SAMATHA JUDGEMENT

1. Under the 73rd Amendment Act and latest PESA-Act of 1996, every Gram Sabha shall be competent to prevent land alienation and to take appropriate action to restore any unlawful alienation of land of the schedule tribe.
2. Minerals are to be exploited by the tribal themselves either individually or through co-operative societies with fundamental assistance of the state.
3. Transfer of Land in schedule area by way of lease to Non-tribal Corporation aggregate etc. stand prohibited. Renewal of lease is fresh grant of lease and therefore any transfer stand prohibited.
4. Transfer of mining lease to non-tribal company, corporation aggregate or partnership firm is unconstitutional void and in operative.
5. In the absence of total prohibition in some state with schedule area, Committees of Secretaries and State Cabinet sub-committees should be constituted and decision taken thereafter. On the basis of this guideline, Orissa government had set up a cabinet sub-committee to review the Samantha judgment and said that the Apex Court judgment is not binding on Orissa. The panel has further decided that the Andhra Pradesh Scheduled Area Regulation Act, 1956 which completely prohibits transfer of land in the Scheduled areas in favor of non-tribals, cannot be replicated in Orissa as adequate care has been taken to protect the tribal interests in the existing laws of the State; The Orissa Scheduled Areas Transfer of Immovable Property (Scheduled Tribes) Regulation, 1956 and Orissa Zilla Parishad (Amendment) Act, 1997, (Panchayat Extension to Scheduled Areas-1997, PESA).

Against the Judgement & Constitution

Orissa Government's outright decision not to put ban on transfer of land and mining lease to the companies is against the Supreme Court judgment and violets the provisions of constitution. Under the Central Law (Act 40 of 1996, PESA) it is mandatory that the Gram Sabha or the Panchayats at the appropriate level, which need to be consulted before acquiring land in the Scheduled areas. The requirement of this law would be complied with if either the Gram Sabha or the Panchayats at the appropriate level is consulted. Orissa government amendment Act of 1997 impinges this right of Gram Sabha by exclusively giving power to Zilla Parishad which provide enough scope for manipulation at state level.

Role of Governor under Scrutiny

The Supreme Court in its judgment underlined the Article 244 (1) of 5th Schedule of the constitution, which gives exclusively power to the State Governor to protect the interest of tribals in the 5th Schedule areas. Over the years the role and authority of Governor has come under close scrutiny. Since the elected government are ruling everywhere the role of Governor has eroded considerable. The political realities which govern day to day administration in India have reduced the role of Governor to that of an agent of the party or coalition in power. For all practical purposes the Governor is not an autonomous position. He is Governor in council/government and he does not represent the person of President. Therefore to expect the Governor to play important role in Scheduled area is just a wishful thinking and will yield any real benefit to the tribals. If the elected government and political parties don't recognise the fast deteoriting situation in schedule area and the role of natural resources in ameliorating the plight of the tribal. A ceremonial position of the Governor may not be much of help. Despite of the limitation in the laws and present political realities which govern the state, the above provisions and constitutional safeguards is a major impediment in the acquisition of land and mining lease exercise. This is what the government of Orissa was keeping silent for last six years. Its sudden interest for mining lease and outright decision not to obey the Supreme Court judgment on the issue reveal the real motives and the forces (Mining lobby) behind it.

Implications

Due to the displaced induced development policy of the government, natural resources and livelihood of tribals are in great danger. Evidence shows that displacement from the large-scale projects has virtually pushed the tribal to the abject of poverty and hunger. As a result the tribals and people in the schedule areas are forced to migrate. There are hoards of example on migration coming from tribal dominated districts. Recently published report a in local daily "The Sambad" dated 28/ 07/03 on situation of Kalahandi by district official bears testimony to this fact. There are 48 thousand people are in state of hunger and eighty thousand unemployed youth in district. Labourers and unemployed youths are forced to migrate to the neighboring states Andhra pradesh and Chhastishargh for jobs and livelihood. The Orissa Cabinet Sub-Committee's proposal for equity share and infrastructure development in the mining area is a farce. It has been observed from the number of big projects that the displaced people have never been rehabilitated properly.

Against the interest of Tribal and State

Irony is that the State government is not getting the due revenue as it is supposed to be from the company. Secondly interest of the state and employment of the local people are never taken into consideration while giving the mining lease. As a result thousands of unemployed youths and laborers are move out from the mining area and migrate for their livelihood. Another important point, the companies are only interest for mining operation but not for the development of the State. They are not in favor of establishing industries or in no way will contribute to the State infrastructure development. Recently government's won admission on this in a press conference to expedite the scraping of iron ore mine lease given to Tata Steel and Larson and Toubro in Keonjhar district clear this point. These companies withdrew from setting up steel plant at Gopalpur. During the last decade over a dozen Memorandum of Understanding [MoU] were signed by the State Government with different companies for establishment of steel plants in the State. But not a single plant has so far been established. [Indian Express 13/07/03] Thus all these anti people policy of the government will further aggravate the situation in Orissa. It is clear that the real motives of the government giving mining lease to private companies is to earn huge amount of money for their own interest. It has been further observed that they cannot make such amount of money so quickly and easily from any other projects.

To challenge this vested interest of the government, we appeal to the civil society and thinking people in Orissa to come forward to save the natural resources of the State and protect tribal population so that they don't become a refugee in their home land, and non tribal companies and other non-tribal vested interest do not make it their playground on the plea of National and State interest.