Tribal’s Sacred Natural Sites: A view through the legal lens

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    The significance of sacred natural sites/spaces in the lives of a community, particularly the tribal that still follow their traditional religion wherein such site/spaces have been accorded meaning and value has been discussed in depth the two articles preceding this. The degree of significance of a SNS is tribe specific and within the same tribe, it is temporal specific. Therefore, whenever importance of SNS of a tribe is assessed, it is to be seen from the perspective of that tribe and contemporaneously.

    The current article is an attempt to examine the existence or absence thereof of legal recognition and or protection of tribal’s Sacred Natural Sites (hereinafter, SNS) or ‘spiritscape’ that are vital part of their religion and spirituality.

    India, a multi-religious country, follows the ‘secular’ model that is based on mutual respect of each other’s religion and gives freedom to the individuals to adhere to their professed faith or religion while the State observes equal respect for all religions (Tyagi). Article 25 in Part III of the Constitution of India enshrines the freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality, health and to the other provisions of Part III. What does this religious freedom entail for tribal’s SNS?

    Firstly, as Article 25 neither defines ‘religion’ nor lists down the recognized religions in this country, therefore, it may be implied that this right extends to any religion practiced by any person including the tribal, whether their religion is labeled as ‘animism’ or otherwise. In other words religious right enshrined in Part III extends to practices in relation to the SNS of the tribals.

    Secondly, the freedom of ‘conscience’ is absolute inner freedom of the citizen to mould his own relation with God even to the extent of not believing in the very existence of God. A manifestation or expression of this relation in outward form such as the SNS constitutes the ‘profession and practise of religion’ which is clearly covered by the ambit of freedom of religion.

    This means that tribal too have the freedom to believe and have faith in the traditional belief systems which have been in existence for generations. Whether their belief systems idolize a specific mountain, river, lake, boulder, tree, or any natural object as God and worships it/them.

    They have the freedom to profess their religion in public or otherwise. Since they also enjoy the freedom to practise their religion, they have the freedom to conduct religious duties, rites, ceremonies and rituals that are integral part of their religion at the SNS and may only be restricted on the ground of public order, morality and other provisions of Part III of the Constitution.

    There are several implications for the subjection of this freedom to Part III of the Constitution. Firstly, right to equality enshrined will override the freedom of religion; meaning thereby religious practices which discriminate people or laws which gives unequal protection to different religious groups or religious doctrines may be struck down by a competent court of law on the ground of violation of equality.

    Further, religions of the tribal which do not conform to the recognized world religions such as Hinduism, Christianity, Buddhism, Jainism, Sikhism, etc. should enjoy equal treatment and protection like any other religion followed by non-tribal people.

    It may be pointed out that unlike the temples, mosques and churches, these sacred sites are natural or created with least human intervention and in existence for years and passed on as legacy by their ancestors. Absence of written religious doctrines or predominance of naturalistic sacred sites does not mean that the constitutional guarantee given in this article will water down in the case of tribal.

    A reading of the constitutional debates that took place at the drafting stage of the Constitution also does not talk about any such conditionality to be imposed or implied while implementing this freedom.

    The freedom of religion is also subject to Article 19(1)(b)410 tribals can assemble peacefully without arms in order to conduct religious rituals or practices at community level at the SNS unless carrying or display of arms etc. form an integral part of the religious freedom.

    Further, it may also be mentioned that most tribal’s natural abode is a forest and from that perspective Article 48A of Directive Principles of State Policy that incorporates protection of forest and wildlife is of relevance to the tribals. Such communities have lived in those spaces in harmony with their natural environment, understanding the ecology’s need and sensitivities, and in furtherance of that understanding, several beliefs and traditions are built upon keeping in mind the survival and prosperity of the biosphere and its human component.

    In addition to the protection given by the Constitution under Part III to the tribals at par with other citizens of this country, Schedule V and Schedule VI of the Constitution of India give impetus to tribal’s autonomy as well as preservation of the distinctiveness and uniqueness of these groups which fall under the two categories.

    The Supreme Court in Samatha case observed that the Fifth and Sixth Schedules form an integral scheme of the Constitution with direction, philosophy and anxiety to protect the tribals from exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat.

    It may thus be concluded from this discussion that SNS, which forms an integral and vital part of tribal’s religion, has been given legal recognition and protection under the Constitution. The question now is on the implementing of the law and the modalities of realizing the enjoyment of the right pertaining to such sites/spaces.

    Source: http://e-pao.net