India's Supreme Court rules against corporate acquisition of Tribal and Dalit landsPublished by MAC on 2012-10-02
Source: Press Trust of India, Indian Express, The Hindu (2012-09-30)
Minister cancels mining leases in Andhra Pradesh
The rights of India's indigenous (Adivasi) and Dalit communities have been re-asserted in two important recent decisions.
On 20th September 2012, the Supreme Court said that land belonging to the two groups cannot be sold to corporate bodies, or parties acting in a company's interests.
Just a week later, the central government's Tribal Affairs minister, Kishore Chandra Deo, cancelled seven bauxite mining leases in the state of Andhra Pradesh.
In both cases the decisions were based on the country's constitutional protection of its non-religious minorities.
Mr Deo cited Schedule Five of the constitution in his support. It was in Andhra Pradesh that the human rights organisation, Samata, successfuly challenged another mining proposal during the 1990s.
Samata secured an historic affirmation of tribal rights, with a 1997 Supreme Court ruling that confirmed Schedule Five of India's constitution.
It's a decision which - until now - has been flouted in virtually every state of the union (not least in Andhra Pradesh itself). See: Threat to the Fifth Schedule of the Indian Constitution
Whether these recent developments will serve to modify the final version of the long-awaited, and much-criticised, proposed new Indian mining legislation must be doubted. See: India's new Mining Bill is an "outright assault on tribal communities"
However, Sreedhar Ramamurthy of mines, minerals & People (mmp) called Deo's action "a bold decision"; while Ravi Rebbaprada of Samata greeted it as a "most sigificant development".
Patrik Oskarsson adds: The leases in Andhra Pradesh, cancelled by Kishore Chandra Deo would be: Jerrela Block I, II, III and VIII (meant for ANRAK) and Galikonda, Raktakonda and Chittamgondi (for Jindal South West- JSW).
All the mining leases in the Scheduled Areas of Visakhapatnam are intended as being mined by the AP Mineral Development Corporation. See: The hills are on fire, as massive project goes through "on the nod"
Companies can't acquire SC, ST land: Supreme Court
Press Trust of India (PTI)
20 September 2012
NEW DELHI: In a significant ruling, the Supreme Court today said that the land belonging to scheduled castes or tribes cannot be bought by non-dalits, including companies, as such transactions are unconstitutional.
A bench of justices K S Radhakrishnan and Dipak Misra gave the verdict on an appeal by the Rajasthan government against the state high court's order holding such a sale to be valid in law.
The high court had passed its order on an appeal by a firm, Aanjaney Organic Herbal Pvt Ltd, against the refusal by the state authorities to recognise or grant mutation to the purchase of a plot by the company from a person belonging to scheduled caste.
"The Act is a beneficial legislation which takes special care to protect the interest of the members of Schedule Caste and Schedule Tribe.
"Section 42 (SC, ST Act) provides some general restrictions on sale, gift and bequest of the interest of Scheduled Caste and Scheduled Tribe, in the whole or part of their holding.
"The reason for such general restrictions is not only to safeguard the interest of the members of Scheduled Caste and Scheduled Tribe, but also to see that they are not being exploited by the members of non-Scheduled Caste and Scheduled Tribe.
"We find Section 42(b) of the Act has to be read along with the constitutional provisions and, if so read, the expression 'who is not a member of the Scheduled Caste or Scheduled Tribe' would mean a person other than those who have been included in the public notification as per Articles 341 and 342 of the Constitution," said Justice Radhakrishnan, writing the judgement for the bench.
That property was purchased on September 26, 2005 through a registered sale deed for a consideration of Rs 60,000.
The high court had held that such a transfer was valid as the company being a 'juristic person' does not have a caste and, therefore, any transfer made by a Scheduled Caste person would not be hit by Section 42(b) of the Act.
"If the contention of the company is accepted, it can purchase land from Scheduled Caste / Scheduled Tribe and then sell it to a non-Scheduled Caste and Scheduled Tribe, a situation the legislature wanted to avoid.
"A thing which cannot be done directly can not be done indirectly by over-reaching the statutory restriction.
"We are, therefore, of the view that the reasoning of the high court that the respondent being a juristic person, the sale effected by a member of Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives a wrong interpretation to the above mentioned provision," the apex court said.
Union minister takes up tribal cause, scraps 7 mining leases
Express news service
28 September 2012
Hyderabad: In the first such move, Union Tribal Welfare Minister Kishore Chandra Deo, MP from Andhra Pradesh's Araku, Thursday cancelled seven bauxite mining licenses issued by the state six years ago, using his Constitutional powers to protect interests of tribals.
Deo is against mining in Araku and Eastern Ghats, as are several NGOs which claim it would irreparably damage the fragile ecosystem and affect the livelihood of tribals.
Deo first made a representation to Prime Minister Manmohan Singh on why mining in the area was detrimental and then on April 7 wrote to Governor E S L Narasimhan to invoke his powers under the Constitution and cancel the leases. The Governor referred the matter to the state government, which was keen on mining bauxite for two private firms - Jindal South West Holdings and AnRAK - which it had granted approval to set up refineries.
Despite Deo's opposition and protests by tribals, the state went ahead with public hearings and the Andhra Pradesh Mineral Development Corporation got ready to start mining, which would have affected more than 300 villages in Araku in just the first phase.
Deo said he was forced to cancel the leases after the Governor did not act on his request. "The rights of ST people who live in the area are being violated blatantly. I wrote to the chief secretary to cancel and revoke all licences and clearances, but they put forward some contentions,'' Deo said.
He added: "Clearances given by the Ministry of Environment do not imply that provisions as enshrined in the Fifth Schedule would be negated. The Mines Ministry has no locus standi to accord approval against provisions of the Constitution and the contention that a foreign firm is a strategic partner in a government-to-government agreement in one of the leases and may result in protocol sensitivities is a misplaced plea.
"Therefore, using powers conferred by the Constitution, I am cancelling the leases and directed the AP government to report compliance."
Anti-mining activists hail Kishore decision
30 September 2012
A big question mark over the investment plans of Nalco
NGOs' activists opposing mining have hailed the directive of Union Tribal Welfare Minister V. Kishore Chandra Deo to the State Government to rescind bauxite mining leases given to AP Mineral Development Corporation (APMDC) in the scheduled areas.
The decision puts a big question mark over the investment plans of National Aluminium Company (Nalco), Jindal South West Aluminium Limited and Anrak Aluminium Limited. Anrak is in an advanced stage of commissioning its alumina refinery at Rachapalle in Makavarapalem mandal, about 120 km from here.
Alumina giant Nalco and Jindal and Anrak, both private companies, together have investment proposals for over Rs.25,000 crore after signing MoU with the State Government.
Anrak wants to operate its refinery by exporting bauxite ore from Gujarat, Odisha, Jharkhand and Chattisgarh.
After appealing to Andhra Pradesh Governor to intervene and stop bauxite mining, he formally passed instructions to the Chief Secretary to order cancellation of licences on environmental grounds and to abide by Supreme Court's famous Samata judgment.
The ruling, dubbed by many as a landmark order, says that only the State, its instruments or tribal themselves forming into a cooperative society should explore the minerals in the Fifth Schedule areas.
R. Sridhar, chairperson of mines, minerals and People (an umbrella organisation for anti-mining NGOs), told The Hindu that Mr. Deo's directive was very important development in the mining industry.
"We hail his bold decision and hope that licences given in Fifth Schedule areas of Odisha and other States will also be revoked," he said and demanded that the State Governments not undermine the sanctity of Tribal Advisory Committees and the views of tribals.
Samata executive director Rebbapragda Ravi described the Minister's order as `most significant development' in recent years and sought action against efforts to circumvent Samata judgement in various ways.
He said the order vindicated their stand that bauxite mining would change the course of water bodies emanating from the hilly streams and dry up rivers in the plains.