The 'legalization of a human right norm into Human rights in International Law at the backdrop of UNDRIP and 'Right to Development' in the lives of the Originals in India.'

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Name Devarshi SenDeka
Module Code LW843
Module Title International Human Rights Law
Module Convenor Luis Eslava
Word Count 4634 (excludingbibliography)
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Clarifying International Human Rights Law: Case study of(UNDRIP & ‘Right to Development’)
in the lives of the “Originals”, India.
Introduction:
The Preamble of the Universal Declaration of Human Rights recognizes ‘the inherent dignity and of
the equal and inalienable rights of all members of the human family is the foundation of freedom, justice
and peace in the world.’1
The significance of Human Rights has been eminently acknowledged by the
international community. But still, in view of M. Moskowitz, there exists perplexity in understanding
human rights as to the ‘definite nature and role in international law.’2
The scope and legality of ‘rights’
1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) Preamble.
2
M. Moskowitz, The Policies and Dynamics of Human Rights, London, (Oceana Publications 1968)

2. is under consistent controversy and jurisprudential discussion. It is paramount to agree to work of
Martin Totaro3
to better understand what Human Rights exactly are/ought to be. In his approach, ‘the
contructo-positivist framework’4
reshapes the understanding of the relationship between Human Rights
Norms and Human Rights. In his understanding, HR norms are viewed to be found in a moral assertion
that these ‘rights/norms’ should be binding in international legal sense. He proceeds to state that this
moral assertion of binding simply does not obtain ‘legal status.’5
In his understanding, norms attain
international legal status not because of ‘advocates push for such recognition. Rather, advocates of a
particular right-claim must demonstrate that this right has become part of International Law through
accepted legalization conduits like treaties or Customary International Law (CIL)’.6
In Universal perception of Human Rights, some ‘rights’ are interpreted as immediate Universally
enforceable binding ‘rights’ and ‘obligations’, whereas on the other hand some ‘rights’ functions on the
presumption of ‘possible future pattern of behaviour’.7
Such rights are ‘contingent rights’, as its
enforcement completely depends upon the future functioning of the human world. For example, the
immediate adoption and legalising of the UDHR, ICCPR,UN Declaration on the Rights of Indigenous
Peoples, UN on the Rights of the Child, CEDAW,Right to Education reflects immediate Universally
pp. 98-9; McDougal et al., Human Rights, pp. 63-8(as cited in M N. Shaw, International Law, (5th
edn, Cambridge University Press
1997)) pp.247.
3
Martin Totaro is an associate at Baker Botts in Washington, D.C. < http://opiniojuris.org/2008/07/02/legal-positivism-
constructivism-and-international-human-rights-law-the-case-of-participatory-development/> accessed 22nd
April 2017.
4
Martin Totaro, ‘Legal Positivism, Constructivism, and International Human rights law: The case of Participatory Development’
(Virginia Journal of International Law, 2008) < http://opiniojuris.org/2008/07/02/legal-positivism-constructivism-and-international-
human-rights-law-the-case-of-participatory-development/> accessed 22nd
April 2017.
5
ibid
6
ibid
7
Compare, for example, article 2 of the International Covenant on Cip-ilandPolitical Rights, 1966 with article 2 of the International
Covenant on Economic, Social and Cultural Rights, 1966.

3. enforceable binding ‘rights’, whereas on the other hand, ‘contingent rights’ reflects the economic
relationship such as the ‘Right to Development’, ICESCR, International Monetary Law, International
financial regulations (including banking, derivatives, insurance and securities regulations),
International Development, International labour and services law. The foundation of Human Rights
has always been confederated with ethics and morality, reflecting the moral values of a community.
However, in practical, such moral values has to be codified, legalised and enforced through Positive
Law. Positive rights are understood as those rights ‘enshrined’8
in a legal system, national or
international, may or may not reflecting moral norms and values. To best understand Legal Positivism,
it is paramount to quote HLA Hart ‘the need to distinguish, firmly and with the maximum of clarity,
law as it is from law as it ought to be.’9
There is a hierarchy of ‘rights’ in Law. In accordance to the Natural Law approach, ‘rights’ (like Right
to Life, Liberty, Property) are Universal rights, and ‘have absolute set of principles governing all human
beings in time and space’. 10
The Natural Law approach is significantly associated with the works of
John Locke. The inalienable rights like right to life, liberty, property have emancipated through the
‘Social Contract’ which Locke adhered, to end the hostilities in the state of nature amongst the humans.
Interpretation of the NaturalLawapproach statesthe supremacy of ‘naturalrights’ over ‘certain positive
rights so as to confine arbitrary abuse of law over certain communities by the state’. 11
In the contemporary world law, Human Rights are evolving with constant change in its understanding
of ‘rights’. There are various approaches in understanding Human Rights. They are: a. Positivism, b.
Marxism/socio-legal/Post-Colonial, c. Modern Rights approach, and d. Policy Oriented Movement.
Thus, human rights itself cannot be simply confined to one strict legalistic approach. Human Rights is
always struggling to have one Universal understanding. Unlike, for example, the Constitution of India,
8
M N. Shaw, International Law, (5th
edn, Cambridge University Press 1997) pp.248.
9
H.L.A. Hart, Positivism and the Separation of Law and Morals, (71HARV.L.REV 1958) pp-593-4.
10
Shaw( n8)
11
R. Tuck, Natural Rights Theories, (Cambridge University Press 1979); J. Finnis, Natural Law and Natural Rights, (OUP 1980);

4. which is Universal among its citizens, incorporates the various aspects of the legalistic approaches to
understand and help evolve Human Rights. The Constitution reflects the dreams of minorities,
abolishment of caste classification, tribal, and indigenous population of India. With the roots of
Socialism, egalitarianism, and also promotion of backward tribes through reservation of Scheduled
Tribes and Caste12
in Public Welfare schemes, it is believed that the framers of the Indian Constitution
retained the ideals and morals of the National Freedom Movement of India.
Reflecting back upon the ‘U.N. Declarations on the Rights of Indigenous Peoples, through Resolution
61/295 adopted by the General Assembly [without reference to a Main Committee (A/61/L.67 and
Add.1)], on the 13th
September,2007’,13
it is believed that Human Rights could reshape the
understanding of Public International Law. Human Rights, like the Constitution of India, could be seen
creating its own jurisprudential discussion and its jurisprudence. But the constant struggle to understand
the practicality of Human Rights at the backdrop of colonization, and also unequal status of nation-
statesrelationship at the International Community, creates a challenging task for the GeneralAssembly,
U.N. to serve justice for the newly decolonized countries. The resolution to adopt U.N. Declarations on
the Rights of Indigenous Peoples, developed as a ‘result of twenty years of U.N.’s work on the
protection and freedom of the indigenous peoples.’14
‘In 1982 the Economic and Social Council
(hereinafter ECOSOC) established the Working Group on Indigenous Populations (hereinafter WGIP)
with the mandate to develop a set of minimum standards that would protect those peoples’.15
The
resolution to institute WGIP by the ECOSOC asa result ‘in the aftermath of a study by Jose R. Martinez
12
The Constitution of India (adopted by the Constituent Assembly on 26th November 1949) art 16(4), and art 29 (clause 2).
13
United Nations Declarations on the Rights of Indigenous Peoples (adopted 13th
September,2007 UNGA Res 61/295) (UNDRIP)
14
Stefania Errico, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ (2006) 10/19 ASIL <
https://www.asil.org/insights/volume/10/issue/19/united-nations-declaration-rights-indigenous-peoples#_edn9> accessed 21st
April
2017.
15
ibid

5. Cobo’.16
On the 29th
June,2006, the GA affirmed the Declaration in June as the result of the process of
the WGIP. Due to the conflicting interests of the nation-states over the fundamental provisions of the
draft declarations on the rights of the ‘self-determination of indigenous peoples and the control over
those natural resources existing in their traditional lands’,17
the UNGA failed to reach a universal
consensus. Therefore, it was necessary for the UNGA to institute the ‘Working Group on the Draft
Declaration’,18
to accommodate and negotiate between nation-states and indigenous representation so
as to have a Universal Accepted Moral Obligation by the states. Due to conflicting interests of ‘New
Zealand, Australia, United States,Canada and Russia’19
opposition from these states halted the process
of adoption. Thus, ‘it was ultimately adopted by a roll-call vote of 30 in favour to 2 against and 12
abstentions’.20
Considering the Preamble and specifically Article 2 of UNDRIP,statesthe equality to all other peoples.
Resemblance could be inferred upon the special protection of the indigenous population enforced
through UNDRIP and the Constitution of India, for example, in the Indian Constitution Article ‘16(4)
and clause (2) of Article 29’,21
and also Scheduled Area Land Transfer Regulation Act of 1959 –
‘transfer of land or immovable property from tribal to non-tribal in scheduled area is null and void’22
reflects special protection. On the other hand, UNDRIP upholds the ‘rights of indigenous people of
self-determination’,23
whereas the Indian Constitution deters ‘secession’ through reading the
Preamble, states India as ‘SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.’24
16
ibid
17
ibid
18
The WorkingGroup on the Draft Declaration was established by the U.N. Commission on Human Rights in 1995 by Res. 1995/32.
19
See Annex I to U.N. Doc. E/CN.4/2006/79, 22 March 2006, Human Rights and Indigenous Issues, Report of the working group
established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995.
20
See Annex I to U.N. Doc. E/CN.4/2006/79, 22 March 2006, Human Rights and Indigenous Issues, Report of the working group
established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995.
21
The Constitution of India (adopted by the Constituent Assembly on 26th November 1949) art 16(4) and 29(2).
22
Andhra Pradesh Scheduled Area Land Transfer Regulation Act of 1959, (came into force on 4th
March, 1959)
23
UnitedNations Declarations on the Rights of Indigenous Peoples (adopted13th
September,2007 UNGA Res 61/295) (UNDRIP) art
3.
24
The Constitution of India (adopted by the Constituent Assembly on 26th November 1949) Preamble.

6. There is a hard line distinction of what characterizes ‘self-determination’ and ‘secession’. The framers
of Indian Constitution very cleverly used the term ‘secession’ so as to keep one united India.
However,it is not justified to question the Constituent Assembly not to infer ‘self-determination’, but
‘the mandate of self-autonomy or self- government’ has been granted to the indigenous tribes of
Bodoland, Assam, India. Proceeding to Article 4 of UNDRIP,which also declares ‘the right to
autonomy or self-government’ 25
to indigenous peoples in matters relating to their internal and local
affairs.
Thus, the essay focusses on the ‘Annex (Concerned)26
of the United Nations Declarations on the Rights
of Indigenous Peoples’,and proceeds to criticize the doctrine of ‘Right to Development’ particularly its
implications and, its misappropriation specifically by Multi-national Corporations like POSCO,
Vedanta, Mittal Company, (MOU signed with Government of Jharkhand, India ) highlighting the
failure of the state government to provide protection of the fundamentals of the doctrine of ‘Right to
Development’ through misappropriation of Forest (Conservation) Act, 1980 India, specifically Mining
leases granted by the state governments of India not only Jharkhand also in different regions, and also
the essay interprets UNDRIP in relation to ‘Adivasi’ and ‘Right to Development’; thereby arbitrarily
seizing the inherent and ancestralrights (centuries) of the ‘Adivasi’ (original people) over their land,
forest and water sanctuaries infringing upon ‘their right to development in accordance with their own
needs and interests’.27
The essay also creates a relationship between UNDRIP and ‘Right to
Development’ in stating the fact that which Martin Totaro well put by the states ‘the state may respect
25
UnitedNations Declarations on the Rights of Indigenous Peoples (adopted13th
September,2007 UNGA Res 61/295) (UNDRIP) art
4.
26
United Nations Declarations on the Rights of Indigenous Peoples (adopted 13th
September,2007 UNGA Res 61/295) (UNDRIP)
Annex.
27
United Nations Declarations on the Rights of Indigenous Peoples (adopted 13th
September,2007 UNGA Res 61/295) (UNDRIP)
Annex.

7. the moral legitimacy of a norm while simultaneously opposing the norm as a binding legal obligation’.28
Thereby, the essay focusses on the literature of Galit Sarfaty and Martin Totaro’s understanding of the
‘legalizing moral norms’ in International Law. Galit Sarfaty enthusiasm of ‘the dynamic process of
norm-internationalization at the supra-national, national and sub-national levels’.29
But unfortunately,
in many of the newly decolonized countries such ‘norm-internationalization’ is being misappropriated
at the various level of the executive heads of states,highlighting particular injustice inflicted upon the
‘Adivasi’ in India.
But, most importantly, the essay highlights the constant struggle between ‘moral values and positive
norms’ in understanding the nature and behaviour of Human Rights. The conclusion states that the
struggle between ‘contingent, moral and positive rights’, the fundamental Universal rights of
Indigenous peoples (not only Adivasi, but many indigenous peoples like, Sahrawi, Congolese, peoples
of Latin America and Africa) have been sacrificed due to the conflict, and misappropriation by the
states, and the legal procedure of International Law.
Confederating fundamentals of ‘UNDRIP’ and ‘Right to Development’ (Considering Articles
26-32 and Understanding ‘Right to Development’) for protection of ‘Adivasi’
Focussing on the adoption of the ‘Right to Development’ ( not a treaty, and therefore, without any
binding force) by the UNGA resolution 41/128 on the 4th
December, 1986, ‘right to development’
became human rights jurisprudence through the idea propagated by ‘Senegalese Jurist M.Baye in 1972-
during the radicalizing period of New International Economic Order (NIEO)’.30
28
Martin Totaro, ‘Legal Positivism, Constructivism, and International Human rights law: The case of Participatory Development’
(Virginia Journal of International Law, 2008) < http://opiniojuris.org/2008/07/02/legal-positivism-constructivism-and-international-
human-rights-law-the-case-of-participatory-development/> accessed 23rd
April 2017.
29
ibid
30
Peter Uvin, ‘From the right to development to the rights based approach: how ‘human rights’ entereddevelopment’ (Development
in Practice,2007) < http://www.tandfonline.com/doi/citedby/10.1080/09614520701469617?scroll=top&needAccess=true> accessed
22nd
April,2017.

8. During the period of 1972, Third World Countries due to its majority in the UN tried negotiating the
‘global political economy of trade, finance, investment, aid, and information flows. This effort was led
by well-known Third World nationalists, emboldened by the success of the OPEC oil embargo, which
many believed was the beginning of a fundamental reshuffling of the world's economic power cards.’31
The ‘Right to Development’ is regarded from ‘legal and ethical authority’ by the Third World’s vision
of international redistribution of resources. Article 1.1 of the ‘Declaration of the Right to Development’
states that there ‘is an inalienable human right by virtue of which every human person and all peoples
are entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully realized.’32
The above paragraphprovides the foundation and aspiration behind the adoption of ‘resolution 41/128’
by the UNGA, the essay now shifts its focus on Articles 26-32 of the UNDRIP thereby establishing a
coherentrelationship betweenthe ‘right to development’. Summarizing the important ‘rights’ mandated
to the indigenous peoples from the articles, are as follows:
1. Rights of the indigenous peoples to the lands, territories and resources, on which they have
traditionally owned, occupied or otherwise used or acquired (Article 26).
2. Rights of the indigenous peoples own, use, develop and control the lands, territories and
resources that they possess by rea- son of traditional ownership or other traditional occupation
or use, as well as those which they have otherwise acquired. (Article 26.2)
3. Establishment and participation of indigenous peoples in a transparent, fair and independent
body/ judicial recognizing the customs, laws, traditions and land tenure systems. (Article27).
4. Right to redress through restitution, including just, fair and equitable compensation of land,
territories, and land confiscated. (Article 28).
5. Protection and conservation of the environment and the productive capacity of the lands.
(Article 29).
6. No military activities on the lands of the indigenous peoples. (Article 30).
31
ibid
32
ibid

9. 7. Right to maintain, control, develop and protect their cultural heritage. (Article 31).
8. Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources. (Article 32).
Inferring upon the resembling ideas of both the resolution and declaration, ‘indigenous peoples’ could
be protected through UNDRIP, but also ‘indigenous peoples’ have the ‘right to development’ as an
inalienable right, but also ‘preserving their traditions, culture, customs and their traditional and ancestral
use of the environment and land/territories’. Relationship is established between‘right to development’
and UNDRIP,and should be applied in practice in the protection of the indigenous peoples, ‘Adivasi’
(Original People) of Jharkhand, India.
The Originals of the Land: Understanding History and the Struggle of the Adivasis in
Jharkhand and India
History and Contemporary India:
‘It’s crazy when these outsiders come and teach us development. Is development possible by
destroying the environment that providesus food,waterand dignity? You have to pay to take a bath,
for food, and even to drink water.In our land, we don’t have to buy water like you, and we can eat
anywhere for free.’
LODU SIKAKA, DONGRIA KONDH, ‘Proud not Primitive’ campaign.

10. Achebe’s Novel, ‘Things Fall Apart’33
was ‘widely praised for its intelligent and realistic treatment of
tribal beliefs and of the psychological disintegration that accompanied this clash of civilizations’.34
During the visit of the Chinese Premier Chou En-Lai to India, Lai and Pandit JawaharlalNehru signed
a treaty popularly known as Panchsheel. To understand the purpose behind the signing by the Indian
Government believed that the ‘risk of world conflict was only due to ‘irritants left by imperialism’ and
the PanchsheelAgreement was an effort to find ‘a peaceful method of solving irritants directly between
two great neighbours’.35
Panchsheel36
( known as the Five Principles of Peaceful Coexistence) or
development guidelines, Nehru most importantly urged the nation’s civil servants to respect Adivasis
and for Tribal Belt/region development focussing on ‘respecting their own genius’37
‘not turning them
‘into pale imitations of ourselves.’38
Such was the history of the nation India. The perception of the
post-Nehru India ‘expeditiously dogmatically’ changed the ideals and principles which Pandit Nehru
dreamt of one equal India. Unfortunately, after 69 years of Independence, Mari MarcelThekaekara’s39
article ‘Adivasi people: proud not primitive’, reflects not only the Indian perception but also the
perception of ‘a German pastor’.40
Mari quotes him referring her as ‘I make the adivasi people of India
33
‘Things Fall Apart’, is the first novel by Chinua Achebe, written in English and published in 1958.
34
Britannica Encyclopedia, Cathy Lowne, ‘Things Fall Apart’ <https://www.britannica.com/topic/Things-Fall-Apart>accessed 23rd
April,2017.
35
Claude Arpi, ‘The Panchsheel Agreement’ (Tibet-the Lost Frontier, 5th
August,2015)
<http://www.indiandefencereview.com/spotlights/the-panchsheel-agreement/ > accessed 23rd
April,2017.
36
‘Agreement on Trade and Intercourse between the Tibet region of China and India’ (signed on 29th April 1954 in Beijing by the
Indian Ambassador N. Raghavan and Chang Han-fu, the Chinese Deputy Foreign Minister of
China) <http://www.indiandefencereview.com/spotlights/the-panchsheel-agreement/> accessed 23rd
April,2017.
37
ibid
38
ibid
39
Mari Marcel Thekaekara, ‘Adivasi people: proud not primitive’ (New International Law, 8 th
February,2015) <
https://eewiki.newint.org/index.php/Adivasi_people:_proud_not_primitive> accessed 23rd
April,2017.
40
ibid

11. seems romantic.’ 41
She replied, ‘Adivasis have their own spirituality.’42
She sends a universal message
of the world and India’s own views on ‘the originals’ of India. Stating the social stigma and segregation
attached to view Adivasi through the education institution enforced children to change their Adivasi
surname and were instructed to civilize their communities. The curriculum praised the bravery of the
Mughal emperors, and Hindu emperors, but failed to praise the sacrifices, culture, tradition and
community of the Adivasi. The children were taught to feel ashamed of their name and their culture.
So, when Mari asked an Adivasi youth about what he thinks of himself, he answered ‘ignorant,
uncivilized, wild, jungle folk, illiterate, uneducated and even stupid people’.43
At the backdrop of such
segregation, the various government previously classified ‘75 tribal groups as primitive’ , but in 2006
during the rule of Indian National Congress and its coalitions, tactfully commutated the previous
classification to now ‘vulnerable tribal groups.’
Thus, the second part of the essay has reflected the perception of the originals of India. Highlighting
Pandit Nehru’s vision of egalitarianism, juxtaposed in contemporary India’s segregation of the
‘Adivasi’ has left many question the ‘governance of India’s Constitution and its respect towards moral
legitimacy of human rights norms as a binding legal obligation.’
The Struggle and Activism:
‘Life expectancy now is around 60 to 65 years. Before it was 80 to 90 years. It’s
because before [our access to our forest was restricted] we ate tubers, fruits, and other forest
products, whereas now the Soliga diet is bad.’
41ibid
42
ibid
43
ibid

12. MADEGOWDA, SOLIGA, ‘Proud not Primitive’ campaign.
Constantly, the lands of Adivasis have been snatched by the hands of the mining companies like
Vedanta and POSCO, Mittal Company, and also Narmada and Damodar Valley projects; huge dams
have subsequently led to the submersion of thousands Adivasi villages leaving them ‘pauperised’.44
Specifically, the miscarriage of authority by the Forest Department ‘criminalized their existence,
treating them as intruders when in fact the recent Forest Rights Act acknowledged the historical
injustice perpetrated on them and declared that their rights to an ancient forest heritage would finally
be recognized’.45
The ‘SCHEDULEDTRIBESANDOTHERTRADITIONALFORESTDWELLERS
(RECOGNITION OF FOREST RIGHTS) ACT, 2006’46
recognizes and mandates two important
‘rights’. They are: ‘
1. Grants legal recognition to the rights of traditional forest dwelling communities, partially
correcting the injustice caused by the forest laws.
2. Makesa beginning towardsgiving communities and the public a voice in forestand wildlife
conservation’.47
From the above purpose of the framers of the Forests Rights Bill,2006, it is clearly being inferred that
there ‘is a slight paradigm shift towards the protection of traditional forests dwelling communities.’
However, on the practical side, the failure of the state governments and the Union government, have
only served injustice upon the Adivasi. With the vision of empowering Adivasi, Forest Rights (Rules)
came into force in 2008.48
The act recognizes Adivasis and others living in the Protected Forest area
44
ibid
45
ibid
46
SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006
(came into force on 31st
December,2007)
47
The FOREST RIGHTS ACT: A Weapon of Democracy in the Forests (Forest Rights Act, 2006) < https://forestrightsact.com/what-
is-this-act-about/> accessed 23rd
April,2017.

13. were entitled to the land as a ‘matter of right’49
which they had their possession and under cultivation.
The Rules provided that ‘they (Adivasi/tribal people) had to submit their claims to the Revenue
authorities.’ But in state/ province practice of Forest Rights (Rules), it is important to state the fact that
‘Mayawati was the Chief Minister of Uttar Pradesh from 2007 to 2012 but Mayawati government did
not take any effective action to implement this Act with the result that as on 30.1.2012 out of 92,406
claims 74,701 claims i.e. 81% claims were rejected. The result was that only 17,705 claims (19%) were
accepted and 1,39,77 hectares of land was distributed.’50
At the backdrop of misappropriation by the
state government, it is important to state ‘Adivasis Struggle to Gain Back their Lands in Visag District,
Borra panchayat – 14 tribal villages denied title deeds to their lands by government; mining leases
granted to non-tribals and private companies and similarly, Borra Adivasis petitioned the government
for 2 decades to grant title deeds to no avail.’51
Furthermore, it is stated that Mining leases granted by
the government violates Environment Protection Act,1986, and also Forest Conservation Act,1980.
With the entrance of Multi-National Corporations after post-liberalization period 1991, shifted the
principles of ‘Socialism’ in India. In Andhra Pradesh, India, ‘natural resources of Eastern Ghats
apportioned by MNCs; the State government made an overt change towards industrialization through
private sector particularly in power and mining industries’.52
Moreover, there is no information of
sanctioning these projects to the public or the affected communities.
48
SR Darapuri, ‘Dalits-Adivasis and the Land Rights’ (CounterCurrents.org 31st
October,2016) <
http://www.countercurrents.org/2016/10/31/dalits-adivasis-and-the-land-rights/> accessed 23rd
April,2017.
49
SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS)
RULES, 2008 (Passed by the Government of India, Ministry of Tribal Affairs, 2008)
50
Darapuri(n45).
51
CASE STUDY: THE STRUGGLE OF THE ADIVASIS IN VISAKHAPATNAM (VISAG) DISTRICT, ANDHRA
PRADESH,CENTRAL INDIA ‘TO RECOVER TRIBAL LANDS’ < https://www.ifad.org/documents/10180/cf914fc9-fd98-4ea9-
9c04-abdeba7bb451 > accessed 23rd April,2017.
52
ibid

14. In the Writ petition of ‘Certiorari’ filed by the Orissa Mining Corporation Ltd.53
At the Supreme Court
Of India, a state of Orissa Undertaking, to ‘quash the order passed by the Ministry of Environment and
Forests (MOEF) dated 24.8.2010 rejecting the Stage-II forest clearance for diversion of 660.749
hectaresofforest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada
Districts of Orissa and also for other consequential reliefs’.54
The importance on the writ petition is
stated because of the ‘dogmatic ideological shift’ of the government, which promised to upheld the
identity and protection of the Adivasi in Orissa,India. However,even after that,the indigenous peoples
of the land expect ‘their government, the police and the judiciary’ serve justice. ‘But,sadly, our political
leaders have traded our beliefs at the hands of the devil’, an Adivasi from Moran, Assam, India, spoke
once in my village.
Activism:
Again, depicting Achebe’s Things Fall Apart, that“Tribal leaders, as well as his own son, have
converted to the white man’s religion, Christianity, and in place of tribal custom there is now Western
law, a colonial court, and even a prison. Tensions rise between the missionaries and the Igbo, and amid
the ensuing turmoil Okonkwo beheads a court messenger. Realizing that his life as well as his village
have “fallen apart,” Okonkwo hangs himself,”55
also reflects the political leaders of Adivasi in India.
MOU OF the Jharkhand Government:
The rise of Naxalism holds testament to the fact that armed struggle in hope of equality has in fact
denigrated the same people whose sufferings it seeks to alleviate.
An Adivasi spoke in Times of India.
53
Orissa Mining Corporation Ltd. v Ministry of Environment & Forests WRIT PETITION (CIVIL) NO. 180 OF 2011(AIR)
54
Orissa Mining Corporation Ltd. v Ministry of Environment & Forests WRIT PETITION (CIVIL) NO. 180 OF 2011(AIR)
55
Britannica Encyclopedia, Cathy Lowne, ‘Things Fall Apart’ <https://www.britannica.com/topic/Things-Fall-Apart>accessed 23rd

15. The purpose of quoting the above words is to reflect two different aspects of the struggle of Adivasi’s
justice. First, case states the abandonment of the ‘struggle’ by the political leaders of Jharkhand, and
India. Second, personifies the ‘forced violent resistance sought by the Originals of the land’, once
peaceful community now had to resort to gun. Che Guevara in his ‘Motorcycle Diaries’, viewed
revolution as “"Without guns? Never!" At the helm of miscarriage of justice at every aspect of life,
Adivasi’s and Tribal communities have resortedto guns, but ‘romance turned to extremisms’, examples,
ULFA, Naxals in Naxalbari, BLT, and many more in India.
Highlighting the first case of Jharkhand Government:
‘Irony is the political leaders of Adivasis do not realize it even today. They have signed 102 MoUs
(memorandum of understanding) for establishing steel factories, power plants and mining industries
with the estimated investment of Rs 4,67,240 crore,which require approximately 200,000 acresof land,
which directly means the displacement of approximately 1 million people’.56
Peaceful to Extremism:
Whereas to reflect my second view of the quote is to state the instance of “On 1st of October 2008, the
villagers attacked on the Kohinoor steelplant near Jamshedpur, seized 70 trucks and stopped the work.
They alleged that after acquiring their agricultural land, the company neither compensated nor gave
56
Gladson Dungdung, ‘Adivasis’ Struggle Against Development in Jharkhand’ (Countercurrents.org, 4 th
August, 2009) <
http://www.countercurrents.org/dungdung040809.htm> accessed 24th
April,2017.

16. them jobs as promised and the company is also causing huge environmental affect in agriculture, water
sources and public health therefore they would not allow the company to destroy their livelihoods.”57
Conclusion:
After researching,and analysing the “legal procedure” of HR norms and HR as it is, a clear framework
of understanding has beenhighlighted in the essay.Tosummarize Martin Totaro, it is not alwayssimple
in understanding HR in International law. The essay supporting Totaro’s view, I frame the approach in
my own words as “not only it has got moral values, has not necessarily be a legal status in International
Law.’ But, the author is disheartened at the Government, state governments, and also our indigenous
political representation. With the roots of egalitarianism, socialism, India ‘respecting the moral
legitimacy of a HR norm, but at parallel, is misappropriating and opposing the HR norms (UNDRIP &
Right to Development) as a binding legal obligation. The essay states because of misappropriation
within the nation-states HR norms and HR has just become an academic jurisprudence and debate,
while the ‘Originals’ of the land has to be misled and abandoned at the hands of the State, and the
International Law.
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57
ibid

17. Table of Cases
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Orissa Mining Corporation Ltd. v Ministry of Environment & Forests WRIT PETITION (CIVIL) NO.
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United Nations Declarations on the Rights of Indigenous Peoples (adopted 13th
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