Making a Mockery of the Fifth Schedule

The main disputes in the tribal heartlands of India concern the mining activities and the flushing out of tribals in the name of development. The possibility of such activities occurring could have and be drastically reduced if the V Schedule of the Constitution and the judgment of the Supreme Court in Samata v. State of AP (1997 SC) be implemented.

In the later half of 2009, the Government approved the setting up of Tata Steel’s proposed setting up of an integrated 5.5 million tonne steel plant in Chhattisgarh. The allegations against this action were that the Government had failed to carry out the social impact assessment (SIA) study in the affected area along with EIA (environment impact assessment) study report. Such, is further mandatory in a scheduled area under the fifth schedule of the Constitution. It is not just this latest action by a corporate mining giant that is against the constitutional ethos. The entire conflict in the districts of Dantewada and Bastar in South Chhattisgarh is perpetrated by such actions.

I shall illustrate this by a simple example. The Forest Rights Act gives a guarantee to every tribal for ownership of his land. However, to be given a title (patta) to this land, the tribal must be in possession of it and if not, then it goes to the state. So when you take the villagers at gun point and resettle them in camps on the highway, or force them to flee to other areas in fear; they lose possession of the land. This mineral rich land then goes to the Government that later gets leased to mining companies for crores of rupees. Scores of people have died in this conflict that is now being viewed as a security situation while it should rather be looked as an instance of land grabbing.

Erragota village after being destroyed- Courtesy Javed Iqbal

On the other hand, the law is clearly in the favour of the tribals. The Constitution guarantees under the fifth schedule the power to the Governor to make regulations for the welfare of the tribals and secure their rights over their tribal land. It, in a way recognizes that land is very much dear to these people. In 1997, Samata, an NGO filed a petition (SLP) in the Supreme Court challenging the leasing of tribal lands to mining companies in Andhra Pradhesh. The Court, in its judgment held as follows;

• That as per the 73^rd Amendment to the Constitution of India, every Gram Sabha shall be competent to prevent the alienation of land in the scheduled areas and take appropriate action to prevent any unlawful alienation of land of a scheduled tribe.
• Minerals in these areas are to be exploited by the tribals themselves or through co-operative societies with financial assistance from the State.
• Transfer of land in Scheduled Areas, by way of lease to non- tribals, corporations etc… stands prohibited.
• In the absence of a total prohibition in some states, a Committee of Secretaries and State Cabinet Sub Committees should be constituted and then only must a decision be taken on mining activities.
• In any event,  any licensee or lessee must provide certain duties and obligations to the tribals as part of the administration of projects. At least 20 per cent of the lessee’s net profits would have to be set aside as a permanent fund for the people’s development needs on top of any expenditure for reforestation and the maintenance of ecology.

Thus, as is evident, if there is a law/ regulation made by the Governor under the Fifth schedule, any mining lease is prohibited. Even if there is no Regulation, then a Committee must be constituted and only on the report of the Committee, must a decision be taken. Later on, when the Government attempted to subvert this judgment and ask for a review, the Supreme Court turned it down.

However, despite this judgment, the Government has been extremely impudent and is flouting the directions of the Supreme Court time and again. Take the case of Vedanta for instance. A corporation that is known the world over for its nefarious activities. The Governments of Norway, Zambia, Armenia and UK have already held Vedanta responsible for causing serious damage to people and the environment as a result of its economic activities. In its latest activities, it proposes to conduct mining activities in Niyamgiri and Lanjigarh parts of Orissa.

The Supreme Court in its 2005 report held as follows;

“The people have been displaced from their houses through physical eviction by the District Administration. Many were beaten up by the employees of Vedanta… In the face of resistance, the District Collector and the company officials collaborated to coerce and threaten them. An atmosphere of fear was created through the hired goons, the police and the administration….After being forcibly removed they were kept under watch and ward by the armed guards of Vedanta and no outsider was allowed to meet them,” the report stated. It further adds that the project is ‘bound to destroy the water recharging capacity of the area’ and ‘cause the desertification of permanent streams’.”[i]

Even today, the Government officials are allegedly working hand- in – hand with Vedanta to displace the tribals from their land and allow Vedanta to conduct its mining activities; in clear violation of the Fifth Schedule and the earlier mentioned Supreme Court judgment.

Chhattisgarh is a different ball game in itself. In 2005, certain leader started an apparent peaceful movement called the ‘Salwa Judum’, funded by the Government and mining corporations. This apparent peacedul movement has seen violence escalate in the region and in the past five years, more than 644 villages have been burnt down, 5000 or so killed and injured, 2.5 lakh people displaced and other heinous acts of violence committed. The same day, it is rumoured, that the Tata’s got a mining lease in that area.

The conflict in the region is a result of land grabbing. However, the Government is making it out to be one of national security thereby further justifying the killings, displacement and the violence. Side by side, the Tatas, Jindals and Essars wait for their share of pie in the mineral rich land.

Perhaps all this could be avoided if the Fifth Schedule and the Judgment in Samata’s case as implemented properly. The present actions by the Government are clearly in violation of the Constitution, law and Supreme Court judgments.  However, the Government is looking at the Samata Judgment as an obstacle to ‘development’ and is initiating plans to amend the fifth schedule; thereby to dilute the guarantees given to the tribals.[ii]

Gandhian Activist Himanshu Kumar while on a fast protesting the injustice meted out to the tribals.

Meanwhile, Gandhian activist Himanshu Kumar fasts to get some justice as regards the violence and the implementation of Supreme Court orders concerning the rehabilitation of displaced tribals in Chhattisgarh.

[i] See Neerja Dasani, “Paying the Price of a Propoganda Group”, http://www.countercurrents.org/dasani131209.htmhttp://www.countercurrents.org/dasani131209.htm

[ii] Secret Document, Government of India, Ministry of Mines. Now available at http://www.mmpindia.org/Mining%20secret%20note.htm

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