Tribal Policy: Pulling Back from the Brink?

PESA attempts to redress the consistent failure of formal State structures to deliver justice to dispossessed tribal land-owners, by requiring state governments to specifically endow Panchayats at appropriate levels and gram sabhas with powers to prevent alienation of land and to take appropriate action to restore land unlawfully alienated from a tribal. However, these substantial powers are to a certain extent hampered in their reach by the fact that procedures are not clearly spelt out.

Despite this lacuna, the state legislatures of Andhra Pradesh, Gujarat, Himachal Pradesh, and Maharashtra have resolved to amend their laws regulating land transfers from STs in Scheduled Areas to appropriately empower panchayats and gram sabhas. However, detailed amendments are still awaited nearly three years after the passage of PESA. The Maharashtra government has enabled gram sabhas and panchayats only to make recommendations to the Collector in this matter (Srivastava 1999).

The Madhya Pradesh legislature has amended its Land Revenue Code, 1959 with a slightly more detailed formulation, as follows:

If a gram sabha in the Scheduled Areas finds that any person other than members of an aboriginal tribes, is in possession of any land of a Bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to whom it originally belonged and if that person is dead to his legal heirs;

Provided that if the gram sabha fails to restore the possession of such land, it shall refer the matter to the Sub-Divisional Officer who shall restore the possession of such land within three months from the date of receipt of the reference (quoted in Mander and Naik 1999: 6).

The Madhya Pradesh formulation has the merit of ensuring much clearer compliance with PESA. It places direct powers with the gram sabha for restoration of land illegally alienated from a tribal land-owner by a non-tribal. It also places a duty on a senior revenue authority-the SDO-to restore possession within 3 months if the gram sabha fails in this. However, for this provision to become operational, far more detailed instructions regarding the procedures to be followed by the gram sabha for the exercise of such quasi-judicial authority would be required. There are also, as we shall observe other aspects of regulating tribal land-alienation from which the gram sabhas are still excluded.

As stated earlier, PESA requires state governments to specifically empower panchayats at appropriate levels and gram sabhas in Scheduled Areas with powers to prevent alienation of land and to take appropriate action in this regard. These powers are clearly intended to extend to (a) regulating the transfer of land from STs to non-tribals; (b) detecting instances of land unlawfully alienated from STs; and (c) powers to restore illegally alienated land to the original tribal land-owners. Let us consider each of these in turn.

The regulation of land transfers from STs to non-tribals involves firstly decisions regarding whether any particular sale of agricultural land from STs to non-tribals may be permitted at all. Many state governments have now imposed a blanket ban on such transfers in Scheduled areas. However, in states where such transfers are permitted with the consent of superior revenue authorities (Collector or SDO), the concurrence of the gram sabhas should be made mandatory before the revenue authority is empowered to extend permission. Such regulation also implies ensuring that a non-exploitative price is paid to the tribal with an actual transfer of the amount (and not, for instance, adjustment against some old loan from a moneylender). Here again, the gram sabha must concur that the price being offered is adequate and just, and payment by cheque in the joint names of male and female heads of the family wherever applicable- be made in the presence of the gram sabhas.

Regulation by the gram sabha also implies interventions to provide relief in the event that permission for sale by a Scheduled Tribe is refused. The gram sabha and gram panchayat may be encouraged and assisted to establish alternate community based modes of securing ready credit, like a community village fund or gram kosh, for times of distress and for productive purposes. In addition, the gram panchayat may assist the tribal to secure credit from a co-operative or nationalised bank.

We move now to the second type of the power that we suggested that panchayats and gram sabhas need to be equipped with in this matter viz., detection of instances of land unlawfully alienated from STs. The gram sabha cannot be expected to detect this on an on-going basis unless land records are placed directly under their control. Exploitation in matters of land title in rural India is sustained, at least in part, by the notorious monopoly of patwaris or village accountants over land records. They have exercised uninterrupted tyranny over rural India for centuries because typically they function unencumbered by any kind of transparency or accountability requirements. Transfer of control over land records to the gram sabha, or at least to the village panchayat, as has been recently accomplished in Madhya Pradesh, would enable a breach in this long tradition of official tyranny. For instance, a provision that the record of rights - which lists each plot of land and the recorded owner - be read out and approved by the gram sabha, would enable detection of benami land or that held by force illegally by non-tribals. In addition, the requirement that all court rulings for the restoration of land illegally expropriated from tribals by non-tribals, would enable gram sabhas to detect instances of non-compliance with court orders, which remain legion in most states.

The third kind of legal empowerment envisaged for tribal gram sabhas is to restore illegally alienated land to tribal landowners. One procedure may be as follows. Both sides are invited to adduce evidence, verbal or documentary, to establish their claims before the gram sabha which would include both tribal and non-tribal residents of the settlement. Any other member of the gram sabha with knowledge of the case would also be allowed to give evidence. It would be mandatory for the patwari to give testimony. There would be full rights of cross-examination, but no party is allowed to be represented by a legal practitioner.

In the end, the gram sabha would take a decision either unanimously or by majority opinion, established by show of hands. The relevant laws would have to be amended to lay down explicitly that the decision of the gram sabha in this regard would have the same weight in law and the same binding quality as the decision of the lowest revenue court. In the event of an appeal by the non-tribal, it would be mandatory for the court to ensure compliance with the decisions of the gram sabha to restore land to the tribal before considering the appeal. Also, if the gram sabha’s directions to restore land to the tribal are not complied with, the gram sabhas or the tribal concerned may inform the court , and it would be mandatory for the court to ensure the restoration of the land to the tribal within 3 months.

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