By Nageshwar Patnaik in Bhubaneswar, November 29m 2023: The recent move by the Odisha Cabinet allowing amendment to Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956 making it possible for tribals to mortgage or sell part of his landholding to non-tribals and subsequent reversal of the decision has once again raked up the much debated issue of land rights of tribals in the country.

The permission clearly went against the Panchayat Extension to Scheduled Areas (PESA) Act, 1996 in Odisha and invited sharp criticism. Amid backlash, the state government rescinded its decision to allow the sale of tribal land to non-tribals in the state’s Scheduled areas and decided to send back the proposal to Tribal Advisory Committee for review.

Land gives a sense of security and respect in the society we live. Seeing its importance for the vulnerable sections, our constitution had made right to property a fundamental right. This has been amended in 1978 to facilitate the land reforms in the country and converted into legal rights under article 300 of constitution. Land reforms were introduced in order to ensure a minimum amount of land to the landless, who were the actual tiller of land.

However, poor implementation of this reforms and governments’ policy of economic development furthers the vulnerability of farmers in general and tribal communities in particular and displaced them from their only source of livelihood. Tribal communities in India are most deprived and socio-economically, they are poor and marginalized primarily due to alienation of their land, territory and resources.

While almost 89% of all mineral wealth generated in India comes from schedule areas, this wealth is not channelled appropriately for the benefit of tribal peoples, according to a report titled the ‘The Legal Regime and Political Economy of Land Rights Of Scheduled Tribes in the Scheduled Areas of India’, brought out by the Centre for Policy Research Land Rights Initiative (CPRLRI), New Delhi.

The CPRLRI report has found that STs have disproportionately borne the burden of economic development because of displacement, caused by their special relation to land which other groups do not have. Poverty and landlessness are rampant among STs. 9.4% of all STs are landless as compared to 7.8 % for the national average, and 47.1% of all STs are below the poverty line in rural areas as compared to 33.8% for the national average.

Articles 244 (1) and (2) of the constitution carve out tribal-majority areas from the geographical land mass of India, designated as scheduled areas in the fifth and sixth schedule of the constitution, respectively. The current fifth scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha and Rajasthan. The sixth schedule provides the broad framework for the administration of tribal areas in the north-eastern states of Assam, Meghalaya, Tripura and Mizoram. Two of these states, Meghalaya and Mizoram, are tribal-majority states, whereas Assam and Tripura are tribal-minority states.

Odisha ranks third in the country’s tribal population. The scheduled area covers about 44.70% area of the state with 68% of the total tribal population living there. There are sixty-two tribal communities living in the state. Together they form 22.1 percent of the total population of the State and 9.7 per cent of the total tribal population of the country. Among these, thirteen tribal communities are recognized as Particularly Vulnerable Tribal Groups or PVTGs. Overall situation of the tribal population of is no better than the national average, even more deprived than the tribal population of other states.

The Tribal Advisory Council (TAC) constituted under the Fifth Schedule of the Constitution of India, aimed to protect the land rights of tribals residing in the scheduled areas. But in the notified scheduled areas of Odisha, although the TAC is an independent constitutional body, in reality, it remains subservient to dominant non-tribal political interests. Despite progressive land reform laws and political commitment to implement such laws, issues of tribal land rights have not been addressed adequately.

To control, what it called, land alienation among tribals, the state government in 1956 passed the Orissa Scheduled Area Transfer of Immovable Property (by Scheduled Tribes) (OSATIP) Regulation, 1956 but it proved to be ineffective as the law permitted transfer of ‘patta’ land from tribals to non-tribals after obtaining permission from the revenue authorities. In 2002, the Naveen Patnaik government amended the law, completely banning the transfer of patta land by tribals to non-tribals.

Besides, a tribal was not allowed to sell land to a fellow tribal if the total amount of land under his possession after sale came down to less than two acres for irrigated land and five acres in case for non-irrigated land. For tribals living outside the Scheduled areas, the Orissa Land Reforms Act, 1960 makes it mandatory for permission from the sub-collector before any tribal land can be sold to non-tribals.

In fact, this alienation of tribal people from their lands came into existence during the British regime. It uprooted a large section of tribal population from their own territory and pushed them in crisis of sustenance, and social and cultural identity. Post-independence development policies, in general, aggravated the situation further. Development-induced displacement made their land rights insecure and caused havoc in their life and livelihoods.

Secure land rights are foundational building blocks for agricultural productivity and the social and economic empowerment of households. Though government has taken some measures to check tribal land alienation of late, it has not shown the courage to restore alienated tribal lands. Landlessness as well as insecure and unclear land rights has forced them to depend on daily wage earnings.