HRF letter to The President of India on Private mining leases in the Agency areas of AP and Proposal to amend LTR Act & MMRD Act

His Excellency
The President of India
Rashtrapati Bhavan, New Delhi
Sub: Private mining leases in the Agency areas –  Andhra Pradesh – Proposal to amend the law –  effect on tribal communities – Constitutional propriety – ill effect on tribal lives – action regarding – Art 339(2) of the Constitution

The Government of Andhra Pradesh proposes to go in for private mining leases in the Visakhapatnam Agency (Scheduled Area) for the purpose of developing mining of Bauxite. An Aluminium factory is also proposed to be set up at Chintapalli village in the same Agency area. The government has succeeded in seeing that the discussion is centred around the factory, whereas mining of Bauxite is a much bigger enterprise, and is likely to encroach much more upon the lives and livelihood of the Adivasis. If all the Bauxite deposits in the three north coastal districts of Visakhapatnam, Vizianagaram and Srikakulam in Andhra Pradesh are opened up for mining, whether in the private sector or the public sector, almost the entire Agency will be dug up and there will be no place left for the Adivasis even for mere survival. 

To enable opening up the Agency for Bauxite mining by private companies, the government proposes to introduce two amendments to the law in force. One amendment is to the Andhra Pradesh Scheduled Areas Land Transfer Regulation Act (The LTR Act, in short) and the other is to the Mines and Minerals (Regulation and Development) Act MMRD Act, in short). Approval for these changes has been obtained from the Tribal Advisory Council by brow-beating the members into believing that any opposition to it would mean jeopardising the State’s economic prosperity to safeguard the `narrow’ and `sectional’ interests of the Scheduled Tribes.

These proposed amendments have been necessitated by the Judgement of the Supreme Court in Samatha vs State of A.P.(1997), wherein a three judge bench held by majority that the State cannot lease out or otherwise transfer land in the scheduled areas to non-tribals for any purpose whatsoever. It can do so only to tribals or to a cooperative society whose members are exclusively tribals. That case also arose from a mining lease given by the State government of Andhra Pradesh to a private mining company in the Visakhapatnam Agency. The grant of lease was struck down by the Supreme Court.

The State government now wishes to introduce amendments to Sec 3(1) of the LTR Act and Sec 11(5) of the MMRD Act to nullify this judgement and enable it to give mining leases to non-tribal persons and companies. We wish to express our protest and objection to this proposal on two grounds, one being the Constitutional impropriety of the proposal and the other the social and economic implications it has for the lives of tribal people.

The Supreme Court’s opinion in the above judgement is not based merely on an interpretation of the LTR Act and the MMRD Act. If that were the case, there may not be any legal impropriety in a technical sense in the proposal for statutory amendment to get over the opinion, even though it would nevertheless be objectionable both from the social and the broader constitutional view point which gives pride of place to the welfare of the weak, in particular the Scheduled Tribes. However, the Supreme Court’s view in the Samatha case is based on an interpretation of the Fifth Schedule to the Constitution itself, and not merely the LTR Act and the MMRD Act. The Court has held that by virtue of Para 5(2)(a) & (b) of the Fifth Schedule itself, no transfer of land to a nontribal can be made by the Government in an Agency area. This is a Constitutional prohibition and not merely a prohibition written in the LTR Act and the MMRD Act, said the Supreme Court.

We need not remind Your Excellency that all executive and legislative power is subject to the Constitution. And the exclusive prerogative of interpreting the Constitution lies with the Supreme Court. We are really surprised that the Advocate General of Andhra Pradesh has advised the State government to go ahead with the amendments which would be unconstitutional in terms of the Supreme Court’s view in the Samatha case.

Even otherwise, Your Excellency is well aware of the special powers placed in the hands of the Governor by the Fifth Schedule of the Constitution for ensuring peace and good government in the scheduled areas. This power specifically includes the power over allotment of land or the transfer of land in the scheduled areas, though it is not confined only to that. It is very general in its extent, and includes the power to exclude the scheduled areas from the operation of any law. As is evident from the provisions of the Fifth Schedule read with Arts 15(4), 38(1), 46, and 244(1), this power of ensuring `peace and good governance’ in the scheduled areas must be exercised for no purpose other than or inconsistent with the social and economic advancement of the scheduled tribes.  This is again the view of the Supreme Court as expressed in Samatha vs State of A.P. That being the case, can the State whose executive power in the scheduled areas is mandated by the Constitution to be exercised in the above manner, be permitted to legislate in a contrary direction ? We believe not. We also believe that since the Constitution has put the plenary powers of the Fifth Schedule in the hands of the Governor of the State, he should not and will not allow the government to legislate contrary to the constitutional mandate.

It is said by the government that the development of Bauxite mining in the Agency areas is also beneficial for the tribal people since it will provide them with employment. Here we come to the second part of our complaint. Your Excellency is well aware that there is no law in force, nor is any contemplated, that will force the private corporate sector to implement reservations of any sort. It is difficult to believe that in the present situation where governments in our country including that of our State are bending over backwards to satisfy the whims of the corporate sector to persuade them to invest in their respective States, the Government of A.P is going to make it a condition precedent that the lessees shall employ a specified percentage of tribal people.        

One need not look only at the private sector. One may as well take the live example of the public sector mining and mineral-based Companies that have been established in the adivasi areas of Bihar, Madhya Pradersh and Orissa (much of which is soon to be included in the new States of Jharkhand and Chattisgarh)  to see how much employment such development is likely to provide the tribal people with. All the factors that determine access to skilled employment work against the adivasis. What they are left with is a small quantum of casual / contract work. The net result is that the tribal people living in the lands which go under mines are driven deeper into the forest, to compete for sustenance with the people who are already there, or else they are driven to a life of crime.

All talk of the private Bauxite mines and private Aluminium factory providing jobs to the displaced tribal people is therefore merely an eye wash.

It is said by the State government that letting the Bauxite deposits go unused is a huge loss to the State in terms of raw material as well as industrial development. But the loss and gain account cannot be totaled up without taking stock of what the adivasis would lose if this development is forced upon their habitat. This is in addition to the destruction of the habitat itself, which is a rich forest whose devastation is bound to have serious consequences. A total exploitation of the Bauxite resources must therefore be ruled out.

A limited mining in carefully chosen areas can be undertaken to subserve the mineral needs of the State’s industry, provided the mining is handed to tribal cooperatives as is envisaged by the provisions of the LTR Act and the MMRD Act that are sought to be now amended. Tribal youth can be trained to undertake the mining and its marketing. The State government has already taken this decision in the matter of the mining of semi-precious stones that abound in the same Agency and has issued a GO to this effect. The Integrated Tribal Development Agency of the Social Welfare Department of the Government of Andhra Pradesh has been directed to encourage and help adivasi youth to form cooperatives and train them to undertake the mining and polishing of the stones. There is no reason why the same cannot be done with Bauxite also, to the limited extent that Bauxite mining can be undertaken without destroying the habitat and livelihood of the adivasis..

We also wish to inform Your Excellency that the State Government has not consulted the National Commission for Scheduled Castes and Scheduled Tribes, as is mandated by Art 338 of the Constitution of India, before taking this far reaching decision. We have written to the said Commission to draw that body’s attention to this unconstitutionality.

We request you to consider the above matters seriously, and call for a report from the State Government as to its answer to the objections raised above to its proposal, and issue directions aimed at protecting the welfare of the Scheduled Tribes in exercise of Your Excellency’s powers under Art 339(2) of the Constitution of India.

We wish to stress that ours is not the only organisation opposing the State Government’s proposal to open up the Scheduled Areas to Bauxite mining and the manufacture of Aluminium. Many tribal organisations, as well as the CPI(M) and the Congress have also spoken out against the proposal for reasons similar to the ones narrated above.

Yours truly

(S.Jeevan Kumar)

(R.Madhusudan Raju)


Address for correspondence:
S. Jeevan Kumar
H.No 3-12-117/A2/1, P.S.Colony
Ramanthapur, Hyderabad-500013

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