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Tribal Policy

Pulling Back from the Brink?

by Harsh Mander






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The importance of protecting the interests of vulnerable tribal communities was incorporated into the Indian Constitution. Article 46 of the Constitution enjoined upon the State ‘to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and protect them from social injustice and all forms of exploitation’.

There has been an array of federal and state-specific legislation of the protection of tribal communities and regions from exploitation since Independence. Some of these laws are specifically designed for tribal people, such as state-specific laws to prevent the alienation of tribal land to non-tribals. Some are relevant for both Scheduled Tribes and Scheduled Castes, such as the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Some apply to all disadvantaged groups, of which tribals would generally be expected to constitute a significant proportion. These would include state-specific laws to regulate moneylending16 and to prevent usury, the Bonded Labour System (Abolition) Act, 1976, the Minimum Wages Act, 1948 and the Child Labour (Prohibition and Regulation) Act, 1986.17 It is beyond the scope of this paper to review the implementation of social justice legislation in India. It would be sufficient to note the persistence of tribal land alienation, usury, atrocities, bondage, child labour and low wages, suggests that the array of progressive legislation has failed to extend adequate protection to tribal people. The reasons for this failure are that law by itself cannot protect vulnerable groups and people.

The legal system is always notoriously weighted against the poor, more so tribals for whom the entire legal system is an alien implant. In the absence of redistributive and other political strategies to empower tribal communities, the law by itself would inevitably have had a limited impact.

We may illustrate this with the performance of one set of laws, which are designed specifically for the protection of tribal people, namely laws to prevent transfer of land from tribal to non-tribal people. Almost all state governments have passed laws regulating the transfer of land from tribal landowners to non-tribals. Most such laws require that prior permission of the Collector be obtained before such transfers are permitted. Examples of such laws are section 13A of the Bombay Land Revenue Code, section 165(6) of the MP Land Revenue Code, the Bihar Scheduled Areas Regulations, the Andhra Pradesh Scheduled Areas Land Transfer Regulations, and so on. In some states, like Andhra Pradesh and Madhya Pradesh, there is now a total ban on transfer of land from tribals to non-tribals in scheduled areas.

A second major set of legislation’s have been enacted to review transfers of land which occurred in the past from tribals to non-tribals, and to restore land to the original tribal landowners in case fraud or illegality is established. The strongest such law is section 170 (B) of the MP Land Revenue Code, 1959. We will look at the experience of the law in Madhya Pradesh, which has the highest concentration of tribal people and the most progressive law in this regard (Mander, mimeo).

The Madhya Pradesh Land Revenue Code, 1959 contained important provisions under Section 165(6) to protect tribals from such exploitation, but both through loopholes in the law and in blatant contravention of it, tribal land alienation continued at a disastrous pace. An important study by the Tribal Research Institute, Madhya Pradesh in 1973 concluded that ‘while on the one hand section 165(6) of the M.P. Land Revenue Code (1959) prohibits transfer of land from aboriginals, the later part of the same section permits it under certain conditions… All other clauses in the interest of the aboriginals seem to be overshadowed by this and transfer of the land from the tribal to the non-tribal is a regular feature’.

The study notes that 46.3 per cent of cases in which the Collector gave permission to the tribal landowner to sell land was for the repayment of government loans. The report states ‘Indebtedness is the main cause of land alienation. Actually what happens in the area is that tribals mortgage their land to non-tribals and take loans...... They would then take loan from the Government and use it for repayment of the private debts. Having failed to pay the loan due to the Government, they apply for permission to sell land, which is granted. In fact the sale is to the mortagagee, while on chapter it assumes the shape of innocent transfer for repayment of Government loans’. The study further notes that ‘the quantum of illegal (benami) land alienation from tribals to non-tribals is like that part of the iceberg that remains under the surface of water. Seemingly though the quantum of legal transfers is not very much, the incidence of illegal transfers not easily detectable is very high’.

The studies commissioned by the Government of India with regard to other states, referred to earlier, also establish that transfers of land from tribal land owners to non-tribals continued despite the various enactments, for a variety of reasons. Collectors or other agencies responsible for protecting the interests of tribals while regulating such transfers, in most cases did not apply their minds to issues of vital importance to the tribals. These include whether or not, the tribal had any other alternative livelihood, or sufficient land for viable cultivation even after sale, whether sufficient price was being paid, whether the sale was actually to enable repayment for usurious loans from a moneylenders etc. Legal transfers also took place by actions for recovery of dues and mortgages, by decrees of civil courts, misuse of provisions for settlement of occupancy tenants, settlement operations etc.

In order to secure redressal and reversal of such systematic subversion of these protective laws, the Madhya Pradesh legislature in 1976, and then in 1980, introduced highly significant amendments in the Land Revenue Code, 1959 to secure belated justice to the dispossessed tribal landowners, particularly through the section 170(B) of the Code.

There were many powerful elements in this Section 170(B), some without parallel in any other state. It instituted suo moto responsibility of the revenue court to enquire into all transactions from tribal to non-tribal, even without an application from the tribal. The burden of proof was shifted to the non-tribal to prove that fraud did not take place, and the presumption of the court supported the legal rights of the original tribal landowner. Appearance of advocates without permission has also been debarred in these proceedings. There is provision for a single appeal to the Collector.

Despite the existence of such a radical piece of legislation for social justice for tribals, its implementation has not been in consonance with both the letter and the spirit of the law in most districts of the state.

Of the total land under dispute only 12.65 per cent has been officially restored to the original tribal landowners. But given the socio-economic realities facing tribals and their powerful non-tribal opponents, it is unlikely that even after receiving formal legal possession of even this small proportion of their erstwhile lands, tribals would have the local administrative and political muscle to ensure that they would retain possession.

In order to understand the actual experience with regard to the implementation of progressive measures to restore illegally expropriated land in Madhya Pradesh, we will rely on two unpublished studies by the Tribal Research Institute, Bhopal (TRI) (1983 and 1987-88), and the direct experience of this author in supervising the implementation of these provisions in six tribal districts and one tribal division of Madhya Pradesh.



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