Abstract
The governance of land is central to the political economy of development. In India, The schedule areas are demarcated primarily for the development of adivasis who are officially classified as Scheduled Tribes (STs)/and protection of culture through special legal and administrative provisions in the form of fifth and sixth schedule. The article aims to understand and analyse the land governance in the areas of Fifth Schedule with specific reference to the Chhattisgarh State. It explores the role of Governor in preventing the land alienation. The main data sources include the agriculture census, diversion of forest land for the development projects including the mining along with cases of PESA and FRA using a process tracing methodology. The gradual decline in the size of average land holdings indicates the failure of land governance. There is a need to clear the legal ambiguity between the provisions of Fifth Schedule with particular reference to the role of Governor to establish peace and good governance.
Introduction
The term Scheduled Areas (here after SAs) has been defined in the Indian Constitution as ‘such areas as the President may by order declare to be Scheduled Areas’ (Government of India, 2013, p. 323). The criteria to declare any area as Scheduled Area as outlined by the Ministry of Tribal Affairs (Government of India, 2013) are: preponderance of tribal population; compactness and reasonable size of the area; a viable administrative entity such as a district, block or taluk; and economic backwardness of the area as compared to the neighbouring areas. The SAs are demarcated primarily for the development of adivasis who are officially classified as Scheduled Tribes (STs)/and protection of culture through special legal and administrative provisions. Most of the adivasis are inhabited in central, eastern and north-eastern states. The Constitution of India recognises the socio-cultural diversity among the adivasis communities and made special provisions to administer the north-eastern states in Sixth Schedule under the Article 244 (2).
Apart from Sixth Schedule there is a Fifth Schedule also which provides special provisions to administer the Scheduled Areas under the Article 244 (1). The Fifth Schedule consist the States of Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana. The SAs are governed by customary laws and tradition. However, it is observed that ‘the contradiction between the tribal community and the state itself has become sharpened, translating itself into open conflict in many areas’ (Mehrotra, 2014, p. 151). Both the fifth and sixth schedules consist of special provisions to prevent land alienation from adivasis to other social groups.
This includes assigning special responsibilities of Governor to prevent land alienation. Adivasis share a symbiotic relationship with the forests, how this relationship does got affected in neoliberal era as mining and industrial development displaced them from their locality, land and livelihood. The question of land is central to the political economy of development. The indigenous communities all over the world are experiencing various forms of alienation. Among all, alienation of rights over land, forest and other natural resources is the most serious one. The evolution of ‘modern nation-sate’ has usurped territorial autonomy and traditional rights of indigenous peoples. The efforts to ‘mainstreaming’ adivasis with that of other sections of the people have eroded the cultural autonomy of adivasis. One of the main cultural aspects that is critical in the context of land conflicts is the right to self-govern.
The right to self-govern to adivasis communities is an inalienable right provided by the Constitution of India under the Articles such as 15(4), 23, 24, 29, 46, 164(1), 243, 244(1) (2), 275, 350 and 371. In addition to these, legislations such as Panchayats (Extension for Scheduled Areas) Act, 1996 (hereafter PESA) and Forest Rights Act, 2006 (hereafter FRA) empower the Gram Sabha to prevent the land alienation of adivasis, as land being the central issue in the socio-political conflict. The role of state in India from 1991s onwards in extracting the natural resources including land, forest and mineral wealth has increased phenomenally. The availability of rich land containing the wealth of mineral, forest resources in Dandakaranya region of Central India has become the target of all the State governments to pursue the extractive mode of development on the lines of new economic reforms as part of neoliberal governance. Hence, here the year 1991 was chosen as an analytical point of reference to explore the subtleties of land governance in Fifth Schedule for the following factors,
The State has started allowing the private companies for the mining purposes Intensification of land acquisition for the developmental projects
Context
In the work The Burning Forest: India’s War in Bastar, Sundar (2016, p. 349) observes that ‘A new constitution gave all people the right to decide how they wanted their resources to be used. Eminent domain, under which the government claimed ownership of all land, was banished forever’ in the final section of ‘Epilogue: A New Compact’. Pandita (2011, p. 29) highlights that,
since British times any transfer of land in tribal areas could happen between tribals only. But in independent India, the rich landlords and moneylenders, who had influence among the political class, had managed to fleece the poor tribals and usurp large tracts of their land.
He also reports that ‘the primary reason why Maoism has flourished in states like Andhra Pradesh and Chhattisgarh is because of land ownership patterns and absence of rights among marginalised communities like the adivasis’ (Pandita, 2011, p. 91) as exhorted by the former Director-General of Border Security Force E. N. Rammohan in 2010. Laws prohibiting transfer of adivasi lands to non-adivasis and acquisition of land by non-adivasis in Fifth Schedule areas, where such laws exist, suffer from numerous loopholes besides tardy implementation. These loopholes are adequately documented state-wise but states have not amended their laws to remove them and strengthen protective measures against alienation of tribal land. This must be done as a priority national programme and action taken regularly to monitor its progress (Government of India, 2008, p. 66).
Research Objective and Questions
The article aims to understand and analyse the land governance in the areas of Fifth Schedule. In the process, it explores the issues of land governance with specific reference to the role of Governor in preventing the land alienation in Schedule Areas. The main research questions are what are the contributing factors for the continuation of land alienation in the Fifth Schedule areas? Why the Constitutional authorities such as the office of Governor has failed to prevent the land alienation? To answer these, an attempt has been made to understand the subtleties of land laws governing Fifth Schedule with particular reference to Chhattisgarh state.
Data Sources and Methodology
The article has adopted a process tracing methodology. It traces the various processes through which land alienation is continuing in the Fifth Schedule Areas. Among them, the dissonance between the state land laws, provisions of Fifth Schedule, conflict between the governance arrangements delineated under the Fifth Schedule and the general framework for non-schedule areas are critical. The conflict between these issues is the central to understand the land related conflicts with specific reference to the Fifth Schedule. The main sources of data are the diversion of forest land for the pursuit of development projects, legal flexibility in relaxing the mandatory guidelines such as need to take consent from the Gram Sabha/Panchayats to acquire the land and the institutional failure of the Office of the Governor in preventing the land alienation.
The data was drawn from the agriculture census to derive changes in the land holdings in the states of Fifth Schedule areas. This was supplemented by the diversion of forest land for the development projects including the mining. The cases illustrate how the rights based legislations such as PESA and FRA are being violated in the pursuit of development process. These data sets has been substantiated by the testimonies of the people working in the local administration and common citizenry. An institutional approach was adopted to understand and locate the discontents of development model in land alienation and appropriation of adivasis land rights. The content and discourse analysis have been used to explain, interpret and to draw the plausible inferences.
Origin and Overview of Fifth Schedule
Notified List of Fifth Schedule Areas.
Land Alienation and Its Contributing Factors
Adivasi Land Alienation and Restoration in Fifth Schedule Areas.
From Table 2, it can be inferred that the rate of rejection is high in all the states except Gujarat. Most importantly, in the Chhattisgarh, Madhya Pradesh and Maharashtra states the rejection rate is more than 50%. One of the most common reasons for this pattern is the lack of sufficient documentary evidence or proof of records with the adivasis to claim the right over the land. The traditional/informal governance systems operated on the basis of community centric where the rights over the land are vested in the community rather than the individual or group of individuals. The introduction of the concept of private property and the related revenue and land laws in the adivasis society has endangered the rights of adivasis over the natural resources mainly the land. The Committee (Government of India, 2011, pp. 133–138) finds that acquisition, collateral land alienation, defective surveys and settlements, irregular or inaccurate surveys, permissions granted for purchase of tribal land, inefficacious implementation of restoration laws, informal or unrecorded tenancies, benami purchases, gift by tribals, loopholes in the existing land laws, unlawful declaration of ‘deemed reserved forests’ and non-rectification of the colonial legacies are the ways and means through which the land alienation is taking place in the Fifth Scheduled areas. It finds that
the present schematic and legal arrangement for the restoration of tribal lands has not been successful on account of a number of factors including the political ramifications of such steps, the ineffective and inefficient revenue machinery and the convergence of interests amongst the political groups, the bureaucracy and the classes alienating the tribal lands. The Committee attributes the failure of the state governments to act on behalf of the tribals to a political choice. (Government of India, 2011, p. 132)
In the context of Chhattisgarh, the Committee finds that how certain loopholes in the existing land laws is contributing to the attenuation of land alienation. It observes that
a significant example of which is the abuse of the exemption clauses in the provision on land alienation at 170(a) of the Madhya Pradesh Land Revenue Code which was also adopted by Chhattisgarh. As a result alienated tribal lands got regularized by the notional ‘efflux of time’ and ‘uncontested possession. This section provides that the landowners have to give a declaration regarding their ownership of land and the manner in which they came under its possession within a period stipulated. The failure to comply with this provision of law is not visited by a commensurate penal provisions in the absence of which it acts as a reward. (Government of India, 2011)
Cases of Land Alienation in Chhattisgarh.
Table 3 shows the number of cases instituted related to land alienation in the Fifth Scheduled areas of Chhattisgarh state. The reference period is prior to the 2001–2002 to 2013–2014. The data shows that the number of cases of land alienation which was 4324 in 2001–2002 has increased to 44464 in 2013–2014; however the per cent age of cases disposed off in favour of the adivasis has decreased by 11 per cent from 51.43 in 2001–2002 to 40.56 in 2013–2014. The separate statehood of Chhattisgarh has unable to preserve and protect the adivasis land rights rather the pace of adivasis land alienation has increased giving rise to the variety of land related conflicts in the different regions of the state. In the following paragraphs, a discussion on the some of the important contributing factors that are responsible for the land alienation are explored in a detailed manner.
Diversion of Forest Land to the Development Projects
The advent of neoliberal governance and the subsequent adoption of its development model increased the pace of land acquisition in the FSAs. The contentious issue is that the land acquisition process is taking place on the premises of rights-based legislations such as PESA and FRA. In spite of these protective measures to prevent the transfer of land in scheduled areas, there is a widespread land alienation in the Fifth Schedule. This is more evident in the post economic reforms period. The average size of land holdings in the country shows a gradual declining trend as shown in Figure 1. The alienation of adivasis land predominantly take place through the mode of development with emphasis on mining and other infrastructural projects by diverting the forest land.
Reduction in the Average Size of Land Holdings in Fifth Schedule.
The reduction in the average size of land holdings in Fifth Schedule is more than that of All India average. The Figure 2 illustrates the same.
The decline of average land holding and the diversion of forest land to the pursuit of development projects is more in the areas of Fifth Schedule in the non-schedule areas. The developmental aspects include infrastructure projects, mining and building of roads. In the following paragraphs all these were dealt one by one in accordance to the impact on the land governance in FSAs. The bigger states such as Andhra Pradesh, Madhya Pradesh and Rajasthan where the reduction in the size of land holdings is more compared to that of Chhattisgarh and Odisha which are also considered as central hub of mineral resources along with the state of Jharkhand.
Mining and Its Impact on Local People’s Lives
In India, the mining is governed by the various legislations such as Mines and Minerals (Development & Regulation) Act of 1957. This was amended in 2011 in the form of Mines and Minerals (Development and Regulation) Bill, 2011 with the interventions made by the Centre for Science and Environment (CSE). Now we have a new legislation Mines and Minerals (Development & Regulation) Amendment Act, 2015 (MMDRA). One of the contentious parts of the Act is it’s denial of traditional rights of the communities over land, forest and other natural resources which are present in the 2011 Bill. This has very serious consequences on the life of adivasis communities whose livelihood depends upon the forest produces. While studying the causes of consequences of State failure Collier and his colleagues have shown that the ‘mineral wealth increases the likelihood and duration of civil wars, as they are high in value making them ideal sources of revenues for insurrection’ (Rotberg, 2004, p. 94).
Major Mining States and Human Development.
The Committee (Government of India, p. 137) highlights that ‘the use of the colonial rule of ‘res nullius’ is rampant in the settlement process in Orissa and the acquisition of common property resources of tribal communities across the nation particularly in the mining tracts of Jharkhand, Orissa and Chhattisgarh’.
From Table 5 it is clear that among the three major mining states in Fifth Schedule, the Chhattisgarh State has diverted most of the forest land for the coal mining purposes. It is observed that ‘in Chhattisgarh the diversion is for many purposes, but mining being one of the important ones. In Chhattisgarh, 1.71 Lakh hectares were diverted (1980–2003) of which 67.22% was for mining’ (Government of India, 2011, p. 118).
Case of Bailadila Iron Ore Project
It is located in the Bailadia hills of Dakshin Bastar Dantewada district. The mineral resources are present in Bacheli, Bhansi and Kirandul regions. A total of 1343.53 million tonnes of iron ore reserves are found as estimated by the department of mineral resources in 1 to 14 deposits. The National Mineral Development Corporation, Ltd (NMDC) a public sector enterprise established in 1958 has accorded mining lease for 30 years in 1968. It has started mining operation after signing in agreement with Japan Steel Mills in 1960. During 1960 to 1968 necessary infrastructure were created in terms of road, rail lines, electricity supply from Madhya Pradesh Electricity Board (MPEB) to facilitate the exploitation of minerals.
The Bailadila iron ore is considered to be one of the best mineral ore in the world. It was expected that local people’s participation in the project implementation ensures economic prosperity, by facilitating rapid growth in terms of health, education, employment opportunities. An empirical study conducted by Yadav et al. (1980, pp. 137–150) finds that it did not happened due to the following critical elements like,
socio-cultural factors such as simple and subsistent living, difficulty of language, unhappy experiences within the industrial society, exploitation of young women, drain of females from villages, economic exploitation, growing maladjustment, loss of peaceful living, pollution of river water, absence of educated and skilled persons, no reservation for local people in employment, discrimination with local people, and so on
The impact study has also reported that, the real benefits of development were not reaped by the local people rather than it benefited to the outside persons. This view can be corroborated by the following testimonies of local people,
Testimony 1: Our iron is going to Japan. Why can’t the government invest that money in local development of the people? We are told that the mining companies will provide employment to us; yes they have provided work as labourers and not for the higher positions. If we ask for higher positions, then the company says that we the local people do not have higher educational qualifications and skills 1 .
Testimony 2: ‘From the Bailadila mining everyone is benefitted, that is, Government, Naxali log (Naxalites), contractors, traders, private companies, outsiders except us (local people). Government says that the money is used to develop roads, hospitals, schools; however the same will be destroyed by Naxalites. Naxalites think that roads are built for the security forces to come in here and to kill them and they told to the villagers the government is building roads for private companies and not for the local development purposes… 2
Development-Induced Displacement
The human development report of 2009 titled Overcoming Barriers: Human Mobility and Development documents the criticality of movement of human beings from one place to other in empowering them. The question is to what extent the displacement caused by the developmental projects has empowered the displaced communities in India and Chhattisgarh State. The development path envisioned by the policymakers in India particularly in the Fifth Scheduled areas which are governed under the Article 244 (1) can be called as induced development, because it is not based on their ‘own genius’ as propounded in the Panchsheel sutras of Nehru with regard to tribal development. It is observed that ‘the tribal people have been the biggest victims of displacement due to development projects. Though constituting only 9% of the country’s population, the tribal communities have contributed more than 40% to the total land acquired so far’ (Government of India, 2011, p. 8). The impact of development projects has increased not only displacement of people especially adivasis in the Fifth Schedule Areas but also landlessness among the people. It is found that,
‘in a study of seven development projects with a sample of 301 hhs (with 43.8% tribal households within the sample) showed that legal landlessness increased from 15.6% of the households to 58.8% after displacement’. (Pandey, 1998)
In the context of Chhattisgarh,
‘it seemed the adivasi stance towards the usurping of land by corporations is born out of more than just the idea of indigeneity; it is rooted in their class predicament and their particular experience, in this case, repeated rounds of displacement.’ (Sharma, 2012, p. 22).
Diversion of Land for the Development Projects.
Water Projects and People’s Displacement in Chhattisgarh.
From Table 7 it is clear that, adivasis are bearing the brunt of modern development path followed by the Indian State through industrialisation, mining and other projects. The question arises why adivasis have to bear the toil of development path for the nation progress. How far it is legitimate and just for a country to progress on the evacuation of lives and livelihoods of original inhabitants of the nation who constitutes 8.16% population of the country? In this context it is worth to recollect Rawls (1971, p. 31), according to whom, ‘each person possesses an’ inviolability founded on justice that even the welfare of society as a whole cannot override. What is happening in the State of Chhattisgarh and in other States of Fifth Schedule areas is exactly opposite to this idea. The development is not benefiting the local adivasis and the development process is by and large non-participative in nature.
Land Holdings Average Size Operated by Adivasis in Comparative Perspective.
Land Holdings Operated by all Social Groups During 2010–2011 over 2005–2006.
Land Holdings Operated by Scheduled Tribe During 2010–2011 over 2005–2006.
It can be understood that the overall land holdings among all the social groups show a declining trend excluding marginal and small classes. A positive growth has seen among the marginal and small farmers. The same pattern can be observed among the adivasis communities. The medium and large size land holdings are gradually decreasing among all the social groups including adivasis. The question arise what impact was made by the legislations such as PESA and FRA on land alienation among adivasis? Does these Acts are successful in containing the land alienation from adivasis to non-adivasis?
The development path followed by the Indian State particularly after 1991 economic reforms has given a push to the development led by primarily land acquisition for the setting up of industries, mining, and so on. The industry or market led economic growth attributed concentration of wealth in the hands of few. Until 2013, the land acquisition was governed by the colonial legislative act of Land Acquisition Act of 1894. The Indian Constitution states that ‘the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment’ as part of Directive Principles of State Policy under the Article 39{c}. However, these constitutional provisions have not taken into consideration by the governing elites.
Violation of Rights-Based Legislations
The following cases of forest land diversion to non-forest purposes by deviating the rules of FRA and PESA is suffice to come an inference about the State’s abdication of not fulfilling the constitutional obligations.
Road Construction from Sukma-Konta
For the construction of road from Sukma to Konta the district administration has proposed to acquire the land of 34.049 hectares in 2012–2013. Sukma is a fully covered PESA district and the proposed area also falls under the Forest Conservation Act 1980. Ministry of Environment and Forests (FC Division) issued detailed guidelines (dated 03.08.2009) in which it is very clear that Gram Sabhas of the concerned villages have to give their consent (with 50% of minimum quorum) certifying the proposals of such diversion of land along with compliance of rights under FRA, 2006. The Ministry have received many representations including Sukma district administration to exempt projects from obtaining the consent of Gram Sabha. The Ministry has formed inter-ministerial Committee to look into this matter. The Committee recommended that ‘the resolution of Gram Sabha may not be required in cases of projects where linear diversion of forest land in several villages is involved’. Accordingly, a certificate issued by the Sukma Collector (dated 02.05.2016 3 ) does not contain any meetings of the Gram Sabha consent. It further certifies that, ‘Gram Sabhas have given their consent to it’. Three questions arise here, what made the inter-ministerial committee to change the decision to exempt the Gram Sabha consent? Is not this violation of the rules prescribed under PESA and FRA acts? What is the difficulty for the local administration in conducting Gram Sabha and take consent from the villages?
The subversion of democratic governance principles by the executive, political elite decision-making in land governance in Fifth Scheduled Areas is one of the important factors for contributing people’s dissatisfaction towards the government. These day-to-day experiences with the State functioning and its inadequacies in implementing the rules of the nation is giving scope to the non-state actors such as insurgents to govern the areas
Violation of Rules of PESA, 1996 FRA, 2006
Hasdeo Arand region of Chhattisgarh in Raipur district is very rich in biodiversity on which many forest dwelling communities depend for their livelihood purposes. In 2010 all blocks in this region were declared No Go for mining. All the 18 Gram Sabhas passed resolutions against mining. In spite of these resolutions the State Government and Ministry of Coal gone ahead with the allotment of 5 coal blocks. On June, 6 2016 villagers wrote letter to the Prime Minister and sought his intervention in remedying such measures. In a shocking movement, the Community Forest Rights title of Ghatbarra village has been cancelled. This is not only violating the provisions of the aforesaid Acts and also disregarding the resolutions passed by Gram Sabha which is illegal and illogical.
The biggest casualty in these cases is the adivasis land rights, ineffectiveness of local administration to follow and implement the Gram Sabha resolutions as mandated by the Constitution. Land governance among the adivasis communities is a collective enterprise with due recognition to the individual rights. The only marked difference is that in most of the cases the land rights are vested in community as a whole and not on individual and maintained on the basis of traditional governance methods such as common property resources management. This leads us to ask a question is the State is the owner of all land available in the context of neo-liberal policy regimes? The answer is no. State is an ethical order as propounded by Hegel. Like any institution the State also has certain principles and ethical roots for its existence. PESA radically envisages an alternate governance mechanism to administer the scheduled areas which are purposefully, wilfully and consciously neglected by the governing class of people including the Governor of the State.
Failure of the Office of Governor
The role of Governor in Fifth and Sixth Schedule is a convention adopted by the Constitution framers of India. The discretion of Governor is explicitly mentioned in the Sixth Schedule whereas it is not explicitly spelt out in the case of the Fifth Schedule. This has created considerable ambiguity in the policy circles, particularly within the government. The question is in spite of these protective measures, the Fifth Schedule areas following the post economic reforms period witnessed rampant land transfer through state to facilitate the industrial developments specifically mining industries. To explain the nuances of legal dissonance of land governing laws, the Fifth Schedule of the Indian Constitution is taken as an analytical point of reference.
Governors have accorded special responsibilities in ensuring peace and good government in Scheduled Areas. This provision is a continuation from the Government of India, Act 1935. With some modifications it was adopted by the Government of India in 1950. Article 244(1) of the Constitution provides special provisions to administer the Fifth Scheduled Areas. It is also the responsibility of the Governor to send Annual Reports to the President of India regarding the administration of Scheduled Areas in the State. Sections 5(1 to 4) accords special legislative powers to the Governor to oversee the applicability of any State or Union law to the Scheduled Areas. Section 5(2) of sub clause (a, b and c) provides provisions with specific reference to the land regulation and the allotment of land in Scheduled Areas.
A close reading of the Annual reports of the Governor 2008–2009, 2009–2010 of Chhattisgarh State reveals that the reports have not dealt the issues concerning adivasis land alienation, dispossession of land and appropriation of community land in the State. The reports are only indicative of administrative activities of each department. From a detailed reading, it can be inferred that the reports have prepared just as documentation and not as a serious work by the respective State and Office of the Governor. The neglect of implementing the provisions of Fifth Schedule by the rulers in post-Independence period has given rise to a variety of social and political upheavals in these areas with rampant land alienation.
Apart from this, the negligence of office of the Governors to supervise the implementation of provisions of Fifth Schedule concerned with the adivasis well-being is one of the critical factors that may have fuel the perception of deprivation of rights and injustice among the local communities. According to the Ministry of Tribal Affairs the annual reports were submitted from 2009 onwards up-to 2015–2016. A question arises here is that, why the Governors during their tenures in the office of Governor have failed to bring these realities to the President of India in their annual reports? Why Governor’s have not mentioned about the land alienation in the Fifth Schedule areas while sending their annual reports to the President? What factors have hindered them not to deal and reflect about the critical land issues?
A part of the answer may lies in the mode of appointment of Governor by the Governments in power at Union and State levels. The appointment of Governors is only by nomination and not through electoral system. In one way the indirect method of appointing Governors by the Union government have a lot of space to exercise a strong influence on the special powers accorded under Article 244 (1) in administering the Fifth Schedule. The political appointment of Governor’s has captured the executive powers of the office of Governor’s in the governance of adivasis areas. These are critical insights on how the constitutional authorities of the State are neglecting the role towards ensuring the good governance in the areas of Fifth Schedule. Another factor is the usurpation of the executive authority in administering the Scheduled Areas by the respective State government. The State governments are reluctant to devolve the powers to the office of Governor. It is unwise to critique only the office of Governor for this state of affairs in adivasis areas. The State is also equally held responsible as it has not provided separate infrastructure, personnel and financial resources to discharge the functions by the Governor in accordance to the Article 244 (1).
In Chhattisgarh, ‘the Chief Minister has made the Ex-Officio Chairman of Tribes Advisory Council (TAC)’ (Government of India, 2012, p. 249). It is questionable that how Governor can appoint a Chief Minister as the Ex-Officio Chairman of TAC. Though the Governor has the discretionary powers to elect the Chairman of the TAC it is important to elect such a person who has knowledge about the adivasis and expertise in the matters of local governance. This tells about the real intent and the reluctance of the State government to devolve the necessary powers to the TAC to keep the decision-making powers with the State in the matters of well-being of adivasis. The changes in the mode of governance in post Independent India and the continued colonial policies of adivasis well being transformed the lives of adivasis from self-sufficient and self-governing communities into the exclusive dependent on the State for their survival and welfare.
The A. V. Thakkar sub-committee (1947) with regard to Partially Excluded Areas (Fifth Schedule in current form) the committee observed that,
The greatest weakness of the scheme of partial exclusion is perhaps the fact that it left areas weakly or only nominally represented in the legislature without any special financial provisions. Whatever the reasons may be, the conclusion to be drawn from the state of affairs noticed by us is that partial exclusion or exclusion has been of very little practical value. (Lok Sabha Secretariat, 1949, p. 154)
It is beyond the scope of this article to enquire about the adoption of exclusion scheme in spite of the sub-committee apprehensions about the practicality of the scheme. However, it can be observed that definitely the Constitution of India may have altered the criteria to administer the tribal areas instead of following the colonial framework of governance. The ineffective implementation of the PESA and FRA in Fifth Schedule in general and particularly in the Chhattisgarh has alienated the rights of adivasis on land and other natural resources. In neo-liberal governance regime the intrusion of market, private MNCs has expanded the traditional bourgeoisie to extract the natural resources from SAs and making it as a site of development and governance conflict between the Indian State and the Communist Party of India (Maoist). A research study finds that the economic growth is unequal and has not necessarily resulted in political inclusion of adivasis in the development process. It is observed that
the political settlement in Chhattisgarh has certainly enabled the promotion of service delivery and, to an extent, facilitated mining better than in Jharkhand, the continuation of high levels of corruption and brutal dealings with protestors raises serious questions around transparency, accountability and political inclusion. This means that we cannot conclude that Chhattisgarh has necessarily done better than Jharkhand in promoting inclusive development, or that it should be regarded as an exemplar amongst low-income states in India. (Chhotray et. al., 2016, p. 4)
From the above facts, observations and testimonies it is modest to say that there is a positive co-relationship between the development path adopted by Indian State and the land alienation in Fifth Schedule areas. The development as a concept in Indian context has become a replica for the natural resources exploitation. Larger issues of development such as ecological preservation, biodiversity protection, equitable share of local people in the development, rights of traditional communities, people’s participation in decision-making, justice to the constitutional obligations by the respective State governments are not given adequate focus in the development discourse.
Discussion
The provisions of the Fifth Schedule, FRA, PESA and other related land laws has made difficult for the state governments to acquire land for the mining and other developmental projects. The enactment of LARR, 2013 Act along with the conduct of Social Impact Assessment (SIA) provisions has considerably reduced the power of eminent domain of the state. The forces of LPG, low human development indices in Fifth Schedule areas and the pressure of mining companies have pushed the union and state governments to fasten the land acquisition process in scheduled areas. In effect, there are certain initiatives by the union and state governments to amend the land related laws to facilitate the extractive model of development. The way the union government has dealt with the issues of traditional forest dwelling communities in the wake of Supreme Court’s order in February, 2019 asking for eviction of people whose claims under the Forest Rights Act (FRA) of 2006, were rejected clearly points out the hidden agenda to acquire the land. Similarly, the amendments to the Indian Forest Act (IFA), 1927 have almost curbs the rights of adivasis and other forest dwelling communities on the minor forest produces and their livelihood.
The Jharkhand state government’s attempt to amend the Chota Nagpur Tenancy (CNT), 1924 and Santhal Parganas Tenancy (SPT) Act, 1854 passage of Religious Freedom Bill, 2017 and contentious Land Acquisition (Jharkhand Amendment) Act of 2017 aimed at modifying some critical provisions of the ‘The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement (RFCTLARR) Act, 2013 has nullified the role of gram sabhas by exempting from the conduct of social impact assessment, all these have threatened the adivasis giving rise to the ‘Pathalgadi movement’. It started as an assertion of adivasis rights over the natural resources which are constitutionally guaranteed under the Fifth Schedule, FRA and PESA has acquired political nature. The state government in 2017 has tried to suppress this people’s movement by linking with that of Maoist insurrection. The false cases filed against the adivasis who actively participated in Pathalgadi movement, (a democratic assertion of Fifth Schedule of the Constitution) mainly in the districts of Khunti, Gumla, Simdega and West Singhbhum of Jharkhand. Similarly, the Chhattisgarh state government have attempted to amend the Chhattisgarh Land Revenue Code, 1959 Act especially by modifying Section 165, thereby to facilitate the adivasis land acquisition through the revenue administration.
The impact of the ‘Pathalgadi movement’ has felt strongly in the districts of Jashpur and Sarguja in the state and spread to the Bastar region. This has given rise of peaceful processions across the Bastar region and many village panchayats has come to large stone slabs inscripting the provisions of the Fifth Schedule and asserting the right to self-govern in the spirit of Gaon Ganraj (village republics). The Pathalgadi movement has resurrected the spirit of community governance over the state led governance especially in ascertaining the rights over the natural resources, forests and land. It highlighted the criticality of customary laws, traditional governance systems and Panchayats in the management of the natural resources with community as custodian rights but not of the state. In a way the movement has provided a food for thought for the policy makers in the union and state governments to seriously chalk out an action plan for the effective implementation of the provisions of the Fifth Schedule.
Concluding Observations
The gradual decline in the size of average land holdings in the areas of Fifth Schedule indicates the failure of land governance laws in preventing the alienation. The legal dissonance between the provisions of Fifth Schedule with particular reference to the role of Governor in preventing the land alienation is one of the main hindrances for the ineffective implementation of the same. Other factors such as unregulated exploitation of the forest, mineral and other natural resources to pursue the capital led development process is attenuating the land related conflicts in Fifth Schedule Areas. The lack of serious attempts in implementing the PESA and FRA laws is further adding fuel to the land conflicts and sometimes leading to the violent manifestations as evident in the form of insurrectionary politics of CPI (Maoist) party. The office of Governor has some discretion in exercising the executive powers as far as the matters of administration in Fifth Schedule. However, there is a Constitutional ambiguity in the discretionary aspects of Governor powers in scheduled areas as witnessed in the judgments of High Court and Supreme Court. Unless this ambiguity is removed it is difficult to expect the pro-active role of Governors in SAs. The poor land governance in Chhattisgarh and other in states consists of SAs is a consequence of the structural constrains embedded in the Fifth Schedule and particularly the office of Governor. The so far experience shows that the Governors have failed to discharge the special duties with regard to SAs especially in preventing the land alienation in adivasis society.
The Governor’s has to take steps to effectively implement the provisions of Fifth Schedule with particular reference to the prevention of land alienation. There is a need to harmonise the land laws such as revenue codes, mining laws, land acquisition legislations in coherence with the provisions of FRA and PESA. The rekindling of land reforms with particular emphasis on strengthening of PESA Gram Sabhas is the urgent need of the hour. The states in Fifth Schedule areas must fasten the process of restoring the adivasis land through fast-track revenue courts and other judicial processes. The traditional and informal mode of dispute resolution mechanism has to be rekindled along with community empowerment. Empowering PESA gram sabhas through Tribal Sub-Plan (TSP) funds as done in the case of state of Maharashtra may be thought of by other states to evolve similar kind of innovations to improve the participatory governance.
Footnotes
Acknowledgement
The arguments made in the article are part of my ongoing doctoral dissertation work. I am grateful to my supervisor Professor N. Sivanna for his valuable guidance and support. I would like to express my sincere thanks to the Doctoral Committee members, Panel of Experts in particularly late Professor B. S. Bhargava for their valuable comments and suggestions during the research progress from time to time. My special thanks to Dr V. Anil Kumar for his academic inputs. My sincere thanks to the reviewer/s critical yet constructive comments and observations that were very useful in sharpening the focus of the article.
Declaration of Conflicting Interests
Funding
The author disclosed receipt of the following financial support for the research, authorship and/or publication of this article: The research is being carried out at the Institute for Social and Economic Change (ISEC), Bengaluru with the financial support of Professor V. K. R. V. Rao Fellowship in association with Indian Council for Social Science Research (ICSSR).
