If the apex court decides in favour of the Odisha Mining Corporation, it will set a bad precedent, and may intensify state and corporate efforts to acquire tribal land for mining and other purposes.
Tribal communities in India are in a constant struggle to safeguard their rights against non-tribals and government authorities. Since independence, there have been several landmark legislations with the capacity to empower India’s tribal communities, such as the Forest Rights Act (FRA) and the Panchayats (Extension to Scheduled Areas) Act (PESA). But it is unfortunate that the main concern for tribal communities is to ensure the protection of their rights through these Acts.
The latest attack on tribal rights is an interlocutory application filed by the Odisha government before the Supreme Court on February 25, 2016. The application has been moved by the state-run miner, Odisha Mining Corporation (OMC), challenging the landmark Vedanta bauxite mine judgment of the Supreme Court. The application claims the FRA and its rules do not require any consent from the gram sabhas for the use of forestlands if the state government decides that the rights of people have been settled. The OMC claims the resolution of the gram sabhas rejecting mining in the Niyamgiri hills cannot remain perpetually in force and is seeking a constant review of the decision on the flimsy argument that some of the gram sabha members who had rejected mining in the hills have since passed away. It has also questioned the resolutions of the 12 gram sabhas of the Dongaria Kondh, Kutia Kandha and other tribal communities on the basis of technical errors committed during the passage of the resolutions rejecting mining. The state government further claims that tribal communities may have exceeded their powers by declaring an entire plateau, situated far away from the abode of Niyam-Raja (the communities’ traditional god), as sacred.
Thus, the Odisha government wants the Supreme Court to set aside the gram sabha resolutions by reviewing its own judgement on the case in 2013. The SC heard the plea on March 4 and referred the matter to a three-judge bench for further consideration.
The issue of undermining the powers of gram sabhas is not specific to Odisha, with other state governments also making such attempts. Even the activists defending rights of tribal and their institutions have been under attack. Recently, Soni Sori was attacked for defending tribal rights in Bastar region of Chhattisgarh.
Where the law says
According the PESA, if land is to be acquired for development projects, then it is mandatory to obtain the consent of the concerned gram sabhas, who are responsible to prevent the alienation of land. The decisions of the gram sabhas have to be sacrosanct and should not be questioned. But the Odisha government is challenging this “authority” in a questionable and illogical move by approaching the SC.
Since the PESA was first introduced a big challenge has been the lack of uniformity in its application by various state governments. Going against the spirit of the law, Odisha has accorded the power to acquire land for development projects to zila parishads, the composition of which is tilted in favour of the government with official representatives having a greater say in decision-making.
Even the FRA, which the state government is using as a tool to challenge the decision of gram sabhas banning mining in the Niyamgiri hills, gives utmost power to the gram sabhas, and considers these as the most important institutions to ensure the protection and development of tribal communities.
It is thus evident that there is a need to review the implementation of these laws in Odisha.
The OMC has also questioned the gram sabhas’ decision to uphold the belief of the tribal communities that the Niyamgiri hills are sacred.
According to the FRA, tribals have a right to traditional knowledge and cultural diversity, which must be given primacy in cases such as this. Outsiders, including the state government, cannot decide what is religious and sacrosanct for tribal and what is not. Similarly, under the PESA, gram sabhas are central to managing, protecting and preserving the traditional customs of tribals. Thus challenging the resolution banning mining in the Niyamgiri hills by arguing that only a small part of the hill is sacred undermines and threatens the traditional beliefs and practices of tribal communities.
In its Samata judgement in 1997, the Supreme Court gave a clear message that if any state government allowed the transfer of land in favour of non-tribals and/or leased land in scheduled areas for mining projects, this would completely destroy the legal and constitutional fabric made to protect the tribal communities. Thus the OMC’s interlocutory application is all the more surprising, given the Samata judgement.
Members more important than institutions
Odisha is seeking a review of the gram sabhas’ resolution banning mining on the grounds that those who were members of these bodies at that time have since passed away. This argument is fallacious; by relying on this claim, the state government appears to say that members are more important than an institution (gram sabhas). If the decisions of the gram sabhas are to be reviewed, this must be done by the gram sabhas themselves with no undue external pressure and interference.
One has to but question the intention of the state government when it states that the decision rejecting mining in the hills needs to be reviewed because younger tribals have become members of the Gram Sabha.
By suggesting the decision of the gram sabhas must be reviewed because younger tribals are now part of these institutions, the state government is presuming the new members will decide in its favour. This raises doubts of the gram sabhas, and the new members, likely being pressurised into making a decision favourable to the government.
What lies ahead
The decision of the Odisha government to file an interlocutory application has serious consequences for tribal communities across the country. It weakens the FRA and PESA, which exist to protect tribal rights and ensure the socioeconomic development of these communities. It also challenges the authority of gram sabhas as an institution of tribal participation in democracy. This could further alienate tribal communities from the mainstream.
If, as Odisha anticipates, the SC decides in its favour, it will set a bad precedent and may intensify efforts to acquire tribal land for mining and other purposes. A decision to allow mining in the Niyamgiri hills may lead to violence as the ruling will be seen by the tribal community as an attempt to disregard and disrespect their religious views and traditional beliefs.
Importantly, the prevention of mining in the Niyamgiri hills is also ecologically important; mining in the area would damage its fragile ecology, causing a great loss of biodiversity.
There are already apprehensions that the Centre is trying to undermine the various laws on tribal rights. Any decision that supports the position of the Odisha government in this particular case will give further credence to these apprehensions.
The SC must safeguard the rights of tribals, especially those guaranteed by the Constitution, and must not set any precedent that would erode these rights in any way. Perhaps it also time to consider incorporate a ‘penal offence’ clause into the PESA. This could be used as a legal instrument to take action against those authorities and institutions that fail to consult the gram sabhas as required by law, and especially against those who disregard and disrespect these bodies.
Zubair Nazeer and Rahul Chirmurkar are Research Fellows in the Department of Political Science, Jamia Millia Islamia, New Delhi.