Author: Amita Khanna

Introduction : The changes in climate compel many people to leave their homes and ancestral land due to floods, droughts, rising sea levels, and other weather changes. Migration from ancestral lands where people lived for generations is not a simple move, but it means to disconnect from their culture, history, and identity. This problem becomes more serious for elderly people who are guardian of traditions and histories of family. Older people are overlooked in legal process whenever families abandon and move due to natural calamities. This paper explores how climate change is causing people to leave their ancestral lands and what problems they face due to it. The paper seeks to answer four main questions: What environmental concerns are forcing the people to abandon their ancestral homes? How does migration impact the connection of their culture and emotions? Are laws in place assist climate migrants? What important steps can be taken to help these communities to protect their rights? To reply these questions, the paper adopts doctrinal methodology exploring constitutional provisions, case studies from areas affected by climate change like the Sundarbans and analysis of reports from governments, NGOs, and international organizations. The main argument is that climate migration is not only about searching for a new place to live, but it is also a cultural and human rights concern. While leaving the ancestral lands, people also lose their community connection, traditional knowledge, and sense of belonging. The paper suggests better laws and policies by the governments and international bodies to support the communities and old age people displaced due to climate change.

Climate migration refers to “the movement of a person or groups of persons who, predominantly for reasons of sudden or progressive change in the environment due to climate change, are obliged to leave their habitual place of residence, or choose to do so, either temporarily or permanently, within a State or across an international border”

Climate change is emerging as one of the major reasons why individuals in the world are being compelled to abandon their homes. Natural calamities like storms, floods, droughts, and increasing sea levels are making it difficult for some communities and elderly people to survive in their native and ancestral lands. The rural community, elderly and indigenous people are mostly affected, whose identity, culture, and life are closely linked to their ancestral and native land. Land is not only an immovable property for these people, but it is also a matter of their heritage and sacred bond with nature.

When the changes in climate force them to migrate, they do not just face loss of shelter but suffer more than that. They also disconnected from their community ties, cultural roots, and identity. Another worse situation for these  people including elder people is that they do not have legal proofs and documents to show that they are the owners of the land. Ownership of these communities is based on tradition and transferred through generations within the community, not by any written laws or proof, which is not recognized by current legal systems.

The victims of climate change face many challenges from weak legal protection. There are very few national and international laws that protect the rights related to land of these displaced communities. The legal gap means once they are compelled to leave their ancestral land, they do not have the right to go back or claim any remedy or compensation for their land, which is double injustice for them, as they are harmed by nature first, then the law has ignored them.

This paper emphasizes legal concerns related to ancestral land rights of environmentally induced displacement. It points out how present laws ignore traditional and shared land ownership. It evaluates the cases related to real life and suggests some changes that can be helpful to protect the vulnerable communities. The purpose is to give justice to the communities who have become “homeless by nature.”

2.Objectives:

• To explore how climate change causes people including elderly people to abandon their home.
• To examine how people lose their rights to ancestral land due to climate-related migration.
• To evaluate existing legal protection for migrants for ancestral land.

3.Research Methodology 

The paper adopts doctrinal methodology exploring constitutional provisions, case studies from areas affected by climate change like the Sundarbans and analysis of reports from governments, NGOs, and international organizations. 

4.The Legal and Social Neglect of Elderly Landholders.

When people are compelled to leave their home because of climate change, it is the elderly who are affected the most. The major concern is that most of the elderly people have no proof or legal documents to show the ownership of their land. In many tribal areas and rural communities, land ownership is passed or transferred through generations on the basis of their oral traditions and customs without any written records. But the existing law needs legal documents like registry, land titles or proof of possession and occupation. Without these legal documents, elderly people are not able to protect their land, and they are removed from their ancestral lands.

The government laws and plans related to climate migration do not value the special needs of the elderly. For example, the Forest Rights Act, 2006, gives permission to the forest dwellers to claim rights related to land, but it needs proof of occupation before 13 December 2005, but many elderly people have no proof even in spite of having been living on their ancestral land for their whole lives.

5.Ancestral Land Rights Affected: Land or a native place is not only a place to live, but it is also their history, home, and source of life. These communities used to live on their ancestral land, which was passed down to them from their ancestors. The people of these communities do not have any legal titles, but they have occupied these places for generations, and they have their own customs to protect the land.

Therefore, climate change at present is forcing many people from these communities to abandon their ancestral land. It is quite difficult for these people to grow food, stay safe, and find water due to floods, droughts, rising sea levels, and changing weather. Migrants often lose their land whenever they are compelled to move just because law does not protect and recognize their traditional ownership.

In many nations, the people who have legal titles and documents can prove that land owners. Therefore, on the return of climate migrants and their asking for help, the government may not provide them their ancestral land back or any assistance. This is not fair, as these communities have lived on and protected the land for long without legal documents.  Loss of ancestral land is not only a loss of property, but it is also a loss of close bond and tie to their tradition and community. Moreover, land is pious and sacred as it is a place where their ancestors are buried. Unfortunately, the existing laws do not protect their rights to land. The countries need better laws to respect traditional land ownership.

6.Legislative Measures Securing Ancestral Property:

6.1. Constitution of India:

Article 26: Protects religious denominations and their property. This article gives significant rights to religious groups to own land and take care of their property. It states that each religious sect or any section has the right to:

(a) Set up institutions for spritual and charitable goals.

(b) Control its own subjects in matters of religion;

(c) Possess and control movable and immovable property

(d) Manage legally held property.

The article is significant in protecting the autonomy of spritual communities in India, including their right to safeguard their places of worship and associated properties from state interference, as long as their practices do not violate public order, morality, or health.

6.1.1 Fifth and Sixth Schedules: Special protections for tribal land in Scheduled Areas and tribal regions of Northeast India.

The fifth schedule provides power to the governor to set rules for harmony, which includes prevention of the transfer of land and lending of funds to save the interests of tribal people.  The sixth schedule empowers the Autonomous District Councils (ADCs) to make laws on local matters like forests, land, social customs, and village administration. These councils make sure to protect the culture and rights of tribal people. The purpose of both schedules is to protect the tribal communities from being exploited and encourage their progress while saving their identity.

6.1.2 Articles 371A & 371G: Respect customary law in Nagaland and Mizoram regarding land ownership and transfer. Article 371A says that laws of parliament will not be applied to Nagaland if these laws deal with religion, customs, traditional laws, natural resources, and land of the Naga people if the Nagaland legislative assembly does not accept it. This is very helpful for Naga people to maintain and protect their traditions, culture, and land.

Article 371G provides the same protection to Mizoram state. It says that the central government cannot change customs, traditional laws, religion, and ownership of land if the Mizoram Assembly does not approve it. This rule was made to preserve the lives and privileges of Mizo community after it became state. These two articles ensure that tribal communities of the Northeast can protect their own traditions and customs and are not compelled to obey general laws that are not suitable to their livelihood.

6.2 Constitutional Support Highlighted by Judiciary:

Article 21: It includes the right to livelihood, shelter, and dignity, especially for displaced persons. The Supreme Court has said that the right to life does not include to stay alive, but it also includes the right to live with respect and dignity, which means to have basic needs like shelter, food, and a way to earn a livelihood.

This is very important law for those people who are compelled to abandon their homes due to highways or dam projects and natural calamities. It is the duty of government to give them support in the form of new homes and employment. If it is not like so, then it is the violation of article 21.

In Shantistar Builders v. Narayan Totame (1990), the apex court said that the  shelter right is a part of the right to life; shelter includes a safe and healthy place to live, clean water, and a way to make a livelihood.

6.2.1 Article 300A: Right to Property; Legal Protection for Displaced People.

It says that the government cannot take away anyone’s house or land without following the laws of the land. It cannot take it away without any legal reason. If the government takes away anyone’s property for a public project, then it is the duty of the government to give fair compensation. If the government takes the property of these people without providing them prior notice, proper reason, or compensation, it is a violation of this article.

Now, the right to property is not a fundamental right after the 44th Amendment (1978) to the Constitution, but still it is a legal right under Article 300A. The court ordered that the government cannot treat them unfairly without giving them prior notice or compensation.

6.2.2 Article 243: Gram Sabha’s Role in Protecting Land and Forests

This article is a part of the 73rd Amendment to the Indian Constitution. It gives power and legal status to village councils (Gram Sabha) to take part in local resource decisions and developments in the villages. This power has been made strong by the panchayats in scheduled areas. The Panchayats (Extension to Schedule Areas) Act, 1996 PESA, gives power to Gram Sabha to accept or reject the plans that affect the land, forest, and culture of these communities.

In Orissa Mining Corporation Ltd. Ministry of Environment and Forest, 2013, also called the Niyamgiri case, the Apex court said that the Gram Sabha of Dongria Kondhwa tribal has the power to decide if their sacred hill, Niyamgiri, could be mined for bauxite. The court approved that Gram Sabha has been given this power under Article 243 and PESA to preserve their environment and culture.This judgment ensured that local tribal people have the right to deny the development projects that cause harm to their land and their livelihood.

6.3. Hindu Law

The idea of Hindu law is based on two systems called Mitakshara School and Dayabhaga School. The system of the Mitakshara School is followed in most parts of India, whereas the system of the other school is followed in West Bengal and Assam.

Hindu Succession Act 1956 (amended in 2005), which defines ancestral property passed to four generations of male descent.

2005 Amendment: Equal Rights for Daughters. Before 2005, only sons had the rights to the ancestral property of his father by birth. After 2005, daughters also have equal rights in their father’s property. Daughters now have birthright in ancestral property under Mitakshara law.

Coparcenary Rights Under Mitakshara Law 

Before amendment 2005, only sons were called coparceners, but now daughters are also coparceners who have an equal share in their father’s property by birth. Daughters can also become Karta of the family now.

7. Customary and Tribal Laws:

Some tribes, especially in northeast, central, and eastern India, follow customary laws to have ancestral property, which is called community ownership. . Customary rights are not written and also passed through stories and oral traditions.

The states like Meghalaya, Nagaland, and parts of Chhattisgarh and Jharkhand obtain property through community lines. Some tribes, like Khasi and Garo, adopt material inheritance, whereas others follow a collective ownership system. Article 244 and the 5th and 6th schedules of the constitution recognize these laws as legal. The courts have no objection to accepting the validity of customary laws unless they are against public policy and welfare.

8. Protection from Land Acquisition:

Recognition of Forest Rights Act, 2006 (FRA):

The act gives lawful rights to scheduled tribes and ancestral tribal communities over land in forest with resources who are living in the forests for generations.

The Schedule Tribe and Other Traditional Forest Dwellers Act, 2006, also called the Forest Rights Act (FRA), is a significant law. This act was introduced to solve the problems of injustice with forest-dwelling communities in the past. The law provides these communities both community and individual rights on forest land. But to get the benefit of these rights, they had to show that they had been living on this land before 13 December 2005.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (LARR Act), makes sure that land should be acquired with justice. It makes it mandatory to have a Social Impact Assessment to examine the impacts of projects on the environment and people. This act provides safety for owners of land with resettlement and rehabilitation methods. The Act provides special protections for scheduled tribes, like getting the pre-permission from Gram Sabha to protect their identity related to culture and rights.

9. State-Level Laws on Land and Tenancy, 1908:

Each state has its own laws related to land and tenancy. 

The Chota Nagpur Tenancy Act, 1908, put restrictions on transferring tribal land to non-tribal to protect the tribal localities from being dispossessed.

The Maharashtra Land Revenue Code, 1966, prohibits the sale and lease of tribal and scheduled people without the permission of the government. 

Himachal Pradesh Tenancy and Law Reforms Act, 1972 puts limits on sale of agricultural land  to non- agriculturalists. 

The act doesn’t allow non agriculturalists to purchase agricultural land in Himachal Pradesh. The purpose behind is to protect local culture, land and small peasants.

10. Migration and Ancestral Land: A Judicial Response:

1. The Apex Court said in Samatha V. State of Andhra Pradesh (1997) that it is unconstitutional and void for the government to alienate the land in Scheduled Areas to non-tribal. The court further said that these kinds of actions are a violation of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, as amended in 1970, which restricts the transfer of land by tribal to non-tribal.

2. The Apex Court ordered in Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest that Gram Sabha will decide if mining affects their cultural rights and religious rights. It further acknowledges that ancestral lands are integral to tribal life

3. In Banwasi Seva Ashram v. State of U.P., the forest dwellers were evicted because of a hydroelectric project, but the court ordered rehabilitation before eviction. The court evaluates that displacement must be on humane grounds.

 4. The court in K.K. Kochuni v. State of Punjab confirms the validity of customary hereditary rights and sets that customary title to land as a right to property is secured  as per article 300 A.

5. Ajay Maken v. Union of India

 Delhi High Court directed that the privilege  to shelter includes the right to live livelihood and respect especially for displaced communities and migrants.

6. State of Jharkhand v. Jitendra Ram

 The court accepted traditional customs, although there were no written documents, on the condition that the community agreed to it.

People affected by the disaster are given substitute housing. After the tsunami reconstruction process, most of the victim families received housing facilities, but in many places it was not sufficient and culturally insensitive, as it excluded the involvement of affected victims. The compensation provided to these victim families is not appropriate so that they can build their new homes again, and these people are compelled into indebtedness or live in improper housing. Moreover, many victim disaster families are not included in beneficiary lists and refused settlement. In October 2014, Cyclone Hudhud devastated approximately 7,900 houses in Andhra Pradesh and 50,000 houses in Odisha. Although the Andhra Pradesh government announced help for the people who lost their homes, the surveys by the revenue department reportedly evaluated the destruction merely in notified slums, and most of the victim settlements were not included. The victim families were asked to show proof of identification, like receipts of house tax and Aadhaar cards, to get the compensation. But many of the victims had lost their possessions during this destruction, and they were not able to show any documents as proof, due to which they did not get any benefit or relief. The victim families who live in non-notified slums did not receive any benefit in the form of compensation, and they used to live in temporary huts. Although the state government has promised to provide monetary assistance to make their homes again, even after the year of the cyclone, many disaster-affected families did not get any support, and they are forced to take loans from money lenders at a high interest rate of 36% so that they can make their homes. As per the report of the Association for Rural and Tribal Development, which worked in 15 settlements in Vishakhapatnam, 357 out of 1499 victim families did not get any benefit.

11. Impacts of Climate Change on Migrants:

South Asia is affected due to droughts caused by change in climate which threatened the life of people and forced them to take decision to migrate or adjust to evolving environmental changes.

The significant cause of migration for coastal people is rise in sea levels like floods. It is estimated that the risks of coastal areas will enhance over the 21st century because of the rise in sea levels, affecting people’s daily lives, natural and cultural heritage, ecosystems, infrastructure, and food system.

The changes in climate are the biggest reason for migration on a global scale. The United Nations Human Commission for Refugees reported that approximately 20 million people are compelled to displace to some other places in countries in the whole world due to the events related to weather in a year.

Climate-induced disasters are known as amplifiers of existing challenges affecting multiple areas and over time. The 2021 White House report emphasized the effects of climate change and migration, like undermining the stability of communities at risk, deepening resources shortage and fueling political tension. 

The Munda Community (Bangladesh):

It is estimated that approximately 50 million people may be deprived of their homes due to climate change in Bangladesh by 2050. People who live near the coastal areas are at risk. The Munda community is a group who lived in the world’s largest mangrove forest, which is Sundarbans. People of this area are still poor and ignored because of their minority. These people do not get help like other communities. Raju Bala Munda, a 75-year-old widow who could easily get a widow’s allowance and old-age pension every month, never received them, which shows the unfair treatment and carelessness faced by these people.

The effects of climate change, like drought, food insecurity, and abandonment of ancestral places, can make stressful situations for people. An inadequate economic and political system does not respond to meet these challenges. Drought and some other climate change effects can create insecurity as a reason and result of displacement. 

Climate Induced Migration:  200 Million Migrants by 2050 

Professor Myer has estimated that there could be 200 million climate migrants by 2050 and used significant reports from the Stern Review on the Economics of Climate Change and the IPCC. The globe is predicted to be between 1.8ºC and 4ºC hotter than at present. Vast regions are supposed to be drier due to a rise in droughts from 2% to 10% in 2050. In some areas, there will be a change in rainfall as the water cycle becomes stronger, which means there will be heavy rainfall that can cause floods. The changes in rainfall and stronger water cycle indicate the events of extreme weather like storms, droughts, and floods are supposed to happen often. As per the prediction of experts, the monsoon of South Asia will be stronger, and by 2050, there will be 20% more rain in eastern India and Bangladesh, whereas there could be up to 10% less rain at lower to middle latitudes like Sub-Saharan Africa.

12.Conclusion:

Environmental refugees are compelled to leave the land where they had been living for a long time and for generations. These refugees are farmers, fishermen, herders, and other people for whom land is important for their daily living and survival. The refugees migrate to urban areas where they settle in crowded places, camps, slums, and other inadequate places where they don’t meet and align their needs. Due to these reasons climate change is called a threat. These issues can cause things like political problems, war, and lack of sufficient resources.

Climate change is compelling many rural communities including elderly people and prices to abandon their native lands due to weather and natural calamities. These communities lost their rights over their lands when they were forced to leave their ancestral land, which makes it a serious concern when this land is consumed for any development purpose. There is an urgent need for better policies and laws to protect the ancestral rights even after the people from those ancestral places are displaced. The governments should support them legally by providing them proper rehabilitation and giving back their lands. This way the people of these communities not only get justice but also protect their culture, dignity, and identity. Better laws and policies are needed to protect ancestral land rights, even when people are displaced. Governments should ensure that these communities are not forgotten and are given legal support, proper rehabilitation, and the right to return or claim their traditional lands. Protecting ancestral land rights is not only about justice but also about preserving identity, culture, and dignity in an era of climate change.

13.Suggestions: Fair and strong steps are required to address the legal problems faced by tribal communities and people who lose their ancestral land because of the climate crisis. First and foremost, the government should promote special laws that can recognize people compelled to abandon their homes due to natural calamities caused by climate change. There should be no loss of legal rights over the ancestral land of tribal and rural communities after their migration also. They should either be allowed to go back to their traditional lands after conditions improve or be assisted in getting alternative land of the same value. Moreover, there should be some special courts or fast-track systems to solve these types of disputes of climate-affected people in a speedy way. The laws, such as land laws for scheduled areas and the Forest Rights Act, need to be updated to handle the situations where climate-affected people are displaced due to climate destruction. National and state-level climate policies must explicitly mention the protection of land rights. There should be legal reforms in land and displacement laws to recognize the inherited rights specifically for the elderly. The last and most important suggestion is to promote awareness programs to guide tribal people about their legal rights. These efforts will support the displaced communities to maintain their traditional land, self-respect, and dignity. We must ensure that state and national institutions deal with human rights work effectively to stop violations of housing and land rights and also provide adequate accommodation to climate-affected people, communities, and elderly people. There must be sustainable development goals and targets related to housing and land in policy implementation.