August-September 2009 
Year 16    No.143
Tribal Rights


Broken promises

For the tribal people of Central India, particularly Jharkhand, the constitutional promises remain just that: a promise

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.)


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