Development induced Displacement and Dispossession: Legal Analysis of Conflicting Interests

On the 9th of August, Adivasis in Madhya Pradesh invoked the Panchayat (Extension of the Scheduled Areas) Act 1996 (PESA) to pass a gram sabha resolution rejecting the proposal for the construction of the Sheetaljhari dam that is expected to cause mass displacement and dispossession in the region. Adivasis, or Scheduled Tribes, constitute less than 9% of the Indian population, but more than 40% of the people displaced due to development projects such as dams, mines, power plants etc. There are several adverse effects of displacement including landlessness, joblessness, homelessness, marginalization, food insecurity, increased mortality, loss of access to common property, and social disintegration. Forced displacement also disproportionately affects Adivasi women who are ‘doubly-disadvantaged’ due to the nexus of marginalised identities. Thus there is a need to resolve the question of development induced displacement and dispossession of Adivasis. This article attempts to analyse the effectiveness of the law in protecting the Adivasis’ right to land. 

Constitutional Provisions 

There are several provisions safeguarding the rights of Adivasis in the Constitution. One of the most prominent stipulations is the Fifth schedule, or Article 244(1). It provides for the notification of areas as ‘Scheduled areas’ where Adivasis are empowered to exercise autonomy and executive powers through the formation of Tribes Advisory Councils. It also authorises the Governor to direct that any particular statute shall not apply to that area. 

The advancement of Adivasi communities is also enshrined in Article 46 which is part of the Directive Principles of State Policy. It reads:

‘The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.’

These provisions demonstrate the constitutional commitment to protection of the rights of Adivasis by granting them greater autonomy to manage their own affairs. 

Legislations 

In addition to the constitutional safeguards, several legislations deal with Adivasis’ land rights. The colonial Indian Forest Act 1927 is particularly injurious to the Adivasis. The British state acquired vast amounts of forest land by virtue of the principle of Terra nullius, which provides that the land not owned by anyone can be appropriated by the person that takes possession. As the Adivasis did not adhere to the conventional concept of property, their land was appropriated by the colonial government. Post-independence, the Act has been rendered obsolete due to the Fifth Schedule. 

Other legislations have been enacted with the intent to protect Adivasi rights. The PESA, which was invoked by the Adivasis in Madhya Pradesh, was enacted to advance self-governance in Adivasi communities. It enhances the power of the gram sabhas to approve or reject development proposals. The Recognition of Forest Rights Act 2006 recognises Community Forest Resources (CFR) rights as a means to acknowledge the Adivasi notion of property. However, less than 1.5% percent of the CFR rights potential has been recognised, raising doubts over the Act’s efficacy. 

Additionally, Section 31 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 creates the statutory provisions for compensation when land is acquired for ‘public purpose’, not only to land owners but also other persons dependent on land for their livelihood. However, implementation remains dubious. The Act has also transformed the Adivasis’ right to land into a right to rehabilitation. However, this reimagination of the right to land is problematic as it ignores the special connection between Adivasis and their ancestral land which holds spiritual, cultural and ecological significance to them. Depriving Adivasis of their homes is not only a violation of their right to land but also their right to culture and identity as well. 

Supreme Court Decisions 

Judicial cognizance of Adivasi dispossession has resulted in several judgements upholding the rights of Adivasis to their land. In Lingapppa Pochanna vs State of Maharashtra 1984 where the constitutional validity of a statute that prohibits transfer of land by Adivasi owner to non-tribal transferee, the Court stated that: 

‘Alienation of tribal land cannot be prevented without depriving non-tribal landowners of the chance to enlarge their holdings’ 

The Court upheld the validity of the statute and held that the Adivasis need beneficial and welfare legislations to safeguard their interests and protect them from exploitation. It privileged the rights of the Adivasis to their ancestral lands over the rights of non-tribals to acquire these lands. Similarly, in the historic Samata judgement in 1997, the Supreme Court declared all the transfers of land in Scheduled areas for mining as void and reinforced the rights of Adivasi people as protected in Articles 21 and 46.

However, the rights of Adivasis do not always enjoy judicial protection. The Narmada Bachao Andolan case practically extinguished the rights envisaged in the Constitution and the Forest Rights Act. The Narmada Bachao Andolan (NBA) was a social movement that began in 1985 to demand the rehabilitation and resettlement of more than 250,000 Adivasis displaced by the construction of the Omkareshwar Dam. Ignored by the government, the NBA approached the judiciary. However, the Supreme Court adopted a narrow view of ‘property’ and ruled that the landless people who were displaced would not be entitled to land as part of the rehabilitation policy. In the struggle between Adivasi rights and economic development, the state’s interests trumped the Adivasis’ rights. 

The Court in the NBA case also showed restraint in judicial activism by citing the doctrine of separation of powers. It also held that public policy cannot be challenged through a Public Interest Litigation. This inevitably leads to the inference that unless the legislative policy and its execution reflect due recognition of Adivasi rights, the power of the Supreme Court to enforce these rights is limited. 

Relevance 

Development induced displacement and dispossession is a major threat to the lives and rights of Adivasi people. Though the Adivasis in Madhya Pradesh have passed a resolution against the Sheetaljhari dam proposal, whether it will deter the state is yet to be seen. Meanwhile, several thousands of Adivasis were displaced due to the Polavaram irrigation project in Andhra Pradesh. They were denied rehabilitation on frivolous grounds. The dam that has not yet been completed was recently allocated more funds in the Union Budget, yet the displaced population has not received relief. Project Tiger, which seeks to reserve forests for the conservation of tigers, is estimated to displace 550,000 Adivasis. The report assessing the damage to Adivasi livelihoods is titled ‘India’s Tiger Reserves: Tribals Get Out, Tourists Welcome’. The Great Nicobar Project, which is set to start construction in a few months, plans to build an international airport, a transshipment terminal, and a power plant on the Nicobar islands. The Tribal Council of Great Nicobar and Little Nicobar has expressed opposition due to concerns over displacement and dispossession of the Adivasis who currently live in isolation. 

In light of the multiple incidents of development induced displacement and dispossession, an understanding of the laws relating to these subjects is important to address the problem of balancing Adivasis’ right to land with the state’s interest in economic development.