The vulnerability of the tribal communities in India, as in anywhere on the earth, need not be overemphasised. In order to protect the interest of tribal people, the Constitution of India, under Schedule V, provides for special protection of tribal land in scheduled areas. Each state has its own law under this provision. In Orissa, the law is known as Orissa Scheduled Areas Transfer of Immovable Property Regulation, 1956 (OSATIP, 1956), and is supposed to protect land belonging to tribals. This law, however, failed in checking the transfer of tribal lands to non-tribals. The BJD-BJP coalition government (also the current coalition in power in Orissa) amended the law in 2002 and this made it comparatively effective.

The issue has assumed significance as all corporate eyes are on Orissa due to its huge reserves of natural resources, which are mostly situated in tribal-inhabited areas.

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There is now yet another proposal of the state government to amend the law. This new amendment, which would facilitate the easy selling of tribal land to non-tribals, however, hints at something more. Ignoring the widespread protest by the tribals and civil society organisations in the area, the government plans to go ahead with its amendment. Considering that this would clearly amount to the subversion of the constitutional provisions, the government's move is being questioned by concerned citizens and the public at large. The issue has assumed significance as all corporate eyes are on Orissa due to its huge reserves of natural resources, which are mostly situated in tribal-inhabited areas.

The journey of OSATIP, 1956

The land in scheduled areas may be categorised broadly as two types - Patta land and non-Patta or government land - for the understanding of the purview of OSATIP Regulation. The Patta lands are the private lands of the tribals, on which the tribal people possess the government record of ownership (Patta). The other category of land is owned by the government or by non-tribals, though they are customarily used by the tribals; unfortunately OSATIP does not provide any protection for this land. It concerns itself only with the private Patta land. Even in case of Patta land, the law permitted (before 2002 amendment) transfer under certain conditionalities.

Since the law never addressed the critical issue of the need for recognition of customary tribal rights on land and was weak in addressing the transfer of even the Patta land to non-tribals, large-scale alienation of tribal land took place after independence, both by the state government and by non-tribals. Large areas of land customarily claimed by scheduled tribes were categorised as forest land or revenue land through survey and settlements and forest declaration. So much so that at present, 84 per cent of the land area in scheduled districts either belongs to the government or to non-tribals, according to information compiled from district statistical handbooks. Due to insufficiency of legal protection, the government also merrily transferred huge tracts of such land to various mining and industrial companies as well as non-tribal individuals. This, in itself, is unconstitutional and has led to massive resentment and anger amongst the tribal people.

In contrast to OSATIP, under the Andhra Pradesh law, no land - whether government land or private land - in scheduled areas can be transferred to non-tribals.

As has already been mentioned, OSATIP proved to be insufficient even in protection of the paltry 16 per cent of the land in scheduled areas on which tribals have ownership rights. The law permitted transfer of Patta land from tribals to non-tribals after obtaining permission from the mandatory authority, but in such transactions, manipulation was high, and innocent tribals often lost their land in dubious transfers.

Following protests against such practices, a progressive amendment was brought about in 2002 in the OSATIP Regulation, 1956. This amendment: (a) completely banned transfer of Patta land by tribals to non-tribals, and (b) laid down the provision that all non-tribals owning lands originally owned by tribals have to submit evidence within a year that they had acquired the land by legal means, otherwise such land would revert back to the original tribal owner and the illegal land grabber would be fined and imprisoned.

It is exactly these amendments that are sought to be overturned by the government in the proposed amendment. The reason being given for this is that tribals who want to sell their land for meeting emergency needs or capital needs are unable to do so. In view of unavailability of credit from formal sources in the tribal areas, the proponents of this amendment claim that land sale becomes one of the important ways to raise immediate cash – precisely the mechanism through which large areas of tribal Patta lands have been lost in the past. Supporters of reversing the amendment seem to include many powerful people including politicians, industrialists etc.

For instance, it has been alleged in the petition filed in Supreme Court against Vedanta Alumina Limited, which is setting up an alumina refinery at Langigarh in the Kalahandi district that the company has taken over the private land illegally for which neither acquisition notice was served nor compensation was paid. In case of Nepaz Adhunik Metalics Sponge Factory in Kuwarmunda of Sundergarh district, the state has acquired private land even when the Gram Sabha had rejected the proposal when it was consulted. The local people allege that many sponge iron industries like Nepaz Adhunik Metalics Sponge Factory, Scan Steel Ltd, Sri Jaibalaji Pvt. Ltd. and others have illegally taken over the Patta land of the tribals there, precisely what the 2002 amendment outlawed.

One 11 December, the Times of India's Bhubaneswar edition carried the news that four high-ranking officers -- Raghunath Pradhan, Harihar Sahoo, Nirmal Nayak, Daniel Ekka - had allegedly fraudulently acquired land of tribals in Rengali Tehsil of Sambalpur district where notification for setting up of an aluminum industry was issued. The TOI also quoted an unnamed official as saying that the four officials purchased land at cheap rates and stood to gain over three lakh rupees per acre when a government development corporation would acquire the land. Similar allegations are also in air that many influential politicians have acquired acres of land in Kalinga Nagar - the steel hub of the state, and stand to gain from the same in future. Hence, the strong suggestion that the government's intention may be something other than enabling tribals to get easy credit cannot be ignored.

There are ways out

The problem of land sale to obtain money, faced by a miniscule proportion of tribals (those who have large chunks of landed property and want to sell it) could be addressed using a 'tribal land purchase and distribution' scheme. The government could purchase the land from those tribals who want to sell it at existing market prices and then distribute such land to the tribal landless who form more than 50 per cent of tribal households. Funds are available with the government schemes and institutions like Orissa State SCs/STs Finance and Development Corporation, for entrepreneurship development and welfare among tribals, and these funds could be used for a land bank scheme. This solution will be in line with the constitutional protection to scheduled tribes and will obviate any need for amendment in the OSATIP Regulation, 1956.

Learning lessons from the continuous resistance of the tribal people in the state, the government should stop playing into the hands of vested interests. It should bring about a progressive legislation in order to completely debar the transfer of tribal lands to non-tribals in scheduled areas (similar to the Andhra model where no land in scheduled areas can be transferred to non-tribals). The Governor, being the constitutional protector of the tribals, should take serious note of the developments. After all, nobody wants repetition of events like those at Kalinga Nagar (the declared steel hub of the state where 12 tribal people had been killed in police firing in January 2006) or at Maikanch (in Kashipur block of Raygada district of the state, where four tribals had been killed in police firing in 2000).

The government should take all possible steps for the settlement of customary owned land with the tribals; resolve the massive displacement suffered by tribals and ensure punishment of those who have violated OSATIP, 1956 and in extension, the Constitution of India. As far as acquisition of land by corporate houses is concerned, it could be decided in the Palli Sabha meetings in scheduled areas, where land owners could democratically accept or reject the proposal. Palli Sabha is a body of adult members of a revenue village, which meets on a regular basis, usually once in six months, to discuss welfare schemes and make recommendations to the Gram Sabha for approval.