Rights of tribals, minorities and racial groups
Human Rights Law and Practice · Unit V · Topic 18 of 18 · 8 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Racial discrimination: ICERD
The International Convention on the Elimination of All Forms of Racial Discrimination was adopted on 21 December 1965 and came into force on 4 January 1969. (The syllabus lists it as “1948”; the correct year is 1965.) India ratified it in 1968.
- Art. 1: racial discrimination means any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing equal enjoyment of human rights. Special measures for the advancement of disadvantaged groups are not discrimination (Arts. 1(4), 2(2)).
- Art. 2: states condemn racial discrimination and undertake to eliminate it by all appropriate means; Art. 3 condemns segregation and apartheid.
- Art. 4: states must make dissemination of ideas based on racial superiority, incitement to racial discrimination and racist organisations punishable by law.
- Art. 5: equality before the law in the enjoyment of a long list of civil, political, economic, social and cultural rights.
- Art. 6: effective remedies; Art. 7: education against prejudice.
- Implementation: the Committee on the Elimination of Racial Discrimination (Art. 8), the first treaty body, with eighteen experts; state reports every two years (Art. 9); inter-state complaints (Art. 11); individual communications only against states that make a declaration under Art. 14. India has not made one.
The Committee in General Recommendation 29 (2002) treated discrimination based on caste as discrimination based on “descent”. India’s position has been that caste is not race and falls outside the Convention; it points to Article 17 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as its domestic answer.
2. Tribal and indigenous peoples: the international standards
- ILO Convention No. 107 (1957) on Indigenous and Tribal Populations, ratified by India in 1958. It aimed at protection but also at the progressive integration of tribal peoples into national life.
- ILO Convention No. 169 (1989) on Indigenous and Tribal Peoples rejected the integration approach. It recognises their right to control their own institutions, ways of life and development, their rights of ownership and possession over lands they traditionally occupy, and the duty of states to consult them through appropriate procedures. India has not ratified it.
- UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the General Assembly on 13 September 2007, with India voting in favour. It recognises self-determination, rights to lands, territories and resources, cultural and spiritual practices, and free, prior and informed consent before relocation or projects affecting their lands. India’s stated view is that all its citizens are indigenous and that its Scheduled Tribes are protected under its own law.
- ICCPR Article 27 also protects tribal communities as ethnic and linguistic minorities.
3. Tribals in Indian law
Constitution. Scheduled Tribes are notified by the President under Article 342. Article 46 directs the State to promote their educational and economic interests and protect them from social injustice and exploitation. Articles 15(4) and 16(4) allow reservations; Articles 330 and 332 reserve seats in the Lok Sabha and Assemblies; Article 338A creates the National Commission for Scheduled Tribes; Article 275(1) provides grants for their welfare. Article 244 and the Fifth Schedule govern Scheduled Areas in most States: the Governor may direct that an Act of Parliament or the State Legislature shall not apply or shall apply with modifications, and may make regulations to prohibit or restrict transfer of land by or among tribals. The Sixth Schedule provides autonomous district councils in Assam, Meghalaya, Tripura and Mizoram.
Statutes. The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) gives gram sabhas in Scheduled Areas powers over community resources and requires their consultation before land acquisition. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 recognises individual and community forest rights and the role of the gram sabha. The 1989 Atrocities Act protects against caste and tribal violence.
Cases. In Samatha v. State of Andhra Pradesh (Supreme Court, 1997), leases of tribal land in a Scheduled Area to private non-tribal mining companies were held void, in the light of the Fifth Schedule and the State’s land transfer regulations. In Orissa Mining Corporation v. Ministry of Environment and Forest, 2013 INSC 267, (2013) 6 SCC 476 (the Niyamgiri case), the Court held that the gram sabhas of the Dongria Kondh and other forest dwellers must decide whether bauxite mining in the Niyamgiri hills would affect their religious, cultural and community rights under the Forest Rights Act and PESA. All the gram sabhas consulted rejected the project.
4. Minorities: the international standard
The League of Nations minorities treaties protected national minorities in Central and Eastern Europe. The UDHR has no minority clause. The binding standard is ICCPR Article 27: in states in which ethnic, religious or linguistic minorities exist, persons belonging to them shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The Human Rights Committee (General Comment 23, 1994) has said that the existence of a minority does not depend on a decision of the state, and that the right may require positive measures.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (General Assembly resolution 47/135, 18 December 1992) adds that states shall protect the existence and identity of minorities and encourage conditions for its promotion (Art. 1); that persons belonging to minorities may enjoy their culture, religion and language in private and public, participate effectively in cultural, religious, social, economic and public life and in decisions affecting them, and establish their own associations (Art. 2); and that states should take measures for them to learn their mother tongue and to participate in economic progress (Art. 4). The Council’s Special Rapporteur on minority issues and the Forum on Minority Issues follow it up.
5. Minorities in Indian law
- Articles 25 to 28 (religious freedom for all), Article 29 (any section of citizens with a distinct language, script or culture has the right to conserve it), Article 30 (all minorities, religious or linguistic, have the right to establish and administer educational institutions of their choice), Article 350A (instruction in the mother tongue at the primary stage) and Article 350B (Special Officer for Linguistic Minorities).
- The National Commission for Minorities Act, 1992; its Chairperson is a deemed Member of the NHRC under section 3(3) of the 1993 Act.
- In T.M.A. Pai Foundation v. State of Karnataka, 2002 INSC 454, (2002) 8 SCC 481, an eleven-judge bench held that for the purpose of Article 30 religious and linguistic minorities are determined State-wise, and that the right to administer is not a right to maladminister.
6. The Chakma case
National Human Rights Commission v. State of Arunachal Pradesh, 1996 INSC 38, (1996) 1 SCC 742.
Facts. Chakmas, a Buddhist tribal people from the Chittagong Hill Tracts of what was then East Pakistan, were displaced in the 1960s and came to India as refugees. Many were settled by the Government in what is now Arunachal Pradesh, and by the 1990s their number there had grown to about 65,000. The All Arunachal Pradesh Students’ Union demanded their expulsion and issued ultimatums, with an economic blockade and threats of force. The NHRC received complaints, called for reports from the State and the Centre, and, finding the danger continuing, itself filed a writ petition under Article 32, using its power under section 18 of the 1993 Act to approach the Supreme Court.
Held.
- The State is bound to protect the life and personal liberty of every human being, whether citizen or not. Article 21 protects the Chakmas, and no one may deprive them of life or liberty except according to procedure established by law.
- The State of Arunachal Pradesh must ensure their life and personal liberty, and any attempt by a group to force them out must be repelled, if necessary with the help of central forces.
- Applications by Chakmas for registration as citizens under section 5 of the Citizenship Act, 1955 must be received and forwarded to the Central Government, not withheld by local officers. Until the applications are decided, the Chakmas must not be evicted.
Significance. It is the leading case on the application of Article 21 to non-citizens and refugees, and the first in which the NHRC itself took a case to the Supreme Court. Compare State of Arunachal Pradesh v. Khudiram Chakma, 1993 INSC 168, where the Court held that a foreigner has the protection of Article 21 but not the right to reside and settle, which Article 19(1)(e) gives only to citizens.
How this is examined
For the Chakma note, section 6: facts, the three holdings, and the significance. For “rights of minorities”, sections 4 and 5, starting with ICCPR Article 27. For tribals, sections 2 and 3, contrasting ILO 107 (integration) with ILO 169 and UNDRIP (self-determination and consent). ICERD can be used as a short note on its own or as part of any answer on vulnerable groups.
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