Adivasi Resistance to Mining and Displacement: Reflections from Jharkhand

March 10, 2015

jharkhand

By Fr. Stan Swamy

[Updated April 20, 2015]

[Introduction: Fr. Stan Swamy is one of the most outspoken and well-recognized voices among Jharkhand political and civil society activists, who has been working and writing on issues of adivasi rights, displacement and political prisoners. He has meticulously collected data on the more than 6000 adivasi prisoners languishing in Jharkhand jails who have been imprisoned on a variety of political and false criminal charges. We will publish a series of articles by him, written over a period of time from 2009 – 2014, that constitute a critical voice of intervention at the current conjuncture. – Ed.]

Update of April 20, 2015 consists of the following article:

5. Manufacturing Consent: How Industrialists Get Village Communities to Accept the Land Acquisition Process – originally written in 2008

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Update of March 10, 2015 consists of the following article:

4. A Table, Some Old Pistols, and Press Cameras: How Police Arrest “Extremists” in Jharkhand – originally written in March 2009

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Update of Feb 14, 2015 consists of the following three articles:

3. MoUs with industrialists in Jharkhand are unconstitutional – written in June 2011
2. Where Ants Drove Out Elephants – The Story of People’s Resistance to Displacement in Jharkhand – written in Jan 2012
1. ‘Owner of land is also owner of minerals’ – Supreme Court – written in Nov 2013

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Article 5: Manufacturing Consent: How Industrialists Get Village Communities to Accept the Land Acquisition Process

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By Stan Swamy

Gone are the days when industrialists who want to set up industries approached the government to acquire the land, forcibly if need be, and hand it over to them. People are becoming more aware and are more organised. The govt has burnt its fingers trying to forcibly acquire land. Kalinganagar, Singur, Nandigram are good examples. Now the govt is telling the industrialists to buy or lease the land on their own.

So the capitalist owning class is devising new ways of acquiring the land of the farmers. Blatant terror tactics will not do. The land owners have to be persuaded into giving their land. The process of dividing consists of the following steps:

1) identify some discontented young men in the village community and entice them with money and promise of employment in the company. It is not hard to find such young men in any situation. They are usually a little educated, but are unemployed and loitering about. They are generally dissatisfied with society but would not be willing to play any constructive role towards the solution of the problems their village community faces. They also realize that in today’s society money is what counts finally. They are also sufficiently alienated from agrarian economy to the extent they will not do agriculture-related work in their own fields.

There is no such thing as any emotional attachment to their land. And in the case of Adivasi communities, these young men do not have any regard or respect towards the traditional Adivasi leadership and do not abide by the opinion of the elders of the village community. Such persons are given motor cycles cum daily allowance by the companies, and are told to play an active role in the process of land acquisition. So they become the first persons who agree to give their land to the company.

Thus the first step in dividing the village community is completed.

2) the rest of the village community can be divided into two broad categories: the silent majority who in their heart of heart do not want to give their land to the company but feel powerless to frontally confront the very powerful company, the administration, the police. Also they do not have much idea about the company, nature of the project, impact on environment, details of compensation, quality of rehabilitation etc. In other words, this is the section of the population which can be swayed and persuaded to part with their land.

The company starts to work on them. The company people know that these simple people must be nurtured to accept the project and agree to be displaced. Feelers are sent through the already purchased young men who by now become the middle men between the company and the people.

Some of people’s needs in the area of health and education facilities are identified. The company sends a few officers hailing from the area who together with the young men assemble the people and make tall promises about the wonderful rehabilitation they will have when they give their land for the project. The company also offers to build, equip and run primary schools, small hospitals, community halls, install hand pumps etc. at its own cost. Better rates of compensation for land & property than what the govt itself would give are promised. One company job per household is assured. In brief, heaven on earth is promised to people.

Liberal offers are made to take groups of these people to far away places where this very company has rehabilitated the displaced people so beautifully that they are supposed to be better off now than they were ever before.

Gradually over a period of time, an increasing number of these farmers are no more opposed to giving their land to the company. In this way, the initial resistance begins to weaken.

Thus the second step in dividing the village community is completed.

3) There then remain a smaller but awakened and vocal group who are against the project and the company. They are attached to their land, and in the case of Adivasi communities they consider their land not only as the main source of sustenance but also as a sacred heritage of their forefathers and the dwelling place of their spirits. They are also aware about the companies which want to set up projects in their midst thus alienating their land and displacing them. They have come to realise that the companies invest not for the development of people but for profit and only profit. Experience tells them the industrialists are not to be trusted. Hence they would say loud and clear that they will not give their land to the companies on any count.

Let us see how the industrialists tackle this group.

The industrialists know very well that this section of the village community cannot be persuaded to surrender their land. Rather, these outspoken persons have to be dealt with in a stern way. Detailed planning is done with the local administration, local police, already bought off young men as to how to neutralise these men who are passionately opposing the project. Which of them can be frightened by what action. If they will not be frightened, how to implicate them in false cases so they can no more be on the scene.

There are instances in Jharkhand where the leaders of resistance movements were booked under non-bailable cases and some of them were jailed for several months as the lower courts refused bail and recourse to the High Court took more than a year just to get bail. Even the traditional elderly Adivasi leaders were accused of serious crimes such as attempt to murder, rape etc. The young activists protesting against the project were brought to a situation where they could not even go to the weekly bazaars for fear of being arrested and could not take a bus to go somewhere for fear of being picked up by the police or be physically assaulted by the goondas hired by the company.

In the mean while the industrialists busy themselves organising face-saving ‘public hearings’ from which these troublesome elements can be kept away, and work out the dynamics of getting the approval for the project. And once it is done, it is announced in the media that the people have not only approved the project but have welcomed it and are ready & willing to give their land for the project.

Thus the third step in dividing the village community is completed.

4) Finally there are instances where the affected people have not allowed any division among them and have consistently stood together in solidarity in resisting the project. Such extraordinary situations need extraordinary solutions. This is where the collaboration of the state govt, local administration, police force is important. We then witness ‘state terrorism’ in its most ugly form. Koel Karo (Tapkara) police firing in 2001 at an unarmed peaceful crowd killing eight persons and injuring several is an unforgetable example. Kalinganagar firing in 2005 killing eleven persons wherein the Tata Co went to the spot not only with its bull-dozers but also accompanied by 11 platoons of armed police provided by the state govt.

This is the ultimate, calculated blow to people’s resistance to industrial projects aimed at displacing people and alienating their land.

From all that is said above, it is not to be concluded that people have lost the battle. Increasingly they are becoming aware of the manipulations of the industrialists. People will soon develop their own strategies to remain united and definitively refuse to give their agricultural land to industrialists. It will then be the task of others with a human conscience to stand by the struggling farmers in support and solidarity.

March 2008

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Article 4: A Table, Some Old Pistols, and Press Cameras: How Police Arrest “Extremists” in Jharkhand

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By Stan Swamy

This article was written on March 22, 2009

Massive displacement of people, especially the Adivasis & Moolvasis, is taking place. It is done in violation of the Supreme Court’s directive [Samata Judgement, 1997] that the government should consult the concerned Gram Sabha before starting any project. It is natural, therefore, people have begun to resist displacement and refuse to hand over their land to industry and mining. Of late, the Jharkhand, Orissa and Chattisgarh governments have started arresting human rights activists who are providing leadership to anti-displacement and anti-communal movements.

The list is long, but I will mention only some of the more prominent among them:

Jitan Marandi: Jharkhand – author, poet, human rights activist

Damodar Turi: Jharkhand – anti-displacement & human rights activist

Munni Hansdah: Jharkhand – anti-displacement & human rights activist

Ram Charan Roy: Jharkhand – anti-displacement & human rights activist

Hopna Baskey : Jharkhand – anti-displacement & human rights activist

Abhay Sahu : Orissa – anti-displacement & human rights activist

Lenin Kumar : Orissa – author & anti-communal activist

Ravi Jena : Orissa – publisher & anti-communal activist

Dhananjay Lenka : Orissa – anti-communal activist

Protima Das : Orissa – advocate & anti-displacement activist

Pradeep : Orissa – anti-displacement activist

Binayak Sen : Chattisgarh – medical doctor & human rights activist

And there are many more.

Adding insult to injury . . . the police do not observe their own rules.

The National Police Commission (1997) affirms that Legal Protection/Safeguards for Detainees in Custody are inherent in Article 21 and 22(1) of the Constitution and therefore require to be recognised and scrupulously protected. Some such safeguards are:

1)An arrested person being held in custody is entitled to have one friend or relative informed that he has been arrested and where he is being detained.

2)The police officer shall inform the arrested person when he is brought to the police station of this right.

3)An entry should be made in the Diary as to who was informed of the arrest. A police officer making an arrest should also record in the Case Diary the reasons for making the arrest.

Apart from the above, the historic judgement of the Supreme Court in D.K.Basu v/s State of West Bengal (AIR 1997 SC 610) compels the Indian police force to follow these requirements:

1)The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations.

2)The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

3)The person arrested must be made aware of this right to have someone informed of his arrest as soon as he is put under arrest or is detained.

4)An entry must be made in the Diary disclosing the name of the friend / relative who has been informed of the arrest.

5)The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries on his body must be recorded.

6)The “Inspection Memo” must be signed both by the arrestee and the police officer, and its copy provided to the arrestee.

7)The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody.

8)The arrestee may be permitted to meet his lawyer during the interrogation.

9)The right of every person detained / arrested to know the grounds of arrest and his right to bail should be honoured.

10)Failure to comply with the requirements mentioned above shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court.

Added to these are the recommendations of the Law Commission (November 2000) that

1)representatives of registered rights groups and NGOs should be entitled, under law, to visit police stations and examine custodial records.

2)Arrest or search of women should only take place in the presence of women police officers and should not take place at night.

3)Women should be detained separately from men. The effectiveness of this gender-based detention should be monitored by independent mechanisms.

The reality is very different. . .

There are serious flaws in the way police goes about arresting people.

1)most often the police raids a place like a bull-dozer breaking doors and any thing that is on the way. The custom among Adivasi people is they leave footware outside and enter their house bare-footed. The place where they prepare and have their food (‘adig’) is considered a sacred place where the spirits of their dead ancestors dwell. The police have no consideration for the cultural values of people and enter the house with their dirty boots, pushing and thrashing any and every body in the house.

2)The police do not usually produce ‘search warrant’ but jump on the person they have come to catch. Then they search the house / office turning every thing up side down. They usually bring with them some leaflets / booklets called “maoist / naxalite literature” and pretend they found it in the premises.

3)Rarely is a respected local person present during the raid to bear witness to the search operation. Some times one or two ‘police informers’ may be brought along who will do the police bidding.

4)It is a rare occasion a “search-inventory”is made which is signed by the arrestee and one other witness.

5)Once they have arrested a person they want, they can do any thing to him / her. The arrestee is brought to the police station, beaten up brutally like an animal under the pretense of “extracting truth / evidence”.

6)Can the police in all honesty say they do not use ‘third degree methods’ on the detainees?

7)if the police wants to put the label “naxalite / extremist / maoist”, they just place a table, put some old pistols / guns on it, line up the detainees behind the table and call some press persons to take a photograph and publish in local news papers. Sadly, many of the press reporters also go along with the police version without checking / verifying the facts.

Once this is done, the general public is made to believe that the detainees are really extremists and the police have done well in catching them.

But who will bell the cat?

Sadly, we cannot look up to the local government to come to the rescue of these victims of police atrocity. In fact the local govt administration is part of the game. Neither can we expect the district-level judiciary to save them because it goes by the version of the police and even refuses to grant bail.

The electronic media and the press in general play safe and mostly project govt views. Only in exceptional and shocking cases such as Babri Masjid demolition, Gujerat genocide, Orissa Kandhamal attack on Christians we saw some sane reaction from the mass media. There are plenty of intellectuals, authors, legal experts, artists who can play a healthy role. Only they need to be helped to form distinct forums of their own so they can speak their mind when glaring human rights violations take place. Last but not the least are the masses of people who through specific People’s Movements and People’s Organisations can undertake civil disobedience movements. There is nothing like people’s power. Shri Jayprakash Narayan has shown us the way.

We are then left with human rights and democratic rights organisations at local, national and international levels who alone will come forward to defend the human & constitutional rights of the unjustly arrested and tortured human rights activists. The challenge before us is to network these groups and organisations so they become strong pressure groups. And if they can be connected to international bodies like the United Nations Human Rights Commission it can go a long way in safeguarding human rights. There is no other way.

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Article 1: ‘Owner of land is also owner of minerals’ – Supreme Court

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Written on 4 November 2013

In a path-breaking judgment, the Supreme Court of India has declared “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 the land is deprived of the same by some valid process ”(para 57 of judgment).

The court further says the Mines and Minerals (Development and Regulation) Act, 1957 only regulates mining activity and “not divesting any owner of a mine of his proprietary rights”;. Referring to laws concerning mining of coal such as Coking Coal Mines (Nationalisation) Act, 1972 and Coal Bearing Areas (Acquisition and Development) Act, 1957 which are very much applicable to Jharkhand, the Supreme Court says they contain express provisions for “acquisition of mines or rights in or over the land from which coal is obtainable” (para 54).

The above position of the Indian Supreme Court is corroborated by so many national and international provisions. Let us mention some of them:

1) The United Nation’s Declaration on the Rights of Indigenous Peoples 2007 states in very clear terms that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”(UN Declaration: Article 32.2)

The implicit understanding behind this statement is the indigenous people are the real owners of the mineral, water or other resources and hence the requirement that the State should obtain the landowner’s free, informed, prior consent. India has signed this statement and is therefore obliged to implement it. So far, the Indian State has seriously failed in fulfilling the UN mandate.
2) The PESA ACT 1996 makes it mandatory that the recommendations of the Gram Sabhas must be sought before grant of prospective licences or auctioning of minor minerals (PESA 4,(e).(k,l). If the landowner is really not the owner, such a clause would not have been necessitated. Although only ‘minor minerals’ is covered by this Act, it can legitimately be extended to all minerals. After all what is important is whether it is minor or major is of no consequence. A mineral is a mineral, whether minor or major.

3) Draft National Land Reforms Policy 2013 of the Union Govt which is the response of the central govt to the long persevering struggle of the landless dalits and Adivasis through Ekta Parishad, states in very clear terms that ‘mining should not be undertaken in the Scheduled Areas unless and until the proposal to do so emanates from Gram Sabha or conglomerate of Gram Sabhas. Wherever mining activity is considered to be extremely essential in the scheduled areas it must be managed and operated by an enterprise wherein the government and the Gram Sabha or the conglomerate of Gram Sabhas are equal partners. This should be done by providing a mechanism whereby the Gram Sabha retains the ownership of the lands being mined and 50% of revenue or royalty benefits should flow to such Gram Sabha or conglomerate of Gram Sabhas as partners.

4) Samata judgment of the Supreme Court 1997 clearly states where the lands with mining area are situated either in the reserved forest or forest land or within the Scheduled Area, all the mining leases or renewals thereof are in violation of the Fifth Schedule and therefore, they are all void (Samata: para 127). If, on the other hand, if the State deems it to necessary to exploit a particular mineral in Scheduled Area, it would be open to the State Government to organise Co-operative Societies composed solely of the Scheduled Tribes to exploit mining operations within the Scheduled Area (para 132). From the above verdict of the SC it is clear that the Tribal People who live and own the land are also the owners of the mineral wealth in their land. This ownership right cannot be usurped by any non-tribal persons including the government.

The challenge before the indigenous adivasi / moolvasi people is to become aware of the fact that the legal, judicial ground is clear. It is now up to them to take their life back into their hands. We all know that their life is in their land. And their land contains tremendous mineral wealth. So far this wealth was looted by government as well as private companies. A new light has dawned on the indigenous peoples. If people decide to excavate and sell the mineral in their land, they must first place this before their respective Gram Sabha and get its approval. The next step will be to form distinct co-operatives consisting of exclusively indigenous people and if need be register it with the govt. The co-operative then can start excavating the mineral and take it to the market directly and sell it at the market-rate and share the benefit among themselves. Whatever percentage of royalty is to be paid to the govt can be paid without any difficulty. At the same time, they must realize that running a co-operative successfully is not easy, insofar as personal self-interest can creep in, corruption can find its way in the functioning of the co-operatives. So everything must be done in a transparent manner under the guidance of the Gram Sabha. In brief, it is a challenge before the indigenous adivasi / moolvasi people of central India.

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Article 2: Where Ants Drove Out Elephants – The Story of People’s Resistance to Displacement in Jharkhand

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Written in January 2012

This article is an introduction to the trajectory of peoples’ movements against displacement in Jharkhand in the last few years. As the author writes, the resistance in Jharkhand has resulted in the fact that “[o]ut of the about one hundred MOUs signed by Jharkhand government with industrialists, hardly three or four companies have succeeded in acquiring some land, set up their industries and start partial production.” – Ed.

Displacement is painful for anybody – to leave the place where one was born and brought up, the house that one built with one’s own labour. It is most painful when no alternate resettlement has been worked out and one has nowhere to go. And when it comes to the indigenous Adivasi People for whom their land is not just an economic commodity but a source of spiritual sustenance, it can be heart-rending.

A very conservative estimate indicates that during the last 50 years approximately 2 crore 13 lakh people have been displaced in the country owing to big projects such as mines, dams, industries, wild-life sanctuaries, field firing range etc. Of this, at least 40%, approximating 85 lakhs, are Indigenous Adivasi People. Of all the displaced, only one-fourth have been resettled. The remaining were given some cash compensation arbitrarily fixed by local administration and then neatly forgotten.

Independent studies done during the mid-1990s reveal that in Jharkhand about 15 lakh persons have been displaced and about 15 lakh acres of land alienated from mainly Adivasi people. Needless to say, during the last 15 years a lot more displacement of people and alienation of land have taken place. Strange but true, rehabilitation of the displaced was never taken seriously by any govt during all these six decades when the process of industrialization for ‘national development’ has been in vogue. In fact there was no rehabilitation policy at all!

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MOU-signing spree after the creation of Jharkhand
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The real reason for the creation of Jharkhand as a separate state in November 2000 was not so much to respect and honour the long cherished wish and struggle of the indigenous people to govern themselves as per their culture & traditions, but in view of opening up the vast mineral resources to national & international mining companies whose pressure was increasingly brought to bear on the government. Quite understandably, one MOU after another was signed between the state government and various companies without any reference or consultation or consent of the mainly Adivasi people in whose land all this natural wealth is stored.

Legal safeguards meant to protect Adivasi land from being alienated to non-Adivasis such as The Chotanagpur Tenancy Act (1908), The Santal Parganas Tenancy Act (1949), the Constitutional provisions through the Vth Schedule, The Provisions (Extension to Scheduled Areas)Act (1996), some significant Supreme Court judgments such as The Samata Judgment (1997) were and continue to be neatly ignored by the central & state govts in generously awarding vast tracts of land to industrialists at their asking. Over hundred such MOUs were signed during 2001 and 2010. Rough estimates indicate that about 1.4 lakh acres of land have been signed off. A cruel betrayal of the Adivasi people for whom land is not just an economic commodity but a source of spiritual/cultural sustenance.

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Enough is enough . . .
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In a span of three to four years the Jharkhandi people began to realize that the central & state governments were not for peoples’ welfare but that they were laying steps to sell off peoples’ land, their water & forest resources together with all the mineral riches to corporate houses. They decided to act. Wherever projects together with land requirements were announced, people mobilized and organized themselves and said a definite ‘no’ to the government and companies. People’s Resistance Movements Against Dispacement sprang up in different parts of Jharkhand from 2004 onwards.

Even as people stood together in the form of micro-resistance movements, the industrialists , local administration, police, lower judiciary, most of print & electronic media and the urban middle class joined forces. They began to sing the song of ‘development’ and accused the peoples’ resistance movements as ‘anti-development’. The police started to harass the leaders of people’s movements as ‘obstructing government work’ and as having extremist leanings. It is this situation which brought together activists leading anti-dispacement struggles, some socially concerned intellectuals, a few members of the media, a few folk artists, and some journalists. After a series of discussions & reflections it was decided to bring together the various anti-dispacement movements under some umbrella organizations so as to strengthen people’s struggles and to express support & solidarity to each other. Three to four such macro bodies emerged. Public meetings, rallies, advocacy , press conferences were held to educate and motivate the people in struggle. It was made very clear that these anti-displacement movements will not enter into any dialogue with the government or the company to discuss rehabilitation facilities for particular projects since it would imply that people accept to be displaced.

By 2009 it became clear that companies are not making any in roads in Jharkhand in terms of acquiring land and setting up their industries whereas they are ready with their large investments and latest technology and the only thing they want is land. The corporate houses then started to exert pressure on the central & state governments to take some drastic steps by which this stalemate could be put an end to.

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Operation Green Hunt . . . meant to hunt out the people and clear their green fields & forests to give to mining companies.
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A new philosophy was created to the effect that development is not taking place in the tribal belt of central India because of the ‘menace of Naxalism’ and if the Naxals/Maoists can be eliminated, the government will undertake systematic development programs and the tribal population will catch up in the developmental process. Hundreds of police and CRPF jawans were sent into the villages of the so-called “red zone”. They did not have the guts to go deep into the jungles and confront the Naxals. Instead they gave vent to their frustration on the helpless innocent village folk. They harassed them, beat them up, ransacked their houses, humiliated the elderly, dishonoured the women, arrested or shot any young person. They were not accountable to any civil authority. The peaceful life of village communities was shattered.

Protests against state repression by human rights & civic rights groups started in good earnest. During 2010 public meetings, rallies, advocacy work condemning state action against its own citizens were conducted. At the same time, resistance to displacement was also strengthened. The end result was despite the state coming down so heavily on them, the indigenous adivasi / moolvasi people steadfastly refused to part with their land for the industrialists. Out of the about one hundred MOUs signed by Jharkhand govt with industrialists, hardly three or four companies have succeeded in acquiring some land, set up their industries and start partial production. This too they did by dividing local communities, enticing them with false promises or threatening them by using hired hooligans. Most significantly, the big companies which asked for hundreds and thousands of acres of land were turned away empty handed. This is indeed a heroic achievement of the poorest of the poor against the mighty industrialist giants.

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‘Operation Anaconda’!
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This operation brought in a change of strategy in the state’s war against the Adivasi people. It was unleashed in August 2011. Anaconda, the huge serpent of the Amazon basin in Latin America, was the code name. A thickly forested area by name of ‘Saranda’ in Singhbhum district which had been under the influence of CPI (Maoists), was chosen as a forewarning of things to come. So now on it will not be a hunt spread out over a large area but pin point smaller compact areas as “terrorist affected” and swipe the Adivasi people out even as Anaconda swipes every thing in its way.

Thousands of police and para-military forces were brought in from the different parts of the country to do the swiping operation. Even the names of these battalions (“Greyhounds”, “Cobras”, “Scorpians”) were supposed to evoke a sense of fright among people. They were mostly outsiders who did not know the culture, language of the Adivasi people and they did not have any sympathy towards the simple village people. Their achievement during these months was three villagers dead, three in death bed, several houses destroyed and granaries incinerated. They swept through village after village, destroyed the straw roofs, drove the people out of their homes, burnt their clothes, valuables, stole their money and killed their cattle.

This cruel action of the state was brought to light and condemned by human rights activists, artists, leftist political parties, press & electronic media. An appeal was made to the National Human Rights Commission which was good enough to respond and made its investigation although its final report is still awaited.

The central & state governments have gone into face-saving exercise, ended the infamous Operation Anaconda, offered some monetary relief to the victims and is now speaking of developing Saranda villages with top bureaucrats in command. The end result of this cruel exercise on people is that the Jharkhand government has allotted iron-ore to 19 steel companies.

At the same time, the Adivasi people who have nothing to lose but the chains of state repression, will continue to resist displacement and land alienation.

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Where lies the future …?
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Three apparent possibilities:

1. The “red corridor” is also the mineral corridor. The state, through its war on people, may clear the mineral rich land from the indigenous adivasi and hand it over to mining corporates on a platter. The people will be driven out of their ancestral land and forced to settle down in the slums of towns & cities and eke out a living as casual and contract labour. They will lose their adivasi identity, their culture, their language, their communitarian character. The extermination of the indigenous adivasi will be complete.

2. Flocking to join the Maoist militants as the sole alternative. This is a real possibility insofar as the bourgeois state is bending over backwards to oblige the corporates rather than fulfill its constitutional obligations towards its own people, particularly the indigenous adivasi people who have been the most exploited and oppressed all through India’s independent history. It is this state which has scant regard for those constitutional & legal provisions and some judicial interventions which have sought to protect and safeguard the interests of the indigenous peoples of India.

Is there any wonder then the Adivasi youth constitute 99% of Maoists in Jharkhand and neighbouring states?

3. Drop the gun and start talking to Maoist militants. This is still a possibility if people who cherish the cause of justice will rise up to the occasion. Writers, poets, artists, media persons, human rights activists/defenders, trade/labour union activists, cultural activists, each using their own forums, can surely highlight the inhumanity in the state’s war on poorest of the poor. Justice -oriented legal professionals can well initiate legal action against the state for its violations of constitutional and legal provisions to protect the rights of the indigenous people. Advocacy work can be done with well-disposed legislators, parliamentarians, political parties. Christian churches, whose 90% membership consists of indigenous people in the tribal belt of central India, should surely raise their voice against the unjust displacement of adivasi people and alienation of adivasi land.

In short, It is time to stand up and be counted.

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Article 3: MoUs with industrialists in Jharkhand are unconstitutional

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Written on 3 June 11

Summary: 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 unconstitutional.

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;
(ii) 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;

(iii) 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;

(iv) 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;

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

(vi) 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;

(vii) 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.

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