The Samatha Judgment and the Fifth Schedule of the Constitution

The biggest misfortune of the Tribal people is that they inhabit lands that are highly rich in minerals, water and other resources that the state and private corporations need for “development” of the country. Almost 90 percent of all coal and around 50 percent of the remaining minerals are in their regions. This “development” has nothing to do with making their lives better or more secure. On the contrary, they are assured of being up-rooted from their familiar surroundings and forced to learn how to survive in an alien societal set up with strange rules.

Through decades tribals have been constantly losing their land holdings to powerful non-tribals and their alienation is still going on. The indigenous/ tribal peoples who constituted 8% of the total population of India at 2001 census make up over 50% of the total displaced people due to development projects.  According to the Ministry of Tribal Affairs (MTA) nearly 85 lakh tribals were displaced until 1990 on account of large developmental projects. It has become more ominous in last two decades of the liberalization-cum-privatization and urbanization policies.

“Development” has emerged as the biggest threat to tribal’s survival. Ironically, the so called “modern civilized society” has become a predator of their age-old eco-friendly peaceful lifestyle. The tribals, their lands, and other resources are now exposed to the exploitative market forces, mostly due to the State and Multi National Companies (MNCs) sponsored mining projects, steel and cement plants, wildlife sanctuaries, hydropower projects, industries and tourism projects, and so on.

Alienation of the tribal lands by the powerful entities has become a common phenomenon in all tribal areas across the country. It is most unfortunate that “the freedom to live in their own traditional ways” as guaranteed by the constitution is flouted by those who understand the constitution better.

It was also upheld by the Supreme Court in 1997 in the famous case now known as the Samatha Judgment. Sadly the letter and spirit of all constitutional and legal protections of the tribal lifestyle are now being blatantly flouted by the nexus of politicians, bureaucrats, and industrial corporations.

The most serious threat to the Adivasi people in the country today is the pressure on the Fifth Schedule provisions, which forbids transfer of tribal lands to non-tribals. Both Central and several state governments are seriously making efforts to amend the laws prescribed under the Fifth Schedule and their corresponding state laws in order to allow private and corporate players to take over tribal and forest lands. In violation of the Fifth Schedule, private mining has been taking place in almost all the nine States with Fifth Schedule areas, most notably in Chhattisgarh, Jharkhand, MP, and Orissa.

The Samatha Judgment

In the early nineties, Samatha, an advocacy and social action group working or the rights of tribal communities and for the protection of the environment in Andhra Pradesh, was involved in an apparently local dispute over leasing of tribal lands to the private mining industries. The tribal community wanted to regain control over their lands rather than work as labor force in the mining operations on their own lands.

After losing the initial battle in the lower and High Court, Samatha filed a Special Leave Petition in the Supreme Court of India. The four year legal battle led to a historic judgment in July 1997 by a three-judge Supreme Court bench. It was a land-mark judgment in favor tribal rights. It permitted the mining activity to go on as long as it is undertaken by the government, or instrumentality of state or a cooperative society of the tribals. The instrumentality of the state has been defined by the Court as organizations which are completely owned by the government or where the government or its agencies are the majority shareholders.

As per the verdict all lands leased by the government or its agencies to private mining companies are null and void. It however upheld that transfer of land to the government or its instrumentalities is entrustment of public property because the aim of public corporations is in public interest. The salient features of this judgment are:

  1. As per the 73rd Amendment Act, 1992, ….”every Gram Sabha shall be competent to safeguard…..Under clause (m) (ii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a scheduled tribe”.
  2. Minerals to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State
  3. In the absence of total prohibition, the court laid down certain duties and obligations to the lessee, as part of the project expenditure: at least 20% of net profits as permanent fund for development needs apart from reforestation and maintenance of ecology.
  4. Transfer of land in Scheduled Areas by way of lease to non tribals, corporation aggregate, etc stands prohibited to prevent their exploitation in any form.
  5. Transfer of mining lease to non tribals, company, corporation aggregate or partnership firm, etc is unconstitutional, void and inoperative. State instrumentalities like APMDC stand excluded from prohibition.
  6. Renewal of lease is fresh grant of lease and therefore, any such renewal stands prohibited.
  7. In States where there are no acts which provide for total prohibition of mining leases of land in Scheduled Areas, Committee of Secretaries and State Cabinet Sub Committees should be constituted and decision taken thereafter.
  8. Conference of all Chief Ministers, Ministers holding the Ministry concerned and Prime Minister, and Central Ministers concerned should take a policy decision for a consistent scheme throughout the country in respect of tribal lands.

Strong Opposition to the Judgment

Needless to say, vested interests of powerful corporate houses and the political class joined hands to negate the Apex Court’s verdict. Like PESA, the Samatha Judgment also became a hurdle in their “development” plans. In March 2000 the Supreme Court dismissed the petitions of State & Central governments for modification of the Samatha order. But the efforts to nullify the Samatha judgment by amendment to the Fifth Schedule continued in various government quarters despite the fact that the Supreme Court had not imposed a blanket ban on mining activity in the scheduled areas. Needless to say, the powerful corporate lobby will continue to pressurize policy makers to shrink their social responsibilities and cater to their commercial interests.

In the current liberalization, privatization, and globalization setup the market forces have become the central player, not the community or the government. Laws and policies are no longer aimed at social justice and social welfare but at maximization of profits and maximum exploitation of resources. The primary goal of the new economic policy is to redefine the role of the state and reframe laws to align with the global interests. Under the influence of powerful transnational corporate lobbies, legitimate governments in countries like India have become weak and corrupt. They are trying to play with the traditional Constitutional provisions to transfer control over natural resources from native Adivasis to corporate lobby.

As the Indian government appears determined to follow the narrow Western concept of “development” as “maximization of wealth” through market forces and commoditization of natural resources, ordinary people of the country have to come forward to fight for social justice, equity, and sustainable livelihood of the most marginalized tribal community of Indian society. The corporate-consumer culture is too short-sighted to be trusted for wider issues of long term sustainability or preservation of natural wealth in its pristine form.

About Goodpal

I am a firm believer in healthy people (mind and body both), healthy societies and healthy environment. I also undertake content writing and documentation projects. Please feel free to comment, share and broadcast your views. If you wish to write for this blog, please contact me at vj.agra@yahoo.com Thanks for stopping by. Have a Good Day!
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2 Responses to The Samatha Judgment and the Fifth Schedule of the Constitution

  1. UjwalAndhra says:

    Thanks for this awesome commentary of Samatha 1997 Judgement crispy Summary.

    God bless you.

  2. Pravin rathva says:

    Hindi ma muko.

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