Assault on tribal rights

The Jharkhand government has promulgated two ordinances to bypass the tribal people’s rights over their land and resources which are guaranteed by the Constitution.

Published : Nov 09, 2016 12:30 IST

NTPC's mining operations being carried out under police protection in Barkagaon block in Hazaribagh, Jharkhand, after villagers in the area objected to them.

NTPC's mining operations being carried out under police protection in Barkagaon block in Hazaribagh, Jharkhand, after villagers in the area objected to them.

ON October 22, in an incident that did not evoke much outrage, the police opened fire on tribal people in Seko village in Khunti district in Jharkhand, killing one person and critically injuring at least five others. This is the third such incident since August this year involving disproportionate reaction to protests relating to land acquisition in the State. On that day, the tribal people were on their way to join a protest in Ranchi, convened by a broad coalition of 40 tribal organisations in the State. The protest was against two ordinances that introduce drastic changes in two land and tenancy laws: the Chotanagpur Tenancy Act, 1908 (Amendment) Ordinance, 2016, and the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, Amendment Ordinance, 2016. The proposed changes allowed for the use of tribal-owned or tenant-held land for non-agricultural purposes and the transfer of such land for “public purposes” as notified by the State government.

The day after the firing, the tribal people refused to cremate the body of the deceased, leading to further clashes with the administration. Nearly 1,500 unnamed persons were booked under various cases. Three days after the firing, on October 25, while inaugurating the first-ever national “tribal” carnival in the capital, Prime Minister Narendra Modi sent out a strong warning to those who attempted to “snatch away” the rights of the tribal people. He also pointed out that natural resources in forests should not be exploited at the cost of the people living there. The Bharatiya Janata Party (BJP)-led State government in Jharkhand did not seem to take these warnings seriously, and the Central government too did not seem concerned enough to intervene in the matter of the ordinances issued by the Jharkhand government.

The BJP and its ally, the All Jharkhand Students Union, had won 42 out of 81 seats in the 2014 Assembly election. Less than two years after assuming power, the government made its intentions about making changes in the land laws clear, though it was only in June that the ordinance route was adopted after the Cabinet approved the changes in May. The Raghubar Das-led government was only doing what the Central government had encouraged the State governments to do—tweak the land laws as per the requirements of individual States. This signal was given after the attempts of the Central government to introduce wide-ranging changes in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the LARR Act), enacted by Parliament, ran into opposition. The Central government’s ordinance, aimed at acquiring land for industrial corridors without the mandated consent, widening the ambit of what is meant by “public purpose” and diluting the provisions of consent and rehabilitation, was staunchly opposed by farmers’ organisations across the country and by several political parties. The ordinance lapsed in August 2015 and a parliamentary committee was appointed to consider the various aspects of the ordinance. The committee is yet to submit its report.

And now the Jharkhand government has promulgated the two controversial ordinances and they are awaiting presidential assent.

The news of the ordinances triggered protests across the State as tribal people, who comprise 26.2 per cent of the State’s population, felt that this was a move to disenfranchise them of their source of livelihood. On October 1, four civilians were killed in police firing near Hazaribagh while they were protesting against the acquisition of land for an NTPC mining project. Their demands included compensation under the 2013 Land Acquisition Act and employment.

NCST’s opposition The police firing on October 22 was widely condemned and there was opposition to the ordinance outside the State as well. On August 31, the Chairperson of the National Commission for Scheduled Tribes (NCST) wrote a letter to the Jharkhand Governor pointing out that the proposed amendments would permit non-agricultural use of tribal lands by the owners and tenants and allow the transfer of tribal land for commercial purposes without the mandatory prior written permission of the Deputy Commissioner.

The Chairperson of the NCST, Rameshwar Oraon, a former Minister of State for Tribal Affairs in the United Progressive Alliance (UPA) government, also pointed out in his letter that a Schedule in the Constitution of India enjoined upon States to “prohibit or restrict transfer of land by or among members of the Scheduled Tribes in such areas”. Scheduled Areas in the State, he pointed out, were governed by the two special laws, the Santhal Parganas Tenancy Act (SPTA) and the Chotanagpur Tenancy Act (CNTA), whose primary focus was land ownership, tenancy and transfer (including sale and mortgage). Despite being colonial laws, they had, along with the Bihar Scheduled Areas Regulation, 1969, been granted Constitutional protection under the Ninth Schedule of the Constitution. The letter also quoted several judgments that had underscored the importance of the protection of tribal land rights in Scheduled Areas. These laws had succeeded in protecting tribal lands and restricting their alienation, besides ensuring the restoration of illegally transferred tribal lands. The letter, a copy of which is with Frontline , says: “The Governor while exercising Article 213 seems to have not considered these important points for peace and good government [sic] in Scheduled Areas particularly preventing alienation of tribal land….” Rameshwar Oraon requested the President of India, through his letter to the Governor, not to give his assent to the ordinances “given the sensitive nature of protection of tribal rights in Fifth Scheduled Areas and the complex architecture of constitutional and legislative provisions as well as judicial precedent on the subject… till they are revised thoroughly in order to bring these in conformity with the letter and spirit of the Constitution and the laws made thereof”. Rameshwar Oraon told Frontline that the State government had bypassed the commission on the issue of the ordinances.

Acquisition and transfer made easy

The changes proposed in the ordinances essentially allow for the easy acquisition and transfer of land, both of which were subject to certain conditions earlier. Rajendra Singh Munda, member of the State secretariat of the Communist Party of India (Marxist) and president of the State unit of the Adivasi Adhikar Manch, told Frontline that land owned by tribal people, Dalits and backward caste communities in the Scheduled Areas governed by the CNTA and the SPTA could only be sold to members of these communities with the permission of the Deputy Commissioner. Sections of the CNTA, for instance, placed restrictions on the transfer of tribal lands even to fellow tribal people. That protection now has been removed with the proposed ordinances. Under Section 49(1) of the CNTA, a new clause has been inserted whereby permission of the District Commissioner is not required in situations where the State government might acquire land to build roads, canals and railways, to lay cables, transmission lines and pipelines, to construct schools, colleges, universities, panchayat buildings, hospitals, and anganwadis, or for any public purpose/project or activity which it may add by way of notification on the basis of the recommendation of the Tribal Advisory Council in the State.

The concept of a National Tribal Advisory Council was mooted by the National Democratic Alliance (NDA) government last year with the purpose of monitoring and implementing tribal welfare activities. Subsequently, such State-level councils were formed in 12 States. The ordinances, by assigning the power of recommendation to the Tribal Advisory Council, bypass elected bodies like the gram sabha and the panchayat. “The amendments should have been approved by the State Assembly. Rather, it was sent straight to the Governor. Several organisations have met the President of India and requested him not to give his assent to the ordinances. The ordinances have been opposed by all the opposition parties in the State—the Left parties, the Congress, the Jharkhand Mukti Morcha and the Babulal Marandi-led Jharkhand Vikas Morcha. The Bihar Chief Minister has also opposed it,” said Rajendra Singh Munda.

An added apprehension is that once an acquired piece of land is converted for non-agricultural purposes, it would cease to be governed by the existing protective laws and would instead come under the Transfer of Property Act. The requirement of the Tribal Advisory Council approval would not be mandatory. The ordinances give the State government sweeping powers to make rules for land use. For instance, Section 13 (A) of the SPTA, and Section 21 (B) of the CNTA enable the State executive to “regulate the non-agricultural use of the land in such geographical area and for such uses as notified from time to time by the State government”. The clause was deafeningly silent on the nature and character of “uses”.

The NCST Chairperson pointed out in his letter to the Governor that the substantive content of the changes were delegated to the State executive instead of being framed through rules or notifications and that because the delegation of such power to the State executive was vague it was contrary to Article 14 of the Constitution.

Central legislation bypassed

The amendments to the SPTA and the CNTA, it is argued, are contrary to Central legislation that applies in Scheduled Areas. The Panchayats (Extension to Scheduled Areas) Act, 1996, or PESA, provides that the State governments make laws relating to panchayats that are “in consonance with the customary law, social and religious practices and traditional management practices of community resources” and to ensure that the gram sabha is “competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution”. The Act requires the gram sabha to approve plans, programmes and projects for social and economic development before such plans are taken up for implementation by the panchayat at the village level. The gram sabha and the panchayat are also required to be consulted before any land is acquired in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects. PESA provides for the prevention of alienation of land in Scheduled Areas and initiation of appropriate action to restore any unlawfully alienated land of a Scheduled Tribe.

Another Central Act, the Forest Rights Act, or the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, gives a central role to gram sabhas in decisions regarding forest and other resources. A third Central Act, the LARR Act, 2013, also recognises the special status of tribal areas in Scheduled Areas. Section 2(2) of the LARR Act says that “…provided also that no land shall be transferred by way of acquisition in the Scheduled Areas in contravention of any law (including any other or judgement of a court which has become final) prevailing in such Scheduled Areas”. Further, Section 41 of this Act proscribes the acquisition of land in such areas, though it allows for such acquisition where absolutely necessary, with the consent of the gram sabha.

The ordinances were issued by the Governor on June 28, and the NCST, which is a constitutional body mandated to protect the rights of tribal people, was kept in the dark. The ordinances that insert new sections in both the SPTA and the CNTA allow the State government to frame rules to regulate the non-agricultural use of land and to levy a non-agricultural rent.

Several States, including some BJP-ruled ones, have taken to tweaking their land laws, violating the spirit of the LARR Act, which, despite its imperfections, was at least a beginning. According to a dossier prepared by the National Alliance for People’s Movements, Rajasthan’s land acquisition Bill has done away with the clause relating to Social Impact Assessment (SIA) and reduced the percentage of consent in public-private partnership projects and infrastructure projects. The role of local institutions such as the gram sabha in matters relating to SIA and consent has been diluted in several States by placing a condition for mandatory quorum at such meetings. In some others, the return of land to the original owner if left unutilised for the purpose it was acquired for has been left to State governments for a wide interpretation. Ulka Mahajan of Sarvahara Jan Andolan in Maharashtra told Frontline that a survey by her organisation had revealed that consent was not being taken from villagers in Raigarh to the extent mandated under the Central Act. Raigarh is one of the districts where land is being acquired, since 2007, for the Delhi-Mumbai industrial (freight) corridor. “We found that not more than 25 per cent people in the affected villages had given consent. But the government claims that it has the consent of 70 per cent of the villagers. For industrial corridors, 70 per cent consent is required. The details of the project plans are not shared with anyone. The consent letters take undertakings from the villagers that they wouldn’t litigate or ask for employment,” she said.

Despite the Prime Minister’s public pronouncements regarding the inviolability of tribal rights, States ruled by the BJP seem to be doing the opposite. Jharkhand is a case in point. The eagerness of the government to attract industry or to perhaps improve its ratings in the Ease of Doing Business ranking by the World Bank is coming at a huge price.

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