By Kitdor H. Blah
Whenever I think of the subject of Tribe and land, I am always reminded of what the sociologist Max Weber said – that when a tribe loses its territorial significance, it assumes the form of a caste. In the olden days, this may mean that the tribe becomes integrated into the hierarchical caste system, or that they become outcasts. In the modern sense, if a tribe loses its territorial significance, it is forced to be integrated into the economic caste system, or become an economic outcast. Once a tribe loses its land, or its land holding becomes insignificant, it is only left to be economically exploited.
One of the ways that the British protected the land rights of tribal people was to regulate money lending business in those tracts which were predominantly inhabited by tribal people. The Bengal Eastern Frontier Regulation Act, 1873, addressed this threat for the North East region by prohibiting any person who is not a native of these districts to acquire any interest in land or the product of the land, beyond the Inner Line. This regulation of money lending for protection of tribal land made its way to both the Fifth and Sixth Schedules of the Constitution, under para 5(2) and para 10, respectively.
The Meghalaya State Investment Promotion & Facilitation Act, 2024 provides for the formation of the Investment Meghalaya Authority, and allows any person, persons or company, which has ownership, control or majority investment in any business enterprise to set up a business unit in Meghalaya, or to expand an existing unit, and all clearances for this purpose will be eased and simplified through a single online window called the United Investment Portal (UIP). Apart from this, the Meghalaya State Investment Promotion & Facilitation (Amendment) Bill, 2025 seeks to allow such business enterprises to acquire land in the state for the purpose of setting up a business unit in the state or expanding an existing one.
The Act provides for the constitution of a Governing Council headed by the Chief Minister, which shall guide the policy of the investment authority, and all orders and decisions of the Governing Council shall be binding upon all Government Departments, Authorities and Agencies, and they must issue the clearances and permissions required by the investment authority within the stipulated time limit. This Governing Council shall also facilitate borrowings and hypothecation of the investment authority’s assets.
The Act provides for the constitution of an Invest Meghalaya Fund, which shall be funded with receipts from fees and charges, as well as grants, loans or advances from the government, and sums received from other sources, as may be decided by the government. This fund shall be used for all purposes under the Act, including remuneration of employees, hiring of consultants, allowances, pension, third party vendors, etc.
The Meghalaya State Investment Promotion & Facilitation Act (read with the Amendment Bill) disregards the territorial significance of the indigenous tribes of Meghalaya. First, it disregards this territorial significance by facilitating land alienation. Second, it disregards the territorial significance of the tribal people by disregarding Tribal land rights. Third, it disregards Court judgments relating to transfer of land in Tribal Areas. Fourth, it even overlooks the Land Acquisition Act, 2013. The only law that the Act pays homage to is the Meghalaya Transfer of Land (Regulation) Act, 1971. This is because the land transfer act provides no legal impediment to the Act.
Facilitation of Land Alienation:
By directly purchasing land to create a land bank, the Investment Authority reduces land ownership by the tribal people and increases land ownership by the government. If the land bank is created by other means, such as by leasing out directly from the tribal people to investors, such leases will extend for decades, and it will be impossible for the next generation to reclaim the land as such leases will be renewed. This is a modern form of land alienation through the practice of money lending. Wilful consent of the tribal owners in such direct purchase or lease is no excuse to facilitate this land alienation. The tribal people do not get any direct benefit from the investment, but their territorial significance is greatly compromised by land alienation.
Is there any safeguard to check the land alienation that this Act will facilitate? In the Samatha vs Andhra Pradesh, 1997, the Supreme Court ruled that the term ‘persons’ in the Andhra Pradesh Scheduled Area Land Transfer Regulation cannot mean the state government as the government cannot be a tribal or non-tribal person. Similarly, the Meghalaya land transfer act does not provide any safeguard to the land alienation caused by the creation of land bank by direct purchase and leasing out of such land to investors, as such land becomes government land once it is purchased.
Compromise of territorial significance of the Tribal people of Meghalaya:
This Act compromises the territorial significance of the indigenous tribes in many ways. First, the territorial significance is compromised by land alienation as pointed above. Second, it is compromised because the acquisition of land by the government is not for the general good, of which the tribal people are stakeholders, such as for development of public infrastructure or environmental conservation. Third, the Investment Authority may resort to borrowings in order to fund its operation, and part of its land bank may be given as collateral against such borrowings. This further isolates the land from any public good, of which the tribal people are stakeholders. Fourth, the Act does not provide for any upliftment of the tribal people. In the Samatha case, the Supreme Court ruled that in the absence of any prohibition against transfer of government land in Scheduled Areas, such transfer must nevertheless be done for the benefit of the tribal people, and moreover, the companies must spend a portion of the income arising out of the business for the upliftment of the tribal people, and this is apart from the royalties and cess that are already in place by law. The Meghalaya Investment Act does not even provide for such social responsibility towards the tribal people of the state as its aim is simply to attract investors, with no consideration for the land rights of the tribal people of the state. Fifth, the Investment Act seems to overlook the provisions of the Land Acquisition Act, 2013 which provides for compensation of 4 times the market rate in rural areas and 2 times the market rate in urban areas, as well as resettlement for acquisition of large areas. The Act only provides for direct purchase of land, with no consideration for the rates of compensation.
Sixth, one of the features in the Samatha case was the question of giving mining leases in Scheduled Area land to companies that are not owned by the tribal people. The Andhra Pradesh Mining Rules does not allow granting of mining lease of Scheduled Area land to non-tribal persons or companies. On the other hand, the Meghalaya Investment Act does not have any provision for investors or enterprises to be majority owned by the tribal people of the state of Meghalaya. Last, but not the least, the Amendment Bill seeks to provide incentives under the new section 8(2)(a), to enterprises that create employment for local people. The investors are not mandated but only incentivized to create employment for local people. Local people are defined as domiciles of Meghalaya, thus providing no incentives even for employment of the indigenous tribal people.
In a nutshell, the Amendment Bill facilitates land alienation. The Act itself overlooks tribal land rights, Court judgment relating to transfer of land in tribal areas, and provisions of the Land Acquisition Act. What then is the point of paying homage to the state land transfer act under the new section 34 in the Amendment Bill? It is irrelevant and immaterial to the threat of land alienation. It is just eyewash, to appease the NGO’s, the District Councils and the public.
Impediments to the Act:
Whilethere is no legal impediment if the government wants to bulldoze the Amendment Bill through, yet there are impediments against its implementation.The Meghalaya land transfer act may still provide an obstacle if the investment Authority aims to create the land bank by leasing out land belonging to tribal persons. Secondly, the DorbarShnongs may vehemently oppose any purchase of land by the Investment Authority. Third, the people and the NGOs might facilitate a protest against the bill.
Autonomous District Councils are the last bulwark against the implementation of the Act:
Section 8(2)(c) of the principal Act provides that all orders and decisions of the Governing Council shall be binding upon all Government departments, authorities and agencies, which shall issue requisite clearances. But the ADC’s are not departments, authorities or agencies of the government. They are autonomous bodies which operate with the chief principle of protecting the rights of the tribal people. Para 10 of the Sixth Schedule also gives the ADC’s legislative power to regulate trading by non-tribals apart from money-lending. The United Khasi-Jaintia Hills District (Trading by Non-Tribals) Regulation, 1954, and the United Khasi-Jaintia Hills District (Trading by Non-Tribals) Rules, 1959, are the last bulwark against the implementation of the Act. Section 3A of the Regulation gives enough rationale and justification to block all licenses for the implementation of the Act.
