Justice K Ramaswamy and Samata judgement
Justice K Ramaswamy, former Supreme Court Judge who passed away on March 6, was popularly known for one of his landmark Judgements known as Samata Judgement that upheld the rights of tribals on their lands in tribal areas The State government, in a befitting manner, conducted his funeral with all respects to the departed soul
Justice K Ramaswamy, former Supreme Court Judge who passed away on March 6, was popularly known for one of his landmark Judgements known as Samata Judgement that upheld the rights of tribals on their lands in tribal areas. The State government, in a befitting manner, conducted his funeral with all respects to the departed soul.
Samata was a non-governmental organisation that worked for the rights of the tribal people as it found them being alienated from their lands and exploited by non-tribal people and the state, in contravention of the Fifth Schedule of the Constitution and various Central and State government laws.
After a prolonged struggle, it approached courts. The case it filed in the then Andhra Pradesh High Court in 1993 against the then State government was dismissed. Then, Samata filed a Special Leave Petition in the Supreme Court. After a four-year legal battle, it won.
Supreme Court declared null and void the transfer of land in the Scheduled Areas for private mining and upheld the Forest Protection Act of 1980, which prohibits mining in reserved areas. The Supreme Court held that the state should adhere to the laws and principles governing the tribal areas, as any other person.
Justice K. Ramaswamy and Justice Sagir Ahmed said in their judgement that: “The Governor, in his personal responsibility, is empowered to maintain peace and good governance in a Scheduled Area. The Fifth Schedule empowers him to regulate allotment of land, between natural persons, Tribals and non-Tribals, and it imposes total prohibition of the transfer of the land in the Scheduled Area.
Wider interpretation of `regulation' would include `prohibition' which should be read into that clause. If so read, and a purposive construction is placed, the word `person' would include natural persons as well as juristic persons and constitutional Governments.''
The Supreme Court's judgment annulled all assignment of forest land to private entrepreneurs. The two Judges, however, allowed transfer of forest land to State instrumentalities, such as the Mineral Development Corporation, or to a Cooperative of Tribals on the condition that, they should set apart at least 20 per cent of the net profit as a permanent fund for setting up schools, hospitals, transport and sanitation facilities for the Tribals, the Judges said.
One of the assets of the tribal is the availability of minerals in their areas. Very large number of mineral deposits exist in the tribal tracts of which much is known but remain under exploited or unexploited and thereby left un-utilised. If these areas are properly investigated and exploited, there will be tremendous development of mining and mineral based industries resulting in industrial employment for the tribal. The entire tribal belt is potentially rich in both high grade and low grade metallic and non-metallic deposits.
Vast mineral potential in tribal areas can be commercially exploited, perhaps involving tribal community, and number of downstream mineral industries can also be developed for value addition and exports. When this is achieved it would not be difficult to create any permanent arrangement to create a permanent “Royalty Developmental Dividend Fund” for tribal development.
Tribal can also be uplifted by suitably granting certain percentage of shares in mining business. This will naturally make them aware of the importance of mineral in their land holds and steadily make them know the intricacies in the business and trade and thus encourage and promote them to join the stream of business management
Ultimately this will enhance their standard of living. The Land Transfer Regulation I of 1970 had positively attempted to restore the land owned by non-tribal to tribal in Scheduled Areas. It introduced the presumptive clause, that, Land owned by a non-tribal in a Scheduled Area will be deemed as acquired from a tribal until the contrary is proved.
The Regulation made it imperative that any non-tribal holding land in the Scheduled Area shall not transfer it to even any non-tribal. It stipulates, that, any transfer of immovable property situated in the agency tracts by a ‘person’, whether or not such a ‘person’ is member of a Scheduled Tribe, was absolutely null and void, unless such transfer is made in favour of a ‘person’, who is member of a Scheduled Tribe or a society, registered under the Cooperative Societies Act, 1964 which is composed solely of members of Scheduled Tribes.
Regulation I of this Act is the primary law for the protection of the rights of the tribal over their lands. The Regulation as it stood originally, prohibited alienation of lands by tribal to non-tribal unless prior written permission on sanction of the competent authority was obtained.
That Regulation also empowered the Agent (Collector) to decree an ejectment against any non-tribal in possession of any land the transfer of which was made in contravention of its provisions and to restore such lands to the transferors or their heirs. Regulation II of 1963 later extended the Regulation, which was originally for the Andhra Area, to Scheduled Areas of Telangana also.
The Regulation had generated considerable amount of land restoration activity in the tribal areas till 1979. According to the ‘Tribal Cultural Research and Training Institute’, the number of non-tribal occupations in Scheduled Areas detected as prima-facie violating Land Transfer Regulation run in to several thousand and the extent of land in that was estimated to be several Lakhs of acres.
A little over fourth of that extent could only be restored to tribal population. In fact, the figures also revealed then, that, in couple of thousands of instances non-tribal could get favourable orders involving an extent of over a Lakh of acres.
Against this, it is time now, to look in to the various aspects of Supreme Court Judgment dated July 11, 1997 (Nearly 20 years ago) in the Public Interest Litigation. The Division Bench consisted of Justice K. Ramaswamy, Justice S. Sagir Ahmed and Justice G.B. Patnaik. The Judgment made it very clear; that, the word ‘person’ would include the State government and as such transfer of land in Scheduled Area by way of lease, for mining purpose in favour of non-tribal stands prohibited.
The Government also stands prohibited to transfer the mining leases to corporation aggregate etc except to its instrumentality says the Judgment. At one point of time the then President of India announced, that, a “Committee of Governors” would be formed to look into the serious inadequacies in the implementation of programs for the welfare of Scheduled Castes and Scheduled Tribes. The Supreme Court judgment also came out with several recommendations and what was the follow-up from the state and central governments subsequently is not known.
(The author is CPRO to CM, Telangana)