Stan Swamy and the Law
By Manraj Singh
Stan Swamy, a priest from South India made Jharkhand his home and the cause of tribal/Adivasi people his religion. Trained as a Jesuit priest, he made political activism and grassroots activism his primary vocation. From taking part in popular struggle during Emergency to the founding of Bagaicha, a centre to coordinate tribal rights activism in Jharkhand, he has been instrumental in raising clear categorical questions about the rights of the tribal/Adivasi people, and issues about ownership of land which traditionally belong to them.
Stan Swamy was recently arrested due to his alleged links with Maoists and participation in the commemoration function of the bi-centennial celebration of the Battle of Koregaon Bhima organised by Elgar Parishad on December 31, 2017. Organised by more than 250 non-profit organisations, it was attended by prominent Dalit leaders, cultural outfits and lakhs of Dalits. Violence broke out on January 1, 2018 where one person was killed.
Later, a case was made out that the event was organised by Maoists and cases were registered under the Unlawful Activities (Prevention) Act, 1967 against a number of prominent thinkers, poets, social and human rights activists, artists, and academicians such as Varavara Rao, Surendra Gadling, Rona Wilson, Mahesh Raut , Sudhir Dhawale, Sudha Bhardwaj, Gautam Navlakha, Anand Teltumbde and others. The National Investigation Agency (NIA) which took over the case from Maharashtra Police alleged that the Persecuted Prisoners Solidarity Committee of which Stan Swamy is a co- convener is a front organisaton of Maoists. Swamy admits that he attended the event at Pune but denied any connection with the Maoists. Swamy has in fact always tried to use the terrain provided by the Indian Constitution and the statutory laws for the betterment of tribals/Adivasi and the downtrodden.
Fifth Schedule of Indian Constitution
The Fifth Schedule of the Indian Constitution read with Article 244, deals with the administration and control of Scheduled Areas (SAs) and Scheduled Tribes (STs) in States other than Assam, Meghalaya, Tripura and Mizoram. It empowers the President to declare certain areas as scheduled areas on basis of tribal population, territorial size, economic disparity, and underdevelopment. It creates special governance mechanisms to cater to the different needs of the resident people. It provides for establishment of Tribal Advisory Councils (TAC) to advise the Governor on such matters pertaining to the welfare and the advancement of the STs in the State as may be referred to them by him. TAC, thus, becomes a natural check on Central and State laws which can adversely affect the tribal populations and also provides them agency to run their affairs. Stan Swamy has consistently questioned the non-implementation of the 5th Schedule of the Constitution in the tribal areas of Jharkhand.
Panchayats (Extension to Scheduled Areas) Act,1996 (PESA)
Decentralisation of power is perceived as anathema to the ills of governance plaguing the Indian governmental setup. It implies transfer or dispersal of decision making powers, accompanied by delegation of required authority to individuals or units at all levels of organization even if they are located far away from the power centre. The 73rd Amendment to the Constitution of India calls for devolution of powers and authority of governance of the Union Government and State Governments to the sub-State level organizations i.e. Panchayats and Gram Sabhas. PESA was brought in to extend those provisions to tribal areas.
The difference between PESA and the Panchayati Raj Institution structure established under the 73rd Constitutional amendment is that while the latter states that the States “may” transfer the 29 subjects enlisted in the Eleventh Schedule to Panchayats , PESA makes this transfer mandatory at least for those powers which are outlined in Section 4 of PESA, namely: Minor Forest Produce, Social Forestry, Land Management, Fisheries, Village Markets, Tribal Development, Social Justice, Food and Civil supplies, and subjects related to local institutions.
Stan Swamy has repeatedly questioned why the Panchayats (Extension to Scheduled Areas) Act, 1996, has been ignored which for the first time recognised that Adivasi communities in India have a rich social and cultural tradition of self-governance through the Gram Sabha. He also questioned the silence of the Government on Samatha Judgment. The Judgment came at a time when along with the State policy of globalisation, liberalization and privatisation, national and global corporate houses started to enter tribal/Adivasi areas in central India to mine the mineral wealth there.
As elaborated by Ravi Rebbapragada, Executive Director, Samatha, the Government leased out large mining tracts to corporate giants during the liberalisation of the 1990’s. This violated the Land Transfer Regulation Act which prohibits transfer of land to non-tribals in scheduled areas. According to Rebbapragada such poorly thought out decisions by the Government ignoring the rights and resources of the people, motivated Samatha, an Andhra Pradesh based NGO to take up the fight for the rights of tribal/Adivasi communities who would be displaced and affected by private mining companies. A PIL was filed in the High Court of Andhra Pradesh in 1993 on grounds that the Government was also a ‘person’ and hence does not have the power to grant leases to non-tribals in scheduled areas. After sustained struggle, the Supreme Court (SC) in July 1997 delivered the landmark judgment in Samatha vs State of Andhra Pradesh and Others.
In this judgment, SC Stated that tribal people can exploit minerals in scheduled areas without disturbing the ecology or the forest lands either individually or through co-operative societies with financial assistance from the State. It further stated that in the absence of prohibition on the transfer of lands, any licensee or lease must provide certain duties and obligations to the tribal people who are affected by the project. However, the court noted that the transfer of tribal land to State-owned agencies or corporations is excluded from such prohibitions. It also stated that at least 20 per cent of the profits from any project must be set aside as a permanent fund for the affected tribal people’s development needs in addition to any expenditure on reforestation and maintenance of the ecology.
If implemented correctly, the Judgment makes tribals/Adivasis partners in the growth story of India and active stakeholders rather than mere cogs in the vast economic system. But responses from various State Governments to the Samatha judgment have been lukewarm. Stan Swamy has used the logic of this judgment and has been calling for its enforcement in Jharkhand.
Swamy has also questioned amendments to the Land Acquisition Act, 2013, by the Jharkhand Government. These amendments did away with the requirement for “social impact assessment’ which was aimed at safeguarding the environment, social relations and cultural values of affected people. A terrifying aspect of the amendments is that the Government can allow any agricultural land for non-agricultural purposes (adequate changes were made in the Chotanagpur Tenancy Act as well as Santhal Pargana Tenancy Act of 1876 to facilitate such practices). He also fought for the release of activists of Pathalgadi movement which opposed these Acts and used the instruments of Gram Sabhas to fight this onslaught.
To understand Stan Swamy’s mindset it is important to go through his past works. From starting as the Director, Catholic Relief Services charity in Jharkhand in 1970s , he went to Indian Social Science Institute, Bangalore to improve his understanding of society. This centre later became a hub of anti-emergency activities. From there he tried to reach out to hundreds of young people from the fringes of society through systematic training sessions. He actively worked with JOHAR – the Jharkhand Organisation for Human Rights. Later on it was felt that there was a need to establish a centre in Ranchi to coordinate the efforts of organisations and movements which were fighting for the marginalised communities, hence Bagaicha came into existence. He was later arrested from here.
A commonality which people of North East can relate to is that Stan has also been an important part of the JOAR (Jharkhand Organization Against Radiation) which led a campaign against Uranium Corporation of India Limited (UCIL) at Jadugoda. JOAR and other organisations agitated against the ill effects of Uranium mining and processing on people of Jadugoda and adjoining areas. West Khasi Hills in Meghalaya also has rich Uranium deposits and UCIL has been trying to mine Uranium in these areas for long but has not been successful due to the resistance of the people.
During the agitation, the word Jadugoda resonated quiet often in the Khasi Hills and incidentally West Khasi Hills also has a river named Jadukata. Some local leaders at that time attributed the death of fish and other aquatic life in Jadukata river due to exploratory mining of uranium and it caught the popular imagination.
Stan Swamy had attended the Elgar Parishad meeting on December 31, 2017 to commemorate the Bhima Koregaon Battle where the Mahar Regiment had defeated the Maratha army. Now he is arrested due to his alleged links with Maoists. Swamy had always maintained that he has no connection with Maoists. To book an 80 year old poet, Varavara Rao, a management expert like Anand Teltumbde, a social activist like Sudha Bhardhwaj and 83 year old Stan Swamy for conspiracy only points to a pervert design on the part of those in power. It is high time that democratic forces, aware citizenry, dalits, and tribal/Adivasi people unite to protest against the arrest of Stan Swamy and others and demand justice for them. Change has to come from ordinary people resolving to do extraordinary things just as Swamy has been doing by asking questions and by standing his ground. Even though Swamy suffers from Parkinson’s disease and is losing his hearing, his resolve remains strong as seen from his latest letter from jail. He has not been provided with even a straw and sipper because his hands shiver and he cannot hold a glass of water. It is ironic that the criminal justice system of the country shivers and shudders from the shivering of a geriatric man.