Mukundan C. Menon

Kerala, acclaimed as India's foremost progressive and model state, has got a dubious distinction in protecting the basic rights of the tribal population who form the largest ethnic minority at the bottom level of Kerala society. All major national and international agencies, including Nobel Prize Winner Amarthya Sen, applauded this "God's Own Country" as a model State in the fields of literacy, education, health, family welfare, life expectancy, gender ratio, representation in public service, etc. However, the nearly 3.50 lakh tribals belonging to 35 different communities and who form roughly one per cent of the State's population, lag terribly behind the so-called mainstream society of Kerala in all these areas.

True, this "red-belt" State is politically advanced. However, the two major ruling fronts - the Congress-led United Democratic Front (UDF) and CPI(M)-led Left Democratic Front (LDF) - remarkably exhibited a collective unity not only in non-implementation of the 1975 Act for restoration of alienated tribal lands but also in hoodwinking the very Act which they had passed unanimously in the State Assembly in April 1975. At the same time, various tribes are facing severe threat to their very existence along with the apprehension that many of them will become extinct during the next 25-50 years.

Undoubtedly, the tribal land issue has become the single major human rights issue in present day Kerala. Says former Supreme Court judge, V. R. Krishna Iyer : "The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975, was not implemented so far due to lack of political will on the part of successive Governments and political parties who ruled the State so far. There is an urgent need for a fraternity of various sections of the people to fight for the rights of the tribals and against the increasing atrocities on them. If atrocities and injustice are not eliminated in the new era of development, we cannot give justice to the tribals."

Unfulfilled efforts to solve the tribal land alienation has a long history in Independent India, starting with the Dhebar Commission's major recommendation that all the tribal lands alienated since January 26, 1950, the day Indian Constitution came into force, should be returned to its original rightful owners. It took almost two decades for the Tribal Ministers of all States to meet at New Delhi to pass a resolution on April 1, 1975, containing the spirit of Dhebar Commission's recommendation. This was followed by passing of the 1975 Tribal Land Act by Kerala Assembly unanimously with veteran CPI leader, C. Achutha Menon, as UDF Chief Minister, and veteran CPM leader, EMS Namboodiripad, as main opposition leader. Moving the bill in the Assembly then Revenue Minister Baby John of Revolutionary Socialist Party (RSP) said that the encroachers had snatched the lands from the tribals adopting fraudulent methods apart from providing them dry fish, tobacco, and paltry amounts of money in return. "Whatever may be the methods adopted, this government considers all such land-transactions as thefts, and we are determined to return back the stolen property to their rightful owners", he declared then.

Passing of this Act by Kerala Assembly was followed by the declaration of Emergency in June 1975. The 20 point programme announced during the Emergency found a solemn pledge to restore alienated tribal lands throughout India. The Act passed by Kerala Assembly got the mandatory assent of President of India on November 11, 1975. Yet, throughout the Emergency period which lasted till March 1977, the Act was not implemented. At the same time, even after passing of the Act and it's getting the President's consent, massive encroachment of tribal lands continued unabatedly, especially in the predominant tribal belts of Attappadi (Palakkad district) and in the tribal-dominated Wayanad district. In fact, the government took 11 years to formulate the rules to implement the Act, which was formed only in 1986 with retrospective effect from January 1, 1982. Even after belatedly formulating the rules, the successive governments failed to implement it while, on the other hand, the powerful lobby of encroachers, with due political patronage, continued their tribal land grabbing spree.

The 1975 Act proclaims that all transactions of Adivasi lands during 1960-1982 are illegal and invalid. It also says that all such lands are to be restored to its original tribal owners. There is also a provision that the tribal owners have to pay the amount, if any, they received for the transaction from the encroachers along with any amount spent for improvements on the land by encroachers before commencement of the Act. On behalf of the tribal beneficiaries, the Government will advance this compensation amount as loans which is to be repaid back in 20 years. The Act also restricted transfer of tribal lands to non-tribals from 1982 without prior consent of the authorities. It simply means that all such transactions after 1982 without prior permission of the Government stand null and avoid in law and, therefore, all such lands are to be restored to the original tribal owners. The Revenue Divisional Officers (RDOs) in the concerned districts were entrusted with the responsibility to implement the Act in toto.

Even this unimplemented Act has numerous weaknesses. For example, it applies only to those cases of land alienation where the tribals have records to prove their prior ownership of the respective lands. At the same time, until a few decades ago, the tribals never knew that there was a need to possess land records from government bureaucrats for the premises which they were inhabiting for generations after generations. Traditionally, they adored and worshipped forests as "Vana Devan" and "Vana Devata". Many of them could not imbibe the new law of the modern society stipulating that they had to pay money (as land tax) for their Gods and Goddesses and also to preserve documents issued by Government officials. Thus, the vast majority of tribals were not possessing land records of ownership given by the State, though they were enjoying the possession of their ancestral lands from time immemorial. Apart from connivance of the corrupt revenue officials, this overall situation also helped the powerful encroachers from the plains to occupy tribal lands even after formulation of the rules in 1986.

The Tribal sub-plan in 1995-96 Annual Plan says : "So far, 8,641 applications have been received for the restoration of alienated tribal lands. Of this, only 563 applications have been disposed off and land has been restored only in one or two cases. Unfortunately, the area of tribal lands restored is negligibly small in the State." According to yet another estimate, 8,553 applications for restoration of lands (totalling 10,177 hectares) have been filed till the last date of receipt of applications. Since then, this number rose to 8,879 of which the maximum have been from Palakkad (2,523), Wayanad (2,229) and Idukki (1,193) districts.

Despite receiving these applications, the successive UDF and LDF governments did not take any action to restore the alienated tribal lands. This forced Dr. Nalla Thambi Thera, a tribal of Mananthavadi in Wayanad district, to move a Public Interest Litigation in 1988 before the Kerala High Court. Five years later, a positive verdict came from the High Court on October 15, 1993, giving the government six months time to implement the 1975 Act. However, considering an appeal of the then Congress-led UDF Government led by K. Karunakaran, the Court granted extension of the last date to carry out its Order for two-and-half years ending April 15, 1996. In between, replacing Karunakaran, A. K. Antony became Chief Minister in 1995. Yet, the Government refused to carry out the Court orders even during this extended period.

The cause of the tribals were taken up mainly by Ms. C. K. Janu, a tribal leader from Wayanad, and the CPI-ML (Red Flag) staging agitations and demonstrations, including in front of the State Secretariate at Thiruvananthapuram, for implementation of the 1975 Act in accordance with the High Court directives. At the same time, the powerful settlers, under the banner of "Karshaka Raksha Samithi" (farmers protection forum) and "Malayora Karshaka Sanghatana" (hill-area farmers organisation) intensified their demands for amending the 1975 Act. The encroachers had the political backing of leading UDF and LDF constituents, especially of the different Kerala Congress parties. Before the May 1996 general elections, the ruling UDF Government attempted to bring an Ordinance amending the 1975 Act. However, the Governor refused to approve the Ordinance on the ground that the election code did not permit it on election eve. The election saw CPI-M's E. K. Nayanar becoming the LDF Chief Minister in May 1996 ousting the then UDF Government led by A. K. Antony.

Under the Marxist-led LDF Government, the Principal Secretary for SC-ST Development filed an affidavit before the High Court on August 9, 1996, claiming difficulties to implement the 1975 Act due to "organized resistance" against it. Rejecting this claim on August 14, the High Court directed that, within six weeks ending September 30, "the RDOs should effect delivery of possession of alienated tribal lands to its original owners in cases where no appeals are pending against orders for restoration of land and where no compensation is payable", that adequate law and order machinery could be used to carry this out, and that the RDOs have to file affidavits by September 30.

Meanwhile, the new LDF government, like its UDF predecessor, made yet another attempt to bring an Ordinance to amend the 1975 Act which, too, was rejected by the Governor. Thus, in order to meet the final September 30 deadline fixed by the High Court and to avoid contempt of court proceedings against RDOs, the LDF Government hurriedly managed to pass an Amendment Bill on September 23, 1996, in the Assembly known as Kerala Scheduled Tribes (Restriction on Transfer of Land and Restoration of Alienated Lands) Amendment Bill, 1996. In the 140 member Assembly, all members belonging to both ruling LDF and Opposition UDF supported the Bill, except veteran Communist leader Ms. K. R. Gouriamma. Opposing the Bill, she said this was the foremost reactionary Bill ever introduced in the Assembly since formation of Kerala State in 1957. The Bill also met with strong resistance from tribals and their supporters outside the Assembly with C. K. Janu and Red Flag leaders staging indefinite hunger-strike in front of the Assembly. It also led to the famous incident of "Ayyankali Pada" group of Naxalites holding the Palakkad District Collector, W. R. Reddy, as hostage for more than 8 hours on October 4, 1996, demanding withdrawal of the Amendment and implementation of the Parent Act of 1975.

The 1996 amendment clearly nullified all the pro-Tribal provisions of the 1975 parent Act. For example, the amendment held valid and legal all transactions of tribal land between 1960 to January 24, 1986, which were termed as invalid in the original Act. The sole objective of this amended provision was to nullify the original provision of restoration of alienated lands back to the tribals. According to the amendment, an equivalent alternate land and Rs. 25,000 would be provided for alienated land up to 1 hectare, and a proportionate piece of land for alienated lands of more than 1 hectare. The amendment restricted all transfer of tribal lands from January 24, 1986, as against 1982 in the belatedly formulated rules of the parent Act. Since, there was hardly anything left for alienation after 1986, there was very little land to be restored as per this amendment.

Both then Chief Minister E. K. Nayanar and then Opposition leader A. K. Antony (who heads the present UDF Government) led a combined delegation to Delhi to get Presidential assent to the 1996 amendment. In March 1998, President K. R. Narayanan, however, refused to give his assent and returned the amendment. One of the main reasons was the inclusion of the 1975 Parent Act in the Ninth Schedule of the Constitution which cannot be amended by the State Assembly.

In order to counter this, the LDF Government brought-in and passed the second amendment in 1999 with due support of then Congress-led UDF opposition. To bypass the Central approval, this amendment termed the tribal land as "agricultural land" and thus secured the needed approval from the State Governor. Says K. Panur, an exponent of tribal affairs and Chairman of Confederation of Human Rights Organisations (CHRO): "The second amendment sanctifies legality for encroachers to occupy tribal lands up to 5 acres. Even those who own 100 acres can legally occupy an additional 5 acres of tribal land. Instead of fixing restrictions on encroachers' land-holding, the second amendment is fixing it upon the tribals. This is gross injustice and is meant to abet the big encroachers under the cover of protecting the interests of small encroacher-farmers".

Says Justice Krishna Iyer: "I opposed both the 1996 and 1999 amendments as it went against the interest of the tribals and legalised the alienated land occupied by the non-tribals. A new dynamic fraternity has to be created to give development rights to those like the tribals who were denied their rights over land by fraudulent methods. Their lands were taken away because the political parties and social organisations here had no courage to oppose it. In fact, they supported those who cheated the tribals. Since the tribals did not constitute even one per cent of the total population of the State, they have no vote bank to get the support from political parties".

Early last year, the LDF Government conducted a sham show of distributing documents ("pattas") of alternate lands to the tribals of Attappadi in the presence of then Chief Minister Nayanar and Revenue Minister K. E. Ismail. However, none of the beneficiaries occupied the land so far for the simple reason that the place is difficult to reach apart from totally unsuitable for human habitation or cultivation.

Kerala High Court also duly stayed various provisions of both 1996 and 1999 amendments. However, past two years witnessed the Supreme Court over-ruling the High Court's verdict. At least two separate cases on writ appeal on the issue steadily persued by Dr. Nalla Thambi Thera and the public-interest body,"Niyamavedi", headed by Adv. A. X. Verghese of Kerala High Court, are still pending before both the High Court and Supreme Courts.