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Government of India should Honour Commitment to the Parliament Regarding Tribal Lands

by B.K. Roy Burman, 12 May 2010

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“It’s war: Naxals butcher 74 in worst blow to security forces” runs the headline of The Times of India of April 7, 2010. The responsibility must be borne by the Government of India also.

For sometime the Government of India, in a hypocritical modesty, has been singing the soporific song to the nation that it is due to the slow pace of development that militant radicalism of the Naxalites has gained political space in the central tribal. This is not wholly true. In an article published in Mainstream of October 17, 2009, based on the report of the Government of India’s Study Group on Land Holding Systems in Tribal Areas which was presented in the Lok Sabha vide USQ No. 675 dated April 15, 1987, I had pointed out that as a matter of state policy, during the land survey and settlement operation, the government was getting large tracts of land under actual occupation of the tribal peoples recorded as state land. I was the Chairman of the Study Group. Along with others the members included one retired judge of the High Court, one retired Chief Secretary and several scholars from different disciplines. One Additional Secretary of the Government of India was Secretary of the Study Group. In our report we also mentioned that as a matter of policy, community owned lands were not recorded in their favour and even where individual rights were embedded in the community, the latter was not recognised as a land holding legal person. In fact in 1981, a publication of the Planning Commission pleaded for individualisation of community right and corporatisation of the residual surplus land for the sake of ‘progress’. A recent publication, edited by a former Director of the Institute of Economic Growth, has estimated that non-state community ownership covers an area of more than one lakh square kilometres. In the report of the Expert Group on Prevention of Alienation of Tribal Lands (published in 2004 and republished in 2006), appointed by the Ministry of Rural Development, it has been confirmed that by non-recognition of community ownership, the tribal peoples are being dispossessed, in law, of their rights relating to vast tracts of land all over the country.

In a publication of 2009, Prof L.K. Mahapatra, a former Vice-Chancellor of Utkal University, has pointed out that while the Land Holding Systems Study Group had recorded that in some parts of Orissa hardly one per cent land under possession of the tribals was recorded in their favour, in parts of Bondo Hills, which were not surveyed at that time, hardly 0.25 per cent of lands under actual occupation of the tribals were recorded as such in the survey conducted later.

When in 1987 our report was presented in the Lok Sabha, in a written statement the government made the following points:

1. In response to our observation that the Orissa Government had issued a directive that tribal rights up to ten degree slope should be recorded, and beyond that all lands should be recorded as state land, the Government of India inter alia stated: “Even in cases where provisions of the Forest Act are not attracted, the State Government of Orissa seems to have avoided such a survey so as to prevent alienation of the fragile hill slopes.” This was a sanitised version of the reality on the ground. In a written statement submitted to us, the Orissa Government admitted that all lands beyond ten degree slope were recorded as state land. This was part of an unsavoury and illegal manipulation, the details of which were included in the report. In order to protect the image of the State Government, the Government of India had indulged in factual inexactitude.

2. The response of the Government of India to our observation that the community rights as such were not recorded was very positive. “It has been rightly recommended by the Study Group that the Survey and Settlement Acts and manuals of different States should be studied to ensure that the rights relevant for tribals are recorded. It is recognised that this is particularly important in a traditional tribal society where separation of individual from community in matters of property relations concerning land do not exist. The Department of Rural Development agree with the recommendation about the need for an intensive study of communal land systems, their persistence, change, decay and reinvigoration with a view to identifying measures which may lead to formulation of policy guidelines regarding communal land systems. It is also recognised that where individual rights are embedded in communal rights, removal of the community removes the necessary condition for the concerned individuals to enjoy their rights, and, therefore, this aspect will need to be kept in view while framing land reform policies.”

The government had made a solemn commitment in Parliament in the matter of undoing the predatory actions perpetrated by state agencies on tribal lands and of restoration of the same; but even after more than two decades, the commitment is yet to be honoured.

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It is easy to see why the successive governments of India of diverse hues have failed to honour the commitment. As recorded by the Expert Group of the Ministry of Rural Development already referred to, “The areas inhabited by the tribals are also the store house of mineral wealth in the country…. The bulk of the coal deposit (92 per cent); bauxite (92 per cent); iron ore (78 per cent); uranium (100 per cent); copper (85 per cent); dolomite (65 per cent) and the list goes on”. (Ch I, Para 41) The stakes are too high for the ruling class in India. Unless the civil society strongly asserts, even a commitment to Parliament loses its edge.

The Study Group on Land Holding Systems had to submit an incomplete report under the circumstances indicated in the report itself. But in diverse capacities I had examined different aspects of the matter in several States. Based on the same I have identified about a dozen types of predatory actions of the apparatuses of Indian States. In 1961 around 19 per cent if the tribal workers were landless agricultural labour, and in 1991 the number went up to around 36 per cent. My paper, “Issues of Political Radicalism in Central Tribal Belt and Suggested Agenda for Cooperation among Democratic Forces including the Ruling Party and Maoists”, circulated by the Gandhi Peace Foundation, New Delhi on April 6, 2010, provided the list with bare indicative amplification. For anticipated parity of space I would just mention here around a dozen types of predatory actions, namely:

(a) Continuation in adivasi areas of the Roman legal concept of resnullius (that which has not been assigned by the Sovereign belongs to none, meaning thereby, belongs to the Sovereign).

(b) Adoption of inappropriate plain table method in the land survey of hilly tracts.

(c ) Promoting neo-fuedalisation process among the tribal communities.

(d) Unscientifically categorising some sections of the tribal peoples in such a manner that by definition they are dispossessed of their land rights.

(e) Curtailment of land rights through fractured humanitarianism.

(f) State takeover of more than 50,000 acres of lineage owned forest on promise of sharing profit but failure to honour the promise.

(g) By adoption of unscientific forest management system because of lack of adequate research base on the one hand and failure to creatively take advantage of people’s knowledge systems on the other.

(h) Environmental degradation because of inade-quate enforcement of regulatory norms in the mining sector.

(i) Ignoring the Indian tradition of legal pluralism and holding on to the Austinian Command Law orientation by the judiciary in general as the dominant legal epistemology in India, while countries like New Zealand and Australia have moved out of the same.

(j) Dispossession through failure to provide appropriate institutional coverage because of incapacity to appreciate that the same type of activity has different meanings in different political economies.

The list can be expanded but it is not proposed to provide an inventory of state actions of omissions and commissions. What is intended in this presentation is that the Indian state is deviating from its professed norms. Civil society must actively intervene both with the government and political radicals. I propose to take up separately the issue with the Maoists that by trying to overthrow the Indian state they will only harm the cause they profess to espouse.

Prof B.K. Roy Burman is the former Chairman, Study Group on Land Holding Systems of Tribals, Planning Commission, Government of India (1985-86), and former Chairman, Committee on Forest and Tribals Backward Classes Unit, Ministry of Home Affairs, Government of India (1980-82).