Tribal communities of India reside in hill areas that are rich in minerals and forest cover. Land is the basis of their socio-cultural and religious identity, livelihood and their very existence. Their lives are closely interlinked with forests for food, fuel, medicine, fodder and livelihood. Their God and guardian spirits reside in hills, forests, groves etc. Traditionally, ownership of land was by the community and economic activity mainly agrarian, including shifting cultivation, which fostered egalitarian values which influenced their power relations and organizational system. Forest and hills are the main source of tribal identity. It is in this context that the devastation of lives of tribal people caused by loss of access to forest and involuntary displacement from their land has to be understood. Dispossession takes place both directly by depriving tribal communities of their land, habitat, livelihood, political system, culture, values and identity and indirectly through denials of benefits of development and of their rights. With their control over resources diminishing, tribal communities remain the most vulnerable and marginalized community in the country.
Schedule V of the Constitution lays down provisions for protection of land, and welfare and advancement of Scheduled Tribes. Legal protection is provided in Schedule V under which laws are to be framed by State Governments to ‘prohibit or restrict the transfer of land by or among members of the Scheduled Tribes’ in Scheduled Areas. State Governments did enact legislations, but in connivance with the state machinery, loopholes were exploited for defrauding tribal people of their land and illegal alienation of tribal land by non-tribal people continued as an ongoing process even after independence. This alienation of land has led to decrease in corpus of tribal land and is a contributory factor in ‘forced’ migration. It is in this context that the Samatha judgment delivered by the Supreme Court in 1997 is an important landmark as it upholds and protects the land rights of Scheduled Tribes in Scheduled Areas. The judgment states that “the members of (Constituent) Assembly deliberated to protect tribal land for the economic empowerment, economic justice, social status and dignity of tribal persons. This entailed retention of land with the tribals, not only the land belonging to them, but also Government land in Scheduled Areas. …This manifested the intent of the founding fathers…to prohibit transfer between tribals and non-tribals and provided for allotment of land to the members of the Scheduled Tribes in such areas.” The Samatha judgment, delivered in the context of Andhra Pradesh Scheduled Area Land Transfer Regulation 1959, held that private mining industries are a non-tribal ‘person’ therefore, mining leases to private industries in tribal lands of Scheduled Areas are null and void and any transfer of land to a non-tribal was prohibited. The judgment went on to state that in Scheduled Areas, every Gram Sabha should prevent alienation of land, and minerals of these areas should be exploited by the tribal people themselves. But both the provisions of the Fifth Schedule and the Samatha judgment could not protect the interests of tribal communities and their lands.
The Sixth Schedule of the Constitution lays down provisions as to the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. Under these provisions Autonomous Districts and Autonomous Regions have powers to make laws relating to land, for the management of any forest not being a reserved forest, the inheritance of property, use of water course and canal for purpose of agriculture, etc. But there is a proviso to 3 (a) of the Sixth Schedule which reads as follows:
‘Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied, for public purposes in accordance with the law for the time being in force authorizing such acquisition’.
On the basis of this proviso, land and Common Property Resources (CPR) have been acquired and tribal people have been displaced. Moreover, land is one of the reasons for conflicts in some parts of the Northeast and this has caused displacement of people.
Private land has been acquired under provisions of the Land Acquisition Act 1894, under the concept of ‘eminent domain’ based on the principle that the interest and claim of the whole community is always superior to an interest of the individual. This principle of ‘eminent domain’ has been upheld in judgments of the Supreme Court. the law had brought out that ‘eminent domain’ had three essential ingredients– first, power of the State to take over private land; second, exercise of this power for public good (public purpose); and third, the State had to compensate those whose lands were acquired for public purpose.
With the enactment of ‘The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013’ comprehensive resettlement has been legally mandated and people affected by the Project have been included. But till this new law came into being, much harm had been caused by the misuse of the concept of ‘eminent domain’.
Ways of land alienation
Alienation of land of tribal communities and loss of rights to Common Property Resources, mainly forests and large scale displacement and enforced migration takes place in following ways:
- Development-induced displacement by acquisition of land by the State based on principle of ‘eminent domain’ for ‘public purpose’ without a ‘land for land’ provision for rehabilitation. Acquisition by the State for development projects also leads to alienation of land and displacement due to environmental pollution and damage to land in the area near projects but tribal people so displaced are not entitled to any compensation.
- Illegal land alienation takes place due to participation of revenue functionaries and officials, and incorrect interpretation of laws, manipulation of records and permission accorded to alienate land. State Laws are amended to include provisions that facilitate land alienation of tribal communities.
- Community land of tribal communities is recorded as Government land in survey and settlement operations and most State tenancy laws recognize only individually owned registered land. Such lands have not been fully surveyed and there is no record of user practices, which would be shown as Government land.
- State action of acquiring tribal lands for settling refugees has resulted in land alienation and displacement. There is also encroachment of tribal land by immigrants.
- Creation of National Parks have resulted in alienation of rights and consequent displacement and forced migration of tribal people.
- Conflicts in the Northeast have resulted in tribal people losing everything and being displaced from their home ground.
Characteristics of tribal society that aggravate the impact of involuntary displacement, they are:
- Land for tribes is a source of livelihood and source of identity, ethnicity and cultural distinction. Thus, the loss of land plays havoc with the lives of the displaced tribal communities. Under R&R programmes, land is not replaced and there is no reconstitution of livelihoods. Loss of their cultural space and identity leads to cultural impoverishment, which is not addressed.
- Dependence on forests for food in the form of shifting cultivation, fruits and flowers, small game, tubers; for medicines, fodder, material for house building; raw material for traditional art and crafts; income by selling firewood, leaf-plates, fruits etc.191 This loss, due to displacement is not compensated and affects food security.
- Lack of proper legal recognition of tribes over the forest land and hill tracts compounds the problem, when it comes to the question of compensation.
- Lack of social relations outside the closely-knit kin-centered society. Displacement leads to disruption in family life and to loss of social network.
- The land rights structure in tribal societies is altogether different from what it is in other societies. Tribal communities do not confer any individual rights in a legal sense. The community rights they confer are the utilitarian rights on nature but not the proprietary rights which attract the provisions of compensatory measures. Many a time, displaced tribal people were deprived of compensation and rehabilitation benefits as per the Land Acquisition Act, 1894 because they did not possess any legal documents to prove their ownership right on the land they occupy and earn their livelihood from.
The way forward
- Serious effort is required by the State to minimize displacement. There should be a rights- based approach to comprehensive rehabilitation for socio-economic reconstitution of victims of development, including for the backlog of displaced.
- The problem is with the expansive interpretation that has been given to the doctrine of ‘eminent domain’ by political and managerial elites. In this context, it is essential that the whole process of displacement should be democratic and rights of tribal communities to say ‘no’ to acquisition of their land and to access and manage forests and other CPRs, be recognised.
- The new legislation, ‘The Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013, is progressive in the sense that it is the first to legally mandate rehabilitation of PAPs. However, it fails to address the need for minimizing of acquisition of land and resources. This is not surprising, since the objective of the Act, which seeks to address concerns of those whose livelihoods are affected, simultaneously aims at facilitating land acquisition for industrialization and urbanization. This is in keeping with the broader liberalization policies. Such policies will result in more displacement in Central India for mining and in the Northeast for dams.
- The 2013 Act already has a provision for safeguarding food security and states that multi-crop irrigated land will not be acquired, except as a last resort measure. Further, the State Government is to set limits on the acquisition of such land under this law. States are also required to set a limit on the area of agricultural land that can be acquired in any given district. However, there is no mention of the need to protect tribal land and community resources. Hence, a suitable provision is required to be incorporated in the Act, to safeguard tribal land and community resources in Scheduled Areas and disallow acquisition by a non-tribal, including private companies.
- The definition of ‘public purpose’ in the new law is very wide and will only lead to greater acquisition and displacement in Scheduled Areas. The exercise of ‘eminent domain’ and definition of ‘public purpose’ should be severely limited.
- Government agencies acquiring land with the ultimate purpose to transfer it to private companies for stated public purpose, should be kept outside the ambit of the new law, as the Public-Private Partnership mode of acquiring land is simply a backdoor method of alienating land in violation of the Constitutional provision to prohibit or restrict transfer of tribal land to non-tribals in Scheduled Areas.
- It is recommended that, as directed in the landmark Samatha judgment and the PESA Act, every Gram Sabha should have the power to prevent alienation of tribal land and further that minerals should be exploited by tribal people themselves. The stringent provisions of the amended Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, should be adopted by other States, particularly the provision that facilitates the formation of Registered Scheduled Tribe Co-operative Societies, which could take up mining activities in Scheduled Areas. By doing so, the Samatha Judgment would hold good for all States with Scheduled Areas. It should be the responsibility of the State to facilitate the formation of cooperatives of tribal people for the above purpose.
- Gram Sabha consent should be mandatory for acquisition of land by the Government for its own use as well.
- The Act does not have a provision to the effect that exploitation of natural resources in Scheduled Areas must be with the consent of the Gram Sabha. This should be rectified.
- In the interest of weaker sections such as tribal communities, the threshold should be kept very low and R&R provisions of the new law should apply to all cases.
- There is plenty of unutilized tribal land available with Central/State/PSUs, and Central/State Governments which is not being used for the purpose for which it was acquired. Governments should be legally mandated to return such land to the original landowner/successors or use the same for resettlement of displaced tribals. This should not be left to the discretion of the State Government. One example of this is of HEC, Hatia, Ranchi, where excess tribal land had been acquired and people are agitating for the return of the land, but the State wishes to utilize it for other purposes. In such cases, land should be returned to the original displaced families.
- There has been inadequate recognition at the policy level that land represents an inalienable resource, passed on from generation to generation in tribal communities, who otherwise have no education and skill development. Studies have documented that those DPs who got jobs in lieu of land and whose children did not receive education or training were worse off after the job-holder retired from service. It is recommended that the objective of R&R should be to ensure that the socio-economic status of tribal DPs/PAPs after displacement, should improve positively rather than deteriorate further. Loss of land and CPR can be compensated only by proper R&R which envisages restoration of livelihoods, health and education facilities and skill development for the whole family and community of tribal DPs/PAPs. There should be provision of ‘land for land’, in acquisition of tribal lands. Compensatory land provided must be made cultivable with irrigation and agricultural inputs. Rehabilitation should be treated as a continuous process to be monitored by the Project Authority and State until the alternative livelihood becomes economically viable. They must be given a stake in the assets and economic activities being created on their acquired land and CPRs (for example, land in command area, irrigation of tribal land in the vicinity, jobs in industries, or shops/jobs in industrial projects/townships). An expanding economy, particularly expanding labour-intensive manufacturing sector together with adequate emphasis on health, education and skill development, hold the key to humane R&R.
- The 2013 Act is weak in matters relating to skill development and provision for livelihood for DPs/PAPs. During a meeting between the HLC and representatives of displaced tribal people in Bastar, Chhattisgarh, anger was expressed at the non-fulfillment of promises to give jobs to the educated displaced persons. They were unhappy with the cash allowance being given in lieu of jobs. The official response, that there were not enough jobs to accommodate all displaced people, did not satisfy the aggrieved parties. A sum of two thousand rupees per month per family as annuity for 20 years, with appropriate index for inflation in lieu of jobs, as stipulated in the new Act, is too low. Clearly, more has to be done for skill development and creation of alternative livelihoods. One of the ways to ensure that jobs are provided to displaced people, including tribal families, is to create a State level/National-level Virtual Employment Exchange with complete data of age, sex, educational qualifications, and skill-set of persons displaced in the past, present and in near future, for providing them employment and/or preparing them for employment/self-employment. Global best practices could be studied for providing alternative livelihoods, which could include imaginative self-employment schemes with backward and forward linkages to be provided by Project Authorities.
- Research studies stress that gross undervaluation of losses, replacement value of loss and costs of resettlement, has led to inadequate financing of R&R and externalization of costs of R&R to the displaced and the future generations. The new law has expanded the definition of ‘displaced’ to include project-affected persons; however, care has to be taken to ensure that all genuine cases are included and compensation is properly computed.
- In computing losses, it has to be recognized that there are instances of tribal DPs who do not have documents to support their genuine claim but who base their ownership rights on oral tradition. Such claims should not be rejected.
- Forest rights have been covered under the Forest Rights Act, but other CPRs such as Government land and Panchayat land has not been covered by any legislation. This needs to be rectified. Moreover, survey by Government is incomplete – as a consequence, community land is recorded as Government land and tribal communities, primarily tribes who practice shifting cultivation on such land, are denied compensation. This problem needs to be addressed by measures to include such cases under R&R provision.
- Women require special consideration and affirmative action. Widows and unmarried adult daughters should be recognized as a separate unit.
- The principle for working out land compensation has been spelt out. For all other assets, compensation should be based on replacement value or net present value of assets lost/destroyed.
- While preparing the project cost estimates, the full cost for R&R should be included, and no attempt should be made to reduce costs for a favourable cost-benefit ratio.
- The rehabilitation package and process should take into account, the cultural displacement, and loss of customs and tradition. For tribal people, their strength is their community, and therefore, it is imperative that they be resettled and rehabilitated as a community, if they so desire.
- Infrastructural amenities to be provided in the resettlement area have been mentioned in the new law, but provision of banking facilities has been missed out. With primary emphasis on monetary compensation, it is essential that displaced tribals, who may not have experience in handling money and understanding of the monetary economy, should be advised on handling their cash compensation. Banking facilities should made available for keeping their money safe and credit facilities should be provided by the State (to avoid exploitation by money-lenders).
- Land and water sources polluted by industrial and mining projects in tribal regions require attention and the onus for taking corrective measures should be on the Project Authorities. The schemes of the Government could be utilized to treat polluted land and water resources of tribal people.
- The role of the Governor is crucial for protecting land, community assets, culture and traditional institutions of tribal people and to ensure that they are treated fairly. This role extends to ensuring socio-economic reconstitution of tribal DPs/PAPs. This raises the issue of suitability of persons who occupy the important position of Governor and other offices, such as Commissioners, Deputy Commissioners and District Magistrates, in Scheduled Areas. It is imperative that the antecedents and experience of persons be taken into consideration by the Government to check whether they can protect the interest of tribal communities and are suitable for such appointments, in view of the special role assigned to them in such States.
- Implementation of the new law will be difficult in the absence of resettlement and rehabilitation capacities in the local administration, local community and corporate entities. It is essential that the State and corporate sector create such capacity by introducing professional training and orientation courses for following the best R&R practices worldwide and replicating them in the Indian situation. Offering tribal people monetary compensation and making promises without attendant capacity to deliver on them will not resolve the impasse that has brought land acquisition to a standstill. Sporadic attempts by instruments of the State to use force to acquire land is unethical and unacceptable. Only a genuine and bonafide effort at comprehensive and pragmatic R&R can persuade tribal people to part with their land.
- The new legislation lays considerable emphasis on consultation and consent of Gram Sabhas. It is essential that the State be vigilant through adequate monitoring mechanisms for ensuring that consent is obtained freely and every displaced person gets adequate and comprehensive R&R in lieu of land/livelihoods lost. The State must put in place a system to collect disaggregated data of DPs/PAPs for all social groups. Oversight mechanisms must be created at the District, State and Central levels, comprising officials and non-officials with proven competence, integrity and commitment to public good. There is a view that, though the new legislation has been enacted by the Centre, R&R is a State subject, which should continue. However, the Centre has a responsibility along with the states to ensure comprehensive R&R. The Central Government should decide on the monitoring mechanism to be put in place. One possibility is to establish an Authority/nodal agency with a multidisciplinary team under the Ministry of Land Resources.
- In view of the large-scale discontent among displaced tribal people regarding poor R&R, a High-Level Fact-finding Committee/Enquiry Committee should be set up to investigate the quality of R&R in all medium and major development projects undertaken in the last fifty years in Scheduled Areas and tribal-dominated districts of States without Scheduled Areas. This Committee should be mandated to suggest ways and means to deliver justice to the displaced families, who have not received any proper rehabilitation. This is essential, in view of the fact that, the new law has not taken cognizance of the backlog of displaced people, a majority of whom are tribal people.
- Myriad grassroot movements against exploitation of tribal people and other weaker sections hold the key to greater socio-economic justice. It would be desirable if the State recognizes this and engages with democratic grassroot movements, instead of crushing these movements.
- Tribal people who have been displaced by conflict in Chhattisgarh and the Northeast should be rehabilitated by the State Government in their villages and provided facilities of housing, safe drinking water, health and education, skill development, electricity supply, irrigation facilities, and agricultural inputs. It is for the State to take preventive action and ensure safety and prevent tribal land alienation in such areas. Civil society groups and representatives of Autonomous Tribal Councils emphasized that influx of outsiders was a real threat to the tribal communities. They also alleged that inter-tribal conflict was being instigated by outsiders. It is the responsibility of the State Government to take measures to prevent such conflicts.
- Under the ‘Coal Bearing Areas (Acquisition and Development) Act, 1957, pattas/legal titles for houses allotted in resettlement sites are not issued to the displaced. As a result, the displaced lose their identity and are unable to access public facilities provided by the local administration, thereby facing difficulty in obtaining Caste/Tribe certificates. Further, there is no provision for payment of compensation before taking possession of land. The provision for returning land to original landholders post-mining is rarely complied with. Clearly, there is a need to make amendments in the Act.
- Development projects have opened up tribal areas leading to influx of people from outside the tribal region, seeking employment in various sectors. All this has resulted in increasing urbanization of tribal areas and immigrants, rather than tribals, have benefited from this. Consequently, the percentage of tribal population in some Scheduled Areas has declined, although historically, these areas were almost exclusively occupied by tribal people. Hence, it is recommended that there should be no reduction in the areas declared to be Scheduled Areas as this will harm the interests of already deprived tribal communities by diminishing their space and their resources. Rather, the representation of tribal communities should be enhanced and strengthened in the politico-administrative institutions within Scheduled Areas.
- Tribal people suffer predominantly from the phenomenon of poverty-induced migration, also known as forced migration. An analysis of the Census data shows that there has been an occupational change and the number of tribal cultivators has reduced while the number of tribal marginal workers has increased. Micro studies indicate the increase in seasonal/circulatory migration of tribal workers, which may help them to avoid starvation, but is not enough to improve their standard of living. Hence, it is recommended that:
- The Census and National Sample Surveys should gather data on the phenomena of seasonal/circulatory migration, migration of children across social groups and poverty-induced migration.
- Priority should be given to STs in settlement of ceiling surplus land and wasteland, investments to improve agriculture, support for high value horticulture, employment opportunities in rural areas, access to credit facilities and skill-development to rural youth for employment in labour-intensive manufacturing sector.
- Complaints have been received that, due to seasonal migration of tribal people, they are not enumerated in the Census and therefore, Census data is not a true reflection of tribal population. This grievance requires to be redressed.
- Apathy and incapacity of the State to implement the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, has led to exploitation of tribal migrant families. In particular, tribal women and children suffer greatly. There is a growing demand for enactment of a comprehensive Migrants Rights Legislation, which deserves serious consideration.
Recommendations for measures to prevent illegal land alienation of tribal land are as follows:
- In pursuance of the PESA, 1996, Land Transfer Regulations/Tenancy laws of all Schedule V Areas should be suitably amended to ensure Gram Sabha participation in the identification, investigation and restoration of lands to tribal people. Gram Sabhas require to be strengthened by State Governments to undertake these responsibilities.
- Plenary powers could be given to Gram Sabhas to fight cases of tribal land alienation collectively, as an individual tribal cannot afford to face prolonged legal battles, given their socio-economic conditions.
- The Gram Sabha should be empowered to restore the alienated land on detection, pending the long legal battle, in order to potentially discourage a prospective non-tribal buyer of land in Scheduled Areas. This needs to be legally examined.
- Care has to be taken to ensure that District Councils and State-level Council do not have powers to dissolve Gram Sabhas or to dilute the powers and functions of the Gram Sabha
- Legal loopholes and ambiguities in all Scheduled Area Land Regulations and Tenancy laws should be removed. For example, such a removal must ensure that tribal land is not transferred for purposes such as settlement of refugees, housing, etc.
- There is a provision in the Andhra Pradesh Act, wherein immovable property of tribals can be mortgaged to banks and, in case of default, the property to be sold back only to tribal people or tribal cooperative societies exclusively formed by tribal people. This provision needs to be evaluated to explore replication in other Scheduled Area States. There is an urgency in doing so to meet the financial needs of tribal youth.
- There is a presumption clause in the Andhra Pradesh Act that, until the contrary is proved, any immovable property in the Scheduled Areas and in possession of a person who is not a member of a Scheduled Tribe shall be presumed to have been acquired by the person or his predecessors through a transfer made to him by a member of a Scheduled Tribe. This clause should be examined by other States for adoption and inclusion in their laws.
- Suitable amendments should be made in all land laws for protection of tribal land in Scheduled Area States to the effect that there should not be any time limit for restoring tribal land.
- Suitable provision should be made in land laws so as to bring all benami transfers, transfers in the names of concubines, tribal servants or others into the purview to prevent fraudulent land transfer in Scheduled Areas.
- The move to notify rural areas as urban areas in order to nullify PESA provisions should be stopped forthwith. Use of Master Plan in urban areas to alienate/displace tribal people from their land should be curbed.
- Increased investment is required to be made by State Governments to provide legal aid to tribal petitioners so that they are in a position to hire competent lawyers to fight cases. The Government must also provide legal training, literacy and awareness programs for youth and women on State and customary laws contextualized with modernity processes, with the participation of NGOs.
- Ultimately, it is the duty of State Governments, to ensure that all officials and lower-level functionaries do not connive in defrauding tribal people of their land. Regular monitoring at the State and Central levels of disposal of cases and proactive efforts for restoration of tribal land is required. It is the responsibility of the State to address the problem of contradictory judicial pronouncements that jeopardize implementation of protective land laws by removing ambiguities in all relevant laws.