Friday, March 09, 2001

Mabo and Samatha

By Rajeev Dhavan

MABO AND Samatha are two remarkable judgments of the late Twentieth Century on the rights of aboriginals and tribals. On June 3, 1992, the High Court of Australia decided to declare that all the land which belonged to the aboriginals had been wrongly misappropriated by the white settlers and had to be returned to the aboriginals. Two centuries of colonial history was reversed. White colonials had assumed that the land of the natives was res nullius (owned by no one). The Mabo case judgment was a brave and courageous decision. It had a cathartic influence on the white colonial conscience. It was electrifying for tribal communities throughout the world.

On July 11, 1997, the Indian Supreme Court decided the Samatha case which was no less significant. Breathing new life into the limping Fifth and Sixth Schedules of the Constitution, the Supreme Court in a two:one split judgment (Ramaswami and Saghir Ahmad JJ for the majority and Patnaik J., dissenting) declared that tribal land was for the tribals to the exclusion of outside corporate industrialists wishing to ruthlessly exploit the area and the tribals. But, despite the directions given in the judgment to undo the injustices of history, `Samatha' was soon forgotten. It was not given the acclaim accorded to `Mabo'. Few people knew about it. The State Governments did not implement the directions given in the judgment. The Union Government thought the judgment a nuisance. No political party hailed the judgment as one of the greatest on affirmative action.

In the Mabo case, a white nation was prepared to re-examine its colonial history with remorse; and set the situation right. Independent India denied a similar benefit to poor, exploited tribals who had owned and lived on tribal land for centuries by its attitude towards the Samatha case judgment. The Samatha case resurfaced only because of the BALCO affair which surreptitiously handed over tribal leases to a Mumbai entrepreneur as a part of disinvestment of shares. Had the entrepreneur applied for the leases directly, he would not have got them. But, the issues got instantly blurred. The emphasis shifted to disinvestment, not tribal entitlement. Another moment of history was lost.

The issue in the Samatha case was seemingly narrow. It was concerned with interpreting the word `person'. If the state was a `person' within the meaning of an Andhra Pradesh regulation, the prohibition on granting leases to non-tribals also applied to the state. But, this issue could not have been interpreted by the dry and empty - albeit cunning - formulas of `law'. It had to be considered against the constitutional commitment of the Fifth Schedule (which applied to tribal lands outside the Northeast) and the Sixth Schedule (which applied to tribal lands in the Northeast) of the Constitution which exude a justifiable bias towards tribals. A specific provision mandates the States of Bihar, Orissa and Madhya Pradesh to have a Minister of Tribal Welfare (Article 164). Certain areas were specifically designated `Scheduled Areas' (Fifth and Sixth Schedules). In these areas, any and all laws of all States and the Union could be altered by the Governor. In the Draft Constitution, there was a specific provision about tribals transferring tribal lands only to tribals who alone would get Government land in these areas. The Fifth Schedule of the Final Constitution was clearer in its intent than in its words. Regulations could control money-lenders and ensure that tribal and non-tribal land was transferred to tribals. In its imaginative interpretation, the Samatha case judgment surpassed the Mabo case decision. The Court took the Tribal Schedules as an ``integral scheme of the Constitution with direction, philosophy and anxiety... to protect the tribals from exploitation and to preserve the valuable endowment of their land for economic empowerment to elongate social and economic democracy...''. This was too important to leave to the discretion of Governors. The Court read the Constitution so as to grant the custodianship of tribal land to tribals.

Specific directions were given to Andhra Pradesh and other States to monitor leases. A special committee had to be set up by the Union. It was suggested that a conference be called of all States to legislate these protections. Each State Government was specifically injuncted ``to ensure that all industrialists concerned, be they natural persons or juristic persons, stop forthwith mining operations within the Scheduled Area''. In the BALCO affair, this specific injunction was given the go-by.

The reason for all this is obvious. Our political rulers want the votes of the tribals and the money of exploitative industrialists. No direction issued in the Samatha case has been followed by the Governments. The worst response was of the Union Government. The memo of the Union Ministry of Mines of July 10, 2000, tells the whole story. Instead of applauding the Samatha case judgment, an effort was made to seek its reversal in the Supreme Court. On February 4, 1999, the Supreme Court rejected this attempt. The Union Government was in a fix. It turned to the Attorney-General for an answer. Somehow, Mr. Soli Sorabjee seemed to have overlooked the fact he had, in fact, appeared for the tribal petitioners (Samatha) on August 7, 1995, and obtained the stay order that made the Samatha judgment possible. I took over from Mr. Sorabjee later and made the final arguments. It is not for me to say whether there was a conflict of interest and whether the Attorney-General should have resiled from giving an opinion. In fact, he did not. His opinion was masterly, strong and decisive. He opined that the legal basis of Samatha case judgment could be removed by a constitutional amendment! This was confirmed by the Ministry for Law and Justice. The Mines Department accepted this advice with exaggerated glee that the Fifth Schedule could be amended by a simple majority in Parliament.

All this was kept secret. No issue was made of this during the elections. The Samatha case was brushed under the carpet when the tribal States of Chhatisgarh and Jharkhand were created for their tribal identity. The Union did not tell the new States that while the tribal land was for tribals, its use would be gifted and bartered away by the Union to a non-tribal from anywhere in the world. The BALCO operation involved a transfer of shares. But, it does indirectly what cannot be done directly. Besides, the Samatha judgment clearly states that ``industrialists, be they natural or juristic person, (should) stop forthwith mining operations in Scheduled Areas''. This applies to the transfer of majority shares impugned in BALCO. One just has to lift the corporate veil to see what the Supreme Court intended.

For the moment, the score card is clear. The Samatha decision is as historic as the Mabo verdict of Australia. But, it has been treated with contempt in India. None of the State Governments nor the Union has implemented it. They are in contempt. This contempt is much more serious than allegations against Narmada activists agitating outside the Supreme Court. The BALCO deal is contrary to the laws of the Supreme Court. In addition to the absolute embargo in the Samatha case, 20 per cent of all past profits have to be given to tribals. Is the Mumbai buyer prepared to pick up this liability?

Caught between the devil and the deep blue sea, the Union cannot tell the tribals the legal truth. It refuses to implement a great judgment. It hopes Parliament or the Supreme Court will reverse it. This would be most tragic. The Constitution intended both tribal land and its people to get the primary benefits of this richly resourced area. After all these centuries, that is not too much to ask for.