Sạntal: THE EVIDENCE of Conspiracy against Adivasis

SECRET NOTE

SECRET

GOVERNMENT OF INDIA MINISTRY OF MINES

No.16/48/97-M.VI

Dated the 10th July, 2000

Subject: Note for Committee of Secretaries regarding amendment of the Fifth Schedule to the Constitution of India in the light of the Samata Judgement

Preamble

1. Mines and Minerals (Development & Regulation) Act 1957 (hereinafter referred to as the Act) has been framed by the Central government under Entry 54 of the Union List, List-I of the Seventh Schedule to the Constitution. Mineral concessions like prospecting

licenses, mining leases are granted in accordance with the provisions of the Act by the respective State Governments. The State Governments can also make local amendments to the Act. Andhra Pradesh Government had amended the Act on 7th August 1991 by inserting a new Section 11(5) to the Act which provides that no prospecting license or mining lease shall be granted in the Scheduled areas of Andhra Pradesh to any person

who is not a member of the scheduled tribes. (As per the Act this restriction is not applicable to a State or Central Government undertaking). Andhra Pradesh had also notified the Andhra Pradesh Scheduled Area Transfer Regulation, 1959 (hereinafter referred to as the 1959 Regulations) to regulate the transfer of land in the scheduled areas of Andhra Pradesh.

Background:

2. The Supreme Court in a majority decision dated 11.7.97 disposed of Civil Appeal Nos.4601 and 4602/97 filed by Samata, a non-government organisation (NGO, working in the East Godavari district of Andhra Pradesh) [Reported in 1997 (4) SCALE Page 746 - hereinafter referred to as the Samata judgement]. The Union of India was not a party in the Samata case nor was any State Government other than the Government of Andhra Pradesh. However directions have been given to the Union Government as well as other State Governments in the case (para 129, 130, 131 of the Judgement appended as Annexure-1).

3. In the majority decision of the Supreme Court in the Samata case (JJs Ramaswamy and Saghir Ahmed forming the majority and Justice Pattanaik dissenting), it has been held that, a. In the Andhra Pradesh Scheduled Area Transfer Regulation, 1959 'person' includes the State Government; and 'transfer of immovable property' includes 'the prospecting licenses and mining lease'; b. All transfers of land belonging to the State

Government at any time in the past or present in "scheduled area of Andhra Pradesh" to non-tribals, and of mining leases/prospecting licenses whensoever, granted by the State Government in such areas to non-tribals were absolutely void and impermissible and

c. All mining operations in the scheduled areas of Andhra Pradesh by industrialists may be stopped forthwith.

4. The Supreme Court has also directed that similar Acts in other States do not totally prohibit grant of mining leases of the land in the scheduled areas, action would be initiated by the State Government for similar enactments. Implications of the Supreme Court Ruling in the Samata Case:

(a) In the State of Andhra Pradesh

5. The directive of the Supreme Court that all industries, be they natural or juristic persons, to stop forthwith operations within the scheduled areas, except where the lease has been granted to the State undertaking has far reaching consequences. In the light of the judgement, it will be impermissible for the State Government of Andhra Pradesh to transfer land to non-tribals and all lands held by industries in tribal areas will also be illegal. This implies that not only all mineral based industries, which draw their miner ales requirements from mining leases held in tribal areas, such as cement industry and all other industries that are located in the scheduled areas of Andhra Pradesh will have to be shut down.

6. The judgement further implies that large mineral resources including Bauxite and limestone in the State of Andhra Pradesh may never be exploited because mining leases in these areas cannot be given any one other than the tribals. Similarly no major industrial

investment may never take place in the scheduled areas of Andhra Pradesh as the State Government will not be able to transfer even its own land to any one other than tribals for setting up industries. Andhra Pradesh has the second largest deposits of Bauxite in the

country, which lies largely in the scheduled areas. Similarly, large resources of limestone are also available in the scheduled areas. Exploitation of these mineral resources require investment of thousands of crores of rupees and unless major Indian subsidiaries of foreign corporate bodies are allowed to take up mining operations in scheduled areas, these mineral resource may not be exploited for the economic growth of the State.

(b) Implications for other States:

7. Besides Andhra Pradesh, scheduled areas have been notified in the States of Himachal Pradesh, Gujarat, Madhya Pradesh, Bihar, Orissa, Rajasthan and Maharashtra. The Samata Judgement may have similar effect on these States in the years to come.

8. It may be noted that Regulations are framed under the Fifth Schedule to the Constitution, essentially to prevent the exploitation of tribals by non-tribals and alienation of agricultural land of tribals being passed on to non-tribals. It could never have been the

intention of the framers of the Constitution that no economic activity should take place in the scheduled areas or that the tribals should always remain isolated from the main stream of society. Apparently, the interpretation given by the Supreme Court in the Samata Judgement will bring to halt all industrial activities including mining operations in the

scheduled areas in Andhra Pradesh and later in other States which in turn will hamper the economic activities in the scheduled areas in the country.

9. The Samata judgement has raised several substantial questions of law as to the interpretations of the Constitution, which are as follows: -

(i) The Constitutional Provisions (Fifth Schedule and Article 244) empower the Governor of a State to regulate and make regulations for Scheduled areas and for Scheduled Tribes so that what rightfully belongs to the tribals cannot be taken away by any means. The

majority decision in the Samata Case has held that the granting of mining lease to non-tribals in Scheduled Area is violative of the Fifth Schedule. However, it is felt that Fifth Schedule and Article 244 cannot purport to take away the sovereign right of the government to transfer its land in any manner. Justice Pattanaik in his dissenting view has observed that "A combined reading of Article 244 and Fifth Schedule of the Constitution would indicate that there is no constitutional obligation on the Governor to make regulations prohibiting transfer of Government land in favour of a non-tribal within the Scheduled Area".

(ii) The majority decision has directed for all States where similar Acts do not totally prohibit grant of mining leases to non-tribals in Scheduled Area, mining leases in such areas can be granted by the State Government only after formation of Committee etc,

(para 129, 130). Such a direction raises fundamental interpretation issue relating to the Constitution on the applicability of a Central Act Mines and Mineral (Development & Regulation) Act, 1957 - (MMDR Act) which was enacted under the Constitutional Provisions of the Seventh Schedule of the Constitution (Entry 54 - List 1). The MMDR Act, 1957, which extends to the whole of India, empowers the State governments to

grant mining leases and the Fifth Schedule to the Constitution does not fetter the operation of the Parliamentary Law. Further, the Fifth Schedule empowers the Governor to make regulations, which he may not exercise, while the majority judgement at para 50 states that the Fifth Schedule 'enjoins' the Governor to make regulations.

(iii) The decision in the Samata case that the 1959 Regulations are retrospective in intent is a conclusion diametrically opposed to a binding decision (of September 1995) of a Bench of three Judges of the Supreme Court - Dy. Collector vs. S.Venkataramaniah 1995 (6) SCC 545.

(iv) The 1959 Regulations were made by the governor under Paragraph 5(2) of the Fifth Schedule to regulate transfer of land in the Scheduled Areas specifically mentioned in the Regulation. In the making of this Regulation, the Governor obviously did not intend to

specifically affect any of the provisions of the MMDR Act, 1957 in the Scheduled Areas in the State, much less to add to repeal or amend any of its provisions. The MMDR Act 1957, which extended to the whole of India, continued to apply to Scheduled Areas in the

State of Andhra Pradesh in so far as they related to mining leases and prospecting licenses granted by the State Government under the provisions of the MMDR Act,

1957. In making the 1959 Regulations the Governor has not purported to add, to repeal or amend any part of the word "persons" in Clause 3 of the 1959 Regulations could not possibly have meant the State Government (as the authority empowered under the MMDR Act, 1957, to grant mining leases/prospecting licenses) as this would otherwise involve an amendment of the provisions of the MMDR Act, 1957, as applicable to the Scheduled Areas.

It may be noted that Justice J.Pattanaik recorded in the minority Judgement in the Samata Case that "in my considered opinion the expression 'person' used in Section 3(1)(a) of the Regulation should have its natural meaning throughout the Section to mean a 'natural person' and it does not include the State".

10. In addition to the several substantial questions of law as to the interpretation of the Constitution narrated in the preceding paragraph, the moot question is the interpretation of para 5(2) of the Fifth Schedule to the Constitution [Appended as Annexure -

2]. While interpreting para 5(2), the Court cannot frame regulations and provide something more than what is provided in para 5(2). Every Governor has power to frame Regulations depending upon the need and for the peace and good governance of any scheduled area in his State. The majority view in the Samata case has virtually rewritten the Fifth Schedule to the Constitution by making it mandatory for the Governor to make regulation prohibiting the State Government from transferring its lands to non-tribals.

Action taken by Ministry of Mines on the Samata judgement:

11. As stated in the first paragraph, Union of India was not a party to the Samata case. State Government of Andhra Pradesh vide their letter dated 21st October 1997, informed the Ministry of Mines about the Samata judgement and requested that a review petition may be filed by the Union Government looking to the far reaching implications of the Samata judgement. The consequent review petition filed by the Central Government was dismissed by the Supreme Court on 4.2.1999. Thereafter the Central Government on the advice of the then Solicitor General, filed (i) an application for impleadment as a party respondent, (ii) application for modification of the court order dated 11.7.97 and (iii) an application for permission to file a petition for modification. These three

applications were mentioned before a two Member Bench on 3.5.1999, which acceded to the request that a three Member Bench may deal with these applications. Thereafter the matter was taken up for hearing on 4.2.2000 and the applications were dismissed by a

three Member Bench of the Supreme Court.

12. As several substantial questions of law as to the interpretation of the Constitution have been raised by the Samata Judgement, a request was made to the Attorney General through the Legal Affairs Department to refer the matter to a Constitutional bench of Supreme Court under article 145 of the Constitution or in the alternate advice as to whether the Fifth Schedule to the Constitution of India can be amended to counter the adverse effects of the Samata Judgement.

Opinion of the Attorney General:

13. Attorney General has given his opinion on the queries posed to him and has advised that it would be futile to move any further application for review of the Samata Judgement of any part of it. Attorney General has opined that - "The fact of the matter is that the majority judgement of the Supreme Court in the Samata case is the law of

the land and holds the field. It is not feasible to move an application before the Supreme Court in Vacuo for reference to a Constitutional bench of the Supreme Court. Such an application can be made if another matter involving the same question is either pending

before the Supreme court or is brought up before the Supreme Court, the Supreme Court, if it is satisfied that its previous Judgement requires reconsideration, may grant the request for reference to a Constitutional Bench. In view of the previous order of the Supreme Court dated 4.2.1999 by which review petition was dismissed on merits, it may be difficult to persuade the Supreme Court to adopt this course. However, an effort can be made in that direction but only in the form and manner that I have indicated".

14. As regards the alternate suggestion, the Attorney General is of the view that the Fifth Schedule to the Constitution of India can be amended to counter the adverse effect of the Samata judgement. His opinion on this query is as follows: "The other course open to parliament is to effect necessary amendments so as to overcome the said Supreme Court Judgement by removing the legal basis of the said Judgement. Such a course of action is legally permissible. In this connection, attention is invited to the Supreme court judgement in Prithvi Cotton reported in 1970 (1) SCR 338. The Constitutional amendment will have to be in conformity with Article 368 of the Constitution. Such an amendment would not involve any question of the basic structure."

15. The opinion expressed by the Attorney General has been concurred by the Department of Legal Affairs and the Minister for Law and Justice. In the light of the

opinion of the Attorney General, the Fifth Schedule to the Constitution can be amended.

16. It is learnt that recently the Andhra Pradesh Tribal Advisory Council has resolved to request the Andhra Pradesh Government to amend the 1959 Regulations to facilitate mining by private parties in tribal areas and as per newspaper reports, Andhra Pradesh Government is requesting the Centre to amend the 1959 Regulations.

17. Samata judgement will have adverse effect not only on mining sector but on all other non-agricultural activities specially industrial activity and will impact the economic development throughout the country. It may be noted that situation of tribals differ in different States. Individual tribal or group of tribals may not have and normally do not have necessary infrastructure to systematically and scientifically exploit the mineral resources and other resources for the socio-economic development of the State in general and tribals in particular. Mining activity being temporary can never be understood to be

deprivation of all rights of tribals. Minerals vest in the States and surface rights vest in the owner, be it the State or a tribal. A balance has to be struck between exploitation of mineral resources and advances of technology keeping in mind ecology and environment

on one hand and development of the tribals on the other hand. Participation of the tribals in these activities where mineral resources are found will encourage them to think of economic development. Mere provision of land without any other help will not in

any way advance their status, socially or economically. Tribals must be made to slowly get into the national mainstream. Keeping the tribals in isolation perpetually without bringing them in the mainstream, by putting a break to the development of the minerals reserves in tribal areas perhaps may be misplaced. It is essential that tribals are encouraged to take active part in non-agricultural activities including mining and any enactment which restrict this may be harmful to the interest of the tribals.

Conclusion

18. The impasse created by the Samata judgement can perhaps be resolved only through an amendment of the Fifth Schedule to the Constitution as opined by Attorney General. One way could be to add the following explanation after paragraph 5(2) in the

Fifth Schedule: -

"Explanation: The regulations framed under paragraph 5(2) shall not prohibit or restrict the transfer of land by members of the schedule tribe to the Government or allotment by Government of its land to a non-tribal for undertaking any non-agricultural operations including reconnaissance or prospecting or mining operations under the provisions of MMDR Act 1957"

19. It may be noted that as per para 7 of the Fifth Schedule, Parliament may from time to time by law amend the Fifth Schedule and that no such law shall be deemed to be an amendment to the Constitution for the purpose of Article 368 which means that Fifth Schedule can be amended by a simple majority in the two houses of the Parliament.

20. Committee of Secretaries may like to consider the implications of the judgement and trace a view on future course of action to counter its adverse effects.

Joint Secretary to the Government of India

Telephone No : 3384886

Communities Command Over Natural Resources

II.

EXPRESS ARTICLE

Displacement is not the issue

Manoj Mitta

New Indian Express 21 September 2000

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The note is classified as "secret" and that is due not only to the usual bureaucratic caution. It's been kept a secret because it makes a highly sensitive proposal. If acted upon, the note put up by the Union Ministry of Mines on July 10, 2000 may displace millions of tribals around the country from their traditional habitat in hills and forests. This is because it proposes a law to let the wave of economic reforms sweep into the hitherto untouched forest and hilly areas. The proposed law may lead to a variety of developmental activities in those areas with the infusion of private or foreign capital. The biggest activity is likely to be mining operations. And it is also likely to be the biggest cause of displacement. Nature has hoarded all sorts of minerals where the tribals have been living for ages.

The displacement issue has always been controversial and nobody has yet found a solution that satisfies everybody. So the ministry seems to have adopted a pragmatic approach by sidestepping the displacement question altogether while pitching for the pro-liberalisation enactment. The note, in fact, proposes an amendment to the Fifth Schedule of the Constitution to override a Supreme Court judgment on the subject. Upholding the plea of an NGO from Andhra Pradesh, Samatha, the Supreme Court ruled in 1997 that no immovable property in any of the tribal areas coming under the Fifth Schedule could be transferred to any non-tribal. This blanket ban applies even to the land owned by the government.

Currently, the Fifth Schedule has jurisdiction over eight states: Andhra Pradesh, Bihar, Gujarat, Haryana, Madhya Pradesh, Maharashtra, Orissa and Rajasthan. Of the three new states in the pipeline, Jharkhand and Chattisgarh will also come under the Fifth Schedule. (The tribal areas of the Northeast are governed by an altogether different set of provisions enlisted in the Sixth Schedule.) In its verdict in the Samatha case, the Supreme Court envisages a special effort from each state government to help the tribals set up cooperative societies and give them financial and technical support. The court's premise clearly is that if the government provides the necessary inputs, there is no reason why the tribals themselves should not be able to exploit the mineral wealth appropriately in the scheduled areas. Such an arrangement will not only be equitable but also serve the larger economic good.

What objection can the bureaucracy possibly have to the idea of giving the tribals a direct stake in the mining operations? But just as it failed to address the displacement question, the note signed by the joint secretary of the Ministry of Mines, S.P. Gupta, attacks the Supreme Court judgement without even mentioning (let alone examining) the development alternative involving the participation of the tribals as stake holders. This omission is not surprising because in the three years since the Samatha judgment, no government has attempted to test the viability of the court's proposition. So the note meant for the consumption of the Committee of Secretaries simply alleges that the judgment will "bring to halt all industrial activities including mining operations in the scheduled areas."

This alarmist account of the implications of the Supreme Court judgment is the basis on which the Ministry of Mines is now seeking to amend the Fifth Schedule of the Constitution. The proposed amendment is in the form of an "explanation" which clarifies that no regulation could take away the government's power to allot land in scheduled areas to a non-tribal for undertaking any "non-agricultural operations including reconnaissance or prospecting or mining." The legality of this move has apparently been confirmed by Attorney General Soli Sorabjee. According to the note, Sorabjee gave the opinion that the legal basis of the Samatha judgment could be removed by effecting the necessary amendment in the Fifth Schedule.

It may, of course, be legally possible to do so but the question really is how to make the enactment politically palatable. The Committee of Secretaries grappled with this dilemma when it met last month. It is learnt to have fallen back on the same Samatha judgment which offered the option of profit-sharing with the tribals if the mining by a non-tribal is unavoidable in a given situation. The court held that an equitable deal in such a situation would be that the local tribals be given about 20 per cent of the net profits of the mining operation.

The Committee of Secretaries is said to be considering the idea of using this profit-sharing option as a general arrangement to sugarcoat the proposal of amending the Fifth Schedule. When the Committee formulates its recommendation, it will be put before the Cabinet which will finally decide whether it is politically expedient to amend the Fifth Schedule. Whatever the decision, the tribals and the global mining industry will be vitally affected by it in different ways.

What objection can the bureaucracy have to giving tribals a stake in mining operations?

III.

ACTION ALERT

mm&P

Mines Minerals & PEOPLE

1249/A, Road No: 62, Jubilee Hills,

Hyderabad 500033 – A.P. INDIA

Tel/Fax: +91 40 354 2975, 6505974

Email: mm_p@satyam.net.in

Website: mmp.n3.net

4th October 2000

Dear Friends

This is an important note on the Andhra Bauxite Issue and moves to amend the 5th Schedule of the Indian Constitution. I request all of you to treat this urgent and respond by sending emails/ Fax of protest to the AP Govt on opening up Bauxite mining

in the pristine hills of the Eastern Ghats and to the Centre for its secret attempts at repealing protective legislations in the tribal areas.

The Events Leading to this Action Alert

The Eastern Ghats of India are endowed with many natural resources - Forests, Water, Land & Minerals. It also happens to be the home of large populations of tribal peole from time immemorial . It has witnessed many revolts in the last 250 years by the tribal people, mostly on the rights over land, water and forests. The legislative history of laws protecting these people and regions dates back to over 150 years. While framing the Constitution of India two unique Schedules were added namely , the V & VI Schedules, to deal with the tribal areas in order to protect them from undue exploitation of the mainstream societies.

We are here concerned with the V Schedule laws in the state of Andhra Pradesh which are the Land Transfer Regulation Act of 1959, Regulation 1/70 and the Ammendment to Section 11(5) of the Mines & Minerals ( R & D ) act of 1957.

Even while such clear laws exist in AP to prevent alienation of tribal lands , the state government had issued many leases to non tribals ( Juristic or Natural ) to carry on industrial & mining operations since 1952. These have proved detrimental to the tribal people on the whole.

Move by Samata

Samata, which has been working on the tribal land alieanation issues, found two kinds of alieanation - one by the individual non tribal and the other by the State - in contravention of the Schedule V and the laws under it.

Based on the above violations Samata approached the Supreme Court in a Special Leave Application in 1995 and won a historic judgement in favour of the tribal people of the V Scheduled areas in July 1997. This is now popularly called the Samatha Judgement. (which is now the law of the land in the words of the Attorney General of India)

Move by the Supreme Court

Some of the important points laid down by the court are:

a.Government lands, forest lands and tribal lands in Scheduled Areas cannot be leased out to non-tribals or to private companies for mining/industrial operations.

b.Government cannot lease out lands to non-tribals for mining operations as it is in contravention of Schedule V of the Constitution. It therefore declared all mining leases granted by the State Govt. in Schedule V areas and renewals thereof illegal and null and void and aske the State govt to stop all industries from mining operations.

c.Mining activity should be taken up only by the State Mineral Development Corporation or a co-operative of tribals and that too if they are in compliance with the Forest Conservation Act and the Environment Protection Act.

d.the SC also recognised that after the 73rd Amendment and the Panchayat (Extension to Scheduled Areas) Act, under which the Gram Sabhas are competent to preserve and safeguard community resources and reiterated the right of self-governance of adivasis.

e. In cases where similar Acts in other States do not totally prohibit grant of mining leases of the lands in the Scheduled Area, similar Committee of Secretaries and State Cabinet Sub-Committees should be constituted and decision taken thereafter.

f. Before granting leases, it would be obligatory for the state government to obtain concurrence of the Central Government which would, for this purpose, constitute a Sub-Committee consisting of the Prime Minister of India, Union Minister for Welfare, Union Minister for Environment so that the State’s policy would be consistent with the policy of the nation as a whole.

g. It would also be open to the appropriate legislature, preferably after a thorough debate/conference of all the Chief Ministers, Ministers concerned, to take a policy decision so as to bring about a suitable enactment in the light of the guidelines laid down above so that there would emerge a consistent scheme throughout the country, in respect of the tribal lands under which national wealth in the form of minerals, is located.

h.Finally the SC also ruled that at least 20% of the net profits should be set up apart as a permanent fund as part of business activity for establishment and provision of basic facilities in areas of health, education roads and other public amenities.

This order was given with retrospective effect.

Since July 1997 the State of AP and the central government have been trying to appeal to the Suprme court to modify the order to have prospective effect , but after three years in March 2000, the SC dismissed the appeals on the basis of merits. Hampered with this the State & Central governments have been trying desperately to REMOVE the LEGAL BASIS of the Samatha Judgement, so that tribal lands can be leased out for mining and other industrial activity to private and Multi National Corporations which is against the interests of tribals and the nation.

Moves by the Government of A.P

The state Govt of AP has been unwisely and undemocratically trying to amend the AP LTR Act of 1959 & the Amendment to Sec 11(5) of MM(RD) Act of 1957 by forcing the Tribes Advisory Committee (TAC) to pass a resolution for amending the LTR Act so that the tribal areas can be opened up for mining to MNC's.

This has led to wide spread protests from various political parties, NGO's and tribal mass organisations. The Chief Minster of AP, nevertheless, issued a statement before the start of the State Assembly session in August this year that the government has no plans of amending the Tribal Act but is going ahead inviting mining companies, discreetly. The state government has gone ahead leasing out large tracts to APMDC ( A state undertaking ) for bauxite mining in the Agency areas of Vishakhapatnam District.

Subsequently, the AP Government has written to the Ministry of Environment & Forests( MoEF) asking for forest clearance and has also applied for a No Objection Certificate (NOC) from the AP Pollution Control Board !

People's Protests

Recently on 24th, 25th & 26th of September, a team from MoEF regional office at Banglore visited the proposed bauxite areas for the above purpose. We came to know of this visit just on time and organised massive protests and public demonstrations all over the hills of Visakhapatnam tribal area effectively conveying the people's opposition to such a venture of the state government. Around 20 different tribal groups consisting of students' unions, community groups and NGO's have handed over memoranda expressing their objections to the proposed amendments and mining projects in the area.

Since these protests and campaigns, we have been facing threat of harassment from the state government and there is a very close surveillance on us. We do not know to what extent the government would go to repress this opposition but considering its seriousness on bauxite mining, we fear further repression in the immediate future.

Moves of the Central Government

If the state government of A.P is undemocratic, the Centre is not far behind. On the contrary, it has much more draconian plans of amending the Vth Schedule of the Constitution itself! The Central Government, through its Ministry of Mines, has moved a

note which is classified as SECRET on 10th July 2000 ( No.16/48/97-M.VI) to the Committee of Secretaries putting forward a reactionary view to the Samata Judgement. It proposes to amend the Vth Schedule itself to remove the LEGAL BASIS for the Samata Judgement and getting it passed in the parliament by a simple majority!!!

(" Displacement is Not The Issue" Article in The New Indian Express - 21st Sept 2000). The attitude of the Govt is best summed up in its active endorsement of the Attorney General of India that the way forward is to "effect the necessary amendments so as to overcome the said SC judgement by removing the legal basis of the said Judgement"

The note repeatedly expresses with deep concern and anguish how the judgment will adversely affect mining and industrial activity. It does not even once venture to think or consider that the judgement and its provisions can actually be enabling and empower the adivasis in their quest for social and economic justice. The note is totally biased in its treatment of the judgement and makes it out to be against the interests of adivasis while in reality it only reasserts claims that are being made by adivasis round the country.

The MoM note proposes that an explanation be added after para 5(2) of in the V Schedule removeing prohibition and restrictions on the transfer of land by adivasis to non-adivasis for undertaking any non-agricultural operations including prospecting and mining (para 18).

This one sentence at a stroke would completely defeat the very intentions and spirit of the V Schedule of the constitution and open the floodgates for unfettered alienation of adivasis from their land, water and forests. In essence it spells virtual doom for the adivasis, as the last measure of protection will be removed leaving them at the mercy of an uncaring state and ruthless commercial interests.

The proposed amendment flies in the face of constitutional guarantees and safe-guards for the poor and vulnerable of the country and is in complete violation of the spirit of the fundamental rights. It also exposes where and with whom the Govt. stands. Rather than explore ways and means to implement the directions of the court in the Samata judgement in its enabling spirit and provisions especially concerning the involvement of tribal co-operatives and profit sharing, the secret MoM note only exposes how the Union Govt. is actually searching for ways and means to nullify it or get it quashed. The proposed amendment is just a legal cover to divest adivasis of the rights guaranteed by the Consititution in order to pander to mining industries.

We request you to respond to this urgent situation and write immediately to the concerned authorities as a protest against such moves. On the issue of Andhra bauxite, we, from Samata, have already written to the MoEF and various other ministers in the state and central governments. We are giving below a copy of our letter as a reference for you to frame similar letters of protest adding any other information you may have with you.

Letter No 1

Please send this letter to:

1. The Chief Minister of A.P. email: cmdirect@ap.nic.in

Secretariat Buildings, GoAP, Hyderabad

2. The Minister for Forests A.P email: min_frst@ap.gov.in

Secretariat Buildings, GoAP, Hyderabad

3. The Minister for Tribal Welfare A.P email: min_triw@ap.gov.in

Secretariat Buildings, GoAP, Hyderabad

4. The Minister for Forests GOI email: mef@envfor.delhi.nic.in

Paryavaran Bhavan, CGO Complex, New Delhi-110002

5. The Minister for Tribal Welfare GOI email: dirtdb.wel@sb.nic.in

Shastri Bhawan New Delhi –110001

6. The Minister for Social Justice & Empowerment GOI email: gandhim@parlis.nic.in

Shastri Bhavan, New Delhi-110001

7. The Regional CCF, MoEF, GOI, 4th Floor, E&F Wings, Kendriya Sadan, Koramangala, Bangalore-34

Place

Date

To,

Dear Sir

Sub: - Objections to the proposed mining activity in Visakha Agency

& issue of permission for non forest activity against Forest Conservation act , LTR Act of 1959 and EP Act of 1986

1. We have come to know that Government Order of Andhra Pradesh is considering grant of mining leases through Andhra Pradesh Mining Development Corporation to some Foreign investors from Dubai for mining Bauxite at the Following locations in Visakha district.

i. Rakthakonda ML in Anantagiri-II RF, S.Kota Range 113.80 Ha

ii. Galikonda Ml in Sunkarmetta RF, Araku R 97.88 Ha

iii. Chittam Gondi ML in Muliyaguda RF, Araku R 154.16 Ha

Total 365.84 Ha

2. According to the Project Proposals prepared by APMMD Corporation the critical details are :

(a) Peak labor employment --- 260

(b) Expected waste/soil overburden -- 17000 M.T/Annum

3. The areas proposed for mining are located in ecologically fragile ecosystems and the mining activity would destroy large tracts of virgin forest particularly in the Rakthakonda area. The forests vary from small evergreen patches in valleys to moist deciduous to dry deciduous tracts. The mining areas occur in top plateau regions of steep hills. The steep hillslopes are clothed with forests, and destruction of forest while laying approach roads, movement of labor, and to meet daily needs of firewood would lead to drastic changes in micro-climate and erosion of soil and the flooding of streams would follow as a chain reaction.

4. The mining area also falls in the catchment area of Machkund and Sileru rivers and their tributaries and of Gosthani and Sharada rivers. The Rakthakona mining area located at the highest point of 1400 Mts. is the origin for over eight watersheds feeding Sileru. Destruction of forests on these hills will have serious adverse affect on the water flow in these watersheds.

5. The very mining areas in Rakthakonda are the bedding sites of the remnant fields of Indian gaur in these hills. These animals take shelter on these hilltops during day and go into the valleys in daytime for food and water.

6. The mining areas of Galikonda and Chittiam Konda are the home of one of the rarest endangared species of bird Athera Blewitti (Blewitts forest spotted owlet). This was discovered (after its last reported sighting 100 years back). In a recent bird survey by Orissa birds and Biocultural survey party, besides this rare find, the entire area from Sileru to Lammasingi to Paderu and Aruku is an important bird area with relictual, endemic birds (losps) and other 15 species of northern migratory birds.

7. In a recent seminar in Eastern Ghats Conservation (March 1988) considering its ecological importance and fragile nature, the entire area was recommended for establishment of a Biosphere Reserve.

8. The area is also home to several tribal populations belonging to Bhagata, Khond, Konda Reddi, Samantha and other communities. The founding fathers of our nation have provided special provisions for their protection in the Fifth Schedule to the Constitution of India. Their special status has been reiterated in a landmark judgement by the Supreme Court in Samata Versus State of Andhra Pradesh in 1997.

In the majority decision of the Supreme Court in the Samata case it has been held:

a. In the Andhra Pradesh Scheduled Area Transfer Regulation, 1959 ‘person’ includes the State Government; and ‘transfer of immovable property’ includes ‘the prospecting licenses and mining lease;

b. All transfers of land belonging to the State Government at any time in the past or present in “scheduled area of Andhra Pradesh”, to non-tribals, and of mining leases/prospecting licenses whensoever granted by the State Government in such areas to non tribals were absolutely void and impermissible; and

c. All mining operations in the scheduled areas of Andhra Pradesh by industrialists may be stopped forthwith. The highest court of the country has held that tribal rights take precedence over all other considerations.

9. Bauxite is not one of the essential minerals for national progress. We have enough of it for country's needs. The present proposal is to feed foreign investors demand and the states ever increasing demands for funds. Fragile areas may be subjected to mining pressure if such minerals are of importance to national survival or national security. The state cannot ride roughshod over the cultures of primitive tribes and fragile ecosystems to meet its insatiable demands for funds. 10,000 people belonging to tribes will be uprooted because of this project and join the over 50 million refugees from the countries development policies.

10. The best mining practices do have a serious repercussions on the environment and people . Bauxite ore is confined to the plateau tops. Once the stability of these tops is disturbed the rate of erosion accelerates ten fold.

Mining is associated with deforestation and environmental imbalance. In Open cast mines the damage is tenfold. mechanized mining generates more of mine dust affecting the adjoining forest species and crop plants through leaf encrustation, stomatal plugging and solar radiation interruption leading to change in radiation balance; this reduces the chlorophyll content which in turn reduces the total phytomass increasing leaf injuries leading to necrosis or degeneration and death of epidermal cells which are most common. The topsoils are invariable mixed with overburden resulting in burying of rich topsoil.

The rainwater carrying the nutrient deficient overburden spreads over adjoining slopes making them unfit for forest regeneration. Stunted trees, crooked stems weakened vigor of seedlings are the result. Because of constant trampling by labor and movement up vehicles the area becomes hard and the hard soil prevents regeneration.

11. The adverse changes in climate and micro-climate, increased libido, constant dust in the air lead to a general degradation of the entire region to over 5 to 10 km radius. The mining project will no doubt fill the pockets of the investor and the democratic Government, the people’s government at Hyderabad. But the forests the people the rivers, the dams, the animals and the crop lands will be condemned to slow and painful death, flood, disease, poverty and loss of natural resources.

We request you to take all the above points into consideration before any sanction of non forest activity is given in these pristine areas, which only create chaos. We demand that the Government should be transparent to provide all required information to the would be affected people before any decision is taken. We once again urge you to differ the proposed mining activity in the interest of our Nation.

Thanking you

Sincerely

Letter No 2

Please write to the following in protest against the amendment to the Vth Schedule:

1 Shri K.R.Narayanan

The President of India

RASHTRAPATI BHAVAN

NEW DELHI - 110004

2. Shri Atal Behari Vajpai

The Prime Minister of India

PMO, South Block,

Raisina Hill, New Delhi, India-110 011.

(Telephone: 91-11-3012312. Fax: 91-11-3019545 / 91-11-3016857.)

3 Shri Jual Oram

The Minister for Tribal Welfare,

Shastri Bhawan

New Delhi

Phone No. 3387444

email: dirtdb.wel@sb.nic.in

4 Shri Dilip Sing Bhuria

The Chairman

National Comission of SC & ST

5th floor, Lok Nayak Bhavan

Khan Market

New Delhi 110003

5. The Secretary Ministry of Mines GOI,

Ministry of Mines

A-Wing, 3rd Floor

Shastri Bhavan, New Delhi (India) - 110001

email: secy.dom@sb.nic.in

To,

We strongly protest against the secret moves being made by the government to repeal/amend the Vth Schedule of the Indian Constitution as a result of the Samatha Judgement of the Supreme Court nullifying mining leases to industries in the scheduled

areas. (Note of 10th July 2000 (No.6/48/97-M.VI) to the Committee of Secretaries by Ministry of Mines). This is also with reference to the editorial article of The New Indian Express dated 26.09.2000 - Displacement is Not the Issue. We are extremely shocked that the government should even contemplate such a move which is against the democratic, welfare, socialist principles of the Constitution laid down by the founding fathers of the Nation and which would result in total injustice to the tribals of the country.

This would, at one stroke, completely defeat the very intentions and spirit of the V Schedule of the Constitution and open the floodgates for unfettered alienation of adivasis from their land, water and forests. In essence it spells virtual doom for the adivasis, as the last measure of protection will be removed leaving them at the mercy of an uncaring state and ruthless commercial interests. It also exposes where and with whom the government stands and we do not approve of the government being pressurised by mere commercial lobbies. Rather than explore ways and means to implement the directions of the court in the Samata judgement in its enabling spirit and provisions especially concerning the involvement of tribal co-operatives and profit sharing, the secret MoM note only exposes how the Union Government is actually searching for ways and means to nullify it or get it quashed.

Therefore, we demand that such moves should be immediately withdrawn by the government and request that the government protect the interests of the marginalised sections like the tribals and also the mineral wealth of the country for long term posterity.

Thanking You,

Yours Sincerely,

IV.

PRESIDENT’S SPEECH

Excerpt from President of India K.R. Narayanan's Address to the Nation on Republic Day January 25, 2001

"....The awakening of the women and the youth of India is something that gives us hope. But the march of development is having different kinds of impact on different sections of our people. It tends to widen the existing inequalities and create new inequalities. The already marginalised sections, the Scheduled Castes and Scheduled Tribes, are the greatest sufferers in this process. Referring to the tribals, Dr. Ambedkar had said: “Civilizing the aborigines means adopting them as our own, living in their midst and cultivating fellow feeling, in short loving them”. But the developmental path we have adopted is hurting them and threatening their very existence. It is well known how the large river valley projects are uprooting the tribals and causing them untold misery. The mining that is taking place in the forest areas are threatening the livelihood and the survival of many tribes. It is through enlightened developmental policies that we can resolve such dilemmas of development. One pre-condition for the success of developmental projects in our extensive tribal areas is that we should take into confidence the tribals and their representatives, explain the benefits of the projects to them, and consult them in regard to the protection of their livelihood and their unique cultures. When they have to be displaced the resettlement schemes should be discussed with them and implemented with sincerity. This could avoid many critical situations, and we will be able to carry the tribals with us. We have laws that are enlightened and which prohibit the transfer of the tribal lands to non-tribals, private bodies and corporations. The Supreme Court has upheld these provisions through its judgments. We cannot ignore the social commitments enshrined in our Constitution. In eastern India, the exploitation of minerals like bauxite and iron ore are causing destruction of forests and sources of water. While the nation must benefit from the exploitation of these mineral resources, we will have also to take into consideration questions of environmental protection and the rights of tribals. 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 who have been living there for centuries. A great Socialist leader has once said that a great man in a hurry to change the world who knocks down a child commits a crime.

Let it not be said of India that this great Republic in a hurry to develop itself is devastating the green mother earth and uprooting our tribal populations. We can show the world that there is room for everybody to live in this country of tolerance and compassion...."

Communities Command Over Natural Resources

10TH PLAN DRAFT

Excerpt from Draft Approach Paper: Tenth Five Year Plan (2002 - 2007)

Dated 1.5.2001, Planning Commission- Government of India

Chapter 3: Sectoral Policy Issues

"Coal

3.56 Coal is a primary energy source which is plentifully available in the country and isalso the cheapest fuel for power generation. Coal production will fall below the target for the Ninth Plan but this has not presented a problem because thermal power generation capacity has not expanded as targeted. For the Tenth Plan period, however, if electric power is to expand to support 8% growth, a substantial expansion in domestic coal production will be needed. The gestation period for a coal mine is considerably longer than that of power plants and this means that coal production planning should have in mind not only the requirementof the Tenth Plan but also the Eleventh Plan.

3.57 A major policy constraint affecting the coal sector is the fact that it is the only energy sector that is not open to private investment except for captive mining. At a time when the petroleum sector has been opened to private investment, there is no reason why coal mining should not be thrown up also. A proposal for amending the Coal Mines (Nationalisation) Act 1973 has been introduced in Parliament. Early passage of this amendment is a necessary step for attracting private investment in this important area. Opening the sector for private investment will not only improve total supplies, it will also ensure an improvement in quality because of the pressure of competition.

3.58 It should be noted however that amendment of the Coal Mines (Nationalisation) Act may not be sufficient to attract private investment in this important area. It will also be necessary to make other amendments to overcome the hurdle placed in the way of private mining in notified tribal areas by the Samatha Judgement. The procedures for environmental clearance also need to be greatly simplified so that potential private investors face clear and transparent rules."

VI.

HINDU ARTICLE

Excerpt from Draft Approach Paper: Tenth Five Year Plan (2002 - 2007)

Dated 1.5.2001, Planning Commission- Government of India

Chapter 3: Sectoral Policy Issues

"Coal

Sạntal

शनिवार, 3 सितंबर 2011

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