The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in Scheduled Areas of India

Abstract

India holds the unique distinction of being both the world's largest constitutional democracy and also one of its fastest growing economies. Critical to the process of India's economic development is state acquisition of land for infrastructure and industrial development. Creating a legal framework that ensures equitable and efficient acquisition of land by the state, through processes that are socially inclusive and politically feasible, has proved challenging. While the Indian Constitution guarantees property rights to all, it enshrines special protections for land rights of ‘Scheduled Tribes’, vis-a-vis the state and other communities, in geographically demarcated tribal majority areas known as ‘Scheduled Areas’ under the Fifth and Sixth Schedules of the Constitution. The currently designated Fifth Scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The currently designated Sixth Schedule areas are in the north-eastern states of Assam, Meghalaya, Tripura, and Mizoram.

The Scheduled Tribes (STs) or adivasis consist of a number of heterogeneous tribal groups that have historically self-identified and been identified by the British colonial and independent Indian states, as lying outside the mainstream of Hindu society, partly because of their ’distinctive culture and way of life as a group’, and partly because of their ‘geographical isolation’. Currently, there are 750 tribes in 26 states and 6 union territories of India.

The Constitution guarantees special protections for land rights of Scheduled Tribes in Scheduled areas because land is not only the most important source of tribal livelihoods, but it is also central to their community identity, history and culture. Many non-Scheduled area states have also created legal protections for protecting land rights of tribals.

However, despite these special protections, Scheduled Tribes remain one of the most vulnerable, most impoverished, and most displaced of all groups in India. 47.1% of all STs in rural areas are below the poverty line as compared to 33.8% for the national average, whereas 28.8% of all STs in urban areas are below the poverty line as compared to 20.9% for the national average. Inspite of being the only group with constitutional protections for their land rights, 9.4 % of STs are landless compared to 7.4% for the national average. While STs constitute only 8.6% of the total population, it is estimated that they constitute 40% of all people who have been displaced during the period 1951 to 1990, some more than once, due to the construction of dams, mines, industrial development, and the creation of wildlife parks and sanctuaries. Only 24.7% of ST population that was displaced during this period was rehabilitated. Therefore, it is clear that these groups have disproportionately borne the burden of economic development.

Through a review of constitutional provisions, laws, and policies, governing the rights of Scheduled Tribes and the administration of Scheduled Areas, and the financial and administrative structures that effectuate these protections, this paper delineates a conflicting regime of protective and displacing laws, as well as conflicting policy narratives underlying these laws which facilitate the displacement of Scheduled Tribes and their corresponding landlessness. The paper also contains extensive primary data on the current mapping of Scheduled areas, and the current distribution of dams, forests, and mining activity, in the Scheduled areas.