Ill effects of mining, impact on tribal rights and environment

RESEARCH PAPER

ON

Mining Law

SUBMITTED BY: SUBMITTED TO:

HARSH KUMAR Ms. NEHA TRIPATHI

ROLL NO – 576 TEACHING ASSISTANT, LAW

SEMESTER- VIII “B” NUSRL, RANCHI

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

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ABSTRACT

India is one of the major producers of minerals. After independence govt. work a lot on the
mining sector. Mining industry is one of the important revenue generators for the govt. of India.
Introduction of mining industry has boosted the Indian Economy. The development of the
mining industry caused huge displacement of tribal population and destruction of the
environment. The availability of the natural resources in the tribal areas has severely affected
them with coming of various mining industries. This paper examines the impact of mining on the
environment and the tribal people.

Keywords: Tribal rights, environment, displacement of tribal and tribal rights.

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TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS......................................................................................................................4
LIST OF AUTHORITIES...........................................................................................................................5
INTRODUCTION.......................................................................................................................................6
 Statement of the problem.................................................................................................................6
 Hypothesis.......................................................................................................................................6
 Research Question...........................................................................................................................6
 Research Objectives.........................................................................................................................6
 Review of literature.........................................................................................................................6
CHAPTERS................................................................................................................................................7
I. BRIEF OVERVIEW........................................................................................................................7
II. HISTORY OF MINING INDUSTRY IN INDIA............................................................................7
III. MINING AND ENVIRONMENT...............................................................................................8
IV. TRIBAL RIGHTS AND MINING............................................................................................12
CONCLUSION.........................................................................................................................................15
BIBLIOGRAPHY.....................................................................................................................................16

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LIST OF ABBREVIATIONS

 A.I.R- All India Reporter

 ANU- Australian National University
 EPW- Economic and Political Weekly
 IJSSHR - International Journal of Social Science and Humanities Research
 ISS- Indian Sociological Society
 JILI- Journal of the Indian Law Institute
 PRS- Pune Research Scholar
 Raj- Rajasthan
 SC- Supreme Court
 SCR- Supreme Court Reports

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LIST OF AUTHORITIES

CASES

 L.K. Koolwal v. State, A.I.R., (Raj:1988)

 Rural Litigation and Entitlement Kendra v. State, A.I.R (SC:1985).
 Tarun Bharat Sangh v. UOI, A.I.R., 514 (S.C:1992).
 Samantha v. State of Andhra Pradesh, 305, (SCR:1997)

ARTICLES

 C.M. Jariwala, MINING AND ENVIRONMENT: INDIAN LAW SCENARIO, JILI 431,
431 (1995)
 Dr. M. Romesh Singh, Mining and Its Impact on Tribals in India: Socio -Economic and
Environmental Risks, IJSSHR 429, 429 (2015)
 Muzzafar Assadi, Kudremukh: Of Mining and Environment, EPW 4898-901,4898 (2002)
 Patrik Oskarrson, Landlock(Paralysing Dispute over minerals in adivasi land in India),
ANU press 29,30 (2018)
 Vijay M. Gawas, Mining and its Impact on Tribal’s Peoples in Goa, PRS 1, 5 (Dec.
2018-Jan 2019)
.
STATUTES

 Mines and Minerals (Development and Regulation) Act, 1957.

 Constitution of India, 1950
 Scheduled Tribes and other Forest Dwellers (Recognition of Forest Rights) Act 2006
 Panchayat Extension to Schedule Areas Act, 1996

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INTRODUCTION

 Statement of the problem

Mining as an industry is present since old ages and it is mentioned in the Arthshastra. It is
an important factor in the development of any country. But, the mining activities are
causing huge displacement of people and severely affecting the environment which is
largely left unchecked.

 Hypothesis
Tribal people and the environment are getting affected from mining operations.

 Research Question
The paper examines the effects of mining on the environment and the tribal people.

 Research Objectives
1. To look into the disposition of the tribals from their lands?
2. To identify the impact of mining on the natural resources?

 Review of literature
1. C.M. Jariwala, 1995 – The mining activities poses a great treat to the health of the
people and the environment. The want for the extraction of more and more
minerals led to the degeneration in the health of the people and the environment.
The mining activities to a great extent have damaged the flora and fauna. There is
a lack of new approach, technological advancements. The compensatory
mechanism and the legislative enactments are also not up to the mark.

2. Dr. M. Romesh Singh, 2015 – After the independence there are many
developmental projects and policies have caused misery to the environment and
the people. As a part of the nation building process many projects were
established including industries, dams, projects and mines. The construction of
the projects has brought a change in the use of the resources such as land and
water. The availability of the resources in the areas where tribal people reside
pose a threat on their habitat as their lands are being taken away from them.

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3. Muzzafar Assadi, 2002 – In Kudremukh mining activities was causing huge
problems. It was a major issue for the environmentalists since the Kudremukh
iron ore company was causing a lot of problems for the environment both to the
land and the river. However, the mine was closed bringing down the various
uncertainties. The case also puts forward that the issues must be formulated so as
to take the environment on one side and capitalism on another.

4. Patrik Oskarrson, 2018 – Land has a very important place in the lives of the
Adivasis. On paper there are laws which can protect the rights of the Adivasis and
shield them against the dispossession of their lands. But, the laws are followed
half- heartedly. The laws relating to the lands of the tribal people differ according
to the princely states which are still being followed in the present times. Govt.
have to work toward making the laws stringent.

5. Vijay M. Gawas, 2109 – For a long time there is a human rights violation against
the tribals. Mining activities have a huge impact on the tribal people and their
environment. Mining policies in Goa have overlooked the rights of the tribal
people. Many illegal mining operations are being conducted in the state which
have a direct impact on the tribal rights and the environment i.e. their forests,
livelihood and the habitat.

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CHAPTERS
I. BRIEF OVERVIEW1
After the independence the development of our country began in all the spheres
including mining industry. Through Planning Commission projects were sanctioned
which on one hand work on the development of the sector and on the other hand, in
search for the need of the land people are displaced from their surroundings mostly
tribals. They are resettled in other areas without their will for the functioning of the
industry. But, the forced resettlement has its own consequences. It destroys the
culture of a tribal group and severely impacts the environment, it affects the economy
of the area and brings impoverish. Mining Induced Displacement and resettlement
possess a huge risk to both the environment and the tribal people.

II. HISTORY OF MINING INDUSTRY IN INDIA2

India has a long history of mining. In Modern India it started from 1774 when mining
in Ranigunj area was started by M/s Sumner and Heatly of East India Company Soon
after various mining companies got the licenses around 1800s and they started mining
and started sending the raw materials outside India. According to the 1981 census
there were only 91 operating mines but by 1942 there were 725 coal mines in the
country.
After the independence in order to fulfill the increasing demand of the energy and the
age old practices used in the mining which was degrading the environment the
government decided nationalize the coal mines. The government established the
National Coal Development Corporation (NCDC). In pursuance of the Industrial
Policy Resolution, the Govt. also enacted Mines and Minerals (Regulatory and
Development) Act, 1957. Mineral Concession rules and Mineral Conservation and
Development Rules were established to bolster the mining activities while keeping
check at the effects of the mining.
The development of the mining industry is very important for the development of the
country for it earned Rs. 59,509 crore according to Indian Bureau of Mines.

1
Dr. M. Romesh Singh, Mining and Its Impact on Tribals in India: Socio -Economic and Environmental Risks,
IJSSHR 429, 429 (2015)
2
“Id. AT 430”

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 In the year 1991 privatization and globalization was encouraged by the government.
More investment started coming in the mining sector and states like Orissa,
Chattisgarh, Jharkhand, Madhya Pradesh and Andhra Pradesh started doing good in
the field of mineral extraction and distracted less and less by external factors like
naxalism. But, the nature of the mining industry has turned to more on the economic
side and not focusing on the surroundings and the tribals and a serious threat to the
society. It had and still affecting the customary rights of the people over the resources
that tribal people possess, unemployment because people are disposed of their
surroundings.

III. MINING AND ENVIRONMENT3

The frontiers of the mining stress areas in India are expanding. 4 If we go to the north
mussoorie, Dehradun valley or in Singrauli coal mines spread in 220 sq. kms. in two
states in Madhya Pradesh and Uttar Pradesh. If we go to south, particularly in Goa
50,000 ha. Of forests land are destroyed due to the indiscriminate activities by the
miners. On one hand our govt. is earning huge amounts of revenue from the mining
sector but there is no check on the environmental impact on the surroundings where
mining activities are conducted.
Mining activities have contributed to a great extent in development of our country. It
has provided us with the raw materials to fulfill our basic needs. It has provided us
gold and other precious materials. But, the truth is different. There is actually a
suffering behind the development. It has caused many diseases to the people like
respiratory problems, abortion, infertility and many more.5
The habitat of man especially of the tribal people living in the areas is destroyed.
Thousands of people are displaced as result of mining activities.
The constitutional obligations for the environmental protection are Art. 48A which is
to protect and improve the environment and to safeguard the forests and wild life of
the country to which the Rajasthan government extended to the right to live in a clean

3
C.M. Jariwala, MINING AND ENVIRONMENT: INDIAN LAW SCENARIO, JILI 431, 431 (1995)
4
K.S. Validiya, Environment Impact of Mining, in Mining and Environment in India 29-51 (1988)
5
Supra note 3, at 432.

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 environment.6 The other being the Article 21 which is the fundamental duty emerging
from the judicial activism. Part IV of the Constitution also provides for the protection
of the Environment. Articles 39(c), 42, 43 and 47 which talks about the health,
sickness and working conditions of the people and to improve the public health.
The mining activities are governed by various legislative activities.

One of the discussions on the Environment can be on the judgment of the

Kudremukh Iron Ore Company7a profit making Public Sector Company has brought
about significant changes in the environment sector. The judgment came at a time of
the ongoing agitations Cauvery issue in the districts of Mandya and Mysore in the
State of Karnataka. It has major implications on the workers, people and the
environmentalists and had caused disposition of the tribal people from the land.
Kudremukh is spread out between Ckimagalur, Udupi, Dakshinna Kannada and
Shimoga Districts and is rich in iron ore and derives its name from ‘horse face’. The
iron ore mining in Kudremukh kick started from the interest shown by late Shah of
Iran. Iran decided to invest 630 million dollars in the eco-sensitive area for the
purposes of mining. Kudremukh Iron Ore Company (KIOL) was accused of violating
environmental norms, cultural displacement and disrupting the social life of the
particular area.
Govt. also ordered to form a national park by combining Kudremukh region and other
5 areas. The tribals were also evicted in the name of the formation of the national
park. The tribals are not allowed to collect forest produce, to roam in the forests and
are made victims of false charges and they will remain victims both in and outside the
state.
Ecological imbalance is also created as a result of the mining activities. Kudremuk
region is well known region for the Shola forests and the mining will not only change
the irrigation practices of the region but, will also change the cultural practices of the
region.
The company was accused of ‘ecocide’ i.e. causing huge imbalance to the
environment . It is violating laws of the land and environmental protection. The
6
L.K. Koolwal v. State, A.I.R., (Raj:1988)
7
Muzzafar Assadi, Kudremukh: Of Mining and Environment, EPW 4898-901,4898 (2002)

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 mining industry was causing serious problem to the irrigation capability of the Bhadra
River. Tribals are being rooted of from that area since historical times through 3
modes mercantile capitalism, industrial capitalism and finance capitalism. The
practice is going on since the colonial times.
The Supreme Court verdict goes against the KIOCL (Kudremukh Iron Ore Company
Limited) that puts an end to the mining but about the damages which are done to the
environment have not closed.

In the doon valley case8 a case which took 6 long years for its completion from 12
March 1985 to 30 April 1991. On 2 nd July 1983 the Kendra wrote to the Centre about
the illegal mining which was happening in the Doon-Mussorie region in about 105
mines which was causing serious damage to the environment. The court treated the
letter as a writ petition under Art. 32 of the Constitution of India. The court
immediately ordered the closure of all the mines that were operating in the Mussorie-
Doon region as they were causing great damage to the environment.
The court divided the mining industry who were causing less pollution into 2 parts the
one being outside the city limits and the other inside the city limits. The court allowed
only those who were outside the city limits.
Justice Bhagwati, Sen and Mishra had said in an interim order 9 regarding the balance
of the environment that: It is a price that has to be paid for protecting and
safeguarding the right of people to live in healthy environment.
The Court ordered the mine workers to be employed in eco task force and to see that
no mine remains in operation directed the authorities to keep a check on it but despite
the efforts the full force of the order could not be obtained. One more important part
to be noted in the judgment is that the court allowed the letter as a writ petition under
Art. 32 of the Constitution, but there was not any alleged violation of fundamental
right so the only inference which can be obtained is that right to live in a clean
environment comes under the Article 21 of the Constitution.

8
Rural Litigation and Entitlement Kendra v. State, A.I.R (SC:1985). There were in total 5 orders and 2 judgments.
9
Id at 656

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 During the different judgments and orders questions was raised regarding the court’s
power of judicial review and it was also mentioned that it the responsibility and the
duty of the government and the citizens of the country to decide whether mining
should be done according to the ecology or according to the industrial aspect.
During the judgments the court allowed some mines which were less polluting and at
same time constituted committees to oversee their workings.

The court in the Fourth order of the judgment directed that the mines will only
operate in 15 acres out of 100 acres of land and they would take all the preventive
measures necessary so that the ecological balance must not be hampered.
The judgment had also shown the light behavior of the government authorities on the
protection of the environment thought the officials are under the constitutional
obligation to protect the environment.

In the Fifth and the last order the court ordered the lessee to pay Rs. 5 per MT of the
freshly extracted materials which amounts to three lakh rupees.
The case gives us the picture of the Indian mining sector that it works only for filling
ones pockets and ruling out the damages that the environment faces.

In different judgments there is clash between the whether the development should be
favored or the ecological balance should be maintained. I.e. sustainable development
is a matter of debate.

In the case law of Tarun Bharat Sangh10 the bench of Justice Sen and
Venkatachaliah ordered that environment should be preserved even at the cost of the
environment.

IV. TRIBAL RIGHTS AND MINING

10
Tarun Bharat Sangh v. UOI, A.I.R., 514 (S.C:1992).

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 Mines are basically located in the areas where tribal population live or their
population is more concentrated.11 Natural resources are more likely to be found in
forests and around natural habitat. It may be mica, bauxite or other minerals. Mining
operations are being conducted without paying attention to the ecological imbalance
and the neglect shown to the rights of tribals by the dispossession of them of their
habitat which may only be their means of survival. It also affects their social and
cultural rights. Minimal compensation is given to the tribals. The tribals are forced to
leave their homes and work in another place with uncertain future. And it must also
be noted that the tribal lands are basically non-transferable so there is little or no
development in these areas.

If we look at the figures an estimate shows that around 19,781,109 people were
displaced from the sates namely: Andhra Pradesh, Assam, Gujarat, Goa, Jharkhand,
Kerala, Orissa and west Bengal between 1974 and 2004 for many of the activities like
building dams, industries and most notably mining. And majority of the population
was tribal who depend upon forests and natural resources for their survival.12
Compulsory acquisition of land from the masses has greatly affected their rights and
stole away their only habitat.

It started from the Land Acquisition act of the 1894 during the colonial times. The
Britishers wanted to industrialize Calcutta but they did not have enough resources.
So, they passed the act so that the people have to give some of the lands to the state.
Under the power of “eminent domain” and “public purpose” the state govt. acquires
the private land.13
Adivasi land usage14

If we look at the condition of rights of tribal over their lands then it is not so good.
Tribal lands are taken away from the tribal people and given to non-tribal population.

11
Supra note 1 at 431.
12
Supra note 1 at 431.
13
Supra note 1 at 431-32.
14
Patrik Oskarrson, Landlock(Paralysing Dispute over minerals in adivasi land in India), ANU press 29,30 (2018)

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 Govt. has tried to ameliorate the condition. The Scheduled Tribes and other Forest
Dwellers (Recognition of Forest Rights) Act 2006 otherwise known as Forest Rights
Act provide with the some sort of rights to the tribals living in the forests.But, the
thretas of disposition of the tribals is an ongoing process.

Before the Samantha judgment an organization called Shakti (power) was in litigation
with the mining companies operating in the hill areas of the Vishakhapatnam. Their
contention was that the since the companies were non tribal in nature the land cannot
be leased out to them so mining should be stopped. Shakti won in the litigation15

In the case law of Samantha Case law16

In the Samantha case law, Samantha lost the case in the High court in the year 1995
and Supreme Court was the only resort.
The court viewed that the it utmost important that the Schedule V & VI of the
Constitution must be followed as it seeks to not only stop the alienation acquisition of
tribal lands but also to also to ensure that the tribal people remain in the possession of
their lands. The mining industry is for the development of the country and this will
not include development at the exploitation of the tribal people. A balance must be
created between the rights of the tribal people and the development of the country.

Another important thing to be noted is that though the judgment improved the
displacement conditions of the people in the Andhra Pradesh but there is not an
equitable distribution of benefits. And there was the decision that the mining
operations should be conducted by public run companies on the assumption that the
companies will work for the benefit of the tribal people. And no particular measures
were also prescribed to ensure the rights of the tribal people.
Another point is that the judgment does not extend to the other areas such as
agricultutre, forestry and similar sectors. The Samantha judgment does not say about
the Doctrine of Eminent domain to be exercised by the govt. of Andhra Pradesh and

15
Supra note 14 at 46
16
Samantha v. State of Andhra Pradesh, 305, (SCR:1997)

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 the govt. went ahead with the project of the Polavaram dam which displaces around
200,000 people and most of them would be Adivasis.
So, we can deduce that the tribal rights of the people are still not fully protected in
spite of having laws. It is very difficult to implement the laws as there are violators of
the law everywhere.

Impact of Mining on tribal rights in goa is also severe the tribal people namely
Gwada, Kunabi and Velip were amongst the poorest of the communities that live in
the hilly areas of the state of Goa.17 The people are suffering from the dispossession
from their lands because of the mining. The indigenous people are neglected and
oppressed.

Rights of Tribal people under Constituion of India

Article 366(25) provides for the definition of the Scheduled tribes. Further the
Schedule V and VI provides for the administration and the governance of the Tribal
areas. Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. It operates
under the Schedule V of the Constitution of India and provides that state must not
make any laws which are inconsistent with the customary law of the tribals. For the
acquisition of lands in tribal areas for any kind of Projects or for rehabilitation or the
resettlement process, a prior approval must be taken from the Gram Sabha. So, PESA
act seeks to protect the tribals from the arbitrary decision of the govt. or the mining
corporations.
Art. 21 also provides for the fundamental rights of the people. It protects the life and
the personal liberty of the people. No person shall be deprived of the life and the
personal liberty except according to the procedure established by law. But, in our
country we are far from achieving the reality as there are many hurdles in the process
of realization.

17
Vijay M. Gawas, Mining and its Impact on Tribal’s Peoples in Goa, PRS 1, 5 (Dec. 2018-Jan 2019)

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CONCLUSION
Mining activity is very important for the development of any nation. In our country Mining is
going from the period of Arthshastra. It took different courses from the colonial period to the
independent India. It had provided and still provides a great revenue which is essential or the
development of a country but, at some costs i.e. damage to the environment and the right of
people predominantly of tribal people. Tribal people are displaced from their homeland because
of the setting up of mining industry. They are displaced away from their homeland and in some
cases the people so not have any source of livelihood to sustain themselves. Mining companies
cause a great damage to the environment. There is also lack of proper implementation of the laws
which gives the violators a chance. Mining is a very important industry and it cannot be stopped
for it provides with the development of a country. A right balance has to be maintained between
the development and the rights of people and the environment. But, in the present circumstances
this is not absolutely true.

BIBLIOGRAPHY

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 C.M. Jariwala, MINING AND ENVIRONMENT: INDIAN LAW SCENARIO, JILI 431,
431 (1995)
 Dr. M. Romesh Singh, Mining and Its Impact on Tribals in India: Socio -Economic and
Environmental Risks, IJSSHR 429, 429 (2015)
 K.S. Validiya, Environment Impact of Mining, in Mining and Environment in India 29-
51 (1988)
 L.K. Koolwal v. State, A.I.R., (Raj:1988)
 Muzzafar Assadi, Kudremukh: Of Mining and Environment, EPW 4898-901,4898 (2002)
 Patrik Oskarrson, Landlock(Paralysing Dispute over minerals in adivasi land in India),
ANU press 29,30 (2018)
 Ratnakar Bhengra, Coal Mining Displacement, EPW 647-49, 647 (1996).
 Rural Litigation and Entitlement Kendra v. State, A.I.R (SC:1985). There were in total 5
orders and 2 judgments.
 S. Laxman Rao, Priya Deshingkar and John Farrington,Tribal Land Alienation in Andhra
Pradesh: Processes, Impacts and Policy Concerns, EPW 5401-5407, 5401 (2006-2007)
 Samantha v. State of Andhra Pradesh, 305, (SCR:1997)
 Sthithapragyan Ray, People and Protected Areas: Protest Dynamics in a Conservation
Project in Odisha, ISS 59-76, 59 (2014)
 Tarun Bharat Sangh v. UOI, A.I.R., 514 (S.C:1992).
 Vidhya Das, Development or Destruction? New Mining Projects in Orissa, EPW 1281-
1282, 1281 (1995)
 Vijay M. Gawas, Mining and its Impact on Tribal’s Peoples in Goa, PRS 1, 5 (Dec.
2018-Jan 2019)

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