Ordinance on Polavaram unconstitutional:Vanam Jwala Narasimha Rao

Ordinance on Polavaram unconstitutional

Vanam Jwala Narasimha Rao

The Hans India Daily (31-05-2014)

The Government of India under the pretext of constructing Polavaram Dam, in the process of paying compensation to the tribals whose lands are under threat of being submerged has gone to the extent of issuing an ordinance transferring seven Mandals in the tribal district of Khammam from Telangana to Andhra Pradesh. This is unconstitutional, undemocratic, anti-tribal and against the spirit of federalism. At a time when Parliament is about to meet in a week’s time resorting to bring an ordinance in such an hurried manner as if there are no important matters of public interest in front of Modi Government is ridiculous. Transferring of a tribal Village or a Mandal that has predominantly tribal land, from one authority to a different one amounts to violation of Supreme Court judgments and violation of 73^rd and 74^th Constitutional amendments. Without a Gramsabha resolution nothing in Scheduled area is constitutional. Transferring of tribal village is nothing but transferring of tribal land which again is unconstitutional. After all Government of India declared this as National Project and as such the compensation to the displaced tribals could be paid from central funds irrespective of the mandals are in Telangana or Andhra Pradesh.          

The tribal land has always been under the threat of being taken over by non-tribal industrialists not to speak of Governments, taking advantage of loopholes in the A.P. Scheduled Areas Land Transfer (Amendment) Regulation-I of 1970 Act. 

The Land Transfer Regulation I of 1970 had positively attempted to restore the land owned by non-tribal to tribal in Scheduled Areas. It introduced the presumptive clause, that, Land owned by a non-tribal in a Scheduled Area will be deemed as acquired from a tribal until the contrary is proved. The Regulation made it imperative that any non-tribal holding land in the Scheduled Area shall not transfer it to even any non-tribal including government. It stipulates, that, any transfer of immovable property situated in the agency tracts by a ‘person’, whether or not such a ‘person’ is member of a Scheduled Tribe, was absolutely null and void, unless such transfer is made in favor of a ‘person’, who is member of a Scheduled Tribe or a society, registered under the Cooperative Societies Act, 1964 which is composed solely of members of Scheduled Tribes. Another clause of the Regulation provided for the surrender of land in Scheduled Areas to the Government where the non-tribal or the tribal could not sell it to another tribal. The Government is obliged to acquire the land on payment of ‘appropriate compensation’. It also prohibited the transfer of land from a tribal to a non-tribal, and made it obligatory on the part of Government to eject the non-tribal and restore the land to the original tribal owner.

By virtue of legislative powers conferred on the Governor of the State under Article 244(I) read with Fifth Schedule to the Constitution of India, among the various protective measures undertaken by the Andhra Pradesh Government for the tribal welfare, notable to mention, was, Andhra Pradesh Scheduled Areas Land Transfer Regulation Act of 1959. Regulation I of this Act is the primary law for the protection of the rights of the tribal over their lands. The Regulation as it stood originally, prohibited alienation of lands by tribal to non-tribal unless prior written permission on sanction of the competent authority was obtained. That Regulation also empowered the Agent (Collector) to decree an ejectment against any non-tribal in possession of any land the transfer of which was made in contravention of its provisions and to restore such lands to the transferors or their heirs. Regulation II of 1963 later extended the Regulation, which was originally for the Andhra Area, to Scheduled Areas of Telangana also.

In the 1959 Act, the scope of the word ‘transfer’ was clarified to include “any other dealing with immovable property” and the definition of ‘immovable property’ was also enhanced to include “standing crops, timber and trees”. The word “Scheduled Tribe” was introduced in the Act, to include any tribe or tribal community notified as such by the President under Article 342 of the Constitution. Under the provisions of 1959 Regulation, though, transfer of immovable property by a member of Scheduled Tribe to a non-tribal was made null and void; it did have an exception clause, inferring ‘imposing certain restrictions only’. Difficulties were encountered by the implementing agencies of Government in ejectment procedures, in as much it was, not always easy for the authority concerned to ascertain as to how the non-tribal got the lands in their possession. This resulted in amending the Regulation I of 1959, in the year 1970 which is now popularly known as “One of 1970” even to an illiterate tribal and to all those who do not even know English alphabets. Needless to say, that, it touched the hearts of whole tribal community. 

After reviewing the Regulation I of 1970 and with a view to lessen the hardship of the Scheduled Tribes and probably to benefit them, an amendment was issued through Regulation I of 1971, enabling the tribal to mortgage without possession any immovable property to the cooperative society and other financial institutions for free flow of credit to them. Further amendment was made through Regulation I of 1978, which prohibited, registration of documents of land transfers in favor of non-tribal, and provided for a year’s rigorous imprisonment as well as monetary fine for acquiring the land after ejectment decree was passed. In 1979, another Government Order was issued exempting small non-tribal farmers owning five acres of wetland and ten acres of dry land from the provisions of Regulation I of 1970. The courts, however, stood by the Regulation and the Andhra Pradesh High Court struck down the 1979 Government Order in 1983. When the non-tribal agitated before the High Court and Supreme Court questioning the Constitutional validity of Regulation I of 1970, they were dismissed. The Judges of the Supreme Court observed, that, it was necessary to keep in view, the socio-economic context, in judging whether a Regulation was reasonable or not. They further observed, that, considering the fact, that, the tribal was cheated, exploited and outwitted by the unscrupulous non-tribal moneylenders, it was necessary that a ‘Regulation’ should exist to protect the tribal.

Yet another serious attempt was made in the year 1989, when the Government announced the decision to repeal Regulation I of 1970, but in vain. Several organizations and prominent personalities raised objections to the move. They told the Government that the implications of the repeal were far reaching. The attempts, as the news now reveal, would probably continue in some form or other as long as there is tribal land as long as non tribe’s eye is on that.

The passing of 1979 Government Order (with a Congress Government in office) and the move to repeal the Regulation in 1989 (with a Telugu Desam Government in office), was the result of consensus on the part of major if not all the then political parties. Unanimity marked the thinking of political parties with ‘agreed’ differences of ideology as that of Telugu Desam, Congress-I, both the Communists as well as the then Janata to go for repeal in 1989. Yet another significant fact during 1989 was absence of valid protest even from tribal leaders. As a matter of fact, the repeal was passed by the then ‘Tribal Advisory Council’ comprising tribal Legislators with a ‘Gond tribesman’ as its Chairman in his capacity as Minister for Tribal Welfare. The question that was frequently asked in many corners those days was how the vested interests could manage to get the support of the Communists too. The Communist Party of India-CPI, tried to justify its stand, on the ground to safeguard the interest of small landowners, many of whom belong to the weaker sections and have been occupying tribal areas for several generations. It all ended with Telugu Desam, Bharatiya Janata and Communist Party of India (Marxist) hastily convening a meeting and announcing that they had altered their stand and decided against repeal of the Regulation later.

The Regulation had generated considerable amount of land restoration activity in the tribal areas till 1979. According to the ‘Tribal Cultural Research and Training Institute’, the number of non tribal occupations in Scheduled Areas detected as prima-facie violating Land Transfer Regulation run in to several thousand and the extent of land in that was estimated to be several Lakhs of acres. A little over fourth of that extent could only be restored to tribal population. In fact the figures also revealed then, that, in couple of thousands of instances non-tribal could get favorable orders involving an extent of over a Lakh of acres. 

Against this backdrop once again there were moves to circumvent Land Transfer Regulation again and again. Truth apart, it is time now, to look in to the various aspects of Supreme Court Judgment dated July 11, 1997 in the Public Interest Litigation on the Andhra Pradesh Scheduled Area Land Transfer Regulation Act 1959. The Division Bench consisted of Justice K. Ramaswamy, Justice S. Sagir Ahmed and Justice G.B. Patnaik. The Judgment made it very clear; that, the word ‘person’ would include the State government and as such transfer of land in Scheduled Area by way of lease, for mining purpose in favor of non-tribal stands prohibited. The Government also stands prohibited to transfer the mining leases to corporation aggregate etc except to its instrumentality says the Judgment. This can also be interpreted as prohibiting transfer of tribal area from state to state against the interests of tribals as is done now through this ordinance.

At one point of time the then President of India announced, that, a “Committee of Governors” would be formed to look into the serious inadequacies in the implementation of programs for the welfare of Scheduled Castes and Scheduled Tribes. The Supreme Court judgment also came out with several recommendations and what was the follow-up from the state and central governments subsequently is not known.

Against this background how can Government of India attempt to issue an ordinance transferring tribal Mandals consisting of tribal lands from Telangana to Andhra Pradesh? TRS Chief K Chandrasekhar Rao is right in calling for Bandh protesting against ordinance. END