PROPERTY RIGHTS IN THE CONTEXT OF INDIGENOUS CLAIMS

 This Article is Written by Urmila Biswas of Department of Law, University of Calcutta (Hazra Campus), an intern under Legal Vidhiya

ABSTRACT

This article will deal with the property rights of the indigenous groups in our country, along with the challenges that they face in contemporary times. The evolution of indigenous groups from prehistoric times to the present will be discussed. However, the evolution during the British colonial era is examined in a more detailed manner to understand its effect on the property rights of individuals. Are there any challenges concerning the indigenous claims? The impact and effect of those challenges will also be delved into. The utility of the existing legal provisions regarding the indigenous claims will be discussed along with their practical implications in our society. Further, the role of the United Nations concerning the preservation of the indigenous claims and rights to property will be dealt with. The results and findings of the cultural school concerning the topic of international property claims and the rights of the indigenous groups on an international level will also be discussed. Whether the inclusion of legal aid have any positive impact on the indigenous people? The inclusion of legal aid and well-drafted documentation has a huge role to play regarding the legitimacy of indigenous claims, which will be elaborated on later. Moreover, it is to be noted that indigenous claims have certain negative effects, which cannot be avoided altogether.

KEYWORDS

Indigenous Groups, Claims, Communities, Declaration, Bureaucrat, Ownership, Organization, Ancestral, Legislation, Legal Aid, Documentation, Constitutional Procedures.

INTRODUCTION

The term’ property rights’ is generally conceived as an individual’s right to ownership of property, possession, as well as their rights and claims over that property. However, the concept of indigenous claims to property differs as they do not base the land on the bar of materialistic possession and ownership; they consider the land as a mark of communal, cultural, social, and spiritual significance. They do not consider the land as a mere source of livelihood, but rather as the basis of their communal identity and its significance. The different indigenous communities are deeply connected with their ancestors’ property and lands, making it a desirable ingredient of communal significance. In India, these indigenous communities are known as tribal or Adivasi communities. Our country is the hub of cultural diversity, having different indigenous communal groups like Gonds, Santhals, Garos, Nagas, Khasis, Jaintias, and many more. However, it is equally true that these communities face persistent problems in regards to their claims over the indigenous properties. There are a lot of pending litigations in the court of law in regards to these unresolved claims. All these unresolved claims, inadequate protection to the indigenous communities, weak and insufficient land protection measures contribute to the vagaries in the issue of indigenous rights and claims. Though there are constitutional safeguards to preserve the rights of the indigenous people, more practical measures are required for proper implementation and inclusive development for these indigenous communities.

EVOLUTION OF INDIGENOUS COMMUNITIES IN INDIA

The evolution of indigenous communities in India dates back to prehistoric times, when people engaged in hunting and gathering, and their primary occupation was agriculture. It was during the time of British rule that the massive exploitation of indigenous communities took place, as they resorted to an expansionist policy of expanding territories. The zamindari system led to the forced expulsion of the indigenous communities from the property of their ancestors. The autonomy of the tribal communities was completely eroded, and they were brought under the British administration. Moreover, the different forest laws further worsened the condition of the indigenous people as it has restricted their rights to their traditional livelihood. We have several significant examples of the rebellions of these tribal communities, like the Santhal Rebellion in 1855, the Munda rebellion of 1899, and several others. The indigenous communities worshipped their land and remained close to it as a mark of respect to their ancestors.

However, after independence, the indigenous communities were duly recognized and have been listed, providing them with reservations and such other facilities. In recent times, India has served as a home to more than seven hundred indigenous communities, and is the second largest home to indigenous communities across the world.[1] The Indian census, which was conducted in 2011, also stated that more than a hundred million people resided in India, out of which more than 8.5% of the people are deemed to belong to the Scheduled Tribe community.[2]

CHALLENGES TO INDIGENOUS CLAIMS

Despite having well-structured rights for the indigenous communities, they face several challenges that imply the lack of practical application and weak enforcement measures. The land rights are being infringed upon by the rich business entities, which displace the indigenous people. Moreover, these indigenous communities primarily rely on primitive means of occupation like fishing, hunting, and agriculture, and the displacement of these communities leads to a loss of livelihood. Along with all the above-mentioned challenges, the most crucial problem is the degradation of the environment. The indigenous communities lived on their ancestral property by keeping harmony with nature, while massive urbanization, deforestation, setting up of high-tech industries completely reverse the cycle of nature. Further, the indigenous people are also the victims of violence, fake arrests, and death, primarily those who resist the process of encroachment of land.[3]

LEGAL PROVISIONS TO SAFEGUARD THE RIGHTS OF THE INDIGENOUS COMMUNITIES IN INDIA

After undergoing a long history of evolution and challenges, the property rights of the indigenous communities have been duly recognized. There are different constitutional provisions, like the Fifth Schedule of the Constitution,[4] which aims to safeguard the rights of the indigenous communities residing in the other parts of the country except the north eastern states like Gujarat, Madhya Pradesh, Telangana, Rajasthan, Odisha, and many more. While the sixth schedule of the Constitution[5] applies to the northeastern states of India, like Meghalaya, Assam, Tripura, and Mizoram.

The Forest Rights Act of 2006[6] is another landmark legislation that primarily focuses on the recognition of the rights of the indigenous communities, and also safeguards their ancestral lands and resources. It is disheartening to know that instead of getting wide acclaim, the act met with failure. There were several legal uncertainties along with the presence of bureaucratic blocks in the way of the administration of the act.[7]

Another significant provision was the Panchayats (Extension to the Scheduled Areas) Act, 1996[8] is another significant act that upholds the values of the indigenous communities. It not only enhanced the working of the local communities but also promoted self-rule in the local area. Hence, this act is given the fame of being the strength of the tribal legislation in India. However, it is deemed as weak due to its improper implementation and lack of clarity.[9].

UNITED NATIONS DECLARATION OF THE RIGHTS OF INDIGENOUS COMMUNITIES

The United Nations Declaration of the rights of indigenous communities was adopted in early times of two thousand seven, which was done by the General Assembly. This declaration was favored by a majority of one hundred forty-three states[10]. This declaration concretely established the rights of the indigenous people. Similarly, ingredients are engraved under the International Labour Organization’s Indigenous and Tribal Peoples’ Convention Number 169 and Convention Number 107.[11] Further, a permanent forum on indigenous issues was formed in the year 2000 by the United Nations to deal with financial and technical issues, to ensure respect towards the indigenous people, along with the clear demarcation of the boundaries of the ancestral land, to help in the enforcement of pan-India legislation for this community along with organizing programmes for the awareness of these communities. Thus, one can easily conclude that the United Nations Permanent Forum took several measures in the enforcement of the rights of the indigenous people.

CULTURAL PROPERTY AND INDIGENOUS CLAIMS

The term cultural property essentially means the transfer of cultural items to uphold their indigenous claims. It is used to prevent foreigners from interfering with the cultural identity of the indigenous communities. The cultural property is precluded from cross-border movements through international cultural property laws.[12] The cultural property schools aim to protect the indigenous claims of the people by preventing cross-border movements. It is to be noted that cross-border movements are not completely restricted, but are carried on in a limited manner. Besides protecting the cultural property and indigenous claims, it also equips them to enable the judicious use of resources for their future generations. It was also stated by the schools of property that culturally significant items are considered an intrinsic part of common property. The term ‘common property’ is used in layman term to define the property belonging to a group. The sense of being a part of a group gives rise to a feeling of unity and integrity in the community itself. Keeping the above goals in mind, the property rights are considered the toolkit of the physical and cultural existence of indigenous communities.

IMPORTANCE OF LEGAL AID TO MEET INDIGENOUS CLAIMS

The importance of legal aid cannot be denied, it makes the indigenous people aware of their rights by employing various legal aid organizations. These organizations create a sense of awareness among the indigenous communities through the help of seminars, campaigns, and workshops. In our country, the primary entity that is responsible for providing legal aid is the National Legal Services Authority.[13]It is essentially aimed at empowering the indigenous communities to advocate for their property rights. The 42^nd Constitutional Amendment of 1976 brought about the provision of free legal aid, helped to get legitimate recognition, and was further enshrined under Article 39A[14] of the Indian Constitution.

The legal aid organizations also help the indigenous people to prove their claim for a property that lacks proper documentation. Apart from collecting historical records for an indigenous ancestral property, they also assist in filing applications and legal documentation under the ambit of the Forest Rights Act, and any other relevant laws if applicable.[15]. We have also seen instances where legal professionals do not charge exorbitant fees and have offered free legal aid to the indigenous people. Different legal aid organizations have also sought assistance from international bodies and non-governmental organizations to increase the obligations towards the indigenous claims, and hasten the process of recognition of land rights.

SIGNIFICANCE OF DOCUMENTATION IN INDIGENOUS LAND CLAIMS

The rich industrialist and companies tend to derail the rights of the indigenous communities by forcefully displacing them against their will. Moreover, an adequate amount of indemnity is also not duly awarded to them. Thus, formal title deeds along with well-structured legitimate documents are very important in proving ownership of land before the court of law. The presence of valid documents gives official recognition to the rights and interests of the indigenous groups, the sanctity of the ancestral property. It also protects them from forceful displacement and illegal land grabbing, and integrates the property with various economies of the world.[16].

CRITICISM OF INDIGENOUS CLAIMS

Every coin has two faces, which is equally applicable to property rights in the context of indigenous claims. The indigenous claims to ancestral property integrate the people, but in recent times, we have also witnessed the disintegration of the community based on their different claims. They tend to oppose their claims as one group of people argues for collective ownership of the property, while the other side argues to gain private ownership over indigenous lands. Thus, there is internal disintegration of the community, which has weakened its position in society.  The contemporary example of such indigenous violence is the ethnic clashes that took place in Manipur between 2023 to 2025. It took place between the Meitei Community and the Kuki-zo tribes, triggering violent activities resulting in the deaths of more than 250 people and forced displacement of over sixty thousand people[17]. This devastating situation was further worsened by the entry of insurgent fighters from Myanmar. They supplied modern machinery and weapons to the indigenous communities.

LANDMARK CASES

Kimneo Haokip Hangshing v. Kenn Raikhan (2024)[18]

It is a landmark case where the Supreme Court held that traditional customary laws are not the sole custodian for determining land ownership. Traditional customary laws should be correlated with the official legal provisions. This judgement was declared as there arose an ambiguity relating to customary indigenous claims and private ownership of a property. In such situations, it is necessary to create a balanced framework between the two sets of claims to determine the actual ownership of the property.

Adivasis for Social and Human Rights Action v. Union of India (2023)[19]

This case is another landmark judgement that primarily revolved around the issue of the application of Central or State laws to a definite scheduled area. The Supreme Court held in this regard that Central and State laws do not automatically apply to a particular area; it requires the proper announcement by the Governor of that particular area. Until and unless the Governor announces it either by notification or notice, the Central or State laws cannot be enforced for the specified area. Thus, we can conclude from this case that the autonomy of the scheduled areas can only be preserved by following the constitutional procedures, along with all the general provisions which has been mentioned so far.

CONCLUSION

The transfer of property rights, especially in the context of Indigenous claims, is an evolving issue. However, the indigenous claims towards the ancestral properties should be directed towards a positive direction. It includes the upholding of the sanctity, spiritual, and cultural implications in regards to the property which is being claimed. We have witnessed the devastating losses which has been suffered by the indigenous people in the past, especially during the British colonial era. Thus, an inclusive development of all those indigenous groups and people is a need of the time, which needs to be carried on by employing a comprehensive approach. There should be well-structured rights, along with the practical application and implementation in the real world. Though they have their traditional customary practices, which should be supplemented with the present legal provisions to arrive at a reasonable decision. Lastly, the development models and goals should be made after analyzing the existing laws and creating awareness among the indigenous people. Awareness of topics like land rights, legal action, educational programmes, legitimate representation, leadership, community goals, and development is the basic pillar of inclusive development.

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[1] Indigenous Rights in India and the web of indifference, Down to Earth,(9^th August, 2016), https://www.downtoearth.org.in/governance/indigenous-people-in-india-and-the-web-of-indifference-55223, (Last Visited: April 17, 2025).

[2] Kumarjeeb Pegu: The Tribal Tapestry Exploring the Social Evolution of Indian Tribes through Indigeneity and State Dynamics, SLR,(20^th September, 2024), https://www.sociolegalreview.com/post/the-tribal-tapestry-exploring-the-social-evolution-of-indian-tribes-through-indigeneity-and-state-d, (Last Visited: April 17, 2025).

[3] Abhijeet Shirke: Land Records and Titles in India, (2025), https://www.abhijeetshirke.in/legal-aid-indigenous-land-rights/, (Last Visited: April 18, 2025).

[4] INDIAN CONSTITUTION, 1950, NO. 1, ACTS OF PARLIAMENT, 1950 (INDIA).

[5] Supra 4.

[6] The Forest Rights Act, 2006, No. 2, Acts of Parliament, 2007 (India).

[7] Shounak Roy: Upholding Indigenous Rights: Navigating Legal Challenges, Drishti IAS (23^rd February 2024),  https://www.drishtijudiciary.com/blog/upholding-indigenous-rights-navigating-legal-challenges, (Last Visited: April 17, 2025).

[8] The Panchayats (Extension to the Scheduled Areas) Act, 1996, No. 40, Acts of Parliament, 1996 (India).

[9] Panchayat Extension to Scheduled Areas (PESA) Act, 1996, Drishti IAS (4^th August 2021),  https://www.drishtiias.com/daily-news-analysis/panchayat-extension-to-scheduled-areas-pesa-act-1996, (Last Visited: April 17, 2025).

[10] United Nations Declaration on the Rights of Indigenous Peoples, Division for Inclusive Social Development, United Nations Department of Economic and Social Affairs, https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples#:~:text=The%20United%20Nations%20Declaration%20on,specific%20situation%20of%20Indigenous%20Peoples, (Last Visited: April 16, 2025).

[11] Indigenous Peoples’ collective rights to lands, territories and resources, United Nations Permanent Forum of Indigenous Issues, https://acrobat.adobe.com/id/urn:aaid:sc:AP:c82b28b9-fe19-44cf-94e2-87c7e2fe086, (Last Visited: April 17, 2025).

[12] United Nations Education, Scientific, and Cultural Organization (UNESCO) 

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer 

of Ownership of Cultural Property 823 U.N.T.S. 231, 234, UNESCO, (November 14, 1970), https://www.unesco.org/en, (Last Visited: April 17, 2025).

[13] About National Legal Services Authority, nalsa.gov.in, https://nalsa.gov.in/ , (Last Visited: April 16, 2025).

[14] INDIA CONST. art. 39A.

[15] Abhijeet Shirke: Land Records and Titles in India, (2025), https://www.abhijeetshirke.in/legal-aid-indigenous-land-rights/, (Last Visited: April 18, 2025).

[16] Supra 15.

[17] Manipur in 2024: Chaos, ethnic violence, and protests reigned, Business Standard, (31^st December 2024),https://www.business-standard.com/india-news/manipur-in-2024-chaos-ethnic-violence-protests-reigned-supreme-124123100206_1.html, (Last Visited: April 17, 2025).

[18] Kimneo Haokip Hangshing v. Kenn Raikhan Special Leave Petition (C) No. 20580 of 2023.

[19] Adivasis for Social and Human Rights Action v. Union of India Civil Appeal No. 2202 OF 2012.

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