Land Reform Policies for Tribals

Land Policies for Tribal

Background

As per 2001 Census, Tribal population constitute 8% of the total population of the Country and among them 80% live in the central belt, extending from Gujarat and Rajasthan in the West and across the States of Maharashtra, Madhya Pradesh, Chhattisgarh, Bihar, Jharkhand and Orissa, to West Bengal and Tripura in the East and remaining 20% live in the northeastern states of Meghalaya, Mizoram,  Nagaland, Arunachal Pradesh and in the Union Territories of Dadra and Nagar Haveli, Andaman and Nicobar and Lakshadweep.

Types of landowning structure of tribal

Forest and land are fundamental livelihood resources of tribes. There are three types of landowning structure in tribal areas; one is community land where land belongs to the village and another kind of structure where land belongs to the clan and another structure where land belongs to the individual member.

Protection under Constitution

• Sixth Schedule of The Constitution of India has made special provisions to safeguard the interest of the tribes and the Government is to take care of the tribes.
• Article 39A ordains the States to secure a legal system which promotes justice based on equal opportunity. Although same is not enforceable in the court of law. Article 39A is a social objective and free legal aid must be implemented by suitable legislation or by formulating scheme for free legal aid.
• Article 164(1) gives States the authority to establish special ministry for Scheduled Tribes and Scheduled Caste.

Land Alienation

The excessive dependence of tribal communities on land for their income and employment makes land alienation and landlessness a major livelihood namely agriculture or farming activity concern of the tribe. To cultivate in the forest land, tribes had to rely on the local money lenders for seed capital and this in turn led transfer of land to the money lender for non-payment of loans and reduced them to status of tenants of the moneylender-landlord combine.

However, story does not end here; there are other ways where land of tribes had been transferred to non-tribes. There are many cases where the land was transferred to other tribes who worked for the non-tribal owner and this tantamount to benami transfer.

Next phase of land alienation had begun with the commencement of development projects after independence and the forest land was then converted into plantations and sites for construction of hydel and other projects.

To protect the marginalized socio-economic class of citizens namely forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 had passed in the Parliament.

Despite implementation of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the problems of tribes have not been resolved yet.

Major flaws in The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

• In terms of Section 4(d) of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 a resettlement or alternatives package has been prepared and communicated that provides a secure livelihood for the affected individuals and communities and fulfils the requirements of such affected individuals and communities given in the relevant laws and the policy of the Central Government. Practically to get such package and compensation, tribes must produce the documents of ownership of the land. However, many of the tribes doesn’t have the land records owing to the fact that the areas where Tribes had been living since ages, was so backward that the British did not show any interest in including this area in its mainstream revenue, possession of land and payment of its rent to the local ruler or village head was done orally. As a result of that, practically many tribes despite had been living in forest areas since many generations, had failed to produce the documents of ownership of the land and by taking advantage of this loophole, village heads took away compensation in the name of tribes.

By virtue of Section 3(f) of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, rights of the tribes have been protected, where it is stated that “rights in or over disputed lands under any nomenclature in any State where claims are disputed”. However, since tribes are not educated enough as well as somehow managed their livelihood, in the event of disputes over land arises, they may not have the ways to knock the door of judiciary and in such scenario local ruler or village head would always edge over vulnerable tribes to take ownership of the land.

Recommendations to incorporate few provisions in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

• To avoid dispute over ownership of land, Government may give responsibility to the local gram penchants to collect land record and identify the tribes and other traditional foreign dwellers who has been living since many generations in the forest and post identification of such tribes, Government would issue a certificate evidencing ownership of land. To oversee the work of local penchants impartially, the independent team should be formed, which comprises MLA or MP of both opposition and the Central/State Government, Government officers, Activist, representative from media, eminent right activist, representative of NGO etc.
• Prior to implementation of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, there are many instances where non-tribal inhabitants had illegally occupied most of the tribal land by way of fraudulent means. To legitimize this act, these non-tribal landowners claimed that the tribal land had been transferred to them long before the legislation and this could therefore, not come under the present law. To give the right to all such land losers who had lost their land by way of fraudulent activity of non-tribes’ inhabitants, a retrospective provision should be incorporated in the Act where non-tribes who purchased tribal land prior to implementation of the Act, shall have to inform the collector of the area in a prescribed proforma and explaining how the land was transferred to him. In the event it is proved that land being acquired by way of fraudulent means, then land would be taken back from non-tribe purchaser and give it back to the tribes who was the original owner of land.
• To give legal aid to the tribes in the case of any legal dispute arises between the landowner and tribes in the matter of ownership of land, it is advisable that each State should start a legal aid scheme by exercising the power conferred under Article 39A of Indian Constitution. It is advisable to involve public participation through this legal aid scheme, precisely involve more voluntary organizations, social groups, lawyers in that Program so that tribes can easily access our judiciary through these groups.

Mission

• Even though laws are in favor of the tribes but they not getting their rights due to not accessing the legal system properly or due to delay in legal process. As a result of that, it takes many years for tribes to get proper justice and to get back their lands.
• To resolve the land disputes issue, State Government of each State may take an interim measure and adopt the principle of the Operation Barga, which is one of the biggest land reforms ever taken place in India and which was successfully implemented in West Bengal in the mid-1980s. The purpose of this measure is to give right of share of produce of any land cultivated to the tribal.
• The entire process of the operation would be divided into the following steps –

I. Identification of priority pockets with large concentration of tribes who cultivates the land of non-tribes in exchange of meagre monthly fees for more than 15 years. The main aim is to record the names of such tribes and give them the status of Bargadar so that instead of meagre monthly fees, tribes would be entitled to get share of produce of any land cultivated by them.

II. The produce of any land cultivated by a Bargadar shall be divided as between the tribes and the person whose land he cultivates –

• • In the proportion of 50:50 in a case where plough, cattle, manure and seeds necessary for cultivation are supplied by the person owing the land.
  • In the proportion of 80:20, in all other cases.

III. In order to execute above measure, it is required to examine whether at the ground level above process has been executed properly and to do this, Government should form a committee comprising members from different spheres of society i.e. from government officials to representative from corporates, representative from NGOs etc. The main role of this committee is to prevent the landowners to forcibly take away the produce of any land cultivated by tribes and in the event, it is taken away then it would be responsibility of the committee with help of judiciary to ensure that share of such produce or equivalent monetary value should be recovered from owners of land maximum within a period of one month by exercising their power.

IV. Camping by the Government Officials at the priority pockets and educating tribes about their cultivation rights and educate them about different subsidy given by the Government to the tribes and encourage them to take loan from banks and avoid taking loan from money lenders.

V. Appoint few groups of persons from different spheres of society who can guide the tribes to take loan from the banks and financial institutions.

(Republished with amendments)