By Dr Palla Trinadha Rao
The article has been republished from The Hans India, May 25, 2017.
The proposed recommendation of NALSAR University of Law in association with Landesa, a foreign NGO, to entrust civil court work to judicial officers, replacing revenue officials in the Scheduled Areas of Telangana, will end an age-old system in place to safeguard tribal interests. The attendance of Minister for Tribal Affairs, Telangana, at one-day consultation on land governance in tribal areas, held by Nalsar recently, is lending support to the anti-tribal move.
Nalsar in collaboration with Landesa is providing technical assistance to Telangana government in review of all land laws. It may be recalled there is an increasing pressure by non-tribals to nullify the tribal-protective Land Transfer Regulations 1 of 70 in Telangana. The current proposal to shift work of Agency Courts to judicial officers will pave for legitimisation of illegal occupations of non-tribals and make Agency areas susceptible to easy exploitation by unscrupulous non-tribal sections. It is also against a Supreme Court judgement passed in 2012.
Evolution of Agency Courts
The Scheduled Areas have not been governed by the same laws as in the rest of the country since pre-independence days. The reasons such special provisions for Scheduled Areas are that their customs as well as ways of living are different from the rest of the country. Besides, tribals are vulnerable to exploitation by outsiders. Therefore several Acts and Regulations were passed from time to time so that the tribals are not governed by general laws of the land and certain safeguards have been provided to them.
Under the Section 6 of Scheduled Districts Act, 1874, the then Governor made AP Agency Rules, 1924, for the administration of civil justice. These Agency Rules were extended to Telangana region with effect from 1-12-1963. Under the said rules, revenue authorities have judicial powers to adjudicate civil cases within the Agency tracts.
Why Agency Courts preferred?
In the tribal life, most of transactions are by word of mouth and there exists no system of written documentation. A decision based solely on documentary evidence would put the poor and innocent tribals to great injustice. In Agency areas, the existing system of judiciary is quite adequate and serves the interests of tribals and the principles of natural justice are applied as the present presiding officers of revenue department are entrusted with the functions of judiciary.
The revenue officers are well-acquainted with the age old customs, habits, peculiar traditions and special circumstances among different tribal communities. This practical knowledge guides them while discharging judicial functions for delivering apt decisions/judgments not only by hearing the parities but also being aware of the hidden factors responsible for the dispute. The practical knowledge of these presiding officers has been particularly helpful to serve interests of the tribal society and protect the true spirit of the principles of natural justice.
The revenue authorities have comprehensive field knowledge about those in actual possession of lands, although documentary evidence is in favour of non-possessors of the land. So the existing agency courts manned by revenue authorities are cautious in granting injunctions suits filed by non-tribals against the tribals who are in actual possession of lands based on the field inspection reports.
In the Agency Courts, the revenue authorities can summon the subordinate field personnel to produce land records concerned in adjudication process which the tribes in the civil suits would be unable to gather the documentary evidence which are in their favour. The Constitutional bench of the Supreme Court in State of Nagaland Vs Ratan Singh ((1966) 3 SCR 830) under Scheduled Districts Act, excluding the jurisdiction of ordinary courts of judicature, upheld the courts manned by local government officers in the tribal areas.
Similarly, the Constitutional bench of Supreme Court referring to the Civil Procedure Code (CPC), explained why the Civil and the Criminal courts are excluded, observing that people in backward tracts cannot be expected to make themselves aware of the technicalities of a complex Code. The removal of technicalities, in our opinion, leads to the advancement of the cause of justice in these backward tracts.”
The Governor of AP excluded the provisions of the A.P Civil courts Act 1972 to the Scheduled areas of Andhra Pradesh in order to continue the agency courts. The Supreme Court of India has already examined the question of existing agency courts in AP for the administration of civil justice in a batch of civil appeals No 5030-5036 of 2004.
The writer of this article and a tribal organisation namely ‘Girijan Yuvajana Samkshema Sangham” impleaded in the proceedings opposing the argument of a few finance companies operating in tribal areas for replacement of existing Agency Courts with Judicial Courts. The SC upheld the decision of the Government of Andhra Pradesh in 2012 to continue the existing Agency Courts System and declined to replace with the Judicial Courts.
Moreover, the Panchayats(Extension to the Scheduled Areas) Act 1996 (PESA Act), a constitutional piece of legislation empowers the Gram Sabhas in the Scheduled Areas to adjudicate civil disputes through customary mode of dispute resolution process. Therefore, the present move of NALSAR and Landesa to replace the existing Agency Courts poses a serious threat to the tribal land justice and simple form of justice delivery mechanisms. The Government of Telangana should stop such anti-tribal move to uphold the existing legal system in the Scheduled Areas of Telangana.
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