By Erwin K. Syiem Sutnga
The blanket Ban on Coal mining by the National Green Tribunal (NGT) since Aprl this year is now in its eighth month with no solution in sight. The blanket Ban has brought to the fore issues of rights to livelihood, ownership of land in the tribal areas of the Khasi, Jaintia and Garo Hills, the need for consolidation of tribal society and preservation of their identity in Meghalaya. However the most important issue is the assault on land rights and the application of central laws to a situation which is diametrically opposite to the prevailing situation in mainstream India. Here in Meghalaya, the tribal people own around 96% of the total land. We are living in a world which is rapidly changing. Our traditions and customs are also evolving and changing to the needs of the times but the basic framework of tribal identity which is ownership of tribal land as an absolute right cannot be modified, abridged or negated. Ownership of land amongst the Khasi, Jaintia and Garo People is the fountainhead from which all other rights, customs, tradition and identity emanates. The present NGT Coal Ban was preceded by a total ban on sand and stone mining in late 2013.
On the question of the consolidation of Khasi, Jaintia and Garo tribal land I am of the firm opinion that codified law, especially Central Acts affecting us, must have provisions for protection of the rights of the individual tribals over tribal land in this state. While the Meghalaya Land Transfer Act, 1972, is serving its purpose in a limited way, the demands of changing times require that a systematic approach be made especially in the light of the present demands which require that we conserve and protect as well as open ourselves to economic, social and political developments against the backdrop of globalization. Parliament both in the Lok Sabha and the Rajya Sabha has to recognize the mandatory and absolute condition precedent in Para 12 A Sub Para (b) of the Indian Constitution. At the same time a coordination module has to be evolved between the Government of Meghalaya and the three Autonomous District Councils. The Japanese are a classical example of tradition and modernity combining to give economic benefits while preserving the core traditions of a unique people.
The path of history for the Khasi, Jaintia and Garo People has led us through various stages of struggle to achieve our rights and maintain our freedom in an atmosphere that will at least allow us to preserve our customs and heritage. The mistakes of the past cannot be left without rectification especially when the opportunity remains open. Now the NGT has provided us an opportunity to seek redressal of many a situation which are challenging the basic structure of tribal identity in Meghalaya. The changing times and the demands of change require that we preserve and conserve our own unique identity as well as protect the land from which springs the roots of our identity and remains the wellspring of hope for the generations to come. India today is a welfare state and the scheme of the Constitution is to protect the rights of minorities and to sustain their unique identities. However, as in the case of the Khasi, Jaintia and Garo People, this relationship is founded on treaties and agreements. The United Nations has accepted this principle the world over. The basic white paper prepared on this States:
“Many of the treaties carry a great symbolic meaning to indigenous people. They are seen as providing recognition of indigenous self-determination, and a guarantee of the collective rights of the people concerned. An agreement which has the character of solemn pledges by one people to another, when fully honoured by both parties, breeds mutual trust and respect and has a potentially vital role in promoting and protecting the human rights and fundamental freedoms of indigenous peoples..”
In short the lessons of history are that any tribe, people or nation that fails to secure the interests of its heritage and its indigenous ethnic identity lose out to the interests of the majority and become relegated to the archives of history and time in the annals of the genealogy of man. We do not wish this to happen to our people. In order to ensure the survival of the Khasi, Jaintia and Garo Indigenous people in this corner of India, it’s necessary that a fresh look is taken especially where the status of land and the inherent rights of tribal individuals over the same is concerned.
It is relevant to state that the matters of the Instrument of Accession and the doubts raised by the unilateral merger of the erstwhile Khasi States into the then state of composite Assam are reflected in the words of Sardar Vallabhai Patel who said “the rulers discharged their part of the contract by surrendering their states and powers. They are now bereft of any bargaining power. Because a creditor is too weak or poor to enforce his rights, a debtor should not in honour, refuse to discharge his debt. As an honourable party to an agreement, we cannot take the stand that we shall accept only that part of the settlement, which confers rights on us, and repudiate or whittle down that part which defines our obligations. As a nation aspiring to give a moral lead to the world, let it not be said of us that we know the price of everything and the value of nothing.”
The movement to restore Khasi, Jaintia and Garo lands cannot be allowed to falter. Every constitutional means has to be explored in view of the historical and contemporary facts and the legal position. In the words of the late GG Swell former MP and Deputy Speaker of the Lok Sabha, a champion par excellence of our tribal rights:-
“We share with the rest of the world’s indigenous people our critical dependence on our land and vulnerability. Take away the land from us we can easily be swamped, uprooted and dispersed.
Our survival is threatened by modern developments, division of our territory with artificial boundaries, colonization, militarization, policies and designs aimed at submerging us into the so called mainstream of dominant culture and population.
Way back in 1941, our land was nearly 16,000 sq. km in area. However, in just about half a century, our territory has been shrinking considerably. Our state Government (1991) estimated our area at about 14,262 sq. km only, as a consequence of which about ten percent of our populations of about a million have been left out by means of artificial boundaries.”
Late Dr. B. Pakem has also put the problem into perspective. He said, definitely, “the indigenous peoples of North-East India have the right to Self-determination and Self-government in the context of self-managing their rights over their land, forests, language, culture and customary laws. While the World Bank, the International Monetary Fund, the Multinational Corporations and other private international funding agencies, on economic consideration, are actively supporting the demand for self-determination by the indigenous peoples who owned vast areas of land with mineral and forest wealth, the western elites and the ruling elites of the Third World countries who used to control such wealth would oppose it on political ground. It is, therefore, for the indigenous peoples who are caught in between these two forces to decide for themselves which kind of self-determination they actually aspire for.
In short in order for us as a unique people to be able to really feel secure, statutory protection has to also incorporate the amendment of the Constitution of India to incorporate clear and definite protection of our land, culture, customary laws and heritage under the provisions of Article 371A as has been done for the Naga people in the form of separate provision under Article 371.
In view of the special provisions of Para 12A Sub Para (b) of Sixth Schedule to the Constitution of India, the applications of laws passed by Parliament have to be adapted with exceptions and modifications as required by our special status under the Constitution of India. This cannot be left only to the District Council but has to be the responsibility of the State Government and the members of the Legislative Assembly. All laws have to be vetted so that these do not conflict with our customs and prevailing practices. The worst case scenario was the implementation of the Forest Conservation Act, (1980), in 1996 by the Apex Court where the provisions of the said Act clashed with the laws of the District Councils and the customs and prevailing practices in relation to forests in the state of Meghalaya as a whole. This was a failure of the legislators and administrators who allowed the operation of the said law without application of mind or its effect on our people. Statutory provisions especially of Central laws have to render laws of Parliament and the State Government adapted to the needs of the tribal people of this state. However, the need to preserve and protect rights also gives rise to the responsibility to preserve and protect the environment. The present NGT ban has had one positive effect on the way tribal people think and perceive about the environment especially in the mining areas and the positive outcome is that there is now a heightened awareness of the need to responsibly exploit the natural resources while enjoying the benefits of the earth.