Saturday, June 08, 2013

Union government writes to Gujarat governor, other governors to safeguard tribals from illegal mining

By Ashok Shrimali*
The Union government has finally recognized that the scheduled V areas, where forest dwellers live, should be handled with utmost care, instead of allowing industrial and mining activities which may infringe upon the tribals' rights. A strongly worded letter by Union tribal affairs minister Kishore Chandra Deo to Gujarat governor Dr Kamala says that it is “a main challenge that is staring at us today” with “explosive situations prevailing in the Schedule V areas of our country”. He has also forwarded the letter to all governors, telling them that they should constitutionally safeguard the tribals' rights over the natural resources where they live.
“These areas are inhabited largely by people belonging to the scheduled tribe communities, forest dwellers and other marginalized and deprived sections of our society. It is, therefore, not a matter of co-incidence that we are today faced with a situation that is threatening to strike at the very roots of the basic structure of our polity, a fact that has even been mentioned by the Prime Minister on more than one occasion”, the letter reads.
Warning that the Maoist menace may only exacerbate in case the tribals' issues are not handled with care, he said, “The movements of Left-wing extremism have been fueled and propelled in the heartland over the last two decades.” He cites the Surpeme Court judgments to say that “the root cause of this situation is the result of continuous exploitation, oppression, deprivation, neglect and indifference for decades and that “Naxalism was an oversight of constitutional provocations relating to administration of scheduled areas and tribes of the country.”
The letter states, “Denudation of forests on a massive scale by the timber lobbies and diversion of forest land for industrial purposes along with indiscriminate mining activities and the inundation of large forest tracts, have deprived the local inhabitants of all their preexisting rights over their sustainable sources of livelihood. People who were living in in such areas in different parts of the country have been rendered homeless and lamentably hundreds of children have been orphaned.”
The letter regrets insensitivity to the plight and problems of this entire population, saying it is emerging as “the greatest challenge that the nation ls facing at present”, pointing out that “schedule V areas are very sensitive regions. The occasion for my addressing this letter emanates from the situations in several sensitive areas which have assumed alarming proportions.”
It adds, “Governance has come to a standstill by upsurge of extremist activities. The crucial fact which needs to be underscored and which forms the root cause of disturbance in Schedule V Areas is the yawning gap as far as development and provision of basic needs of the people, such as provision of potable drinking water, communication facilities, education and health needs in most of the regions located in schedule V areas”.
The combination of “these various factors which also pertain to land related issues have solely led to a stage where governance has been very badly affected in these parts. All this has added to the woes of the people. In some parts of the schedule V areas there has been no governance at all. The resultant adverse impact has been the kind of parallel governance, which of course tends to strike at the very root of our democratic polity”, the letter states.
Especially pointing towards the menace of mining, the letter says, “The prospects of mining which has become a threat to the inhabitants of the schedule V areas for various reasons such as dislocation of the tribals/ forest dwellers/ ecological imbalances aid also law and order problem emerging from among the affected people in schedule V areas.”
Dwelling further on this, he says, “The main threat today ls the mining in schedule V areas which has shaken the confidence and faith of the people in the region ln out democratic system. In many cases powerful lobbies are trying to encourage mining in flagrant violation of the Constitutional provisions and safeguards guaranteed by our forefathers and also in utter contempt of land transfer regulations which have been enacted by various state governments and without any regard to other prevailing laws of the land.”
Giving the example of Andhra Pradesh, he says, “It is most shocking and revolting that in certain state governments higher echelons of powers are themselves trying to brazenly distort not only the laws but constitutional safeguards against the interests of the tribals and other dwellers ln forest areas.”
Stressing on the need for early implementation of the the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Right) Act, 2006, the flagship initiative of the UPA government, he says, “This watershed legislation has been enacted to undo the injustice done to scheduled tribes and other traditional forest dwellers from the days of yore by restoring and recognizing their preexisting rights. This laudable social welfare legislation can have its meaningful application only when the rights of scheduled tribes and forest dwellers are handled and rightfully settled in all parts of the country.”
Asking the governors to exercise his or her constitutional obligation in the schedule V areas, he says, the Governor may repeal or effort to undermine the Act... It has been held by the Courts of Law that the Governors have full power to make regulations which ensure that its legal provisions are not violated. “Upholding the Governor's power, the Attorney General for India had also opined that in performance of the functions and exercise of powers under the V schedule, the Governor is not bound by the advice by the Council of Ministers of the state".
The letter underlines, “In the present scenario it is all oI the more relevant that the Governors invoke their powers which are enjoined upon them under the provisions of Article 244 read with schedule V to the constitution. I would like to highlight here that as far as legislative powers are concerned, the Governors will have to get the advice of the Tribal Advisory Council (TAC) and thereafter make a reference to the President of India before invoking their legislative powers"
It adds, "However, it would be significant to note that as the as executive powers are concerned, there is is no need for a reference to the President of India while seeking advice of the TAC. 14. The executive powers can be invoked in relation to the issues pertaining to peace and good governance and matters relation to land alienation. In such a case the governor has to simply invoke his executive powers and thereafter submit the matter to the President of India for ratification.”
In particular referring to how some State governments have facilitated signing of MoUs with non-tribal entities for carrying out mining in Schedule V Areas, the letter says, “Such scenarios have led to upsurge of extremism and resultant law and order problems. It is under these circumstances that the Governors can by invoking their executive powers can revoke such lease agreements and MoUs which are violative of the constitutional safeguards, and provisions of land protection of states and other prevailing laws of the land.”
* Senior Ahmedabad-based activist

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