Ownership and protection of tribal land in Manipur : A review
Kachui Timothy Zimik, IRS
With a view to understand the ownership and the protection of tribal lands, the Constitutional provisions and laws applicable to STS of Manipur are briefly discussed here.
The Manipur Land Revenue and Land Reforms Act, 1960 ( MLR and LR Act ) : The MLR and LR Act was enacted by Parliament on the 13th September, 1960. This Act extends to the whole State of Manipur except the hill areas thereof. In its operation, this Act has been applied in the Imphal valley and in some parts of the hill areas where the land survey had been completed. The State Govt is empowered to extend the whole or any part of any section of this Act to any hill areas of Manipur. As per Section 2 (j) of this Act, ‘hill areas’ means such areas in the hill tracts of the State of Manipur as the State Govt may, by notification in the official Gazette, declare to be hill areas. Vide notification no. 181/2/61 dated 25/01/1962, the Govt of Manipur had notified the following areas to be hill areas:
In the case of the remaining 92 villages of Jiribam, the MLR and LR Act was extended under the State Govt notification No. 142/12/60-R dated 22/02/1962. Similarly, the said Act was extended to the remaining 89 villages of Churachandpur vide notification No. 142/12/60-M dated 22/02/1962, Makhaw Tampak village of Churachandpur vide notification No.140/12/60 -M(A) dated 20/11/1969, 14 villages of Mao Sub-division situated in the Sadar Hills Circles vide notification No. 138/4/64-M dated 26/02/1965, and 809 hectares of land in Khoupum Valley of Tamenglong district vide notification No.3/12/83-LRC dated 14/11/1978.
Thus, the State Govt has been steadily extending this Act to the hill areas of Manipur. Section 158 of the MLR and LR Act provides special provision regarding Scheduled Tribes. This Section states that “No transfer of land by a person who is a member of the Scheduled Tribes shall be valid unless - … (b) where the transfer is to a person who is not a member of any such tribe, it is made with the previous permission in writing of the Deputy Commissioner, provided that the Deputy Commissioner shall not give such permission unless he has first secured the consent thereto of the District Council within whose jurisdiction the land lies…”. Despite the legal prohibition on transfer of tribal land, some studies have revealed that a few cases of transfer by tribal people to non-tribal people have taken place. A view can be taken here that this legal protection is not in force in the hill areas as the MLR and LR Act is not extended to the hill areas of Manipur. The customary law/rule is enforced in the hill areas of Manipur and the same prevails. There is no law or Act other than customary law applicable to the hill areas of Manipur. In tribal hill areas, the lands are privately owned by tribal individuals and the remaining lands belong to the whole community of the respective villages. In the case of Kuki tribe, the village chief is generally accepted as the owner of all lands of his village. As such, the Kuki individuals have limited land ownership rights.
The fifth Schedule of the Constitution of India : When we discuss the Fifth Schedule under Article 244(1) of the Constitution of India, the first question being asked is whether Manipur is included in the Fifth Schedule. Some writers have concluded that Manipur is deemed to be included in the Fifth Schedule and some others have entertained the view that Manipur is excluded. Article 244(I) states that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and the Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram. Assam, Meghalaya, Tripura, and Mizoram are included in the Sixth Schedule under Article 244(2) of the Constitution of India. Paragraph 4 (1) of the Fifth Schedule provides that “There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council…. shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State”. The Tribes Advisory Council (TAC) is a Constitutional body and it is the Governor’s discretion to make regulations on the advice rendered by such body on such matters pertaining to welfare and advancement of Scheduled Tribes in the State. The Governor has been vested with enormous powers under the Fifth Schedule.
At present, Scheduled Areas have been declared in the States of Andhra Pradesh, Telangana, Chhattishgarh, Gujarat, Himachal Pradesh, Jharkhand, Madya Pradesh, Maharashtra, Odisha and Rajasthan. On 19th January, 2015, the Tribes Advisory Council has been constituted in the State of Uttarakhand. This shows that TAC can be constituted in the remaining States of India including Manipur at any point of time. Tamil Nadu, Uttarakhand and West Bengal do not have any scheduled areas, but they have also constituted TAC. Though the provisions of the Fifth Schedule are clearly applicable to all States except the four States of Assam, Meghalaya, Tripura and Mizoram, the remaining States of India have not been brought under the Fifth or Sixth Schedule. It is important to know that, where the Constitutional validity of land legislations which prohibit the transfer of land by the tribal to the non-tribal in Scheduled Areas / areas having Scheduled Tribes is challenged, the Courts have held that the Fifth Schedule has been designed, in furtherance of Article 15(4) and Article 46 of the Constitution of India, to protect the Scheduled Tribes from social injustice and exploitation and the power of ‘administration and control’ referred to in the Fifth Schedule is wide enough to embrace exercise of Governmental power of every description-executive, legislative and judicial. It is for the Scheduled Tribes of India to use these Constitutional provisions/laws and customary laws effectively to protect their lands from being encroached and taken away by the non-tribal groups including industrial houses. There are good signs emerging now that the tribal people are asserting their rights to protect their lands.
In compliance of Paragraph 5(2)(a) of the Fifth Schedule, most States have enacted legislations prohibiting the transfer of land from tribal people to non-tribal people. For instance, the prohibition of transfer of tribal lands in Nagaland, the law in force is the Bengal Eastern Frontier Regulations, 1873 and Assam Land and Revenue Regulation,1866, as amended vide Nagaland Land and Revenue Regulation (Amendment) Act,1978. Section 158 of the MLR and LR Act, 1960 prohibiting the transfer of tribal land to non-tribal people in Manipur can be said to be enacted in compliance of Paragraph 5 (2) (a) of the Fifth Schedule. The effectiveness of these laws relating to the protection of tribal rights relies heavily upon their activation by the affected parties. In its 2010-2011 report, the Standing Committee on Social Justice and Empowerment of the 15th Lok Sabha had also strongly indicted the Ministry of Tribal Affairs for its failure to play pro-active role in the implementation laws and schemes including Forest Rights Act 2006 in Scheduled Areas and for Scheduled Tribes.
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forests) Act, 2006 : This Forest Rights Act recognizes the rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands and to forest resources. As per Section 3(1) (a) of this Act, forest rights mean the right to hold and live in the forest land under the individual or common occupation for habitation or self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers. This Act extends to the whole of India except the State of J and K. However, this Act has not been implemented in the State of Manipur.
(To be contd)