For most of India, title to land is what the sub-registrar's record says it is. For the Scheduled Tribes of the Fifth and Sixth Schedule areas, the deeper title is older and unwritten: it lives in the collective memory of the village, in the rhythm of shifting cultivation, in the sacred geography of a hill, and in lineage rules of succession that no Act of Parliament drafted. Tribal land rights and customary law sit at the meeting point of these two title systems. The constitutional scheme, the special tenancy regulations, the Panchayats (Extension to the Scheduled Areas) Act, 1996, and the Forest Rights Act, 2006 do not so much create tribal land rights as recognise and fortify a customary entitlement that predates them. This chapter traces that recognition through the constitutional architecture and the landmark judgments that have shaped it, building on the essentials of a valid custom covered earlier in this Customary Law series.

Custom as the Root of Tribal Title

Tribal land tenure is the clearest surviving example in India of land held not by documentary title but by custom usage immemorial. In most adivasi communities, land was historically a community resource: the clan or village held the territory, individual families enjoyed cultivation rights, and alienation outside the community was either unknown or socially impossible. Concepts familiar to formal property law, absolute ownership, free alienability, individual registered title, were alien to this system. What governed the holding, transmission and use of land was custom, the same source of law whose definition and nature we examined at the start of this series.

This matters because custom, to be enforceable, must satisfy the classic tests, antiquity, continuity, certainty, reasonableness and conformity with public policy, that we set out in the essentials of a valid custom. Tribal land customs typically clear the antiquity and continuity hurdles with ease; they are often older than the records that would be needed to displace them. The friction arises on reasonableness and public policy, especially where a custom excludes women from inheritance or freezes land within a male lineage. The constitutional and statutory framework we examine below is, in large part, the State's attempt to preserve the protective core of tribal land custom while subjecting its discriminatory edges to the discipline of fundamental rights.

The Constitutional Architecture: Fifth and Sixth Schedules

The constitutional foundation of tribal land protection is Article 244, which routes the administration of tribal regions through two separate codes. The Fifth Schedule applies to the Scheduled Areas and Scheduled Tribes of states other than Assam, Meghalaya, Tripura and Mizoram; the Sixth Schedule governs the tribal areas of those four north-eastern states through Autonomous District and Regional Councils. The President, in consultation with the Governor, declares which areas are Scheduled Areas, and may alter their boundaries.

For land rights, the operative engine of the Fifth Schedule is Paragraph 5. It empowers the Governor to direct that any Act of Parliament or the State Legislature shall not apply, or shall apply only with modifications, to a Scheduled Area, and crucially, to make regulations "prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes" and regulating money-lending to them. This is the constitutional source from which every state's tribal land-transfer regulation draws its authority. The Sixth Schedule goes further, vesting District Councils with their own legislative power over the allotment, occupation and use of land, and over the management of unreserved forests, effectively constitutionalising customary land administration in the north-east. The result is a deliberate carve-out from the ordinary law of property: in tribal areas, the Constitution itself contemplates that custom and special regulation, not the Transfer of Property Act, will govern the land.

Tribal Land-Transfer Regulations and the Non-Alienation Principle

Flowing from Paragraph 5 of the Fifth Schedule and from pre-constitutional protective statutes, a dense web of regulations restricts the transfer of tribal land to non-tribals. The Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 bars transfer of land in Scheduled Areas by a tribal to a non-tribal and presumes, until the contrary is shown, that a non-tribal in possession acquired it through such a barred transfer. The Chotanagpur Tenancy Act, 1908 and the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 protect adivasi holdings in the Jharkhand region by rendering most transfers of tribal raiyati land void unless the right to transfer is specifically recorded and the prescribed permission obtained. The animating principle across these statutes is identical: tribal land is presumptively inalienable to outsiders, and the State stands as trustee of that inalienability.

The Supreme Court has consistently upheld this protective machinery against challenges that it violates the right to property and equality. In Lingappa Pochanna Appelwar v. State of Maharashtra (1985 AIR 389; (1985) 1 SCC 479), the Court upheld the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, which annulled past transfers from tribals and restored the land to them. Rejecting the argument that this offended Articles 14, 19(1)(f) and 31, the Court grounded the legislation in the Directive Principle under Article 46 and treated the restoration of alienated tribal land as a legitimate measure of distributive justice. The same protective logic was extended to adverse possession in Amrendra Pratap Singh v. Tej Bahadur Prajapati ((2004) 10 SCC 65), where the Court held that a non-tribal cannot perfect title over tribal land by adverse possession in a Scheduled Area, because the State is the custodian and trustee of the tribal's inalienable interest, and time does not run to defeat what the law has declared non-transferable.

Samatha: The Fifth Schedule Meets Mining Capital

No decision did more to give teeth to the Fifth Schedule than Samatha v. State of Andhra Pradesh (AIR 1997 SC 3297; (1997) 8 SCC 191). The State of Andhra Pradesh had granted mining leases over land in the Scheduled Areas of Visakhapatnam district to non-tribal entities and to government corporations. Samatha, a social-action organisation, challenged the leases as a transfer of tribal land in breach of the 1959 Regulation and the Fifth Schedule.

By a majority, the Supreme Court read the word "person" in the prohibition on transfer to include the State Government itself, so that a mining lease granted by the State to a non-tribal was as much a barred "transfer" as a sale between private parties. The Court held that government land, forest land and tribal land in Scheduled Areas could not be leased out to non-tribals or to private mining companies; mining could be carried on only by the State, a State undertaking, or a cooperative of the tribals themselves, and even then subject to the protective and welfare conditions of the Fifth Schedule. The judgment elevated the Fifth Schedule from an administrative footnote to a substantive shield, holding that the transfer of tribal land for industrial exploitation strikes at the constitutional promise of tribal self-protection. Samatha remains the high-water mark of judicial protection of tribal land against the extractive economy, and the reference point against which every later attempt to dilute Scheduled-Area protections is measured.

PESA, 1996: The Gram Sabha as Custodian of Custom

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) extended Part IX of the Constitution to the Fifth Schedule areas, but with a decisive modification: it placed the customary gram sabha, the assembly of the whole village, at the centre of self-governance, rather than the elected panchayat alone. PESA is in substance a statutory recognition of customary self-rule.

Section 4 of PESA is the heart of the Act. It declares that a state legislature shall not make any law inconsistent with the customary law, social and religious practices, and traditional management practices of community resources. It mandates that every gram sabha be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, and community resources. Crucially for land, Section 4 endows the gram sabha and panchayats at the appropriate level with ownership of minor forest produce, the power to prevent alienation of land in the Scheduled Areas and to restore unlawfully alienated tribal land, the power to manage village markets and money-lending, and the right to be consulted before land is acquired or before any prospecting or mining lease is granted. By making consultation with the gram sabha a statutory precondition for acquisition and mining, PESA translated the protective spirit of Samatha into an ongoing, village-level veto rooted in custom.

The Forest Rights Act, 2006: Undoing a Historical Injustice

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the Forest Rights Act or FRA, was enacted to correct what its own preamble calls the "historical injustice" done to forest-dwelling communities whose customary rights went unrecorded when forests were reserved by the colonial and post-colonial state. The Act does not confer new rights so much as recognise and vest pre-existing customary rights in those who have occupied and depended on forest land.

Section 3 catalogues the rights recognised. Section 3(1)(a) confers the right to hold and live on forest land under individual or common occupation for habitation or self-cultivation. The community rights include nistar (customary common rights), the right of ownership, access, use and disposal of minor forest produce traditionally collected, rights over fish and water bodies, grazing rights, and the traditional resource-access rights of nomadic and pastoralist communities. Section 3(1)(i) is pivotal: it recognises the right to protect, regenerate, conserve or manage any community forest resource which the community has traditionally been protecting for sustainable use. The recognition process is bottom-up: under the Act and its Rules, the gram sabha is the authority that initiates the determination of the nature and extent of individual and community forest rights, with the gram sabha's resolution forming the foundation of the claim. The FRA thus does for the forest what PESA does for the village, it makes the customary community assembly the first arbiter of who holds what.

Niyamgiri: The Gram Sabha and Sacred Geography

The fullest judicial expression of the FRA-PESA synthesis came in Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest ((2013) 6 SCC 476), popularly the Niyamgiri or Vedanta case. The Orissa Mining Corporation, in partnership with Vedanta, sought to mine bauxite in the Niyamgiri hills, which the Dongria Kondh tribe revere as the abode of their deity, Niyam Raja. The question was who could decide whether mining should proceed.

A three-judge Bench held that the gram sabhas of the affected villages, not the executive, must decide whether the proposed mining would affect their religious, cultural and community forest rights under the FRA and the constitutional scheme. The Court reasoned that the religious and cultural rights of the tribal community, including their relationship with a sacred mountain, are part of the bundle of forest rights the FRA recognises, and that the gram sabha has a statutory role in safeguarding these customary and religious rights. It directed the State of Orissa to place the questions before the gram sabhas, which would decide within three months. In the consultations that followed, the village assemblies unanimously rejected the mining proposal. Niyamgiri is doctrinally important on two counts: it folded sacred geography and religious custom into the legally protected content of "forest rights," and it operationalised the principle of free, prior and informed consent through the customary gram sabha, giving the village memory a decisive voice over the registry and the mining lease alike.

Custom and Tribal Succession: The Madhu Kishwar Problem

Tribal land custom does not always protect; sometimes it discriminates. The most contested intersection of custom and land is intestate succession, where many tribal customs vest land exclusively in male heirs and exclude daughters and widows. This is where the reasonableness and public-policy tests of a valid custom collide head-on with Articles 14, 15 and 21.

In Madhu Kishwar v. State of Bihar ((1996) 5 SCC 125), tribal women of the Ho and Oraon communities challenged the customary scheme reflected in Sections 7, 8 and 76 of the Chotanagpur Tenancy Act, 1908, which effectively confined succession to male descendants, as violative of the equality and life guarantees. The majority declined to strike down the provisions, fearing the disruption that abruptly displacing tribal custom would cause. Instead it crafted a protective compromise: the right of male succession was held in "suspended animation," so that female dependants, the widow and unmarried daughter, were given the right to continue holding and living off the land for as long as they depended on it for survival, the male heir's interest revived only thereafter. Justice K. Ramaswamy, in a powerful concurring opinion, would have gone further and read tribal women's right to a livelihood and to property as flowing directly from Articles 14, 15, 21 and the international human-rights framework. Madhu Kishwar illustrates the judicial method when custom and constitution clash over land: rather than abolish the custom, the Court reads down its discriminatory operation to the minimum needed to protect the vulnerable, leaving the larger reform to the legislature.

Shifting Cultivation and Community Tenure

A distinctive feature of tribal land custom that resists formal property categories is shifting (jhum) cultivation, the rotational clearing and fallowing of forest plots held by the clan or village rather than the individual. Under this system, no family owns a fixed plot in the registry sense; the community owns the territory, and cultivation rights rotate. Colonial and post-colonial forest law, built around permanent individual title and reserved forests, treated jhum land as encroachment and the cultivators as trespassers, the very "historical injustice" the FRA was later enacted to undo.

The Forest Rights Act expressly accommodates this customary tenure. By recognising community forest resource rights under Section 3(1)(i) and the right of communities that practise shifting cultivation to hold and cultivate under common occupation, the FRA legitimises a land-use pattern that the formal law had criminalised. In the Sixth Schedule states, the Autonomous District Councils have long administered jhum land under customary law, allotting and regulating it through community institutions rather than registered deeds. The legal recognition of shifting cultivation is a vivid example of the broader theme of this chapter: tribal land rights are recognised by reference to customary practice and community memory, not to the documentary title that governs ordinary property.

Wildlife First and the Eviction Question

The protective edifice of the FRA was severely tested in Wildlife First v. Union of India, a public-interest petition challenging the constitutional validity of the Forest Rights Act and seeking the eviction of those whose forest-rights claims had been rejected. On 13 February 2019, the Supreme Court ordered the states to evict forest dwellers whose claims had been finally rejected, an order whose implementation would have displaced over a million tribal and forest-dwelling families across the country.

The order provoked a national outcry, and on 28 February 2019 the Court stayed its own direction, requiring the states to file affidavits explaining the process by which claims had been rejected, in particular whether rejected claimants had been given a fair hearing and whether due process under the Act and its Rules had been followed. The episode is instructive on two levels. First, it exposes the fragility of customary land rights when their recognition depends on an administrative claims process that is often careless or hostile, a rejected claim, however wrongful, becomes the legal basis for eviction. Second, it reaffirms that recognition under the FRA is not automatic: the customary entitlement is real, but its translation into enforceable title runs through a procedural gauntlet that the courts must police for fairness. The litigation remains pending, and the eviction question is a live one for any aspirant tracking the frontier of tribal land law.

When the State acquires tribal land for public projects, customary rights collide with eminent domain. The general law, now the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, contains heightened protections for Scheduled Areas. It requires, as a rule, the prior consent of the gram sabha for acquisition in the Scheduled Areas and mandates that acquisition be a demonstrated last resort, dovetailing with the consultation requirements of PESA.

This statutory architecture builds directly on the jurisprudence of Samatha and Niyamgiri. Samatha established that the State cannot, even in the public interest, simply transfer Scheduled-Area land to non-tribal industrial users; Niyamgiri established that the gram sabha, as the custodian of customary and religious rights, must be consulted and its decision respected before a project affecting tribal land and sacred space proceeds. Together with the FRA's requirement that community forest rights be settled before forest land is diverted, these decisions have produced a layered "customary veto": acquisition of tribal land now ordinarily requires not merely compensation but the assent of the customary village assembly. The shift is profound, in tribal land law, consent has migrated from the individual registered owner to the community speaking through its customary institutions.

The Limits of Custom: When Tribal Custom Yields

Tribal land custom, however venerable, is not absolute. Like every custom examined in the study of the kinds of custom, it must satisfy the tests of reasonableness and conformity with public policy, and it operates only so far as it has not been abrogated by statute. Three limits recur in the case law.

First, a custom that is discriminatory, particularly one excluding women from inheritance, will be read down or constrained where it offends Articles 14 and 15, as Madhu Kishwar v. State of Bihar demonstrates. Second, where a competent legislature, acting under Paragraph 5 of the Fifth Schedule or its general powers, enacts a regulation displacing or modifying a land custom, the statute prevails: the protective regulations upheld in Lingappa Pochanna override pre-existing customs of free alienation. Third, custom cannot be invoked to defeat the protective purpose of the constitutional scheme, a non-tribal cannot rely on long possession or a customary-looking arrangement to perfect title over tribal land, as Amrendra Pratap Singh confirms. The unifying principle is that custom is a source of tribal land rights, but it is a source that the Constitution both protects and disciplines. The protective customs are fortified by statute and judgment; the discriminatory or self-defeating ones are read down or overridden. This dual movement, fortify and discipline, is the signature of Indian tribal land law and the natural culmination of the role of custom as a source of law traced throughout this series.

Frequently asked questions

What is the constitutional basis for protecting tribal land in India?

The foundation is Article 244, read with the Fifth and Sixth Schedules. The Fifth Schedule applies to Scheduled Areas in most states; Paragraph 5 empowers the Governor to make regulations prohibiting or restricting the transfer of land among or by Scheduled Tribes and regulating money-lending. The Sixth Schedule vests Autonomous District Councils in the north-east with direct legislative power over land and forests, constitutionalising customary land administration.

What did the Supreme Court decide in Samatha v. State of Andhra Pradesh?

In Samatha v. State of Andhra Pradesh (AIR 1997 SC 3297), the Court held that the prohibition on transferring tribal land in Scheduled Areas binds the State Government itself, so a mining lease granted by the State to a non-tribal is a barred transfer. Mining in Scheduled Areas could be carried on only by the State, a State undertaking, or a cooperative of tribals, subject to Fifth Schedule protections.

How does the Forest Rights Act, 2006 recognise customary rights?

The FRA recognises pre-existing customary rights rather than creating new ones. Section 3 vests individual rights to hold and cultivate forest land and community rights over minor forest produce, grazing, water bodies and, under Section 3(1)(i), the community forest resource. The gram sabha initiates the determination of these rights, making the customary village assembly the first authority on who holds what.

What was the significance of the Niyamgiri (Orissa Mining) judgment?

In Orissa Mining Corporation v. Ministry of Environment and Forest ((2013) 6 SCC 476), the Court held that the gram sabhas of the affected villages must decide whether bauxite mining in the Niyamgiri hills would affect their religious, cultural and community forest rights. It folded the Dongria Kondh's worship of the sacred hill into the protected content of forest rights and operationalised free, prior and informed consent. The gram sabhas unanimously rejected the mining.

Can a tribal custom that excludes women from inheriting land be enforced?

Only in a constrained form. In Madhu Kishwar v. State of Bihar ((1996) 5 SCC 125), the Court declined to strike down the male-preference succession scheme of the Chotanagpur Tenancy Act, 1908, but held the male heir's right in "suspended animation," giving widows and unmarried daughters the right to hold and live off the land while dependent on it. A discriminatory land custom is read down where it offends Articles 14, 15 and 21.

Can a non-tribal acquire tribal land by adverse possession?

No. In Amrendra Pratap Singh v. Tej Bahadur Prajapati ((2004) 10 SCC 65), the Supreme Court held that a non-tribal cannot perfect title over a tribal's land in a Scheduled Area through adverse possession. The State is the custodian and trustee of the tribal's inalienable interest, and limitation does not run to defeat a statutorily non-transferable right.