AP Bauxite issue: A deep mine of tribal unrest, biz interests, eco concerns

The Federal | Suresh Dharur | Dec 26, 2020

Repeated attempts by successive governments in the past to take up bauxite mining in Visakhapatnam district had triggered anger among tribals. In fact, it has remained a political issue for long

Bauxite mining in Andhra Pradesh has been a touchy political issue for decades because of its far-reaching implications on environment and the livelihood of tribal communities.

The repeated attempts by successive governments in the past to take up bauxite mining in Visakhapatnam district had triggered anger among tribal communities. In fact, the issue was one of the key rallying points for the opposition parties as well.

Soon after taking over the reins of the state in May last year, Chief Minister YS Jagan Mohan Reddy ordered the withdrawal of a Government Order (GO) on bauxite mining and assured the tribals that his government would not take up mining in the district, which is a part of the environmentally fragile Eastern Ghats.

Back-door entry

However, the controversial issue is back in limelight with environmentalists and opposition parties expressing fears that the government was trying to facilitate a ‘back-door entry’ for mining magnets in the region.

The reasons for new apprehensions are not far to seek: The YSR Congress government is preparing the ground for allowing commencement of operations of alumina refinery in the district by Anrak Aluminium Ltd.

The ruling party’s parliamentary wing leader V Vijayasai Reddy publicly stated that the private refinery would be allowed to operate with bauxite ore to be sourced from Odisha and abroad.

This statement has triggered fears that the government was ‘stealthily preparing the ground’ for bauxite mining in the state.

“We will not allow bauxite mining at any cost,” said Ravi Rebbapragada, the executive director of Samata, a local NGO which has been waging a prolonged legal battle against mining in the region.

The Supreme Court had in the past made it clear that either the State, its instrumentalities or the tribal themselves forming into cooperatives have right over forest resources in the scheduled areas.

Though Anrak Aluminium Ltd, a joint venture of Ras-al-Khaimah Investment Authority (RAKIA) and Penna Group, completed the works on the 1.5 million tonne refinery long ago with an investment of Rs 5,000 crore to Rs 6,000 crore, it could not start operations for want of bauxite ore. The refinery is located in Makavarapalem mandal, about 80 km from Visakhapatnam.

In the combined Andhra Pradesh, the then Congress government, headed by Jagan’s father YS Rajasekhar Reddy, had decided in 2005 to allot bauxite mining to AP Mineral Development Corporate and supply the ore to Jindal South West Aluminium Ltd and Anrak Aluminium Ltd, floated by Ras-al-Khaimah Investment Authority (RAKIA) and its Indian partner Penna Group.

However, the MoU was cancelled in 2015 following widespread protests from tribal groups and the opposition parties. This led to the filing of an international arbitration by RAKIA against the Centre and state governments. The government recently formed a committee with senior officials to arrive at an out of court settlement with Anrak.

“There was no provision for arbitration in the agreement. The private operator should be allowed in the mining and refinery areas keeping in view the environmental pollution,” the former union energy secretary and noted environmentalist E A S Sarma said.

“The refinery will cause damage to the environment. Any attempt to start it will face stiff resistance from people,” warned the local CPI (M) secretary K Lokanadham.

Independent probe

Sarma sought an independent investigation by Anti-Corruption Bureau (ACB) and Special Enforcement Bureau (SEB) into the alleged illegal mining of bauxite in East Godavari and Visakhapatnam districts.

“I have been cautioning the government about private individuals and companies extracting bauxite in the guise of laterite. It may be noted bauxite mining is restricted to the public sector and to tribal cooperatives as directed by the Supreme Court in the Samata judgement years ago,” the retired IAS officer said.

In a bid to circumvent this restriction, the private miners, in collusion with the local mining officials, have been producing false analysis certificates to show that the bauxite they are extracting and exporting to alumina refineries is indeed laterite.

As per the Indian Bureau of Mines (IBM) report, any aluminous mineral ore containing more than 30 per cent aluminium is defined as bauxite.

However, the State Mines department has been granting leases for “laterite” mining, thus allowing the miners to go scot-free, Sarma pointed out. He alleged that many mining leases granted in Visakhapatnam and East Godavari actually involved illegal bauxite extraction.

As per the original plan, drawn up in 2005, the state-owned APMDC was to undertake the mining in 1,212 hectares of reserve forest area in Chintapalle and Jerella blocks of Visakhapatnam district.

However, the subsequent governments chose not to go ahead with the proposal due to widespread opposition in the region.

“Minerals like bauxite/alumina are scarce resources. Aluminium is a strategic metal that is used widely in the aviation industry and other manufacturing processes in the west. The price at which Indian miners export alumina is several times lower than the global price, which implies enormous scope for corruption and black money generation,” Sarma said.

No light at the end of tunnel for tourist guides of Borra Caves

The Hindu | B. MADHU GOPALVISAKHAPATNAM | Nov 19, 2020

Borra Caves, located at an elevation of 2,300 feet, draw tourists from different places across the country. They are also a good revenue earner for the AP Tourism Development Corporation (APTDC). Lakhs of tourists visit the caves and the rush peaks during the festival and winter season from October to January every year.

The caves drew about 5 lakh visitors on Sundays during November 2019. The rush fell to 2 lakh during weekends in November, this year in view of the pandemic threat, but it is fast picking up. However, the services of tourist guides, who were recruited by the APTDC on contract basis about 25 years have not been regularised till date.

“We were given training in Hyderabad and 20 of us have been posted at Borra Caves over two decades ago by the APTDC as contract staff. We have to work from 10 a.m. to 5 p.m. and are paid ₹16,000 a month without any additional benefits. Five of our colleagues had died due to various reasons over the years but no compensation was paid to their families by the corporation,” says Somesh Borra, a tourist guide.

“Many of us have completed our degree and PG but have not got promotion. We belong to the ST community but even the rule of reservation is not being implemented,” he says.

“When Ms. Chandana Khan was the Special Chief Secretary of AP Tourism and Culture, she had issued an order directing that tourist guides appointed on contract basis should be paid on par with regular employees. The order was said to have been withdrawn by those who had succeeded her,” says Somesh, who has done his PG from Andhra University.

“Before the APTDC took over the caves, they were under the control of the local tribal communities and guides. After APTDC came, Samata had a discussion with the then Sub Collector, Paderu, in 1992-93, and got proceedings that the 20 tribal guides would be paid 20% from the ticket income. This was continued till 1999 but later stopped,” says Ravi Rebbapragada of Samata, who was instrumental in getting the historic Samata judgement from the Supreme Court that the basic process of recruitment and payment is unconstitutional.

“Since then we have been asking the government to give 20% of the revenue to the Borra Panchayat. Though the panchayat got a grant once or twice but the issue has not been settled,” adds Mr. Ravi.

Tribal Rights Compromised for National Highway in Andhra, Say Locals and Activists

News Click | Ayaskant Das | Nov 07, 2020
Locals and activists allege no public hearing is being conducted for NH 516-E while officials say full transparency is being maintained since the project is partially funded by the World Bank.

New Delhi: A 390-km long national highway project is being developed by the Andhra Pradesh government in the Eastern Ghats, in a predominantly tribal area, allegedly without proper public consultations. The proposed two-lane highway, National Highway (NH) 516-E, partially funded by the World Bank, will link Rajahmundry with Vizianagaram in Andhra Pradesh and affect several tribal-dominated villages alongside its alignment.

The allegations, made by locals and activists, have however been denied by the Union Ministry of Road Transport & Highways (MORTH) who have claimed total transparency in their operations. Though the project is 390 kilometres in length, ministry officials said it needs no Environmental Clearance as per law because none of the individual packages are over 100 kilometres in length, nor more than 60 metres in width.

In October, a group of activists wrote to the collectors of three districts of eastern Andhra Pradesh alleging non-compliance of laws in the execution of the project.

The proposed highway would run through three districts—Vizag, Vizianagaram and East Godavari. Two of these districts, Vizag and East Godavari, have regions under their jurisdiction that have been declared as Scheduled Areas by the Union government owing to preponderance of tribal population and their economic backwardness.

LACK OF PUBLIC CONSULTATION
An analysis of Environment Impact Assessment (EIA) reports for two sections of the proposed highway, that is, the Bowadra-Vizianagaram section and the Paderu-Araku section, shows that not only were many villages kept out of public consultations but the number of attendees in the hearings were abysmally low. Reports for these two sections prepared by the Andhra Pradesh Roads & Building Department are dated November and December 2019, respectively. These two sections will be funded by the World Bank.

As per the EIA report of the Paderu-Araku section, which is 49.37 kilometres long, public consultations were conducted in October 2018 only for Gram Sabhas of four of the nine affected villages. Each hearing was attended by 30-50 people. The cumulative population of all nine villages, as per Census 2011, is 16,307. However, the number of people from amongst this population who belong to the Scheduled Tribes category is 12,365, which is a whopping 75.82%.

This Paderu-Araku section of the existing road is in an unusable condition and roughly four per cent of it is double-laned. According to locals, the region through which the road would traverse is moderately rich in wildlife as well. Boars and bears are found in the forested areas of the region apart from isolated instances of sightings of cheetahs and tigers.

The proposed highway in this section will affect local vegetation, forest cover, agricultural crops and human habitations too at certain locations. Most of the land along the project road is adjacent to agricultural area, built up area and forest area, whereas there is nominal barren land.

The EIA reports further state that widening of the existing unusable road to a double-laned highway will require land acquisition that may lead to loss of property and livelihoods apart from loss of standing productive crops and vegetations.

Similarly, as many as 18 villages are located along the proposed highway’s Bowadra-Vizianagaram section, which is 26.94 kilometers long. Yet, public hearings through Gram Sabhas were held in March 2018 in only five of those villages in this section, according to the EIA report. Each hearing was attended by 15-30 persons only. The EIA report does not even mention the names of the people who attended these public hearings as is required under the law.

The entire highway project is being developed in nine packages, out of which 209 kilometres will be built with assistance from the World Bank. Officials said construction will soon commence on three packages for which work orders have been awarded.

“There are a number of coffee plantations alongside the proposed highway where farm owners are reluctant to part with their productive land. Even if land is acquired, a good rate of compensation is expected as per the new land acquisition act. Several bridges and culverts are part of the proposed highway project,” said Venkat Rao, a resident of Araku, expressing his concerns over the project’s impact.

“Also, where are the environmental safeguards for quarrying stones and boulders that will be used to build these bridges and culverts?” Rao asked.

Quarrying of minor minerals will also be required for black-topping of the entire stretch of the highway.

ALLEGED VIOLATION OF TRIBAL RIGHTS
Activists say that public consultations are a must in all project-affected villages as per a judgement of the Andhra Pradesh High Court. In 2013, the high court had reversed a notification of the Union Ministry of Environment and Forests (MoEF), as it was called back then, ruling out the need for public consultants in case of linear infrastructure projects like roads, bridges, canals and so on.

“Notwithstanding the MoEF guidelines dated 5th February, 2013, Authorities responsible for implementation of PESA Act [Panchayats (Extension to Scheduled Areas) Act] in the state and central government are required to ensure consultation with the gram sabha or the panchayats at appropriate level as required under the PESA act even in case of projects like construction of roads, canals, laying of pipelines, optical fibers, transmission lines etc. in scheduled areas where linear diversion of use of forest land in several villages is involved,” stated the high court order.

The proposed highway would run in close proximity to coffee plantations and deciduous forests of Araku and Lambasingi. The project is also close to Borra Caves in the Ananthagiri Hills which are considered the deepest caves in the country. Locals from tribal-dominated villages have been asking for proper public consultations while activists have demanded the state government to ensure compliance with rules.

“Not conducting Gram Sabhas in all project-affected villages is a direct violation of the PESA Act. In the Samata judgement, the Supreme Court had held that transfer of land to non-tribal people in Scheduled Areas is illegal,” said Rebbapragada Ravi of mines, minerals & PEOPLE (mmP), a network of individuals and organisations affected by mining. “There is a need for black topping of the entire stretch of the highway. The quarry leases for minerals that would be needed for black topping have not been considered in the EIA report. These leases cannot be given to non-tribal people either as per law,” he added.

The Supreme Court had, in the landmark Samata judgement in 1997, held that in accordance with the PESA Act, “tribal autonomy of management of their resources including the prevention of the alienation of the land in the Scheduled Areas and taking of appropriate action in that behalf for restoration of the same to the tribals, is entrusted to the Gram Panchayats.”

When contacted, officials of the Andhra Pradesh Roads & Building Department told Newsclick that the project is being directly implemented by the central government through the MORTH and that the Department’s role is limited to land acquisition matters only. A senior official of the MORTH in Andhra Pradesh said the land acquisition procedure is underway – notification has been issued in some of the villages while many other villages are awaiting notification.

“Land acquisition is not complete in any case and compensations are yet to be awarded. The allegations that public consultations are not being conducted are totally baseless. Gram Sabhas are being conducted in each village. Since this is a project funded by the World Bank, total transparency and accountability are being maintained. These are Scheduled Areas and consent of local villagers for land acquisition is a must for the World Bank before it renders assistance for the project,” SK Singh, Regional Officer of MORTH in Vijayawada told NewsClick.

Coal blocks auction in tribal areas: Modi govt jettisoning Fifth Schedule

The Federal | BS Nagraj | July 01, 2020
The government has set in motion a process to sell off 41 coal blocks across five states for private commercial mining through auctions

The Narendra Modi government’s cavalier approach to issues concerning the environment is well known. Equally subversive is its naked attempt to disregard a Constitutional provision that enjoins the state to safeguard the rights of tribal populations over land and resources in areas falling under the Fifth Schedule.

The government has set in motion a process to sell off 41 coal blocks across five states for private commercial mining through auctions. The promised moolah that the government expects to rake in at the end of the auction is an estimated ₹33,000 crore. If and when the money flows into the government’s coffers at the end of five years, it would have effectively defanged the Fifth Schedule of the Constitution.

The Fifth Schedule is, as the late Chief Justice of India M Hidayutallah termed it, “A Constitution within the Constitution, or miniature Constitution, for certain scheduled areas of India.” Fifth Schedule areas are those where tribals constitute over 50 per cent of the population and enjoy special rights under The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA), and Forest Rights Act, 2006.

PESA requires that the gram sabha and the Tribal Advisory Council be consulted before any project is undertaken in the Fifth Schedule areas. In all, 10 states have been designated Fifth Schedule areas with the coal blocks to be auctioned located in five of them – Chhattisgarh, Jharkhand, Maharashtra, Odisha, and Madhya Pradesh.

While such consultation has not taken place, the plan to auction the coal blocks also constitutes a blatant violation of the landmark 1997 Samata judgement of the Supreme Court.

In the Samata versus the Andhra Pradesh government case, the apex court ruled that minerals are to be exploited by tribals (in Fifth Schedule areas) themselves either individually or through cooperative societies with the financial assistance of the state, and that transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm, is unconstitutional, void, and inoperative.

The court, while stating that the government has no right to grant mining leases in these areas where lands belong to tribals, had ruled that mining activity in Fifth Schedule areas can be taken up only by the state and that too if it does not violate the Forest Conservation Act and the Environment Protection Act.

Ravi Rebbapragada, Executive Director of Samata, an NGO working for tribal rights which had filed the case in the Supreme Court says, “The decision taken by the government lacks stakeholder participation. Except for the central government and corporates, the other stakeholders were not consulted. It is also a violation of the Samata judgement.”

Since the Samata verdict of 1997, there have been a few other court judgements on similar lines.

In 2013, in the Orissa Mining Corporation Ltd versus Ministry of Environment & Forest (Niyamgiri Judgement) case, a three-judge bench of the Supreme Court said forest clearance to any mining project could be given only in consultation with and after taking the consent of the gram sabhas.

In the same year, in the Thressiamma Jacob & Others versus Department of Mining, Kerala, a three-judge Supreme Court bench headed by Justice RM Lodha held that ownership of minerals should be vested with the landowners. The court declared that the landowner has right not only over the soil but also the subsoil and minerals underneath the surface of his land.

In 2017, the National Green Tribunal cancelled four environmental clearances granted in December 2008 for four blocks in the Chintapalli Mandal in Visakhapatnam district of Andhra Pradesh for bauxite mining. The tribunal’s order came in response to the petition filed by Samata for cancellation of the environmental public hearing held in 2008 under a “curfew-like situation.”

The coal auction decision has been challenged by the Jharkhand government in the Supreme Court even as it appears that the ground made there is that the state government has not been consulted in the matter, rather than that the decision is violative of the Samata judgement.

“Commercial mining is a major policy change and it has to be taken in consultation with states. Unless states come on board, this won’t succeed,” Jharkhand Chief Minister Hemant Soren has been quoted in media reports as saying.

Sarpanches of nine panchayats in the densely forested area of Hasdeo Arand in Chhattisgarh have also written to the prime minister opposing the auction of the coal blocks. In fact, many of these blocks lie in the ecologically sensitive ‘no-go’ areas for mining, as observed by Congress leader Jairam Ramesh in a letter to Environment Minister Prakash Javadekar.

It will be interesting to see if and how the courts will view the current challenge to the coal auction decision. A publication Land and Governance under the Fifth Schedule – An Overview of the Law brought out by the Ministry of Tribal Affairs brought out with the support of the UNDP, notes, “Unfortunately, this (Samata) landmark judgment has not been able to achieve its full potential, and has been the subject matter of considerable debate and semantics.”

Referring to a “telling” Supreme Court ruling in the Balco Employees Union case, the ministry observes that a narrow interpretation of the Samata judgement is “clearly rooted in the alignment of the State with mining interests, rather than on any honest interpretation of the law it lays down.”

“Numerous decisions of the Special Forest Bench of the Supreme Court have permitted extensive industrialisation and mining in forest lands which are the traditional homelands of Scheduled Tribes, without consideration of the Constitutional framework,” it adds.

Why India Needs Scheduled Tribes to Educate its Future Judges

The Wire | Nandini Sundar |April 28, 2020

The rights of adivasis in the Indian constitution are not an act of benevolence to “mainstream and uplift them” but a recognition that the “mainstream” of Indian society has many streams that flow into it, each of them equally valid.

The recent five-judge bench Supreme Court judgment in Chebrolu Leela Prasad Rao and Ors v State of AP and Ors, shows us once again how little the 5th Schedule of the Indian constitution which is meant to protect adivasi rights is understood.

The reasoning in the judgment – which struck down an Andhra Pradesh government order from 2000 providing 100% reservation for Scheduled Tribe teachers in Scheduled Areas of the state – moves perilously close to dismantling the entire edifice of the 5th Schedule.

If 100% reservation for teaching jobs is not permissible, the next step will be for someone to argue against the ban on alienation of tribal land, or overturn the Samata judgment prohibiting mining leases being given to non-tribals in 5th Schedule Areas in undivided Andhra Pradesh. After all, both these ‘discriminate’ against non-tribals. As non-adivasis from other districts flood scheduled areas leading to clear demographic change, the clamour to do away with the protective provisions of the 5th Schedule is only getting louder.

The Andhra Pradesh G.O. of 2000 was aimed at promoting education in tribal areas and addressing the problem of rampant teacher absenteeism. As anyone even slightly acquainted with the problems of tribal areas knows, non-tribal teachers are often reluctant to travel to or live in remote adivasi hamlets. Another big problem is language. Many non-tribals, including lower government officials, have lived for years in tribal areas without feeling the need to learn tribal languages. At the primary level, mutual incomprehension between non-tribal teachers and tribal students hampers the basic education of children.

The judges tell us that “It is an obnoxious idea that tribals only should teach the tribals” (para 133), but for far too long, the really obnoxious idea that has pervaded the educational system and is reflected in judgments like this one is that only non-tribals should teach tribals, to “uplift and mainstream” them because “their language and their primitive way of life makes them unfit to put up with the mainstream and to be governed by the ordinary laws” (para 107).

A standard view is that expressed by Justice S.B. Sinha in his (minority) judgment of the Andhra high court on the same issue in 2001, where non-tribal teachers are axiomatically assumed to be more efficient and meritorious (para 86); and “(f)or upliftment of the educationally backward people, it is necessary to impart education through teachers who are more informed and more meritorious regardless of their caste”(para 126).

For the Supreme Court to say, “They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances” (para 107 of Chebrolu) betrays a mentality that thinks of Scheduled Tribes precisely in those terms rather than as people with the right to define their own educational future. For far too long, education in India has been seen by the establishment as a ‘civilising’ mission designed to make adivasis and dalits into mental clones of the upper castes, even if they continue in their subordinate jobs. Merit is defined merely as efficiency in achieving this goal, rather than in terms of success in tapping indigenous ecological knowledge, preserving adivasi languages and culture and giving confidence to adivasi students by acting as role models. Even though many adivasi teachers have also internalised this idea of non-tribal superiority, having hundred per cent adivasi teachers in Scheduled areas is a small step towards reversing this condescension.

The idea behind the order goes back to the educational experiments pursued by anthropologists and advisors to the Nizam’s government, Christoph Von Furer-Haimendorf and W.G. Grigson, and the efforts by concerned administrators like B.D. Sharma, S.R. Sankaran, B.N. Yugandhar and E.A.S. Sarma to provide a governmental alternative to the pull of the Naxalites. The legal defence of the government order, however, has fallen to the lot of the anthropologist J.P. Rao, along with adivasi teacher and leader Sondhi Veeriah, as well as lawyers like K. Balagopal and Rajeev Dhawan, who fought the case pro bono.

The Supreme Court judgment came in response to an appeal by non-tribals against the majority 2001 high court judgment, which upheld the G.O. of 2000. The Supreme Court verdict essentially replicates the minority view in the high court in favour of non-tribals.

The court framed four questions for itself:

• the first deals with the power of the governor in 5th Schedule areas to make laws, and whether this can override Part III of the constitution or fundamental rights;
• the second, whether 100% reservation is constitutionally permissible;
• the third, whether the GO involves a classification under Article 16 (1) dealing with equal access to state employment, rather than under 16 (4) which provides for reservation;
• the fourth, to do with the reasonableness of the eligibility requirement for reservation, i.e. continuous residence in the area since 1950.

In answering each of the questions, sadly, the court shows itself unmindful of the realities of the country and the history of the constitution it has inherited.

The scope of the governor’s law-making powers

The court’s first argument in striking down the 100% reservation is that this was in effect a new law, since G.O. Ms. No. 3 of 2000 did not amend the Act dealing specifically with reservation, and rules did not count as an act of parliament or state legislature. Under Section 5 (1) of the 5th Schedule, the governor can only apply or decide not to apply laws that have been framed by the parliament or legislature, not make fresh law. On the same point, the majority judgment of the HC in Pulusam Krishna Murthy had held that “application of law is one of the recognised forms of legislation” (para 21) and “it is illogical to hold that the same power does not extend to delegated legislation” (para 37 of judgment by Justice V.V.S. Rao).

Whichever interpretation one chooses, it is important to remember that when the law-making power of the governor under the 5th Schedule was discussed in the constituent assembly’s Sub-Committee on Excluded and Partially Excluded Areas, the concern raised was not whether s/he could or should make fresh law, but that this power should not be used undemocratically, exercised over and above the elected legislature. It is for this reason that a Tribes Advisory Council was created and the governor was required to refer matters to it. (Para 11b of the sub-committee report). In this case, the Tribes Advisory Council had concurred with the 100% rule.

Fundamental rights vs Fifth Schedule?

On the question it posed to itself – of whether the legislative powers of the governor under Section 5 of the 5th Schedule could override fundamental rights – the Supreme Court answered in the negative.

On the face of it, who would quarrel with the proposition that any governor enacting a law or applying a law to Scheduled areas should be mindful of fundamental rights? For instance, one would hardly condone not applying a law on ‘witch’ killings because it was a ‘customary’ practice. But to argue that fundamental rights – and that too when interpreted narrowly as in this judgment as ‘equality’ for non-tribals– should always trump other parts of the constitution is to forget the way the constitution was crafted to allow for diversity-in-unity, whether Article 370 or its 5th and 6th Schedules.

Both fundamental rights and the 5th and 6th Schedules were intrinsic and coeval pre-conditions to the existence of the constituent assembly (CA). Clause 20 of the cabinet mission plan under which the CA functioned provided for an advisory committee to report on “the list of fundamental rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas.” The rights of the Scheduled Tribes in the Indian constitution are not an act of benevolence to “mainstream and uplift them” but a recognition that the “mainstream” of Indian society has many streams that flow into it, each of them equally valid.

In the framework of the constitution, as Justice V.V.S. Rao noted in the majority judgment of the HC (para 16), there are several laws, including freedom of movement in Article 19 (5), whereby “the protection and interest of Scheduled Tribes would take precedence over the fundamental rights of the non-Scheduled Tribes.”

The Supreme Court makes much of the fact that G.O. of 2000 comes into direct conflict with a presidential order under Article 371 D which takes the district as the unit of recruitment and reservation for jobs. This order came into being since people from some districts of undivided Andhra were grabbing jobs everywhere. The court claims that since non-tribals cannot apply outside their district, and they are barred from Scheduled areas, they lose out on employment altogether. This is, unfortunately, an altogether specious conclusion since Scheduled areas form only a small portion of any district. For example, the Scheduled area in Visakapatnam district (the maximum in any district) is 52.9%, in Srikakulam it is 22.09% and in West Godavari (the lowest) it is 13%. Within these scheduled areas, the STs are in a clear majority and therefore deserve to have teachers from their own language communities – in Paderu/Visakapatnam, STs are 88% of the population, in Srikakulam 78% and in West Godavari, 47%. Outside the scheduled areas, only 6% of the posts are reserved for STs, 15 % for SCs, 25% for Backward Classes and 54 % (in effect) for the upper castes.

The minority HC judgment by Justice Sinha – now endorsed by the Supreme Court – also claimed that 100% reservation for ST teachers discriminated against non-ST students in Scheduled areas:

“If a school is manned by the teachers of a particular class, the students belonging to the other classes would be discriminated against.” (para 111).

It is amazing how those who talk so feelingly about the need for a caste blind society and the problem of casteism only see themselves as victims of caste prejudices. They never consider the possibility that adivasi (and dalit) children taught by caste Hindus may be discriminated against.

Article 16 (1) or Article 16 (4)?

The majority bench of the high court in Pulusam was persuaded by the argument made by advocates K. Balagopal and others that the GO providing for 100% reservation was not made under 16 (4) which provides for reservations, but under 16 (1), which promises everyone an equal chance at state employment, and allows for reasonable classification in achieving this. Teaching posts in Scheduled areas, they argued, were a different category of jobs altogether – with different requirements and different objectives.

The SC, however, is categorical that reservation for Scheduled Tribes (as well as SCs and OBCs) is exhausted under 16 (4), and that 16 (1) is only for other classes not covered by 16 (4) though it is not clear who these other classes would be. In any case, we are told, without further explanation, “Assuming, for the sake of argument, it is to be a case of classification under Article 16(1), it would have been discriminatory and grossly arbitrary without rationale and violative of constitutional mandate.”

Original dwellers vs immigrants

Finally, we come to the fourth question which is at the heart of many contentious issues in the country today – how to balance the rights of immigrants and the rights of original dwellers. In the case of Assam, this has led to 19 lakh citizens being disenfranchised in the name of the updated National Register of Citizens; in Kashmir, however, the protection for domiciles embodied in Article 35 A was portrayed as illegitimate.

In the case of Scheduled Tribes, while commenting on the eligibility requirement for jobs, the Supreme Court does not appear to think the problem of demographic swamping by immigrants is an issue at all, nor does it concern itself with the rationale behind Scheduled areas in 1950: “The G.O. in question requires candidate or the parents to reside in the area continuously w.e.f. 26.1.1950 to date. There is no rhyme or reason to require continuous residence for last 50 years or more. It overlooks the rights of various other persons who might have settled decades together in the area in question… The same is fixed in highly unreasonable and arbitrary manner and limits zone of consideration to minuscule where an opportunity for public employment has to be afforded to all concerned with reasonable rights.” (para 147).

Judging by the continued over-representation of Hindu upper castes in gainful employment in this country, one might well say that the same has come to be fixed in a “highly unreasonable and arbitrary manner” and there is no rhyme or reason to the upper caste Hindu conviction that it is only they who have the natural right to rule over, provide justice to, or teach in this country, and that children of all other castes and religions must be grateful for the education and justice they get.

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