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TRIBAL LAND ALIENATION IN KERALA: A TALE OF PROMISES AND BETRAYALS *

Cochin University Law Review

The State of Kerala was formed on 1st November 1956, as a part of the state’s reorganization
exercise integrating Malabar with the princely states of Cochin and Travancore. Walled off by the
Western Ghats and watered by the Arabian sea, the small strip of land called Keralam (this endearing
term has been anglicized into Kerala), with only 1.2 per cent of the geographical size of India, yet
housing a population as large as that of Canada and almost double of Sri Lanka and ten times that of
Costa Rica; has attracted the attention of the world for its achievement in human development
comparable to that of the affluent countries. 1 To quote Nobel Laureate Amartya Sen, “To achieve as
much as Kerala has done for a population of its size is no mean record in World History.” 2 But behind
this entire facade there is the grim tale of the adivasis. Adivasis constitute the most run-down segment
of the Malayalee society. The most imperative reason for their wretched state of affairs can be traced
to the unabated process of land alienation.
Land is at the heart of tribal life. More than a thing of value, land to him is mother earth, which
satisfies both his material and spiritual needs. Hence depriving him of his land is to snap his
continuation as a self-respecting member of society. Infact, the root cause of all human right violations
perpetuated on them can be traced to land alienation, since the tribals depend on land for their
identity, existence, security and livelihood. 3
This study provides a detailed analysis of the problem of adivasi land alienation in the State of
Kerala and examines the legislative, executive and judicial initiatives to address the issue. Initially,
the study provides a summary of the historical evolution of the problem. It then chronicles the tussle
between the three organs of the state. A comparative analysis of the 1975 and 1999 state legislations
is also attempted. Additionally, a bird's eye view of how legal systems overseas as well as how certain
southern states in India like Andhra Pradesh and Karnataka have responded to similar issues is
discussed. Finally, it concludes by putting forward a few suggestions, which could be considered for
solving the 'quagmire.'

BRIEF HISTORY OF THE PROBLEM

* Tony George Puthucherril & Lekshmi Vijayabalan, M.Phil Research Scholars, West Bengal National
University of Juridical Sciences, Kolkatta.
1. T. R. OOMEN, KERALA EXPERIENCE 1 (1998).
2. See id.
3. See Lingappa Pochanna Appelwar v. State of Maharashtra (1985) 1 SCC 481, 491; see also Banwasi Seva Ashram v. State of Uttar
Pradesh AIR 1987 SC 374.
 2
In post-independent Kerala, large-scale estrangement of tribal lands took place mainly due to
the immigration of plainsmen to the hill areas from within and outside the state. 4 A bottle of liquor, a
pack of tobacco, or some exotic consumer goods from the plains lured the tribals into giving away their
lands. 5 Even when money was involved the amount was paltry. 6
The historic Kerala Land Reforms Act 1963, with its 'land to the tiller' policy though a boon for many
poor farmers unfortunately was a bane for the adivasis. Under the new law the occupiers of the land
(settler farmers) became the owners and the original owners (the tribals) became landless and were
reduced to the status of bonded labourers. 7 Even the little that they used to get from the settlers by
way of gratification also stopped all of a sudden. 8
This downswing in status led to the total derailment of tribal life. Many took to smuggling
activities in timber and drugs. Conditions turned worse when the settlers denuded the forests giving
way to large-scale plantations and concrete mansions, thereby reducing even the diminutive chances of
earning a livelihood for the tribals. Urbanization replaced the serenity of forest life. Wanton obliteration
of flora and fauna upset the ecological balance. This forced the adivasis to move to the cities and
towns. But what they encountered there only added to their woes. 9 Hitherto, the adivasi women were in
complete empathy with the forest and the forest based tribal economy had a feminine tinge. Their
status also took a U-turn. Prostitution became rampant and the number of unwed adivasi mothers
increased. 1 0 Thus, the adivasis who became landless coolies and vagabonds fell victims of ruthless
exploitation and human right abuses.

ATTEMPTS TO CULL OUT A SOLUTION

Our national leaders were well aware of the dangers posed by tribal land alienation prevalent
in the country. 1 1 Infact, Pandit Nehru included this issue as one of the main tenets in his tribal
panchasheel. 1 2 In 1960, the Debhar Commission also dealt with this predicament. 1 3 Meanwhile an

4. See D. Rajeev & C.V. Kumaran, Kerala Law on Tribal Lands: A Critique, 19 C.U.L.R. 141, 142 (1995).
5. While piloting the Bill the Revenue Minister observed," Their ignorance, illiteracy, social backwardness etc. are being exploited. It is
always possible to make them sell out their lands if they are treated with a little smack of tobacco and distilled arrack in the Wayanad and
Attappadi regions. It is routine to have one's signed blank papers. This needs to be stopped." See Proceedings of the Fourth Kerala
Legislative Assembly, Thirteenth Session August 5, 1975, p.201.
6. See G. Prabhakaran, Survey showed how Tribals Lost Land, THE HINDU, Oct. 16, 1996 at 4.
7. See N. S. Gopalakrishnan, Tribal Welfare Legislation in Kerala: A Critical Appraisal, 8 Ac.L.R. 81,111 (1984).
8. See T. Madhava Menon, Law and Tribal Societies in Kerala, 9 C.U.L.R. 157, 168 (1985).
9. See Murkot Ramunny, Woes of Kerala Tribals, INDIAN EXPRESS, July 14, 1996 at 5.
10. See P. I. Rajeev, Victims of Lust Await Justice, INDIAN EXPRESS, Sept. 21,1994 at 3.
11. See generally GENERAL SUMMARY OF THE REPORTS OF THE EXCLUDED AND PARTIALLY EXCLUDED AREAS
(OTHER THAN ASSAM) SUB-COMMITTEE AND THE NORTH-EAST FRONTIER (ASSAM) TRIBAL AND EXCLUDED AREAS
SUB-COMMITTEE available in VII C.A.D.
12. See K.A. Gangadharan, Tribal Welfare and Development in Kerala, 9 C.U.L.R. 173, 174 (1985).
 3
Evaluation Committee of the Kerala State Legislature pointed out the social hazards posed by such
alienation. 1 4 During the dark days of the emergency a significant meeting of the state ministers was
convened by late Prime Minister Smt. Indira Gandhi which approved fourteen resolutions aimed at tribal
welfare. 1 5 State governments were also advised to take suitable measures to restore the lands to the
adivasis.
Responding to this advice the state government headed by Sri. Atchutha Menon took serious
note of the matter. A Bill to redress the tribal land issue piloted by Sri. Baby John, the Revenue
Minister was unanimously passed as The Kerala Scheduled Tribes (Restriction on Transfer and
Restoration of Alienated Lands) Act, 1975. 1 6 It was intended to ameliorate the plight of the under
privileged tribals, “who despite paper plans and multi-point programmes are at the victims end of
barbarity, injustice, privation and sharp practice inflicted on them by the civilized gentry”. 1 7
The Act, which could be traced to Entry 6 of List III of the Seventh Schedule to the Constitution,
received the assent of the President of India 1 8 on 11-11-1975 and was further included in the Ninth
Schedule 1 9 so as to immunize it from judicial scrutiny . 2 0
However, the lackadaisical attitude displayed by successive governments made the Act remain in
cold storage for nearly eleven years. 2 1 Finally, in 1986 the government brought the Act into force with
retrospective effect from 1-1-1982 2 2 and also framed the necessary Rules. 2 3 Even though about 8,500
applications seeking restoration were received from tribals, action was not taken even on a single
petition thereby reducing the whole exercise to a farce. 2 4 Hence, even after framing the Rules, the
general atmosphere only encouraged the encroachers to continue occupying tribal lands and
successive governments turning a Nelson's eye to the issue.

13. See generally REPORT OF THE SCHEDULED AREAS AND SCHEDULED TRIBES COMMISSION (1960) available in
VIRENDER KUMAR (ed.), 4 COMMITTEES AND COMMISSIONS IN INDIA 1947-73.
14. Rajeev & Kumaran, supra note 4, at 143.
15. Gangadharan, supra note 12, at 176.
16. While piloting the Bill in the House Sri. Baby John observed: " In a state, which claims to be progressive, it is for us to think whether
there is real progress or whether the so called progress is a fallacy. When one such segment of the population is suffering from and is in
slavery, what is the point in boasting that we are progressing. It is on realisation of all these facts that the said Bill is introduced intending
to prevent assignment of such land and to scrutinise the assignments already effected. See supra note 5, at 203.
17. See V. R. Krishna Iyer, Tribal Uplift and the Rule of Law, 9 C.U.L.R. 1, 3 (1985).
18. Constitution of India, Article 252 (2).
19. The Constitution (Fortieth Amendment) Act, 1976 added The Kerala Scheduled Tribes (Restriction on Transfer of Lands and
Restoration of Alienated Lands) Act, 1975 to the Ninth Schedule as the 150th entry into this protective umbrella.
20. Constitution of India, Article 31B.
21. See C. R. Bijoy, Adivasis Betrayed: Adivasi Land Rights in Kerala, 1999 E.P.W. 1329,1330.
22. The Act was brought into force with effect from 1. 1.1982 vide an extraordinary notification in the Kerala Gazette, SRO No. 130/86
dated 24.1.1986.
23. The Kerala Scheduled Tribes (Restriction on Transfer and Protection of Alienated Lands) Rules 1986.
24. See C. R. Krishna Kumar, The Adivasi Struggle, FRONTLINE, Oct. 13, 2001, at 30.
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It was in this background that Dr. Nalla Thampi Thera, a tribal activist petitioned the High Court
of Kerala against the settlers and the state government. The Court issued a writ of Mandamus directing
the state to take utmost steps to execute the purposes of the Act within six months. 2 5
Meanwhile, the antagonists of the Act sought to confront its constitutionality in Bhavani v. State
of Kerala. 2 6 The High Court however concluded that since the Act was included in the Nin th Schedule
to the Constitution, challenge to its provisions on the ground that it violates Part III of the Constitution
could not be entertained. Again in Father Thomas Kubukatt v. State of Kerala 2 7 the High Court was
called upon to decide on the vires of the Act. It was impugned on the ground that its provisions were
violative of the basic structure of the Constitution, in particular the basic feature of rule of law.
However, the Division Bench concluded that since the aggrieved party could approach the H igh Court
under Article 226 to question the orders passed by the quasi-judicial bodies under the Act, it was not
violative of rule of law nor was there any infringement of the right to judicial review.
Even after receiving positive signals from the judiciary, the government however, kept employing
dilatory tactics. The assurance given by the then Additional Advocate General that, “utmost steps would
be taken for the disposal of the applications and that the Act would be enforced in all its rigor,” 2 8
turned out to be plain double talk. Judicial reprieve was obtained in the form of two orders permitting
extension of time by one and half years. The state filed yet another application for extension of time by
a year. Sensing that the will to implement the Act was lacking, the High Court granted extension by
only six months and also gave certain directions with a view to monitor the active progress of
implementation of the Act and of the writ. Accordingly, the concerned authorities heard and disposed of
most of the applications filed by the tribals for restoration of land. In most cases there were no appeals
and the orders for restoration became final. In this context, the court issued yet another direction to the
effect that the properties covered by orders of restoration against which no appeals are pending and in
which no compensation is payable, be delivered by the Revenue Divisional Officer's (RDO) to the
tribals, within six weeks of that order. Further, the District Superintendents of Police were to afford the
needed protection to the RDO's in carrying out the duty of restoration. 2 9 Perceiving that matters were
going out of their hands the government preferred an appeal before the Full Bench, which stayed the
directions issued by the Single Judge while granting their plea to amend the Act.

25. O.P. No. 8879 of 1988 decided on 15. 10. 1993.

26. 1989(1) KLT SN 37 Case No. 58.
27. 1994(2) KLT 25.
28. See supra note 25.
29. State of Kerala v. P. Nalla Thampi Thera 1996(2) KLT 930 (Justice P.K. Balasubramanyam observed "…What could be the excuse
for not implementing those orders? The alibi put forward is that there is organised resistance to the attempts to implement the orders. Can
a democratic state with the Rule of Law as its beacon light, bow to such illegal resistance to the implementation of a welfare legislation to
benefit the oppressed classes? Clearly it cannot. If it is permitted, it will be the very negation of the concept of Rule of Law.") Id. at 935.
 5
Accordingly, the United Democratic Front government then in power attempted to amend the Act by
an Ordinance in early 1996. But the Governor Sri. Shiv Shanker refused to sign the Ordinance on the
ground that it was election time and that the Election Code would not authorize it. As fate would have
it, it was now the turn of the rival front, viz. the Left Democratic Front to dilly-dally with the matter. On
ascending to power they promptly prepared another Ordinance but failed to get the clearance from Sri.
Kurshid Alam Khan, the Governor of Karnataka who was given additional charge of Kerala. 3 0
Thereupon, the state legislature 'unanimously' passed ‘The Kerala Scheduled Tribes
(Restriction on Transfer of Lands and Restoration of Alienated Lands) Amendment Act, 1996 amending
the 1975 Act with the sole dissent of member Smt. K.R.Gowri. 3 1 Infact, it was one of the rare moments
when one could see ruling-opposition camaraderie. The day also witnessed the adivasi leader C.K.
Janu, the convener of the Adivasi Ekopana Samithi along with her followers attempting to forcibly enter
the Assembly. 3 2 The amendment was infact an attempt to protect the rights of the settlers rather than
that of the underprivileged adivasis. A retrograde step like this from a government committed to
socialistic principles and who boasted that it was they who introduced the revolutionary land reforms,
without spilling even a single drop of blood was all the more appalling. The adivasi movement became
more aggressive. With the sensational hostage crisis staged by the Ayyankali Pada involving the
Palakkad District Collector W.R.Reddy, the first such incident in the state the adivasis signalled that
they were not willing to take things lightly. 3 3
Meanwhile, the government submitted the Bill to the President of India for his assent. However, the
President who has a constitutional duty to protect the interests of the tribals refused assent. In the light
of the Presidential refusal, the Full Bench of the Kerala High Court vacated its interim order staying the
implementation of the directions issued by the Single Judge and directed the government to implement
the Single Judge order. The government however continued to play truant. Dr.Thera once again
approached the High Court this time with a plea to invoke the most powerful weapon in the judicial
armoury - the contempt jurisdiction for wilful disobedience to the writ of mandamus. 3 4 With no way out
the government came up with a new law 'The Kerala Restriction On Transfer By And Restoration Of
Lands To Scheduled Tribes Act 1999'. 3 5 It was nothing but the 1996 Amendment Act in the garb of a
new name. The Act introduced in the Assembly by the Revenue Minister Sri. K.E.Ismail could be traced

30. Bijoy, supra note 21, at 1329.

31. See K.R.Gowri, Adivasi Land Law: Many Facts, MATHRUBHUMI, Nov. 1, 1996 at 3.
32. Bijoy, supra note 21, at 1330.
33. See We will Block Government Move: Tribal Activist, THE HINDU, Oct. 14, 1996 at 1.
34. C.C.C. 542 of 1998.
35. See Statement of Objects and Reasons of Bill No. 163, X Kerala Legislative Assembly Bills.
 6
to Entries 18 and 65 of List II. 3 6 The Act which ostensibly had as its avowed object, protection of tribal
rights in reality deprived the tribals the rights that had accrued to them under 1975 Act.
The constitutional validity of the said Act was challenged before the High Court in two Original
Petitions filed by Niyamavedi and The Peoples Union for Civil Liberties. 3 7 A Division Bench of the
Kerala High Court in this significant pronouncement held that the 1999 Act "was brought forward merely
to cloak the design to protect the illegal transferees from the tribals in the guise of enacting a law to
protect the tribals." 3 8 The crux of the judgement centred on the validity of the Proviso to Section 5(1),
Section 5(2), Section 6 and Section 22 of the 1999 Act. Proviso to Section 5(1), Section 5(2) and
Section 6 were struck down as violative of Article 14 of the Constitution as there was no nexus with the
object sought to be achieved by the Act. 3 9 These provisions were also held violative of Articles 21 4 0
and 19(1) (e) 4 1 as they contemplated displacement of the tribals to unfamiliar areas thereby failing to
preserve their habitat and culture. With regard to the constitutionality of Section 22 which repeals the
1975 Act in its entirety the court concluded that since the 1999 Act dealt with agricultural lands alone
the section suffered from the vice of irrationality and displayed arbitrariness. 4 2 Further, on the question
as to whether the 1999 Act affects the accrued rights of the tribals under the 1975 Act, the court opined
that since orders were passed under the said Act rights had been conferred on them and the same
could not be deprived. 4 3 Again as there was no invalidity to be cured in the 1975 Act, the 1999 Act
which suffers from partial infirmity could not nullify or abrogate the writ of mandamus issued under a
valid law. 4 4 So also as the 1999 Act was an attempt to destroy the rights of the tribals and also to
bypass the position emerging from the presidential refusal to assent, the court held Proviso to Section
5(1), Section 5(2), Section 6 and Section 22 of the 1999 Act to be invalid as being colourable
legislation. 4 5
Accordingly, the court struck down the aforesaid objectionable provisions as unconstitutional and
void and directed the state and the authorities under the 1975 Act to implement the orders of
restoration passed under the said Act. 4 6 This decision shall no doubt go down in the history of the

36. It was inorder to bypass the constitutional procedural hurdle that the government brought the new legislation under the State List there
by cleverly avoiding the fate of its predecessor Bill.
37. O.P. No. 25332 of 1999 and O.P. No. 26499 of 1999.
38. I d . a t 6 0

39. Id. at 67-68.

40. Id. at 72.
41. Id. at 69.
42. Id. at 81.
43. Id. at 61, 90-91.
44. Id. at 83-89.
45. Id. at 48-60.
46. Id. at 96.
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annals of the Kerala High Court as one, which sought to fortify the edifice, of a 'new tribal
jurisprudence' which was being moulded by the Supreme Court and the various High Courts of the land.
Against this decision, unfortunately, the state government has preferred an appeal before the Supreme
Court, which is still pending.
In July 2001, starvation deaths were reported in the adivasi-inhabited areas of the state. This
led to a wide spread agitation by the Adivasi Dalit Action Council with refugee camps being set up in
front of the state secretariat. This forty eight-day agitation concluded with a seven-point agreement
reached between the adivasis and the state government. As a part of the deal the government unveiled
the Tribal Rehabilitation and Development Mission (TRDM). 4 7 The main feature of this new agreement
is that nearly 42,000 acres of land are to be distributed to the tribals. However, in the land earmarked
for the purpose nearly 25,000 acres happen to be vested forests. 4 8
An important characteristic of this phase of the agitation is that the adivasis and the settler
farmers have buried their differences with even political groups representing settler farmers supporting
the tribal agitation. This may be so because the adivasis are demanding alternate lands instead of
restoration of the alienated lands in the possession of the settler farmers.
Under an earlier legislation namely, the Kerala Private Forest (Vesting and Assignment) Act, 1971
vested forestland could be given to the landless adivasis. However this could not be implemented due
to the subsequent central legislation namely the Forest (Conservation) Act 1980 which mandated the
states to get the Union government's clearance if forestland is to be diverted for non-forest purpose. 4 9
Accordingly, the state government has presently sought central clearance for allocating vested
forestland to the tribals. 5 0 This move of the state government seems to be highly risky especially in the
light of previous experience of such governmental assurances to prevent tribal land alienation proving
false. Admittedly, the loss of forests would upset the fragile ecological balance. If, sanction is accorded
by the Central Government it would give the settlers yet another opportunity to exploit the tribals and in
no time the entire story would be re-enacted. Forestlands being part of the common heritage of
mankind should not fall prey to the government's myopic policies. Such sinister moves should be
discouraged. Instead the government should find out other sources of land.
A C O M P A R A T I V E S T U D Y O F T H E 1975 A N D 1999 L E G I S L A T I O N S : D I L U T I O N I N A L T R U I S M

47. S e e C . S u r e n d r a n a t h , R a w D e a l , D O W N T O E A R T H , F e b . 1 5 , 2 0 0 2 , a t 2 0 .
48. S e e C h a n c e s f o r S e t t l e m e n t o f A d i v a s i S t i r B r i g h t e n , T H E H I N D U , O c t . 1 5 , 2 0 0 1 a t 1 .
49. S e e S e c t i o n 2 ; s e e a l s o T . N . G o d a v a r m a n T h i r u m u l k p a d v . U n i o n o f I n d i a A I R 1 9 9 7 S C
1228,1230(observing that the term forest land occurring in Section 2 of the Forest (Conservation) Act will not
only include forest as understood in the dictionary sense, but also any area recorded as forest in the
g o v e r n m e n t r e c o r d i r r e s p e c t i v e o f o w n e r s h i p a n d a c c o r d i n g l y , p r i o r a p pr o v a l o f t h e C e n t r a l G o v e r n m e n t i s
r e q u i r e d f o r a n y n o n- f o r e s t a c t i v i t y w i t h i n t h e a r e a o f a n y f o r e s t . )
50. S u r e n d r a n a t h , s u p r a n o t e 4 7 , a t 2 1 .
 8
Eventhough the objectives as set out in the Preamble to both the Acts are worded in identical
terms i.e., both seek to provide restriction on the transfer of lands by members of the scheduled tribes
in the State of Kerala and for the restoration of possession of lands alienated by such members,
regretfully the similarity ends there.
While both statutes extend to the whole State of Kerala, 5 1 the 1975 Act was to come into force
only on such date as the government may notify in the gazette, 5 2 while the 1999 Act came into force on
the 24 t h day of January 1986. 5 3 Had the lawmakers of the 1975 Act specified that it was to come into
force immediately, the issue of land alienation would have been resolved decades ago, without
snowballing into the ongoing social conflict.
Dilution in spirit can be perceived in the definitional incongruity in the term ‘transfer’ as seen in
both the Acts. 5 4 The 1975 Act enhances the scope of the term transfer by including in its cover oral
transactions too. This is highly significant because the tribal who is illiterate and ignorant may not
know the significance of recording transactions. Tribal's have high regard for the word and believe that
others also are so. Therefore, he is prepared to put his thumb impression or sign on any paper without
any hesitation. Hence, it is necessary that oral evidence be placed on a higher pedestal with the same
having dominance over all forms of documentary evidence. 5 5 But unfortunately the 1999 Act
considerably diminishes the significance of the term 'transfer' by excluding oral transactions.
The 1975 Act applied to all transfers of 'immovable property' 5 6 while the 1999 Act applies only to
transfer of 'lands' as defined to mean 'any agricultural land'. 5 7 Thus, the 1999 Act, which covers only
one species of transaction out of the several, hit by its predecessor Act is narrower in scope.
Both the Acts which are inapplicable in certain cases 5 8 prohibit transfer of immovable property /
land possessed, enjoyed or owned by a scheduled tribe member to an outsider except with the prior
written consent of the 'Competent Authority' who usually is the District Collector. 5 9 Due to the
restriction in the scope of the 1999 Act by making it applicable only to transfers of agricultural land,
tribals can now alienate their immovable property excluding agricultural land without the permission of
the district collector. Thus, its restrictive provision by providing lesser protection to the tribals infact

51. Section 1(2) of the 1975 Act and Section 1(2) of the 1999 Act.
52. Section 1(3).
53. Section 1(3).
54. Section 2 ( g ) o f t h e 1 9 7 5 A c t a n d S e c t i o n 2 ( g ) o f t h e 1 9 9 9 A c t ; s e e a l s o Rajeev & Kumaran, supra note 4, at 145-
51.
55. See generally REPORT O N D E V E L O P M E N T O F T R I B A L A R E A S ( 1 9 7 8 ) available in VIRENDER KUMAR ( e d ) , 14
COMMITTEES AND COMMISSIONS IN INDIA 1947-73.
56. S e c t i o n 2 ( b ) .
57. S e c t i o n 2 ( b ) .
58. S e c t i o n 3 o f t h e 1 9 7 5 A c t a n d S e c t i o n 3 o f t h e 1 9 9 9 A c t .
59. S e c t i o n 4 o f t h e 1 9 7 5 A c t a n d S e c t i o n 4 o f t h e 1 9 9 9 A c t .
 9
runs counter to the Preambular goals enshrined in the 1999 Act. This significant 'loophole' by
legislative design, can in the long run prove counter-productive to tribal interests since it may facilitate
further tribal land alienation.
Both the Acts seek to invalidate transfers from 1960 of immovable property / land possessed,
enjoyed or owned by a member of the scheduled tribe to an outsider. 6 0 However the Proviso to Section
5 (1) of the 1999 Act seeks to regularise all transfers of land, which do not exceed two hectares.
Further, Section 5(2) provides that if the land (agricultural land) involved is used for agricultural
purposes, transferee can retain possession of the said land upto an extent of two hectares. Thus, the
combination of these two provisions prove a lethal cocktail taking away with one hand what had been
given by the other.
Further, in cases where the transfer involved has been validated by proviso to Section 5(1) or by
Section 5(2) the government has to recompense the tribal applicant his loss by restoring an equal
extent of land by way of allotment from the government land. 6 1 This provision infact transfers the
burden from the shoulders of the illegal transferees to the public at large.
Thus, a reading of the Proviso to Section 5(1), Section 5 (2) and Section 6 will lead one to the
inescapable conclusion that the 1999 Act was a blatant attempt to protect the settler's interests.
Another questionable provision in the 1999 Act is Section 22. Even though the scope of the said
Act is restricted being applicable only to agricultural lands, Section 22 (1) seeks to repeal the 1975
Act, a legislation wider in ambit.
Procurement of immovable property / lands of the tribals in contravention of Section 4 as seen in
both the Acts is made punishable. 6 2 Magistrates of the First Class are empowered to take cognisance
of offences under both the Acts. 6 3 However, the Magistrate is not to proceed against scheduled tribe
members under Chapter X of the Code of Criminal Procedure 1973 in respect of any dispute between
the tribals and any other person claiming to be in possession or enjoyment of the tribal land. 6 4 If
necessary the government can constitute Special Courts for trying offences under the Act. 6 5
Jurisdiction of civil courts is barred with regard to matters that are to be decided or settled by the
competent authority or by the RDO. 6 6

60. Section 5 of the 1975 Act and Section 5 of the 1999 Act.
61. Section 6 of the 1999 Act.
62. Section 13 of the 1975 Act and Section 12 of the 1999 Act.
63. Section 14(1) of the 1975 Act and Section 13(1) of the 1999 Act.
64. Section 15 of the 1975 Act and Section 14 of the 1999 Act.
65. Proviso to Section 14 (1) of the 1975 Act and Proviso to Section 13(1) of the 1999 Act.
66. Section 21 of the 1975 Act and Section 20 of the 1999 Act.
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If a transfer is hit by either Sections 4 or 5 of both the Acts then the tribal is entitled to restoration
of possession or enjoyment of the immovable property / land, as the case may be. 6 7 For this, either he
or any person on his behalf can make an application either orally or in writing to the RDO, provided the
transfer had taken place before the date of commencement of the Act. 6 8 But if the transfer had taken
place after the commencement of the Act, then in addition to seeking restoration of possession or
enjoyment, the tribal could also solicit the prosecution of the person who has procured such immovable
property / land. 6 9 The RDO on receipt of an application for the above purpose shall make necessary
enquiries and if he is satisfied that the applicant or the person on whose behalf the application has
been made is entitled to restoration of possession or enjoyment, he can by order direct the person in
possession or enjoyment of immovable property / land to restore possession either to the applicant or
to the person on whose behalf the application has been made. 7 0 While passing such an order a
reasonable opportunity of being heard should be afforded to the person in possession or enjoyment of
such property or land. 7 1 All such orders should be served on the person for whom it is intended. 7 2 Any
person aggrieved by this order may within a period of thirty days from the date of service of the order
prefer an appeal to the Competent Authority whose decision shall be final and cannot be challenged in
a court of law. 7 3 If an order approved by the RDO directing the person in possession or enjoyment of
the disputed immovable property / land to restore possession thereof to the applicant or to the person
on whose behalf the application has been made is not complied with, and an appeal has not been
preferred within the stipulated time or appeal preferred, but has been dismissed then the RDO shall
evict the person who refuses to vacate the same. 7 4
In cases where possession or enjoyment of immovable property / land as the case may be has
been restored to a scheduled tribe member, it is provided that he has to pay an amount which is
equivalent to the amount of consideration received by such member at the time of the transfer. More
over if any improvements have been made in the property, then after determination by the Competent
Authority, the tribal must refund the amount so invested. 7 5 Further, it has been provided that the

67. Section 6 (1) of the 1975 Act and Section 7(1) of the 1999 Act.
68. Section 6 (2)(a) of the 1975 Act and Section 7(2)(a) of the 1999 Act.
69. Section 6 (2)(b) of the 1975 Act and Section 7(2)(b) of the 1999 Act.
70. Section 6 (3) of the 1975 Act and Section 7(3) of the 1999 Act.
71. Proviso to Section 6 (3) of the 1975 Act and Proviso to Section 7(3) of the 1999 Act.
72. Section 6 (4) of the 1975 Act and Section 7(4) of the 1999 Act.
73. Section 6 (5) of the 1975 Act and Section 7(5) of the 1999 Act.
74. Section 6 (6) of the 1975 Act and Section 7(6) of the 1999 Act.

75. S e c t i o n 1 1 o f t h e 1 9 7 5 A c t a n d S e c t i o n 8 o f t h e 1 9 9 9 A c t .
 11
government shall provide loans or grants as the case may be, to eligible persons who are liable to pay
the aforementioned amounts. 7 6
Thus, a comparative analysis of both the Acts would reveal that procedurally, both are alike.
However, it is in substantive matters that they differ. While the earlier Act contains many benign
provisions aimed at tribal welfare, unfortunately the later Act makes no room for these, thereby
substantiating the criticism that it is anti-tribal in nature.
For instance, the 1975 Act seeks to relocate the burden of proof 7 7 on the person who claims
such transfers to be valid 7 8 thus making a shift from the position contemplated in the Evidence Act
wherein the burden of proving the invalidity of the transfer would have fallen on the applicant
concerned. Inorder to reduce the incidence of fraudulent transfers the earlier Act provided that
registration of transfers of immovable property can be effected only if the conditions of transfer
contained in the Act have been strictly complied with. 7 9 So also while executing a money decree
against a tribal no right or interest held by him in any immovable property is to be attached or sold
except to the extent and manner provided. 8 0
Yet another notable feature of the earlier legislation is that, it gives suo-mottu power to the
government to direct the person in enjoyment or possession of immovable property to return the same
to the concerned scheduled tribe member after necessary inquiries and after giving a reasonable
opportunity of being heard. 8 1 As the Bill originally stood the adivasis alone could submit applications.
But on account of their backwardness and illiteracy and the adivasis not being in a position to resist
pressure by economically well placed people who may by hook or by crook try to defeat the legal
process, Section 7 was incorporated. 8 2 These welfare provisions are thus conspicuous by their absence
in the 1999 Act.

This does not mean that the 1999 Act is entirely devoid of merits. A notable feature of the 1999 Act
is that it seeks to create a Scheduled Tribe Rehabilitation and Welfare Fund which is to be utilised for
the construction of houses for tribal families and for other welfare measures. 8 3 The 1975 Act had
barred legal practitioners from appearing, pleading or acting on behalf of any party in any proceedings

76. S e c t i o n 1 2 o f t h e 1 9 7 5 A c t a n d S e c ti o n 9 o f t h e 1 9 9 9 A c t .
77. Sections 101, 102 and 103 of the Indian Evidence Act 1872.
78. Section 8.
79. Section 9.
80. Section 10.
81. Section 7.
82. See supra note 5, at 206.
83. Section 11.
 12
before the RDO or the Competent Authority or the government, except with their written permission. 8 4
However, the Revenue Minister while introducing the Bill for the 1975 Act had stated that eventhough
there was no provision to provide free legal assistance the government would make necessary
arrangements to provide the same. 8 5 The 1999 Act goes a step ahead by specifically providing legal
assistance to the members of the scheduled tribes. 8 6 Though, the provision looks innocuous and
commendable in reality it opens up the whole procedure to a cumbersome legal process. Competent
legal assistance may often be a distant dream for the tribals, with the legal assistance provided by the
state proving to be a bane. Perhaps, the greatest advantage contemplated by the 1999 Act is that it
empowers the government to assign land up to 40 ares to the landless Scheduled Tribe families within
the district they reside. Also in cases, where the possession and enjoyment of land by a Scheduled
Tribe family is less than 40 ares then the government could make good the loss so as to make it
equivalent to 40 ares. 8 7 Though in practice these hopes become illusory since fertile lands in these
areas are minimal and all that remains for the adivasi is rock-strewn, unfertile and inhospitable terrain.
Thus, a perusal of the two legislations would lead one to concur with Justice C.S.Rajan’s
observation with regard to the 1999 Act that,“…no democratic government, whose leaders day in and
out, proclaim their objects for extending the various welfare measures to the tribal people can enact
such a piece of legislation which is totally anti-tribal and defies the constitutional protection granted to
the Scheduled Tribes.” 8 8

TRIBAL LAND ALIENATION - OTHER EXPERIENCES

National Scenario
Andhra Pradesh
In the late nineteenth century, one could see large-scale immigration of non-tribals to the
virgin tribal areas situated on the Eastern Ghats in Andhra Pradesh. With this non-tribal incursion tribal
lands soon passed on to the unscrupulous moneylenders and traders. Even though a few legislations
like The Ganjam and Vizagapatnam Act 1874, The Scheduled Districts Act 1874 and The Agency Tracts
and Land Transfer Act 1917 protected the tribals, tribal exploitation continued. 8 9

84. Section 16; see also Section 13 of the Family Courts Act 1984.
85. See supra note 5, at 209.
86. Section 16.
87. Section 10.
88. See supra note 37, at 16.

89. S e e C H R I S T O P H V O N F U R E R - H A I M E N D R O F , T R I B E S O F I N D I A : S T R U G G L E F O R S U R V I V A L 3 8
(1985); see also D. Ramachandra Raju, Protective Laws in Scheduled Areas of Andhra Pradesh, 9 C.U.L.R.
149, 150-51 (1985).
 13
After the inauguration of the Constitution, Article 244 and the Fifth Schedule were made
applicable to the administration of the tribal areas in the state. Since exploitation reached breaking
point, the Governor by virtue of the powers under Para 5(2) promulgated The A.P. Scheduled Areas
Land Transfer Regulation 1959 (hereinafter referred to as LTR). Under the Regulation any transfer of
immovable property situated in the agency tracts by a member of the scheduled tribe was null and void
unless made in favour of any other member of a scheduled tribe or a registered co-operative society
composed solely of such members or made with the previous consent of the Agent in writing. 9 0 The
Agent was empowered to decree an ejectment and restore any immovable property to the transferor or
his heirs, the transfer of which was in contravention of the Regulation. 9 1 Since difficulties were
experienced in implementing the Regulation, the Andhra Pradesh Scheduled Areas Land Transfer
(Amendment) Regulation 1970 was effected.
The Supreme Court had an occasion to assess the validity of the Regulation for the first time in
P.Rami Reddy v. State of A.P. 9 2 Eventhough the challenge was rooted on the repealed Article 19 (1)(f)
acknowledging the vital importance the issues had on tribal welfare, the Court proceeded to look into
them. 9 3 Analysing the argument that the presumption embodied in Section 3(1)(b) was unreasonable
the Court observed that it was only a rule of evidence and that the non-tribals who acquired the
property of the tribals could be reasonably expected to disclose the title. 9 4 The Court then focused on
the appellant's contention that the term land was used in a restricted sense in Paragraph 5(2)(a) of the
Fifth Schedule. It was found to be devoid of merits since the term land in it's legal sense is a
comprehensive expression wide enough to include structures and further to interpret land in a narrow
sense would render the benevolent provisions impotent. 9 5 The legality of the Regulation was further
assailed on the ground that there was no rationale in restraining non-tribals from transferring tribal
lands to other non-tribals. However, the Court turned down the argument since the non-tribal economic
exploiters could not be accorded privileged treatment by permitting them to transfer tribal lands and
structures raised on them to non-tribals and make profits at the cost of tribals. 9 6

90. Section 3(1)(i).

91. Section 3(2)(a).
92. (1998) 3 SCC 433.
93. Id. at 444.
94. Id. at 449.
95. Id. at 448.
96. Id. at 446.
 14
Samatha, an NGO working in the scheduled areas of Andhra Pradesh, filed a Special Leave
Petition against the state Government for leasing out tribal lands to private mining companies. The
salient points of this historic judgement are 9 7 -
1. Since government was a person under Section 3(1) (a) of the LTR, government lands, forest lands
and tribal lands in Scheduled Areas could not be leased out to non-tribals or to private companies
for mining/industrial operations.
2. All mining leases granted by the state government in the Schedule areas and renewals thereof were
illegal and null and void and the state government was to stop all industries from mining operations.
3. The State Mineral Development Corporation or a co-operative of tribals could take up mining activity
only if they complied with the Forest (Conservation Act) 1980 and the Environment (Protection) Act
1986.
4. After the 73rd Amendment and the Panchayat (Extension to Scheduled Areas) Act, Gram Sabhas
were held competent to preserve and safeguard community resources and reiterated the right of
self-governance of adivasis.
5. In cases where similar Acts in other States do not totally prohibit grant of mining leases of the lands
in the Scheduled Area, Committee of Secretaries and State Cabinet Sub-Committees should be
constituted and decision should be taken thereafter.
6. Before granting leases, it would be obligatory for the state government to obtain concurrence of the
Central Government which would, for this purpose, constitute a Sub -Committee consisting of the
Prime Minister of India, Union Minister for Welfare, Union Minister for Environment so that the
State’s policy would be consistent with the policy of the nation as a whole.
7. It would also be open to the appropriate legislature, preferably after a thorough debate/conference
of all the Chief Ministers, Ministers concerned, to take a policy decision so as to bring about a
suitable enactment in the light of the guidelines laid down above so that there would emerge a
consistent scheme throughout the country, in respect of the tribal lands under which national wealth
in the form of minerals, is located.

97. S e e g e n e r a l l y S a m a t h a v . S t a t e o f A n d h r a P r a d e s h a n d O t h e r s ( 1 9 9 7 ) 8 S C C 1 9 1 ( t h i s S p e c i a l L e a v e
Petition (SLP (C) No.17080-81/95) was filed to resolve mutually inconsistent law adumbrated by the two
Division Benches of Andhra Pradesh High Court in Writ Petition Nos. 9513/93 and 7725/94. Here Samatha and
others challenged the validity of the Andhra Pradesh Scheduled Area Land Transfer Regulation (1 of 1959), as
amended by Regulation II of 1970 and the Mining Act 1957 permitting the grant of mining leases of
Government land in the scheduled area to the non-tribals).
 15
8. Finally, the Supreme Court also ruled that at least 20% of the net profits should be set up apart as a
permanent fund for providing basic facilities such as water resources, schools, sanitation, health,
education, roads and other public amenities.
Samatha was a triumph for the adivasis who have been struggling to protect their constitutional
rights to life and livelihood. Writing on the judgement, Dr. Rajeev Dhavan observes: 9 8
Mabo and Samatha are two remarkable judgements of
the late twentieth century on the rights of aboriginals and
tribals. On June 3, 1992, the High Court of Australia
decided to declare that all the land, which belonged to the
aboriginals, had been wrongly misappropriated by the white
settlers and had to be returned to the aboriginals. Two
centuries of colonial history was reversed. White colonials
had assumed that the land of the natives was res nullius
(owned by no one). The Mabo case judgement was a brave
and courageous decision. It had a cathartic influence on the
white colonial conscience. It was electrifying for tribal
communities throughout the world.
On July 11, 1997, the Indian Supreme Court decided the
Samatha case, which was no less significant. Breathing new
life into the limping Fifth and Sixth Schedules of the
Constitution, the Supreme Court in a two:one split
judgement (Ramaswami and Saghir Ahmad JJ for the
majority and Patnaik J., dissenting) declared that tribal land
was for the tribals to the exclusion of outside corporate
industrialists wishing to ruthlessly exploit the area and the
tribals. But, despite the directions given in the judgement to
undo the injustices of history, `Samatha' was soon
forgotten. It was not given the acclaim accorded to `Mabo'.
Few people knew about it. The State Governments did not
implement the directions given in the judgement. The Union
Government thought the judgement a nuisance. No political
party hailed the judgement as one of the greatest on
affirmative action.

98. S e e Rajeev Dhavan, Mabo and Samatha, THE HINDU, Mar. 9, 2001 at 10.
 16
In the Mabo case, a white nation was prepared to re-
examine its colonial history with remorse; and set the
situation right. Independent India denied a similar benefit to
poor, exploited tribals who had owned and lived on tribal
land for centuries by its attitude towards the Samatha case
judgement.

In recent years, there is a sinister attempt by the Union government to subvert Samatha, which in
the words of the Attorney General is "the law of the land and holds the field". 9 9 Instead of implementing
the decision efforts were made to seek its reversal in the Supreme Court. When the Supreme Court
rejected this attempt, the Union Government approached the Attorney General Mr. Soli Sorabjee for
advice. Overlooking the fact that it was he who had initially appeared for the petitioners thereby being
partly responsible for this historic judgement, the Attorney General advised that the legal basis for
Samatha could be removed by a constitutional amendment and that the same would not be violative of
the basic structure of the Constitution. 1 0 0 The Department for Legal Affairs and the Ministry for Law and
Justice accepted the opinion expressed by the Attorney General. Accordingly, the Ministry Of Mines in
a secret note addressed to the Committee of Secretaries stressed on the need to amend the Fifth
Schedule thereby proposing to let the wave of economic reforms sweep into the hitherto untouched
forest and hilly areas. 1 0 1 The proposed amendment is in the form of an "explanation" to Paragraph 5(2)
which clarifies that no regulation could take away the government's power to allot land in scheduled
areas to a non-tribal for undertaking any "non-agricultural operations including reconnaissance or
prospecting or mining." 1 0 2 Meanwhile, the President in his Republic Day speech issued a veiled warning
against plotting to amend the Fifth Schedule of the Constitution. Accordingly, on March 15, 2001 the
Prime Minister replied in the Rajya Sabha that the Government has no intention of amending the Fifth
Schedule to overcome Samatha. 1 0 3
Unfortunately, Samatha received the greatest blow from the least expected quarter when the
Supreme Court speaking through a three judge Bench in the BALCO Disinvestment case 1 0 4 cast doubts

99. See Secret Note, Government of India Ministry of Mines (visited May 25,
2 0 0 2 ) < http://www.mmpindia.org/Mining%20secret%20note.htm>.
100. See id.
101. S e e M a n o j M i t t a , D i s p l a c e m e n t i s n o t t h e I s s u e , T H E N E W I N D I A N E X P R E S S , S e p t . 2 1 , 2 0 0 0 a t 6 .
102. S e e s u p r a n o t e 9 9 .
103. S e e A f t e r m a t h ( v i s i t e d M a y 2 7 , 2 0 0 2 ) <http://www.mmpindia.org/Aftermath.htm>.
104. S e e g e n e r a l l y BALCO Employees Union v. Union Of India SCALE 2001 (8) 541 ( M / s B h a r a t A l u m i n i u m C o m p a n y
Limited or BALCO a Government of India undertaking, in 1968 with necessary state assistance acquired tribal
lands for setting up it's establishment. In 1999 with the setting up of the Department of Disinvestment, the
Government of India decided that BALCO needed to be privatised. The government thereupon accepted the
 17
by way of obiter on 'the law of the land as hailed to be settled by Samatha'. Justice Kripal speaking for
the court expressed ''strong reservations with regard to the correctness of the majority decision in
Samatha", which interpreted the Fifth Schedule to the Constitution since under Article 145(3) only a
Bench of five judges could decide any substantial question of law as to the interpretation of the
Constitution. However, in Samatha it was a Bench of three judges who by majority of 2:1 interpreted
the Fifth Schedule.105
The A.P. government also sought to amend the LTR so as to facilitate the setting up of an
Alumina plant and exploit the vast bauxite reserves in the Srikakulam forest. 1 0 6 Accordingly, the
government suggested the Tribal Advisory Council to amend the LTR of 1970 to exempt from its
purview industrialists who bring capital for overall development of the agency Areas. The Tribal
Advisory Council in which the ruling Telugu Desam Party has majority approved the amendment. 1 0 7
However public backlash and stiff opposition forced the Chief Minister Sri. Chandra Babu Naidu to
issue a statement, indicating withdrawal of the proposed amendment. 1 0 8

Karnataka
The most important measure initiated by the State of Karnataka for the advancement of the
members of the Scheduled Castes and the Scheduled Tribes was the granting of government lands free
of cost or at concessional rates with restrictions on the right of disposal. This was done with the fond
hope that they would retain them, cultivate them personally and improve their conditions. But hopes
were soon belied when it was found that large tracts of land were sold off for paltry sums contravening

highest bid offered by Sterlite Industries and 51% of the equity was transferred to this MNC .The validity of
this decision of the Union Government was the primary issue in this case. The Court speaking through Justice
B.N. Kripal unanimously held that the process of disinvestment was a policy decision involving complex
economic factors and it was neither within the domain of the courts nor within the scope of judicial review to
embark upon an enquiry as to whether a particular public policy or whether a better public policy could be
evolved. More important from the tribal point of view, was the fact that the Learned Justices expressed strong
reservations with regard to the correctness of the majority decision in Samatha. Samatha was held to be
inapplicable to the instant case since Section 165(6) of the M.P. Land Revenue Code 1959 did not contain any
absolute prohibition of the type contained in Section 3(1) of the Andhra Pradesh Regulation, which infact was
the basis of the decision in Samatha. As far as alienation of tribal lands on which the industry was set up, it
was held that Section 165(6) of the M.P. Land Revenue Code 1959 even before and after its amendment did
not prohibit the giving of tribal land by way of lease to the non-tribals. The land was validly given to BALCO
a number of years ago and that it was not open to the State of Chattisgarh to take a summersault and challenge
the correctness of it's decision.).
105. I d . a t 577.
106. S e e R . J . R a j e n d r a P r a s a d , E y e i n g T r i b a l L a n d , T H E H I N D U , J u l y 1 1 , 2 0 0 0 a t 1 0 .
107. S e e R a m e s h . S u s e e l a , N o M u t u a l C o n s e n t o n L T R A m e n d m e n t ? , T H E H I N D U , A u g . 2 3 , 2 0 0 0 a t 7 .
108. See supra note 103.
 18
the terms of the grant. 1 0 9 Inorder to remedy this, the Karnataka Scheduled Castes and Scheduled
Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 was enacted. 1 1 0
Its purpose was to prohibit transfer of certain lands granted by the government to persons
belonging to SC's and ST's and for restoring such lands to them. 1 1 1 Prior to the Act, transfers of
granted land in breach of the condition relating to the prohibition of such transfer were only voidable.
The Act brought about a radical change by rendering such transfers void . 1 1 2 Further, transfer of granted
lands from the day the Act came into force needed the prior permission of the government . 1 1 3
The Assistant Commissioner after giving reasonable opportunity of being heard can take
possession of granted lands if he is satisfied after enquiry that the transfer is null and void. 1 1 4 Such
lands are to be restored to the original grantees or their legal heirs and where this is not practicable it
shall vest with the state free from all encumbrances. Thereupon, the government could grant such
lands to the SC's and ST's. 1 1 5 Such an order was to be final and could not be challenged in a court of
law. 1 1 6 The vires of the Act was assailed before the Karnataka High Court wherein the court rejected
the contentions and upheld the validity of the Act. 1 1 7
In an appeal before the Supreme Court, 1 1 8 the principal objection was to the provisions which
nullified transfers of granted lands effected prior to the Act. The appellants asserted that the transfers
were only voidable and not void. Furthermore, the power to recover possession of the granted lands
defeating the vested rights of bonafide purchasers who were in possession and enjoyment for years
was contented to be unconscionable, unjust and invalid. The Court however repelled these arguments
since the title acquired by such transfer was defeasible and could be defeated by appropriate action
taken in this regard. 1 1 9
Sections 4 and 5 were impugned as violative of Article 14 as it made special provisions only
with regard to SC's and ST's excluding other communities. However, the Court turned it down, since the

109. S e e V . B . C o u t i n h o , T r i b a l P r o t e c t i o n i n K a r n a t a k a : A n A p p r a i s a l, 9 C . U . L . R . 1 1 7 , 1 1 8 - 1 2 0 ( 1 9 8 5 ) .
110. A c t N o . 2 o f 1 9 7 9 , w h i c h c a m e i n t o f o r c e o n 1 . 1 . 1 9 7 9 .
111. S e e P r e a m b l e ( s t a t i n g t h a t , " [ t ] h e o b j e c t o f t h e A c t i s t o p r o v i d e f o r t h e p r o h i b i t i o n o f t r a n s f e r o f c e r t a i n
lands granted by Government to persons belonging to the Scheduled Castes and scheduled Tribes in the State
and for restoration of such lands to such persons.").
112. S e c t i o n 4 ( 1 ) ; s e e a l s o R . C h a n d e v a r a p p a v . S t a t e o f K a r n a t a k a ( 1 9 9 5 ) 6 S C C 3 0 9 ( h o l d i n g t h a t t r a n s f e r s
of assigned lands in violation of the conditions stated in the cultivation chit that the assignee should remain in
personal cultivation and should not alienate the land was opposed to public policy and hence violative of S.23
of the Indian Contract Act, 1872, R. 43(5) of the Mysore Revenue Code, and the prohibitory clause under
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978).
113. S e c t i o n 4 ( 2 ) .
114. S e c t i o n 5 ( 1 ) ( a ) .
115. S e c t i o n 5 ( 1 ) ( b ) .
116. S e c t i o n 5 ( 2 ) .
117. L a x m a m a v . S t a t e A I R 1 9 9 3 K a n t . 2 3 7 .
118. M a n c h e g o w d a v . S t a t e o f K a r n a t a k a ( 1 9 8 4 ) 3 S C C 3 0 1 .
119. I d . a t 3 0 8 .
 19
classification had a clear nexus to the object sought to be achieved. 1 2 0 The Act was again attacked as
unjust and unreasonable since there was no provision for appeal against the order of the concerned
authority. However, the Court refused to go into the aspect since it was appraised of later amendments
to the Act, which provided for appeals against the orders of the Assistant Commissioner. 1 2 1
Another ground of attack centred around the contention that Sections 4 and 5 are violative of
Article 19 (1) (f) since they empowered the authority to take possession of granted lands without
payment of compensation. The argument was held to be with out merit since the transferees had
acquired the lands improperly and illegally and had only a defeasible legal right. 1 2 2 The contention that
the Act is violative of Articles 31 and 31-A was also rejected on the same ground. 1 2 3
Thus, legislative wisdom in these states indicated that tribal life centred on their land and that
they need protection from the 'civilised gentry' who were out to acquire these lands. The respective
legislations were infact based on the concept of distributive justice. The judiciary was also sympathetic
to the tribal cause and had no hesitation in endorsing the validity of these laws by relying on Article 46
of the constitution. .
When one compares these legislations with the 1975 and 1999 Kerala Acts it can be seen that the
1975 Act and the other above mentioned legislations belong to the same genus- the avowed object
behind all of them being similar. However, the same cannot be said of the 1999 Act which is annhilative
of tribal rights

Native American Land Rights

Red Indians were the first to inhabit the Americas. It was only in 1492 when Christopher
Columbus sailed across the Atlantic Ocean that the Europeans came in contact with the ' New
World'. 1 2 4 The Anglo-American concept of property right was alien to the American Indian, who viewed
land as a collective tribal resource rather than something that could be held in fee simple by
individuals. 1 2 5 The British colonisers recognised the legal right of the Native Americans both to govern
themselves and to own the land. Aboriginal land ownership could be terminated only by treaty. 1 2 6
Treaties ceded territory to the British and correspondingly the British recognised undisputed tribal

120. I d . a t 3 1 3 .
121. I d . a t 3 1 4 .
122. I d . a t 3 1 1 .
123. I d . a t 3 1 2 .
124. See 1 0 T H E W O R L D B O O K E N C Y C L O P E D I A 1 3 0 ( 1 9 9 4 ) .
125. S e e D a n i e l G K e l l y , J R . , I n d i a n T i t l e : T h e R i g h t s o f A m e r i c a n N a t i v e s i n L a n d s T h e y H a v e O c c u p i e d S i n c e
Time Immemorial 75 COLUM. L. REV. 655,656(1975).
126. 7 W E S T ' S E N C Y C L O P E D I A O F A M E R I C A N L A W 2 9 0 , 2 9 1 - 9 2 ( 1 9 9 8 ) .
 20
ownership and tenure over the remaining, non-ceded land. 1 2 7 For much of the colonial period the
European powers dealt with the Indian tribes as independent sovereign nations, purchasing their lands
by treaty and fully recognising their fee interest in the country they occupied. 1 2 8
By the time of the American Revolution, the prevailing attitude towards tribal property rights
changed. After independence although the United States continued the colonial practice of obtaining
Indian lands by treaty it did not share the view that Indian tribes held full legal title to lands within its
territorial boundaries. 1 2 9 Tribal land rights came to be governed by Federal law, when Chief Justice
Marshall formulated the "doctrine of discovery." 1 3 0 As the European nations wanted to appropriate the
wealth of the New World, to avoid conflict among them the proposition that discovery of the New World
by the Europeans who came there first gave them exclusive title was developed. Accordingly, the
Federal Government, as the successor-in-interest of the original discoverers, holds the fee to virtually
all Indian lands within its jurisdiction and the tribes themselves hold only the right to occupancy and
use. 1 3 1
Consequently, another distinctive aspect of tribal land rights that developed is that of restricted
alienability. Since the Indian title in lands is only a right of occupancy, the fee being in the United
States, an Indian Nation or tribe is incapable of alienating lands except to the United States or with its
consent to third parties. Hence, since the tribe cannot sell, neither can the individual members, for they
have neither an undivided interest in the tribal land nor a vendible interest in any particular tract. 1 3 2
Treaties between the United States and the Indian tribes became a primary means of
extinguishing Indian title and opening lands for settlement. Tribes would cede vast territories to the
United States in exchange for some measure of consideration and, at the same time, reserve some of
its aboriginal territory for its continued occupancy as a homeland known as "reservations." 1 3 3 The
demand for the opening of more lands often resulted in the United States negotiating additional treaties
with tribes by which Indian title to more lands was extinguished and reservations accordingly reduced
in size. There are approximately 300 Federal Indian reservations in the United States. 1 3 4 On an Indian

127. A r m i n R o s e n c r a n z , N a t i v e A m e r i c a n T r i b a l P e o p l e s i n t h e U n i t e d S t a t e s , 9 C . U . L . R . 6 7 ( 1 9 8 5 ) .
128. S e e J o h n E d w a r d B a r r y , O n e i d a I n d i a n N a t i o n v . C o u n t y o f O n e i d a : T r i b a l R i g h t s o f A c t i o n a n d t h e I n d i a n
T r a d e a n d I n t e r c o u r s e A c t, 8 4 C O L U M . L . R E V . 1 8 5 2 , 1 8 5 3 ( 1 9 8 4 ) ( C a s e C o m m e n t ) .
129. S e e i d ; s e e a l s o U . S . C O N S T . a r t . 1 , s . 8 , c l . 3 ( s p e c i f i c a l l y r e f e r s t o I n d i a n t r i b e s w h e r e i t s a y s " C o n g r e s s
shall have the power to regulate Commerce with foreign nations, among the several states, and with the Indian
tribes.").
130. J o h n s o n v . M ' I n t o s h 2 1 U . S . ( 8 W h e a t . ) 5 4 3 , 5 7 2 - 5 7 3 ( 1 8 2 3 ) .
131. I d . a t 5 8 7 ; s e e a l s o P h i l i p P . F r i c k e y , M a r s h a l l i n g P a s t a n d P r e s e n t : C o l o n i a l i s m , C o n s t i t u t i o n a l i s m , a n d
Interpretation in Federal Indian Law, 107 HARV. L. REV. 381,385-90(1993).
132. B a r r y , s u p r a n o t e 1 2 8 , a t 1 8 5 4 .
133. S e e s u p r a n o t e 1 2 4 , a t 1 7 4 .
134. S e e i d .
 21
reservation the tribal government performs many of the same functions that state governments do.
There are tribal court systems, departments of justice and police forces on most reservations. 1 3 5
Recently, the Seminole Indians proved aboriginal possession of the entire peninsula of Florida
before the United States bought it for an unconscionably low price; a group of Alaskan Indians
established its right to recover against the government for unlawful trespasses on the 56.5 million acre
North Slope; and more recently, a tribe of Indians in New York State, stating a present right to
possession of six million acres of land under Federal law, found a forum in United States District Court
for its demand of fair rental value for the deprival of possession since the eighteenth century. 1 3 6 The
success of these recent litigations demonstrates the growing receptiveness of Congress and the Courts
to claims previously supported only by force of moral suasion. The Courts have granted Indians
recovery against the government for third party interference on native lands on the theory that it
breached its fiduciary duty to protect the Indian lands from such interference. 1 3 7 Thus, even from Chief
Justice Marshall's time the accepted principle in American Jurisprudence is that the tribes are "
domestic dependent nations or communities ", or "wards of the nation", "in a state of pupilage" and "
the relationship with the federal government resembling that of a ward to his guardian". 1 3 8
This position holds good even in our context. The very fact that the Constitution of India
contains many principles aimed at tribal welfare stands testimony to the fact that the Founding Fathers
wanted to give special protection to the "invisible fourth world within the Indian third world." 1 3 9 The
state was not only obligated to," promote with special care the educational and economic interests of
the weaker sections of the people", but it also had an additional duty, " to protect the SC's and ST's
from social injustice and all forms of exploitation." 1 4 0 Thus, the Constitutional Fathers had intended to
create a fiduciary relationship between the state and the scheduled tribes. Kerala by enacting the 1999
Act has committed breach of this fiduciary duty that it owes to its adivasis.
CONCLUSION AND SUGGESTIONS
Kerala enacted the 1975 Act with much fanfare inorder to provide succor to the adivasis. This
Act was in consonance with International Human Right Instruments like ILO Convention 107 ratified by

135. S e e g e n e r a l l y W a r r e n H . C o h e n & P h i l i p J . M a u s e , T h e I n d i a n : T h e F o r g o t t e n A m e r i c a n , 8 1 H A R V . L .
REV.1818 (1968).

136. K e l l y , s u p r a n o t e 1 2 5 , a t 6 5 5 ; s e e a l s o M a r k S . C o h e n , A m e r i c a n I n d i a n S a c r e d R e l i g i o u s S i t e s a n d
Government Development: A Conventional Analysis in an Unconventional Setting, 85 MICH. L. REV. 771, 774
(1987) (Notes).
137. R e t h i n k i n g t h e T r u st D o c t r i n e i n F e d e r a l I n d i a n L a w , 9 8 H A R V . L . R E V . 4 2 2 , 4 2 3 - 2 8 ( 1 9 8 4 ) .
138. 2 7 A M E R I C A N J U R I S P R U D E N C E 5 4 5 ( 1 9 5 4 ) .

139. I y e r , s u p r a n o t e 1 7 , a t 3 .
140. C o n s t i t u t i o n o f I n d i a , A r t i c l e 4 6 .
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India, Part II of the ILO Convention No. 169, Concerning Indigenous and Tribal Peoples in Independent
Countries 1989 and Part VI of the United Nations Draft Declaration on the Right of Indigenous Peoples
1994. 1 4 1 The Act was also in tune with the concept of distributive justice as embodied in the
constitutional provisions. However, as the history of the law reveals at every stage successive
governments for political suitability was backtracking and putting hurdles in its speedy and effective
implementation thereby encouraging the settlers to bludgeon the Act. Infact, the government's frigid
and moronic attitude stripped the tribals of the benefits that would have accrued to them under the
1975 Act.
In such circumstances, as the cases discussed above illustrate it was the judiciary, which came to
the rescue of the tribals. Right from upholding the constitutionality of the 1975 Act the judiciary has
consistently played an active role in upholding adivasi land rights. Infact under judicial supervision the
concerned officials had even identified the alienated tribal lands and only the restoration process
remained. It was to bypass this inconvenience the government enacted the 1999 Act. The said Act
which runs counter to the International and Constitutional mandates was an outrageous attempt to
appease the settlers at the expense of the tribals. It is indeed lamentable that the lawgivers who
initiated the 1999 Act failed to appreciate the benevolence in the 1975 Act. However the judiciary once
again demonstrated its commitment to the rule of law and the constitutional mandates when it struck
down certain provisions of the Act on the ground that it was anti-tribal in nature.
Thus, in this struggle between the tribal and the non-tribal, which partakes the character of a
race between a handicapped one-legged person and an able bodied two-legged person, when the other
two branches of the state by their action or inaction has infringed the rights of the have-nots the
judiciary as the upholder of scales of justice stepped in to repair the damage. Here the fight between
the legislature and the judiciary is reminiscent of the duel between the Supreme Court and the
Parliament fought vigorously in the arena of both property rights as well as the amending powers in the
Constitution.
Like the two sides of a coin there is also another side to the story i.e. the story of the settlers.
One cannot ignore the fact that it was they who toiled to convert these virgin lands into highly
productive ones. Like the tribals, the settlers have also made these lands their homes. If a solution has
to be found to this tribal quagmire, the government has to first adopt a pragmatic approach. The
government should either implement the High Court decision which directs the State and its authorities

141. S e e g e n e r a l l y R u s s e l L a w r e n c e B a r s h , I n d i g e n o u s P e o p l e s i n t h e 1 9 9 0 s : F r o m O b j e c t t o S u b j e c t o f
International Law?, 7 HARV. HUM. RTS. J. 33(1994); see also Siegfried Wiessner, Rights and Status of
Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 HARV. HUM. RTS. J. 57
(1999).
 23
under the 1975 Act to implement the orders for restoration passed under the said Act or expedite the
proceedings before the Supreme Court. As far as protecting the interests of the settlers is concerned
the crores of rupees pumped in to improve the tribal lot could be used to compensate them. We already
have a precedent in land reforms wherein lands were acquired from the Jenmis (land lords) and
distributed to the tillers. Strong political will of this nature is the need of the hour.
The root cause of all human right abuses perpetuated on the adivasis can, as stated earlier be
traced to tribal land alienation. Abuses will continue to take place and welfare measures will fail to
yield results unless and until this contentious issue is put to rest once and for all. When the world all
over has recognised the intimate relationship, which the tribal shares with his land, the State of Kerala
seems to give less regard to this vital aspect. Thus, whatever the economic indices indicate and
whatever be the development that this small state has achieved, behind all this gloss in ‘God’s own
country,’ the most literate State in India, the worst kind of human right violations are taking place on an
antediluvian group and that too with active state patronage.
A few suggestions for solving the quagmire:
1. The government should implement the High Court decision, which directs the state to implement the
orders for restoration passed under the 1975 Act or expedite the appeal before the Supreme Court.
Taking into account the precarious forest situation in Kerala attempts to give vested forestlands to
the tribals should be discouraged.
2. Occupation of tribal lands through deceit or use of force should be made an offence.
3. There should also be a general prohibition on all transfers by tribal to non-tribals of any interest in
land whether by sale, mortgage, gift or lease.
4. A passbook / registry incorporating details regarding the land in possession of the tribal including
the details of the standing timber thereon should be kept in the custody of the tribal concerned.
5. Special courts having both civil and criminal jurisdiction should be established to deal with tribal
land issues and other cases of human right violations. Offences against the scheduled tribes made
punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989,
all offences punishable under any other law in force in so far as it relates to the scheduled tribes,
matters coming under the 1975 Act and other laws of a like nature should be assigned to this court.
The presiding officer should be an officer not below the rank of a District Judge. This court should
work in tandem with a Special Investigating Officer. The procedure in the special court should be
simple, less cumbersome and result oriented. Court fees and other incidental expenses should be
waived in the case of tribals as plaintiffs. There should also be provision for free legal aid, with
Standing Counsels appointed to take up tribal briefs. Suitable amendments to the Law of Evidence
 24
should be made giving primacy to oral over documentary evidence relaxing the best evidence rule.
In the same vein the rule regarding burden of proof should be changed shifting the burden from the
tribal to the non-tribal in all cases of dispute involving tribal land. It is also highly necessary that
the orders made by the special court should be implemented within a reasonable time and the
responsibility for all the necessary action in this regard should be placed on the special
investigating officer. Appeals should lie only to the High Court.
6. There should be a special investigating officer in each district attached to the special court who has
power to investigate cases of rights violation against the tribals. If he is satisfied about the
genuineness of the complaint he should refer the same to the special court. Officers of the tribal
and forest department including police officers should render all possible assistance to the
investigative officer in the discharge of his functions.
7. A right of pre-emption should be given to co-tribals and tribal landless labourers in case of disposal
of land by the tribal. If a tribal is unable to sell his land on reasonable terms the government should
acquire it on payment of appropriate compensation.
8. Prohibition should be strictly enforced in tribal areas since liquor is one of the major weapons used
by the exploiters to lure the tribals in parting with their lands for a song. So also co-operative credit
system should be made available to the tribals in order to prevent exploitation by moneylenders.
9. Tribal areas of the state should be brought under the purview of the Fifth Schedule. This is
necessary to protect their cultural identity, property and other legitimate claims and interests free
from any nefarious interference of outsiders.
10. Eventhough the Constitution contains provisions for tribal welfare unfortunately none of the three
lists in the Seventh Schedule contain any entry with regard to scheduled tribes. Accordingly only the
Parliament can legislate in respect of tribal welfare by exercising its residuary powers. So the
Constitution should be suitably amended to plug in the loophole. India, should also be a signatory to
the International human rights instruments extolling tribal welfare.