Laws in favour of Adivasis just show-pieces not implemented
A saying goes that ‘written laws are like a spider-web, it will trap the poor and the weak, but it will be torn to pieces by the rich and powerful’. That in short is the story of the Indigenous Adivasi People in our country. True, some laws are enacted apparently in favour of the Adivasi but at the same time enough loop-holes are provided so that these laws do not take effect.
Let us start with what the Supreme Court of India has to say about the Indigenous Adivasi People. In a recent path-breaking judgment concerning the humiliation of an Adivasi young woman by the upper caste people the court observed:
“despite all our tremendous diversity, the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country. The Constitution guarantees to all citizens freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17), liberty (Article 21), etc. However, giving formal equality to all groups or communities in India would not result in genuine equality. The historically disadvantaged groups must be given special protection and help so that they can be uplifted from their poverty and low social status. It is for this reason that special provisions have been made in our Constitution in Articles 15(4), 15(5), 16(4), 16(4A), 46, etc. for the upliftment of these groups. Among these disadvantaged groups, the most disadvantaged and marginalized in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most marginalized and living in terrible poverty with high rates of illiteracy, disease, early mortality etc. Hence, it is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India.
The injustice done to the tribal people of India is a shameful chapter in our country’s history. The tribals were called ‘rakshas’ (demons),‘asuras’, and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive.”
[The Supreme Court, Criminal Appeal NO. 11 of 2011]
Constitutional & Legal protection to the indigenous Adivasi:
(i) The Vth Schedule of the Indian Constitution [Indian Constitution, Article 244(1)]clearly stipulates that a ‘Tribes Advisory Council’ (TAC) composed solely of members from the Adivasi community who will advice the Governor of the State about any and everything concerning the protection, well- being and development of the Adivasi people in the State. The Governor is the constitutional custodian of the Adivasi people and he/she can make laws on his/her own and can annul any other law enacted by the parliament or state assembly always keeping in mind the welfare of the Adivasi people. This provision is applicable in the nine States of central India where Adivasis are a significant population.
Whereas the reality is that in none of the States during all these nearly seven decades has any State Governor ever used his/her constitutional discretionary power to reach out to the Adivasi people proffering the excuse that they have to work in harmony with the elected government of the State. The meeting of the TAC takes place rarely, and it is convened by and presided over by the Chief Minister of the State and is controlled by the ruling party. TAC has thus been reduced to a toothless body. Verily a constitutional fraud meted out to the Adivasi people.
(ii) THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 (Act of Parliament,No. 33 OF 1989) was enacted by Indian parliament to forestall the increasing atrocities on Adivasis and Dalits by non-ST/SC individuals/organizations/govt officials etc. The intention was good. Chapter II lists a detailed description of Offences of Atrocities.
Whereas the reality is that it remains significant by its non implementation. The cases lodged by the aggrieved STs/SCs are few and far between and judicial verdicts through the judiciary especially at the lower levels of the judiciary takes years to come through. By that time the hurt feelings get numbed and life goes on somehow. Very few of the guilty non-ST/SC individuals/organizations have been punished.
iii) The Panchayats (Extension to Scheduled Areas) Act [PESA],1996 [No:40 of 1996] which was a fruit of long drawn disenchantment and struggle of the Adivasi people and their political representatives and which for the first time recognized the fact the Adivasi communities in India have had a rich social and cultural tradition of self-governance outlined the composition and functioning of the Gram Sabha.
Whereas the reality is this Act of the parliament has deliberately been left unimplemented in all the nine states. It means the capitalist ruling class does not want the Adivasi people to self-govern themselves.
iv) The Samatha Judgment, 1997 of the Supreme Court [Civil Appeal Nos:4601-2 of 1997] came as a huge relief to the Adivasi communities in Scheduled Areas. It came at a time when consequent to the policy of globalization, liberalization, marketisation, privatisation national & international corporate houses started to invade particularly the Adivasi areas in central India to mine the mineral riches. The govt machinery gave its full cooperation to these companies. Any resistance by the Adivasi people was put down with an iron hand. The judgment was meant to provide some significant safeguards for the Adivasis to control the excavation of minerals in their lands and to help develop themselves economically.
Whereas the reality is consistent efforts have been made by the state to ignore this verdict of the highest court. Several cases have been filed by affected communities but the ‘law of eminent domain’ of the colonial rulers are invoked to alienate Adivasi land and to loot the rich
iv) Forest Rights Act, 2006: [Act of Parliament No:2 of 2007] jal, jangal, jamin, as we know, are the basis of the economic life of the Adivasi people. But with globalization, marketization, privatization geared towards industrialization are laying a ruthless blow to the economic sustenance of the indigenous peoples. Of particular importance is their traditional rights in the forest have been infringed upon systematically over the decades. At long last, the govt came to the realization that a historic injustice has been done to the Adivasi and other traditional forest-dwellers. To correct this anomaly it enacted this Act.
Whereas the reality is far from desirable. From 2006 to 2011 of its operation, about 30 lakh applications were made all over the country for title-deeds, of which 11 lakhs were approved but 14 lakhs were rejected and five lakhs were pending. At the present moment the govt is urging the administration to speed up the process, with what results is yet to be seen.
v) Land Acquisition Act of 2013:[Act of Parliament No: 30 of 2013] Displacement and land-alienation of the Adivasi people has been and is a vexing problem. The ‘Land Acquisition Law’ of 1894 of the colonial rule was kept intact for more than a century as a result of which about 6 crore population has been displaced for various projects such as small & large dams, mines, infrastructure, industries. Of them 40% are Adivasis. Only 25% of them have been resettled. No one has been rehabilitated because that involves social and cultural dimensions. People are reaching a state of mind that enough is enough and have started to protest and resist displacement increasingly in more and more organized ways. It was this predicament which forced the UPA govt to pass a fresh ‘Land Acquisition Law’ of 2013 replacing the old colonial law. This law contains some favourable elements for farmers in general and Adivasi people in
Whereas the reality is hardly a year passed after the promulgation of the Act and the State govts were rather reluctantly initiating the process of implementation, the new (BJP) party which came to power in mid-2014 has sabotaged the salient provisions of the Act and on the penultimate day of 2014 brought in an ‘Land Acquisition Ordinance’ bypassing the parliament. The reasons are obvious as to why the new dispensation had recourse to such drastic action. The national & international corporate houses which had financed the election campaign of the ruling party are now asking for their pound of flesh, and if the present govt would not oblige them, it could lead to the fall of the govt itself. Hence the compulsion from corporates outweighs the govt’s obligation to the citizens of the country.
At the present moment there is wholesale resistance to this Ordinance at popular level as well as in the legislature. Finally the govt has been forced to appoint a Joint Parliamentary Committee to gauge the mood of the people of the country and the process is on. Thus we see how even when some meaningful steps are taken by the govt, the capitalist ruling class gears itself up to sabotage them.
vi) ‘Owner of the land is also the owner of sub-soil minerals’. The Supreme Court of India in a path-breaking judgment [SC: Civil Appeal No 4549 of 2000] has said “we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process.”
Wolves in Sheep clothing! in the meantime, the rich minerals in their lands are being looted by the govt and private companies. The Supreme Court has declared 214 out of the 219 Coal-Blocks in the country illegal and ordered their closure and levied a fine on them for their illegal mining. But the Central & State Govts have found a way out by re-allotting these illegal mines through auction to make it look legal! Lot of assurance is given that Adivasi land will not be given to industrialists, yet at the same time mines in Scheduled Areas are being allotted to govt and private companies. Cheating game.
May we say that a time will come when the farmer-land owners and Adivasis will be sufficiently awakened and strengthened and will tell the govt/industrialists that they are the natural owners of the minerals in their land and if the govt/industrialists want these minerals they will have to buy it from them. Let us hope that time will come soon.
vii) Mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence. [SC: Criminal Appeal No: 889 of 2007]
The court rejected the doctrine of ‘guilt by association‘. Mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort It is common knowledge that very many young men & women are held in prison on the suspicion of being “helpers of naxalites”. After arresting them other penal clauses are added on. It is an easy label that can be put on any one whom the police want to catch. It does not require any proof or witness. Let us keep in mind that they are not even members of any naxalite outfit. Supreme Court says even membership in a banned organisation does not make a person a criminal. How far removed are the law and order forces from the judiciary!
To conclude, the Adivasi People will reach the end of their patience if this process of their deprivation is not put an end to. A former justice of the Supreme Court recently remarked that India is getting ready for a revolution like the French Revolution. It will be bounden duty of us all, especially the educated middle class, to recognize where truth and humanity lay and fearlessly stand in solidarity with the Adivasi People struggling for justice.