Tribal communities in India have to consistently struggle for safeguarding their rights. In this struggle, they not only have to struggle against non-tribals but also government authorities. Post Independence, there have been several landmark legislations with the capacity to empower the tribals in India such as Forest Rights Act (FRA), Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), etc. However, these legislations are used inappropriately by the various state governments to deny tribals their guaranteed rights. It is unfortunate that the main concern of tribal communities is to protect these landmark and friendly acts from constant attack from various state governments as well as the Union government rather than utilizing these legislations to ensure their socioeconomic development. These attacks have been either through legislations, petitions, or in a covert way.
The recent attack on tribal rights is in the form of a new interlocutory application filed by the Odisha government before the apex court on 25th February, 2016. The application has been moved by the state run miner OMC (Odisha Mining Corporation) to challenge the landmark Vedanta bauxite mine judgement of the Supreme Court. The application claims that Forest Rights Act and its rules do not require any consent from the Gram Sabha for use of forestlands if government decides that the rights of people have been settled. The OMC has made this claim on the basis of several arguments. The main argument is that resolutions of Gram Sabha rejecting mining cannot remain perpetually in force. The OMC seeks constant review of decisions of the Gram Sabha on a flimsy argument that members who had taken decisions rejecting mining have passed away. It has also questioned 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 in the Niyamgiri Hills of Odisha. 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 tribal communities traditional god), as sacred.
Basically, Odisha government wants the Supreme Court to set aside these resolutions rejecting mining by reviewing its own ‘Vedanta Judgement of 2013’. The State Government believes that if it succeeds to do so, then it would seek clearance from the Union Ministry of Environment, Forest and Climate Change for the mining project, which they had rejected after the Supreme Court’s ‘Vedanta Judgment of 2013’. The SC heard this plea on 4th March and decided that the matter be referred to a three-judge Bench of the court for consideration. There is a need to understand the powers of Gram Sabha, the intentions of the State Government and their concern for tribal rights. The issue of undermining the powers of Gram Sabha is not specific to Odisha, for other state governments have also made 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.
One of the important legislations for tribal empowerment is Panchayats (Extension to Scheduled Areas) Act, 1996(PESA). Under PESA, if there is an acquisition of land for development projects, then it is mandatory to obtain the consent of Gram Sabha or Panchayats at the appropriate level. Since Gram Sabha is the most representative institution of any village (as defined by the Act), it is obvious that Gram Sabha has to be consulted. It is the responsibility of the Gram Sabha to prevent alienation of land [Section 2 (c)]. Its decisions have to be sacrosanct and should not be questioned. The Odisha government is basically questioning the “authority” of Gram Sabha which has been deemed powerful, even by the Supreme Court in the Vedanta Mining Judgement. Therefore, the decision to approach the Supreme Court to question the power of Gram Sabha seems questionable and illogical. It is a fact that there is no uniformity in application of PESA by various state governments. Since the implementation of the Act, this has emerged as one major challenge. In Odisha`s case, power of acquisition of land for development projects has been assigned to Zila Parishad, which basically goes against the spirit of the PESA. Moreover, the composition of Zila Parishad is tilted in favor of Government with official representatives having a greater say in the final decision making. In fact, there is a need to review the implementation of PESA in Odisha to transfer powers assigned to the Zila Parishad to Gram Sabha. Even the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), which the State government is using as a tool to challenge decision of 12 gram sabhas, gives utmost power and significance to Gram Sabha and considers it as the most important institution to ensure protection and development of tribal communities.
It is surprising that the state government claims that the decision of gram sabhas needs to be reviewed because those who were members of gram sabhas at that time when resolutions rejecting mining was passed are no more. The argument seems fallacious. It means to claim that members are more important than an institution (Gram Sabha). It is the decision of the institution that needs to be respected by the state government. There is no question that the decisions taken by Gram Sabha can be reviewed. But they can be reviewed only by Gram Sabha itself. There has to be no undue pressure and interference from outside. 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. It means that the state government is pre-judging that younger population will give a decision in its favor. This again is an insult to Gram Sabha as an institution and there have been many occasions in various states where pressure has been used to get a favorable decision. On the one hand, Odisha government questions the power of Gram Sabha but on the other hand it wants these gram sabhas to review their decision. There seems to be utter confusion and desperation to get clearance for Vedanta Mining Project in Niyamgiri Hills.
The OMC has also questioned the decision of Gram Sabha and belief of tribal communities that Niyamgiri hills are sacred and an integral part of their religious beliefs. The argument that only a small part of the plateau is sacred is questionable. As per the FRA, tribals have right to traditional knowledge and cultural diversity. It is tribal knowledge and their beliefs that have to be given primacy in this regard. Outsiders, including the state government, cannot decide what is religious and sacrosanct for tribal and what is not. Similarly, under PESA, it is Gram Sabha which is central in managing, protecting and preserving the traditional customs of tribals [Section 2 (h)]. Therefore, it seems that in the context of the recent shift in the development paradigm of the state, the traditional beliefs and practices of Tribals seems to be under threat. Gram Sabha is competent to preserve tribal practices and religious beliefs, but it is this institution that has been facing challenges from the state government. In the Samata Judgement (1997), the Supreme Court has given a clear message that if the government allows transfer of land in favour of non-tribals (in this case MNC) and/or leases land for mining in the scheduled areas, it would completely destroy legal and constitutional fabric that is made to protect the tribals. It is rather surprising that the Odisha government has not understood the Samata Judgment and approached the SC with an interlocutory application.
The decision of Odisha government to file an interlocutory application has serious consequences for tribals not only in Odisha but across the country. It weakens the main legislations, FRA and PESA; that are there to protect tribal rights and ensure their socioeconomic development. It challenges the authority of the Gram Sabha as an institution of tribal participation in democracy. Therefore, it can lead to further alienation of tribals from the mainstream. If the decision is given, as it is anticipated by state government then it will set a bad precedent and may intensify efforts to acquire tribal land on one pretext or other and displace a number of tribals. The decision to allow mining in Niyamgiri hills may lead to violence because it will be taken by the tribal community as an attempt to disregard and disrespect their religious views and traditional beliefs. It may intensify the already existing ‘assimilation’ efforts carried out in various tribal areas of India. The prevention of Land mining in the Niyamgiri hills is also ecologically important. Mining in this area would damage its fragile ecology, causing a great loss of biodiversity.There are already apprehensions that the Union Government is trying to dilute the various tribal related acts and legislations especially the ‘consent clause’ of the Gram Sabha. Any decision that supports the position of the Odisha Government will give further credence to these apprehensions.
Under the Fifth Schedule of the Constitution of India, it is the responsibility of Governor to safeguard the rights of tribals.Leaders of Niyamgiri Suraksha Sangram Samiti and Lokshakti Abhijan have sought intervention of Governor SC Jamir to stop the State Government from trying to convene gram sabha meetings again for bauxite mining in the hills. The governor of Odisha should review the decision of the state government to file an interlocutory application. If he fails to do so, then the SC has to ensure tribals that their rights guaranteed by the Constitution would be safeguarded and no such precedent would be set that in any way would erode their rights. It is high time that the concept of ‘penal offence’ be incorporated into the PESA. It would be used as a legal instrument to take action against those authorities and institutions which fail to consult Gram Sabha wherever needed by law or show disregard and disrespect towards decisions of the Gram Sabha.
Zubair Nazeer and Rahul Chirmurkar are Research Fellows in the Department of Political Science, Jamia Millia Islamia, New Delhi. They are working on Tribal Rights and Development in India.