Courts, mining conflicts, and Adivasi rights: a case study from central India (2000–2022)

ABSTRACT

Chhattisgarh, Jharkhand, and Odisha are home to 22 million Adivasis (indigenous peoples). In the neoliberal era, the Adivasis are being exploited due to an increased emphasis on resource extraction, compounded with weak institutional mechanisms to address Adivasi concerns. I examine the role of the higher courts in upholding Adivasis’ rights during mining conflicts, through analysis of 33 litigations resolved between 2000 and 2022. I find, with a 48.5% success rate, these litigations produce mixed results for the Adivasi communities. Despite a legislative shift sought from state sovereignty to shared sovereignty, there is a judicial inconsistency on claims against usurpation of Adivasi land without consent. During mining governance, the Adivasis are excluded from the decision-making process, but the courts do not encourage a polycentric approach to mining governance. Only at the stage of profit redistribution, where there are no competing claims, the courts ensure benefit-sharing of profits with the Adivasis.

KEYWORDS:

• Indigenous rights
• mining governance
• Adivasis
• scheduled tribes
• mining
• resource extraction
• mining litigations
• mining cases

Acknowledgments

An early version of this paper was presented at the Law and Development Conference, Humbolt University in 2018 and Jindal Faculty Seminar, Fall 2021. I would like to thank the anonymous reviewers, Prof Erik Jensen, Dr Sujit Mishra, Dinsha Mistree, Radhika Chitkara, and Balu G Nair for their comments on a version of this paper. Thanks to the ILR editorial team – Priyasha Saksena, Amber Darr, Aman Kumar and Vandita Khanna. Thanks to Samia Khan and Shreya Jain for research assistance. Apart from cases cited in Section 2 of the article that provide contexual background, all Indian cases are part of the data.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

¹ Ministry of Tribal Affairs, Government of India, Report of the High-Level Committee on Socio-Economic, Health and Educational Status of the Tribals of India (2014) 49 (’Report’).

² Indigenous Peoples or Scheduled Tribes as listed under the Constitution of India 1950, arts 366(25) and 342. Particularly vulnerable tribal group (’PVTG’) is a subclassification based on the following criteria: pre-agricultural level of technology, literacy, economic position, and declining or stagnant population.

³ Protected under Fifth Schedule of the Constitution of India 1950.

⁴ Corbridge traces presence of tribal landed elites that gained remunerative employment pre and post-independence due to mining and argues that, reservation and political benefits accrue, to a great extent, to these pre-existing elites. See also Stuart Corbridge, ‘Competing Inequalities: The Scheduled Tribes and the Reservations System in India’s Jharkhand’ [2000] 59(1) The Journal of Asian Studies 62.

⁵ Not including coal, lignite, and natural gas that lie under the domain of the federal government. Indian Mines Bureau, Government of India, Ministry of Mines, ‘Annual Report 2021–2022’ [2021–2022] 233 <https://mines.gov.in/admin/storage/app/uploads/6433db04b14f91681120004.pdf> accessed 26 February 2023.

⁶ NITI Aayog, India, ‘National Multidimensional Poverty Index Baseline Report (2015–2016)’ [2015–16] <https://www.niti.gov.in/sites/default/files/2021–11/National_MPI_India-11242021.pdf> accessed 26 February 2023.

⁷ Planning Commission, Government of India, ‘India Human Development Report, 2011’ [2011] <https://www.im4change.org/docs/340IHDR_Summary.pdf> accessed 28 January 2023.

⁸ Aalok Ranjan Chaurasia, ‘Human Development in Districts of India 2019–2021’ [2023] 17(2) Indian Journal of Human Development 219.

⁹ The identification criteria based on 1965 Lokur Committee includes ethnological traits, traditional characteristics, distinctive culture, geographical isolation, shyness of contact with the community at large, and ‘backwardness’. Scheduled Tribes are defined under the Constitution of India 1950, art 366(25) using this criteria.

¹⁰ Hari Ram and Jagdish Ulhas Jadhav, ‘Human Development among the Scheduled Tribe: A Comparative Enquiry in Chhattisgarh State’ [2018] 6(11) International Journal of Innovative Knowledge Concepts 198.

¹¹ According to the last official date of the Government of Orissa, ‘Human Development Report, Orissa, 2004’ [2004] <https://hdr.undp.org/system/files/documents/orissanhdr2004pdf.pdf> accessed 27 December 2023.

¹² See Gavin Bridge, ‘Mapping the Bonanza: Geographies of Mining Investment in an Era of Neoliberal Reform’ [2004] 56(3) The Professional Geographer 406 and Matthew Himley, ‘Geographies of Environmental Governance: The Nexus of Nature and Neoliberalism’ [2008] 2(2) Geography Compass 433.

¹³ Michael Levein, ‘From Primitive Accumulation of Regimes of Dispossession: Six Theses on India’s Land Question’ [2015] 50 Economic and Political Weekly 146, 146.

¹⁴ See Madhav Gadgil and Ramachandra Guha, This Fissured Land: An Ecological History of India (OUP 2012) that traces different land regimes across modern India.

¹⁵ Levein (n 13) 147. See also Heather P Bedi and Louise Tillin, ‘Inter-state Competition, Land Conflicts and Resistance in India’ [2015] 43(2) Oxford Development Studies 194 and Michael Levein, Dispossession without Development: Land Grabs in Neoliberal India (OUP 2018).

¹⁶ Anindita Adhikari and Vasudha Chhotray, ‘The Political Construction of Extractive Regimes in Two Newly Created Indian States: A Comparative Analysis of Jharkhand and Chhattisgarh’ [2020] 51(3) Development and Change 843, 866.

¹⁷ Kristin Henrard and Jeremie Gilbert, ‘Introducing Multidisciplinary Perspectives to the Adjudication of Indigenous Rights’ [2018] 11(1) Erasmus Law Review 1.

¹⁸ See S James Anaya, ‘The United States Supreme Court and Indigenous Peoples: Still a Long Way to Go Toward a Therapeutic Role’ [2000] 24 Seattle University Law Review 229. Conquest Myth, in the context of the Americas, perpetuates the idea of colonizers achieving military and cultural hegemony due to their superiority whereas the historical records present a far complex picture. See Matthew Restall, Seven Myths of the Spanish Conquest (OUP 2003).

¹⁹ Varun Gauri, ‘Accountability and Human Rights’ in Susan P Marks and Balakrishnan Rajagopal (eds), Critical Issues in Human Rights and Development (Elgar Publishing 2021) 331.

²⁰ Balakrishnan Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’ [2007] 8(3) Human Rights Review 1, 50.

²¹ Nandini Sundar, ‘Laws, Policies and Practices in Jharkhand’ [2005] 40(41) Economic and Political Weekly 44, 59; Prashant Bhushan, ‘Misplaced Priorities and Class Bias of Judiciary’ [2009] 44(14) Economic and Political Weekly 32.

²² Ajit Menon, ‘Engaging with the Law on Adivasi Rights’ [2007] 42(24) Economic and Political Weekly 2239, 2241.

²³ Alan Cardenas and Rebecca A Reid, ‘Courts as Colonizers or Protectors?: Indigenous Peoples before the Mexican Supreme Court’, Open Judicial Politics, [2021] <https://open.oregonstate.education/open-judicial-politics/chapter/courts-as-colonizers-or-protectors/> accessed 15 February 2023.

²⁴ Marc Galanter, ‘The Study of the Indian Legal Profession’ [1968–69] 3 Law and Society Review 201, 202.

²⁵ Irrelevant cases are where the word ‘mining’ appeared merely in the name of the company or where a relevant case was cited in an irrelevant context. To avoid redundancy, multiple orders under or after the main judgement were clubbed together and read as a single case. If a litigation went in appeal, only the final pronouncement has been counted.

²⁶ See Priya S Gupta, ‘The Peculiar Circumstances of Eminent Domain in India’ [2012] 49(3) Osgoode Hall Law Journal 445, 447.

²⁷ See n 9.

²⁸ Santhal Parganas Tenancy Act 1876, Chota Nagpur Tenancy Act 1908, Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribe) Regulation 1956, and Chhattisgarh Land Revenue Code 1959 that protect the Adivasi lands from being transferred to the non-Adivasis to varying degree.

²⁹ Report (n 1) 70, 74–77.

³⁰ ibid.

³¹ ibid.

³² Under the Seventh Schedule of the Constitution of India 1950, ‘Regulation of mines and mineral development’ is listed in Entry 54 List I for the central government and Entry 23 List II for the state governments. Coal is nationalized under the Coal Mines (Nationalisation) Act 1973.

³³ Panchayats (Extension to Scheduled Areas) Act 1996 (“PESA Act”), s 4(k).

³⁴ Only in case of coal, lignite, and natural gas which has been nationalized, the acquisition for project is undertaken by the centre and not the state.

³⁵ Kuntala Lahiri-Dutt, Radhika Krishnan and Nesar Ahmad, ‘Land Acquisition and Dispossession: Private Coal Companies in Jharkhand’ [2012] 47(6) Economic and Political Weekly 39, 40.

³⁶ Usha Ramanathan, ‘On Eminent Domain and Sovereignty’ (Seminar, 2010) <https://www.india-seminar.com/2010/613/613_usha_ramanathan.htm> accessed 25 December 2023; Department of Land Resources, ‘Report of Committee on State Agrarian Relations and Unfinished Tasks in Land Reforms’ [2017] <https://dolr.gov.in/sites/default/files/Committee%20Report.pdf> accessed 24 December 2023.

³⁷ Forest Conservation Rules 2003, Rule 6(e), as amended in 2016.

³⁸ Through series of amendments and directives, the central government has weakened the requirement for consent in innumerable instances. See also CR Bijoy, ‘Environment Ministry’s New Forest Diversion Rules are Bad News for Forest Rights’ (The Wire, 10 July 2022) <https://thewire.in/government/environment-ministrys-new-forest-diversion-rules-are-bad-news-for-forest-rights> accessed 21 December 2023.

³⁹ United Nations Declaration on the Rights of Indigenous Peoples 2007, art 10.

⁴⁰ Through 2015 amendment to the Land Acquisition, Resettlement and Rehabilitation Act 2013, categories of land use including industrial corridors and infrastructure projects involving public private partnership where the government owns the land are exempted from the consent provision. The states seek to further broaden the exempted category through ordinances.The SC has also severely limited applicability of the act on the pending matters in Indore Development Authority v Shailendra, [2018] 3 SCC 412.

⁴¹ Chitrangada Choudhury and Aniket Aga, ‘Manufacturing Consent: Mining, Bureaucratic Sabotage and the Forest Rights Act in India’ [2020] 31(2) Capitalism Nature Socialism 70.

⁴² David Millar, ‘Endogenous Development: Some Issues of Concern’ [2014] 24(5–6) Development in Practice 637, 639.

⁴³ AIR 1997 SC 3297.

⁴⁴ BALCO Employees Union v Union of India, AIR 2002 SC 350.

⁴⁵ Mines and Minerals (Amendment) Act 2016, s 9.

⁴⁶ See Odisha Resettlement and Rehabilitation Policy 2006, Chhattisgarh Rehabilitation Policy 2007, and Jharkhand Rehabilitation and Resettlement Policy 2008.

⁴⁷ The LARR Act, s 41(7); see also Sujit Mishra, ‘Mine Closure and the Issue of Livelihood’ [2018] 53(42) Economic and Political Weekly 26.

⁴⁸ For instance, under the LARR Act aggrieved parties can raise land related grievance to designated authorities during acquisition. In case of use of coercion and violence, criminal codes can be invoked.

⁴⁹ Each judicial pronouncement carries the name of the judges. I have prepared a list of the names of these judges and have identified their community through their names since there is no official data. It tallies with the report submitted to the Parliament that reveals 79% judges appointed in higher judiciary are from the upper castes. See Unstarred Question No 251, Lok Sabha, ‘Representation of Weaker Sections in High Court Judges, 21.07.2023’ <https://www.scobserver.in/wp-content/uploads/2023/11/Arjun-Meghwal-Law-Minister-Reply-on-Representation-of-Weaker-Sections-in-High-Court-Judges-2023.pdf> accessed 1 May 2024. It further notes that out of 458 judges at the higher courts, there are only nine judges from the ST communities. No judges appear to be serving at the SC or Jharkhand, Odisha, and Chhattisgarh HC.

⁵⁰ Namita Wahi, ‘Land Acquisition in India: A Review of Supreme Court Cases from 1950 to 2016’ [2017] Centre for Policy Research 22; Ram Singh, ‘Inefficiency and Abuse of Compulsory Land Acquisition: An Enquiry into the Way Forward’ [2012] 47(19) Economic and Political Weekly 46.

⁵¹ 2013 (132) FLR 258 (’OMC’).

⁵² ibid [50]. Apart from the public trust doctrine in environmental law, the trustee concept finds place under the Indian Constitution that envisions that the centre will protect Adivasi lands and administer judiciously on the Adivasi concerns under the Fifth Schedule of the Indian Constitution.

⁵³ PESA Act, s 4 stipulates that “a state legislation on the panchayats that maybe made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources”. PESA Act, s 4(d) states that “every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution”.

⁵⁴ OMC (n 51) [55].

⁵⁵ Though the official pronouncements do not officially use the ‘FPIC’ terminology.

⁵⁶ 2012 (1) ILR-CUT 19.

⁵⁷ ibid [36].

⁵⁸ 2005 (4) JCR 331 (Jhr).

⁵⁹ MANU/CG/0490/2012. The single bench had previously upheld the right to consultation. This case also involved discussion on procedural improprieties during the land acquisition process.

⁶⁰ ibid [79]–[86]. Santhal Parganas Tenancy Act 1949, s 20. As mentioned earlier, Samatha (n 41) case has been read down to be applicable only to areas under the Andhra Pradesh tenancy law.

⁶¹ ibid [52].

⁶² ibid [60].

⁶³ ibid [70].

⁶⁴ MANU/CG/0405/2022.

⁶⁵ ibid [8].

⁶⁶ 2017 (2) JLJR 490.

⁶⁷ 2008 (2) JCR 47 (Jhr).

⁶⁸ ibid [1].

⁶⁹ 2010 (11) SCC 269. For the latest judicial order in the case see Mahanadi Coal Fields v Mathias Oram, SLP No 6933 of 2007, decided 3 November 2022.

⁷⁰ United Nations Declaration on the Rights of Indigenous Peoples 2007, art 28.

⁷¹ In contrast, the Inter-American Court of Human Rights, in a 2006 judgement in Sawhoyamaxa Indigenous Community v Paraguay, IACHR Series C No 146 (29 March 2006) [140], rejected the argument put forward by the States that allowing the restitution of the land to an indigenous community might be in violation of the investment treaty signed between Paraguay and Germany and restored the land to the communities.

⁷² Radhika Borde and Bettina Bluemling, ‘Representing Indigenous Sacred Land: The Case of the Niyamgiri Movement in India’ [2021] 32(1) Capitalism Nature Socialism 68; Riyan Ramanath V, ‘Foreign NGO aghast at police brutality against POSCO protesters: Bhubaneswar News’ (Times of India, 10 February 2013) <https://timesofindia.indiatimes.com/city/bhubaneswar/foreign-ngo-aghast-at-police-brutality-against-posco-protesters/articleshow/18423976.cms> accessed 15 March 2023.

⁷³ State of Odisha v MESCO, 2013 (4) SCC 340 [20].

⁷⁴ Vedanta v Union of India, MANU/OR/0119/2011 [15]. No objection to the statement was raised by the bench.

⁷⁵ Kshirod Chandra Pradhan v State of Orissa, MANU/OR/0089/2017.

⁷⁶ See also Arjun Lal Sinha v State of Jharkhand, AIR 2010 Jhar 62 [9], where the Jharkhand HC upheld this restriction under Chhotanagpur Tenancy Act 1908, s 46(3).

⁷⁷ 2014 (4) FLT 394.

⁷⁸ PESA Act, s 4(k), which states that the recommendations of the Gram Sabha or the Panchayats, at the appropriate level, shall be made mandatory prior to grant of prospecting licence or mining lease for minor minerals in the Scheduled Areas.

⁷⁹ Diwan Indra Nil Sinha (n 77) [8]–[9].

⁸⁰ 2017 (7) SCC 158.

⁸¹ ibid [10]. Another objectionable practice is of split approvals, where a part of the project, say a refinery near a mine site, is permitted that puts pressure on the government departments to accede to the excavation of the nearby mining site.

⁸² ibid [4].

⁸³ ibid.

⁸⁴ ibid.

⁸⁵ MANU/JH/1562/2015 [1].

⁸⁶ MANU/JH/1570/2016 [1]–[2].

⁸⁷ Subhrajit Sen, ‘India’s nuclear dreams are a nightmare for residents of a uranium-rich Jharkhand area’ (Scroll, 8 September 2020) <https://scroll.in/article/972383/in-photos-indias-nuclear-dreams-are-a-nightmare-for-residents-of-a-uranium-rich-jharkhand-area> accessed 28 December 2023.

⁸⁸ Binod Kumar Bhukania v State of Jharkhand, 2013 (3) FLT 271, where the Jharkhand HC held that a junior environment engineer cannot prosecute without permission of the state or central government under the MMDR Act 1957 and in State of Odisha v Government of India, AIR 2017 Ori 142, the Odisha HC found that the state had conducted investigation, without following the principles of natural justice, as they had not provided show cause notice to the company.

⁸⁹ For instance, licence needs to be obtained from Bureau of Indian Affairs in the United States of America and Indigenous and Northern Affairs in Canada for projects on indigenous land.

⁹⁰ For examples of inclusive mining governance, see Anthony Kung and others, ‘Indigenous Co-ownership of Mining Projects: a Preliminary Framework for the Critical Examination of Equity Participation” (2022) 40(4) Journal of Energy and Natural Resources Law 413; Anna Erwin and others, “Centering Community Voices in Mining Governance’ [2022] 35(10) Society and Natural Resources 1043.

⁹¹ Roy and Company v State, 2008 (II) OLR 911 [7]–[8].

⁹² ibid.

⁹³ ibid [12].

⁹⁴ ibid [25].

⁹⁵ See CMDF Act, s 5.

⁹⁶ 2017 (16) SCC 186.

⁹⁷ The Union of India introduced the Act in March 2015 with retrospective application from January 2015. The states delayed the notifications to introduce the Act in their states (Odisha-August 2015; Chhattisgarh-December 2015; Jharkhand-March 2016). Further, in the state notifications, few states established the DMFs retrospectively from January 2015 (Jharkhand and Chhattisgarh for instance) while others (like Odisha) established DMFs from the month of the notification.

⁹⁸ FIMI (n 96) [38].

⁹⁹ Rajesh Chadha and Ishita Kapoor, ‘District Mineral Foundation Funds: Evaluating the Performance’ [2022] 13 (Table 6) <https://csep.org/discussion-note/district-mineral-foundation-funds-evaluating-the-performance/> accessed 22 February 2023.

¹⁰⁰ Shah Commission of Inquiry, ‘First Report on Illegal Mining of Iron and Manganese Ores in the State of Jharkhand’ [2013] 1, 10 <https://mines.gov.in/admin/storage/app/uploads/643545060cd881681212678.pdf> accessed 22 February 2023.

¹⁰¹ Bihar Mica Exports v State of Jharkhand, 2012 (4) JCR 84 (Jhr) and Bishra Stone v Union of India, 2007 (III) LLJ 209.

¹⁰² Bishra Stone v Union of India, 2007 (III) LLJ 209 [3].

¹⁰³ Shah Commission of Inquiry, ‘Memorandum of Action Taken on First Report on Illegal Mining of Iron and Manganese Ores in the State of Odisha’ [2014] 4 <https://mines.gov.in/admin/storage/app/uploads/643546583cea81681213016.pdf> accessed 22 February 2023.

¹⁰⁴ 2012 (132) FLR 258.

¹⁰⁵ John Maria v Central Coalfield, 2019 (161) FLR 46 (“Maria”) and Shiblal Manjhi v Central Coal Field, 2009 (1) JCR 507 (Jhr).

¹⁰⁶ Jagdish Mandal v State, 2022 (1) CGLJ 113 and Ritlal Prasad Mandal v The Chief Manager Mahanadi, MANU/OR/0308/2015.

¹⁰⁷ Maria (n 105) [6].

¹⁰⁸ 2003 (4) JCR 238 (Jhr).

¹⁰⁹ ibid [2].

¹¹⁰ ibid [4].

¹¹¹ 2011 (7) SCC 547.

¹¹² ibid [6]–[9].

¹¹³ ibid [13].

¹¹⁴ 2012 (II) ACC 387 (Ori).

¹¹⁵ ibid [13].

¹¹⁶ MANU/CG/0175/2022 [4].

¹¹⁷ 2003(2) CGLJ 168 [2], [11].

¹¹⁸ 2007 (1) CGLJ 61.

¹¹⁹ MANU/CG/0427/2020; Prevention of Corruption Act 1988, s 13(1)(a).

¹²⁰ United States v Lara, 541 US 193 (Thomas J).

¹²¹ OMC (n 51) de facto established the FPIC rights, Common Cause (n 80) raised critical concerns on impact of illegal mining on adivasis, FIMI (n 96) gave impetus on establishing DMFs, and Nandini Sundar (n 109) made the critical connection between resource exploitation and dissatisfaction of citizens on the ground.

¹²² Rebecca A Reid and Todd A Curry, ‘Explaining Indigenous Peoples Success in State Supreme Courts’ [2021] 9(1) Journal of Law and Courts 69.

¹²³ I am thankful to one of the anonymous reviewers for pointing out the limited mention of UNDRIP even in the OMC case (n 51) (the only case in the dataset where the international doctrines were invoked) and absence of reliance on international indigenous rights law by the Indian courts.

¹²⁴ Millar (n 42), Kung (n 90), and Erwin (n 90).

¹²⁵ Common Cause (n 80) [205]–[209].

¹²⁶ OMC (n 51) [42].