Shillong: The Supreme Court judgment on July 3, 2019, by Justices Ashok Bhushan and K M Joseph, on Meghalaya rat-hole coal mining is an unparalleled indictment of the claim of the tribes of Meghalaya - as represented by the Autonomous District Councils (ADC) - that they have unrestrained rights to exploit their lands, including for mining coal. They had claimed that exclusive indigenous rights of ownership of their lands, forests and minerals were recognized and enshrined in the 6th Schedule of the Constitution. But the SC upended this claim.
It was held by the apex court that there is nothing in the 6th Schedule that bars the application of national mining laws and that if mining is to be done it shall be done only under the aegis of a) the Minerals, Mining Development Regulation Act (MMDRA), 1957; 2) the Mines Act, 1952, and the Regulations framed there under; and (3) the Environmental Protection Act, 1986, and the notifications issued thereunder with regard to mining projects. All mines big or small need environmental clearance, ruled the SC.
Besides the immediate implications for coal mining in Meghalaya, this litigation has cost the Autonomous District Councils dearly because the judgment has chipped away at their perceived powers.
The key claim of the state mining lobby that the “right to mine at will on their own land without any state laws” was fashioned by twisting the discourse on tribal rights and linking it to the concept of tribal autonomy enshrined in the 6th Schedule. This was harped upon to such an extent that it misled common people who gave them unquestioning support. Over the years this discourse on the “tribal right to exploit” was given quasi-legislative authority by sections of unprincipled politicians. They used their powers to continue plundering of coal and enriching themselves – all in the name of tribal rights.
What was left behind was a devastated land in the coal mining districts and their neighborhood. An NGT report had said that 3819 sq. kms of the Jaintia Hills, including the main coal rich area of East Jaintia Hills District covering over 2126 sq. kms, is pockmarked with over 24,000 mining pits with horizontal tunnels underground. Besides destruction of forests and habitat, streams catering to downstream communities have been destroyed.
Rights under 6th Schedule
The 6th Schedule of the Constitution envisages considerable autonomy to tribal communities through the Autonomous District Councils (ADCs) to govern themselves according to their customs and practices and uniquely evolve into modern self-governing systems. But this power has plainly been misused. The ADCs had every authority to legislate creative laws to protect the existing commons, exploit and share the resources equitably. But instead their continued neglect has given a carte blanche for massive privatization of lands, minerals and forest thus destroying the traditional egalitarian society while helping to create a tribal oligarchy. The way they have handled forests, land and coal over the years has exposed the lie to their oft repeated claim that as tribes they have always held a close relationship with their land and forests, that they follow a traditional systems of governance which behooves them to protect Mother Earth/Mother Nature as she is referred to traditionally. That touted indigenous philosophy has been drowned in the din of commercialization of nature. Ironically, through this very approach, the door for outside forces to step in and rein in the frenzied exploitation was opened.
Déjà vu: Reprise of 1996 Tree Felling Order
In 1996, in the famous Godavarman Thirumulpad case, the Supreme Court’s ban on tree felling and timber industry had impacted Meghalaya the most because a major part of its forests being under the ADCs, were being rampantly exploited without any plan. The State Government had taken the same stand then: that the 6th Schedule does not allow it to interfere in the matter. And, just like now, the SC had rebuked the State Government for this. With that, the ADC’s sole authority over Meghalaya forests ended because they had nothing to show as to how it had protected the forests.
With the July 3rd judgment, the Supreme Court once again hurled the book at them. Again, the State Government was rebuked for not doing its duty in stopping rat-hole mining and regulating it over the years since full statehood was achieved and coal mining began in right earnest. The ill advised lobby with the State Government wasted the last five years trying to prove that they are traditionally empowered to mine without any legal restraints and even went to the extent of questioning the jurisdiction of the National Green Tribunals mandate in the 6th Schedule areas. Starkly exposing the mindset, at no point of time did the mining lobby or the State Government officially recognize the destruction wrought by rat hole mining and its impact on the common people.
Despite the fact that they had sued against these very things, the mining lobby and the State Government did a quick somersault and hailed the judgment, something they fought so hard to stop!
What has failed to register on them even now is how their actions and unwise litigation have resulted in a weakened 6th Schedule, which is a major setback for the movement for greater tribal autonomy.
Powers of ADCs Restrained
The state has three ADCs, the Jaintia Hills Autonomous District Council (JHADC), Khasi Hills Autonomous District Council (KHADC) and the Garo Hills Autonomous District Council (GHADC). Empowered by the 6th schedule, these are believed to be to be the legislative and administrative authority in tribal areas.
But the July 3rd SC judgment has struck a hard blow to the 6th schedule and the authority derived from it by the ADCs to protect the tiny tribal populations. Since their inception, the three ADCs have functioned with the belief that they are Constitutional authorities to whom any party wishing to begin any enterprise or business must approach for leases and licenses or at least no-objection-certificates (NOC). But the SC Judgment said that in areas where the ownership of land and minerals is vested in a person or community and not the State Government (as in the case of Meghalaya), the mining lease for coal is to be taken from the owner of the land, whether a person or a community, after which it should be submitted to the State Government, thus leaving no role for the ADCs.
Interestingly, the SC has not relied upon the provisions of the 6th Schedule, or any previous judgments based on it, to confirm that land and the minerals belong to the tribal people, an affirmation that made the politicians including the current chief minister Conrad K Sangma happy. The fact that the land, forest and minerals belong to the tribes was never contested at all. Only their claimed right to mine and exploit at random was contested. The judgment brought forward the sections of the MMDRA and the clauses in the Minerals Concession Rules, 1960, to say that these national laws do recognize that there are portions of India where the rights of persons or community over their land and minerals therein exist, over which the government has no claim and has no right to give lease. In these kinds of cases, the owner of such lands is authorized to give lease to others for mining, the judgment states in paras 122 to 130. As per this ruling, the Meghalayan tribal land owners would fall within these decrees. Thus, it was not the 6th Schedule which came to the rescue of the mining lobby and the State leaders who had appealed for recognition of these “unique” rights, which it turns out is not so unique after all.
The judgment also clarified that the ADCs have no power to make any law with regard to grant of mining lease, nor legislate on coal or coal mining which fall under the MMDRA, and that Para 9 of the 6th Schedule which deals with “licenses or leases for the purpose of prospecting for, or extraction of, minerals” only empowers the District Council to receive a share of the revenue from mining from the State Government and nothing more.
Law on Trading by Non-Tribals Not To Apply To Coal Mining
Another foundational rule framed under the Para 3 of the Sixth Schedule, on which the ADCs rest their authority to control influx of non-local businesses is the Jaintia Hills Autonomous District (Trading by Non-Tribal) Regulation Act, 2011, passed by the ADCs. Under this, any non-tribal entrepreneur or any company needs to mandatorily seek a license to operate and do business in the autonomous areas. The objective is to ensure that the tribes are protected from being overwhelmed by their much better networked counterparts from outside. But the SC judgment dismissed this crucial Regulation in relation to coal and coal mining sector by pointing out that even though the Regulation does envisage issuing of licenses, when it comes to the definition of the operative word “Trades” in Section 2 (viii) of the Act, nowhere is ‘mining’ or ‘coal’ mentioned. This has led the SC to conclude that the entire Regulation has no mention of coal or mining as a trade and therefore it does not fall under its purview. This could become a controversial point.
But where does this leave the Councils as of now? Does it have no say in business of mining? If this is so do they still have the power to demand that No-Objection-Certificates be taken from them to start mining enterprises which are their biggest source of revenue?
This immediately brings to mind the uranium mining lobby that had, at one point of time, been given the green signal by the land owners. Mining had to be stopped because of a strong people’s movement against it and because the KHADC was pressurized by the people to cancel the No Objection Certificate granted to the Uranium Corporation of India Ltd. In the light of these fresh judgments, does it mean that the commanding power of the NOC is no longer the Councils’ to wield? This will have to be clarified by further judicial review.
SC Silent on Environmental Justice
The judgment was however weak in that it made no major pronouncements on environmental justice. The rights of the commoners who have borne the assault on their living space by the coal lobby were not adequately addressed in comparison to the weight given to the coal miners’ pleas to lift the ban. Numerous state legislators, intellectuals, village headmen and activists had raised their voice over the years against the rampant coal mining and its destructive impact on the land and water even before the studies mentioned by the SC judgment. Thus, while allowing scientific mining under the national laws and regulations, the SC Judgment did not dwell on the implications of its license although it had tolerated a ban of five years on the plea of environment damage. Can there be any way of scientifically mining in a region where the coal seams is over 300 feet deep? Over 3819 sq. km. of the hill districts are affected by thousands of mining pits. The amicus curiae Colin Gonsalves submitted that the density of mines is a staggering 53 per sq km.
That this aspect was not dealt with in more detail is disappointing for environmentalists and anti-mining activists. The cumulative impact of these fearsome mines along with the many cement plants and the industrial scale limestone mining was needed to be figured out. Jaintia Hills is also the catchment area for numerous streams and rivers that feed hundreds of downstream communities. The principle that the ‘polluters pay’ by which the SC judgment has extracted some fines as compensation from the miners can hardly be an adequate method to cover the kind of inter-generational and inter-state impacts of one of the most heavily mined areas in the country.
The Judgment did serve to weaken tribal autonomy granted by the 6th Schedule – a process that has been inexorably going on over the decades since the 6th Schedule was enacted and Autonomous District Councils created. Even as it has to be recognized that these lawsuits are a result of the failure of the ADCs, it is striking that every other litigation over traditional tribal rights or the authority of the ADCs vis-a-vis the 6th Schedule has invariably resulted in the laws legislated under these being diluted, rejected and its clauses being watered down, a trend that bodes ill for the future of the 6th Schedule and tribal self governance.
Linda Chhakchhuak is an independent journalist based in Shillong.