Enabling access to justice for the poor and tribals

Scheduled Areas Tribals - Lack of legal awareness and absence of legal support/assistance/aid In spite of the strong Land Transfer Regulations prohibiting the transfer of lands in favor of non-tribals, more and more lands are passing into the hands of non-tribals & non-tribals hold as much as 48% of the land in Scheduled Areas - Out of 70,183 cases decided under Land Transfer Regulations, 33,319 (47.47%) cases involving 1, 62,989 Acres (51.77%) were decided against tribals *** Poor owning small piece of land either assigned by the government or own land not able to protect their lands in spite of many pro poor land legislations they are fighting unsuccessful legal battles in thousand of cases in various courts from the grass root to state level the reason is the same lack of legal awareness and absence of legal support/assistance/aid Legal assistance is a necessary sine qua non for justice and where it is not provided, injustice is likely to result and undeniably every act of injustice corrodes the foundations of democracy and rule of law.
*** I Indira Kranthi Patham, implemented by the Society for Elimination of Rural Poverty, Department of Rural Development, Government of AP has been working towards building self-managed institutions of the poor which provide a platform for them to come together and initiate collective action against poverty. The whole idea behind this strategy is the conviction that poor have the potential to come out of poverty that needs to be harnessed and for doing the same they require their own organizations and facilitators to provide support in their endeavor. Indira Kranthi Patham is a statewide, community demand driven, rural poverty alleviation project. All project interventions are planned and implemented by the institutions of the poor. It builds on 15 years of statewide rural womens self-help and thrift movement in the state. The core mission of the project is deepening the thrift movement, providing it an institutional structure and nurturing and ustaining these institutions for comprehensive poverty eradication. With this objective in mind, the poor are organized into self help groups which are federated at village, mandal and district levels as Village Organizations, Mandal Samakhyas and Zilla Samakhyas providing the required platform for them to address issues of poverty. The State of AP has the largest network of organizations of the poor. These Community Based Organizations are taking up activities like food security, expansion of livelihoods, access to credit, creation of new employment opportunities, secured asset base, collective marketing, enhanced access to services like health and ***

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education etc. In this they are actively supported by facilitators who are drawn from the community and are trained and equipped to deal with such issues.

Self- Managed Community Based Organizations of the Poor

Zilla Samakhya (ZS)

Mandal Samakhya (MS)

Mandal Samakhya (MS)

Village Organization (VO)

Village Organization (VO)

Village Organization (VO)

Village Organization (VO)

SHG

SHG

SHG

SHG

SHG

SHG

SHG

SHG

SHG = Self Help Groups of women, VO = Federation of SHGs at Village level, MS = Federation of VOs at Mandal level, ZS = Federation of MSs at District level

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II Land is one asset which almost every rural man or woman relates to. Ownership of land or lack of it affects both the economic and social status of a person in the rural society. It is a symbol of dignity. It is self-respect and it is power. In the rural areas, a person is worth the land he possesses. It can make or unmake him. And suffering from other traits of poverty like lack of voice, bargaining power, access to knowledge etc., the poor suffer from lack of access to secured title or possession over the land which is a critical resource in rural areas. The Government of Andhra Pradesh since inception has been very proactive in making efforts to secure the poor greater control over land. Till now about sixty lakh acres of government land, ceiling surplus land, bhoodan land etc. have been distributed to the poor. In spite of the efforts made by the Government, the poor face problems in getting secured title or possession over the lands. If they have physical possession, they do not have title to it. So they cannot invest in increasing its productivity. If they have title, they do not know where their parcel of land is located. If they have both, their land is locked in litigation going through a hierarchy of courts at the end of which they are not sure of getting justice. In addition to the above common problems, tribals in tribal area face threat of losing completely to non-tribals. In tribal areas land alienation by the tribals is very high in spite of stringent land transfer regulations. The fact that poor are slowly and silently pushed away from land ownership is evident from the fact that as per census figures the percentage of agricultural laborers among Scheduled Castes who historically fall under the category of poorest of poor has increased from 57% in 1961 to 72% in 1991. In tribal areas about 48% of the land is in the hands of the non-tribals and as per the information provided by Tribal Cultural Research and Training Centre (Dept. of Tribal Welfare) more than 50% of the cases under Land Transfer Regulations are going in favor of non-tribals. It has been the experience of IKP that the poor are not able to take advantage of the Governments pro-poor land legislations and programmes as the implementing machinery is not fairly supported to enforce the same and the poor also do not have a sensitive support mechanism to help them in accessing information, knowledge, records, justice etc. The need for a system which provides a platform to them and a facilitator who supports them in dealing with their land issues is strongly felt. III Recognizing the need for a sensitive support mechanism for the poor and facilitators who assist in getting their land issues resolved, the Mandal Samakhyas and Zilla Samakhyas have not only hired the services of people with legal and revenue backgrounds but also are training their own community members in land matters so that they can themselves handle their land problems. It is a multipronged approach where the Samakhyas are also putting in place support structures like land centers where required information and records are made available, a panel of lawyers to help them fight out their court cases, a group of youth from the community trained in survey etc. to handle the issue from all the angles.

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IV Giri Nyayam Land is the principal source of livelihood for the tribals. The dependence on land by the tribals for livelihood is enormously increasing due to degradation of forests (other important source of livelihood) and lack of or the inability to use the alternate avenues of employment. This principal source of livelihood is under threat from non tribals. To prohibit transfer of lands in favor of non-tribals, Andhra Pradesh Schedule Areas Land Transfer Regulation was enacted in the year 1959 and subsequently amended in 1970, 1971 & 1978. Andhra Pradesh Schedule Areas Land Transfer Regulation, 1959 (popularly referred to as LTR) prohibits the transfer of immovable property by any person except in favor of Scheduled Tribes. Authorities were constituted for adjudication of disputes under LTR, baring the jurisdiction of Civil Courts. In spite of stringent provisions in the Regulation, more and more lands are passing into the hands of non-tribals. Non-tribals hold as much as 48% of the land in Scheduled Areas. From the inception of LTR till date, as per the information provided by TCR&TI, 3, 21,685 acres of land was found to be alienated and 72,001 cases were booked. As per one study these are only half of the actual land alienations happening in Scheduled Areas. Out of theses cases booked under LTR, 70,183 cases were decided out of which 33,319 cases (47.47%) were decided against tribals involving 1,62,989 acres of land. In the High Court of Andhra Pradesh about 300 cases are pending involving about 2500 acres of land under LTR. Counter affidavits by tribal welfare authorities were filed only in 86 cases. Stay orders are granted in 47 cases. In all most all cases tribals are not a party and because of this the voice of the tribals is not heard in the court. The interest of tribals is at stake because of lack of knowledge about their rights and entitlements and lack of legal support. Why tribals are not able to access justice?

Lack of legal awareness among tribals: Tribals are not aware of their rights and

entitlements and this is working against them. Even though lands are passing in to the hands of non-tribals not even fifty percent of these transfers are brought to the notice of the authorities. Even in cases that are brought before the authorities, non-tribals are exploiting the legal illiteracy of tribals and getting favorable orders.

Absence of legal support: In almost all cases tribals are unrepresented by a lawyer or a person knowing the law which is aiding the non-tribals in tilting the law for their advantage. Legal aid, a fundamental right guaranteed by the Constitution of India and also provided for under the Legal Services Authorities Act, remains only a paper right. Alien adjudicatory system: Adversarial adjudicatory system which we adopted from the
British is alien to tribals and the gap is increasing between the justice delivery system and the tribals.

Administrative machinery handicapped: Adjudicating and implementing authorities

under the Land Transfer Regulations are handicapped by lack of understanding of the laws & procedures and lack of any strong motive other than to go through the job.

Tribals voice not heard: In almost all cases tribals are not party and thus proceedings

under the Regulation have become a matter between the non-tribals and the officials, without any notice or information to the tribals who are affected or interested. Because
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of this except land records no other information was brought before adjudicating authorities.

Lack of access to records: Copies of land records which are crucial to prove the case are
not available to the tribals. For the above reasons stated the tribals are losing faith in the system and the rule of law and thus they are not knocking the doors of the courts for justice. Declarations and proclamations, resolutions and legislations remain a mirage unless there is an infrastructure which can be set in locomotion to prevent or punish a wrong and to make legal right an inexpensively enforceable human right, said justice Krishna Iyer. The poor, especially the tribals, require a sensitive support mechanism to help them in accessing justice. To address this situation, help the tribals in protecting their rights in land and to position the sensitive support mechanism for the tribals to enable them access justice, Giri Nyayam is being designed and implemented by Indira Kranthi Patham in 76 mandals, covering more than 50% of the tribal area in the State. Manku Bais case (given in annexure) emphasized the need of legal support and proved the usefulness of Giri Nyayam model. Integrated Tribal Development Agencies (ITDA) are established in the State to promote accelerated development of Scheduled Tribes, to prepare Plan, Non-Plan and Tribal SubPlan documents for their welfare, to mobilize the resources from various sources, to improve educational standards of tribals, to empower village committees, to develop infrastructure facilities and to provide assistance for their economic upliftment. These ITDAs also have the responsibility of ensuring that the tribals do not lose control over their lands. IKPs Giri Nyayam is implemented through the ITDAs in tribal areas. The Tribal Project Management Units of ITDAs facilitated the tribal women to organize into groups and Samakhyas which are implementing Giri Nyayam programme now. Objectives of Giri Nyayam Provide legal assistance to tribals. Create legal awareness among tribals and legally empower them. Provide necessary information to tribals. Institutional Arrangements Paralegals To fill the gap between the justice delivery system and the tribals, the Mandal Samakhyas are training tribal women and youth as paralegals. Paralegals act as bridge between the community and the system. A paralegal is one who has all the knowledge about law and its usage. Paralegals help in dissemination of legal information and take care of the prelitigative work i.e. getting necessary information on cases and issues, conducting local enquiry to know field situation and following up of cases in both revenue and civil courts. Three paralegals are being positioned for each scheduled area mandal. Women Self Help Groups identify one community resource person in each revenue village and they are given the task of physically verifying all the lands in that village. After completion of this work, best three among them are positioned as Paralegals. NALSAR University of Law provides training to Paralegals after initial training in the districts and few months of field work.
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Law students To scrutinize the files of LTR cases which are disposed or pending in various courts, to assist lawyers in representing the tribals and to take part in spreading legal awareness among tribals, the Zilla Samakhyas are contracting the services of law students. For this purpose MoUs are entered with law colleges. For the students this work is part of their clinical courses. There are 44 law colleges in the state and there are about 10,000 students in these law colleges. This tremendous and unutilized student workforce can be effectively utilized to provide justice to the poor. Lawyers Panel In each ITDA and at High court lawyers panel is being constituted to represent the tribal interest in the courts. Partnership with NGOs Where ever NGOs are working for the tribals, partnerships are planned to spread legal knowledge. Land Rights and Legal Assistance Centers in Zilla Samakhyas in ITDAs The Zilla Samakhyas in ITDAs are setting up Land Rights and Legal Assistance Centers to function as sensitive support organization for the tribals. The Center handles all the activities relating to ensuring secured land access to the tribals. The activities of the Center are coordinated by a Legal Coordinator. Legal Coordinator In each ITDA one law graduate is appointed to coordinate the Giri Nyayam program. Partnership with NALSAR University of Law An agreement is entered with the NALSAR University of Law covering the following activities. Establishing a Tribal Land Rights in NALSAR. Organizing the Paralegal Certification Course. Facilitating speedy disposal of land cases pending in civil courts. Legal Support to LTR authorities. Research and documentation of issues pertaining to tribal land rights.

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Village Organization

1. Selects community resource person. 2. CRP is trained in Physical Verification of all lands. 3. CRP with help from community physically verifies lands. 4. Discusses the findings in its meetings. 5. Trains its members in handling land issues. 6. Takes up the issues with the assistance from paralegals.

Mandal Samakhya 1. Establishes a Land Center with necessary information and records. 2. Employs a lawyer as Legal Coordinator. 3. Employs a retired revenue officer as land manager. 4. Trains paralegals. 5. Trains youth from the community as community surveyors. 6. Sets up its own functional subcommittee to handle land issues. 7. Takes the issues to the notice of the Collector and Joint Collector for redressal. 8. Enters into MoU with Law Colleges. 9. Sets up a lawyers panel.

1. Employs paralegals selecting from among community resource persons @ 3 per mandal. 2. Paralegals are trained in land matters and land acts. 3. Takes up the identified issues to the notice of the revenue machinery for redressal. 4. Sets up its own functional sub-committee to handle land issues. 5. Follows the issues up through paralegals. 6. Coordinates with Zilla Samakhya for providing services of community surveyors and lawyers.

Zilla Samakhya

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Working Model All lands, both Government and Private, are physically verified to know the actual extents of land held by the tribals and non-tribals in 76 tribal mandals. This is done by the community resource persons positioned by the Village Organizations. Paralegals assist the VOs and MSs in following up with the revenue and judicial authorities for redressal of the issues. Law students take up scrutiny of the files of LTR cases disposed by or pending before the Agency Courts. Appeals are preferred in the cases that have gone against the tribals through a panel of advocates. Restoration of lands to the tribals will be facilitated in coordination with Revenue Department. Land Rights and Legal Assistance Centers are established in Zilla Samakhyas. Legal Awareness campaign will be taken up leading to legal empowerment. Necessary support will be provided to LTR authorities. V Legal Assistance in Plain Areas Like the tribals in tribal areas, the poor in the plain areas suffer from the same disadvantages of lack of awareness, access to information and lack of legal support and are not able to take advantage of the Governments pro-poor land legislations and programmes. Thousands of land cases of the poor are pending in various courts, both revenue and civil, and the effects of having their lands in court are especially devastating for them. For assisting the rural poor by advocating for their rights and resolve land disputes in formal and informal legal proceedings and courts of law and to create sustainable legal support systems for the poor, a pilot program is implemented in 21 mandals of Kadapa district. In the pilot mandals paralegals were positioned and through them about 300 land cases of the poor were identified and more than 100 cases were settled by the revenue officers by organizing village courts. The programme is now scaled up to 374 plain mandals covering all districts in the state. Just like in the tribal areas, here also the same institutional arrangements are being made as shown below: Land Rights and Legal Assistance Center in Zilla Samakhyas of every district with necessary infrastructure, legal material, land records etc. One Paralegal per mandal. 25 community surveyors in each district to take care of the survey related issues. Legal Coordinator and Land Manager Partnerships with law colleges Working Model
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All the pending land cases/ issues pertaining to the poor in the courts/offices of the Revenue Officers are listed out. Law Students/ Paralegals obtain the required information from files and records in Revenue offices. Apart from the Revenue offices, the Paralegals also map the land issues in the villages. Paralegals conduct local enquiry in identified cases and collect the information on all other cases pending in the villages and submit factual reports to the Revenue Officers. The Revenue Officers hold Village Courts to hear and dispose off the cases and resolve the land issues. The support of the District Legal Services Authority is sought to facilitate organization of Lok Adalats for cases pending in the civil courts. Wherever intervention of lawyers required, the Lawyers Panel will take up the cases providing legal aid. Wherever survey related issues are reported, the Zilla Samakhya will send its community surveyors for resolving the same. Efforts will be made for creating land litigation free villages. Community will be empowered by spreading legal awareness. VI Convergence with other Departments The Government in Revenue Department, through G.O.Ms.No.1148, dated 10.12.02 has put in place the institutional mechanism for convergence of IKP and the Revenue Department on land issues of the poor. The Departments of Revenue, Survey and Tribal Welfare are actively supporting this initiative of Department of Rural Development. VII Legal aid is a necessary sine qua non for justice. The Constitution of India has directed the State to provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Various committees are constituted and schemes are designed to provide free legal aid to the poor and legislation also was enacted in the year1987. Legal Services Authorities Act, 1987 which provides for free legal services came into force in 1995. Free legal services includes the rendering of any service in the conduct of any case or other legal proceeding before any court or other authority or tribunal and the giving of advice on any legal matter. Even a decade after the enactment of the legislation, realization and enforcement of the right to legal aid is still a challenge and access to justice still remains as a dream for millions of Indians. The States should recognize that the poor are still not able to have an easy access to justice delivery systems and though Legal Service Authorities are in place their outreach is limited. Mere providing of services of a lawyer or court fees will not suffice for the poor to get justice. Providing the poor with a lawyer may have only a minimal effect in reaching the goal of assuring equal justice for the poor. New remedies, effective and innovative strategies and competent advocacy become essential to achieve real equality. For the poor
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to get justice either the system should proactively reach them or they be enabled to access the system freely without any constraints through a sensitive support mechanism. IKPs approach is holistic in the sense that along with positioning a sensitive support organization for the poor in which not only services of a lawyer and court fees are provided, but it also works for bringing in pro-poor changes in the system, strengthening informal and indigenous justice delivery systems and legal empowerment of the poor. It is an attempt not only to ensure access to justice for the poor but also to provide justice at their doorsteps by coordinating with not only the Government departments like Revenue, Tribal Welfare, Survey etc. but also with Legal Services Authorities and Law Colleges. Nothing rankles more in the human heart than a feeling of injustice and those who suffer and cant get justice because they are priced out of legal system, lose faith in the legal process and a feeling begins to overtake them that democracy and rule of law are merely slogans or myths intended to perpetuate the domination of the rich and powerful and to protect the establishment and vested interests said Justice P.N.Bhagavathi. Land is still the single most emotive issue in rural areas and Indira Kranthi Patham has taken it as an entry point for promoting confidence among the poor that they can take advantage of the laws which are enacted for their benefit and can get justice. As a community demand driven project of the poor, for the poor and by the poor, the ultimate vision of the programme is to expand the scope of this sensitive support structure based on the legal needs of the community which would lead them towards legal empowerment. Legal Assistance Programme for Land is an attempt in that direction.

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