From Protection to Dispossession: How Jharkhand’s Executive Undermines Tribal Land Rights

 Shoubhit Daftuar*

1. INTRODUCTION

The Chotanagpur Tenancy Act, 1908 (“CNT”) and Santhal Parganas Tenancy Act, 1949, (“SPT”) have gained prominence over the years not just as mere policy instruments but as constitutional bulwarks designed to protect tribal communities’ ancestral land, cultural identity, and autonomous governance. These Acts restrict land alienation to non-tribals and embody constitutional protections under the Fifth Schedule, alongside the framework of tribal self-governance guaranteed by the Panchayats (Extension to Scheduled Areas) Act (“PESA”).

Under these laws, Scheduled Tribe (“ST”) raiyats may generally cultivate ancestral land but cannot transfer or alienate it to outsiders without strict safeguards. Section 46 of the CNT Act expressly limits a tribal raiyat’s sale or gift of land to other ST members within the same area, and only with prior approval from the Deputy Commissioner.  Similarly, Section 20 of the SPT Act forbids any non-tribal from acquiring tribal holdings. In Scheduled Areas, the Fifth Schedule of the Constitution empowers the Governor to prohibit any transfer of tribal land outside the community, and PESA further mandates that Gram Sabhas must prevent land alienation and be consulted before any project affecting land receives approval.     

In the last decade, however, the Jharkhand government has pursued several administrative and legislative measures that critics consider to have undermined these protections. The following discussion documents the attempted legal changes enabling the alienation of tribal land to industry, effectively circumventing CNT/SPT safeguards. It assesses these acts under administrative law doctrines of ultra vires, colourable exercise, fair procedure and analyses conflicts with Fifth Schedule and PESA mandates while providing policy recommendations.

2. EXECUTIVE CIRCUMVENTION OF CNT AND SPT PROTECTIONS

The Jharkhand government, through a series of executive orders, policy initiatives, and administrative classifications, has repeatedly attempted to dilute the protective intent of the CNT and SPT Acts. These manoeuvres do not occur in isolation. Rather, they represent a broader strategy to reorient land governance in favour of the industries at the expense of the statutory and constitutional safeguards provided to the Adivasis.

In 2010, the Jharkhand Revenue Department issued circulars that reiterated the requirement under Section 46 of the CNT Act for prior approval of the Deputy Commissioner before transfer of tribal land. Yet, within a week, a second circular suspended this protection. This was a clear attempt to substitute executive discretion for legislative command. Furthermore, the Jharkhand High Court in Salkhan Murmu v. State of Jharkhand, invalidated the latter circular, holding that such an act was ultra vires and violative of the rule of law.  

This continued with the “Land Bank” initiative, wherein communal or khuntkatti holdings were reclassified as gair majarua aam (government land). In doing so, tribal land was treated as an ungoverned and unowned resource. Such action, when measured against Samatha v. State of Andhra Pradesh (“Samatha”), constitutes a colourable exercise of power, as the purpose and effect of the reclassification were to achieve indirectly what the tenancy laws explicitly forbid. 

The 2016 draft amendments to the CNT and SPT Acts are another instance of a similar act by the executive. By proposing to authorise government acquisition of tribal land for developmental purposes, the State sought to constitutionalise dispossession through legislative means. However, the amendments did not pass as Governor Droupadi Murmu refused to grant her consent to them. 

Moreover, the consistent failure to implement the PESA Act over two decades in Jharkhand compounds this pattern. This facilitates executive discretion by preserving procedural ambiguity. The recent Adivasi Buddhijeevi Manch v. State of Jharkhand order, staying sand mining auctions in Scheduled Areas, exposes the systemic nature of this omission. The High Court’s insistence that executive expediency cannot precede legal infrastructure reiterates the foundational administrative law principle that legality must precede policy.

These episodes together illustrate not administrative missteps but a structural pattern of governance that gives primacy to executive innovation over fidelity to the statutory protections. The rhetoric of development is repeatedly used to justify departures from legal constraints. 

3. ADMINISTRATIVE LAW DOCTRINES AND EXECUTIVE ACCOUNTABILITY

The legality of Jharkhand’s executive conduct must be evaluated through the core doctrines of administrative law: ultra vires (A), colourable exercise of power (B), and procedural fairness (C). 

1. Ultra Vires: The Limits of Statutory Competence

The ultra vires doctrine ensures that administrative acts remain within the authority granted by statute. In Barium Chemicals Ltd. v. Company Law Board, the Supreme Court held that even if a statute confers wide discretion, the decision-maker must act within its “four corners.” When the executive authorities in Jharkhand utilise general statutes on land acquisition in order to alienate land protected under the special Acts of CNT and SPT, they act beyond the limits of those special laws. The Fifth Schedule’s paragraph 5(2) explicitly empowers the Governor to make regulations restricting land transfer in Scheduled Areas. Therefore, only the Governor, and not a department, can authorise such a deviation from these laws. Executive circulars allowing lease or acquisition without such assent are ultra vires both the parent Acts and the Constitution.

This stance is reinforced by the reasoning in Adivasi Buddhijeevi Manch, wherein the High Court quashed administrative actions in which industrial allotments had been made in violation of the consent procedure under PESA and held that delegated authorities cannot use general policy instruments to override special statutes designed for tribal protection.

The test of ultra vires has thereby consistently revealed a pattern of reliance by the Jharkhand executive on policy resolutions and notifications to achieve ends which legislation itself forbids.

2. Colourable Exercise of Power: Disguised Legislative Intent 

The doctrine of colourable exercise of power prevents authorities from doing indirectly what they cannot do directly. In K.C. Gajapati Narayan Deo v. State of Orissa, the Court clarified that while the legislature’s motive is irrelevant, the substance of the act, not its form, is determinative. Applying this reasoning to executive action, the question becomes whether the government, under the guise of industrial development, pursues objectives inconsistent with the purpose of the two protectionist statutes.

Jharkhand’s creation of land banks comprising unused or wasteland in the Scheduled Areas is the epitome of such colourable exercise. Although presented as a launchpad for investment, these banks often include recorded tribal holdings that have been transferred to the State without the procedural safeguards of the CNT or SPT Acts. By categorising land as State-owned, the executive circumvents the prohibition on alienation to non-tribals. The objective of promoting employment and growth conceals how constitutionally protected communities are dispossessed.

In Samatha, the court struck down mining leases granted to private companies in Scheduled Areas, holding that such transfers, though formally sanctioned by government orders, violated the spirit of the Fifth Schedule. Jharkhand’s practice of using industrial corporations as intermediaries to lease tribal land to private entities mirrors the same pattern of disguised intent condemned in Samatha. The decision reiterated the Supreme Court’s stance that when the real effect of a measure diverges from its intended purpose, it is colourable. 

3. Procedural Fairness and the Erosion of Tribal Participation

Procedural fairness, steeped in natural justice, requires that communities whose lands are involved have a genuine opportunity to participate in the decision-making process. The expansion of audi alteram partem into a constitutional expectation under Article 14 carries special significance in Scheduled Areas where PESA operationalises participatory governance through the Gram Sabha.

In practice, this requirement is routinely circumvented by executive notifications issued by Jharkhand. Land is notified for acquisition or lease without the Gram Sabhas having been convened. When consultations do take place, they are perfunctory, with the minutes being drafted ex post facto. Such consultations tend to be mere rituals devoid of deliberative substance. The absence of meaningful consultation with tribal institutions, therefore, constitutes a violation of both procedural fairness and statutory mandate.

The erosion of fairness also manifests through opacity. Information about the proposed acquisitions is often withheld under the pretext of public interest. This is counter to the transparency objectives of the 2013 Land Acquisition Act and the constitutional right to information. Procedural fairness here is not an abstract norm but a procedural embodiment of Article 244 and the Fifth Schedule’s promise of self-governance.

Taken together, these three doctrines reveal that Jharkhand's pattern of land administration is neither administratively neutral nor legally sustainable. 

      4.  CONCLUSION 

The experience of Jharkhand reveals a framework that simultaneously promises protection to vulnerable communities while enabling the executive to reinterpret those promises in the name of progress. The CNT and SPT Acts were designed as instruments of restorative justice for communities historically dispossessed through colonial land regimes. Through a series of administrative reinterpretations, however, they have been transformed into flexible instruments of acquisition. What emerges is not a contest between law and development but a deliberate recalibration of legality to conform to the imperatives of extractive policy.

The Jharkhand executive's reliance on circulars, notifications, and land-bank mechanisms represents precisely such a phenomenon, revealing the transformation of protective legislation into an administrative resource. The State's actions reveal a structural failure to treat protective laws as instruments of substantive equality.

In doctrinal terms, administrative law must evolve beyond formal legality and begin engaging with the normative commitments of the Constitution. The doctrine of ultra vires must not be interpreted literally; rather, it should be interpreted purposefully. Similarly, the principle of procedural fairness in Scheduled Areas must be read as a guarantee of participatory self-determination rather than a mere courtesy in procedure. The Gram Sabha’s consent, in that sense, is less an act of administrative consultation than a kind of constitutional dialogue.

Policy Reform operationalising these requirements demands concrete institutional design. Firstly, the Governor's regulatory power under the Fifth Schedule should be exercised transparently. A Tribal Land Protection Board should be mandated to review all executive actions affecting CNT/SPT lands. Secondly, the State should standardise clear procedures for verifying Gram Sabha consent, with digital records and audit trails to prevent manipulation. Thirdly, the Jharkhand Right to Fair Compensation Rules under the 2013 Act need to be amended to explicitly subordinate themselves to the CNT and SPT Acts, recognising the latter as special protective legislation. Lastly, the judiciary must continue to adopt an approach that seeks to align administrative discretion with constitutional purpose.

The events in Jharkhand call for a re-articulation of what administrative accountability means. In Scheduled Areas, administration cannot be merely efficient; it must be empathetic. The State is not an owner of tribal land but a trustee, and trusteeship demands restraint. Governance in tribal regions must protect, not profit from, the resources of the people. Embedding this ethos into administrative practice is the only sustainable reconciliation between the imperatives of governance and the moral economy that the Constitution mandates.

*Shoubhit Daftuar is a 3rd year undergraduate student pursuing B.A., LL.B. (Hons.) at the Maharashtra National Law University, Mumbai.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.