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I am author of the books Political Internet(Routledge, 2017), Intimate Speakers ( Fingerprint! 2017), has finished the typescript of three books—first, on Internet and sexuality; second, on the negative impacts of social media; and third, a novel—and is presently working on a narrative non-fiction with the working title Lovescape: Why India is afraid of love.

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Friday, December 3, 2010

Tribal Rights

Tribal Rights

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lienation, a euphemistic term for grabbing the lands of the tribal peoples by non-tribals, is widespread in India. The Ministry of Rural Development of the Government of India in its 2007-2008 Annual Report states, “The State Governments have accepted the policy of prohibiting the transfer of land from tribals to nontribals and for restoration of alienated tribal lands to them. The States with large tribal population have since enacted laws for this purpose.”

The 2007-2008 Annual Report further states, “Reports received from various States, indicate that 5.06 lakh cases of tribal land alienation have been registered, covering 9.02 lakh acres of land, of which 2.25 lakh cases have been disposed off in favour of tribals covering a total area of 5.00 lakh acres. 1.99 lakh cases covering an area of 4.11 lakh acres have been rejected by the Courts on various grounds”.

However, there are serious causes of concerns. Not a single case out of 29,596 cases of alienation and restoration of tribal land has been ruled in favour of the tribals in Madhya Pradesh. In Orissa, an overwhelming 43,213 out of 104,644 cases were decided against the tribals. This was followed by Tripura where an overwhelming 20,043 cases out of the 29,112 cases were rejected.

Tribal people's rights being a part of the broad human rights phenomena has acquired significance in recent times. As human beings the people who live in tribal lands acquire a similar set of rights like others. Being citizens of the country they are entitled to a number of privileges as well. From time immemorial there have been violations of their fundamental rights. In contemporary society the state comes to their rescue to some extent. The increasing awareness of the concept of human rights under the aegis of the UNO, world media, NGOs etc. proves beneficial to the victims.

Human rights are those conditions which are inherent to nature and without which one can not live as a human being. These rights and fundamental freedoms allow one to develop fully and use one's human qualities, intelligence, talents and conscience to satisfy one's spiritual, physical, social and other needs. They are based on human kind's increasing demand for life in which the inherent dignity and worth of each human being will receive respect and protection.

Human rights constitute a variable category as is adequately demonstrated by the history of the last few centuries. The list of human rights has been modified and continues to be modified in changing historical circumstances. Thus rights may not be fundamental by nature. That which appears to be fundamental in a given historical era or civilization is not fundamental in other era or civilization. Since the time of Hobbes and Locke, liberal political theorists have made it their primary purpose to explore relationships between the individual and the State..lh9

It is not enough to think in terms of two level relationship, the individual at one level and the State at another nor is it enough if the nation is added. Considering the heterogeneity of mankind and of the population of virtually every existing State it is also necessary to think of ethnic communities and certain other kinds of groups, and to include them among the kinds of rights and duties bearing units whose inter relationships are to be explored.

Rights that belong to individuals may go the them either as human beings or as members of a group. The Universal Declaration of Human Rights enumerates rights of the first sort ; they go to, "everyone.... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

With regard to the legal rights of groups, ethnic communities are sometimes treated as political units within countries, both through territorial delimitations and through the use of separate electoral rolls. Ethnic communities in many countries are differently treated with respect to rights of property and residence; it is not only a question of territorial reservation for the indigenous but also a question of special measures designed to make it possible for the communities to preserve their distinctive identify. In case of less advanced groups that have suffered discrimination, it is now not uncommon to give them a right to expect special measures (affirmative action) designed to promote their quality, e.g. in the educational and economic realms.

Human rights are often held to be inter-related and mutually complementary. According to this view the 'first generation,' civil and political rights form the bedrock of 'second generation' economic, social and cultural rights, while collective and solidarity rights, such as the evolving indigenous rights constitute a 'third generation' of human rights. Further human rights are often said to be compatible with the rule of law and representative democracy. As per Stig Toft. Madsen's (State, society and Human rights in South Asia) hypothesis, "some instances of human rights do not form an integrated whole but are rights in intergenerational conflicts."

The conflict according to Madsen is between the presently dominant 'first generation', civil and political rights professed and guaranteed by a liberal State accepting the ideals of democracy and rule of law and the rights of legal and political, cultural and economic autonomy enjoyed by tribal groups. The outcomes of the conflict between the two incongrous orders of rights has been a working understanding or compromise. While this compromise has guaranteed the survival of tribal cultures, it has also meant that the tribal in question have been denied many of the rights enjoyed by others. So the question is how the tribal autonomy or collective right to autonomy including legal autonomy have circumscribed first generation rights, democracy and the rule of law.

The recent international thinking on indigenous rights is exemplified by the draft of Universal Declaration on the rights of indigenous peoples. According to this draft, "indigenous people have the right to participate fully in the political, economic, social and cultural life of the state while maintaining their distinct political, economic social and cultural characteristics".

The Rio de Janerio Declaration on Environment and Development, adopted on 14th June, 1992 by the United Nations conference proclaims that states should recognize and duly support indigenous peoples' identity, culture and interest and enable their participation in the achievement of sustainable development.

Indigenous people and their communities have an historical relationship with their lands and are generally descendants of the original inhabitants of such lands. They have developed over many generations a holistic traditional knowledge of their lands, natural resources and environment. According to the Rio Declaration, they shall enjoy the full measures of human rights and fundamental freedoms without hindrance or discrimination. Their ability to participate fully in sustainable development practices on their lands have tended to be limited as a result of factors of an economic, social and historical nature.

The International Labour Organisation also in its convention No. 169, year 1989, on "Indigenous and Tribal Peoples", suggested that governments must consult with indigenous and tribal peoples within their countries on development projects and other activities effecting them. It provided for respect for their land rights. This right include protection of their lands and right to refuse displacement form their lands except in exceptional circumstances and against compensation.

Tribal Rights in India :-

At the time of independence the Indian Government inherited a large tribal population. The Govt. of India has made a number of plans to protect the rights of the tribals and to integrate them into national developmental planning. The Minority Commission, the National Human Rights Commission etc., are there to prevent atrocities against them and to bring their plight to national lime light. Above all, in the Constitution of India the rights of the tribals were explicitly recognized and clauses were included to permit positive discrimination in their favour.

But the evaluation reports have pointed out that these special provisions have so far failed to bring about any positive gains to the tribal population. As per the Planning Commission Document 1973, "Reviewing the policies and programmes of the proceeding Five Year Plans we are of the opinion that the efforts so far made for social and economic development of the scheduled tribes have not brought an appreciable change in their condition." There can be a number of explanations for the failure of the governmental programmes for tribal development. However, the oppression and appropriation of the tribal people by the economically and politically more powerful groups have led to tribal movements or tribal unrest. For instance, the Santal rebellion, the revolt by Birsa Bhagwan, the Praja Mandal Movement, the Tana Bhagat Movement, the Naxalbari Movement, the Jharkhand Movement etc., are all attempts by the tribal people to shake off the yoke of exploitation.

In recent times the traditional territories of the tribal people have been subjected to incursions. Their lands are taken away in the name of economic advancement of the country. But in return they receive landlessness, impoverishment and long term degradation of the environment on which they totally depend. For almost two centuries now, tribal communities, like many other non-tribal peasants and forest dwellers, have been witness to the collapse of their multiple relationship with the land, the forest and among themselves. The basis of their cultural ethos, their systems of meaning have faced the collective unslaught of outsider exploiters, the disruptive impact of proselytizing Christianity, and of foreign models of economic betterment which have been conceived without their participation and implemented without their consent. Laws like Land Acquisition Act and the Indian Forest Act legitimise the continuing decline in access and control over forest resources that are the basis of their subsistence economy.

Initiatives from the Bharat-Jan-Andolan, Shosit Jan Andolan, the Indian Council of Indigenous and Tribal Peoples, Adivasi Sangamams in South India, PUCL, PUDR etc., are indicative of these modest attempts to raise - fundamental issues and define an alternative political agenda that frontally challenges the institutions and structures of our bourgeois democracy.

State Policy and the Tribals :-

The edifice of colonial forestry was inherited by the Government of Independent India and immediately put to work in the service of the State's primary goals of repaid industrialization. The National Forest Policy 1952 underlies continuity of the colonial policy. It reinforced the claim of the State to exclusive control over forest protection and production. Significantly this policy identifies shifting cultivation as one of the main threats to State forestry. But in turn this affects the basic rights of the tribals to be dependent on forest resources. Hence, many tribal groups mounted a sustained challenge to the continuing denial of their rights. The Khanwar tribes of Madhya Pradesh protested in 1957 against revenue collection and called upon the people to defy forest laws which violated their customary rights. Their slogan, "Jangal Zamin Azad Hai", (forest and land are free gifts of nature) succinctly expressed the opposition to external control and commercial use. Another concept of conflict is the 'Contractor System' which is the modus operandi of forest working in India. The State's unwillingness to replace the contractor system has given rise to militant movements. Naxalite movement is one of the results of this type of exploitation.

Process of Depeasantization and Land Alienation :-

An overwhelming majority of the tribals are agriculturists. They owned the land in their own rights. Their entire life process was centered and built upon two major means of production i.e., the forest and the land. To understand the dynamics of land problem in the totality, one needs an understanding of the logic of the underlying forces that govern its ownership pattern. The specific economic form in which unpaid surplus labour is pumped out of the direct producers, determines the relation of the rulers and the ruled. Hence land problem of a particular area has to be understood from its historical perspective. Historical evidences are ample which proves the conception of depeasantization as a net result of the uneven structural changes that have taken place from time to time due to the commoditization of the tribal economy in which land plays a critical and predominant role.

Land Alienation as a Concept :-

As per Marx, in a Capitalist society an alienated man lives in an alienated nature and he performs estranged labour and the product of his labour becomes alien to him. Alienation as a concept is used by many social scientists in India, merely as a sociological phenomenon. Since land alienation is the crux of the depeasantization of the tribals, the concept assumes utmost importance in the analysis of tribal rights as a part of human rights discourse. The problem of land alienation is a much deeply connected phenomenon with full of contradictions related to the existing socio-economic order. The separation of land from the tribal communities can be understood in a more scientific way with the assistance of the theoretical formulations of the concept of alienation.

Alienation was defined by Hegel and was used by Marx to describe and criticise a social condition in which man far from being the active initiation of the social world seemed more a passive object of determinate external processes. Marx says, alienation is fundamentally a particular relation of property, involving involuntary surrender to autagonistic 'other'. Alienation is inherent in exploitative relations of production and its nature varies with that of exploitation. Hence alienation's manifestations also differs among societies based on slavery, serfdom and capitalism etc. Thus the concept of alienation may be interpreted to understand a specific problem of the tribals where land becomes the primordial source of exploitation and results in the creation of a society where exploitative production relations exit.

Violation of Land Rights :-

The question of land is not just result of the existing situation but its origin may be traced to the periods of deprivation of tribal lands or to periods of the withdrawal of their rights to exploit forest. Gradually, due to various structural changes within and outside the tribal systems, the more advanced groups forced the tribals either to retreat to the nearest jungles or to become landless labourers. Though land is the only source of their livelihood, as their other assets being extremely meagre, tribals were severally deprived. Basically, moneylenders, traders, the feudal lords, or the rich peasants exploit the tribals most. It is an established fact that there is a large scale alienation of lands which belong to the tribes and grabbers invariably in all cases are the non-tribes. This phenomenon has further been ruined by the emergence of new forces of production. Commenting on this, the National Commission on Backward-Areas Development (1980) says, "In a number of areas new industrial and mining complexes, many major irrigation projects were located in the tribal areas resulting in the submergence of extensive lands belonging to the tribals".

Also in the operations of denudation of forest on a massive scale tribal labour had been used to a great extent to clear off the forest area which was a method of the land lords to alienate the tribals from the forests. This further widened the gap between the tribal landless and landed gentry of the non-tribal communities.

Commenting on the problem of land alienation in tribal areas, the Committee on Plan Projects, Planning Commission, presented a report on the Tribal Development Programmes in 1969. The committee noticed that tribal lands in many areas passed into the hands of non-tribals, the legal prohibitions against such transfers notwithstanding. Sample studies in Andhra Pradesh, Orissa and some other States have shown that transfers have taken place on large scale without the permission of the collector or other competent authorities as required by law. The loopholes were exploited by the money lenders and others and they continue to circumvent the legal provisions by entering into 'benami' or other clandestine transactions with the native tribals. The impotency of legislation to arrest this growing menace to the economic advancement of the tribal in such a situation is thus obvious.

Forms of Land Alienation :-

The first and foremost is the manipulation of land records. The unsatisfactory state of land records contributed a lot to the problem of land alienation. The tribals were never legally recognized as owners of the lands which they cultivated.

The second form of land alienation is reported to have taken place due to 'benami' transfers. The report of the study team of the Union Home Ministry (May 1975) pointed out that large scale transfers of ownership of the Adivasis' lands are being allowed to go out of hands through illegal and benami transactions, collusive civil proceedings etc., in which land remains to be in the names of the original owners who are reduced to the level of share croppers.

Another form of land alienation is related to the leasing or mortgaging of the land. To raise loans for various needs the tribals have to give their land as mortgage to the local moneylenders or to the rich farmers.

Encroachment is another form of dispossessing the tribals of their lands and this is done by the new entrants in all the places where there were no proper land records. Bribing the local Patwari for manipulating the date of settlement of land disputes, ante-dating etc., are resorted to claim the tribal lands.

Concubinage or marital alliance is another form to circumvent the law and grab tribal lands at no cost at all.

Fictitious adoption of the non-tribals by the tribal families is also another method to snatch the lands of the tribals.

Also the slackness in the implementation of the restrictive provisions encourages the non-tribals to occupy the tribal lands. Lands alienation which takes place in various ways has assumed alarming proportion threatening the right to life of the tribal population. Though the problem lies elsewhere, it is being unfortunately always interpreted as the handiwork of certain individuals like the moneylender, traders, land lords, etc, without understanding the class connection of these individuals. The unsystematic land records of the pre-colonial and colonial periods was followed by the present State. There was collection of 'taxes - (a strange phenomenon for the natives and it was the beginning process of alienation) in the tribal areas.

In the name of protecting the interest of the tribals stringent laws were enacted by the government but the non-tribals found the loopholes to their advantage. This double edged nature of State policy in one of the facets of the existing contradictions in the Indian Tribal Society. The process of land alienation is not an accidental one, but it has arisen because of the concerted efforts of the antagonistic class interest that are operating in the tribal areas. This is not just migration of the non-tribals into tribal areas rather there is a history behind this migration and the State has supported the migrant non-tribals to the settle down in the tribal lands.

However, being the natural owners of forests and its adjoining lands the tribals are being deprived of their rights to own them. They have been relegated from their earlier 'self-reliant' status to a 'dependent' one. Coupled with the exploitation by the non-tribals, the State legislations also proved detrimental to their interests. Therefore to understand the root causes of the land alienation process of the tribal communities its relationship with the changes in the socio-economic structures have to be understood properly.

AITPN reports about land alienation of the tribals in India.

Andhra Pradesh:

Despite having stringent provisions under the Andhra Pradesh Schedule Areas Land Transfer Regulation of 1959 to protect the lands of the tribals in the Scheduled Areas, the tribals face alienation of their lands.

The rate of alienation of tribal land is alarming in Andhra Pradesh. Nontribals presently hold as much as 48 per cent of the land in Scheduled Areas of the state. Since the Andhra Pradesh Scheduled Areas Land Transfer Regulation came into effect in 1959, 72,001 cases of land alienation have been filed involving 3,21,685 acres of land in the state. The tribals are losing their legal fight to recover their lands. Of the 72,001 cases registered under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 70,183 cases were disposed of and 33,319 cases (47.47 per cent) were decided against tribals involving 1,62,989 acres of land. As of January 2007, about 300 cases were pending in Andhra Pradesh High Court involving about 2,500 acres of land under the Andhra Pradesh Scheduled Areas Land Transfer Regulation.

Assam:

The All Assam Tribal Sangha (AATS) and other tribal organisations of the State have alleged widespread violation of land transfer rules and regulations in the existing 9 tribal belts and 28 blocks in the State. Cases of transferring of land to non-tribals or non-bonafide people were on the rise..

Non-tribal and non-bonafide people had bought plots of land individually or in the name of private school, societies, trust etc and they later used the plots for commercial purpose..

The tribal peoples and their organization blame the State Government and its agencies, most particularly the Circle Revenue offices for massive alienation of tribal lands to non-tribals and persons of doubtful nationality in complete violation of the Assam Land Revenue Regulation Act 1886.

In May 2007, it was reported that a section of politicians and the local Revenue officials had allotted 22.5 bighas of fertile agricultural land under tribal belts and blocks in Parbotjhora subdivision of Bodo Territorial Council to as many as 34 non-tribal Muslim families. The Assistant Settlement Officer of Bagribari revenue circle had sent a proposal to the Deputy Commissioner of Dubri district to the effect that 22.5 bighas of land should be allotted to these families. Lands in the tribal belts had already been allotted for a burial ground as well as to 13 families of non-tribal religious minorities in Bagaribari revenue circle..

Jharkhand:

In Jharkhand, cases of alienation of tribal land have risen despite two laws - Chotanagpur Tenancy Act and Santhal Parangan Tenancy Act to prevent sale of t

The Case of Land Alienation in Kerala

Land alienation continues to be a major issue among tribal communities, according to studies by the State Planning Board.

The ‘Human development report of tribal communities in Kerala' prepared by the Board, under a project sponsored by the United Nations Development Programme (UNDP) and the Planning Commission, says that their land is lost to settlers and encroachers. In the process, they lose their livelihoods. “The excessive dependence of tribal communities on land for their income and employment makes land alienation and landlessness a major livelihood concern for tribal people.” (Though a law was enacted in 1975 to restore alienated land to tribal people, it was never enforced effectively. Subsequently, its clauses were diluted through fresh legislation).

The average size of land holding among traditionally land-owning communities such as Kurichya, Kuruma, Malayarayan and Muthuvan are much above what other communities own. Higher landholding size is seen to be associated with better levels of development.

The study reports that noticeable differences exist between the forward and backward communities in their livelihood options. The majority of the tribal communities depend on the primary sector for their livelihood. The spread in main sources of employment was higher among forward communities. The backward tribes such as Irula, Kattu Naika, Paniya, Urali and Adiya depend almost entirely on agriculture, agriculture labour and non-agriculture labour. Nearly 15 per cent of tribal people reported the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) as their main source of employment.

“The fact that almost one person out of every nine tribal people have indicated MGNREGS as the main source of employment raises concern about the sustainability of the traditional livelihood options of these people. Among all tribal people who reported MGNREGS as a main source of employment, the three forward tribal communities account for close to 60 per cent. This is indicative of the fact that income and employment generation schemes introduced by the government are more popular and effective mainly among the forward tribes.”

The report says that only 38 per cent of tribal households reported any form of debt incurred. Backward communities incur debt almost entirely for non-productive purposes — mostly to meet day-to-day expenses. The forward communities have incurred debt mainly for agricultural purposes. The level of indebtedness was more among them than the backward communities.

A disturbingly high percentage of the tribal population reported borrowings as the main source of meeting hospital expenditure. They cited financial incapability as the major hindrance in using healthcare facilities. This was so when treatment was free in government hospitals and cultural aspects not being in the way of accessing healthcare. The problem was their inability to meet the incidental expenses such as travel, bribes and boarding and lodging of bystanders associated with treatment. The situation takes a huge toll on the health status of backward communities because of their lower creditworthiness and lack of assets to pledge, the study says.

It further says that substance abuse, unhygienic living environment and malnourishment are major factors that contribute to poor health indicator for tribal communities. The ignorance about the severity of many medical conditions and the problems of affordability to modern medical facilities expose the tribal communities to health risks and eventually lead them into high morbidity and mortality situations.

The tribal communities continued to be educationally backward with visible gender differences. The major factors hindering literacy include inaccessibility, language and cultural barriers, lack of tribal sensitive functionaries, lack of libraries and reading materials and alcoholism. The drop-out rates of tribal students were high at the high school and higher secondary school levels.

Biju PR,Assistant Professor in Poltical Science,Govt Brennen College,Thalassery

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