THE Mining and Minerals (Development and Regulation) Amendment Bill 2015 has been passed by both houses of parliament after a motion to resend it to the select committee moved by P Rajeeve of the CPI(M) was defeated in the Rajya Sabha. The Bill was adopted in the Rajya Sabha by 117 votes to 69. The government got the Bill through with the support of parties like the Trinamool Congress, the Samajwadi party, the BSP and the BJD. Apart from its other aspects, the Bill specifically affects adivasi communities. Mineral rich areas are those where adivasi communities own or occupy the surface land and also have traditional rights over the forests. The government supported by parties like the TMC has falsely claimed that by accepting an amendment suggested by the select committee it has met adivasi concerns. Derek O’Brien, leader of the TMC in the Rajya Sabha who acted as the proxy spokesman for the Modi government said “See the glass as half full not half empty.. lets not be negative. The government had accepted a suggestion to make local communities including tribals, partners in the development of the mines neighbourhoods.” Mr O’Brien should know that it is not a question of “making” tribals partners in development of “neighbourhoods” as an act of charity, but in taking their prior, informed consent before mining. Secondly tribal communities are to be legally recognised as “partners” in the wealth of the mines not in cleaning up the neighborhood after the miners have destroyed it. The present amendment is a dilution compared even to the earlier inadequate and highly flawed 2011 Bill which had been critiqued strongly at time. AGAINST THE FEDERAL CHARACTER In India, state governments own all minerals located within their respective boundaries. “In the public interest” parliament can enact laws to regulate and develop mines.” Under the guise of “public interest”, the State has acted as a front to transfer the mineral wealth of the country into private hands. This is clearly reflected in the National Mineral Policy 2008. In the current framework, the central government has overall control of decision making for major minerals while state governments decide about minor minerals. The principal Act governing the mining of minerals in India is the Mines and Minerals (Development and Regulation) Act (MMDRA) dating back to 1957. The Act has been amended several times, most of the amendments have been towards privatising the mining sector, including in 2010, for the direct entry of foreign companies. In the current Amendment Bill 2015, the central government moved 22 substantial amendments to the 1957 Act the thrust being on giving more powers to the central government at the expense of the state governments and secondly in further promoting the interests of mining companies. Such amendments include an automatic extension of the mining lease to 50 years from the present 30 years, the extension of the limit of a mine from the present 10 sq kms to an undefined extent with the approval of the central government, the automatic conversion of a prospecting license to a mining lease, legalised the right to transfer a lease after winning it in the auction, and so on. The auctioning process introduced in the Bill, though lauded as a means to ensure transparency in the allotment process, will mean that public sector units producing Steel will be badly affected and the prices of iron ore in the market are likely to go up. State governments who have been demanding a say in the end use of the minerals in the interests of the people of the state have no special rights for ensuring minerals for public sector companies. The nature of the amendments is such that require serious consultation with state governments, which will be affected, and secondly and equally importantly communities who will be further affected by such amendments such as the extension of the size of the mining area which will lead to more displacement. In this case as is well known, mineral rich areas are those where adivasi communities own or occupy the surface land and also have traditional rights over the forest. However the Modi government in its anxiety to please mining corporates, bulldozed constitutional niceties and refused the select committee enough time to call representatives of state governments or of adivasi communities. If the procedure was patently unconstitutional and legally dubious, the substance of the amendments is an assault on the rights of tribals. Here we look at these aspects of the Bill. BACKGROUND The MMDRA is as draconian an Act for tribals as was the 1894 Land Acquisition Act for all farmers. Tribals living in mineral rich states have been victims of recurring displacements and have had their land, their livelihood snatched away through the implementation of this Act. The 1957 Act (24A(2)) describes them as “occupiers of the surface of the land.” This definition extinguishes in one sentence the cultural, social, spiritual, economic and traditional and usufructory rights of individuals and tribal communities living in mineral rich, often forested areas. According to the clause such “occupiers” will have to be paid by mine lease holders who “shall be liable to pay compensation in such manner as may be prescribed…for any loss or damage which is likely to arise or arisen from or in consequence of the reconnaissance, mining or prospecting operations.” The principal Act does not have any provision for consent. It is only in the Rules Schedule 1 (framed in 1960)where the “model” forms for lessees are given that there is a requirement under general provisions to state whether the “applicant has surface rights...if not has he obtained consent of the owner, occupier of the land be obtained in writing and be filed..” In the same rules if the consent is not obtained and if the compensation offered is as per the state governments parameters then if the owner/occupier “refuses consent state government shall order the occupier to allow the licensee to enter upon the said land and carry out such operations as may be necessary..” (Part V) under general provisions. This provision in the Rules “where the state government has the right “to order” has been used for large scale forcible acquisition of land where the lessee does not even bother to ask for consent but makes a compensation offer to the state government which then acts for forcible acquisition. Tribal movements have been demanding amendments to ensure their informed prior consent is taken before such leases are given and that they have a share in the mineral wealth. Governments have refused to heed this democratic demand. The Supreme Court came to the help of tribal communities in Andhra Pradesh. In the landmark Samatha judgment of 1997 concerning bauxite mining operations in the Fifth Schedule areas of Andhra Pradesh the Supreme Court by a majority judgment held that under the constitution and the Fifth Schedule and various laws, tribal land is “non-transferable” to any non-tribal and therefore it cannot be leased or handed over for any mining operations to non-tribals. It also held that tribals must have a share in the mineral wealth for which it made several suggestions. In July 2000, the ministry of mines which expressed its total opposition to the judgment in a note marked “secret” came to the conclusion with the concurrence of the then attorney general that “it would be futile to move any further application for review of the Samatha judgment or modification of any part of it.” It suggested amendments to the Fifth and Sixth Schedule. It was the BJP government in office at the time. But even that government did not consider it politically feasible to actually amend the Schedule. Thus as far as case law is concerned the Samatha judgment is the last word on the issue. However it is significant that in the select committee in spite of references being made to three other judgments of the Supreme Court regarding rights of states, the rights of tribals as enunciated in the Samatha judgment was not made a reference point. Since 1997 other laws have helped establish the rights of tribals and gram sabhas. The Forest Rights Act adopted by parliament in 2006 clearly states that there can be no relocation without the recognition of the rights of forest dwellers with their consent. The 2006 amendments to the Wild Life Protection Act also mandate taking the consent of tribals before relocation. Earlier in 1996, the PESAA also gave tribal communities and gram sabhas the right to decide on development projects in their areas. In 2010 the then UPA government had moved a step towards legalising the stake of adivasis in the nation’s mineral wealth by proposing an amendment to the clause quoted above of “occupier” which stated “any person or persons holding occupation or usufruct or traditional rights over the surface of the land will be allotted free shares equal to 26 per cent through company’s quota, or an annuity equal to 26 per cent of the profit (after tax paid), provide employment and or other assistance and in case the lease holder does not make a profit, the company or lease older will provide such amount in lieu of annuity for the first five years.” It mandated “annual compensation as may be mutually agreed.” It also made other provisions towards the welfare of tribal communities. Mining lobbies backed by the then Planning Commission shot down this provision. The UPA government brought a draft Bill in 2011 to replace the 1957 Act. This Bill diluted the 2010 proposals concerning tribal rights in minerals. As far as the issue of consent is concerned, the Bill was highly inadequate. The Bill was referred to the parliamentary standing committee which gave its proposals in May 2013 but since it was not taken up in the last Lok Sabha, the Bill lapsed. The 2011 Bill as mentioned earlier was itself a highly flawed and inadequate Bill as far as tribal rights were concerned. It is by no means the benchmark for tribal rights. But a comparison of the two amendment Bills shows how even the small compensations for tribals in the 2011 Bill have been eliminated in the Modi Bill. A BRIEF COMPARISON The 2011 Bill enjoined (13. 5) the state government to obtain “all necessary permissions from the owners of the land and those having occupation rights” but did not include community resources. As far as minor minerals are concerned the Bill (13.13) mandated that the gram sabha or district council, as the case may be in an area covered by the Fifth and Sixth Schedule should be consulted. It also mandated that all environment and forest clearances under the Forest Conservation Act, the Wild Life protection Act or any other law in force must be taken before a lease was given in a forest or wild life area. The 2015 amendment Bill has no such provision. No “permissions” are required. No consultation is required. Thus the 1957 anti-tribal clause, which does not require either “permission” or “consultation”, remains. The 1957 Act does not contain any clause on the issues of forest or environment clearances. The 2015 Amendment also does not include any such clause. Thus the present approach of the Modi government to by-pass existing environmental norms in the name of “speedy clearances” and “ease of business” is reflected in the absence of even a mention in the 2015 Amendment Bill. All these issues which should actually be part of the principal law will, according to the government be dealt with in the Rules. In the 2011 Bill there was a clause (7) partially based on the Samatha judgment which referred to tribal cooperatives being eligible for the grant of leases for minor in Fifth and Sixth Schedule areas. It did not however include this for major minerals. The 2015 Bill does not mention tribal cooperatives at all. The 2011 Bill proposed the setting up of a District Mineral Foundation. (Clause 56) The 2015 Amendment (9B) also includes the setting up of a District Mineral Foundation, but the scope and the funds differ. In the 2011 Bill there was a differentiation made between (1) reconnaissance, (2) prospecting, (3) exploration licenses on the one hand and mining licenses on the other. For the former it was mandated that the holder of any of these three licenses must pay to every person or family holding occupation or usufruct or traditional rights of the surface of the land for which a license has been granted, such reasonable annual compensation as may be mutually agreed…”(Clause 43.1) Since many reconnaissance/prospecting leaseholders subsequently became mining lease holders, the annual compensation for reconnaissance/prospecting was in addition to what they had to pay to the District Mineral Foundation. In the 2015 Bill, all these leases are merged into one, a prospecting cum mining lease. The annual compensation has been removed altogether. In the 2011 Bill, “The holder of a mining lease shall pay annually to the District Mineral Foundation in case of major minerals (except coal and lignite) an amount equivalent to the royalty paid during the financial year.(43.2.a) In the 2015 Bill, the amount is slashed by two-thirds. “The holder of a mining lease or a prospecting license cum mining lease pay to the District Mineral Foundation an amount not exceeding one third of such royalty as may be prescribed by the central government.” There is no annual compensation, and there is a reduction from 100 per cent equivalence to royalty to just one-third present. The 2011 Bill had a different provision as far as coal and lignite are concerned. It stated “In case of coal and lignite an amount equal to 26 per cent of the profit, to be called profit sharing percentage” to be paid to the DMF. The 2015 Bill has no such provision. The 2011 Bill diluted the 26 per cent equity proposal of 2010. It proposed that the holder of a mining lease which is a company “shall allot at least one share at par for consideration other than cash to each person of the family affected by mining related operations of the company and such shares will be non-transferrable.” The 2015 Bill eliminates even this. The 2011 Bill gave some minimum details of what the Foundation was expected to do including monthly payments directly to those affected. The 2015 Bill has no such details but leaves it entirely to the state government. It includes a new clause which enjoins the state government when it makes the Rules for the functioning of the DMF to do be “guided by the provisions of article 44 read with the Fifth and Sixth Schedules, PESAA, Forest Rights Act. These are only to be in connection with the use of DMF funds.” HALF FULL GLASS This is the half full glass that Derek Obrien’s party and others have quoted to shamelessly support the Bill. The CPI(M) gave a strong dissent note to the select committee. Its member TK Rangarajan was joined by D Raja (CPI), Shantaram Naik (Congress) and Pavan Verma (JD-U). The note raised many of the important issues concerning the DMF, compensation payments etc. The glass is full for the corporate lobbies and empty for the tribals. It is essential for the Left to take these details to the mass of adivasis and to build up a broad-based resistance movement against the anti-tribal Modi government. The parties that sided with the Modi government to betray tribals must also be exposed.