Bhanumathi, K; Rebbapragada, Ravi --- "The Fifth Schedule of the Indian Constitution and the Samatha Judgement" [2001] IndigLawB 82; (2001) 5(13) Indigenous Law Bulletin 22

The Fifth Schedule of the Indian Constitution and the Samata Judgement

by Ravi Rebbapragada and K Bhanumathi

The Fifth Schedule of the Indian Constitution (‘the Fifth Schedule’) provides for the administration and control of tribal lands (termed ‘scheduled areas’) within nine states of India. The Fifth Schedule provides protection to the Adivasi (tribal) people living in scheduled areas from alienation of their lands and natural resources to non-tribals. This constitutional safeguard is now under imminent threat of being amended to effect transfer of tribal lands to non-tribals and corporate bodies. This move has serious implications for the very survival and culture of the ten million tribal people of India.

Samata, an advocacy and social action group working in the southern Indian state of Andhra Pradesh, fights for the rights of tribal communities and the environment in the Eastern Ghats region. In 1992 Samata was involved in a dispute with the State Government of Andhra Pradesh (‘the State’) over the leasing of tribal lands in the scheduled areas to private mining industries.

Under the Andhra Pradesh Scheduled Area Land Transfer Regulation (‘the Regulation’), the law in Andhra Pradesh clearly states that tribal land cannot be transferred to non-tribals. Consequently the tribal community approached Samata to regain control over their lands. In addition to mobilising a people’s movement locally, Samata took up a battle to question the legality of the leases.

The Samata Judgement

Samata first filed a case in the local courts and later in the Andhra Pradesh High Court (‘the High Court’) in 1993 against the State for leasing tribal lands to mining companies. When it was dismissed there, Samata filed a Special Leave Petition in the Supreme Court of India (‘the Supreme Court’), where a four-year battle led to a historic judgement in Samata vs State of Andhra Pradesh[1] (‘the Samata judgement’) declaring that the transfer of land in scheduled areas for private mining was null and void.

The main issue in the Samata case was whether or not the word ‘person’ used in s 3 of the Regulation includes government. Section 3(1)(a) states:

Not withstanding anything in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person who is a member of a Scheduled Tribe or Society.

The majority of the Supreme Court held that:

• the word 'person' includes the State Government, and the transfer of land in scheduled areas by way of mining leases to non-tribal people or companies is prohibited by the Fifth Schedule and s 3 of the Regulation;
• tribals can exploit the minerals in the scheduled areas, without disturbing the ecology or the forest, either individually or through cooperative societies with the financial assistance of the State;
• transfer of tribal lands to State instrumentalities (ie state-owned organisations or corporations) are excluded from the prohibition ‘[s]ince ... a public corporation acts in public interest and not for private gain’; and
• in the absence of a total prohibition on the transfer of lands, any licensee or lessee must provide certain duties and obligations to the tribals as part of the administration of projects. At least 20 per cent of the lessee’s net profits would have to be set aside as a permanent fund for the people’s development needs on top of any expenditure for reforestation and the maintenance of ecology.

Finally the Supreme Court directed that the Prime Minister should convene a conference of all relevant ministers to develop a national scheme based on the guidelines laid down in the judgement in relation to tribal lands throughout the country.

Events After Samata

The State and Central Governments appealed to the Supreme Court to amend the judgement and reinstate powers to the State to grant leases to private mining companies. The Court dismissed this appeal.

The Central Government through its Ministry of Mines then circulated a secret document among all the Secretaries proposing amendments to the Fifth Schedule to overcome the Samata judgement. This document was unearthed by Samata and exposed publicly to all groups working in the Fifth Schedule areas. This raised a nation-wide protest from tribal communities and organisations.

The State of Andhra Pradesh continued its efforts to violate the Samata judgement. In June 2000 it forced the Tribes Advisory Council, the statutory body for decision-making on tribal issues in the State, to pass a resolution to amend the Regulation under the Fifth Schedule to permit mining in the scheduled areas. The State proposed to extend a lease to a Dubai-based company to extract calcite from the hills of the scheduled areas. Samata disseminated this information to all opposition parties and tribal groups and the State was faced with severe protests from all quarters. The Chief Minister of the State was finally forced to make a public statement that they were withdrawing this proposal.

The BALCO Case

The divestment of the public sector Bharat Aluminium Company (‘BALCO’), which is situated in a scheduled area, by the Central Government to a private company called Sterlite through a 51 per cent sale in early 2001 was challenged by the State Government of Chattisgarh.

On 10 December 2001 the Supreme Court delivered its final verdict in the BALCO case:

While we have strong reservations with regard to the correctness of the majority decision in Samata’s case, which has not only interpreted the provisions of aforesaid Section 3(1) of the A.P Scheduled Areas Land Transfer Regulation, 1959 but has also interpreted the provisions of the Fifth schedule of the Constitution, the said decision is not applicable in the present case because the law applicable in Madhya Pradesh is not similar or identical to the aforesaid Regulation of Andhra Pradesh.

The Fifth Schedule read with the Samata judgement stands as a custodian of Adivasi constitutional rights. However, the Supreme Court in the BALCO case decided that the Samata judgement only applies in certain situations. The BALCO case shows that Central and State Governments are trying to water down the Samata judgement on the pretext that the decision does not apply in the absence of any executive instructions or State laws which support the Fifth Schedule.

The Conflict Over Samata

The underlying theme of the Samata judgement and the concern of groups like Samata is the concept of sustainable development and the precautionary principle. When development is controlled, regulated or supervised by the local tribal community or state instruments (assuming the social welfare mandate of the state), there is less chance of environmental degradation and social destruction.

In consideration of future mining activities, the Supreme Court gave clear directions on the course of action that could be taken by the Central Government. Instead of implementing the orders, the Central and State Governments continue their efforts to reverse the judgement. The Supreme Court can reconsider its decision in the Samata case if another case on a similar issue is brought before it. In this way, the Central Government tried to use the BALCO case to overturn the Samata judgement. The other course open to parliament is to effect necessary amendments so as to overcome the Samatha judgement by removing the legal basis of the judgement.

The Central and State Governments’ paranoia in relation to the judgement is unfounded. The Supreme Court has not imposed a blanket ban on mining activity in the scheduled areas. Mining activity is permitted if carried out by government, a state instrumentality or a cooperative society of the tribals. If the Constitution is amended to allow mining activity in tribal areas, other industries would also be able to justify the acquisition of tribal lands for ‘development’.

Stringent environment standards prevent multinational industrial lobbies from acquiring lands and plundering natural resources with wanton abandon in their own countries. Instead they invade countries like India. It is these powerful lobbies that will continue to pressurise nations like ours to shrink the social responsibilities of governments and pander to commercial interests.

With India’s economic policies leaning towards market forces and liberalisation ideologies, the rights of people over their resources, livelihoods and democratic ways of life will continue to be threatened. As a tribal elder from Nimmalapadu, the village that won the Samata judgement, stated, ‘Companies are like monkeys and will keep attacking our lands again and again. It is a lifelong battle to protect our lands and our crops.’

Ravi Rebbapragada is the Executive Director of Samata and National Convener of

‘Mines, Minerals & People’. K Bhanumathi is a director of Samata. Both have been working with the Tribal People in India for the last decade and half.

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[1] Supreme Court of India, K Ramaswamy, S Saghir Ahmad, GB Pattanaik JJ (11 July 1997).