Samata Judgement and the Aftermath

Samata Judgement and the Aftermath 

A.     The Judgement

Samata, an NGO working in the scheduled tribal area of Andhra Pradesh, filed a case against the state government of Andhra Pradesh.

This case was against the Government of A.P. for leasing out tribal lands to private mining companies in the Scheduled areas.

The case (SLP) filed in the Supreme Court of India led to a historic judgement in July 1997 by a three judge-bench.

The Judgement declared that the Government is also a "Person" and that:

All lands leased to private mining companies in the scheduled areas are null and void.

Some features of the judgement are:

94. By the Constitution [73rd Amendment] Act, 1992 ....

every Gram Sabha shall be competent to safeguard and preserve...community resources". .....

clause (m) (iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a Scheduled Tribe ...

110. Minerals to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State.

112. in the absence of total prohibition, the court laid down certain duties and obligations to the lessee, as a part of the project expenditure.

114. At least 20% of the profits as permanent fund for development needs apart for m reforestation and maintenance of ecology.

115. Transfer of land in Scheduled Area by way of lease to non-tribals, corporation aggregate, etc stands prohibited.

116. renewal of lease is fresh grant of lease and therefore, any transfer stands prohibited.

117. Transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm etc is unconstitutional, void and inoperative. State instrumentality's like APMDC stands excluded from prohibition.

129. In the absence of total prohibition in some states with scheduled Areas, Committee of Secretaries and State Cabinet Sub committees should be constituted and decision taken thereafter.

131. Conference of all Chief Ministers, Ministers holding the Ministry concerned and Prime minister, and central Ministers concerned should take a policy decision for a consistent scheme throughout the country in respect of tribal lands.

B. Events after the Judgement

After the Historic Samata Judgement upholding the Rights of the Tribals in the Scheduled areas, the State Government of A.P. and the central Government made the following moves:

March 6th 2000

Court Order

The Supreme Court dismissed the petitions of State and Central Governments for modification of the Samata order.

May 2000

The Andhra Pradesh government moved the Tribes Advisory Council for amendment to the Land Transfer Regulation Act of 1959

July 10th 2000

Secret Note

The Ministry of Mines drafts and circulates a Secret Note (Ref: 16/48/97-MVI) To the committee of Secretaries proposing an amendment of the V Schedule to overcome the Samata Judgement to facilitate the leasing of land to outsiders in tribal areas.

August 2000

On popular protest and opposition the CM of AP issues  statement indicating the withdrawal of the proposed amendment

September 21st 2000

Express Article

Indian Express carried an article in the edit page exposing secret note of Ministry of Mines titled "displacement not an issue" by Manoj Mitra

September 24th 2000

Another widespread protest against the proposed bauxite mine in Tribal Areas of Visakhapatnam 

September 30th 2000

Action Alert

An Action Alert was put out for Starting a campaign to protect the rights of tribal people under the banner of CPCNR (Campaign for peoples control over natural resources) and the secret note was widely circulated.

December 2000

A national consultation was called for at India Social Institute (ISI) Delhi on Land Acquisition act, V Schedule and Rehabilitation and Resettlement Policy, in which many Political parties also sent their representatives.

Till January 2001

Extensive coverage of this issue in the national & regional Media and many people have written to to the concerned minister including the PM and the President. 

January 26th 2001

President’s Speech

The President in his Republic Day speech issued a veiled warning against plotting to amend the V Schedule of the Constitution.

February 2001

The BALCO divestment process was in progress and raised a controversy in the V Schedule and Samata Judgement.

March 15th 2001

The controversy on the tribal land being leased to private companies dogged the Central Government and finally on March 15 the PM to a question by Arjun Singh replied in the Rajya Sabha that the Government has no intention of amending the V Schedule to overcome the Samata Judgement.

April 2001

The Central Government moves the SC to post all cases related to BALCO to its jurisdiction and the SC issues orders. The much awaited opportunity to review the Samata judgement is opened again this time in the court of law..

May 1st 2001

Draft Approach Paper: Tenth Five Year Plan (2002 - 2007) speaks of the Samata Judgement as a hurdle to private coal mining and suggests "other amendments" to overcome the hurdle.

May 11th 2001

Mr. Arun Shourie, Minister for dis-investment issues a statement that they want to review the Samata Judgement. Hindu Business line, May 11 2001. New Delhi Bureau

And so the efforts continue for depriving Tribal India of its means of survival.

C.     Implications for India 

1. As environment regulations are very strict in countries like USA, UK, Canada and across Europe, MNCs are entering India as we have weak legal safeguards and poor awareness among the public.
2. In India, most of the minerals are in tribal and forest regions where MNCs are pressurising the Governments to amend the Constitution and its acts like the Fifth Schedule, Forest conservation Act, environment Protection Act, Panchayati Raj act and others so that they can easily acquire lands without following any strict regulations and amass huge profits.
3. It is difficult to identify which MNCs are coming into India as they enter by stealth, buyouts, as joint ventures with Indian companies or registered as Indian companies. very little information is available on them and their proposed projects in India as they are trying to get quick approvals by circumventing many of the laws or getting sanctions without completely fulfiling all the norms like submitting EIA (Environment Impact Assessments), EMP (Environment Management Plans), disaster management plans, forest clearances etc. They are pushing the Government to do away with public hearings and other clauses.
4. Importantly, they are pressurising the government to remove or amend the Fifth Schedule of the Constitution that protects the Tribals of the country from being exploited by outsiders. It is very dangerous that they are having the power to meddle with the Indian Constitution.
5. By bringing in investments into the mining sector they are not adding any new technology or infrastructure improvements to the existing public sector companies as the money from the sale of these companies to MMCs is utilised for repayment of outstanding debts by the country. 
6. MNCs are coming into India mainly because it has rich mineral deposits, has large illiterate populations, land and mineral resources are cheap, it is easy to get away with legal violations , very little fear of law-suits in case of disasters like in developed country and has highly corrupt bureaucracy.

D.     India at Crossroads

India has been historically plundered (Central Asian/Greek/European -Invaders/ Colonialists) We have experienced crime and tragedies such as the Utkal Alumina,  Bhopal gas leak and have seen the Multinational companies going scot-free. We have not learned our lessons from the experiences across the world. To our rulers today,  it is a religion and a fanatic mission to parcel off the country to these MNCs. 

Concerted efforts are being made by the Executive to amend and dilute certain provisions in our constitution that weaken people’s rights over the natural resources. The poor in our country know that this trend will lead to their further impoverishment and enrich already rich industries and its stakeholders.

This dangerous move done in the name of globalisation, liberalisation, de-regulation, disinvestments and finally divestment will lead to fatal consequences as far as the lives of poor people are concerned. This has already been borne out by the experience of poor in other developing countries that have followed a similar path.

We are concerned at the total lack of seriousness on the part of the Executive to protect the interests of the poorer sections of the society whose development has otherwise been advertised by them as their principal concern. In reality the fundamental provisions of the constitution as well as the clear directives of the Supreme Court that are favourable to the poor are being violated. The State, instead of being the custodian of the rights of the poor is colluding with other forces to violate their basic human rights.

In fact, the President of India in his address to the nation articulated this concern on the Republic Day of 2001.

India is now at a crossroads.

It can choose to ignore the lessons within the country and across the word and go down the path of disaster.

Or 

We can wake up and awaken the rest of the country and prevent a few individuals selling off India yet again. 

The choice is before us .

The Government has may other options than this dangerous path of bending over backwards to welcome the Multinational invaders. The next section discuses what the Government should rightfully do instead of amending the fifth schedule.

E.      Saner Governance

The Government instead of implementing the orders of the Supreme Court that gives strength and clarity to the Fifth Schedule, has behaved in an un-democratic and unconstitutional manner trying not only to ignore the directions, but also in its continues efforts to reverse the judgement.

In view of future mining activities, the Supreme Court has given certain clear directions on the course of action that could be taken by the Government. It directed that the prime minister should convene a conference of all Chief ministers and other concerned central Ministers, to take a policy decision so as to bring about suitable enactment in the light of the guidelines, so that a consistent scheme throughout the country is implemented.

However if the Constitution is amended today for the sake of mining, there will be many sectors which would justify acquisition of tribal lands for other 'development' objectives. this would only lead to tribals being completely destroyed and dislocated. The Government has not taken any of these serious issues into consideration when it started its sale of the first public sector mining company in the scheduled area.

The opinion of the Government is again blatant in its recommendations through the Attorney General Shri. Soli Sorabjee who had, ironically, appeared on behalf of the tribals in the Samata Case. He clearly stated to the Ministry of mines in the "Secret Document"  that 

"The Fifth Schedule to the Constitution of India can be amended to counter the adverse effect of the Samata Judgement"

The Supreme court can reconsider its previous judgement (Samata case) if another pending case on a similar issue is brought before it. (In this situation the BALCO case which is pending for hearing at the Supreme Court, is being used by the Government to amend the Fifth Schedule)

Rather than tread this path, the government can seriously examine the wisdom of the Supreme Court and choose from a wide range of development options before it including those suggested in the Judgement. 

The mineral wealth of the country will remain in its place for us to work out sensible ways of exploiting them.  It is also  not as if that selling out to private companies is the only magic remedy to the country's economic backwardness. Tribal cooperative mining, Profit-sharing with the traditional inhabitants of the land , democratic and transparent planning and implementation, forcing companies to comply with laws similar to those in the developed countries are but some of the saner governance options before the country. 

F.      Declaration Of The National Convention To Protest Against Attempts To Amend The Fifth Schedule Of The Constitution Of India

The Constitution of India expresses the Nation's committment to ensure social justice and democracy. among the several explicit provisions of the Constitution, the Schedule V provides a protective shield to the adivasis and in consideration as the basic structure of the Indian Constitution. This has been included in the Constitution honouring the centuries old struggles of adivasis to safeguard communities rights over natural resources.

Though the bearing and intent of this provision is still to really begin with full earnestness, after fifty years of the Republic, the only Constitutional reinforcement of the natural rights of the adivasis is being undone. Over 3 crore(30 million) adivasis have been displaced, very large areas of land has been alienated, forest and other natural resources taken away. 

Globalisation and the new market economy is forcing fundamental changes in policies across all natural resources and we are a witness to a spate of policies in agriculture, biodiversity, mining etc.. This new attack of globalisation and liberalisation is very transparent in how it is pro-rich and operates as a powerful tool to suppress our rights. The Central Government is bowing to the pressures of the multinational companies and the global capital exposing its failure to protect the rights of adivasis and other marginalised sections. Women, who will be most adversely affected being the most exploited section of our society. We will stem this oppressive trend. the state has virtually abandoned its role of protection and is using force for advancing global capitalists.

We are already aware and witness to the gross and subtle violations that are taking place all across the nation. we are also following the machinations of the government to directly or by subterfuge alter the core tenets of Schedule V. similarly the new agricultural policy reverses the time honoured policy of land-to-tiller and has substituted it for corporatisation of agriculture which completely ruin the tribal economy.

The enforcement of the general laws in the adivasi areas has virtually eclipsed our natural rights. The Panchayat Act for the adivasi areas (Extension to Tribal Areas) acknowledges the competence of communities to manage the resources. This must be respected. On the contrary the application of laws such as the Land Acquisition Act, Forest Conservation Act, Wildlife Protection Act. etc have been applied indiscriminately against the interest of the tribal. we strongly disapprove this trend.

Today the question before us is not only whether the Schedule V exists but also whether we are in a position to protect and safe guard our lives. Our land and our resources (jal, jungle, jameen) form the very basis of our lives and we have inalienable rights over them.

Expressing concern on the rapid erosion of adivasi rights, the Hon'ble President of India has as in his Republic Day message this year said:

"Let it not be said by future generations that the Indian Republic has been built on the destruction of the Green Earth and the innocent Tribals"

Reiterating his concerns we appeal to him to spare no efforts to stop the attack on the Schedule V.

Historically we have always struggled and resisted any attempts to snatch our rights not only by the mighty British but also our State and Central Governments. We will continue to resist all attempts to amend or alter the Schedule V and will not forego the inalienable natural right existing from time immemorial. We also express special concern for those adivasis who suffer for not being brought under the Schedule V.

We condemn the brutal killings of adivasis in Koel Karo, Kashipur, Devas and in other places. We express solidarity to their struggles for a right to life with dignity. we urge the Government to desist from using the brute force of the State in resolving matters of conflict over resources.

The struggle for command over natural resources is a national issue which must be defended collectively. We collectively declare that we the eighty million adivasis of this country will not refrain from any form of democratic exertion of our rights and will resist any tampering of our Country's Constitution. We also call upon all the democratic forces of our country to understand the spirit and ethos of the struggle of Adivasis for the natural rights over natural resources which can play meaning role on the onslaught of global capital. In our struggle for democracy we shall unite and fight.

9th July 2001

New Delhi

[This Declaration is the outcome of two days deliberations undertaken by leaders and people of Tribal communities. traditional tribal leaders, concerned citizens, social action groups and representatives of peoples organisations.]

साभार :- http://www.mmpindia.org/