Activists say judgement is a setback for tribal communities who are being denied special status and land rights granted by the Constitution
The Supreme Court of India has dismissed a petition demanding that tribal-dominated Sundargarh district of Odisha be kept out of the purview of the Odisha Municipal Act. The petitioner had claimed the provisions of the Act were not applicable to Sundargarh as it was listed under the Fifth Schedule of the Constitution of India. The Constitution mandates a law separate from the Panchayati Raj Act for rural and urban local bodies in scheduled areas—tribal dominated areas specified in the Fifth Schedule of the Constitution.
Parliament enacted the Panchayat Extension to Scheduled Areas (PESA) Act in 1996 for rural areas, but there is no similar provision for urban areas in tribal districts. The absence of such a law for tribal urban areas has created a governance crisis. State governments are taking advantage of Parliament’s lapse to give speedy clearances to mining and industries in tribal areas. Sundergadh’s case, therefore, represents larger issue of people’s rights over local resources, granted under the scheduled areas laws, which is being denied to them.
The petition filed by Sundargarh Zilla Adivasi Advocate Association (SZAA) in 2012 was dismissed by a three-judge bench Supreme Court, on the ground that the governor had already amended the municipal Act according to the need of the scheduled areas, of which the petitioners were unaware. The said amendment is said to give effective and adequate representation to the Scheduled castes, Scheduled Tribes and backward classes.
The Fifth Schedule of the Constitution of India has special provisions for administration and control of scheduled areas, keeping in view special needs of tribes and for their protection. These areas are directly administered by the president of India (at present, there are nine states where schedule areas have been notified). The governors of these states are solely responsible for administration and control of such areas and report directly to the president. There are number of cases pending in different courts of states with scheduled areas where a resource-rich scheduled areas have been converted into a municipality or township in the interest of corporate houses and non-tribals.
The petitioners in their plea said the Odisha Municipal Act was in conflict with the provision for Sundargarh as a scheduled area—in such areas no land can be transferred to non-tribals. If the municipal Act prevails, then the tribal people would lose land rights to non-tribals as there is no provision in the Act to protect their traditional rights, the petitioner said. But these pleas have been dismissed by the apex court.
Basis for judgement
In its judgement dated May 7, the bench of three judges, comprising justices R M Lodha, J Chelameswar and Madan B Lokur, said the municipal Act had been amended in 1994 by the then governor of the state, G Ramanujan. The judgement pointed to the amendment in 1994 where the governor had inserted sub-section(6) in section 1, which states: “Nothing in this Act shall apply to the Scheduled Areas referred to in Clause (1) of Article 244 of the Constitution.”
The judgement goes on to say: “The petitioners seem to be oblivious of this fact which has been stated by the Union of India in its counter affidavit filed to the writ petition .......so the entire facts relating to the issuance of the two notifications (on representation of STs and elections and formation of wards) have not been denied by the petitioners by filing a rejoinder affidavit. Therefore, the entire basis on which the petitioners have built their case is factually lacking.”
The judgement also says the petitioners didn't point out any provision in the Odisha Municipal Act which was not in consonance with the provisions for scheduled areas. The governors' notification regarding the said amendment was, however, not submitted as evidence; the judges’ assessment was based on the claim made by the Union government in its counter affidavit.
Counsel for petitioner, A P Mohanty, said the petitioners want to file a review petition as the judgement was not based on evidence but on mere claim made by the state government in the counter affidavit. “Odisha government didn't produce gazette notification of the amendment. It was the mere claim of Union of India,” says Mohanty.
The judgement is a setback to activists who have been fighting for the rights of tribal communities granted by the Fifth Schedule of the Constitution.
“It is the right time to unite all tribal activists of this country and fight for this cause. The trend of converting scheduled areas into municipalities is rampant and creating a situation of governance failure in scheduled areas. Parliament has not enacted any law relating to it yet,” says B K Manish, a Chhattisgarh-based tribal rights activist.
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