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Thursday, September 21, 2000


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When the law displaces
Manoj Mitta


The note is classified as "secret" and that is due not only to the usual bureaucratic caution. It's been kept a secret because it makes a highly sensitive proposal. If acted upon, the note put up by the Union Ministry of Mines on July 10, 2000 may displace millions of tribals around the country from their traditional habitat in hills and forests. This is because it proposes a law to let the wave of economic reforms sweep into the hitherto untouched forest and hilly areas. The proposed law may lead to a variety of developmental activities in those areas with the infusion of private or foreign capital. The biggest activity is likely to be mining operations. And it is also likely to be the biggest cause of displacement. Nature has hoarded all sorts of minerals where the tribals have been living for ages.

The displacement issue has always been controversial and nobody has yet found a solution that satisfies everybody. So the ministry seems to have adopted a pragmatic approach by sidestepping the displacement question altogether while pitching for the pro-liberalisation enactment. The note, in fact, proposes an amendment to the Fifth Schedule of the Constitution to override a Supreme Court judgment on the subject. Upholding the plea of an NGO from Andhra Pradesh, Samatha, the Supreme Court ruled in 1997 that no immovable property in any of the tribal areas coming under the Fifth Schedule could be transferred to any non-tribal. This blanket ban applies even to the land owned by the government.

Currently, the Fifth Schedule has jurisdiction over eight states: Andhra Pradesh, Bihar, Gujarat, Haryana, Madhya Pradesh, Maharashtra, Orissa and Rajasthan. Of the three new states in the pipeline, Jharkhand and Chattisgarh will also come under the Fifth Schedule. (The tribal areas of the Northeast are governed by an altogether different set of provisions enlisted in the Sixth Schedule.) In its verdict in the Samatha case, the Supreme Court envisages a special effort from each state government to help the tribals set up cooperative societies and give them financial and technical support. The court's premise clearly is that if the government provides the necessary inputs, there is no reason why the tribals themselves should not be able to exploit the mineral wealth appropriately in the scheduled areas. Such an arrangement will not only be equitable but also serve the larger economic good.

What objection can the bureaucracy possibly have to the idea of giving the tribals a direct stake in the mining operations? But just as it failed to address the displacement question, the note signed by the joint secretary of the Ministry of Mines, S.P. Gupta, attacks the Supreme Court judgement without even mentioning (let alone examining) the development alternative involving the participation of the tribals as stake holders. This omission is not surprising because in the three years since the Samatha judgment, no government has attempted to test the viability of the court's proposition. So the note meant for the consumption of the Committee of Secretaries simply alleges that the judgment will "bring to halt all industrial activities including mining operations in the scheduled areas."

This alarmist account of the implications of the Supreme Court judgment is the basis on which the Ministry of Mines is now seeking to amend the Fifth Schedule of the Constitution. The proposed amendment is in the form of an "explanation" which clarifies that no regulation could take away the government's power to allot land in scheduled areas to a non-tribal for undertaking any "non-agricultural operations including reconnaissance or prospecting or mining." The legality of this move has apparently been confirmed by Attorney General Soli Sorabjee. According to the note, Sorabjee gave the opinion that the legal basis of the Samatha judgment could be removed by effecting the necessary amendment in the Fifth Schedule.

It may, of course, be legally possible to do so but the question really is how to make the enactment politically palatable. The Committee of Secretaries grappled with this dilemma when it met last month. It is learnt to have fallen back on the same Samatha judgment which offered the option of profit-sharing with the tribals if the mining by a non-tribal is unavoidable in a given situation. The court held that an equitable deal in such a situation would be that the local tribals be given about 20 per cent of the net profits of the mining operation.

The Committee of Secretaries is said to be considering the idea of using this profit-sharing option as a general arrangement to sugarcoat the proposal of amending the Fifth Schedule. When the Committee formulates its recommendation, it will be put before the Cabinet which will finally decide whether it is politically expedient to amend the Fifth Schedule. Whatever the decision, the tribals and the global mining industry will be vitally affected by it in different ways.

What objection can the bureaucracy have to giving tribals a stake in mining operations?

Copyright © 2000 Indian Express Newspapers (Bombay) Ltd.

   

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