Land and Governance Under the Fifth Schedule

An Overview of the Law

Contents

Preface iii Foreword iv Introduction 01 Part I: The Fifth Schedule and its Provisions 04 The Fifth Schedule in the Constitutional Design 04 Brief Outline of the Fifth Schedule Provisions 12 What are Scheduled Areas? 14 Criteria for Declaring an Area as a Scheduled Area 15 Role of the Governor 17 Role of the Tribes Advisory Council 22 Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 23 Essential Ingredients of the Law 24 The Spirit of PESA 25 Definition of a Village 28 Consultation 29 Minor Minerals 32 Minor Forest Produce 35 Minor Water Bodies 38 Prevention of Land Alienation 41 Control over Institutions, Functionaries and Planning 46 Reservations 48 Additional Powers 50 In Summation 52 Part III: Testing the Law Against Reality 57 Land Alienation and Acquisition 57 Forests 63 Environmental Damage and Destruction of Livelihoods 67 Mining 69 Urbanisation in Scheduled Areas 74 Conclusion 77 Appendices 79 Appendix A: Fifth Schedule to the Constitution of India 80 Appendix B: Notification dated 30.10.2014 issued by Governor of Maharashtra 82 Appendix C: List of State level laws/regulations on prevention of tribal land alienation and its reformation 87 Abbreviations 93 Source: Census of India 2011 Introduction

In Part I of the present compendium, we examine the Fifth Schedule of the Constitution and its various provisions. Article 244 of the Constitution of India read with two Schedules – the Fifth and Sixth Schedules – to the Constitution of India provide special arrangements for areas inhabited by Scheduled Tribes.

A large number of areas predominantly inhabited by Adivasis had been declared to be Excluded/Partially Excluded Areas during the British period. These areas came under the purview of the Scheduled Districts Act of 1874 and the Government of India (Excluded and Partially Excluded Areas) Order 1936. Following Independence, these areas were brought under the Fifth and Sixth Schedules respectively, and referred to as Scheduled Areas. Some other predominantly Adivasi areas were declared to be Scheduled Areas by the President subsequently.

For the purpose of the present document, we will be looking closely at the law relating to Fifth Schedule areas only.

01 Land and Governance under the Fifth Schedule 02 . We shouldjudgeresults, notbystatisticsorthe amountofmoneyspent, 5. We themwith shouldnotover administer theseareas oroverwhelm 4. to We trainandbuildupateam oftheirownpeopleto do shouldtry 3. Tribal to landandforest rights shouldbe respected. 2. People shoulddevelop alongthelineoftheirowngeniusandwe should 1. development asfollows: Nehru,by Sh.Jawaharlal India’sMinister, first Prime enunciated tribal and goodgovernance. to ensure social, ofpeace economicandpoliticaljustice, andpreservation autonomy, thetribal to preserve theirculture andeconomicempowerment, ofScheduledAreas,The purpose asalsorecognised inseveral judgments, is and Tribal Areas”, provides asfollows: 244,containedinPart XoftheConstitution entitled Article Scheduled “The 2 1 The Panchsheel Doctrine, Scheduled Castes andScheduled Tribes. within aConstitution” bylate Dr. B.D. former Sharma, Commissioner for created theFifth Schedulewhichhasfamouslybeencalled “A Constitution Verrier, Elwin, Samatha but by the quality of human character thatis evolved. ofhumancharacter but bythequality to, theirown socialandculturalinstitutions. rivalry ofschemes.a multiplicity We through, shouldratherwork andnotin we shouldavoid introducing too many territory. outsidersinto tribal from outsidewillnodoubt,beneeded, especiallyinthe beginning. But ofadministrationanddevelopment.the work Sometechnical personnel andculture.way theirown traditionalarts avoid imposinganything onthem. toWe encourageinevery shouldtry and Mizoram.” Tribes Meghalaya, inanyStateotherthantheStatesofAssam, Tripura the administration andcontrol AreaandScheduled oftheScheduled “Article 244 vs. State ofAndhra Pradesh A Philosophy ofNEFA, (1)Theprovisions oftheFifth shallapplyto Schedule 1 It is with this object inmindthattheConstitution is with thisobject It 2 asetoffive devised fundamentalprinciples Shillong, 1959,p.62. (1997) 8SCC 191. Introduction 03

rd Amendment to the Constitution. It introduced specific provisions for the It the Constitution. specific provisions Amendment to introduced the country across a fourth as rung in rural areas setting up of Panchayats democracy. of representative In makeIII we Part a brief of how these constitutional and examination some of the key by examining statutory reality, into translate protections and resources the rightschallenges to of tribals their homelands, over the expected whether the legal framework and has provided livelihoods, protections. It is Schedule policy and constitutional is in this Fifth that the approach compendium. in the present examined local self to relating the law compendium, Inof the present II Part primarily panchayats, village through areas, Schedule in Fifth governance of local self governance as an institution have Panchayats is examined. The Constitution parts in many been in existence of India centuries. since in 1993 with the 73 a constitutional status of India the panchayats gave Part I: The Fifth Schedule and its Provisions

The Fifth Schedule in the Constitutional Design

The Preamble to the Constitution of India makes a commitment to ‘Justice social, economic, and political’. The right to life under Article 213 of the Constitution has been interpreted in a catena of judgments to include the right to a life of dignity, which includes therefore a host of other rights which are necessary and important to ensure that this life is holistic and complete. Therefore the right to livelihood,4 the right to shelter,5 the right to a clean environment,6 the right to water,7 and numerous other rights which are of a socio-economic nature, have been held by judicial precedent to be

3 Article 21 of the Constitution of India states: “21. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law.” 4 Olga Tellis vs. Bombay Municipal Corporation (1985) 3 SCC 545, Narendra Kumar vs. State of Haryana (1994) 4 SCC 460, State of Himachal Pradesh v. Raja Mahendra Pal (1999) 4 SCC 43. 5 Shantistar Builders v. Narayan Khimlal Toame (1990) 1 SCC 520. 6 N.D. Jayal v. Union of India (2004) 9 SCC 362, 382. 7 B.L. Wadhera vs. Union of India (1996) 2 SCC 594.

04 Part I: The Fifth Schedule and its Provisions 05

(1973) Article 14 Minerva Mills Ltd vs. (prohibition of (prohibition Article 16

8 9 Keshavananda Bharati v. St of Kerala v. Bharati Keshavananda which prohibits discrimination which prohibits Article 15 (1980) 3 SCC 625. (1980) 3 SCC UOI Article states: 15(4) of the Constitution or for the classes of citizens backward of any socially and educationally for the advancement provision Scheduled and the Scheduled Castes Tribes.” The principle of basic structure has been articulated in See also thereafter. judicial precedents numerous in 225, and reiterated 4 SCC discrimination in public employment includes reservations for ‘backward discrimination in public employment includes reservations for in this article “(4) Nothing clause (2) of article or in making the State from any special 29 shall prevent 9 8 by the state of any citizen on grounds of religion, race, caste, sex, place of caste, race, of religion, on grounds citizen of any by the state The Article formbirth, insists on affirmative of in the action, of them. any or and educationally backward classes of citizens ‘socially for special provisions as a part of this right. Tribes’, Scheduled or for Not surprisingly, the Fundamental Rights Chapter of the Constitution Rightsof the Constitution Chapter the Fundamental Not surprisingly, details the concept of equality III) (Part at some length. of the equal protection and law the right equality to before recognises as well citizens that is, all persons, and makes to law the same available judicial as numerous as well provisions The Constitutional as non-citizens. has been equality approach ‘formal’ firmly a mere establish that precedents completely be that to clearly the Constitution recognises Instead, rejected. and equality be adopted, to has to approach ‘substantive’ a meaningful, the historical discrimination of certain and classes must groups therefore must be taken steps to but concrete by the state, not only be abjured such historical consequences of discrimination. It the present reverse is real can equality in a or affirmative approach only with such a substantive sense be achieved. the recognises the Constitution In Equality, keeping to with this approach right against discrimination in part right fundamental of the Article under the Constitution At its core, 21. the of equality the concept before to bears a commitment of all citizens the when it commits to itself outset in the Preamble at the as stated law, part as a core of the aspiration and opportunity’ of status ‘equality vision of rightThe fundamental equality to has been independent state. of a newly and therefore of the Constitution ‘basic structure’ be partheld to of the amendment. by constitutional even unalterable Land and Governance under the Fifth Schedule 06 are theconceptof understood to articulate ‘distributive justice’: amongthese are provisions two 21.Key which underArticle and dignity numerous judgments inform to hasheldthattheseprinciples life theright asunderstood to intheConstitution. equality right in The Supreme Court the also containseveral provisions whichdirectly and indirectlyimpart Similarly, the “Directive Principles ofState Policy” (Part IVoftheConstitution) approach.pro-active areas where theConstitution requires thestate anaffirmativeand to take 17 Article class ofcitizens’ inpromotions for andreservations Scheduled Tribes), and 10 particular. Therefore, theconstitutionalprovisions relating to Scheduled with regard to marginalised peoplesingeneral, andScheduled Tribes in economic inequalities, hasinformed theentire constitutionaldispensation future, withacore commitment to distributive justiceandthereduction of wrongs inorder to achieve substantive equality, inthepresent andthe This approach to equality, whichrecognises historical theneedto correct forms ofexploitation. Scheduled Tribes, andalsoto protect themfrom socialinjusticeandall the education andeconomicinterests sections,inparticular ofweaker addition, In Safai Karamchari Andolan &Ors. vs. KaramchariSafai Andolan UnionofIndia&Ors. Article 38 Article economic system,andsoon. material resources, minimisationofconcentration ofwealth inthe respect toadequatemeansoflivelihood, ownership andcontrol of towards whathascome as‘distributive tobeknown justice’, with 39 Article amongst groups ofpeople; income andeliminate inequalitiesinstatusamongindividualsand tominimiseinequalitiesin of thenationallife” andinparticular justice, social, economic andpolitical, shallinformalltheinstitutions (prohibition inany ofuntouchability form) are instancesofspecific Article 46 Article places a duty onthestateto“secureplaces aduty asocialorder inwhich contains critical obligationsonthestate to direct itspolicy 10 contains anobligationonthestate to promote the (2014)11SCC 224. Part I: The Fifth Schedule and its Provisions 07 (see Box 1 ahead). (see Box

11 must always be placed be placed always must Fifth Schedule Fifth and the and Samatha vs. State of Andhra Pradesh of Andhra State Samatha vs. Article 244 (1997) 8 SCC 191. (1997) 8 SCC The Court in a mining lease, of a was askedgrant rule on whether the to alienation a non-tribal preventing to was in violation of laws Scheduled Area Pradesh for the case was the Andhra specific contextThe lands. of Adivasi Regulation 1 of 1970, which explicitly Transfer Land Scheduled Areas anyone lands to transferring from Scheduled Area person in a any prohibits is that all land of the regulation The premise Tribe. other than a Scheduled not only land; hence, been Adivasi have to is presumed in Scheduled Area land but any the hands of non-Adivasis, should no land now pass into come back to if being transferred, owned by non-tribal should, presently the Court whether was The question before Tribes. the hands of Scheduled a non-tribal of a mining lease on government land to violated the grant this principle. Regulation and on the specific clauses of the The Court purely did not rely that land in Scheduled itself requires that the Constitution held instead culture preserve to their autonomy, with the Adivasis should remain Areas in ‘expansively’ should be interpreted hence, The Regulation, and society. fulfill this mandate. to order 11 within this larger constitutional perspective, before undertaking before perspective, constitutional larger within this any read When fact a specific to situation or issue. textual regard analysis with a distinct dispensation create provisions these constitutional together, the through as such recognised been tribal have homelands which for that tribal or on the recognition based of scheduling of such areas, process of people from at the hands historically suffered have indigenous peoples at a special protections and require including the colonisers, ‘mainland’, the not repeated, are that these historical wrongs ensure to constitutional level reversed. and are to special constitutional protections to This aspect relating of the law has also seen some important and Scheduled Areas Tribes Scheduled on the subject A leading decision by the was passed developments. CourtSupreme in Tribes under under Tribes Land and Governance under the Fifth Schedule 08 12 Surviving A Minefield: An Adivasi AMinefield: Surviving Triumph, f) The court felt ofAndhra that,ifnecessary, the ChiefSecretary Thecourt f) e) The Court recognised the73 The Court e) uponlyby inscheduledarea canbetaken activity Mining d) Governmentcannotleaseoutlandsinscheduledareas for c) asnonsettlementoflandsinreserve Thisissuewhichstarted b) Governmentlands, forest landsinthescheduled landsandtribal a) The highlights it is feasible to permit the industry to carry onmining operations. to carry it isfeasible theindustry to permit to have information collected, thefactual andconsiderwhether (Forest), Secretary (Social Secretary Welfare) (Industry), Secretary Pradesh shouldconstitute acommittee consistingofhimself, togovernance tribals; and thereby reiterated theneedto give ofself theright competent to safeguard resources community andpreserve Scheduled Areas) bystatingthat theGramSabhasshallbe Act andtheAndhraPradeshAct Panchayati to (Extension Raj Protection Act, 1986 with the cooperative oftribals, andthenonlyiftheyare incompliance Andhra Pradesh or Corporation Development State Mineral Fifth Scheduleoftheconstitution; asitisincontraventionmining operationsto nontribals ofthe enclosure landsbelonging people; to tribal to grant hasnoright that government miningleasesinthese inoccupationoftheselands.deeds to tribals stated The Court theStateby directing to government immediately issuetitle forest enclosures panchayat wasaddressed inBorra bytheCourt area orto cannotbeleasedoutto industries; private nontribals Box Judgment:Highlights 1:Samatha Forest Conservation Act, 1980 12 oftheSamatajudgment are: ; Samata,Hyderabad, April, 2000. rd Constitution Amendment and the Environment Contd... Part I: The Fifth Schedule and its Provisions 09

If the committee so opines, the matter may be placed before a be placed before may the matter If opines, so the committee Cabinet Sub-Committee Industries, of Minster consisting for whether licences examine the issue to Welfare Tribal and Forest prohibit expedient to or whether continue, to could be allowed further mining operations; mining leases on the lands in scheduled of grant prohibit Cabinet Sub and State Secretaries of similar committee areas, and decision taken thereafter. should be constituted, Committees be obligatory it would the State leases, for granting Before government Central of the obtain concurrence government to by constituting a sub-committee Minister, headed by the Prime and other union ministers; and concerned to of chief ministers union ministers conference take a policy bring as to decision so about a suitable enactment the country throughout scheme, a consistent of in respect for tribal lands and exploitation of mineral wealth. Areas. mining operations in Scheduled industries from g) which do not totally similar Acts in other States In are case there h) a constitute to be appropriate The Court that it would also felt i) all stop to directed therefore, government was, The State The court protect is enjoined to opined that since the Executive when of the tribals, interests economic and educational social, non tribals to or areas leases out lands in scheduled the state it transmits of mineral resources, exploitation industries for to constitutional duties and obligation correlative the above CourtThe those who undertake exploit the natural resources. to apart should be set at least 20% of the net profits that directed as partas a permanent fund, for industrial/business of activity, schools, resources, of water establishment and maintenance and transport sanitation, hospitals, roads, facilities by laying for not include the expenditure This 20% allocation would etc. of the ecology. and maintenance reforestation Land and Governance under the Fifth Schedule 10 at alllevels intheScheduledAreas for Scheduled Tribes. ofPanchayatsand alsoprovides ofallpostsChairperson for reservation formandates Scheduled reservations Tribes atalllevels inthePanchayats, provisions relating key to to equality. theright certain Therefore, thestatute ofthePanchayatiextension rajsystem to ScheduledAreas, italsocontains focus ofthisCentral legislation specialprovisions isto make relating to the The Panchayats Act Areas) 1996. (ExtensiontoScheduled withtheConstitutional theminconformity amended to mandate bring and whichhavelegislations been onpanchayati rajorlocalself-governance Part IIofthepresentIn compendium,we willexaminesomeoftheState independence, agamutofmarginalised concerning groups andpeople. protective legislations andimplemented enacted inthe60years ofIndia’s The substantive approach hasalsoinformed to numerous equality survival and preservation of the integrity and dignity oftribals. anddignity oftheintegrity andpreservation survival onthestate positive to measures andstern constitutional duty take for the provision, statingasfollows: ofthis rejected thechallengeandupheldconstitutionalvalidity Court 14. ground underArticle to that itviolates equality theright The Supreme inabatch onthe ofpetitionsfrom ofIndia, theState ofJharkhand, Court matter ofaconstitutionalchallengeintheSupremewas thesubject 16 15 14 13 14and19(1)(g). fundamental rights, suchasArticle cannot beheldto beunconstitutionalontheground ofviolationother from socialinjusticeandexploitation. Therefore, thesespeciallegislations 46,to protect tribals 15(4)andArticle ofArticle designed, infurtherance havewas challenged, heldthattheFifth theCourts Schedulehasbeen which prohibit/restrict thetransfer inScheduledAreas oflandby tribals numerous caseswhereoflandlegislationsIn theconstitutionalvalidity

was donesoonthereafter. to thePanchayatiCommission elections to conduct aspossible, rajinstitutionsas early which the above judgment to alsoissuedadirection theState andtheState government Election sincetheformation oftheState in2000.As aresult in held inJharkhand theSupreme Court to ofthisconstitutional challenge, Panchayati elections pendency institutionshadnotbeen Raj Union ofIndiaetc. vs. etc. Rakesh Kumar&Ors forshall bereserved theScheduled Tribes. The proviso ofPanchayats 4(g)ofPESAstates to thattheseatofChairperson Section atalllevels Lingappa Pochanna Appelwar vs. StateofMaharashtra “All citizens have therighttopractise anyprofession, onanyoccupation, ortocarry trade orbusiness.” states: P. RamiReddyvs. StateofAndhra Pradesh 16 (1988) 3 SCC 433. Article 19(1)(g)oftheConstitution (1988)3SCC 433.Article (2010)4SCC 50.Significantly, asa result ofthe (1985)1SCC 479. 13 There is, therefore, a While the primary While theprimary 15 This provision This 14

Part I: The Fifth Schedule and its Provisions 11 17 (hereafter ‘the Forest Rights Act’) ‘theits which in Forest (hereafter ‘And whereas the forest rights on ancestral lands and their habitat rights on ancestral the forest whereas ‘And of State Forests in the consolidation not adequately recognised were in as in independent India resulting period as well during the colonial and other Scheduled dwelling Tribes to the forest injustice historical very to the fore survival and integral who are dweller forest traditional sustainability ecosystem.’ of the forest Scheduled Tribes and Other Traditional Forest Dwellers (Recognition Dwellers (Recognition Forest and Other Traditional Scheduled Tribes at para 34 and 37. to safeguard the interests of tribal communities, with immediate effect, with immediate effect, of tribal communities, interests the to safeguard self-government. The Bhuria in local voice effective giving them an by Scheduled Reportby Committee faced the problems had clearly outlined which decentralisation the importance and urged of democratic Tribes, interests. their own them to protect empower would in the present as ‘proportionate representation’ as well representation’, where found that even in the areas it was necessary because was This case. in under-represented they are majority, in a relative are Scheduled Tribes Even to exploitation. machinery vulnerable the government and hence held public persons belonging to the Scheduled where Tribes in areas possibility it is a distinct positions, will come that the non-tribal population position of the weaker Scheduled relatively The to dominate the affairs. such as land-grabbing by problems is also manifested through Tribes as governmental as well of private on account displacement non-tribals, resources. of environmental developmental activities and the destruction thought it fit to depart the legislature to tackleIn order such social realities, it is not our job In this sense, the norm of ‘proportional representation’. from to second-guess policy choices….’ Ibid 17 Preamble states: Preamble The most recent legislation which illustrates this approach to equality equality to this approach which illustrates legislation The most recent is the of Rights) 2006 Act, need is a compelling of Scheduled there the context in Areas, ‘…Especially basis for departing the norms of ‘adequate a rational from is of course There Land and Governance under the Fifth Schedule 12 view that: in forest areas for are diverted non-forest purposes. wasofthe The Court require decisionof theGramSabhabefore prior theirtraditionalhabitats Forest circulars government andvarious Act issuedunderitwhich Rights detailed analysis(for ofthe Fifth full text Schedule, see Schedule, onlyseven whichcomprises paragraphs, before amore making provisionskey ofthe examinesomeofthe willbeusefulto briefly It Fifth examined inthepresent document. thattheFifth iswithinthisconstitutional framework ScheduleisIt held upfor scrutiny bytheaforesaid judgment andtheConstitution. paradigm thefew whichenriches atthecostofmany, hasitself been to obstruction key ‘development’. Never mindthatsuchadevelopment andforestconsultation andconsentofthetribal dwelling peoplesisa interest bycorporate of intense criticism groups which believe that the GramSabhahasbecomeapoliticalhotpotato, and isasubject byNot surprisingly, informed theissueofprior decision-making Niyamgiri case recently. benchinthe adetailedjudgment passedbyathree-judges In scheme undertheForest wasconsidered Act bytheSupreme Rights Court The constitutionalschemerelating to ScheduledAreas andthestatutory 19 18 Ibid Corporation Mining ofEnvironmentOrissa andForests vs. Ministry relationship withtheentire ecosystem.” stake totheSTs dwelling intheforests forgenerations insymbiotic strengthening theentire conservation regime by givingapermanent communities whoserighttolifedependsonforests andthereby genuine feltneedofgranting asecure andinalienablerighttothose measures. TheLegislature alsohasaddressed thelongstandingand intheirconservation andregenerationif communities participate late, we have“Of realised thatforests have thebestchance tosurvive Brief outlineoftheFifth provisions Schedule atpara42. , 18 the Court unambiguouslyupheldtheprovisions ofthe theCourt 19 (2013)6SCC 476. Appendix A.)

Part I: The Fifth Schedule and its Provisions 13 subject matters, even those even subject matters, ALL AIR 1983 Patna 151 @ para 18, 46. AIR 1983 Patna while stating what Scheduled Areas are, further are, Areas what Scheduled while stating In Scheduled Areas, however, the executive power power the executive however, In Scheduled Areas, 20 21 interprets the expression “State” for the purposes the of this for “State” expression the interprets

provides for the setting up of a Tribes Advisory (or Council Tribes the setting up of a for provides requires the Governor of the State, who as we shall see below shall see as we who the Governor the State, of requires Paragraph 2, Paragraph (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend to (a) power the executive of this Constitution, (1) Subject to the provisions all matters with respect to which Parliament has power to make laws…” to make has power to which Parliament all matters with respect Amarendra Nath Dutta vs. State of Bihar Nath Dutta vs. Amarendra See Article which states: 73(1)(a) of the Constitution,

which are within the domain of the State government. government. within the domain of the State which are 4 Paragraph and Scheduled Areas, are there where be set up in each State to ‘TAC’) advice on give tribalto population, with a significant also in those States Tribes advancement of the Scheduled and the welfare to relating matters in these States. of the Central government extends of the Central to “ 21 20 provides that subject to the provisions of the Schedule, executive power power executive Schedule, of the that subject the provisions provides to This in such State. located extends Areas the Scheduled of the State to control’ and ‘administration makes of provision it clear that the power whether if any, doubts, removing extends these areas, of the state to authority and subject the overarching of the state are to these areas It its machinery. held by the courts has been of that the power enough to in this clause is wide to referred and control’ ‘administration of every power of governmental descriptionembrace exercise – executive, and judicial. legislative 3 Paragraph or make to a report powers, annually, with enormous legislative is vested regarding of India, the President to do so by the President to when required ItArea. the administration of the Scheduled further that the provides of government will extend the giving of the Central to power Executive the administration of these areas. government for State the directions to the non- as it makes from is significant, a sharp divergence This provision extends only of the Centre power the executive where Scheduled Areas domain under insofar as the subjectfall within its legislative which matters Schedule. the Seventh Paragraph 1 Paragraph Schedule. Land and Governance under the Fifth Schedule 14 construed to be an amendment to the Constitution under Article 368. construed to beanamendment to theConstitution underArticle altered, orrepealed byParliament, andnosuchamendmentwillbe Paragraph 7 this Paragraph. such area, increase oralter sucharea, andrescind any order madeunder President, by Order, andprovides thathemay, byorder, cesser of direct Paragraph 6 assent ofthePresident. Tribes, regulate allotmentofland, andalsomoney-lending, to the subject orprohibitto restrict transfer oflandbyoramongmembersScheduled Presidential Order underParagraph 6(1)oftheFifth Schedule, whichstates: The term “Scheduled Areas” are thosethatare scheduled assuchbya Fifth Schedule. from the ofIndia which willinclude, orexclude, oftheterritory any part by way ofaPresidential Order any dulynotified, alteration whocan make With regard to ScheduledAreas, however, itisonlythePresident ofIndia, amendmentsfrommake timeto time. initial notificationsin1950,the Constitution empowers the to Parliament Presidential 341and342,where, Orders subsequentto underArticles the level thanthedeclarationofScheduled Tribes andScheduledCastes by provided Schedule, inparagraph 6ofthefifth isplaced ataneven higher be pointed outthatthecreation orcessationofScheduledAreas, as such byaPresidential may 342oftheConstitution. It Order underArticle that iswell known It “Scheduled Tribes” are thosethatare scheduledas see exceptions andmodifications. (For a recent exampleofsucha regulation, shall notapplyto theScheduledArea ofthatstate, to orshallapplysubject of Act notification, thatany oroftheState particular Parliament Legislature Under Box 2. What are Areas? Scheduled Paragraph 5 areas asthePresident mayby order Areas”. declare tobeScheduled “In thisConstitution, the expression ‘Scheduled Areas’meanssuch ) Paragraph 5alsoempowers Regulations theGovernorto make states thatprovisions intheFifth Schedulemay beamended, definestheScheduledAreas asmay bedeclared, bythe the Governor hasbeenempowered theGovernor to bypublic direct, Part I: The Fifth Schedule and its Provisions 15 22 Criteria for declaring an area as a Scheduled Area declaring an area for Criteria Preponderance of tribal population, which should not be less than of tribal should not be less than population, which Preponderance 50 percent; (2003) (Thirteenth Sabha). Lok

ReportUrban on in the Fiftieth and Rural Development of the Standing Committee cited As 22 The First Scheduled Areas and Scheduled Tribes Commission, also known Commission, Tribes and Scheduled Scheduled Areas The First criteria for (1960-61) laid down the following as the Dhebar Commission Schedule: under the Fifth ‘Scheduled Area’ as a area declaring any This is an important fact to remember while addressing legal arguments an importantThis is arguments legal while addressing fact remember to and making to in a court legal submissions relating environment, Tribes. Scheduled including and backward classes, marginalised non-compliance, to with a case relating while arguing instance, For when declaring a municipality in a Scheduled safeguards, procedural “Scheduled accept that himself unable to a judicial officer found Area, as such declared areas is a term only to which applies solely and Area” the view that a Scheduled Area He was of 6 above. under paragraph level or State as such under a Central declared an area to could refer of demarcation where legislation, taxation or land reform economic, of lands is often classes the made under the Schedules of different Itconcerned statute. the reality of such is important to alive remain to rights under the that while urging and ensure possible conundrums, the basic underlying principles Schedule, and legal provisions Fifth categorically stated. upon are relied of the creation for constitutional design the 6 provides Paragraph making it veryScheduled Areas, kind clear that any of of alteration cessation, decrease, whether it is increase, boundaries of a Scheduled Area, The of India. of the President or declaration, is only permitted order by an of Ministers by the aid and advice of the Council is bound at the President In certain Centre. the Governor is necessary, consultation with situations, is at categorical power that the location of this is quite but the provision and then at the highest level. the Centre,  Land and Governance under the Fifth Schedule 16 More recently, blockor suchasadistrict, aviableadministrative entity    has been also identified as an important additionalcriteria. has beenalsoidentifiedasanimportant notification have beenignored tilldate. (MADA) areas, aswell assimilarpockets, undertheScheduledAreas Area andModified Approach Development Tribal (TSP) Sub-Plan Government-appointedvarious Committees to include the remaining been brought undertheFifth Schedule. Recommendationsof orSixth WestNadu, Karnataka, Bengal, have Pradesh Uttar andJammu&Kashmir habitationsinthestates ofKerala, population.Notribal the tribal Tamil point out,however, thatatpresent ScheduledAreas cover only30%of 25 24 23 population. a substantialconcentrationoftribal from theprovisions oftheConstitution, itisthattheareas shouldhave regarding theareas to beincludedintheFifth Schedulecanbededuced thatifany guidelines Courts hasbeenheldbyoneoftheHigh It Scheduled Areas andScheduled Tribes Commission 1961.’ Areas SubCommittee ofConstituent Assembly andthose outlinedbythe in Schedule`B’ ofrecommendations oftheExcluded andPartially Excluded Areas’ 1935,aswell Act, asthosecontained undertheGovernmentofIndia followedthe principles the`Excluded’ indeclaring and`Partially-Excluded buthavethe Constitution becomewell ofIndia established. They embody of According toTribal theMinistry Affairs, are ‘(t)hesecriteria notspeltoutin 26 See, for instance, the of Tribal 2013-14,Ministry India. AnnualReport Affairs, Government of

1994 (Bhuria Committee1994 (Bhuria Report). the lawforextendingprovisions oftheConstitution Areas, (73rd)Act, Amendment 1992toScheduled President is notultravires. statingthattheexercisethe challengewasrejected bythePatna Court, ofpower bythe High ofthe ScheduledAreas inBiharwaschallenged, and DhalbhumSubDivision aspart declaring Amarendra vs. NathDutta StateofBihar for Scheduled Tribes 2012. May GoodGovernance forTribalSpecial Report: andAdministration Development to the neighboring areas.to theneighboring intheeconomicstandard ofthepeople, disparity ascompared Marked Underdeveloped nature ofthearea; and andreasonableCompactness size ofthearea; Report of MPs and Experts tomake recommendations ofMPs onthesalientfeatures andExperts of Report AIR 1983Patna this casethePresidential 151.In Order 26 Several States have continued 25 It is important to is important It , NationalCommission 24 23 taluk , Part I: The Fifth Schedule and its Provisions 17 , Economic

27 , 2003. th Muthanga: The Real Story- Adivasi Movement to Recover Land to Recover Movement Muthanga: The Real Story- Adivasi

28 Role of the Governor of India. and Political Weekly May 17 Weekly and Political Bijoy CR, K Ravi Raman, Government Commission, para 24.133, Planning III- Social Sectors, Volume Plan, Year Five Twelfth Allocation of resources for the administration of special schemes and of special the administration for of resources Allocation (or Plan Sub Tribal the is done through Scheduled Areas budgets for to ensure TSP was conceived Plan, the Year ‘TSP’). Five Started fifth in the areas in Tribes Scheduled for of funds on projects expenditure coordinated certain that it was found At that time, areas majority. the they are where of tribal population preponderance also have Areas besides Scheduled Sub-Plan Tribal the At present, TSP. also included in the and these were Gujarat, of Bihar, in the States coterminous with Scheduled Areas are areas Maharashtra, Odisha and Rajasthan. Pradesh, Madhya Himachal Pradesh, ‘Special as was provided 2,872.10 crore Rs. Plan, Year In Five the Eleventh Tribal on expenditure governments for State/UT to Assistance’ Central document, about Plan Twelfth the to and according activities, Sub Plan the poverty above cross to assisted line during the previous were 15 lakh STs plan period. 27 28 In the constitutional design, just as the President is the head of the In just as the President the constitutional design, in a executive the Governor is the head of state at the Centre, Executive government, and under by the Central government. He is appointed State Article exercise the Governor is bound to ordinarily 163 of the Constitution, the i.e. of Ministers, Council of the and advice’ ‘aid with the his/her powers government. Cabinet of the elected State is there Schedule, under the Fifth powers exercising while However, powers as litigation on whether or not the as well considerable debate Schedule can be exercised the Fifth upon the Governor by conferred in government, and whether he is, without explicit sanction the State from to witness struggles spanning decades demanding the inclusion of of the inclusion demanding decades spanning struggles witness to these being the among prominent Schedule, in the Fifth tribalareas struggle in Kerala,Muthanga till today. which continues Land and Governance under the Fifth Schedule 18 application to ScheduledAreas. repeal any Central orState legislation for withregard thispurpose to its stated thattheGovernor, suchregulations, whilemaking canamendor State andConcurrent isfurther ListscontainedintheSeventh Schedule. It thesegregation matters theCentral,notwithstanding between ofsubject matters to whichcouldconceivablybesodescribed, allsubject extends therefore, thepower regulations to for make ‘peace andgoodgovernment’ inheres “notwithstanding anything containedinthisConstitution.” Clearly, matter covered,of thesubject stated itisalsocategorically thatthispower adoptedand theterminology bytheConstitution isnotonlywideinterms and goodgovernment’ ofaScheduledArea. This power isgeneralinnature, Paragraph 5(2)empowers Regulationsfor theGovernorto make the ‘peace amend theselaws. the power exceptions to andmodificationsincludesthepower make to that hasbeen heldbytheSupremeIt exceptions andmodifications.Court legislation to theScheduledArea, eithercompletely, to orsubject thepowerGovernor theapplicationofany to restrict Central orState Paragraph oftheFifth Schedule, 5(1),whichliesattheheart gives the him whencalleduponby him,never onitsown. ofthe functioning Tribes Council (TAC). Advisory The TAC renders adviceto with regard to thenumberofmembers, modeofappointment,and under theFifth Schedule. powers UnderParagraph 4,hehasrule-making Be thatasitmay, theGovernor hasbeenvested powers withenormous aswell.from theCourts exercise independently. thefunction This positionhasreceived affirmation andmust is notboundbytheaidandadviceofCouncil ofMinisters that theGovernor, whileexercising hispowers undertheFifth Schedule, hasbeenargued boundbytheadviceofCentral It Government. fact, 30 29

Edwingson Bareh vs. StateofAssam 23 of 2012, Bilaspur High Court. 23 of2012,BilaspurHigh BK Manish&Ors. vs. StateofChhattisgarh&Ors. judgment 30 29 (1966) 2SCR770. and order dt.12 th March 2013in WP (PIL) Part I: The Fifth Schedule and its Provisions 19

31 Accessible at Accessible Unsurprisingly, Unsurprisingly, 32 (undated). “Tribal People and Forests” and Forests” People “Tribal Scheduled Tribes – almost everycertainly and in the country, State Tribes Scheduled to relating enacted legislations have Areas, with Scheduled all States by tribals to Areas in Scheduled of land transfer prevention/prohibition of land between tribals the transfer even and in some cases, non-tribals, is restricted. inter-se the mandatory Even tribal people. annual Reports by the Governors to under the administration of Scheduled Areas regarding the President stale They comprise largely irregular. Schedule are 3 of the Fifth Para the an allusion to of departmentalnarrative even without programmes Schedule.’ thrust of the Fifth crucial issues in administration, the main http://www.odi.org.uk/projects/00-03-livelihood-options/forum/sched-areas/about/bhuria_ report.htm Report of the law for extending and Experts on the salient features of MPs recommendations to make 1992 to Scheduled Amendment 1994, p.14. Act, (73rd) Areas, of the Constitution provisions R.K., Rao, & S.R. Sankaran, IFS (Retd) IAS (Retd) In an article entitled ‘Tribal People and Forests’, Rao and Sankaran have and Forests’, ‘Tribal People In an article entitled dwelling against forest legislation the abuse of forest that given argued obstruct to the application of of States Governors is a need for there tribals, of 1988, Policy Conservation Forest Act, 1980, and its attendant the Forest civil servants, called retired themselves authors, The Scheduled Areas. to concerned 5 by the Governors issue of notifications under paragraph for declaring Scheduled Areas. FCA shall not apply to that the 32 31 Specifically, this paragraph empowers the Governor to make regulations regulations maketo Governor the empowers paragraph this Specifically, to: with regard (i) and between land from of and restriction of transfer Prohibition (ii) tribals Regulation of allotment of land to in Scheduled Areas; (iii) tribals. to Areas of moneylending in Scheduled Regulation prior consultation the Governor require 5 by made under paragraph Laws is necessary be them to for and the assent of the President TAC, with the force. into brought an official As In part, use their powers. large failed to the Governors have found: committee ‘The on their part, of the Governors, oblivious about the state remained Land and Governance under the Fifth Schedule 20 the Forest of2006. Act Rights over forest lands, whichresulted bothinScheduledAreas in and otherwise, affirmative legislation recognising rightsof the forest dwelling communities to accelerate itslongstandingdemandformovement an inthecountry rights to galvanisethetribal based ontheconstitutionaldesign served ofthisidea (seeBoxextent 2below andAppendixB).Butthearticulation to thisforward some whichtakes ofMaharashtra, issued bytheGovernor this demandhaslongremained unaddressed, untiltherecent notification 33 Notification dated 30 dated Notification Regulation isplacedinAppendixB. Maharashtra. Acopyofthe of Office ofthe Governor Notification-4/1120/2014, issuedbythe   in theirapplicationto ScheduledAreas intheState, namely: the following Central andState legislations ormodified wasrestricted Maharashtra inpassingaRegulation Maharashtra wereConstitution ofIndia recently exercised of bytheGovernor The powers underParagraph 5(1)oftheFifth Scheduleto the

this provision sothat,incaseofaminorwater bodyinScheduled be followed for this purpose. Regulationmodifies The Maharashtra provides forinto theprocedure further awater bodyorland. to It thereof,addition/extension to discharge whichislikely effluent industry, operation,process, treatment ordisposalsystem, or of theState Pollution andControl Board before settingupany the toWater obtaintheprevious consent itmandatory makes Act Water (Prevention andControl ofPollution) Act, 1974: and theGramSabha,oraCommittee thereof. produce bythePanchayat shallbetaken attheappropriate level that decisionsregarding andsaleofminorforest transit,collection Indian Forest Act, 1927: Box 2:Regulation for Areas Scheduled inMaharashtra th October 2014 bearing No. 2014bearing October RB/TC/e-11019(89)(2013)/ This statute has beenmodified provideto 33 underwhichtheoperationof Section 25of Section Contd... Part I: The Fifth Schedule and its Provisions 21 Provisions of this Act Provisions It that prior to is provided This statute has been modified to the has been modified This statute

informed consent of the concerned Gram Panchayat before before concerned consent of the Panchayat Gram informed Section under this approval It 25. providing is further provided SPCB that a the to a resolution a Gram Sabha sends that where conduct it shall investigations is being polluted, body minor water actionand take within one month. remedial nge, as social justice legislations with affirmative provisions often are, are, often provisions with affirmative social justice legislations as nge, Markets and Fairs Act, 1862: Act, and Fairs Markets extent that prior informed consent of Gram Sabhas and Panchayats extent of Gram Sabhas and Panchayats consent that prior informed markets establishing before is required level at the appropriate and fairs under the Act. 1959: Act, Village Panchayats Maharashtra have been modified to bring some of the above amendments into to bringamendments into been modified of the above some have to include fishing bodies also and effect, activities in minor water In under the purview addition, provision of the Gram Panchayat. in Gram Panchayats for a proportionate share has been made for funds. Sub Plan Tribal the 1966: Code, Land Revenue Maharashtra licence or mining lease or auction of prospecting the grant of the consent of the Gram Sabha minor minerals in Scheduled Areas, shall be mandatory. level at appropriate or Panchayat

obtain the prior must Board Control Pollution the State Areas,   

The constitutional validity has often come under of these legislations challe rights of violation of fundamental equality to (Articleon the grounds 14), right (Article and livelihood 21), and right carry life to to business on profession, rejected firmly by been These challenges have or trade (Article 19(1)(g)). or regulating that laws laid down today well the Courts, is quite and the law A key area in which laws/regulations applicable to Scheduled Areas Scheduled Areas applicable to A key in which laws/regulations area is land alienation by tribalsof and been made under this paragraph have such Intribal where lands. fact, with Scheduled Areas it is not just States in the country States but almost all been enacted, have which have laws on the subject legislations see level a list of State For tribal populations. Appendix C. Land and Governance under the Fifth Schedule 22 para 4(3).Recently, the lack-lustre. ofthismalaisemay lieintheRulesframedunder Somepart Unfortunately, the Tribes Councils ofmostStates have Advisory beenquite process inasubstantialway.and mustinform thedecision-making judgments,numerous any Court suchconsultation mustbemeaningful requires a ‘consultation’ ratherthanconsent, butashasbeenheldin transfer, andcontrol ofmoney-lending(seepara5(5)).Again, theprovision to governanceintheScheduledAreas, includinglandalienation, for theGovernor to consultthe TAC before any Regulationsrelating making Such adviceisnotbindingupontheGovernor. is, however, It compulsory bysuo motu, himto butonlywhenasked doso. Tribes” intheState. Thus, the TAC doesnotrender adviceto theGovernor he seeksit,onmatters relating to “welfare andadvancementofScheduled ofthe The mainfunction TAC isto provide adviceto theGovernor, when Tribal communities. twenty, then theremaining seatscanbefilledwithothermembers ofthe Legislature. Further, representatives ifthenumberofelected islessthan representativeselected oftheScheduled Tribe communitiesintheState mustbedrawn from members, the ofwhomatleastthree-fourths twenty populations, ifthePresident sodirects. The TAC shouldhave notmore than Such TAC canalsobeconstituted inotherStates whichhave large tribal Council (or Advisory ‘TAC’) ineachState whichhasaScheduledArea. Paragraph 4oftheFifth Schedulerequires theconstitutionofa Tribes by theFifth 15(4),amongothers. Scheduleaswell asbyArticle prohibiting transfer areas oflandintribal andScheduledAreas, are protected 34 of the the Chairperson TAC. was mere andthat theChiefMinister 5 members (outofatotal oftwenty) grounds thatthequorumfor ofchallengewasthefact ameetingwas Oneofthe petitionbeforechallenged inawrit Court. theBilaspur High The challenge was unsuccessful and the writ petition came to be dismissed by the High Court. Court. petitioncameto bedismissedby Thechallengewas unsuccessfulandthewrit theHigh Supra Role ofthe Tribes Council Advisory n.29. Chhattisgarh Tribes Council Rules, Advisory 2006 34

were were Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996

Part IX of the Constitution contains a large number of provisions relating to the definition and constitution of Panchayats, Gram Sabhas, their powers and functions, and elections. Article 243-M of the said chapter, however, provides that where Scheduled Areas are concerned, provisions of this Chapter will not apply unless a special law is enacted by Parliament making such exceptions and modifications as necessary. This provision is based on the understanding that with regard to Scheduled Areas, a special constitutional dispensation is in place under Article 244 read with the Fifth Schedule. Therefore governance mechanisms which may be appropriate for the rest of the country ought not to be applied to such areas without necessary changes in order to bring them in conformity with the constitutional design.

This means that provisions in Part IX of the Constitution, and the existing Panchayat legislations in different States, cannot be applied to Scheduled Areas until a special law is enacted by Parliament laying down the

23 Land and Governance under the Fifth Schedule 24 the spirit andtheletter ofPESA. the spirit Therefore, whileexaminingthedifferent amendments/ laws attheState enacted level conform mustnecessarily to content ofthelaw, 243-MoftheConstitution, the of Article interms panchayati rajlegislations. However, sincePESA definesthesubstantive with theprovisions outinthe State level ofPESAneedto becarried changesinaccordance Thus, for ofimplementation,necessary thepurpose panchayati rajinstitutionsrests solelyintheState Legislatures. administration Seventh Scheduleto theConstitution, localselfgovernment andvillage 5ofListIIthe isthatunderEntry factor The secondimportant is capableofbeingimplemented. law, whichare enforceableoflaw, incourts initselfitisnotastatute which provisionscrucial principles, ofthe aswell bothintheactual asinthespirit Two require aspects attention attheoutset.First, whilePESAcontains the Parliament. required state to legislation enact withinayear ofthepassagePESAin Areas.raj institutionsto Scheduled The States having Scheduled Areas were well astheState panchayati rajlegislations, thepanchayati whileextending inthelaw,modifications necessary boththeconstitutionalprovisions as raj system to theFifth Scheduleareas. PESAlays downtheexceptions and AreasAct Extension toScheduled thatParliament is in thiscontext the in1996 enacted It to autonomousrespects theirconstitutionalright selfgovernance. such ScheduledAreas mustbeprovided regime withagovernance which This provision ispremised ontherecognition thatadivasicommunitiesin exemptions andmodifications required intheexistinglaw for thispurpose. 35 Entry 5ListIIoftheSeventh Scheduleto theConstitution states: Entry local selfgovernment orvillage administration.” trusts, districtsboards, miningsettlementauthoritiesandotherlocal authoritiesforthepurpose of “Local government, that istosay, theconstitution andpowers ofmunicipalcorporations, improvement Essential ingredients ofthelaw 35 is a State subject, andtherefore isaState subject, thepower to legislate on (hereafter ‘PESA’) thepanchayati to extend Panchayats Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 25 … The spirit of PESA The every Gram Sabha shall be competent to safeguard and preserve the Sabha to safeguard every shall be competent Gram community identity, their cultural and customs of the people, traditions and the customary mode of dispute resolution. resources a State legislation on the Panchayats that may be made shall be in a State legislation on the Panchayats and practices and religious social with the customaryconsonance law, of community resources; management practices traditional (d) PESA makes that ensure it a duty to of the State It therefore, is apparent, must give on panchayats the Scheduled Area enacted for law that any primacy existing customary to and also and traditional mechanisms, law primacygive the community to in the management of its community the essential It that these clauses encapsulate is generally agreed resources. and panchayats to relating all law of PESA for of the approach ingredients The critical elements of such an local self governance in Scheduled Areas. are: approach Section the essential spirit of PESA, which encapsulate 4 (a) and 4(d) of the traditional management the supremacy of customary recognise law, law, traditional methods of dispute and communitypractices resources, for as follows: state These provisions Scheduled Areas. in resolution (a) provisions of PESA, it is important of PESA, provisions keep understanding to that any in mind level State of the provisions until the is incomplete law of the said It the also been examined. is not possible for have statutes raj panchayati conformity and with PESA, for statutes level all State test to time being the However, required. and when use examples where would we therefore legislation of the State the specific provisions examine is advised to reader purposes of completion. Eight of on the subject being discussed for matter Gujarat, Andhra Pradesh, namely, Scheduled Areas, having the nine States Chhattisgarh, Maharashtra, Odisha Pradesh, Madhya Himachal Pradesh, incorporate Actsand Rajasthan to amended pre-existing have Panchayat enacted a new of Jharkhand,The State however, the PESA provisions. Act soon after in 2001 its formation. Panchayat Land and Governance under the Fifth Schedule 26 or mechanismsfor bringing thisinto effect. statement toblanket thiseffect, Rules, butthere guidelines are nofurther States,Most whileamendingtheirState panchayati rajlegislations, have a identity, modeofdispute resource resolution. community andcustomary thetraditionsandcustoms ofthe people,and preserve theircultural year GramaSabhashallbecompetent to to ensure safeguard thatevery PESA requires State laws inScheduled Areas to beamendedwithinone into cognisance thefollowing three principles: thattheState are governments required hasobserved Srivastava to take theirexistingPanchayatibring rajlaws withinoneyear, inconformity K.B. While discussingthedirectives containedinPESAthatState governments (iii) inthis oftheGramSabha,orvillage community centrality The to protect necessity thesetraditionalmechanisms,(ii) The including oftraditional mechanisms, centrality whetherwithrespect to The law, (i) 36 K.B. K.B. Srivastava Schedule Areas, Schedule Act, Areas) 1996(CentralScheduled Act no40)andExtentofitsAdaptation by theStatehavingFifth . Theintention isdevolution ofpower to theGramSabhas, not 3. Thethree tierpanchayats are theexecutive oftheGram arms 2. TheGramSabhashouldbeaccorded placeinthescheme, prime 1. andthevesting ofpowerfunction, insuchGramSabhafor thispurpose. cultural identity, customs andreligious ofthecommunity; practices dispute resolution, orresource management; panchayats atthelower level oroftheGram Sabha. ofanyhigher level shouldnotassume thepowers andauthority the ‘Principle ofSubsidiarity’, meaningthatthepanchayats atthe asinstitutionsoflocalselfgovernance. Healsorefersfunction to delegation ofpower, andtheGramSabhasshouldbeableto oftheGramSabha; the authority Sabha, andtherefore beallowed shouldnotstatutorily to overlook resources anddevelopmental projects; and isendowed withpowers relating to managementofnatural National Institute of Rural Development (1999). ofRural Development National Institute Panchayats ofthePanchayats Analysis Areas: An inScheduled (Extensiontothe 36 Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 27 Chhattisgarh Chhattisgarh government in government in due regard to the to the due regard and ’. There are also no no also are There ’. Odisha clauses which state that that clauses which state consistent with the relevant relevant with the consistent Jharkhand , non obstante notwithstanding any law, tradition, custom custom tradition, notwithstanding any law, Madhya Pradesh Madhya , except for a statement in Section 54A(a) of Section in statement a of 54A(a) for , except No provision was made to operationalise this power, this power, operationalise to was made No provision ”. When existing laws specifically debar the application application specifically debar the When existing laws ”. 37 ” Orissa Gram Panchayat Act, 1964. Act, Panchayat Orissa Gram Maharashtra Section 5(6) Section such as it is. Similarly, Similarly, such as it is. enacted their respective State legislations envisaging ‘ envisaging legislations State enacted respective their for the time being in force laws spirit of other relevant provisions for redressal when a State legislation is not in consonance is not in consonance legislation when a State redressal for provisions practices and traditional social and religious with the customary law, contrary and therefore management practices of community resources, of PESA. provisions the substantive to the the space enabling create While on the one hand such provisions but of every the letter law, relevant not blindly follow Gram Sabha to these amendments are in effect honour the spiritrather to of the law, The fact remains legislations. existing State to as subordinate treated across natural resources to that the existing legal framework relating This the countrydomain. in the concept of eminent is steeped a large to with regard the board across has been adopted approach with clear number of statutes “ will be applicable these laws been made of tradition and customary and no amendments have laws, incorporating that the provisions it becomes imperative these laws, to Gram Sabhas and other PRIs in the give legislations State PESA into customary and traditional laws enforce to power real Scheduled Areas of natural resources. practices and control in the management or local practice or local 37 the Bombay Village Panchayats Act 1958 which is related to the the to Actis related 1958 which Panchayats Village the Bombay competency this indication of how is no Sabha, there of the Grama legislations. State in other provisions into be translated is to provision made by the amendment The corresponding Thus, in in Thus, 1997, qualified this requirement by providing that these powers will will that these powers by providing requirement 1997, qualified this “ Sasan insofar as they are in the Grama vest and tenets of the Constitution and in harmony with the basic laws in force human rights. Land and Governance under the Fifth Schedule 28 be demarcated asoneormore revenue villages. However, attheoperationallevel, villageinScheduledAreas continuesto Gujarat When testing State level legislations, itisfound thatallStates except as definedinthestatute for ScheduledAreas isthesmallestunitpossible. strong. Therefore theneedinScheduledAreas to ensure thatthevillage over isvery ofdominantelites taking becomes difficult,andthepossibility differentiatedin suchlarge culturally aswell associo-economically groups such aGramPanchayat, thelesshomogenousitwillbe. Decision-making tiesofthecommunity. customary The larger thedemographic coverage of villages whichmay andtraditional ormay notrepresent kinship actual theGramPanchayat,comprise fromthattheseare thefact revenue apart itself. isfound thatinnon-ScheduledAreas, It more often thanonevillage course, doesnotcoincidewithacommunity’s often owndefinitionof astheguidelinefor demarcationserves ofpanchayat areas intheordinary isthatthe revenue village,The reason which thisdefinitionisimportant body, decision-making mustbeacohesivethe key andtraditionalunit. which numerous powers are ofgovernance vested. The GramSabha,being feature atthevillagelevel andin ofPESAistheGramSabhaasacommunity definition of“village”. provision, sincethedefining important Thisisa very Perhaps provision4(b)whichgives ofPESAisSection thekey thespecial 39 38 Area as: of withthisprovisiondefined inconformity ofPESA. For instance, theState Section 97-Bofthe Section Himachal Pradesh”, Shomona See Khanna, Himachal PradeshHimachal affairs inaccordance withtraditions andcustoms’ thereof comprising orcommunities acommunity and managing their ‘a habitationora group ofhabitationsorahamletgroup ofhamlets Definition ofavillage 38 have amended their laws to purportedly ensure have that amendedtheirlaws to purportedly “village” is Society for and Society RuralUrban Tribal (SRUTI),February, Initiative 2003. HP Panchayati RajAct “Law relating torightsofpanchayats over water andwater basedresources in amended thedefinitionof“village” inaScheduled , 1994 on Declaration of , 1994onDeclaration Village inScheduledAreas. . 39

Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 29 differ from that in other that from differ not – a fourth tier of governance . 40

makes assert to it a point that the Odisha and Maharashtra This body is often at the Ward level, and conforms and conforms level, Ward body is oftenThis at the 41 Bombay Village Panchayat Act, 1958 Act, Bombay Village Panchayat Himachal Pradesh Himachal Pradesh Consultation Scheduled Areas. “village” and “a group of villages” means the village or as the case may be, be, may the case the village or as of villages” means group “a and “village” of under clause (g) issued notification specified in the of villages a group Article of India. 243 of the Constitution Section 3(24) the this fourthIn tier of village governance extends both Scheduled and Non- both States, to Scheduled Areas. 40 41 Sectioncontains the critical 4(l) of PESA mandatory to relating provision prior consultation before: a. Acquisition and projects; development for of land in the Scheduled Area b. Re-settling by such projects in the persons affected or rehabilitating In – two States “Palli and Sabha” “Up Gram known as the in the law, has been created respectively. Sabha” The panchayati raj law in in raj law The panchayati definition of village in Scheduled Areas shall Areas of village in Scheduled definition parts as under: of the State much more closely to a community group which is bound together by together which is bound a community closely to group much more as of the Gram Sabha the powers below, as will be seen tradition. However, the Up Gram Sabha or the to devolved not under PESA are contemplated Sabha in either State. Palli has its most important impact and immediate on ‘village’ The definition of body which comprisesthe constitution of the Gram Sabha, or the the village that everySection 4(c) of PESA provides as defined village, community. whose names a Gram Sabha, which consists of all persons shall have above, While examining the State electoral rolls. level included in the village are specific this adopted have States if any that few, it is found however, laws, for the purpose of the of defining who are the members definition actually the definition as contained in the simply adopted Gram Sabha, and have of that particular statute parent State. Land and Governance under the Fifth Schedule 30 such consultation must be meaningful sothattheviewsexpressedsuch consultationmustbemeaningful are consultation hasbeenusedinalaw,term there isarequirement that institution (or ‘PRI’). have consistently heldthatwhereverThe courts the of aconsultation,beitwiththe GramSabha,orany otherpanchayati raj onthetruemeaningandingredientscontestation across thecountry What does “consultation” mean?Here too, there hasbeen enormous 4(a)and(d). Section ofthelaw,against thespirit aswell astheexpress provisions ofthelaw in State to governments narrowly interpret theprovisions ofPESAmilitates Gram SabhainwhichPESAvests thispower andresponsibility. For the of a “development project”, isthe bethe GramSabha.It mustnecessarily resourceshow theuseofthesecommunity isto bealtered for thepurpose the “appropriate” panchayati rajinstitutionfor consultationonwhetherand resourcescommunity ithasbeenmanaging sincetimeimmemorial, then overrecognises the ofthetraditionalvillagecommunity thesupremacy for section, thesimplereason inanearlier been described thatifPESA ofPESAwhichhas to the essential spirit Such anapproach iscontrary Jharkhand (Block)Parishad. placewiththeMandal consultation takes The law in level oftheZilaParishad Level. whichisattheDistrict In Areas inthecountry, have provided for placeatthe consultation to take States of Maharashtra level,Block orDistrict butnottheGramSabha. The panchayati rajlaws in to meanconsultationwithapanchayati rajinstitutionatthePanchayat, As aresult, several State have governments interpreted thisprovision the applicablelandacquisitionlaws for publicpurpose. their power to unilaterally decidewhere andwhento acquire landunder result ofthisvaguestatement, State have governments soughtto protect with the “ loophole intheclausewhichrequires thatthesaidconsultationmustbe Unfortunately, theParliament thissection, provided whileenacting ahuge Odisha the Gram orthePanchayats Sabha attheappropriate level hasnoprovision inthisregard. require thattheGramSabhawillbeconsulted. However, the and Gujarat , whichhave someofthelargest Scheduled Andhra Pradesh, ”. As a a As ”. Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 31 43 Supp As a result, the a result, As 42 , which are applicable in , which are , so that information relating to the to relating , so that information Gram Sabhas Gram , that is, before the decision of the the decision of the before , that is, , as opposed to only directory, in nature. only directory, , as opposed to prior informed mandatory by the government while taking a final decision. If it of its role. The Ministry of Mines also issued guidelines on of its role. binding in cases of grant of leases of minor minerals and binding in cases of grant Indian Administrative Service (SCS) Association U.P. vs. Union of India 1993 vs. Service (SCS) Association U.P. Indian Administrative 44 in the case of land acquisition on 11 November 1998 prescribed 1998 prescribed in the case of land acquisition on 11 November Ministry Raj, of India. Government of Panchayati A distinction has been drawn by the Supreme Court,A distinction by the Supreme has been drawn based on the principle that when the Gram Sabha Gram Gram Sabha Gram The must be consultation government is taken acted and upon; The must be consultation purpose reports such as project of the land acquisition, describing the impact assessment the environmental activitydevelopment proposed, in well must be provided scheme planned, reports, rehabilitation the of information suppression Any language. advance and in the vernacular and make it meaningless; process the consultation could vitiate must be taken into in the consultation process The views expressed consideration or simply brushed aside are that the views of the panchayat is found be invalid; would government the final decision of the State ignored, The consultation is See, for instance, instance, for See, (1) SCC 730, which laid down six propositions of law regarding the meaning and content of and content the meaning regarding of law 730, which laid down six propositions (1) SCC “consultation”. Ibid. Ibid. and non-consultationaction consultation is mandatory, fundamental in question affects rights, or void. or invalid the action ultra vires renders Report as envisaged Sabhas with powers of the Sub-Committee Gram Model Guidelines to vest to draft in PESA,

key ingredients of the kind of consultation required by the provisions of of of the kind by the provisions key ingredients of consultation required PESA are:     43 44 Chhattisgarh as well, before acquisition of land, but these too have not have but these too acquisition of land, before Chhattisgarh as well, been followed.’ 42 The Ministry of Rural Development guidelines about consultation with the Sabha Gram and the Land body by the requisitioning be followed to a procedure robbing the central role having with the Collector authorities, Acquisition the 28 December with the Gram Sabha in respect 1997 about consultation making of minor minerals of etc. of leases the recommendation of grant the of Madhya State The But this has been ignored. of concessions etc. grant then included Chhattisgarh), (which rules in 2000 made elaborate Pradesh about consultation with concerned taken decision-making in the consideration into process. Land and Governance under the Fifth Schedule 32 consonance with the essential spirit ofPESA. consonance withtheessentialspirit through inorder theveil atafindingin oflegislative to arrive artifice have sufficed. Clearly, inthisdecisionhaspierced theSupreme Court the State panchayati rajlaw consultationwith theZilaParishad would (k) relating to minormineralsinScheduledAreas. 4(k)and(l)state: Section provisions relating toPESA containsimportant grant oflicencesandleases at thePalli Sabhalevel intheState ofOdisha, upheldtherequirement ofIndia of decision-making Supreme Court arecent decisionrelating In to theStateits jurisdiction. ofOdisha, regarding to within decision-making developmentalthe right activities village community, notmerely includingtheright to beconsulted, by processes for democraticgovernanceatthelevel ofthetraditional in itsapplicationto ScheduledAreas, foundational andlays important Act, 2006 Tribes Traditional andOther Forest (Recognition ofForest Dwellers Rights) legislations, suchasthe resonance inothersocio-economic to beconsultedlocal communitiesandtheirright inadvancehasfound of regardingthat thisfundamentalprinciple participation meaningful to note process isimportant submerged inlegalese.decision-making It over byforce,taken inthe andthespacesfor their participation themselves presented witha bylocalcommunitieswhofind argued,been articulated, andasserted Interestingly, thishasnotmeantthat thetruemeaningofPESAhasnot ofPESAto theScheduledAreasextension asalsoitsimplementation. flaw inthe themostserious Sabhas, ofPESA,isperhaps inthetruespirit Failure to effect theprovisions regarding consultationwiththeGram 45 Supra license orminingleaseforminorminerals Areas; intheScheduled priortograntappropriate shallbemademandatory level ofprospecting recommendations“the of the Gram orthePanchayats Sabha atthe Minor Minerals Minor note 18. (or ‘Forest Act”). Rights The Forest isnotrestricted Act Rights fait accompli, theirlandsandresources 45 where ironically under Scheduled Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 33

of before – have vested vested – have states that prior states to recommendation , while the State panchayati panchayati , while the State that the (Extraction and Removal of Minor and Removal (Extraction

Himachal Pradesh Himachal Pradesh and 47 Maharashtra mandatory Land Revenue Gujarat Minor Mineral Concession Rules, 2010 Rules, Concession Minor Mineral Gujarat which vest all rights in the State government, giving all rights government, giving which vest State in the Madhya Pradesh Madhya

46 makes no provision regarding grant of prospecting and grant makes regarding no provision Gujarat, appropriate level shall be made mandatory for grant of concession for the of concession level shall be made mandatoryappropriate for grant auction;” by of minor minerals exploitation Prospecting licence for minor minerals licence for Prospecting Mining minor minerals lease for exploitation. Auction of minor minerals for Proviso to Rule 10 (1) of the to Proviso the grant of a quarrythe grant Authority shall obtain the the Competent lease in a Scheduled Area, of quarry the area of the concerned Gram Sabha where recommendations is situated. and royalties must be paid to the Gram Sabhas/Panchayats. must be paid to and royalties at the SabhaPanchayats or the of the Gram recommendation the prior

government done by State Auctions are of the Gram Sabha is mandatory. recommendation Prior 46 47 the Gram Sabha or panchayat at appropriate level be obtained level at appropriate panchayat the Gram Sabha or granting:    a strict indicate and appears to is forceful law The language of the rather than “recommendation” a requires the law one thing, For approach. Clearly the lack of footing. on a higher is definitely which “consultation”, a of the mining proposal. a veto amount to would such a recommendation be obtained in and has to is compulsory, the recommendation Further, advance. does not stand scrutiny. forcefulness this appearance of Unfortunately, like while PESA clearly governments that it would the State indicates Firstly, the decision to the Sabha, it also leaves in the Gram this power vest to power this rather vest determine which PRI it would governments to State find that only three we legislations while analysing State Therefore, in. – States (l) that it is state These provisions mining leases for minor minerals, but requires prior recommendation of prior recommendation but requires minor minerals, mining leases for concession to villagers only with respect to removal for domestic use. domestic use. for removal with respect villagers only to concession to Chhattisgarh the power in the Gram Sabha. In in the the power amendments correlating in the Gram Sabha, power this vests raj statute the not been made to have 1968 Rules, Minerals) Land and Governance under the Fifth Schedule 34 at whichever level, over reconnaissance operations, andthepermits be concludedthatthishasbeen donebydesign. The power ofPanchayats, Thirdly, it quite impotent. intoincorporated State legislations inanequallylackluster mannerrenders aninroad inthis hotlycontestedmake space. That thisprovision hasbeen 4(k)and(l)ofPESAisrequired thanSection toSomething more powerful Centre and theStates, andtoday large multinationalminingcorporations. ofcontrolterrain over minerals hasbeenfiercely contested the between independence, after the theperiod of theCentral During government. to whichothermineralsare determine classified as ‘minor’ liesinthehands the statute itself(stones, sand)thepower gravel, clay andordinary ordinary loweconomicvalueare classifiedasminorin Thus, whilemineralsofavery 3(e)ofMMDRAis as The definitionofminormineralsinSection follows: even theState governments whenitcomesto minerals. given control powers thedecisionsandterritorial of to enormous override andcontrol is vestedmaking intheCentral whichhasbeen government, lands,private water bodies, andseabeds. Moreover, indecision- primacy the state over mineral resources, notonlyinstate ownedlandsbutalsoin the Constitution itself, abouttheeminentdomainof categorical are very under it. The mininglaw regime, drawing onpowers whichare found in and Regulation) law relating to miningiscontainedinthe already framework inplaceonmining. statutory complex andpowerful The Secondly, for allitsbravado, theprovision hardly makes adentonthe while vest thepower intheGramPanchayat andtheZilaParishad respectively, Gram Sabhafor ofminorminerals. auction Jharkhand

a key area out,anditcanonly ofmininghas beencompletelya key left the Official Gazette, declare tobeminormineral”.the Official other mineral whichtheCentral Government may, by notification in sandotherthanusedforprescribed purposes,ordinary andany “ “minor minerals” meansbuildingstones, gravel, clay, ordinary

Act, 1957 makes noprovision inthisregard. makes (or ‘MMDRA’) andtheRulesregulations framed Mines and Minerals (Development andMineralsMines (Development Andhra Pradesh and Odisha

Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 35 has been placed 49 Sarthak Union of India & Srijanatmak Sanstha vs. 48 “the ownership of minor forest produce”. “the minor forest of ownership at page 97. . High Court of Chhattisgarh at Bilaspur. Minor Forest Produce Minor Forest Ibid Ors 5 of 2013, (PIL) No. Petition Writ in Court records 48 49 on affidavit before the Bilaspur Court. High before on affidavit Section contains a very 4(m)(ii) of PESA important powerful and potentially purpose the of government, for State that, in the requires which provision endow to “function as institutions of self-government”, enabling them to with: and the Gram Sabha” level at the appropriate “Panchayats the More recently, the intransigent position of the Central and State State and the intransigent position of the Central recently, More of lands under the acquisition governments that PESA does not apply to Development) and 1957 Act, Bearing Areas (Acquisition Coal granted by the state (whether at the Centre or the State) for this purpose, this purpose, for or the State) at the Centre (whether state by the granted tribalin populations This leaves leftcompletely has been of PESA. out very Areas Scheduled in the name all manner of intrusions vulnerable to machinery state by the as private and pressure well as of reconnaissance, lands. in their found are valuable minerals once capital, include major minerals to the failure and perhaps most importantly, Finally, in the purview and insurmountable parent in the flaw of PESA, is a significant to that the biggest threat of serious is a matter This concern given Act itself. the very the constitutional fabric and to of of tribal existence populations, corporations is not from threat And the mining. is from Schedule, the Fifth or individuals extracting It minor minerals. in fact, and is, mega projects quantum, who are of unprecedented mega corporations pursuing profits the customary to the most serious threat practices and self governance by For the country. across Areas Tribal local communities in Scheduled and vast tracts of agency (as Scheduled Areas in Andhra Pradesh areas instance, Visakhapatnam district have of described under the colonial regime) were blatantly mining, bauxite a private corporation to for been handed over consultation with the Gram Sabhas statutoryignoring to relating provisions Advisory Council. Tribes and the Land and Governance under the Fifth Schedule 36 In remainssupremacy unchallenged. Sabha andGramPanchayats, itisdoneinamannerwhere thestate level.at theBlockandDistrict When thepower isvested intheGram pointedly ignored matter, thissubject orvested thepower withthePRIs oftheseprovisions. State panchayatipurview rajlegislations have either or reclassified as “non-timber forest produce” themoutofthe to take seeds, andsoon,are eithernationalisedthrough speciallegislation, more profitable ofeven suchforest produce, suchastendu leaves, sal economically viableforest produce of insomeStates the “timber”; forest produce” definitionisdistinguishedfrom themore byitsvery misinterpretation andlegislative manipulation.For instance, “minor As demonstrated intheanalysisabove, this provision isalsoopento 50 thattheproducenotwithstanding isvested inthevillagepanchayat. to itunderthe stating that ‘minor forest produce’ shallhave thesamemeaningasassigned thereafter, thisprovision inthesamelegislation iscountermanded by ofavillage jurisdiction “shall bevested inthevillagepanchayat.” Immediately states thatminorforest produce found inaforest area situated inthe In intended bytheprovisionspurpose ofPESA. nopurpose, leave alonethe serves oflegislative chicanery This kind Sanctuaries. addition, theprovision specifically excludes National andParks Wildlife (Amendment) Act,(Amendment) 1997. Areas Maharashtra Transfer Forest ofMinor ofOwnership Produce intheScheduled Panchayat. However, thislaudablestatement to ofintent the issubject Section 108(5)ofthe Section Gujarat Maharashtra and the , for instance, theamendmentto theState panchayati rajlaw Maharashtra Forest Minor Produce (Regulation ofTrade) Gujarat Forest Minor Produce Trade NationalisationAct, 1979, , theownershipofminorforest produce isintheGram Gujarat Panchayats Act, Amendment 1998. Accordingly, suchownershipisspecificallyexcluded 50 In

Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 37

53 in 2002, enacted the These statutes 52 within whose jurisdiction in People’s Empowerment in People’s Odisha Panchayat 51 Local Governance in Fifth Scheduled Tribal Areas: A Case Study of A Case Areas: Scheduled Tribal in Fifth Governance Local Ownership, Control and Management of MFP in ScheduleOwnership, The Role of V Areas: Control 54 note 33. note The Gram Panchayat (GP) regulates procurement and trading of 67 and trading procurement (GP) regulates The Gram Panchayat within areas in government lands and forest whether produced MFPs, and the reservedthe limits of the Grama or collected from forests Committees the JFM to the Grama. Priority will be given into brought collection and trading of MFPs. and its members for of MFPs. procurement with the GP for must register Traders The Grama Samiti (Block level). Panchayat is done by the fixation Price and necessarySabha ratifies all the prices fixed changes can be made based on the local needs. Section 4(1) of the Maharashtra Minor Forest Produce (Regulation of Trade) Act, 1997 provides as Act, 1997 provides Trade) (Regulation of Produce Section 4(1) of the Maharashtra Minor Forest under: in the scheduled areas, lands found in the Government Produce “The Minor of ownership Forest in the shall vest and Sanctuaries, the National Parks excluding such area falls. such area the used in this section shall have and “Sanctuaries” “National Parks” Explanation: The expressions 1972.” Act to them under the Wild Life Protection assigned respectively, same meaning, Supra Supra Maharashtra and Odisha in the Light of Panchayat Raj (Extension to Scheduled of 1996, Areas) Act and Odisha in the Light of Panchayat Maharashtra Indian Institute of Dalit Studies (New Delhi) 2012. (Orissa Jharkhand) Chhattisgarh and Sabha. Village Panchayat Gram through PRIs in Schedule V Areas and Studies in Laws Affecting the Poor, NIRD, Hyderabad. NIRD, Poor, the Affecting and Studies in Laws V Areas PRIs in Schedule through

Manoj Pattnaik, Dr. C.R. Martin Bijoy, Kamodang,

have recently been modified for Scheduled Areas by the Governor. by for Scheduled Areas modified been recently have 53 54 52 51 In purported of PESA, compliance with the mandate Rules Administration) Produce (Minor Forest Panchayats Orissa Gram of these The main features Gram Panchayat. in the the power which vests Rules are: from National Parks and Sanctuaries, ownership include the does not and Parks National from governed be by the is to which area, the Panchayat or land in of the trees Act, 1927. of the Indianprovisions Forest with the so vested that the Panchayats state goes on to the statute Further, Working shall strictly the to produce adhere of minor forest “ownership” department, do so is a criminal to and failure Forest made by the State Plans year. imprisonmentto one of up which could invite offence    Land and Governance under the Fifth Schedule 38 traditionally tribals andforesttraditionally tribals dwellers have theirhomelands. areas inthecountry, bothinScheduledandnon-ScheduledAreas, where atthe groundefforts thebalanceofpower intheswathesof shift to forest across thecountry. oftheForestThe enactment hasstrengthened Act Rights andnotjustthelow-income ones,and harvested, continuesontheground over allforest produce whichtheyhave traditionallymanaged, developed disabling features ofthelaw, control community thestruggleto re-claim isinteresting,the situationisindeterminate. It therefore, thatinspite ofthe otherStates,In suchas    the appropriate level”. This provision isbasedontheunderstanding that water bodiesintheScheduledAreas shallbeentrusted to Panchayats at ofPESArequires that 4(j) Section “planning andmanagementofminor fromPESA attempts thisoverarching adeparture approach ofthelaw, and Central government. State level, andinthecaseoflarger water resources, inthehandsof resources, vest allcontrol clearly inthehandsofadministrationat the ownership, use, sharing, development andmanagementofwater essential control ofthestate. Thus thecomplexweb oflaws whichgovern of thestate, water bodiesandsources are treated asbeingunderthe to muchthesameway thepower aslandissubject ofeminentdomain In 55

See, for instance, the No role isenvisaged for thePalli Sabha. appropriate action. taking willlodgeacomplaintbefore orSecretary the Sarpanch theDFOfor atraderisengagedinprocuring MFPwithoutregisteringIf withtheGP, trader. Gram Panchayat canpassaresolution to canceltheregistration ofthe registered anenquiry, whichthe after traders, conducts theSarpanch caseofviolationpayment ofminimumprocurementIn bythe price Minor WaterMinor Bodies Northern IndiaCanal andDrainage Act,Northern 1873. 55 Madhya Pradesh,

Jharkhand, and Andhra Pradesh, Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 39 , Odihsa defines “Minor Irrigation defines , the term “minor water water “minor , the term the Gram Sabha has the power: the Gram Sabha has Maharashtra Orissa Pani Panchayats Act, 2002 Act, Panchayats Orissa Pani 57 Madhya Pradesh Madhya (which are traditionally shared between several between several shared traditionally (which are In In Madhya Pradesh Panchayati Raj (Second 1997. Amendment) Act, Panchayati Pradesh Madhya 56 kuhls “irrigation system under an Irrigation Project having irrigable commanded area upto 2,000 area having irrigable commanded system under an Irrigation Project “irrigation “to lease out any minor water body up to a specified area for the a specified area body up to “to lease out any minor water purposes; commercial purpose of fishing and other for bodies minor water streams, of rivers, the use of water to regulate irrigation purposes.” System” as System” Irrigation Projects”. and Creek and shall include Lift Irrigation Points hectares Section 2(o) Explanation (iii) of the Section 129-D (iv) of the 56 57 In other States, it is never clear whether the law covers just the small water just the small water covers clear whether the law it is never In other States, within the local limits of the Gram, whether springs and ponds which are minor irrigation or not, and whether is protected canal groundwater networks such as such as Uttarakhandvillages in mountainous areas and Himachal) and boundary one Gram panchayat from aqueducts another, to which traverse in assist in this understanding does the law Nor by this law. covered are Where take who would a decision if a conflict or indicate arose. way, any and long distances which travel concerned, are small rivers and streams riparian the have rights, multiple villages (and often multiple States) where confused. more situation becomes even on the other hand, minor irrigation systems are defined as projects that defined minor irrigation are on the other hand, systems purposes used for etc. out streams leaving irrigate than 2000 ha of land, less other than irrigation. at the level of the village, the local community should have the power to to power the community the local village, of the have should level at the sharing and their sustenance, and plan for resources local water manage its bodies is used, water “minor” Itdevelopment. is in this context the term not covered. are bodies water “major” clearly indicating that is not defined bodies’ water ‘minor the term States in many However, vague and remains practice, and therefore or in administrative in law to be based do not appear they exist, where The definitions, unenforceable. in Thus, common rationale. upon any bodies” is defined as any water storage and irrigation storage including water storage is defined as any bodies” lift irrigation tanks, 100 ha. In percolation works upto village tanks, Land and Governance under the Fifth Schedule 40 or theZilaParishads, asthecase maybe, insuchmannerasmaybeprescribed.” bodies inscheduledareas isvested in demonstrates thatpower ofplanningandmanagementminorwater An analysisofthelaw relating to minorwater bodiesin the ZilaParishad level. attheDistrict “plan, ownandmanageminorwater bodiesupto aspecifiedwater area” in Madhya Pradesh and “This act of entrustment has been left to somefuture ofentrustmenthasbeenleft date act bythe “This 58 Panchayats.these powers intheDistrict In all thegovernanceinstitutionsat Ward, Village, andBlock level to invest invest theGramPanchayat withthesepowers, while level.panchayat bodiesattheBlock andDistrict of managementandplanningminorwater bodies, suchas itis, in again oftheclause “panchayats attheappropriate level” to vest thepower power intheGramPanchayats. yet Instead, advantagehasbeentaken problem isthattheState amendmentshaveA further rarely vested this 59 58 See Khanna, Shomona SeeKhanna, It was further observed: was further It Himachal Pradesh”, Section 97-G, Section date, five theamendmentscameintoyears after force.” thatsuchchangeshavereflected in thefact notbeenmadeeven till actualised. That there isnoreal thesechangesisalso willto make into theparent withoutapplyingitsmindto Act, how thesecanbe state amendmenthasdoneismerely copiedtheprovisions ofPESA as well astheconstitutionalamendments are implemented. What the panchayati rajlegislations wasto ensure ofPESA thattheobjectives weregovernments required inamendmentsto to theirexisting bring the state laws futile. oftheexerciseThe wholepurpose bywhichstate state thusrendering government, theentire exercise ofamending Chhattisgarh HimachalPradesh Panchayati RajAct, 1994. Society for and Society RuralUrban Tribal (SRUTI),February, Initiative 2003. law cited above in Section 129F reserves thepower law to cited 129Freserves above inSection , thispower isvested intheGramSabha.Buteven the “Law relating torightsofpanchayats over water andwater basedresources in “Gram Panchayats, Panchayat Samitis Maharashtra, Madhya Pradesh,Maharashtra, Jharkhand Odisha Himachal Pradesh,Himachal 59 and supersedes Gujarat

Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 41 “to alienation of land in the Scheduled prevent Areas and to take any unlawfully alienated land of a action to restore appropriate Scheduled Tribe”. or among members of the of land by the transfer or restrict “prohibit in such area.” Scheduled Tribes Prevention of Land Alienation Prevention Section 4(m)(iii) of PESA requires the State to enact laws for the purpose the of enact for to laws the State Section requires 4(m)(iii) of PESA level at the appropriate Gram Sabhas and Panchayats empowering Itis important lies within the of this law understand that the source to as contained of India,Constitution of Scheduled Areas and in the design Schedule 5 of the Fifth Paragraph in Article Schedule. 244 and the Fifth the advancement of enact to Governor the in for Regulations requires including to peace and good government, In it is veryscenario, such a important Section 4(j) read to together of PESA in Sectionearlierwith the provisions (d), which are 4 (a) and of the control regarding legislations, also incorporatedState in most village communitythe local community its traditional over resources. parts The realitymany is that in village communities country, of the as the as well resources, water manage their traditional continue to and it is these customary practices to which are sharing of the water, bodies’. water ‘minor be asserted while asserting the right manage to not and management are methods of community control Traditional but that ‘written records’, necessarily in every substantiated case by be far superior which might any to their legitimacy, does not diminish most States minor canals in to relating the law example, For other. makes based on a colonial of canals, much of the issue of ownership not privately owned are which are all resources understanding that and it is important reality the is different, State-owned. On the ground, as the well of PESA as the enabling provisions from strength draw to assert to the primacyspirit of the law, community of the local village resources. of its water and control the management over Land and Governance under the Fifth Schedule 42 Scheduled Tribes. transferred bynon-Scheduled Tribes, shouldcomebackto thehandsof pass into thehandsofnon-Adivasis, butany landpresently owned, ifbeing presumed to have beenAdivasi land;hence, notonlyshouldnolandnow Tribe. The premise oftheregulation isthatalllandinScheduledAreas is Scheduled Area from transferring landsto anyone otherthanaScheduled amended in1970,1971,and1978)explicitlyprohibits any personina The Andhra Pradesh provided in lands,only tribal butalsolandsbelonging to dalits. Alistofsuchlaws is Regulations/statutes have alienation ofnot beenframedwhichrestrict is containedinthelandrevenue codes;inotherStates specific non-Scheduled Areas across thecountry. Sometimestheembargo aretribals inforce notonlyinScheduledAreas, butalso in many to alienationoflandsfrom noticethatlaws to restricting non- tribals different indifferent State legislations onlandalienation,itisinteresting ofprohibitionWhile theextent orregulation, asthecasemay be, is the country. populations whohave migrated into of theseareas from otherparts lands bydominantgroups from withintheareas, savvy orfrom market the protection ofthelaw inorder to prevent oftheir thetakeover andrequire aretribals ofthelandmarket, vulnerableto thevagaries contained intheconstitutionaldesign itself, recognising that thefact Therefore, themandate laws to preventing enact landalienationis 60 few illustrationsfrom theselaws willbeuseful. While itisnotpossibleto gointo thecontent ofeachtheselaws here, a oflaw.constitutional challengesinthecourts ScheduleoftheConstitution inorderin theNinth to protect themfrom protection to Scheduled Tribe landoutside theScheduledAreas inAndhra Pradesh. However, theprotection onlyto ofthislaw Scheduled Areas, extends andthere isnolegal Andhra Pradesh Areas)LandTransfer (Scheduled Regulation,1959 Appendix C 60 . Most oftheselegislations. Most have beenincluded (as Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 43 ruling produced no ruling produced Samatha a three judge bench of the Supreme Supreme of the judge bench a three

61 State of Andhra Pradesh of Andhra State vs. vs. (1997) 8 SCC 191. (1997) 8 SCC Samatha 61 In In Court delivered a landmark judgment which is still considered an authorityCourt is still considered which a landmark judgment delivered The Court areas. Schedule on the subject of tribalin Fifth land alienation Scheduled mining lease in a of a was asked grant rule on whether the to The question a non-tribal to 1970 Regulation. in violation of the was Area the Court lease on government of a mining was whether the grant before a non-tribal this principle. land to violated within the ‘person’ CourtThe Supreme government held that the is a of a mining lease amounted and that the grant meaning of the Regulation of the violating the provisions a non-tribal, to the land transferring to purely rely Choosing not to Schedule. spiritRegulation and the of the Fifth Court of the Regulation, the on the specific clauses that Regulation held of the fulfill the mandate to in order ‘expansively’ should be interpreted that land in Scheduled It Schedule. requirement is a Constitutional Fifth culture preserve to their autonomy, with the Adivasis should remain Areas be illegal, mining lease was held to of the the grant a result, As and society. and the Court in ruled that henceforth mining leases in Scheduled Areas mining government’s the State to could only be granted Andhra Pradesh In the Andhra the meantime, Tribes. of Scheduled or cooperatives company that government to had amended the MMDRA as far as it applied Pradesh Court and the other also directed specifically include such a bar, to State of the passage look into to committees constitute governments to State and laws. similar regulations set up in the wake of the The Committees governments taking as other State as well Central with the the stand result, is based This approach other States. not apply to would that the judgment barring laws transfer do not have reasoning that other States on the flawed of and rather restrict non-tribals, only the transfer of government lands to tribals non-tribals. to private lands from Land and Governance under the Fifth Schedule 44 Collector. 2002,thisprovision wasdoneaway In with. areasland intribal ofthe from withthepermission to anon-tribal atribal suffered from loopholeinthatprovision aserious wasmade for transfer of law. numerous Notunlike otherlandalienationstatutes, OSATIP previously Panchayat underthe roletaken plays intheinitiationofaction akey provides mechanismsfor andrestoration eviction ofpossession. The Gram lands,forcibleof tribal italsomakes offence, alienationacriminal and OSATIP provisions notonlycontainsstringent prohibiting thealienation amended in2002. Tribes) Scheduled (By Regulation,1956(OSATIP) is governed bythe is governed The transfer oflandsbelonging inScheduledAreas to tribals ofOdisha Odisha owners.tribal which willempower theGramSabhasto restore alienated landsto the tobecause itcontainsadirection theState laws to government enact thattheprovision4(m)(iii)of PESA becomesimportant, context ofSection isinthis statusofthepersoninpossession. It socio-economic superior simplybecauseofthe victory, unable to secure possessiondespite acourt restoration oftheirlands. many After years oflitigation,theyfindare whoare oflandalienationapproachof tribals victims thelegalsystem for indeed, unfortunate for thereasonThis isvery thatonlyasmallproportion 63 62 to agriculture, such as horticulture, poultry farming,to andso on. agriculture, poultry suchashorticulture, The term ‘agricultural purpose’ contiguous hasbeenwidelydefined to includearangeofactivities Regulations, 2000, Vide the  

loan for anagricultural purpose. infavour ofapublicfinancialinstitution mortgage a for securing oftransfer bythelaw permitted isbywayThe onlykind of is nullandvoid, andwillhave noforce oreffect whatsoever. infavour byatribal ofanon-tribal transfer ofimmovableproperty anything containedinanyNotwithstanding otherlaw inforce, any Box 3:Mainfeatures ofOSATIP asamendedin2002 Orissa Scheduled AreasTransfer Scheduled Orissa Tribes) Scheduled ofImmovable (By Property Amendment being Orissa Regulation1of 2002. beingOrissa 62 Main features Main oftheOSATIP are intheBox 3below. The Orissa Scheduled AreasTransfer Scheduled Orissa ofImmovable Property 63

whichwassubstantially Contd... Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 45 Madhya Madhya October the notify 1956, to th empowers the Gram Sabha to restore unlawfully alienated lands alienated unlawfully restore to the Gram Sabha empowers Sub-Collector and show how he came into this possession. Failure Sub-Collector possession. Failure this and show how he came into in a will result statute of the amending do so within 2 years to and that the possession of the land is unauthorised, presumption or his the land shall revert belonged to, the person it originally to heirs. lands to possession in relation claims of adverse The time limit for 12 years). tribals (from to is extended 30 years to belonging Prior to the amendment, such transfers were permissible upon were such transfers the amendment, to Prior after but the in writing consent authority, of a competent previous therefore and deleted, has been this provision 2002 amendment, is absolute. the prohibition persons Tribe In certain between Scheduled situations transfers would when the transfer One such situation is also prohibited. are of less than 2 acres the land holding of the transferor render of unirrigatedirrigated land. or 5 acres of proof. evidence and burden to in relation protection Additional by possession of tribal lands by non-tribals is also covered Forcible laid eviction and prosecution for a procedure the Regulation, and down. Offences under the Regulation upon conviction, attract severe and punishments of imprisonment, 3 years, which could go up to 10,000. Rs. fines upto everySection 3-B (after the 2002 amendment) requires person a ST land which belonged to who is in possession of agricultural time startingperson at any 4 from

       It do not contain in other States is unfortunate statutes that land alienation the and as a result likestringent provisions the AP Regulation or OSATIP, has been abysmal. level implementation at the ground code of out that the land revenue it must be pointed In this regard, Pradesh Land and Governance under the Fifth Schedule 46 64 provisions ofPart IXoftheConstitution through (incorporated the 73 spite ofsimilarexpression from In ofintent thenorm. inthe departure development planningandimplementationatthelocallevel, isamajor reveal thatanapproach whichgives theGramSabhaapivotal role inthe analysisofState level panchayati rajlegislationsEven will asuperficial to Scheduled Tribe landowners. provides thatitwillbetherole oftheGramSabhato: level, and exercising control over localinstitutions.4(e)specifically Section role to theGramSabhaindevelopment planningatthelocal a primary Challenging thisstatusquo, PESAcontainsseveral provisions whichgive Sabha ordinarily isrelegated to therole ofarubber-stamp. andState level administrative district machinery. by theblock, The Gram level whichdominate theseprocesses, andwhichare dominated inturn Amendment), itistheGramPanchayat andPRIsattheBlockDistrict Schedule isrealised. lands, isoneway to ensure thattheconstitutionalmandate oftheFifth regard to bothrestoration ofillegaloccupantsthese oflandandeviction GramSabhasandPanchayatsand empowering with action to take Giving effect 4(m)(iii)ofPESA to thefullmeaningandintent ofSection these provisions have notbeenreplicated inotherState legislations. to restore Officer possessionwithin3months.the Sub-Divisional However, Provided thattheGram fails torestore Sabha thepossessionofsuchland, itshallrefer the mattertothe of receipt ofthereference.” Officer, whoshall restore thepossession ofsuchlandwithinthree months from thedate Sub-divisional of suchlandtothatpersonwhomitoriginally belongedandifthatpersonisdeadtohislegalheirs: bhumiswami belongtoanaboriginalland, withoutanylawfulauthority, itshallrestore thepossession finds thatanyperson,otherthanamember ofanaboriginaltribe, isinpossessionofanylanda 244oftheConstitution area aGram referred“(2-A) If intheScheduled Sabha toinclause(1)ofArticle 170-B(2-A)ofthe Section ii) Be responsible fortheidentification Be orselectionofpersonsas ii) Approve theplans, programmes andprojects forsocialandeconomic i) ControlPlanning Functionaries over and Institutions, beneficiaries under the poverty alleviation andotherprogrammes. alleviation beneficiaries underthepoverty for implementationby thePanchayat atthevillagelevel; development before suchplans, programmes andprojects are taken up Madhya Pradesh LandRevenueCode, 1959 64 The GramSabhahasthepower to direct states: rd

Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 47 . , the Panchayat Samiti , the Panchayat Madhya Pradesh Madhya vest this power in the this power vest Odisha Gujarat and , while the power over local plans and resources is local plans and resources over , while the power , and there is no provision to obtain the approval or consent from or consent from obtain the approval to is no provision , and there Maharashtra Exercise control over institutions and functionaries over control in all social sectors; Exercise such plans including tribal sub- for local plans and resources Control plans;

Nevertheless, these provisions create an enabling space for the the an enabling space for create Nevertheless, these provisions proper ensure participateGram Sabhas to planning, in development the spending of funds in a transparent implementation, and oversee In parts many have these provisions of the country, manner. and proper of the Gram Sabha the purpose of enhancing the role been used for and correcting some of the keyin local governance, in the State errors been have These provisions out above. pointed as legislations level in conjunction with varying be useful when exercised to powers found vested in the Gram Sabhas in Scheduled Areas, these plans are prepared by prepared these plans are Areas, in the Gram Sabhas in Scheduled vested (District by the Zila Parishad approved Samiti (Block level), the Panchayat In by the Panchayat. and implemented level), (District programmes make level) the plans, or the Zila Parishad (Block level) and projects in this regard. in not empowered Sabha the Palli the Grama Sasan. Further, Himachal Pradesh Andhra Pradesh, government functionaries over or District Control intermediate PRIs. level in in the Gram Sabha only and institutions is vested It is also provided that the Panchayat must obtain a certificate obtain a must of utilisation It Panchayat that the also provided is it on these categories the funds spent by the Gram Sabha of of projects from an important which is ensuring transparency in for tool and programmes, of funds. the spending Section Apart (vi) and (vii) provide 4(m) these enabling provisions, from shall be levels at the appropriate and the Panchayats that the Gram Sabha to: empowered   further that the actualThe law of planning and implementation requires level. at the State shall be coordinated in the Scheduled Areas the projects It legislations is not surprising level the State that the amendments to fall short the PRI regime of PESA into of the incorporating these provisions mark. In Land and Governance under the Fifth Schedule 48 Five YearPlan: largely failedtopractice achieve thisobjective. According to theEleventh following the mandate of Article 243D,following themandate ofArticle andhave the incorporated population ineachPanchayat area. For States are faithfully themostpart, Tribes onthebasisofSC/ST andScheduledCastes bereserved requires 243DoftheConstitution ofIndia thatseats forArticle Scheduled Scheduled Areas. law, are into realityfor converted ameaningful peoplesin thetribal that development planning and funds, asenvisaged by thesaid Clearly, theaforesaid provisions ofPESAhave notbeenable to ensure expenditure on Tribal SubPlan activities. was provided as ‘Special Central Assistance’ to State for governments diversion the andlapseoffunds. In Tenth Five Year Plan, Rs. 251.8billion the fundshave beenplaguedbyinadequate allocation,underutilisation, However, thebudgetallocationshave never metthistarget, andeven so for thedevelopment ofScheduled earmarked Tribes intheAnnualBudget. is populationinthecountry) oftribal budget atleast8.6%(theproportion approach, theCentral wasto government ensure thatoutofitstotal Plan for Scheduled Tribes inareas where theyare themajority. As perthe TSP was conceived to ensure coordinated expenditure offundsonprojects The Tribal SubPlan (or inthefifth started Five ‘TSP’), Year Plan (1974-1979), National Food Act, 2013, Security RuralMahatma Gandhi Employment Guarantee Act, 2005(MNREGA), legislations, suchasthe socio-economic ofPRIsinvarious and functions 66 65 Ibid Eleventh Five Year Plan, Chapter 6,Planning Commission, Government ofIndia. or clear-cut administrative sanction is an important one.” isanimportant administrative sanction or clear-cut be several reasons implementation,lackofstatutory for thislackluster equally to theCentral aswell as State governments. Though there may implementationof...TSPleaves muchto bedesired. “The This applies Reservations . and soon. 65 However, the TSP hasin 66 the

Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 49 (2010) 4 SCC 50. (2010) 4 SCC upholding the constitutional validity of 67 Rakesh Kumar & Ors etc. Kumar & OrsRakesh etc. vs. vs. The mandate of Article of The mandate 243D that reservation be proportional of seats be is sought to communities in that Panchayat, the population of the to maintained; be the proportion whatever in no case will of population, However, be less than one-half of the total Tribes reservation Scheduled for number of seats; shall be reserved the seats of Chairpersons at all levels of PRIs for Further, Tribes. the Scheduled Union of India etc.

these provisions. these provisions. 67 necessary amendments in the State level panchayati raj legislations. These These necessary raj legislations. panchayati level the State in amendments of elections rounds several over reservations been implemented also have Election the State by Commissions. overseen reservations for are in PRIs provisions the Areas, Scheduled to regard With follows: as requires Section 4(g) of PESA slightly different.    When combined with the mandatory of 33% reservations requirement backward and reservations Scheduled Castes, in PRIs, women for for tribes otherwise from and nominations classes of citizens, unrepresented, reservations to raj legislations panchayati relating in State the provisions form of other As with any arena. a complex and often mystified present the statutory contested been hotly too reservations, have here provisions both inside and outside and their constitutionality debated, vehemently the Courts. of Jharkhand of the State After the formation held in 2000, elections were SectionThis was because of challenges to 4(g) of years. ten almost up for in the Jharkhand provisions PESA, and the corresponding on laws State that reservation on the ground of all posts of Chairpersonsof PRIs PRIs, The the right equality violated to under Articlein Scheduled Areas 14. of writconstitutional challenge posed by a batch petitions was first heard by the High Court Court, at Ranchi, by the Supreme and thereafter which a detailed judgment pronounced Land and Governance under the Fifth Schedule 50 necessary steps towards these powers.necessary Gram SabhasandalsoPRIsat the Panchayat, level, BlockandDistrict to take State legislations relating to panchayats have, empowered infact, the of intoxicants, andcontrol manage villagemarkets, money-lending. Most appropriate level andtheGramSabha” to regulate thesaleandconsumption PESA, theState are governments required to empower “Panchayats atthe theinterestIn oflocalselfgovernment, according 4(m)of to Section to thePanchayati aspossible. rajinstitutions asearly State Commission elections andtheState government to Election conduct intheabove judgmentThe Supreme to alsoissuedadirection Court the from of isofcoursearationalbasisforthenorms departing ‘There ‘…Especially ofScheduled Areas, inthecontext there isacompellingneed thus: observed The Supreme Court 68 Ibid guess policy choices….’guess policy ‘proportional representation’. thissense, itisnotourjobto In second- social realities, from thelegislature of thenorm thoughtitfit to depart ofenvironmentaland thedestruction resources. such order to In tackle aswellon accountofprivate asgovernmentaldevelopmental activities through bynon-tribals, problems displacement suchasland-grabbing relatively positionoftheScheduled weaker Tribes isalsomanifested populationwillcometo dominatethat thenon-tribal theaffairs. The the Scheduled Tribes heldpublicpositions, possibility itisadistinct vulnerable to exploitation.Even inareas where personsbelonging to are under-represented andhence machinery inthegovernment in theareas where Scheduled Tribes are inarelative majority, they the present case. becauseitwasfound thateven This wasnecessary ‘adequate representation’ aswell as ‘proportionate representation’ in would empower themto protect theirown interests. Tribes ofdemocraticdecentralisationwhich andurged theimportance outlinedtheproblems hadclearly facedbyScheduled Committee Report by giving themaneffective voice inlocalself-government. TheBhuria to safeguard theinterests communitieswithimmediate effect oftribal Additional Powers atparagraphs 34and37. 68 xxx Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 51 Orissa invest invest Andhra (Andhra (Andhra or the Gram or the Gram and the Maharashtra and can extend and can to which provides that no which provides and as amended by the Madhya Pradesh Pradesh as amended by the Madhya introducing a new Chapter entitled a new Chapter introducing vest this power in the Gram Panchayat, in the Gram Panchayat, this power vest Odisha Bombay Money Lenders Act, 1946 Act, Bombay MoneyLenders Act has assigned this power to the District Panchayat. the District to this power Panchayat. Act has assigned Madhya Pradesh, Madhya Madhya Pradesh Excise Act, 1915, Act, Excise Pradesh Madhya and in 69 Chhattisgarh, Madhya Pradesh Chhattisgarh, Madhya (Andhra Pradesh, Jharkhand, Odisha) Pradesh, (Andhra the State excise law provides that if the Gram Sabha has not that if the Gram provides law excise the State Jharkhand Odisha Section 61-E of the Excise (Second Amendment) Act of 1997, states that Gram Sabha “along with the Panchayat at with the Panchayat “along that Gram Sabha (Second Amendment) Act of 1997, states Excise manufacture, and prohibit Regulate to the power shall have in Scheduled Areas level” appropriate possession, transport, within its territorial jurisdiction. sale and consumption of intoxicants 69 Pradesh, Chhattisgarh, Madhya Pradesh, Maharashtra) Pradesh, Chhattisgarh, Madhya Pradesh, Sale other intoxicants liquor and of and distribution the sale liquor and other of regulate to The power in the Gram Sabha is vested statutes, level in the State intoxicants Panchayat the excise to amendments the requisite However, prohibition. complete not been licensing of sale and distribution liquor have of regulating laws in effect this amendment to An inchoate. such provisions rendering made, law the excise loan can be given to a Scheduled Tribe except upon recommendation of upon recommendation except Tribe a Scheduled to loan can be given of Gram Sasan. and concurrence Gram Panchayat The States of The States Pradesh, Gujarat, Pradesh, while the of licence grant before be consulted to the Gram Sabha with the power also been have additional special laws In some States, a moneylender. to such as the enacted, 1967, Regulations, (Scheduled Money-Lenders’ Areas) Money-lending in the Gram Sabha while Sectionvest PESA seeks to 4 (m)(v) of Similarly, Tribes, the Scheduled money lending to over control exercise to the power of The States wanting. found are raj legislations panchayati State ‘Special Provisions for Scheduled Areas’, remains buried in official files with remains Scheduled Areas’, for ‘Special Provisions the contrary, operationalise it. On Guidelines or Regulations to no Rules, in the licence will be deemed to time, within a prescribed approval granted The politico-economic the liquor trade, dynamics of been approved. have with its close connections criminal to mafias cannot be underestimated impact level of such a statutorywhile assessing the ground provision. Land and Governance under the Fifth Schedule 52 i) Theformal of(a)implementation ofPESAthatstandsfor responsibility (ii) Lackofappreciation abouttheplace ofFifth Scheduleread withPESA (i) States,implementation ofPESAintheconcerned onthewhole, are: modelguidelinesfor to draft PESA,the Raj “main reasons for thenon- all. ofPanchayati According to aCommittee appointed bytheMinistry reflection inthelaw are notat often notimplemented intheirtruespirit, at theState level, andeven thelimited provisions whichfindadequate which PESArepresents notbeeneffectively hasinfact translated into law We towards findthattheradicalshift localselfgovernance meaningful ofthepopulation,includingtribals, deprived sections guise ofhelpingSelfHelpGroups women comprising from economically recent exposure ofwrongdoings Finance byMicro underthe Institutions, poor andseducetheminto debttrapsfrom whichnorescue ispossible. The financial institutionsmanipulate theirway into thelives ofthepoorest ofthe Nor isitpossibleany longerto disregard thenewandmyriad ways inwhich power.assumption ofthisregulatory Gram SabhasinScheduledAreas canonlybeexercised withaproactive regulation ofmoneylendingremain unchanged, thesepowers ofthe thattheexistinglaws withregard withthefact When juxtaposed to the 70 global village. ofthe innovative thetraditionalmoneylenderhasbecomeincentury New Delhi, 8 New Delhi, See, for instance, M.Rajshekhar, isolation; of TribalMinistry in functioning Affairs thatarerespectively virtually andthe ofRuralDevelopment) of Panchayati theMinistry (earlier Raj different intheUnionGovernment,namely,Ministries Ministry the Areas affairsingeneralis two and(b)dealingwithtribal vested with total transformation of theparadigm ofgovernance intheScheduled affairsandconfusionaboutitslegalstatus; in tribal In SummationIn th March 2010. BottomofthePyramid: Conflict ofInterest 70 isalessoninhow , The Economic Times , The Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 53 Andhra states that that states 1964

. 72 Rajasthan and 71 Orissa Gram Panchayat Act, Panchayat Orissa Gram . The Odisha Ministry Raj, Government of India. of Panchayati Orissa Gram Panchayat Act, 1964. Act, Panchayat Orissa Gram “shall exercise general powers of inspection, supervision powers control and general exercise “shall and performance of duties of discharge of powers, the exercise over under this Act.” Panchayat the Grama functions by and its radical characterand its radical in particular executive the political amongst concerned and administrators; and even the concernedPESA amongst people.” Report as Sabhas of the Sub-Committee with powers Model Guide-lines Gram to vest to draft envisaged in PESA, Section 109, 71 72 This general provision is supplemented and supported is supplemented This general provision by a host of other plans, monitor to government the power the State which give provisions property inspect panchayat any or works, inspect documents and records, The take disciplinary passed. resolutions or alter action, rescind and even However, only 4 States have enacted PESA Rules till date, namely, namely, enacted PESA Rules till date, have only 4 States However, Maharashtra Himachal Pradesh, Pradesh, of concern is the factAn additional area PRI legislations that most State as enormous vest amounts of control which provisions contain several qua the administration in the hands of the State powers as punitive well the country across raj laws have Panchayati functioning of panchayats. subvertmanaged to of local self governance the notion by making provision varying and monitoring of these institutions by the of control for degrees extending in these laws The amending provisions district administration. in scheduled panchayats for exemption terms of PESA do not contain any these provisions. from areas Odisha from An Example to relating closely examine the law be useful to it may purpose, this For of PRIs in the State Officer District or such other authorised Panchayat Collector, the Director, government: officer of the State (iii) in general about PESA and understanding information is lack of There (iv) is virtuallyThere of the message and disseminate no effort to convey Land and Governance under the Fifth Schedule 54 1991 achapter entitled In “CONTROL”, 19ofthe Section duties imposedonitbylaw orexceed orabusesitspowers”. the adefaultinperforming orconsistently makes competent to perform dissolve theGramaPanchayat incaseitisoftheopinionthatGP “not 115). (section Naib Sarpanch The State retains government thepower to Collector alsohasthepower to suspendorremove and theSarpanch 75 74 73 would notgetapproved for several monthstilltheZPmeetsagain. this gives thePresident in alotofpower action to take ‘emergencies’, which meeting. arethe ZPatitsnext Meetings to beheldoncein3-4months, so to theapproval onhisownsubject of action President necessary cantake “cases ofemergency”, whichremains aterm conveniently undefined, the to implementalltheresolutions oftheZP. There isalsoaprovision thatin the ZilaParishad (or shallvest inthePresident,‘ZP’) whohasthepower The administration. self governance, andinstead reduce themto subordinates oftheState executivethe elected body, theGramaPanchayat, asinstitutionsof Such provisions ofGramaSabhasor donotfacilitate thefunctioning or fine. creates anumberofoffences whichare punishablewithimprisonment DRDA is the ex officio secretary ofthe DRDA istheexofficiosecretary ZP. but noRulesorguidelinesspecifyingtherole oftheCEO. The Project Officer (orOfficer ofthe ‘CEO’) as are suchfunctions prescribed, ZP, andperform Collector shallbetheChiefExecutive alsoprovidesAct thattheDistrict Section 13ofthe Section 9ofth Section Ibid, Orissa ZilaParishadOrissa Act, 1991 states unambiguouslythat: Section 116. Section of Parishads are withtheprovisions inconformity oftheAct andthe as maybeauthorisedby theGovernment toseethattheproceedings oftheGovernment shallbetheduty andsuchofficers“It orauthorities e Orissa ZillaParishade Orissa Act, 1991 Orissa Zilla Parishad Orissa Act, 1991. provides thattheexecutive powers of 75 Orissa ZilaParishadOrissa Act, 73 also The Act 74 The Part II: The Panchayats (Extension to Scheduled Areas) Act, 1996 55

76 Orissa Zilla . Orissa Zilla Parishad Act, 1991 Act, Orissa Zilla Parishad and reconstitute the Zila Parishad. When the Zila Parishad. and reconstitute 77 . rules, and that the implementation of the decision taken therein and therein taken the decision of implementation that the and rules, this of for carrying out the provision the Parishads by taken all actions embezzlement misappropriation, fraud, from free are and the rules Act criminal bearings.” and other Parishad Act, 1991 Act, Parishad If perform to ZP is not competent makes or persistently default in performing its duties or Section 28, or abuses its powers. exceeds If the President or Vice President willfully omits or refuses to carry to willfully omits or refuses the provisions out or violates President Vice or If the President in him, and the government satisfied is vested power or abuses the raj laws, or the panchayati Section 26, that his further of the ZP. be detrimental the interest to continuance would supersede, or even dissolve or even supersede, The statute further invests the State government with enormous powers to further government with enormous to The statute the State powers invests reports, and call for property inspect and works in progress, records, enter, resolution cancel any to the Government the power so on. Section 23 gives against the of no confidence resolutions passed by the ZP (except or order government such of the State if in the opinion or vice president), president is: or order resolution (a) not legally passed; (b) or abuse of powers; in excess (c) against public interest; (d) health or safety; human life, is likely cause danger to to (e) is likely cause a riot to or affray. taking such step any before In with the rules of natural justice, accordance for “opportunity the ZP an government should normallythe State give action that immediate is if the government feels However, explanation”. be suspended immediately. can or order such a resolution necessary, the State not enough, the 1991 Act also gives were these powers if As President, Vice and the President remove to government the power 77 76 the Zila Parishad is thus dissolved or superseded, its properties or superseded, and is thus dissolved the Zila Parishad for government and the officers appointed on the State functions devolve this purpose. Land and Governance under the Fifth Schedule 56 PESA from comingto life. ofthemainframelaws whichhaverestrictive fabric prevented of thespirit provisions ofPESAandtheState level PRIlegislations, andaddress the ourfocus to shift away,duty. isimportant It therefore, from theenabling in somecaseseven initiate proceedings againstthemfor dereliction of andseizecontrolled theirdocuments andrecords, bythem,inspect and over thedecisionsofPRIs, togovernments theproperties override take State wherepanchayats too inevery widepowers are vested intheState Clearly, itisimperative to identifyspecificprovisions inthelaw relating to wheneveractivated required. and otherPRIstherefore continueto to remain be onthestatute book, ofGramSabha to interfere inthefunctioning actively State functionaries provisionsof theserestrictive inthemainframelaws. The powers ofthe operation ofthepanchayati raj system to ScheduledAreas “modify” any Neither PESA,norany the oftheState amendmentswhichextend theGramSasansinproject area.electorate comprising ZilaParishads,legally bindingonallsubsequentlyelected andontheentire Parishad whenitisunderthecontrol oftheState Government would be a standopposingsuchacquisition.Andtheresolutions passedbyaZila andinvalidate theresolutionsintervene oftheZilaParishad even ifittakes power byPESA,there isalso amplespaceinthelaw for to the government that theZilaParishad isnotthebodywhichwasconceived asholdingthis Scheduled Areas to theZilaParishad. from thepopularcriticism Apart consultationbeforeprior landacquisitionanddevelopment projects in law,that Orissa compliancewithPESA,gives thepower inpurported of Parishad Act, 1991. administration, atleastasfarithasbeenconceived by the Village muchunderthecontrol andtheBlocklevel, oftheDistrict isvery There canbelittledoubtthattheZilaParishad, aswiththePRIsat for thereason important isextremely This context Orissa Zila Orissa Part III: Testing the Law Against Reality

In the previous sections we have seen that there is a complex arrangement of constitutional provisions, Central and State legislations, as well as judicial precedents which give legal recognition to the rights of tribals to their traditional homelands and resources, and to decision-making processes regarding developmental activities.

But does this promise of law translate into reality on the ground? Increasingly in the past two decades in particular, we have witnessed a slow but sure dilution of the constitutional protections to Scheduled Areas, to the extent that today the constitutional barriers which protected the tribals living in these areas are often invisible.

Land Alienation and Acquisition

Loss of land remains the single biggest cause of deprivation of the livelihoods, lives and homelands of tribals across India. One would expect that the constitutional design, specifically aimed at protecting tribal homelands from just such loss, would have had a visible impact. Instead,

57 Land and Governance under the Fifth Schedule 58 Land Resources, Ministry of Rural Development, Government ofIndia, ofRuralDevelopment, Land Resources, Ministry are amere of tipoftheiceberg. According oftheDepartment to aReport in courts andthenumberofcaseswhichareactivated actually parties, is stilltruethattheselaws rely bytheaffected heavily upontheiractivation meetapositive result,though mostlitigantswhichapproach it theCourts retain thattribals control ofensuring objective over theirhomelands. Even However, theselegislations have notbeenableto fulfilltheconstitutional inScheduledAreas.to non-tribals legislationsenacted restricting/prohibiting thetransfer oflandfrom tribals compliance ofParagraph 5(2)(a)oftheFifth Schedule, mostStates have level,State and landalienationhasbeenwidespread. As stated earlier, in rights, despite theconstitutionalandlegislative safeguards attheCentral therecordedaccess oftheirlandsbyappropriation oftheselands. Of land incomplete. time, have Over thestate andnon-tribals deprivedthemthe ofScheduled traditional rights Tribes to landissignificantly uneven and over vastswathesofland.rights However, theprocess ofrecognition of Scheduled Tribes have, byandlarge, enjoyed traditionalandcustomary constitutional regimes. over different and for suchexpropriation oflandvarying statutory we findthatexpropriation continuesunabated, withonlythemechanisms 78 figure giventend thattribals to have pooraccess to thejudicialsystems and restoration ofalienated landswere analarming rejected bytheCourts, The above datademonstrates that41.1%ofcasesfiled bytribals for    July 2013:

Rural Development, GovernmentofIndia. Rural Development, NationalLandReforms Policy,Draft of 24thJuly, ofLandResources, Ministry 2013,Department by the courts on various grounds. onvarious by thecourts acres were anarea cases(41.1%)covering of3.63lakh rejected1.55 lakh covering acres atotaltribals area (58.28%); of4.47lakh cases(43.2%)wereOut oftheabove, disposedof infavour 1.62lakh of acres ofland; 8.55 lakh landalienationwere casesoftribal registered3.75 lakh covering 78 in Part III: Testing the Law Against Reality 59 80 . London-New Delhi: Oxford University Press (2008). University Press Delhi: Oxford . London-New : Can Compensation Prevent Impoverishment? Reforming Resettlement Impoverishment? Prevent Compensation Can observes

79 on privatisation and liberalisation, and the re-definition of opportunity of disinvestment that the process state, of the as also of the role costs, This is illustrated further cause for discontent. has given set in place, who instance, by the re-prioritising for tribals, where that has emerged to constitutional dispensation, receded within the had been sheltered privatised the state as concern its in the penumbra of state even zones taken which it had in public sector enterprises tribal for land.” interests Ibid. Ramanathan, Usha ‘Eminent Domain, Protest and the Discourse on Rehabilitation’ in M.M. Cernea and the Discourse on Rehabilitation’ ‘Eminent Domain, Protest Ramanathan, Usha and H.M. Mathur (eds.) through Investments and Benefit-sharing Investments through 80 79 to legal advice and representation in the first place. first place. in the is also noteworthy It and representation legal advice to report at all since a previous not changed numbers have that the aforesaid same Department by the prepared cases 57,521 in 2005. At that time, in various pending courts lakh 0.44 were of land involving acres the of status of pendency but the present country, such cases is not known. of judicial when even where, is no quantification of the number of cases There of the tribal of the party, actual in favour restoration given decisions were to able assuming the litigants are even Thereafter, land was effectuated. verdict, obtain a positive to cost of litigation and delays withstand the high has As a continuing problem. possession remains of the actual restoration the weakest in this last link remains by variousbeen documented writers, laws. and restoration all existing land alienation their traditional over possession and control the tribals do retain Where of eminent domain of the it is the power market to in resistance forces, lands, of eminent domain The power threat. Indian which poses the greatest state both in jurisprudence as has unfortunately been interpreted, of the state private property acquire forcibly to mean the power to as in policy, well (and divert Usha common property) use it sees as appropriate. any to Ramanathan the emphasis “The open up the economy, with its agenda to nineties, Land and Governance under the Fifth Schedule 60 such protection. landreform processes, ofthesevery subject are under grab, there isno today whenthelandsofmillionstribals, someofwhichwere the ofeasinglandreformpurpose untilit wasfinallyrepealed in1979.Sadly, 82 81 is of displacement oftribals large disproportionately impact “The The Twelfth Five Year asfollows: thisfact Plan documentacknowledges to property right asoriginally adopted providedConstitution ofIndia for afundamental have for beenseized anddiverted the ‘larger commongood’. The displacing themfrom theirlandsandlivelihoods, astheirresources populationshave targeted,The tribal beendisproportionately 83 Under Article 31Athestate hasthepower to acquire Under Article landsuponpayment private ofdue “Article Nopersonshallbe 300-A.Persons save oflaw: by authority not tobedeprived ofproperty compensation. save oflaw.” by authority deprived ofhisproperty whichstates: of India, 300-AoftheConstitution isrecognised underArticle asaconstitutionalright to property The right in 1979. were repealed bytheConstitution (Forty-Fourth 1978whichcameinto Amendment)Act, force save oflaw”. by authority person shallbedeprived ofhisproperty and disposeofproperty”. oftheConstitution provides thatallcitizens shallhave theright 19(1)(f) Article rehabilitated theperiod. during ofthemhaveon accountofacquisitionfrom been 1951to 1990,andthatonly21.20lakh Five Year Plan document estimated that8.5and10millionScheduled Tribes were displaced may benoted thattheEleventhPlan It (2012–2017)Planning Commission, Government ofIndia. Inclusion Social issues ofthedevelopmental process itself.” resettlement andrehabilitation (R&R)hasbecomeoneofthecentral and incasesofunavoidable displacement,theircomprehensive oftribals need to displacement, particularly avoid suchlarge-scale costofhumansufferingof theenormous insuchprojects. The needstoof alldevelopmental bereassessed efforts inthelight The presumption thatdisplacementisaninevitableconsequence leadingthemtooften astate andassetlessdestitution. ofshelterless reason for hasbeenanimportant theirpauperisation, per cent.It is76 Gujarattheproportion people are andinStates like tribals evident from thatatleast55percentofall displaced thefact (Chapter [email protected] 237), Volume-III (SocialSectors), Twelfth Five Year 82 81 Article 31(1), under the sub-heading 31(1),underthesub-heading Article “right to property” provides whichwasslowlywhittledaway for thestated 83 These provisions, amongothers, “to acquire,“to hold “(n)o Part III: Testing the Law Against Reality 61 84 in the 85 State of Kerala vs. Peoples Union Peoples vs. State of Kerala while dealing with the and also 87 case, (2009) 8 SCC 46. (2009) 8 SCC 86 Narmada Bachao Andolan @ para 24.87 page 238. affected have been rehabilitated leaving almost 13.2 million people almost 13.2 million leaving rehabilitated been have affected displaced persons 1994). All that the their homes (Roy from uprooted left often unskilled with is their labour—most are therefore are and survival. for In work comes their way addition, whatever for desperate of the Fifth violation to their land amounts displacement of tribals from and of the control them as it deprives Schedule of the Constitution of life.” their way for and land essential resources ownership of natural for Civil Liberties & Ors Narmada Bachao Andolan vs. Union of India (2000) 10 SCC Union of India (2000) 10 SCC Narmada Bachao Andolan vs. Ibid. Ibid. Ibid. two sub-sections Court upon the following The Supreme has relied of Article 16 of ILO 169: Convention the lands which they occupy. cannot Where their consent and informed consent. only with their free place shall take relocation established by procedures appropriate only following place shall take such relocation be obtained, the which provide appropriate, including public inquiries where national laws and regulations, opportunityconcerned.’ of the peoples representation for effective ILO Convention No. 169 to arrive 169 to of tribals at a finding that displacement No. Convention ILO cannot be and therefore is unavoidable ‘development’ the purpose of for the Indian be in violation of the obligations of held to under the said State Convention. from of this Article, shall not be removed the peoples concerned paragraphs ‘1. Subject to the following such measure, necessary as an exceptional these peoples is considered of 2. Where the relocation serious objections to the project raised by organisations regarding serious regarding objections the project raised by organisations to as socio-economic as well the environmental impact dam, the of the Court of the detailed articulationSupreme note took by the petitioner under Article with of the right life read to 21 of the Constitution 86 87 85 84 In the The courts have also largely failed to provide any relief in this regard. in this regard. relief any provide The courts failed to also largely have numbers displacement of tribals to in large relating in a judgment Ironically, Sarovar in the Sardar of submergence as a result of Gujarat in the State Court provision upon a project, the Supreme rely has chosen to The failure of rehabilitation in the specific context in the specific of tribals of rehabilitation noted: is thus The failure per cent of the only 29 Government estimates to according “Even Land and Governance under the Fifth Schedule 62 The Court further concluded: further The Court of thecountry, even thoughthere wasnosuchevidenceplacedbefore it. andinotherparts institutionsintheState into ofKerala various absorbed therefore thoughtitissafe to concludethatmany ofthemhave been inotherStates, are and in Kerala farbetter offthantheircounterparts went onto note thatthereThe Court iscogentevidence thatthetribals isnowaccepted thatthePanchsheel whichprovided ‘It that doctrine UNDRIP, atthefollowing andarrived finding: 21oftheConstitution, theILO examinedArticle conventionsCourt andthe owners whichhadbeenalienated through sale to non-tribals, theSupreme to implementitsowncommitmentsto restore landsto theoriginal tribal More recently, outofthefailure inalitigationarising oftheState ofKerala suggested thatwhentheremoval clearly ofthe saidarticle ‘The 12as follows: specific violationofArticle went onto dismissthecontention ofthepetitionersregardingthe Court treatiesthat international andcovenants canberead into domesticlaws, 12ofILOArticle Convention No. 107. While acceptingthelegalproposition 90 89 88 Ibid State ofKerala vs. &ors Peoples UnionforCivilLiberties Ibid convention hasbeenrejected byIndia.’ no longervalid. Even thenotionofautonomy containedinthe1989 system inviewofpassagetimeis chieflyasasupport functioned onlyiftheState interferedminimallyand couldflourish the tribes had owned’. toallotted beequal, islikely to ifnotbetter thetribals thanwhatthey facieshowsthatthelandrequiredand theotherStates prima to be the award ofthe Tribunal bytheState ofGujarat asimproved further any resulting lossofinjury. containedin The rehabilitation package previously occupiedbythemandtheyshallbefullycompensated for atleastequaltobe provided thatoftheland withlandofquality asanexceptional measure, populationisnecessary theyshall tribal atparagraph 58. at paragraph 18. 88 (2009) 8SCC 49. 90 89 Part III: Testing the Law Against Reality 63 It is trite that It is trite that 91 exploitation of timber. It is toward It is toward exploitation of timber. Indian Forest Act, 1927. Act, Indian Forest at paragraph 18. at paragraph Forests having regard to their exploitation and rendering them homeless them rendering exploitation and their to regard having of Article touchstone the of India.from 46 of the Constitution For to of some interest be it may however, purpose, the aforementioned view of a section and the of of autonomy the insistence consider that own habitat within their remain people that tribals to should be allowed depend upon outside world mix with the would to and not be allowed category in question.’ Tribe the type of Scheduled Ibid 91 It has been argued that the largest expropriation of tribal resources of tribal expropriation resources that the largest been argued has It that has taken in independent India place in forest has occurred are forests India’s lands”. “forest classified as and in the areas areas instructions, and executive rules, governed by a matrix of laws, on the founded which are level, and the State both at the Central the colonial statute, parent These observations appear to accede to the process of mainstreaming These observations of mainstreaming the process to accede appear to to relating other constitutional provisions Schedule and which the Fifth resist. meant to and tribals were Tribes Scheduled as governance regime, legal as well and the attendant this law, management of was constructed better by the British facilitate to unhindered towards forests India’s assertedthis end that the colonial state over its ownership and control the over subsumed in them, riding roughshod and all resources forests, communities and their traditional methods dwelling traditional forest and forest uses of forests The myriad conservationof use, and access. became fragmented and their holistic interconnectedness, resources, exclusionaryinto century Almost a classifications and legal definitions. and obscure of these boundaries and classifications remain many later, person. the lay to incomprehensible considered of land should be the question of restoration ‘Indisputably, Land and Governance under the Fifth Schedule 64 in 2005, 60% of sanctuaries and 62% of national parks hadnot even and62% of nationalparks in 2005,60%ofsanctuaries asperdatasubmitted to fact, theSupremeand denialofrights. Court In intheform offences.often ofcriminal The result wassimilarexpropriation forced,often bylegalsanctions, approach supported andanexclusionary classifications,Thus theapproach continuedto bebasedonstatutory architecture astheirfoundation, thereby reinforcing itsentrenchment. and environment protection, continuedto usethecolonialforest law to bebasedonmore goalsofconservation modern while purporting The Forest Conservation Act, 1980 NAGAR HAVELI DADRA & DAMAN ARABIAN SEA GUJARAT LAKSHADWEEP RAJASTHAN Source: Anon, 2001,EnvironmentalSource: Anon, AtlasofIndia,Central Pollution GOA KARNATAKA MAHARASHTRA

PUNJAB KERALA HARYANA JAMMU &KASHMIR INDIAN OCEAN MADHYA PRADESH DELHI TAMIL NADU PRADESH HIMACHAL ANDHRA PRADESH UTTARAKHAND UTTAR PRADESH CHHATTISGARH andthe its remaining forests India’s mineral depositsare largely beneath –forestsIndia vs. minerals Uranium Petrolum andnaturalgas Zinc Manganese Magnesite Iron Gold Copper Chromite Bauxite Coal/lignite Lead JHARKHAND ORISSA BIHAR Wildlife Protection Act, 1972 SIKKIM BENGAL WEST Control Board, Delhi New Sillimanite Mica Limestone Kyanite Kaolin Gypsum Graphite Dolomite Diamond Barytes Asbestos Silica sand State boundary Water bodies Non-forest Scrub Open forest Moderate forest Very denseforest MEGHALAYA BAY OFBENGAL

TRIPURA ASSAM MIZORAM MANIPUR

PRADESH ARUNACHAL ANDAMAN & NICOBAR ISLANDS NICOBAR & ANDAMAN NAGALAND

Part III: Testing the Law Against Reality 65 95 The PIL, 94 (1997) 2 SCC 267. (1997) 2 SCC India and the Rights of Indigenous The Tiger Task Force of Force Task The Tiger the 92 93 Tiger Task Force, Ministry and of Environment Force, Task Tiger SRUTI, New Delhi, 2008. Exclude and Protect: A Report in the on Wildlife Conservation and Protect: on The WWF Case Exclude TN Godavarman Thirumalpad vs. Union of India & Ors. Thirumalpad vs. TN Godavarman Asia Indigenous Peoples Pact, Bangkok, Pact, Indigenous 2010. Asia Peoples various issues relating to the diversion of forest land for all manner all manner land for of forest the diversion to various issues relating so dams and large industries, such as mining, activity, of non-forest who inhabit these lands – the tribals of the people – on, the voices by these orders communities affected Rarely have faint indeed. are Bijoy, CR, Shankar GopalakrishnanBijoy, and Shomona Khanna, Peoples, See, for instance, instance, for See, Khanna, Shomona, CourtSupreme of India. Joining the Dots: The Report of the Tiger Task Force, Task Joining the Dots: The Report of the Tiger Government of India, June 2005. Forests,

Government of India summed up the situation when it declared that ‘in the ‘in of IndiaGovernment that when it declared up the situation summed name of conservation, what has been carried and illegal out is a completely programme’. land acquisition unconstitutional 95 94 92 93 comments as follows: within the court while the debates rage around room “Interestingly, However, the 1980 Act did significantly alter the balance of power between the balance of power alter the 1980 Act did significantly However, management of governments with respect to and the State the Centre governments to in the State earlier was vested sole power Where forests. land use, alter required where and take manage forests, decisions on how to the the 1980 Act,with the passage of permission be sought from to had governments State land by of forest the diversion Government for Central over control retain governments to struggled State the country. across and rampant destruction timber smuggling, as illegal mining, even forests, continued. of the tribals, the homelands which constitute of the forests, Court of this situation, the Supreme note in a pending public Taking which have judgments far-reaching litigation passed several interest management in the country. the face of forest altered completely completed the required process of rights settlement, though many had had of rights many though settlement, process required the completed than two decades earlier. more been declared long converted into a continuing mandamus of mammoth proportions,long converted into Court by a Special Bench of the Supreme comprising is heard presently apart this case, one afternoon to which dedicates a week judges, of three report A recent inputs. and technical enormous administrative from Land and Governance under the Fifth Schedule 66 recent years. is truethattheForest hasseensomedramaticsuccessesin Act Rights to beseenhowfaritwillableto achieve its full potential. Even so, it has beenradicallytransformed. This isanewlegislation, anditremains thelandscapeoflaw relating to forestsAct’) andtheirgovernance (Recognition ofForestDwellers Act, 2006 Rights) ofthe With theenactment Areas abackseat. hastaken on theviolationofConstitutional provisions relating to Scheduled of environmental clearances, forest approvals, discussion andthelike, regarding ofIndia well violationsinthegrant astheSupreme Court ofAndhraPradesh Court and debates rageintheHigh Telangana as State of Telangana, thuscomplicatingmatters further. While complex ofthenewlyformednow fallwithinthegeographical boundary than 175,000people, mostlyAdivasis. ofthese Asignificant portion in theplains, andwillalsosubmerge 300villagesanddisplacemore river.the Krishna 2,91,114hectares to isexpected This project irrigate ofthestored water to aportion itwouldcoastal districts, alsodivert will impoundwater from River. theGodavari the from irrigating Apart the State. Amongthelargest oftheseisthePolavaram Project which projectsacross uplargescheme to themajorrivers in irrigation take The AndhraPradesh onanambitious hasembarked government 96 Ibid Adivasi communities.” appointed committees, whichare completely outofthereach of forest andits managementpoliciesinthehandsofcourt result ofthecasehasbeen to placecontrol over nationalprimary forest, downto them.Instead, thea particular rarely ifever trickles havewhich often life anddeathimplicationsfor livingin thetribals arguments atall. regarding Information orders passedinthiscase, found themselves ignored orhave to notbeenpermitted address approached theForest Bench,andwhentheyhave, theyhave either at page95. 96 Scheduled TribesScheduled Traditional and Other Forest (hereafter ‘Forest Rights (hereafter ‘Forest Part III: Testing the Law Against Reality 67 where the the where 97 Overuse of water Niyamgiri case Niyamgiri note 18. note Environmental Damage and Destruction Damage of Livelihoods Environmental “Desertificationresources: water of and destruction resources, both underground and overground, is rampant in many of is rampant in many and overground, both underground resources, for mining, Ironthe industrial of the country. ore mining clusters and 2005-2006, much of it in in of water used 77 million tonnes instance, for the needs be sufficient would this amount of water areas; Adivasi plant in Cola Coca the controversial Similarly, of 3 million people. fertilearea in a effluents agricultural toxic Kerala,Plachimada, released sold its Indeed, the company table. while draining the groundwater the around The Adivasis the local farmers material to as fertiliser. waste depend them to forcing with toxins polluted their wells plant found a protest mounted They eventually kilometersa few away. on water Supra Supra 97 Tribal communities have also undergone, more than any other community than any more also undergone, communities have Tribal of their lands and devastation environmental unprecedented in the country, destroyed by rampant industrialisation, these resources leaving resources are depend on these resources Those whose livelihoods or degraded. A at all. compensation or rehabilitation left and often bereft, without any has not laws, of environmental architecture complex, though emerging, is at hand. that legal redress ensure been able to Gopalakrishnan report three and Khanna, by Bijoy, The aforesaid records as follows: devastation takes, which such forms (i) The transformative potential of the Forest Rights a in Act been noted has the Forest of potential The transformative Court of the Supreme judgment the in recent constitutional and statutoryconstitutional the rights to of Scheduled relating scheme The at some length. has been explicated its resources land and over Tribes be consulted to Tribes Scheduled Court dwelling traces the right of forest non-forest commercial divertedtheir traditional lands are for before and and preservepurpose the fundamental right protect to religious to The courtcultural rights in Article has also held that the Constitution. 25 of the prior is a necessary decision of the Gram Sabha of the law. ingredient Land and Governance under the Fifth Schedule 68 institutions meantto enforce are theseprinciples inaccessibleto that ismeantto address suchissues, theforums inpractice and Despite acomplexsystem ofenvironmental laws andjurisprudence (iii) (ii) 98 Supra wastes amongtheAdivasi communitiesofthearea.” less thanfour 2006and2008. timesbetween This hasspread radioactive largest hasseenitstailingspipelineburstno source ofuraniuminIndia, are poor. extremely oneexample, theJadugodauraniummine, In the andcounter-measuresMaintenance againsteven deadlypollution planning andeven more rarely addressed theprojects comeup. after itisrarely below), inpractice accounted for sub-section in (see next theenvironmentalinto accountduring assessmentprocess impact projects. thatsuchpollutionissupposedto betaken Despite thefact water, landandsoilpollutionthataccompaniesminingindustrial Pollution: landholders. illegal forest by industries, mines, destruction plantationsandlarge year.every largeThis moreover areas lostto doesnotincludethevery 2005, anaverage of216miningprojects wasgranted forest clearance offoresthectares annually. wasdiverted Moreover, 1998and between projects;onaverage,various 2002and2008,roughly between 78,000 1980 and2005,around 1.3millionhectaresofforest for wasdiverted isreferredpermission to as ‘diversion’ offorest total, land).In between for undertheForest suchdestruction of1980(such Act (Conservation) Central whichexercised government, thepower to grant permission of forests wastreated asamatter purely withinthedomainof the passageof2006Forest Act. Rights Therefore, thedestruction Adivasis to forest resources were until noteven legallyacknowledged forest for destruction mining, projects. damorindustrial of The rights vulnerableto theconsequencesofwholesale themparticularly makes Deforestation: remain distant. compensation for andafinal thedestruction resolution to theproblem that hassofarbeensuccessfulinhaving theplantclosed, though note 95atpage99-100. The final ofenvironmentalform isthrough air, destruction The closerelationship Adivasis between andforests 98 Part III: Testing the Law Against Reality 69

100 submitted in submitted 99 the Ministry of Environment, Forests and Climate Change to Change to and Climate the Ministry Forests of Environment, 95 at page 100. Mining while minerals found in Adivasi areas reportedly contributed more reportedly contributed more areas in Adivasi while minerals found that, states Another estimate than half of national mining production. the Indian taken stark increasingly on an courts years, in recent has, with cleanliness, protection equating environmental class character, and wilderness issues of pollution, ignoring while ‘beautification’ health, destruction and loss of common of livelihoods workers’ often name of justified in the property (all of which are resources ‘development’).” November 2014. November Supra note Supra GoI, MoEF&CC, by administered Acts to Review Committee various Report of High Level practically ignores the constitutional and statutory practically to ignores protections overhaul of the a complete while recommending Scheduled Areas regime. law environmental 99 100 Mining represents one of the most serious threats to the lives, the lives, to one of the most seriousMining threats represents tribal and homelands of in India,livelihoods communities this and it is the constitutional framework tested that has most aggressively threat quantify While official data does not as well. Scheduled Areas to relating or the areas Tribe the amount of mining that takes place in Scheduled of some estimates in the process, affected Tribes number of Scheduled the extent One report and impact been made. of mining on tribals have that: estimates in the country of 4,175 mines areas, in Adivasi in 1991, 3,500 were “out It is a matter of concern that the recent TSR Subramaniam Committee TSR Subramaniam Committee It of concern is a matter that the recent set up by examine the architecture of environmental laws in India, laws in its report of environmental examine the architecture marginalised communities in general and to Adivasis in particular. particular. in Adivasis to and in general communities marginalised the enforce set up to which are Boards, Control Pollution The State and prone and unaccountable, be inaccessible to tend laws, pollution As the aforesaid by specific court prodded unless lethargy to orders. report notes: “It in particular jurisprudence be noted should in that environmental Land and Governance under the Fifth Schedule 70 projects. Adivasi are rights simplyignored agenciesinmany bygovernment mining thatexistinglegalinstruments for theprotectiongoes onto of observe confounded.arguably whichhas becomefurther a reflect reality The report Current officialestimates ofthesenumbers are unavailable, and would 101 Source: Anon, 2003,‘IdentificationSource: Anon, ofdistrictsfor wage andself-employment Supra whatsoever. thosedisplaced, anestimated 52%were Of STs.” by miningprojects, ofwhomonly25%received any resettlement 1950and1991,atleast2,600,000peoplewerebetween displaced programmes’, oftheTask Report Force, Planning Commission, Delhi New note 95atpage96. wealth they generatewealth they of thecountry, inspiteoftheimmense be amongthemostbackward districts Mineral-bearing districtscontinue to Poverty amidstplenty

101 Part III: Testing the Law Against Reality 71 (‘MMDRA’) (‘MMDRA’) and a host of subordinate rules and and a host of subordinate only refers to Adivasis in the context in the of the need Adivasis to only refers 102 103 Available at Available 109. Mines and Minerals (DevelopmentMines 1957 and Minerals & Regulation) Act, Mineral Concession Rules, 1960, Rules, Concession Mineral Ibid National Mineral Policy, 2008 (for non-fuel and non-coal Ministry of minerals), Government of Mines, Policy, National Mineral India. http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved =0CB8QFjAA&url=http%3A%2F%2Fmines.nic.in%2FNMP2008. pdf&ei=iqnMVPz6J4ON8QXmk4LYCg&usg=AFQjCNFYr7CfvVrQJ81O1 XaRuaMfE1TMSg&sig2=D7xYmYif7XSZfQ_XEbZ5kA to ensure effective rehabilitation of displaced persons, makingrehabilitation of displaced persons, no mention effective ensure to Tribes that Scheduled a vague recommendation rights except of resource small scattered mining leases for in granting preference should be given deposits of minerals.

103 102 The fact that there is a geographical co-relationship between tribalThe fact a geographical is areas that there cited The maps often enough. noted deposits has been and mineral to relating The existing law clearlybelow demonstrate this coincidence. its foundation which also bears law like much forest the however, mining, of the existence ignores completely frameworks, legislative in colonial protection the constitutional framework and of for tribal communities, The of the rights their land and resources. these communities over of is based is that all minerals which mining law assumption on foundational and private ownership of the land, property, state are underground found or easementary In irrelevant. are fact, are rights land, the mining laws over characterised which override centralisation, even by a tendency towards the principles of federalism. The guidelines, are primarily focused on the procedures for grant of permission of grant for on the procedures primarily are focused guidelines, companies to and mining operations reconnaissance, prospecting, for such permissions lies with the Central grant to The power and individuals. Governments) the State through major minerals (routed government for structure The entire minor minerals. governments for and with the State community that the affected be does not require of mining legislation The granted. such permits are before alone consulted, leave informed, Policy National Mineral the Land and Governance under the Fifth Schedule 72 2013 Transparency inLandAcquisition, RehabilitationandResettlementAct, involves acquisitionoflandsunderthe Among otherthings, theprocess for expropriation ofminerals 104 judgment inthecase 1996athree delivered judgebenchof the Supreme In alandmark Court land acquisitionlaws. Act, 1957 Energy Act, 1962 However, acquisitionsunderspeciallaws inpractice, suchasthe lands andresources towards mining. communitiesto registertribal theiroppositionto thediversion oftheir under theFifth Schedule, would provide theessentialspace to affected of theGramSabha,aswell constitutionalprotections asthevarious would thattheprovisions beexpected ofPESArelating to consultation 1980,incaseofforest Act, boththesesituations,Conservation lands. it In lands,of private andofobtainingclearanceunders.2 oftheForest of similarregulations andlaws. other State to governments constitute committees to lookinto thepassage to thatState to specificallyincludesuchabar, alsoordered andthe Court asfaritapplied Act andMinerals hadamendedtheMines government or cooperatives ofScheduled Tribes. themeantime, theAndhraPradesh In Pradesh couldonlybegranted to theState government’s mining company miningleasesinScheduledAreas ruledthathenceforth inAndhra Court As aresult, thegrant oftheminingleasewasheldto beillegal, andthe oftheFifthof thelaw andthespirit Schedule. amounted to transferring thelandto anon-tribal, violatingtheprovisions within themeaningofRegulationandthatgrant ofamininglease Constitution, isa atthefindingthatgovernment to arrive ‘person’ relied oftheFifth uponapurposive construction Court Scheduleofthe (1997) 8SCC 191. (LARR)(whichreplaced the often override theprotections underPESAandthemainframe override often andthe Samatha vs.Samatha StateofAndhra Pradesh Coal (Acquisition BearingAreas andDevelopment) Land Acquisition Act, 1894) Right toFairRight Compensation and , 104 , inthecase where the Atomic Part III: Testing the Law Against Reality 73 ruling Gram Sabhas Gram Samatha where it observed: it where 105 (2002) 2 SCC 333. (2002) 2 SCC , which has not only interpreted the interpreted , which has not only Writ Petition (Civil) No. 202 of 1995, pending. (Civil) No. Petition Writ Samatha case have permitted industrialisation extensive and mining have 106 BALCO Employees Union case Union Employees BALCO TN Godavarman vs. Union of India and others, vs. TN Godavarman majority in decision Land Scheduled Areas Section 3(1) of the A.P. of the aforesaid provisions of the the provisions interpreted Regulation, 1959 but has also Transfer applicable the said decision is not of the Constitution, Schedule Fifth is Pradesh in Madhya applicable case because the law in the present in Andhra Pradesh’ Regulation the foresaid to not similar or identical (@ para 71) Often in the its own policy. result change in Government a may follow such change may Any of change in economic policies. shift in focus illegality Unless any interests. vested some affecting in adversely result of the policy in the execution is committed of the same is contrary to about change cannot per se be a decision bringing or malafide, law (@ para 92). court’ the interfered with by BALCO Employees Union vs. Union of India and Ors. Union vs. Employees BALCO In the correctness ‘While to of the reservations strong with regard have we of each elected to Government it is the prerogative ….In a democracy, restriction and its consequent of this judgment, interpretation Such narrow of the in the alignment is clearly rooted of Andhra Pradesh, the State to of the honest interpretation rather than on any with mining interests, state Bench of the decisions of the Special Forest down. Numerous it lays law CourtSupreme 105 106 produced no result. It Court no result. the Supreme that a contrary is telling produced itself took stand in the Unfortunately, this landmark judgment has not been able to achieve its achieve to been able has not landmark this judgment Unfortunately, subject and has been the debate of considerable matter full potential, set up in the wake of the Committees The and semantics. in forest lands which are the traditional homelands of Scheduled Tribes, Tribes, the traditional homelands of Scheduled lands which are in forest framework.without consideration of the Constitutional Pradesh, these principles of Andhra in the State that, even find we Today government has on occassion ignored The State in the breach. followed are consultation with the local the statutory to relating provisions Land and Governance under the Fifth Schedule 74 resonance instrugglesacross thecountry. of theSamathajudgment, andtheFifth Schedule, continues to find The Constitutional provisions relating to municipalities, ‘exceptions andmodifications’ into theState laws. level panchayati rajlegislations inorder to, purportedly, the incorporate 1996, andsubsequentlyamendmentswere madeacross theboard inState the enacted 108 107 through the73 of self-government’. Asystematic beginning wasmadeonlyin1993 to asunits enablethemto function asmay benecessary and authority to organise villagepanchayats andendow themwithsuchpowers 40oftheConstitution requiresArticle that steps State shalltake ‘the and the Tribes Council. Advisory 110 109 the provisions relating to panchayats. mechanisms for ofthesame, governance are similarintheirapproach to and modifications, by Parliament. exceptionsa speciallaw for isenacted thispurpose, withthenecessary areas intheScheduledAreas, mandatingthatthiscanbedoneonlywhen specifically lostsightofisthattheconstitutionalamendments1993 What isoften for areas. decentralisedgovernance inruralandurban ‘Part IX-A-The Municipalities’ respectively. These madedetailedprovisions additionalchapters two incorporated entitled ‘Part IX-The Panchayats’ and bodies in urban areas,bodies inurban across thecountry, requiring State to governments guidelinesfor existingmunicipalities,structural re-vamping theelected See Article 243M(Panchayats)See Article and243ZC (Municipalities). EAS, Sarma, Constitution (73 Constitution (74 on 1.6.1993. 24.4.1993. Urbanisation in Scheduled AreasUrbanisation inScheduled The Adivasi, theStateandNaxalite: Case ofAndhra Pradesh, barred Panchayats th rd Amendment) Act, Amendment) 1992, Amendment) Act, Amendment) 1992, rd and74 theirownapplicationto panchayats andmunicipal

(Extension to Scheduled Areas)Act 1996 (Extension toScheduled th Amendmentsto theConstitution, which inserting inserting ‘Part IX-A- The Municipalities’ brought into force 107 inserting inserting ‘Part IX- The Panchayats’ brought into force on 108 Nevertheless, thefundamentalpremise Nevertheless, It was in this context thatParliament was inthiscontext It 110 These provisions provide thebasic EPW April 15,2006. April EPW 109 (or ‘PESA’) in (or ‘PESA’) andthe Part III: Testing the Law Against Reality 75 Panchayats Panchayats Municipalities (Extension to Municipalities (Extension Some 23 years later, no such later, Some 23 years 112 … was enacted. It is therefore widely viewed as a legislation as a legislation widely viewed It was enacted. is therefore Act, 1996 Act,

This Bill was drawn with the objective of ensuringThis Bill was drawn except through a special law enacted by Parliament containing enacted by Parliament a special law through except 111 which has constitutional status. A similar prohibition exists in Article 243-M of the Constitution with regard to the extension to exists in ArticleA similar prohibition with regard Constitution 243-M of the and it is in this context that the Scheduled Areas, to on Panchayats of the chapter Article 243-ZC states as follows: Article states 243-ZC to in clause (2), of Articlereferred 244. and to in clause (1) subject to such exceptions Part to the Scheduled referred Areas and the tribal areas and no such law shall be deemed to be an amendment as may be specified in such law, modifications purposes of Article for the of this Constitution 368.’ (Extension to Scheduled Areas) necessary and modifications. exceptions to in clause (1), and the tribal areas in this Part ‘(1) Nothing apply to the Scheduled shall Areas referred of this extend the provisions law, by may, (3) Notwithstanding Parliament anything in this Constitution, law has been enacted, even though a bill to give effect to this provision this provision to effect give though a bill to even has been enacted, law the in 2001 being Parliament was placed before the Scheduled Bill. Areas) governance does not impose an alien that urbanisation in Scheduled Areas traditional the space for and provides structure tribal upon communities, and communitymechanisms of self-management decision-making to has This Bill an urban to a rural area. from the transition continue through and shelved. long been forgotten elections not only do municipal bodies in Scheduled to Meanwhile, to Due be urbanised. continue to but new areas continue, Areas to of existing municipal laws the unconstitutional application being created are areas’ ‘unscheduled little pockets of these areas, with lose touch as the cities and towns within Scheduled Areas, these Challenges to and governance systems. their traditional roots the Courts, met with stiff opposition in and till have processes In of petitions challenging not been successful. batch a have date of Jharkhand, in the State this process the Ranchi HighCourt a rather perversereached not that Article finding would 243-ZC 112 111 amend their State-level municipal legislations in order to bring to them in their State-levelamend in order legislations municipal the extension this of However, conformity design. the constitutional with Schedule) and Fifth (under Areas in Scheduled municipalities to chapter under Article Sixth (under barred tribal areas expressly has been Schedule) 243-ZC Land and Governance under the Fifth Schedule 76 113 apply to to Municipallaws the74 existingprior 115 114 the issueagaininadifferent matrix. factual therefore thatthisjudgment, while adverse, to raising isnotabarrier inissue, theyare couldbeargued,specific facts notbeingexamined. It decisionsonthisissue, butsincethisjudgment isonthe Court High thatthere are several observed IX-A open.It oftheConstitution isleft andPart the1950Act between issue ofwhetherthere isinconsistency itself wasnotunderchallenge. Further, heldthatthe theSupreme Court to ScheduledAreas. mustbepointed outthattheGovernor’s It order whereby14.8.1995 issuedbytheGovernor wasextended the1950Act to Sundergarh District. reliedThe Supreme uponanorder Court dated of the questionbefore therefore,key theCourt, waswhethertheprovisions of 243ZC isaScheduledArea. hasbeenenacted. Sundergarh district The Constitution cameinto force)243ZF, inlightofArticle asnolaw interms cannot continuebeyond oneyear of1.6.1994(whenPart IX-A ofthe raised thattheexistingMunicipalitiesinSundergarh Dist.(atotal of4) However, inarecent challengefrom Odisha municipal bodies. Areas. order passedaninterim to staying elections The Court petition challenging theapplicationofmunicipallaws to Scheduled awrit whenhearing Court, inthepastbyBilaspurHigh taken of municipallaws to ScheduledAreas. approach wasThis strict to applywithregardthe sameconstitutionalprinciples to extension was enacted, thatis, untilPESAcameinto force. 243-Mapplication ofthelaw untilalaw withArticle in conformity ofPESA. Areas to theenactment prior stayed theThe Court upon theapplicationofBiharPanchayati to Act Scheduled Raj Amendment. BasudeoBesra vs. UnionofIndia dated 29.02.2008; High Court of Jharkhand; 2008(2)JCR249(Jhr). ofJharkhand; Court dated 29.02.2008;High vs. StateElectionCommission andOrs Uday Shankar Jharkhand andAnr, Ojha WP (C) No. ofIndia. 215of2012,SupremeWP (C) Court Judgment dated 7.5.2013in Orissa MunicipalCorporationOrissa Act, 1950 113 The Ranchi High Court wascalleduponto decide Court High The Ranchi Sundergarh ZillaAdivasi Advocates vs. Association State Govt ofOdisha, (1996) 1BLJR425. (1950 Act) are(1950 Act) applicable 115 114 acontention was Onewould expect th Constitutional judgment andorder

Part III: Testing the Law Against Reality 77 Lok Sabha Sabha Lok th Lok Sabha, in its 2010-2011 report made Lok th 116 Conclusion The Standing Committee on Social Justice and Empowerment (2010-2011), 15 The Standing Committee 2010-2011. a scathing indictment of the Ministry of Tribal Affairs, for its failure to for its failure Affairs, a scathing indictment of the MinistryTribal of and schemes in laws in the implementation of a pro-activeplay role the committee In particular, Tribes. Scheduled and for Scheduled Areas Rights observed the abysmally slow implementation of the Forest Act 2006. Rights Act has implementation of the Forest the later, years Five seen remarkable of individual forest both in the area advances, resource of communityrights and in the area and community forest across uneven remain to however, The implementation continues, rights. states. 116 This is true for all statutory protective legislations, as we have seen above, seen above, have as we all statutory legislations, This is true for protective self governance, land alienation, local to whether these be with regard the process Clearly, legislations. or environmental resources, over control of the rights and the various contained in the Constitution, of erosion in the has gained momentum the state, enacted by legislations protective fabric and of the letter entire The time is not far when the years. last few irrelevant. could be rendered Scheduled Areas to spirit relating of the law combative of an increasingly also see the emergence we At the same time, Scheduled Areas, within the from emerging these processes to resistance What we see today is an unfortunate erosion of the constitutional of the constitutional is an unfortunate erosion see today What we the Fifth where Scheduled Areas, status to special giving mandate is tribal protect to homelands, meant which was Schedule firewall, on Social Justice and Committee The Standing starting crumble. to Empowerment of the 15 Since a comparatively small proportion in the country a comparatively Since Areas of Scheduled areas and cities in of towns the issue of self-management urbanised, are little has received Constitution Schedule of the the Fifth falling under urbanisation in the towards trend increasing with the However, attention. longer. cannot be neglected this issue country, any Land and Governance under the Fifth Schedule 78 of a new democracy. K.G. Kannabiran of anewdemocracy. K.G. fundamental, moral, movements andconstitutionalprinciples ratherassert interpretation available ofthelimited peoples, to rights thetribal these behemoth.Refusingto bedeterredindustrial bythenarrow andlegalistic communities whichrefuseand thetribal to accepttheprogress ofthe 117 Constitution asitwasmeantto be. thisstruggleforward, towardsare facedwiththechallengeoftaking the acommitmentto theruleoflaw. polity toto theIndian bring Today we andlegitimacy, spentalifetime oflegality in India, pushingtheboundaries movement ofthecivilrights aninspired stalwart andinspiring Kannabiran, itselfsomuchwithwhethergovernmental ‘Legitimacy doesnotconcern Delhi, 2004 Delhi, Kannabiran, K.G., K.G., Kannabiran, such anexercise.’ of theexercisepurpose ofconstitutionalpower andthejustificationof exercise ofpower islawful. Rather, whatisatissuethemannerand The Wages of Impunity: Power,The Wages ofImpunity: Justice andHumanRights, 117 has described itthus: hasdescribed Delhi, Orient Longman, Orient Delhi, APPENDICES APPENDIX A

Fifth Schedule to the Constitution of India: Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes

80 APPENDICES 81 APPENDIX B

82 APPENDICES 83 Land and Governance under the Fifth Schedule 84 APPENDICES 85 Land and Governance under the Fifth Schedule 86 APPENDIX C

List of State level laws/regulations on prevention of tribal land alienation and its restoration1

S. No. State Legislation in force Main features 1. All India The Scheduled Castes Applies to the whole of and the Scheduled Tribes India except the state (Prevention of Atrocities) of Jammu & Kashmir. Act, 1989 Section 3(1)(iv) of this Act makes it a punishable offence to wrongfully occupy or cultivate any land owned by or allotted to a member of a Scheduled Tribe, or gets land allotted to him, transferred. 2. Andaman & The Andaman and Mandated to protect the Nicobar Islands Nicobar Protection Scheduled Tribes in the of Aboriginal Tribes four tribal reserves, this Regulation, 1956 Regulation empowers the government to prohibit and regulate the entry of outsiders, and restricts the transfer of lands to non-tribals in the Reserves. 3. Andhra The Andhra Pradesh Prohibits all transfer Pradesh (Scheduled Areas) Land of land to nontribals Transfer Regulation, in Scheduled Areas. 1959, amended by Authorises government The Andhra Pradesh to acquire land in case (Scheduled Areas) Land a tribal purchaser is Transfer (Amendment) not available. There Regulations of 1970, is, however, no legal 1971, and 1978. protection to ST land outside the scheduled areas.2

Contd...

87 Land and Governance under the Fifth Schedule 88 S. No. State Legislation in force Main features Main Legislation inforce State S. No. .AsmTheAssam Landand Assam 4. .Arunachal 5. 6. Andaman & 7. Chhattisgarh (a) Sections 165&170of Sections (a) Chhattisgarh 7. .Dadra&Nagar 8. .GjrtTheBombay Land Gujarat 9. 10. Himachal Himachal 10. Pradesh Nicobar Islands Nicobar Haveli Pradesh 1886, amendedin1981. Revenue Regulations amended. Regulation, 1873,as FrontierBengal Eastern regulation, 1956. of aboriginals’ tribes) islands (protection Andaman andNicobar (b) Madhya Pradesh 1971. Land Reform Regulation, Dadra &NagarHaveli Act, 1980. Act, Second Amendment) Land Revenue (Gujarat amended by Bombay Revenue Code as (Regulation) Act, 1968. (Regulation) Act, Transfer ofLand PradeshThe Himachal Regulation Act, 1964. Regulation Act, Land Distribution Revenue Code, 1959. Madhya Pradesh Land belts andblocks. alienation oflandintribal Regulation prohibits Chapter Xofthe land Prohibits transfer oftribal lands. Protects interest tribal in the scheduledareas. isinforceThe 1964Act in against landalienation. of theCode protect STs 165and170B Sections lands Protects interest tribal in Gujarat. land, inentire State of restoration ofalienated lands andprovide for prohibit transfer oftribal 73AB, 73AC and73AD 73A,73AA, Sections from to non-tribals. tribals Prohibits transfer ofland Contd... APPENDICES 89 Contd... 5 4 June, 1982 by June, st 3 Prohibits transfer of land transfer Prohibits SCs and to assigned by government. No STs safeguard to provision in other SC/ST interest lands. Prohibit alienation of Prohibit for tribal land and provide of alienated restoration land. Alienation of tribal lands UT of in entire prohibited Lakshadweep. Act of 1975 made applicable with effect 1 from notification of January, notification of January, transfer 1986 prohibits of land of tribals its for and provides restoration. (applies to Hos of (applies to Singhbhum). Regulation, 1969. Tenancy Tenancy (Supplementary Act, 1940. Provision) Tenancy Act, 1908 Tenancy old Ranchi(applies to district, mostly comprising Mundas and Uraons). The Karnataka Scheduled and Scheduled Caste of (Prohibition Tribes of Certain Lands) Transfer Act, 1975. (d) Wilkinson’s Rule, 1837 Rule, Wilkinson’s (d) (c) Bihar Scheduled Areas Bihar Scheduled Areas (c) (b) Santhal Parganas Parganas Santhal (b) (a) Chhota Nagpur Nagpur (a) Chhota The Laccadive Islands and and Islands The Laccadive Minicoy Regulation I of 1912. (Protection Lakshadweep Tribes) of Scheduled Regulation, 1964. The Kerala Scheduled (Regulation of Tribes of Land and Transfer of Alienated Restoration land) Act, 1975. 12. Karnataka 11. Jharkhand 14. Lakshadweep 13. Kerala S. No. State in force Legislation Main features Land and Governance under the Fifth Schedule 90 S. No. State Legislation in force Main features Main Legislation inforce State S. No. 7 Manipur 17. 5 Madhya 15. 8 Meghalaya 18. 6 Maharashtra 16. 9 Nagaland 19. Pradesh Reforms 1960. Act, Revenue andLand Land The Manipur a Sec165&170of (a) 1971. Land (Regulation)Act, TransferMeghalaya of (b) The Maharashtra Land TheMaharashtra (a) Act 1978. Act Regulation (Amendment) Land andRevenue amended videNagaland Regulation, 1866,as Assam LandandRevenue Regulation, 1873and FrontierBengal Eastern Regulation Act, 1964. Regulation Act, Land Distribution (b) Madhya Pradesh Revenue Code, 1959. Madhya Pradesh Land Act, 1974. Act, to Scheduled Tribes) (Restoration ofLands as amendedin1974. Revenue Code, 1966, area notcovered. tribals areas andtherefore hill to hill been extended Collector. hasnot Act oftheDistrict permission without non-tribals transfer land oftribal 153forbids Section Scheduled Areas ofMP. isinforceThe 1964Act in against landalienation. of theCode protect STs 165and170B Sections tribal land.tribal Prohibits alienationof transferred landsofaST. illegally andlegally for restoration ofboth landandprovidestribal Prohibits alienationof tribal lands.tribal Prohibition oftransfer of Contd... 6 APPENDICES 91 Contd... 7 Act prohibits transfer transfer Act prohibits others of ST land to without permission of Only lands the Collector. after 1.1.1969 transferred under covered are provision. restoration BSO 15-40 applies only Malayali and Soliga to transfer Prohibits tribes. land without of assigned of Districtapproval Collector. Prevents alienation of Prevents tribal non- lands to tribals. Order of 1917 still in Order 7 of 1977 Chapter force. Act restricts alienation of but is not in STs lands by force. Prohibits transfer of tribal transfer Prohibits for land and provides both in its restoration, (1956 Areas Scheduled as Regulation) as well non-Scheduled Areas (1960 Act). Section 175 and 183B specifically protects in land and tribal interest of restoration for provides them. land to alienated Tripura Land Revenue Land Revenue Tripura Act, and Land Reform 1960, as amended in 1974. Standing Orders of the Standing Orders BSO Board Revenue against land 15-40. Law alienation not enacted. The Punjab Land The Punjab Alienation Act, 1916 Revenue Order no. 1 no. Order Revenue The Sikkimof 1917 Land Ceiling Agricultural Act, 1977 and Reform The Orissa Scheduled of Transfer Areas Immovable Property Tribes) (by Scheduled Regulation, 1956. The Orissa Land Reforms Act, 1960, The Rajasthan Tenancy Tenancy The Rajasthan The Rajasthan Act, 1955, Act, 1956. Land Revenue 25. Tripura 24. Nadu Tamil 21. Punjab 23. Sikkim 20. Odisha 22. Rajasthan S. No. State in force Legislation Main features Land and Governance under the Fifth Schedule 92 6 5 4 3 2 1 7 Constitutional validity upheld by the courts in upheldby thecourts Constitutional validity in ofIndia examinedandupheldbySupreme Constitutional Court validity The constitutional validity of these Regulations has been upheld by the Supreme Court in oftheseRegulationshasbeenupheldbytheSupreme Theconstitutionalvalidity Court S. No. State Legislation in force Main features Main Legislation inforce State S. No. 26. Uttar Pradesh/ Uttar 26. 7 etBna West BengalLand West Bengal 27. Kerala vs. &Ors. andAnr Peoples UnionforCivilLiberties The constitutionalchallengeto thislegislation wasdecidedbythe &Ors. (1984) of Karnataka in examinedandupheldbySupremeConstitutional Court validity Peoples PeoplesIndigenous 2012)Asia Indigenous (Bangkok Pact. of andtheRights India andShomonaKhanna, Gopalakrishnan in/agrarian.htm; BijoyCR,Shankar 2009available NewDelhi, athttp://dolr.nic. Government ofIndia, ofRuralDevelopment, Ministry on StateAgrarian RelationsandUnfinished Task ofLandReforms, pucl.org/Topics/Dalit-tribal/2003/adivasi.htm (lastaccessed15.12.2014); Conflict of Discrimination, andResistance A History ofsources,This tablehasbeencompiledusingavariety includingBijoyCR, & Ors. 126; Wazir Mohd&Ors. vs. Alam&Ors. AIR(34) Said Appelwar vs. StateofMaharashtra (1985)1SCC 479. Bamban vs. I.I. Samatha vs.Samatha StateofAndhra Pradesh and Ors. AIR 1976 Punjab & Haryana 246. AIR1976Punjab &Haryana Uttarakhand (1988)3SCC 433. Officer AIR 1957 Madras433. AIR1957 Officer 3 SCC 301. 1981 Laws (Amendment) Act, amended by U.P. Land Reforms 1950,as Act, Abolition andLand PradeshUttar Zamindari amended. Reforms 1955,as Act, (citation) and

Lala Khazanchi Shahvs. HajiNiazAli AIR1940LahoreLala Khazanchi 1947Peshawar 25; P. RamiReddy , (February 2003),PUCLBulletin,http://www. (2009)8SCC 46. and Department ofLandResources, Department Govt (1981). Swaran SinghvsState in Court Allahabad High stayedamending Act by land.tribal However, Provides protection of restoration. land andprovides for alienation oftribal Chapter II-Aprohibits MancheGowda &Ors. vs. State Ors. vs. StateofAndhra Pradesh Ram Swarup vs. Ram Chander Supreme Court inStateof Supreme Court Report oftheCommittee Report The Adivasis ofIndia: Lingappa Pochanna Abbreviations

CEO Chief Executive Officer DFO Divisional Forest Officer DRDA District Rural Development Agency FRA The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 GP Gram Panchayat ILO International Labour Organisation ILO Convention 107 The Indigenous and Tribal Populations Convention, 1957 (No. 107) ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989 (No. 169) JFM Joint Forest Management LARR Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 MADA Modified Area Development Approach MFP Minor Forest Produce MGNREGA Mahatma Gandhi Rural Employment Guarantee Act, 2005 MMRDA Mines and Minerals (Development and Regulation) Act, 1957 OSATIP Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 PESA The Panchayats (Extension to Scheduled Areas) Act, 1996 PRI Panchayati Raj Institutions

93 Land and Governance under the Fifth Schedule 94 ZP Zila of UnitedontheRights NationsDeclaration UT Union Tribes Council Advisory UNDRIP ResettlementandRehabilitation TSP Tribal Parishad TAC Territory ST Scheduled R&R Sub-Plan Tribes Indigenous PeoplesIndigenous