[from the Committee on State Agrarian Relations and Unfinished Task of Land Reforms, Ministry of Rural Development, Government of India. Volume 1 (Draft Report), March 2009]
Alienation of Tribal and Dalits Lands
(Report of the Sub Group - IV)
Methodology
The members of Sub Group - IV visited the states of Andhra Pradesh, Chattishgarh, Jharkhand, Maharashtra and Rajasthan, held discussions with senior administrative officers, revenue officials, public representatives, conducted group discussions of tribal leaders, social workers and representatives of NGOs. Studies were conducted by NIRD and others to collect primary data from the tribal areas, secondary data was obtained from the Ministries and other agencies and this report is formulated on the analysis of the data available.
Land and Social Hierarchy - Dalits and Adivasis in India
Land is not merely an important economic asset, its ownership is also socially valued, sought and denied. In rural societies, ownership of land was and to a large extent is still coterminus with social status. Hence, its unequal distribution reflects both prevailing social stratification and also helps maintain the hierarchical structure of the society. In contrast, fair distribution of land strikes directly at the roots of an unequal social order and skewed power relations, and frees the marginalized from the clutches of perpetual bondage, for want of a sustainable livelihood. The landless, whose only remaining asset is their labour, are effectively separated from the other means of production, namely land and remain dependent on large land holders for their survival. Powerful landlords have always opposed land reforms, fearing not only loss of control of assets, but also their dominant position in society, which straddles the economic and the political realms. The denial of access to land, thereby, functions both as a means of exclusion as also a mechanism of bondage. Table - 4.1 shows the operational holdings of SCs and STs in some states.
["Table - 4.1: Operational Holdings Among SCs & STs" omitted]
The pattern of land distribution in India, therefore, reflects the existing socioeconomic hierarchy. While large landowners invariably belong to the upper castes, the cultivators belong to the middle castes, and the agricultural workers are largely dalits and tribals. According to the 1991 census, 64 percent of dalits and 36 percent of tribal people were agricultural labourers who own no land and work as unregistered sharecroppers, unrecognized temporary or informal tenants or agricultural labourers for subsistence without any security. The National Sample Survey of 1992 reported that 13.34 percent of the dalits and 11.50 percent of the tribals were absolutely landless. While, in 1997, the Ninth Draft Plan Paper, placed 77 percent of the dalits and 90 percent of the tribals as either de jure landless or de facto landless in India. No uniform data on these categories is available in the country and the discrepancies in the data on landlessness from different government sources raise obvious questions of reliability. But at the same time, the data of absolute landless families proves that the feudal society is firmly anchored in large parts of India, notwithstanding claims to the contrary.
Tribal India – Land and People
The tribal people, referred to in the law and constitution, considered the descendents of the original inhabitants, are largely located in the hilly tracts of Central and North Eastern India, Andaman and Nicobar Islands. Small populations are scattered in the hilly tracts of the southern states and Himachal Pradesh. While curbs on in-migration have ensured higher community concentrations in the north-eastern state, large scale in-migration have reduced the tribal people to a minority in most of the states in the central Indian tribal tract. As will be observed later, tribal land alienation is integrally related to in-migration of non tribal people, with Dadra & Nagar Haveli as a very notable example. The table - 4.2 below gives an idea of the distribution of tribal communities across the nation.
["Table – 4.2 : Distribution of Tribal Population" omitted]
As mentioned above, the concentration of tribal communities is in the hilly tracts of the central Indian states. Chattishgarh, which was carved out of the state of Madhya Pradesh about a decade ago, has the highest proportion of tribal people, followed by Jharkhand. Both these states were seen as tribal majority states at the formation, a fact that is far from the reality. In none of the states are the tribal people a significant proportion of the population, spread over the fertile plains and the hilly tracts, a situation that prevailed at the time of independence. However today, a significant proportion of the tribal people have been pushed out of the lower plains and are concentrated in pockets, generally in the hilly tracts with poor soils and low productivity. Table - 4.3 below provides tribal population in central Indian states.
["Table – 4.3 : STs Population in Central Indian States" omitted]
Three hidden features of the table are worth looking at this stage. The first is the Fifth Schedule dispensation in the 9 states, which have a significant presence of tribal people. This dispensation placed a special responsibility on the executive to protect the tribal realm, but to little avail. This dispensation conferred enormous powers on the head of the executive, but these have not been used efficaciously even once in the past six decades. The second is the presence of minerals in the all the states under the fifth schedule dispensation. Earlier the temples of modern India reduced millions of tribal people to ecological refugees, now the minerals seen as the building blocks of modern India put the tribal people at risk of losing their land through acquisition and further disruption of their societies and economies. A third feature is the presence of left wing extremist organizations and parties in the tribal pockets. Left without an alternative, either in the government or non government organizations, and left to a harsh fate of unmitigated exploitation, the tribal people initially gave the Naxalites succor and now have become their base. Most tribal areas in Central India are the abode to the naxalites, whose presence is a response both to past and future land alienation, the failure of the government to live up to its constitutional mandate and the withdrawal of the state from its responsibility to protect the tribal realm.
Laws Concerning Tribal Lands
Laws concerning alienation of tribal lands began as a response of the colonial administration as a response to tribal uprisings. The first law its kind began with the Santhal Parghanas Tenancy Act in 1854, followed by the Agency Tracts Interest and Land Transfer Act in 1917, followed by the Chhota Nagpur Tenancy Act in 1924. All these acts were the precursors of modern day tenancy legislations. Land emerged as a vital issue of the peasants in the freedom movement and the Congress Party recognizing the significance of emancipation of the peasant from the clutches of the intermediaries, resolved to pass laws to that effect. Several land laws were passed during Home Rule by the local governments. Post independence the promulgations of the Abolition of Zamindari Act in 1950 followed by the passage of Tenancy legislation in 1957. Ironically the passage of Tenancy legislation resulted in a large number of tribal cultivators losing their lands to land lords using loopholes in the law and a pliant revenue administration. Ironically, the emergence of the Naxalite movement in West Bengal in late 1960s, forced state governments to re-examine the issue of tribal land alienation and realized that land loss was widespread in tribal areas. The response was a number of protective legislations across the country. The table - 4.4 lists out protective and restorative legislations of the numerous states. The large numbers of legislations however is no guarantee or indication of efficaciousness of the legislation.
["Table – 4.4: Legislations for Protection of Tribal Land" omitted]
The list of legislations is long and impressive, however, not only have the prohibitory legislations failed to stem the tide of tribal land alienation, these laws have also failed to restore the lands of over half of tribal claimants for restoration. Take the case of Kerala, a recognized progressive state. The law of restoration was passed in 1975, made applicable in 1986, but ironically less than two decades after the law was passed, the legislature passed a law rescinding or withdrawing the law passed in 1975 on the grounds that the law cannot be implemented as eviction of the illegal encroachers on tribal land would result in law and order problems. The state of Kerala has ironically been open in its recognition of failure and acceptance of abrogation of duty. The President of India, however, rejected the law pertaining to withdrawal of the application of the Tribal Land Restoration Act of 1975. So the state of Kerala continued in the situation of a legal impasse till the High Court of the state directed it to implement the Act, which continues to drag its feet. For the Kerala government, as is the case with all the states where the Act has been passed, the dilemma is the same – either risk political loyalties or do justice to marginalized communities. A state seeking to implement restoration laws will have to risk losing vital grassroots leadership and cadre of the party, the only link who can mobilize the ‘masses’ to vote for the party, a Hobson’s choice which no state government is ready to admit. Table – 4.5 below provides data on the tribal land alienation in states with V schedule areas.
["Table – 4.5: Adivasi Land Alienation and Restoration in India" omitted]
Looking closely at restoration claims, the table above is revealing. Looking at the information for the states with Fifth Schedule districts, with the exception of the state of Gujarat where one observes a very high percentage decisions in favour of the tribal claimants, the picture in the other states of the number of rejected claims is disturbing. The percentage of rejected claims is very high in the states of Assam, Andhra Pradesh, Chattishgarh, Madhya Pradesh and Maharashtra, crossing the half way mark in four of the five states, notwithstanding the ‘legal presumption’ being in favour of the tribal person. It appears that the burden of proof was placed on the tribal claimant to his/her disadvantage, when the spirit of the law was the opposite. Even in these states, handing over of actual possession remains a question mark. The case of Madhya Pradesh is alarming. The number of rejected and pending claims accounts for 90 percent of the total claims, while it is 76 percent in the state of Assam, 69 percent in Orissa, 56 percent in Maharashtra, and 52 percent in Chattishgarh. The single conclusion that can be reached is that restoration of tribal land is a failed project, the failure can be squarely reduced to the lack of political will of the legislature and the political executive, coupled with an equally pliant revenue bureaucracy. It appears that the dice is cast by the state governments and at present it is cast in favour of the non tribal.
A second important issue that needs to be understood at this point is operation of the principle of estoppels, which could apply to a large number of the rejected claims. Studies of restoration in Thane district of Maharashtra indicate that a large number of claims for restoration were cases filed on behalf of tenants who were eligible for the right of ownership under the tenancy act, but whose names were deleted illegally. As a large number of proceedings were filed suo moto by the revenue officials after examination of the records and no notice was served on the claimant, these cases were disposed off. The present legal system will exclude all such claims in the future on grounds of estoppels. Similar legal reasoning can be extended to other states as well. A third issue is that of un-recorded tenants or those whose tenancies were illegally terminated or surrendered. The absence of records and shifting the burden to the tribal claimant have also excluded large numbers of tribal claimants from their right to the land.
Forms of Tribal Land Alienation
The data gathered from the village studies and from the records of the various governments all point out to the inescapable conclusion that alienation of tribal land continues unabated and alienation of land has actually accelerated in areas where irrigation and modernization of agriculture are making rapid strides and roadways, industrialization and urbanization is enveloping larger areas in the towns and cities. Four apparent forms of tribal land alienation are listed below.
State sponsored tribal land alienation through:
a. Acquisition for highways, mining, industries, cities, special economic zones in the absence of a strong ‘land for land’ rehabilitation provision and stringent implementation will only add to the numbers of tribals alienated from their lands.
b. Co-lateral land alienation due to pollution, erosion and land damage in the zone of influence. Studies on the impact of mining projects have shown that collateral loss of land due to effluents has rendered communities landless in the downstream areas. An extreme case is Jadugoda in Jharkhand where the radio-active tailings from the uranium mine flow down the streams from the tailing ponds rendering not only land dangerously uncultivable but also expose the tribal people to hazards. (CSE Citizens Report 2008 – Rich Lands Poor People)
[recommendations of the committee omitted]
2. State connived land alienation
This takes place with the knowledge and direct or indirect participation of revenue functionaries and officials at various levels. Revenue courts have passed orders based on unverified evidence and doubtful interpretations of law. Instances of such connivance of the revenue officials with the landlords resulted in widespread land alienation, particularly during implementation of tenancy laws. In Maharashtra, for example, the number of tribal landless increased with the implementation of the tenancy act following evictions based on wrong facts and doubtful interpretations. In some of the cases, alienation of land is pursuant to orders of civil courts which adjudicate revenue matters pertaining to tribal land based on the manipulated records issued by revenue functionaries.
a. Defective surveys and settlements and no-recording of possession have been serious issues right from the time of the British in the 1850s. The last extensive survey and settlement in India was conducted two to three decades prior to independence. Postindependence, some states have not undertaken revisional survey and settlement so far. Even in states where revisional survey and settlement process has taken place, the colonial principle of res nullius was adopted by the authorities. As a result, large tracts of community held land were recorded as ‘government land’ in the Survey and Settlement Process in Orissa in the 1970s, resulting in a situation of alienation of tribal land on a massive scale.
b. Irregular or inaccurate enjoyment surveys. Post independence ‘enjoyment’ surveys have been few and far between. In the absence of enjoyment surveys, unrecorded tenants have lost the lands which they have tilled, sometimes over two generations, for want of documentary record. The non-involvement of the gram sabha in verification of actual possession and enjoyment of the land has resulted in the lack of transparency and manipulation of records. 4(d) of PESA recognizes the competence of Gram Sabha to safeguard and preserve its community resources while 4(m) ensures that the Gram Sabha is endowed with the powers to prevent alienation of land and restore alienated land.
c. Permissions granted for purchase of tribal land by competent authorities and conversion of agricultural land into non-agricultural land to evade the restrictions of the prohibitory laws and impropriate or illegal orders in land transfer matters. This is a rampant practice as new roads and highways open up the tribal hinterland. Most state laws require prior permission of the DC for transfer, which is generally obtained by obliging DCs without consideration of the impact of such sale or consultation and consent of the local villagers. Another way is to bypass the DCs, who refuse to oblige, by converting the agricultural land into non-agricultural land with the help of local revenue functionaries, which makes the sale less cumbersome. A third way is the use of 99 year leases, which effectively are leases in perpetuity. Hereto the officials turn a blind eye. The fourth way is to retain the tribal as a sleeping partner with no rights to profit sharing. This appears to be the method being followed alongside roadways. In the absence of control of the Gram Sabha, these practices continue, as there is no restraint on the revenue officials.
d. Inefficacious implementation of restoration legislation by the revenue authorities has been the bane of implementation of protective and welfare laws relating to land and land based resources. No efficacious mechanism has been evolved by the state governments to handle the failure of the revenue bureaucracy to uphold the constitution and the rule of law. The only credible legal avenue available to the tribal people is their community. PESA therefore provided a specific provision calling upon the state legislatures to empower the Gram Sabha. The introduction of Sec 170(b) in the Madhya Pradesh Land Revenue Code as mandated by PESA was an important departure from bureaucratic thinking. But the amendment was a non-starter in the absence of rules, regulations and notification. None of the other states have even contemplated an amendment to that effect.
[recommendations of the committee omitted]
3. State acquiesced land alienation
Land alienated by non tribals through numerous routes with the active connivance of the local revenue functionaries and the passive connivance of the higher revenue authorities.
Some of these are:
a. Informal, Unrecorded or Disguised Tenancies are widespread in all the areas given the rights and entitlements that can accrue to a recorded tenant. The erstwhile land owners, who have moved higher up in the economic ladder, still cling to the land as ‘social prestige’ and resist any form of recording of tenancies while revenue functionaries look the other way. Wasting away of the land is the unfortunate result in the absence of real ownership, whether farmer or the tenant.
b. Benami purchases in the name of tribal spouses of non-tribals, ‘adopted’ tribals, ‘adopted’ non tribals have increased with unabated speed, generally with the connivance of the local revenue functionaries and mid level officials. Given land illiteracy in the tribal areas, non tribals take this creeping acquisition path and large tracts of land are amassed by non tribals.
c. Gift by tribals to non-tribal individuals and institutions is a new practice once again with the tacit agreement of the revenue functionaries.
d. Long Term Leases, Power of Attorneys, Usufructory Agreements
e. Manipulation of records and boundaries and loopholes in land laws, a significant example of which is the abuse of the exemption clauses in the provision on land alienation at 170(a) of the Madhya Pradesh Land Revenue Code which was also adopted by Chattishgarh. As a result alienated tribal lands got regularized by the notional ‘efflux of time’ and ‘uncontested possession’. In the case of the 170(a) of the MP LRC failure to declare lands owned and the manner in which ownership was obtained within the stipulated period was visited with a reward rather than punishment. Land owners who had come into possession of tribal land failed to declare and were rewarded for their non-compliance.
[recommendations of the committee omitted]
4. State Negation of Tribal Rights to Land and Land based Resources
a. Unlawful declaration of ‘deemed reserved forests’ without fulfilling the requirements of forest survey and settlement is a reality in a very large proportion of the forests in the country. In Madhya Pradesh and Chattishgarh, 82 percent of the total forest area falls in the category of deemed forests where neither rights have not been recorded nor entitlements recognized. The ancestral homelands of an overwhelming majority of the tribal people in the states of AP, MP, Chattishgarh, Gujarat, Orissa and Rajasthan have been transferred to these ‘deemed reserve forests’. Over 20 thousand kilometers of the forest tracts in Andhra Pradesh are disputed. The livelihoods of hundreds of thousands of tribal people are caught in the dispute. Similar is the case of over a million land holders in MP and Maharashtra who are trapped in the Orange Areas dispute. The orders of the Supreme Court in the Godhavarman case only make the lives and livelihoods of tribal communities in all these states tenuous. To add to the complexity, national parks and sanctuaries have been declared in deemed Reserve Forests. The implied directions of the Supreme Court to Ministry of Environment and Forest and the efforts of the environmentalists to ensure that all the national parks and sanctuaries are ‘inviolate’ which means bereft of any human presence will make a mockery of the rule of law when it comes to the rights of the tribal people.
b. Improper or Incomplete Survey and Settlement Procedures has been examined earlier, but it will suffice to say that these two processes have been used to allow either the state or non-tribals to become legitimate holders of tribal lands. The settlement proceedings in Santhal Parganas and in Orissa prove this point.
c. Continuation of ‘loopholes’ in legislations by revenue and civil courts to negate claims of tribal people, drag them into litigation which they can neither afford or understand and effectively deny them their land entitlements. The use of ‘collusive suits’ in Jharkhand, particularly in the industrial areas, as a cover-up for illegal transfers of tribal lands is a tip of the iceberg and can be observed in virtually every part of the country.
d. Non rectification of colonial legacies particularly the use of the colonial rule of ‘res nullius’ is rampant in the settlement process in Orissa and the acquisition of common property resources of tribal communities across the nation particularly in the mining tracts of Jharkhand, Orissa and Chattishgarh. It is being surreptitiously used to appropriate the communal lands in Nagaland, where jhum fallows are being illegally converted into ‘state unclassified forests’.
[recommendations of the committee omitted]
Conclusion - The Biggest Grab of Tribal Lands after Columbus
A civil war like situation has gripped the southern districts of Bastar, Dantewara and Bijapur in Chattishgarh. The contestants are the armed squads of tribal men and women of the erstwhile Peoples War Group now known as the Communist Party of India (Maoist) on the one side and the armed tribal fighters of the Salva Judum created and encouraged by the government and supported with the firepower and organization of the central police forces. This open declared war will go down as the biggest land grab ever, if it plays out as per the script. The drama being scripted by Tata Steel and Essar Steel who wanted 7 villages or thereabouts, each to mine the richest lode of iron ore available in India.
There was initial resistance to land acquisition and displacement from the tribals. The state withdrew its plans under fierce resistance. An argument put forward was ‘you don’t play foul with the Murias’, it’s a matter of life and death and Murias don’t fear death. A new approach was necessary if the rich lodes of iron ore are to be mined.
The new approach came about with the Salva Judum, euphemistically meaning peace hunt. Ironically the Salva Judum was led by Mahendra Karma, elected on a Congress ticket and the Leader of the Opposition and supported whole heartedly by the BJP led government. The Salva Judum was headed and peopled by the Murias, some of them erstwhile cadre and local leaders of the Communist Party of India (Maoist). Behind them are the traders, contractors and miners waiting for a successful result of their strategy. The first financiers of the Salva Judum were Tata and the Essar in the quest for ‘peace”. The first onslaught of the Salva Judum was on Muria villagers who still owed allegiance to the Communist Party of India (Maoist). It turned out to be an open war between brothers. 640 villages as per official statistics were laid bare, burnt to the ground and emptied with the force of the gun and the blessings of the state. 350,000 tribals, half the total population of Dantewada district are displaced, their womenfolk raped, their daughters killed, and their youth maimed. Those who could not escape into the jungle were herded together into refugee camps run and managed by the Salva Judum. Others continue to hide in the forest or have migrated to the nearby tribal tracts in Maharashtra, Andhra Pradesh and Orissa.
640 villages are empty. Villages sitting on tons of iron ore are effectively de-peopled and available for the highest bidder. The latest information that is being circulated is that both Essar Steel and Tata Steel are willing to take over the empty landscape and manage the mines.
Comments