Concept Note - Rights and Resources Initiative

power to classify land as it likes and to assign it to various uses as it likes. So they employ this power
even where the land in question is actually technically owned by Gram Sabha or by the panchayat or
controlled by them and they use it to re-classify land and in particular they use this term Waste Land. All
of us in India are familiar with the way anything that the Government wants is classified as Wasteland.
This is absurd for one thing this is a diversion. Waste land is not legal category in most of India. It’s a
descriptive category that is used for recording land and I have a particular striking sequence of that in
the Biofuel example which already referred to earlier. Both Chhattisgarh and Rajasthan form special
rules under the Revenue Law for assigning land for Biofuel, and those rules defined the term Waste
Land. In the case of Rajasthan, it defined to be any land that is not under cultivation and is not required
for roads or for urbanization. And in the case of Chhattisgarh it is defined as any land that is not required
in the opinion of the government, which means basically that all the land in the state becomes waste
land and can be assigned to Biofuels. So this abuse of power to classify land under other uses
particularly wasteland is a key part in taking over of revenue lands. So, the thing is that, if we step back
for a minute and look at both of these legal systems and consider what is at work here, what lies behind
this process. Then at the legal level you can see it is not that people don’t have right, it is that the two
different systems of law are clashing at the same time in these areas. One set protects democratic rights
by vesting it in people’s institutions and the other one vests all power with the State machinery.
Communities resisting takeovers usually try to use the democratic laws, the FRA Act, the PESA Act, the
5 th Schedule in order to defend themselves under these laws. But the state machinery always ignores
these laws and only implement the autocratic laws that empower itself. A particular reflection of this is
that administrative procedures do not take into account these democratic laws at all. The most striking
example of what I already narrated is about the Forest Conservation Act and you have law of parliament
itself is a particular reflection of this is that administrative procedures do not take into account these
democratic laws at all. The PESA Act is routinely ignored across the country. No state has bothered to
bring its laws or procedure in line with the PESA Act. And this is also true as brought before the courts. It
is extremely rare for a court to intervene in favour of Common Land Rights. In most cases, what you
have seen, they will uphold the administrative power and the administrative procedure rather than the
common or democratic procedure and that is not surprising, because at the end of the day, the courts
are the institutions of the state and the ability of communities to express themselves to actually reach
the courts, to put this argument in term that makes sense to the court and to convince the court, The
courts tendency to favour the state and hence people’s power in court is extremely weak. We have seen
that particularly in the Godavarman case, where policies and issues that affect millions of people
without having anyone to represent them, being present in the court. In all cases except with the
exception of Bellary in all cases where right to land is being fought for, people have fought it by using
their local institutions and trying to use their power.
It is not particularly true of the courts. It is true of all administrative machinery, they always tend to
automatic state control in the name of the public good or the national interest over democratic
community collective rights, and the question is why, I mean where does this come from, and why is this
so central to the way the State functions. In a democratic state it is a peculiar state of affairs. In every
case following a democratic procedure is against National Interest and following an undemocratic
procedure is National interest. Why does this happen We have to look very quickly at the structure of
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