Minerals Are Shared Inheritance: How Can We Ensure That Our Children Inherit Their Share?

The Logical India || Contributors Written by : Rahul Basu (Guest Author) || Edited by : Bharat Nayak || April 2nd, 2019

If mining destroys the environment, the minerals are sold and the mineral stock depleted, what is there for future generations? The National Mineral Policy 2019 lays a systematic foundation for the implementation of the Intergenerational Equity Principle. While rooted in the Constitution, some steps need to be taken quickly to reduce uncertainty to the mining industry.

How do we implement intergenerational equity? The Supreme Court has faced this question first in the Bellary iron ore scam, next in the Goa iron ore scam and later in the Odisha iron ore scam. In its judgment in the Odisha mining case (Common Cause vs Union of India & Others, WP(c) 114 of 2014), the Supreme Court of India discussed the Intergenerational Equity Principle in the context of a demand for a future generations fund and a cap on extraction and ordered a review of the National Mineral Policy 2008. Goa Foundation, the petitioner in the Goa mining cases, has advocated a holistic approach to the implementation of the intergenerational equity principle in mining. Read more

2019 polls: Political parties told to fight “undeclared” emergency, protect people

Counterview.net || March 12, 2019

The Jharkhand Janadhikar Mahasabha (JJM), claiming to be a coalition of more than 30 “progressive” organisations, activists and intellectuals working in different parts of Jharkhand for the rights of poor, Adivasis, Dalits, women and minorities, has said that India is passing through a phase of “undeclared emergency”, and the 2019 elections provide an “important opportunity” to reverse this predicament.

Putting forward demands before political parties seeking to “protect” the Constitution, preserve “democratic institutions”, and “protect” secular values, protect natural resources, and come up with policies to halt starvation deaths, lynching incidents, increasing atrocities on Adivasis, Dalits, minorities and women, attacks on freedom of expression and harassment of activists, JJM says, it is ready to discuss these.

Text of the demands:
JJM believes that our state and country are passing through a phase of undeclared emergency. Peoples’ rights and basic tenets of democracy are under attack: amendment in Land Acquisition Act, starvation deaths, lynching incidents, increasing atrocities on Adivasis, Dalits, minorities and women, state-sponsored communalism, attacks on the freedom of expression, harassment of activists, attacks on traditional self-governance systems of Adivasis, to name a few.

In this background, the 2019 Lok Sabha election presents an extremely important opportunity to protect democracy and the Constitution. On the one hand, the ruling dispensation is sparing no effort to weaken democratic institutions and on the other, principal opposition parties also do not have a firm stand on people’s issues.
JJM hopes that 2019 elections will lead to formation of a government that will be committed to ensuring people’s rights, preservation of constitution and democratic institutions and committed to secular and democratic values.

JJM demands from all political parties contesting the 2019 Lok Sabha polls to exhibit explicit commitment on the following people’s issues in their election manifesto. The Jharkhand Janadhikar Mahasabha will discuss the question of political commitment on these issues with the people across the state.

Gram Sabha and Natural Resources
Repeal Land Acquisition Amendment Act 2018 (Jharkhand) and Land Bank policy. No amendment, against the interest of Gram Sabha and people at large, should be made in land laws. Land taken over or identified under these policies should be immediately returned to the owners / Gram Sabha.

All those projects that are being undertaken without consent of Gram Sabha and by violating land laws should be scrapped Icha-Kharkai embankment, Godda Adani Power project, Palamu elephant corridor, Mandal dam are few examples falling in this category.
Samta judgement, Fifth Schedule and PESA should be implemented in letter and spirit. Rules for PESA to be formulated. Forest Rights Act should be enforced fully and all community and individual claims should be accepted.

Civil and Democratic Liberties
Laws that are blatantly and repeatedly used for suppression of freedom of expression and harassment of activists should be immediately repealed. Few examples are Sections124A (sedition) and 499 (criminal defamation) of the Indian Penal Code, Unlawful Activities (Preventions) Act and National Security Act. All fabricated cases filed under these laws / provisions in Jharkhand should be withdrawn.

Immediate release of under trial prisoners languishing in Jharkhand’s jails since a long time. Immediate release of Adivasi under-trials, falsely branded as Naxals (more than 3000 in number).

Repression by administration and security forces in Khunti district by claiming Pathalgarhi to be unconstitutional should be immediately stopped. All cases to be withdrawn, police camps to be winded up, victims to be compensated and perpetrators of repression should be punished.

Domicile and Reservation
Present domicile policy of the state to be repealed. Instead domicile policy to consider only those who are native inhabitants of Jharkhand as local residents to be formulated.
Rules should be framed to ensure maximum participation of local residents in decision-making positions at all levels of all government and private jobs. At least 50% reservation should be ensured for Adivasis, Dalits, and backwards in promotion in government jobs. At least 33% reservation should be ensured for women in all areas. All vacant posts in all departments should be filled within one year of formation of government.

Provision of 10% reservation for financially weak candidates (which is primarily a reservation for savarnas) should be scrapped since this provision is against basic principles of reservation and social justice.

Social Security, Healthcare and Education
Universal basic services and social security for all citizens to be guaranteed for – food, nutrition, universal common education till secondary level, and maternity benefits. Aadhaar-based biometric authentication should be removed from all welfare programmes and public services and Aadhaar should not be made mandatory for any welfare programme and public services.

Universal PDS with at least 7 kg food grain per person, pulses and edible oil. Expansion of Dal-Bhat Kendras with improved services. Social security pension of at least Rs 3000 per month for all elderly, specially abled, single women and members of particularly vulnerable tribal groups. Maternity benefits of at least Rs 6,000 per child to all pregnant women (without conditionalities). Cooked nutritious meal, with six eggs per week, for all children in Anganwadis and midday meals in schools.

Expansion of employment guarantee programme to urban areas and for skilled labour as well. Expansion of the right to work for every rural family under NREGA to 200 days per year with minimum Rs 300 per day wages or minimum wage of the state, whichever is higher.

Expansion of Right to Education to cover equal and free education for all children up to Class 12. Order of merging schools should be recalled by Jharkhand govt and closed schools should be reopened.

All citizens should be provided common, free and quality health services through public health system. Delivery of government health services to be strengthened at all levels, especially for primary and preventive care.

Agriculture
All recommendations of Swaminathan Committee should be implemented and farmers should be paid procurement price of 50% over and above the C2 cost of cultivation. All surplus produce of farmers should be procured on time. One-time comprehensive loan waiver. Control of all forest produce should be vested with Gram Sabha.

Irrigation facilities based on rainwater, rivers, rivulets and existing dams should be ensured. Irrigation management should primarily be done by Gram Sabha and at secondary level by Panchayati Raj institutions.

Cow Protection Act of Jharkhand should be scrapped and restrictions on trade of animals should be withdrawn.

Religion, Culture and Language
Freedom of religion Act, Jharkhand should be scrapped. Adivasi religion, by the name of Sarna or some other name (decided by the Adivasi communities), should be officially recognised.

Adivasi and regional languages of Jharkhand should be used in official communications and these should be made additional medium for education in schools.

Special provisions and schemes for comprehensive development of minorities based on recommendations of the Sachar Committee. Separate budget provisions should be made for minority communities.

Transparent, Accountable Governance and Electoral Reforms
Complete transparency in funding of political parties. Restrictions imposed for lodging complaints by citizens on public representatives and government officials should be withdrawn. Right to recall elected representatives should be made fundamental right.
Sanctity of Right to Information Act should be maintained, without any form of dilution. A decentralised grievance redress mechanism should be established in the state. Online facility for filing Right to Information applications in the state to be established.

Justice K Ramaswamy and Samata judgement

The Hans India || Vanam Jwala Narasimha Rao || 08 March 2019

Justice K Ramaswamy, former Supreme Court Judge who passed away on March 6, was popularly known for one of his landmark Judgements known as Samata Judgement that upheld the rights of tribals on their lands in tribal areas. The State government, in a befitting manner, conducted his funeral with all respects to the departed soul. Samata was a non-governmental organisation that worked for the rights of the tribal people as it found them being alienated from their lands and exploited by non-tribal people and the state, in contravention of the Fifth Schedule of the Constitution and various Central and State government laws.

After a prolonged struggle, it approached courts. The case it filed in the then Andhra Pradesh High Court in 1993 against the then State government was dismissed. Then, Samata filed a Special Leave Petition in the Supreme Court. After a four-year legal battle, it won.

Supreme Court declared null and void the transfer of land in the Scheduled Areas for private mining and upheld the Forest Protection Act of 1980, which prohibits mining in reserved areas. The Supreme Court held that the state should adhere to the laws and principles governing the tribal areas, as any other person.

Justice K. Ramaswamy and Justice Sagir Ahmed said in their judgement that: “The Governor, in his personal responsibility, is empowered to maintain peace and good governance in a Scheduled Area. The Fifth Schedule empowers him to regulate allotment of land, between natural persons, Tribals and non-Tribals, and it imposes total prohibition of the transfer of the land in the Scheduled Area.

Wider interpretation of `regulation’ would include `prohibition’ which should be read into that clause. If so read, and a purposive construction is placed, the word `person’ would include natural persons as well as juristic persons and constitutional Governments.”

The Supreme Court’s judgment annulled all assignment of forest land to private entrepreneurs. The two Judges, however, allowed transfer of forest land to State instrumentalities, such as the Mineral Development Corporation, or to a Cooperative of Tribals on the condition that, they should set apart at least 20 per cent of the net profit as a permanent fund for setting up schools, hospitals, transport and sanitation facilities for the Tribals, the Judges said.

One of the assets of the tribal is the availability of minerals in their areas. Very large number of mineral deposits exist in the tribal tracts of which much is known but remain under exploited or unexploited and thereby left un-utilised. If these areas are properly investigated and exploited, there will be tremendous development of mining and mineral based industries resulting in industrial employment for the tribal. The entire tribal belt is potentially rich in both high grade and low grade metallic and non-metallic deposits.

Vast mineral potential in tribal areas can be commercially exploited, perhaps involving tribal community, and number of downstream mineral industries can also be developed for value addition and exports. When this is achieved it would not be difficult to create any permanent arrangement to create a permanent “Royalty Developmental Dividend Fund” for tribal development.

Tribal can also be uplifted by suitably granting certain percentage of shares in mining business. This will naturally make them aware of the importance of mineral in their land holds and steadily make them know the intricacies in the business and trade and thus encourage and promote them to join the stream of business management

Ultimately this will enhance their standard of living. The Land Transfer Regulation I of 1970 had positively attempted to restore the land owned by non-tribal to tribal in Scheduled Areas. It introduced the presumptive clause, that, Land owned by a non-tribal in a Scheduled Area will be deemed as acquired from a tribal until the contrary is proved.

The Regulation made it imperative that any non-tribal holding land in the Scheduled Area shall not transfer it to even any non-tribal. It stipulates, that, any transfer of immovable property situated in the agency tracts by a ‘person’, whether or not such a ‘person’ is member of a Scheduled Tribe, was absolutely null and void, unless such transfer is made in favour of a ‘person’, who is member of a Scheduled Tribe or a society, registered under the Cooperative Societies Act, 1964 which is composed solely of members of Scheduled Tribes.

Regulation I of this Act is the primary law for the protection of the rights of the tribal over their lands. The Regulation as it stood originally, prohibited alienation of lands by tribal to non-tribal unless prior written permission on sanction of the competent authority was obtained. That Regulation also empowered the Agent (Collector) to decree an ejectment against any non-tribal in possession of any land the transfer of which was made in contravention of its provisions and to restore such lands to the transferors or their heirs.

Regulation II of 1963 later extended the Regulation, which was originally for the Andhra Area, to Scheduled Areas of Telangana also.

The Regulation had generated considerable amount of land restoration activity in the tribal areas till 1979. According to the ‘Tribal Cultural Research and Training Institute’, the number of non-tribal occupations in Scheduled Areas detected as prima-facie violating Land Transfer Regulation run in to several thousand and the extent of land in that was estimated to be several Lakhs of acres.

A little over fourth of that extent could only be restored to tribal population. In fact, the figures also revealed then, that, in couple of thousands of instances non-tribal could get favourable orders involving an extent of over a Lakh of acres. Against this, it is time now, to look in to the various aspects of Supreme Court Judgment dated July 11, 1997 (Nearly 20 years ago) in the Public Interest Litigation.

The Division Bench consisted of Justice K. Ramaswamy, Justice S. Sagir Ahmed and Justice G.B. Patnaik. The Judgment made it very clear; that, the word ‘person’ would include the State government and as such transfer of land in Scheduled Area by way of lease, for mining purpose in favour of non-tribal stands prohibited.

The Government also stands prohibited to transfer the mining leases to corporation aggregate etc except to its instrumentality says the Judgment. At one point of time the then President of India announced, that, a “Committee of Governors” would be formed to look into the serious inadequacies in the implementation of programs for the welfare of Scheduled Castes and Scheduled Tribes. The Supreme Court judgment also came out with several recommendations and what was the follow-up from the state and central governments subsequently is not known.

(The author is CPRO to CM, Telangana)

Without land or recourse

The Hindu|| Kalpana Kannabiran || FEBRUARY 23, 2019

The order of the Supreme Court issued on February 13 with respect to the claims of forest-dwelling peoples in India — the Scheduled Tribes and Other Traditional Forest Dwellers — is a case of the Supreme Court speaking against itself. In effect, the court has ordered the eviction of lakhs of people whose claims as forest dwellers have been rejected under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, or FRA. That this order negates the claims of citizens under special protection of the Constitution, viz. the Scheduled Tribes and other vulnerable communities already pushed by gross governmental neglect precariously to the edge, is another matter altogether. The question before us today centres on the responsibility of the Supreme Court in upholding constitutional claims and equal citizenship.

The background
The order in question was issued in the case of Wildlife First & Ors v. Ministry of Forest and Environment & Ors. The question before the court as stated in the order of 2016 when the matter was last heard related to “the constitutional validity of the [FRA] and also the questions pertaining to the preservation of forests in the context of the above-mentioned Act.” The details regarding claims made under the FRA that were placed before the court by the petitioner in 2016 showed that of the 44 lakh claims filed before appropriate authorities in the different States, 20.5 lakh claims (46.5%) were rejected. The order of 2016 went on to observe: “Obviously, a claim in the context of the above-mentioned Act is based on an assertion that a claimant has been in possession of a certain parcel of land located in the forest areas.” True. A claim is made either for individual or community rights by the people/communities covered by the FRA. This is a plain reading of the Act, which is unambiguous on this score.

From here, however, that order did a jurisprudential somersault to observe, “If the claim is found to be not tenable by the competent authority, the result would be that the claimant is not entitled for the grant of any Patta or any other right under the Act but such a claimant is also either required to be evicted from that parcel of land or some other action is to be taken in accordance with law” (emphasis added). This was the material part of the order. In other words, the claimant cannot contest the decision of the authority, said the court. With respect to action to be taken against those “unauthorisedly in possession of forest land”, the States were then asked by the Supreme Court to report on concrete measures taken to evict the Scheduled Tribes and Other Traditional Forest Dwellers from the forest. In the very next paragraph, which pertained to the State of Tamil Nadu, the order referred to action against those people whose claims had been rejected as “eviction of encroachers”.

What now?
In the present order of February 2019, the Supreme Court specifically directs governments in 21 States by name to carry out evictions of rejected claimants without further delay and report on or before July 12. There are several questions that must be foregrounded for immediate attention.

The most obvious one has to do with the meanings attached to the rejection of claims. According to the 2014 report of the High-Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities in India, constituted by the Government of India (Xaxa Committee), 60% of the forest area in the country is in tribal areas — protected by Article 19(5) and Schedules V and VI of the Constitution. With specific reference to claims under the FRA, reiterating the finding of several other studies that have documented the deep procedural flaws in processing claims, the Xaxa Committee observed that “claims are being rejected without assigning reasons, or based on wrong interpretation of the ‘OTFD’ definition and the ‘dependence’ clause, or simply for lack of evidence or ‘absence of GPS survey’ (lacunae which only require the claim to be referred back to the lower-level body), or because the land is wrongly considered as ‘not forest land’, or because only forest offence receipts are considered as adequate evidence. The rejections are not being communicated to the claimants, and their right to appeal is not being explained to them nor its exercise facilitated.” The mere rejection of claims by the state therefore does not add up to a finding of the crime of “encroachment” — the sheer volume of rejections should instead set alarm bells ringing in the court of procedural improprieties.

Interestingly, in this case it appears as if a private party — Wildlife First — is pitted against the state. A closer examination reveals that it is, in fact, Wildlife First and the state together which have joined forces against the most vulnerable communities in the country living in areas constitutionally protected from encroachment even by the state — can we forget the stellar Samata judgment of the Supreme Court in 1997?

Why must we worry about this order of the Supreme Court in 2019? As has been widely reported, the immediate result will be the forced eviction of over one million people belonging to the Scheduled Tribes and other forest communities. Importantly, the area marked for eviction falls under areas designated under Schedule V and Schedule VI of the Constitution — there is no reference to the implications for governance in the Scheduled Areas and whether the Supreme Court, in fact, has the authority to order evictions of Scheduled Tribes from Scheduled Areas. In a democratic country with citizens (not subjects) and a written Constitution which is affirmed by the people who are sovereign, how can we countenance the dismantling of an entire constitutional apparatus that prescribes the non-derogable boundaries to Adivasi homelands and institutional mechanisms that promote autonomy and restrain interference in self-governance?

Against the safeguards
At an even more fundamental level, we are speaking of special protections under the Constitution — even more today than ever before. The presence of Article 19(5) in the Fundamental Rights chapter of the Constitution, which specifically enjoins the state to make laws “for the protection of the interests of any Scheduled Tribe”, is vital. How has the Supreme Court ordered the eviction in complete disregard of this core and express fundamental right protection to Adivasis (as distinct from legal/statutory protection), which protects them from a range of state and non-state intrusions in Scheduled Areas as well as from the perennial threat of eviction from their homelands? Is it not the supreme obligation of the Supreme Court to protect the Scheduled Tribes and other vulnerable communities from the grave harms of violent dispossession?

Finally, in the recent judgments of the apex court on the right to privacy and Section 377, the court has sung paeans to autonomy, liberty, dignity, fraternity and constitutional morality — the pillars of transformative constitutionalism. It is the same court in the same era that has now ordered the dispossession of entire communities protected under the Constitution. We, as citizens, have every reason to worry.

Land reforms in India remain a stalled and forgotten agenda; no progress made on CSLR report on issue

As the agenda for upcoming general elections for Lok Sabha shapes up, one agenda that is likely to be missing is that of wealth inequality and, more precisely, land ownership. Yet, the issue remains ever relevant as about 5 percent of farmers hold about 32 percent of farmland and a large farmer (owner of around 43 acres) owns 45 times the size of land that a marginal farmer (owner of around 0.96 acres) owns.

Seeing the magnitude of the problem of land inequality, the Indian government had initiated land reforms programmes soon after Independence which were subsequently adopted in different states. While the programmes succeeded in a few states, they largely failed in most. The stagnation of the progress of land reforms programmes in various states and in the nation as a whole, especially in recent times, has been elaborated in detail by this correspondent in an earlier published article. Read more

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