MoUs with industrialists in Jharkhand are unconstitutional and illegal

MoUs with industrialists in Jharkhand are unconstitutional and illegal

All MoUs signed with industrialisrs for implementation in Vth Schedule Areas in Jharkhand without the recommendation of TAC and without the consent of Gram Sabhas are illegal and unconstitutiona

We all know that a legitimately elected Government should always try to safeguard the Constitution and the laws of the country. But here in Jharkhand we have a situation where the state govt itself is the biggest violator of both the Constitution and the laws of the country. Let us see how it is so:

I. The Fifth Schedule [Article 244(1)] of the Constitution states “There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State . . .” [4.(1)]. It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor. [4.(2)].

The Governor of the State “may make regulations for peace and good governance and prohibit or restrict the transfer of land by or among members of the Scheduled Tribes” [5.(2).(a)]. And, “No regulation shall be made unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the state, consulted such Council.”[5.(5)]

The above are the constitutional provisions with regard to peace and good governance in general and land transfers in particular. The sad fact is over the past ten years about 100 MoUs have been signed with industrialists. Most of them are to be situated in Scheduled Areas. More than one lakh acres of mostly Scheduled Tribes land is meant to be acquired. During the span of ten years very few Tribes Advisory Council meetings have been held. In no meeting the MoUs that were being entered into with industrialists were placed before the TAC members and their advise sought. Consequently the Governor has not made any regulation to allow the MoUs in the Scheduled Areas of the State. But the land acquisition process has been set afoot with tremendous speed and vigour. With land alienation comes displacement of Scheduled Tribes people. Strange but true, the State govt has not kept an account of how many acres of land have been acquired and how many people have been displaced. This, in short, is a crime perpetrated by the State against the Scheduled Tribes people of the State.

Lo and behold, there have been four Governors in Jharkhand during the last ten years. No Governor sought the advise of the Tribes Advisory Council with regard to the various MoUs and its consequence in terms of alienation of Scheduled Tribes land and the displacement of Scheduled Tribes people.

II. We now come to the field of legislation. One of the most significant legislations passed by the Parliament in recent times in favour of the Adivasi People is The Provisions of the Panchayats (Extension tol the Scheduled Areas) Act, 1996 [PESA]. It emerged as a result of the over due realization that the Adivasi People have been neglected during all the years of independence.

Some of the salient points of this Act are:

(a) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;

(b) a village shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs;

( c) every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level;

(d) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;

(e) every Gram Sabha shall-

i. approve of the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level;

(k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas;

(l) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for the exploitation of minor minerals by auction;

(k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas;

(m) (ii) the Gram Sabha shall have the ownership of minor forest produce;

(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;

(vi) the power to exercise control over institutions and functionaries in all social sectors;

The Jharkhand govt hurriedly passed a Panchayati Raj Adhiniam, 2001, without any consultation with the Adivasi People and their mass fronts, which took away some important powers of the Gram Sabha given in PESA Act. Some such powers denied by the State Act are :

· Gram Sabha shall be consulted before making the acquisition of land for development projects and before re-settling or rehabilitating persons affected by such projects; (4: i)

State Act makes no mention

· It’s recommendations shall be sought before granting prospective license or mining lease for minor minerals and before granting of concession for the exploitation of minor minerals by auction;
(4: k – l)

State Act makes no mention

· Gram Sabha & Panchayat to be endowed with the ownership of minor forest produce (4: m.ii)

State Act Concurs 2.10.1.ka.xi

State Act gives only the responsibility for the care & protection of forests to the Gram Sabha but not the ownership of forest-produce. State Act gives this power only Zila Parishad. State Act 2.10.1.xxxvi

· Gram Sabha & Panchayat are given the power to prevent alienation of land in Scheduled Areas and to restore unlawfully alienated land of the adivasi to the Gram Sabha (4 m.iii)

State Act makes no mention

· Gram Sabha & Panchayat to be endowed with the ownership of minor forest produce (4: m.ii)

State Act Concurs 2.10.1.ka.xi

State Act gives only the responsibility for the care & protection of forests to the Gram Sabha but not the ownership of forest-produce. State Act gives this power only Zila Parishad. State Act 2.10.1.xxxvi

· Gram Sabha & Panchayat given the Power to exercise control over institutions & functionaries in all social Sectors (education, health etc.) (4 m.vi)

State Act gives it only Zila Parishad. 7.77.ga.2

Very unfortunately, although the Supreme Court has cleared the PESA Act in its totality, the Jharkhand Govt has yet to formally announce its implementation. The lame excuse was that the Panchayat Election has not been held for over two decades and hence Panchayats are not in existence in the State. Now that excuse also does not hold because election has been held and panchayats have started functioning. However, MoUs with industrialists continue to be signed. Attempts are made to divide village communities and dupe people with the promise of giving them jobs in the company if they agree to give their land. The local administration, the police are very much with the companies. The people resisting land-alienation and displacement are easily labeled as extremists / Maoists / Naxalites. They are harassed, implicated in false cases, arrested, tortured and even killed. This is the implementation of PESA Act in Jharkhand!

A hope and a plea

Can Human Rights organizations, concerned intellectuals, socially conscious media, conscientious legal professionals come forward and take the State Govt to task and if need be take legal action demanding immediate implementation of PESA Act. Finally, is it too much to hope that the judiciary at whatever level will take suo motu action on Jharkhand govt and direct it to implement the PESA Act in full immediately.