On November 26, 1949, the Constitution Council signed and passed the Constitution of India. Sixty-six years after we gave ourselves the Indian Constitution, the right to life and dignity of India’s indigenous peoples, the Adivasis are being threatened not just by militarisation and state violence but also by a failure of the nation to enforce the Constitutional Scheme contained in its Fifth and Sixth Schedules. Sudha Bharadwaj makes a strong plea to recall the Constitutional mandate
Of late, an interesting phenomenon is occurring in Bastar. Thousands of villagers are gathering at police stations to protest against illegal arrests, detentions and tortures – at Kookanar, Kuakonda and Tongpal. In many of these peaceful mass demonstrations, Soni Sori, who herself suffered custodial sexual violence and long incarceration on false charges, and today dons an AAP topi is the organizer. In the past few months she has exposed the fake encounter of Nuppo Bhima at Revali, of Podia Hemla at Nahadi and of Bhima Mandavi at Nilvaya. An irate IG (Naxal Operations) Kalluri has addressed a press conference urging people to socially boycott her. Recently he had also been embarrassed by her press conference, which revealed that out of the 300 Naxal surrenders boasted by the police, 80% turned out to be unarmed villagers.
Democratic voices in Chhattisgarh have been repeatedly demanding that the way to de-escalate violence in the Bastar region would be to rehabilitate people in their villages, allow them to rebuild their ravaged agrarian and forest based economies, restore the civil administration and whole heartedly comply with the Forest Rights Act and PESA Act to give the adivasis of the area substantial rights. Rights to land, livelihood and life. Decisions to carry out large scale mining and set up industries in that area can only be effective if carried out after a genuine consultation with the people. It is only this, that can reduce the polarization between security forces on the one hand and the adivasi people at large on the other, and can prevent imminent genocide in the name of counterinsurgency.
It is time, then, to recall the Constitution of India.
Fifth and Sixth Schedules of the Indian Constitution
It was the prolonged and fierce resistance of the tribal peoples in large tracts of British India that had forced the British administration to accept that the areas dominated by tribal populations must be treated as “excluded” or “partially excluded” areas (that is areas excluded from the general laws); and also to bring in special laws – the Chotanagpur Tenancy Act, the Godavari Agencies or Ganjam and Vishakhapatnam Act, the SanthalParganas Tenancy Act or special provisions in existing Acts such as in the Bombay Land Revenue Code.
The intent was this: in these areas, through such provisions, the tribals (adivasis) were protected from exploitation by money lenders; their rights and title to enjoy the lands in their occupation were to be assured, and their culture and methods of self-governance to be preserved. The infiltration of non-tribal people, and the purchase of lands by them, except with the prior sanction of an officer appointed by the government on its behalf, was prohibited.
All this was not done borne out of any generosity of the imperial masters. These protective provisions stemmed from a realisation that nothing else was sustainable.
Post-independence, the “partially excluded” and “excluded” areas were more or less incorporated into the Fifth and Sixth Schedules of the Constitution. While the tribal areas of the North East were covered by the Sixth Schedule which provided for autonomous district councils, the Fifth Schedule was conceived of as an area governed directly by the Union through the Governor who, in consultation with the Tribes Advisory Council, had powers of a quasi-legislative nature to repeal or modify, in the interests of peace and governance of the Scheduled area, any legislation of the State Assembly or the Parliament. Most of the tribes recognized by the British administration were listed as the Scheduled Tribes in various different states. (Of course there were tribes left out of the schedule, and areas left out of the scheduled areas and those communities are struggling to assert their identity and autonomy even today.)
A very large proportion of Chhattisgarh’s geographical area – 60.57% – is covered under the Fifth Schedule. Districts which are fully under Schedule are – Surajpur, Balrampur, Sarguja, Koriya, Jashpur, Gariyaband, Kanker, Bastar, Kondagaon, Sukma, Dantewada, Narayanpur and Beejapur. With the passage of the Panchayat (Extension to Scheduled Areas) Act, 1996 the Constitutional principle recognizing the special way of life, customary governance and autonomy of tribal people was implemented in statutory law. This constitutional guarantee became statutorily enforceable only forty-nine years after we attained independence.
The terse Act establishes the centrality and powers of the Gram Sabha. It empowers the Gram Sabha to safeguard community resources, approve development plans and projects, enforce prohibition or regulation of sale of intoxicants, and restore unlawfully alienated land. Consultation with the Gram Sabha is required prior to acquisition or resettling of project affected persons, and its consent is mandatory for mining minor minerals.
Most importantly the Gram Sabha can exercise powers over institutions and functionaries in the social sector, and the Panchayati Raj institutions at higher levels are forbidden from usurping its powers. Acts inconsistent with PESA were to have been appropriately amended or repealed within a year – by 24th December 1997. In other words the PESA Act provided a template to exercise a substantial measure of grass-root democracy and autonomy and could have been the mechanism by which the tribal people could have engaged on their own terms with the juggernaut of ‘development’ – the mining and corporate land acquisitions that were to follow.
Of late, an interesting phenomenon is occurring in Bastar.. Thousands of villagers are gathering at police stations to protest against illegal arrests, detentions and tortures – at Kookanar, Kuakonda, Tongpal. In many of these peaceful mass demonstrations, SoniSori, who herself suffered custodial sexual violence and long incarceration on false charges, and today dons an AAP topi is the organizer. In the past few months she has exposed the fake encounter of NuppoBhima at Revali, of Podia Hemla at Nahadi and of BhimaMandavi at Nilvaya.
Tragically that was not to be. As laid out, powerfully and simply, by Dr. BD Sharma in his work “Unbroken History of Broken Promises”, the laws for the scheduled areas were never effectively implemented. Governors failed to exercise their legislative powers. Even though they were not bound to act on the aid and advice of the Council of Ministers, they continued to act as if they were.
The Tribes Advisory Council has been rendered a formality in Chhattisgarh. It is headed by the (non-tribal) Chief Minister. Many Governors did not submit their annual reports regularly, and those who did, hardly conveyed the growing crisis in these areas. In Madhya Pradesh (and therefore in Chhattisgarh) despite a specific notification dated 31.01.2000 laying out in detail the manner in which the Gram Sabha is to be consulted prior to land acquisition, the interpretation that “consultation” is not “consent” have rendered the Gram Sabha powerless in even modifying, let alone nullifying developmental projects. (It is quite another matter that while interpreting “consultation” in the appointment of judges, the Supreme Court has been quite clear that consultation is indeed consent!).
It was the historic ‘Samatha’ judgment – that held that private companies being “non-tribal” could not be permitted to mine in the Scheduled Areas, rather only government companies or co-operatives of the adivasi people could do so – that had provided an opportunity to organise adivasi co-operatives and support engagement of the tribal people with the developmental process on a level playing field. However the “Samatha Committee” formed in Chhattisgarh does not appear to have interfered at all, not even at one place, in the grant of mining leases to private companies, in order to assert tribal rights. While the Samatha judgment has not been modified/ overturned by a larger bench of the Supreme Court, disparaging remarks have been made by co-ordinate benches of the Court, not dealing specifically with the issues raised therein, thus eroding its credibility without a direct challenge.
The Preamble to the Forest Rights Act, 2006 proclaims that it was passed to correct a historic injustice and to provide rights – both individual and communal – to tribal people and other traditional forest dwellers to live in, cultivate in, gather forest produce in and maintain nistari rights in forests – which since the British era had in the legal framework become “State property” and in which framework, the adivasis, who had lived in and co-existed with the forests for centuries, had become “encroachers”. While the critics of the Act rightly point out that the Act tries to limit and to privatize/ individualise ownership of forest lands, there is no doubt precious rights have been sought to be recognized by this Act.
Chhattisgarh claims to be the “No. 1” State in FRA (Forest Rights Acts) implementation, however the ground reality reveals something else altogether, in fact yet more injustice, namely:-
1. More than 50% of all claims filed have been rejected and the total land for which pattas have been granted are less than estimates made of forest encroachments in the erstwhile State of Madhya Pradesh 20 years ago. Clearly the pattas granted have been of very small parcels of land, sometimes, like for the baiga primitive tribe, just homestead land, on which they cannot survive.
2. Very few applications for community rights over forests have been accepted or processed, and if granted, often contain unacceptable provisions making such rights subject to plans of the forest department. In fact even the special application forms for rights on communal resources were not made available in most blocks in Chhattisgarh, and deadlines were repeatedly quoted for not accepting forms, despite clarifications from the Tribal Welfare Ministry.
3. The centrality of the Gram Sabha in the process of granting of forest rights; and the fact that, in the Act, the Gram Sabha is the investigating and certifying authority with regard to whether a forest dweller has been settled on a certain parcel of land, the acceptability of evidence necessary for establishing this, and the period and extent of such settlement; has been completely disregarded. As a result it is the Forest Department that has de facto been the verifying or certifying authority, leaving the adivasi at its mercy yet once more.
4. The provisions in the Forest Rights Act that explicitly lay down that the determination of the rights must be carried out prior to any displacement even when a Forest is declared a Reserve Forest/ Eco-sensitive Area, is also being violated with impunity. Even otherwise, the explicit provisions prohibiting eviction of forest dwelling communities during the process of determination of Forest Rights have been ignored in a large number of cases, where “dabang” (powerful) communities have evicted primitive tribal groups and dalits with the tacit support of the authorities.
Which way – Indigenous Rights or Genocide?
In the Bastar division, a proposed ultra-mega steel plant in Dilmili is facing mass protests, even as Tata waves goodbye to the land at Lohandiguda acquired through coercive Gram Sabhas more than 5 years back. Recently the people of 25 villages blockaded the roads to the NMDC Bailadila Iron Ore Complex (district Dantewada) to protest its proposed expansion. They were angered by the fact that so few local adivasi youth had been employed, even though the Shankini and Dankini rivers have been running red with iron ore fines for the past few decades.
The Polavaram dam, which threatens to inundate scores of villages of Chhattisgarh- Odisha- Andhra, is being constructed without Gram Sabha consultation, proper survey or rehabilitation of the project affected, as the padayatra of the Adivasi Mahasabha (affiliated with the CPI) has exposed. Approximately 7443 hectares of land in Kanker, Narayanpur and Dantewada alone have been given out in prospecting leases to various private companies as per the Government website, yet in villages falling within the proposed Rowghat iron ore mines in Kanker district, when villagers and community workers mark their community forest boundaries with GPS machines, they are illegally detained by the Border Security Force. The Government, that is forever exhorting the tribals of Bastar to shun extremism and join the mainstream, refuses to engage with these peaceful mass movements, raising eminently legal issues, and only responds by treating all dissent as Naxalism.
The Government of Chhattisgarh admits that after Salwa Judum in the year 2005, 644 villages of the then Dantewada district, whose overwhelmingly adivasi population was about 350000, had been emptied out. While a lakh of people might have fled to Andhra Pradesh/ Telangana, a large proportion of this population has gone deeper into the forests.
With the withdrawal of educational and health services of the State as well as ration shops from these so-called “Naxal” stronghold areas, a situation has arisen in which several lakh adivasis have been automatically “outlawed”. This population is being deprived of basic needs. Anti Naxal operations in such an area could result in a virtual genocide and killings of unarmed civilians and non-combatants on a large scale. Additionally, the State program of bringing adivasi children to study in roadside porta-cabins and ashrams (where incidentally cases of food poisoning, medical negligence and sexual violence are being reported regularly) and separating them from their families is repeating the “historical mistakes” committed by the Australian government on its indigenous peoples, for which the Australian Prime Minister recently rendered a public apology.
The Indian state claims that Naxalism is the “greatest internal security threat” and is justifying levels of militarization akin to occupation and war. On the other hand, it has refused to accept the situation, as defined in international human rights law, as one of “internal armed conflict” since that would mean permitting international observers such as the UN Special Rapporteurs, the International Red Cross, Amnesty International or Medicines Sans Frontiers to visit and ensure that all parties to the conflict abide by the Geneva Protocol. It would also mean ensuring the safety and welfare of non-combatant civilians caught up in the conflict. India is a signatory to the Covenant on Indigenous Rights that does not permit military occupation without consultation.
Historically, worldwide, capitalism has come in to societies riding on the back of indigenous genocides. But a recent meeting in Bolivia, where indigenous people from all over Latin America gathered, and where they resolved to save Mother Earth, is perhaps the new direction the world needs to move towards, in order to survive.