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Displacement, Policy and Tribes

 

The Madras Forest Act was extended to Southern revenue divisions of Orissa in the year 1891; rules under section 26, 32, 35 and 55 of Madras Forest Act were framed in the year 1900. The Madras Permanent Settlement Resolution XXV of 1802 lay down, “The Zamindars or Landlords shall enter into engagement with their ryots for a rent, either in money or in kind, within a reasonable period of time, grant each ryots a patta condition of their engagement. These rules known as Jeypore Forest Rules underwent many changes. In 1949 Orissa government granted a concession of reserved trees up to 3 feet in girth of the hill tribes in protected and unreserved lands instead of 2feet girth allowed previously.

The Zamindari system was abolished in 1952 and the government took over the management of Forest. Government has framed the Koraput District Forest and Waste Lands Rules, 1956. The wild birds and animal protection act was extended to the district 1957. The Orissa preservation of private forest act was in force till the date of vesting of estates.

The majority of the tenants belonging to the Schedule tribes and their right ion their holding restricted by the provisions of the Orissa Schedule areas Transfer of Immovable Property (By schedule Tribal) Regulation 1956. They cannot transfer of land without the authority of the competent authority at sub-divisional level. The Zamindar of Jeypore not took any effective steps against such alienation of holdings. The number of landless person is, however because large tracts of agricultural land already been transferred prior to the 1917 the Agency Tracts Interest and land Transfer act or have been transferred thereafter without the law being invoked.

The British rule, policy of isolation and non-interference was adopted. Administratively, tribal belts were classified as .excluded or partially excluded areas. None of the legislative acts applied to these areas, unless specifically directed by the Governor, who, in consultation with the Governor General had to make regulations for peace and good governance of these areas. As a result of this approach, the traditional tribal system of governance remained largely uninterrupted. But at the same time, it was the colonial regime which systematically introduced the concept of individual property ownership of land and other natural resources. Indian Forest Act of 1878 established absolute propriety right of the State over forest land and Land Acquisition Act came in operation in 1894.These acts giving supreme authority to the State to control and own all the property within the country’s territory. But because of legislative, administrative loopholes and the State’s unquestioned right to acquire land for public purpose, land alienation continued5. .One of the most tragic consequences of the break down of isolation of tribal regions in the name of development, and the introduction of alien concepts of private ownership of property and state ownership of forests, was massive and steady alienation of lands held in the past by tribal into the hands of non-tribal.

New Agriculture policy especially the state Govt is promoting the contract farming by which tribal are loosing control of their land.

Development projects have not only bypassed tribal in Orissa, but have often harmed them by taking away their lands and other resources on which their livelihood was based. From the viewpoint of policy, it is important to understand that tribal communities are vulnerable not only because they are poor, asset less and illiterate compared to the general population; often their distinct vulnerability arises from their inability to negotiate and cope with the consequences of their forced integration with the mainstream economy, society, cultural and political system, from which they were historically protected as the result of their relative isolation. Post-independence, the requirements of planned development brought with them the specter of dams, mines, industries and roads on tribal lands.

 

For the poor, plucking of tendu leaves represents a major source of income and employment especially since it coincides with the slack period of the agricultural cycle. Tendu leaf generates 150 million person days of employment during the agricultural lean season in Orissa including labour involved in making bidis. The Forest Department in Orissa alone engages about 40,000 seasonal workers and labourers, some of them are non-existent. This is in addition to about 8 to 12 lakh pluckers who are to be paid according to the fixed government rates. However, the usual practices of under-counting, rejection, under-payment, over-invoicing, etc. help the government staff in pocketing a significant amount of government funds, at the cost of peoples’ livelihoods and extra revenues to government.

 

Thirdly Orissa, have tried to dilute the provisions of PESA, though it had no legal jurisdiction to do so, as PESA is a Central Act. Following the Central PESA Act, the Government of Orissa has enacted the Orissa Act for the State. However, the Orissa Act has tried to circumscribe the constitutional provisions of the Central Act by adding a clause 4 `consistent with relevant laws in force’ while incorporating the constitutional provision concerning the competence of the Gram Sabha to manage community resources and dispute resolution as per the customs and traditions of the people. Thus, tribal can have ownership rights over Minor Forest Produce, but only if the relevant laws in force allow that. This is clear violation of the Constitutional Provision of the Central Act since in case of any inconsistency the relevant state laws have to be changed instead of negating the rights granted to Gram Sabha as per the Central Act in this regard. Further, PESA required that state would change its existing laws wherever these were not in consistent with the central legislation. However, Orissa government has done just the opposite. Another problem with the Orissa legislation is that instead of giving clear rights to Gram Sabha, space has been kept in the state law for involvement of higher order Panchayati Raj institutions instead. This has been done because it is easier for local politicians and bureaucracy to manipulate Chairperson of district or block level panchayats, but not that easy to do so with the Gram Sabha. Thus the spirit of the GoI Act with focus on empowerment of the Gram Sabha has not been followed in Orissa. This is again a violation of the Central Act which explicitly forbids usurpation of powers of a lower level panchayat by a higher level panchayat. Such indifference to PESA can be seen in many other states too. The irony is that while PESA remains unimplemented, Ministry of Mines in GoI has proposed amending Schedule V of the Constitution itself to open up tribal areas for commercial exploitation by national and multinational corporate interests.

 

 A National Policy for Rehabilitation for the Displaced Persons was drafted during 1998-99; When Dr. N.C Saxsena was posted as Secretary, Rural Development in GoI. The draft not only ensured that no deterioration takes place in the living conditions of the tribal prior to their displacement, but also provided for betterment. The suggestions given in the draft if adopted would have achieved the following:-

(a)      It will minimize displacement and prevent state-induced impoverishment of people on account of compulsory acquisition of land, and will search for non-      displacing or least displacing alternatives to people displacing projects;

(b)     It will ensure that displaced and adversely affected families have a       standard of living superior to the one before their displacement and, in any case, have an income above that prescribed as the poverty line;

(c)      It will compulsorily provide agricultural land to all agricultural families in irrigation projects and for tribal in all projects;

(d)     It will ensure justice to women by adopting a gender neutral definition of        family, and recognizing full rights of unmarried, widowed and separated        adult women.

(e)      It will address the special needs of the poorest, especially tribal, in the rehabilitation and resettlement measures by improving their skills and knowledge and thus their incomes on a sustainable basis; and

(f)      It will ensure quick but peaceful acquisition and faster access to land required by large projects for faster economic development.

(g)      The draft aimed at the empowerment of the displaced, so that they are able to influence and share control over priority setting, policy making,    resource allocations and access to public goods and services at the new     site. A final decision on the draft was taken by Government of India only in 2004 and a National Rehabilitation Policy has now been promulgated on 17th February 2004. This has unfortunately none of the progressive clauses that were put in the earlier drafts after consultation with the civil society during 1998-99. It is ironic that the Policy recognizes the limitations of compensation through cash and states that the ‘system of extending cash compensation does not by itself, in most cases, enable the affected families to obtain cultivable agricultural land, homestead and other resources which they have to surrender to the State’. However, all that the Policy gives to the displaced people is some extra cash, but no support for livelihoods.

 

Critique on Land Acquisition Act 1894

 

The Land Acquisition Act, 1894 (amended 1984) is one of the draconian laws enacted by the British Colonial Govt. which is retained much in the same form by the Republic’s government. The law neither defines what constitutes ‘public purpose’ and what does not, nor mandates that the state provide information to the people about the projects which are supposed to serve public purpose. It gives few and very nominal right to the citizens to challenge acquisition. (This nominal right too is now being taken away by the proposed 1998 Amendment Bill to the Act).

 

                                   

          The only right it gives the citizen is to get compensation in cash for the life-sustaining resources taken away from him/her. Not only is all private land acquired in the name of ‘public purpose’, but the justification for taking over control of common lands, forests and water bodies is also the same ‘public purpose’. This ‘public purpose’ is to be achieved without giving any information relating to the dam projects to the public! Not only is there unwillingness on the part of the state to give information, sometimes projects are shrouded in absolute secrecy. People’s participation in the planning process is really a far cry under such conditions. All this takes place even while human rights and constitutional norms confer on the citizen a right to live anywhere in the country and to a life with dignity. Hence compulsory displacement is a serious violation of human and constitutional rights. Displacement also violates several international covenants.

 

          Compensation is only for persons in possession of undisputed legal title. In any average Indian village, the tyranny and corruption of the patwari or village accountant charged with the responsibility of maintaining land records ensures that land records are neither accurate nor updated, and this complicates the chances a land-owner will be able to prove title and secure compensation.

          Tenants, sharecroppers, wage-labourers, artisans and encroachers are usually not considered eligible for compensation because they do not have legal title to agricultural land, whereas they are paradoxically the most vulnerable and in need of support.

 

          Community assets like grazing grounds and forests, which again may be critical for the livelihood of the poorest, are not compensated for under the LAA.

          The value of the land is calculated as on the date of the gazette notification and interest is liable to be paid only from the date of taking possession up to the date of payment of full compensation. The LAA thus does not take into consideration the escalation of the market value between the time of notification and the date of actual possession.

          The limited provisions in the LAA to challenge the rate of compensation are, in practice, inaccessible to the indigent and illiterate oustees, because they may not be aware of the legal nuances or else cannot afford the expensive remedy of courts. Even those that are able to access courts fritter away a substantial proportion of the gains that they achieve in legal costs.

 

Definition of displacement

          The Collins Could Dictionary (1988) enunciates displacement as meaning: "…the forcing of people away from the area or country where they live."

          According to the same dictionary Eviction is the "act or process of officially forcing someone to leave a house or a piece of land."

          The distinction between the two definitions is of some significance when one realizes that after all displacement in India under the Land Acquisition Act amounts to "officially forcing someone to leave a house or a piece of land" that is required for a public purpose. This is more than just a semantic debate for Forced Eviction has a political content that is more loaded than displacement. The implications for the rights of those who have been forced to leave their homes and lands is also very significant as there exists a UN Convention on Forced Eviction to which India is a signatory.

          In usage however, besides the aspects of physical relocation and the use of officially ordained force, displacement has also been imputed with a third aspect, that of compensation. In this sense displacement does differ from forced eviction. Again however when one looks back at the history of displacement in India it is littered with instances in which the displaced received nothing that could amount to a fair compensation. And even with compensation the fact that under the present legal regime the displaced had no right to question their displacement and the fact that compensation makes up only the market value of property but not the totality of rights lost still renders it a case of forced eviction. While for the present we will continue to use displacement it is important that we keep forced eviction in mind while considering displacement.

          Displacement in India is mediated by the Land Acquisition Act of 1894, amended in 1984, which provides the legal framework for the State to take over land for public purposes. The State, largely viewing displacement from the standpoint of its causes, has consistently maintained that displacement is justified in national interest.

          It is acknowledged that displacement causes severe social, economic and environmental stresses that translate themselves into physiological, psychological, socio-cultural, economic and ecological damage.

Displacement is conceived as:

          the systematic alienation of individuals’ and communities’ customary and legal rights and privileges of using, managing and controlling their habitat/sources of livelihood;

          through the use of officially ordained force or coercion;

          resulting in socio-cultural uprootment, accompanied very often by physical relocation with the

          resulting trauma and risks; and,  for which they are legally entitled to a compensation made up of

          market value of the sources of land based livelihood lost

 

Types of displacement

A. Political causes, including secessionist movements

          Since independence, north-east India has witnessed two major armed conflicts

        The Naga movement primarily led by the National Socialist Council of Nagaland,

        and the Assam movement led by the All Assam Students Union and now largely taken over by the extremist United Liberation Front of Assam.

          The violence and retaliatory responses from the government and other forces opposed to the secessionists continue to generate a steady flow of displaced people.

          In Kashmir’s ‘war’ between state forces and militants, the killing of Kashmiri Pandits by fundamentalist secessionist groups,

          the widespread anarchy created by political instability

          and the continuous violation of fundamental human rights by both the state and militant groups,

          have led to large scale displacement, mainly of Kashmiri Pandits (estimated at 250,000), to Jammu and cities like Delhi.

          Despite the election and restoration of a popular government in 1996, those displaced have not been able to return due to the continuing reality of sporadic massacres in Kashmir.

           Although conditions are miserable, the displaced find that camps offer better employment opportunities, education and security.

B. Identity-based autonomy movements

          Identity-based autonomy movements, such as in Bodoland, Punjab, Gorkhaland and Ladakh, have also led to violence and displacement.

          This has happened in Punjab and more recently in the Bodo Autonomous Council area of western Assam.

          'Cleansing' of non-Bodo communities by the Bodos, through plunder, arson, massacre and persecution, has forced a large number of non-Bodos to flee.

          They now live in camps.

C. Localized violence

          Internal displacement has also arisen from

          caste disputes (as in Bihar and Uttar Pradesh),

          religious fundamentalism (as in urban riots in Bombay, Coimbatore, Bhagalpur and Aligarh) and

          Aggressive denial of residency and employment rights to non-indigenous groups by supporters of the ‘son-of-the soil policy’ (as in Meghalaya by the Khasi students and in Arunachal Pradesh against the Chakmas).

D. Environmental and development-induced displacement

          In order to achieve rapid economic growth, India has invested in industrial projects, dams, roads, mines, power plants and new cities which have been made possible only through massive acquisition of land and subsequent displacement of people.

          Development projects, particularly dams, have always generated serious controversy in India as they have tended to be a major source of displacement-related conflicts.

          Estimates of national resettlement forced by development projects shows that during 1950-90 the number of people affected were 18.5 million.(2) According to the Central Water Commission, over 3,300 dams have been built since independence and some 1,000 more are under construction. Another study of 54 large dams done by the Indian Institute of Public Administration concluded that the average number of people displaced by a large dam is 44,182.

          India has borrowed US$151.5 million from the World Bank to build the sardar Sarovar dam.

          Bank cancelled plans to lend more due to the Indian government's failure to meet even such basic conditions as identification of the displaced and preparation of resettlement plans

          The fact that development projects are usually located in remote villages, hills and forests means that those displaced tend to be the indigenous people who have been the traditional agents of conservation.

          Here displacement has meant a loss of livelihood, habitat and assets, social disruption and disorder and severance from an eco-system which had sustained them.

          Most critically, these displacements threaten the poor and the weak with even greater impoverishment.

          It is only those cases of 'involuntary resettlement' which come to the attention of social and environmental activists, and are thus highlighted, that lead to some measure of state intervention.

          In most cases total displacement with loss of home and livelihood has resulted.

          Rehabilitation - primarily the process of reconstruction of the livelihood of displaced persons - has never been a guiding principle of the 1894 Land Acquisition Act (still in use) which instead emphasises cash compensation for loss.

          The government has taken the firm stand that rehabilitation would not be a prime consideration when acquiring land for ‘public purpose’ (the definition of which has not been made public).

          The government has even sought to take away the right of appeal by those whose land stands to be confiscated by making the Supreme Court the only appellate forum.

          Globalization has been another threat to indigenous communities as private conglomerates (including foreign multinationals) encroach upon rural lands, hitherto the domain of tribal and other indigenous communities, to build the government’s desired industrial infrastructure.

          The proposed amendments to the 1894 Act, if carried out, are likely to generate new waves of displacement as the Act will then make it even easier for private interests to acquire land.

E. Natural disaster-induced displacement

          There has been massive and recurrent displacement due to floods, cyclones and landslides.

          A report by the Centre for Science and Environment (1991) states that India is the most flood-affected country in the world after Bangladesh and that over 30 million people are displaced annually.

          Flood-affected areas shot up from an average of 6.4 million hectares a year in the 1950s to 9 million hectares in the 1980s.

          Government flood control measures mainly consist of dams and embankments.

          Yet all these have failed to control floods and indeed dams are now cited as an important cause of floods while embankments have disrupted the natural drainage system in the flood plains.

          ‘Natural’ disaster-led displacement is never recorded after the initial dose of relief and rehabilitation assistance. One of the most serious aspects of the displacement belonging to this category has been the fact that the displacement has been silent but acute and frequent.