People’s Tribunal finds serious violations of Constitution, laws in scheduled areas

OST Bureau

Bhubaneswar, Dec 21 :

The 9-member jury at the 2-day People’s Tribunal on ‘Governance in Scheduled Areas in Odisha’ organised here by the Indigenous People’s Forum, Odisha on Friday and Saturday, has expressed serious concern over the gross violations of the Constitution, laws of the land and human rights in the scheduled areas of the state and made a set of strong recommendations to the state government.

Following is the text of the press release issued by Amritlal Tigga, on behalf of the People’s Tribunal today.

Statement of Findings

“We, the nine jury members, have listened for two days to the testimonies and depositions from the affected people and experts from some 30 grass root civil society groups, communities, and different struggle groups from Odisha, Chhattisgarh, Jharkhand and Manipur. The presentations covered the following aspects: Violations of Constitutional and Legislative provisions in Fifth Scheduled Areas, Panchayats (Extension to Scheduled Areas) (PESA) Act, 1996, Forest Rights Act (FRA), 2006, SC/ST Atrocities Act, 1989, and a violation to the Declaration of the United Nations on Indigenous Peoples Rights, 2007. The direct consequences of the violation of the above-mentioned laws emerged in the depositions in terms of Illegal acquisition of the tribal land, deprivation of the right of tribals to livelihood, dignity and identity, encounter killings, danger to tribal language and culture, pollution due to industrialisation, women’s trafficking, and brutal atrocities by the state.

” On the basis of the depositions, the jury makes the following observations.

There is an alarming situation of the tribals in the state of Odisha, which can be enumerated in terms of the following:

[1] Illegal acquisition of the tribal land

There is rampant grabbing of the tribal land by the state for industries in violation to the provisions of PESA, 1996 and FRA of 2006.

[2] Deprivation of the right of tribals to livelihood, dignity and identity

The fundamental right of the tribals as citizens of the country is seriously violated by depriving and denying them of their ancestral land, access to forests and minor forest produce, control over minor minerals, which is against the principles of PESA and the precedence of the Samatha Judgement of Supreme Court.

It was deposed before the Jury that the FRA recognises ownership rights of tribals and other traditional forest dwellers on land under their occupation before the cut off date and also all non-timber minor forest produces, including kendu leaves and bamboo. It was also deposed that forest department is playing the role of a villain while working for their vested interests. The bamboos are sold at throwaway price to paper mills in rackloads while tribals who take bamboo for their livelihood purpose and to weave baskets, are harassed by the forest department including seizure of the axe. Similarly, kendu leaves are sold at much higher prices while the tribals who pluck the leaves are the poorest in the entire kendu leaves trade that generates approximately 500 crore rupees per annum. No community forest rights (CFR), community rights (CoR), particularly the “Habitat Rights” of PVTG have not been recognised as per the act.

[3] Pollution due to industrialisation

The laws of environment clearance have been ignored in the setting up of iron-sponge factories leading to serious pollution of air and water thereby posing a threat to all forms of life—human, animal and plant.

[4] Brutal atrocities by the state

Various institutions of the state machinery—police, forest department and the Cobra battalion—have been involved in brutal attacks on the innocent tribals. It appears that there has been a nexus between the police, district administration and industries for acquiring tribal land. There have also been cases of burning the huts of the tribals in forest villages.

[5] Encounter killings and false cases

Fabricated and implicated in false cases, many innocent tribals have been killed in cold blood either for their alleged links with the Maoists or for being Maoists themselves.

[6] Women’s trafficking

Minor tribal girls have been and are still being trafficked in a big way from Odisha to mega cities but no action is taken by the state machinery to stop it and punish the guilty. A girl has been trafficked about 14 years ago and still there is no effort by the state to bring her back despite her grandmother running from pillar to post several times.

[7] Danger to tribal language and culture

In spite of the provision in the Constitution to promote tribal languages, there has been no effort to teach tribal students in their own mother tongue. This has a twofold adverse impact on them—firstly, they do not understand what is being taught, and secondly, there is a loss of their language, culture and identity.

[8] Danger of extinction of the Particularly Vulnerable Tribal Groups (PVTGs)

In spite of the Constitutional provisions and policy measures available for the PVTGs there have been no social, cultural, economic, educational and other developmental needs ensured by the government. Consequently, their very existence is at stake.

[9] Anti-tribal Odisha Gram Panchayat (OGP) Act

The state legislation Odisha Gram Panchayat (OGP), Act, is not in conformity with the central PESA 1996. Hence instead of empowering the tribals, it is disempowering them by over-riding the Central Act thereby depriving the tribals of their means of livelihood—land, forest and water. Many of the tribal problems could have been addressed by PESA, but the OGP has completely diluted it.

[10] Loss of faith in the Governor of the state

The tribal victims of various forms of violence have lost faith in the governor as he/she is not using his/her enormous power enshrined in his office to safeguard the interests of the tribals in Scheduled Areas.

[11] Claim by the Kui people for Scheduled Tribe status

The Kui people claim to have their own distinct culture, language, social structure and identity. Land and forest as the main sources of their livelihood are central to their identity.  However, they claim to have been denied the status of Schedule Tribe. The state has given them the Scheduled Caste (SC) status instead.

[12] Diversion of TSP funds

The money allocated for TSP, which has to be invested in tribal development, is being diverted and spent on things other than the purpose it is meant for. Many line departments are not allocating funds for TSP as per the existing norms.

” The Jury makes the following recommendations based on the depositions:

Þ    Repeal the provisions of the Odisha Gram Panchayat Act, 1964, Odisha Panchayat Samiti Act, 1959, and Zila Parishad Act, 1991, which are not in consonance with the 73^rd Amendment 1992 of the Constitution and the PESA 1996 in the state in letter and in spirit and empower Gram Sabha to take decisions about minor forest produce, minor minerals, liquor policy, and other related aspects of the Scheduled Areas.

These three Panchayat laws of Odisha need to be consolidated into a single piece of legislation as in other states.

Þ    While amending the Odisha Panchayat laws in conformity with the central PESA Act, reasonable steps should be taken not to dilute the pre-eminent position of Gram Sabha.

Þ    The land mafia, brokers and the police forces, used by the government for forcible, illegal and fraudulent land acquisition by organising fake Gram Sabha meetings should be stopped and all the previous ‘illegal decisions’ taken by such ‘fake’ Gram Sabhas should be reviewed and rectified immediately.

Þ    Special legislation as recommended by the Bhuria Committee in its second report for extension of PESA-like provisions to urban and semi-urban areas for which a Bill has been introduced in the Rajya Sabha in 2001, needs to be passed by the Parliament. Until then no Municipal laws should be declared applicable in the Scheduled Areas.

Þ    Provision in the OGP Act 1964 in terms of Odiya being considered as a spoken language for the electoral processes should be deleted for the tribal people.

Þ    Ban liquor vending in the Scheduled Areas. Let the prohibition of the liquor be entrusted to Gram Sabha as provided in the PESA as well as the order of the central government in 1974.

Þ    Take stern action against the police and security forces responsible for atrocities on the innocent tribals and also for killing them in encounters alleging tribals to be Maoists. Give just and full compensation for the killing of the innocent tribals and ensure jobs for their kins. The cases of arrested tribals under the suspicion as Maoists must be reviewed and they must be released. Special cell should be opened in Tribal Welfare Department in Odisha to monitor all such cases in Scheduled Areas and the report of the cell should be placed on the floor of the Assembly as well as in public domain.

Þ    Immediate release of all innocent tribals who are languishing in jails on false and fabricated charges. Drop all charges against them at once.

Þ    The Planning Commission Report on Development Challenges in extremist Affected Areas 2008 has recommended that police reforms should receive priority to make them more sensitive and accountable to the people. This Report must be taken seriously and its recommendations implemented.

Þ    The Recommendations of the Second Administrative Reforms Commission on Public Order (2007), concerning the police, must be implemented forthwith.

Þ    Tribal cell must be constituted in the governor’s office to help him monitor the tribals’ issues and problems on a day-today basis and ensure objective and impartial function of the administration at all levels in respect of tribal communities.

Þ    The Fifth Schedule of the Constitution is regarded as the ‘Constitution within the Constitution’. It provides that governors of states must write an Annual report to the President of India on the administration of the tribal areas and for the President to give directions on the subject. However, no such reports and directions have been issued in the last 60 or more years.

Þ    Take stern action against the traffickers of tribal girls to cities. Take immediate action to bring back all the tribal girls who have been trafficked, ensure their safety in the place of destination and make a roadmap for their employment in their place of origin so that they and their parents do not fall prey to the allurements of making quick money in cities.

Þ    Stop all kinds of displacement. Restore all tribal lands alienated from them by fraudulent means and help them to restore their life of dignity.

Þ    The Ministries and departments concerned should facilitate the use of mother tongue in primary education. Support is required to make syllabus in local languages. The examples of some organisations in Assam and Jharkhand can be followed in this regard.

Þ    Ensure a strong functioning of Tribal Advisory Council (TAC) of the state which has become defunct.

Þ    The state Welfare Department should ensure social, economic, cultural, educational, health and other needs of the Particularly Vulnerable Groups (PVTGs).

Þ    The state should ensure a study of Kui people, their society, language, culture, history and mode of livelihood in view of their demand for inclusion in the Scheduled Tribe’s list and take appropriate measures as per the findings of the study.

Þ    Ensure the use of funds allocated for TSP only for tribal development and prevent their diversion to non-tribal activities of the government. Make central as well as state legislations for a serious implementation of TSP for tribal development.

Þ    All the forest villages should be given the status of Revenue villages with immediate effect. ”

 Members of the Jury

Dr B D Sharma, IAS retired, Former Commissioner SC & ST, Dr K S Subramanian, IPS retired, former DGP Tripura, Dr Bipin Jojo, Professor, TISS, Mumbai, Mr Chittaranjan Behera, Renowned Social Activist, Mrs Dayamani Barla, Convener, Adivasi-Moolvasi Astitva Raksha Manch, Mr Bijay Bhai, National Convener, Samaj Ki Prabhusatta Andolan, Dr Joseph Mairanus Kujur, Director, Tribal Studies, Indian Social Institute, New Delhi, Mrs Sujata Jena, Advocate, Odisha High Court, Cuttack, Dr K K Mishra, Professor, Central University, Hyderabad.