1 TRIBAL LAND ALIENATION IN KERALA: A TALE OF PROMISES AND BETRAYALS * Cochin University Law Review

The State of Kerala was formed on 1st November 1956, as a part of the state’s reorganizat ion

exercise integrat ing Malabar wi th the pr incely states of Cochin and Travancore. Wal led of f by the

Western Ghats and watered by the Arabian sea, the smal l s t r ip of land cal led Keralam ( th is endear ing

term has been angl ic ized into Kerala) , wi th only 1.2 per cent of the geographical s ize of India, yet

housing a populat ion as large as that of Canada and almost double of Sr i Lanka and ten t imes that of

Costa Rica; has at t racted the at tent ion of the wor ld for i ts achievement in human development

comparable to that of the af f luent countr ies.1 To quote Nobel Laureate Amartya Sen, “To achieve as

much as Kerala has done for a populat ion of i ts s ize is no mean record in World History.”2 But behind

th is ent i re facade there is the gr im ta le of the adivasis . Adivasis const i tute the most run-down segment

of the Malayalee society. The most imperat ive reason for their wretched state of af fa i rs can be t raced

to the unabated process of land al ienat ion.

Land is at the heart of t r ibal l i fe. More than a th ing of value, land to him is mother earth, which

sat isf ies both his mater ia l and spir i tual needs. Hence depr iv ing him of h is land is to snap his

cont inuat ion as a sel f - respect ing member of society. Infact , the root cause of a l l human r ight v io lat ions

perpetuated on them can be t raced to land al ienat ion, s ince the t r ibals depend on land for their

ident i ty , existence, secur i ty and l ivel ihood.3

This study provides a detai led analysis of the problem of adivasi land al ienat ion in the State of

Kerala and examines the legis lat ive, execut ive and judic ia l in i t iat ives to address the issue. In i t ia l ly ,

the study provides a summary of the histor ical evolut ion of the problem. I t then chronic les the tussle

between the three organs of the state. A comparat ive analysis of the 1975 and 1999 state legis lat ions

is a lso at tempted. Addi t ional ly , a b i rd 's eye v iew of how legal systems overseas as wel l as how certa in

southern states in India l ike Andhra Pradesh and Karnataka have responded to s imi lar issues is

d iscussed. Final ly , i t concludes by put t ing forward a few suggest ions, which could be considered for

solv ing the 'quagmire. '

BR I E F HI S T O R Y OF TH E PR O B L E M

* Tony George Puthucherri l & Lekshmi Vi jayabalan , M.Phi l Research Scholars , West Bengal Nat ional Univers i ty of Jur idical Sciences , Kolkat ta . 1. T. R. OOMEN, KERALA EXPERIENCE 1 (1998). 2. See id. 3. See Lingappa Pochanna Appelwar v. State of Maharashtra (1985) 1 SCC 481, 491; see also Banwasi Seva Ashram v. State of Uttar Pradesh AIR 1987 SC 374.

2 In post- independent Kerala, large-scale estrangement of t r ibal lands took place mainly due to

the immigrat ion of p la insmen to the hi l l areas f rom with in and outs ide the state.4 A bot t le of l iquor, a

pack of tobacco, or some exot ic consumer goods f rom the pla ins lured the t r ibals into giv ing away their

lands.5 Even when money was involved the amount was pal t ry.6

The histor ic Kerala Land Reforms Act 1963, wi th i ts ' land to the t i l ler ' pol icy though a boon for many

poor farmers unfortunately was a bane for the adivasis . Under the new law the occupiers of the land

(set t ler farmers) became the owners and the or ig inal owners ( the t r ibals) became landless and were

reduced to the status of bonded labourers.7 Even the l i t t le that they used to get f rom the set t lers by

way of grat i f icat ion also stopped al l of a sudden. 8

This downswing in status led to the total derai lment of t r ibal l i fe. Many took to smuggl ing

act iv i t ies in t imber and drugs. Condi t ions turned worse when the set t lers denuded the forests giv ing

way to large-scale plantat ions and concrete mansions, thereby reducing even the diminut ive chances of

earning a l ivel ihood for the t r ibals. Urbanizat ion replaced the sereni ty of forest l i fe. Wanton obl i terat ion

of f lora and fauna upset the ecological balance. This forced the adivasis to move to the c i t ies and

towns. But what they encountered there only added to their woes.9 Hi therto, the adivasi women were in

complete empathy wi th the forest and the forest based t r ibal economy had a feminine t inge. Their

status also took a U-turn. Prost i tut ion became rampant and the number of unwed adivasi mothers

increased.1 0 Thus, the adivasis who became landless cool ies and vagabonds fe l l v ict ims of ruthless

exploi tat ion and human r ight abuses.

AT T E M P T S TO CU L L OU T A SO L U T I O N

Our nat ional leaders were wel l aware of the dangers posed by t r ibal land al ienat ion prevalent

in the country.1 1 Infact , Pandi t Nehru included th is issue as one of the main tenets in h is t r ibal

panchasheel .1 2 In 1960, the Debhar Commission also deal t wi th th is predicament.1 3 Meanwhi le an

4. See D. Rajeev & C.V. Kumaran, Kerala Law on Tribal Lands: A Critique, 19 C.U.L.R. 141, 142 (1995). 5. While piloting the Bill the Revenue Minister observed," Their ignorance, illiteracy, social backwardness etc. are being exploited. It is always possible to make them sell out their lands if they are treated with a little smack of tobacco and distilled arrack in the Wayanad and Attappadi regions. It is routine to have one's signed blank papers. This needs to be stopped." See Proceedings of the Fourth Kerala Legislative Assembly, Thirteenth Session August 5, 1975, p.201. 6. See G. Prabhakaran, Survey showed how Tribals Lost Land, THE HINDU, Oct. 16, 1996 at 4. 7. See N. S. Gopalakrishnan, Tribal Welfare Legislation in Kerala: A Critical Appraisal, 8 Ac.L.R. 81,111 (1984). 8. See T. Madhava Menon, Law and Tribal Societies in Kerala, 9 C.U.L.R. 157, 168 (1985). 9. See Murkot Ramunny, Woes of Kerala Tribals, INDIAN EXPRESS, July 14, 1996 at 5. 10. See P. I. Rajeev, Victims of Lust Await Justice, INDIAN EXPRESS, Sept. 21,1994 at 3. 11. See generally GENERAL SUMMARY OF THE REPORTS OF THE EXCLUDED AND PARTIALLY EXCLUDED AREAS (OTHER THAN ASSAM) SUB-COMMITTEE AND THE NORTH-EAST FRONTIER (ASSAM) TRIBAL AND EXCLUDED AREAS SUB-COMMITTEE available in VII C.A.D. 12. See K.A. Gangadharan, Tribal Welfare and Development in Kerala, 9 C.U.L.R. 173, 174 (1985).

3 Evaluat ion Commit tee of the Kerala State Legis lature pointed out the social hazards posed by such

al ienat ion.1 4 Dur ing the dark days of the emergency a s igni f icant meet ing of the state ministers was

convened by late Pr ime Minister Smt. Indira Gandhi which approved fourteen resolut ions aimed at t r ibal

wel fare.1 5 State governments were also advised to take sui table measures to restore the lands to the

adivasis.

Responding to th is advice the state government headed by Sr i . Atchutha Menon took ser ious

note of the matter . A Bi l l to redress the t r ibal land issue pi loted by Sr i . Baby John, the Revenue

Minister was unanimously passed as The Kerala Scheduled Tr ibes (Restr ic t ion on Transfer and

Restorat ion of Al ienated Lands) Act , 1975.1 6 I t was intended to amel iorate the pl ight of the under

pr iv i leged t r ibals, “who despi te paper plans and mult i -point programmes are at the v ict ims end of

barbar i ty, in just ice, pr ivat ion and sharp pract ice inf l ic ted on them by the c iv i l ized gentry” .1 7

The Act , which could be t raced to Entry 6 of L ist I I I of the Seventh Schedule to the Const i tut ion,

received the assent of the President of India1 8 on 11-11-1975 and was fur ther included in the Ninth

Schedule1 9 so as to immunize i t f rom judic ia l scrut iny.2 0

However, the lackadais ical at t i tude displayed by successive governments made the Act remain in

cold storage for near ly e leven years.2 1 Final ly , in 1986 the government brought the Act into force wi th

retrospect ive ef fect f rom 1-1-19822 2 and also f ramed the necessary Rules.2 3 Even though about 8,500

appl icat ions seeking restorat ion were received f rom tr ibals, act ion was not taken even on a s ingle

pet i t ion thereby reducing the whole exercise to a farce.2 4 Hence, even af ter f raming the Rules, the

general atmosphere only encouraged the encroachers to cont inue occupying t r ibal lands and

successive governments turning a Nelson's eye to the issue.

13. See generally REPORT OF THE SCHEDULED AREAS AND SCHEDULED TRIBES COMMISSION (1960) available in VIRENDER KUMAR (ed.), 4 COMMITTEES AND COMMISSIONS IN INDIA 1947-73. 14. Rajeev & Kumaran, supra note 4, at 143. 15. Gangadharan, supra note 12, at 176. 16. While piloting the Bill in the House Sri. Baby John observed: " In a state, which claims to be progressive, it is for us to think whether there is real progress or whether the so called progress is a fallacy. When one such segment of the population is suffering from and is in slavery, what is the point in boasting that we are progressing. It is on realisation of all these facts that the said Bill is introduced intending to prevent assignment of such land and to scrutinise the assignments already effected. See supra note 5, at 203. 17. See V. R. Krishna Iyer, Tribal Uplift and the Rule of Law, 9 C.U.L.R. 1, 3 (1985). 18. Constitution of India, Article 252 (2). 19. The Constitution (Fortieth Amendment) Act, 1976 added The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 to the Ninth Schedule as the 150th entry into this protective umbrella. 20. Constitution of India, Article 31B. 21. See C. R. Bijoy, Adivasis Betrayed: Adivasi Land Rights in Kerala, 1999 E.P.W. 1329,1330. 22. The Act was brought into force with effect from 1. 1.1982 vide an extraordinary notification in the Kerala Gazette, SRO No. 130/86 dated 24.1.1986. 23. The Kerala Scheduled Tribes (Restriction on Transfer and Protection of Alienated Lands) Rules 1986. 24. See C. R. Krishna Kumar, The Adivasi Struggle, FRONTLINE, Oct. 13, 2001, at 30.

4 I t was in th is background that Dr. Nal la Thampi Thera, a t r ibal act iv ist pet i t ioned the High Court

of Kerala against the set t lers and the state government. The Court issued a wr i t of Mandamus direct ing

the state to take utmost steps to execute the purposes of the Act wi th in s ix months.2 5

Meanwhi le, the antagonists of the Act sought to confront i ts const i tut ional i ty in Bhavani v. State

of Kerala.2 6 The High Court however concluded that s ince the Act was included in the Nin th Schedule

to the Const i tut ion, chal lenge to i ts provis ions on the ground that i t v io lates Part I I I of the Const i tut ion

could not be enterta ined. Again in Father Thomas Kubukatt v. State of Kerala2 7 the High Court was

cal led upon to decide on the vires of the Act . I t was impugned on the ground that i ts provis ions were

v io lat ive of the basic structure of the Const i tut ion, in part icular the basic feature of ru le of law.

However, the Div is ion Bench concluded that s ince the aggr ieved party could approach the H igh Court

under Art ic le 226 to quest ion the orders passed by the quasi- judic ia l bodies under the Act , i t was not

v io lat ive of ru le of law nor was there any infr ingement of the r ight to judic ia l review.

Even af ter receiv ing posi t ive s ignals f rom the jud ic iary, the government however, kept employing

di latory tact ics. The assurance given by the then Addi t ional Advocate General that , “utmost steps would

be taken for the disposal of the appl icat ions and that the Act would be enforced in al l i ts r igor, ”2 8

turned out to be pla in double ta lk. Judic ia l repr ieve was obtained in the form of two orders permit t ing

extension of t ime by one and hal f years. The state f i led yet another appl icat ion for extension of t ime by

a year. Sensing that the wi l l to implement the Act was lacking, the High Court granted extension by

only s ix months and also gave certa in di rect ions wi th a v iew to moni tor the act ive progress of

implementat ion of the Act and of the wr i t . Accordingly, the concerned author i t ies heard and disposed of

most of the appl icat ions f i led by the t r ibals for restorat ion of land. In most cases there were no appeals

and the orders for restorat ion became f inal . In th is context , the court issued yet another d i rect ion to the

ef fect that the propert ies covered by orders of restorat ion against which no appeals are pending and in

which no compensat ion is payable, be del ivered by the Revenue Div is ional Off icer 's (RDO) to the

t r ibals, wi th in s ix weeks of that order. Further, the Distr ic t Super intendents of Pol ice were to af ford the

needed protect ion to the RDO's in carry ing out the duty of restorat ion.2 9 Perceiv ing that matters were

going out of their hands the government preferred an appeal before the Ful l Bench, which stayed the

direct ions issued by the Single Judge whi le grant ing their p lea to amend the Act .

25. O.P. No. 8879 of 1988 decided on 15. 10. 1993. 26. 1989(1) KLT SN 37 Case No. 58. 27. 1994(2) KLT 25. 28. See supra note 25. 29. State of Kerala v. P. Nalla Thampi Thera 1996(2) KLT 930 (Justice P.K. Balasubramanyam observed "…What could be the excuse for not implementing those orders? The alibi put forward is that there is organised resistance to the attempts to implement the orders. Can a democratic state with the Rule of Law as its beacon light, bow to such illegal resistance to the implementation of a welfare legislation to benefit the oppressed classes? Clearly it cannot. If it is permitted, it will be the very negation of the concept of Rule of Law.") Id. at 935.

5 Accordingly, the Uni ted Democrat ic Front government then in power at tempted to amend the Act by

an Ordinance in ear ly 1996. But the Governor Sr i . Shiv Shanker refused to s ign the Ordinance on the

ground that i t was elect ion t ime and that the Elect ion Code would not author ize i t . As fate would have

i t , i t was now the turn of the r ival f ront , viz. the Lef t Democrat ic Front to d i l ly-dal ly wi th the matter . On

ascending to power they prompt ly prepared another Ordinance but fa i led to get the c learance f rom Sr i .

Kurshid Alam Khan, the Governor of Karnataka who was given addi t ional charge of Kerala.3 0

Thereupon, the state legis lature 'unanimously ' passed ‘The Kerala Scheduled Tr ibes

(Restr ic t ion on Transfer of Lands and Restorat ion of Al ienated Lands) Amendment Act , 1996 amending

the 1975 Act wi th the sole dissent of member Smt. K.R.Gowri .3 1 Infact , i t was one of the rare moments

when one could see rul ing-opposi t ion camarader ie. The day also wi tnessed the adivasi leader C.K.

Janu, the convener of the Adivasi Ekopana Samithi a long wi th her fo l lowers at tempt ing to forc ib ly enter

the Assembly.3 2 The amendment was infact an at tempt to protect the r ights of the set t lers rather than

that of the underpr iv i leged adivasis . A retrograde step l ike th is f rom a government commit ted to

social is t ic pr incip les and who boasted that i t was they who introduced the revolut ionary land reforms,

wi thout spi l l ing even a s ingle drop of b lood was al l the more appal l ing. The adivasi movement became

more aggressive. With the sensat ional hostage cr is is staged by the Ayyankal i Pada involv ing the

Palakkad Distr ic t Col lector W.R.Reddy , the f i rst such incident in the state the adivasis s ignal led that

they were not wi l l ing to take th ings l ight ly.3 3

Meanwhi le, the government submit ted the Bi l l to the President of India for h is assent. However, the

President who has a const i tut ional duty to protect the interests of the t r ibals refused assent. In the l ight

of the President ia l refusal , the Ful l Bench of the Kerala High Court vacated i ts inter im order staying the

implementat ion of the direct ions issued by the Single Judge and directed the government to implement

the Single Judge order. The government however cont inued to play t ruant. Dr.Thera once again

approached the High Court th is t ime wi th a plea to invoke the most powerful weapon in the judic ia l

armoury - the contempt jur isdict ion for wi l fu l d isobedience to the wr i t of mandamus.3 4 With no way out

the government came up wi th a new law 'The Kerala Restr ic t ion On Transfer By And Restorat ion Of

Lands To Scheduled Tr ibes Act 1999' .3 5 I t was nothing but the 1996 Amendment Act in the garb of a

new name. The Act introduced in the Assembly by the Revenue Minister Sr i . K.E.Ismai l could be t raced

30. Bijoy, supra note 21, at 1329. 31. See K.R.Gowri, Adivasi Land Law: Many Facts, MATHRUBHUMI, Nov. 1, 1996 at 3. 32. Bijoy, supra note 21, at 1330. 33. See We will Block Government Move: Tribal Activist, THE HINDU, Oct. 14, 1996 at 1. 34. C.C.C. 542 of 1998. 35. See Statement of Objects and Reasons of Bill No. 163, X Kerala Legislative Assembly Bills.

6 to Entr ies 18 and 65 of L ist I I . 3 6 The Act which ostensibly had as i ts avowed object , protect ion of t r ibal

r ights in real i ty depr ived the t r ibals the r ights that had accrued to them under 1975 Act .

The const i tut ional val id i ty of the said Act was chal lenged before the High Court in two Orig inal

Pet i t ions f i led by Niyamavedi and The Peoples Union for Civ i l L ibert ies.3 7 A Div is ion Bench of the

Kerala High Court in th is s igni f icant pronouncement held that the 1999 Act "was brought forward merely

to c loak the design to protect the i l legal t ransferees f rom the t r ibals in the guise of enact ing a law to

protect the t r ibals."3 8 The crux of the judgement centred on the val id i ty of the Proviso to Sect ion 5(1),

Sect ion 5(2), Sect ion 6 and Sect ion 22 of the 1999 Act. Proviso to Sect ion 5(1), Sect ion 5(2) and

Sect ion 6 were struck down as v io lat ive of Art ic le 14 of the Const i tut ion as there was no nexus wi th the

object sought to be achieved by the Act .3 9 These provis ions were also held v io lat ive of Art ic les 214 0

and 19(1) (e)4 1 as they contemplated displacement of the t r ibals to unfami l iar areas thereby fa i l ing to

preserve their habi tat and cul ture. With regard to the const i tut ional i ty of Sect ion 22 which repeals the

1975 Act in i ts ent i rety the court concluded that s ince the 1999 Act deal t wi th agr icul tural lands alone

the sect ion suf fered f rom the v ice of i r rat ional i ty and displayed arbi t rar iness.4 2 Further, on the quest ion

as to whether the 1999 Act af fects the accrued r ights of the t r ibals under the 1975 Act , the court opined

that s ince orders were passed under the said Act r ights had been conferred on them and the same

could not be depr ived.4 3 Again as there was no inval id i ty to be cured in the 1975 Act, the 1999 Act

which suf fers f rom part ia l inf i rmi ty could not nul l i fy or abrogate the wr i t of mandamus issued under a

val id law.4 4 So also as the 1999 Act was an at tempt to destroy the r ights of the t r ibals and also to

bypass the posi t ion emerging f rom the president ia l refusal to assent, the court held Proviso to Sect ion

5(1), Sect ion 5(2), Sect ion 6 and Sect ion 22 of the 1999 Act to be inval id as being colourable

legis lat ion.4 5

Accordingly, the court st ruck down the aforesaid object ionable provis ions as unconst i tut ional and

void and directed the state and the author i t ies under the 1975 Act to implement the orders of

restorat ion passed under the said Act .4 6 This decis ion shal l no doubt go down in the history of the

36. It was inorder to bypass the constitutional procedural hurdle that the government brought the new legislation under the State List there by cleverly avoiding the fate of its predecessor Bill. 37. O.P. No. 25332 of 1999 and O.P. No. 26499 of 1999. 38. Id . a t 60 39. Id . a t 67-68. 40. Id . a t 72. 41. Id . a t 69. 42. Id . a t 81. 43. Id . a t 61, 90-91. 44. Id . a t 83-89. 45. Id . a t 48-60. 46. Id . a t 96.

7 annals of the Kerala High Court as one, which sought to for t i fy the edi f ice, of a 'new tr ibal

jur isprudence' which was being moulded by the Supreme Court and the var ious High Courts of the land.

Against th is decis ion, unfortunately, the state government has preferred an appeal before the Supreme

Court , which is st i l l pending.

In July 2001, starvat ion deaths were reported in the adivasi - inhabi ted areas of the state. This

led to a wide spread agi tat ion by the Adivasi Dal i t Act ion Counci l wi th refugee camps being set up in

f ront of the state secretar iat . This for ty e ight-day agi tat ion concluded wi th a seven-point agreement

reached between the adivasis and the state government. As a part of the deal the government unvei led

the Tr ibal Rehabi l i tat ion and Development Mission (TRDM).4 7 The main feature of th is new agreement

is that near ly 42,000 acres of land are to be distr ibuted to the t r ibals. However, in the land earmarked

for the purpose near ly 25,000 acres happen to be vested forests.4 8

An important character ist ic of th is phase of the agi tat ion is that the adivasis and the set t ler

farmers have bur ied their d i f ferences wi th even pol i t ical groups represent ing set t ler farmers support ing

the t r ibal agi tat ion. This may be so because the adivasis are demanding al ternate lands instead of

restorat ion of the al ienated lands in the possession of the set t ler farmers.

Under an ear l ier legis lat ion namely, the Kerala Pr ivate Forest (Vest ing and Assignment) Act , 1971

vested forest land could be given to the landless adivasis . However th is could not be implemented due

to the subsequent central legis lat ion namely the Forest (Conservat ion) Act 1980 which mandated the

states to get the Union government 's c learance i f forest land is to be diverted for non-forest purpose.4 9

Accordingly, the state government has present ly sought central c learance for a l locat ing vested

forest land to the t r ibals.5 0 This move of the state government seems to be highly r isky especial ly in the

l ight of previous exper ience of such governmental assurances to prevent t r ibal land al ienat ion proving

fa lse. Admit tedly, the loss of forests would upset the f ragi le ecological balance. I f , sanct ion is accorded

by the Central Government i t would give the set t lers yet another opportuni ty to exploi t the t r ibals and in

no t ime the ent i re story would be re-enacted. Forest lands being part of the common her i tage of

mankind should not fa l l prey to the government 's myopic pol ic ies. Such s in ister moves should be

discouraged. Instead the government should f ind out other sources of land.

A COMPARATIVE ST U D Y OF TH E 1975 AN D 1999 LE G I S L A T I O N S: DI L U T I O N IN AL T R U I S M 47. See C.Surendranath, Raw Deal , DOWN TO EARTH, Feb.15, 2002, a t 20. 48. See Chances for Set t lement of Adivasi S t ir Brighten, THE HINDU, Oct .15, 2001 at 1 . 49. See Sect ion 2; see also T. N. Godavarman Thirumulkpad v . Union of India AIR 1997 SC 1228,1230(observing that the term fores t land occurr ing in Sect ion 2 of the Forest (Conservat ion) Act wil l not only include fores t as unders tood in the dic t ionary sense , but a lso any area recorded as fores t in the government record i r respect ive of ownership and accordingly, pr ior approval of the Central Government is required for any non-fores t act ivi ty within the area of any fores t . ) 50. Surendranath, supra note 47, a t 21.

8 Eventhough the object ives as set out in the Preamble to both the Acts are worded in ident ical

terms i .e. , both seek to provide restr ic t ion on the t ransfer of lands by members of the scheduled t r ibes

in the State of Kerala and for the restorat ion of possession of lands al ienated by such members,

regret fu l ly the s imi lar i ty ends there.

Whi le both statutes extend to the whole State of Kerala,5 1 the 1975 Act was to come into force

only on such date as the government may not i fy in the gazette,5 2 whi le the 1999 Act came into force on

the 24t h day of January 1986.5 3 Had the lawmakers of the 1975 Act speci f ied that i t was to come into

force immediately, the issue of land al ienat ion would have been resolved decades ago, wi thout

snowbal l ing into the ongoing social conf l ic t .

Di lut ion in spir i t can be perceived in the def in i t ional incongrui ty in the term ‘ t ransfer ’ as seen in

both the Acts.5 4The 1975 Act enhances the scope of the term transfer by including in i ts cover oral

t ransact ions too. This is h ighly s igni f icant because the t r ibal who is i l l i terate and ignorant may not

know the s igni f icance of recording t ransact ions. Tr ibal 's have high regard for the word and bel ieve that

others also are so. Therefore, he is prepared to put h is thumb impression or s ign on any paper wi thout

any hesi tat ion. Hence, i t is necessary that oral evidence be placed on a higher pedestal wi th the same

having dominance over a l l forms of documentary evidence.5 5 But unfortunately the 1999 Act

considerably diminishes the s igni f icance of the term ' t ransfer ' by excluding oral t ransact ions.

The 1975 Act appl ied to al l t ransfers of ' immovable property ' 5 6 whi le the 1999 Act appl ies only to

t ransfer of ' lands' as def ined to mean 'any agr icul tural land' . 5 7 Thus, the 1999 Act , which covers only

one species of t ransact ion out of the several , h i t by i ts predecessor Act is narrower in scope.

Both the Acts which are inappl icable in certa in cases5 8 prohibi t t ransfer of immovable property /

land possessed, enjoyed or owned by a scheduled t r ibe member to an outs ider except wi th the pr ior

wr i t ten consent of the 'Competent Author i ty ' who usual ly is the Distr ic t Col lector. 5 9 Due to the

restr ic t ion in the scope of the 1999 Act by making i t appl icable only to t ransfers of agr icul tural land,

t r ibals can now al ienate their immovable property excluding agr icul tural land wi thout the permission of

the distr ic t col lector . Thus, i ts restr ic t ive provis ion by provid ing lesser protect ion to the t r ibals infact

51. Sect ion 1(2) of the 1975 Act and Sect ion 1(2) of the 1999 Act .

52. Sect ion 1(3) .

53. Sect ion 1(3) .

54. Sect ion 2(g) of the 1975 Act and Sect ion 2(g) of the 1999 Act ; see also Rajeev & Kumaran, supra note 4, at 145- 51. 55. See generally REPORT ON DEVELOPMENT OF TRIBAL AREAS (1978) available in VIRENDER KUMAR (ed) , 14 COMMITTEES AND COMMISSIONS IN INDIA 1947-73. 56. Sect ion 2(b) .

57. Sect ion 2(b) .

58. Sect ion 3 of the 1975 Act and Sect ion 3 of the 1999 Act .

59. Sect ion 4 of the 1975 Act and Sect ion 4 of the 1999 Act .

9 runs counter to the Preambular goals enshr ined in the 1999 Act . This s igni f icant ' loophole ' by

legis lat ive design, can in the long run prove counter-product ive to t r ibal interests s ince i t may faci l i tate

fur ther t r ibal land al ienat ion.

Both the Acts seek to inval idate t ransfers f rom 1960 of immovable property / land possessed,

enjoyed or owned by a member of the scheduled t r ibe to an outs ider.6 0 However the Proviso to Sect ion

5 (1) of the 1999 Act seeks to regular ise al l t ransfers of land, which do not exceed two hectares.

Further, Sect ion 5(2) provides that i f the land (agr icul tural land) involved is used for agr icul tural

purposes, t ransferee can retain possession of the said land upto an extent of two hectares. Thus, the

combinat ion of these two provis ions prove a lethal cocktai l taking away wi th one hand what had been

given by the other.

Further, in cases where the t ransfer involved has been val idated by proviso to Sect ion 5(1) or by

Sect ion 5(2) the government has to recompense the t r ibal appl icant h is loss by restor ing an equal

extent of land by way of a l lotment f rom the government land.6 1 This provis ion infact t ransfers the

burden f rom the shoulders of the i l legal t ransferees to the publ ic at large.

Thus, a reading of the Proviso to Sect ion 5(1), Sect ion 5 (2) and Sect ion 6 wi l l lead one to the

inescapable conclusion that the 1999 Act was a blatant at tempt to protect the set t ler 's interests.

Another quest ionable provis ion in the 1999 Act is Sect ion 22. Even though the scope of the said

Act is restr ic ted being appl icable only to agr icul tural lands, Sect ion 22 (1) seeks to repeal the 1975

Act, a legis lat ion wider in ambit .

Procurement of immovable property / lands of the t r ibals in contravent ion of Sect ion 4 as seen in

both the Acts is made punishable.6 2 Magistrates of the First Class are empowered to take cognisance

of of fences under both the Acts.6 3 However, the Magistrate is not to proceed against scheduled t r ibe

members under Chapter X of the Code of Cr iminal Procedure 1973 in respect of any dispute between

the t r ibals and any other person c la iming to be in possession or enjoyment of the t r ibal land.6 4 I f

necessary the government can const i tute Special Courts for t ry ing of fences under the Act .6 5 Jur isdict ion of c iv i l courts is barred wi th regard to matters that are to be decided or set t led by the

competent author i ty or by the RDO.6 6

60. Sect ion 5 of the 1975 Act and Sect ion 5 of the 1999 Act . 61. Sect ion 6 of the 1999 Act . 62. Sect ion 13 of the 1975 Act and Sect ion 12 of the 1999 Act . 63. Sect ion 14(1) of the 1975 Act and Sect ion 13(1) of the 1999 Act . 64. Sect ion 15 of the 1975 Act and Sect ion 14 of the 1999 Act . 65. Proviso to Sect ion 14 (1) of the 1975 Act and Proviso to Sect ion 13(1) of the 1999 Act . 66. Sect ion 21 of the 1975 Act and Sect ion 20 of the 1999 Act .

10 I f a t ransfer is h i t by ei ther Sect ions 4 or 5 of both the Acts then the t r ibal is ent i t led to restorat ion

of possession or enjoyment of the immovable property / land, as the case may be.6 7 For th is, e i ther he

or any person on his behal f can make an appl icat ion ei ther oral ly or in wr i t ing to the RDO, provided the

t ransfer had taken place before the date of commencement of the Act .6 8 But i f the t ransfer had taken

place af ter the commencement of the Act , then in addi t ion to seeking restorat ion of possession or

enjoyment, the t r ibal could also sol ic i t the prosecut ion of the person who has procured such immovable

property / land.6 9 The RDO on receipt of an appl icat ion for the above purpose shal l make necessary

enquir ies and i f he is sat isf ied that the appl icant or the person on whose behal f the appl icat ion has

been made is ent i t led to restorat ion of possession or enjoyment, he can by order d i rect the person in

possession or enjoyment of immovable property / land to restore possession ei ther to the appl icant or

to the person on whose behal f the appl icat ion has been made.7 0 While passing such an order a

reasonable opportuni ty of being heard should be af forded to the person in possession or enjoyment of

such property or land.7 1 Al l such orders should be served on the person for whom i t is intended. 7 2 Any

person aggr ieved by th is order may wi th in a per iod of th i r ty days f rom the date of serv ice of the order

prefer an appeal to the Competent Author i ty whose decis ion shal l be f inal and cannot be chal lenged in

a court of law.7 3 I f an order approved by the RDO direct ing the person in possession or enjoyment of

the disputed immovable property / land to restore possession thereof to the appl icant or to the person

on whose behal f the appl icat ion has been made is not compl ied wi th, and an appeal has not been

preferred wi th in the st ipulated t ime or appeal preferred, but has been dismissed then the RDO shal l

evict the person who refuses to vacate the same.7 4

In cases where possession or enjoyment of immovable property / land as the case may be has

been restored to a scheduled t r ibe member, i t is provided that he has to pay an amount which is

equivalent to the amount of considerat ion received by such member at the t ime of the t ransfer. More

over i f any improvements have been made in the property, then af ter determinat ion by the Competent

Author i ty, the t r ibal must refund the amount so invested.7 5 Further, i t has been provided that the

67. Sect ion 6 (1) of the 1975 Act and Sect ion 7(1) of the 1999 Act . 68. Sect ion 6 (2)(a) of the 1975 Act and Sect ion 7(2)(a) of the 1999 Act . 69. Sect ion 6 (2)(b) of the 1975 Act and Sect ion 7(2)(b) of the 1999 Act . 70. Sect ion 6 (3) of the 1975 Act and Sect ion 7(3) of the 1999 Act . 71. Proviso to Sect ion 6 (3) of the 1975 Act and Proviso to Sect ion 7(3) of the 1999 Act . 72. Sect ion 6 (4) of the 1975 Act and Sect ion 7(4) of the 1999 Act . 73. Sect ion 6 (5) of the 1975 Act and Sect ion 7(5) of the 1999 Act . 74. Sect ion 6 (6) of the 1975 Act and Sect ion 7(6) of the 1999 Act . 75. Sect ion 11 of the 1975 Act and Sect ion 8 of the 1999 Act .

11 government shal l provide loans or grants as the case may be, to e l ig ib le persons who are l iable to pay

the aforement ioned amounts.7 6

Thus, a comparat ive analysis of both the Acts would reveal that procedural ly , both are al ike.

However, i t is in substant ive matters that they di f fer . Whi le the ear l ier Act contains many benign

provis ions aimed at t r ibal wel fare, unfortunately the later Act makes no room for these, thereby

substant iat ing the cr i t ic ism that i t is ant i - t r ibal in nature.

For instance, the 1975 Act seeks to re locate the burden of proof7 7 on the person who cla ims

such t ransfers to be val id7 8 thus making a shi f t f rom the posi t ion contemplated in the Evidence Act

wherein the burden of proving the inval id i ty of the t ransfer would have fa l len on the appl icant

concerned. Inorder to reduce the incidence of f raudulent t ransfers the ear l ier Act provided that

registrat ion of t ransfers of immovable property can be ef fected only i f the condi t ions of t ransfer

contained in the Act have been str ic t ly compl ied wi th.7 9 So also whi le execut ing a money decree

against a t r ibal no r ight or interest held by him in any immovable property is to be at tached or sold

except to the extent and manner provided.8 0

Yet another notable feature of the ear l ier legis lat ion is that , i t g ives suo-mottu power to the

government to di rect the person in enjoyment or possession of immovable property to return the same

to the concerned scheduled t r ibe member af ter necessary inquir ies and af ter g iv ing a reasonable

opportuni ty of being heard.8 1 As the Bi l l or ig inal ly stood the adivasis a lone could submit appl icat ions.

But on account of their backwardness and i l l i teracy and the adivasis not being in a posi t ion to resist

pressure by economical ly wel l p laced people who may by hook or by crook t ry to defeat the legal

process, Sect ion 7 was incorporated.8 2 These wel fare provis ions are thus conspicuous by their absence

in the 1999 Act .

This does not mean that the 1999 Act is ent i re ly devoid of mer i ts. A notable feature of the 1999 Act

is that i t seeks to create a Scheduled Tr ibe Rehabi l i tat ion and Welfare Fund which is to be ut i l ised for

the construct ion of houses for t r ibal fami l ies and for other wel fare measures.8 3 The 1975 Act had

barred legal pract i t ioners f rom appear ing, p leading or act ing on behal f of any party in any proceedings

76. Sect ion 12 of the 1975 Act and Sect ion 9 of the 1999 Act . 77. Sect ions 101, 102 and 103 of the Indian Evidence Act 1872. 78. Sect ion 8 . 79. Sect ion 9 . 80. Sect ion 10. 81. Sect ion 7 . 82. See supra note 5 , a t 206. 83. Sect ion 11.

12 before the RDO or the Competent Author i ty or the government, except wi th their wr i t ten permission.8 4

However, the Revenue Minister whi le introducing the Bi l l for the 1975 Act had stated that eventhough

there was no provis ion to provide f ree legal assistance the government would make necessary

arrangements to provide the same.8 5 The 1999 Act goes a step ahead by speci f ical ly provid ing legal

assistance to the members of the scheduled t r ibes.8 6 Though, the provis ion looks innocuous and

commendable in real i ty i t opens up the whole procedure to a cumbersome legal process. Competent

legal assistance may of ten be a distant dream for the t r ibals, wi th the legal assistance provided by the

state proving to be a bane. Perhaps, the greatest advantage contemplated by the 1999 Act is that i t

empowers the government to assign land up to 40 ares to the landless Scheduled Tr ibe fami l ies wi th in

the distr ic t they reside. Also in cases, where the possession and enjoyment of land by a Scheduled

Tr ibe fami ly is less than 40 ares then the government could make good the loss so as to make i t

equivalent to 40 ares.8 7 Though in pract ice these hopes become i l lusory s ince fer t i le lands in these

areas are minimal and al l that remains for the adivasi is rock-strewn, unfert i le and inhospi table terrain.

Thus, a perusal of the two legis lat ions would lead one to concur wi th Just ice C.S.Rajan’s

observat ion wi th regard to the 1999 Act that , “…no democrat ic government, whose leaders day in and

out , procla im their objects for extending the var ious wel fare measures to the t r ibal people can enact

such a piece of legis lat ion which is tota l ly ant i - t r ibal and def ies the const i tut ional protect ion granted to

the Scheduled Tr ibes.”8 8 TRIBAL LAND ALIENATION - OTHER EXPERIENCES Nat iona l Scenar io

Andhra Pradesh

In the late nineteenth century, one could see large-scale immigrat ion of non-tr ibals to the

v i rg in t r ibal areas s i tuated on the Eastern Ghats in Andhra Pradesh. With th is non-tr ibal incursion t r ibal

lands soon passed on to the unscrupulous moneylenders and t raders. Even though a few legis lat ions

l ike The Ganjam and Vizagapatnam Act 1874, The Scheduled Distr ic ts Act 1874 and The Agency Tracts

and Land Transfer Act 1917 protected the t r ibals, t r ibal exploi tat ion cont inued.8 9

84. Sect ion 16; see also Sect ion 13 of the Family Courts Act 1984. 85. See supra note 5 , a t 209. 86. Sect ion 16. 87. Sect ion 10. 88. See supra note 37, a t 16. 89. See CHRISTOPH VON FURER - HAIMENDROF, TRIBES OF INDIA: STRUGGLE FOR SURVIVAL 38 (1985); see also D. Ramachandra Raju, Protect ive Laws in Scheduled Areas of Andhra Pradesh , 9 C.U.L.R. 149, 150-51 (1985) .

13 Af ter the inaugurat ion of the Const i tut ion, Art ic le 244 and the Fi f th Schedule were made

appl icable to the administrat ion of the t r ibal areas in the state. Since exploi tat ion reached breaking

point , the Governor by v i r tue of the powers under Para 5(2) promulgated The A.P. Scheduled Areas

Land Transfer Regulat ion 1959 (hereinaf ter referred to as LTR). Under the Regulat ion any t ransfer of

immovable property s i tuated in the agency t racts by a member of the scheduled t r ibe was nul l and void

unless made in favour of any other member of a scheduled t r ibe or a registered co-operat ive society

composed solely of such members or made wi th the previous consent of the Agent in wr i t ing.9 0 The

Agent was empowered to decree an ejectment and restore any immovable property to the t ransferor or

h is heirs, the t ransfer of which was in contravent ion of the Regulat ion.9 1 Since di f f icul t ies were

exper ienced in implement ing the Regulat ion, the Andhra Pradesh Scheduled Areas Land Transfer

(Amendment) Regulat ion 1970 was ef fected.

The Supreme Court had an occasion to assess the val id i ty of the Regulat ion for the f i rst t ime in

P.Rami Reddy v . State of A.P . 9 2 Eventhough the chal lenge was rooted on the repealed Art ic le 19 (1)( f )

acknowledging the v i ta l importance the issues had on t r ibal wel fare, the Court proceeded to look into

them.9 3 Analysing the argument that the presumpt ion embodied in Sect ion 3(1)(b) was unreasonable

the Court observed that i t was only a ru le of evidence and that the non-tr ibals who acquired the

property of the t r ibals could be reasonably expected to disclose the t i t le.9 4 The Court then focused on

the appel lant 's content ion that the term land was used in a restr ic ted sense in Paragraph 5(2)(a) of the

Fi f th Schedule. I t was found to be devoid of mer i ts s ince the term land in i t 's legal sense is a

comprehensive expression wide enough to include structures and fur ther to interpret land in a narrow

sense would render the benevolent provis ions impotent .9 5 The legal i ty of the Regulat ion was fur ther

assai led on the ground that there was no rat ionale in restra in ing non-tr ibals f rom transferr ing t r ibal

lands to other non-tr ibals. However, the Court turned down the argument s ince the non-tr ibal economic

exploi ters could not be accorded pr iv i leged t reatment by permit t ing them to t ransfer t r ibal lands and

structures raised on them to non-tr ibals and make prof i ts at the cost of t r ibals.9 6

90. Sect ion 3(1)( i ) . 91. Sect ion 3(2)(a) . 92. (1998) 3 SCC 433. 93. Id . a t 444. 94. Id . a t 449. 95. Id . a t 448. 96. Id . a t 446.

14 Samatha, an NGO working in the scheduled areas of Andhra Pradesh, f i led a Special Leave

Pet i t ion against the state Government for leasing out t r ibal lands to pr ivate mining companies. The

sal ient points of th is h istor ic judgement are9 7 - 1. Since government was a person under Sect ion 3(1) (a) of the LTR, government lands, forest lands

and t r ibal lands in Scheduled Areas could not be leased out to non-tr ibals or to pr ivate companies

for mining/ industr ia l operat ions.

2. Al l mining leases granted by the state government in the Schedule areas and renewals thereof were

i l legal and nul l and void and the state government was to stop al l industr ies f rom mining operat ions.

3. The State Mineral Development Corporat ion or a co-operat ive of t r ibals could take up mining act iv i ty

only i f they compl ied wi th the Forest (Conservat ion Act) 1980 and the Environment (Protect ion) Act

1986.

4. After the 73rd Amendment and the Panchayat (Extension to Scheduled Areas) Act , Gram Sabhas

were held competent to preserve and safeguard community resources and rei terated the r ight of

sel f -governance of adivasis .

5. In cases where s imi lar Acts in other States do not tota l ly prohibi t grant of mining leases of the lands

in the Scheduled Area, Commit tee of Secretar ies and State Cabinet Sub-Commit tees should be

const i tuted and decis ion should be taken thereaf ter .

6. Before grant ing leases, i t would be obl igatory for the state government to obtain concurrence of the

Central Government which would, for th is purpose, const i tute a Sub-Commit tee consist ing of the

Pr ime Minister of India, Union Minister for Welfare, Union Minister for Environment so that the

State’s pol icy would be consistent wi th the pol icy of the nat ion as a whole.

7. I t would also be open to the appropr iate legis lature, preferably af ter a thorough debate/conference

of a l l the Chief Ministers, Ministers concerned, to take a pol icy decis ion so as to br ing about a

sui table enactment in the l ight of the guidel ines la id down above so that there would emerge a

consistent scheme throughout the country, in respect of the t r ibal lands under which nat ional weal th

in the form of minerals, is located.

97. See general ly Samatha v . S tate of Andhra Pradesh and Others (1997) 8 SCC 191(this Special Leave Pet i t ion (SLP (C) No.17080-81/95) was f i led to resolve mutual ly inconsis tent law adumbrated by the two Divis ion Benches of Andhra Pradesh High Court in Wri t Pet i t ion Nos. 9513/93 and 7725/94. Here Samatha and others chal lenged the val idi ty of the Andhra Pradesh Scheduled Area Land Transfer Regulat ion (1 of 1959) , as amended by Regulat ion I I of 1970 and the Mining Act 1957 permit t ing the grant of mining leases of Government land in the scheduled area to the non-t r ibals) .

15 8. Final ly , the Supreme Court a lso ruled that at least 20% of the net prof i ts should be set up apart as a

permanent fund for provid ing basic faci l i t ies such as water resources, schools, sani tat ion, heal th,

educat ion, roads and other publ ic ameni t ies.

Samatha was a t r iumph for the adivasis who have been struggl ing to protect their const i tut ional

r ights to l i fe and l ivel ihood. Wri t ing on the judgement, Dr. Rajeev Dhavan observes:9 8

Mabo and Samatha are two remarkable judgements o f

the la te twent ie th century on the r ights o f abor ig ina ls and

t r iba ls . On June 3, 1992, the High Cour t o f Aust ra l ia

dec ided to dec lare that a l l the land, which be longed to the

abor ig ina ls , had been wrongly misappropr ia ted by the whi te

set t lers and had to be re turned to the abor ig ina ls . Two

centur ies o f co lon ia l h is tory was reversed. Whi te co lon ia ls

had assumed that the land of the nat ives was res nu l l ius

(owned by no one) . The Mabo case judgement was a brave

and courageous dec is ion. I t had a cathar t ic in f luence on the

whi te co lon ia l consc ience. I t was e lect r i fy ing for t r iba l

communi t ies throughout the wor ld .

On Ju ly 11, 1997, the Ind ian Supreme Cour t dec ided the

Samatha case, which was no less s ign i f icant . Breath ing new

l i fe in to the l imping F i f th and Six th Schedules o f the

Const i tu t ion, the Supreme Cour t in a two:one sp l i t

judgement (Ramaswami and Saghi r Ahmad JJ for the

major i ty and Patna ik J . , d issent ing) dec lared that t r iba l land

was for the t r iba ls to the exc lus ion of outs ide corporate

indust r ia l is ts wish ing to ru th less ly exp lo i t the area and the

t r iba ls . But , desp i te the d i rect ions g iven in the judgement to

undo the in just ices o f h is tory , `Samatha ' was soon

forgot ten. I t was not g iven the acc la im accorded to `Mabo ' .

Few people knew about i t . The State Governments d id not

implement the d i rect ions g iven in the judgement . The Union

Government thought the judgement a nu isance. No po l i t ica l

par ty ha i led the judgement as one of the greatest on

af f i rmat ive act ion.

98. See Rajeev Dhavan, Mabo and Samatha, THE HINDU, Mar. 9, 2001 at 10.

16 In the Mabo case, a whi te nat ion was prepared to re-

examine i ts co lon ia l h is tory wi th remorse; and set the

s i tuat ion r ight . Independent Ind ia denied a s imi lar benef i t to

poor , exp lo i ted t r iba ls who had owned and l ived on t r iba l

land for centur ies by i ts a t t i tude towards the Samatha case

judgement .

In recent years, there is a s in ister at tempt by the Union government to subvert Samatha , which in

the words of the Attorney General is " the law of the land and holds the f ie ld" .9 9 Instead of implement ing

the decis ion ef for ts were made to seek i ts reversal in the Supreme Court . When the Supreme Court

re jected th is at tempt, the Union Government approached the Attorney General Mr. Sol i Sorabjee for

advice. Over looking the fact that i t was he who had in i t ia l ly appeared for the pet i t ioners thereby being

part ly responsible for th is h istor ic judgement, the Attorney General advised that the legal basis for

Samatha could be removed by a const i tut ional amendment and that the same would not be v io lat ive of

the basic structure of the Const i tut ion.1 0 0 The Department for Legal Af fa i rs and the Ministry for Law and

Just ice accepted the opinion expressed by the Attorney General . Accordingly, the Ministry Of Mines in

a secret note addressed to the Commit tee of Secretar ies stressed on the need to amend the Fi f th

Schedule thereby proposing to let the wave of economic reforms sweep into the hi therto untouched

forest and hi l ly areas.1 0 1 The proposed amendment is in the form of an "explanat ion" to Paragraph 5(2)

which c lar i f ies that no regulat ion could take away the government 's power to al lot land in scheduled

areas to a non-tr ibal for undertaking any "non-agr icul tural operat ions including reconnaissance or

prospect ing or mining."1 0 2 Meanwhi le, the President in h is Republ ic Day speech issued a vei led warning

against p lot t ing to amend the Fi f th Schedule of the Const i tut ion. Accordingly, on March 15, 2001 the

Pr ime Minister repl ied in the Rajya Sabha that the Government has no intent ion of amending the Fi f th

Schedule to overcome Samatha.1 0 3

Unfortunately, Samatha received the greatest b low from the least expected quarter when the

Supreme Court speaking through a three judge Bench in the BALCO Disinvestment case1 0 4 cast doubts

99. See Secret Note , Government of India Minis try of Mines (v is i ted May 25, 2002)<http://www.mmpindia.org/Mining%20secret%20note.htm>. 100. See id. 101. See Manoj Mit ta , Displacement is not the Issue, THE NEW INDIAN EXPRESS, Sept . 21, 2000 at 6 . 102. See supra note 99. 103. See Aftermath (vis i ted May 27, 2002) <http://www.mmpindia.org/Aftermath.htm>. 104. See general ly BALCO Employees Union v. Union Of India SCALE 2001 (8) 541 (M/s Bharat Aluminium Company Limited or BALCO a Government of India under taking, in 1968 with necessary s ta te ass is tance acquired t r ibal lands for se t t ing up i t ' s es tabl ishment . In 1999 with the se t t ing up of the Department of Dis investment , the Government of India decided that BALCO needed to be pr ivat ised. The government thereupon accepted the

17 by way of obi ter on ' the law of the land as hai led to be set t led by Samatha' . Just ice Kr ipal speaking for

the court expressed ' 's t rong reservat ions wi th regard to the correctness of the major i ty decis ion in

Samatha" , which interpreted the Fi f th Schedule to the Const i tut ion s ince under Art ic le 145(3) only a

Bench of f ive judges could decide any substant ia l quest ion of law as to the interpretat ion of the

Const i tut ion. However, in Samatha i t was a Bench of three judges who by major i ty of 2:1 interpreted

the Fi f th Schedule.105

The A.P. government a lso sought to amend the LTR so as to faci l i tate the set t ing up of an

Alumina plant and exploi t the vast bauxi te reserves in the Sr ikakulam forest . 1 0 6 Accordingly, the

government suggested the Tr ibal Advisory Counci l to amend the LTR of 1970 to exempt f rom i ts

purview industr ia l is ts who br ing capi ta l for overal l development of the agency Areas. The Tr ibal

Advisory Counci l in which the rul ing Telugu Desam Party has major i ty approved the amendment. 1 0 7

However publ ic backlash and st i f f opposi t ion forced the Chief Minister Sr i . Chandra Babu Naidu to

issue a statement, indicat ing wi thdrawal of the proposed amendment.1 0 8

Karnataka The most important measure in i t iated by the State of Karnataka for the advancement of the

members of the Scheduled Castes and the Scheduled Tr ibes was the grant ing of government lands f ree

of cost or at concessional rates wi th restr ic t ions on the r ight of d isposal . This was done wi th the fond

hope that they would retain them, cul t ivate them personal ly and improve their condi t ions. But hopes

were soon bel ied when i t was found that large t racts of land were sold of f for pal t ry sums contravening

h ighest b id offered by Ster l i te Industr ies and 51% of the equi ty was t ransferred to th is MNC .The val idi ty of th is decis ion of the Union Government was the pr imary issue in th is case . The Court speaking through Just ice B.N. Kripal unanimously held that the process of dis investment was a pol icy decis ion involving complex economic factors and i t was nei ther within the domain of the courts nor within the scope of judicia l review to embark upon an enquiry as to whether a par t icular publ ic pol icy or whether a bet ter publ ic pol icy could be evolved. More important f rom the t r ibal point of view, was the fact that the Learned Just ices expressed s t rong reservat ions with regard to the correctness of the major i ty decis ion in Samatha . Samatha was held to be inappl icable to the ins tant case s ince Sect ion 165(6) of the M.P. Land Revenue Code 1959 did not contain any absolute prohibi t ion of the type contained in Sect ion 3(1) of the Andhra Pradesh Regulat ion, which infact was the basis of the decis ion in Samatha. As far as a l ienat ion of t r ibal lands on which the industry was set up, i t was held that Sect ion 165(6) of the M.P. Land Revenue Code 1959 even before and af ter i t s amendment did not prohibi t the giving of t r ibal land by way of lease to the non-t r ibals . The land was val idly given to BALCO a number of years ago and that i t was not open to the Sta te of Chat t isgarh to take a summersaul t and chal lenge the correctness of i t ' s decis ion.) . 105. Id . a t 577. 106. See R. J . Rajendra Prasad, Eyeing Tribal Land , THE HINDU, July 11, 2000 at 10. 107. See Ramesh. Suseela , No Mutual Consent on LTR Amendment?, THE HINDU, Aug. 23, 2000 at 7 . 108. See supra note 103.

18 the terms of the grant .1 0 9 Inorder to remedy th is, the Karnataka Scheduled Castes and Scheduled

Tr ibes (Prohibi t ion of Transfer of Certain Lands) Act , 1978 was enacted.1 1 0

I ts purpose was to prohibi t t ransfer of certa in lands granted by the government to persons

belonging to SC's and ST's and for restor ing such lands to them.1 1 1 Prior to the Act , t ransfers of

granted land in breach of the condi t ion relat ing to the prohibi t ion of such t ransfer were only voidable.

The Act brought about a radical change by render ing such t ransfers void .1 1 2 Further, t ransfer of granted

lands f rom the day the Act came into force needed the pr ior permission of the government.1 1 3

The Assistant Commissioner af ter g iv ing reasonable opportuni ty of being heard can take

possession of granted lands i f he is sat isf ied af ter enquiry that the t ransfer is nul l and void.1 1 4 Such

lands are to be restored to the or ig inal grantees or their legal heirs and where th is is not pract icable i t

shal l vest wi th the state f ree f rom al l encumbrances. Thereupon, the government could grant such

lands to the SC's and ST's.1 1 5 Such an order was to be f inal and could not be chal lenged in a court of

law.1 1 6 The vires of the Act was assai led before the Karnataka High Court wherein the court re jected

the content ions and upheld the val id i ty of the Act .1 1 7 In an appeal before the Supreme Court ,1 1 8 the pr incipal object ion was to the provis ions which

nul l i f ied t ransfers of granted lands ef fected pr ior to the Act . The appel lants asserted that the t ransfers

were only voidable and not void. Furthermore, the power to recover possession of the granted lands

defeat ing the vested r ights of bonaf ide purchasers who were in possession and enjoyment for years

was contented to be unconscionable, unjust and inval id. The Court however repel led these arguments

s ince the t i t le acquired by such t ransfer was defeasible and could be defeated by appropr iate act ion

taken in th is regard.1 1 9 Sect ions 4 and 5 were impugned as v io lat ive of Art ic le 14 as i t made special provis ions only

wi th regard to SC's and ST's excluding other communit ies. However, the Court turned i t down, s ince the

109. See V.B. Cout inho, Tribal Protect ion in Karnataka: An Appraisal , 9 C.U.L.R. 117,118-120 (1985) . 110. Act No. 2 of 1979, which came into force on 1 .1 .1979. 111. See Preamble (s ta t ing that , " [ t ]he object of the Act is to provide for the prohibi t ion of t ransfer of cer ta in lands granted by Government to persons belonging to the Scheduled Castes and scheduled Tribes in the Sta te and for res torat ion of such lands to such persons.") . 112. Sect ion 4(1) ; see also R. Chandevarappa v . S tate of Karnataka (1995) 6 SCC 309 (holding that t ransfers of ass igned lands in viola t ion of the condi t ions s ta ted in the cul t ivat ion chi t that the ass ignee should remain in personal cul t ivat ion and should not a l ienate the land was opposed to publ ic pol icy and hence viola t ive of S.23 of the Indian Contract Act , 1872, R. 43(5) of the Mysore Revenue Code, and the prohibi tory c lause under Karnataka Scheduled Castes and Scheduled Tribes (Prohibi t ion of Transfer of Certa in Lands) Act , 1978) . 113. Sect ion 4(2) . 114. Sect ion 5(1) (a) . 115. Sect ion 5(1) (b) . 116. Sect ion 5(2) . 117. Laxmama v . S tate AIR 1993 Kant . 237. 118. Manchegowda v . S tate of Karnataka (1984) 3 SCC 301. 119. Id . a t 308.

19 classi f icat ion had a c lear nexus to the object sought to be achieved.1 2 0 The Act was again at tacked as

unjust and unreasonable s ince there was no provis ion for appeal against the order of the concerned

author i ty . However, the Court refused to go into the aspect s ince i t was appraised of later amendments

to the Act , which provided for appeals against the orders of the Assistant Commissioner.1 2 1

Another ground of at tack centred around the content ion that Sect ions 4 and 5 are v io lat ive of

Art ic le 19 (1) ( f ) s ince they empowered the author i ty to take possession of granted lands wi thout

payment of compensat ion. The argument was held to be wi th out mer i t s ince the t ransferees had

acquired the lands improper ly and i l legal ly and had only a defeasible legal r ight .1 2 2 The content ion that

the Act is v io lat ive of Art ic les 31 and 31-A was also rejected on the same ground.1 2 3 Thus, legis lat ive wisdom in these states indicated that t r ibal l i fe centred on their land and that

they need protect ion f rom the 'c iv i l ised gentry ' who were out to acquire these lands. The respect ive

legis lat ions were infact based on the concept of d istr ibut ive just ice. The judic iary was also sympathet ic

to the t r ibal cause and had no hesi tat ion in endorsing the val id i ty of these laws by rely ing on Art ic le 46

of the const i tut ion. .

When one compares these legis lat ions wi th the 1975 and 1999 Kerala Acts i t can be seen that the

1975 Act and the other above ment ioned legis lat ions belong to the same genus- the avowed object

behind al l of them being s imi lar . However, the same cannot be said of the 1999 Act which is annhi lat ive

of t r ibal r ights

Native American Land Rights Red Indians were the f i rst to inhabi t the Americas. I t was only in 1492 when Chr istopher

Columbus sai led across the At lant ic Ocean that the Europeans came in contact wi th the ' New

World ' . 1 2 4 The Anglo-American concept of property r ight was al ien to the American Indian, who viewed

land as a col lect ive t r ibal resource rather than something that could be held in fee s imple by

indiv iduals.1 2 5 The Br i t ish colonisers recognised the legal r ight of the Nat ive Americans both to govern

themselves and to own the land. Abor ig inal land ownership could be terminated only by t reaty.1 2 6 Treat ies ceded terr i tory to the Br i t ish and correspondingly the Br i t ish recognised undisputed t r ibal

120. Id . a t 313. 121. Id . a t 314. 122. Id . a t 311. 123. Id . a t 312. 124. See 10 THE WORLD BOOK ENCYCLOPEDIA 130 (1994) . 125. See Daniel G Kel ly , JR. , Indian Ti t le: The Rights of American Nat ives in Lands They Have Occupied Since Time Immemorial 75 COLUM. L. REV. 655,656(1975) . 126. 7 WEST'S ENCYCLOPEDIA OF AMERICAN LAW 290,291-92(1998) .

20 ownership and tenure over the remaining, non-ceded land.1 2 7 For much of the colonial per iod the

European powers deal t wi th the Indian t r ibes as independent sovereign nat ions, purchasing their lands

by t reaty and fu l ly recognis ing their fee interest in the country they occupied.1 2 8 By the t ime of the American Revolut ion, the prevai l ing at t i tude towards t r ibal property r ights

changed. Af ter independence al though the Uni ted States cont inued the colonial pract ice of obtain ing

Indian lands by t reaty i t d id not share the v iew that Indian t r ibes held fu l l legal t i t le to lands wi th in i ts

terr i tor ia l boundar ies.1 2 9 Tribal land r ights came to be governed by Federal law, when Chief Just ice

Marshal l formulated the "doctr ine of d iscovery."1 3 0 As the European nat ions wanted to appropr iate the

weal th of the New World, to avoid conf l ic t among them the proposi t ion that d iscovery of the New World

by the Europeans who came there f i rst gave them exclusive t i t le was developed. Accordingly, the

Federal Government, as the successor- in- interest of the or ig inal d iscoverers, holds the fee to v i r tual ly

a l l Indian lands wi th in i ts jur isdict ion and the t r ibes themselves hold only the r ight to occupancy and

use.1 3 1

Consequent ly, another d ist inct ive aspect of t r ibal land r ights that developed is that of restr ic ted

al ienabi l i ty . Since the Indian t i t le in lands is only a r ight of occupancy, the fee being in the Uni ted

States, an Indian Nat ion or t r ibe is incapable of a l ienat ing lands except to the Uni ted States or wi th i ts

consent to th i rd part ies. Hence, s ince the t r ibe cannot sel l , nei ther can the indiv idual members, for they

have nei ther an undiv ided interest in the t r ibal land nor a vendible interest in any part icular t ract .1 3 2

Treat ies between the Uni ted States and the Indian t r ibes became a pr imary means of

ext inguishing Indian t i t le and opening lands for set t lement. Tr ibes would cede vast terr i tor ies to the

Uni ted States in exchange for some measure of considerat ion and, at the same t ime, reserve some of

i ts abor ig inal terr i tory for i ts cont inued occupancy as a homeland known as "reservat ions."1 3 3 The

demand for the opening of more lands of ten resul ted in the Uni ted States negot iat ing addi t ional t reat ies

wi th t r ibes by which Indian t i t le to more lands was ext inguished and reservat ions accordingly reduced

in s ize. There are approximately 300 Federal Indian reservat ions in the Uni ted States.1 3 4 On an Indian

127. Armin Rosencranz, Native American Tribal Peoples in the United States , 9 C.U.L.R. 67 (1985) . 128. See John Edward Barry, Oneida Indian Nat ion v . County of Oneida: Tribal Rights of Act ion and the Indian Trade and Intercourse Act , 84 COLUM. L. REV. 1852,1853(1984) (Case Comment) . 129. See id ; see also U.S. CONST. ar t .1 , s . 8 , c l .3 (specif ical ly refers to Indian t r ibes where i t says "Congress shal l have the power to regulate Commerce with foreign nat ions , among the several s ta tes , and with the Indian t r ibes .") . 130. Johnson v . M'Intosh 21 U.S. (8 Wheat . ) 543, 572-573 (1823) . 131. Id . a t 587; see also Phi l ip P. Fr ickey, Marshal l ing Past and Present: Colonial ism, Const i tu t ional ism, and Interpretat ion in Federal Indian Law , 107 HARV. L. REV. 381,385-90(1993) . 132. Barry, supra note 128, a t 1854. 133. See supra note 124, a t 174. 134. See id .

21 reservat ion the t r ibal government performs many of the same funct ions that state governments do.

There are t r ibal court systems, departments of just ice and pol ice forces on most reservat ions.1 3 5

Recent ly, the Seminole Indians proved abor ig inal possession of the ent i re peninsula of Flor ida

before the Uni ted States bought i t for an unconscionably low pr ice; a group of Alaskan Indians

establ ished i ts r ight to recover against the government for unlawful t respasses on the 56.5 mi l l ion acre

North Slope; and more recent ly, a t r ibe of Indians in New York State, stat ing a present r ight to

possession of s ix mi l l ion acres of land under Federal law, found a forum in Uni ted States Distr ic t Court

for i ts demand of fa i r rental value for the depr ival of possession s ince the eighteenth century.1 3 6 The

success of these recent l i t igat ions demonstrates the growing recept iveness of Congress and the Courts

to c la ims previously supported only by force of moral suasion. The Courts have granted Indians

recovery against the government for th i rd party inter ference on nat ive lands on the theory that i t

breached i ts f iduciary duty to protect the Indian lands f rom such inter ference.1 3 7 Thus, even f rom Chief

Just ice Marshal l 's t ime the accepted pr incip le in American Jur isprudence is that the t r ibes are "

domest ic dependent nat ions or communit ies " , or "wards of the nat ion", " in a state of pupi lage" and "

the relat ionship wi th the federal government resembl ing that of a ward to his guardian".1 3 8

This posi t ion holds good even in our context . The very fact that the Const i tut ion of India

contains many pr incip les aimed at t r ibal wel fare stands test imony to the fact that the Founding Fathers

wanted to give special protect ion to the " invis ib le fourth wor ld wi th in the Indian th i rd wor ld."1 3 9 The

state was not only obl igated to," promote wi th special care the educat ional and economic interests of

the weaker sect ions of the people", but i t a lso had an addi t ional duty, " to protect the SC's and ST's

f rom social in just ice and al l forms of exploi tat ion."1 4 0 Thus, the Const i tut ional Fathers had intended to

create a f iduciary re lat ionship between the state and the scheduled t r ibes. Kerala by enact ing the 1999

Act has commit ted breach of th is f iduciary duty that i t owes to i ts adivasis .

CONCLUSION AND SUGGESTIONS

Kerala enacted the 1975 Act wi th much fanfare inorder to provide succor to the adivasis . This

Act was in consonance wi th Internat ional Human Right Instruments l ike ILO Convent ion 107 rat i f ied by

135. See general ly Warren H. Cohen & Phi l ip J . Mause, The Indian: The Forgot ten American , 81 HARV. L. REV.1818 (1968) . 136. Kel ly , supra note 125, a t 655; see also Mark S. Cohen, American Indian Sacred Rel igious Si tes and Government Development: A Convent ional Analys is in an Unconvent ional Set t ing, 85 MICH. L. REV. 771, 774 (1987) (Notes) . 137. Rethinking the Trust Doctr ine in Federal Indian Law , 98 HARV. L. REV. 422, 423-28 (1984) . 138. 27 AMERICAN JURISPRUDENCE 545 (1954) . 139. Iyer , supra note 17, a t 3 . 140. Const i tu t ion of India , Art ic le 46.

22 India, Part I I of the ILO Convent ion No. 169, Concerning Indigenous and Tr ibal Peoples in Independent

Countr ies 1989 and Part VI of the Uni ted Nat ions Draf t Declarat ion on the Right of Indigenous Peoples

1994.1 4 1 The Act was also in tune wi th the concept of d istr ibut ive just ice as embodied in the

const i tut ional provis ions. However, as the history of the law reveals at every stage successive

governments for pol i t ical sui tabi l i ty was backtracking and put t ing hurdles in i ts speedy and ef fect ive

implementat ion thereby encouraging the set t lers to b ludgeon the Act . Infact , the government 's f r ig id

and moronic at t i tude str ipped the t r ibals of the benef i ts that would have accrued to them under the

1975 Act .

In such c i rcumstances, as the cases discussed above i l lustrate i t was the judic iary, which came to

the rescue of the t r ibals. Right f rom upholding the const i tut ional i ty of the 1975 Act the judic iary has

consistent ly p layed an act ive ro le in upholding adivasi land r ights. Infact under judic ia l supervis ion the

concerned of f ic ia ls had even ident i f ied the al ienated t r ibal lands and only the restorat ion process

remained. I t was to bypass th is inconvenience the government enacted the 1999 Act . The said Act

which runs counter to the Internat ional and Const i tut ional mandates was an outrageous at tempt to

appease the set t lers at the expense of the t r ibals. I t is indeed lamentable that the lawgivers who

in i t iated the 1999 Act fa i led to appreciate the benevolence in the 1975 Act . However the judic iary once

again demonstrated i ts commitment to the rule of law and the const i tut ional mandates when i t s t ruck

down certa in provis ions of the Act on the ground that i t was ant i - t r ibal in nature.

Thus, in th is struggle between the t r ibal and the non-tr ibal , which partakes the character of a

race between a handicapped one- legged person and an able bodied two- legged person, when the other

two branches of the state by their act ion or inact ion has infr inged the r ights of the have-nots the

judic iary as the upholder of scales of just ice stepped in to repair the damage. Here the f ight between

the legis lature and the judic iary is reminiscent of the duel between the Supreme Court and the

Par l iament fought v igorously in the arena of both property r ights as wel l as the amending powers in the

Const i tut ion.

L ike the two s ides of a coin there is a lso another s ide to the story i .e. the story of the set t lers.

One cannot ignore the fact that i t was they who to i led to convert these v i rg in lands into highly

product ive ones. L ike the t r ibals, the set t lers have also made these lands their homes. I f a solut ion has

to be found to th is t r ibal quagmire, the government has to f i rst adopt a pragmat ic approach. The

government should ei ther implement the High Court decis ion which directs the State and i ts author i t ies

141. See general ly Russel Lawrence Barsh, Indigenous Peoples in the 1990s: From Object to Subject o f Internat ional Law?, 7 HARV. HUM. RTS. J . 33(1994); see also S iegfr ied Wiessner , Rights and Status of Indigenous Peoples: A Global Comparat ive and Internat ional Legal Analysis , 12 HARV. HUM. RTS. J . 57 (1999) .

23 under the 1975 Act to implement the orders for restorat ion passed under the said Act or expedi te the

proceedings before the Supreme Court . As far as protect ing the interests of the set t lers is concerned

the crores of rupees pumped in to improve the t r ibal lot could be used to compensate them. We already

have a precedent in land reforms wherein lands were acquired f rom the Jenmis ( land lords) and

distr ibuted to the t i l lers. Strong pol i t ical wi l l of th is nature is the need of the hour.

The root cause of a l l human r ight abuses perpetuated on the adivasis can, as stated ear l ier be

t raced to t r ibal land al ienat ion. Abuses wi l l cont inue to take place and wel fare measures wi l l fa i l to

y ie ld resul ts unless and unt i l th is content ious issue is put to rest once and for a l l . When the wor ld al l

over has recognised the int imate relat ionship, which the t r ibal shares wi th his land, the State of Kerala

seems to give less regard to th is v i ta l aspect . Thus, whatever the economic indices indicate and

whatever be the development that th is smal l state has achieved, behind al l th is g loss in ‘God’s own

country, ’ the most l i terate State in India, the worst k ind of human r ight v io lat ions are taking place on an

antedi luvian group and that too wi th act ive state patronage.

A few suggest ions for solv ing the quagmire:

1. The government should implement the High Court decis ion, which directs the state to implement the

orders for restorat ion passed under the 1975 Act or expedi te the appeal before the Supreme Court .

Taking into account the precar ious forest s i tuat ion in Kerala at tempts to give vested forest lands to

the t r ibals should be discouraged.

2. Occupat ion of t r ibal lands through decei t or use of force should be made an of fence.

3. There should also be a general prohibi t ion on al l t ransfers by t r ibal to non-tr ibals of any interest in

land whether by sale, mortgage, g i f t or lease.

4. A passbook / registry incorporat ing detai ls regarding the land in possession of the t r ibal including

the detai ls of the standing t imber thereon should be kept in the custody of the t r ibal concerned.

5. Special courts having both c iv i l and cr iminal jur isdict ion should be establ ished to deal wi th t r ibal

land issues and other cases of human r ight v io lat ions. Offences against the scheduled t r ibes made

punishable under the Scheduled Castes and Scheduled Tr ibes (Prevent ion of Atroci t ies) Act 1989,

a l l of fences punishable under any other law in force in so far as i t re lates to the scheduled t r ibes,

matters coming under the 1975 Act and other laws of a l ike nature should be assigned to th is court .

The presiding of f icer should be an of f icer not below the rank of a Distr ic t Judge. This court should

work in tandem with a Special Invest igat ing Off icer. The procedure in the special court should be

s imple, less cumbersome and resul t or iented. Court fees and other incidental expenses should be

waived in the case of t r ibals as pla int i f fs . There should also be provis ion for f ree legal a id, wi th

Standing Counsels appointed to take up t r ibal br iefs. Sui table amendments to the Law of Evidence

24 should be made giv ing pr imacy to oral over documentary evidence relaxing the best evidence rule.

In the same vein the rule regarding burden of proof should be changed shi f t ing the burden f rom the

t r ibal to the non-tr ibal in a l l cases of d ispute involv ing t r ibal land. I t is a lso highly necessary that

the orders made by the special court should be implemented wi th in a reasonable t ime and the

responsibi l i ty for a l l the necessary act ion in th is regard should be p laced on the special

invest igat ing of f icer. Appeals should l ie only to the High Court .

6. There should be a special invest igat ing of f icer in each distr ic t at tached to the special court who has

power to invest igate cases of r ights v io lat ion against the t r ibals. I f he is sat isf ied about the

genuineness of the complaint he should refer the same to the special court . Off icers of the t r ibal

and forest department including pol ice of f icers should render al l possible assistance to the

invest igat ive of f icer in the discharge of h is funct ions.

7. A r ight of pre-empt ion should be given to co-tr ibals and t r ibal landless labourers in case of d isposal

of land by the t r ibal . I f a t r ibal is unable to sel l h is land on reasonable terms the government should

acquire i t on payment of appropr iate compensat ion.

8. Prohibi t ion should be str ic t ly enforced in t r ibal areas s ince l iquor is one of the major weapons used

by the exploi ters to lure the t r ibals in part ing wi th their lands for a song. So also co-operat ive credi t

system should be made avai lable to the t r ibals in order to prevent exploi tat ion by moneylenders.

9. Tribal areas of the state should be brought under the purview of the Fi f th Schedule. This is

necessary to protect their cul tural ident i ty , property and other legi t imate c la ims and interests f ree

f rom any nefar ious inter ference of outs iders.

10. Eventhough the Const i tut ion contains provis ions for t r ibal wel fare unfortunately none of the three

l is ts in the Seventh Schedule contain any entry wi th regard to scheduled t r ibes. Accordingly only the

Par l iament can legis late in respect of t r ibal wel fare by exercis ing i ts residuary powers. So the

Const i tut ion should be sui tably amended to plug in the loophole. India, should also be a s ignatory to

the Internat ional human r ights instruments extol l ing t r ibal wel fare.