Tribal Customary and Formal Law Interface in North Eastern India: Implications for Land Relations Walter Fernandes1 The Northeast is known in the rest of India mainly for its conflicts. One cannot deny that this home of many ethnic groups and tribes has for five decades witnessed armed conflicts that are integral to its people’s search for a new identity amid the economic and cultural crises they face. One of their reasons is the interface between modernisation and their traditions with no preparation. It has had an adverse impact on many tribes. An area in which this interface has made a major impact is the legal framework governing land relations. Most tribes of the region run their civil affairs according to their community based customary law but the individual based land law of the country is superimposed on them. Because of the disruption it has caused in their lives one of the demands of many tribes is recognition of their customary law. It has been recognised through constitutional amendments in Nagaland and Mizoram. Community ownership also gives women some control over land but this paper will limit itself to the land laws and will only allude to its gender and class implications.
The community ownership tradition has not remained unchanged but has been modified over time. Even when their customary law is recognised, the elite among them tend to interpret it in their own favour. For example, the Sixth Schedule was meant to be a protective measure but it has not always gone in favour of the community, especially women. For example, the Garo of Meghalaya who come under the Sixth Schedule have experienced a changeover to commercial crops and individual ownership that goes against women and leads to class formation. Signs of its beginnings are visible among the Dimasa of Assam, the Aka of Arunachal Pradesh and others. This paper will discuss some of these issues, especially the interface of their customary law with the formal law and its implications for land relations2.
Land Laws and Tribal Communities Though the complex phenomenon of the conflicts has often been oversimplified as secessionist or terrorist, in reality an identity search is central to it. Their land and customary laws are closely linked to their identity which is in fact built around them. Today land relations are being modified by immigration, encroachment and the changes that the modern legal system introduces in their tradition. They do not begin the conflicts but exacerbate those existing already. The conflict was initially against “outsiders” who, the local people felt, were controlling their economy, alienating their livelihood and were attacking their culture. Because of this combination of causes, the conflicts combined economic demands with sub-nationalism and cultural resurgence (Datta 1990: 36-37) including the customary law.
In other words, commercialisation of their resources is only one of the causes of the conflict against “outsiders”. Central to it is the homogenising tendency of the Indian State. In attempting to turn itself into a nation, the Indian State rarely respects the cultural and ethnic identity of different groups. It often fails to recognise that the tribals have a culture and a religion of their own (Singh 1990: 234). The tribals react to the effort to homogenise cultures and monopolise their livelihood. Thus, most struggles in the north-east are in reaction to the tendency of the dominant “one State one nation” thinking of the Indian State and "to take the degree of Aryanisation as the measure of Indianisation" (Datta 1990: 41).
An example is the meeting of A. Z. Phizo, the Naga Nationalist leader with Mahatma Gandhi in 1946. There are reasons to believe that the Mahatma was sympathetic to the idea of the type of autonomy Phizo demanded. It was based on the specificity of their culture, customary law and livelihood resources that the Nagas wanted to safeguard. However, most leaders of Independent India failed to understand the specificity of the Northeast that is different from the rest of India (Sanyu 1996: 116-118). Most of them seem to view the region as the extreme end of India whose territory has to be secured. As such their national belonging is suspected and the region is considered a security risk. Very little thinking goes into the possibility of considering their difference from the rest of India an asset or as a link with Southeast Asia. Most leaders seem to judge the nation from the homogenising rather than the pluralistic perspective. Diversity suffers because of it (Mishra 2000). In reaction to it, many communities proclaim their “sovereignty” which others call anti-national.
That is one of the reasons why in most struggles a major demand is recognition of their identity linked to their land and customary laws. Their laws have changed in many ways in response to formal education and the new economic, religious and political relations. In some cases individual land ownership has come to be accepted as the norm. However, most tribes continue to treat their customary laws and the community ethos as intrinsic to their identity. That is also the reason why the negotiations leading to the formation of Nagaland and Mizoram States had recognition of their customary laws as one of the conditions. It was granted to these two States through Articles 371A and G respectively of the Constitution.
Implications for Land Laws The tendency to view the nation from the point of view of the Centre rather than the periphery also has implications for the land laws and land relations in the region. Most tribes are community based but the formal land laws are individual based, and are founded on the principle of the State’s eminent domain. In this view land is only a commodity for cultivation and construction (NCHSE 1986) while to the tribals it is an ecosystem with the local community at its centre. For centuries their communities have treated the resources as renewable and have built a culture and economy of their sustainable use (Iyer 1996: 375-377). The 19th century land laws made to suit the colonial need of exploiting the resources to the benefit of the British Industrial Revolution ignored the latter view. The colonial regime needed to change the Indian economy and turn the colony into a supplier of capital and raw material and a captive market for its products. It required monopoly over land for coal mines, coffee and tea plantations, roads, railways and other schemes. New land laws were enacted to facilitate the process of land transfer to the profit of British plantation and mine owners. The effort to turn the livelihood of the local communities into a commodity began with the Permanent Settlement 1793. It continued in the Assam Land Rules 1838, the Calcutta law of 1824 and others meant to make land available for purposes like salt pans and culminated in the Land Acquisition Act 1894 that remains in force today (Upadhyay and Raman 1998).
The colonial regime based these laws on the principle of eminent domain. In Australia it is called terra nullius (nobody's land). White colonisation of native land there and in the Americas is based on the principle that land without an individual title belongs to none as such anyone can occupy it. In 1992 the Australian judiciary declared it unconstitutional (Brennan 1995: 4-5) but Indian land laws continue to be based on its American version of eminent domain. Its first facet is that land without an individual patta is State property. The second is that the State alone has the right to decide a public purpose and deprive even individual owners of their assets. This State power is overriding (Ramanathan 1999: 19-20).
The Law and the North Eastern Communities That is the background of the interface of the customary and formal laws that has modified many tribal laws but its extent depends on the nature of their contact with the world outside their own, the application of the Sixth Schedule and of their customary law. The Constitution was amended in 1963 and 1987 to recognise the law in Nagaland and Mizoram under Articles 371A and 371G respectively. The Sixth Schedule that recognises community ownership of land and forests is applicable to parts of Tripura, two districts of Assam and to the whole of Meghalaya (Fernandes, Pereira and Khatso 2005: 22-23). In the remaining States, the tribes live according to their community based customary law but the formal law recognises only individual ownership. It has changed their customary law to various degrees.
The Aka of West Kameng district in Arunachal Pradesh are close to their tradition and govern themselves according to their customary law. The Sixth Schedule does not apply to them but it has not had much impact on them because their contact with the outside world is recent (Sinha 1962). This jhum practising tribe lacks the very concept of land ownership and only has the tradition of community control and of usufruct right over the CPRs. In the jhum season every family cultivates as much land as it needs. After it the land reverts to the community. However, slow change is visible among them. Today some claim individual ownership but others with a salaried job call themselves landless since they have lost their right over the CPRs by not practising jhum any more (Fernandes and Bharali 2002: 7-8).
The Dimasa of North Cachar Hills in Assam have been exposed to the dominant cultures since their Hinduisation by the Bengali administrators who accompanied the British colonial rulers but have retained their internal autonomy, continue to be governed by their CPR based customary law, come under the Sixth Schedule and have a district autonomous council. Many of their clans have dual descent with property inheritance through the male line and the clan and family name coming through the female line (Bordoloi 1984). However, their elite are moving towards individual pattas. One of their leaders owns over 200 acres (Barbora 2002: 1287). On the other side, a voluntary agency has introduced oranges and other commercial crops in some villages without changing the ownership pattern. Some families that have accepted individual ownership have conferred inheritance rights also on women. Thus the trend towards individual ownership goes hand in hand with change of their land use without changing the land ownership pattern drastically (Fernandes and Pereira 2005: 37).
The matrilineal but patriarchal Garo of Meghalaya are governed by their customary law and the Sixth Schedule. Many of them in the East Garo Hills have begun to show signs of class formation and of strengthening patriarchy. An important reason of this change is the introduction of rubber plantations. It got them to interact with the administration that gives loans and subsidies only to individual owners and “heads of families” that most financial institutions interpret as male. The families we studied in West Garo Hills continue their CPR culture and have not planted commercial crops. Thus, they have not combined the modern with the traditional that the Dimasa families can become if more accept recent changes.
On the other side, the Adibasi of Jharkhand origin whom the British brought to Assam in the 19th and 20th centuries as indentured labour to work in its tea gardens are not included in the Schedule though they speak of a customary law that has very little value today. So they represent the type of modernisation that results in impoverishment and exploitation (Fernandes, Barbora and Bharali 2003: 33-34). Landlessness is the highest among them and literacy very low (Toppo 1999: 133-134). Though they have lived in Assam since the 1850s, they continue to be considered non-indigenous. As late as the May 2004 general elections a candidate appealed to the voters to recognise himself as indigenous and reject his opponent from the plantation labourer community as non-indigenous (The Telegraph May 5, 2004).
The Boro, a plains tribe not under the Sixth Schedule, have won a Boro Territorial Council (BTC) after a struggle but till recently their community based customary law was not recognised (Roy 1995: 16-17). As a result they have almost fully internalised the ideology of individual ownership in the sense that those living on the CPRs call themselves encroachers while others like the Aka and Dimasa consider themselves CPR dependants. The BTC has recognised their right partially but has not granted them the Sixth Schedule status. Also the Rongmei, a Scheduled Tribe of Bishnupur district in Manipur are not governed by the Sixth Schedule. Several have lost their land to ethnic conflicts and some to the Loktak project but have not even been compensated since much of what they sustained themselves on was CPRs that the law does not recognise as their livelihood. These two tribes represent the interaction of their CPR based customary law with the individual based administration that can deprive them of their livelihood with no right to any alternative (Fernandes and Bharali 2002: 16-17).
The Angami, a major tribe living mainly in the Kohima district of Nagaland numbered 97,433 in 1991. Terrace cultivation based agriculture was their main economic activity till recent years many took up salaried jobs. They were in the forefront of resistance to the British regime and after 1947 they led the Naga Nationalist movement and played a major role in the ethnic movement under the leadership of Z. A. Phizo. In the process they underwent rapid social change and gained access to modern education and political systems. They have the Village Development Board that also has women among its members. Thus, tradition and modernity live side by side (D’Souza, Kekrieseno and Nokhwenu 2002: 26-27).
Land Laws and Ethnic Conflicts We have mentioned these tribes as examples of various degrees of interaction of their communities and tradition with the formal law. Its implications have come out clearly in most of our studies. We give in the Table below an example from two of them. One can see from it that landlessness is all but non-existent among the Aka whose interaction with the external world is recent. The “landless” are persons with a salaried job and have stopped jhum cultivation and have thus given up their usufruct right over the CPRs. The slow change is visible in the two persons who claim to own one or two hectares each of individual land. They belong to the elite that have appropriated to itself irrigated land near the river.
The extent of landlessness among the Adivasi shows their exploited state. Alienated from their land in Jharkhand and later from their customary law and community, they have slowly lost their tribal identity itself and have internalised a non-tribal psyche of subordination. Such internalisation has been intensified by the regimented work structure of the tea gardens and by the denial of a Scheduled Tribe status to them. Among them we chose 50% of the respondents from the bastis outside the gardens. They are not regular workers in the garden and are expected to be cultivators but their land ownership remains low.
Table: Land Ownership Pattern among Some Tribes in the Northeast (acres)
Source: Fernandes and Barbora 2002a: 116; Fernandes and Bharali 2002: 23
Of importance is the extent of landlessness among the Garo who were till recently a CPR dependent matrilineal tribe. When rubber plantation was introduced among them, the Rubber Board and the financial bodies insisted on individual pattas as preconditions for loans and subsidies. Patta ownership was usually understood as male. It has started a move away from the community to the individual male owner. Today individual ownership is a fact and male ownership has become a demand of middle class men. This move has been in existence for many decades on a low scale (Kar 1982: 254). Rubber plantation has intensified the demand and its catalytic role was crucial to it (Fernandes, Pereira and Khatso 2005: 10-11). Thus, even where the Sixth Schedule recognises community ownership, the administrative system goes by individual values and sets in motion processes that can weaken the tribe.
That the Dimasa too are close to their tradition but not to the same degree as the Aka is seen in the nature of land ownership among them. Three fourths of them continue to depend on jhum land which is their livelihood. Some of them have started moving towards individual ownership because of their exposure to the commercial forces and the administration. They want individual pattas. If done without any preparation it can take them towards the extent of landlessness seen among the Garo (Fernandes and Pereira 2005: 93-95).
Landlessness is very low among the Rongmei but 50% of them own less than one acre each and nearly 30% own less than 2.5 acres (one hectare) considered the minimum a family requires for its sustenance. They lost much of their land in their conflict with the Kuki. The law could not protect their land. Some others lost their land to the Loktak project but were not counted among the displaced or compensated for it. The reason for both is that the formal law did not recognise community ownership according to which they lived. Most of them have now occupied the CPRs of some neighbouring villages and have declared them their own.
There is very little landlessness among the Angami whose customary law has been recognised. It bans land transfer to persons not belonging to their tribe. They also have a tradition of combining individual with community ownership on one side and terrace cultivation with jhum on the other. That tradition combined with the political processes of the nationalist struggle and access to education to make it easier for them to deal with the changes than what the others have done. However, some tension is felt today in the form of land alienation within the tribe and the consequent class formation. One of the forms it has taken is hidden absentee landlordism (Fernandes and Barbora 2002a: 48-49).
Land Relations and Conflicts We have discussed till now the impact of imposition of the formal land laws on tribes that have lived by their tradition. The formal law was imposed on them with no preparation. Where there was some preparation, they were able to deal with the changes more than those who came face to face with them with no preparation. The Garo belong to the latter category while the Angami and Dimasa have had some preparation in different forms. Such an intervention has disrupted their societies and their reaction was initially against outsiders like the immigrants. Because of it the region has witnessed killings of Biharis in Karbi Anglong, anti-Bengali conflicts in Tripura and others elsewhere (Bhaumik 2003: 84-85).
This interface and land alienation that results from it has also resulted in shortages. They have led to conflicts between various communities of the region and most of them are around land. On one side the local people view the immigrants as a threat to themselves. On the other, the shortages that result from this encounter force them to compete among themselves for the scarce resources. One of its results is hardened identities and exclusive claims over the resources of an area. Each community rewrites its history to declare itself the original inhabitants of a given region, as such the sole claimants to its resources. Be it the Naga-Kuki conflict in Manipur (Fernandes and Bharali 2002: 52-55), the Bodo-Santhal (Roy 1995) and Dimasa-Hmar tension in Assam (The Telegraph, 23rd April 2003) or the Tripura tribal demand for a homeland (Bhaumik 2003) all have their origin in competition for land. These conflicts between communities of the region arise because in the context of shortages caused by encroachment and the failure to create productive jobs every group views the limited land and jobs as its exclusive right. Given their symbiotic relationship with land, the community views the resultant conflicts as defence of its culture, identity and livelihood. Thus, the changes begin with outside intervention. Once they result in shortages they both intensify traditional rivalries and create new ones within the region (Baruah 1999: 29-32).
A crucial issue in them is commercialisation of land and forests and the resultant transition of most ethnic groups from subsistence to a commercial economy and of their land from livelihood to a commodity. The administration supports the transition to a commercial commodity by insisting on individual pattas for subsidies and loans. The reaction of the local communities is ambiguous. Many of them want to retain control over land but at the same time move away from it as a livelihood. Most Aka and Dimasa families sustain themselves on land but it is not the case with the Rongmei, Adibasi and to some extent Boro who have lost much of their land to ethnic conflicts. Some of the Rongmei sell their land in order to earn money to bribe officials and get a job in the administration or for their children’s education. They have lost hope in land as sustenance and are ready to part with it for an alternative but are not to abandon their cultural attachment to it as an essential ingredient of their identity. This effort to keep control over it while moving beyond it is another cause of conflicts.
Displacement and Land Laws One can thus see that a crucial factor in the transition to an individual patta that is alien to the tribal CPR culture is encouragement that the individual-oriented administration gives to processes leading to it. Besides, the State alienates land for development projects and while so doing, it recognises only individual ownership. It has become a crucial issue in the Northeast in the context of the thinking that the region should be turned into the powerhouse of India. 48 possible major dams are being planned in the region and a list of more than 100 others is being (Menon et al. 2003). The former Prime Minister Mr. Atal Behari Vajpayee gave recognition to this process by launching on 24th May 2003, the 50,000 MW hydro-electrical initiative for the Northeast (The Telegraph, 25th May 2003).
These initiatives have to be studied in the context of past experience because most dams being planned are in the tribal areas where the CPRs are the norm. Many of them are in Arunachal Pradesh where the tribes live according to their community ownership ethos but the individual based law does not recognise their land as their livelihood (Menon 2003). Many other dams too are in the tribal areas. For example, according to official sources, the proposed Pagladia dam in the Nalbari district of Assam will displace 18,347 persons while field data show that it will affect 105,000 persons, 80% of them Bodo and other tribals who live on their CPRs that the law does not recognise as their livelihood (Bharali 2004).
That has been the case also in the past. We have stated above that the Rongmei in Manipur lost their land to the Loktak project without even being included among the displaced and being compensated. Impoverishment has been its consequence. By the late 1960s the indigenous tribes of Tripura had lost more than 60% of their land to Bengali Hindu immigrants from the erstwhile East Pakistan. It resulted in conflicts between them and the settlers. That is when the Gumti or Dumbur dam was announced in the 1970s. They protested against it but were forced out of their land. It submerged 46.34 sq. km, most of it level land that is only 28% of the State’s total. By official count it displaced 2,558 families that had pattas. Another 5,500 to 6,500 CPR dependent families were not even counted. Their only alternative is jhum cultivation in its catchment area or on other common lands. It causes environmental degradation and they come to be considered enemies of nature (Bhaumik 2003: 84-85). In other words, where the Schedule is not recognised, people can be displaced without being counted among the displaced.
We have noticed it in the ongoing study on development-induced displacement in Assam 1947-2000 (Fernandes and Bharali forthcoming). All the projects together have used around 15 lakh acres of land, two thirds of it CPRs. Around 20 lakh persons have been deprived of their livelihood. However, the official records account for a little over 400,000 acres of land and 300,000 persons displaced or deprived by it. The rest of the land is not accounted for and the people whose livelihood it is have not been counted because the law does not recognise their community ownership. So in the eyes of the State the communities that have inhabited it for centuries before the colonial law was enacted, are encroachers on it.
The situation becomes easier if the law recognises community rights and the people are aware of it. That, for example, is the case at Domiasiat in the Khasi Hills of Meghalaya. The State has been trying to acquire their land for uranium mining but the local community has been opposing what it considers loss of its livelihood. There has been a stalemate on this issue for seven years with the State speaking of the need to get hold of that land and the people refusing to part with it by asserting their right to security of life and livelihood. The State is unable to deprive them of their land since the area comes under the Sixth Schedule.
Search for Solutions We have seen in this paper that conflicts are intrinsic to the contradiction between the tribal customary laws and the formal law because of their contradictory value systems. Another crucial issue in the process their livelihood alienation is the transition of many communities of the region to a commercial economy. Commercialisation of land and forests is thus closely linked to the transition of land from livelihood to commodity. One cannot begin by stating that a commercial approach is bad in itself. One only states that such a transition without any preparation or imposition of another system on them for the benefit of another class does them harm. The shortages it causes result in ethnic conflicts. Linked to it is the changeover from an egalitarian to a class society. That weakens the community based tribal culture with no alternative to take its place. These are among the processes leading to ethnic conflicts most of which are around competition for land.
That has to be situated in the context of the proposed dams and other projects in the Northeast that has a backlog of at least 3 million persons which is about 25% of the active workforce. The fear is that it will deprive a large number of persons of their livelihood with no alternative to take its place. The experience in the rest of India shows that it results in the people’s impoverishment and eventual marginalisation. That is where alternatives have to be found to the system that impoverishes them in the name of national development. Change of the law is only one step in it but it is essential. One has to begin by recognising their customary law as basic to their identity formation. The law has then to be updated instead of being replaced by another system that can weaken them as a community. Recognition of the CPRs as their livelihood is basic to it. Other changes can follow from it.
We have studied in this paper the role that the formal individual based law plays in causing shortages, impoverishing the communities and thus causing ethnic conflicts in the Northeast. The law and land alienation are not their only causes but are crucial to them. The main issue is the process that makes land encroachment possible or legitimises land alienation. That becomes an attack on the livelihood of the communities of the region in their predominantly agrarian economy with jhum as its main form in the hills. Conflicts arise because different groups vie for limited land. Given their symbiotic relationship with it, they come to view conflicts as defence of their culture, identity and livelihood. That shows the need to search for alternatives that combine their community ethos with commercial needs.
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1 Dr Walter Fernandes, former Director, Indian Social Institute and Editor, Social Action, is at present Director, North Eastern Social Research Centre, 110 Kharghuli Road (1st floor), Guwahati 781004, Assam. Tel. (0361) 2602819; Fax: 2602713 (Attn NESRC). Email: firstname.lastname@example.org; email@example.com.
2 The present paper is based on the studies of NESRC on the Impact of Modernisation on Women (Fernandes and Barbora 2002a), Immigration and Land Alienation in Assam (Fernandes and Barbora 2002b), Land Relations and Ethnic Conflicts (Fernandes and Bharali 2002; Fernandes and Pereira 2005) and the Gender Implications of Tribal Customary Laws in the Northeast (Fernandes, Pereira and Khatso 2005).