Part I

The Background

The tribal areas are generally endowed with rich natural resources. These areas, along with their simple inhabitants, were at the margin of the national economy, which was predominantly agricultural before independence. This harmonious frame of ‘marginal areas and marginal people’ was shaken in the wake of industrial sector being accorded the lead sector role in national development. Accordingly the resource-rich hills and forests, the abodes of the tribal people, came on to the center of stage in the national economy, while the tribal people remained at its margin. With the opening up of these areas, the simple people occupying that territory were perceived as hurdle in the path of development. Massive displacement followed. The Indian Constitution, however, takes special note of this contingency. It provides for full protection to the tribal people under various provisions, especially the Fifth and the Sixth Schedules. Accordingly attempts have been made from time to time, albeit largely proforma, to ensure that (i) the traditional command of the community over resources is honoured, (ii) development in these areas takes place with focus on the quality of life of the people, and (iii) the overall frame of national development itself is informed with equity.

The irony is that the ‘path of development with equity’ has been largely ignored and finally abandoned by those in hurry for the so-called development. This has resulted in accentuation of confrontation between the people, especially the tribal people and the State, which ironically is also their guardian and protector under the Constitution.

The Kalinga Nagar incident and the unrest in the designated industrial zone thereabout is only the tip of iceberg. Fiery unrest is engulfing the entire tribal tract in the State and the country. It is a matter of deep regret that there is callous unconcern in the System about the impending catastrophe and total disregard for the policy frame and even its Constitutional obligation. It will, therefore, be necessary to review the broad outlines of the policy so as to appreciate the nature of the current crisis and discontent. It will also be helpful in working out short term and long term measures for meeting the deepening crisis and the great challenge of ‘Development with Equity’. A brief outline of the legal and policy frame is presented below which can be elaborated later according to the need that may emerge from time to time in the local context.

Legal and Policy Frame

1. The Fifth Schedule:

The Fifth Schedule (FS) of the Constitution is addressed to the administration of the Scheduled Areas (SA) with focus on ‘peace and good governance’. The sweep of ‘administration’ in the provisions of FS is comprehensive. The discretion vested in the executive is virtually boundless. Legal luminaries have described the Fifth Schedule as a ‘Constitution within the Constitution’. The essence of various provisions in the Fifth Schedule is that command over resources of the community shall be honoured and protected. This is in consonance with the stipulations in the I.L.O Conventions (107 and 169) concerning the tribal and indigenous people. The latter, inter alia, calls upon the Governments “to respect the relationship of the tribal people with the land or the territories which they occupy or otherwise use” and not to remove them therefrom except “with their free and informed consent.” The U. N. Declaration on Human Rights, ratified by India, reinforces this premise. It envisages that the States shall have “the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom”. The Hon’ble Supreme Court has also affirmed this premise in Samata Case by stating that “The Constitution intends that the land always should remain with the tribals... “The words “peace and good government” used in the Fifth Schedule require widest possible interpretation, recognised and applied by this Court...

“...If the Cabinet form of government would transfer the land of the Government to non-tribals peace would get disturbed, good governance in Scheduled Area would slip into the hands of the non-tribals who would drive out the tribals from Scheduled Area and create monopoly to the well developed and sophisticated non-tribals; and slowly and imperceptible, but surely, the land in the Scheduled Area would pass into the hands of the non-tribals. The letter of law would be an empty content and by play of words deflect the course of justice to the tribals and denude them of the socioeconomic empowerment and dignity of their person.”

The Role of Executive

The great task of taming the transition of the tribal people has been entrusted in food faith and best intentions to the executive with requisite authority unbelievable in a democracy. The Governor is the sole legislator of the Scheduled Areas. He enjoys unlimited powers especially under Para 5 of the Fifth Schedule. The Para starts with the non-obstanate clause ‘ Notwithstanding anything in this Constitution.’ The intention is that mere law cannot be allowed to stand in the way of providing effective protection to the tribal people and progressive measures that may be unconventional for their well-being and advancement. It is the legal frame, which must yield and be suitably adapted rather than forcing the people to change under the duress of law and face man-made catastrophe. It may be remembered that the Governor, in terms of the oath he takes under Article 159, has the solemn duty to ‘preserve, protect and defend the Constitution’. In contrast the Ministers, in terms of the oath they take under Article 164, are expected to ‘bear true faith and allegiance to the Constitution.’ The founding fathers had envisaged the tribal affairs shall be deemed to be national concern above the ephemeral considerations of party politics. It would be truism to state that the Governor is expected to act in his discretion. It is a pity that notwithstanding these salutary provisions, no Governor has used his discretion and the Fifth Schedule has remained largely unoperationalised .

2. Tribal Policy: (a) General The first policy concerning tribal people after the framing of the Constitution came in the form of Panch Sheel of Jawaharlal Nehru. It was addressed directly to the people as also to the establishment in simple terms. The quintessence of the policy was that “the people should develop along the line of their own genius” and “tribal rights in land and forests should be respected”. Nevertheless these principles were not translated in actionable strategies, programmes and guidelines.

The first detailed exercise imbibing the spirit of the Constitutional frame discussed above was undertaken after about a quarter century in early 70s. This policy is formally still in vogue. It is popularly known as tribal sub-plan (TSP) strategy It envisages two coequal pillars - (i) the Fifth Schedule aimed at elimination of exploitation and building up the inner strength of the community itself, and (ii) the TSP for economic development. Accordingly it was envisaged that the Scheduled Areas and all other tribal majority areas shall comprise the tribal sub-plan area. Para 6 of the Fifth Schedule was amended to authorize the President to enlarge the Scheduled Area. The government made a categorical commitment to the Parliament, in the statement of Objects and Reasons of the Amendment Act, that all tribal-majority areas that are not covered by the Fifth Schedule, shall be brought there under. (Annexure 1). This promise remains to be honoured in full even after 30 long years.

(b) Heavy Industries and Mines: One of the major issues that came up for consideration in the TSP strategy concerned establishment of heavy industries and mining enterprises in the tribal areas. The most distressing aspect of these activities is the fact that the people whose lands are formally acquired comprise only a small proportion of people actually affected. This aspect had been totally ignored while establishing industrial and mining enterprises in the tribal areas. For example, just six tribal families were supposed to have been displaced in the course of establishing Bailadial Iron Ore Project in Bastar, the biggest in Asia. The status of thousands of those displaced for Rourkela Steel Plant (RSP) continues to be a matter of dispute even to this day as half a century has rolled by. A policy frame was outlined in the TSP guidelines issued by the Ministry of Home Affairs in 1974 (Annexure 2). It envisages that ‘the future policy has to be so evolved that local community becomes co-sharer in the benefits of the mining and industrial activity in the region.’ It further envisages that ‘the likely zone of influence of the concerned industry should be identified.’ A comprehensive perspective plan for development of that region should be prepared so as to ensure a place of honour for all people in that zone on terms of equality in the new economy of that area. The plan for acheiving this objective has to be a part of the concerned project and its total cost has to be borne by the same.

( c) National Mineral Policy, 1993

The National Mineral Policy, 1993 does take note of the adverse effect of mining activity, albeit couched in moderate terms. It envisages that ‘Mineral bearing areas are also often inhabited by tribal people and exploitation of mineral resources has not always contributed adequately to their economic development.’ (Para 7.10) Similarly a special deal for tribals is also envisaged in respect of small deposits (Para 7.13). However there is nothing tangible on the ground

(d) PESA and After

All developmental efforts in the tribal areas, in the absence of a clear focus on people’s development, have been largely rendered dysfunctional. It has inevitably led to growing confrontation between the tribal people and the State The last policy bid to retrieve this unfortunate situation was made in early 90s. The focus in this case was the unattended agenda of self-governance, the quintessence of the Fifth Schedule, for achieving the Constitutional goals. A committee was appointed by Government of India in 1995 (Chairman: Shri Daleep Singh Bhuria) to recommend suitable exceptions and modifications in the Provisions of Part IX (Panchayats) and Part IXA (Municipalities) that may be made while extending them to the Scheduled Areas. As stated earlier, the Fifth Schedule envisages a comprehensive frame for the ‘administration’ of the Scheduled Areas. Accordingly the Committee made for reaching recommendations. The first report concerning rural areas has been implemented by enactment of the Provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA). PESA is a part of the Constitution for the Scheduled Areas. Two most important provisions in PESA, which are crucial for the present discussion are that (i) the Community at the village level in the form of Gram Sabha is competent to manage community resources (Section 4d), and (ii) the Gram Sabha shall be consulted before acquisition of land and rehabilitation of affected people.{Section 4(i)} The second Report of Bhuria Committee concerns areas not covered by Panchayats, which include Municipalities as also mining and industrial complexes. The Committee was of the view that the command over resources of community is non-negotiable. It made a vital recommendation that ‘community ownership over industries’ alone can provide the firm foundation of an equitous deal for the tribal people in consonance with the spirit of the Constitution. (Annexure 3) The irony is that provisions of Part IX A, with suitable adaptations, have not been extended to the Scheduled Areas for now 12 long years. The result is that all urban bodies of all descriptions including those of industrial and mining complexes in the Scheduled Areas are unconstitutional. They are functioning without any authority of law.

(e) Rehabilitation The Government of Orissa had issued Guidelines for rehabilitation of displaced persons/families in connection with establishment of Duburi Steel Plant Complex in the district of Jajpur in 1997. Some changes have also been made subsequently but basic frame remains unchanged. In any case they have missed the spirit of the propositions noted above.

The Government of India has also adopted National Policy on Resettlement and Rehabilitation Project Affected Families, 2003. The Policy accepts the concept of “affected zone” of the industry but its attention is focused on ‘displaced families’ due to formal acqisition of land, that too in the conventional frame of resettlement and rehabilitation.

Part II

Kalinga Nagar In The Process of Tansformation

1. Area and its People The habitations near Kalinga Nagar, Jajpur, Orissa are predominantly tribal. The area comprises a part of the former princely state of Sukinda. The tribal people in this area migrants from neighboring territory of Saraikala-Karsuan?, now in Jharkhand. The first batch came in the wake of great famine of 1866 during the time of Kritibas Bhupati who was married in the royal family of Saraikala-Karsuan?. According to folk memory, Bargadia was the only preexisting non-tribal village in this extensive forest area. The tribal settlements began with seven villages. Their number has multiplied manifold in the last century and a half. The assignment of land to the migrant tribal people was informal. A regular settlement was taken up and completed during 1922-28. According to Shri Chakradhar Haiburu, the Munda of the Village Ambagadia, one of the original “seven”, his land still continues to be in the name of his grandfather Shri Ganga Munda, as recorded during the settlement. 2. The Shadow of Industrialization: The area came to be identified as ‘destination Industry’ in 1980s. The Government appears to have decided to identify and acquire land in advance which could be developed and assigned to various industries, as the need arose from time to time. The demarcation of land for this purpose began in 1984. The people were not consulted in this process at any stage. When boring and soil-testing operations were taken up for identifying the proposed Industrial Region, the people were told that they were part of a routine government survey. A corporate body known as Industrial Development Corporation of Orissa (IDCO) was created. All lands were acquired in its name. An area of 10,000 acres is said to have been acquired in 1991-92 and another 15000 in 1995. A new phase of acquisition has begun in 2005 whose area is reported to be much larger. 3. Chaotic Land-records: Except for the settlement records, everything on paper is chaotic. The following points were made by the people: (i) No mutations: The lands stand in the name of their forefathers, which in the meantime, have been partitioned amongst the successors. Some of the lands have also changed hands by way of sale, albeit informal. The ground situation is rather confused. (ii) Extensions and New Occupations Not Recorded: As population increased, both by migration and natural growth, the number of holdings increased and new lands were also brought under cultivation. All these changes are unrecorded and deemed to be ‘unauthorized’. (iii) Deemed Reserved Forest: Extensive areas were declared as ‘deemed reserved forests’ shortly after merger of princely States and formation of Orissa 1954 without going through the determination of rights of the people and even preparation of record of actual possession of land by them. Extensive lands under occupation of the people in the deemed reserved forest, are unrecorded. (iv) Collusive Records: While genuine holdings, mostly of the tribal people, are unrecorded, collusive records have been prepared in the past two decades especially after the area was identified as ‘Destination Industry’ by the Government of Orissa (GOO). It is alleged that influential people have got extensive lands recorded in their names on the basis of fake ‘parchas’ of the ‘Ranee’ (Paper Slips of the Queen) and blatant tampering of official land records themselves. 4. Land Acquisition Some of the important points about land acquisition made out by people are as follows: (i) Selective Acquisition: The process of demarcation of land for acquisition was itself biased. As far as possible, lands belonging to influential and higher caste people have been spared while those of the poorer especially the tribal people were included even by drawing long winding lines, loops and such like. (ii) New Occupations and Change in Ground Reality Ignored: The people’s occupation of land and changes in holdings in natural course, which remained unrecorded due to administrative inaction, were totally ignored in the acquisition proceedings. Accordingly extensive lands, reportedly to the extent of more than half, were not acquired but just taken over as government lands ignoring the presence of actual occupants and rights thereon. For example, the instructions by GOI dated 18th September 1990 about resolution of disputes concerning ‘forest land’ arising from deficiencies relatable to the reservation process itself, have not been complied with to date by the Government of Orissa.The unjust deal to the forest dwellers meted out to them in 1954 with all catastrophic consequences have continued for more than half a century with out even a whisper amongst the ruling elite. (iii) The compensation for land has been fixed at about Rs.37000/- per acre. 5. Assignment of lands to various industries: The assignment of land to various industries can be said to have been proceeded in two phases: First phase: 1993-2003. The following industries were assigned land on a notably larger scale- 1. MESCO- (Middle East Integrated Steel Company). This company was assigned 900 acres of land in 1993. There were problems from the very beginning which upset its schedule of construction etc. It has, however, started production in 2002 2. Kalinga MESCO- this company was assigned 600 acres of land but it could not proceed. The land has been reassigned to others. 3. Neelanchala: it is a joint venture of MMTC and IPKAI (Industrial promotion Infrastructure Corporation). It was established in 1985. Land was assigned to Neelanchala in 1995 comprising five villages. It has started production in the year 2000. Second Phase: 2004 Onwards: A new phase appears to have begun with big companies showing interest in the mineral exploitation in general and establishing steel plants in particular in Orissa. Three ventures, inter alia, are notable: 1. Jindal: November 2004: extent of land assigned not known. 2. Maharashtra Seamless Steel: 9.5.2005: 500 acres assigned 3. Tata: 7.10.2005: 2500 acres land has been assigned 6. The People’s Assertion: The people were never taken in confidence, perhaps they were not considered as worthy of a dialogue, ever since the GOO decided to transform this backward forest tribal tract into an industrial hub of Orissa. Their reaction to the early ventures, which came in the first phase, therefore, was spontaneous largely guided by survival instinct. The government stand has been totally legalistic form the high pedestal reminiscent of colonial era. The lands have been acquired according to the archaic law taking no note of the changes above and the reality below. Those who had the titles were eligible for compensation. They could be considered for rehabilitation, that too as a grace and not as their right. Those who have no titles have to make way. They could at best expect some token doles. The resistance was dealt with no concern for the questions raised, let alone even an inkling of constitutional impropriety and human concern ever since Day One. No one cared even to learn form the experience of other enterprises such as RSP. The Third Phase? The second phase of land assignment and establishment of industries, as discussed above, came with a big bang. The third phase is knocking at their door menacingly. The people are, however, realizing now, taking a lesson from their early experience and also others like Rourkela Steel Plant through word of mouth, that they have no future. The instinctive survival spirit is now in full bloom in the area amongst the affected and even others. It is an unalienable natural right of every human being. The people, in exercise of this right, are not prepared to leave their land, law or no law.

The great human tragedy of January 2, 2006 (1/2) is a result of the state remaining totally unconcerned about the people’s side, their fears and aspirations. What is worse the State has refused to learn from the experience in Rourkela, Kashipur and such like. Rourkela is the most telling example which shatters the veracity of states promises and exposes their claim of an acceptable deal for the people, We will briefly review the same before discussing the current situation around Kalinga Nagar.

Part III

Leaves from Rourkela

Rourkela Steel Plant was one of the three steel plants established in early 50s marking the ushering in of a new era of industrial development imbued with the ideal of development with equity. The choice for its location fell on a backward forest region of erstwhile princely State Nagara. It was on the main Mumbai-Howrah? Railway corridor. Some of the important points of the story relevant for the present discussion, as told by some descendents of the affected after the 10th January blockade, are as in the following: 1. Land Record: (i) Settlement: The last settlement in the princely state, known as Mukherjee Settlement, relates to the year 1936. (ii) Pattedar: The land had been recorded in the name of the eldest in the large joint families in accordance with the tribal traditions, such as Birsa and others. (iii) Occupants: Occupants of land after the settlement remained unrecorded. (iv) Occupants of Forest Lands: No records were prepared in respect of those people who were in possession of forestlands.

2. Promise for a New Deal: The people were generally given to understand that- (i) they will be given land for land in a suitable location fully developed; (ii) one member in each family will get employment (iii) alternative habitations will be developed for them with all facilities

3.Land Acquisition:

The notification for land acquisition was issued in 1957 in accordance with the provisions of the law. The legal process had to be in accordance with what was on paper, which was totally at variance with the ground reality in terms of real occupants of land, the size of holding, quality of land etc. The compensation was fixed between Rs 200 to Rs 700 depending on the quality of land in record.

The discord began from Day One as the people realized that they have been virtually cheated. Many of them decided not to take compensation. But that could not prevent the process of take over of land. It was executed, at worst, on the basis of forged receipts in the name of claimants in a situation where hardly any one could read and write. At best, the money was deposited in their names.

The story of Tarkera, a village where four families doggedly refused to have any deal about land acquisition till the end. Their dwellings, which defiantly stood as last remnants were bulldozed, that reminds one of fate of farmers in ‘Grapes of Wrath’ . 5. Resettlement and Rehabilitation (a) Land for Land?

The story about resettlement and rehabilitation is punctuated with countless demonstrations, dharnas, negotiations, promises, agreements and such like at virtually all levels in the course of half a century that has rolled by. The promise for land for land has not been honoured in its true spirit. The dispute started with the entitlement of affected persons. The administration went by the record. It contained the names of only the elders, or even the deceased as per tribal tradition. The ground reality was totally with numerous families within the same household. The lucky ones were offered lands that were more often than not were not fit for cultivation. Moreover they were offered in distant places without even caring to verify whether the same was free from encumbrances, under occupation of some persons or may be common lands of the host communities. In some cases, the settlers were thrashed and driven back. In many cases pattas have not been given even for the house sites on which buildings have been constructed.

(b) Employment

So far as employment for oustee families is concerned the record is still worse. In a large household with the elder alone appearing in the record, one job does not rally mean any thing. A large number of cleaver people have cornered through a variety of subterfuges substantial share even in the meager oustee quota. An agreement in 1993 was arrived at after protracted deliberations for 1098 jobs. 500 people have been provided jobs till date under this agreement, 100 persons are undergoing training. The people may have to wait until 2010 for the uncovered 498. The term ‘498/1098’ has become a mark of ridicule about how our management can afford to ‘move with the urgency of infinity’, when it comes to the case of those rendered destitutes for the sake of its glory.

6. The Unused Land

A major issue agitating the people is the extensive land spread over 13 villages that has not been used by the RSP. Some of it is under occupation of the displaced families. The rumors are agog about the lands being disposed of at astronomical market price compared to the mere cawaries they got for the same. The town and its surrounding area has also witnessed massive in-migration, the tribal people not accounting for even 10 per cent in the total. The irony is that unauthorized occupants from outside when evicted are resettled on the prime RSP land, the real oustees are forced to move to distant inhospitable terrains. 7. Total Transformation:

Rourkela Township has grown from a cluster of small tribal habitations. It retains only their ghost-names, whose memory itself is slowly fading out. The grand new vistas of new India are rising on their debris. All the new opportunities have gone to the articulate in the absence of any policy for planned development with focus on the people belonging to the ‘affected zone’. They have no place in the new economy, for which they have not been prepared, except perhaps in its substratum in ignoble condition. The rulers have kept themselves busy in their favorite pass time of number games like 498/1098.

Part IV

The Assaults on the People in K — As Told by the People

The present phase of assault by the capitalist-state combine in this part of Orissa is about two years old, which started with the arrival of some of the big players on the scene. A brief resume of the way situation has been perceived and handled in some cases, which the people remember is given below.

(i) Jindal: The story begins in November 2004. All the 66 families of Bansipur were given notice to vacate without even an iota being firmed up in the name of so-called rehabilitation. The logic of Jindal was simple. ‘We have purchased land from IDCO. Your land was acquired long back by the company, not us. You have received your compensation. You were, however, allowed to remain on land and use it, as a matter of grace. You have no claim so far as Jindal is concerned’. Accordingly Jindal could not care less about what was within the limits of the area that Jindal had purchased. And what followed was a veritable waging of war against the people, short of direct slaughter. In this case the people are said to have approached even the Honorable High Court in a PIL. The same is reported to have been rejected. The administration obviously stood by Jindal, the Lord of the Land.

After the purchase of land assigned by IDCO, Jindal appears to have started in the style of ‘Wild Western Frontier’ of American history. He began with blasting operation in his territory. For what ostensible purpose the blasting was done, one knows not! But the people are clear that it was done simply as a Grand Show of his Might to drive away the villagers. There was a scare. A flying stone directly killed one person Matari Badara, aged 21. His father Kara and one more also died in the melee that ensued after the scare. Many others were severely injured. But apparently no action was taken by the administration ostensibly because blasting was the right of the new Lord, the Industrialist-Ruler?, since all that Jindal surveyed was His Territory.

The village Bansipur was proud of its luxuriant forest with majestic trees like those of a virgin forest. It had been nurtured and protected by the people through contribution of one handful of grain by each household in the village. The entire green tract was bulldozed. No guardian of the law of any description whatsoever, including environmentalists, took note of that sacrilege. ‘The graveyards of our forefathers were also ravaged’, told the young Brij Mohan Hembrum with tears in his eyes. ‘Are the industrialists authorized to erase even the akharas of the youth, the scared places of our worship- Burubonga on Naxawadi hillock, Nagabonga of Chatanpani, Jatrabonga of Mora Munda and even the entire Hillock?’, are some of the questions relates to deep emotional aspects of the people’s life that are of no concern to any one in the establishment and even the new Lord. It is so presumably because the very village Bansipur may have been erased form official records after acquisition of land therein. And no one in his senses could bother less about the ghosts, living and non living. (ii) Maharashtra Seamless Steel: The company was allotted 500 acres of land near village Dubury. But it decided to take possession of land in Chandia village. The company decided to start with bhumi pujan on 9.5.2005. But the people were not informed. However, people gathered spontaneously with a call “No bhumi puja without fulfilling our demands”. Their demands included (a) Re-valuation of acquired land, (b) Land for land and also for a Bari to each displaced, and (c) One job in each family.

The crowd swelled as the sun rose high in the sky. The gathering had women in equal strength. Accordingly pujan could not be performed as scheduled. The people’s assembly, however, thinned out in the afternoon. The ADM on duty took advantage of this opportunity to break the resistance. He ordered the people to disperse. When they refused to move out, the ADM was enraged. He caught hold of a girl with her hair and even kicked her. This infuriated the people. They pounced on the ADM who fell on the ground. The Inspector In charge (IIC) protected the ADM physically by covering him bodily. Both of them received severe injuries. The police started a lathi-charge and dispersed the people. In this melee, the police jeep was also torched.

Fearing retaliation from the police, the men folk of the village fled into the forest leaving women, children and old behind. The police swooped the village at the dead of the night. They arrested 25 women, 14 children and one-person aged 70. Women included pregnant and lactating mothers. Children included infants and adolescent. Two small children were left back by their mothers in the confusion. The entire group of 40 was kept in jail for 22 days. Two children and two elderly people died because there was no one to look after them in the virtually deserted village. Special Rapporteur of National Human Rights Commission (NHRC) visited the area in July on the basis of the report in press. Nothing is known to the people about the follow-up action. No dialogue at any level has been attempted so far. It is understood that the Rapporteur went into the technicalities of dealing with the crowd. The deliberations about rehabilitation were on common sense grounds, which missed the critical aspects of tribal situation. He had nothing to say about the basic issues relatable to industrialization in the tribal areas or the raw deal to the people, which are intrinsic to human rights. He made repeated reference in his report about the way ‘culprits’ behaved. In the mean time the Chairman, National Commission for Scheduled Tribes also visited the area. He made many promises, but there has been no tangible impact.

(iii) Tata Company:

The trouble in this case had started in January 2005. It largely concerned the legal claims on what are termed as ‘anabadi’ government land. ‘Unless regular pattas are issued we will not allow any work to proceed,’ was the people’s assertion. The ADM (Steel) pleaded that he had no staff. The people retorted that you have staff for steel companies, not for the people. A date was fixed (17.1.2005) for dialogue in one of the villages. People gathered, but the ADM failed to appear. In the mean time Shri Kuar Singh, Chairman National Commission for Scheduled Tribes came to visit the area in Seamless case referred to above. A memorandum was submitted by the people, but the results are not known. The people also tried to approach the Special Rapporteur of NHRC about whose visit they had come to know from papers, but to no avail. A number of events came in quick succession before ‘2/1’ massacre. They can be summarized as follows: (i) October 7, 2005: The real break came on this date when Tata attempted to start building of a boundary wall. The initial request of the farmers was simple- ‘allow us to harvest our paddy crops’. Instead of a dialogue by the company and the administration, the people were faced with a brutal lathi charge. About 15 to 20 people were injured. (ii) October 7, 2005: A roadblock was organized on this day that went off peacefully (iii) October 25, 2005: A left- supported convention was organized. Ravindra Jarika, one of their leaders was arrested. The people tried to lodge an FIR in Kharavela Nagar Bhubaneshwar, which was not entertained. (iv) October 26, 2005: Some more activists were arrested. The police station was gheraoed for six hours. The Collector and SP were present but there but there was no dialogue.

November 21, 2005:The Dividing Line The construction of the boundary wall is reported to have been finally stopped on this day. Both Collector and SP were also present. It is said that the administration there after was preparing for the final assault. (v) November 30, 2005: A big convention was organized on Indira Gandhi Ground, which passed of peacefully. (vi) December 26, 2005: This day is celebrated as ‘Prathishta Divas’ by the BJD. During the celebration, it was openly stated by party activists that who so ever would dare to come in the way of development of Orissa, shall be crushed mercilessly. (vii) December 28, 2005: The people of village Siaria had been given earlier a notice to clear out by this date. Heavy police deployment was brought in. But no force was used. There were, however, rumors agog that a grand rehearsal had been enacted on this day for the clearing operation that will begin on or after the 1st of January definitely.

2nd January 2006: The Day of Reckoning Bulldozers arrived at Champakoili village early in the morning along with heavy police deployment. The information spread like wild fire. The reaction of the people was spontaneous as they were expecting something to happen for quite some time. It is said that the police had spread out some explosive devices tied to ropes in the big field between Kaling Nagar and Champakoili. The land is undulating with a nala, mostly dry, in between. As the people started moving towards the bulldozers defying the presence of police in between, there were countless explosions with deafening sound. The details about how the further events took place are not clear.

Tear gas shells, rubber bullets and then actual bullets followed in quick succession. The firing was indiscriminate. A boy standing at a long distance outside his hut was injured and died. One bullet entered the thatch of a house and peeled the beam. Most of the injured had been hit at the back, the bullet piercing through their stomach. Both the hands of six bodies taken by the police had been chopped off, for reason unknown. Other brutalities are also reported. One policeman was killed and four injured. The details about the related events are not known. The dead bodies of 12 Shahids were cremated in the village Ambagadia. According to the local tradition those who die in harness are not buried. The village has been renamed as Birbhumi. All affected villages are facing the crisis unitedly as one person under the banner of Bisthapan Birodhi Jan Manch (BBJM). An all India convention is proposed to be held at Birbhumi on January 30, 2006.

Part V

The Response Nationwide

The nationwide response has been spontaneous and fabulous which need not be described in detail here. A number of political leaders, other dignitaries, representatives of civil liberty and a variety of other organisations, people’s movements and such like have visited the area. They have extended their support to the people in the hour of the crisis. The focus in most cases, however, has been on the victims of the tragedy, killed and maimed and providing relief to their families. The barbaric murders have been condemned in unequivocal terms. Even Sonia Gandhi described it as a “great tragedy” and said “Justice would be done to the family members of the victims.” Needless to say cash compensation has been the easiest gesture of the rulers. It starting with Rs one lakh by the GOO, raised to 5 lakhs for the dead and 50,000 for injured by the Governor with an additional 5 lakhs by GOI and 50,000 by the Congress. The offers of the relief by the State have been turned down so far by BBJM. The relief given by the Congress (Rs 1 lakh for the dead and 25000 for the injured) and Lok Sewak Mandal (Rs 25000 for each dead), however, has been accepted.

The people at large have shown their solidarity in the common cause through bands, dharnas and other known forms of protest and support. The tribal leaders especially from Jharkhand have promised to stand by the people in this crisis. There are also some stray suggestions for negotiated settlement ‘regarding the amount of compensation and type of rehabilitation to the satisfaction of the oustees.’

Wither Guarded Caution?

The State Government has been extremely cautious in dealing with the situation. The Collector and the Superintendent of Police have been replaced. A judicial inquiry has been ordered. The Chief Minister has preferred not to visit the area. Even Smt Sonia Gandhi and the Union Home Minister visited the villages without state security. The Chief Minister has come round to the view that there is a need for all party consensus about future course of development especially in relation to industries in the tribal areas. This incident has made the old wounds green of oustees of RSP. The protest on January 10 in Rourkela was in pursuance of a call given in December. It became massive because of the reaction against ‘1/2’ and the administration was obliged to be tolerant. The CM has been forced to seek center’s intervention ‘in solving the long standing issues concerning tribal land’ and other disputes with the RSP a Public Sector Enterprise of the Union Government that have been agitating the people from the very beginning in 1954.

The Chief Minister of Jharkhand who has started realizing the intensity of resistance which may get engendered as the final reckoning comes, has also given a call for all party consensus on industries in the tribal areas. The State Government is reported to be prepared to offer shares in the enterprises to the concerned farmers.

It is also important to note that the Maoists, whose area of influence in the tribal tract is now extensive, have declared that they are against large industries and they will not allow them to be established in the concerned States.

The Pledge The BBJM have, however, taken a clear stand that the people are not prepared to part with their land, come what may. They have come to realize from their own experience and also in other parts of Orissa and elsewhere that it is now a matter of life and death for them. Hence the issue of land is not negotiable. The resolve was formalised on 21st January 2006 in Shapath Samaroh at Birbhumi attended by delegates from many States.

Part VI

A General Review

It is clear from the narration in the preceding sections that there is virtually no policy regarding establishment of industries in the tribal areas. The situation in the field accordingly is totally confused. It is important to note that not a single person while responding to ‘1/2’ incident has even alluded to the special situation prevailing in the tribal areas. There is no reference about the relevance of Constitutional provisions and even the policies that are supposed to in vogue. There is no realisation of the fact that they were specifically designed to deal with the unique situation prevailing in these extensive resource rich tracts inhabited by the simple tribal people. The worst blasphemous transgression has been in respect of those groups that are still in the primitive stage even according to the Government’s own reckoning such as Juangs, Bhuian, Koitur shifting cultivator .

The most regrettable part is that even the local administration, who should be well conversant with the local situation appear to have been handling the situation in a routine law and order style with no concern for the violation of their rights and even the Constitution. Their primary concern has been the interest of the State and the parties sponsored by the State in the name of so called development. As I had noted earlier in another context ‘ostensibly the state must have deemed these violations as the duty of its officers, not of insignificant consequences to the welfare of the State.’ So here we are in a position succinctly described by Prof Upendra Baxi that “an administrative culture which concerns itself primarily with the ‘welfare of the state’ (not the people) must indeed make violation of subject-people’s right an official obligation, if not a virtue. And for the subject law assumes, more or less the character of destiny.”

The following are some of the major conclusions abut the current situation in Orissa especially the tribal tracts caught in the whirl of industrialisation totally unprepared:.

(i) Lack of Dialogue: There is no evidence whatsoever of any informed dialogue with the people after a major decision was taken to transform a backward tribal tract into a major industrial area of the state.

(ii) People’s Plea Ignored:

(a) The action of administration has been consistently unresponsive. For example, no corrective measures were taken for dealing with anomalies in land records which came to the fore in the very beginning even before the land acquisition was completed. (b) The fact that the people were paid only Rs.37000/- per acre as compensation while the very same land was given to companies at much higher price of Rs.1.25 lakhs and now at 3.5 lakhs has caused great resentment, yet there is no initiation of the state on this ground; (c) That rehabilitation is totally inadequate and inhuman has evoked no response. It is stated that each household that had agreed to move out in other cases was given 10 decimals of land with a clear red-letter print line that the same was not authorized, a tarpaulin cove and Rs.5000/-. This amount got eroded in many cases to a mere two thousand before reaching its final destination. The condition of tribal settles in rehabilitation colonies stands out in contrast as dismal and inhuman compared to other better off groups.

(iii) State’s Distorted Perception:

The state government is ostensibly claiming that it has been proceeding in accordance with the so-called laws of the land. Hence the people’s resistance is deemed to be violation of the law and handled accordingly. All efforts by all concerned are therefore centered on breaking the resistance of the people rather than going to the root of the cause. All propositions, which have been put forward and even accepted as a reasonable solution, lay buried in the official files. Even the pro-people laws and their spirit is ignored the most blatant violation has been in respect of PESA. (iv) The Rehabilitation Packages The so called rehabilitation packages are totally inadequate because— (a) They ignore or do not dare to face the problem in its totality; (b) Provisions are made that are known to be incapable of being fulfilled just befool the people as in the case of employment; (c) Implementation is in the frame of ‘alms giving’ and ‘take or leave it’ on the premise that ‘beggars can be no choosers’. Accordingly even when a ghastly incident like ‘1/2’ takes place, attention is focused on ex-gratia grants to victim’s and peripherals of rehabilitation package; and (iv) The real causes of confrontation between the state and the people, which arises from the basic contradictions and ignoring the path of development with equity, are ignored and they are sought to be traced to miscreants, political rivalry and such likes as a diversionary tactics.

(v) Whither Constitutional Bodies?

It is a pity that even though the focus in this case is on tribal people, there has been no initiative on behalf of the Union Government especially the Ministry of Tribal Affairs. It may be noted here that the Union Government not only has a special responsibility under the Constitution but also special overriding powers under Article 339 and also Para 3 of the Fifth Schedule to give suitable directions to the State.

The legalist approach prevails even in the functioning of the Constitutional bodies including those concerned with protection of tribals and human rights. Both N.H.R.C and National Commission of Scheduled Tribes have investigated some of the unfortunate events in the industrial zone of Kaling Nagar a few months back. Even the Chairman of the National Commission for Scheduled Tribes who had visited the area two months back virtually made no impact on the local situation. On the contrary it deteriorated culminating in the ghastly incidents of 2/1.

His visit after ‘2/1’ incident was virtually a repeat performance. He was of the opinion that if the government offered a satisfactory rehabilitation package, the confrontation could have been avoided. This is a simplistic approach, which totally ignores the Constitutional and the tribal policy frame outlined in the beginning. Such a formal involvement of Constitutional bodies is used by the governments and even other vested interests to give an aura of legitimacy to their actions that are blatant violate not only the spirit but even the letter of the laws concerning tribal interest. It is distressing that in a situation laden with deep human concerns, faults in handling of the so-called law and order situation are highlighted mechanically. The result is that the basic premises of state action that are faulty and comprise gross violation of the natural rights of the tribal people and even their Constitutional rights, both explicit and potential, remain unquestioned.

The narration of Rourkela episode spread over half a century and that of Kalingnagar in the last decade have striking similarities on all points beginning with the story of inadequate record, inattention to implications of local custom, focus only of directly affected that too formally recorded, the fiction of employment cleverly qualified by terms like ‘as far as possible’ and escape clauses and total unconcern about the dynamics of socioeconomic avalanche in the wake of massive influx which the simple tribal people have to face totally unprepared that results in displacement, disorganization, destitution and demise. In fact the handling of the tribal situation both by the Center and the State is contrary to the intent and content of the Constitutional provisions and relevant policy guidelines. They envisage particularistic approach with case by case and area by area dispensation. The tribal situation is so varied and variegated that it does not admit generalised solutions. All policy decision have to be guided by the clear and unequivocal stipulation that the tribal interest shall not be compromised on any count whatsoever.

Part VII

Immediate Tasks and Future Perspective

The Derepening Crisis in Orissa

With Rourkela at one end and Kalinga Nagar at the other in the time span, sharing the same experience with no change, the situation in other parts of Orissa caught in the whirl of change without due preparation can be easily extrapolated. Kashipur by itself has become a legend with the local administration refusing to permit even women researchers from the prestigious Tata Institute of Social Sciences to interview women in that area that has been turned into a concentration camp. Orissa has also earned notoriety in ignoring the community rights of the shifting cultivators in the southern half. The new Baron Esquires from Imperial Zones are boasting of their plantation estates not in terms of humble hectares but in the Mega Measure of Miles Square. Displaced from Hirakud and Rangali have their own woes to tell. And mining mafia tops them all. They have entered the Roll of Honour of those who are serving the State and the nation for driving away the dispensable ‘overburden’ of primitive tribes like Juangs and Bhuias in their sacred Pirhs in search of the black diamond in the style of the gold-rush in the fabled Frontier of the West. In sum, the situation in Orissa is worsening with every passing day irretrievably as the number of exotic players with unverified, if not pernicious credentials, is multiplying. With the rising consciousness amongst the people at the other end, who are no longer prepared to accept the State as their mai-bap, and whose sense of honour has been badly mauled by the countless acts of omission and commission of the rulers, the State is virtually sitting on a volcano.

The most regrettable and striking feature of the tribal scene in Orissa is that a substantial part of tribal population in the tribal pocket in Jajpur district has been denied the Constitutional protection of the Fifth Schedule notwithstanding the commitment referred toearlier. If the situation in Rourkela with all favourable formal propositions like Scheduled Area, Public Sector Enterprise and above all the enthusiastic commitment to socialistic goals after half a century is dismal and turning to be explosive what fate awaits the people of new industrial zones in the context of all adverse factors, viz., denial of Constitutional protection, private enterprises committed to the theology of profit and the state’s commitment to free market in the new ethos of liberalisation and globalisation , cannot be even imagined. Destitution and demise will be their fate. The State will be squarely responsible for that calculated crime against the tribal people.

Nay, National Crisis

While Orissa has already reached a critical stage and a breaking point, the other resource rich tribal tracts, especially Jharkhand and Chhattisgarh, are moving fast in the same direction. Even other areas in the neighbourhood and at long distance like Uttarakhand and the North East may not remain far behind. It appears that as the ‘fear of unknown’ is wearing out and the vicissitudes of difficult terrain are getting mellowed, the lure of fabulous wealth amidst a people who are still innocent, dependable and amenable to unbreakable bonds of word a new generation of adventurers all whose values get zeroed in ‘instant profit’ is entering these areas with fabulous power of money and the pliant state machinery of all descriptions at their command. The only ray of hope is the reaction from the people’s end after the initial misadventures to the effect that enough is enough Orissa experience may have valuable lessons for the entire tribal tract of the country and even else where.

Immediate Measures Some of the immediate measures that must be taken by the appropriate authorities are as in the following.

From Vague Generalisations to Concrete Frame

(i)The Real Dissonance The developmental scene especially in the tribal are areas is totally confused. The principles of free-market economy have been forced on the nation by the ruling elite ignoring the Constitutional mandate and even the people’s will under the ploy of liberalisation and globalistion. This has been accomplished in the general areas without much resistance because the Constitutional mandate for a socialistic frame is largely in the form of directive principles that are not enforceable. The people at large on the their part have been used to the mai-bap regime under the colonial laws which are accepted as ‘natural.’ Moreover the community at the village level is highly fragmented and iniqitous. A significant section therein is amenable to co-option. The result is that the people have not been able to organise themselves so far to meet the challenge of global imperialist capitalist combine.

The situation in the tribal areas is totally different. The system of self-governance continued during the British regime because the tribal people continuously fought against them and did not allow to British to consolidate their hold. These areas were generally treated as ‘excluded’ or partially excluded areas. Even though the tribal people have been subjected to the colonial laws after independence, they never reconciled to that imposition. The traditional system of self governance has remained strong and effective notwithstanding serious inroads. The initial mistake that had given rise to the confrontation between the tribal people and the State has been acknowledged, though rather late in the day. Some amends have been made in the form of PESA. It has transformed the paradigm of governance at the village level with community in the form of Gram Sabha coming to the center of the stage in matters of governance at that level. The Forest Bill acknowledges the historical injustice. Nevertheless it is rather sad that the ruling elite has not reconciled with this qualitative change and there is avoidable confusion.

The Constitution, especially the Fifth Schedule, envisages a special deal for the tribal people as discussed in detail earlier. Besides the issue of self governance, the command over resources unequivocally vests in the community. Therefore, free-market regime cannot be extended to these areas as a matter of course. It is a matter of deep regret that the Fifth and the Sixth Schedule Areas, which hitherto had been excluded from WTO regime, have been brought under the same. Nevertheless the International Conventions and the verdict of the courts are unequivocally in favour of the tribal people. Moreover the people themselves are becoming conscious about the difference in the two paradigms. They are asserting that the command over resources is non- negotiable notwithstanding the understanding that the rulers may enter with entreprenuers.

The Basic Features of the New Policy

In the context of special situation of the tribal people certain basic principles will have to be clearly spelt out for development in the tribal areas especially about industry and mining that are accepted as the leading sector in the national economy. As we have noted earlier we have the benefit of earlier policies and high level deliberations such as Bhuria Committee. It may be noted that Bhuria Committee was a high level body comprising Secretaries of concerned departments, Members of Parliament and well known experts in the field. Therefore their views can be reasonably accepted to reflect both the official view and the people’s side. The same can be taken to represent a balanced view that can be the starting point for a dialogue for future action.

The main features of the policy can be summarised as in the following: (i) Command over the habitat is nonnegotiable; (ii) Subject to the condition in (i) above, any scheme of utilising the resources must be subject to prior consent of the community on the basis of informed dialogue. (iii) The concept of zone of influence of the industrial and mining complexes should accepted for comprehensive planning. All the people in the zone must be assured of a place of honour in the new economy on terms of equality. (iv) The principle of community ownership of industry as envisaged by Bhuria Committee should be accepted by all concerned.

Crucial is Ownership

The issue of ownership is crucial. The community as owner of the enterprise will be in a position to ensure that (a) the resources are not over exploited as a part of global loot by the imperialists; (b) the activities are environment friendly and sustainable; (c) the use of technology is not governed by profit motive but aimed at providing employment in the region for meaningful participation by all concerned; and (d) the bulk of the profit, to the extent of three-fourths, is retained in the area so the industrial activity becomes the foundation for overall development of the area with focus on quality of life in general in a realm of equity.

Some Special Measures

Having presented the broad outline, it will be necessary to look at the tribal situation in Orissa in some detail and outline an a possible action plan. It is distressing to note that the Kalinga Nagar Industrial Zone is not a scheduled area. There are extensive tribal majority areas in Orissa that are not Scheduled which account for more than one-third tribals population of the State. These people are doubly sinned because they are more vulnerable compared to those living in predominant tribal areas. Yet they are denied even the notional Constitutional protection.

Some of the special measures can be summarised as in the following: 1. Deemed Scheduled Areas: All tribal-majority pockets and even villages should be added to the Scheduled Areas of the State as per the commitment of the Union Government. Until such time as the formalities in this regard all completed, the Governor must declare, through a notification under Para 5 of the Fifth Schedule read with sub-clause (4) of Article 15 of the Constitution, all these areas as ‘Deemed Scheduled Areas’ (DSA). This notification should also be given retrospective effect (DSARE) from the date of last notification in 1977 under the provisions of the same Para. If extensive forests can be administered as ‘Deemed Reserved Forests’ for decades steam-rolling the rights of the tribal people living in those areas for generations, there is no reason why the tribal areas cannot be accorded ‘DSARE’ status for protecting the tribal people and meeting the unprecedented challenge to their very identity at the most crucial phase in their history.

2. Commitment to Honour the Spirit of the Constitution: The State of uncertainty on the vital issue about command over resources must end. As stated earlier ‘community ownership over industries’ alone can provide the firm foundation of an equitous deal for the tribal people in consonance with the spirit of the Constitution. This proposition included the right of the people to say ‘NO’ to any proposal for taking up mining operations or establishing an industry in their habitat. The onus of convincing the people that the proposal will be in the interest of all concerned which shall ensure a place of honour to them in the new economy will be on the State which stands divested of its coercive power by virtue of the PESA read with Fifth Schedule of the Constitution.

3. Revisit Land Acquisition: A logical corollary of the above propositions will be to revisit the entire process of land acquisition and a fresh beginning should the people agree in keeping with the spirit of the provisions of Section 4(i) of PESA. In fact, suitable regulations may be made honouring the spirit of Section 4(d), which places Gram Sabha at the centre of the stage. All legal provisions which violate the above mentioned premise including Section 3(6)(b) of Orissa Zila Parishad Act, 1991 must be amended.

4. Unearned Benefit of Escalating Price of Land: The laws of land in Orissa envisage that the benefit of ‘unearned escalation’ in the price of land due to its diversion from agriculture to industrial activity should accrue to the farmer. Suitable measures may be taken to operationalise this principle.

5. Social Cost of Mining Industry: It is clear that the above propositions will lead to paradigm transformation of development in the resource-rich Scheduled Areas. In particular it will be necessary to amend the National Mineral Policy as also Mining Rules to bring them in consonance with the new spirit. In particular, it must be specifically provided that the social cost of mining activity shall be fully neutralized. A suitable regulation or notification by the Governor under Para 4 of V Schedule maybe made.

6. Dialogue with the People: A dialogue with the people in Kaling Nagar Industrial Zone as also other mining and industrial areas should be started forthwith in terms of the spirit of new dispensation implicit in 1-5 above. In particular, the Government must declare that no takeover of lands, including those already acquired, shall be proceeded with unless the people get convince about a place of honour on terms of equality in the new economy as envisaged in the 1974 guidelines.

7. Revisit Land Records: One of the major problems is the shaky basis of land records. This has effectively denied the tribal people the legitimate claims in terms of existing laws. The cleaver people have also used the opportunity to fabricate their claims. A high powered committee may be constituted forthwith which may proceed to bring on record, in consultation with the concerned Palli Sabhas, the names of those in occupation of land acquired or handed over to the industries otherwise and reject contrived claims.

8. Build up Confidence Relationship through Deeds of Undoing Injustice: The dispensation implicit in the above should inform all enterprises in the private, public and state sector already established in the Scheduled Areas including DSARE. The concerned industries must be obliged to accept the responsibility. An ad hoc committee may be constituted for the entire zone of influence of every industrial and mining complex, maybe for a group of such enterprises located in the same vicinity. The Committee may comprise representative of the State, the enterprise(s) and the people. The Committee should be responsible for preparing a plan of action and also its implementation in pursuance of the basic premises of the above discourse.

About the Author

Dr. Brahma Dev Sharam (b.1931), a student of Mathematics is a former civil servant. He held hight administrative positions in the State (M.P.) and the Centre from Collector / D.C. to Secretary to Government. He resigned from the I.A.S. because of differences with Government on basic policy issues. He has joined the people in their struggle after holding the positions of Vice Chancellor of N.E.H.U., Shillong and Commissioner for Scheduled Castes and Scheduled Tribes (1986-92) under the Constitution. He has founded Nate-na-raj Andolan, (Village Self-Rule? Movement) with extensive network in tribal areas. The movement is dedicated to the establishment of a non-centralised polity, participative democracy with the face-to-face community as the basic unit of self-governance and only minimal specific powers for the representative Institutions at higher levels induding the Pa