PUCL Bulletin,
June 2003
People's Judicial Enquiry Commission
Preliminary
report on Muthanga
17 March 2003
The tribal humanity of India belongs to the lowliest, the lost and the
last sector of our society. Their human rights, even in their forest dwellings,
are denied and defeated, notwithstanding the constitutional concern for
them. When they are harassed and harried, they find themselves helpless
and forlorn. When laws are made seemingly to sustain their claim to social
justice, they are rarely implemented and remotely given the look of reality.
When in militant despair adivasis ask for what is due to them, dubious
agreements are entered into and procrastination in implementation is a
common consequence. Kerala is no exception to the scenario of deception.
Several tantalizing stratagems and evasive legislations have put out tribal
hopes. And political parties of all hues and pretenses have victimized
these unfortunates by legal devices and sloganeering contrivances.
The last such episode was where the present Chief Minister entered into
a pact with Janu, the leader of the Adivasi folk living homeless and wandering
shelter less and duped from time to time with rosy promises. After the
last compact between the Chief Minister and the tribal leader, the illusion
did not materialize into factual allotment of lands. And so a group of
adivasis led by Janu, in apparent despair, marched into Muthanga and made
the near-barren jungle, their provisional homestead. This is the backdrop
of operation Muthanga where a violent confrontation between the police
and adivasis led to bleeding casualties.
Polemical politics sleeplessly waits for such occasions. Whatever their
real sympathy, the Front in Power and the Opposition Front went into action,
while the adivasis struggled for survival. There was demand for a judicial
enquiry into the violent class by the Left Democratic Front who, when
they were in power, had left the adivasis in the cold, offering little
and giving less. The Government refused a judicial enquiry-why, it is
hard to justify and the controversy rages while the adivasis were in police
lock ups and prisons.
There was need for any enquiry to know the truth about the unhappy happening
where the victims were voiceless. Truth is often the casualty when political
parties enter the fray. It was resolved in these circumstances by the
FDCA and a number of other organizations that a People's Judicial Commission,
consisting of two retired judges be commissioned impartially to examine
the causes of Adivasi distress, the origin of the pathological problem
and the eventual explosion in Muthanga.
Thus came two judges of goodwill, willing to sacrifice their time and
offer to enquire into the Muthanga affair before and after, so that the
right of the people to know what the Adivasi problem was could be reasonably
met without dilatory processes. Political confusion and bureaucratic mess-up.
Such is the background to Justice Suresh - Justice Shamsuddin Enquiry.
Many public spirited figures like Murkot Ramunny, K. Panoor, M.T. Vasudevan
Nair, Advocate K.M. Thomas, Senior Advocates, Raghava Poduval, N.A. Ali,
K. Sukumaran, and almost 40 odd young lawyers, law students and social
workers - have helped the Commission in its deliberations. Advocate Manjeri
Sunder Raj is the Member Secretary of the Commission.
The quintessence of the tribal of the tribal issue is their human right
to live with dignity in their lands. Rob their lands, their life is robbed.
Restore them to their forest surrounding as of right and you do Adivasi
justice.
Preliminary Observations of the Commission:
Justice V.R. Krishna Iyer had consulted this commission to inquire into
the Adivasi land issues prescribing the following Terms of Reference:
(1) The socio politico legal history of the Adivasi struggle,
(2) The reasons for the delay in restoration of alienated Adivasi lands
to the landless Adivasis,
(3) The shortcomings and changes required in the Adivasi land laws in
the light of 1975, 1996 and 1999 legislations,
(4) The connections and work style of the various Adivasi Organisations,
(5) The implementation of the pact between Kerala Government and the Adivasi
Gothra Maha Sabha and the reasons and circumstances that led to an agitation
of Muthanga by them,
(6) What happened at Muthanga and could it have been avoided,
(7) Alleged violation of human rights of social workers and media men,
(8) Directives and recommendations for solving the Adivasis land issues.
We, the members of 'People' Judicial Enquiry Commission on Adivasi land
issue, arrived in Wayanad on 9th March 2003. We visited Muthanga and went
round several colonies, talked to several people including the Adivasi
and police victims, journalists and concerned citizens. We recorded statements,
mostly victims of violence at Muthanga.
We met the District Collector and sought certain information, which would help us in discovering the truth. Having spent two days in collecting relevant materials and information, we feel it is necessary to make certain interim observations before making a final report containing our findings and recommendations. This had become necessary, for two reasons, firstly the people have a right to know our reactions on what we have seen and heard; secondly, though we met the District Collector, we regret to say that we could not get what the Government and its officials, including the Police, have to say about the incident, and the related issues.
The Police Officers, the DIG (NR) and KAP Command over the phone intimated
the commission that they have nothing to tell us about reports that have
been submitted to the Government. Therefore, we have decided to send these
interim observations to the Government and its officials requesting them
to have their say in the matter within a reasonable time.
Such an exercise is required, lest we be unduly accused of not observing
principles of material justice, before we come to any definite conclusion.
1.
The real issue is one of land rights, and the Adivasis and Tribal all
over the country, despite five decades and more of Freedom and a liberal,
humanistic constitution, have been left with no rights on land in their
own traditional, hereditary and natural areas or habitat. The Kerala Government,
with full co-operation from the Opposition, "unanimously" passed
the Kerala Scheduled Tribal (Restriction on Transfer of Land and Restoration
of Alienated Lands) Act, 1975.
It was then announced that the Government would treat all alienated Tribal
lands as "stolen property' and that the lands would be restored to
its rightful owners - the Tribals. Unfortunately, this law was never implemented
and the Tribals were deprived of their rights without any justification
what so ever. On the other hand, as years rolled by, because of the vested
interests of the politicians in league with settlers, businessmen, land
mafia and corrupt forest officials, attempts were made to scuttle the
law. Legislatively hostile to the Adivasi interest an attempt was made
to amend and dilute the law in 1996, and anti-tribal strategy, which did
not succeed.
Again in 1999 an amendment was made and the High Court instruct down
the amendment as unconstitutional and the Government took it to the Supreme
Court only to avoid implementation of the law. What is regrettable is
that in this attempt to deny the rights to Adivasis, all political parties
are equally through, as at present different parties are raising their
voice, apparently for covering up of their own vested interests and making
political gains than in any genuine concern for the welfare of the Tribals.
Therefore, if the Tribals had to continue their struggle for their land
rights, whatever be the mode of struggle, violent or otherwise, all successive
governments, with no difference in shades, should be primarily held liable.
2.
It is in this dubious background, the pact that the present Kerala Government
entered into with C.K. Janu and other Tribal leaders. Under this agreement,
all landless Tribal families in the State would get land not exceeding
5 acres. Considerable hopes were raised for the Tribals that they would
soon get per family resulting in peaceful homes for themselves with land
to live on. However they realized that the government has not fulfilled
their commitments under the agreement in its entirety. Therefore by way
of asserting their promised rights they came to occupy the land in Muthanga,
since 5th January 2003. This version had plausibility. Therefore, prima
facie, the Government of Kerala should be considered as liable for whatever
has happened from the day they occupied Muthanga lands till now.
3.
Again what is significant is that these Tribals remained peacefully
on this land for 41 days, and the Government made no attempt to remove
them. We have no information about what the Government did during these
41 days either to persuade them to go back or to assure them that the
agreement of 2001 would be implemented and they would be allotted their
respective lands. In the absence of any genuine sincere meaningful attempt
on the part of the Government, the Tribals had no choice but to continue
their struggle and remain on the land as declared earlier. The Government
has failed to respond to this protest and solve the issue by peaceful
means.
4.
What happened thereafter was shocking. A part of the forest area occupied
by the Adivasis was seen to have been set on fire. This resulted in the
desperate Tribals taking certain forest officials and their daily waged
helpers as hostages. That was followed by a demand and agitation of a
group of people who claimed to belong to all political parties including
the CPI(M) and BJP seeking release of hostages, arrest of Janu and Geethanandan
and eviction of Adivasis from the occupied area, without suggesting any
proper solution for their grievances.
At this stage, (on 18/02/2003) we learn that the District Collector personally
visited Muthanga and persuaded the Tribals to release the hostages and
everything appears to have peacefully ended on that date. The district
Collector did not tell them that if they did not vacate by the next day,
they would be thrown out by force. When questioned by us, he said that
by 18th February 2003, he and the Government officials had taken decision
to evict them by force. He also told the commission that he had received
communication form the State capital on instruction from the Central government
to this effect. But the collector was not able to give us any details.
If so, the public at large, and the Tribals at Muthanga had the right
to know how and on what basis this decision was taken? Did the Government
take into account the consequences of such a decision? If so, what is
the attitude of the Government with regard to its commitment for the grant
of rights to the Tribal? Whose interest the Government was serving? Its
own? Or the Tribals'? Or the interest of land grabbers, land mafia? On
all these questions, the Government has to give the information, failing
which the Government would be suspect in the eyes of all those who have
regard for basic human rights and concern for Adivasis.
5.
We do not intend to go into details as to what transpired on
19/2/2003. We have the Government's version in the FIR filled by Mr. Satheeshan,
Dy. SP of Sulthan Bathery in the case registered against Janu and others
(Four have been named and according to the police 500 others were there).
It was filed on that day at 7.30 p.m. It does not reveal any desire of
decision taken by the District Collector or instruction from State or
Central Government for evicting Adivasis. It only speaks of an unlawful
assembly collected at Muthanga and were trying to set fire to two hostages,
one policemen and one forest official. The objective of the police was
to disperse the mob. The District Collector did not go to Muthanga on
19/02/2003. 500 Armed policemen were brought from Kannur. Whose decision
was this? When did they decide to bring KAP? And for what? It is not necessary
for us to go into the several shortcomings, which were inherent in the
FIR but the question is whether this use of force was necessary? Our prima
facie reaction is that this exercise could have been wholly avoided and
the matter could have been resolved.
6.
After the incident of firing what happened was gross violation of law
and human rights. Men and women were rounded up and taken to police station.
Some were beaten mercilessly. Even women and children were taken to the
Forest Rang office; they were kept there for three days. One does not
know under what provision of law this could have been done. Even today,
a child is in custody on a charge of murder, which procedure is contrary
to Juvenile Justice Act. Despite the case of D.K. Basu vs. State of West
Bengal, the police do not seem to have observed any of the directions
contained therein and have behaved as if they are not answerably to anyone.
We will be required to deal with this lawless traumatic treatment and
hope that the Government would take suitable measures to remedy the situation.
7.
We are of the opinion, that there is no provision in the constitution
giving any right to police to kill any person. Such a right occurs only
as an act of self-defence as provided under Section 100 Indian Penal Code.
That defence will have to be proved and established in a trial, in Court
of Law. In other words, every killing by the police, be it for whatever
reason will have to be subject to a judicial enquiry followed by efficient
administrative action.
Under the Criminal Procedure Code, only an enquiry by the Executive Magistrate
is envisaged. We do not know whether any such enquiry has been carried
out. In any case, the Government should make the said report, if any,
public. In any case, we do not understand and so do not express any opinion
on why the Government is reluctant to hold any judicial inquiry. The Commission
has received the following information from reliable sources, regarding
CEC involvement.
The Supreme Court set up the Central Empowered Committee (CEC) to advice
it in matters of forest protection. The Committee is stocked with top
brass of the Ministry of Environment and Forest. In this committee administration
and forest bureaucracy have to go together. This committee has been delivering
Judgement without caring for consequences. The Commission learns that
at the instance of a Delhi based NGO, Wild Life Trust of India, this committee
has caused issuance of a strongly worded letter by the Ministry of Environment
and Forest to the Kerala Government. While the Supreme Court simply asked
States to provide reports on how they planned to settle the rights of
people living inside and outside forest fringes, the CEC, a bureaucracy
incarnate has been taking the short route by issuing eviction notices
to tribal settlers inside forest. The CEC five State Governments, in less
than 6 months wrap up intensely human issue that have been festering for
over 30 years. The Kerala Government has to explain the stand taken by
them before the CEC and disclose all correspondence between them for the
information of the public.
8.
We also would like to know whether the Government has any practical,
pragmatic solution, which will guarantee performance of the agreement
to which the Chief Minister is a party, and at the same time ensure security
of land rights to the tribals.
Why the law of 1975 be not implemented. Here another Government's legislative
reversal comes under criticism.
9.
Lastly, we intend to impress upon the Government that denying land rights
to the tribals is the worst violation of human rights, whichever is the
party in power, their rights to life as envisages under Article 21 of
the Constitution of India is at stake. By denying this right, their right
to security, right to shelter, right to environment, right to livelihood
and above all their right to human dignity is taken away. Would the Government
assure the public at large and the tribals in particular that the Government
will do everything at their command to protect the legitimate rights of
the adivasis?
We hope to forward these observation to the Government of Kerala, its
Chief Minister and Home Minister, the Chief Conservator of Forests, the
DGP of Police, Kerala, also to the District Collector and DIG of Police
(NR) Kannur, with a request to respond to the above observations within
a reasonable time - 10 days.
We are constrained to adopt this procedure since no official or Government agency has come forward to give their stand or version on the aspects mentioned above or the circumstances that led to the death of at least two persons and causing of injury to so many Adivasis and some officials. If they fail to do so, we are free to draw such inferences as we think just and proper.
Waiting for a reasonable time for Government response, in case we will, with deliberate speed, produce out final report.
-- (Justice) Suresh, (Justice) Shamsuddin, 17/03/2003 "