The Flaw in the Law

Ram Guha, the star historian of modern India, in an analysis of the predicament of central Indian adivasis in the post-independence era (Adivasis, Naxalites and Indian Democracy, Economic and Political Weekly Vol 42 No 32) has, lacking as he does the insights of an activist, failed to detail the unjust legal framework that has made possible the adivasi's continued marginalization and immiserisation in the modern era. Without a critical review of these restrictive legal statutes that were introduced by the British and continued by the independent Indian state and their repeal or substantial amendment none of the remedies suggested by Guha in his superficial article can ever be implemented. Without going into a detailed discussion of these legal statutes I would like to set out their broad outlines so as to complement Guha’s analysis.

The first of these is the Indian Forest Act. The British relied on a dubious legal principle called “res nullius” which means that any property which does not have a documented legal owner can be assumed to be legally unburdened and appropriated vast tracts of forest land in this country in the areas in which they ruled directly and handed them over to the Forest Department they created for the purpose. As the adivasis had a communitarian oral culture there was little conception of private property in land among them and absolutely no documentation. Thus in one stroke the British dispossessed lakhs of adivasis in the central Indian region of their ancestral lands. This was from the point of view of the adivasis an even worse development as compared to the zamindari system that the British imposed on the peasants in general as it made them into criminals and bonded labourers of the Forest Department. Even though The Indian Forest Act does have some principles of natural justice embedded in it in the form of a procedure for objections and appeals these were all arcane to the adivasis and so they were deprived of the so called liberal democratic “rule of law”. Unfortunately the Indian government after independence continued with this highly unjust statute and brought large tracts of forest areas in the princely states that acceded to it under its purview and once again adivasis living on forest lands were dispossessed and denied the benefits of the “rule of law”. Thus while on paper the Zamindari system was abolished after independence the zamindari of the Forest Department over the forest areas and the adivasis was extended and today it remains the largest land holder in the country. Without a repeal of this act and its replacement with a community forestry statute giving a central role to the adivasis there is no hope of any justice for the latter.

The second nefarious statute introduced by the British was the Land Acquisition Act. Once again the British relied on another dubious legal principle called “eminent domain” which means that the state has the first right on any land that it wishes to use for a “public purpose” and can forcibly acquire it from a private person if it so desires. The public purpose has not been defined and it has been left to the state to decide what it is. Once again even though there are provisions in this law for objections and appeals they are so arcane that it is impossible for adivasis to go to the courts and ensure their rights under them. Moreover the provisions for compensation for the acquired land are fundamentally flawed. The Indian government continued with this act too after independence and used it indiscriminately to acquire land for development projects either without any compensation at all or for a song and dispossess the adivasis.

These two Acts were in fact presciently introduced by the British because without them industrial development in Britain for which natural resources had to be extracted from India would not have been possible. So also industrial development in post-independence India required heavy extraction of natural resources and consequently the independent Indian state thought it prudent to continue with these anti-adivasi laws.

The British were wily rulers, however, and so when confronted with massive adivasi militancy in opposition to the deleterious effects these laws had on their livelihoods, they also enacted certain provisions in the Government of India Act of 1935 which provided for protection of adivasis from such depredation. These provisions were later amended and enhanced to form the Fifth Schedule of the constitution which governs the administration of adivasi areas in the central Indian region and which has been hailed by the activist and expert Dr Brahmdev Sharma as the “Constitution within the Constitution”( Sharma, B D, 2001, Tribal Affairs in India: The Crucial Transition,Sahayog Pustak Kutir Trust, Delhi). This provided for adivasi areas in a state to be delineated as scheduled areas and the formation of a Tribes Advisory Council consisting of Scheduled Tribe legislators that was to advise the Governor of the state who was given the responsibility for overseeing the administration of these scheduled areas. The relevant section 5 of the Schedule reads thus –
“(1). Notwithstanding anything in this Constitution, The Governor may by public notification direct that any particular Act of Parliament of of the Legislature of the State shall not apply to a Scheduled Areas or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
(2).The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations may –
a) Prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
b) Regulate the allotment of land to members of the Scheduled Tribes in such area;
c) Regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area;
(3). In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which for the time being applicable to the area in question.”

Thus theoretically it is possible for the Governor of a state on the advice of the Tribes Advisory Council to prevent the application of or repeal the Indian Forest Act and the Land Acquisition Act. The most important aspect of these provisions is that the Governor may implement them so as to ensure "peace and good government" in adivasi areas as the framers of the Constitution felt that this could be possible only if the adivasis were allowed to develop according to their own laws and customs. However, this has never happened because it is not a binding provision and only a suggestion like the Directive Principles of State Policy, which finally has to depend on the executive for its implementation.

Consequently, there has been neither peace nor good government in adivasi areas. The history of the past sixty years after independence is replete with innumerable struggles of the central Indian adivasis against the injustice meted out to them by the Indian state through the ruthless implementation of the Indian Forest Act and the Land Acquisition Act and the cynical non-implementation of the Fifth Schedule. It is unfortunate that Guha in his obsession with the extra-constitutional armed insurrection of the Naxalites in adivasi areas has completely ignored the much more widespread and legally more sound mass opposition of the adivasi mass organizations. The most path breaking of these struggles has been that of the Narmada Bachao Andolan(NBA). Even though the NBA has not been able to prevent the construction of the big dams on the river Narmada it has through its mass struggles and legal activism effectively questioned the legitimacy of the Land Acquisition Act and the industrial development model that it serves. It has today created an atmosphere in the country wherein the fraudulent concept of “eminent domain” of the state and its monopoly on deciding what is “public purpose” has come to be questioned. Similarly many adivasi mass organizations have conducted long drawn campaigns which have resulted in the enactment of the Panchayat Extension to Scheduled Areas Act, 1996 which provides for special local governance in adivasi areas and also the latest Scheduled Tribes and Other Forest Dwellers (Recognition of Rights) Act, 2006 which both try to give teeth to the provisions of the Fifth Schedule and nullify the historical injustice done to the adivasis through the implementation of the Indian Forest Act.

One NGO Samatha fought the Government of Andhra Pradesh’s decision of giving of a lease to a private company to extract minerals in scheduled adivasi areas all the way to the Supreme Court which in a landmark judgment rendered in the light of the debates in the Constituent Assembly upheld that the intention of the founders of the Constitution when drafting the Fifth Schedule was that the adivasis should be protected from dispossession of their land and so even though the actual word in the constitution is that the Governor “may” act for their benefit it should be read as “shall” and has thus effectively prevented the transfer of adivasi land to non-adivasis (Samatha v.State of Andhra Pradesh, 1997 8 SCC 191).

Yet the Indian state continues to flout the “rule of law” and mete out injustice to the adivasis. It uses another set of anti-people laws developed by the British – the Indian Penal Code and the Criminal Procedure Code to relentlessly stifle the legitimate protests of the adivasi mass organizations which are pressing for the implementation of the Fifth Schedule and the many enabling laws for the protection of the Adivasis. Consequently many many more adivasis are dying a slow death from chronic hunger and disease every day all over the central Indian region as compared to those in the Naxalite areas. Land has today become a precious commodity in this country. For many years now the adivasis have been continually shortchanged and deprived of this resource by the powerful sections in the country through the mediation of the state and its colonial anti – adivasi laws. Do the Indian state and the industrialists who use its laws to cheat the adivasis have the will to stop doing so and make them equal partners in “progress”. If so then it is high time that these colonial laws be given a long overdue burial.