Earlier this year the Orissa Government amended relevant rules to make the law more stringent in protecting the lands of tribals and ensuring that these could not be transferred to non-tribals in the Scheduled areas of the state. Under the new rules, no tribal can transfer his land to a non-tribal or even to another tribal if he possesses less than two acres of irrigated land or less than five acres of un-irrigated land. Violations of the rules entail severe penal consequences including extended jail terms. This legislative decision must be seen in context.

The decision is another addition to a bevy of national and state laws that have been passed from time to time with the objective of protecting the interest of tribals in their lands. In particular, the prohibition of transfer of land from tribals to non-tribals has been included in various Land Revenue Codes and Land Regulations and Acts passed by different states.

However, despite this categorical legal imperative, land alienation of the tribals persists, and in large areas of the country it is now endemic. Official figures show that every year the number of landless in the country increases by two million. A well known study, relied upon by the a Steering Committee of the Planning Commission for the Tenth Five Year Plan, points out that in four disticts Dhenkanal, Ganjam, Koraput and Phulbani in Orissa about 56 percent of the total tribal land was lost to non-tribals over a 25-30 year period. Indeed in making the new rules Orissa recognizes the increasing landlesseness amongst the tribals in the state.

However, new laws do not mean quick remedies. With the mandate of finding a lasting solution to the vexed problem of tribal land alienation and consequent indebtedness, various Commissions and Committees were appointed in the past. Indeed, some of the legislative and judicial measures suggested were radical and far-reaching. These include, among others: ousting the jurisdiction of civil courts in cases of eviction of Scheduled Tribes, suspending the operation of the Limitation Act in cases of dispute relating to the tribal land, separate legislation for the conferment of the ownership rights, provisions in all civil suits involving tribal land for making the government a party and empowering it to give and rebut evidence, banning transfers of tribal land to non-tribals in all states and Union Territories, amending the law of evidence to place oral evidence on a higher pedestal, and establishing special courts for prompt disposal of land alienation cases.

However, the continuance of the problem is a reflection of the fact that the recommendations of the various committees address only the symptoms of the problem and not their roots. In fact, the wide array of reforms suggested in law indicate a crying need to dislodge some entrenched legal principles and practices. This can easily be seen in the recommendations suggesting absolute departure from some fundamental laws that animate the Indian legal system. The sweeping nature of the various recommendations makes it clear that the questions and concerns of the tribals demand a separate legal framework supported by alternative premises in jurisprudence.

One such premise that begs a change is the pervasive applicability and use of the doctrine of Eminent Domain. The doctrine empowered the State to take property for the public use without the owner's consent. By making the sovereign right over the resources absolute, while not demarcating the contours of "public use", the principle promised an easy way to provide blanket legal sanctity. The Concept provided the legal justification for an entirely expedient political process that had progressively deprived the tribal of his land in the colonial era. British rule and subsequent sub preposition of laws dictated by the needs of colonialism led to the tribals being deprived of their natural rights over land and other resources. Though a carefully orchestrated political process that gave birth to a new intermediary class of land-lords/Zamindars, the customary rights of tribal communities in respect of land and land-based resources were derecognised. Through Eminent Domain, thus, the lands of the tribals were converted into public lands owned by the state on which the rights to access and usufructory rights where granted as privileges given by the state sovereign.

Through Eminent Domain, the lands of the tribals were converted into public lands owned by the state on which the rights to access and usufructory rights where granted as privileges given by the state sovereign.
Following the attainment of political freedom, intervention by the Courts has tried to blunt the sharp edges of the eminent domain by incorporating and developing the right to adequate compensation for any acquisition of land. However, the basic problem remained even after independence; the elements that had legitimised the colonial legal regime were retained in the legal system.

The fact that the legal basis of eminent domain is inapplicable in the social system of tribals was tacitly acknowledged by the report of Scheduled Areas and Scheduled Tribes Commission (Dhebar Commission) way back in 1961. The Commission had clearly recommended that "all surrenders (of tribal lands) must only be to the state, which should hold the surrendered land as a trustee for tribals. Once it is understood that the state is not the owner but the trustee under legal duty to protect the natural resources, the state sovereign would be precluded of the land without the owners' free and informed consent. However, as long as the communal rights of the tribals are not identified, recognised and respected it will be impossible to hold the State accountable as a trustee, and for breach of trust.

The provisions of the Panchayat (Extension To The Scheduled Areas) Act 1996 deserves special mention in this context. The Act specifically empowers the Gram Sabha and the the Panchayat to "prevent alienation of land in the scheduled areas and to an appropriate action to restore any unlawfully alienated land of scheduled tribes." Further, the Act also provides that the gram Sabha or the Panchayats shall be consulted before making the acquisition of the land in the scheduled areas for various public purposes. A host of other powers of control over the local natural resources are vested with the Gram Sabha.

The provisions in this law have however remained paper tigers. The Planning Commission itself recognizes that while the law "enables tribal society to assume control over…natural resources including land" the law has remained only on paper and has not been operatinalised by the State Governments. I was myself part of an intensive national level study on Panchayat Laws in Tribal Areas for the Ministry of Rural Development; one of our main conclusions was that the awareness among tribals of the 1996 law was negligible. People do not know about the law simply because the operational law doesn't exist!

My experience in the study - and elsewhere - has offered two important lessons. One, that legislating protective laws for tribals is not the end but a beginning. The law can work for tribals only if we work on the law. The point makes sense in an under-administered and over-regulated country. In Orissa, even as the new Rules are being framed, there are positive news reports suggesting that stringent administrative actions are checking land alienation. (The Pioneer, February 6th 2003). The second lesson however, is equally important, if not more so. The new law and rules need to be taken out of the books and on to the ground. If, unlike legal action, legal education can reach the tribals, the very law that is a bludgeon against them today could be an instrument of justice for them tomorrow.