The `Samata judgment’

Frontline-The Hindu || ASHA KRISHNAKUMAR || 24 Sep, 2004

IN 1987, Samata, a non-governmental organisation closely associated with 10 community-based institutions in 300 villages of Srikakulam, Visakhapatnam and East Godavari districts, began to work 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 protracted struggle – in the form of dharnas, rallies, picketings and meetings – and several rounds of petitions to various Central and State departments, Samata decided to approach the courts. It first filed a case in the local courts and later in the Andhra Pradesh High Court in 1993 against the State government’s move to lease tribal land to mining companies. When the High Court dismissed the case, Samata filed a Special Leave Petition in the Supreme Court. After a four-year legal battle, it won a historic judgment, which 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 main issue in the Samata case was whether or not the word `person’ in Section (3)(a) of the Mines and Minerals (Regulation and Development) Act included the government. The Supreme Court held that indeed it did, and that the state should adhere to the laws and principles governing the tribal areas, as any other person.

Known popularly as the Samata judgment, it nullified all mining leases granted by the State government in the Scheduled areas and asked it to stop all mining operations. Only the State Mineral Development Corporation or a cooperative of the tribal people, it ruled, could take up mining activity and that too in compliance with the Forest Conservation Act and the Environment Protection Act. It also recognised the Constitution (73rd) Amendment and the Panchayat (Extension to Scheduled Areas) Act, under which gram sabhas are competent to preserve and safeguard community resources, and reiterated the right of self-governance of Adivasis. Where similar Acts in other States do not prohibit the grant of mining leases in the Scheduled areas, a committee of Secretaries and State Cabinet sub-committees should be constituted and a decision taken, the judgment said. Before granting leases, it is obligatory for the State government to obtain the concurrence of the Centre, which would, for this purpose, constitute a sub-committee consisting of the Prime Minister and the Union Ministers for Welfare and Environment so that the State’s policy is consistent with that of the nation, it said. The judgment also noted that at least 20 per cent of the net profits should be set apart as a permanent fund for the establishment and provision of basic facilities in the areas of health, education, roads and other public amenities.

The judgment said: “It would also be open to the appropriate legislature, preferably after a debate/conference of all Chief Ministers and Ministers concerned, to take a policy decision so as to bring about a suitable enactment in the light of these guidelines so that there emerges a consistent scheme throughout the country in respect of tribal land under which national wealth, in the form of minerals, is located.”

But even this landmark judgment did not end the travails of the tribal people. According to Samata executive director Ravi Rebbapragada, since July 1997 the State government and the Centre filed appeals in the Supreme Court seeking modification of the order so that it would have prospective effect. In March 2000, the apex court dismissed the appeals. This did not stop the State government from trying to remove the legal basis of the judgment so that the tribal areas could be opened up for mining, he says.

Even as Parliament was discussing an amendment to the Mines and Minerals (Regulation and Development) Act in 2003, Samata led massive protests in Visakhapatnam and was joined by various political parties, NGOs and tribal mass organisations. In August last year, Chief Minster N. Chandrababu Naidu issued a statement that the government had no plans to amend the Tribal Act. But from documents available with Frontline, it is clear that it had been pursuing the idea. The Telugu Desam Party government also leased out large tracts in the Agency areas of Visakhapatnam district to the State Mineral Development Corporation for bauxite mining. Subsequently, the government wrote to the Ministry of Environment and Forests (MoEF) seeking forest clearance and applied for an NOC (no-objection certificate) from the State Pollution Control Board for mining operations.

By end-2003, Samata organised protests all over the tribal areas of the Visakhapatnam hills. Over 20 tribal groups, including students’ unions, community groups and NGOs, submitted a memorandum to a government committee expressing their objections to the proposed amendments and the mining projects in the area.

The committee assessed the tribal situation thus: “The quality of the life of the tribals has failed to improve as per their expectations despite the constitutional commitments; the… group did not find the impact of the tribal development plans on the lives of the tribal people discernible… the… group was astonished to find that in the resource-rich tribal areas, the tribal inhabitants are resource-poor. Their access to resources is poor. The tribal communities, thus, suffer, not only from capability poverty but from income poverty as well, despite major industrial complexes [both in public and private sectors] having come to be established in the tribal areas.”

If the State government appeared to be insensitive to the tribal people’s problems, the previous National Democratic Alliance government at the Centre had draconian plans to amend the Fifth Schedule to remove the legal basis of the Samata judgment and get it passed in Parliament. The Centre, through the Ministry of Mines, moved a note, classified “Secret” (No.16/48/97-M.VI) on July 10, 2000, to the Committee of Secretaries putting forward its views on the judgment.

The Centre’s attitude was clear from the then Attorney-General of India’s thinking that the way forward was to “effect the necessary amendments so as to overcome the said judgment by removing the legal basis of the said judgment”.

The “Secret” note (Frontline has a copy of it) repeatedly expresses “deep concern” and “anguish” over the judgment’s effect on mining and industrial activity.

It proposes that an explanation be added after Para 5(2) of the Fifth Schedule “removing prohibition and restrictions on the transfer of land by tribals to non-tribals for undertaking any non-agricultural operations, including prospecting and mining (para 18)”.

This one sentence can defeat the letter and spirit of the Fifth Schedule and drive the tribal people from their land, water and forests.