India: Land Rights, Environmental Protection and Inclusive Development within India's Federal System

The research project ?Land Rights and Inclusive Sustainable Development in India's Federal System? has investigated how the protective legal regimes adopted to protect India?s tribal people and their areas function in the context of India's economic development path, which depends on large tracts of land for infrastructure (mines, dams) and industrial development. We have analyzed this in four states with different legal regimes and shares of tribal population: Meghalaya, Andhra Pradesh, Telangana and Gujarat. The research team was made up of lawyers, political scientists and economists from the Centre for Policy Research (Delhi); the Chr. Michelsen Institute and University of Bergen (Norway). The Scheduled Tribes (STs) consist of (currently 750) tribal groups, (self-)identified as being outside the mainstream of Hindu society due to geographical isolation and "distinctive culture and way of life as a group". Land is central to their community identity, history and culture and the most important source of livelihoods. The 1950 Constitution grants STs special protections for land rights and autonomy in Scheduled Areas (SAs). The Forest Rights Act (FRA 2006) aimed to provide land titles and prevent displacement. Our research demonstrates that tribal people have disproportionately borne the burden of economic development Through meticulous mapping we established that 13% of India is SAs, distributed across 123 of 640 districts, with high concentration of forests, rivers and minerals. 27 of 50 major mining districts are in the SAs; districts with SAs have more than twice as many dams, and 90% of India's mineral wealth comes from states that have SAs. At 8.6% of the total population, STs constitute 40% of people displaced (1951-90) by dams, mines, industry and parks. Many atrocities are linked to displacements and social protests. Registered atrocities against STs, and ST women, are high and rising. Conviction rates are half that of crimes committed against non STs. The wealth generated is not going to tribal people, who remain among India?s most impoverished. 47% of STs in rural and 29% in urban areas are below the poverty line (national average is 34%, 21%). Provisions for ST welfare are not effectively implemented, and in some cases actively subverted by agencies responsible for mines, forests, tourism etc. Reporting is lacking, we find significant shortfalls in financial allocations, and the District Mineral Fund is not reaching tribal people. The FRA is poorly implemented and more STs are landless than the average for the population. Why are the legal protections for so ineffective? Our research finds that the provisions protecting ST land rights are diluted by a contrary legal framework of forests, mining, and land acquisition laws. Our land laws database shows that there are 102 laws of land acquisition in India. They prohibit land transfer from tribals to non-tribals, but the State has eminent domain to acquire land for development purposes. The 2014 Land Acquisition Act, mandates acquisition of SA land only as "a last resort", but we find that in practice, much of the SA land is acquired under the thirteen (mining and other) laws exempted from the Act, and that more land is alienated in the SAs than in non-SA areas. Our research also finds that the protections for STs and SAs are fragmented and contradictory. It is poorly suited to a situation where many STs live outside SAs, and non-STs are moving to SAs. And where SAs increasingly are becoming urban areas. The constitutional protections reflect a paradigm of "identity-based isolation" focused on preserving distinctiveness, which runs counter to a "development through integration" paradigm informing much post-independence policy making. Provisions for tribal representation integrates ST representatives into the mainstream party system in ways that on practice prevents effective representation of tribal interests in Parliament and state legislative assemblies. The constitution provides different rights to STs in mainland India (5th Schedule) and the northeast where the 6th Schedule grants considerable autonomy to STs in Assam, Meghalaya, Mizoram, and Tripura. Displacements happen everywhere, but under the 5th S, the State is the biggest displacer, whereas under the 6th S, it is the tribal elites - enabled by a climate of liberalisation. Research in Meghalaya finds that (in a matrilineal society) male tribal elites have been able to co-opt tribal institutions and privatise communal land in their own name. People who do not have titles then becomes illegal encroachers. Analysis of the governance structures in Meghalaya, revealed ambiguities and dysfunction in the relationship between the tribal and State institutions. One consequence is judicialization: that conflicts are brought before courts. The courts have been central in upholding environmental legislation and constructional rights when they conflict with tribal autonomy.

India faces a serious challenges in constructing development paths that generate growth while being socially inclusive, ecologically sustainable ? and politically feasible. To create inclusive, sustainable develoment is a ?tricky political trinangle? in the sense that while the three goals are interlinked and interdependent in the long term, there are also apparent contraditions and trade-offs. In India, law - in the form of property rights, environmental regulations and rights protection for vulnerable groups - figure prominently in efforts by the state to manage the often-conflicting challenges of development, displacement and environmental sustainability ? with varying effects in different parts of India's federal multi party political system. The pro posed research project is an interdisciplinary effort to scrutinize the potential and limits of legal regulations adopted to facilitate inclusive sustainable development in India as they play out in different social and political contexts. These dilemmas are particularly acute with respect to traditional communities, who risk displacement from infrastructure and industrial projects that are seen as core to India?s economic development. The challenge has intensified as economic reforms and liberalization h ave created opportunities for industrial and infrastructure development through domestic and foreign capital inflows. The need for land, mineral and other natural resources for these projects has not only caused the displacement of poor peasants and tradi tional communities but also serious environmental damage, including depletion of forest cover, soil erosion and environmental pollution. An inter-disciplinary team will investigate this in a series of comparative case studies drawn from four Indian states : Andhra Pradesh, Gujarat, Meghalaya and Tripura. The cases are chosen for their variation in levels of development, displacement and environmental degradation, socio-political differences and federal dynamics.