ESA, which is seen as an enabling law for tribal self-governance, is violated

brazenly by both the Union government and State governments in the

name of development. By VE!"#ES$ %A&A!%"S$A and A'()
AS$"%*A+ &A$A,%AS$AS#A
SINCE October 2012, the Ministry of Rural Developent of the !nite"
#ro$ressive %lliance &!#%' $overnent has apparently been en$a$e" in an
e(ercise to evolve a )National *an" Refors #olicy+, Over these onths, the
Ministry -rote to various State $overnents, hi$hli$htin$ the iportance of the
initiative, In .anuary, it also constitute" a national/level )0as1 2orce on *an"
Refors+ coprisin$ nine official an" ei$ht non/official ebers,
0hese steps -ere in pursuance of the October 11, 2012, a$reeent the Ministry
ha" si$ne" in %$ra -ith the .an Satya$raha, a oveent that ha" launche" a
padayatra &foot arch' "ean"in$ a coprehensive National *an" Refors
%ct an" institutions for its effective ipleentation an" onitorin$ in or"er to
provi"e lan"less, hoeless an" ar$inalise" counities access to lan" an"
livelihoo" resources, Ironically, -hile the Ministry3s efforts have been
continuin$ apace, other se$ents of the !nion $overnent an" soe State
$overnents have actuate" a nuber of easures that "ecisively un"erine the
initiative,
0hese acts of sabota$e are essentially relate" to the #anchayat &E(tension to
Sche"ule" %reas' %ct &#ES%', 1445, -hich, un"er the 2ifth Sche"ule of the
Constitution, see1s to enable tribal self/$overnance, 0he %$ra a$reeent, -hich
virtually fors the basis of the efforts to forulate a ne- )National *an"
Refors #olicy+, also lays ephasis on effective ipleentation of #ES% as a
prere6uisite for "evelopin$ a 7ust an" balance" lan" ri$hts syste, 8o-ever, on
2ebruary 9, the !nion Ministry of Environent an" 2orests accor"e" )a $eneral
approval for "iversion of forest lan" for un"erta1in$ "evelopental activities by
the State :overnent Departents for the -elfare of the people+, un"er its
$ui"elines 2, No, 11/4;144</2C &pt', 0he e(planation of )"evelopental
activities+ )for the -elfare of the people+ apparently involves infrastructure
pro7ects in "ifferent sectors,
Observers of tribal an" environental issues, such as E,%,S, Sara, forer
Secretary to the :overnent of In"ia, have pointe" out that this $overnent
$ui"eline is in clear violation of #ES% an" the 2orest Ri$hts %ct &2R%', 2005,
0he 2R% -as enacte" to reco$nise an" vest forest ri$hts an" occupation in
forest lan" in forest/"-ellin$ Sche"ule" 0ribes an" other tra"itional forest
"-ellers -ho ha" been resi"in$ in such forests for $enerations but -hose ri$hts
coul" not be recor"e",
U-t-rn on .overnors/ powers
% fe- "ays after the proul$ation of the $ui"eline, the !nion $overnent file"
an affi"avit in the =ilaspur 8i$h Court in Chhattis$arh -hich overturne" its
o-n earlier positions on the 2ifth Sche"ule of the Constitution an" #ES%, 0he
$overnent, throu$h the affi"avit file" by the %""itional Solicitor :eneral,
ne$ate" the )"iscretionary po-ers+ entitle" to the :overnor in the 2ifth
Sche"ule, Its contention -as that the 2ifth Sche"ule -as after all only a part of
the Constitution an" the $eneral principle of the :overnor actin$ only on the ai"
an" a"vice of the Council of Ministers applie" here too,
Interestin$ly, this also ne$ate" the opinion place" on recor" by forer %ttorneys
:eneral :oola E, >ahnavati an" Soli ., Sorab7ee, =oth ha" hel" that the
:overnor "i" in"ee" have "iscretionary po-ers un"er the 2ifth Sche"ule of the
Constitution, >ahanvati un"ertoo1 a "etaile" stu"y of the provisions of the 2ifth
Sche"ule before $ivin$ this opinion in %pril 2010, In fact, the position
articulate" by >ahanvati has been the line consistently ta1en by the Supree
Court since 144?, for e(aple in Bhuri Nath and Ors vs Govt. of J&K an" in
the Saata case, =ut in one sin$le stro1e, the !#% sees to have subverte" the
$overnent3s o-n consi"ere" positions of the past,
0he !nion $overnent3s affi"avit cae about in the conte(t of a public interest
petition a$ainst the =haratiya .anata #arty &=.#' $overnent in Chhattis$arh,
0he State $overnent ha" anointe" Chief Minister Raan Sin$h as the
Chairperson of the 0ribal %"visory Council &0%C' an" the petition file" by the
social activist =,@, Manish ha" ar$ue" a$ainst this, statin$ that it -as a
violation of #ara A&2' of the 2ifth Sche"ule, -hich stipulate" that the 0%C
-oul" a"vise on atters referre" to it by the :overnor, Clearly, both the rulin$
!#% an" the principal opposition party, the =.#, are on the sae pa$e -hen it
coes to un"erinin$ #ES% an" the 2ifth Sche"ule,
Referrin$ to these "evelopents, the lan" ri$hts activist Raesh Shara, -ho
is associate" -ith the E1ta #arisha", state" that these anoeuvres of the
country3s t-o principal ainstrea parties pointe" to an or$anise" attept to
th-art tribal lan" ri$hts in $eneral an" #ES% in particular, )Even at the best of
ties the ipleentation of #ES% -as faulty an" patchy, It sees that the
effort is to institutionalise its ineffectiveness, In other -or"s, a1e the %ct a
paper ti$er, 0his, in fact, has been an on$oin$ process, -hich has $athere"
increasin$ oentu over the past "eca"e an" a half,+ Shara tol" Frontline,
Other lan" ri$hts activists an" observers point out that -hile the %"ivasis have
historically "epen"e" on their tra"itional ri$hts over the re$ion3s jal, jangal aur
jameen &-ater, forests an" lan"', in"iscriinate lan" ac6uisition by "ifferent
$overnents for ultinational inin$ corporations in the past t-o "eca"es has
le" to consi"erable "isplaceent an" e(ploitation of these people, 0he le$al
ri$hts an" iunity that -ere $uarantee" to %"ivasis in the Constitution -ere
fre6uently bypasse" or isinterprete" by various $overnents to suit corporate
interests in the ineral/rich lan"s of In"ian forests, Bhile the $overnents have
7ustifie" the ac6uisition of lan"s in the nae of econoic $ro-th, the %"ivasis
-ere never a"e sta1ehol"ers in the process of in"ustrial "evelopent, Neither
their participation nor their consent -as sou$ht in the rush for in"ustrialisation,
nor -ere they $iven any proper rehabilitation benefits,
8o-ever, %"ivasis have resiste" such $overnent an" corporate initiatives an"
stru$$le" to retain their ri$hts over the natural resources, In any places, the
stru$$les have been violent, as in the case of the =astar re$ion in south
Chhattis$arhC in other areas, %"ivasis, alon$ -ith civil society $roups, have
trie" to re$ain their ri$hts by fi$htin$ ilitant social an" le$al battles an"
rein"in$ the $overnent tie an" a$ain of their constitutional ri$hts,
E0ploitation by States
%s activists li1e Shara point out, it is in this conte(t of in"iscriinate lan"
ac6uisitions an" in"ustrialisation that #ES% has becoe the ost violate"
le$islation at present, 0he $overnents, both in the States an" at the Centre,
have e(ploite" seantic loopholes in the %ct to circuvent its provisions an"
"eny the tribal people any sort of self/$overnance, %n" in the past fe- years,
this has becoe the ost iportant point of contestation for the tribal people in
In"ia3s hinterlan", In alost all such lan" ac6uisitions in tribal areas, #ES% has
been violate" in soe -ay or the other, )0here are three iportant $aps that the
$overnents e(ploite" to bypass the %ctD first, #ES% is a loosely "rafte" %ctC
secon", there is no overarchin$ clause that protects it fro bein$ bypasse" by
the State $overnentsC an" thir", the -or" Econsultation3 -ith the tribal people,
as entione" in the %ct, is not clearly "efine",+ Neelabh Dubey, an a"vocate in
the =ilaspur 8i$h Court, tol" Frontline,
#ES% uses the -or" )consultation+ -ith the tribal people, an" the $overnents
have use" it to their o-n a"vanta$e by not ta1in$ the consent of the villa$ers
concerne" before any ac6uisition of lan", %ctivists have pointe" out several
inci"ents -here the State $overnents have falsely claie" that the villa$ers
-ere )consulte"+C as #ES% "oes not re6uire a -ritten approval fro the $ra
sabha, the $overnents are not boun" to sho- a -ritten stateent,
#ES% an"ates that the $ra sabha or panchayats shoul" be consulte" at an
)appropriate level+ before any "ecision, >i"eh !pa"hay, an a"vocate, points out
that the $overnents have, ho-ever, "istorte" the eanin$ of )appropriate
level+ an" have not even bothere" to consult the $ra sabhas an" have resorte"
to see1in$ opinions only fro "istrict/level coittees, ost of -hose
representatives are stoo$es of one political party or the other, In any instances,
the consultations for lan" ac6uisition -ere "one -ith "istrict coittees 900
1iloetres fro the area -here lan" ha" to be ac6uire",
Such probles ste fro the lar$er fact that #ES% epo-ers the State
$overnents to frae rules, #ES% an"ates that -ithin a year of its
proul$ation, the rules for the panchayats in the 2ifth Sche"ule areas have to be
le$islate" 1eepin$ in in" the re$ional conte(ts, =ut e(cept for Ma"hya
#ra"esh, no other State has "one this, Recently, !nion Rural Developent
Minister .aira Raesh, on his visit to @alahan"i, O"isha, -as shoc1e" to fin"
out that none of the villa$ers 1ne- about #ES%, O"isha reains aon$ the
any States that have not frae" rules for #ES% even 15 years after its
proul$ation, 0hat #ES% offers fle(ibility an" "oes not have universal rules
o-in$ to the varie" con"itions an" conte(ts of every tribal area has been use"
by State $overnents to their o-n a"vanta$e, 2or e(aple, #ES% "oes not
a1e it necessary for the $overnents to epo-er the panchayats -ith fiscal
an" a"inistrative po-ers such as collectin$ ta(es an" fees, %n" this liits the
autonoy of the tribal areas,
In the past fe- years, ore than 500 villa$es -ere converte" into urban
panchayats as the State $overnents have the po-er to up$ra"e rural
panchayats, !p$ra"in$ has $enerally been an effective tool to bypass #ES%,
-hich an"ates the $ra sabha3s approval for lan" ac6uisition for in"ustrial
an" inin$ pro7ects, In ost of the up$ra"e" villa$es, there is a conspicuous
in"ustrial "rive at present, =arrin$ Ma"hya #ra"esh, the States, in star1
violation of Section A&n' of #ES%, have enacte" la-s that provi"e the bul1 of
the po-ers to the $ra panchayat instea" of the $ra sabha, #anchayats, bein$
an electe" bo"y, have also been heavily corrupte" by oney an" uscle po-er,
In a""ition to all these violations, activists have notice" that in any places,
"istricts cae up -ith their o-n rules for #ES% to "ilute the po-ers of the $ra
sabha, #ES% -as "rafte" in an open/en"e" anner to a1e it fle(ible so that its
vision of $uaranteein$ tribal autonoy is not coproise", =ut the -ay the
State $overnents have $one about forulatin$ rules for it have copletely
violate" that spirit,
In a 2005 report on #ES% violations, a 7oint effort of the #lannin$ Coission,
the *an" Resources Departent of the Ministry of Rural Developent, an" the
Ministry of #anchayati Ra7, a nuber of such violations have been reporte"
fro Rai$arh, a "istrict of Chhattis$arh, In at least four bloc1s of Rai$arh,
-here there are any investent proposals, #ES% has not only been bypasse"
but also not consi"ere" by the State $overnent &)Stan"in$ up to the state,+
Frontline, .une 1?, 2011', =ecause of such violations, -hich are in star1
contrast to the spirit of #ES%, ore an" ore lan"s are bein$ alienate" fro the
tribal people, an" the natural resources that they ha" been "epen"ent on are
bein$ ta1en a-ay fro the on a "aily basis,
Out of the total tribal population of In"ia, ore than A0 per cent has alrea"y
been "isplace", 0his is happenin$ -hen, even by $overnent estiates, ore
than 50 per cent of the %"ivasis are classifie" as livin$ in e(tree poverty -ith
no access to lan", a"e6uate foo", health facilities an" e"ucation, In such
circustances, even inor violations of la-s li1e #ES% an" other provisions of
the 2ifth Sche"ule have an enorous ipact on the, >iolations of #ES% a1e
a oc1ery of In"ia3s boasts participatory "eocracy,