Supreme Court order declaring all coal mining allocation since 1992 illegal: Adivasis do not figure anywhere in the discourse

Mining in JharkhandFollowing is a letter written by veteran human rights activist from Jharkhand, Stan Swamy, to prominent Supreme Court advocate Prashant Bhushan, who has fought cases against illegal mining in the Supreme Court. The Supreme Court, in its recent ruling, held that the coal blocks allocated from 1992 onwards were illegal and devoid of any procedure. It added, the allocations were done in arbitrary, non-transparent manner and were against public interest. Swamy, who is with Jharkhand Bachao Andolan, has regrets in his letter that the plight of the tribals is nowhere in discourse, while it should be central to any decision on coal mining.  Text of the letter:  

Respected Prashantji,

May I bring before all concerned that the indigenous adivasi people do not figure anywhere in the whole discourse on illegal mining presently going on in the Supreme Court of India. It is common knowledge that, especially in the mineral-rich adivasi /tribal dominant central India, most of the mining, both legal and illegal, is taking place on adivasi land.  Land was forcibly acquired from them, using the Land Acquisition Act of 1894.

They were given very little amount of cash as compensation, and were displaced wholesale. No Indigenous adivasi has ever been rehabilitated, as it involves giving ‘land for land’. Nor has there any resettlement of adivasis as a community, taking into account the social and cultural factors. On the other hand, outsiders have immigrated in large numbers and have taken over the whole economy and have captured government bureaucracy and the media. The original inhabitants, the indigenous adivasis, are an impoverished lot, facing extinction.

In its past judgments, the Supreme Court has taken cognizance of this factor. They point towards the historic injustice being done to adivasi /tribal people.

Says Criminal appeal No 11/2011 (section 36): “The injustice done to the tribal people of India is a shameful chapter in our country’s history. The tribals were called `rakshas’ (demons), `asuras’ and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands, and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now, efforts are being made by some people to deprive them even of their forests and hills where they live. They are not even allowed to make proper use of forest produce on which they survive”.

The new land acquisition law, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 says that the consent of the landowner before land is acquired is necessary.

“The right to excavate the mines from the land of private owner is based on agreement; unless the leaser gives his consent, no lessee has a right to enter upon his land and carry on mining operation. The right to grant mining lease to excavate the mines beneath the surface is subject to the agreement of the land owners, Therefore, with a view to ensure that there will not be any obstruction in working of the mining lease and also for the peaceful operation to the excavation of the mines, insistence on the consent of the landlord is necessary” (Writ Petition No. 13147/96).

The   2013 Act also says, “… the consultation with the Gram Sabha in Scheduled Areas shall be in accordance with the provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996” (Section 2,16, [6].

Provisions in the law suggest that the owner of the land is also the owner of the minerals:  “There is nothing in the law which declares that all mineral wealth sub-soil rights vest in the state, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of t,he land is deprived of the same by some valid process” (Civil appeal Nos 4540-4548 OF 2000, section 57)

The Justice MB Shah Commission on illegal mining, while making its inquiries, reported that in Jharkhand alone iron ore worth over Rs 22,000 crore and manganese ore valued around Rs 138 crore were extracted “illegally and without lawful authority”, and 18 leases were running as deemed extension, without having environmental approvals; 22 leases were carrying mining in violation of norms. The question is: should not this loot amount be restored to the adivasi/ tribal landowners?

Our proposal and request is that Prashant Bhushan should bring all this to the notice of the Supreme Court, which is considering to look into the consequences of its judgment.

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