The clarion-call of ‘jal, jungle, jameen’ that has reverberated through several Adivasi movements succinctly condenses the precarious relationship of the Adivasis with their land. Being demographically distributed in India’s forested regions, the Adivasis have always been the ‘collateral damage’ that marks most development projects. The construction of dams, mines, and roads is an explicit violation of the Adivasis’ rights to customary landholdings. On the other hand, the push towards biodiversity conservation and scientific forest management robs them of traditional livelihoods that are dependent on forest produce. Their situation is akin to being caught between a rock and a hard place.
Amidst the chaos of competing claims on land lies the confusion caused by legal pluralism, or the simultaneous acceptance of multiple legal systems. Often, both state law and customary law are recognized in sensitive zones housing indigenous groups in India. The lack of well-defined rules for ensuring that the correct laws are invoked in relevant contexts makes the judicial process in cases of Adivasi land rights drawn-out and inefficient. The confusion is exacerbated by the overlapping application of state laws.
Agreements reached between the colonial administration and the Adivasis, the gradual recognition of Adivasi rights in modern India, and the prevalence of customary law has created a judicial soup. With intersecting jurisdictions of various laws that came into force at varying points in India’s history through a multitude of popular movements comes the question of which laws are actually most applicable to protect the interests of the Adivasis.
The state’s ‘eminent domain’ or its ability to capture land for the ‘greater good’ of society at the expense of some groups gave it absolute power over land in the country, particularly unclaimed land (such as forests). A remnant of British colonialism (and by association, of the primordial enclosure), ‘eminent domain’ has roadblocked the Adivasis’ unfettered access to their own ancestral land. The lack of property titles along with the abolition of zamindari in independent India has made them particularly susceptible to the leviathan power of the state. The constitutional placement of the subject of ‘land’ in the concurrent list (‘forests’ are in the state list) makes it easier for the federal state to overrule local, state-level laws, making the state’s presence in land acquisition even more imposing.
The judgment in the Samata versus State of Andhra Pradesh case by the Supreme Court in 1997 is an example of how confusion surrounding nomenclature, jurisdiction, and state categories can inflate into real issues. Samata, a charitable organization in the unified state of Andhra Pradesh filed a writ petition in the AP High Court in 1993 challenging the state’s powers to arbitrarily transfer land from the Adivasis to non-tribal persons. Samata argued that the state was also a ‘person’ and therefore subject to the same rules as everyone else under the Land Transfer Regulation Act, 1970. The Supreme Court overturned the High Court’s judgment against Samata, heralding a win for Adivasi determination. The judgement has been used as a precedent to rule in other land-related cases ever since.
The introduction of the Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA also radically changed the face of state procedures for land acquisition in regions where the adivasis were demographically significant (the Scheduled Areas). The PESA laid-down provisions for the control of land and community resources by the ‘gram sabha’ or village assembly in every panchayat in Scheduled Areas. This meant a participatory and democratic approach to the distribution of land to corporates. Ideally, only a vote by a majority in the ‘gram sabha’ in favour of transferring the ownership of land from the Scheduled Tribes to persons not from the Scheduled Tribes (such as private industrial interests) would allow land to change hands.
In several states the PESA acts as an added layer of protection for Adivasi land rights since local laws—which are products of protracted struggles between the Adivasis and central regimes—recognize their preeminence over the state’s need for land. For instance, two such laws operate in Jharkhand. These are the Chota Nagpur Tenancy Act, 1908 and the Santhal Parganas Tenancy Act, 1876 that came into effect in colonial India to prevent the transfer of land to ‘non-tribals’. Today, these laws are being systematically dismantled through amendments in the state legislature. The double protection of local tenancy laws and the PESA has been whittled down to such an extent that the state has been able to manipulate the transfer of land to corporations for electricity-generation and mining.
Competing land laws that hold sway over the same group of people—the Adivasis—and the same pockets of territory have become a conundrum in themselves. Instead of easing the Adivasis’ claim-making process over land, the multiplicity of laws has proven to be an incubator for the state’s subterfuge. Moreover, these laws primarily pertain to agrarian land and leave answers to the question on the use of forest produce unclear. The Indian Constitution also includes legislations specifically constructed for the acquisition of land for mining (eg., the Coal Bearing Areas Act, 1957), that escape the purview of protectionary acts. Only a persistent effort to delineate the exact rules and notifications for existing acts and the recognition that some acts supersede others would bring order to the current chaos in the relationship between land laws and Adivasi rights in India.
About the author: Divya is currently pursuing a Masters in Development Studies. She has an interest in land laws and environmental governance. She also enjoys travelling and listening to K-pop.
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