(Weekly Organ of the Communist Party of India (Marxist)
April 28, 2013
The Vedanta Judgement: Significance and Implications
THE Dongria Khonds of Niyamgiri hills in Kalahandi district of Odisha have been in a protracted struggle against the Vedanta’s proposal to set up an alumina refinery and to mine bauxite from the Niyamgiri Hills. On April 18, 2013, their struggle received a major boost when the Supreme Court ordered the Odisha government to get the consent of the gram sabha before it took a final decision on the project.
The significance of the order cannot be understated, more so in the light of the government’s attempts to dilute the provisions of the Forest Rights Act, especially in the case of mining projects. This judgement should also be contextualised in the debate on the Land Acquisition Amendment Bill where Left parties are pushing for consent of all the affected people as mandatory for any land acquisition. So far the government has refused to give in to this demand.
The Vedanta case has been in the news ever since the company’s proposal for environmental clearance was rejected by the ministry of environment and forests in 2009. The main contention of the ministry was that the company had failed to comply with the provisions of the Forest Rights Act and take care of the needs of the primitive tribal groups living in the area. This rejection was also a response to the Dongria Khond argument that mining in the Niyamgiri would not only displace their livelihoods, but also violate their social and cultural rights. The court order of April 18, 2013 has upheld this argument and has invoked both the Forest Rights as well as the Panchayat (Extension to Scheduled Areas) Act (PESA Act) in order to strengthen its judgement. It has upheld the gram sabha’s right to protect its social and cultural rights and stated that the project can only be allowed with the consent of the gram sabha. Thus it has directed the state government to get the consent of the gram sabha within three months.
The court order creatively interprets the relationship between the Forest Rights Act and the PESA Act. It states that the Forest Rights Act gives the right to the gram sabha to settle community claims. Under the section 4(d) of the PESA, community rights also refer to social and cultural rights and therefore, seen together, the gram sabha should also consider the question of cultural rights in the Vedanta case. In this sense the court order has expanded the definition of ‘rights’ on forest lands and has also highlighted how social and cultural symbolism can be used as successful tools of resistance.
But there are certain areas which remain unclear even within this judgement. The gram sabha’s right to reject a project on the basis of its own assessment and social need has not been upheld very clearly. Rather the court has only stated that the state government has the right to decide the mining leases, but directs the ministry to take a decision on stage II of environmental clearance in the light of the decision by the gram sabha. In this sense, the judgement may have laid down the foundations for a further liberal people-oriented interpretation of the ‘consent’ question in future.
Another important aspect of the court order pertains to observations relating to legal violations by Vedanta. It has advised the company to comply with all the provisions and conditions stipulated by the Forest Rights Act and the Environment Protection Act. In 2010 the Saxena committee set up by the ministry had clearly suggested that the project had recommended the cancellation of initial environment clearance on account of the violation of both the forest rights and the environmental protection acts. It had stated that Vedanta had proceeded to start work on its project without getting the required prior clearances. These conclusions were also reflected in the rejection of forest clearances to Vedanta by the Supreme Court monitored Forest Advisory Committee which stated that “the bulk of the bauxite [was]……. is being sourced from fourteen mines, eleven of which do not have the required environmental clearances.” On the basis of this assessment the Forest Advisory Committee had also stated that the ministry’s stage I clearance to POSCO had created hardship for the local people and that the ministry should take action against the company for violations. In the light of these observations the court has directed Vedanta to submit a report of full compliance before any final decision is taken on the project.
The significance of the apex court’s ruling has to be seen in the context of the increasing push to privatise the mining sector and expand its scope, the mining lobby including the ministry has been pressurising the government to ease environment clearance procedures. Data from the environment ministry suggests that the around six lakh hectares of forest land have been diverted for non-forestry purposes during the UPA’s rule, most of which is for mining in Odisha, Jharkhand, Chhattisgarh and Andhra Pradesh. Given this pressure, the ministry of environment and forests has revised its impact assessment guidelines in January 2013 and has allowed a one-time expansion of existing coal mines by 25 per cent without additional clearances. In case of projects cleared after 2006, the mandatory public hearings amongst the affected people will also not be necessary for further expansion. This shows that the ministry is not at all worried about compliance and the Supreme Court will have to play a monitoring role to ensure that all processes are followed. The court order in Vedanta case is one step in this direction.
In the light of this orientation, the prime minister’s office (PMO) has itself initiated a move to dilute the Forest Rights Act in the wake of pressure from investors. Chaired by the prime minister, the cabinet committee on investment has granted conditional clearances and cleared ‘stalled projects’ worth Rs 74,000 crore in the energy and infrastructure sectors in March 2013, thus pre-empting environment and forest clearances without proper assessments or procedures. It is therefore not surprising that a high powered committee of the PMO has recommended that projects requiring statutory public hearings (under the clearance procedures) need not certify that that they have fully complied with the Forest Rights Act before applying for clearances. It also states that an environmental clearance can be ‘processed’ on an undertaking from the state government that all procedures for recognition of rights will be completed before projects become operational. The PMO has also directed the ministry of tribal affairs and the ministry of environment and forests to follow and execute these guidelines.
Given this push for the dilution of the forest rights act, the Supreme Courts reiteration of the rights of the gram sabhas may not be adequate, but it is certainly a good reminder of the role of the gram sabhas in the implementation of the Forest Rights Act.
the court order also needs to be
seen in the context of the tardy implementation of the
Forest Rights Act. As of
March 31, 2013, about 32 lakh claims were filed for rights.
Of these, more than
15 lakh claims have been rejected and only 12.81 lakh titles
distributed. At the all-India level, only about 40 per cent
of the claimants
get their rights and the rest are rejected. This rejection
rate is one of the
Seen in this context, the court order opens the door to further the fight against dilution of the Forest Rights Act. It is also a significant step in the implementation of the PESA Act and lays down the principles by which the gram sabhas can exercise their decision making power in a limited way. At another level, it also reiterates the importance of monitoring compliance with respect to the corporate projects in resource rich areas. Thus it may be used as an instrument to fight for a socially just implementation of the Forest Rights Act and against illegal corporate practices in tribal areas.