Land Rights of Tribal Communities in India: Analysing Legal Recognition and Challenges

Abstract

Introduction: Tribals, Land Rights and Landlessness 

This paper examines the status of land rights accorded to the Scheduled Tribes in India. With a history of dispossession behind them, tribal groups continue to be among the most marginalised sections of the country’s population. Recognition of the significance of land resources for tribal communities has grown in the recent decades and this has taken shape in various laws to protect tribal rights. Here, the three most prominent tribal rights legislations have been analysed, namely, the Panchayats Extension to Scheduled Areas Act, 1996; the Forest Rights Act, 2006; and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013. An evaluation of these three laws using data from government sources as well as qualitative research literature points to several critical issues that have marred their successful implementation, such as poor nodal governance, reluctance on part of States to devolve powers to local bodies and conflicts between different legislations. Having identified these bottlenecks, the paper offers some policy recommendations for the substantive realisation of tribal land rights recognised in these laws.

The centrality of land to the lives of tribals cannot be overestimated. It is not a mere means of livelihood and social status but is fundamental to the tribal identity and is inseparable from their cultural and spiritual life (Biswas and Pal 2020, 199).  Any discussion on tribal land rights must take into account the distinctiveness of the tribals’ relationship with their land. Traditionally, they have considered themselves to be an integral part of their land and not existing apart from it (Malik 2020, 38). Indeed, the whole gamut of traditional tribal activities – economic and otherwise – revolves around land, thus making it the chief source of their identity. 

As such, they possess the right to protect and preserve it for themselves and for future generations. This is a right that has been recognised in laws such as the Forest Rights Act, 2006(FRA). The Supreme Court has also reaffirmed the right of tribal communities “to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands”. Above all, the Scheduled Tribes (STs), which constitute 8.6% of India’s population, are the only group in the country that enjoy specially recognised land rights under the Constitution. Here, it is also worth noting that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which India signed in 2007, provides that indigenous peoples “shall not be forcibly removed from their lands or territories” (United Nations 2007, 11).

Yet, the state of land ownership among the STs paints a disappointing picture. Landlessness statistics are nebulous to begin with and recent estimations are lacking. Karat and Rawal (2014) note that as of 2011, 24% percent of tribal households did not own any land. An important cause of tribal landlessness is land alienation, a phenomenon that was spurred in the colonial era and has continued till date. As of 2013, the Ministry of Rural Development data reveals that 3.75 lakh cases of tribal land alienation were registered of which over 40% have been rejected by courts “on various grounds” (quoted in Mitra 2020, 58). In some cases, the courts have cited  ‘procedural irregularities’ in the way restoration of alienated tribal land was carried out as a ground for declaring tribal occupation illegal, compelling the process of restoration to start all over again (for e.g., ENVIS n.d., 3). In yet other instances, the court has held that acquisitions were made with ‘earnest objectives’ of larger public interest (Pal 2021, 185).

Landlessness in turn is seen as a major contributor to the impoverishment of the STs. Census data puts the average poverty ratio of the STs at 39%, higher than the national rate of 22%. However, the National Family Health Survey 2019-21 found that 46% of ST households are in the lowest wealth quintile in the country (NFHS-5 Vol I 2022, 44). 

Securing land rights for tribal peoples is therefore a compelling national imperative. It is necessary not only to vindicate the spirit of the Constitution and the UNDRIP but also to translate into reality the basic provisions of some major legislations enacted for promoting tribal land rights. These include landmark laws like the Panchayat Extension to Scheduled Areas Act 1996, the Forest Rights Act 2006 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act 2013. Enforcing these laws is not only a legal responsibility of the state but is also essential to make the development process inclusive and sustainable. 

This paper examines the legal framework that has evolved for the protection of tribal land rights to identify the issues that have arisen in the implementation of above mentioned laws and offers suggestions on how they can be given sharper teeth.

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