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Tribal Land, Customary Law, and the Manipur Land Revenue and Land Reforms Act

Richard Kamei (jenpuna@gmail.com) is a doctoral scholar at the Tata Institute of Social Sciences, Mumbai.

Tribal peoples in Manipur have been maintaining their commons under customary law. Interacting with outsiders has always led to the contestation of their customs, traditions, and beliefs. Tribal societies continue to administer their villages under customary law on the tenet of equity. Their law has even resisted the policies of Manipuri kings and the British administration. In the present day, tribal customary law stands challenged by the Manipur Land Revenue and Land Reforms Act, 1960.

The author acknowledges the comments of the anonymous referee.

Geographically, Manipur is divided into valley and hilly areas. The valley comprises four districts—Imphal West, Imphal East, Bishnupur, and Thoubal1—and accounts for 9.97% of the total geographical area and 59.82% of the total population of Manipur as per the 2011 Census. On the other hand, the hill districts—Chandel, Churachandpur, Senapati, Tamenglong, and Ukhrul—account for around 90.03% of the total geographical area and 40.18% of the total population of Manipur (Ministry for Development of North Eastern Region [DONER] nd). The valley region enjoys a share of 40 seats out of the 60 available seats in the state legislative assembly, which is suggestive of its being the stronghold of political power (Chaudhuri 2002).

The hill districts of Manipur are not homogeneous in terms of population (Kom 2011). They are occupied mainly by two prominent tribal groups—the Kuki and the Naga. Each represents a different tribal group, and their customs relating to landownership differ (Ghosh 1987; Panmei 2010b).

Landownership in Naga society is governed by who first settled in the village and involves two to three tiers of ownership. The village head is the first owner and distributes land to villagers in exchange for their resources such as pigs, dogs, rice beer, mithun,2 and so on (Panmei 2010a). This exchange legitimises the ownership of the land for those making the payment and makes them the second owners. Village chiefs may also distribute land to villagers out of benevolence or on the basis of clan membership. Third owners are those who come into ownership by paying the price of the land to—or by bartering with—the founder or chief of the village to cultivate the land of the second owners. Villages where jhum3 cultivation is practised usually have a landownership system involving second and third owners; the same system is also seen in villages where terrace cultivation is practised (Panmei 2010a).

In Kuki society, the village chief has complete authority over landownership and village affairs. The village land is directly under the chief’s control, and distribution of land to villagers is done on the basis of the need for cultivation. The chief has the power to expel any villager from the village. The landownership system of the Kuki has been called autocratic (Panmei 2010b). This claim also appeared in the Manipur report of the DONER, in the chapter entitled “Land Rights Autonomy;” it went on to add that the Kuki villagers are mostly at the mercy of their chief (DONER 2006). An account by Sitlhou (2015: 71) provides insight into the role of the village chief in contestation of this claim of autocracy:

The chieftainship system is woven around the concept of privileges and obligations of the chief towards his subjects and also that of the subjects towards the chief. The chief is obliged to provide the villagers security, settle disputes, and provide care and protection. The chief, via the customary court, also makes rules regarding forest use. The land within the chiefdom is distributed to the villagers for cultivation and for making homesteads.

Manipur has been experiencing various forms of conflict: between the state and the people of different communities, between the different communities (interethnic conflict), and within the communities (intra-ethnic conflict). The most contentious issue in Manipur is that of land. This issue has two dimensions: management by customary law in the hill districts and that by the state legislation in the plains. Customary law allows tribal communities to safeguard their long-held traditions of having common resources, including land, forests, water, and so on (Shimray 2009). These conflicts converge on the commons. It is a well-established fact that the hill districts of Manipur have a colourful history of ethnic conflict over land. These ethnic conflicts are linked to the way in which land is managed in customary law based purely on the oral transmission of land history from generation to generation. The linkage of community identity with land is the commonality between the communities and what motivates the claim to land against the backdrop of the conflict between different tribal communities. With no written records available and the overlap of different tribal communities on common land, the conflict over holding land and defending held land often leads to ethnic riots that displace hundreds and thousands of tribal people (Sachchidananda 2004).

Customary Law and Its Underpinnings

The state views land as an asset of individual ownership, while the community-based customary law that tribal communities follow dictates community ownership of common resources. The state approach of individual ownership of land is enforced through written land records and results in unequal distribution of land. The essence of customary law hinges on the principle of equity. It calls for non-monopoly over common resources, including land, wherein each family is ensured their basic needs. It also ensures sustainable management of inherited common resources, and preservation of the rich traditions and cultures of the people. However, what is lacking in customary law is the representation of women; customary laws do not accord women control over economy and labour (Menon 1995).

The forest is indispensable to forest-dwelling tribal communities; it provides them with shelter and food, and serves to nurture their cultures. The exploitation of forests thus has huge bearings on these communities. The British administration first came up with a policy on forest management in 1894 (Ghosh 1987). This policy debarred tribal people from making claims to the forest and termed it as state property through regulation and restriction. In the present context, tribal people have access to forests, but when it comes to ownership, the jurisdiction and management of forests lie with the state (Ghosh 1987).

Management of land under customary law accords identity and equity, but that does not mean this is a perfect system. For instance, customary law accords no decision-making power to women for the management of resources, including land; even in cases where women hold land, it is the men who control it (Fernandes et al 2007).

Identity associated with—and sustenance from livelihood activities in—land held commonly under customary law are intrinsic to tribal society in Manipur. This premise is contested by state law. This was first witnessed during the colonial era when the British tried to formulate laws for individual ownership of tribal land. The formal law of the state is entrenched in the idea of individual ownership of land. The treatment of tribal livelihood and sustenance as commodification of forest resources began during the colonial era as a means for drawing revenue. The concept of private property has crept into perception of landownership, thereby eroding the practice of holding common property within tribal groups. The influx of Christianity, which came along with the British colonial rule, played a role in disrupting the practice of customary law and replacing it with administration by the state. This led to the recognition of private landholding as legally binding and destabilised community landholding under customary law. As of today, the legal system recognises tribal land as private property (Shimray 2006).

The state has made an effort to control ownership of the commons, which is land that so far has remained a source of sustenance for tribal people. Though the commons—managed under customary law—continue to be a central form of identity for tribal communities, Manipur has seen a shift in mindset towards an individualistic approach to landownership, mainly among those who are educated and employed. Despite this shift, customary laws are still intact and the commons continue to exist (Shimray 2009).

There are laws that bar non-tribal persons from acquiring tribal land to prevent exploitation of tribal persons, but these laws are only meant for private land; communally held land under customary law has no scope for protection. The law considers this land state property, disregarding the habitation and sustenance needs of tribal communities living here (Bora 1986). Denial of tribal rights will have consequences in the form of impoverishment, debt, and the pressure to seek new means of livelihood. The state often first declares communally held land as state property and later initiates developmental projects such as dams in these lands (Debbarma 2009). Customary law came into being within a particular context, given the relationship between tribal society and the environment; it undergoes changes from time to time as per the needs of the community and the region. The existence of customary law is in consonance with the requirements of the community (Sheleff 2000).

The dynamics of landholding under customary law in many tribal societies have undergone changes with the urbanisation that is taking place at an unprecedented rate. As a result, the old way of governing with customary law must contend with two forces: the state’s land laws and the individualistic approach of people, especially educated young people with jobs. The trend towards individual landownership is bringing in social inequality, and differences within and beyond the village. This situation paves the way for social problems and conflicts over the interests of the people (Nongkynrih 2009). The pattern of landownership in tribal communities has changed from the past model of community-based landholding. Landholding in the present is influenced by government policies, the market economy, developmental projects and schemes, and so on.

Exposure to the outside world, mainly through Christianity and education, opened tribal communities up to the modern world and led to an expansion of their world view, which has contributed to much advancement of tribal society. However, uneven progress has led to the rise of middle and elite classes within tribal villages. This poses a challenge to management of land under customary law. The existence of these classes creates an unequal power dynamic in the village. To begin with, the supposed equity of land distribution tilts towards people who hold higher social status. This leads to inequality among villagers. The role of the village chief has also undergone a change, influenced by the power dynamics in the village and the government servants acting to keep their interests around land alive. Individual landownership comes into conflict with the age-old management of common resources, and it may eventually embrace the state law on regularisation of land and other common resources. The current existence of individual landownership is attributed to the rise of the tribal elite. Through the influence of their social status, they move community-owned land into individual ownership. Commodification of land leads to class differentiation and brings in landlessness among some sections of tribal people. This has been the case among the Kuki and the Naga. Patriarchy within the communities adds to the existing landownership woes as women have always been largely prevented from owning or inheriting land. Thus, there is further land alienation within tribal society (DONER 2006).

Urbanisation and rise in social status of people bring gradual changes to the village that tribal society must deal with. One of the many issues around landholding occurs when government policies and schemes override landownership under customary law. In such cases, tribal people are forced to abide by the rules and regulations for schemes and policies of the government, and declare their lands as individually owned land as it is made binding to get their lands registered as such with the authorities. The land registration document serves as proof of landownership for availing various schemes and programmes, such as housing loans and investment schemes; access to banking services; and so on (Nongkynrih 2009). On the other hand, the exposure of tribal people to the machinery of the state has led to a fall in community landholding due to non-tribal entities occupying tribal lands. All of this adversely affects the tribal people in their agricultural activities, including jhum cultivation in far-off places such as hilltops and slopes (Ghosh 1987).

Land classification on the basis of land use was undertaken by the North Eastern Council (Amendment) Act in 2002. The classification uses terminology such as “area put to non-agricultural uses,” “barren and uncultivable land,” “permanent pastures and other grazing land,” “cultivable waste land,” and “others” (Nongkynrih 2009: 36). The paternalistic approach of this classification is evident as tribal communities use a land classification system of their own that includes a demarcation between community and private lands. The policy of the state of classifying tribal land without considering the tribal classification of land is blatant disregard of the recognition it deserves (Nongkynrih 2009). The binary of the hills and plains in land administration is not a new concept, as pointed out by Sanjib Baruah (2008), and has been in place since colonial times, when customary law was associated with the hills and state law with the plains. Baruah (2008) also goes on to say that customary law and its practice undergoes change from time to time depending on the context of the time period.

Implication of State Policy on Hill Areas

Prior to 1960, Manipur’s hill areas were administered under the Assam Land and Revenue Regulation, 1886, enacted through a State Durbar Resolution. The Manipur Land Revenue and Land Reforms (MLR&LR) Act came into being in 1960; it was enacted to administer land and its distribution in Manipur, except for the hill areas, which fell under the ambit of customary law (Ghosh 1987). In being inapplicable in the hill areas, the act makes them a special exception. Subsequently, close to 1,161 villages in the hill districts of Manipur have been notified as hill areas under the ambit of the act (Panmei 2010a).

As the state of Manipur is yet to implement the Sixth Schedule4 concerning tribal administration, there has been an attempt to homogenise tribal lands managed under customary law to club them under the MLR&LR Act. The act is applicable only to the plains districts of Manipur. Over the course of time, the state has begun implementing the act in the hill districts of Manipur as well. The friction between the hill people and the State in this regard has been long-standing; in the meanwhile, the state has already implemented the act in a number of villages of three hill districts—Tamenglong, Senapati, and Churachandpur (Panmei 2010a).

The state government has the authority, via the MLR&LR Act, to define through gazette notifications which parts of Manipur are deemed fit to be hill areas. Thus, it has the power to divide the territories. The implementation of the act is possible because of how the state defines “hill areas” in an ambiguous manner: it demarcates lands in the hill districts into hilly and low-lying areas. Low-lying lands in the hill districts are not counted as “hill areas.” This makes way for the implementation of the act in the hill districts in addition to the valley districts. Any land dispute arising out of the act has to be decided by the deputy commissioner of the given district, whose decision is final and binding, in consonance with the provisions of the act. Consultation with local people or inhabitants finds no mention, and even if there is scope for it, the final decision rests solely with the deputy commissioner (Panmei 2010a).

Section 15 of the act states,

Any person who occupies or continues to occupy any land belonging to the government without lawful authority shall be regarded as a trespasser and may be summarily evicted.

The repeated attempts to apply this act in the hill districts—and the fact that it is already applied in a number of villages in the hill districts—are impinging on the lives of tribal people who have been inhabiting and governing their lands under customary law. With the application of this act, they are liable to be notified as trespassers or illegal occupants and can be penalised (Government of Manipur nd a).

Section 99 of the act, built on the premise of “accrual of rights,” states that any land can be arrogated as state property (Government of Manipur nd a). For the state to have the authority to declare any land as state property goes against the ethos of landownership under customary law. With this ability to reclassify tribal land as state property, developmental projects in the state can be furthered. Such provisions in the act can go against the interests of the people.

Transfer of land is defined under Section 158, wherein a provision for transferring tribal land is valid only among tribal people. The section further says that the transfer of land is possible if it is made to a cooperative society with the consent of the deputy commissioner of the district. This provision has a loophole that can be easily misused, as happened in Tharon village in Tamenglong district, where a cooperative run by non-tribal people occupied land belonging to tribal people (Panmei 2010a). The fear with a scenario like this is that after a certain period of time, the land held by a cooperative can legitimately be made over to a non-tribal person, thus inviting the setting up of cooperatives as the initial step in attempts to take advantage of this provision in the act.

There have been attempts made by the state government to extend the act to the whole of Manipur. The Sixth Amendment Bill for MLR&LR, 1989 made an attempt to do away with the mention of “hill areas” in Section 2 of the act, and in the subsequent amendment in 1992, there was an attempt to remove the provision that protects the transfer of land from tribal person to non-tribal person (Institute for Human Development 2009; Panmei 2010b; Sitlhou 2015). The Hill Areas Committee (HAC), constituted under Article 371(C) of the Constitution, and other civil societies had vehemently opposed the move made by the state government. The Sixth Amendment Bill via Section 158(c) of the act, proposed to prevent tribal people from making new settlements in tribal land without obtaining permission from the state and stipulating that and the settlement needs to have 50–75 families (DONER 2006; Panmei 2010b). The same amendment bill also proposed to allow transfer of land to other residents of the state who had been living in the state for at least 30 years (DONER 2006; Panmei 2010b).

The act, through several notifications, has been extended to many villages in the hill districts of Manipur as they are located in low-lying areas (Devi 2006). The number of villages where the MLR&LR Act has been imposed so far totals 117 in the Churachandpur, Senapati, and Tamenglong districts of Manipur. The implications of the extension of the MLR&LR Act to selected villages in the hill districts of Manipur are already being felt. Evidence of this can be seen in Saikot village in Churachandpur. The village was founded in 1920, and villagers had settled in this village much before India’s independence in 1947. The chief of the village used to allot land to the villagers. Now the village has been identified as no longer falling under hill areas, and the MLR&LR Act has been applied to it. Therefore, the village chief must now pay a premium to the state for securing land allotment, which was previously owned communally under customary law. Failure to do so will identify him as an encroacher to the state (Panmei 2010b). If they stick to customary law, the chief as well as the villagers will be treated as encroachers and subjected to penalties as per the provisions in Sections 14 and 15 of the act (Dena 2011).

The displacement of people with the setting up of the Khuga dam—a multipurpose project—clearly illustrates a major loophole in the act. People who had been allotted land under the act were treated as landowners and given compensation, while those who had been settled around the area for many years under customary law were evicted and denoted as encroachers in their own land (Panmei 2010b).

Another instance of land alienation is that of the Hundung case of Ukhrul district, where tribal lands were acquisitioned for a road project, cement factory, and hydroelectricity power project by the North Eastern Council with the support of the Government of Manipur. Tribal landowners filed a petition against the state and its stakeholders before the Guwahati High Court. The court delivered the following verdict:

We are here concerned with hill areas of Ukhrul that there is no government khas land in the hill areas of Ukhrul. The ownership of land situated in the hill villages of Manipur vests in the villagers. They do not hold the land under the pleasure of the Government.5

The judgment tilted towards the argument that there is nothing such as khas land6 in the hill districts of Manipur, including in Ukhrul district. The state government has attempted to override the distinction between community land and government land through the MLR&LR Act to enable acquisition and allocation of land in the name of developmental projects. The attachment of tribal people to their lands in line with their customs and traditions is slowly becoming irrelevant to the state. With the MLR&LR Act making its way into the hill areas, tribal occupants of the lands will be identified falsely as encroachers, as was done in Saikot village (Panmei 2010b).

Conclusions

The alienation from their lands looming over the tribal peoples in the hill districts of Manipur is not removed from reality. Raising awareness of this situation will hopefully lead to a discussion around finding a way out that allows harmonious coexistence among various ethnic communities without infringing on the customs and traditions of the tribal peoples. At the same time, tribal communities also need to examine the changes taking place within and find a way to address the gaps in their villages around ownership of common resources, including land. The relevance of customary law is now challenged both from within the tribal groups and by the state, and additionally by the need for development.

Unpreparedness for these challenges can lead to unprecedented alienation of tribal communities from their once commonly held resources and leave them subject to the whims and fancies of the state. This may likely marginalise them further and strengthen the inequality between them. The state also needs to be held accountable and be in continuous consultation with the HAC and civil societies. In this way, the tribal people will be apprised of the steps taken by the state. Likewise, tribal people can also put forth their concerns, insecurities, and apprehensions over land to the state through the HAC. The state needs to take full responsibility to ensure that the lands of tribal people are kept intact by taking into account their interests and customary laws. Any deflection can result in alienation of tribal people from their lands, thus making them vulnerable to landlessness and ethnic tensions among various tribal groups.

Notes

1 Manipur has nine districts, of which there are five hill districts and four valley districts (Government of Manipur nd b).

2 Mithun is one of the domesticated bovine species found in North East India and neighbouring countries like Myanmar, Bhutan, Bangladesh and China. It is integral to the tribal sociocultural and economic identity (Mondal et al 2014).

3 Shifting cultivation practised in North East India (Reimeingam 2017).

4 The Sixth Schedule of the Constitution outlines administration of tribal areas. Provisions under the Sixth Schedule provide statutory protection to Scheduled Tribes and allow for creation of autonomous districts and regions within the districts wherein the interests of tribal people like customary practices are protected (Baruah 2003).

5 Civil Rule No 132/90/91, between the North Eastern Council, Shillong; the state of Manipur; and the deputy commissioner, Ukhrul versus the Hundung Victims of Development Project (Panmei 2010b).

6 Khas lands, as defined under Government of Manipur’s Directorate of Settlement and Land Records, are those lands identified as government land (Government of Manipur nd c).

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Updated On : 14th May, 2018

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