Judicial appreciation of tribal's right: Samatha Case judgment

Dr Konbrailatpam Ratnabali *

Tribal societies' struggle today is a struggle to recognise, promote and protect their culture, identity, the centrality of natural resources for their livelihood, and equitable share of the benefits of development over their natural resources. This struggle aims to bring about social change that will shakes the very foundation of the power structures that has been in existence for centuries.

Therefore, this tumultuous period of transition has to be handled prudently by the state and the society at large so that this phase is tide over without resorting to violence as a means of social adjustment, but peaceful negotiation at various levels must be promoted to achieve the ends.

Of the various platforms for peaceful negotiation of differentiated needs and conflicting demands, court forms one of the principal institutions that provides not only an approachable platform but is also considered, to a large extent in India, as a repository of justice.

This article highlights one of the landmark judgments of the Supreme Court in Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, wherein the apex Court has given a detailed account of the tribal societies, the significance and attachment they have with their land and problems of land alienation faced by them.

The Court pointed out in its judgment that land is tribals' most important natural and valuable asset and imperishable endowment from which the they derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source for economic empowerment. Therefore, the tribes too have great emotional attachment to their lands.

The said case pertains to a local dispute over leasing of tribal lands to the private mining industries against the wishes of the tribal community who wanted to regain control over their lands rather than work as labour force in the mining operations on their own lands.

The issues/questions raised in the case were: whether the Andhra Pradesh Scheduled Area Land Transfer Regulation would apply to transfer of Government land to a non-tribal?;
whether the Government can grant mining lease of the lands situated in scheduled area to a non-tribal?;
whether the leases are in violation of Section 2 of the Forest Conservation Act?;
and whether the leases are in violation of Environmental Protection Act, 1986?

The Hon'ble Supreme Court in its judgment permitted the mining activity to go on as long as it is undertaken by the government, or instrumentality of state or a cooperative society of the tribal but rendered all lands leased by the government or its agencies to private mining companies as null and void.

Some of the salient features of the judgment are as follows:

Firstly, as per the 73rd Amendment Act, 1992, which "...every Gram Sabha shall be competent to safeguard…..Under clause (m) (ii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a scheduled tribe".

If we examine the areas where the 73rd Amendment is not applicable, there are corresponding legal provisions such as in Sixth Schedule of the Constitution which provide a pathway to prevent alienation of land of the tribals.

Secondly, the Court has also stated that minerals are to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State. Meaning thereby, tribals' have the right to self-determine the economic development which they would like to undertake. It has also recognized the right of the tribals to determine the manner of exploitation of natural resources.

Thirdly, in the absence of total prohibition from alienation of land, the Court laid down certain duties and obligations of the lessee on the ground that when State leases out the lands in Scheduled Areas to the non-tribals for exploitation of mineral resources, it transmits the correlative constitutional duties and obligations to protect the social, economic and educational interest of the tribals. Therefore, as part of the project expenditure at least 20% of net profits has to be earmarked as permanent fund for development needs apart from reforestation and maintenance of ecology.

Fourthly, transfer of land in Scheduled Areas by way of lease to non-tribals, corporation aggregate, etc. stands prohibited to prevent their exploitation in any form. This order shall ensure that even though a tribal may be lured to deal with his land by transferring his right to use his land through lease to any other non-tribal for any such purpose whatsoever, because of this prohibition such dealing may be cancelled.

Fifthly, Transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm, etc. is unconstitutional, void and inoperative. State instrumentalities like APMDC (Andhra Pradesh Mineral Development Corporation Ltd.) stand excluded from prohibition. Every renewal of lease is fresh grant of lease and therefore, any such renewal stands prohibited.

The Court observed that in States where there are no acts which provide for total prohibition of mining leases of land in Scheduled Areas, Committee of Secretaries and State Cabinet Sub Committees should be constituted and decision taken thereafter. Conference of all Chief Ministers, Ministers holding the Ministry concerned and Prime Minister, and Central Ministers concerned should take a policy decision for a consistent scheme throughout the country in respect of tribal lands.

This judgment is indeed progressive in the sense that it tries to secure tribals' right to land and resources arising out of land and the autonomy to decide for themselves on exploitation of resources that they have in their land. The judicial development on this issue shall be examined in the subsequent article.