People's Democracy

Tribal Rights and the ‘Land Acquisition,

Rehabilitation and Resettlement Bill 2011’

Brinda Karat

ADIVASI communities will be adversely affected by the present Land Acquisition, Rehabilitation and Resettlement Bill 2011. This Bill should be opposed in its present form. The Bill in its preface states that its provisions will make “land losers and other affected families, partners in development, leading to an improvement in their post-acquisition social and economic status” -- tall claims to conceal the real anti-tribal nature of the Bill. An analysis of the Bill shows that it will be an instrument to further land alienation and land grab from Adivasi communities, a trend that has got greater impetus in the years of neo-liberalism. The processes of loot and plunder of natural resources including mineral wealth, much of which lies beneath land in the Fifth Schedule areas, will not be curbed or weakened in any way by this Bill. On the contrary Adivasi communities will now be legally excluded from decision making in this area. Adivasi rights in the sphere of livelihood will not be protected.

These were the conclusions reached in the discussions on the Bill in the recently held meeting of the central committee of the Adivasi Adhikar Rashtriya Manch. The AARM in a resolution adopted at the meeting finalised its position on various clauses of the Bill pertaining to Adivasis within the general framework towards the Bill adopted by the All India Kisan Sabha. It called on its units to organise Adivasi communities to demand fundamental changes in the present draft to replace the draconian Land Acquisition Act of 1894.

SEPARATE SECTION ON

TRIBAL LAND & RIGHTS

One of the problems with the Bill is that it does not look at the issues connected with acquisition of tribal land in a comprehensive manner. In the case of tribal communities, there are very specific constitutional provisions and laws which govern land relations in tribal areas like the Fifth and Sixth Schedule, Panchayats  Extension to Scheduled Areas Act (PESAA), the various laws like Forest Rights Act, Wild Life Protection Act and state laws or Government Orders concerning Adivasi land. Over the years, many of these rights have been ignored, weakened or violated. A Bill which claims to make land losers and other affected as partners in development should then logically include provisions not only to strengthen Adivasi rights but also to reverse the erosions which have taken place both in practice and in policy. But in this Bill there are only stray references to some of these provisions like rights under the Forest Rights Act. In the main, tribals are clubbed with others. This is a dangerous ploy to conceal the deliberate omissions in the Bill as far as tribal rights are concerned. Thus the Bill does not contain a single word on such critical issues such as land use in tribal areas; protection of livelihood; issues of use of community property; of access to community resources which require specific protections; the historical problems created due to non-distribution of pattas to tribals in Fifth Schedule and other areas on non-forest land traditionally under tribal occupation, the position of tribals in non-Scheduled areas etc. These issues must be addressed by inclusion of a separate chapter on land acquisition where the land belongs to tribals or where the location is in a tribal area, whether in the Scheduled area or not. It is essential at all levels of the Bill to treat tribal land and livelihoods on a separate footing just as is done in the Constitution of India.

SCRAP THE BILL’S

FOURTH SCHEDULE

The Bill is supposed to replace the draconian 1894 Land Acquisition Act. However, for tribals along with this draconian Act there are other legislations which have also been used in the past to push through coercive land acquisition in tribal areas. The Bill has a separate Fourth Schedule which excludes as many as 16 Acts from the purview of the Bill. These include many of the Acts which have been used against tribals such as the Land Acquisition Mines Act of 1885; the Coal Bearing Areas Acquisition Act 1957, The Petroleum and Minerals Pipeline (acquisition of Right of user in Land) Act 1962 apart from the Railways Act, National Highways Act etc. The declared purpose of the Bill to bring a “humane” legislation is thus shown to be utterly fraudulent as the same draconian Acts will still apply to tribals. It also means that the benefits of the relief and rehabilitation (RR) provisions in the Bill will not apply when these Acts are used to acquire land. The government can also add more such legislations in the Fourth Schedule if it so desires. This is a Schedule which is detrimental to tribal interests in particular and must be scrapped.

TRIBAL LAND ACQUISITION

WITHOUT CONSENT

The fatal blow to Adivasi rights in the Bill is on the issue of prior informed consent. The Bill legalises direct acquisition by the government in Fifth Schedule and Sixth Schedule areas without the consent of tribals. In the Bill if the land is being acquired for private companies or for PPP projects, then 80 per cent of those affected have to give their consent. But as far as tribals are concerned since tribal land is ostensibly to be acquired only by the government for government use, no such consent is required. In fact a close reading of the Bill reveals that the wording is such that it will not only permit entry of private companies in tribal areas but will also gift the company a hurdle free access because there is no need to get the consent of 80 per cent of the affected people.

Chapter I, Clause 2 in the Bill has a proviso which states “No land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of the law relating to land transfer, prevailing in such Scheduled areas.” This appears to be a protection against acquisition by private companies or transfer of land acquired by government to private companies in the Scheduled areas. But the real meaning is something else.

(1) In most states, governments acquire the land and lease the land to private companies like mining companies. They do not transfer it. The Bill does not refer to government leases at all. (2) If government acquires the land, it need not get consent of the project affected people. Nowhere in the Bill is there any reference to mandatory consent of tribals for acquisition of their land. (3) In several states the “prevailing laws” (through the Rules for implementation of PESAA) are ambiguous regarding the rights of tribals in Fifth Schedule areas or under PESAA. Under PESAA there is a specific provision which gives jurisdiction of development projects to the Gram Sabha. In March this year the Andhra Pradesh government has adopted Rules for the implementation of PESAA. Under these Rules, the issues concerning land acquisition and the resettlement and rehabilitation package have been taken out of the jurisdiction of the Gram Sabha and instead transferred to the jurisdiction of the Panchayat Samity. The Rules have also devalued the role of tribals in the Gram Sabha by specifically stating that the vice-president and secretary of the Gram Sabha must belong to the Scheduled Tribes. In other words, the president of the Gram Sabha can be a non-tribal. Taken together both these provisions in the Rules are highly objectionable and erode tribal rights. But the present central Bill will legalise this under the Clause in the Bill cited above. Take another example of Jharkhand. There are two laws in operation, the CNT Act (Chhotanagpur Tenancy Act) and the SPTA Act (Santhal Parganas Tenancy Act). These Acts mandate that no tribal land can be transferred to non-tribals. But there is no protection against land acquisition by the government or subsequent leasing of that land to private parties by government in these laws. Since there are other states also where the rights of tribals have already been diluted in the laws, Clause 2 of the Bill is highly deceptive and will not give protection to tribals.

In Chapter IV under the heading Notification and Acquisition, Clause11 (2) states that no notice for acquisition will be made unless the Gram Sabha is consulted and in the case of Sixth Schedule, the Autonomous Council. Thus consent is replaced by consultation. This again is dilution of tribal rights. The word consulted must be replaced with prior informed consent.

Thus in these two clauses as well as a later clause on rehabilitation and resettlement, the government allows forcible acquisition of land in Fifth and Sixth Schedule areas belonging to tribals without their consent and retains the right to lease the land to private companies.

A related issue is that of the deliberate omission of any mention of land use in the entire Bill. For Adivasis in particular this is an omission which will have a very negative impact. The so-called green bench of the Supreme Court was informed that between 1980 and 2006, a total of 11.33 lakh hectares of forest land, including in Fifth Schedule areas has been “diverted” for non-forestry purposes. Of this, as much as 5.7 lakh hectares was “diverted” between 2001 and 2006 — clearly an unstated joint project of the NDA and UPA governments. Since then even more land has been diverted. The term “diversion” is of course a euphemism for the legal sanction given for land grab by corporate, mining companies, power companies and also for government projects like building dams, roads etc. by arbitrarily changing land use policies in tribal areas. Under PESAA the type of project and land use is under the jurisdiction of the Gram Sabha. The present Bill has no section about land use. This is another example which in effect nullifies the jurisdiction of the Gram Sabha in PESAA areas.

ACQUISITION

FOR MINING

As far as land acquisition for purposes of mining, including mineral extraction, is concerned the present draft is silent on it which means that the present practices will continue. In 1997 the landmark judgement of the Supreme Court known as the Samatha judgement specifically prohibited transfer of land in Scheduled Area by way of lease to non-tribals, corporation aggregates, etc; Renewal of lease is defined as fresh grant of lease and therefore, prohibited. It also suggested that cooperatives run by tribals could be given the mining leases. However, the government has ignored this judgement. The present LARR Bill provides an opportunity to the government to establish the principle of tribal ownership in the law itself. In cases where the government wants to develop mining activities, the government must first get full tribal consent. Secondly, if tribals themselves can form the cooperatives or a company for the purpose, preference must be given to them. Thirdly, in such cases where this is not the preferred choice and where there is consent, the tribal community will negotiate the terms, with either free equity in the government company of at least fifty per cent (the earlier government Bill had proposed only 26 per cent free equity) or at least 50 per cent share of the profits to the tribals. This must be included in the LARR Bill.

TRIBAL LAND OUTSIDE

FOREST AREAS

A related issue is that in many non-forest areas in the Fifth Schedule, tribals do not have proper ownership papers and titles for the land they have occupied for generations. The Forest Rights Act grants pattas to tribals living in forests, but not to tribals who face the same problem in non-forest areas. Thus acquisition of land occupied by tribals must be assumed to be land owned by tribals. If this is not done, then there will be en masse displacement of tribals without any protection.

TRIBAL LAND OUTSIDE

SCHEDULED AREAS

As far as rights of tribals who live outside Scheduled areas and in non Scheduled states, there is no special protection afforded to them under the present Bill. It is essential to treat land owned or occupied by tribals on the same footing as in the Scheduled areas in all those areas where tribals constitute a significant percentage of the population to be calculated at the block, not district level. At present there are no laws protecting their land. In such areas, 80 per cent prior informed consent of project affected tribals and resolutions of consent from the affected Gram Sabhas must be a pre-condition.

PUBLIC

PURPOSE

As far as land in Scheduled areas is concerned, government alone has the right to acquire land for “public purpose.” It is therefore crucial to ensure that the “public purpose” clause is actually for public purpose. In several states like Andhra Pradesh, Odisha, Jharkhand, Madhya Pradesh, Chhattisgarh, Maharashtra, Adivasi communities are in resistance struggles against arbitrary land takeovers by mining companies supported by governments, or against large displacements due to projects like big irrigation and power projects in Fifth Schedule areas. There are cases, as for instance in Jharkhand, where even after fifty years the earlier displaced tribal families and others in the Damodar Valley project or the coal mining areas are yet to be resettled and compensated. In other cases, tribals are victims of multiple displacements. In almost all these cases whereas the land acquisitions are in the name of public purpose, the definition of public clearly excludes Adivasis who appear to be the non-public as far as the benefits of these projects, for which they lose their land, are concerned. The present Bill has an extremely broad definition of what constitutes public purpose which will be against tribal interests. For example the definition of infrastructure in the Bill in Clause 3 (o) sub section (iii) includes mining activities, tourism, and in (iv) irrigation projects. Irrigation project in tribal areas could mean construction of big dams and submergence of tribal villages. Thus, the Polavaram project in AP, which would displace lakhs of tribals, would be included as infrastructure under this Bill. There is another draconian sub section (v) under which any other project or public facility may be notified by central government as public purpose. So, as and when the government decides, any project can be brought under this clause further broadening the definition of public purpose.

In several states tribals own valuable land around developing cities like Mumbai, Ranchi, Bhubaneswar, Vishakhapatnam etc. In the name of “planned development” government is acquiring the land and then handing it over to real estate companies and developers. The Bill includes “planned development” in urban and village areas under the clause of “public purpose.” This will accelerate takeover of tribal land.

There has to be a separate section for definition of public purpose for land acquisition in Scheduled areas. In tribal areas public purpose has to be limited to land acquisition for purposes like village roads, small irrigation projects, railways, government hospitals, government schools or educational institutions, provision of land for project affected people, housing for poor and landless. In such cases government may acquire land and the full compensation as well as rehabilitation and resettlement measures must apply.

UNNECESSARY

HURDLES

In the Section defining “project affected people” there are two categories namely, project affected families and interested persons. Tribals who have lost land, livelihood or rights under the Forest Rights Act are included in both categories. However, there are conditions imposed such as proof that they are primarily dependent on the livelihood being lost due to acquisition and that they have been there for three years. The experience of the implementation of the Forest Rights Act shows that any qualifications such as in the use of the word “primarily” is very problematic and acts as a barrier to access rights. For example how would a tribal who has to undertake multiple activities to survive be able to point out that she was primarily dependent for survival on gathering and sale of minor forest produce? These conditions and qualifications must be removed as they place unnecessary hurdles to access the rights under the Bill.

COMPENSATION

The compensation offered in the Bill in Schedule 1 is diluted even from the earlier proposal. Earlier it was three times the market value. Now it is reduced to two times the market value. Along with this, a solatium of 100 per cent of the market value is also included. But the market value is calculated as the average price shown in registered sale deeds which, as is well known, is usually shown as a much lower price than actual sale price to avoid taxes. For tribal land, market value is even more arbitrarily decided since there is in fact no developed market for tribal land as land sales to non-tribals are prohibited. In such cases under Sec 26:3 (a) of the Bill, the government has the sole right to decide the price on the basis of sale price of similar land in adjacent area. Since the government is itself the acquiring authority it is in government interest to keep the price lower. Here there is a direct conflict of interest. Therefore to determine market value in such areas a special provision to involve the Gram Sabha and affected families for an agreed compensation amount is essential.

Secondly, under Sec 69 the compensation is fixed and then it is to be divided between “interested persons.” This is not fair to any of the affected persons. Apart from the land loser, the loss suffered by all affected families/ interested persons must be calculated separately and the compensation amount given.

For tribals, the usage of common property is a critical issue. Common property is used by tribals for a variety of reasons including for jhum cultivation in some areas. Therefore acquisition of land for a project which includes common property traditionally used by tribals must be included in compensation assessments, which is not done in the present Bill.

As Kisan Sabha has suggested, compensation amount should be not less than six times the market value, including solatium in rural areas. Further, it must apply to all cases of land acquisition of tribal land. State governments must have the right to enhance the compensation as well as the Rehabilitation and Resettlement entitlements according to the specific situation in the state.

REHABILITATION

AND RESETTLEMENT

This section applies to those projects which lead to displacement. There is a separate provision for R and R for STs and SCs under Schedule 2.

In case of land lost by STs for any project, equivalent land or 2.5 acres will be given whichever is lower. This is in violation of the FRA which recognises up to four hectares as the amount of land for which a land patta may be given in forests. Therefore, nothing lower than four hectares can be accepted. As far as tribal land is concerned there must be an equivalent amount of land given as has been acquired. Another totally unfair provision is that the value of the land given will be calculated and deducted from the compensation to be given. There is no guarantee what type of land will be given in exchange for the land lost. Once again the actual value of the land given in exchange can easily be inflated since as has been stated earlier the calculation of market value of tribal land cannot be the same as that adopted for non-tribal land.  Therefore the land for land policy must be in addition to the compensation to be paid and not in lieu of it. In addition, all landless tribals who are project affected must be given land.

Under the FRA and the amended Wild Life Protection Act, displacement can take place only after the entire R and R package is in place. The present Bill does not ensure this. It has highly watered down provisions and does not mandate either consent of Project Affected Persons to the R&R package or their ratification that the R&R is complete prior to displacement. It merely exhorts the Collector to ensure this. This must be amended in the Bill.

According to the Bill one job per affected family in projects which create jobs is to be given or Rs 2000 per month for 20 years indexed to the Consumer Price Index for Agricultural Workers. This should not be less than the agricultural minimum wage of two adults in both cases. The one time grant to displaced ST and SC families should be increased from Rs 50,000 proposed to Rs 1 lakh.

Under Clause 11 of Schedule 2 there is mention of “involuntary displacement.” This is not defined anywhere in the Bill. Yet some of the R&R provisions such as a development plan are applicable only where there is “involuntary displacement.” In other words the law foresees a situation where government is permitted to acquire tribal land without consent thus leading to involuntary displacement. The point is that there can be no involuntary displacement on any grounds. If tribals do not give their consent, the project cannot go ahead. Therefore the issue of involuntary displacement has to be clarified. The provisions of R&R must apply to all cases of displacement regardless of whether it is “voluntary” or “involuntary” displacement.

If STs are resettled in another district then the Bill provides for reservation benefits enjoyed as well as protections under the Fifth and Sixth Schedules will be extended to them wherever they are resettled regardless of whether the areas of resettlement are Scheduled or not.

There are some other sections about provision of infrastructural facilities etc. in resettled areas, cremation grounds, community sites etc. but everything gets nullified by a line under the Schedule II and III related to R&R which says “In case any element of R&R package is not provided, the same should be indicated as NIL under column 4 and reasons therefore to be given.” In earlier projects rehabilitation conditions have been totally violated. Here the government is shameless enough to bring such a provision in the law itself. This shows that the R&R Schedules are not mandatory nor are there any penalties for non-implementation. This is an objectionable loophole which subverts the very concept of R&R which must be removed.

RETURN