Data has now proved conclusively that the tribal people have been the worst sufferers of development induced displacement. They represent 34% of all displaced people in the country though constituting only 8.6% of our population. Dr. B.D. Sharma’s book, “Unbroken History of Broken Promises” combining passion with vast experience and erudition has described how in the early decades following independence the push for modern development and infrastructure creation pushed the tribal people further and further into the forest areas till today they are mostly located on the borders and cusps of states/ districts where forests still remain. The residents of cosmopolitan Mumbai find it difficult to believe that “Borivali” and “Kandivali” were actually once tribal hamlets. And when we consider that most tribals would have been legally “encroachers” till the Forest Rights Act 2006 came into existence, and thus not even counted officially among the displaced or compensated, we see that the injustice would actually have been even more enormous than the statistics reveal. Before looking at how or to what extent the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (henceforth the 2013 Act) which came into force on 1st January 2014 would help the tribal people, it is necessary to understand the present status of the legal protection of adivasi lands and livelihoods.
It is indeed an irony that even the recognition the colonial British government had accorded to tribal dominated areas after facing continuous tribal revolts, by designating them Excluded Areas (later Sixth Schedule Areas under the Constitution) and Partially Excluded Areas (some of which were designated as Fifth Schedule areas), in other words regions where ordinary laws of governance would not apply, was continually eroded under the pressures of “development”, “mainstreaming” and “security considerations”. A mere perusal of the Constituent Assembly Debates shows the uphill task Jaipal Singh Munda and Reverend Nichols Ray had, to convince non tribal representatives that trusting tribal communities with self governance and management of their local resources under customary laws would be the best way to develop fraternal relations. Special laws of the colonial era like the Ganjam Vishakhapatnam Agency Areas Act, the Chotanagpur Tenancy Act (CNT Act) the Santhal Parganas Tenancy Act (SPT Act) Act and various pro-adivasi provisions in the state land revenue codes – which basically prohibited the transfers of adivasi land or purchase of such land by non tribals or restricting land mortgages – were slowly but surely sabotaged by an administration and political establishment that failed to empathise or appreciate the concerns and way of life of the tribal people, and considered them as mere hindrances in the path of development. Only recently Jharkhand was once again rocked by tribal protests and Bandhs against proposed amendments to the CNT and SPT Act, leading to the death in police firing of Abraham Mundu on 23rd October 2017. Fortunately in a rare use of discretionary powers of a Governor, Ms Draupadi Murmu rejected the amendments.
By the decade of the 1990s, the tribals literally had their backs to the wall as between mining interests and reserve forests, evictions loomed large on their horizon. On the other hand, paradoxically, “Part IX – the Panchayats” and “Part IX A – the Municipalities” were introduced into the Constitution with the concepts of decentralization and local self governance. It was specifically stated in Part IX and Part IXA that their provisions could only be extended to the Scheduled Areas and Tribal areas (areas in the Fifth and Sixth Schedule) by the Parliament with “appropriate exceptions and modifications”. This is the period when with the efforts of the (Dilip Singh) Bhuria Committee and visionaries like Dr BD Sharma, the Panchayat Extension to Scheduled Areas Act, 1996 (henceforth PESA) was passed by the Parliament. A small Act, merely five sections long, this piece of legislation has constituted Gram Sabhas as pivotal legal entities in the Scheduled Areas and vested them with crucial powers of being consulted on development projects, of taking action to prevent alienation of tribal land, of monitoring local institutions and functionaries, of controlling moneylending, of exercising control over local plans and resources particularly tribal sub plan resources, and of ownership of non timber minor forest produce and minor minerals. The last section of the Act has stated that within a year of its notification all other acts should be repealed or modified appropriately to be brought in line with the PESA Act. However Acts like the Mines & Minerals (Regulation & Development) Act, the Coal Bearing Areas Act, the Environment Protection Act, the Forest Act, the Land Acquisition Act or Panchayati Raj Acts of various states were never appropriately amended. This has led to parallel processes being followed with regard to Environmental Clearance, Land Acquisition or Forest Diversion for the same development project, without any clarity as to the stage at which or the manner in which, the mandatory consultation with the Gram Sabha under PESA is to take place. In practice, the PESA Act has been flouted far more than it has been implemented. In tribal areas complaints abound of project proponents submitting Gram Panchayat rather than Gram Sabha resolutions, or submitting fake Gram Sabha resolutions or obtaining such resolutions without quorum or under coercion. As a lawyer I am only too familiar with numerous cases of challenges to such violations of PESA in acquisition/ purchases/ leases of land facilitated by the Chhattisgarh government in favour of companies like Jindal, Adani, Tata, Essar, SECL, DB Power, Vandana Vidyut, SAIL, Hindalco, Monnet, Videocon etc. which are still pending in the High Court.
It is also pertinent that the Municipalities Extension to Scheduled Areas Bill was presented and passed in the Rajya Sabha in 2001 but allowed to lapse. Thus all the municipal councils and municipal corporations constituted in the scheduled areas after the insertion of Part IXA of the Constitution are actually unconstitutional. Yet there has been an unfettered creation of industrial and mining townships, and an enforced urbanization of the Scheduled Areas by converting Gram Panchayats into Nagar Panchayats or absorbing them into existing Municipal Councils and Municipal Corporations, thus depriving those villagers of their powers and protections under the PESA Act. The enforced urbanization in the Scheduled Areas has led to a demographic imbalance where these urban areas have become completely dominated by non tribal companies, contractors, traders, employees and again lands have gone out of the hands of the tribal people. In 2015, there was a massive agitation in the Sundergarh district of Odisha because more and more villages were being forcibly absorbed into the Rourkela Municipal Corporation (and indeed many smart cities are going to be created in precisely this manner). The agitation involving many elected village representatives and even a sitting MLA George Tirkey resulted in train stoppages on the Howrah Mumbai rail line for several days and has temporarily subsided after the relevant Government Notification was stayed by the Odisha High Court. However the problem is far from solved.
The passage of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition and Vesting of) Rights Act, 2006 (henceforth the Forest Right Act), was indeed legislatively a historical landmark for tribal rights. The Forest Rights Act acknowledges that it is trying to correct a historical injustice to the tribal people by recognising their rights and vesting them, and makes this a condition precedent to their eviction by any other law in force. Indeed logically that is the only way adivasis living in forests could be considered as displaced and even be compensated, let alone rehabilitated or resettled. This legal interpretation still requires to be firmly established by precedents, since the tendency of the courts is still to erroneously think of forest rights as ownership rights created by the Act (as opposed to pre existing rights which are only being recognized by the Act) which come into existence only once the pattas are issued after applications are decided by the District Forest Rights Committee. Thus they fail to understand why the settlement of forest rights still require to be done while considering eviction or dispossession on account of a mining lease or a forest diversion which predates the proceedings under the Forest Rights Act. Although the binding judgment of three judges of the Supreme Court in the Orissa Mining Corporation case, more popularly known as the Niyamgiri Case has cleared much of the air, the legal eagles of the mining and corporate interests continue to confuse and obfuscate.
Fortunately the Forest Rights Act, along with the Central Rules is a remarkably well fleshed out piece of legislation, clearly because it was a legislation fought for by adivasi communities and forest based movement for over a decade, with many drafts, discussions and consultations. The Act faced extreme hostility from the Forest Department which unsuccessfully challenged the Act on grounds of conservation of the forests. It has also faced continuing opposition from the wild life lobby seeking to create reserves and corridors for tigers, elephants, rhinos and even snakes. Actually a dispassionate look at the Act shows that it does not give complete ownership rights even individually; since pattas given to a household, with a legal maximum of 4 hectares, are merely for bonafide survival and though inheritable are not transferable. In practice, even in a State like Chhattisgarh which has earned many laurels for good implementation, only half of the individual forest rights claims have been decided, and only small plots of land less than 2 acres and sometimes merely homestead land (far less than the areas claimed) have been granted. This is because of the lack of political will to accept the centrality and authority of the Gram Sabha whose task is to endorse claims including through special modes of evidence such as the statements of village elders. The Sub Divisional Committee which processes the claims continues to be dominated by the Forest Department. The District level and State level Committees, headed by the Collector and Chief Secretary rarely meet, or minute meetings or accord any priority to the grant of forest rights.
The grant of community forest rights, resource rights and habitat rights is an even more vexed question. Very few community forest rights pattas have been granted and usually if at all they cover very small areas allotted to schools, panchayat buildings or other developmental works. Often these CFR pattas exclude plantation areas allotted to the Forest Department which over the years has developed a vested interest in forestry projects which it executes through monoculture plantations which in fact destroy the rich biodiversity of natural forests. The idea of CFR to be a means to sustain the forest based livelihoods of the adivasis communities by granting access and also placing a responsibility for conservation upon the community has never been whole heartedly accepted. In Chhattisgarh we are even seeing an unheard of process of cancellation of IFR and CFR pattas for purposes of mining, for which there exists no provision in the Act apart from by legal eviction under due process of law. Challenges to such illegalities have also yet to be decided by the Chhattisgarh High Court. A couple of years ago about 60 Gram Sabhas in the Gadchiroli district of Maharashtra had become a model by conducting auctions of bamboo and tendu leaves themselves, thus determining rates, disbursing better wages and bonuses and carrying out developmental work in their villages by deciding the priorities democratically themselves. This could indeed have been a sustainable and democratic scheme of development in the Scheduled Areas. However this year the State Forest Produce Corporation conspired with contractors to boycott the auctions, and of course foisting village leaders or activists in these areas with allegations of Maoist links is a readily available device for suppression.
What is not adequately appreciated is that the real contestation in the forests now is no longer between the tribal people and the Forest Department. It is with the mining interests. Not much attention has been paid to the sweeping changes that have been occurring in the legal framework of mining in the country in the past decade, even more rapidly since the Supreme Court cancelled in 2014 hundreds of coal mining leases granted to private companies, on the grounds of their having been allotted as largesse. In the field of coal mining the transition from the nationalization of coal mines and the consequent public sector monopoly of mining to the allocation of coal blocks to private companies for “captive mining” to supply their power plants was a big leap; but the recent policy change from captive coal mining to commercial mining of coal has been an even larger leap opening the flood gates to private and foreign mining interests on a “dig and sell” basis. This is seriously threatening our forests, our environment, the sustainability of our development, and our non-replenishable mineral reserves which we are committed to preserve for our future generations. The shift from granting mining leases to private miners which demanded certain accountability from the applicant for a lease – be it a maximum area of lease, a commitment to reveal information from reconnaissance, or the written consent of the owner and occupier of the land – to a system of auction through the Coal Mines Special Provisions Act, 2014 may appear more “transparent” but it essentially means that money will determine all and the other social restraints are dispensable. The system of auctions will now extend to all “notified minerals” and when we observe that these now include iron ore, bauxite and limestone – the opening up of the mining sector to indiscriminate mining becomes complete. Naturally the first in the line of fire are the adivasis and forest dwelling communities.
It is onto this complex stage that the 2013 Act has made its entrance. The Act itself was the product of widespread agitations all over the country by farmers resisting acquisitions of their lands under the colonial Land Acquisition Act, 1894. The vagueness of public purpose and its consistent manipulation to serve private interest, the lack of consultation with the affected people, the paltry compensation, the absence of any other relief than monetary value, the exclusion of other sections of the agricultural community who were dependent on the land but were not owners, and the rampant use of urgency provisions were some of the contentious legal provisions that underlay the agitations. From the Raigad SEZ in Maharashtra, to Dadri in UP, Jagatsinghpur (POSCO) in Odisha to Singur and Nandigram in West Bengal, from Koodankulam in Tamilnadu to the Narmada valley in Madhya Pradesh, hundreds of land conflicts arose all over the country. The Narmada Bachao Andolan which was a movement that engaged the most consistently with the legal process was ultimately let down when the Supreme Court moved from a position of “rehabilitation at least a year before dispossession” to “resettlement pari passu” and finally a refusal to intervene with the closing of the gates of the Sardar Sarovar Dam even as the Madhya Pradesh Government admitted its inability to rehabilitate the affected. The NBA however did come out with a draft Bill which dealt with displacement and rehabilitation not in isolation but as a part of the exercise of determining land use consistent with food security and public purpose, thus initiating the exercise of replacing the 1894 Act with a new one.
While the 2013 Act has expanded public purpose to virtually all kinds of industrial activity and is far from perfect from the farmers point of view, it still has introduced very significant provisions including:-
- Introducing a concept of consent in cases of acquisition for private public partnerships or for private companies;
- Expanding the definition of affected persons beyond the mere land owners to those dependent upon the land for livelihood;
- Introducing the concept of a social impact assessment to consider all aspects of an acquisition including public purpose and including not only local bodies but all affected persons through a public hearing;
- Introducing a limit to the extent of agricultural land that can be acquired based on preservation of food security;
- Significantly increasing monetary compensation;
- Including rehabilitation and resettlement to be determined in advance through public consultation, including the amenities that require to be available at a resettlement site;
- Return of unused land to the land owner; and
- Making the urgency clause more specific to prevent misuse.
Let us look specifically at the provisions made for the tribal people.
- Section 2 states that:
“Provided also that no land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law (including any order or judgment of a court which has become final) relating to land transfer prevailing in such Scheduled Areas.”
(In other words there is a specific provision assuring that acquisition does not override any other pro-adivasi land law in force.)
In defining who are the affected persons
- Section 3(c) of the RFCTLARR Act which defines an affected family includes
“(iii) the Scheduled Tribes and other traditional forest dwellers who have lost any of their forest rights recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 due to acquisition of land”
- Section 3(r) of the RFCTLARR Act which defines a land owner includes:
“(ii) any person who is granted forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)Act,2006 2of2007 or under any other law for the time being in force”
- Section 3 (x) of the RFCTLARR Act which defines a person interested includes:
“(ii) the Scheduled Tribes and other traditional forest dwellers, who have lost any forest rights recognised under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006”
(In this manner, the loss of community as well as individual forest rights as recognized by the Forest Rights Act, become liable for compensation, rehabilitation and resettlement.)
- Section 16(5) of the RFCTLARR Act provides for a public hearing regarding rehabilitation and resettlement and specifies that:
“Provided further that the consultation with the Gram Sabha in Scheduled Areas shall be in accordance with the provisions of the provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996.”
- Section 31(k) of the RFCLARR Act specifies that the Rehabilitation and Resettlement Award must contain:
“(k) particulars of special provisions for the Scheduled Castes and the Scheduled Tribes to be provided.”
- Most importantly Section 41 of the 2013 Act:-
- 41. (1) As far as possible, no acquisition of land shall be made in the Scheduled Areas.
(2) Where such acquisition does take place it shall be done only as a demonstrable last resort.
(3) In case of acquisition or alienation of any land in the Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils, at the appropriate level in Scheduled Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained in all cases of land acquisition in such areas, including acquisition in case of urgency, before issue of a notification under this Act, or any other Central Act or a State Act for the time being in force.
Provided that the consent of the Panchayats or the Autonomous Districts Councils shall be obtained in cases where the Gram Sabha does not exist or has not been constituted.
(It is pertinent that the language of the 2013 Act is of consent and not of consultation thus in a way consistent with the Free Prior Informed Consent mandated under the UN Declaration of Rights for Indigenous Peoples. It is interesting that India has signed the UNDRIP but does not accept any tribal group as indigenous people. The reason for this is most likely the reluctance to accept the territorial rights of any tribe, or that the tribal people have been subject to any “internal colonization” even post independence as many tribal leaders allege.)
- 41(4) ln case of a project involving land acquisition on behalf of a Requiring Body which involves involuntary displacement of the Scheduled Castes or the Scheduled Tribes families, a Development Plan shall be prepared in such form as may be prescribed laying down the details of procedure for settling land rights due, but not settled and restoring titles of the Scheduled Tribes as well as the Scheduled Castes on the alienated land by undertaking a special drive together with land acquisition.
(This provision specifically speaks of settling forest rights not yet settled, and of restoring alienated land, so that the ultimate beneficiaries of the compensation, rehabilitation and resettlement are the tribal people themselves.)
- 41(6) ln case of land being acquired from the members of the Scheduled Castes or the Scheduled Tribes, at least one-third of the compensation amount due shall be paid to the affected families initially as first instalment and the rest shall be paid after taking over of the possession of the land.
- 41(7) The affected families of the Scheduled Tribes shall be resettled preferably in the same Scheduled Area in a compact block so that they can retain their ethnic, linguistic and cultural identity.
- 41(9) Any alienation of tribal lands or lands belonging to members of the Scheduled Castes in disregard of the laws and regulations for the time being in force shall be treated as null and void and in the case of acquisition of such lands, the rehabilitation and resettlement benefits shall be made available to the original tribal land owners or land owners belonging to the Scheduled Castes.
- 41(10) The affected Scheduled Tribes. other traditional forest dwellers and the Scheduled Castes having fishing rights in a river or pond or dam in the affected area shall be given fishing rights in the reservoir area of the irrigation or hydel projects.
- 41( 11) Where the affected families belonging to the Scheduled Castes and the Scheduled Tribes are relocated outside of the district then they shall be paid an additional twenty-five per cent rehabilitation and resettlement benefits to which they are entitled in monetary terms along with a one-time entitlement of fifty thousand rupees
- 42. (l) All benefits, including the reservation benefits available to the Scheduled Tribes and the Scheduled Castes in the affected areas shall continue in the resettlement area.
(2) Whenever the affected families belonging to the Scheduled Tribes who are residing in the Scheduled Areas referred to in the Fifth Schedule or the tribal areas referred to in the Sixth Schedule to the Constitution are relocated outside those areas, than, all the statutory safeguards, entitlements and benefits being enjoyed by them under this Act shall be extended to the area to which they are resettled regardless of whether the resettlement area is a Scheduled Area referred to in the said Fifth Schedule or a tribal area referred to in the said Sixth Schedule or not.
(This is also very important as tribes included in the ST category in one state or sometimes in one district may not recognized as an ST in another state or district.)
- Section 45(2) of the RFCTLARR Act lays down that the Rehabilitation and Resettlement Committee shall contain:
“(r) a representative each of the Scheduled Castes and the Scheduled Tribes residing in the affected area.”
- The Second Schedule of the RFCTLARR Act specifies
- Each affected family which is displaced from the land acquired shall be given a monthly subsistence allowance equivalent to three thousand rupees per month for a period of one year from the date of award.
- ln addition to this amount, the Scheduled Castes and the Scheduled Tribes displaced from Scheduled Areas shall receive an amount equivalent to fifty thousand rupees.
- Where the community rights have been settled under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 the same shall be quantified in monetary amount and be paid to the individual concerned who has been displaced due to the acquisition of land in proportion with his share in such community rights.
(Here the important notion of compensating income accruing from access to community forests has at least been theoretically included though standardizing such an exercise would be a challenging task.)
Thus it is fairly clear that the 2013 Act has indeed included many provisions to ensure the proper recognition of forest rights including community rights, to ensure consent of the Gram Sabha, to ensure that the compensation reaches the adivasi land and not any land broker, to ensure that if livelihood is possible from the project (such as fishing rights in a dam) they be provided to the tribal families and finally to ensure that they do not lose their rights as tribal people even at the resettlement site. Most importantly since Section 41 falls in the Chapter of the Act dealing with the passing of the Award, and Section 45 in the Chapter on Rehabilitation and Resettlement, then these provisions must also, as part of the provisions dealing with compensation and rehabilitation be applicable to those Acts that have been exempted under the Schedule of the Act from the other provisions. The Coal Bearing Areas Act, 1957is one such Act. If indeed the 2013 Act is implemented in letter and spirit, the tribal people may hope to at least be compensated and rehabilitated more fairly and justly, than they have in acquisitions so far.
However, the experience since 1st January 2014 when the 2013 Act came into force has been disappointing. Ordinances were promulgated thrice in an effort to do away with social impact assessment and provisions for food security in “social infrastructure projects” (vaguely worded enough to include all projects that the Union/ State governments would choose to push) before finally, just before the Bihar elections, the Bill to amend the 2013 Act was withdrawn. But what could not be done directly has now been done indirectly in many states. This includes Rajasthan, Tamil Nadu, Andhra Pradesh and most shockingly Jharkhand. The amended State Acts are basically cut paste versions of the amended Central Act that was sought to be brought about by the Union Government. The State Acts have received the assent of the Governor and then the President thus formally displacing the Central Act in the jurisdiction of their respective states. Such mechanical assent being accorded also needs to be questioned. Ordinarily when a Union legislation occupies the field, a State legislation can be allowed to displace it only when such State legislation carries out the aims and objectives of the Union legislation even better than the latter. The 2013 Act is preceded by a very long preamble which lays out at length the reasons why it was necessitated. It has described the need for the social impact assessment and the injustices that resulted from the old colonial legislation that led to this new one. Clearly a State Act whose declared aim is to dilute the provisions of an Act passed by the Parliament can by no stretch of imagination be construed to be furthering its aims and objectives even better than the original Act. Clearly the battle for implementation of the 2013 Act is far from over.
Recently a new phenomenon called “Pathalgadi” has gained popularity in the tribal areas, particularly in the states of Jharkhand, Odisha and Chhattisgarh where tribal villages are demarcating their village boundaries and erecting stone pillars with the provisions of the 5th Schedule, PESA, FRA etc engraved on the same. They are demanding that all project proponents and administrative officers seek the permission of the Gram Sabha to enter the village. While the legality of such a demand could be debated, the spirit of it is not difficult to understand. The devastation that mining is causing – deforestation, pollution, lowering of ground water levels, and the displacement of wild animals especially elephants is only too obvious. Elephant herds that find their normal migratory routes broken up by mines, railway lines and highways are entering villages, destroying crops and attacking human beings. Almost every other day deaths are being reported from Jashpur, Sarguja and Raigarh districts of Chhattisgarh. On the other hand the mining, acquisition and displacement continues unabated. But the State Governments of Jharkhand and Chhattisgarh have come down on the “Pathalgadi” movements with a viciousness that is exceptional and disproportionate, alleging association with Maoists in one area, with opium trade in another, and strangely enough with conversions by Christian missionaries in a third.
There is a crisis in the tribal areas. We have the legal framework to address it – the Fifth and Sixth Schedule; PESA (and MESA); the Forest Rights Act and now the 2013 Act. The point is to have the political will to implement it.