Water Rights Project and Effects of Rights & Law Project
Fellow at Centre for Policy Research
Namita Wahi is a fellow at Centre for Policy Research, where she is the Indian coordinator for the Centre of Law and Social Transformation based on “Land Rights, Environment Protection and Inclusive, Development in India”. Namita holds an S.J.D. (doctoral) degree from Harvard Law School, where she wrote her dissertation on “The Right to Property and Economic Development in India”. Her doctoral dissertation traces the historical evolution of the right to property in the Indian Constitution from the colonial period until 1967. Her research interests are broadly in the areas of property rights, social and economic rights, and eminent domain or expropriation law.
Recent reports(march, 2018):
The Legal Regime and Political Economy of Land Rights Of Scheduled Tribes in the Scheduled Areas of India, By Wahi and Bhatia.
India holds the unique distinction of being both the world’s largest constitutional democracy and also one of its fastest growing economies. Critical to the process of India’s economic development is state acquisition of land for infrastructure and industrial development. Creating a legal framework that ensures equitable and efficient acquisition of land by the state, through processes that are socially inclusive and politically feasible, has proved challenging. While the Indian Constitution guarantees property rights to all, it enshrines special protections for land rights of ‘Scheduled Tribes’, vis-a-vis the state and other communities, in geographically demarcated tribal majority areas known as ‘Scheduled Areas’ under the Fifth and Sixth Schedules of the Constitution. The currently designated Fifth Scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The currently designated Sixth Schedule areas are in the north-eastern states of Assam, Meghalaya, Tripura, and Mizoram.
The Scheduled Tribes (STs) or adivasis consist of a number of heterogeneous tribal groups that have historically self-identified and been identified by the British colonial and independent Indian states, as lying outside the mainstream of Hindu society, partly because of their ’distinctive culture and way of life as a group’, and partly because of their ‘geographical isolation’. Currently, there are 750 tribes in 26 states and 6 union territories of India.
The Constitution guarantees special protections for land rights of Scheduled Tribes in Scheduled areas because land is not only the most important source of tribal livelihoods, but it is also central to their community identity, history and culture. Many non-Scheduled area states have also created legal protections for protecting land rights of tribals.
However, CPR Land Rights Initiative research shows that despite these special protections, Scheduled Tribes remain one of the most vulnerable, most impoverished, and most displaced of all groups in India. 47.1% of all STs in rural areas are below the poverty line as compared to 33.8% for the national average, whereas 28.8% of all STs in urban areas are below the poverty line as compared to 20.9% for the national average. Inspite of being the only group with constitutional protections for their land rights, 9.4 % of STs are landless compared to 7.4% for the national average. While STs constitute only 8.6% of the total population, it is estimated that they constitute 40% of all people who have been displaced during the period 1951 to 1990, some more than once, due to the construction of dams, mines, industrial development, and the creation of wildlife parks and sanctuaries. Only 24.7% of ST population that was displaced during this period was rehabilitated. Therefore, it is clear that these groups have disproportionately borne the burden of economic development.
Why is this so?
The CPR Land Rights Initiative report on ‘The legal and political economy of land rights of Scheduled Tribes in the Scheduled Areas of India’, offers some preliminary answers to these questions. Through a review of constitutional provisions, laws, and policies, governing the rights of Scheduled Tribes and the administration of Scheduled Areas, and the financial and administrative structures that effectuate these protections, the Report delineates a conflicting regime of protective and displacing laws, as well as conflicting policy narratives underlying these laws which facilitate the displacement of Scheduled Tribes and their corresponding landlessness. The Report also contains extensive primary data on the current mapping of Scheduled areas, and the current distribution of dams, forests, and mining activity, in the Scheduled areas.
1. Extent of geographical area, and distribution of forests, dams, and mining activity in Scheduled Areas: The Report establishes for the first time that as much as 13% of India’s geographical area is in the Scheduled Areas. Further, the Report finds that both the concentration of forest cover, and the concentration of dams, is significantly higher in Scheduled area districts (a little over two and a half times) as compared to non-Scheduled area districts. Finally, we find that 90% of all mineral wealth generated in India comes from states that have Scheduled Areas.
Fragmented constitutional protections for Scheduled Tribes: The Report concludes that despite the centrality of land to the identity, economy, and culture of the Scheduled Tribes, the constitutional protections for Scheduled Tribes and Scheduled Areas are fragmented and contradictory. The creation of these fragmented protections was in turn a product of two factors. First, even at the time of drafting of the Constitution, many tribal communities were no longer located within the geographically isolated scheduled areas, while many non-tribal communities were resident there, some for several generations. The Constitution makers created safeguards both for tribal people resident in Scheduled areas and those that were residing outside Scheduled Areas, but these fragmented protections failed to fully safeguard the rights of STs. Second, they arose from an inherent contradiction in creating geographically protected areas for Scheduled Tribes, while at the same time imposing no restrictions on the movement of tribals outside those areas, or on the movement of non tribals to those areas. This enabled more dominant non-tribal communities to settle in scheduled areas and in practice displace STs.
2. Special constitutional and legal protections for ST land rights negated by contrary laws: The Report concludes that special constitutional and legal protections for land rights of STs have been diluted by a contrary legal framework comprised of forests, mining, and land acquisition laws. While state land alienation prohibition laws prohibit transfer of land from tribals to non tribals, there is no prohibition on the state acquiring land in Scheduled Areas for its own purposes in the exercise of its power of eminent domain or assertion of its rights over forestland. State led lawfully sanctioned development in the form of dams, mines, industrial development, and wildlife parks and sanctuaries, has historically been the biggest displacer of STs. This is corroborated by data on the intensity of dams and mining activity in the Scheduled Areas as outlined in the Report.
3. Fundamental contradictions between ‘identity based isolation’ and ‘development through integration’ policy narratives of the British and Indian states: The Report finds a fundamental contradiction between two narratives that have characterised the policies of the British colonial state and the independent Indian state. The first narrative, that the Report calls the ‘identity based isolation’ narrative, identifies the tribals as a ‘distinctive group outside mainstream Hindu society’ both in terms of their ‘cultural traits’ and ‘geographical isolation’, and argues that they are keen to preserve their distinctiveness and their isolation. The second narrative called the ‘development through integration’ narrative identifies the tribal way of life as backward, compared to mainstream Indian population and seeks to improve their economic and social indicators to ‘integrate’ or ‘assimilate’ them with the mainstream population. The Report concludes that while both the ‘identity based isolation’ and ‘development through integration’ narratives, characterised the drafting of constitutional protections for STs, post-independence policy making was guided primarily by the latter. STs have however, rejected the ‘development through integration’ narrative as paternalistic and patronising, alleging that it fails to capture their aspirations to ‘develop according to their own genius.’
4. Meagre financial allocations for ST welfare: Translating policy and legal protections into reality needs financial resources. Even though the Constitution envisages a centralised framework for the administration of tribal areas under the aegis of the President and Governors of states, the responsibility of financing the costs of progressive change increasingly vests with the states. The Report computes significant shortfalls in Planning Commission recommended financial allocations made by both central and state governments in Scheduled area states under the tribal sub plan. Misguided expenditure of allocated funds compounds the problem of shortfall of funds for tribal development.
To find out more about the report click here.
LawTransform: Effects of Rights & Law
2018 - 2021
Litigating the Right to Health
2008 - 2012