RTI and the Land Question in Meghalaya

One morning in 2009, the inhabitants of the Umkyrpong in the Jaintia Hills discovered that their village lands had been sold to a coal baron called Donush Siangshai. The village council— the dorbar shnong— had frequently objected to any such sale of their forest lands, which sustained several families in the village. Understandably perplexed, they filed a RTI petition with the Jaintia Hills Autonomous District Council. How was it, they asked, that the sale transpired without their consent? The response to their query unraveled into a massive fraud that implicated the former headman of Umkyrpong and several office holders within the JHADC. Fortified by this evidence, the dorbar shnong approached the High Court of Meghalaya, which set the sale aside five years after the villagers filed their first RTI petition. The Umkyrpong case, while successful in its own terms, exemplifies a recurring and more recalcitrant problem: the tremendous challenge of regulating land in Meghalaya, a state with no cadastral maps, few registered titles, and a few too many institutions.

Land in Meghalaya belongs to the people, not the state. It is governed by customary law, which varies across districts (and frequently within them). Interpreting, consolidating, and codifying this lived law is one of the most important functions that the Sixth Schedule delegates to the Autonomous District Councils it created. In practice, the ADCs work in tandem with traditional institutions, such as village headmen and their councils, to determine who owns land and when it can be sold. Khasi law, for instance, recognizes both private land and communal land. Sales of communal land require the consent of the dorbar shnong before the KHADC can grant a no-objection certificate. In the Garo Hills, however, communal land is held in trust by the nokma (headman). In some areas, his consent is sufficient to obtain the NOC certificate from the GHADC required for sale. In others, the nokma first distributes the land, which is then sold privately. Settlement and title disputes are perhaps the most complex in the coal country of the Jaintia Hills, one of the many legacies of colonial rule in the region.

The Old Colonial State

The East India Company annexed Jaintiapur in 1835. The kingdom was loose confederation; the king controlled the lowlands, located in (what is now) Sylhet, while the hills were ruled by tribal chiefs, the most powerful of whom lived in Nartiang in (what is now) the Jaintia Hills. The proximate cause for the company’s intervention was the capture of “four British subjects” on the road between the capital and Nartiang. Relations between the hills and the plains had been strained for decades, partly because of the company’s exploitative monopoly of the lucrative limestone trade, and three of the men were eventually killed in what company courts described as “ritual sacrifice.” This case was made, to quote the historian Gunnel Cederlöf, “a pretext for the Bengal government to dismember Jaintia and take possession of the extensive lowlands north and south of the hills.” The hills, more difficult to control, were left to govern themselves.

British rule nevertheless left a lasting impact on the hill polities of erstwhile Jaintiapur. Formerly royal lands were converted into extensive “revenue” lands, control over which was subsequently inherited by the Khasi and Jaintia Hills ADC in postcolonial Assam. In the mid-sixties, this “united” ADC split into what are now the KHADC and the JHADC. Currently, therefore, the eleven districts of Meghalaya fall under the jurisdiction of three ADCs, and the “revenue” lands of the Jaintia Hills are controlled by the JHADC. The colonial state issued timebound leases to such “revenue” land, on the basis of which it assessed taxes—a process that enclosed common land and effectively privatized it. The JHADC continues this practice, with two significant differences: it issues “pattas” in perpetuity, thereby converting a lease into a landholding, and the land so granted is tax-free.

The onset of British rule also altered local governance in the region. The hill polities of Jaintiapur were decentralized: each village had its chief, its priest, and its council. A group of villages were organized into a district, and a group of districts into a chieftainship or kingdom. The Company’s intervention deposed the highest layer of governance, making everyone further down the hierarchy dependent on the colonial state, which supported village officials by granting them rent-free “revenue” land. This then allowed local agents of the colonial state considerable sway in deciding who got appointed to these posts as well as their responsibilities. One of the most important officials in the Jaintia Hills, for instance, is called a doloi. In precolonial times, according to the political scientist L.S. Gassah, dolois were elected for their lifetimes and exercised complete administrative control over their elakas (districts). Over the course of the 19th century, however, this shifted: dolois could only be “nominated” by their elakas for three-year terms, and their appointment had to be confirmed by the Deputy Commissioner. This, alongside their fiscal dependence on colonial largesse, transformed dolois into bureaucrats— responsible for policing their districts and ensuring the flow of taxes—rather than political leaders answerable to their people.

The anthropologist Bengt Karlsson has described the even more radical transformation of “traditional” authorities in the Garo Hills. As is generally the case in Meghalaya, Garos are a matrilineal tribe. The patriarchal colonial state, unable to recognize women as political actors, insisted on dealing with their husbands instead, thereby empowering the nokma as the sole decision-maker over lands his wife had previously controlled. In the hills of colonial Assam, thus, some local leaders owed their authority to the colonial state, while others became functionaries of the imperial government more insidiously. In the postcolonial hills of Meghalaya, meanwhile, the Sixth Schedule has added another layer to the administrative hierarchy: the ADCs, which are responsible for appointing, supporting, and adjudicating between traditional institutions. There are now three separate institutions jostling for power on the ground—appointed officials representing the state government, elected members of the relevant ADC, and the traditional institutions of the tribal polity— and the relationships between these authorities form the meat of local politics. This tripartite tussle is particularly obvious in conflicts about the allocation and alienation of land.

The New Shillong Township

The alarming concentration of land in Meghalaya is perhaps the most pressing concern confronting the overwhelmingly rural state. The sociologist AK Nongkynrih argues that the underlying causes for this accelerating trend are fourfold: (i) intensifying stratification in tribal society (ii) land acquisition by the state for developmental purposes (iii) the transfer of land to extractive industry (iv) encroachment of land by non-tribals. All four causes compound one another, a process facilitated by the byzantine administrative framework. This was perhaps most evident in the many conflicts that arose during the development of New Shillong Township.

New Shillong has been in the works for three decades. The second Shillong Masterplan (1991-2011) envisioned the proposed expansion as a way to reduce urban congestion. The first phase of acquisitions, in the early 90s, did not raise much concern. The second phase began ten years later, and several irregularities slowly emerged through RTI petitions. One such petition revealed, for instance, that less than a fifth of the land acquired had been allocated to people who qualified as “tribal” under the Meghalaya Land Transfer Act, which stipulates that land in the state can only be sold to tribals. The rest was distributed to government agencies and “non-tribal” individuals, most of whom work for the state government.

First you privatise the commons, then develop real estate, then sell it back to the government / New Shillong Township

One such beneficiary was the Civil Services Officers Housing Co-operative Society, and a follow-up RTI petition revealed that the society had been allotted 45 acres in New Shillong for the throwaway price of one rupee per square foot. This wide disparity between intent (urban decongestion) and consequence (a subsidized gated community for bureaucrats) eventually made its way to the High Court in a PIL filed in 2012, two years after the Adarsh Housing Society scam in Mumbai made national headlines. The petitioner argued that the land was illegally allocated to the society (because most of its members were non-tribals) and was subsequently sold at a huge loss to the state exchequer. State filings in the case suggest that the loss incurred was perhaps not that bad: the land that had been sold for one rupee had been acquired for three rupees, further demonstrating that the true victims of the transaction were its original inhabitants, who had long since been evicted. The government eventually carried the day with the argument that the Land Transfer Act only required land transfers to non-tribals to be sanctioned by a “competent authority”— which is to say, itself— and that they were in the public interest.

A number of other discrepancies have made their way into public debate about New Shillong over the last decade. One of the bigger scandals, also arising out of RTI petitions, was about the allegation that forged documents had been involved in the original sale of the land to the government. While the title dispute originated between local residents and two individuals based out of Shillong, it eventually spilled over into a broader debate about the division of jurisdiction between the dorbar shnong (which opposed the sale) and the District Commissioner (whose office had registered the fraudulent title deed and then acquired the land). The KHADC, meanwhile, appears to have been left out of the official deliberations entirely. The forgery case remains under adjudication, but the allegations point to deeper dilemmas about how easily the legal infrastructure regulating land can be manipulated to suit vested interests. This is partly because certain basic questions remain unresolved. Is New Shillong being built on land acquired under the Land Acquisition Act? If so, how is compensation to be determined, and who is eligible? Is it, as the state government has argued, simply that private land has been sold to the government and is now being leased from them? Is the government enclosing common land in the process, or was it already private? Who is, then, the ultimate authority in ascertaining the ownership of a specific tract of land? How transparent are the processes through which such determinations are made?

The Trouble with Translation

At the heart of regulatory confusions in Meghalaya lies a fundamental conundrum about recognition and reconciliation: how can customary norms to be articulated in legal terms that are legible to the contemporary state? Figuring that out is the responsibility, and arguably the purpose, of the three ADCs, but the burden of this translation is enormous. Consider, as an example, another tangle thrown up by the saga of New Shillong: the case of Shnong Tynring. Customary law in the Khasi hills, as elsewhere in Meghalaya, is filtered through territorial groupings. Several dongs (localities) make up a shnong (village). A group of shnongs is a raid—common land is referred to as Ri Raid— and several raids comprise a hima (kingdom). Each territorial unit roughly corresponds to an administrative level in the traditional system of governance. Yet these terms can only be loosely translated between the very different lexicons employed by the state and the tribe. When does a dong become a shnong? How are new shnongs recognized? Who settles territorial disputes between shnongs? Can a shnong sell land without the consent of the dongs that compose it?

In the wake of the New Shillong acquisitions, seven dongs within Tynring— a large shnong located close to the urban development that manages the land around it— filed an RTI petition with the KHADC seeking clarity on such questions. The KHADC referred the matter to Hima Khyrim, under whose jurisdiction Tynring falls. Predictably enough, officials in the Hima deflected the questions, arguing that such traditional institutions were not covered by the provisions of the RTI Act. The dongs appealed to the Meghalaya Information Commission, which ruled that both ADCs and traditional institutions were public authorities under the RTI Act. It also held that it was the responsibility of the ADCs to respond to petitions regarding their deliberations and decisions.

Bah Smek Marboh of Hynnriewshnong/Tynring, Original RTI applicant trying to establish rules and laws about establishment of villages under the traditional system

The Information Commission’s decision opened the door to everyone trying to understand and document interactions between the ADCs and the traditional institutions over which they have oversight. For the inhabitants of the seven villages, however, it was only one step in a long and seemingly futile legal odyssey. They had filed the RTI petition hoping to use the information they gleaned to argue that the state government ought to compensate them directly for any land acquired from their territory. They wanted to be recognized as shnongs proper, rather than dongs under the control of Tynring’s sordar (chief), whom they insisted was corrupt and indifferent to his people. Their quest took them to nearly every court in the state, right up to the division bench of the High Court. All of them denied the villagers relief. Four years later, relations between the sordar of Tynring and the KHADC had apparently soured, for he was in the High Court again, arguing that he had been unfairly dismissed from his post. The court ordered fresh elections, which he won, and the conflict drags on. The sordar continues to try sell more land; his people continue to resist him. The rule of law, if you live in Tynring, is a ceaseless whirligig; constantly swirling and yet never moving.

Autonomous District Councils are frequently blamed for failures of governance in Meghalaya. Their inefficiency, however, is a feature of the system rather than an anomaly. In seeking to preserve traditional institutions by transforming them, the Sixth Schedule only further entrenched the colonial paradox it inherited. The ADCs it invented—simultaneously accountable to everybody and responsible for nobody— were practically designed for endemic corruption and abuse. Sometimes, as in the case that opened this essay, the legal system works. The RTI infrastructure helps citizens uncover specific illegalities and then the judiciary provides a remedy. More often it does not, because structural inequity cannot be meaningfully addressed in this piecemeal fashion. The eternal liminality of the ADCs also indicates just how indebted our institutional imagination remains to condescending colonial assumptions about tribal peoples and the need to “gently assimilate” them into modernity. The Constituent Assembly’s recognition of indigenous sovereignty was a landmark moment in world history, but it was only half the task. It falls to us now to build institutions that can live up to that sweeping democratic vision.

 

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Deepika Chaturvedi Written by:

Deepika Chaturvedi is an independent researcher

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