Violation of scheduled area land transfer regulations and tribal protections

The Telangana State Government has introduced changes in the Record of Rights and initiated the digitization of land records, which threatens the protections afforded to tribals under existing laws. Previously, the Governor promulgated the Andhra Pradesh Scheduled Areas Land Transfer Regulation of 1959 (Regulation I of 1959), amended by Regulation I of 1970, which prohibits the transfer of land to non-tribals in Scheduled Areas. After the bifurcation of Andhra Pradesh, these regulations were adopted by the State of Telangana.

The Koneru Ranga Rao Land Committee, constituted in 2004, highlighted the illegitimacy of landholdings by non-tribals in Scheduled Areas, including government lands and other tenures. The committee found that approximately 15,000 acres of land in the Bhadrachalam agency area were held by non-tribals under an invalid Government Order (No. 41) with a valuation of ₹75 crores as of 2004.

The committee also raised concerns about Utnoor Mandal in the erstwhile Adilabad District, where around 21,062 acres of land were recorded under old pattas held by non-tribals prior to 1950. The authorities were directed to verify whether the non-tribals had obtained the Collector’s permission to hold such lands; if not, the lands were to be canceled and assigned to tribals.

Additionally, the committee instructed a review of settlement orders favoring non-tribals, recommending that appeals be filed against any settlement patta issued in contravention of the Land Transfer Regulations (LTR). The Government of Andhra Pradesh issued G.O. Ms. No. 68, affirming that LTR 1 of 1959, as amended by 1 of 1970, takes precedence over Settlement Regulations, rendering any settlement patta granted to non-tribals null and void. However, the Telangana authorities have failed to take action to file appeals against fraudulent settlement pattas obtained by non-tribals in Scheduled Areas.

Non-Tribal eviction and redistribution of land

The committee recommended the eviction of non-tribals from cultivable land in uninhabited or deserted villages, with the land being reallocated to tribals. It also emphasized the need to survey the Billa Number (un surveyed) lands in Kothaguda, erstwhile Warangal District, where approximately 21,000 acres are held by both tribals and non-tribals. Revenue authorities were directed to evict non-tribals from these illegal occupations. Furthermore, the committee called for the takeover of Farari Patta lands from non-tribal occupation under LTR provisions.

Regularization of illlegal land holdings through Sada Bainama

Since 2016, Telangana has been regularizing land transfers based on ‘Sada Bainama’ (transfers executed on unregistered plain papers). This process has increased the regularization of illegal landholdings by non-tribals, who produce backdated documents to evade the Land Transfer Regulations.

Although Section 5(2) of the Bill, 2024, stipulates that the regularization of unregistered land transactions must comply with the Land Transfer Regulations (LTR) of 1959, the Bill also validates decisions made by revenue officials under the Telangana Rights in Land Pattadar Pass Books Act, 2000.

In 2004, the Koneru Rangarao Land Committee recommended that unregistered deeds predating the LTR should be inadmissible as evidence for establishing a non-tribal’s right to land in Scheduled Areas. Accordingly, in 2008, the government issued a memo stating that Sada Bainamas produced by non-tribals should not be considered valid.

In Vemula Bhaskara Rao v. State of Andhra Pradesh (2008), the Andhra Pradesh High Court ruled that unregistered sale papers cannot be considered valid when examining tribal rights under the LTR.

Contradictions within the Bill 2024

The Bill, 2024, exempts lands assigned, allotted, or alienated by the State from provisions concerning the record of rights and the registration of land transactions, raising significant concerns. Furthermore, the Bill validates pattadar pass books issued under the 2020 Act, introduced by the previous Bharat Rashtra Samithi(BRS) Government. The Andhra Pradesh High Court has ruled that the LTR takes precedence over the Record of Rights Acts, clarifying that non-tribals are not protected under these Acts in the context of LTR inquiries.

Ignoring PESA regulations and tribal gram sabhas

According to the Panchayats Extension to Scheduled Areas (PESA) Rules of 2011, all land transfers must be reviewed by the PESA-notified Gram Sabha to ensure accurate land entries in the record of rights. The Bill, 2024, undermines the role of the Gram Sabha in this process.

The Bill’s presumptive value assigned to land entries is inconsistent with the LTR 1 of 1970, which stipulates that lands occupied by non-tribals in Scheduled Areas are presumed to have been acquired through illegal transfers from tribals unless proven otherwise.

Additionally, the Bill introduces provisions from the Civil Procedure Code (CPC) of 1908 for inquiries by appellate and revision authorities, although the CPC does not apply to Scheduled Areas, where Agency Rules, 1924, for civil dispute adjudication are in force.

Empowering tahsildars and undermining LTR

The Bill empowers Tahsildars to act as Registrars for land transactions and to implement mutations of land records. This contradicts the provisions of the Land Transfer Rules 1980, which prescribes a separate procedure for registering documents involving land transfers in Scheduled Areas and imposes restrictions on Registering Officers under the Registration Act, 1908. Under the LTR, permission from the Agent to the Government or District Collector is essential for registering land transactions in Scheduled Areas.

Immunity for revenue officials

The Bill 2024 provides immunity to revenue authorities from civil and criminal liability for errors in recording rights and registering land transactions. This is in stark contrast to the Telangana Rights in Land and Pattadar Pass Books Act 2020 ,which included penal measures, such as dismissal from service and criminal proceedings against erring officials.

Despite existing government orders, the enforcement authorities have failed to implement them. Successive governments continue to introduce Record of Rights legislation that disregards tribal protection laws, facilitating the legalization of illegal landholdings by non-tribals in Scheduled Areas.

Call for Review and Amendment of the Bill

It is imperative that the Telangana State Government reviews the provisions of the Telangana Record of Rights Bill, 2024, and aligns it with the Land Transfer Regulations 1 of 1970, the PESA Act, 1996, and the Telangana PESA Rules, 2011. The government should also ensure that its decisions follow the recommendations of the Koneru Ranga Rao Land Committee and previously issued government orders to protect tribal land rights.

Courtesy: CounterView

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The declaration was passed by women delegates to “I too am Rani Chennamma”, an event held to celebrate the 200th anniversary of Rani Chennamma’s victory over the British in the first Kittur war in 1824.

“The Kittur Declaration is a promise to highlight the atrocities, injustice, repression and the tyranny of this regime. The last decade has seen an unprecedented erosion of our democratic institutions,” said women’s rights advocate Varsha Deshpande who read out the declaration.

“In every aspect of our lives, our rights have been diluted. Our Parliament and our judiciary have been weakened; the social fabric torn asunder; our economy shattered; our education system and health system corporatised and privatised; our farmers betrayed; our lands snatched away; new labour laws deny the rights of the workers; our women have been attacked and assaulted; our children are malnourished; the LGBTQIA are under intense pressure; and at the same time the powers of the ruling classes, have increased and the people are being silenced by the use of force,” she said.

“Women cannot remain mute spectators to these threats to our democracy, freedom, and the Constitution. This declaration is a call to all women in the country to speak up, to come out on the roads and march for our dignity and our rights,” Shabnam Hashmi, activist, said. She said that the Kittur Declaration was translated into 10 Indian languages and would be taken to every part of the country by the women activists,” she said. She said that efforts will be made to create awareness about Rani Chennamma and other women freedom fighters in other parts of India.

Organised by over 75 women organisations and networks from all over India, the rally started from Rani Chennamma’s statue and culminated at the Kittur Fort. Over 3500 women with colourful placards and flags walked shouting slogans and singing in various languages. It was led by two jyotis which were brought from villages: Kakati by Rohini Patil (Rani Chennamma’s birth place), Nandgarh by Gangadhar (where Sangolli Rayanna, a senior commander in the military of the princely state of Kittur was executed by hanging by the British) . National flag was brought from Garag. The hand-woven khadi for the National Flag was initially manufactured at Garag, a small village in Dharwad district. A center was established at Garag in 1954 by a few freedom fighters under the banner of Dharwad Taluk Kshetriya Seva Sangh and obtained the Centre’s license to make flags and still it is the only place in India where hand woven Indian national flags are made.

After reaching the Kittur Fort, an exhibition- When Women Rise: A Tribute to India’s Freedom Fighters in English and Kannada language was inaugurated by GB Patil and Malti Pattanshetty. The Kannada text has been provided and edited by by Dr. Sabiha Bhumigowda, Dr. HS Anupama, Saraswati, Dr Jalajakshi, Indira Kishanappa, Na Divakar, Dr Sunandamma R, Sarovar Benkikeri, Manavi Kaup.

The public programme had speeches by various well known academics, activists, writers and performances by various groups. Those who spoke included:

K.Neela, Dr H.S. Anupama, K.Sharifa, Annie Raja, Adv BanuMushtaq, Shailaja Hiremath, Ruth Manorama, Megha Pansare, Abhirami J, Shabnam Hashmi, Kavita Reddy, Mallappa Kumgar, Comrade Bijimol, Rati Rao, Noorjahan Diwan, Meera Sangamitra, Anausuyamma B, Dr. S.R.Hiremath, Yashoda P, Rohini Patil, Sunandamma R, Prof Y.B.Himmadi, Sushila Mysore, Dr. A.R.Vasavi, Shankar Halagatti, Madhu Bhushan, Saraswati, Shantala Damle, Indira Krishnappa, Susheela (Belagavi), Linnet D’Souza gave vote of thanks.

Neela, activist, said that the declaration urged women of the country to speak up about issues like injustice, malnutrition, inflation, unemployment and poverty, demand accountability and fiscal responsibility from the government, insist on safety of women and seek punitive action against the perpetrators. We should raise our voice to protect our land, our water and our resources, stand up for our fundamental rights of freedom of speech, expression, worship and citizenship and importantly, our right to constitutional remedies to enforce these fundamental rights. This is a march for dignity, livelihood and resources. We need to use our power to influence and our right to vote to choose our representatives wisely and recognise their power to influence change and seek to preserve our diversity, our democracy and our country, she said.

The declaration was drafted by a committee comprising of 20 women representing various networks and groups. A team led by Biraj Bose and Shubha Shankar finalised the declaration.

It was translated into many languages by Bijimol and Hari, Victor Raj, Sharada Gopal and Akhila Vidyasandra, NAPM Satheesh, Shyam shree, Meena, Ritu Kaushik, Lata Bhise, Mohammed Mubashiruddin, and volunteers of ANHAD and North Eastern Network.

A campaign song written by Gauhar Raza was released on the occasion. It is sung and composed by Nazneen Shaikh from Maharshtra and recorded, and music arranged by Vaibhav Bhat at Nisarga studio, Dharwad. The Karnataka State campaign song was written by Janaradhana Kesaragadde and composed by Mysuru Jenny and sung by Mamatha.

An audio-visual biography of Rani Chennamma called `The Feisty Rani Chennamma’ was released.

Several cultural groups performed at the event: Ramu Mulgi, Pramila Jakkannavar, Veeranna Gowda Siddapura, Bhimanna Gowda Katavi, Dr Sharifa LRBudihara, Dr. Isabella S Xavier, Nasreen Shaikh, Maya Rao, Mahadevi, Sumitra, Mahananda, Rukmini, Susheela, Suvarna, Basavaraja, Fakirappa, Prema, Akasha, Khairunnisa, Girija Shekki, Asha Syed, Vijaya Daduki, Indira Jakathi, Vidya Desai, Jayshree Hulabutti, Neela Shigli, Vishveshwari Hiremata.

The highlight of the day-long event at Kittur Fort was the release of a Declaration. Together, the assembly of women pledged to defend our land, our people, our dignity and our livelihood. They dedicated themselves to secure the rights as enshrined in the Constitution, committed themselves to preserve our social fabric and restore communal harmony and to stand up for their rights and Reclaim India!

Women declared their protest against the autocratic regime in power!

The Kittur Declaration is a promise to highlight the atrocities, the injustice, the repression and the tyranny of this regime. Women said that the last decade has seen an unprecedented erosion of our democratic institutions. The Kittur Declarations, a fairly long document underlines:

“In every aspect of our lives our rights have been diluted. Our Parliament and our judiciary have been weakened; the tana-bana of our social fabric torn asunder; our economy shattered; our education system and health system corporatised and privatised; Our farmers betrayed; Our lands snatched away; New labour laws deny the rights of the workers; Our women have been attacked and assaulted; our children are malnourished; the LGBTQIA are under intense pressure; and at the same time … State powers have increased and the people silenced!

Should we women remain mute spectators to these threats to our democracy, our freedom, our Constitution?

This Declaration is a call to all women in the country to speak up; to come out on the roads and march for our dignity; our rights! The pledge that we take today and the Kittur Declaration has been translated into ten regional languages and will be taken to every part of the country by the women activists gathered here.

We urge the women of the country to:

• Speak up and talk about the injustices!
• Talk about the malnutrition and the hunger that our children are facing!
• Highlight the rising prices, the unemployment and the poverty!
• Demand accountability and fiscal responsibility from this government!
• Insist on safety of women! And punitive action against the perpetrators of sexual assaults and rapes!
• Raise our voices to protect our land, our water and our resources!
• Stand up for our fundamental rights of freedom of speech, expression, worship and citizenship. And most importantly our right to constitutional remedies to enforce these fundamental rights!
• March for dignity, livelihood, and resources!
• Use our power to influence and our right to vote to choose our representatives wisely.
• Recognise their power to influence change and seek to preserve our diversity, our democracy and our country!

Using the traditional Indian way of our Freedom Movement, let us unite and vociferously voice our dissent … Non-violently!

Jyot se jyot jalao, let usfight the darkness and light up our lives!

It is time to RISE, RESIST and RECLAIM! “

A drafting committee was set up to draft the Kittur Declaration comprising of 20 women representing various women networks and groups. After a thorough discussion Biraj Bose with support from Shubha Shankar wrote and finalised the declaration.

The Kittur Declaration has been already translated into many languages by the following : Malayalam: Bijimol and Hari, Tamil : Victor Raj, Kannada : Sharada Gopal & Akhila Vidyasandra, Telegu: NAPM sathees, Bengali: Shyam shree , Oriya: Meena , Gujarati : Anhad team, Hindi : Ritu Kaushik, Marathi : Lata Bhise, Urdu : Mohammed Mubashiruddin, Assamese : North Eastern Network

The National Campaign I Too Am Rani Chennamma’s campaign song was released on the occasion. The song has been written by well-known scientist, poets Gauhar Raza from Delhi, sung and composed by Nazneen Shaikh from Dhule, Maharshtra and recorded, and music arranged by Vaibhav Bhat at Nisarga studio, Dharwad.

Karnataka state campaign song was written by Janaradhana Kesaragadde and composed by Mysuru Jenny (Janaradhana) and sung by Mamatha.

A two minute audio-visual biography of Rani Chennamma called The Feisty Rani Chennamma was also released online to popularise the story of Rani Chennamma amongst urban youth. The credits for it are as follows: Voice Over – Saba Azad, Sound artist- Samar Grewal, Animation: Tony Peter, Script: Pankaj H Gupta & Lina Krishnan, Design- Pervez

The program at the Kittur Fort was attended by over 4000 women and men. They came from all districts of Karnataka and Delhi, Kerala, Tamil Nadu, Andhra Pradesh, Telangana, Rajasthan, Gujarat, Maharashtra, Kashmir, Bihar, Goa and Pondicherry, UP and other states.

The program was compared by Shrimati Akhila Vidyasandra, women rights activist from Karnataka Rajya Mahila Dourjanya Virodhi Okkuta and social activist Leena Dabiru from Anhad, Delhi. Daisy, Subhadra, Prabhavathi, Dilip Kamath, Susheela, Sharadha Gopal, Faimada, Annapurna, Prernaa, Vaishali, Shankar Halagatti, Ladai Basu put in immense efforts to mobilize people from the field.

The idea is to commemorate 200 years of Rani Chennamma’s revolt was Initiated by Anhad and then shared with NFIW and Karnataka Rajya Mahila Dourjanya Virodhi Okkuta. Within a short time a large number of women’s groups and independent citizens joined hands to commemorate 200 years of this revolt against oppression and to carry forward the legacy of struggle for women’s equality, equal and appropriate political representation, social justice and an equal society. Women came from all corners of India to preserve our democracy, constitution and to eradicate hatred and promote love.

Kittur Rani Chennamma was one of the first women to lead a revolt against British rule in India. A fearless warrior, she stands tall as a symbol of resistance, embodying a love for freedom and self-respect, against the British rule.

This year 2024 marks 200 of her revolt against British Imperialism in 1824.

The launch at Kittur will be followed by similar programs across India in various state capitals and the declaration will be distributed across India through the women networks in local languages.

The following groups came together to organise the program:

AICU- Gender Equality & Inclusion, AIDMAM, AIDWA, AIMSS, AIPWA, All India Feminist Alliance, All India Secular Forum, Alliance for Feminist Collective, Karnataka, AMR Sankalpa Sanjeevini Sansthe, ANHAD, Anti Dowri Forum, Avala Hejje, AWAG, Gujarat, Bahutva Karnataka, Belagavi Pragatipara Sanghatanegala Horata Samiti, Bharatiya Sanskruti Foundation, Belagavi, Bhartiya Muslim Mahila Andolan, Citizens for Justice and Peace (CJP), Dalitha Sangathane, Dalitha Sangharsha Samithi , Deen Bandhu Samaj Sahyog Samiti, Indore, Domestic Workers Rights Union, Dr Rama Monohara Lohia Samatha Vidyalaya, Dwani Mahila Okkutta, Eddelu Karnataka (Wake UP Karnataka), EkalNari Shakti Manch, Gujarat, Federation of Indian Rationalist Association (FIRA), Gamana Mahila Samsthe, Hashmi Theatre Forum, ICWM, Iek Ladki Abhiyan, Maharashtra, INSAF, IPTA, Jagruta Mahila Okkuta, Jan Pehel, Madhya Pradesh, Jeevika-Jeeta Vimukti Karnataka, Justice Coalition of Religious- West India, Kanasu Kishori Sanghathane, Karnataka CRI, Karnataka Rajya Mahila Dourjanya Virodhi Okkuta, Karnataka Rajya Raitha Sangha, Karnataka Sexual Minorities Forum, Karnataka State Government Women Employees Association, Karnataka State Intersex-Gender & Sexuality Minorities Coalition for Convergence, Karnataka with Bilkis, Madhya Pradesh Nav Nirman Manch, Mahila Munnade, Maldhari Mahila Vikas Sangathan, Gujarat, Manava Mantapa, MKSS, Muslim Women’s Forum, National Alliance of People’s Movements (NAPM), Nava Sanidhya Centre for Integral Social Action, Naveddu Nilladiddare, NCDHR, NFIW, North Eastern Network (NEN), Pehchan, People’s Movement for Good Governance, Rashtra Seva Dal, Roshni, Chennai, Saadhana Mahilaa Sangha, Saajhi Duniya, Sadhana HUMAN Rights Center, Dharwad, Karnataka, SamataVedike (Progressive Women’s Forum), Savtribai Phule Fatima Shaikh Gharelu Kamgar Mahila Sangathan, Bhopal, SC ST Monitoring & Strengthening Committee, Shoshitha Samudayagala Sangathane, SnehaMahilaSangha, Bangalore, Souharda Bharatha, SPS (Samaja Parivarthana Samudaya, Dharwada), Stree Jagruti Samiti, Van Panchayat Sangharsh Morcha, Uttrakhand, Vimochana, Visthar, Women’s Voice.

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Determining Scheduled Areas under the Fifth Schedule of Article 244 of the Constitution has been left largely to administrative and political interpretations. Mired in ambiguities, most often adverse, this resulted in the denial of what this constitutional provision potentially could offer the Scheduled Tribes. About sixty percent of the Scheduled Tribes are unjustly denied and kept out of the purview of this constitutional provision. Judicial pronouncements and laws such as the Provisions of the Panchayats (Extension to Scheduled Areas) Act 1996 and the Forest Rights Act 2006 clarify many of the ambiguities. These and more are attempted to be linked up here as an update to set clear well-defined tasks to address this long-standing unfinished agenda.

Introduction

Scheduled Tribe (ST) communities constitute 8.6% of the total population. STs constitute a majority in 110 districts out of 640 districts in the country, 20 to 50 % in 87 districts and 10 to 20 % in another 74 districts. Of the 5,97,483 villages, STs are a majority in 1,10,118 villages, 20 to 50 % in 45,902 villages and 10 to 20 % in another 29,800 villages (MoTA 2013).

Scheduled Areas have been notified vide Para 6 (1) of the Fifth Schedule to the Constitution in 10 States viz. Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra and Himachal Pradesh. They cover some 11.3 % of the total land area of the country (Wahi 2018:28). Of the 640 administrative districts, 104 districts have Scheduled Areas; 45 districts are fully notified and 63 are partially notified. They cover 77,564 villages of 22,040 panchayats in 664 blocks (MoPR 2023). These Scheduled Areas have 5.7 % of the country’s total population and 35.2 % of ST population. About 53 % of the total population in the Scheduled Areas are STs (Wahi 2018).

There are numerous ST habitations across the country that are not notified as Scheduled Areas. These STs are denied the constitutional rights and empowerment under Article 244 and the provisions in various laws as are applicable to the Scheduled Area such as the Provisions of the Panchayats (Extension to Scheduled Area) Act 1996 (PESA), 1 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20132, and where ‘local bodies’ are empowered as the Biological Diversity Act, 20023  and the related court orders.

There have been several sustained demands and campaigns from Adivasi (tribal) organisations to the concerned State governments for inclusion of the villages left out in the 10 States that have Scheduled Areas, and from other States that have ST populations, both large and small, but no Scheduled Area. The Bhuria Committee which was constituted to recommend provisions for the extension of panchayat raj to the Scheduled Areas had recommended to this effect. There have been a few positive initiatives from the State governments and fewer still have fructified. These tardy responses have often been explained away primarily with the argument that the demands and proposals do not consist of viable ST majority administrative units that may be considered eligible for notifying as Scheduled Areas. Parallel to this are the demands, both surreptitious and open, to denotify existing areas within Scheduled Areas. These demands have been made using the very same argument that several administrative units in existing Scheduled Areas no longer hold Scheduled Tribe majorities.

The legal basis for notifying Scheduled Area as to who can decide and what constitutes a Scheduled Area is examined here in order to determine whether the demands for inclusion of more areas as Scheduled Area and its reorganisiation, and exclusion of certain areas from Scheduled Areas are compatible with the law.

Who decides the area to be notified as Scheduled Area?

Article 244 (1) of the Constitution of India provides for the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) in accordance with the provisions of the Fifth Schedule. ‘Scheduled Areas’ in Para 6 (1) of the Fifth Schedule to the Constitution means such areas as the President may by order declare to be Scheduled Areas. The Constitution does not provide any norm defining the administrative unit that ought to be the basis for declaration of Scheduled Area. The minimum percentage of ST population that must be contained in such area and a cut-off date for this are also not prescribed under Article 244, or in any law.

Further, Para 6 (2) of the Fifth Schedule confers powers exclusively on the President to declare any area as Scheduled Area. The Andhra High Court concluded that ‘neither the Executive Government nor the State Legislature, much less this Court, can declare an area to be a Scheduled Area’. Para 6 does not impose any limitation or restriction on the power of the President as to which areas are to be included or excluded in the Scheduled Area. This power is absolute and left to the discretion of the President. Therefore, the decision regarding the areas which are to form Scheduled Areas is not open to question or judicial scrutiny.

The Fifth Schedule unambiguously states that: ‘The President may at any time by order —

(a) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;

(aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;

(b) alter, but only by way of rectification of boundaries, any Scheduled Area;

(c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;

(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas’.

The Supreme Court has held that ‘the identification of Scheduled Areas is an executive function and we do not possess the expertise needed to scrutinize the empirical basis of the same,’ that ‘there has been a considerable influx of non-tribal population in some of the Scheduled Areas’ and ‘that persons belonging to the Scheduled Tribes should occupy at least half of the seats in Panchayats located in Scheduled Areas, irrespective of whether the ST population was in a relative minority in the concerned area’.

A  Public Interest Litigation challenging the 2007 notification declaring the Scheduled Area in Jharkhand on the ground that the percentage of ST population is less than 50 % in some blocks was dismissed by the Jharkhand High Court observing that the declaration of Scheduled Area ‘being within the exclusive discretion of the President neither violates any constitutional provisions, nor is the exercise of power has been done on extraneous considerations so as to be amenable to judicial scrutiny’.

The criteria for determining Scheduled Areas

The 1961 Dhebar Commission Report (GoI 1961) suggested four criteria for declaring new areas as Scheduled Area. They are:

(a) the preponderance of tribal population,

(b) compactness and reasonable size of the area,

(c) under-developed nature of the area and

(d) marked disparity in the economic standard of the tribals living in the areas.

The Ministry of Tribal Affairs largely agreed to the above recommendations9 which have generally been used for declaring Scheduled Area resulting in the Constitutional Orders since 1950 till 2007. All that the above recommendations mean is that the

• STs are to be greater in number, preponderant, not a majority, as compared to other social categories of peoples as the Other Backward Classes (OBC), Scheduled Castes (SC) and the residual ‘Other’ category. and
• that the area proposed should be a viable administrative entity. Therefore, the administrative entity or unit to be considered for scheduling is left to political and administrative decision grounded in social reality.

The Scheduled Areas and Scheduled Tribes Commission 2002 constituted under the Article 339 (1) of the Constitution had recommended that ‘All revenue villages with 40 % and more tribal population according to 1951 census may be considered as Scheduled Area on merit’ (GoI 2004). The Tribal Affairs Ministry communicated this recommendation in 2018 for consideration by the States for declaration of Scheduled Areas.10

The Bhuria Committee in 1995 (MoRD 1995) recognised the face-to-face community in the tribal areas managing its affairs to be the basic unit of the system of self-governance in tribal areas. A hamlet, or a group of hamlets or a village, as the case may be, is the natural unit of the community; this is distinctly different from the administrative units as the revenue village, the Panchayat, Taluk or the District. The Committee observed that the present administrative boundaries were drawn during the British period keeping their administrative convenience in mind. It took no note of the tribal situation in the country. Most of the country’s tribal population is located on the margins of different administrative units.

Moreover, the recommendations of various Government-appointed Committees were to include the remaining Tribal Sub-Plan (TSP) applicable in 21 States and 2 Union Territories with 193 Integrated Tribal Development Projects/ Integrated Tribal Development Agencies, Modified Area Development Approach (MADA) areas numbering 259, as well as similar pockets of 82 clusters, under the Scheduled Areas notification. Most states have ignored this till date.

The ambiguity in deciding on what should be the basic unit for consideration for notifying as Scheduled Area was finally settled when the fundamental administrative unit was defined under the PESA 1996.  PESA defined ‘village’ as: ‘a village shall ordinarily consist of a habitation or a group of habitations, or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs’. Following this, the ‘Gram Sabha’ got defined as ‘consisting of persons whose names are included in the electoral rolls’ of the village thus defined. This radically departs from the definition of the village which is generally the revenue village with a number of habitations, and the Gram Sabha which is at the Gram Panchayat level with a number of revenue villages and numerous habitations, resulting in a totally unwieldly area and population that intrinsically makes such Gram Sabhas non-functional, at best nominal.

The definition of ‘village’ under PESA, 1996 was adopted in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) applicable across the country making their Gram Sabha as the statutory administrative entity with reference to forest. Further FRA requires all ‘forest villages’, whether notified as a village or not, to be treated as ‘village’ in FRA and converted to revenue village. The definition of the village as the habitation or group of habitations as defined in PESA has now expanded its application beyond the Scheduled Area to the forest fringe areas and forest villages inside the forest.

Geographical jurisdiction and compactness of area

The territorial jurisdiction or the geographical limit of the ‘village’ has expanded under FRA to include the ‘Community Forest Resource’ (CFR). CFR is defined as the ‘customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access’ where FRA is applicable. The collective control of the Gram Sabhas and command over the CFR and its resources has now become lawful, although limited to forest land. The traditional or customary boundaries on revenue lands remain to be determined and demarcated by the Gram Sabhas.

Having identified the villages where STs are the major social group, the notion of compactness of the area is generally equated to whether the villages constitute a contiguous area, or are contiguous to existing Scheduled Area, if any. The Constitution does not prescribe that the area that is being scheduled has to be compact and contiguous. Contiguity is not a mandatory criterion adopted for demarcating administrative units. Rather, it is flexible though desirous, contingent on the ground reality. For instance, the Union Territory of Dadra and Nagar Haveli, and Daman and Diu are not contiguous. The Union Territory of Puducherry consists of four small geographically unconnected districts, namely Puducherry and Karaikal (enclaves of Tamilnadu), Mahé (an enclave of Kerala) and Yanam excluding Chandranagar (an enclave of Andhra Pradesh). There are enclaves of non-Autonomous District Council areas within the Tripura Tribal Areas Autonomous District Council Area.

Moreover, by policy recommendations, the Scheduled Area is to be coterminous with Tribal Sub-Plan and MADA areas. Many of these are not contiguous with each other, and to the existing Scheduled Areas in the States that have Scheduled Areas. In effect, contiguity is not a required criterion for notification of Scheduled Area. The Government of Kerala proposed the notification of Scheduled Area in 2015 comprising of 2,133 habitations, also called colonies or oorus, 5 Gram Panchayats and 2 wards which are enclaves in 5 different districts. This proposal is awaiting Union Government approval and Presidential notification. These are not contiguous areas.

Conclusion

The basic building unit of Scheduled Areas that is now well established in law applicable to Scheduled Areas is the ‘village’. A ‘village’ is defined as ‘a habitation or a group of habitations, or a hamlet or a group of hamlets’. All such villages outside of the existing notified Scheduled Areas in any State and UTs, where STs are greater in number as compared to other social categories of peoples as the OBC, SC and the residual ‘Other’, are to be notified as Scheduled Area. This step has to be initiated post-haste as the majority of STs continue to be denied the constitutional rights and empowerment under the Fifth Schedule provisions regarding the administration and control of Scheduled Areas and STs under Article 244 (1) despite the Constitution coming into force in 1950, and the passage of PESA a quarter century ago.

The geographical limit of these villages extend to the Community Forest Resource area in Scheduled Area and outside it as well on forest land under FRA where applicable. Therefore, the Gram Sabhas of the villages in Scheduled Areas should be empowered in law through suitable amendments to the relevant State/Union Territory laws, rules, regulations and manuals to determine and demarcate the geographical limit on revenue lands based on their customary and traditional boundaries. This has to be followed up by redrawing the geographical limits at the Gram Panchayat, Sub-Divisional and District level whether contiguous or not in the Scheduled Area.

The completion of the unfinished task of identifying villages and the area to be covered under the Fifth Schedule by the State and Union governments is a constitutional requirement that ought not to be delayed any further.

(The author examines natural resource conflicts and governance issues)

1     See https://tribal.nic.in/actRules/PESA.pdf

2     See https://www.indiacode.nic.in/handle/123456789/2121?sam_handle=123456789/1362

3     See https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf

4     Andhra High Court, WP Nos. 15688 OF 2011, Mandava Rama Krishna & Seven Ors vs State Of Andhra Pradesh & Eight Ors on 17 April, 2014, https://indiankanoon.org/doc/127746566/

5     Patna High Court, Amarendra Nath Dutta And Ors. vs State Of Bihar And Ors. on 23 December, 1982, AIR 1983 Pat 151, 1983 (31) BLJR 609, https://indiankanoon.org/doc/201364/

6     See https://www.mea.gov.in/Images/pdf1/S5.pdf

7     Supreme Court of India. Union Of India vs Rakesh Kumar & Ors on 12 January, 2010,  Civil Appeal Nos. 484-491 of 2006, https://indiankanoon.org/doc/1356187/

8     Jharkhand High Court. Md.Ashique Ahamed vs Union Of India & Ors. on 10 February, 2016,  W.P. (PIL) No. 689 of 2010, 2016https://indiankanoon.org/doc/1356187/

9     Ministry of Tribal Affairs, Government of India. Criteria for declaring Scheduled Areas, Declaration of Scheduled Areas, https://tribal.nic.in/Clm.aspx

10    Ministry of Tribal Affairs, Letter No. 18016/04/2017-C&LM dated 1 January 2018 on redefining criteria for declaration of Scheduled Areas under Fifth Schedule of the Constitution.

11    See https://tribal.nic.in/downloads/FRA/FRAActnRulesBook.pdf

12   Principal Secretary, SC/ST Development Department, Government of Kerala. Declaration of Scheduled Area, Letter to Ministry of Tribal Affairs, Government of India No. 3432/D1/15/SCSTDD dated 07-04-2015.

13   Land and land revenue are subjects of State list (List II), listed at Sl. No.18 & 45.

References

1. Government of India (GoI) (1961): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 1960- 61, p.63, https://indianculture.gov.in/flipbook/1761
2. GoI (2004): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 2002-2004, p.76, https://ncst.gov.in/sites/default/files/2021/Report/Report.pdf
3. Ministry of Panchayati Raj, Government of India (MoPR) (2023): “Annual Report 2022-23”, p.120, https://panchayatgyan.gov.in/documents/448457/0/Annual+Report+2022-2023+%28English%29.pdf/4b1a9e49-0832-8138-7ab7-f5c8165b1e4b?t=1677130886320
4. MoPR (2023): “State-wise details of notified Fifth Schedule Areas”, https://cdnbbsr.s3waas.gov.in/s316026d60ff9b54410b3435b403afd226/uploads/2023/03/2023032444.pdf
5. Ministry of Rural Development, Government of India (MoRD) (1995): “Report of the Committee of Members of Parliament and Experts Constituted to make Recommendations on Law Concerning Extension of Provisions of the Constitution (Seventy-Third Amendment) Act, 1992 to Scheduled Areas”, https://ncst.nic.in/sites/default/files/2021/Report/Report_1.PDF
6. Ministry of Tribal Affairs, Government of India (MoTA) (2013): “Statistical Profile of Scheduled Tribes in India”, p.8, https://tribal.nic.in/downloads/statistics/StatisticalProfileofSTs2013.pdf
7. Wahi, Namita and Ankit Bhatia (2018): “The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in The Scheduled Areas of India”, Centre for Policy Research, p.28-9, https://cprindia.org/wp-content/uploads/2021/12/The-legal-regime-and-political-economy-full-200418.pdf

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This was the fourth large mobilisation of people from Thane-Palghar district in the last three months. Over 1,000 peasants had joined at short notice for the AIKS-led Dindori to Vasind Long March in March 2023; over 8,000 had joined the AIKS-led March from Akole to Loni in April 2023; over 12,000 women had joined the large AIDWA-led rally on the Palghar Collectorate just last week on 24 May; and over 25,000 peasants joined the AIKS-led rally to Palghar on 30 May.

Thousands of forms for land rights – over forest land, absentee landlords’ (varkas) land, temple trust land, inaami land, pasture land, etc had been filled from peasants by the AIKS for the last one month. All of these were submitted to the Collector and receipts taken. The demand is that these get recognition.

In the two and a half hour positive discussion of the AIKS delegation with the district collector, Govind Bodke and other concerned officials, he conceded several demands concerning land rights, water and irrigation, MNREGA, ration, and other issues, and assured their implementation within a time frame.

The three most important assurances given were:

1. A complete and detailed list of the current status of all 61,000-odd claims under the Forest Rights Act (FRA) 2006 in the district would be made available to the AIKS;
2. All the thousands of land rights applications of different categories that were submitted on Tuesday by the AIKS would be processed village-wise and decisions taken in a positive spirit;
3. As regards the absentee landlords’ land, the Adivasi peasants actually cultivating the land would make applications when there was a standing crop in their fields in September 2023, this would be checked, and made the basis for making them tenants and then owners of the land. It was during the glorious AIKS-led Adivasi Revolt of the 1940s that hundreds of rapacious landlords were forced by the newly-freed Adivasi peasants to leave the areas, and abandon their lands.

This latest mass rally led by the AIKS in Palghar was led by the organisation’s national president, Dr Ashok Dhawale, state president, Umesh Deshmukh, state secretary Dr Ajit Nawale, state vice president Kisan Gujar, AIDWA national general secretary Mariam Dhawale, CITU State Secretary Vinod Nikole, MLA, AIKS District President Chandrakant Ghorkhana, secretary Chandrakant Dhangda, vice presidents Radka Kalangda and Kiran Gahala, treasurer Vijay Katela, AIDWA state secretary Prachi Hatiwlekar, vice president Lahani Dauda, and joint secretary Sunita Shingda, DYFI state president Nandkumar Hadal, and many others.

On Wednesday May 31, a similar rally of the AIKS will be held at the Thane District Collectorate in Maharashtra.

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Srinagar: In Mehjoor Nagar locality, a suburb in Srinagar city, Fayaz Ahmad stands in the middle of a scrap yard days after it was bulldozed during an eviction drive. It has been thirty years since Ahmad – now 52 – has worked here.

Fayaz is one of the six scrap yard owners where more than 200 labourers, including 150 non-locals from Bihar, gather scrap daily throughout the city. On Saturday, a bulldozer demolished the makeshift boundary wall, and the workers were asked to evacuate the premises.

Since then, the workers have been apprehensive about losing their livelihood amidst the ongoing drive by the authorities. The move has been widely condemned across Jammu and Kashmir, including by all the regional political parties.

“We earned livelihood for decades here. We have grown older working on collecting and selling scrap. There is no employment or future for us except in this junkyard,” Ahmad told NewsClick.

He points towards a huge pile of scrap that has been collected recently. Heaps of junk metal, plastic and cardboard have been overturned inside the yard. Over a dozen carts lie around, and workers try to salvage tin sheets removed during the demolition. This is the only place in the locality where the fresh demolition drive was conducted.

Like Ahmad, many of the labourers from Bihar have been earning their livelihood here for nearly three decades. Many of them work and also live in those makeshift sheds to save more money.

The authorities claimed that the land was under “illegal encroachment” but Sameer Dar, another scrap dealer, said that they had rented the space and did not receive any prior notice before the demolition was carried out.

“We are not big businessmen who have grabbed hundreds of kanals. There are more than 200 families dependent on this piece of land, which is not even more than 2 kanals. If they snatch it from us, there will be no option left for us,” Dar said.

The drive began in January after the UT administration issued an order dated January 9 directing all local administrative officials to remove “encroachment” on State Land, including Roshni and Kahcharai (Grazing) land. Since then, the administration, led by the Revenue Department, and Tehsil-level officers are assisted by the Jammu and Kashmir Police to carry out such drives.

The directive triggered a row, with many terming it a draconian move that would render lakhs of people homeless and affect the livelihood of even more. Lt. Governor Manoj Sinha assured that the order was to recover land from the possession of big sharks and land mafia and would exclude those who are poor and marginalised. However, on the ground, it was not followed while carrying out the demolitions.

“The eviction drive has created fear and anger among people. With authorities running earthmovers everywhere, the claims of the administration about not touching ordinary people have proven to be a farce. There is a complete disconnect between what administration says and what it does,” senior politician M Y Tarigami said.

All the political parties, including the National Conference, People’s Democratic Party (PDP), Jammu and Kashmir People’s Conference (JKPC), Apni Party, and Democratic Azad Party (DAP), have led protests against the move and urged the authorities to halt the exercise.

The ruling Bharatiya Janata Party’s local leadership have also said that the poor and marginalised should be spared from the drive. But the officials carrying out these demolitions have claimed that they have not received any order in this regard.

On Tuesday, many, like Altaf Bukhari of Apni Party – often seen as a BJP ally – condemned the showcasing of bulldozers as a “symbol of power” in J&K during a party rally in Udhampur district.

“The land, which is being snatched from the people, actually belongs to the people of Jammu and Kashmir. We will not allow outsiders to grab the land,” he said.

Since the abrogation of Articles 370 and 35 A on August 5, 2019, the BJP-led government has made momentous changes in the land laws in the region, triggering fears of alleged “demographic change” by settling outsiders in the only Muslim-majority state of the country. Militant outfits also used this to launch a fresh wave of targeted attacks in which many non-locals were killed. The government has vehemently opposed these claims and said that all the changes were made to benefit the locals.

Earlier this week, an unverified statement from The Resistance Front – an offshoot of Lashkar-e-Toiba (LeT) — appeared on social media networks threatening the officials and workers of the revenue department and those involved in the drive with dire consequences. The target put by the militant outfit has furthered the fear in the residents.

Protests have also been reported from the Jammu division, where at least eight persons, including a District Development Council (DDC) official, were arrested by police for allegedly participating in stone-pelting against the demolition squad in Malik market.

On Wednesday, PDP leader Mehbooba Mufti was detained by the police after she held a protest at Vijay Chowk, outside the Parliament in New Delhi, against the ongoing drive that she said was “turning Jammu and Kashmir into Afghanistan”. Mufti has earlier urged all national Opposition leaders to raise the issue of state-led demolitions across J&K against its own people in the garb for ‘reclaiming state land’ from ‘encroachers’.

Back in Srinagar, Ahmad and Dar are still trying to recover from the demolition carried out a few days back. “If the government does not support us, we will be forced to streets. We will sit on a dharna,” Dar said.

Courtesy: Newsclick

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The All India Union of Forest Working People (AIUFWP) has announced its second national conference from December 1, 2021 to December 3, 2021 in New Delhi. It will discuss land, legal and constitutional rights of adivasis and other minorities in India at this conference. AIUFWP leaders Jarjum Ete, Ashok Chaudhary, Sokalo Gond, Roma Malik, Munnilal and Citizens for Justice and Peace (CJP) General Secretary Teesta Setalvad will be participating in the three-day event along with other speakers such as Land Rights Movement leader Hannan Mollah, NTUI leaders Gautam Modi and Thankappan, APIWA leader Kavita Krishnan, Bharat Jan Vigyan Jathha Dinesh Ebrol. 

On the first day, leaders will discuss how forest rights issues intersect with land rights, the ongoing farmers struggle, draft amendments to Forest Conservation Act (FCA) 2021, draft Environment Impact Assessment (EIA) 2020, attack on workers’ legal rights, Muslims and other minorities and Dalits. The keynote address will be given by Setalvad. The proceedings will take place starting 3 PM at the Constitution Club.

“The idea is to collectively mobilise mass peoples’ movement groups and organise programmes at the national level highlighting the anti-people government policies and corporate loot of India’s natural resources,” said the AIUFWP in its press release.

On the second day, the AIUFWP will gather at the Gandhi Peace Foundation to discuss forest rights struggles, the milestones of the persisting battle, its challenges and future course of collective actions and strategies.

“Since the onset of independence, forest dependent communities in large numbers have been fighting for their forest rights. Though in 2006, the Forest Rights Act (FRA) was passed with the intention to compensate for historical injustices meted out to these communities, implementation at the ground level is still lackadaisical,” said the AIUFWP.

Despite the enactment of the FRA, forest-dependent communities continue to face violence and discrimination by the forest department, police, paramilitary forces and district administration. According to leaders, more community members are stopped from entering forests – their land rights are cancelled without proper investigation and they are threatened, manhandled and implicated in false cases. For this reason, the union’s regional community leaders will talk about reclaiming tribal folk’s physical and political space in all regions and building a comprehensive development programme in forestry and agriculture along with traditional local industrial development on Thursday.

“Owing to Covid, 2020 has seen the livelihood of forest communities, landless farmers, tenant and migrant laborers, and fishermen folks affected in an unprecedented way. In the last two years, we’ve witnessed the government bringing forth anti-people laws and masses protesting against those with all their might,” said the AIUFWP.

By this, it referred not only to contentious laws like the FCA and EIA amendments, but also the labour codes and farm laws that have recently been repealed. Still, the fact remains that the Covid-19 pandemic and ensuing lockdown resulted in forced evictions of forest-dependent communities from the forest areas by the government department.

To address this, the AIUFWP members will also explain how to build an inclusive health, education and social security programme while encouraging future generations to continue the struggle against hegemonic regimes. In spirit of its inclusive endeavour, the AIUFWP will also talk about alliances with working-class struggles and curbing of labour rights by the current regime.

The third day will be a continuation of the previous day where members discuss future plans of action.

“The AIUFWP has always endeavored to emphasize the implementation of FRA (2006). It is vocal about issues like land rights movements, the historic farmers and peasants protest, and in upholding legal rights of workers, minorities and Dalits against any and all kinds of atrocities meted out to them,” it said.

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Chhattisgarh has become the first state to recognise forest resource rights in an urban area by bestowing these rights upon residents of Dhamtari district over 4,127 hectares of forests. Apart from that, the state government also recognised community resource rights over 5,544 hectares of forest within the core area of the tiger reserve area, reported Indian Express.

The certificates for Community Forest Resource Rights were distributed in Raipur on the occasion of International Day of the World’s Indigenous People by Chief Minister Bhupesh Baghel. Adivasis constitute 31% of the state’s population. The recognition of community forest resource rights in the tiger reserve — spread across Dhamtari and Gariyaband districts — was a long-time demand of villagers living inside the core zone, who had accused government officials of thwarting the process, as per the IE report.

In January, tribal communities of several villages were protesting Sitanadi Udanti Tiger Reserve being categorised as a Critical Wildlife Habitat. Forest officials were claiming that villagers were intruding the core zone where only tigers could exist. However, the villagers argued that they have been co-existing with tigers there for generations without causing any harm to them. Birbal Padmakar, president of the forest rights committee from Joratarai village recalled how they have been lathi charged in the past for demanding their community resource rights over the tiger reserve area but said that they were relieved that the government finally recognized their rights.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 commonly known as the Forest Rights Act (FRA) was brought about to recognise and vest the forest rights and occupation in forest land in forest dwelling communities and individual dwellers who have been residing in such forests for generations but whose rights could not be recorded. The Act recognised that the forest rights on ancestral lands and their habitat were not adequately recognised resulting in historical injustice to the forest dwellers who are integral to the very survival and sustainability of the forest ecosystem.

Chhattisgarh has also been a pioneer in providing forest land rights under FRA in urban areas. In August 2020, it became the first state to hand over urban forest land rights in Jagdalpur, Bastar when it handed over forest land rights to 11 families for household purposes.

What is a community forest resource?

Community forest resources are different from community land rights, both of which have been recognised under the Act. Community forest resource has been defined under section 2(a) of the Act as a customary common forest land within the traditional boundaries of the village or seasonal use of landscape which includes reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community has had traditional access.

Under section 3(1)(i), forest rights include, rights to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use. Community forest rights are obtained through Gram Sabhas and it is the Gram Sabhas that regulate the sustainable use of such resources.

Community forest resources include traditional grazing grounds; areas for collection of roots and tubers, fodder, wild edible fruits and other minor forest produce; fishing grounds; irrigation systems; sources of water for human or livestock use, medicinal plant collection territories of herbal practitioners. It also includes land used for traditional agriculture or remnants of structures built by the local community, sacred trees, groves and ponds or riverine areas, burial or cremation grounds.

The Gram Sabha is empowered to regulate access to community forest resources and stop any activity which adversely affects the wild animals, forest and the biodiversity. The guidelines on the implementation of FRA issued by the Ministry of Tribal Affairs (MoTA) states that any restriction, such as, time limit, on use of community forest resources other than what is traditionally imposed would be against the spirit of the Act.

The Union Ministry of Tribal Affairs releases a monthly progress report with respect to claims received and titles distributed. However, it does not differentiate between community forest resource rights and community land rights claims, hence, it is not possible to determine how many resource rights versus land rights have been approved by the state governments.

Land rights

Land rights are also defined under section 3(1) of the Act and includes right of ownership, settlement, right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood. Thus, individual rights are mainly for habitation or livelihood and community rights claims are also filed for using water bodies, grazing or any other traditional seasonal resource access. Community claims may also be filed for habitation of primitive tribal groups and preagricultural communities under section 3(1)(e).

In 2014, a report was released by Community Forest Rights Lending Advocacy, which states that only 3% potential of this act is recognised and only 20 states have implemented the FRA and with no Union Territory included. The FRA stated that a maximum of 10 acres of land can be availed for individual forest rights and for community forest right there is no limit but the numbers show that the national average for individual forest rights is only 2.18 acre and for community forest rights it is 115 acre. The data further states that since some years there has been no SDLC DLC meeting in the central India belt.

Section 12(a) of the FRA states that whenever a claim for land rights is rejected the reason for the same has to be given in writing but there have been numerous incidences of arbitrary rejection of claims. Around 1.9 lakh individual forest claims and 76,000 community forest claims have been granted by the Ministry of Tribal Affairs out of which 70-80% individual claims have been given from the states of Chhattisgarh, Odisha, Maharashtra, Tripura and Madhya Pradesh, and community rights in Gujarat, Chhattisgarh, Odisha, Maharashtra and Madhya Pradesh. Once people get the title rights, they should get the record of their rights within three months . Section 16 of the FRA states that the state departments should take efforts to integrate several department schemes, but even these leading states have been suffering to get the rights. In the majority of the places, except for some parts of Maharashtra, state departments are not making sufficient efforts like providing appropriate irrigation techniques or planting trees.

The monthly progress report as of February 28, 2021, released by the Ministry of Tribal Affairs, indicates that Odisha has the highest conversion rate of claims to titles distributed; i.e., 70.76% of the claims filed were approved and titles were distributed. Other states include Tripura (60.6%), Kerala (59.9%) and Jharkhand (55.9%). At the lowest are states like Goa (0.45%), followed by Bihar (1.5%) and Uttarakhand (2.36%).

The reality of forest rights

On July 10, a rampaging mob destroyed the homes and looted properties of Adivasi Villagers in Madhya Pradesh’s Negaon-Jamniya village, even as Forest Department and Police officials deployed at the spot stood by, leaving 40 families shelter-less. These evictions were carried out even as the Madhya Pradesh high Court had ordered that no evictions shall be carried out after the Covid-19 pandemic broke out.

In January, UP Police assaulted women forest workers as they were peacefully protesting an unauthorised construction on forest land. Women forest leaders from the Adivasi and forest dwelling communities have been at the forefront of defending forest rights in Sonbhadra and have been filing community claims to forest land under provisions of the Forest Rights Act, 2006.

Lilasi village and its brave women forest rights defenders are not new to police brutality. They had been attacked in May 2018 as well when police stormed into the village and brutally beat up women and broke huts. After some key members of the All India Union of Forest Working People (AIUFWP) met key government officials to convey their grievances, police illegally detained Sokalo Gond and Kismatiya Gond and kept them behind bars for months. The two were only released after a sustained campaign by CJP, which involved moving a habeas corpus petition for production of Sokalo and Kismatiya Gond before the Allahabad High Court.

The forest workers, who are trying to protect the forest and filing their claims on their land rights, are often mistreated and have false cases filed against them. They are also dubbed as ‘Naxals’ by the police to legitimise the action they take against them.

In September 2020, Adivasis from about 108 villages had gathered at the Birsa Mundak Smarak Sthal in Adhaura block of Kaimur district simply wanting to speak to authorities and keeping their demands before them. These demands included implementing FRA, administrative reorganisation of Kaimur Valley, declaring Kaimur as a Scheduled area as per the Fifth Schedule of the Constitution and so on. The police, however, opened fire at the villagers. Seven activists were not just fired upon and injured in the firing and lathi-charged but were also picked up by the police on trumped up charges.

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National Human Rights Commission (NHRC) Chairperson Justice (retired) Arun Mishra has said that no Adivasi/tribal should be evicted without the settlement of his/her claim related to land rights, while chairing a webinar organised by the Commission with Human Rights Defenders and Civil Societies on human rights issues.

Another suggestion that he gave during the webinar held on July 29, was that the rehabilitation of displaced people due to development projects should be fully drawn out before the implementation of the project which should not merely include financial support.

It is noteworthy, that the same judge had delivered the controversial order (W.P Civ. 109 of 2008) on February 13, 2019, ordering for the eviction of over 11 lakh tribals and forest dwelling communities across several all states. The Bench which also consisted of Justices Navin Sinha and Indira Banerjee of the Supreme Court, had asked the authorities of 21 states to give affidavits explaining why evictions, wherever ordered, had not taken place.

The apex court had also asked some states to pass orders for eviction wherever the rejection of claims under the Forest Rights Act had taken place. The strongly worded order read, “In case the eviction is not carried out, as aforesaid, the matter would be viewed seriously by this Court.” The court had directed that the evictions must be carried out by July, and also directed the Dehradun-based Forest Survey of India (FSI) to submit a satellite image-based report once the “encroachments” are removed.

But this order was stayed on February 28, 2019, after huge condemnation by Adivasi and forest dwellers’ movements, and forest rights activists. In its order, Justice Arun Mishra said, “At the present juncture there is likelihood of traditional Tribals being affected whose claims have been rejected. At the same time the question which is also of significance and which cannot be ignored and overlooked is that in the guise of and Other Traditional Forest Dwellers (OTFDs), the land is not in occupied by mighty people, industrialists and other persons who are not belonging to the aforesaid category. Let the State Governments also point out the category wise details of such incumbents who have been occupying these areas belonging to Scheduled Tribe category and OTFD category and such persons who cannot be treated as Tribals….However, till we examine all aforesaid aspects, we keep our order dated 13.02.2019 on hold so far as eviction is concerned.”

Even though the Bench stayed the exercise of the order, the fate of lakhs of tribals and forest dwelling communities remains uncertain due to such pronouncements.

CJP’s role

In August 2019, in response to the Supreme Court’s eviction order and subsequent stay, Adivasi human rights defenders Sokalo Gond and Nivada Rana had intervened in the same matter, backed by Citizens for Justice and Peace (CJP) along with All India Union of Forest Working People (AIUFWP). The intervention plea explained how the law is in statutory line with Schedules V (administration and control of Scheduled Areas), VI (administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram), and IX (contains a list of central and state laws which cannot be challenged in courts) of the Constitution. 

Justice Arun Mishra’s order had triggered around 19 intervention applications, including this one that was successfully admitted by the Supreme Court in September, 2019. The two organisations have been actively campaigning for forest rights and Adivasis, who are subject to government apathy. Recently, CJP along with AIUFWP and Jagrit Adivasi Dalit Sangathan (JADS), organised an online press conference providing a platform to the Adivasi villagers of Madhya Pradesh’s Negaon-Jamniya village, who have had their houses destroyed and property looted by a mob. They were illegally evicted and had their homes demolished by a mob of people from neighbouring villages who appeared to operate with the blessings of the Forest Department and police officials present on the spot.

Even though Justice (retired) Mishra has now opined that traditional forest dwellers and Adivasis must not be evicted without settlement of their claims, and added emphasis on the need of more foundational rehabilitation plans, his ideas certainly do not align with his previous orders as a serving judge of the Supreme Court.

On August 31, 2020, a three-judge bench of the Supreme Court, also headed by him, had ordered the removal of nearly 48,000 slum dwellings around the 140-km of railway tracks in Delhi within three months with no “interference”, political or otherwise. (MC Mehta vs Union of India 1985).

This was in direct contravention of the landmark judgment in Olga Tellis v. Bombay Municipal Corporation (1985) that held that the right to shelter and livelihood is a facet of Article 21 of the Indian Constitution. The judgment in Olga Tellis was delivered by a five-judge bench, which the three-judge should have ought to follow but did not. In addition to this, the order did not provide details of alternative rehabilitation, etc and was passed in the middle of a pandemic against the most disadvantaged.

Related:

Breaking: All Intervention Applications defending FRA, 2006 admitted by SC
Sokalo Gond and Nivada Rana lead the campaign for Forest Rights in SC
Gov’t doesn’t really care about us: Forcibly evicted Khandwa Adivasis
NHRC chairmanship contender Justice Arun Mishra’s legacy

The post No eviction of tribals without settlement of land claims: J. Arun Mishra (retd.) appeared first on SabrangIndia.

Bhadradri-Kothagudem (Telangana) / West Godavari (Andhra Pradesh): “I will never go back,” said Madakam Adama, referring to his home in Chhattisgarh’s Gedampal village, which he last saw 13 years ago, in 2006. Adama, who looks about 60 but says he is 45, now lives in Kota Namilipeta, a settlement of 27 mud-walled houses in the middle of a forest in Andhra Pradesh’s West Godavari district.

Adama is among the thousands of Adivasis (tribal, indigeneous people) displaced from their homes and villages in southern Chhattisgarh. The Adivasis were fleeing violence allegedly inflicted by a state-sponsored militia, the Salwa Judum, soon after it was formed in mid-2005. The Supreme Court banned the Salwa Judum in 2011, calling it unconstitutional and the state support to it “a matter of gravest constitutional concerns and deserving of the severest constitutional opprobrium”.

The displaced Adivasis, who had found refuge in the forests of Andhra Pradesh, feared retribution if they returned home. They eventually settled on land that they had cleared in Andhra forests. At least 500 of these families have now applied for land titles for their new houses and small farms under the Forest Rights Act (FRA). They are relying on a special provision meant to rehabilitate displaced Adivasis and other traditional forest dwellers, which has never been used before.

Adivasis have never before sought relief under Section 3(1)(m) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA. There is a hurdle that the families will have to overcome, though. According to FRA, claims for forest rights can only be made on land that the claimants occupied before December 13, 2005, the day on which the Forest Rights Act was placed before the Lok Sabha, the lower house of India’s parliament. The majority of the Adivasis fled Chhattisgarh in 2006.

Some experts say the Act may need to be amended to accommodate the demand for land rights, but the Ministry of Tribal Affairs, unsure if a legislative amendment would work out, is framing guidelines on how to use Section 3(1)(m) to process the Adivasis’ applications for land rights. Other experts believe the state governments may have to come up with an entirely new solution.

How the applications get decided would be relevant to the rehabilitation of millions of Adivasis, displaced before or after 2005.

At least 190,000 Adivasis have been forcefully evicted or displaced since 2005 without compensation or rehabilitation, according to six cases documented so far in Madhya Pradesh, Gujarat, Chhattisgarh, Assam, Andhra Pradesh and Telangana by Land Conflict Watch, a network of researchers who collect data about ongoing land conflicts in India. Half of them are in Assam, and were displaced because of an ethnic conflict over the demand for a separate state of Bodoland.

Source: Land Conflict Watch; Figures for people affected are approximations.

No consolidated data on how many Adivasis have been internally displaced after 2005 seem to exist, and the Ministry of Tribal Affairs did not respond to IndiaSpend’s requests for data or comment. This story will be updated if they do.

Different treatment

Eight years after the Supreme Court’s order against the Salwa Judum, few Adivasis have returned to Chhattisgarh. They live in 200-odd villages inside the forests of Andhra Pradesh and Telangana (which was carved out of Andhra Pradesh in 2014), according to estimates by local organisations and district officials in Telangana. Of the estimated 200, 131 villages are in the Bhadradri-Kothagudem district of Telangana, according to a Telangana government document not related to the Adivasis that IndiaSpend reviewed. The rest are along the Telangana-Andhra Pradesh border, mostly in Andhra’s West Godavari district.

States alone have the legal authority to grant forest rights. But Telangana and Andhra Pradesh have so far not taken any steps to help them.

“The point is that they are refugees,” said Nandini Sundar, a professor of sociology at the Delhi School of Economics. The Adivasis from Chhattisgarh need to get forest rights wherever they have settled, keeping in mind that they have fled violence, she said.

Sundar has extensively documented the conflict in Chhattisgarh, and was the lead petitioner in the case against the Salwa Judum at the Supreme Court. She pointed out that there has been no rehabilitation package for the Adivasis unlike for other groups such as the Kashmiri Pandits–native Hindus from Kashmir who fled due to communal violence in the 1990s and settled in other parts of the country.

Sundar had drawn up a draft rehabilitation plan at the behest of the Supreme Court in 2010 for all those affected by the conflict in Chhattisgarh, suggesting that displaced Adivasis receive individual and community forest rights in their new villages. The court did not give any order on the draft plan in its verdict in the case.

“There are rehabilitation policies if you are a Sikh or a Kashmiri Pandit or if you are powerful enough [as a community to influence policy],” said Sundar. “But not if you are an Adivasi.” 

An exodus

About 30,000 indigenous people or Adivasis like Adama from Chhattisgarh’s southern districts of Sukma, Bijapur and Dantewada–among India’s 90 districts identified as affected by Left-wing militancy–fled to Andhra Pradesh in the months after the Salwa Judum was founded in mid-2005.

The Salwa Judum, which means ‘purification hunt’ in the local Gondi language, was funded and armed by the Chhattisgarh and Central governments to fight Maoist guerillas in the jungles of the state’s southern Bastar region. It unleashed terror in villages and stood accused of murder, rape, abductions and arson, the National Human Rights Commission found.

Working in Andhra Pradesh’s thriving chilli and cotton farms had been common practise for Chhattisgarh’s Adivasis for years. So when the Salwa Judum’s violence started, the Adivasis naturally fled to the Andhra villages and pleaded with farm owners to allow them to settle on nearby forest land.

Some time in 2007, Adama estimated, a farmer told him about other similarly displaced Adivasis who had set up huts on forest land not too far away. Adama moved there. Over the next year, he chopped down trees, cleared a five-acre patch of the forest, and started to grow paddy and pulses for his family of four, and some cotton to sell.
 

Breaching laws to start anew

Today, Adama continues to work in chilli and cotton farms. He walks for an hour to reach work, crossing a forest and a stream. When the stream swells up in the monsoon, he takes a detour to avoid wading through waist-high water. Because the state has not build roads to connect hamlets such as his.

Settlements such as this one, created by Adivasis like Adama inside the forests, are considered illegal under some forest laws, so they are denied electricity, potable water, sanitation facilities.

Chhattisgarh Adivasis live in settlements deep inside the forest, often across forest streams that swell up in the monsoon, cutting off access.

“These settlements are inside forest areas and not legally recognised, so we cannot create any physical assets,” said a tribal welfare officer in Telangana, requesting anonymity. Most state government officials spoke to this reporter seeking anonymity out of fear of being transferred or otherwise punished for ‘helping’ Adivasis. “We are trying to do whatever we can… other than [providing] physical infrastructure,” said the officer.

Adama’s hamlet was busy with signs of daily life when we visited. Bottle gourd and pumpkin hung from creepers spread over fences made of tree branches. Papaya trees grew in compound corners. Hens and chickens scurried about in the open spaces between houses. There was also a pig, seemingly belonging to no one in particular.

Madakam Adama outside his house in Kota Namilipeta in Andhra Pradesh’s West Godavari district. Adama is among the thousands of Adivasis who fled violence in southern Chhattisgarh in 2006 and settled in Andhra Pradesh and Telangana. They are now demanding land rights in their adoptive states.

Although the Forest Rights Act enacted in 2006 recognised tribal peoples’ rights over forest lands that have inhabited or relied on for generations, a number of settlements such as Adama’s were set on fire by the Andhra Pradesh state forest department that year, international advocacy group Human Rights Watch noted in its 2008 report. Some were burnt multiple times because residents kept rebuilding their homes, until, in September 2007, the Andhra Pradesh High Court directed the forest officials “not to demolish or set fire” to these structures.

In most places, the Adivasis eventually reached informal agreements with forest officials, some of whom were sympathetic to their plight, but not all. Podam Ravamadu, 40, recalled his first meeting with a forest officer in Chepuru Gumpu village on the Telangana-Andhra border between Bhadradri-Kothagudem and West Godavari districts. Ravamadu had come to Andhra Pradesh in early 2006 with 27 other families from his Palchalma village in Sukma. He went to the forest office to get permission to settle on the forest land.

The officer swore at him and told him to go away, Ravamadu said. “When I said we have nowhere to go, he swore at me again and said, ‘Okay, you can stay on a small patch, but don’t cut too many trees’.”
 

Basic needs unmet

Without water supply, many drink water from forest streams. Some villages have managed to install hand pumps–paid for by charities–dug under the cover of darkness at night.

A common handpump is the only source of water for most settlements of displaced Adivasis. In others, they drink water straight from forest streams.

The Telangana government occasionally organises health camps, and has begun extending anganwadi (rural childcare) centres that provide meals to children and pregnant women. But since the villages are difficult to access given the lack of roads, anganwadi workers rarely visit.

“I have seen a worker just once,” said Madakam Sujata of Chintakunta settlement in Telangana’s Bhadradri-Kothagudem district. She complained about the lack of medical facilities and schools. “Water is a bigger issue. The state can at least provide us clean tap water,” she said.

Malnutrition is rife despite access to subsidised rice and sugar under food security schemes, enabled thanks to a case filed before the National Human Rights Commission in 2008. A survey of 11 settlements by the Bhadradri-Kothagudem district administration in 2018, reviewed by IndiaSpend, found that 90% of pregnant women were severely anaemic.

Children are often born underweight, and at least five infants die every month, according to a doctor who works with these communities. The doctor did not wish to be identified because he feared the state government would prevent him from helping the Chhattisgarh Adivasis. He said he also faced criticism from local Adivasi communities who said he solely treated the displaced Adivasis and not them.

The Chhattisgarh Adivasis are also unable to avail of benefits under financial and developmental schemes meant for their welfare, or to claim reserved positions for Scheduled Tribes (STs) in universities and government jobs. This is because they are not recognised as STs in Telangana and Andhra Pradesh. Each state has its own list of STs native to the state.
 

Point of no return

Despite the hardships they face in their adoptive lands, the Chhattisgarh Adivasis do not want to return. For Adama, it is enough that there is peace and an opportunity to earn: “I like that I can do as much coolie work as I want to.” 

Although there is no danger from the Salwa Judum in Chhattisgarh now, the Adivasis fear backlash from the Maoists.

Madivi Hiresh returned to his village near Maraiguda in Sukma, Chhattisgarh, in 2014. He found that his land and house, which his family had left behind when he was still in school, had “become like the jungle”. The village headman told him to take the Maoists’ permission to resettle and explain to them why the family had run away in the first place. He returned to Andhra Pradesh and has not gone back since.

The 30-year-old now works as a coolie on farms, and assists local non-profit organisations that work with Adivasi groups. “Many people think of going back to their land, but everyone is afraid,” said Hiresh.

Many have nurtured fruiting trees like mango. “They have only just started to bear fruit,” said Ravamadu, “Why will we go back now when it’s time to reap them?”

In February-March 2019, 300 displaced Adivasis like Hiresh participated in a 300-km bicycle rally from Jagdalpur in Chhattisgarh to Raipur, the state capital. The rally was organised by Shubhranshu Choudhary of CGNet Swara, a community radio service in Gondi, as an initiative to build peace in the Maoist-affected areas. At the end of the rally, few Adivasis expressed any desire to return to Chhattisgarh, and a majority said they wanted to remain in their new settlements in Telangana and Andhra Pradesh, he said.

Only 20 families from Maraiguda village in Sukma wanted to return because they wished to benefit from the state’s schemes, including reservation in schools. Their return was facilitated in April 2019.
 

Charting a way out

Choudhary’s CGNet partnered with the non-profit Sitara Association, based in Chinturu in Andhra Pradesh, and proposed to the other Adivasis that they obtain rehabilitation rights under the FRA. Section 3(1)(m) of the Act states that Adivasis and other forest-dwelling communities have a right to “in situ rehabilitation including alternative land” in cases where they have been “illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, 2005”. The Adivasis are demanding forest rights on the land they moved to in exchange for their land in Chhattisgarh.

Following the Gond religious festival of Pen Pandum this June, 500 such forest rights claims were filed with the sub-divisional magistrate in Konta, Chhattisgarh. The claims have been filed in Konta because the Adivasis are not recognised as scheduled tribes in Andhra Pradesh and Telangana, said Choudhary. The Chhattisgarh government must verify the applicants’ claims to land in their state and certify the same to the governments of Telangana or Andhra Pradesh, as per the CGNet-Sitara team’s interpretation of the Act. However, there is no clarity on how the rehabilitation rights under FRA are to be applied, especially since the displacement is from one state to another.

In June 2019, Choudhary approached the New Delhi-based National Commission for Scheduled Tribes (NCST), which looks into the welfare of Adivasis, with a request to order the three state governments and the Ministry of Tribal Affairs to facilitate the process of recognising land rights of the displaced Adivasis. The NCST called a meeting of the three state governments–Chhattisgarh, Andhra Pradesh and Telangana–and the Union ministries of home and tribal affairs.

The governments of Andhra Pradesh and Telangana did not attend the meeting, held in September, and gave no reasons, Nand Kumar Sai, who chairs the NCST, told IndiaSpend. It is up to the states to see whether they can give forest rights based on the availability of land, he said. “We are willing to mediate between the states, but they need to come to the table first,” said Sai.

Following the meeting, the Chhattisgarh government wrote to the tribal affairs ministry, seeking guidelines on how to implement the in-situ rehabilitation section of FRA to process the displaced Adivasis’ applications. The NCST asked the Chhattisgarh government for a survey of the displaced Adivasis as a first step towards rehabilitation.

Additionally, in October, the central home ministry wrote to the governments of Chhattisgarh and eight neighbouring states to find out how many Adivasis from Chhattisgarh were displaced.

“By some estimates 55,000-60,000 Adivasis have been displaced. But we don’t even know the real numbers,” said Sai. “It is the state governments’ responsibility to see how these people are living. We have asked the Centre to ensure this is done.”

The Ministry of Tribal Affairs, meanwhile, is preparing guidelines on using the clause for in-situ rehabilitation. It will take a “long time”, an official told this reporter on condition of anonymity. The ministry is waiting for the states to complete the surveys, which will indicate the exact number of Adivasis who want to stay on in Telangana and Andhra Pradesh. The guidelines will be prepared with help from the Ministry of Law and Justice once the numbers are clear.

Jaideep Singh Kochher, who represented the Ministry of Tribal Affairs at the NCST meetings, said he would not comment until the state governments completed their respective surveys.
 

States reluctant 

No survey had taken place when IndiaSpend visited five settlements–Kota Namilipeta in West Godavari, Andhra Pradesh; Chepuru Gumpu on the Andhra-Telangana border; and Chintakunta, Eraburu Padu and Palavangu in Telangana’s Bhadradri-Kothagudem district–in early October 2019.

In 2017, Telangana Chief Minister K Chandrashekar Rao denounced the displaced Adivasis for causing deforestation, in a statement to the state assembly. The Adivasis are also suspected to have links with Maoists, said Sitara Association’s Haneef, who chooses to be identified solely by his first name–the Muria Gond Adivasis, the majority of those displaced, have lived deep inside the forests, which is also where the Maoists are based.

This is why in some settlements, the Chhattisgarh Adivasis are asked to report to the police station every month to keep track of new migrants as well as to see if any have disappeared–which officials see as an indication that they may have joined the Maoists, one district administration official told IndiaSpend.

The displaced Adivasis are also seen as a burden on the state’s resources. “I have 10,000 displaced Adivasis in addition to three lakh local Adivasis who need the state’s support. Who do you think will be my priority?” asked the Telangana tribal welfare officer quoted earlier who wished to remain anonymous.
 

Wrangling over status, dates

“Adivasis don’t see state borders in the forest,” said Haneef. “This is all part of one forest and they should have the same rights across the area.”

Section 3(1)(m) of the FRA is meant “to cover exactly these kinds of situations”, said Shomona Khanna, an advocate at the Supreme Court and a former legal consultant to the Ministry of Tribal Affairs. Khanna said that the Chhattisgarh Adivasis not being recognised as scheduled tribes in Andhra Pradesh and Telangana would not prevent them from having their forest rights recognised in those states in light of an earlier court order. In 2011, the Andhra Pradesh High Court had said that it was up to the village-level forest rights committees to decide whether the Chhattisgarh Adivasis could be considered as scheduled tribes in Andhra Pradesh. This means that the committee can, for the purpose of granting rights under the Forest Rights Act, consider the displaced Adivasis from Chhattisgarh as scheduled tribes given that they had escaped the violence and crossed the border, she said.

Another option for the Chhattisgarh Adivasis is to apply for rights as Other Traditional Forest Dwellers, for which they would need to use records from Chhattisgarh to show that they have been forest dwellers for at least 75 years–the legal eligibility to be counted as an Other Traditional Forest Dweller under the FRA, said Khanna.

However, since claims for forest rights including for in-situ rehabilitation can be made only on land that the claimants occupied on December 13, 2005 (the day the Forest Rights Act was tabled in the Lok Sabha), and the majority of Adivasis fled Chhattisgarh after this date, the law may need to be amended to accommodate their claim, a senior district officer in Telangana told IndiaSpend. “The government needs to ponder on what is so important about this particular date,” said the officer, who would be in a decision-making capacity to grant forest rights.

A senior Ministry of Tribal Affairs official quoted earlier said there was no plan to amend the law to change the date, and opined that the Adivasis who had migrated after the cut-off date would not be eligible to have their forest rights recognised.

This would mean that FRA may not offer a solution to the Chhattisgarh Adivasis’ demands for land rights, and the state governments will need to find “innovative solutions”, according to a lawyer who works on forest rights and who also did not wish to be identified because there is no clear government opinion on the subject yet.

The state governments could collaborate to simply “offset” the forest rights in Chhattisgarh in favour of rights in the new states, said the lawyer. “The states need to figure out a solution. The Ministry of Tribal Affairs’ intervention is important to enable this.” 

But the Adivasis may be running out of time. The forest officers of the Telangana government have repeatedly asked them to leave since 2018. “They said they wanted to plant trees on our farmland,” said Ravamadu.

The Telangana government has said that it plans to “retrieve” the “illegal possession” by Chhattisgarh Adivasis, called ‘Gutti Koyas’ in Telangana and Andhra, inside forests under the state’s 2015 afforestation programme, Haritha Haram. To this end, the forest department had in August and September 2017 demolished houses belonging to Chhattisgarh Adivasis who had settled in Bhadradri-Kothagudem district decades before the ones displaced by the Salwa Judum. The Adivasis had subsequently filed a case in 2018 in the Hyderabad High Court (now renamed Telangana High Court) seeking a stay on the demolitions. The court issued a stay order in October 2017.

“They can get thrown out any day,” said Choudhary of CGNet Swara, emphasising that obtaining land rights is an important step towards restoring normalcy in their lives.

Back in Kota Namilipeta, Adama led the prayer at the community’s harvest festival, Kurmi Pendu, when fresh paddy is offered to the gods. No one in the community of Adivasis displaced from Chhattisgarh is a priest, so the people picked Adama–one of the earliest settlers–for the job.

Madakam Adama (left) leading the prayer at the community’s harvest festival, Kurmi Pendu, on October 7, 2019.

Adama squatted before clay idols of a horse and an elephant on a bright October day. Three mounds of mud were made in front of the idols. Adama began reciting prayer as people crammed into the open-air shrine in a square clearing in the forest just outside the village. The prayer sounded more like a conversation with a child as he persuaded the gods to eat the rice.

The prayer suddenly stopped. Adama looked up, and for the first time, a smile stretched across his gaunt face. A speck of rice had fallen off a mound. The gods had eaten. Now the people may eat, too.

(Nihar Gokhale is a writer with Land Conflict Watch, an independent network of researchers and journalists documenting ongoing land conflicts across India.)

Courtesy: India Spend

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The long overdue Forest Rights Act had also begun, slowly to ensure that tracts of land guarded by the Forest Dweller –who also protected them against rampant de-forestation has been –in one fell stroke-rendered ineffective through an Executive Order of the Environment Ministry (then under PrakashJavdekar). The matter lies in challenge in the Supreme Court.

Brute killings in Jharkand as the state and centre collude to snatch away Tribal Land are another moot point. Similarly labour laws, hard earned have been turned back with every effort being made to informalise the barely protected formal sector.

Both the Maharashtra and Gujarat governments have also attempted enacting laws that criminalises all criticism and dissent: The Gujarat Protection of Internal Security Act (GPISA) and a similar Maharashtra Law.  Both proposed laws will in fact be tools in the hands of the states to target any individuals or movements resisting government policy or action. Opposed by civil liberties groups, this opposition needs to be actually taken to the streets so that a mass movement in defence of democracy and civil liberties, emerges. In fact this remains, at the heart, the challenge to the Indian civil liberties movement. How to ensure that democratic politics itself enshrines genuine values of civil and political liberties and economic and cultural rights.Towards that end.

These proposed laws render any and all criticism of the existing political dispensation, especially the growing rage of the minority communities and Dalits against an increasingly intolerant regime, criminal.
 
How did BJP ruled states subvert one of independent India’s legislative efforts–The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, (LARR) 2013. This 2013 law replaced the colonial legislation of 1894? Six BJP ruled states have rendered this legislation, a reform driven law enacted after years of pressure from movements and struggles, meaningless.
 
What Modi could not do in Parliament, the states ruled by the BJP did in their states.But following the failure of the BJP government’s efforts to amend it through its land ordinances issued after 2014, six states have used constitutional provisions to make new laws. Other states have developed rules under the Act to dilute the rights of landowners and land dependent people in the face of land acquisition.
 
What the Modi government failed to do in early 2015, bring in a fresh law that in the name of making ‘land acquisition’ easier actually snatched away the original owner –be it the peasant, small farmer or tenants –right to have a say in whether or not the land should be acquired—the Gujarat Government, known for its infamous ‘Gujarat Model’ under NarendraModi did in April 2016 through the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat Amendment) Bill, 2016” (RFCTLARR, 2016), just recently passed, in the Assembly.
 
On April 1, 2016, deliberately on a day when the Opposition had been suspended from the House, the  Government of Gujarat (GOG), passed the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Gujarat Amendment) Bill, 2016”. A copy of the Bill, can be read here.
 
Jharkand erupted in conflict last year (July-November) as amendements in laws were pushed through to dilute the say of peoples and communities over what could or should be done with their lands.

It is BJP ruled States that Have Done Away with ‘Consent’ clause
The social audit provisions and consent by gram sabha were the two hallmarks of the amended 2013 LARR. States have diluted these by putting exceptions to state laws and rules when land acquisition needs to abide by these conditions. The seeking of consent of 70% (for PPP) and 80% (for private projects) of the landowners before acquiring their land was included in the law to address issues of land grab by the state: an individual’s home, farm or occupational right could be grabbed by merely issuing a notice. The provision of social audit is crucial to address the impacts of acquisition on the livelihoods of all those who don’t own land but are dependent on it. This is also crucial for comoensation and rehabilitation packages.

These provisions now stand diluted: In Jharkhand, for example, the quorum for seeking consent from the gram sabha has been reduced from half to one-third.

Gujarat, Rajasthan, Maharashtra, Jharkhand and Telangana have enacted new laws using Article 254(2) of the constitution by seeking presidential assent. Barring Telangana, all are BJP-ruled states. Their laws replicate or reflect the key amendments proposed in the 2014 ordinance. Gujarat and Telangana exempt a long list of projects from social impact assessment (SIA) and mandatory consent of landowners. These include projects of national security, defence, rural infrastructure, affordable housing, industrial corridors and other infrastructural projects, including projects under public-private partnerships (PPPs). In Maharashtra, PPP projects have been fully exempted from the SIA and consent clauses.

Why does ‘mainstream media not consistently showcase these dilutions?
 
Media and Corporate Capital  
In aninterview with P. Sainath in September 2014 (to Teesta Setalvad( he explained this phenomenon, “Convergence between Parliament, Big Business and Media: The interview also explores the complete domination of Indian Parliament by “more than millionaires” [the 2014 Indian Parliament has 353 of the 545 Members of Parliament worth Rs 10 million; when the last Parliament – 2009—had only 145 MPs worth Rs 10 million] lyand in turn these very individuals ( and their corporate business interests owning controlling shares in media). This enjoys a rare convergence, hitherto unparalleled that was witnessed in the brazen corporate campaign to spearhead Modi to power in 2014. (Sainath to Setalvad)”
 
There is a stranglehold on free thought, expression, association that is, most dangerously of all being constructed by this unholy nexus.
 
The most exacting challenge of all, then the re-emergence of a genuinely democratic real media.
 
 

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