(Vikram Rajkhowa is an advocate at the Gauhati High Court and may be reached at [email protected])
The decision taken in the Executive Council meeting of Bodoland Territorial Council held on January 12, 2018, chaired by its Chief Executive Member, Hagrama Mohilary, more particularly the decision taken at 2.1 of the Minutes of the meeting, wherein it was stated that “...it was decided unimously that as per the spirit of Bodoland Territorial Council Act, 2003, no tribal could sale his/her land to any non-tribal and non-tribal could sale his/her land to any non-tribal in the BTC area without permission of the Council authority including in the Tribal Belts and Blocks of BTC area...” has once again opened a hornet’s nest.
The Bodoland Territorial Areas District (BTAD) has an area of around 8,969 sq km (around 11.25% of Assam’s total area) with a total population of around 31.51 lakh (2011 census), wherein reside diverse groups of communities, consisting around 30% tribal population (around 90% Bodos, 10% other tribes like Rabhas, Garos, etc) and remaining 70% being non-tribal populace consisting of the Assamese (Hindu/ Muslim), Bengali origin (Hindu/ Muslim) people , Nepalis, th-Jogis, Tea Tribes/ Adivasis (like Santhals, Orans, etc), including the indigenous Koch-Rajbongshi community with a population equal to the Bodo’s. It has witnessed some of the worst commul violence and terrorist attacks in the entire country, leading to the death and maiming of thousands of people and displacement in lakhs, over the issue of land and territory.
Land being a highly contentious issue in the BTAD area, the decision of January 12, 2018, by the BTC Executive Council was immediately looked upon with deep suspicion by the non-tribal populace, with spontaneous protests by various indigenous non-tribal organizations against the said decision, which was seen by them as an infringement on their land rights. The BTC Chief finding himself on the back foot due to the outrage from the indigenous non-tribal populace of BTAD, reportedly backtracked on the earlier decision to tamper with the land laws in the BTAD area for the time being, even going to the extent of calling it erroneous. So what exactly is the legal position of the non-tribal people of BTAD vis-a-vis their land?
The Memorandum of Settlement (Bodo Accord) dated 20 February 1993 in Clause 20 clearly states that “the Government of Assam and the BAC (Bodoland Autonomous Council) will jointly ensure that all rights and interests of the non-tribals as on date living in BAC area in matters pertaining to land as well as their language are protected.”
Similarly, the Bodo Accord dated February 10, 2003 in Clause 4.3 states that “Safeguards for the settlement rights, transfer and inheritance of property etc., of non-tribals will be suitably incorporated in para 3 of the Sixth Schedule. Any such law as may be made by the BTC in this regard will not, in particular:
(a)Extinguish the rights and privileges enjoyed by an citizen of India in respect of their land at the commencement of BTC, and
(b)Bar any citizen from acquiring land either by way of inheritance, allotment, settlement or by way of transfer if such citizens were eligible for such bo fide acquisition of land within BTC area.”
It is also specifically stated in Clause 4.8 of the above mentioned Bodo Accord dated Febraury 10, 2003 that “The Amendments to the Sixth Schedule shall include provisions in such a manner that non-tribals are not disadvantaged in relation to their rights enjoyed by them at the commencement of BTC and their rights and privileges including land rights are fully protected.”
Further, the Sixth Schedule to the Constitution (Amendment) Act, 2003, in para 3 sub clause (ii) states that “provide for adequate safeguards for the non-tribals in the BTC area to ensure that they are not put to any disadvantage in relation to any rights and privileges including land rights presently enjoyed by them at the commencement of BTC.”
In regard to some judicial decisions having bearing on the instant issue, a Division Bench judgment of the Gauhati High Court in Mrs CN Lyod vs District Council, United Khasi & Jaintia Hills and Ors, held that “...the land comprised in an autonomous district does not belong to the District Council in the sense it is owned by the State of Assam not by the district council.” Again a five-member Constitutiol Bench of the Supreme Court in District Council of United Khasi and Jaintia Hills & Ors v. Ms Sitimon Swain etc, held that “...the District Council is not competent to legislate on transfer of land but was competent to legislate on the subject of allotment occupation or use of land only.” It was further elaborated by the Supreme Court that “The District Councils unlike the Parliament and State Legislatures are not intended to be clothed with a plery power of legislation. Their power to make laws is expressly limited by the provisions of the Sixth Schedule which has created them and they can do nothing beyond the limits which circumscribe their power. It is beyond the domain of the Courts to enlarge constructively their power to make laws.”
Therefore, any misadventure of the Executive Council of BTC to alter the land use of the non-tribal people of BTAD area, is not only likely to face vehement protest, as in the instant case, but also likely to hit legal road blocks, as it is not only against the spirit of the Bodo Accord, but also against the provisions of the Constitution of India and various judgments of the apex court and the high courts.
The BTC Executive Council, which attempted to dilute the land rights of the non-tribal people in BTAD, is heavily tilted against the non-tribal communities, with only 2 non-tribal members in the 14 member BTC Executive Council, and not a single member from indigenous non-tribal communities. Similarly, in Bodoland Territorial Council, which shall consists of not more than 46 members, of whom 40 shall be elected, only 10 seats are open for non-tribal people to contest, and 6 seats to be nomited by the Governor from unrepresented communities of BTAD (of which at least two shall be women). Therefore, non-tribal people with around 70% population in BTAD area can only hope to wrest at most 35% seats of BTC at any given time, leading to a very precarious situation, wherein, a minority-rule-majority model has been created in the world’s largest democracy, leading to constant frictions and conflicts. Presently, even the 6 seats in BTC to be nomited by the Governor, has remained vacant for some time, rendering the actual share of non-tribal people in the said council to around 22%.
Therefore, it becomes imperative for the Chief Minister of Assam to intervene, and prevail upon the Governor of Assam, to nomite the six members from amongst the unrepresented communities of BTAD, without further delay, as per the mandate of the Sixth Schedule to the Constitution (Amendment) Act, 2003, and in complete compliance of the provisions made in the Bodo Accord, so as to protect to some extent the interest of non-tribal communities within the BTAD area, in the larger interest of peace and stability.