BY STAN SWAMY
No one in India feels more let down by the custodians of the
Indian Constitution than the Adivasi people of Central India, particularly those
from Jharkhand. This may sound like an overstatement but it is not.
Jharkhand, as we all know, is rich in minerals: 26 per cent of
the country’s mineral resources are concentrated in the state. National and
international corporate houses have understandably been making a beeline for the
state in search of lucre. The Jharkhand government has signed 102 memorandums of
understanding (MoUs) with various companies without the least concern, let alone
consent, of the people who are being forced (directly and indirectly) to
sacrifice their land so the companies can set up their mining industries and
profit from the mineral wealth. Entire hills are being turned into dales,
destroying all the gifts of nature such as forests and water sources. This
amounts to a serious violation of the very preamble to the Constitution that
promises "to secure justice, social, economic and political, to all its
citizens".
Let us now focus on some specific points of violation of
constitutional and basic human rights.
1. The fifth schedule of the Constitution [Article 244(1)]
provides for the administration and control of scheduled areas and scheduled
tribes:
a) It assigns a very special role to the governor of the state.
He may make regulations for peace and good governance of the scheduled area. In
particular, he may prohibit or restrict the transfer of land by or among members
of scheduled tribes [5(2)(a)]. He may regulate the allotment of land to members
of scheduled tribes (ST) in such an area [5(2)(b)]. In making such regulations,
the governor may repeal or amend any act of Parliament or of the legislature of
the state or any existing law which is for the time being applicable to
the area in question [5(3)].
In other words, the Constitution makes the governor, in states
where there are scheduled tribes, the custodian of the ST people. Hence
it has given him extensive powers, including the power to repeal any act of
Parliament or the state assembly if he judges that these acts will not benefit
the tribal people. But sadly, during the past 62 years of independence not a
single governor has exercised these extraordinary powers to protect the
interests of the tribal people of Jharkhand. They all opted for the easy
and safe way of going along with the elected governments at the central and
state level. This is nothing short of a gross dereliction of duty on the part of
the custodians of the Constitution towards the tribal people of Jharkhand.
b) The Constitution enjoins the governor to convene a Tribes
Advisory Council (TAC) comprising of 20 persons, all of whom should be members
of the scheduled tribes of the state. Its duty is to advise the governor on
matters pertaining to the welfare and advancement of the STs in the state
[4(2)]. The governor is bound to accept its advice. Thus the TAC is the supreme
legislative body, even above Parliament. In this way the founding fathers of the
Constitution wanted to ensure completely autonomous and good governance of the
scheduled areas.
But alas, the TAC was never allowed to function in the way the
Constitution had envisaged. Rather, it was made an instrument in the hands of
the ruling political party to twist and manipulate it to suit its narrow
political ends. The chief minister functions as the chairperson and convener of
the TAC. Appointments of the non-legislature members are made on political
grounds rather than on merit and commitment to public interest. In the final
analysis, the TAC in Jharkhand is just a nominal body serving no useful purpose
so far as the tribal people are concerned.
This is a gross distortion of the Constitution and its intended
purpose.
2. The Supreme Court’s Samata judgement:
The judgment in the Samata case in the context of Andhra
Pradesh is a rare example of the apex court ruling in favour of the tribal
people. Its salient points are as follows:
Ø No mining lease should under any circumstances be granted in
the patta land of the tribals in scheduled areas to non-tribal
persons/corporations;
Ø If there are mineral deposits in government-owned land in
scheduled areas and their excavation is considered important for enhancing
production and national wealth, it is the duty of the government to mobilise the
tribals, help them form cooperatives and render all possible assistance to
enable such cooperatives to function efficiently;
Ø Even excavating minerals in government-owned land in scheduled
areas should not be leased to non-tribal persons/corporations. Rather, the
government itself should undertake the task through its own instrumentalities
such as public corporations;
Ø No mining lease should be granted under any circumstances in
reserved or protected forests or even non-forest areas where the environment is
likely to be badly affected;
Ø In cases where the state does not totally prohibit the grant
of mining leases of lands in the scheduled areas, a committee of secretaries and
a subcommittee of the state cabinet should be constituted to grant mining
leases.
Apparently, this unusual verdict came as a big surprise to the
judiciary itself at different rungs. Ever since then, every effort has been made
both by the judiciary and the administration to dilute the provisions of the
verdict.
On the other hand, the law of eminent domain is being vigorously
implemented in scheduled areas. This law stipulates that the state has supreme
power over all land/property. If it thinks that a particular land/property is
needed for the welfare of the country, it can acquire it, forcibly if need be,
regardless of any protective legislation that may exist as is the case with the
tribals.
This is a serious violation of the fifth schedule of the
Constitution.
3. Enactments in favour of scheduled tribes:
Three acts of Parliament come to mind, which were enacted in the
last 20 years to promote the welfare of Adivasi people:
i) The Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act 1989;
ii) The Panchayats (Extension to Scheduled Areas) Act 1996 [PESA];
and
iii) The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act 2006.
Though these acts have come too late and have very little to
offer, Adivasis and others working for and with them are doing what they can to
protect the interests of tribal people.
As far as Jharkhand is concerned, the Prevention of Atrocities
Act 1989 is known to few and even less used. Even if cases are filed, the
non-tribal culprits get away, as there is hardly any conviction and punishment.
The government has shown no seriousness in enforcing this law.
The PESA Act of 1996, which gives significant powers to the
gram sabha, cannot be implemented in Jharkhand because panchayat
elections have not been held for the last 27 years! With the Jharkhand high
court having created some legal hurdle, the case is now pending before the apex
court. Meanwhile, irrespective of the parties in power, no government has
bothered to pursue the case so that panchayat elections are held and due
recognition given to the gram sabha. So, although passed in Parliament
nearly 13 years ago, it remains at best a paper tiger.
Finally, the Forest Rights Act of 2006 is yet to be promulgated
by the state government. All kinds of bogus excuses are offered whenever one
approaches the authorities for implementation of the act.
To conclude, constitutional guarantees, fundamental rights, mean
virtually nothing as far as Jharkhand is concerned. With successive governments
adopting a couldn’t-care-less attitude, some well-meaning voluntary groups are
trying to make a difference. It is only the Maoist groups that have taken a
clear stand, staunchly opposing the appropriation of the land of the poor by the
industrialists. Encouragingly, recent years have seen the emergence of people’s
resistance movements in increasing numbers. Even as efforts are on to bring
together these movements on a common platform, it is thanks to the grass roots
resistance that no big company has been able to open shop in Jharkhand despite
numerous (102 in all) MoUs having been signed years ago. Adivasis and other poor
people of Jharkhand continue to hold out not because of the government but
despite it.
(Stan Swamy is an activist working among the tribal people in
Jharkhand.)