Note:Professor B.K. Roy Burman is no more with us to give energy and thought to discussions on crucial issues of our time. He passed away at the age of 89 years on the morning of June 26, 2012.
Militant Left Radicalism, State and Civil Society with Special Focus on Land Rights
The first manifestation of militant Left radicalism was in the Naxalbari area of West Bengal. Though ideological issues were also involved, the then United Front Government considered the discontent of the peasantry as providing political space for the militant radicals to operate. The government adopted a massive programme of vesting one million acres of ceiling surplus land of the big zamindars, Jotedars and land owners for distribution among the landless and marginal farmers all over the State. This strategy won back the peasantry to the normal political process. When militancy spread to North Bihar and Andhra Pradesh, the Government of India issued a series of guidelines all over the country to implement land reform laws.1 Besides, to create an environment, a series of seminars involving intellectuals and activists were organised at the national and State levels, where ideological issues were also discussed.
Coincidence of policy shift and reappearance of militant radicalism2
From the early 1970s to the mid-1980s the Central Government and the Plan documents used to reiterate commitment to the reduction of inequality of income and wealth among and within different sections of the community. With the paradigm shift of economic policy from 1991, all these values of egalitarianism, equity, control of exploitation and political justice lost priority. It may not be fortuitous that the emergence of Left radicalism from apparent hibernation, coincided with this period of policy shift.
Civil Society Initiative
While the Government of India and the State governments perceive the activities of the different militant Left radical groups (popularly called Naxalite groups) as a law and order problem and as the greatest threat to India’s internal security, in 1997 a Committee of Concerned Citizens (CCC), characterising the upsurge as basically struggles of the rural poor, especially the tribals, and recognising that these struggles were political in nature, took the initiative to bring the people’s aspirations and right to live with dignity on to the agenda of the Naxalite movements and the government. Reporting on the outcome of the initiative, the CCC observed: “Rule of law should have a right perspective and social transformation should work towards an egalitarian society. The Committee feels that in this regard, the state has failed in its obligation.” The CCC, however, did not spare the Naxalites. In several instances the Committee noticed a high degree of brutality in the way the Naxalite parties dealt with the people.3
Political credo of the Naxalites
There are several militant Left radical parties. In 2004 two most influential among them, namely, the CPI-ML (People’s War Group) and Maoist Communist Centre (MCC), merged to form the Communist Party of India (Maoist).4
As mentioned by Nandini Sundar in her paper contributed to this seminar, Article 4 of the CPI (Maoist) constitution describes the party’s goals in terms of long-term state capture.
The immediate aim of the party is to accomplish the New Democratic Revolution in India by overthrowing imperialism, feudalism and comprador bureaucratic capitalism only through protracted people’s war and establishing people’s democratic dictatorship under the leadership of the proletariat.
There are certainly vestiges of colonial rule and some emerging features of neocolonialism and bureaucratic capitalism in India. Besides, feudal values inform the functioning of many institutions in the country. But the acts of violence indulged in by the Maoists and particularly their complete disregard of international humanitarian laws cannot but alienate them even from those who are sympathetic to their immediate political goal. Besides, the Maoists seem not to have awakened to the fact that under the threat of eco-catastrophe, the Westphalian nation-state system is undergoing radical transformation and old thinkings about the dynamics of revolution have become outdated.
Rapid spread of the area of influence of militant Left radicalism
After the formation of the CPI (Maoist) in 2004, there has been a rapid spread of the influence of militant radicalism. The Standing Committee on Intersectoral Issues, Ministry of Tribal Affairs, (SCII-MOTA), reported in 2005 that 153 districts in 13 States had come under the influence of the militant radicals, out of which 75 had tribal presence.5 In 2006, the Planning Commission had constituted an Expert Group (EG-PC) to examine the “Development Challenges in Extremist Affected Areas”. The EG-PC in its report (2008) mentioned that the Naxal movement was active in 125 districts spread over 12 States.6 In the Frontline of May 7, 2010, Ramakrishnan observed that the overall Maoist influence has spread from 56 districts in 2001 to 223 in 2009, of which 70 were most affected.7
Contextualisation of the militant Left radicalism: a closer look
The EG-PC rightly observes that while public policy perspective concedes that the areas where militant radicalism is active, suffer from deficient development and unaddressed grievances of the people,8 the causes of discontent, unrest and extremism are varied.9 It is to be noted that while inadequacy of development or inefficiency of ameliorative measures may cause resentment and may even account for Left radicalism, these by themselves cannot account for the militant turn of the same. Primarily based on the Government of India’s Committee on Land Holding Systems in Tribal Areas, in an article published in the weekly Mainstream on October 17, 2009, I held predatory actions of around a dozen types perpetrated by the apparatuses of the state responsible for the drift of the tribal people to militancy.10 Some of the more important types of predatory actions, dispossessing the tribal people of lands under their occupation since time immemorial, are as follows:
(I) Whereas in many tribal areas individual rights are embedded in community rights, non-recogniton of Community as land and land based resource owning legal person,.
(II) Continuation of the Roman legal concept of res nullius (that which has not been assigned by the sovereign belongs to the sovereign) introduced in the country by the colonial rulers.
(III) Promotion of the neo-feudalisation process by illegally recognising the headman as the owner of the entire land of the particular tribal community and subsequent appropriation of the same by conferring privileges and paltry financial benefits as compensation.
(IV) Confiscation of ownership/occupancy right of the tribal peoples on lands above 10 degrees slope in hilly tracts by using the environmental concern as alibi, as a result of which in some areas hardly one per cent of the land under actual occupation of the tribals has been recorded in their favour.
(V) Massive displacement of population for implementation of industrial, power and other projects without proper economic, socal and psychological rehabilitation. For constraints of time I shall deal with only the issue of non-recognition of the communal land rights of the tribal peoples as on this issue the government had made some commitment when the report of the Land Holding System Committee was presented to the Lok Sabha (USQ 675 dt 15.4.1987).
Government Commitment in the Lok Sabha
In response to the observation of the Study Group that Community as such was not recorded during land survey and settlement operations, the Government of India in a written statement submitted to the Lok Sabha observed: It has been rightly recommended by the Study Group that the Survey and Settlement Acts and manuals of different States should be studied to ensure that the rights relevant for the tribals are recorded. It is recognised that this is particularly important in a traditional society where separation of individual from community in matters of property relations concerning land does not exit. The Department of Rural Develop-ment agrees with the recommendation about the need for an intensive study of Communal land systems. It is also recognised that where individual rights are embedded in Communal rights, removal of the community removes the necessary condition for the concerned individuals to enjoy their rights, and therefore this aspect will need to be kept in view while framing land reform policies. Obstacle within
Three decades ago, the Planning Commission’s Committee on Development of Backward Areas, in its report on Development of the North-Eastern Region, recommended that for the sake of progress community land right should be privatised.11 It seems that it was in line with the then dominant authoritarian thinking among the environmentalists represented by Hardin’s postulate “Tragedy of the Commons”. Even now, though the participatory democratic approach is advocated by many, the earlier approach, characterised by disdain for the people and the poor, continues to hold the ground. This is reflected in the Supreme Court’s judgement in the Godavarman case which requires that any land mentioned as forest in any official document cannot be denotified without approval of the Supreme Court. There are empirical evidences that this has disastrous effects on the life and livelihood of the tribals. This raises a more fundamental question in the realm of legal epistemology.
Aberration as a result of failure to honour the Commitment
The Expert Group on Prevention of Alienation of Tribal Land and its Restoration, constituted by the Ministry of Rural Development (EG-MORD), in its report submitted in 2004 (reprinted 2006), observes that while community ownership of land continues to be the dominant mode in tribal societies and takes precedence over that of individual ownership, it is a matter of concern that land reforms, following the abolition of intermediaries, treated the Community and wastelands as government lands and were assigned to other purposes. “This,” in the words of the EG-MORD, “constitutes a violation of the land rights of the tribals and hence an alienation.”12
Another type of serious aberration has been reported by a researcher.12(a) Though as a sequel to a series of tribal revolts, particularly the one led by Birsa Munda, the Chotanagpur Tenancy Act 1908 recognises community land and though thereafter in the land survey and settlement operations during the colonial regime it used to be recorded, during the revisional survey, which commenced in 1978, it mostly disappeared. Nandini Sundar has recorded another development. The government claimed that the tribals were enjoying land in Santal Paraganas at its pleasure; they have no customary right in respect of such land; and hence the government can allot the same land to a mining enterprise for greater public good, without paying any compensation to the concerned tribals. To this preposterous claim the High Court agreed.12(b) This raises several questions on what evidence the High Court has taken decision in this matter. Available case records for several African countries show that in such matters the courts extensively depend on the findings of anthropologists, historians and other researchers. It seems that in India Austin’s command law orientation has predominantly created problems in protecting the land rights of the tribal peoples. There should be intensive examination of alternative legal epistemologies. Second, the court decision in the Jharkhand case will affect not only the land rights of the tribals but also their water right. To put the matter in perspective, a brief mention would be made of an observation of the Human Rights Commissioner of the UN: “Access to safe drinking water by an indigenous people is closely linked to their control over their ancestral lands, territories and resources. Lack of legal recognition or protection of these can therefore have far-reaching implications for their enjoyment of rights.” This is exactly what seems to have happened in India. In a published article in August 2009, a researcher of the Law University, Bangalore has expressed apprehension that development of mines already on the agenda in Dantewada and the adjoining region of Chhattisgarh will cause serious drinking water problem for millions of persons.12(c) This requires to be checked.
An illustration of Community land right13
The EG-MORD has recommended that members of the Scheduled Tribes living together in a traditional geographical habitation should be recognised as constituting a tribal community and such community should be deemed to be a land holding legal person. Proceeding further, the EG-MORD recommends “where such Community is practising shifting cultivation, the land should be recorded in the name of the Community”.
This is just an illustration. As a part of civil society intiative, academic activism required to be mobilised to prepare an inventory of different types of use of communal land and land based resources of different types of management of the same. Here it is to be noted that apart from inextricable interest for the tribal peoples, recognition of community land and land based resource right has wider implication for humanity as a whole. There are studies at the international level which suggest that community resource management system provides the best mechanism to cope with the challenge of the gathering environmental crisis.12(d)
Quantum of Communal land in India
According to Chopra et al.,13 of the Institute of Economic Growth, Delhi, 7.4 per cent of the total geographical area of the country, that is, around 2.3 lakh sq. km, is under a pattern of land management which from its description appears to be communal land. Out of this 2.3 lakh sq. km of land, an estimated one lakh sq. km is situated in North-East India, and the rest is outside North-East India. There are indications that the bulk of the rest is located in Central India. It does not require much imagination to appreciate that denial of the traditional right of the people of the vast tract of land is untenable in pragmatic politics, if not in terms of ethics and democratic norms. Civil Society intervention is indispensable to maintain democratic character of the state
Media reports14 indicate that some of policy-makers are advocating direct involvement of the Army and Air Force to contain the Naxalite upsurge. For protecting the democratic character of the Indian state, civil society should decisively intervene so that (a) the Army and Air Force are not involved in any manner, (b) while on the one hand the apparatuses of the state must refrain from all forms of predatory action, including appropriation of Community land as state land, on the other requisite assistance should be extended to the Communities to conserve and develop their Communal resources for optimisation of production and satisfaction of diverse social needs.
Follow-up action after Community is recognized as land and land-based resource holding legal person
(I) Amendment of banking law to enable banks extend institutional finance to the Community as land holding legal person.
(II) Examination of the Mutually Aided Cooperative Act of Andhra as well as cooperative laws and functional norms in different countries so that the cooperative sector can supplement the banking sector in providing institutional finance.
(III) As bio-diversity along with conservation function satisfies various social needs, participatory research is to be stepped up manifold.
(IV) As along with biodiversity conservation and its social use, forestry and agriculture are expected to be the main land use of Community land, the feasibility of adopting two new trends in these sectors is to be examined. With this end the following are to be noted.
(a) In 2000 AD along with 161 countries, India adopted a protocol in the forestry sector called the Criteria and Indicator approach. It provides for preparation of a series of local unit forest working plan through synthesis of people’s knowledge and interest on the one hand and research based technical skill on the other. The Indian Government had issued a circular in 2000 AD advising the State governments to adopt the approach. But it seems that there is no enthusiasm in any quarter to adopt it. However, in 2008 a frame for synthesis of people’s knowledge and research insight was developed in Sikkim and on February 5, 2009 the Chief Minister made a public statement that the main function of the Forest Guards would be extension work rather than policing work. With this end, the Forest Guards would be designated as Van Sevaks. As the C and I approach and the Sikkim initiative seem to have the potential of radicalising the forest management, these may be examined in depth for furtherance of civil society initiative. (b) Several States have adopted the agenda of universalising organic farming in the agricultural sector. But there is reason to believe that research support in specific agro-climatic context is inadequate. For sustainable development of the communal land holding system, the programme of promotion of organic farming also requires a close look.
For formulation and coordinated implementation of programmes there must be efficient and effective governance. But in this matter the situation is far from satisfactory. The SCII-MOTA observes that the Tribal Sub-Plan (TSP) has been existing on paper. It is based on a D.O. letter written by the Prime Minister to the Chief Ministers in 1980. But as required by administrative norms, it should have been followed by the issuance of an official order by the Cabinet Secretariat, but this was not done. Besides, as funds are allocated only notionally towards the TSP, over a period it has lost its vigour and vitality and as a result become a mere ritual. Mostly Ministries merely make some notional allocations towards the TSP, but these are not pursued seriously. The role of the MOTA is largely of advocacy without being really empowered to have any meaningful say. Besides, the Integrated Tribal Development Projects/Agencies (ITDPs ITDAs) have by and large become defunct.15
What has been stated by the SCII-MOTA has been confirmed by the Draft National Tribal Policy 2006:16 “The TSP mechanism has become routine and humdrum, in most States it has become a loose agglomeration of schemes prepared by line departments and driven more by departmental priorities than by thrust on development of tribals and tribal areas.” The norms of different schemes are not adjusted to the demographic, ecological and socio-economic specificities of tribal people and tribal areas.
Four years have elapsed since the sorry state of affairs were revealed by the Draft National Policy but there is hardly any indication that the situation has improved. There are 12 State Tribal Research Institutes. The nation would not have been in the dark had they been functioning according to the accepted norms of research. But as noted in the Draft Policy, “the functioning of the TRIs over the years has become routine and has been constrained by financial and adminis-trative shortages”. It is not known what type of administrative shortages the TRIs have; but severe financial shortage has not stopped senior bureaucrats (IAS and State Service Officers) being appointed as Research Commissioners and Directors.
At the grassroot level, the delivery mechanism has another facet. The EG-PC has suggested that the Panchayat (Extension to Scheduled Areas) Act 1996 may serve as an effective delivery mechanism. But as in 2001, in India as a whole the Fifth Schedule covers 18 full districts and 51 part districts.17 From available information it seems that out of the 125 districts under the influence of militant radicalism, only 13 full districts and 19 part districts are covered by the Fifth Schedule. The EG-PC has suggested that all tribal predominant areas may be covered by the Fifth Schedule. But many of these areas are village clusters,18 and the Draft National Tribal Policy has observed that future scheduling can be done only at the gram panchayat level, not even at the block level. Besides, the EG-PC has mentioned that there is resistance from the States against the adoption of the PESA definition of a village. While the cause of resistance has not been adequately explained, the EG-PC has suggested that it should be ensured that the State Legislatures adopt the PESA definition of a village.19 Such authoritarian approach is undesirable. Furthermore, it should be noted that the Committee of MPs and Experts has characterised the Sixth Schedule of the Constitution as having the grains of autonomy and the Fifth Schedule as paternalistic in its thrust. Obviously the tribals today cannot be expected to be satisfied with paternalistic protection. It may be considered whether all tribal predominant areas should be covered by a modified Sixth Schedule and whether the positive uncontroversial provisions of the PESA can be incorporated in the same.
As reported by the media on November 26, 2010, the Government of India has19(a) adopted an Integrated Action Plan (IAP) for 60 Naxal hit areas—most of which are tribal predominant and/or backward areas. The IAP would be an additional Central grant of Rs 25 crores for each district during 2010-11 and Rs 30 crores during 2011-12. This Central Assistance Scheme would be on a 100 per cent grant basis for quick solution of problems concerning health care, drinking water, eduation and roads. It is significant that at the district level the schemes would be decided by a Committee consisting of the Collector, Superintendent of Police and the District Forest Officer. At the decision-making level the Panchayati Raj Institutions and even the officers of the concerned line departments and Tribal Affairs Department will not have any direct role. Here it is to be noted that in 2004 an Expert Group set up by the Ministry of Rural Development observed that the Forest Department has no knowledge, skill and sympathy to manage the forest for conservation.20 Has the situation changed? Civil society will have to carefully watch the implications of this strange arrangement, for preparing and overseeing the implementation of the “integrated” action plan. Civil Society reconceptualised
In this write-up while many action-items have been mentioned, the specificities of the same, some of which are of technical nature, will have to be determined. For instance, as already mentioned, though the TSP strategy is in existence for decades, the norms of most of the schemes have not been laid down. From the information available about the coordination of the delivery mechanism, it is obvious that the norms cannot be determined and enforced by the same. If the civil society is to take the initiative, the technical part of the job will have to be taken up by insti-tutions like the University Grants Commission and Indian Council of Social Science Research. The technical assistance rendered by them should be considered as part of the civil society initiative. Scope of proactive action
For constraints of time I have confined the scope of proactive action to the civil society initiative on pressurising the state to honour its commitment to the Lok Sabha on recognition of the Community as land holding legal person and related matters. But in real life situation such matters are interrelated with a host of other matters including ameliorative measures, delivery mechanism, political economy, cultural superstructure. The EG-PC has suggested a large number of ameliorative measures; my article on the agenda of proactive action, published in the weekly Mainstream of April 17, 2010, fairly comprehensively covers other linked matters.21 While these may be brought to the notice of the participants in this seminar, it will be unrealistic to discuss them in a seminar of two days duration. In 1970 the then tribal situation was covered in a ten-day-long seminar organised by the Institute of Advanced Studies, Shimla. The participants in the present seminar may like to pass a resolution requesting the ICSSR to sponsor a similar seminar of ten days duration.
[Text of the Keynote Address delivered by the author at a seminar on “Militant Left Redicalism, State and Civil Society: the Centrality of Tribal Land Rights”, organised by the Council for Social Development, New Delhi, December 10-11, 2010]
1. Planning Commission, 2008, Development Challenge in Extremist Affected Areas, paras 4.1, 4.2, 4.3.
2. Ibid., para 4.4.
3. Committee of Concerned Citizens, Hyderabad, 1998, In Search of Democratic Space
4. Op. cit. 1, para 3.12.
5. Standing Committee on Intersectoral Issues relating to Tribal Development, Ministry of Tribal Affairs (SCII-MOTA), para 5.1.
6. Op. cit. 1, para 1.1.1.
7. V. Ramakrishnan, 2010, ‘Flawed Operation’, Frontline, May 7, 2010.
8. Op. cit. 1, para 5.71.
9. Op. cit. 1, para 3.1.1.
10. Roy Burman, B.K., 2009, ‘What has driven the tribals of Central India to Political Extremism’, Mainstream, October 17, 2009.
11. Planning Commission, National Committee on Development of Backward Areas, 1980, Report on North-East India.
12. Expert Group on Prevention of Alienation of Tribal Land and its Restoration, 2004/2006, paras III, V, VI and X.
12(a) Upadhyay, Carol, 2005, ‘Community rights in land in Jharkhand’, EPW, October 8, 2005.
12(b) Sunder, Nandini, 2009, ‘Framing the political imagination, custom, democracy and citizenship’, Legal Ground: Natural Resource, Identity and the Law, Oxford University Press, New Delhi.
12(c) Ray, Protuti, 2003, ‘Economic Reforms in India’, Mainstream, August 29, 2009.
12(d) Hay, Peter, 2002/2009, A Companion of Environmental Thought (Indian edition), Rawal Publication, New Delhi, 2009.
13. Kanchan Chopra et al. (ed.), Oxford Handbook of Environ-mental Economy, Oxford University Press, New Delhi, p. 32.
14. The Hindu, June 11, 2010.
15. Op. cit. 5, Executive Summary, paras 5, 12.1, 6, 8, 10.
16. Draft National Tribal Policy, 2006, Website http.//tribal.gov.in
17. Roy Burman, B.K., 2006, ‘Fifth Schedule of the Constitution and Tribals Self-rulers’, Indian Journal of Social Work, vol. 67, Issue 3, July 2006, Tata Institute of Social Science, Mumbai.
18. Op.cit., paras 2.8.2, 2.11.1.
19. Op.cit., para 5.6.4.
19(a). ‘Action Plan for 60 Naxal Hit Districts’, The Hindu, November 27, 2010.
20. Ministry of Rural Development, Government of India, 2004/2006, Report of the Expert Group on Prevention of Alienation of Tribal Land and its Resources, Ch V, para 20.
21. Roy Burman, B.K., 2010, ‘In Quest for a Proactive Approach’, Mainstream, April 17, 2010.
Prof B.K. Roy Burman was a member of the Scheduled Tribes Advisory Council (1968-70) (now defunct) and happened to be the Chairman of the Tribal Studies Panel, Indian Council of Social Science Research (1999-2000). He can be contacted by e-mail at firstname.lastname@example.org
In Quest for a Proactive Approach
On April 12, the Statesman News Service (SNS) flashed the observation of a People’s Tribunal to the effect that the “entire executive and judicial administration appears to be totally apathetic to the plight of the poor, specially the tribals. Violations have now gone to the extent where fully tribal villages have been declared to be non-tribal.” The SNS further reported that while giving her testimony to the tribunal, Booker Prize winner and human rights activist Arundhati Roy accused the government of playing into the hands of the mighty corporate houses. She advised the Government of India to give up its current misdirected development policies for the sake of democracy.
It is good that the Tribunal has spoken out and Roy has held out her accusing finger. The magnitude and forms of violation of human rights norms are, however, more extensive than what the Tribunal is reported to have observed. And the nature of the malaise is much deeper and rooted in history than what Roy is reported to have stated. But the moral authority that the Tribunal and Arundhati Roy each commands has the aura of transcendence. This by itself has political therapeutic value of no mean order. Even then, for sustained civil society initiative facts in as much detail as available should be widely known.
In my article published in Mainstream of April 10, 2010, about a dozen types of predatory action by the apparatus of the state have been described. Some of these, promoting the neo-feudalisation process, for instance, symbolise not only accentuation of people’s misery, but the backward journey of the society to the grimace of the Middle Ages. Some others like harnessing nuclear energy without capacity building through research support for taking prophy-lactive action against epidemiological hazards and genetic abberations symbolise social irresponsibility of diabolical dimension.
As regards the aspect highlighted by Arundhati Roy, some more narratives are available with the Gandhi Peace Foundation in the consolidated write-up on my presentation and supplementary communication in the consultation meet on “People’s Movement to Protect Natural Resources” held on March 6, 2010. For shortage of space I do not propose to make any rehash of them in the present write-up.
My presentation at the Gandhi Peace Foundation contains a third part also, covering the action agenda for aspects of the life situation of the vulnerable sections of the population and the slow and steady march to the valley of annihi-lation for humanity as a whole through environ-mental degradation as well as of determined action on several fronts for snatching life out of the jaws of death, of humanist retrieval of the triumph of human will over corrosive cynicism. Relevant extracts from the same with one or two supplements are furnished here.
1. At present statutory recognition of the Gram Sabha is not mandatory for States not having Scheduled Areas. The Gram Sabha as recognition of direct democracy should be by statutes recognised in all States and should be endowed with the same core powers manda-torily formulated at the national level and many and other powers which the State Legislatures may confer at their option.
2. In many tribal areas while the community is the land owning primary entity and individual rights are embedded in community right, such rights are manifested in various forms. As promised by the government in the Lok Sabha (USQ 675 dated 15.4.1987), a survey of such community rights should be carried out by covering the whole of India by involving the Gram Sabhas so as to be able to take appropriate policy decision.
3. Land Survey Acts and Rules in all the States of India should be reviewed with broad participation of different segments of society so as to ensure that
i. Gram Sabhas are involved in actual Survey and Settlement operations.
ii. Appropriate technologies in traverse and cadastral survey respectively are adopted.
iii. The rights of the community and of individuals, as agreed to by the Gram Sabha, are fully and unambiguously recorded.
iv. Before finalisation of the record-of-rights, a draft copy of the same is to be made available to the Gram Sabha for authentication. All existing records of rights in the predominantly tribal areas all over the country should be reviewed with the involvement of the Gram Sabhas to determine whether they satisfy the conditions on the ground as at 4. If not, revisionary Survey and Settlement operations in accordance with the guideline as in 3 should be undertaken.
4. The Mohan Dharia Committee Report on Debureaucratisation of Cooperatives, the Sankaran Committee report on mutually aided cooperatives and the Andhra Pradesh experience about implementation of mutually aided cooperatives should be made widely known. The International Cooperative Association has been advocating for years complete freeing of the cooperative movement from state intervention. The issue should be examined in depth and the cooperative laws should be amended at the Central and State levels.
5. The banking law should be amended to enable banks extend institutional finance to the community as the land holding legal person. For this some preliminary work was done by a committee jointly set up by NABARD and the Nagaland Government in 1989-90.
6. Banking law should also be amended so that in very special situations authorised nationa-lised banks can discharge investment functions with ancillary institutional arrangements so that management and control of the enterprise rest with the tribals for the welfare of the tribes and for augmentation of the quality of the environment. As junior partner the bank should also be involved in decision-making and should share the risk of the enterprise.
7. Along with 161 countries, India has signed a protocol to develop an approach to forest management called Criteria and Indicator (C&I) approach which would combine people’s ecopru-dence at the grassroot level, and research insight at the technical level. It will ensure involvement of community organisations at the grassroot level for the preparation of their working plan. While in 2000 the Government of India had issued a circular advising the States to follow this approach, it seems that there is not much enthusiasm at any level to implement it. There should be a civil society initiative on this; as it seems, this may radicalise forest management with a pro-people orientation to a considerable extent.
8. The Forest Survey of India publishes every second year a report on the status of forests in all the States. Analysis of the same in a time-frame gives very important insight about the changing profile of the quality of forest management in the country. These reports should be discussed in multi-disciplinary forums, as it seems these do not support the premises of forest orthodoxies in many aspects.
9. (a) There is reason to think that the status of bio-diversity research is extremely inadequate in India. Even at the conceptual level there is extremely inadequate understanding of what it stands for. Most of what passes for bio-diversity does not go beyond bio-geography. The wrong concepts about bio-diversity have been found to have adversely affected actual forest manage-ment. The matter should be carefully looked into.
(b) Research priorities and training modules of the forest research and training centres at all levels including FRI and IIFM should be reviewed by an independent agency.
10. There is reason to feel that while several States have gone ahead with the agenda of universalisation of organic farming, research support for the same is extremely inadequate. As a result in some areas the farmers are becoming sceptic. A high-powered review is needed very urgently as it has considerable implication for eco-conservation.
11. (a) While in the context of global warming bio-gas energy generation has assumed considerable urgency, a few years ago it was found that there was over-centralisation of research in this matter. As a result generating plants suitable for different agro-climatic regimes were not available. The current situation should be reviewed and requisite corrective actions should be taken.
(b) It has been found that while adoption of non-conventional energy generating technology requires considerable preparatory work, in many areas such work has not been started, even though much cost is not involved in this matter.
(c) While in India three sites for generation of wave energy have been identified, as some international understanding seems to be needed the matter has not been pursued. Perhaps a more proactive policy keeping international amity and cooperation in view should be pursued.
12. In India while uranium is found in different sites from Kerala to Meghalaya, the radiation level differs considerably from site to site, with different epidemiological effects, and even causing genetic aberrations. But there is reason to think that much systematic research has not been done on this. This has caused much apprehension among the concerned population in this regard. Rightly or wrongly there is a feeling that the reality is being pushed under the carpet. In Singbhum of Jharkhand and in Meghalaya it has been a political issue; there should be a civil society review of this controversial issue.
13. With the involvement of Prof D.S. Kothari (Chairman of the famous Kothari Commission on Higher Education), the NCERT had in the early 1980s got prepared a report on community work as a curricular activity in the secondary level of education. This line of thinking should be further developed and actually implemented at all levels of education. Simultaneously action-research should be carried out so as to make such an approach to education more relevant both for pedagogy and society.
14. There is an erroneous view that science and technology are two sides of the same coin. They are not. Science should develop to expand human freedom. Technology should develop to meet social needs in the specific historical, ecological context. Its trajectory should be prioritised by society.
15. There is reason to believe that most of the entrepreneurial development schemes are marked by fragmented approach all over the country. There should be multi-disciplinary review.
16. (a) In India there is a rapidly growing creative tribal literature and Dalit literature. In 1987 the Indira Gandhi National Centre for the Arts, New Delhi initiated the first move at the national level to collect creative literature in tribal languages from all over the country. In 1993 the Indira Gandhi Rashtriya Manav Sangrahalaya, Bhopal made a much larger collection. Now there is reason to think that there are more than 50,000 publications covering almost all genre of literature in different tribal languages. These should be collected at State and national levels and annotated bibliographies of the same should be given wide circulation. Similar action should be taken about Dalit literature, whose vigorous existence however is generally well recognised in the country. This action agenda is very important for two reasons, namely,
(I) the Dalit and tribals should feel that the nation looks upon them with due dignity, and
(II) analytical appraisal of thier creative literature will provide insight into the dimensions and processes of social transformation taking place among the Dalits and the tribals.
(b) The collection of tribal and Dalit literature should routinely be followed by multi-level seminars and workshops.
17. India is very rich in medicinal herbs. In the name of bio-diversity research, drug industries are getting particulars of the same collected and making commercial exploitation of the same. The Kerala Government had taken a commendable initiative along with the Law University, Bangalore to protect the intellectual property rights of the tribals in respect of the same. There should be renewed effort at the national level.
18. (a) India has the unique advantage of having time series village-wise data in more or less uniform format for the 1961, 1971, 1981, 1991 and 2001 census covering the land-use pattern, population data covering gender, number of SCs and STs, literacy, working force by nine industrial categories. In 1971 a frame for analytical interpre-tation of the same at district level was published. Now that time series data are available covering half-a-century, the change in several dimensions can be measured. Unfortunately this work has not been pursued to a significant extent. One of the reasons is that while it requires some capacity to handle large quantitative data, it also requires deep insight about the social organisation of different groups, and life pattern in their ethno-regional variations. There has not been much composite training on the foregoing line. A serious attempt in this direction requires to be made.
(b) The type of social demography with reference to Dalits, tribals and OBCs that scholars like S.D. Thorat are doing is extremely useful. Diffusion of the insights should be promoted from the district to the national level.
19. Some State tribal research institutes have done significant work. It seems that the tribal administration and evaluation agencies have failed to draw upon the same. Annotated bibliography of their researches and research findings should be prepared and circulated.
20. Pending a thorough examination of various aspects of transformation of the political economy, a few tasks should be taken up urgently, to wit:
(a) A competent review of the personnel pattern, norms of function and actual works being done by the State tribal research institutes should be made.
(b) A broad-based public debate on the draft National Tribal Policy of 2006 should be initiated at all levels.
c) A review of the famine codes of all the States should be undertaken.
d) Analysis of published data suggests that while in some areas indebtedness of tribes is rooted in the feudal mode of agricultural production, in other areas, even in the hills, the emerging capitalist system of agricultural production accounts for it. Indepth research and communication should be initiated so that the present rule-of-thumb approach can be appropriately replaced.
e) Preservation and storage norms suggested by the Pollution Control Boards at the national and State levels in respect of different industries and the implementation of the same should be reviewed by multi-disciplinary agencies and the findings should be widely disseminated.
f) NSS data indicate that around 50 per cent of the tribal workers are wage-labour. In their case along with employment generation and asset building under the NREGA, special arrangements will have to be made to ensure that the assets thus created are not alienated.
g) A national workshop on the tribal situation in India of at least seven days duration with requisite preparation under the guidance of a Steering Committee should be constituted in consultation with the ICSSR and broad-based participation should be arranged.
h) A seminar on Peaceful Resolution of Conflicts with involvement of all research institutes recognised by the ICSSR, recognised national level NGOs, University Peace Research Departments, and selected political science, sociology, anthropology, history and law departments should be organised.
21. The Planning Commission-UNDP’s joint projection on Human Development has generated wide awareness about the human development agenda. The concepts are also becoming progressively free from the technocratic approach. The process should be accelerated through broad-based participation of different sectors of society, including academics, social activists, trade unions, peasant organisations and others.
22. It is reported that on the other lands of the villages from where the tribals have run away to take shelter in the camps managed by Salwa Judum or elsewhere, mining holders have commenced their operations. For varying reasons this must not be allowed.
23. The post-independence social, socio-religious, socio-cultural, socio-economic, socio-political and political movements among the tribal peoples and Dalits should be systematically documented and subjected to multi-dimensional analysis in terms of their genesis, role and impact in diverse ecological, including human ecological, and social-demographic contexts. These should serve as essential inputs in the preparation of a proactive initiative to meet the contemporary human imperative and predicaments and invite the political radicals, including the different hues of Naxalites, to be active partners in the uphill task of alleviating the contemporary human situation.
24. a) Action research on application of Mahatma Gandhi’s concept of trusteeship as expounded in 1944 should be undertaken in selected areas after due multi-dimensional preparation.
b) Keeping in view the fact that action research in Mahatma Gandhi’s revised frame of trusteeship requires a wide political space of self-management and also keeping in view the fact that the Seventh Plan Task Force for Tribal Development as well as the Committee of MPs and Experts have put on record their view that while the Sixth Schedule of the Constitution has the grain of self-management, the Fifth Schedule is paternalistic in its thrust, it is to be examined whether (a) a modified Sixth Schedule can be extended to all predominantly tribal areas across the country, and b) the positive provisions of PESA can be mandatorily incorporated in the same.
25. Action research with Gandhiji’s politico-social philosophy as reference requires a legal epistemology
harmonising with the same. In India the Austinian Command Law orentation is the dominant legal epistmology as a British legacy. The classical Indian concept of law as norm regulating the actual life situation of the people finds its echo in Savigny’s concept of law as unconscious organic growth. This along with Duguit’s functional orientation to law focusing on social solidarty should also be subjected to multi-disciplinary discourse.
Prof B.K. Roy Burman is the former Chairman, Study Group on Land Holding Systems of Tribals, Planning Commission, Government of India (1985-86), and former Chairman, Committee on Forest and Tribals Backward Classes Unit, Ministry of Home Affairs, Government of India (1980-82).
The precursors of the present phase of Naxal activities first surfaced in Naxalbari of North Bengal; Gopiballabhpur and Nayagram Police Station areas close to the meeting points of West Bengal and Jharkhand; Srikakulam in Andhra Pradesh; Malkangiri in Orissa; the adjoining areas of Bastar in Chhattisgarh and Gadchiroli in Maharashtra mainly among the tribal people. Currently though many areas and people in North India outside the predominantly tribal region have come under Naxal influence, it seems from the report of the Expert Group constituted by the Planning Commission to examine the development challenges in extremist affected areas that the epicentre of the upsurge “is the region in Central India with concentration of tribal population, hilly topography and undulating terrain”. This may not be fortuitous.
On August 18, 2009, addressing a meeting of the Chief Ministers the Home Minister of the Government of India, P. Chidambaram, stated that the Maoist challenge would be met by development activities and police action. This was an utterly unrealistic approach; he was silent about the most important issue, namely, the systematic dispossession of the tribal people from land resources, which they have been holding for generations.
Here it would be noted that the dispossession I am referring to is very much different from development related displacement. Conceptually at least, project related displacement is not dispossession. Displacement is the unwanted outcome of particular type of development, and the government accepts the right of the displaced persons to be compensated. It is a different matter that compensation may not be adequate, or only notional.
As against involuntary displacement, in many predominantly tribal areas the tribal people are deliberately dispossessed of their lands and resources thereon in a meticulously planned manner. This is a serious charge. But this is true. I shall now give the relevant information in support of what I have stated.
In November 1985, the Planning Commission had set up a Study Group on Land Holding Systems in Tribal Areas with myself as the Chairman and Dr Bhupinder Singh (at that time Adviser, Planning Commission with the rank of an Additional Secretary, Government of India) as Member-Secretary. The other members included one retired High Court Judge, one retired Chief Secretary who also had served as the Adviser to the Governor during President’s Rule in Nagaland, one former member of the Union Public Service Commission, the Agricultural Commissioner of the Government of Bihar, one Professor of History, Economics and Sociology each. I am a retired Professor of Anthropology. We made a field study in Orissa and found that during the land survey and settlement operation carried out in the late 1950s and continuing in the 1980s in some areas of Koraput district, hardly one per cent land in actual possession of the tribal communities was recorded in their favour. The Study Group could not visit other States because of the inability of the Planning Commission to provide logistic support.
In fulfilment of an assurance in respect of a Lok Sabha USQ No. 678 dated April 15, 1987, a statement was tabled in Parliament vide Planning Commission QM No. Pc/Bc/16—(67)/87 dated 1988. It inter alia mentioned:
As regards cadastral survey and settlement operations above 10 degree slope which have been declared forest, there may be some difficulty in carrying out these operations because this may come in conflict with the provisions of the Forest (Conservation) Act 1980. Even in cases where the provisions of the Forest Act are not attracted the State Government of Orissa seems to have avoided such a survey in order to prevent alienation of fragile hill-slopes.
During our visit to Orissa, apart from interacting with the tribal people in their habitats, we had held discussions with leading citizens, the concerned Minister, Commissioner-cum-Revenue Secretary, Member, Board of Revenue, Land Reforms Commissioner, former Survey and Settlement Officer, Koraput district, District Collector, Keonjhar, and other officials. Nobody mentioned that cadastral survey could not take place on a slope beyond 10 per cent because most of these were declared forests. Perhaps some of these areas were declared village forests under the Village Forest Act 1972 after the survey-and-settlement started in the late 1950s. The time when some of the areas beyond 10 per cent slope might have been declared village forest should be checked.
However, the Planning Commission’s statement submitted to Parliament admits that even in those areas beyond 10 per cent slope that did not attract the provision of the Forest Conservation Act, the rights of the tribal people were not recorded as “the Government of Orissa seems to have avoided even a survey in order to prevent alienation of fragile hill slopes”. Here it should be noted that the statement of the Planning Commission is incomplete. On behalf of the Government of Orissa the Deputy Director, Land Records and Survey had submitted a note in which it had been mentioned that the land beyond 10 per cent slope was entered in ‘Government Khata’. The note has been attached to the report of the Study Group (Annexure V). Perhaps, the officer of the Planning Commission who drafted the statement failed to take cognisance of the note submitted by the Government of Orissa. Otherwise the statement submitted to Parliament would have clearly mentioned that the areas beyond 10 per cent slope were recorded as state land in a single entry.
Details of why lands beyond 10 per cent slope, which were under actual possession of the tribal people, were not recorded in their favour have been furnished in the annual report of the Commissioner of Scheduled Castes and Scheduled Tribes for the year 1960-61. During its visit to Orissa in 1986, the Study Group found that the position had remained unchanged even after the lapse of a quarter-of-a-century and no remedial measure had been taken even though the Commissioner’s report was presented to Parliament.
The report of the Study Group had included extracts from the report of the Commissioner of Scheduled Castes and Tribes at para 8.4. The relevant portion from the same is reproduced here.
During the Second Plan period an amount of Rs 6.93 lakhs was provided for implementation of the Jhum control scheme on Assam pattern and an amount of Rs 30.00 lakhs was provided for implementation of rehabilitation and soil conservation schemes. The Soil Conservation Department of the State has mainly concentrated on two types of activities, viz (1) contour bunding below 10 per cent slope, and (2) plantation above 10 per cent. Figures published by the Soil Conservation Organisation show that 6574 acres were bunded and 28103 acres of land were terraced. Three new watershed management units were also started during the year under the report, bringing the total number of units to eleven. These units covered a total area of 6.8 lakh acres.
As a result of perfunctory entry in the record-of-rights, in one village of Bisum Cuttack Block while out of 936.13 acres of land only 2.50 acres below 10 per cent slope was recorded in favour of the 44 households of Dongria Kondh [a community listed as primitive tribe in the State], around two thousand mango trees located above one to ten gradient slope which were owned by the Wadaka lineage, were recorded in favour of the State Government. The value of these trees was estimated to be around Rs 40 lakhs.
In Bondo Hills, less than one per cent land owned by the tribals belonging to the Bondo tribe who are also categorised as primitive, were recorded in their favour. In a recent communication Prof L.K. Mahapatra, a former Vice-Chancellor of Utkal University, informed me that in the Upper Bondo Hill only around 0.25 per cent land owned by the Bondo people was recorded in their favour.
In Keonjhar district, the data supplied by the Survey and Settlement Officer in respect of another officially listed primitive tribe, the Juang, show that 2.48 per cent to 23.50 per cent land owned by them in different villages were recorded in their favour.
Massive dispossession of the tribal peoples from their life support resource base had taken place because of the government policy of treating tribal possessions beyond 10 per cent slope in the hills since time immemorial, as encroachment.
It should not cause any surprise that today some of these areas are hotbeds of political extremism.
As regards the effect of these measures and attitude of the tribals, the Commissioner reported as follows:
No attempt has been made to obtain the consent of the population concerned for undertaking the scheme and for ensuring their active partici-pation. There has not also been any follow-up programme and maintenance of the contour bunds has posed a difficult problem.
Thus what the Commissioner revealed was that land structure and land use of about eight lakh acres of land under occupation of the tribal people were changed without obtaining their consent.
But the Commissioner did not end here. What he further revealed was unthinkable in any democratic polity. As mentioned by the Commissioner,
At present an attempt is being made to obtain the consent from the families concerned to the effect that these will be maintained and repaired by the Government and the cost will be realised from the families concerned.
As maintenance is a continuous affair the people were required to pay all through their life, for what the functionaries of the state had imposed on them without obtaining their consent.
But the story does not end there. There were more shocking things to come. As the human drama unfolds in the Commissioner’s report:
There are several other clauses in the bond. Some of the more important ones are (i) the assessment on land where contour bunding work has been executed shall not be reduced merely on the ground that the unprofitable area has increased as a result of any work; (ii) the “beneficiary” shall give up cultivation above 10 per cent slope; (iii) the beneficiary agrees that in view of the benefit accrued and accruing to him because of contour bunding, he shall transfer a portion of his land as may be decided by the Collector to the government free of consideration for giving the same to other persons who may be losing cultivation above 10 per cent slope.
While the Commissioner’s report gives the key to the mystery of non-recording the land rights of the tribal people beyond 10 per cent slope, they were expected to part with such quantum of land as the Collector might decide, because of the so-called benefit accrued to them through the action of the minions of the state, without their consent.
Naturally, as reported by the Commissioner,
the people concerned did not agree to sign the bond and the revenue personnel have now been entrusted with the task of getting the bonds signed by tribals concerned.
While the mix of cynicism and environmental fundamentalism in the actions of the Orissa Government, as revealed by the Commissioner of Scheduled Castes and Scheduled Tribes as early as in 1960-61, and the continuation of which was confirmed by the Study Group on Land Holding Systems in Tribal Areas in 1986, is unfortunate, the presentation of a sanitised version of the same in the statement submitted on behalf of the Planning Commission in Parliament would certainly cause doubt about the nature of India’s democracy.
I visited Sundargarh district in 1991 at the invitation of an NGO. I learnt that the tribal people had successfully resisted the coercive measures unleashed by the state to sign a bond to relinquish their right in full on lands located above 10 per cent slope, and in part below 10 per cent slope. I was also told that their right above 10 per cent slope was not recorded as a confiscatory action on the part of the state. This is a serious charge, but as it targets the subjective attitude of the policy-makers, I would like to keep my judgment in suspense till I get more clinching evidence.
In 1989, I paid a short visit to Orissa as the Chairman of the Sub-Committee on Indigenous Systems of Conservation in the Tribal and Hill Areas, set up by the Committee on National Strategy of Conservation, Ministry of Environment and Forest. The Committee and Sub-Committee were set up as preparatory to the Earth Summit held in Rio in 1992. On this occasion I enquired about the functioning of the Watershed Management Units and contour bunds. I was told that in many areas the tribal people had damaged the contour bunds, as these had been constructed without taking care about the flow of water. I could sense that tension was mounting up.
The Secretary of the Harijan and Tribal Welfare Department gave me an interesting information. The Government of Orissa had approached the International Fund for Agricultural Development (IFAD) for assistance to take remedial measures against drought in the Kalahandi district where it had become endemic for years. At the insistence of the IFAD, the Orissa Government had agreed to allow cultivation up to 30 per cent slope. It was good news and bad news. It was good news in that the right of the tribal people was at least partially restored; it was bad news as the government, which ignored the report of the Commissioner of Scheduled Castes and Scheduled Tribes and the report of a Study Group of which a retired judge of the High Court was a member, yielded readily to the pressure of an international funding agency. However, later I learnt that the government agreed to make relaxation only in the Kalahandi district, where the funds provided by the IFAD were used.
Official sources have tried to justify the government approach by telling me that the real intention of the government in derecognising the rights of the tribal people beyond 10 per cent slope was to discourage shifting cultivation. I enquired whether there were any scientific data in Orissa on the extent of soil erosion caused by shifting cultivation. I was told that no scientific data had been collected in Orissa. It is unfortunate that without scientific data non-stop campaigns against shifting cultivation had been carried on and are being carried on in the name of scientific land use. This is like a modern-day witch-hunt.
The ICAR Regional Research Complex in Shillong collects data from time to time by fixing a measurement gauge in the experimental field at a place called Barpani near Shillong. The data show that depending on the degree of slope of all farming technologies next to bamboo shifting cultivation, if carried on below 40 per cent slope, has the lowest soil erosion. But if carried out on 60 to 70 per cent slope it has the highest soil erosion. Unfortunately to persuade the people to give up shifting cultivation the National Committee on Development of Backward Areas in the report on the North-Eastern Region has published data on soil erosion in case of shifting cultivation carried out on 60 degree to 70 degree slope only. And for comparison it has included corresponding data in respect of the natural bamboo forest.
At a seminar held in the North-East Hill University the tribal students accused a member of the National Committee, who was attending the seminar, of presenting the data in a perfunctory manner. They pointed out that less than one per cent of the farmers could have practised shifting cultivation on 60 degree to 70 degree slope. Shifting cultivation was normally carried out on lands below 45 degree slope. They asked why data relating to normal practice in shifting cultivation were not given. They pointed out another bias in the report. While in most tribal areas individual ownership of land is subsumed within community rights, the report under reference suggested that district and village councils should be persuaded to adopt a “progressive policy” of individualisation of their lands. This, they alleged, was interference with their system and that this would accelerate alienation of their land. In protest they would not allow the gentleman to speak. I was present at the meeting. With great difficulty the students could be persuaded to allow the gentleman to speak. I mention this incident to highlight the point that while bias against shifting cultivation per se is contributing to the alienation of tribal land, this in its turn is alienating the administration from the tribal people. In fact the report of the Commissioner for Scheduled Castes and Scheduled Tribes, already referred to, has given an example of the same. It is reproduced here:
Cashew nut plantation has been taken up by the Soil Conservation Organisation of the Orissa State Government on hillocks, some of which were used by the tribals for grazing their cattle or collecting dry shrubs for use as fuel. Some of the tribals even used to cultivate some of these highlands and had title deeds and paid rents for the lands utilised by them; but the Soil Conservation Department did not give them any share of the amount realised by the sale of cashew nut plant on eight hillocks.
During the visit of the Study Group, this matter was further examined. We were told that in great frustration the tribal people had burnt cashew nut land on one hillock in the early 1960s. Prof Mahapatra, the former Vice-Chancellor of Utkal University, provided us more information. In Koraput district, cashew nut plantation had been carried out on around one thousand acres of hill slope lands, out of which only 56 acres were passed on to the tribal people. He was not aware of any justification given by the government for appropriating more than 900 acres of land, which were under possession of the tribal people from time aeon. After it became clear that the government had no intention of giving them just share of the plants grown on their land, the tribal people uprooted the cashew nut plants on one hillock. Even then the government action of dispossessing the tribal people of their land by carrying on cashew nut plantation on hill slopes under the shifting cultivation control scheme was extended to other areas also. But the tribal people did not acquiesce passively. In 1984, they uprooted cashew nut plants on 95 acres on land at Jiljira at Kashipur Block. During a subsequent visit to Koraput district in mid-1990s I enquired from a senior official of the Orissa Government about the Kashipur episode. He confirmed the correctness of the information given by Prof Mahapatra and added that in addition to uprooting cashew nut plants, the tribal people had also burnt some plants. I was told by a social activist that most of the cashew nut plants grown over tribal land had been handed over to a corporate body, and that the tribal people were extremely sore about it. I, however, could not verify this information.
Already mention has been made of the concern of the tribal students of the North-East Hill University, Shillong about their community land. In Orissa we found that not only the tribal people, even some conscientious social activists and government officers were deeply concerned about it.
It was Gopinath Mohanty, the great humanist of Orissa, who pointed out that Kondh villages were sacred space to them. They occupied the villages after getting divine omens. The tribals considered that not only did they own the village, but also the village owned them.
This is a very significant observation. In this perspective the attempt made in some quarters to equate the World Bank-sponsored entity “common property resource”, community land and resources is denial of tribal heritage.
In my keynote address at a seminar on “Communal Land System”, organised by the Indian Social Institute on August 28-29, 2002, I had spelt out the differences between the communal land holding system and common property resources system as follows:
1. Communal Land Holding System (CLHS) versus Common Property Resources System (CPR)
A. Modality of delineation of territorial jurisdiction:
CLHS: Belief in supernatural bestowal or sanctification by long historical association with or without concurrence of any centre of power including State CPR—assigned/endorsed by the state or ancillary centre of power.
B. Sustenance of relationship with delineated territory:
CLHS: Conviviality orientation encompassing animate and non-animate phenomenal world.
CPR: Power orientation underpinned by the ego-centric need satisfaction as in village commons in rural India.
C. (a) Nature of right of community in CLHS
CLHS: (i) Jurisdictional right as well as undifferentiated economic right of the community as a whole. Individuals have the right to a fair share but not the right to a specific area or plot within the jurisdictional right of the community.
(ii) Within jurisdictional rights of the community economic rights of clans or lineage and of functionaries serving different needs of the community or enjoying special prerogatives derived from some events supposed to have taken place in the past.
(iii) Jurisdictional right of the community exercised by special functionaries belonging to particular clans or lineage in mundane aspects together or separately and individual rights of different types being conferred/recognised by the special functionaries as in modified Khuntkatti system of the Mundas, Bhuihari system of the Oraons.
(iv) Jurisdictional right of the community exercised by special functionaries belonging to a particular lineage who secures assistance of different lineage or clan elders and balances power equation among them according to his own prudence and assigns fair share to the members of the community with the assistance of the lineage or clan elders (Kuki-Mizo system).
(v) Access right of specific community to specific resource for sustaining a specific livelihood pattern within the territorial jurisdictional right of a larger community with primarily a different livelihood pattern (Birhor’s right to siyari plant for rope making within the territorial jurisdiction of the Santal, Kheria and other tribes).
(vi) Access right of different communities to the same territory in different hours of the day.
(a) Fishing right of the Keot in early morning and of the Kandra during other hours of the day in shallow water near the coast of Chilka Lake.
(b) Nature of right of community in CPR
Usufruct right according to rule framed by the authority/recognising the right.
2. Change in case of Non-traditional Use of Traditional Right
The Rongmei Naga people of Manipur have the traditional right of barter by individuals of the forest produce grown in nature in their respective shifting cultivation (Jhum) fields during the inter-Jhum period. When some of the Rongmei villages were connected by the national highway, some people in a village started to extract large quantity of forest produce and transport the same by trucks. This was a non-traditional use of resources. If large numbers of individuals transport forest products in this manner, there will be ecological degradation. The village council decided not to allow the individuals to make this non-traditional use of traditional resources. Instead it decided that truckloads of forest products from inter-Jhum fields would be marketed in a planned manner to ensure that environmental degradation did not take place. Further, the council decided that the money thus earned would be used to appoint an additional teacher in the local school. Thus it endorsed the view that a living traditional system itself has within its ambit the provision for change.
3. Viability of Communal Land System
A recent report from Panama indicates a trend of revival of the communal land system to provide a frame for collective resistance to encroachment as ancestral domain by unscru-pulous operators who mercilessly exhaust the land resources leading to environmental degradation. Besides, with appropriate institutional arrangement the communal land right has been found to provide collective security to productive investment.
With growing awareness unbridled consumerism of the West has created a condition that unless massive environmental retrieval is brought about within a short time, continuation of life on planet earth by the end of the century may become problematic; the whole of humanity is tending to become a moral community at the global level. At the same time there is a parallel development. Of late scientific resources’ appraisal at the surface and sub-surface levels has generated a realisation that there is a concentration of major resources of the earth in the ancestral domains and current habitats of the tribal and analogous peoples (known as indigenous peoples in the United Nations parlance). Though defined in a manner which is not wholly satisfactory, global networking of the indigenous peoples has already taken place. With the creation of a Permanent Forum under the aegis of the United Nations, the indigenous existence as a part of an emerging global connectivity is becoming politically and legally surcharged, though currently on a low key. The significance of the presence of communal land and resource management systems of the tribal people is to be understood with a mix of ethical-cum-politico-juristic matrix as the backdrop.
In a general way the Study Group on Land Holding System of the Tribals was sensitive to the foregoing emerging reality. Perhaps this has scared the policy-makers at the mid-level. It is a pity that we were not allowed to complete our task. In the report itself it was indicated that it was an exploratory one. The nation deserves a complete report.
Though our report was presented to Parliament in 1987, the then Commissioner, Scheduled Castes and Scheduled Tribes did not make any mention of it in his annual report. I personally handed over a copy of the report to him and drew his attention to the fact that to a large extent the core finding of our report was tied up with what one of his predecessors had reported a quarter century ago. I thought that he would like to inform the nation through his report that the serious malaise of the system that one of his predecessors had revealed a quarter century ago had remained to be redressed. Instead of referring to the concrete dereliction which had become public knowledge, he published a political manifesto-type write-up of a hypothetical problematic about tribal command over resources. It was an act of magnificent evasion and this was not the first and last act of such evasion.
We were, however, impressed by the sense of commitment of the local officers in general in Orissa. The note submitted by the Collector of Keonjhar categorically mentioned that traditionally the Juangs and Bhuriyans residing in the respective pirs (village clusters) considered that the lands of the village belonged to the village community and they were free to use the same in any manner they liked. The pirs were not subjected to any land survey and settlement operation till the operation was taken up in the year 1970 and completed recently. It was further mentioned in the note that shifting cultivation was indirectly recognised. The village headman had the power to distribute land for cultivation and to apportion the produce rent. Even then in the survey and settlement operation the land subjected to shifting cultivation had not been recognised, although the practice was still in vogue.
It was brought to the notice of the Study Group that in many tribal areas legal recognition of possession of individual and raiyati holdings did not cover all possessions. In fact the State Tribal Research Institute had already reported that among some tribes, individual rights were subsumed within community control, management and ownership. But no heed was paid to this. The survey and settlement rule was not adjusted to this contingency. It is obvious that as a sequel to non-recognition of communal rights, the embedded rights of the tribal individuals also failed to be recognised. The operation for preparation of record of rights turned out to be operation denial of tribal rights in respect of their land resources.
While formulating the recommendation the Survey Group observed that where individual rights are embedded in communal rights, removal of the community as the intermediary removes the necessary condition for the concerned individuals to enjoy their rights. The Study Group recommended that keeping the foregoing fact in view, the land reform policy and programme in the tribal areas should be subjected to most thorough re-examination.
The statement, placed in the Lok Sabha on behalf of the Planning Commission, mentioned that the Department of Rural Development agreed with our recommendation about the need for an intensive study of the communal land system, their persistence, change, decay and reinvigoration with a view to identifying measures which might lead to the formulation of policy guideline regarding the communal land system.
Two decades have lapsed since the commitment made to Parliament that intensive studies would be made based on which the land reforms policy focusing on communal land ownership, management and control among the tribal people, could be formulated. It is not known whether studies as promised have been done and whether any policy formulation in the near future is under consideration. In the meantime two developments are taking place.
First, there is more awareness about the importance of the communal land holding system among the tribal people. Second, in the absence of a clearly formulated policy, dispossession of the tribal people from their life support resource base is going on and there is reason to believe that this will further roll up in the future.
As regards the first, it is encouraging to note that the Expert Group on Prevention of Alienation of Tribal Land and its Restoration, set up by the Ministry of Rural Development, in its report (2004-06) has acknowledged that community ownership of land continues to be the dominant mode in the tribal societies and takes precedence over that of individual ownership. (p.iii) At page 157 of the report it has been recommended that in addition to individual land rights, the rights of the communities are also identified and recorded. On page 158 the recommendation is that the entire land traditionally used for shifting cultivation on rotational basis shall be recorded in the name of the tribal community and individuals who cultivate particular patches of land on rotational basis, rather than being recorded in the name of the government or any agency.
As regards the second, I would like to present here processes through which dispossession of the tribal people from the resources under their command is currently taking place.
Dispossession through Neo-feudalisation
The neo-feudalisation process was started by the colonial rulers. Faced with resistance against encroachment in tribal areas, in strategically located places they adopted a policy of co-opting local warlords as subsidiary allies by declaring them as owners of the lands under their political-military control. But due to underdevelopment of communication and administrative infra-structure this policy could be implemented only in some areas. In other areas these remained paper laws. In the post-independence period rather than renegotiating on the paper laws, these were treated as the framework of administration. In those areas the tribal people felt that they were being dispossessed of their rights in independent India.
The neo-feudalisation process is currently taking place in other forms also, frequently under the cover of the economic development programme. A case study relating to a Munda village in Khunti district of Jharkhand will highlight some aspects of the process.
Sutilong is a Khuntkatti village, which is in existence since the pre-colonial period. There are 84 households in the village (ST 40, SC seven and OBC 37). While 488.46 acres of land are held by the 84 households, there are 129.06 acres of gairmazurwa khas land (non-revenue paying wasteland) and gairmazurwa aam land (state owned common land).
Mundas of Kamal lineage are considered to be the original settlers of the village. Currently in Sutilong there are 15 Munda households belonging to Kamal lineage and as such traditionally they are considered to be joint owners of all land of the village. The post of the headman is hereditary in a family. The house-holds belonging to Kamal lineage individually do not make any payment to the government other than what the headman pays on behalf of the entire brotherhood. But the headman appropriates to himself the entire amount received from the non-Khuntkattidar households. While gairmazurwa aam is mostly used as grazing land and cannot be converted into korkar or land which can be leased out by the headman, gairmazurwa khas is exclusively at his disposal. He generally leases out portions of the khas land to non-tribals of a different village. When asked about the reason for doing like this, the headman and his lawyer explained that if a resident raiyat, particularly a tribal of the village, was allowed to carry on cultivation on any part of gairmazurwa khas land, he might later on claim occupancy right on it. Traditionally the headman did not enjoy this prerogative. The households other than those belonging to the Khuntkatti lineage were regarded as tenants of the entire Khuntkatti lineage. Since 1977 the Revisional Land Survey and Settlement Operation is being carried on in this region. It has been suspended several times because of strong opposition from the people. One of the reasons centres on the issue of the nature of entry in the record-of-rights. In the previous survey operation the name of the Raja of Chotanagpur was entered in Khewat No. 1. As since then zamindari has been abolished the Mundas demanded that instead of the Raja of Chotanagpur, the names Khuntkattidars should be entered in Khewat No. 1. But the government had decided that the ‘Government of Bihar’ should be entered in Khewat No. 1. As there was no agreement on this issue, the survey and settlement operation was suspended in some areas. However, the government could win over the headmen of some Khuntkatti villages by showing them separately from the other Khuntkattidar members, and conferring special prerogative on them. Sutilong was one such village the collaboration of whose headman could be obtained by conferring on him the special prerogative indicated. It was a development veering towards the neo-feudalisation process.
State-sponsored feudalisation came out very sharply in some parts of North-East India, particularly in the Kuki area of Manipur. During the colonial period, the Kuki-Mizo chiefs were projected almost as landlords. After independence at the initiative of the Mizoram Autonomous District Council the Chiefship Abolition Act was passed.
It is significant that at the time of abolition of chiefship in the early 1950s, in Mizoram the Autonomous District Council decided to pay compensation to the chiefs for the number of households under them and not for the quantum of land within their jurisdiction. The chiefs had control over the labour of the persons, not over land. For instance, when a person hunted a game the chief had a share of it. Even if the animal ran away to the area in the jurisdiction of another chief and the hunter bagged it there, he gave to his own chief a part of the animal as his share.
In Manipur in Naga areas the village council as a whole controls and manages the resources of the village; the headman does not enjoy any special prerogative. In Kuki areas the chief has the political right of management of community resources. He has the right to determine which plot of land to be allotted to which person for cultivation. But he has to exercise this right in consultation with the clan elders. Ordinarily the chief-in-council cannot deny altogether the right to fair share of a resident member and cannot reduce the aggregate share of the members of the community. The Kuki chief is entitled to some payment from the members of the village community. This is considered as tribute for the responsibility he bears. Though in some quarters there is a tendency to project the payment as rent, on a holistic analysis it becomes clear that it is not so.
The Manipur State Assembly enacted the Manipur Land Reform Act 1960. It recognised only individual rights on land, not community right. Originally it was confined to the valley, but in the early 1970s the State Assembly decided to extend its operation in the hills. The tribal people offered resistance. The Governor informally sought my view in this matter. I suggested that appropriate sections should be inserted in the Act covering the systems prevailing in the hills and with such modifications as may be agreed to. Accordingly the Governor withheld his consent. But in the early 1980s the new Governor gave his consent. The Directorate of Land Survey and Settlement issued a circular that land survey would be carried out with the cooperation of the chiefs. It was interpreted to mean that the chiefs would be paid compensation as owners of land and with their collaboration survey and settlement would take place. This attempt to take over tribal land by arbitrarily abrogating the collective right of the village community and by vesting feudal right on the chiefs, did not, however, meet with much success.
It is to be noted that till the 1980s though there were inter-tribal conflicts and organised violence, there were not much violent anti-India activities in the hills, except for Ukhrul district to some extent. It is only since the early 1980s that the anti-India insurgent activities have gained momentum in the West and South districts. Some ascribe it to the attempt on the part of the government to usurp the collectively owned resources of the people by promoting the neo-feudalisation process in the hills and thereby dispossessing the hill dwelling tribals from their traditional land rights.
Dispossession through Primitivisation
Since the Fourth Five Year Plan within the category Scheduled Tribe, a sub-category, primitive tribe, is recognised for being provided special assistance for coming up at the same level as the rest of the population. Certainly among the Scheduled Tribes, the people categorised as primitive tribes constitute in general the most disadvantaged and vulnerable segment of the population. But some of us opposed the use of the term primitive, primarily for three reasons; (a) The term primitive is a pejorative term. Historically it means that they are having lower level of mental capacity. Researches have established the fact that the average intelligence quotient of different human groups does not differ much from one another. Their behaviour patterns differ from one another through adaptation to different ecological niche including human ecology and due to differences in historical experiences. (b) When some people are called primitive, the onus for not being able to take advantage of development inputs provided by the state and other agencies lies with them. (c) Categorising the people as primitive provides rationale for intervention in the affairs of the people thus categorised by the politico-administrative establishment of the state. As early as 1784 the German philosopher, Herder, observed that by stigmatising a people as primitive invasion and conquest of lands across the oceans were legitimised.
Apart from the primary objection, we had a secondary objection. One of the main criteria for identification of primitive tribes is that they are in the pre-agricultural stage of the economy. We hold that some of them may be non-agricultural, but it need not necessarily mean that they are in the pre-agricultural stage. In contemporary world there is no economy which is not in direct or indirect symbiotic relation with agricultural economy. Besides, there is no consensus about what is agricultural economy. There are many people, particularly among the policy-makers, who do not consider shifting cultivation as agriculture. They consider it as a rudimentary form of cultivation which has to be carried through to the level of agriculture “proper”.
Currently many of the so-called primitive tribal people are engaged in gathering forest products and trapping wild life for bartering the same with agricultural and village industrial products. Some of them process the forest products and dispose of them in local markets. Some of the goods collected by them have even an international market. Pulses, oil seeds, spice, cotton grown by the shifting cultivators are on record to have had demand in the regional and national markets even in the 19th century. Harvey Feit [Politics and History of Band Societies, (ed.) Eleanor Peacock and Richard Lee, Oxford University Press, 1982] suggests that the societies of this category should be helped to specialise in their respective fields by providing them appropriate technologies, linkages and networkings. But as the stereotype in respect of them is that they are pre-agricultural people, the action agenda for state intervention in respect of them is to transform them into agricultural people. The experience so far is that this has a disastrous effect.
One such so-called primitive tribe is the Toto in West Bengal. They live in only one village—Totopara, located at the meeting point of West Bengal and Bhutan. In 1951, their number was 319; currently it is more than 600. In the Survey and Settlement Report of 1907-14, the entire land of Totopara was recorded in the name of the headman “on behalf of the community”. This was the only case in West Bengal of a community being recognised as owner of the entire village land. They were engaged in shifting cultivation, with barter in horticultural and forest products as subsidiary occupations. After independence the welfare state decided to develop their economy as settled agriculture economy. To facilitate this, it was further decided to parcel out the community land into individual holdings. A survey and settlement operation was undertaken in 1958. The lands, which were under shifting cultivation of different households that year, were recorded in their favour. The Totos were told that in future they would have to practice settled agriculture on those very lands. As the Totos did not have plough and cattle for settled agriculture and were not adept at adjusting the operations with the climatic conditions, they entered into share-cropping arrangement with Nepali farmers of the area. During this very period I visited Totopara in connection with my research and came to know of the development. I immediately got in touch with the Survey and Settlement Officer and impressed upon him the inappropriateness of parcelling out community land to individuals without the consent of the legal owner—the community. Besides by doing this, the government’s objective of transforming the shifting cultivators into settled agriculturists would not be served, as the lands would pass out of their hand. B. Raghavan, the Settlement Officer, was a sensible person. With the permission of the Secretary, Revenue Department, the operation was cancelled.
Two decades after the episode of 1958, when the Totos were officially declared as a primitive tribe, prodded by the Centre, the State Government decided to implement a big programme in Totopara. For 74 Toto families a Junior Secondary School, a Grameen Bank, a large Agricultural Multipurpose Corporative Society, and a Maternity and Child Welfare Centre were sanctioned. The Totos were persuaded to spare land not only for the offices but also for the staff quarters of these institutions. But after settling down in Totopara, the Grameen Bank threw a bombshell. They argued that, as without having separately delineated lands in their favour the individual Toto households were not in a position to offer any collateral, it would not be possible for the Bank to advance any money to them for productive and other purposes. To meet the requirements of the Grameen Bank, the government took a quick decision to get a survey and settlement operation done. Because of their experience of 1958, this time the Totos were more cautious. They got only their homestead and adjoining kitchen garden land recorded in their favour. In this way out of around 2100 acres of land, only around 300 acres could be covered. The survey staff did not know what do with the remaining 1800 acres. The then Land Reforms Commissioner was approached for advice. As normally a community is not recognised as a legal person, he advised the remaining 1800 acres to be provisionally recorded in a single entry as government land. On these lands there were thousands of catechu trees, worth several million rupees. The district level revenue officers quickly got these auctioned and felled. The landscape of Totopara completely changed. The vacant lands, however, did not remain vacant. Large numbers of immigrant population were settled on them. The Totos became completely marginalised. Not only did they lose their land, they lost their home. Mandarins of welfare decided that the stilt houses in which they were living for generations were not good for them; they were “persuaded” to change their house type. Though the homes with the social and cultural functions bequeathed to them by their ancestors had gone, mercifully they still had shelters where they could continue to “exist”. I have got a pathetic letter from the son of the last Toto chief describing the calamity that had befallen them. Even before I got this letter I was informed of the catastrophe by a visiting anthropologist on phone, and I had taken up the cause of the Totos with the then Revenue Minister of West Bengal. He was a very sincere person. After due inquiry he told me that while he shared my agony about the tragedy of Totopara, the thing had gone completely out of his hand. At that stage it was politically impossible for him to intervene. It was decided in the Advisory Committee of the State Tribal Research Institute that the Minister of Tribal Welfare, an MP who was an eminent economist, and myself would visit Totopara to ascertain what could be salvaged, but it never materialised due to bureaucratic intransigence.
Not only the Totos, it appears to me that as a rule the so-called primitive tribes are destined to be victims of welfare.
In 2004 accompanied by activists of an NGO, the Orissa Development Action Forum (ODAF), I visited a hamlet of Birhors—a traditional hunting and gathering tribe of Orissa, West Bengal and Bihar. As a part of the Primitive Tribe Development Programme, a good number of them were removed from their forest abodes and made to stay in small hamlets in the outskirts of settled agricultural villages. I was surprised to see that all the houses they were sheltered in were ramshackle leaf structures. I have seen them living in similar hut-like structures in the forests of West Bengal, Bihar and Orissa. But while in the forest environment they harmoniously fitted into the rhythm of life—the whisper of the silence, the muse of the cosmos, in the backdrop of the mud houses of the farmers, they tell the story of distant approximation, of condescend accommodation of homeless shelters.
Some farmers in the main village were having houses constructed under the Indira Awas Yojana (IAY) scheme. I asked a Birhor elder why they could not have at least a few houses under the IAY. Without batting an eyelid the elder replied: “We cannot have it, because we are a primitive tribe.” One of the officers accompanying me, however, explained that they could not have the benefit of the scheme from the local panchayat or the integrated Tribal Development Agency, as there was a separate Primitive Tribes Development Officer and specially earmarked fund for the primitive tribes. As the Special Officer’s headquarters was located at a distance of around 30 km from the Birhor colony I visited, it was not possible for the Birhors to visit the Special Officer’s headquarters too often. They could, therefore, hardly derive any benefit from being categorised as a primitive tribe.
Prof N.K. Behura of Utkal University in a paper contributed to a seminar jointly organised by the Kolkata University and Indian Council of Social Science Research in 2004 has pointed out that though a good number of the tribal communities have been categorised as primitive tribes in Orissa and though a number of administrative establishments have been set up to take care of them, actually they have not derived commensurate benefit from being put in a special category. Further, he suggested that rather than being called primitive tribe, they should be called vulnerable tribe.
The vulnerability of this category of people came out sharply in case of the Sauria Paharias who were settled on the Rajmahal Hill in the Santal Parganas by the British as early as in 1778.
In 1990 along with several members of the Committee on Indigenous Systems of Environmental Management and accompanied by several officers of the undivided Bihar Government, I visited Dumka, the headquarters of the Santal Parganas district. We were told by the district officials that for protecting the environment and improving their quality of life the Sauria Paharias, who had been categorised as a primitive tribe, were being brought down from their habitats on the hills and settled in a colony constructed for them in the outskirts of Dumka itself.
The background of the Sauria Paharias is as follows:
In the third quarter of the 18th century, in the wake of colonial expansion, large scale influx of migrants took place in the areas of traditional jurisdiction of the Sauria Paharias. They considered this as encroachment. They did not fight the British in the open, but from time to time swooped down on the highway located close to the foothills and then retreated deep inside the helps. This disrupted trade. The British ultimately adopted a practice of pacifying the Pahariyas by making periodical stipendiary payments to the chiefs and headmen. This was initially started by Captain Robert Brook in 1772 and was successfully implemented by Cleveland in 1780. The essence of this system, called “indirect rule”, was to co-opt the leaders of the community in a system of sharing power. Earlier, this system was tried in Africa also.
In 1782 the Rajmahal Hill Tract was withdrawn from the jurisdiction of ordinary courts and the hereditary leaders (called sardars) constituted a sessions court, which used to meet twice a year and try offences. Besides, the lands under the occupation of the Paharias were pooled together to constitute a government estate. Legally the Paharias were dispossessed; but it seems that they were not aware of it. The government allowed them to continue where they were, free of rent. In lieu of this concession made to them, the Saurias accepted the overlordship of the British.
It seems that in and around 1990, the Bihar Government decided to end the façade of Saurias occupation of land, which the British manipulated to be government land under law two centuries ago. Environmental protection and concern for the welfare of primitive tribes provided a good alibi for bidding farewell of the Saurias from what they knew to be their ancestral home.
Some officers of the Bihar Government, who accompanied us, told us informally that Saurias were maintaining the environment at the hill-top quite well; the real purpose of the government was to get the hill slopes vacated, so that commercial forestry could be undertaken thereon. However, we could not visit the traditional Sauria habitat to check the correctness of the allegation.
We visited the colony established by the government. We were shocked to find that a barrack-like structure had been constructed to lodge a people who had been living in spacious, though kachcha, houses for centuries. Then we found that the government could not reclaim the barren land in the proximity of Dumka which was planned to be allotted to the Sauria Paharias, because of the opposition of the Santal villagers in whose jurisdiction the barren lands were located. In the alternative the government had given them hand-pulled rickshaws for eking out their livelihood. No wonder they fled back to the hills. We were told that thrice they went back to the hills and thrice they were brought back to the colony. During our visit we found that many of the apartments were unoccupied.
Years afterwards during a short visit to Dumka I learnt that in the long run the government had succeeded to dislodge the bulk of the Saurias from the hill-top and cover their erstwhile habitat with commercial plantation. I could not personally verify it, but there is no reason to think that the information was not correct.
Primitive development planning of a modern state snatched away from the so-called primitive people their home and whatever had been given was a caricature of dignified living. Nothing had been given to them so that they could at least dream about the future. Under the canopy of unpunctured emptiness they lost their capacity to dream.
By a time machine as it were they have been transported to the world of eternal nothing.
They have been primitivised.
Dispossession through Fractured Humanitarianism
At the core of humanitarianism is compassion. It is a subjective attitude of mind. It can be admired; but it cannot guide action. Humanitarianism with vision of expansion of human freedom—freedom from hunger, from threat to living and life, from submission to indignity, from being forced to action or inaction and so on—is humanism. Humanitarianism is a fractured approach to reality; humanism is an odyssey for a holistic approach to reality. In humanitarianism there is the illusion of knowing the final word; in humanism there is no final word. Humanitarian action in closed orbit may strengthen human bondage and intensify human misery. This is what happened in a specific situation in Orissa.
In the Koraput district of Orissa, the zamindar of Jeypore had a category of hereditary functionaries called mustajars. Though they were revenue collectors, they had developed feudal pretensions. In the pre-independence period they used to exact four days forced labour from all the households under their respective jurisdictions. Very rightly the mustajari system was abolished after India attained her freedom. But along with the mustajar the corporate character of the village was also abolished. Earlier through mustajar the households collectively used to make payment for the village land as a whole including the wasteland. After abolition of the mustajari system the villagers were required to pay revenue only for the lands recognised by the state to belong to respective individual households. The wasteland in the new dispensation became state land. During one of my visits to the interior of Koraput distict, the village elders told me:
When mustajari was abolished we celebrated it. But when we came to know that along with the mustajar our access right to our life support resources had also gone, we wailed in our heart both for the mustajar and for our right. We feel cheated.
But there is another side of the story. There is one more entry in the deficit column of the national account book of humanism.
Dispossession through Withholding Decision
In the hot summer of 1980, as the Chairman of the Forest and Tribal Committee, Government of India, I was in Chotanagpur. At about 11 pm there was a mild knock on my door. When I opened it, I found about half-a-dozen senior officers of the Bihar Government of the ranks of Joint Secretary, Director and so on, belonging to the Munda community, standing before me. They told me that they had arrived all the way from Patna to meet me for half-an-hour and then they will go back to Patna the same night. They requested me to keep to myself their meeting me in this manner. Now all of them must have retired. I, therefore, feel free to narrate the incident. They asked me whether I knew that next day I was scheduled to distribute pattas for 36 acres of social forestry land to six leading persons of a village. When I confirmed that I knew it, they made a request to me. They wanted me to ask the Forest Officers to show me the 300 acres of the Khuntkatti forest within the jurisdiction of the village, which the Forest Department had taken under its management control in 1948 for protection and scientific development. I wanted them to tell me some more about it. But they submitted that as they were senior government officials, they should be excused from telling me more. Within ten minutes of their arrival they left.
Next day, along with the Forest Commissioner-cum-Secretary and the Additional Chief Conservator of Forests, I reached the Forest Bungalow about 50 km away from Ranchi. As scheduled, I distributed the pattas. After that while taking tea, I casually asked in the presence of the villagers about the 300 acres of scientifically managed Khuntkatti forest. There was an embarrassed silence. Then an ill-clad tribal elder stood up. He begged tobe excused, as he did not know about scientific forestry. Then he showed me a barren land by the side of the Bungalow. It was having barbed wire fencing. He said:
This barren land was a dense forest when the Forest Department had taken it over. Now through scientific management, the forest has become invisible. But the Forest Department is there.
When I asked him what he meant by what he said, he replied:
If through breaches in barbed wire our goats stray into the barren land, they disappear. This is a clear proof of the presence of the Forest Department.
The Secretary of Forest was an IAS officer. It seems that he was not aware of all these. He asked the Additional Chief Conservator of Forests to explain what all these meant. The latter explained that on the eve of independence and immediately after independence the zamindars and other private forest owners, under apprehension that in independent India forests would be completely nationalised, started cutting down trees on a large scale and then selling the same to timber merchants. To protect the forests, the Bihar Private Forest Act was passed in 1946. The Khuntkatti forest was also treated as a private forest. Under the 1948 Act the Khuntkatti forest, along with other private forests, was taken over. For scientific management the forest in this village was clear felled around 15 years ago. The felled trees were auctioned and sold out. The sale proceeds were deposited in the treasury. As no rules had been framed as to how to disburse the money to the owners of the forests, no disbursal could be made. Similarly as no rules had been framed about how to invest money for afforestation of private land after clear felling, no afforestation was done and the erstwhile forestland was remaining barren all these years.
I wrote to the Chief Secretary narrating what I had learnt in the village. He did not send me any reply, but I understand that the Forest Secretary was transferred to another department and that the Forest Officers were unhappy for his inviting me to visit the area. Had I not visited the area the embarrassing facts would not have become public.
In November 1980 Dr K.S. Singh, who was for the some time the Commissioner of South Bihar, published more details about the State takeover of the Khuntkatti forest.
Under the Bihar Private Forest Act, the management and control of Mundari, Khuntkatti Forest vested in the Forest Department, but the Khuntkattidars remained legal owners and proprietors. In 253 villages 53,000 acres of forests have been demarcated. An unknown quantum of the Khuntkatti forest still remained to be demarcated. The Mundas were to be paid 10 paise per acre as rent but during the 30 years after the Khuntkatti forest was taken over, payment had been made only in seven cases. For many years no Forest Settlement Officer had been posted, and the Mundas also did not press their demand—of late, however, they were agitating on this issue. They were also angry that while clear felling of forests had been done in some areas, the owners had not been paid anything. Also they were angry that some forest land had been used for non-forest purpose.
During a later visit to Ranchi I enquired about the matter. I was told that feudal rights of the former zamindars and members of the erstwhile royal family had been raked up by vested interests to complicate the problem. I shall not be surprised if the bureaucratic-feudal nexus is still continuing to be able to deny the tribal people their rightful dues.
A senior Forest Officer, who himself belonged to a tribal community, confided to me that apart from the 53,000 acres of the Khuntkatti forests, there were several thousand more Khuntkatti forests, which the government could not take over due to lack of communication infrastructure. Later those forests were also connected by good roads and the government made a bid to takeover the forests. But the Mundas offered stiff resistance. They themselves took up the management of the forests and these were managed much better than even the reserved forests. But even then the convetous eyes of the Forest Department were there. He, however, felt that if necessary the people might go to the extreme to prevent any further takeover of their forests. Since then I have not heard anything about further development on this tricky issue. I presume that no news is good news.
Dispossession not through Amnesia
When formats for preparation of records-of-rights of Jharkhand and Orissa are compared, it is found that in Chotanagpur community rights are also recorded; in Orissa this is not done. It seems to be a deliberate omission. A comparison of the records-of-rights of all States will perhaps bring out many such cases, which are not the result of amnesia.
Dispossession through State-centric Command Law sidetracking Living Law of Life
In 1960, the Judicial Commissioner of Manipur, who had the status of a High Court Judge, in his judgement on a civil writ petition filed by Luitang Khullakpa and others decided that in the hills of the State the village communities were the ultimate owners of the land and land related resources. [AIR 1961 Manipur 31 (V48C10)] In making this judicial pronouncement the Judicial Commissioner took the following facts into consideration.
In the absence of other records the Judicial Commissioner had mainly depended on information available in T.C. Hodson’s book, The Naga Tribes of Manipur, published in 1911. As described by Hodson:
(a) Each village possesses a well-defined area within which the villages possess paramount rights of hunting or fishing and of development of cultivation.
(b) In the case of villages which possess terraced fields, there is customary stipulation of equitable distribution of water throughout the terraces.
(c) Whild land is held in several ownerships, no alienation outside the clan is permitted.
(d) The Manipur State Hill People Regulation, 1947 indicates that each village has a Khullakpa or Chief and other officers like the Luklakpa, who collect from each household or family house tax at a fixed rate.
There is no system of assessment of lands in separate ownership and possession of lands among villages. But there is a provision in sections 60 to 64 of the Regulation of 1947 for settlement of disputes regarding ownership of land or the right of cultivation of land, and also regarding village boundaries. This would show that while ownership of land and right to cultivation are recognised in the hill villages, the actual enjoyment of the same appears to be a matter of internal arrangement in the villages, and the government does not interfere.
After taking note of the facts on the ground, the Judicial Commissioner concluded:
It is too late in the day for the Government to say that the villagers are in possession only during the pleasure of the Government. The Hill villagers have been dealing the lands in their possession with heritable rights and with rights of alienation at least within their own clan and within their own villages.
Such rights amount to property within the meaning of Article 31 of the Constitution.
Mandarins of the Manipur Government never concealed their unhappiness about this judgment. In Manipur more than 90 per cent of the area constitutes the hills, only around nine per cent is the valley. On the other hand three-fourths of the population live in the valley. It is extremely difficult for any government to ignore the demographic imperative, but the hill people also cannot be expected to gift away their right based on the principle of lex loci rei sitae. Thus the polity in Manipur has always been marked by an undercurrent of tension centring on this conflict of interests.
Frequently the political and administrative establishment in Manipur would take the stand that the judgment in the Luitang case related to the specific area of Luitang only, it did not cover the whole State. But except for attempts here and there by the administration, there is no general attempt to sidetrack the operation of the judgment by administrative action.
In 1995, the Government of Manipur set up a Social Policy Advisory Committee with myself as the Chairman, one former Chief Minister, three Cabinet Ministers, Chairman, Hill Area Committee of the Assembly with Cabinet rank, one former Cabinet Minister, two educationists and one former MP as members. Along with other matters, we examined the issues of communal land system in the hills. We found that in some cases the concerned village communities had proportionately very large areas within their jurisdiction. We suggested that the State should not interfere with their ownership rights. But like the Maori incorporations of New Zealand, the State can regulate their resource use pattern, and appropriation pattern. Out of the income generated through regulated use of the resources, income that can be accrued to a household through the extant Land Ceiling Act of the State can be equitously distributed among all the households of the village; the surplus income should be utilised to create institutions and facilities to which all citizens of Manipur, irrespective of whether hailing from the hills or from the valley, would have equal right of access. In the presence of the Chief Minister, the report was signed by all the members who represented both hills and plain and all the major ethnic entities of the State. But later, on a very different issue, some differences had surfaced. As a result, this attempt to reform the communal land resource management system did not receive the attention it deserved.
I was hoping that after the other issue was resolved, this one will be taken up and a bridge of understanding will be built between the peoples of the hills and the plain. But then came the shattering blow from an unexpected quarter. While delivering the judgment on a case lodged by the people of a different hill village claiming compensation for appropriation of the community land by a public sector undertaking, the Supreme Court not only rejected the claim of that village, but passed an order setting aside the judgment of the Judicial Commissioner four decades ago.
In a single stroke of pen the hill tribal people of Manipur have been legally disposed of thousands of kilometres of community land. It is a different matter that politically it may not be possible for the State or any agency to physically take possession of all those lands. But the judicial time-bomb for a future explosion has been laid.
This raises the question about the source of law. With exceptions, by and large the judiciary in India seems to be informed by the Austinian orientation of state-centric command law. Today when the state is receding from many of its functions such orientation is more likely to serve the interests of the corporate sector.
An all-out discourse should be launched relating to the relative significance of Austin’s command law orientation, Duguit’s social solidarity orientation and Kelsen’s living law orientation. If dispossession of millions are to be averted, judicial pronouncements must be required to make the underlying epistemic orientation clear.
Like any other fundamentalism judicial fundamentalism also must be subjected to social x-ray, so that dispossession of the type mentioned above does not go unchallenged.
In the early part of this paper, I referred to the statement submitted to Parliament on behalf of the Planning Commission about the main thrusts of the report of the Study Group on ‘Land Holding Systems of the Tribals’ and the response of the State Government of Orissa. From the details of the Study Group’s report and of the State Government’s action I have presented in this paper it would be obvious that the statement given on behalf of the Planning Commission was an incomplete version of what the report revealed and what the state did.
If one has to conclude what has led a large section of the tribal people to political extremism, obviously it cannot be ascribed to any particular cause in isolation. But apart from the executive and the monitoring organisation, roles of institutions like the Planning Commission and judiciary will also have to be examined and anslysed in great depth.
Prof B.K. Roy Burman is the former Chairman, Study Group on Land Holding System of Tribals, Planning Commission, Government of India (1985-86), and former Chairman, Committee on Forest and Tribals Backward Classes Unit, Ministry of Home Affairs, Government of India (1980-82).