The President of India
New Delhi – 110004 (India)
Subject – Memorandum against the Amendment of Chhotanagpur Tenancy Act (CNTA)-
1908 and proposed amendment in Santal Pargana Tenancy Act (SPTA)-1949
With due respect we want to state that, the amendment in the Chhotanagpur Tenancy Act (CNTA)-1908 and Santal Pargana Tenancy Act (SPTA)-1949 will put the scheduled tribe (ST), scheduled castes (SC) and other backward classes (OBC) into the vulnerable situation of losing the land and their livelihood. These two special acts are in fact, have been made to protect the very life of ST, SC and OBC in the scheduled area in Jharkhand. These two special laws have been granted constitutional protection under Article 31 (B) (Validation of certain Acts and Regulation) by including them in the IXth Schedule of the Constitution at Sr. No. 209 & 210. The constitution of India also has special governance mechanism for Scheduled Areas as provided under Article 244 read with Vth and VIth Schedule of the Constitution of India. Under the Vth Schedule, the Governor of the state has discretionary powers to make the regulation. One of the major areas of power in Para 5 of the Vth Schedule is to “prohibit or restrict transfer of land by or among members of the ST, SC and OBC in such areas”. By proposed amendment it would permit-
- Non-agricultural uses of the ST, SC and OBC’s lands by owners/tenants, where at present agriculture and allied use of land is permitted.
- Transfer of ST, SC and OBC land without mandatory prior written permission of the Deputy Commissioner (DC) for a variety of commercial purposes which are at present prohibited.
- It will also restrict the power of the ‘Gram Sabha’ under (Provision of Panchayat Extension to Scheduled Areas) PESA-1996 and make it’s power null and void.
- It will also change the demographic structure of the tribes in Jharkhand, which will have devastating consequences for them in various ways.
In fact, even before bringing ordinance in the Jharkhand assembly there was many resignations by the members of the Tribes Advisory Council (TAC). Also, even after having full majority government of Jharkhand adopted the ordinance route, which makes the whole procedure unconstitutional.
The commercialisation of land use and the lifting of constitutional and statutory restrictions on land transfers on Scheduled Areas run contrary to constitutional norms. The importance of protection of tribal land rights in Scheduled areas has been emphasised by the constitutional courts through various judgments.
Specific to CNTA-1908
The proposed amendments to CNTA and SPTA seek to make opulent changes to render them ineffective in safeguarding tribal land use Eg., Sec. 21 of CNTA that prohibit non agriculture use of land by land owner/tenant, even all these very proscribe is sought to be lifted by proposed amendments of Sec. 21 (B) of CNTA to allow non-agricultural use.
Similarly, Sections 46, 47, 48, and 240 of the CNTA, which impose restrictions on the transfer of tribal lands to non-tribals in a variety of situations without prior written permissions of the DC, remain unaltered under the proposed amendments. Transfer without such permission of the DC is restricted to tow scenarios under section 49(1). It is important to re-iterate that ‘transfer’ is widely understood to include sale, mortgage, lease, gift, contract or agreement. Also, unchanged in section 71B, which prescribes that land transfers in violation of these provisions is a criminal offence punishable with imprisonment which may extent to three years and /or fine.
Once the land use is changed from agriculture to non-agriculture the restrictions placed on transfer of tribal lands by sections, 46, 47 and 48 of CNTA will cease to apply. Transfer of such non-agriculture lands will then be governed by the Transfer of Property Act and none of the beneficial restrictions of CNTA will apply. Thus, the proposed amendments will open unabated alienation of tribal lands.
However, the proposed amendments to Section 49(1) seeks to insert a new sub-clause (c) which permits transfer of tribal land without permission of DC for a host of development activities “or any public purposes/project or activity which the State Government may add by way of notification in the official gazette”. Although there is a requirement for the recommendations of the Tribes Advisory Council, such requirement appears to be optional.
A plain reading of the proposed amendment clearly demonstrates that the state executive would be vested with enormous power to permit the alienation of tribal lands for any project or activity it may specify, thus rendering the substantive prohibitions under the body of the law indolent
Being said this; we are confident and believe that the amendment is further going to harm the ST, SC and OBC rights over land and their livelihood. Apart from this we also request you to immediately release with dignity and descent to the arrested protestors, who are in jail in Jharkhand. We understand that under the constitution, citizens of this country have the right to protest and have voice against the government for their right to life and livelihood.
We the undersigned students submit the memorandum to you with following demand-
- Withdraw the atrocious CNTA, Amendment Bill, 2016 with immediate effect.
- Release all (student) protestors, who have been arrested/detained and stop criminalizing them (since they have a right to keep traditional weaponries like bows and arrows).
- Include areas like Latehar, Palamau and Garhwa in CNTA, which do not even come within the purview of the tenancy acts.
- Include the clause under Section 46 where, none ST, SC, and BC also cannot transfer the land to another none ST, SC and BC in the Vth Scheduled Areas.
- Also, there is a need to expand the Schedule Areas, as more tribal communities have been notified and included in the new ST/SC order list in recent years from different parts of the country.
Thank you and Regards,
CNT/SPT ACT BACHAO ANDOLAN
(Detail of the Names and Signatures enclosed below)
Ministry of Tribal Affairs, Government of India
Governor, Raj Bhavan, Jharkhand
Chief Minister, Government of Jharkhand
Photos from the protest organized by CNT/SPT Act Bachao Andolan, New Delhi Chapter on December 10, 2016.
(Photos by: Rajnee Toppo)
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