India Together: Threat to Schedule V of the Constitution

Samata, an NGO working in the scheduled area of Andhra Pradesh, filed a case against the Government of A.P for leasing tribal lands to private mining companies in the scheduled areas. The SLP [special leave petition] filed in the Supreme court led to a historic judgement in July 1997 by a three judge-bench which declared that government is also a 'person' and that all lands leased to private mining companies in the scheduled areas are null and void.

94. As per the 73rd Amendment Act, 1992, …."Every Gram Sabha shall be competent to safeguard…..Under clause (m) (ii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a scheduled tribe".

110. Minerals to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State.
112. In the absence of total prohibition, the court laid down certain duties and obligations to the lessee, as part of the project expenditure.
114. Atleast 20% of net profits as permanent fund for development needs apart from reforestation and maintenance of ecology.
115. Transfer of land in Scheduled Area by way of lease to non-tribals, corporation aggregate, etc stands prohibited.
116. Renewal of lease is fresh grant of lease and therefore, any transfer stands prohibited.
117. Transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm, etc is unconstitutional, void and inoperative. State instrumentality's like APMDC stand excluded from prohibition.
129. In the absence of total prohibition in some states with Scheduled Areas, Committee of Secretaries and State Cabinet Sub Committees should be constituted and decision taken thereafter.
131. Conference of all Chief Ministers, Ministers holding the Ministry concerned and Prime Minister, and Central Ministers concerned should take a policy decision for a consistent scheme throughout the country in respect of tribal lands.

March 6, 2000: The Supreme Court dismissed the petitions of State & Central governments for modification of the Samata order.
May 2000: The Andhra Govt moved the Tribes Advisory Council for amendment to the LTR Act of 1959.
July 10, 2000: The Ministry of Mines drafts and circulates a Secret note (Ref: 16/48/97-MVI) to the committee of Secretaries proposing an amendment of the V Schedule to overcome the Samata judgement to facilitate the leasing of land in tribal areas.
August 2000: On popular protest and opposition the CM of AP issues a statement indicating withdrawal of the proposed amendment.
September 21, 2000: Indian Express carried an article in the edit page exposing secret note of Ministry of Mines titled "displacement not an issue" by Manoj Mitta.
September 24, 2000: Again widespread protests against the proposed Bauxite mine in Tribal Areas of Visakhapatnam district forced the CM to come out with a statement deferring the project which would come up in Scheduled area.
September 30, 2000: An Action Alert was put out for starting a campaign to Protect the rights of tribal people under the banner of CPCNR (Campaign for peoples control over natural resources) and the secret note was widely circulated.
December 2000: A national consultation was called for at ISI Delhi on the Land Acquisition Act, V Schedule and Resettlement and Rehabilitation Policy, in which many Political parties also sent their representatives.
Till January 2001: Extensive coverage of this issue in the national and regional Media and many people and groups have written to the concerned ministers, including the PM and the President.
January 26 2001: The president in his Republic Day speech issued a veiled warning against plotting to amend the V schedule of the constitution (TOI, Feb 24th 2001)
February 2001: The BALCO divestment process was in progress and a controversy arose on the V schedule and the Samata judgement. Chatissgarh Govt issued notices to Sterlite and the Central Govt in a hurry to settle the BALCO divestment process.
March 15 2001: The controversy on the tribal land being leased to private company dogged the Central Govt and finally on March 15th the PM to a question by Arjun Singh replied in the Rajya Sabha that the Govt had no intentions of amending the V schedule to overcome the Samata judgement.
April 2001: The Central Govt moves the SC to post all cases related to BALCO to its jurisdiction and the SC issues orders. The much awaited opportunity to review the Samata judgement is opened again this time in the court of law.
May 11 2001: Mr. Arun Shourie minister for disinvestment issues a statement that they want to review the Samata judgement. [Hindu Businessline May 11th 2001, New Delhi bureau]

Instead of implementing the orders of the Supreme Court which gives strength and clarity to the Fifth Schedule, the Central government has not only ignored the directions, but has also continued its efforts to reverse the judgement.

In view of future mining activities, the Supreme Court had given certain clear directions on the course of action that could be taken by the government. It directed that the Prime Minister should convene a conference of all Chief Ministers and other concerned Central Ministers, to take a policy decision so as to bring about a suitable enactment in the light of the guidelines, so that a consistent scheme throughout the country is evolved and adopted. However, if the Constitution is amended for the sake of mining as proposed, there will be many sectors which would justify acquisition of tribal lands for other development objectives. This would only lead to tribals being completely destroyed and dislocated. The government has not taken any of these serious issues into consideration when it started its sale of the first public sector mining company in the scheduled area.

The opinion of the government is evident in its recommendations through the Attorney General Soli Sorabjee who had, ironically, appeared on behalf of the tribals in the Samata Case! If nothing else, this raises the question of whether Mr. Sorabjee, in now representing a party opposed to his earlier client, may be acting with conflicting interests. In his new avatar as the government's spokesman (rather than Samata's) he stated to the Ministry of Mines in the above mentioned Secret Document that -

All the above moves are clearly indicative of the wholesome disregard of the Government towards adivasi rights under the Constitution. A majority of Fifth Schedule areas have already have a history of revolts and rebellions against state oppression and injustice. Any move to amend the Fifth Schedule, will only result in agitations and unrest. We demand that such moves should be immediately withdrawn.

For this purpose of initiating discussion and planning out strategies, we have organised a Protest National Convention in ISI, New Delhi, on 8th & 9th July 2001 with the participation of Adivasi communities, grass-roots organisations and movements, NGOs, resource and advocacy groups, trade unions, legal and other experts.

We hope that you will deliberate this situation and join us in our fight to stop this proposed amendment to the Fifth Schedule. We appeal to you to take it up with your respective party, government, union, association, organisation, community, university and any other fora to prevent such a constitutional disaster. We also appeal to you to bring this up as a very urgent and important national issue to be immediately solved peacefully before the situation goes beyond control.