Unit – I: Land Reforms

a. Constitutional Provisions on Agrarian Reform Legislation

b. Abolition of private landlordism
c. Land Ceiling Legislation
d. State enactments prohibiting alienation of land by tribals to non-tribals
e. Consolidation of holdings
UNIT 1: LAND REFORMS
a. Constitutional Provisions on Agrarian Reform Legislation
b. Abolition of private landlordism
c. Land Ceiling Legislation
d. State enactments prohibiting alienation of land by tribals to non-
tribals
e. Consolidation of holdings
a. CONSTITUTIONAL PROVISIONS ON AGRARIAN REFORM
LEGISLATIONS
The Indian Constitution does not recognize property right as a fundamental right. In the
year 1977, the 44th amendment eliminated the right to acquire, hold and dispose of
property as a fundamental right. However, in another part of the Constitution, Article
300 (A) was inserted to affirm that no person shall be deprived of his property save by
authority of law. The result is that the right to property as a fundamental right is now
substituted as a statutory right. The amendment expanded the power of the state to
appropriate property for social welfare purposes. In other words, the amendment
bestowed upon the Indian socialist state a licence to indulge in what Fredric Bastiat
termed legal plunder. This is one of the classic examples when the law has been perverted
in order to make plunder look just and sacred to many consciences.

Indian experiences and conception of property and wealth have a very different historical
basis than that of western countries. The fact the present system of property as we know
arises out of the peculiar developments in Europe in the 17 th to 18thcentury and therefore
its experiences were universally not applicable. A still more economic area in which the
answer is both difficult and important is the definition of property rights. The notion of
property as it has developed over centuries and it has embodies in our legal codes, has
become so much a part of us that we tend to take it for granted, and fail to recognize the
extent to which just what constitutes property and what rights the ownership of property
confers are complex social creations rather than self evident propositions.This also seems
to be the hidden reason why the right to property is suddenly much contested throughout
India today and why the state is coming up unexpectedly against huge resistance from
unexpected quarters in attempting to acquire land in India. The action of the state to
assert the Eminent Domain over subsidiary claims on property and the clash which
resulted there from Singur, Nandigram and other parts of India is precisely a
manifestation of a clash of cultures. To put in Samuel Huntingtons words, the ideas of the
west of development and liberalization propagated by the present ruling elite and the old
Indic ideas which shape the views of the majority of the people.

The right to property under the Indian constitution tried to approach the question of how
to handle property and pressures relating to it by trying to balance the right to property
with the right to compensation for its acquisition through an absolute fundamental
right to property and then balancing the same with reasonable restrictions and
adding a further fundamental right o compensation in case the properties are
acquired by the state. This was exemplified by Article 19(1)(f) balanced by Article
19(5) and the compensation article in Article 31. This was an interesting development
influenced by the British of the idea Eminent Domain but overall it struck an interesting
balance whereby it recognized the power of the state to acquire property, but for the first
time in the history of India for a thousand years or more, it recognized the individuals
right to property against the state.

However, when the state realized that an absolute property and the aspirations of the
people were not the same the legislature was subsequently forced to make the said right
to property subject to social welfare amid amendments to the constitution. Articles 31-A,
31-B and 31-C are the indicators of the change and the counter pressure of the state when
it realized the inherent problems in granting a clear western style absolute fundamental
right to property (even though it was balanced by reasonable restrictions in the interest of
the public), specially Article 31-C, which for the first time brought out the social nature
of property. It is another matter that the said provisions were misused, and what we are
discussing today, but the abuse of the socialist state in India is not the scope of the
present article and the articles are considered on their face value only.
 Doctrine of Eminent Domain

v HISTORY

Few hundred years old and first used when an English king needed salt petre (form of
Potassium Nitrate, used in the manufacturing of fire work) to make gun powder and when
he was not able to find any land, he grabbed hold of a private mine. The owner of the
private mine approached the House of Lords, the House of Lords held that, the sovereign
can do anything, if the act of sovereign involves public interest.

WHAT IS THE POWER BESTOWED BY THE DOCTRINE TO THE STATE???

Basically this doctrine entitles sovereign to acquire private land for a public use, provided
the public-ness of the usage can be demonstrated beyond doubt.

PRESENTLY THE DOCTRINE DOES THE DUTY OF:

In the present context this doctrine raises the classic debate of powers of State v.
Individual Rights. Here comes the DID Development Induced Displacement which
means, The forcing of communities even out of their homes, often from their home
lands for the purpose of economic development, which is viewed as a Human Right
violation in the International level.

ESSENTIAL INGREDIENTS OF THIS DOCTRINE

1. Property is taken for public use
2. Compensation is paid for the property taken.

The above said are the two limitations imposed on the power of Eminent Domain by
the repealed A.31 .
Whereas the new A.300 A imposes only one limitation on this power (i.e.,)Authority
of Law

MAXIMS
The doctrine is based on the following two Latin maxims

i. Salus Populi est Suprema Lex Welfare Of The People Of The Public
Is The Paramount Law;
ii. Necessita Public Major est Quam Public Necessity Is Greater Than
Private Necessity.

Every government has an inherent right to take and appropriate the private property
belonging to individual citizen for public use.This power is known as Eminent Domain. It
is the offspring of political necessity. This right rests upon the above said two maxims.
Thus property may be needed and acquired under this power for government office,
libraries, slum clearance projects, public schools, parks, hospitals, highways, telephone
lines, colleges , universities, dams, drainages etc. The exercise of such power has been
recognized in the jurisprudence of all civilized countries as conditioned by public
necessity and payment of compensation. But this power is subject to restrictions provided
in the constitution. In the United States of America, there are limitations on the power of
Eminent Domain---

1. There must be a law authorizing the taking of property

2. Property is taken for public use
3. Compensation should be paid for the property taken.

Meaning of Property
The word property as used in Article 31 the Supreme Court has said should be given
liberal meaning and should be extended to all those well recognized types of interest
 which have the insignia or characteristic of property right. It includes both corporeal and
incorporeal right. It includes money, Contract, interest in property e.g., interest of an
allottee, licensees, mortgages or lessees of property. The Mahantship of a Hindu
Temple, and shareholders of Interests in the company are recognizable interest in
property. The right to receive pension is property.

Supreme Court Approach to the Right to Property

The Supreme Courts approach to the right to property can be divided into two phases:-
THE TIME TILL THE RIGHT TO PROPERTY WAS A FUNDAMENTAL RIGHT (PRE
1978)
THE TIME AFTER THE CONVERSION OF RIGHT TO PROPERTY AS A
CONSTITUTIONAL RIGHT (POST 1978)

Pre 1978 The Fundamental Right to Property

The Ninth Schedule was inserted in the constitution by the Constitution (First
Amendment) Act, 1951 along with two new Articles 31 A & 31 B so as to make laws
acquiring zamindaris unchallengeable in the courts. Thirteen State Acts named in this
schedule were put beyond any challenge in courts for contravention of fundamental
rights. These steps were felt necessary to carry out land reforms in accordance with the
economic philosophy of the state to distribute the land among the land workers, after
taking away such land from the land lords.

By the Fourth Amendment Act, 1955, Art 31 relating to right to property was amended in
several respects. The purpose of these amendments related to the power of the state o
compulsory acquisition and requisitioning of private property. The amount of
compensation payable for this purpose was made unjustifiable to overcome the effect of
the Supreme Court judgement in the decision of State of West Bengal v. Bella Banerjee.
By the constitution (Seventeenth Amendment) Act, 1964, article 31 A was amended with
respect to meaning of expression estate and the Ninth Schedule was amended by
including therein certain state enactments.

During this period the Supreme Court was generally of the view that land reforms need to
be upheld even if they did strictly clash against the right to property, though the Supreme
Court was itself skeptical about the way the government went about exercising its
 administrative power in this regard. The Supreme Court was insistent that the
administrative discretion to appropriate or infringe property rights should be in
accordance with law and cannot be by mere fact. The court however really clashed with
the socialist executive during the period of nationalization, when the court admirably
stood up for the right to property in however a limited manner against the over reaches of
the socialist state.

Recent Approach by the Supreme Court

In a very recent PIL filed in the Supreme Court which was still pending in the Honble
Court, it was held that the very purpose for which the right to property relegated to a
mere statutory right in the late 1970s is not no longer relevant. It was argued by Harish
Salve, the learned counsel for the petitioners that:
The right to property is made a statutory right in 1978 to abolish large land holdings with
zamindars and rich and their distribution among landless peasants;
Having achieved the very purpose behind the legislative action in the late 1970s, the
government should now initiate fresh measures to put right to property back in the
fundamental rights.

Earlier, the apex court in its famous Keshavanandan Bharti case of 1973 had first termed
some basic and unalterable parameters and features of the Indian state and its constitution
like the country's democratic form of government, as its basic structure, which could not
be changed at all even by constitutional amendment. But, in the judgement of the case,
Justice H.R. Khanna had made a passing observation to the effect that fundamental rights
accorded to the citizens' might not be a basic structure of the Constitution. This had left
the scope open for changing or diluting the fundamental right of the citizens. Though
later in 1975, while adjudicating another famous lawsuit between erstwhile Prime
Minister Indira Gandhi and prominent political leader of his times Raj Narain, Justice
Khanna had tried to clarify that his observation had been misconstrued. Despite that
clarification, the Janata Party government, under the advice of then law minister Shanti
Bhushan, had changed the Constitution, removing the right to property from the list of
fundamental rights.
Judiciary vs Legislature: The Tussle Begins

The saga of legislative manipulation of the right to property began with the First
Amendment Act, 1951 by which the Articles 31-A and 31-B were inserted into the
Constitution. Article 31-A was introduced by the Constitution First Amendment Act,
1951 wherein the Parliament defined ʺEstateʺ and continued by further amendments to
extend its meaning so as to comprehend practically the entire agricultural land in the rural
area including waste lands, forest lands, lands for pasture or sites of buildings. Under the
said amendment, no law providing for acquisition by the state of an estate so defined or
any rights therein of the extinguishment or modification of such rights could be
questioned on the ground that it was inconsistent with or took away or abridged any of
the rights conferred by Articles 14, 19 or 31. Article 31-B and Schedule Nine introduced
by the subsequent amendments was another attempt to usurp judicial power. It was an
innovation introduced in our Constitution unheard of in any other part of democratic
world. The legislature made void laws offending fundamental rights and they were
included in Schedule Nine and later on the list was extended from time to time. Article
31-B declared that none of the acts or regulations specified in neither the Ninth Schedule
nor any of the provisions thereof shall be deemed to be void on the ground that they are
inconsistent with Part III, notwithstanding any judgments, decree or order of any court or
tribunal to the contrary. By further amendment, the list was extended. This amendment
discloses a cynical attitude to the rule of law and the philosophy underlying our
Constitution. Autocratic power was sustained by democratic processes. The amendments
in the realm of property substituted the Constitutional philosophy by totalitarian ideology.
This totalitarian ideology is articulated by the deliberate use of amendments to add more
and more laws to the Ninth Schedule. Originally 64 laws were added to the Ninth
Schedule and more acts were added by the 4th, 17th and 29th Amendment Acts; 34th
Amendment added 17 more Acts; 39thAmendment added 38 Acts; 42nd Amendment
added 64 Acts; the 47th Amendment added 14 more Acts and by the end of this
amendment the number of Acts in the Ninth Schedule had risen to 202; The 66th
Amendment added 55 Acts raising the total to 257. The 75th Amendment Act, 1994 has
been passed by the parliament, which includes Tamil Nadu Act providing for 69 percent
reservation for backward classes under the Ninth Schedule. This is a clear misuse of the
Ninth Schedule for political gains as the object of the Ninth Schedule of the Constitution
is to protect only land reform laws from being challenged in court. After the addition of
27 more Acts to the Schedule by the 78th Amendment Act of 1995 the total number of
Acts protected by the Schedule has risen to 284. The saga did not end here, the hornets
nest had been stirred up already, the state made a consistent attempt by the process of
amendment to the Constitution to remove the judicial check on the exercise of its power
in a large area, and to clothe itself with arbitrary power in that regard. The history of the
amendments of Article 31(1) and (2) and the adding of Articles 31(A) and (B) and the
Ninth Schedule reveal the pattern. Article 31 in its first two clauses deals with the
deprivation of property and acquisition of property. The Supreme Court held in a series
of decisions viz. State of West Bengal v. Mrs. Bella Banerjee , State of W.B v. Subodh
Gopal , State of Madras v. Namasivaya Muralidar, that Article 31, clauses (1) and (2)
provided for the doctrine of eminent domain and under clause (2) a person must be
deemed to be deprived of his property if he was substantially dispossessed or his right to
use and enjoy the property was seriously impaired by the impugned law. According to
this interpretation, the two clauses of Article 31 dealt only with acquisition of property in
the sense explained by the court, and that under Article 31(1) the state could not make a
law depriving a person of his property without complying with the provisions of Article
31(2). It is worth mentioning in this context that it was the decision in the Bella Banerjees
case that actually induced the government to resort to the Fourth Amendment. In this case
the Apex court through this landmark decision had insisted for payment of compensation
in every case of compulsory deprivation of property by the state. It was held that clause
(1) and (2) of Article 31 deal with the same subject, that is, deprivation of private
property. Further the court held that the word compensation meant just compensation i.e.
just equivalent of what the owner had been deprived of. It is also worthwhile to note here
that this amendment also amended Article 305 and empowered the state to nationalize
any trade. The Parliament instead of accepting the decision, by its Fourth Amendment
Act, 1955 amended clause (2) and inserted clause (2-A) to Article 31. The effect of the
amendment is that clause (2) deals with acquisition or requisition as defined in clause (2-
A) and clause (1) covers deprivation of a personʹs property by the state otherwise than by
acquisition or requisition. This amendment enables the state to deprive a person of his
property in an appropriate case by a law. This places an arbitrary power in the hands of
the state to confiscate a citizenʹs property. This is a deviation from the ideals of the rule
of law envisaged in the Constitution. The amendment to clause (2) of Article 31 was an
attempt to usurp the judicial power. Under amended clause (2), the property of a citizen
could be acquired or requisitioned by law which provides for compensation for the
property so acquired or requisitioned, and either fixes the amount of compensation or
specifies the principles on which and the manner in which the compensation is to be
determined. It was further provided that no such law could be called in question in any
court on the ground that the compensation provided by that law is not adequate. This
amendment made the state the final arbiter on the question of compensation. This
amendment conferred an arbitrary power on the state to fix at its discretion the amount of
compensation for the property acquired or requisitioned. The non-justiciability of
compensation enables the state to fix any compensation it chooses and the result is, by
abuse of power, confiscation may be effected in the form of acquisition.

To these questions the Statement of Objects and Reasons gives no answer-it is doubtful
whether those who framed the property amendments were even aware of their effect on
other fundamental rights retained in Article 19(1)(f)(1), and on the political unity of India
which Article 19(1)(f)(1)(d), (e), (f) and (g) was intended, inter alia, to subserve, along
with other provisions of our Constitution. At any rate, the framers on these amendments
have provided no solutions for the problem, which the property amendments inevitably
raise. One further complication must be noted here. Although Article 19(1)(f) and Article
31(2) had been made mutually exclusive by Article 31(2-B), there was no such mutual
exclusiveness between Article 31(2) and the right to practise a profession or to carry on
any occupation, trade or business conferred by Article 19(1)(g). This right was subject to
restrictions mentioned in Article 19(1)(f)(6). But trade and business is capable of being
acquired, as Section 299(2) of the Government of India Act, 1935, clearly showed. By
what test is the validity of the law acquiring property, and a law acquiring trade or
business, including industrial and commercial undertakings, to be judged? The 25th
Amendment inserted in Article 31 a new sub clause (2) with the following proviso:
Provided that in making any law for the compulsory acquisition of any property of an
educational institution established and administered by minority, referred to in clause (1)
of Article 30, the State shall insure that e amount fixed by or determined under such law
for the acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause.

'Property' as understood in Article 300A:

The obvious first question is as to whether or not 'intellectual property' such as 'clinical
trial data' would fall within the definition of 'property' as understood in Article 300A.
There seems to be enough authority to support the proposition that 'property' as
understood in Article 300A is wider than just 'immovable property'. One such authority in
the context of 'intellectual property rights' is the judgment of the Supreme Court in the
case of Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd.
(SCIL)[45]. In pertinent part the Court held the following: The ownership of any
copyright like ownership of any other property must be considered having regard to the
principles contained in Article 19(1) (g) read with Article 300A of the Constitution,
besides, the human rights on property; The judgment goes on further to say that; But the
right of property is no longer a fundamental right. It will be subject to reasonable
restrictions. In terms of Article 300A of the Constitution, it may be subject to the
conditions laid down therein, namely, it may be wholly or in part acquired in public
interest and on payment of reasonable compensation. The fact that the Supreme Court
recognizes 'copyright' to fall within Article 300A is indicative that even 'clinical trial
data', collected after extensive experimenting, should in all likelihood fall within the
definition of 'property' as understood in Article 300A.

'Authority by law' as understood in Article 300A: The term 'law' as defined in Article
300A is understood to mean only legislation or a statutory rule or order. The term 'law' as
understood by Article 300A will not include executive fiats. The source of the 'law'
depriving a person of his property has to be necessarily traced, through a statute, to the
legislature.
While summarizing the entire concept of Right to Property..
Once upon a time, it was thought that the so called personal rights like the right to vote,
right to freedom of speech or personal liberty occupied a higher status in the hierarchy of
values than property right. As a result the courts were more astute to strike down
legislations, which impinged upon these rights, than upon property rights. But Learned
Hand, a great judge, felt that the distinction between the two was unreal and said that
nobody seems to have bestowed any thought on the question why property rights are not
personal rights. The Supreme Court of America which once gave hospitable quarter to the
distinction between personal rights and property rights and accorded a preferred position
to the former, has given a decent burial both to the distinction and the preferred status of
the so called personal rights or liberties in 1972 by saying the dichotomy between
personal liberties and property rights is a false one. Property does not have rights. People
have rights. The right to enjoy property without unlawful deprivation, not less than the
right to speak or the right to travel is in truth a personal right, whether the property in
question be a welfare cheque, a home or a savings account. In fact, a fundamental
interdependence exists between the personal right to liberty and the personal right in
property. Neither could have meaning without the other.

b. ABOLITION OF PRIVATE LANDLORDISM

One of the most ticklish questions in Indian economy has been the nature and relevance
of land reforms. Advocated and implemented for decades as a major instrument of state-
mediated and progressive socio-economic change, the very utility of land reforms has
increasingly been questioned in the post-1991 reform era. Comprehensive land reforms
were among the first priorities of the Government of India immediately after
Independence. For this the manifold imbalances of the colonial legacy of two centuries
had to be dismantled, and a new beginning made. It was a semi-feudal system that was
inherited from British rule. A handful of intermediaries rack-rented a large mass of
hapless tenantry. A widespread system of subletting, often several rungs deep, worsened
the situation by reducing the holdings to uneconomic proportions. In this system, neither
the intermediaries had any interest nor the tenants any incentive or resources for
introducing land improvements or for using HYVs or other costly inputs likely to yield
higher returns.

With the twin objectives of achieving social equity and ensuring economic growth, the
land reforms programme was built around three major issues:

1. Abolition of intermediaries.
2. Settlement and regulation of tenancy.
3. Regulation of size of holdings.

The central thesis behind the abolition of intermediaries, underlined by the first as well as
the Second Five Year Plan, was that owners themselves should operate and manage farm
business, and so the tenant-landlord nexus should be put to an end. The intermediary’s
privileges were conceived as having an adverse impact on agricultural productivity as
well as denying the tiller of the soil his rightful place in the economy. ‘Between 1947 and
1954 … a law for the abolition of the zamindari system was adopted [passed] by the state
legislature and then ratified by the President of India. However, these acts of agrarian
reform did not affect landownership in the ryotwari areas where system was in existence,
i.e. 57 per cent of the country’s occupied land.

Tenancy reforms were launched to confirm the rights of occupancy by tenants, regulate
rents on leased land and to secure their possession of tenanted land. It was argued,
especially in the context of the spread of modern technology, that the tenants lacking a
security of tenure and paying excessive rents suffer a relative decline in inputs compared
to the owners. To this end the following recommendations were made by the Chief
Ministers’ Conference in 1967:

1. The rate of interest should not be more, preferably less, than 1/4 or 1/5 of the
gross produce.
2. Records of tenancy should be prepared and maintained.
3. Tenants in cultivating position of land should be given complete security of
tenancy by: i) staying all evictions; ii) suspending rights of resumption where
 such rights had been given to landowners; and iii) regulating voluntary
surrenders in such a way landowners do not get an advantage by persuading
tenants to surrender their tenancy.

The third major land reform plank was regulating the size of land holdings through
ceiling as well as consolidation to correct the extremely skewed distribution of
agricultural land. It was designed to (i) to meet land hunger of working cultivators, (ii) to
reduce the disparities in agricultural income, ownership, and use of land, and (iii) to
increase rural employment in the sector. At the same time, consolidation of holdings was
also advocated to group together the numerous tiny and scattered holdings of poor
cultivators in order to form bigger tracts, susceptible to more efficient management.
Cooperative farming on these would increase productivity and employment through
economies of scale. The large, economical units of consolidated land, it was opined,
would mitigate the problem of poor yield and enhance productivity through economies of
scale and also increase employment.
Of all these laws only the abolition of intermediaries was achieved successfully. The bulk
of the zamindars’ lands were alienated: 87% in Uttar Pradesh and 84% in Bihar for
instance; and the landlord class lost close to 60% of the land it had owned previously.
However, it was achieved at a great cost to the Exchequer as the compensation to the
intermediaries came to be some 7,000 million rupees. The source from which these
compensation payments were drawn was the land-revenue paid to the state by the ex-
tenant farmers now farming on the land alienated from former zamindars’ estates. In
most cases the tenant farmers continued to pay the same land-rent as before, but now to
the state direct.

As to the implementation of the two other sets of reforms, namely tenancy and regulation
of land holdings, legal, administrative, and other factors became principal bottlenecks. In
most cases and for a long time, the factual evidence and administrative machinery for
enforcement of the laws just did not exist. For instance, land policy in the First Five Year
Plan was formulated without sufficient knowledge about the size and distribution of
agrarian land holdings. It was in the 8th round of the National Sample Survey in 1954 that
a considerable volume of data was collected for the first time; this too was submitted to
the Union Government only in 1960, a full six years later.

On tenancy reforms, from a lifetime of study, P. S. Appu has concluded that the laws
have not put an end to absentee ownership of land, nor has it led to the disappearance of
tenancies. Being a state subject, there have been striking differences in the track records
between the various States in the formulation and enforcement of the reform measures. It
was not before the Operation Barga in 1978, for instance, that tenancy reforms met with
any noticeable success in West Bengal, and then overtook the rest of the country in a
most spectacular manner. If political will is taken as the main reason behind the success
of tenancy reforms there, the absence of such a will must be held responsible for its
failure elsewhere. Taking the country as a whole, by 1992, ownership rights over 14.4
million acres of land have been conferred on some 11 million tenants. That constitutes,
however, no more than 4% of operated area. The seven States of Assam, Gujarat,
Himachal Pradesh, Karnataka, Kerala, Maharashtra, and West Bengal account for 97% of
the beneficiaries. Practically no benefits accrued to the tenants in the other states.

An ambitious movement to achieve redistribution of land, called Bhoodan, was launched

by a prominent Gandhian Vinoba Bhave in the early fifties. ‘The essential feature of this
movement was the voluntary requisition of land which was subsequently redistributed
among peasants who owned little or no land at all.’ Launched in the Telangana region to
counter the militant peasant struggle there, the Bhoodan movement made some notable
headway in Bihar and Uttar Pradesh, where, by 1955, the landlords voluntarily
relinquished over 4.3 million acres. However, most of this land ‘proved unfit for
cultivation’ whenever it was not disputed property. The second phase of the movement
was Gramdan, the giving away of the whole villages, which would belong to the village
community as a whole. The movement was virtually non-existent beyond a handful of
tribal pockets where private property in land did not matter in any case.

It is in the field of redistribution and consolidation of land holdings that the reforms have
met with the least success, mainly because they met with a most determined resistance
from the very substantial and politically influential landed interests, quite unlike the
handful of politically isolated intermediaries. It was not before mid-1960s that ceiling
laws could be passed in the majority of states. Even then enough loopholes remained
which enabled landlords to circumvent legislation ‘while in the remainder they had still
to pass through the various readings in the legislatures’. Even after the law, ‘the landlords
succeeded with little difficulty in circumventing the new laws making full use of the
numerous loopholes in them.’ For instance, the law allowed division among the members
of a joint family, by taking recourse to which the total holdings of landlord family
remained several times over the legal limit. ‘As experience was to show, after the
“ceiling” acts had been applied in Andhra Pradesh and Bengal, hardly any surpluses were
revealed.’ By 1992, only about two million hectares of surplus land, amounting to less
than 2% of the operated area on a pan-Indian scale with very wide regional differences,
could be distributed to some 4.76 million beneficiaries.
As the land reforms reach an impasse, a series of considerations have raised serious
doubts about their continuing relevance as to whether they are really the best way for
achieving growth with general well-being and whether they are in harmony with the
ongoing liberalisation of Indian economy. Demographic and economic forces have
proved more effective than legislation in bringing about a redistribution of land in favour
of medium and, and even more, marginal farmers. The latter, it is said, now dominate the
agrarian landscape in most of India outside Panjab and Haryana. Inequality among
landowners is no longer a key issue, as landholdings are not very skewed any more,
except in certain small pockets.

On the other hand, widespread poverty and hunger remain. In particular, the plight of the
landless or near landless, whose number has steadily grown over the decades and is
estimated to constitute almost half the agricultural population, requires urgent attention.
Above all, agricultural growth has, in general, been sluggish in India, and the Green
Revolution has failed to spread beyond a handful of states led by Panjab and Haryana,
which are now in fact producing food surpluses to feed the rest of them.
Many critics such as V. M. Dandekar argue that the ceiling and tenancy laws not only do
not have much relevance in this sorry state of affairs but also must share part of the blame
at least for perpetuating them. The most critical long-term impact of the ceiling law has
been, as pointed out by Hanumantha Rao, that it killed the land market, and thereby the
scope for investment in land, by preventing an increasing concentration in landholding
through depeasantisation. ‘The same is true’, Dandekar says, ‘of the present tenancy laws
which have practically abolished lease market in land’.

Among the alternative policy prescriptions that have been put forward, those of Dandekar
constitute the most radical departure from the prevailing policies. Dandekar advocates
exposing agriculture to the full play of market forces through either an outright abolition
or gradual relaxation of the ceiling and tenancy laws. His is essentially a plea for
unrestrained growth through modernisation of agriculture that will bring benefit to all, if
differentially.
From a similar perspective, another prescription is to encourage corporate sector to enter
agriculture for commercial production of high-value and processed agricultural products,
and earn thereby valuable foreign exchange. The corporations should set up agro-
processing units in the rural areas and help in diversifying agriculture, encourage contract
farming, and also develop infrastructural support in the area of their operation.

Once the market forces are fully unleashed and business people from outside begin to
invest in the agricultural sector, it would also become necessary to impose agricultural
income tax and agricultural holding tax. These taxes then could be used, among other
things, to build up infrastructure and provide employment in the countryside.

Such prescriptions however cannot be assessed in terms of their economic soundness

alone. One must also take into account their implications for employment as well as
recognise the social, political, and cultural milieu in which they have to operate.

Expert opinion is divided on the question of employment. Some fear that modern
technology being generally labour saving and capital intensive, its introduction will
aggravate further the unemployment problem. In support, studies by S. K. Ray and others
are cited showing that the employment elasticity of output in agriculture has fallen
sharply in the post-new technology agriculture. However it does not necessarily imply an
aggravation of the problem; it just means that a growth in productivity does not lead to a
proportionate increase in employment. On the contrary, data show a threefold increase in
the number of agricultural labourers in Panjab between 1961 and 1981, the increase in
demand having to be met by large-scale migrations from eastern UP and Bihar. Fears of
increasing unemployment due to mechanization have not materialised so far. The victims
of tractorization, it has been well said, were bullocks, not labour.

In the end, the social and political costs of the policy prescriptions will need to be
carefully examined. By all reckonings, while poverty and hunger may become a thing of
the past, the distribution of income would tend to be more skewed. This may become a
cause of serious concern through the social friction that it would intensify. Ultimately, the
success or even the initiative for such policy measures would depend on the extent to
which our decision-makers believe them to be compatible with the politics of competitive
populism.

b. LAND CEILING LEGISLATION

The Urban Land (Ceiling and Regulation) Act, 1976 (Act no. 33 of 1976) being the
Central Governments legislation was enacted by the Parliament of India with the view to
make provisions as to imposition of a ceiling on vacant land in urban agglomerations,
also to acquiring such land in excess of the ceiling limit, for regulating the construction of
buildings thereon. The Act make further provisions for preventing the concentration of
urban land in the hands of a few persons and speculation and profiteering therein, as such
the Act sought to provide for equitable distribution of land in urban agglomerations in
common good. The subject matter of this legislation is ‘Land’ and the same comes under
the authority of State legislature, however, with the view to ensure the uniformity in
approach, the Government of India has took initiative and certain states passed
resolutions under Article 252(1) of the Constitution of India, wherein the Parliament was
empowered to enact this Act. So far as the applicability of this legislation is concerned,
the Act under its first section says that the States of Andhra Pradesh, Gujarat, Haryana,
Himachal Pradesh, Karnataka, Maharashtra, Orissa, Punjab, Tripura, Uttar Pradesh and
West Bengal and all the Union territories are subjected to this Act and other States can
also adopt this Act by passing resolutions as aforesaid.

The provisions of section 3 of the Act provides that in respect of the territories concerned
under this Act for which the ceiling limit is provided, no persons should be entitled to
hold any vacant land in excess of that ceiling limit. Section 4 deals with such ceiling limit
for every person. Further, the section 5 of the Act says that the transferred vacant land
either by way of sale, mortgage, gift, etc. by the persons in the State to which this Act is
applicable should also be considered while calculating the extend of vacant land held by
him. And as per section 6, all persons holding such excess vacant land should file a
statement within the prescribed period before the Competent authority. Such statement
should specify the location, extent, value, etc. of such vacant land and also land over
which any building is erected. As per section 8 of the Act, the Competent authority is
required to prepare a draft statement in respect of such persons, based on the Statements
filed by them. And all such draft statements are required to serve upon the person along
with notice wherein any objection thereto should be invited and the period for making of
such objection is thirty days. And such Objections to be dealt with by the Competent
authority and pass appropriate orders thereon. As such, the Competent authority is
required to proceed for making final Statement wherein the determined vacant land held
by the person concerned in excess of the ceiling limit should be stated. After complying
all such procedure, the next move is to acquire the vacant land in excess of ceiling limit
by publishing a notification by the Competent authority. Such notification is to contain
that the concerned land will be acquired by the concerned State Government; and also
claims of interested persons can be made by them. On determination of such claims, the
Competent authority to declare by notification that the concerned land is acquired by the
State Government.
Further, section 11 being important makes provisions as to making of payments by the
State Government concerned for acquiring such vacant land, to the persons interested
therein. And for determining the disputes as to such acquisition, the persons being
aggrieved can approach to the Urban Land Tribunal with his appeal. The said Tribunal is
to be constituted by the State Government and while deciding such appeals the Tribunal
are conferred with all powers and procedure of the Civil Court dealing with the appeals
within the Code of Civil Procedure, 1908. Provisions as to second appeal have also been
provided under the Act, which should lie before the concerned High Court.

Besides all these most relevant provisions, the Act also provides for several other
provisions including, the provision empowered the competent authority to enter in the
Vacant land or land consisting building thereof for making survey and doing
measurements for the purposes of this Act. However, if any particulars respecting the
concerned land, is being concealed, etc. then persons liable thereof will be held
responsible to pay penalty.

All such lands so acquired under this Act are required to be disposed of as per provisions
of section 23 of the Act, where the State Government can allot such lands to the persons
for industrial purpose or for providing residential accommodation of approved type to the
employees of any industry. Besides this, the further provisions are also made being
relevant to the purpose of the Act, and some of those are explained. The Competent
authority is having certain other powers under the Act, which are provided under section
31 and are similar to that of certain powers of civil Court provided under provisions of
the Code of Civil Procedure, 1908. The State Government can issue necessary directions
to the Competent authority and the Central Government can give necessary directions to
the State Governments. The Competent authority is required to furnish relevant returns
and reports to the State Government concerned.

Section 38 of the Act describes certain offences under this Act and also provides for
punishment in relation thereto. Section 39 provides for offences by companies under this
Act and person liable thereof. Further, the Court taking cognizance of offences under this
Act, should proceed with, only after there is a written complaint made by the Competent
authority or authorised officer thereof and such Court should not be inferior to that of
Metropolitan Magistrate or a Judicial Magistrate of the first class. All officers who are
acting under this Act, Rules, etc. under this Act, should be treated as Public servant. The
Central Government under this Act is empowered to provide for Rules, for carrying on
the provisions of this Act and such rules to provide on matters enlisted under section 46.
Lastly, the said Government is also empowered to provide for orders removing
difficulties which can arise while giving effect to the provisions of this Act. The present
Act is, however, now repealed by the provisions of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 (Act no. 15 of 1999).

STATE ENACTMENTs PROHIBIING ALIEATION OF LAND BY TRIBALS TO

NON-TRIBALS

The tribes in I n d i a h a v e c o m e t o b e c o n c e p t u a l i z e d primarily in relation to

their geographical and social isolation from the larger Indian society and not in relation to
the stage of their social formation. This is why a wide range of groups and communities
at different levels of the social formation have all come to be categorized as tribes. By
virtue of the fact that tribes lived in isolation from the larger Indian society, they enjoyed
autonomy of governance over the territory they inhabited. They held control over the
land, forest and other resources and governed themselves in terms of their own laws,
traditions and customs. It was the advent of colonial rule that brought tribes and non-
tribes into one single political and administrative structure by means of war, conquest and
annexation. This was followed by introduction of new and uniform civil and criminal
laws as well as setting up of administrative structures that were alien to tribal tradition
and ethos. All these developments led to largescale alienation of land from tribes to non-
tribes through such processes and means as fraud, deceit, mortgage, etc. This being the
case, the nationalist Constitutional Provisions, Laws and Tribes tribal rights Virginius
Xaxa legal view T The author is a Professor and Deputy Director at Tata Institute of
Social Sciences, Guwahati Campus. He is a member of the Advisory Committee, Tribal
Development in the Ministry of Rural Development, Government of India, UPE
(University with Potential for Excellence Phase II), Central University of Hyderabad,
Hyderabad. He has also authored book's like Economic Dualism and Structure of Class:
A Study in Plantation and Peasant Settings in North Bengal (1997) and State, Society and
Tribes: Issues in Post- Colonial India (2008). He is also the co-author of Plantation
Labour in India (1996) and co-editor of Social Exclusion and Adverse Inclusion:
Adivasis in India (2012). leadership showed special concern for tribes in the post-
independent India. This is reflected in the provisions enshrined for them in the
constitution. Tribes as citizens of free India were extended civil, political and social
rights in equal measure as others. Civil and political rights have been enshrined within
the purview of the Fundamental Rights of the Indian Constitution while social rights have
been envisaged in the Directive Principles of the Indian Constitution. Besides the ones
stated above, tribes were also extended certain special rights as being members of a
distinct community. Such rights, among other things, include provisions for statutory
recognition (article 342); proportionate representation in Parliament and state legislatures
(articles 330 and 332); restriction on the right of the ordinary citizen to move freely or
settle in particular areas or acquire property in them (article19(5)); conservation of one’s
language, dialects and culture, etc (article 29). The Constitution also has a clause that
enables the State to make provision for reservation in general (article 14(4)) and in
particular, in jobs and appointments in favour It is ironical that despite a large number of
well meaning constitutional provisions and laws aimed at protecting and safeguarding the
welfare and interest of the tribal communities, the process of marginalization of the
tribals has gone on unabated. Paradoxically, at the root of such marginalization are the
laws themselves of tribal communities (article 16(4)). There is also the Directive
Principle of the Constitution that requires that the educational and economic interest of
the weaker sections of society, including tribes, is especially promoted (article 46).
Besides these, there are provisions in the 5th or 6th schedule of the Constitution (Articles
244 and 244(a) that empower the state to bring the area inhabited by the tribes under
special treatment of administration. The provisions in the Constitution range from
creation of the scheduled and tribal areas, to providing representation in Parliament and
State legislatures including special privileges in the form of reservation of a certain per
centage of posts in government services and seats in educational institutions. In short, the
Constitution aimed at safeguarding, protecting and promoting the interest of tribal people.
Of all the provisions, protective discrimination has been seen as one of the most
important rights given to tribal people. The government evolved specific measures with a
view to executing rights conferred on tribal people in the Constitution. It earmarked 7.5
per cent of the jobs in government, semi-government and also educational institutions for
people hailing from the scheduled tribe category. Protective discrimination in favour of
the group is also evident in relaxation granted to candidates from the scheduled tribe
category. Despite these provisions, the result is far from satisfactory, more so in the case
of scheduled tribes than scheduled castes. Nevertheless, the inability of the State to fill up
the quota is not considered as a violation of the rights enshrined in the Constitution. This
is so, because in the first place, necessary measures have been taken in pursuit of the
rights enshrined in the Constitution. Secondly, the extensions of reservation to candidates
from the category are not automatic. Rather, it is contingent upon certain conditions
stipulated in the Constitution itself. Article 335, for example, stipulates that the claims of
the scheduled castes and scheduled tribes can be taken into consideration, consistent with
maintenance of efficiency of administration in making appointments to services and
posts. Thirdly, though such rights have been given to tribes, they can avail of them only
as members of the tribal community. It is an individual’s right to secure access to these
provisions on equal terms with others. The right is also individual in the sense that the
individual is required to take some action to ensure that he gets it. In view of issues such
as these, there is an inbuilt difficulty in challenging the negligence or indifference of the
state in the court of law. Only specific cases of discrimination or denials can be taken to
court, but these could be defended by taking recourse to article 335 of the Constitution. In
short, the provision of protective discrimination is not sufficient in itself. To become
effective, the provision must be supplemented by what may be called substantive equality
i.e. ability, resources and actual opportunity must be created to make the formal equality
or in the case of tribes, even protective discrimination, effective. This means there was a
need for making provisions for economic and social rights for the tribes not only through
legislation or constitutional provision but also through effective legal, administrative,
infrastructure and financial support. In respect of provisions for which, certain support
systems were made available, for example, the provision of protective discrimination.
such arrangements did lead to some results, no matter how inadequate they might have
been. However, where such measures were non-existent or largely ineffective, the
provisions made in the Constitution have hardly led to any desirable results in favour of
tribes. It is not only that effective social and economic rights were not evolved and
extended to tribes, but even rights that they enjoyed, such as rights over land and forest
were taken away from them by the colonial state to begin with and later by the post-
independent Indian state. It is a well-established fact that tribes live mainly off land and
forest. Yet, the process of land alienation that began during British rule has gone on
unabated in the post-independence period. This has already been referred to earlier. In
order to deal with the problem of land alienation to non-tribals, laws have been enacted in
almost all states where there are tribal populations. In some parts, such acts have been in
existence since the British period like, Chotanagpur Tenancy Act 1908 and The Santhal
Pargana Tenancy Act 1940. The British initiated such measures not Of all the provisions,
protective discrimination has been seen as one of the most important rights given to tribal
people. The government evolved specific measures with a view to executing rights
conferred on tribal people in the Constitution. It earmarked 7.5 per cent of the jobs in
government, semigovernment and also educational institutions for people hailing from
the scheduled tribe category. It is not only that effective social and economic rights were
not evolved and extended to tribes, but even rights that they enjoyed, such as rights over
land and forest were taken away from them by the colonial state to begin with so much
out of concern for the tribes but for reasons of administrative and political expediency.
These were more in the direction of protection from land alienation of the tribes and
restriction of the movement of the non-tribal population into tribal areas. In the post-
independence period, all states with tribal population enacted legislation, not only for
prevention of alienation of lands from tribes to nontribes, but also for its restoration. In
some states, acts have even been amended with a view to protecting the interest of non-
tribes. The Andhra Pradesh (Selected Areas) Land Transfer Regulation, 1959, was
amended in 1970, in an attempt to accommodate the interest of non-tribes. The Kerala
Scheduled Tribes (Regulation of Transfer of Land and Restoration of Alienated Land)
Act, 1975 has even been repealed to give effect to concessions made to nontribes (Verma
1990; Rao 1996; Bijoy 1999). As a recent of such acts, tribal land continued to pass from
tribes to non-tribes. To reinforce the constitutional provisions for protection of the tribals,
two important laws have been enacted in more recent years. One was the Provisions of
the Panchayat (Extension to the Scheduled Areas), Act, 1996. The act empowers the
scheduled tribes to safeguard and preserve the traditions and customs of the people, their
cultural identity, community resources and customary mode of dispute resolution through
the gram sabha. Interestingly, the provisions of the Panchayat Act hardly find its due
place in letter and spirit, for example, in provisions on the pattern of the sixth schedule, in
the acts enacted by the different states. Further, though no enactment has been made to
extend part IX A (The Municipalities) to the scheduled areas, the same is steadily being
pushed in all states having scheduled areas. The other act in the direction has been the
‘The Scheduled Tribe and Other Traditional Forest Dwellers Act, 2006. The act is aimed
at undoing the age old injustice done to tribals by restoring and recognizing their pre-
existing rights. The recognition and restoration has been, however passing through rough
weather in respect of its implementation. Under the Constitutional provisions of Directive
Principles, the State’s major concern for tribes has been their welfare and development.
This was to be pursued under a kind of constitutional provision, the letter and spirit of
which was the most evident in the five principles (panch shila), Nehru is credited to have
enunciated in a foreword to a book entitled, ‘A Philosophy of NEFA’ by Verier Elwin.
Since then, those principles have been taken as the ethos of tribal development in
postindependence India. The principles entailed development along the lines of their own
genius, respect of tribals’ right in land and forest, training and building up a team of their
own people to do the work of administration and development, not over- administering
the areas with a multiplicity of schemes, working through, and not in rivalry, to their
social and cultural institutions. Yet the approach adopted towards tribes was quite to the
contrary. This was mainly due to the imperatives of national development. The issue of
tribal development could not be pursued outside of the issues of national development. In
fact, measures undertaken for bringing about rapid national development were seen as a
kind of important mechanism whereby integration of tribal society could be achieved. In
fact, the national objective to build up a productive structure for future growth and
resource mobilization was far more important than issues concerning the welfare and
interest of the tribes. So, tribal interest and welfare were invariably sacrificed in the name
of national development. Tribes have been unable to safeguard and promote their
language, culture and religion; even though Article 19(5) of the Constitution states that a
cultural or linguistic minority has the right to conserve its language and culture. This
means that tribes as individuals and groups have right to use their own language, to
practise their own religion, to study their own history, culture, tradition, heritage, etc. The
state cannot, by law, enforce upon In some states, Acts have even been amended with a
view to protecting the interest of non-tribes. The Andhra Pradesh (Selected Areas) Land
Transfer Regulation, 1959, was amended in 1970, in an attempt to accommodate the
interest of non-tribes. The Kerala Scheduled Tribes (Regulation of Transfer of Land and
Restoration of Alienated Land) Act, 1975 has even been repealed to give effect to
concessions made to non-tribes. The issue of tribal development could not be pursued
outside of the issues of national development. In fact, measures undertaken for bringing
about rapid national development were seen as a kind of important mechanism whereby
integration of tribal society could be achieved. In fact, the national objective to build up a
productive structure for future growth and resource mobilization was far more important
than issues concerning the welfare and interest of the tribes. YOJANA January 2014 7
them any other culture or language. While the state may not have enforced any language
or culture on them, neither has it taken any positive steps worth the name towards
meeting this provision of the Constitution. Rather, the steps taken are far from being in
consonance with the provisions laid down in the Constitution. The posture they have
adopted has invariably been in the direction of assimilation into the language and culture
of the major community, rather than protection and promotion of the distinct language
and culture of the tribes. Schooling extended to tribes, for example, has invariably been
made in the language of the dominant regional community of the respective States. The
result is that tribes are increasingly losing knowledge of their own language and culture.
Indeed the promotion of language and culture has been left to tribals themselves. Yet,
because of lack of control over human, organizational and financial resources, the tribes
have not been able to take effective measures in this direction. Only where such support
has been made available in some form or the other have tribes been able to protect and
safeguard their culture. This explains why in western, northern and southern India, there
has been much more erosion of the tribal language and culture. In eastern India,
especially the northeast, the scenario is somewhat better. This has been
mainly due to the fact that in north- east India, there was a kind of
institutionalized arrangement that facilitated such development. This has
received a major boost with the creation of tribal states and autonomous
districts. This shows that a collective right such as this can be better realized
only where tribes see themselves as a nationality or nation, to govern
themselves. It is ironical that despite a large number of well meaning
constitutional provisions and laws aimed at protecting and safeguarding the
welfare and interest of the tribal communities, the process of
marginalization of the tribals has gone on unabated. Paradoxically, at the
root of such marginalization are the laws themselves. Tribes had no
tradition of reading and writing and had, hence, no tradition of record
keeping and dealing with such laws. The court language and practice had
been alien to them. In the absence of such tradition, the nontribes have taken
advantage of such laws and have been depriving tribals of their lands
through variety of ways and means. The local administration, which is
generally manned by the nontribals, has been working hand in hand with
their ethnic kinsmen to ensure smooth transfer of land from tribes to non-
tribes. Tied up with the above have also been laws that protect tribes and the
laws that are meant for general citizenry and human beings. The latter is
articulated in terms of citizenship and human rights. Indeed, rights meant
for tribes have invariably been pitied against citizenship rights and more
importantly human rights. In the process, specific laws meant for a group,
even though marginalized, have invariably come to be subjected to general
laws. On the same vein are the laws aimed at protecting tribes and those
aimed at public interest such as land acquisition act, conservation act, forest
act, wildlife sanctuary act, etc. The latter have invariably held sway over the
former under the garb of public interest and purpose. Tribal rights have
come to be sacrificed to the greater cause of the nation and public interest.
In short, those who are in charge of tribal rights are in general insensitive to
the constitutional provision and legal entitlements of the tribal communities