Category: Samata Judgment Related News

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.

Minerals Are Shared Inheritance: How Can We Ensure That Our Children Inherit Their Share?

The Logical India || Contributors Written by : Rahul Basu (Guest Author) || Edited by : Bharat Nayak || April 2nd, 2019

If mining destroys the environment, the minerals are sold and the mineral stock depleted, what is there for future generations? The National Mineral Policy 2019 lays a systematic foundation for the implementation of the Intergenerational Equity Principle. While rooted in the Constitution, some steps need to be taken quickly to reduce uncertainty to the mining industry.

How do we implement intergenerational equity? The Supreme Court has faced this question first in the Bellary iron ore scam, next in the Goa iron ore scam and later in the Odisha iron ore scam. In its judgment in the Odisha mining case (Common Cause vs Union of India & Others, WP(c) 114 of 2014), the Supreme Court of India discussed the Intergenerational Equity Principle in the context of a demand for a future generations fund and a cap on extraction and ordered a review of the National Mineral Policy 2008. Goa Foundation, the petitioner in the Goa mining cases, has advocated a holistic approach to the implementation of the intergenerational equity principle in mining. Read more

2019 polls: Political parties told to fight “undeclared” emergency, protect people

Counterview.net || March 12, 2019

The Jharkhand Janadhikar Mahasabha (JJM), claiming to be a coalition of more than 30 “progressive” organisations, activists and intellectuals working in different parts of Jharkhand for the rights of poor, Adivasis, Dalits, women and minorities, has said that India is passing through a phase of “undeclared emergency”, and the 2019 elections provide an “important opportunity” to reverse this predicament.

Putting forward demands before political parties seeking to “protect” the Constitution, preserve “democratic institutions”, and “protect” secular values, protect natural resources, and come up with policies to halt starvation deaths, lynching incidents, increasing atrocities on Adivasis, Dalits, minorities and women, attacks on freedom of expression and harassment of activists, JJM says, it is ready to discuss these.

Text of the demands:
JJM believes that our state and country are passing through a phase of undeclared emergency. Peoples’ rights and basic tenets of democracy are under attack: amendment in Land Acquisition Act, starvation deaths, lynching incidents, increasing atrocities on Adivasis, Dalits, minorities and women, state-sponsored communalism, attacks on the freedom of expression, harassment of activists, attacks on traditional self-governance systems of Adivasis, to name a few.

In this background, the 2019 Lok Sabha election presents an extremely important opportunity to protect democracy and the Constitution. On the one hand, the ruling dispensation is sparing no effort to weaken democratic institutions and on the other, principal opposition parties also do not have a firm stand on people’s issues.
JJM hopes that 2019 elections will lead to formation of a government that will be committed to ensuring people’s rights, preservation of constitution and democratic institutions and committed to secular and democratic values.

JJM demands from all political parties contesting the 2019 Lok Sabha polls to exhibit explicit commitment on the following people’s issues in their election manifesto. The Jharkhand Janadhikar Mahasabha will discuss the question of political commitment on these issues with the people across the state.

Gram Sabha and Natural Resources
Repeal Land Acquisition Amendment Act 2018 (Jharkhand) and Land Bank policy. No amendment, against the interest of Gram Sabha and people at large, should be made in land laws. Land taken over or identified under these policies should be immediately returned to the owners / Gram Sabha.

All those projects that are being undertaken without consent of Gram Sabha and by violating land laws should be scrapped Icha-Kharkai embankment, Godda Adani Power project, Palamu elephant corridor, Mandal dam are few examples falling in this category.
Samta judgement, Fifth Schedule and PESA should be implemented in letter and spirit. Rules for PESA to be formulated. Forest Rights Act should be enforced fully and all community and individual claims should be accepted.

Civil and Democratic Liberties
Laws that are blatantly and repeatedly used for suppression of freedom of expression and harassment of activists should be immediately repealed. Few examples are Sections124A (sedition) and 499 (criminal defamation) of the Indian Penal Code, Unlawful Activities (Preventions) Act and National Security Act. All fabricated cases filed under these laws / provisions in Jharkhand should be withdrawn.

Immediate release of under trial prisoners languishing in Jharkhand’s jails since a long time. Immediate release of Adivasi under-trials, falsely branded as Naxals (more than 3000 in number).

Repression by administration and security forces in Khunti district by claiming Pathalgarhi to be unconstitutional should be immediately stopped. All cases to be withdrawn, police camps to be winded up, victims to be compensated and perpetrators of repression should be punished.

Domicile and Reservation
Present domicile policy of the state to be repealed. Instead domicile policy to consider only those who are native inhabitants of Jharkhand as local residents to be formulated.
Rules should be framed to ensure maximum participation of local residents in decision-making positions at all levels of all government and private jobs. At least 50% reservation should be ensured for Adivasis, Dalits, and backwards in promotion in government jobs. At least 33% reservation should be ensured for women in all areas. All vacant posts in all departments should be filled within one year of formation of government.

Provision of 10% reservation for financially weak candidates (which is primarily a reservation for savarnas) should be scrapped since this provision is against basic principles of reservation and social justice.

Social Security, Healthcare and Education
Universal basic services and social security for all citizens to be guaranteed for – food, nutrition, universal common education till secondary level, and maternity benefits. Aadhaar-based biometric authentication should be removed from all welfare programmes and public services and Aadhaar should not be made mandatory for any welfare programme and public services.

Universal PDS with at least 7 kg food grain per person, pulses and edible oil. Expansion of Dal-Bhat Kendras with improved services. Social security pension of at least Rs 3000 per month for all elderly, specially abled, single women and members of particularly vulnerable tribal groups. Maternity benefits of at least Rs 6,000 per child to all pregnant women (without conditionalities). Cooked nutritious meal, with six eggs per week, for all children in Anganwadis and midday meals in schools.

Expansion of employment guarantee programme to urban areas and for skilled labour as well. Expansion of the right to work for every rural family under NREGA to 200 days per year with minimum Rs 300 per day wages or minimum wage of the state, whichever is higher.

Expansion of Right to Education to cover equal and free education for all children up to Class 12. Order of merging schools should be recalled by Jharkhand govt and closed schools should be reopened.

All citizens should be provided common, free and quality health services through public health system. Delivery of government health services to be strengthened at all levels, especially for primary and preventive care.

Agriculture
All recommendations of Swaminathan Committee should be implemented and farmers should be paid procurement price of 50% over and above the C2 cost of cultivation. All surplus produce of farmers should be procured on time. One-time comprehensive loan waiver. Control of all forest produce should be vested with Gram Sabha.

Irrigation facilities based on rainwater, rivers, rivulets and existing dams should be ensured. Irrigation management should primarily be done by Gram Sabha and at secondary level by Panchayati Raj institutions.

Cow Protection Act of Jharkhand should be scrapped and restrictions on trade of animals should be withdrawn.

Religion, Culture and Language
Freedom of religion Act, Jharkhand should be scrapped. Adivasi religion, by the name of Sarna or some other name (decided by the Adivasi communities), should be officially recognised.

Adivasi and regional languages of Jharkhand should be used in official communications and these should be made additional medium for education in schools.

Special provisions and schemes for comprehensive development of minorities based on recommendations of the Sachar Committee. Separate budget provisions should be made for minority communities.

Transparent, Accountable Governance and Electoral Reforms
Complete transparency in funding of political parties. Restrictions imposed for lodging complaints by citizens on public representatives and government officials should be withdrawn. Right to recall elected representatives should be made fundamental right.
Sanctity of Right to Information Act should be maintained, without any form of dilution. A decentralised grievance redress mechanism should be established in the state. Online facility for filing Right to Information applications in the state to be established.

Justice K Ramaswamy and Samata judgement

The Hans India || Vanam Jwala Narasimha Rao || 08 March 2019

Justice K Ramaswamy, former Supreme Court Judge who passed away on March 6, was popularly known for one of his landmark Judgements known as Samata Judgement that upheld the rights of tribals on their lands in tribal areas. The State government, in a befitting manner, conducted his funeral with all respects to the departed soul. Samata was a non-governmental organisation that worked for the rights of the tribal people as it found them being alienated from their lands and exploited by non-tribal people and the state, in contravention of the Fifth Schedule of the Constitution and various Central and State government laws.

After a prolonged struggle, it approached courts. The case it filed in the then Andhra Pradesh High Court in 1993 against the then State government was dismissed. Then, Samata filed a Special Leave Petition in the Supreme Court. After a four-year legal battle, it won.

Supreme Court declared null and void the transfer of land in the Scheduled Areas for private mining and upheld the Forest Protection Act of 1980, which prohibits mining in reserved areas. The Supreme Court held that the state should adhere to the laws and principles governing the tribal areas, as any other person.

Justice K. Ramaswamy and Justice Sagir Ahmed said in their judgement that: “The Governor, in his personal responsibility, is empowered to maintain peace and good governance in a Scheduled Area. The Fifth Schedule empowers him to regulate allotment of land, between natural persons, Tribals and non-Tribals, and it imposes total prohibition of the transfer of the land in the Scheduled Area.

Wider interpretation of `regulation’ would include `prohibition’ which should be read into that clause. If so read, and a purposive construction is placed, the word `person’ would include natural persons as well as juristic persons and constitutional Governments.”

The Supreme Court’s judgment annulled all assignment of forest land to private entrepreneurs. The two Judges, however, allowed transfer of forest land to State instrumentalities, such as the Mineral Development Corporation, or to a Cooperative of Tribals on the condition that, they should set apart at least 20 per cent of the net profit as a permanent fund for setting up schools, hospitals, transport and sanitation facilities for the Tribals, the Judges said.

One of the assets of the tribal is the availability of minerals in their areas. Very large number of mineral deposits exist in the tribal tracts of which much is known but remain under exploited or unexploited and thereby left un-utilised. If these areas are properly investigated and exploited, there will be tremendous development of mining and mineral based industries resulting in industrial employment for the tribal. The entire tribal belt is potentially rich in both high grade and low grade metallic and non-metallic deposits.

Vast mineral potential in tribal areas can be commercially exploited, perhaps involving tribal community, and number of downstream mineral industries can also be developed for value addition and exports. When this is achieved it would not be difficult to create any permanent arrangement to create a permanent “Royalty Developmental Dividend Fund” for tribal development.

Tribal can also be uplifted by suitably granting certain percentage of shares in mining business. This will naturally make them aware of the importance of mineral in their land holds and steadily make them know the intricacies in the business and trade and thus encourage and promote them to join the stream of business management

Ultimately this will enhance their standard of living. The Land Transfer Regulation I of 1970 had positively attempted to restore the land owned by non-tribal to tribal in Scheduled Areas. It introduced the presumptive clause, that, Land owned by a non-tribal in a Scheduled Area will be deemed as acquired from a tribal until the contrary is proved.

The Regulation made it imperative that any non-tribal holding land in the Scheduled Area shall not transfer it to even any non-tribal. It stipulates, that, any transfer of immovable property situated in the agency tracts by a ‘person’, whether or not such a ‘person’ is member of a Scheduled Tribe, was absolutely null and void, unless such transfer is made in favour of a ‘person’, who is member of a Scheduled Tribe or a society, registered under the Cooperative Societies Act, 1964 which is composed solely of members of Scheduled Tribes.

Regulation I of this Act is the primary law for the protection of the rights of the tribal over their lands. The Regulation as it stood originally, prohibited alienation of lands by tribal to non-tribal unless prior written permission on sanction of the competent authority was obtained. That Regulation also empowered the Agent (Collector) to decree an ejectment against any non-tribal in possession of any land the transfer of which was made in contravention of its provisions and to restore such lands to the transferors or their heirs.

Regulation II of 1963 later extended the Regulation, which was originally for the Andhra Area, to Scheduled Areas of Telangana also.

The Regulation had generated considerable amount of land restoration activity in the tribal areas till 1979. According to the ‘Tribal Cultural Research and Training Institute’, the number of non-tribal occupations in Scheduled Areas detected as prima-facie violating Land Transfer Regulation run in to several thousand and the extent of land in that was estimated to be several Lakhs of acres.

A little over fourth of that extent could only be restored to tribal population. In fact, the figures also revealed then, that, in couple of thousands of instances non-tribal could get favourable orders involving an extent of over a Lakh of acres. Against this, it is time now, to look in to the various aspects of Supreme Court Judgment dated July 11, 1997 (Nearly 20 years ago) in the Public Interest Litigation.

The Division Bench consisted of Justice K. Ramaswamy, Justice S. Sagir Ahmed and Justice G.B. Patnaik. The Judgment made it very clear; that, the word ‘person’ would include the State government and as such transfer of land in Scheduled Area by way of lease, for mining purpose in favour of non-tribal stands prohibited.

The Government also stands prohibited to transfer the mining leases to corporation aggregate etc except to its instrumentality says the Judgment. At one point of time the then President of India announced, that, a “Committee of Governors” would be formed to look into the serious inadequacies in the implementation of programs for the welfare of Scheduled Castes and Scheduled Tribes. The Supreme Court judgment also came out with several recommendations and what was the follow-up from the state and central governments subsequently is not known.

(The author is CPRO to CM, Telangana)

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