The Draft National land Reform Policy 2013 says 60 per cent of the country’s population has right over only five per cent of countries land whereas ten per cent of the population has control over 55 per cent of the land.
land as resources, need to be democratised and must be available to all .The historically marginalised communities such as the tribals should have rights over land. The tribal land issues are very different for historical reasons and further complicated by State intervention in a number of ways.
The Constituent Assembly of India had very extensively debated over the issue and the ideas of fifth and six scheduled areas came into being. The post independent India has witnessed non implementation of land laws in fever of the tribals and violation of laws by the State in spite of protecting them.
There has been also lack of concern over land issues of Constitutional bodies like Ministry of Tribal Affairs, the State SC/ST development department, the Tribal Advisory Council and the National Commission for Scheduled Tribe.
land being important to tribal identity, livelihood and development should be in the core agenda of development in States like Odisha where scheduled area and scheduled tribe have a large presence. The historical injustice done to the tribals and the continued violence in tribal areas centering on land need should be looked into and the wrong should be sorted out.
The ongoing development model pursued by the State demands land for mining, industry, urbanisation and other infrastructural development in scheduled areas and on the other side, increasing landlessness and eviction from homeland has been depriving the tribals of their basic human rights, including the right to live with dignity.
The revenue department data shows about 80 per cent of tribal families in scheduled area are under the category of landlessness possessing below one standard acre. The district like Maurbhanj, Kondhamal, Gajapati and Keonjahr are heading the list. The last fifty years of mining, industry, dams and other projects in scheduled areas have evicted a major chunk of tribal population from their land and land based livelihood.
Article 224(1) of the Constitution of India speaks about provisions as to the administration and control of scheduled area and scheduled tribes. There are nine States in India, including Odisha where 5th scheduled area is found. The scheduled area of the State is almost half of the total geography of the State and home to about one-thirds of the total population of the State.
It has been observed that the tribal population in scheduled area has been decreasing and non tribal population has been increasing with tribal migration to non scheduled areas of the State. There are also tribal groups like Jhodia who are not officially recognized as tribal of the State in spite of their repeated demand for tribal status.
The management and ownership of land in the sixth scheduled area is vested with the autonomous district council where as in 5th scheduled area land issues are still being under the management of revenue and forest department. The PESA Act 1996 section 4(m) iii empowers the community to protect land resources and habitations and section 4(d) recognizes Garm sabha to safeguard community resources and right to land. The SC and ST Prevention of Atrocities Act 1989 has provisions of punishment against land grabbers.
As per the Constitutional provision, the Governor of a State having scheduled area and Tribal Advisory Council have a major role in matter relating to governance, including land. Odisha has a 16-member Tribal Advisory Council headed by the Chief Minister and Minister of SC and ST Development department as deputy chairman.
The members belong to State Assembly representing different political parties. Article 164 says there shall be a Minister in charge of tribal welfare in States of Bihar, Madhya Pradesh and Odisha. As per Article 338A, there is National Commission for Scheduled Tribe (NCST) headed by a chairperson who is in the rank of a Union Cabinet Minister. The NCST has the power to review the implementation of all measures for scheduled tribes including land.
The famous Samta Judgment of 1997 by the Supreme Court of India also holds the high the spirit of the Constitution and imposes restriction on State in acquiring land of the tribals in the scheduled areas.
Odisha has provisions like The Orissa Scheduled Area Transfer of Immovable Property (by scheduled tribe regulation 1956. It protects the tribals from land alienation. Section 3(iii) of the regulation says a member of a scheduled tribe shall not transfer any land if the total extent of his land remaining after the transfer will be reduced to less than two acres in case of irrigated land or five acres in case of non-irrigated land.
The regulation also provides for penal action in respect of illegal transfer as well as unauthorized possession. It is reported that till 2011 out 35,000 illegal transfer cases involving land area of 32824.77 acres only 28,000 cases have been disposed of. The Orissa land Reforms Act 1960 provisions of section 22, 23 and 23(A) says there is a need of prior permission of the competent authority for transfer of land and there is also provision for restoration of land.
The Odisha Government land Settlement Act, 1962, provides for the settlement of land with SCs and STs to the extent of 70 per cent of the State land eligible for settlement. The Odisha Prevention of land Encroachment Act, 1972 provides for regularization of encroached land up to one standard acre with cultivators.
It is reported that since inception till December 2011 land to the extent of 13183.432 acres has been restored back in fever of 14,084 ST families. This shows the volume of illegal transfer of land in spite of law. This has been happing due to the corrupt revenue officials who are not following any law relating to tribal land.
They are also issuing fake tribe certificates to the non- tribals which has been a major issue in the State. Though late, the ST and Other Traditional Forest Dwellers Recognition of Forest Rights Act, 2006 has made provisions recognizing both individual and community right over forest land. It is unfortunate that the in spite of the Constitutional provisions, State laws and several bodies, the matter of land has never been taken seriously. Along with protection of tribal from land alienation, land distribution through recognizing tribal rights over land is equally important. It should be further linked to land development.
The scheduled areas should have survey and settlement and formal patta should be issued to the families in possession of private land since generations.
The community rights over common property resources recognizing traditional boundaries of the village should be recorded. The forest and revenue boundary dispute reconciliation and settlement should be solved. The State land revenue laws should be amended in line with PESA and FRA to empower Gram Sabha to deal with land rights.
The Government should also make provisions to save the interest of the tribals in non scheduled area. The advisory given by the Ministry of Rural Development and the Ministry of Tribal Affairs should be followed by the State in letter and spirit.
The available ceiling surplus land, bhodan land, waste land and forest land should be given to the tribals in the scheduled area.
The Government should take steps for land development of STs by using schemes like watershed development, MGNRGEA, NABARD and other such programmees for rural and tribal development. The status report on implementation of FRA revealed that 3, 28,008 individual forest right titles have been distributed out of which 1, 96,784 title holders are linked with housing, land development and livelihood schemes.
The data need to be monitored and verified by tribal organizations and others engaged in FRA implementation in the State to ensure transparency.
The National land Reform Policy, 2013 says that the State should have a land rights commission to review the land issues and the progress made in realization of land rights on an annual basis and report to the Assembly for discussion. The commission can also advise the State on all land rights, land reforms and associated policy issues.
(The writer is a rights activist, who can be reached at ojaabbsr@gmail.com)