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The Human Safari, Jarawa Of Andaman And Nicobar

The majority of the continent of South Asia is occupied by the country of India. New Delhi, built in the southern section of Old Delhi, is India's capital and main administrative hub. Its huge, diverse population speaks hundreds of different languages, and its government is a Constitutional Republic. The population of India accounts for about 16 percent of the world's total. The people of India make up the world's largest population.

According to excavations, India's history can be traced back to the Harappan civilization, which existed in the northwest of the country some 5,000 years ago and was one of the earliest urbanised societies in the world. The people of the Iron Age can be traced back to an island that is part of India's territory. The islands in question are the Andaman and Nicobars.

Introduction of Andaman and Nicobar Islands

The Andaman and Nicobar Islands are a group of islands in the southeastern part of the Bay of Bengal that form a union territory of India. The Andaman Islands and their southern neighbour, the Nicobar Islands, form an arc about 620 miles (1,000 km) long and 1,000 km (620 mi) wide to the south between Myanmar (Burma) and the Indonesian island of Sumatra. The arc marks the western limit of the Bay of Bengal and the eastern edge of the Andaman Sea. The official capital of the territory is Port Blair, located on South Andaman Island.

The Andaman Islands were visited by the English East India Company navy in 1789 and were administratively linked to the Nicobar Islands by the British in 1872 due to their location on the ancient trade route between India and Myanmar. In 1956, both groups of islands were formally annexed by the Republic of India. For over a century, the region has been known for its indigenous communities, which have stubbornly rejected any significant contact with people of other ethnicities.

The Jarawa

The nomadic Jarawa tribe currently numbers 400 members, who reside in chaddhas, or houses, that can house 40 to 50 people.

The Jarawa continue to prosper and are steadily increasing in number, like most tribal peoples who are self-sufficient on their ancestral territories.They use bows and arrows to hunt pig and turtles and to fish for crabs and fish, such as toothed pony fish and striped catfish-eels, on the coral-fringed reefs. They also collect honey, wild roots, tubers, and fruits. The Jarawa region does not support the growth of the chooi wood, which is used to make the bows. Frequently, the Jarawa must make lengthy journeys to Baratang Island to obtain it.

Their "nutritional status" was determined to be "optimal" in an assessment of their diet and general health. They are well-versed in more than 350 animal and 150 plant species.

Some Jarawa began to leave their forest in 1998 to travel to adjacent towns and communities for the first time without their bows and arrows.

The Jarawa people were to be relocated to two villages with a fishery-based economy as part of the local government's long-term "master plan," which was made public in 1990. Hunting and gathering were to serve as the Jarawa people's "sports." The plan was so rigid that it even specified the kind of clothing the Jarawa were to don. Similar to how it has been for the majority of recently contacted indigenous peoples globally, forced settlement had been fatal for other tribes in the Andaman Islands.

Problems faced by Jarawa Community

The Jarawa's status is the most precarious of the four Andaman Island tribes.

The Jarawa confront a number of dangers:

Thousands of foreigners, including tourists, enter their land via the road that passes through it. The Jarawa people are treated by tourists like animals in a safari park. The tribe's lush forest reserve is invaded by outsiders, including local settlers and foreign poachers, who steal the game the group needs to exist.

They continue to be susceptible to external infections against which they have weak or no immunity. Measles epidemics struck the Jarawa in 1999 and 2006; this disease has wiped out other tribes worldwide as a result of interaction with outsiders. The tribe might be destroyed by an epidemic.

Poachers, settlers, bus drivers, and other people have sexually abused Jarawa women.There is pressure from some, including the island's MP, to force the Jarawa to integrate into the 'mainstream' of Indian society.

The fate of the Great Andamanese and Onge peoples serves as a vivid warning of what may happen to the Jarawa unless their rights to control who comes onto their land and to make their own decisions about their ways of life are recognized.

Attempts made to bring Jarawa into Mainstream society

'Mainstreaming' in India refers to the practice of pressuring a tribe to acculturate to the dominant civilization of the nation. Tribal peoples are impacted negatively. They struggle on the very periphery of society because it takes away their independence and feeling of identity. Within the tribal community, rates of illness, despair, addiction, and suicide almost invariably rise.

In 2010, the member of parliament for the Andaman Islands demanded that "quick and drastic steps be taken to bring the Jarawa up to the basic mainstream characteristics" and that kids be transferred to residential schools to "wean" them away from the tribe. The Jarawa were, in his words, "locked in a rudimentary stage of development" and "somewhere between the stone and iron age.

Considering the Jarawa to be "backward" or "primitive," influential individuals in India, including government officials, have frequently campaigned for their assimilation. However, the Jarawa haven't made this request and they don't appear to be interested in leaving their forest home.

Supreme Court's intervention
The Supreme Court of India ordered the road's shutdown in 2002, although it is still open today.

The Supreme Court prohibited tourists from traveling along the ATR for seven weeks in 2013, in response to a campaign by Survival and the neighborhood group "Search" to outlaw "human safaris." The Supreme Court was forced to overturn the ban when the Andaman Authorities modified their own regulations to allow the human safaris to continue.

The long-awaited alternate maritime access to Baratang was finally opened in October 2017 by the Andaman Authorities. This maritime route was intended to halt human safaris. The business for human safaris along the road is thriving despite the authorities' vow to make sure all tourists would have to take the water route.

Survival has urged the Andaman authorities to crack down on poaching and make sure that those who are detained are charged with crimes. Even though poaching carries a prison penalty of up to seven years, numerous poachers have been apprehended recently but none have been condemned by the court. In this Article we are going to see Whether right to life and personal liberty also Include Right to live alone?

Whether Article 21 Right to life includes Right to live alone as a Fundamental right?

Before understanding the Article 21, Right to life and personal liberty and its scope, first we have to throw light on the facts that why we are filing this PIL to provide 'Right to Live Alone' to our Indigenous Jarawa Community of Andaman and Nicobar Islands.

Brief Introduction Of Jarawa Community

The 400 members of the nomadic Jarawa tribe live in chaddhas, or homes, each of which has room for 40 to 50 people. Like most tribal peoples who are self-sufficient on their native lands, the Jarawa continue to prosper and are constantly growing in number.

On the coral-fringed reefs, they hunt pig and turtles and fish for crabs and fish like toothed pony fish and striped catfish-eels with bows and arrows. In addition, they gather honey, wild fruits, roots, and tubers. The chooi wood, used to construct the bows, does not flourish in the Jarawa region. To get it, the Jarawa frequently had to make protracted trips to Baratang Island.

The local government's long-term "master plan," which was made public in 1990, called for the relocation of the Jarawa people to two communities with a fishing-based economy. Hunting and gathering were to be the Jarawa people's "sports." The plan was so detailed that it even listed what the Jarawa were to wear. Forced settlement had been fatal for other tribes in the Andaman Islands, as it has been for the majority of recently contacted indigenous peoples worldwide.

Because of several government-initiated development initiatives and contact expeditions, the Jarawa tribes of the Andaman and Nicobar islands have seen behavioural changes since the last decade of the 20th century. These actions, however unintentional, had the unintended consequences of making people more vulnerable and turning them from independent to dependent.

As other native tribes on the islands have already been driven off by contact with outsiders, any attempt to assimilate the Jarawas into society with the outside world would be devastating. Construction of ATR Andaman Trunk Road proved disastrous for Jarawa Community.

The Andaman Trunk Road (ATR), which runs for 333 km through the Jarawa reserve forest and connects South Andaman with Middle and North Andaman, is one of the most important infrastructure projects the government has ever undertaken. It cost 2100 crores. It is crucial for the islanders' logistical needs and serves as the Andaman Islands' lifeline.

The Jarawas brutally protested the construction of the road by attacking the workers at their camps and impeding their progress. The road was constructed and finished in 1989 despite Jarawas opposition. Finally, as waves of immigrants established themselves on the islands and the government launched a "contact mission" to make touch with the tribes, the opposition began to wane. As a result, it was impossible to stop non-Jarawas from entering tribal reserves and widespread tree cutting.

The road provided unrestricted access to the remote and independent Jarawa tribes for settlers and tourists. Currently, about 23800 tons of cargo travel on the ATR each year, which is a respectable amount for a country with only 3.5 lakh people. This route is crucial for maximizing tourism potential. When infrastructure is put in place, the number of tourists will rise from 4 lakhs to over 12 lakhs by 2030, claims NITI Aayog.

The majority of non-tribal settlers from the mainland moved to all inhabited or sparsely inhabited or strategically occupied islands in the archipelago as a result of development programs, primarily in agriculture and moderately in fisheries. Due to immigration, there is a growing non-tribal population on the islands, and tribal reserve territory has been reduced to accommodate their requirements.

These newly discovered non-tribal settlements received the most basic infrastructural services, such as road access, jetties, shipping, transportation, water and power supply, health and education, etc. In addition, outsiders began using the resources in the tribal reserve region.

The A and N Administration's lack of concern for the aborigines did not shield them from the outside forces that affected their way of life and weakened their distinctive advantage of inaccessibility. Their forest and sea resources were also taken from them due to the invasion and expansion of tourists, poachers, and squatters into their area. The Jarawas were forced to move from one area to another due to their fear of, pressure from, and encounters with aliens. This forced them to disrupt their settled way of life and resulted in bad outcomes.

As cited above analysis shows that the, developmental programs launched by the Government of India through Andaman and Nicobar Island is proved to be failed because of bad implementation and these instances collectively causes the violation of Article 21 of the Constitution of India which talks about Right Life and liberty which also talks about Right to livelihood and it is also violative of Cultural Rights.

Whether there is a violation of rights of Jarawa Community enshrined under Forest Rights Act 2006?

An Act to Recognize and Vest the Forest Rights and Occupation in Scheduled Tribes and Other Traditional Forest Dwellers Who Have Been Residing in Such Forests for Generations But Whose Rights Could Not Be Recorded; To Provide a Framework for Recording the Forest Rights So Vested and the Nature of Evidence Required for Such Recognition and Vesting in Respect of Forest Land.

While ensuring their livelihood and food security, Scheduled Tribes and other traditional forest dwellers have the authority and responsibility for sustainable use, biodiversity conservation, and ecological balance, which strengthens the forest's conservation regime. while ensuring livelihood and food security of the forest dwellings Scheduled Tribes and other traditional forest dwellers.

And Whereas historical injustice was done to Scheduled Tribes and other traditional forest dwellers who are essential to the very survival and sustainability of the forest ecosystem because the forest rights on ancestral lands and their habitat were not adequately recognized in the consolidation of State forests during the colonial period as well as in independent India;

AND WHEREAS, it has become imperative to address the long-standing insecurity of tenure and access rights of Scheduled Tribes who live in forests and other indigenous forest residents, including those who were compelled to relocate their homes as a result of state development interventions.

According to Section 2 (a), (c), (d)
  1. "community forest resource" means customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access."
  2. "forest dwelling Scheduled Tribes" means the members or community of the Scheduled Tribes who primarily reside in and who depend on the forests or forest lands for bona fide livelihood needs and includes the Scheduled Tribe pastoralist communities"
  3. "forest land" means land of any description falling within any forest area and includes unclassified forests, undermarketed forests, existing or deemed forests, protected forests, reserved forests, Sanctuaries and National Parks.

As per Section 3(1) of the FRA following are the Rights entitled to forest dwelling Scheduled Tribes and other traditional forest dweller.
  1. For the purposes of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands, namely:- 3 04 Forest Rights Act, 2006: Act, Rules and Guidelines:
  1. Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers;
  2. Community rights such as nistar, by whatever name called, including those used in erstwhile Princely States, Zamindari or such intermediary regimes;
  3. Right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries;
  4. Other community rights of uses or entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities;
  5. Rights including community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities;
  6. Rights in or over disputes lands under any nomenclature in any State where claims are disputed;
  7. Rights for conversion of Pattas or leases or grants issued by any local authority or any State Government on forest lands to titles;
  8. Rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forests, whether recorded, notified or not into revenue villages;
  9. Rights to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use;
  10. Rights which are recognized under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribal under any traditional or customary law of the concerned tribes of any State;
  11. Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity;
  12. Any other traditional right customarily enjoyed by the forest dwelling Scheduled Tribes or other traditional forest dwellers, as the case may be, which are not mentioned in clauses (a) to (k) but excluding the traditional right of hunting or trapping or extracting a part of the body of any species of wild animal;
  13. Right to in situ rehabilitation including alternative land in cases where the Scheduled Tribes or other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005."[1]

Here the petitioner humbly submits before this Hon'ble Court that as per the references given in paragraphs 19 � 24, there is a violation of Rights OF Jarawa community ,enshrined under Section 3 (1) (a) (c) (d) (e) (i) (k) and (l) of the forest Rights Act 2006 , which entitles them to several rights for their better survival and for the conservation of biodiversity.

Whether there is any violation of Article 21 of Jarawa Community?
Before analyzing whether there is any violation of Article 21 first we have to understand what actually Article 21 states.

"Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens."[2]

In the famous Gopalan case (1950), the Supreme Court has taken a narrow interpretation of the Article 21. It held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. This means that the State can deprive the right to life and personal liberty of a person based on a law This is owing to the fact that Article 21's reference to "procedure established by law" differs with the American Constitution's reference to "due process of law..[1]

Second, the Supreme Court ruled that "personal liberty" solely refers to liberty pertaining to the person or body of the individual. But by applying a more expansive reading of Article 21 in the Menaka case12 (1978), the Supreme Court overturned its decision in the Gopalan case. As a result, it was decided that a law could deny someone their right to life and personal liberty as long as the process it specifies is reasonable, fair, and just.

Alternatively put, it has introduced the American Doctrine "due process of law." In essence, the protection provided by Article 21 should be extended to cover both arbitrary legislative and executive actions.

The court further ruled that Article 21's "right to life" encompasses not just an animal's ability to survive, but also the right to a dignified life, including all the elements that contribute to a man's life being meaningful, complete, and deserving of being lived. Additionally, it was decided that the term "Personal Liberty" as used in Article 21 has the broadest scope and encompasses a wide range of rights that together make up a man's personal liberties.

In the instances that followed, the Supreme Court reiterated its ruling in the Menaka case. The following rights have been declared as being included in Article 21.
  1. The right to a dignified existence.
  2. The right to a clean environment, including protection from dangerous industries and clean water and air.
  3. The right to subsistence.
  4. Right to privacy.
  5. The right to safety.
  6. Health is a human right.
  7. The right to a free 14-year-old education.
  8. Right to free legal assistance.
  9. Rightfully opposed to solitary imprisonment.
  10. The right to a quick trial.
  11. I'm totally against handcuffs.
  12. Prohibits cruel treatment.
  13. Rights to social and economic justice and empowerment, etc.

After analyzing the problems faced by the Jarawa community and after understanding the significance and fundamental observations made by the country's highest court on article 21. We can conclude that yes, the rights guaranteed under Article 21 of the Constitution of India of Jarawa community are violated due to the poor implementation of the Government's policy regarding Jarawa community rehabilitation into mainstream India.

Scope of Article 21 of the Constitution of India
Article 21 of the Indian Constitution, which protects the right to life, does not just serve as a piece of paper; it is constantly maintained alive, active, and throbbing and has unintentionally made its way into court cases. According to the Justices who have handled contentious issues involving Article 21 of our very own Indian Constitution, the word "Life" is the most fundamental of all things in the world, yet it is also the most difficult to define.

It indicates that everyone living inside India's borders, whether they are citizens or not, will be given this right, as well as the rights to Work, Right to livelihood, access to food, shelter, water, education, and health care. This is a fundamental inherent right that every person deserves and is not just something that our Constitution guarantees. This is a start and a march in the direction of the equitable society that our Founding Fathers, the Drafters of the Indian Constitution, had in mind when they wrote this illustrious and beautiful Constitution along with the Preamble.

In Part III of our Constitution's Fundamental Rights, Article 21 is one of the most important articles and is given top priority. According to Article 12 of the Indian Constitution, these basic rights are enforceable against the State. According to Article 13 any law in derogation with fundamental rights shall be void.

In Maneka Gandhi v. Union of India 1, the Supreme Court redefined and expanded the scope of Article 21 by holding that the right to life entails not just a bodily right but also the right to live with dignity.[2]

In Francis Coralie Mullin v. UT of Delhi (Francis Coralie, 1981) Bhagwati J., held and stated that "the magnitude and the contents of this Right under Article 21, depends on the economic development rate at which the country is growing, but much more emphasis be laid that in any situation whatsoever, the right to the basic and bare necessities of life of the human self - these cannot be breached, and it is to be upheld in all circumstances"[3]

The Supreme Court judges were asked about bondage and laborer exploitation in Bandhua Mukti Morcha v. Union of India. The learned Bhagwati J. again makes the following statement in this case: "Article 21 includes the right to live with human dignity which is free from all forms of exploitation, this has gained its roots from the Directive Principles of State Policy in our Constitution of Article 39 clause (e) and f).

Article 41 and Article 42, it includes protection of health and safety and strength of its workers, both men and women and children of tender age who are more susceptible to the exploitation and atrocities, opportunities be given to them to grow and learn in a healthy and safe environment with freedom and human dignity. No State has any right to deprive its citizen of enjoying these basic essentials".[4]

The Supreme Court made a favourable ruling in the most significant and historic case, MC Mehta v. UOI (Shriram - Oleum Gas), upholding that Article 21 of the Indian Constitution provides for relief against the leakage of oleum gas, which unquestionably led to the loss of a significant number of lives and harm to the health of an untold number of people, the effects of which are still visible today.[5]

In the case of Pravat Kumar Mukherjee v. Ruby General Hospital, it was determined that the hospital had an obligation to accept accident victims and patients who were in critical condition and that it could not refuse to treat them on the grounds that the patient could not afford the hospital bills or that no close relative of the patient could give their consent.[6]

On the expansion of Article 21,the Supreme Court of India later also added the Right to livelihood as the court was of the opinion that, no person can live without having the means of living and livelihood, as in order to sustain oneself one needs money in their pockets and hence employment opportunities with a fair and reasonable basic pay are essential.[7]

In order to broaden the scope of Article 21, it was added that the right of residents of hilly areas to approach a suitable road is also a fundamental right because Article 21 encompasses not only life as it is currently lived, but also the quality of life, and for people living in hilly areas, access to the road is practically synonymous with access to life itself.[8]

In the case of Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court addressed the issue of rape and stated that it is a crime against society as a whole as well as the victim, who is usually a woman. She experiences severe mental breakdowns, her entire psychology is destroyed, and society looks down on her with scorn and mockery. Rape continues to be the most hated crime on the earth as a result.

It is a violation of the victim's most treasured civil freedom, the right to live in dignity as provided by Art. 21, as well as a violation of universal human rights. Additionally, it involves and encompasses the Right to Reputation within its purview.[9] The right to enjoy one's private integrity has a long history and is fundamental to human society, according to Smt. Kiran Bedi v. Committee of Inquiry.[10]

Because the Right to Life encompasses the Right to Subsistence within its broader ideas, it was ruled in the case of MX of Bombay Indian Inhabitants v. ZY that one cannot refuse employment to a person on the basis that they are HIV positive. [11]

In State of Maharashtra v. Maruti Sripati Dubal 21, the court ruled that the right to live with human dignity does not extend to being forced to perform menial tasks. People who attempt suicide should not be penalized but instead should receive rehabilitation since nobody will attempt suicide unless and until there is a threat to their very existence.[12]

It is humbly submitted by the petitioner before this Hon'ble Supreme Court of India, after going through all the relevant case laws regarding the violation and the scope of rights under Article 21 of the Constitution of India, the Supreme Court of India in above cited cases explained the scope of Article 21 and in such cases the Hon'ble court held that the Art. 21 of the Constitution of India has vide scope, it is not solely restricted to ' Right to life and personal liberty' it includes every thing which directly and indirectly affects anyone's life or personal liberty.

In one case Supreme court further held that 'not employing a HIV + person as an employee amounts to the violation of his Article 21 i.e. Right to life and personal Liberty In order to broaden the scope of Article 21, it was added that the right of residents of hilly areas to approach a suitable road is also a fundamental right because Article 21 encompasses not only life as it is currently lived, but also the quality of life, and for people living in hilly areas, access to the road is practically synonymous with access to life itself, In KS Puttaswami Case the apex Court held that right to privacy is a fundamental right.

In this PIL, filed for the enforcement of the Fundamental Rights of Jarawa community of Andaman & Nicobar Islands the petitioner humbly requests to the Hon'ble Supreme Court of India to widen the scope of Article 21 of the Constitution and provide 'Right to live alone' to our Jarawa community of Andaman & Nicobar Islands for their utmost welfare and their preservation.

  1. Forest Rights Act 2006
  2. Constitution of India
  3. AK Gopalan V. Union of India 1950 AIR 27, 1950 SCR 88
  4. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597
  5. Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 : AIR 1981 SC 746
  6. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : AIR 1984 SC 802
  7. MC Mehta v. UOI, (1987) 1 SCC 395 : AIR 1987 SC 1086
  8. Pravat Kumar Mukherjee v. Ruby General Hospital, 2005 CPJ 35 NC
  9. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545
  10. State of HP v. Umed Ram Sharma, (1986) 2 SCC 68 : AIR 1986 SC 847
  11. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 : AIR 1996 SC 922
  12. Smt. Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494 : AIR 1989
  13. MX of Bombay Indian Inhabitants v. ZY, AIR 1997 Bom 406
  14. State of Maharashtra v. Maruti Sripati Dubal, 1987 Cri LJ 743

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