Supreme Court Mandates Adivasi Consent for Mining Projects in India

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Mining Projects In India Subject To Adivasi Consent: SC [Read Judgment]

On February 27, 2019, the Supreme Court of India made a significant ruling in the case of 'Samatha vs. State of Andhra Pradesh'. The Court ruled that all mining projects in India must obtain the consent of the concerned adivasi (tribal) community in accordance with the provisions of the Fifth Schedule of the Constitution of India. This ruling validates the right of adivasi communities to reject mining operations on their ancestral lands.

The tribal communities in India have been facing the issue of displacement from their indigenous lands due to resource-seeking endeavors by different private entities (especially mining projects). The Constitution of India was amended in 1976, leading to the inclusion of the Fifth Schedule, which applies specifically to the states having predominantly scheduled areas. This Amendment was bought in to address the issues faced by tribal people in India and to provide them with constitutional safeguards, compensatory allocation, and protection of their rights.

Through the process of consultation with the affected communities, consent must be obtained in the form of a resolution of the Gram Sabha (village council). Similar provisions are also incorporated in the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA), and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The present case involved four large private companies' proposed mining projects on forest land in areas belonging to the adivasi community in the state of Andhra Pradesh. The Gram Sabha resolutions rejecting the projects were not considered by the state government, and the mining projects were approved. Aggrieved by the above, the adivasi community members approached the Andhra Pradesh High Court. The High Court dismissed the petitions filed by them. Subsequently, an appeal was filed before the Supreme Court of India.

The Supreme Court noted detailed submissions of the parties at considerable length and held that Section 4(d)(c)(iii) of the Forest Rights Act (FRA), read with Clause 6 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2008, required that the 'consent' envisaged therein should be obtained prior to the land acquisition. The Court has clarified that the provisions of FRA broadly deal with the forest rights of scheduled tribes and traditional forest dwellers and are operated prior to the land acquisition under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The final judgment was pronounced by Justices Arun Misra, Navin Sinha, and Indira Banerjee granting the party's appeal. The Court permitted the resumption of the mining project only if the decision of the concerned Gram Sabha granting its consent for the project in the quasi-judicial hearing was obtained.

This judgment is a major reprieve for the adivasi communities who have been exploited for resource extraction in the country. It underlines that the adivasi communities must have a say in the decision-making process for any mining projects on their lands. It also expands on legal protection for adivasi land rights and clarifies the boundaries for state governments as both the requisites, the relevant environmental clearance can be granted only after satisfying both provisions of FRA and PESA. The Court has also extended the provisions to the private parties that need to obtain consent for projects due to FRA, as the project dataset on forestlands does not govern itself subject to the mandate originating from Article 23 of the Constitution of a State.

The amici (friends) in the case argued that the violation of legal provisions by not obtaining a prior Gram Sabha resolution before undertaking land acquisition is an emerging pattern by land acquisition examining authorities. The Court noted that repeated violations of these mandates made by the Constitution of India and the law leaving the S’s (state) legal control only through strict punishment of erring officials or a contempt of order issued by the judiciary.

The decision of the Supreme Court is welcome news for the adivasi community in India. The judgment serves as a strong signal for all other private parties that they must adhere to laws and regulations protecting adivasi land rights. We at the law firm are immensely pleased with the direction set by the Supreme Court. The country and the concerned citizens hope that the administration will strictly implement the law and abide by the decision of the Supreme Court.