By Suvanssh Mahajan
Introduction
In a recent editorial, prominent Indian economist Swaminathan Aiyar voiced his disappointment with Medha Patkar and other critics’ steadfast opposition to the Sardar Sarovar Dam. Based on a study conducted by Mr. Aiyar along with fellow economist Neeraj Kaushal on the living conditions of resettled tribals who had been displaced en masse by the project, he argued that the critics of the project had been proven wrong as the resettled tribals are “far better off” than before in terms of, inter alia, land ownership, tractors, cellphones, motorcycles, and access to schools and hospitals. The statistic he ignored, however, was the 54% of tribals who wished they would rather be back in the forest. This shows that Adivasis share an inextricable and important link with the land they live(d) on – maybe, material goods are not everything for them.
In this essay, I argue that the colonial doctrine of eminent domain and the idea of the “sovereign state”, which is utilized to take over private property, run counter to and disrupt Adivasi concepts of ownership, despite legal and constitutional safeguards created for the latter. I contend that there is a dire need for post-colonial India to give due consideration to and internalize pluralistic outlooks in how property and ownership are perceived.
The term “Adivasi”, meaning “original inhabitants”, was coined to forge unity amongst the many different groups of people who consider themselves descendants of the first people who dwelled on the Indian mainland before the arrival of the Aryans. They comprise close to 8% of the population and are extremely heterogeneous in composition, structure, and social practices. Most Adivasi populations are recognized as Scheduled Tribes (hereafter “STs”) under the Constitution, implying the need for special protections for them as socially and culturally distinct communities.
One of the most important ideas linking Adivasi populations across the nation is the inextricable link between indigeneity and territoriality. It has been postulated that land is not just a transferable asset but has a life of its own—people generally consider land as defining identity, and sometimes as a divine entity too, indicating plural ways of how we perceive land. An example of this is the invocation of land as “mother”. This concept of land as being intertwined with socio-cultural and religious identity in a symbiotic relationship finds itself expressed most clearly in how Adivasis interact with property, particularly the land they live on (and live off). The way people generally tend to view the property today, in its most commodified sense, vastly differs from how Adivasis perceive it: for them, land forms a “material and symbolic substratum” for their socio-cultural existence. They do rely on land and resources derived from it for economic subsistence (the importance of which is mostly a function of a hegemonic imposition of capitalism), but their identity is contingent upon the territory they occupy. Spiritual and religious connections with their property and land—extending across generations—are almost inseparable from each other and tend to overshadow their economic importance, leading to them valuing their ancestral land with their lives.
This special link with the land and “property” naturally extends to ideas of ownership as well. Adivasis view ownership over their occupied territory in a close to autonomous and absolute nature. This, however, does not imply an individualized and compartmentalized sense of “owning” property conceived in the liberal imagination, but much broader than it. Land – particularly forests – and everything associated with it is considered common or communal property, owned and utilized collectively and carefully guarded against intrusion by exterior forces. For example, consider the Mundari Khuntkattidar community, which resides in the Chotanagpur area in Chhattisgarh. Regarded as the “original settlers” of the land they reside upon, they own all land within their arena collectively according to their customary laws with no individual rights held by anyone. Moreover, they consider the land they own as held in their own name and not under the state, guarding heavily against intrusion not just by other self-cultivators (raiyats) residing in the area but also by the state itself. Community rights in land extend to, inter alia, uncultivated lands, such as forests and so-called “wastelands” and community land put to specific socio-cultural and spiritual uses.
Thus, ownership acquires its truest “exclusionary” sense when it comes to Adivasis. Their claims to the property they “own” is not in the form of land titles but as fluid, experienced, and historically exercised control over land and resources.
There are two facets to the legal and constitutional regime in India with respect to the property today which need brief elucidation here – firstly, the concept of the “sovereign state” and private property held by people under it, and secondly, the special recognition given to Adivasis as ST’s and their ownership rights over the territory they live on.
Article 300A of the Indian Constitution recognizes the constitutional and legal right to property by protecting people from its deprivation except by “authority of law”. It embodies the colonial doctrine of eminent domain, which posits the state as “sovereign” and thus gives it an “inherent right” to expropriate anyone’s private property without their consent. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereafter “LARR”), which replaced the Land Acquisition Act, 1894 as the primary legal instrument for land acquisition in the country, re-institutionalizes the requirement of “just and fair compensation” and also defines “public purpose” which were originally constitutionally guaranteed protections against state impunity in the taking over of the private property. However, it still does not obviate eminent domain as a core principle underlying the latter.
Simultaneously, the Constitution also recognizes the responsibility of the state to ensure the protection of the “economic interests” of the ST’s, including protection from social injustice and exploitation.
In light of the same, the Fifth and Sixth Schedules to the Constitution prescribe special provisions for the administration and control of ST’s and Scheduled Areas (hereafter “SAs”) linked to them as declared by the President.
The legal protection of Adivasi ownership rights today comprises a three-spoked umbrella of legislations – the Panchayats (Extension to the Scheduled Areas) Act, 1996 (hereafter “PESA”), the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereafter “FRA”), and the LARR. Elaborating all provisions here would not be possible, but they essentially recognize forest and community rights of Adivasis residing within SA’s and vest the recognition of the same and the responsibility of their protection in the Gram Sabhas, and Panchayats established there. They also provide special rehabilitation, resettlement, and compensation standards for ST’s and communities residing within SA’s across a spectrum of provisions.
One would expect this umbrella of laws to ensure an active realization of ownership rights on the ground, but the historic injustice faced by Adivasis in the colonial era continues even in today’s constitutional regime. The state’s ability to expropriate their land with ease continues despite several judicial pronouncements recognizing Adivasi ownership rights in land, property, and benefits arising from land vis-à-vis state and private impunity. The core reason for this lies in the way in which property and ownership rights have been generally articulated in India’s liberal constitutional regime.
There are three pillars I consider important within this articulation. One pillar is the continuation of the doctrine of eminent domain implicit in not just the Constitution, but larger public consciousness as well.
The idea of eminent domain was based upon colonial notions of British sovereignty that firstly did not devolve from the people and secondly ignored customary law and local relations with property and land; however, the concept was carried over even into a post-colonial, independent, and constitutional India.
The second pillar is the notion that in a liberal state, ownership must have prima facie positive economic consequences, which follows the Lockean understanding of ownership by value addition.
Thus, private property and its legitimate existence are rendered contingent upon its “economically beneficial” use. From this beneficial use also comes the assumption that rights in property can be bundled and unbundled with ease, including the right to ownership and the right to use land.
The third pillar is the co-existence of the developmental welfare state and the investor-friendly state to invite private investment and resource extraction, which disproportionately impacts Adivasis due to them being concentrated in forest and mineral-rich areas.
In all of this, we find little emphasis and recognition of the different ways in which people and communities might hold and perceive property and its ownership.
The problem, therefore, lies in the fact that the doctrine of eminent domain, embodied within Article 300A, tends to overshadow even constitutional and legal protections of ownership rights of Adivasis. This overshadowing takes the form of bureaucratic fiat and enormous powers given to (or taken up by) local forest and police departments which allows them to not just dispossess Adivasis of their land but also suppress any protests against it. Since ownership becomes a legal right created as well as granted through administrative procedures due to the posited “sovereignty of the state”, the determination of what constitutes rightful ownership becomes contingent on how the state defines it. Utilising the same, communal property used and benefitted from collectively by Adivasis for economic as well as non-economic purposes, is presented as a “wasteland”, and the uses to which it is put as “primitive” and “wasteful”.
This is facilitated by the fact that they do not hold pattas or legal titles to the land but exercise oral historical claims to the land which aren’t considered legitimate by state devices, which allows the state to declare such land as terra nullius and assert sovereign ownership over it.
This directly suppresses the Adivasis’ autonomous exercise of ownership rights over the territory they have lived on for longer than anyone can remember.
Given the intangible link between Adivasis and their land, the property cannot always be assumed to be fungible or exchangeable. If one unbundles rights in property and then tries to re-bundle them to give them back, it does not necessarily restore the right in the same sense for the aggrieved communities as the land might’ve lost its original importance and communal nature. Taking away the right to ownership (settler rights) and giving Adivasis just user rights runs counter to the composite and holistic nature of the ownership and right to use land in the latter’s perception. Rehabilitating ST’s in another location, even within the same Scheduled Area, does not guarantee retention of their “ethnic, linguistic and cultural identity”, which, as already established, is inextricably intertwined with the territory they originally reside in.
Providing “just and fair” compensation for the acquired land can never possibly be analogous to the loss of identity and economic subsistence suffered by the Adivasis.
Compensation, moreover, assumes a singular entity to whom compensation can be paid—it does not contemplate communally held property whose use and benefits are dispersed and differential.
It is clear that the postcolonial Indian state needs to immediately rethink its narrow conception of property and ownership and reanalyze the need for colonial constructs of property and land vis-à-vis the Adivasis. The doctrine of eminent domain must be replaced with something much more appropriate to the 21st-century welfare state—particularly, ways of acknowledging people’s (including the Adivasis’) socio-cultural and identity-based links with land and property that define their understanding of ownership which might not always devolve from the state. There have been some attempts at this, particularly in the requirement for the consent of affected people before the acquisition, but this is considerably insufficient. Adivasi self-identity cannot be rendered a simple statistic that can be sacrificed with ease at the altar of rehabilitation and material compensation. Adivasi autonomy and their interests must be given categorical primacy before any development program to ensure their ownership rights and unique relationships with land and property are prevented from being steamrolled over by arbitrary acquisitions. Only then will Adivasis cease to be seen as anomalies and find their own voice in the constant commotion of homogenization and the bulldozing of individual and group identity.
The author, Suvanssh Mahajan, is an undergraduate law student at National Law School of India University(NLSIU), Bangalore.
S.S.A. Aiyar, Medha Patkar was wrong on Narmada project. Will she apologise?, The Times of India (03/09/2022), available at , last seen on 12/11/2022.
[2]Ibid.
A. Raj, A Study of the Land Rights of Adivasis in India, 3 International Journal of Law Management & Humanities 1070, 1070-1 (2020).
R. Mandal & S. Chandrasekhar, Examining Violation of Adivasi Land Rights by the Mining Industry – A Case for Crossing the Fence from Anthropocentric to Ecocentric Paradigms, 6(2) NLIU Law Review 244, 252-3 (2017).
Arts. 342 and 366(25), the Constitution of India.
C. Upadhyay, Law, Custom, and Adivasi Identity: Politics of Land Rights in Chotanagpur, 30, 48 in Nandini Sundar (ed), Legal Grounds: Natural Resources, Identity, and the Law in Jharkhand (Nandini Sundar, 1st ed., 2009).
P.S. Gupta, The Peculiar Circumstances of Eminent Domain in India, 49 Osgoode Hall L J 445, 474-5 (2012).
N. Sud, The Making of Land and the Making of India, 5, 29 (1st ed., 2021).
Supra 6, at 30.
Supra 4, at 252-3.
Ibid.
Supra 6, at 30.
Ibid.
Ibid, at 34-5.
Ibid, at35.
Ibid, at 37.
Ibid, at 39-40.
Suresh M., Adivasis and Land: The Story of Postcolonial Development in Kerala, 55(30) Economic and Political Weekly 48, 52 (2020).
Art. 300A, the Constitution of India.
Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat, 1995 Supp (1) SCC 596.
Preamble & S. 2, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Art. 46, the Constitution of India.
Ibid, at Schedule 5, para 4, 5, 6.
Ss. 4(d), (i) & (m), The Panchayats (Extension to the Scheduled Areas) Act, 1996; Ss. 3, 4 & 6, The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; Supra, 21 at S. 41.
Supra 4, at 248.
Mahanadi Coalfields Ltd. and Anr. v. Mathias Oram and Ors., (2010) 11 SCC 269; Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors., (2013) 6 SCC 476; Samatha v. State of A.P. and Ors., (1997) 8 SCC 191.
Supra 7.
Ibid, at 454-5.
Supra 18, at 52.
Ibid, at 50.
R. Bhattacharya, S. Bhattacharya and K. Gill, The Adivasi Land Question in the Neoliberal Era, 176, 176 in The Land Question in India: State, Dispossession, and Capitalist Transition (A.P. D’Costa & A. Chakraborty, 1st ed., 2017).
A.G. Nilsen, Adivasis in and against the State: Subaltern Politics and State Power in Contemporary India, 44(2) Critical Asian Studies 251, 260-1 (2012).
Supra 18, at 52.
Supra 4, at 250 & 256.
Supra 7, at 475.
Supra 18, at 50.
Supra 21 at S. 41(7).
Ibid, at Ss. 41(6) & 41(11).
Introduction
In a recent editorial, prominent Indian economist Swaminathan Aiyar voiced his disappointment with Medha Patkar and other critics’ steadfast opposition to the Sardar Sarovar Dam. Based on a study conducted by Mr. Aiyar along with fellow economist Neeraj Kaushal on the living conditions of resettled tribals who had been displaced en masse by the project, he argued that the critics of the project had been proven wrong as the resettled tribals are “far better off” than before in terms of, inter alia, land ownership, tractors, cellphones, motorcycles, and access to schools and hospitals. The statistic he ignored, however, was the 54% of tribals who wished they would rather be back in the forest. This shows that Adivasis share an inextricable and important link with the land they live(d) on – maybe, material goods are not everything for them.
In this essay, I argue that the colonial doctrine of eminent domain and the idea of the “sovereign state”, which is utilized to take over private property, run counter to and disrupt Adivasi concepts of ownership, despite legal and constitutional safeguards created for the latter. I contend that there is a dire need for post-colonial India to give due consideration to and internalize pluralistic outlooks in how property and ownership are perceived.
Indigenous people and their perception of Ownership
The term “Adivasi”, meaning “original inhabitants”, was coined to forge unity amongst the many different groups of people who consider themselves descendants of the first people who dwelled on the Indian mainland before the arrival of the Aryans. They comprise close to 8% of the population and are extremely heterogeneous in composition, structure, and social practices. Most Adivasi populations are recognized as Scheduled Tribes (hereafter “STs”) under the Constitution, implying the need for special protections for them as socially and culturally distinct communities.
One of the most important ideas linking Adivasi populations across the nation is the inextricable link between indigeneity and territoriality. It has been postulated that land is not just a transferable asset but has a life of its own—people generally consider land as defining identity, and sometimes as a divine entity too, indicating plural ways of how we perceive land. An example of this is the invocation of land as “mother”. This concept of land as being intertwined with socio-cultural and religious identity in a symbiotic relationship finds itself expressed most clearly in how Adivasis interact with property, particularly the land they live on (and live off). The way people generally tend to view the property today, in its most commodified sense, vastly differs from how Adivasis perceive it: for them, land forms a “material and symbolic substratum” for their socio-cultural existence. They do rely on land and resources derived from it for economic subsistence (the importance of which is mostly a function of a hegemonic imposition of capitalism), but their identity is contingent upon the territory they occupy. Spiritual and religious connections with their property and land—extending across generations—are almost inseparable from each other and tend to overshadow their economic importance, leading to them valuing their ancestral land with their lives.
This special link with the land and “property” naturally extends to ideas of ownership as well. Adivasis view ownership over their occupied territory in a close to autonomous and absolute nature. This, however, does not imply an individualized and compartmentalized sense of “owning” property conceived in the liberal imagination, but much broader than it. Land – particularly forests – and everything associated with it is considered common or communal property, owned and utilized collectively and carefully guarded against intrusion by exterior forces. For example, consider the Mundari Khuntkattidar community, which resides in the Chotanagpur area in Chhattisgarh. Regarded as the “original settlers” of the land they reside upon, they own all land within their arena collectively according to their customary laws with no individual rights held by anyone. Moreover, they consider the land they own as held in their own name and not under the state, guarding heavily against intrusion not just by other self-cultivators (raiyats) residing in the area but also by the state itself. Community rights in land extend to, inter alia, uncultivated lands, such as forests and so-called “wastelands” and community land put to specific socio-cultural and spiritual uses.
Thus, ownership acquires its truest “exclusionary” sense when it comes to Adivasis. Their claims to the property they “own” is not in the form of land titles but as fluid, experienced, and historically exercised control over land and resources.
Ownership, Land Laws and the Constitutional Vision
There are two facets to the legal and constitutional regime in India with respect to the property today which need brief elucidation here – firstly, the concept of the “sovereign state” and private property held by people under it, and secondly, the special recognition given to Adivasis as ST
Article 300A of the Indian Constitution recognizes the constitutional and legal right to property by protecting people from its deprivation except by “authority of law”. It embodies the colonial doctrine of eminent domain, which posits the state as “sovereign” and thus gives it an “inherent right” to expropriate anyone’s private property without their consent. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereafter “LARR”), which replaced the Land Acquisition Act, 1894 as the primary legal instrument for land acquisition in the country, re-institutionalizes the requirement of “just and fair compensation” and also defines “public purpose” which were originally constitutionally guaranteed protections against state impunity in the taking over of the private property. However, it still does not obviate eminent domain as a core principle underlying the latter.
Simultaneously, the Constitution also recognizes the responsibility of the state to ensure the protection of the “economic interests” of the ST
Contact and Conflict
One would expect this umbrella of laws to ensure an active realization of ownership rights on the ground, but the historic injustice faced by Adivasis in the colonial era continues even in today’s constitutional regime. The state’s ability to expropriate their land with ease continues despite several judicial pronouncements recognizing Adivasi ownership rights in land, property, and benefits arising from land vis-à-vis state and private impunity. The core reason for this lies in the way in which property and ownership rights have been generally articulated in India’s liberal constitutional regime.
There are three pillars I consider important within this articulation. One pillar is the continuation of the doctrine of eminent domain implicit in not just the Constitution
The problem, therefore, lies in the fact that the doctrine of eminent domain, embodied within Article 300A, tends to overshadow even constitutional and legal protections of ownership rights of Adivasis. This overshadowing takes the form of bureaucratic fiat and enormous powers given to (or taken up by) local forest and police departments which allows them to not just dispossess Adivasis of their land but also suppress any protests against it. Since ownership becomes a legal right created as well as granted through administrative procedures due to the posited “sovereignty of the state”, the determination of what constitutes rightful ownership becomes contingent on how the state defines it. Utilising the same, communal property used and benefi
Given the intangible link between Adivasis and their land, the property cannot always be assumed to be fungible or exchangeable. If one unbundles rights in property and then tries to re-bundle them to give them back, it does not necessarily restore the right in the same sense for the aggrieved communities as the land might’ve lost its original importance and communal nature. Taking away the right to ownership (settler rights) and giving Adivasis just user rights runs counter to the composite and holistic nature of the ownership and right to use land in the latter’s perception. Rehabilitating ST
Conclusion
It is clear that the postcolonial Indian state needs to immediately rethink its narrow conception of property and ownership and reanalyze the need for colonial constructs of property and land vis-à-vis the Adivasis. The doctrine of eminent domain must be replaced with something much more appropriate to the 21st-century welfare state—particularly, ways of acknowledging people’s (including the Adivasis’) socio-cultural and identity-based links with land and property that define their understanding of ownership which might not always devolve from the state. There have been some attempts at this, particularly in the requirement for the consent of affected people before the acquisition, but this is considerably insufficient. Adivasi self-identity cannot be rendered a simple statistic that can be sacrificed with ease at the altar of rehabilitation and material compensation. Adivasi autonomy and their interests must be given categorical primacy before any development program to ensure their ownership rights and unique relationships with land and property are prevented from being steamrolled over by arbitrary acquisitions. Only then will Adivasis cease to be seen as anomalies and find their own voice in the constant commotion of homogenization and the bulldozing of individual and group identity.
The author, Suvanssh Mahajan, is an undergraduate law student at National Law School of India University(NLSIU), Bangalore.
S.S.A. Aiyar, Medha Patkar was wrong on Narmada project. Will she apologise?, The Times of India (03/09/2022), available at , last seen on 12/11/2022.
[2]Ibid.
A. Raj, A Study of the Land Rights of Adivasis in India, 3 International Journal of Law Management & Humanities 1070, 1070-1 (2020).
R. Mandal & S. Chandrasekhar, Examining Violation of Adivasi Land Rights by the Mining Industry – A Case for Crossing the Fence from Anthropocentric to Ecocentric Paradigms, 6(2) NLIU Law Review 244, 252-3 (2017).
Arts. 342 and 366(25), the Constitution of India.
C. Upadhyay, Law, Custom, and Adivasi Identity: Politics of Land Rights in Chotanagpur, 30, 48 in Nandini Sundar (ed), Legal Grounds: Natural Resources, Identity, and the Law in Jharkhand (Nandini Sundar, 1st ed., 2009).
P.S. Gupta, The Peculiar Circumstances of Eminent Domain in India, 49 Osgoode Hall L J 445, 474-5 (2012).
N. Sud, The Making of Land and the Making of India, 5, 29 (1st ed., 2021).
Supra 6, at 30.
Supra 4, at 252-3.
Ibid.
Supra 6, at 30.
Ibid.
Ibid, at 34-5.
Ibid, at35.
Ibid, at 37.
Ibid, at 39-40.
Suresh M., Adivasis and Land: The Story of Postcolonial Development in Kerala, 55(30) Economic and Political Weekly 48, 52 (2020).
Art. 300A, the Constitution of India.
Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat, 1995 Supp (1) SCC 596.
Preamble & S. 2, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Art. 46, the Constitution of India.
Ibid, at Schedule 5, para 4, 5, 6.
Ss. 4(d), (i) & (m), The Panchayats (Extension to the Scheduled Areas) Act, 1996; Ss. 3, 4 & 6, The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; Supra, 21 at S. 41.
Supra 4, at 248.
Mahanadi Coalfields Ltd. and Anr. v. Mathias Oram and Ors., (2010) 11 SCC 269; Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors., (2013) 6 SCC 476; Samatha v. State of A.P. and Ors., (1997) 8 SCC 191.
Supra 7.
Ibid, at 454-5.
Supra 18, at 52.
Ibid, at 50.
R. Bhattacharya, S. Bhattacharya and K. Gill, The Adivasi Land Question in the Neoliberal Era, 176, 176 in The Land Question in India: State, Dispossession, and Capitalist Transition (A.P. D’Costa & A. Chakraborty, 1st ed., 2017).
A.G. Nilsen, Adivasis in and against the State: Subaltern Politics and State Power in Contemporary India, 44(2) Critical Asian Studies 251, 260-1 (2012).
Supra 18, at 52.
Supra 4, at 250 & 256.
Supra 7, at 475.
Supra 18, at 50.
Supra 21 at S. 41(7).
Ibid, at Ss. 41(6) & 41(11).