Rewind: Whose land is it anyway? Adivasis’ land rights under challenge

The protective framework of the Fifth Schedule and Regulation 1 of 1970 must be understood in the context of the historical exploitation, dispossession and displacement of tribal communities

Dr Palla Trinadha Rao

Hundreds of non-tribals have filed cases in the Supreme Court challenging the constitutional validity of Regulation 1 of 1970, which protects Adivasi land rights in the Scheduled Areas of Andhra Pradesh and Telangana. The development has become a matter of serious concern for tribal communities.

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The petitioners contend that the Regulation infringes upon their constitutional rights to own, enjoy and dispose of property, and have sought its nullity. The Supreme Court has issued notices to the governments of Andhra Pradesh and Telangana in these cases.

The principal argument of the non-tribal petitioners is that the restrictions imposed by Regulation 1 of 1970 on the purchase, sale, mortgage and transfer of immovable property in the Scheduled Areas violate the rights guaranteed to them under Articles 14, 19, 21 and 300-A of the Constitution. The fundamental questions, however, are whether these claims have any legal and constitutional merit and who would ultimately benefit if the Regulation were struck down.

Not A New Question

Regulation 1 of 1970, which prohibits land transfers even between non-tribals in the Scheduled Areas, was enacted under the constitutional framework of the Fifth Schedule read with Article 244, with the assent of the President of India. It amended Regulation 1 of 1959, which had prohibited the transfer of land from tribals to non-tribals.

The constitutional validity of Regulation 1 of 1970 is not a new question. As early as 1988, the Supreme Court upheld its constitutional validity in the P Rami Reddy case. Yet, once again, non-tribals have approached the Supreme Court questioning the constitutional validity of this protective legislation.
In fact, Regulation 1 of 1970 does not interfere with lands lawfully acquired by non-tribals or with valid transactions between non-tribals that took place before 1970. The Supreme Court clarified this position in the S Venkataramanayya case in 1996. Nor does the Regulation prevent non-tribals from continuing to possess and enjoy lands lawfully inherited from their ancestors.

A non-tribal wishing to sell land in a Scheduled Area can sell it to any tribal resident of the State. If no tribal is willing to purchase the land, the Regulation provides for its transfer to the government on payment of compensation. Further, Regulation 1 of 1971 enables non-tribals to mortgage their lands to nationalised banks and government-recognised financial institutions to obtain credit.
Therefore, the argument that Regulation 1 of 1970 completely prevents non-tribals from selling their lands or pursuing economic development is untenable.

Who’s Inconvenienced

The record of litigation under the Regulation also tells a different story. Non-tribals have reportedly succeeded in a substantial proportion of cases (nearly 60 per cent) filed under Regulation 1 of 1970 in Andhra Pradesh and Telangana. Where they have established lawful title, they have secured favourable orders and continued to enjoy their lands without interference.
Who, then, is truly inconvenienced by Regulation 1 of 1970?

The Regulation poses an obstacle to large landowners seeking to purchase land from small and marginal non-tribal farmers for large-scale commercial or corporate agriculture. It is an impediment to those seeking to regularise unlawful occupation of land. It is also a barrier to corporations seeking to exploit the vast natural resources of the Scheduled Areas through massive investments. Political and economic interests seeking to transfer the natural resources of the Scheduled Areas to private interests may find the Regulation inconvenient.

In reality, the Regulation protects not only Adivasis but also small and marginal non-tribal farmers by preventing the large-scale alienation and concentration of land. The purpose of Regulation 1 of 1970 goes beyond preventing the alienation of tribal lands and restoring illegally transferred lands to Adivasis. It also seeks to prevent uncontrolled migration and settlement of non-tribals in the Scheduled Areas.

Demographic Dimension

This demographic dimension is crucial. If the non-tribal population in the Scheduled Areas continues to increase and Adivasis become a minority in their own ancestral territories, there is a danger that the very character of these areas could eventually be altered. Such a development would have consequences far beyond land rights. The special constitutional and statutory protections available to tribal communities, including those under the Fifth Schedule and the Panchayats (Extension to Scheduled Areas) Act, or PESA, are intrinsically linked to the special status of the Scheduled Areas.

Despite constitutional protections and legislation such as Regulation 1 of 1970, studies indicate that more than half of the land in some Scheduled Areas is already under non-tribal control and that the non-tribal population constitutes a significant proportion of the population in these regions.

Government reports have indicated that substantial proportions of land in the erstwhile districts of Khammam , Warangal and Adilabad were under the control of non-tribals. An ITDA (Integrated Tribal Development Agency) report from 1981 observed that if the lands within the Eturunagaram ITDA area of Warangal district had remained under tribal control, every tribal family could have possessed approximately six-and-a-half acres of land.

This historical experience demonstrates why protective land legislation remains indispensable. The Scheduled Areas are rich in forests, minerals, water and other natural resources worth enormous sums of money. Yet, the Adivasis who have inhabited and protected these regions for generations continue to experience severe economic and social deprivation compared with populations in the plains.

Adivasis and non-tribals are not situated equally in terms of land ownership, education, employment, income, political power or access to development opportunities. How, then, can special constitutional protection for a historically disadvantaged community be characterised as a violation of the right to equality?

Protected under Law

• Regulation 1 of 1970 prohibits land transfers between non-tribals in Scheduled Areas under the Fifth Schedule read with Article 244
• It amended Regulation 1 of 1959, which had prohibited transfer of land from tribals to non-tribals
• In 1988, the Supreme Court upheld its constitutional validity in the P Rami Reddy case
• Regulation 1 of 1970 does not interfere with lands lawfully acquired by non-tribals or with valid transactions before 1970
• Supreme Court clarified this position in the S Venkataramanayya case in 1996
• The Regulation does not prevent non-tribals from possessing and enjoying lands lawfully inherited from their ancestors
• If struck down, Scheduled Areas forest lands, water sources and resources could face increased private and corporate acquisition

Constitutional equality does not require identical treatment of communities placed in profoundly unequal historical and socio-economic circumstances. The protective framework of the Fifth Schedule and Regulation 1 of 1970 must be understood in the context of the historical exploitation, dispossession and displacement experienced by tribal communities.

If Regulation 1 of 1970 is struck down, forests, lands, water sources and other natural resources in the Scheduled Areas could become increasingly vulnerable to acquisition by private and corporate interests. Mining operations and large-scale commercial exploitation of natural resources could accelerate the alienation of tribal communities from their ancestral territories.

For Adivasis, land is not merely an economic commodity. Their relationship with land, forests and natural resources is inseparably connected with their livelihoods, social institutions, culture, language, traditions and collective identity. Once tribal communities are separated from their natural resources, the consequences extend far beyond economic deprivation. Their cultural and social existence itself comes under threat.

Adivasis have already suffered large-scale displacement in the name of development projects. In many instances, displacement has resulted not in development but in greater economic insecurity, loss of livelihoods and social disintegration. If the legal barriers protecting the natural resources of the Scheduled Areas are removed, tribal communities could, within a relatively short period, face further displacement from their lands and ancestral territories.

Equality and Social Justice

The Supreme Court has recognised the significance of the Fifth Schedule and protective legislation such as Regulation 1 of 1970 in safeguarding the rights and development of tribal communities. The constitutional framework governing the Scheduled Areas must, therefore, be understood not as an exception to equality, but as an essential instrument for achieving substantive equality and social justice.

Adivasi communities have distinct geographical, social, historical, cultural and traditional ways of life. Protecting their rights over land and natural resources is essential not only for their economic survival but also for preserving their identity, dignity and constitutional rights.

The present challenges before the Supreme Court are, therefore, of profound significance. Their consequences could extend far beyond the interests of the individual petitioners and affect the future of millions of Adivasis and the constitutional governance of the Scheduled Areas.

The governments of Andhra Pradesh and Telangana, the Union government and organisations representing Adivasi interests must place strong, comprehensive and constitutionally grounded arguments before the Supreme Court to defend the validity of Regulation 1 of 1970. What is at stake is not merely the validity of a land transfer law. It is the future of Adivasi land rights, the protection of the natural resources of the Scheduled Areas, and the survival of the constitutional vision embodied in the Fifth Schedule.

Any weakening of Regulation 1 of 1970 could cause irreparable harm to Adivasi communities and undermine the constitutional safeguards painstakingly created to protect their land, livelihoods, culture and collective existence.

(The author is a practising lawyer and tribal rights activist)