Land Laws Governing Adivasis- How Do they Help and the Way Forward?

Prisha Mehta*

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Abstract

This article examines the injustice suffered by the indigenous people and the role that law plays in this. It looks at how effective the laws are in stopping injustices like land grabbing and ensuring the rights of indigenous people or Adivasis. The injustice and oppression faced by the Adivasi people in India is pivotal in knowing how to proceed towards improving the situation. Aboriginal land, naturally acquired by Adivasi people is under threat from constant commercial acquisition by capitalists and other powerful entities.

Keywords

Tribes, Laws, Indigenous Laws

Introduction

The way indigenous people are treated in India shows how something bleak can get bleaker. Indigenous people make 8.6% of India’s total population[1], a huge number oppressed by the government, by the capitalists, and by the ordinary citizens of this country[2]. There are approximately 705 ethnic groups in India, making the total estimated population of Adivasi people 104 Million. Indigenous people are faced with issues such as land grabbing, a practice of unfairly poaching indigenous land. Unfortunately, the innate reaction of adivasis whenever they hear the word development is trepidation instead of anticipation. The association of development with displacement is far too obvious to be ignored in this country.. In this article, I’m going to look at the laws that shape the lives of these Indians- often regarded as not.

Land Rights

There are several definitions of indigenous people given by the UN, but all of them essentially mean the original inhibitors of land or a state. Indigenous people or Adivasi people, as they are known in India, have specific laws directed towards them to ensure their welfare and justice. For years, aboriginal people have been seeking recognition of their culture, way of life, and their claim to ancestral lands, territories, and natural resources but their rights have often been abused throughout history. According to the UDHR, passed by the UN in 2007, Indigenous people are allowed to every fundamental right and are free from discrimination, per Article 2[3]. This law has been ratified by India, giving scheduled tribes and aboriginal people security under the Indian Constitution. This law makes it possible for Indigenous people to claim their rights under the Indian law, helping them fight back from injustices done to them through the road of law. Article 36[4] gives Adivasi people the right to ownership and control- which provides them with complete control of the land and natural resources they acquired at first, keeping in mind the sanctity, honour and history of the land. This law should stop land grabbing- but lacks strictness and urgency. Apart from this, there are numerous articles in the Indian Constitution to protect the rights of indigenous people and tribal lands- such as Article 244[5], Article 330[6], Article 334[7], Article 371[8], and Article 164 (1)[9]. Apart from these, the fifth and sixth Schedule looks after proper administration of the tribal lands.

Capitalism

Adivasis are often neglected though the case should be the exact opposite. In this country, development is somewhat associated with displacement of Adivasis. Whenever they hear the notion of development, there is no anticipation, just nervous trepidation of what is going to be stolen from them yet again. At some point, they’ll have nothing to give yet we’ll keep on stealing. It is widely observed that cases like the Sardar Sarovar Dam Case[10], the Singur Land case[11] which involved a petition from Kedar Nath against the State of West Bengal, and the Bir Basa Minerals Pvt. Ltd. Case[12] highlights just some of their anguish. For the Sardar Sarovar Dam Case, compensation has been awarded to some of the aboriginal people who were forced to relocate. But the lands they have resettled in are barren, devoid of any natural resources, and extremely tough to make use of.

In the Tata Motors Pvt. Ltd case[13], the court had ordered the company to return the land to its rightful owners. However, it did not consider the existing damage to the site. Along with trauma and the extensive litigation process that victims had to go through, the construction and installation of the plant rendered the land unusable and uncultivable.

Though partial victories are better than no victories at all. Indigenous communities Santhal and Bhumij in Jharkhand became a victim of land usurpation, with the government allocating almost 33 acres of land that is not theirs to give, to Bir Basa Minerals Pvt. Ltd. When they protested, swift retaliation was taken in the form of forged complaints and bogus charges against Surendranath Tudu, Pandu Sardar, Sonu Sardar, and Netramohan Sardar to effectively muzzle and gag the community’s efforts of retaliation. In a mocking twist of fate, the company that is stealing Adivasi land is named after a tribal freedom fighter himself, which makes one wonder if the person at the helm is acutely aware of this cold and stinging slap on the face of Adivasi rights.

How can the land laws be improved?

The author believes that the way forward should be the implementation of stricter, stringent laws in favour of the Adivasi people. There might be no way to right the previous wrongs done to them, but steps in the right direction should help prevent blatant land grabbing. They already live their lives in seclusion and face numerous injustices - the threat of their home and livelihood being taken away shouldn’t be one of them. Acknowledgement is a major step in that direction, which will eventually result in accountability. The major misappropriation of Adivasi land is being done by none other than those who have pledged to work for the welfare of the people they’re elected by. Making the process public, which will help make sure no one steals any more land from the indigenous people, will provide transparency which doesn’t excuse any discretion. Adivasi people should be given platforms to voice the injustices done to them, platforms that are free from any political meddling to ensure their voice is heard and to make sure no such grievous incidents occur again. This transparency will eventually highlight the loopholes in the law- which can be updated to make certain no one will be able to grab land from Adivasi people again.

[1] Indigenous World 2020: India, Iwgia, May. 11, 2020. [2] March 19 Friday et al., Privatisation push: Govt of India 'evading' responsibility towards marginalised women Counterview (2021), https://www.counterview.net/2021/03/privatisation-push-govt-of-india.html (last visited Mar 24, 2021). [3] United Nation Declaration on the Rights of Indigenous Peoples, 2007, Art. 2. [4] United Nation Declaration on the Rights of Indigenous Peoples, 2007, Art. 36. [5] Indian Constitution. Art. 244. [6] Indian Constitution. Art. 330. [7] Indian Constitution. Art. 334. [8] Indian Constitution. Art. 371. [9] Indian Constitution. Art. 164, cl 1. [10] Jitendra, As Sardar Sarovar dam's gates get shut, 192 villages fear submergence, DownToEarth, Aug.17, 2018, https://www.downtoearth.org.in/blog/governance/drowned-in-uncertainty-58116. [11] Kedar Nath Yadav v. State of West Bengal & ors., (2016) CIV. APPEAL 8438. [12] IWGIA, Under threat for resisting an illegal mine in India, Servindi, Nov. 21, 2019, https://www.servindi.org/actualidad-articles-english/20/11/2019/under-threat-resisting-illegal-mine-india. [13] Tata Motors Ltd vs Talathi Of Village Chikhali & Ors , (2011).

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[*] Prisha Mehta is an undergraduate student from Jindal Global Law School, India.

Preferred Citation – Prisha Mehta, “Land Laws Governing Adivasis- How Do they Help and the Way Forward?", Syin & Sern Law Review, Published on 26th May 2021.