'Progressive' Maharashtra governor must step in to save tribal land, rights

The Fifth Schedule of the Constitution gives the governor of states with Fifth Schedule areas the power to issue notifications and regulations to ensure good governance. By the power of issuing notifications under Clause 5(1) of the Fifth Schedule, the governor can ensure that legislation applies, or does not apply, or applies with certain modifications. Courts have consistently ruled that this function of the governor is a function of discretion and great latitude. 

In recent years, Maharashtra Governor Ch Vidyasagar Rao has played a significant role in protecting the rights of tribals over land and resources. Over the last few years, Rao has modified a variety of state and federal laws to protect and improve their rights. These notifications have ensured modification of the minor forest regime to the advantage of tribal communities, guaranteed that the state laws are aligned with the requirements of Panchayats Extension to Scheduled Areas (PESA), provided autonomy to gram sabhas to decide about land alienation and protection of commons, amended provisions to ensure devolution to Scheduled Area Gram Sabhas to match the requirements of PESA, etc.

This has been a welcome surprise and unique role of the governor in the history of Scheduled Areas governance considering that the Fifth Schedule remained a dead letter in most states with Fifth Schedule areas. However, the notification dated November 14, 2017 permitting transfer of tribal lands for vital government projects without prior sanction of gram sabhas has led to great resentment among the tribal community in Maharashtra. It has been hitherto looking to the governor as the custodian of their land and resource rights.

Land laws protecting tribal land in Maharashtra have been traditionally very weak in comparison to many other states in India. For example, in Andhra Pradesh, the Land Transfer Regulation Act I of 1970 ensured that tribal lands could not be alienated to non-tribal persons. States with Fifth Schedule areas like Jharkhand, Chhattisgarh, Madhya Pradesh, etc. also prohibit land transfer from tribals to non-tribals.

In Maharashtra, however, Section 36 (2) of the Maharashtra Land Revenue Code (MLRC), 1966 has permitted diversion of lands in Fifth Scheduled areas with the approval of the district collector. Even after the passing of PESA in 1996, which prohibited tribal land alienation without the permission of gram sabha, the MLRC was not amended. This adverse scenario continued to operate till the modification of Section 36 A of MLRC on June 14, 2016 by the governor which made it mandatory to seek prior sanction of gram sabhas before diversion of tribal land in scheduled areas.

However, within 18 months, in a surprise move, Rao partially rolled back his earlier salutary notification and modified Section 36A of the MLRC, 1966 as amended by the Government of Maharashtra on June 14, 2016. The fresh notification ruled that tribal land acquisition for vital government projects doesn’t require consent of gram sabha in PESA areas. Such a notification coming from an institution which is supposed to safeguard tribal resource rights and tribal gram sabha autonomy, as guaranteed by PESA, is a cause for severe concern.

The notification of November 14, 2017 is against the provisions of PESA, as PESA gives gram sabha the power to prevent alienation of land. This power is without any exception. Hence, the notification has created a conflict of the state law with the central legislation of PESA.

The modifications fly in the face of Section 41 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act, 2013, which had clearly specified that acquisition in scheduled areas shall be only done as a “demonstrable last resort”. In case, such acquisitions were to be permitted, the explicit and informed consent of gram sabha was made mandatory under LARR.

The notification of the governor also mentions that gram sabhas need not be consulted for diversion of land to government projects as long as “fair” compensation is given. It is not at all clear who decides what a fair compensation is. Hence, the notification takes away the autonomy of bargaining, and decision making, which was available to the gram sabhas in Fifth Schedule areas.

Lastly, an indirect impact of the notification would be to violate the provisions of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, in as much as in forest areas of Scheduled Areas any individual forest land could be diverted by invoking these provisions.

The notification is liable to open the floodgates for massive diversion of tribal lands to sundry government projects in the name of the “national interest”. In  view of the history of tribal community and individual land alienation over the past 75 years of planned development, the notification could well be another nail in the coffin of tribal resource autonomy and decision making powers.

The alacrity with which the governor went back on his own stand of protecting tribal forests and lands, and reversed his own notification of June 2016 has generated much surprise in the tribal community. The regressive step he took, through this notification, does not gel well with his earlier pro-tribal utterances and the steps taken by his office in the past few years.

The repeated requests and petitions various tribal groups have sent to the governor’s office asking him to revisit this notification have not elicited responses. Tribal groups still hope that the governor, known for his progressive interventions in scheduled areas, will undo the damage caused by this notification. Otherwise, the future of tribal land security in Maharashtra will be under great peril.

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