LLM Notes: Explain human rights of indigenous persons with special reference to Indian law.

PART I: INTRODUCTION & DEFINITION (1.5-2 marks)

Opening Sentence (Hook):

Indigenous persons, also referred to as Adivasis or tribal peoples, are the person who are the original inhabitants of a territory, maintaining distinct cultures, institutions, and legal systems preceding the formation of modern nation-states. They represent the most vulnerable yet valuable custodians of biodiversity and traditional knowledge.

Definition to Write:

As per the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007), indigenous peoples are identified by their historical continuity with societies prior to colonization, distinct cultures and identities, and collective commitment to lands and environments traditionally occupied. In India, they are constitutionally recognized as Scheduled Tribes under Article 366(25) and comprise approximately 100 million people (~8.6% of population).

PART II: KEY RIGHTS OF INDIGENOUS PERSONS (6-6.5 marks)

Structure Tip: Write 5 Rights in Parallel Format - each with international basis + Indian legal provision

Right	International Basis	Definition	Indian Legal Framework
1. Right to Land, Territories & Resources	UNDRIP Art. 25-28; ILO Conv. 169	Collective ownership of ancestral lands; protection from dispossession; benefit-sharing from resource extraction	Forest Rights Act 2006 - Individual Forest Rights (IFR) & Community Forest Rights (CFR); Article 244 (Fifth Schedule); Article 46
2. Right to Self-Determination & Self-Governance	UNDRIP Art. 4; ILO Conv. 169 Art. 7	Control over own institutions, ways of life, development priorities; autonomy in local/internal affairs	Article 244 (Sixth Schedule) - Autonomous District Councils; PESA 1996 - Gram Sabha authority; Article 342 (Scheduled Tribes definition)
3. Right to Free, Prior & Informed Consent (FPIC)	ILO Conv. 169 Art. 6; UNDRIP Art. 32	Community must consent BEFORE any project affecting lands/resources; information must be complete and accessible; no external coercion	Forest Rights Act 2006 - Gram Sabha consent mandatory before forest settlement; Niyamgiri judgment (2013) - Gram Sabha final say on mining
4. Right to Culture, Language & Identity	UNDRIP Art. 11-16	Practice own religion, use language, maintain traditions, customary laws; protection from forced assimilation	Article 29 - Right to preserve culture; Article 25 - Freedom to practice religion; 8th Schedule - 22 recognized languages
5. Right to Education & Development	UNDRIP Art. 14, 21; ILO Conv. 169 Art. 27	Education preserving cultural identity; economic development determined by the community; health and social services	Article 46 - State shall promote educational & economic interests of STs; Reservation mechanism (Articles 15(4), 16(4))

 PART III: INTERNATIONAL LEGAL FRAMEWORK (2 marks)

1.       UN Declaration on Rights of Indigenous Peoples, UNDRIP (2007)

o   Non-binding but authoritative; adopted with 144 affirmative votes

o   Establishes universal standards for indigenous rights

o   Recognizes both individual and collective rights

2.       ILO Convention 169 (1989) - Most Binding

o   Legally binding treaty (unlike UNDRIP)

o   India is signatory - makes it operative law

o   Articles 6 (consultation), 14 (land rights), 27 (economic rights) are critical

PART IV: INDIAN APPLICATION WITH CASE LAW (5.5-6 marks)

A. Constitutional Framework:

The Indian Constitution provides a three-tier protection mechanism for indigenous/tribal peoples:

1.       Part I: Article 342 - "Power to specify Scheduled Tribes"

o   President specifies STs after Governor consultation (Clause 1)

o   Parliament alone can modify the list through legislation (Clause 2)

o   Ensures democratic accountability and prevents arbitrary exclusion

2.       Part II: Special Area Protections

o   Fifth Schedule (Art. 244) - Governs Scheduled Areas (12 states); includes Tribal Advisory Councils

o   Sixth Schedule (Art. 244) - Autonomous governance in Northeast (Assam, Meghalaya, Mizoram, Tripura); Autonomous District Councils hold full legislative/administrative powers

3.       Part III: Articles 15(4) & 16(4) - Affirmative Action

o   Permits reservations in education and employment

o   Ensures political representation in legislatures

B. Statutory Framework (Write 2-3 laws with provisions):

1. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

Key Provision to Memorize: Act recognizes dual rights:

·       Individual Forest Rights (IFR): Individual tribal member can own/cultivate up to 4 hectares of forest land

·       Community Forest Rights (CFR): Communities can manage, protect, and benefit from forest resources collectively

Critical Feature: Land recognized under FRA cannot be transferred or mortgaged - ensures perpetual tribal control.

Exam Tip: This Act is the most important modern legislation implementing indigenous land rights in India.

Provisions of Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)

Function: Extends self-governance to Scheduled Areas through modified panchayat system.

Key Powers of Gram Sabha under PESA:

·       Authority over minor forest produce and minor minerals

·       Mandatory consultation before land acquisition

·       Certification requirement for fund utilization

·       Veto power over external development projects

Why Important for Exam: PESA operationalizes the right to self-determination by giving village communities actual decision-making power.

C. Landmark Supreme Court Judgment:

Case: Orissa Mining Corporation v. Ministry of Environment (Niyamgiri Judgment, 2013)

Facts: Bauxite mining proposed on sacred Niyamgiri hills of Dongria Kondh tribe in Odisha. Tribe viewed the hills as sacred.

Supreme Court's Landmark Ruling:

·       Gram Sabhas have final decision-making power on whether projects can proceed if they affect tribal religious/cultural rights

·       Free, Prior, and Informed Consent (FPIC) is mandatory before mining in tribal areas

·       The judgment explicitly held that "Community rights prevail over state development priorities"

Significance for Exam: This judgment:

·       Operationalized FPIC principle in Indian law

·       Applied Forest Rights Act provisions practically

·       Aligned Indian law with international standards (ILO Convention 169)

·       Created binding precedent for all mining/development in tribal areas

D. Critical Application Example (4-5 lines):

If a mining company seeks to extract minerals from forest land in a Scheduled Area, it must now:

1.       Obtain Gram Sabha consent under PESA and Forest Rights Act

2.       Provide complete information about environmental/social impacts (FPIC)

3.       Recognize Community Forest Rights (CFR) - collective community ownership

4.      Ensure no forced displacement without rehabilitation

5.       Face judicial review if Gram Sabha's decision is violated (per Niyamgiri precedent)

PART V: CONCLUSION (0.5-1 mark)

Write in Judicial Style (One Paragraph):

In conclusion, indigenous peoples' rights represent a fundamental commitment to self-determination, resource justice, and cultural preservation. While international instruments like UNDRIP and ILO Convention 169 establish universal standards, India has taken a proactive constitutional and statutory approach through Articles 342, 244, the Forest Rights Act 2006, and PESA 1996. The Niyamgiri judgment demonstrates that Indian courts increasingly recognize that indigenous peoples' consent cannot be overridden by state development agendas. However, implementation gaps persist, with many Gram Sabhas' decisions being ignored and forced displacements continuing. The challenge for India lies in translating constitutional/legal protections into ground reality through effective enforcement and genuine community participation.

MEMORIZATION & STUDY TIPS FOR 10-MARK EXAM

Mnemonic Framework (Memorize This):

"LAFIC-S" = Land, Autonomy, FPIC, Identity, Consultation, Self-governance

These are the 6 pillars of indigenous rights. If asked "name key rights," recite these six words and expand each.

Article Memorization Pattern:

Article	What It Does	Exam Keyword
Art. 342	Defines STs	"President specifies, Parliament modifies"
Art. 244	Fifth & Sixth Schedules	"Area-based protection"
Art. 46	State duty	"Educational & economic advancement"
Art. 15(4), 16(4)	Reservations	"Affirmative action"
Art. 29	Culture protection	"Preserve distinguished culture"

 Law Memorization Pyramid:

             UNDRIP (2007)

           ILO Conv 169 (1989)

         Constitution (Art. 342, 244)

       Forest Rights Act (2006)

     PESA (1996)

   Niyamgiri Judgment (2013)

Rule: Master the bottom layer (Niyamgiri case) to get full marks. Examiners expect you to know and cite at least one landmark case.

Writing Speed Tips for Exam:

1.       Don't write introductory paragraphs - go straight to definitions and rights

2.       Use numbered/tabular format for rights - saves time and looks organized

3.       Write provision numbers, not full text - "As per Section 2(a) of FRA 2006..." is sufficient

4.      Use abbreviations freely - FPIC, FRA, PESA, STs, CFR, IFR

5.       Reserve last 2 lines for a case law reference - Always cite Niyamgiri or Samatha judgment

Key Phrases to Use in Exam (Sounds Academic):

·       "Autochthonous communities" (means original inhabitants)

·       "Ancestral territories" (instead of just "land")

·       "Collective rights paradigm" (shows understanding)

·       "Free, prior, and informed consent is a sine qua non" (means essential condition)

·       "Gram Sabha as decision-making focal point" (sophisticated phrasing)

·       "Ground-truth implementation gaps" (shows awareness of practice-theory divide)

One-Liner Answers (Use if Time is Short):

Q: What are indigenous peoples' rights?

A: "Indigenous peoples' rights comprise collective land ownership (UNDRIP Art. 25), self-governance (Art. 4), free prior informed consent before development (Art. 32), cultural preservation (Art. 11-16), and non-discrimination (Art. 2). In India, these are constitutionally protected under Article 342 (Scheduled Tribes definition) and operationalized through Forest Rights Act 2006, PESA 1996, and the Niyamgiri Supreme Court judgment establishing mandatory Gram Sabha consent for mining projects."

Common Exam Mistakes to Avoid:

Mistake	Why It's Wrong	Correction
Writing "individual rights" as primary	Indigenous rights are collective by nature	Emphasize "collective ownership paradigm"
Ignoring FPIC principle	ILO Conv 169 Art. 6 makes it binding	Always mention FPIC with case reference
Not citing Niyamgiri case	Shows lack of current knowledge	Must cite: "Orissa Mining Corp v. MoEF (2013)"
Confusing Articles 244 & 342	Different purposes; 342 defines, 244 protects	Article 342 = definition; Article 244 = area protection
Forgetting Forest Rights Act 2006	Most important modern Indian legislation	Must discuss IFR & CFR provisions
Ignoring implementation gaps	Looks incomplete	Always mention: "despite legal protections, enforcement remains weak"

 Exam Time Allocation (for 10 marks in 20 minutes):

·       Introduction & Definition - 3 minutes

·       5 Key Rights (with table/bullet format) - 8 minutes

·       Indian Legal Framework - 5 minutes

·       Case Law Application - 3 minutes

·       Conclusion - 1 minute

Total: 20 minutes - Practice this timing!

Last-Minute Revision (15 minutes before exam):

Read these 3 critical facts repeatedly:

1.       LAFIC-S (6 pillars of indigenous rights)

2.       "Orissa Mining Corp v. MoEF (2013)" = Gram Sabha's decision is final in tribal matters

3.       "Forest Rights Act 2006 = IFR (individual) + CFR (collective)"

These three will get you at least 6-7 marks even if you forget everything else.

Sample 10-Mark Exam Answer (Complete)

Q: Explain the rights of indigenous persons with special reference to Indian law.

Ans:

Indigenous persons, also called Adivasis, are the original inhabitants of a territory maintaining distinct cultures and institutions. As per UNDRIP 2007, they possess both individual and collective rights that predate state formation.

Key Rights of Indigenous Persons:

1.       Right to Land, Territories & Resources - UNDRIP Art. 25-28; ILO Conv. 169

o   Collective ownership of ancestral lands

o   In India: Forest Rights Act 2006 recognizes Individual Forest Rights (IFR) and Community Forest Rights (CFR); Article 46 mandates state duty to promote their interests

2.       Right to Self-Determination & Self-Governance - UNDRIP Art. 4

o   Control over own institutions and development

o   In India: Article 244 (Fifth & Sixth Schedules); PESA 1996 empowers Gram Sabhas; Article 342 defines Scheduled Tribes

3.       Right to Free, Prior, Informed Consent (FPIC) - ILO Conv. 169 Art. 6

o   Community must consent before projects affecting their lands

o   In India: Forest Rights Act 2006 mandates Gram Sabha consent; Niyamgiri judgment (2013) made FPIC binding

4.      Right to Culture & Language - UNDRIP Art. 11-16

o   Practice religion, use language, maintain traditions

o   In India: Article 29 (right to preserve culture); Article 25 (freedom of religion)

5.       Right to Education & Development - Article 14, 21 UNDRIP

o   Development determined by community

o   In India: Article 46; Articles 15(4) & 16(4) (reservations)

Indian Constitutional Framework:

Article 342 provides definition and powers to identify STs. Articles 244 create Fifth and Sixth Schedules for area-based protection. Affirmative action through reservations (Art. 15(4), 16(4)) ensures political & educational participation.

Statutory Implementation:

Forest Rights Act 2006 is landmark legislation granting both individual and community forest rights on recognized forest land that cannot be transferred. PESA 1996 gives Gram Sabhas decision-making authority over minor minerals, forest produce, and land acquisition.

Case Law - Orissa Mining Corp v. Ministry of Environment (Niyamgiri, 2013):

Supreme Court ruled that Gram Sabhas possess final decision-making power on projects affecting tribal religious/cultural rights. Court held FPIC is mandatory and community rights prevail over state development.

Conclusion:

While India has constitutional and statutory protections for indigenous peoples, implementation remains inadequate. Genuine self-determination requires respecting community decisions, especially in land and resource matters.