The Causes: Land, Dispossession and the Failure of Law

How the Court read it. In Nandini Sundar the Court observed that a Government report understates in staid prose, so that an expert body of the Planning Commission using the words "rapacious" and "sub-human" was revealing the degree of human suffering being visited on vast sections of the citizenry, and that facets essential to human dignity had been systematically denied by the developmental paradigm the State had unleashed.

Cause one: the tenancy that was never recorded

The promise. After independence every State legislated on tenancy: the sharecropper was to be recorded, given a fixed and fair share, protected from eviction and in many States given a right to purchase.

The failure. Recording depended on a revenue administration that had no incentive to record, and a tenant who asked to be recorded was evicted before the entry was made. Ceiling laws were evaded by benami transfers and by the exemptions written into the statutes themselves.

Why it is the FIRST cause. Naxalbari was a sharecroppers' rising, and the demand there was the enforcement of a right the statute already gave. The movement began where the law had already promised what it did not deliver.

And the constitutional twist. The Ninth Schedule was created in 1951 to protect precisely these agrarian statutes from challenge, which is worked in [The Preamble: The Charter of Transformation] and [The Directive Principles and the Welfare State]. The Constitution was amended to save land reform, and the land reform was still not carried out.

Cause two: the forest law that made a resident an encroacher

The colonial statutes. The Indian Forest Acts of 1865 and 1878 and the consolidating Act of 1927 empowered the State to constitute reserved and protected forests. Where a settlement of rights was made at all, it was made against people who had no documents, in a language they did not read, before an officer of the department that wanted the forest.

The consequence. A community that had cultivated and gathered in a forest for generations found itself, by operation of law, in unauthorised occupation of State property. Its cultivation became encroachment, its gathering became theft, and its relationship with the State became a relationship with the forest guard.

The independent period did not undo it. The Forest (Conservation) Act 1980 added a central clearance requirement without settling anyone's rights, and eviction drives followed.

What Parliament finally admitted. The preamble to the Forest Rights Act 2006 says it in the statute book: that the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers were NOT ADEQUATELY RECOGNISED, and that the Act is passed to redress the HISTORICAL INJUSTICE done to them. Section 3(1) then lists the thirteen rights and section 4 vests them. A Parliament that legislates in those words has conceded the cause.

Cause three: displacement without rehabilitation

The instrument. The Land Acquisition Act 1894, in force for a hundred and nineteen years. It permitted acquisition for a public purpose, paid compensation to the person recorded as owner, and said nothing at all about rehabilitation or resettlement.

Who fell outside it. The sharecropper with no record, the shifting cultivator with no survey number, the landless labourer whose work went with the land, and the community whose grazing ground or sacred grove had no owner. Compensation for the recorded owner is no remedy for any of them.

Where the projects were. Dams, mines, steel plants and thermal stations went where the water, coal, iron and bauxite are, which is the tribal belt. Tribal people have been displaced at many times their share of the population, and a large proportion were never resettled at all.

What changed in 2013, and how late. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 replaced the 1894 Act. It requires a social impact assessment, requires the consent of a stated proportion of affected families for public-private partnership and private projects, defines an affected family to include those dependent on the land rather than only its owner, and makes rehabilitation and resettlement an entitlement rather than a policy. For the Scheduled Areas it requires that acquisition be a last resort and that the gram sabha, panchayats or autonomous district councils give prior consent.

The point for an answer. Every one of those requirements is an admission that the previous law was the problem, and the movement had been running for forty-six years by the time Parliament made it.

Cause four: the terms of trade

Minor forest produce. Tendu leaf, bamboo, mahua, sal seed and lac are the cash income of a forest household. They were routinely bought at administered or monopoly prices, or through contractors, at a fraction of what they fetched downstream.

What the law now says. Section 3(1)(c) of the Forest Rights Act gives the OWNERSHIP of minor forest produce to the holder of the right, and section 4(m)(ii) of PESA requires the State to endow the gram sabha and panchayats specifically with that ownership. Both are directions about who captures the value, and both were resisted in practice.

Money lending. Paragraph 5(2)(c) of the Fifth Schedule lets the Governor regulate money lending to Scheduled Tribes, and section 4(m)(v) of PESA requires the gram sabha to be given control over it. Debt bondage in these districts is the subject of [Manual Scavenging and Bonded Labour], and it is the mechanism by which land passes without any transfer being recorded.

Land alienation. Where a Land Transfer Regulation exists, the transfer to a non-tribal is void; but a void transfer that nobody challenges is a completed dispossession, and restoration proceedings under the State Acts have a poor record.

Cause five: the State that is absent, and the part of it that is present

Absent. School, health centre, road, bank, ration shop and the courts. Article 21A's guarantee, worked in [The Right to Education], reaches these districts last.

Present. The forest guard, the police station, the contractor and the revenue officer, that is, the four faces of the State that take rather than give.

The consequence for legitimacy. Where the only visible State is the enforcing one, the argument that the State is an instrument of the dominant sections is not an abstraction but a description of the week.

And where the movement fills the gap. Insurgent organisations set the tendu leaf wage, ran their own courts and took a share of the contractor's bill. That substitution, rather than the ideology, is what secured a base.

Cause six: the laws that exist and are not implemented

The Fifth Schedule. Its powers are the Governor's, and the Tribes Advisory Council only advises. A Schedule whose operation depends on a discretionary power is inert unless it is used.

PESA. Section 4 binds the State Legislature not to pass an inconsistent law. Most States conformed late and minimally, and subordinate rules came later still. Section 4(i) requires only CONSULTATION before land in a Scheduled Area is acquired, so a consultation recorded and ignored is compliance.

The Forest Rights Act. The gram sabha under section 6 only initiates; the Sub-Divisional and District Level Committees, made mostly of officers, decide, and the District Committee's decision is final. Community forest rights, the ones that matter most for a village economy, have been recognised far more slowly than individual ones, and section 4(3)'s cut-off of 13 December 2005 falls hardest on the claimant who was never surveyed.

The pattern. In each case Parliament or the Constitution created a right, and the administration retained the decision. That gap between the enacted right and the administered outcome is the single most examinable idea in this chapter, and it is the theme of [What Law Cannot Do: The Limits of Legislating Change].

Cause seven: liberalisation and the new mineral economy

What changed after 1991. Mineral extraction opened to private and foreign investment, and States competed to sign memoranda for steel, aluminium and power projects in exactly the districts under discussion.

What the Supreme Court said about it. In Nandini Sundar the Court held that policies of rapid exploitation of resources by the private sector, without credible commitments to equitable distribution of benefits and costs and to environmental sustainability, are necessarily violative of principles fundamental to governance, and that on a large scale they eviscerate the promise of equality before the law under article 14 and the dignity of life assured by article 21. It added that the collusion of the extractive industry with agents of the State destroys the moral authority of the State itself.

Why that sentence matters for a law answer. It converts a political criticism into a constitutional holding, and it is the strongest single authority a student can cite on this question.

The argument to handle: poverty alone is not the cause

The objection. India has poorer districts than some of the affected ones and no insurgency in them, so poverty cannot be the explanation.

The answer, in three parts. First, the variable is not poverty but DISPOSSESSION: the loss of a resource that was being used, by a legal process, without consent or replacement. Second, it is dispossession together with the absence of any working remedy, so that the courts, the collector and the police are all on the other side. Third, it is the presence of a resource worth taking, which is why the belt tracks the minerals and the forests.

And the corollary for the next chapter. If dispossession without remedy is the cause, then the cure is a remedy, which is why the Expert Group and the Court both say that treating the matter as a law and order problem breeds more of it.

A worked example

A district in the Bastar region. A village of forty households cultivates upland fields and sells tendu leaf. A mining lease is granted over 900 hectares including the fields and the leaf forest.

Was any law broken? Possibly none. The fields were never recorded, so the households are encroachers on State forest. The lease was granted by the State. Compensation is payable to recorded owners, of whom there are none.

What each protective statute should have done. The Fifth Schedule regulation should have voided a transfer to a non-tribal; Samatha holds it binds the Government too. PESA section 4(i) required consultation before acquisition. The Forest Rights Act sections 3 and 4 gave the households a right to hold the land they cultivate and gave the village ownership of the tendu leaf, and section 6 required the gram sabha to initiate their determination.

Why they did not. Because the claims had not been settled before the lease was granted, and once the clearance is issued the village is arguing from the wrong side of an accomplished fact.

What the village's options then are. A writ petition, which requires a lawyer and takes years; a complaint to the National Commission for Scheduled Tribes, which recommends; a protest, met as public order; or the organisation that is already in the forest and offers to stop the truck this week.

That last sentence IS the answer to MU's question. The movement recruits at the exact point where the legal remedy runs out.

What this does NOT mean

It does not mean the causes justify the violence. Explaining the conditions is not endorsing the killings, and MU asks for a critical appraisal.

It does not mean the movement speaks for the tribes. Tribal people have been the principal victims of the violence on both sides, which is the fact Nandini Sundar turns on.

It does not mean law is useless here. The Forest Rights Act and PESA are real instruments and Niyamgiri shows what they can do; the criticism is of implementation, not of enactment.

And it does not mean development is the villain. The Expert Group criticises a development paradigm imposed without consent and without distribution, not development.

Quick revision

Expert Group to the Planning Commission, Development Challenges in Extremist Affected Areas, April 2008, quoted in Nandini Sundar 2011: the development paradigm aggravated discontent; it was imposed; benefits cornered by dominant sections; displacement and a sub-human existence; for tribes, destruction of social organisation, cultural identity and resource base; rapacious exploitation by contractors, middlemen and traders; treating unrest as a law and order problem is a rationale for suppression; what surprises is not the unrest but the failure to draw the right conclusions.

Seven causes. One, tenancy law that promised the sharecropper a record and never made it, which is what Naxalbari was about. Two, the forest laws of 1865, 1878 and 1927 that made residents encroachers, admitted in the preamble to the Forest Rights Act 2006 as a HISTORICAL INJUSTICE. Three, displacement under the Land Acquisition Act 1894, compensation only to the recorded owner and no rehabilitation, replaced only in 2013. Four, the terms of trade: minor forest produce, money lending and land alienation, addressed by FRA section 3(1)(c) and PESA section 4(m). Five, an absent State and a present enforcement apparatus. Six, protective laws whose decisions stayed with officers: the Fifth Schedule's Governor, PESA's consultation, the FRA's District Level Committee. Seven, post-1991 mineral extraction, on which Nandini Sundar holds that exploitation without equitable distribution eviscerates articles 14 and 21. The variable is dispossession without remedy, not poverty.

Test yourself

1. Quote the Expert Group's central finding about the development paradigm. That the paradigm pursued since independence aggravated the prevailing discontent among the marginalised, was imposed on these communities and caused irreparable damage, that its benefits were disproportionately cornered by the dominant sections at the expense of the poor who bore most of the costs, and that in the case of the tribes it destroyed their social organisation, cultural identity and resource base.

2. How did forest law turn a resident into an encroacher? The Indian Forest Acts of 1865, 1878 and 1927 allowed the State to constitute reserved and protected forests, with any settlement of rights conducted against people who had no documents before an officer of the department that wanted the forest. Cultivation became encroachment and gathering became theft, by operation of law and without anybody moving.

3. What did the Land Acquisition Act 1894 fail to provide, and who fell outside it? Any rehabilitation or resettlement. It compensated only the person recorded as owner, so the unrecorded sharecropper, the shifting cultivator with no survey number, the landless labourer and the community holding a grazing ground or sacred grove received nothing.

4. State the constitutional holding in Nandini Sundar on resource exploitation. That policies of rapid exploitation of resources by the private sector, without credible commitments to the equitable distribution of benefits and costs and to environmental sustainability, are necessarily violative of principles fundamental to governance, and on a large scale eviscerate the equality promised by article 14 and the dignity of life assured by article 21; and that the collusion of the extractive industry with agents of the State destroys the moral authority of the State.

5. Answer the objection that poverty cannot be the cause because poorer districts have no insurgency. The variable is not poverty but dispossession: the loss by legal process, without consent or replacement, of a resource being used; combined with the absence of a working remedy, so that the collector, the police and the courts are all on the other side; and with the presence of a resource worth taking, which is why the affected belt tracks the forests and the minerals.