HRF Letter to The President of India on Proposed amendment to Fifth schedule of the Constitution

His Excellency
The President of India
Sub: Proposed amendment  – Fifth schedule of the Constitution – Regarding

We the undersigned, as persons concerned about the welfare of the adivasi population of the country, are addressing this representation to you.

It concerns the amendment proposed by the Union Ministry of Mines to the Fifth Schedule of the Constitution of India. As you are well aware, the Fifth Schedule puts extraordinary powers of a legislative character in the hands of the Governor of any State having a Scheduled Area, to be used for the `peace and good governance’ of the Area. It also puts in the hands of the President the power of seeking a report from the Governor of such a State concerning the administration of the Scheduled Areas. `Peace and good governance’ is not a neutral expression, but connotes the social and economic betterment of the Scheduled Tribes, as the Supreme Court has rightly said (in Samatha vs State of A.P., 1997).

In recent times, the Andhra Pradesh government has been talking of opening up the Scheduled Areas of the north-coastal areas of the State (mainly Visakhapatnam district) to the mining of bauxite in the private sector. Adivasi organisations and their well wishers have objected saying that any such move will have a devastating impact on the lives of the tribal people living in the area.

Legally, the government of Andhra Pradesh has found an obstacle in the A.P.Scheduled Areas Land Transfer Regulation Act which prohibits the transfer of any land in the Scheduled Areas from any person to a nontribal. Since the Supreme Court has interpreted the word `person’ to include the government, it follows that the government cannot give land on lease to a private nontribal individual or any corporate body other than one consisting entirely of tribals. This interpretation of the word `person’ was given by Justice Ramaswamy who wrote the majority judgement in Samatha vs State of A.P.

Some time ago the State government proposed to amend the above Act to exclude the government from the definition of `person’ and thereby defeat the Samatha judgement.

It bulldozed the Tribal Advisory Committee, consisting mostly of ruling party MLAs, to put the seal of their approval on this move, without telling them the full legal and social implications of the amendment proposed: namely, that what the nontribals could not do as farmers they would hereafter be able to do as mining contractors, i.e., lease in land in the Schedule Areas from the government and gradually drive the tribals out.

However the move did not fructify since the State government realised that the Samatha judgement had read into paragraph 5(2) of the Fifth Schedule itself the prohibition of land transfer by the government to a nontribal person or corporation.

So now moves are afoot to amend the Fifth Schedule itself. This move emanates from the Chief Minister of Andhra Pradesh but will have impact all over the country. A campaign is being conducted saying that the Supreme Court judgement is inimical to development since all the bauxite or other minerals available in the Scheduled areas can never be mined.

This is plainly untrue. The Samatha judgement pointedly left it open to the government to have the mining in Scheduled Areas done by public sector corporations or government departments. Of course, any such mining will have to proceed cautiously in terms of the scale of operations to ensure that adivasi life, livelihood and ecological balance are protected. It may be preferable to limit the extent of the mining and lease it to adivasi cooperative societies. But once mining is allowed to be handed over to private nontribal interests, no such caution or regulation is going to be possible.

We the undersigned therefore request you to use your authority under the Constitution to ensure that the proposed amendment does not take place. If we may make a concrete suggestion, you could use your power under paragraph 3 of the Fifth Schedule to call for a report concerning the justification of the proposed measure and its likely impact upon tribal life from the Governor of Andhra Pradesh. That could be the point of departure for interrogating the Government of Andhra Pradesh which is pushing the proposed amendment down everybody’s throat using the enormous clout acquired by its Chief Minister in the country’s political and decision making process.

You will be doing a signal service to the adivasis who look up to you as a friend within the portals of power.

                                                                         Yours truly

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