal Pradesh, Mizoram and Nagaland, impunity provided to the security forces under various laws such as the Unlawful Prevention Activities Act (Section 18) of 1967 as amended in 2004 and the Armed Forces Special Powers Act of 1958 (Section 6) applicable in internal conflict situations inhabited by indigenous peoples, and the administrative biases for  NON-PROSECUTION of the perpetrators belonging to the upper castes.

Article 5 (b): Right to security of person and protection of the State

According to government of India, 20 out of 28 States of India i.e seven North Eastern States of Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland and Tripura and 13 Naxalite affected States - Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Tamil Nadu, Uttar Pradesh, Uttaranchal and West Bengal are afflicted by low intensity armed conflicts. All the areas afflicted by internal armed conflicts are inhabited by indigenous and tribal peoples, and they have been the worst victims of human rights violations at the hands of the State and non-State actors.

Apart from the lack of security generally associated with any armed conflict situations, indigenous/tribal peoples have also become disproportionate victims of arbitrary use of fire-arms while exercising the right to freedom of association and assembly. On 30 September 2005, nine Garo tribal students were killed –five at Williamnagar in East Garo Hills district and four at Tura in West Garo Hills district of Meghalaya in indiscriminate firing by the Central Reserve Police Force (CRPF) personnel during a protest. Video clippings show that the CRPF personnel were firing by keeping the weapons over their shoulders to cause maximum loss of life. Similarly, in the killing of 12 Adivasis at Kalinga Nagar, Orissa on 2 January 2006, the police not only fired indiscriminately in retaliation against the killing of one of their colleagues but the palms of six victims were also chopped off from their wrists and genital organs were mutilated during post mortem. [9] In both these cases of killings, judicial inquiries were ordered but have not been completed as of today.

The State also failed to provide security to indigenous/tribal peoples from the non-State actors as reflected from the chilling massacres of civilians by the Maoists in Chhattisgarh in 2006 such as the killing of 27 villagers at Darbaguda under Konta Tehsil of Dantewada district on 28 February 2006 [10] and the killing of 31 civilian inmates of Salwa Judum camp at Errabore village in Dantewada district on 27 July 2006. [11] Instead of providing security to the tribals from the Maoists, the State government of Chhattisgarh directly involved them in the anti-Naxalite Salwa Judum campaign and further increased their risks. Across the armed conflict situations, the non-State actors were responsible for the violations of the right to life of the indigenous/tribal peoples.

Article 5 (c): Right to participate in elections

The government of India in its report highlights enrollment of 1,500 Chakma and Hajong voters in the electoral rolls in Arunachal Pradesh. But it does not mention that over 14,000 eligible Chakma and Hajong voters continued to be denied enrollment in the electoral rolls because of the blatant violations of the directions of the Election Commission of India by the State government of Arunachal Pradesh. The government of India also failed to mention that out of 4,627 Chakmas and Hajongs who had submitted citizenship applications in 1997-1998 pursuant to the Supreme Court of India's judgment in the case of National Human Rights Commission versus State of Arunachal Pradesh & Another (W.P. (c) No. 720 of 1995) on 9 January 1996, the Union government of India failed to determine even a single application until today. This is a clear case of discrimination considering that the government of India has been granting citizenship rights to the Hindu refugees who migrated to Rajasthan much later than the Chakmas and Hajongs.

Article 5(d)(v): Right to freedom of thought, conscience and religion

Under the Bodh Gaya Temple Act, 1949, the Buddhists are not allowed to control and manage the Bodh Gaya Temple, including the Mahabodi Mahavira Temple in Bihar. It is run by the Hindu priests and the District collector. In March 2005, the National Commission for Minorities held it illegal but the government has done nothing to handover the administration to the Buddhists.

The religion of the Adivasis, Sarna, is not recognized and therefore, not reflected in the census. While minority religious groups are targeted for alleged conversions under various state-level Freedom of Religion Acts, the Hindu fundamentalist groups have been openly reconverting the indigenous/tribal peoples. Apart from selective application of the Freedom of Religion Acts and denial of religious freedom to convert, non-recognition of the religions of the indigenous/tribal peoples and therefore, the denial of their cultural identities make them easy targets of conversion by the formal religions.

Article 5(e)(iii): Right to housing

According to the Ministry of Tribal Affairs of the government of India, the indigenous and tribal peoples who constitute about 8.2% of the total population constituted about 55.16% of the total displaced people in the country between 1950 and 1990. Displacement has further accelerated as India's booming economy requires more resources. This has led to frequent conflict and indiscriminate use of fire-arms as shown in Kalinganagar killings of 2 Janaury 2006.

There are over 6,00,000 conflict induced IDPs in India. Majority of them are indigenous/tribal people including 33,362 displaced persons in Kokrajhar district and 74,123 in Gosaigaon district [12] of Assam; 55,476 Kashmir Pandit families who were displaced due to the conflicts in Jammu and Kashmir since 1990; [13] and about 35,000 Brus (also known as Reangs) from Mizoram who were displaced in October 1997 and took shelter in Tripura.  As of 31st December 2006, there were 43,740 displaced persons in the Salwa Judum camps in Chhattisgarh. While a displaced Kashmiri Pandit received Rs 750 per month, an adult Bru received only Rs. 2.67 paise a day i.e. Rs 80 per month. Even though the conditions of the Kashmiri Pandits have been equally deplorable, discrimination by the government is clear.

Article 5(e)(iv): Right to health

The Child Mortality Evaluation Committee set up by the government of Maharashtra in its report presented to the Maharashtra State Assembly by Health Minister Vimal Mundada on 18 December 2004  stated that 82,000 children died every year in rural Maharashtra, excluding the 23,500 children who died due to starvation in the tribal areas. [14] Tribal health remains woeful across the country.

Article 5(e)(v): Right to culture

The tribal languages are seldom recognized as official languages under the 8th Schedule. The non-recognition of the Santhali language as an official language of India is illustrative of gross discrimination. The Santhali language is spoken by over 10 million people – more than Manipuri, Konkani and Nepali put together, which have been recognized as official languages.

Article 6: Access to the tribunals

On paper, the National Commission for Scheduled Tribes (NCST) is a constitutional body with quasi-judicial powers. To deal with atrocities faced by 84 million indigenous/tribal peoples, as of February 2007, the NCST has only eight officers:  one Secretary level officer, two Director level officers, two Assistant Director level officers and three researchers. The National Crime Records Bureau of the government of India recorded 5,713 cases of atrocities against the Scheduled Tribes under the SC/ST (Prevention of Atrocities) Act. Can the NCST discharge its functions effectively with eight staff and limited resources? The government of India has also failed to place NCST's 2005 Annual Report before the parliament.

---