People's Democracy
(Weekly Organ of the Communist Party of India (Marxist)
No. 17
April 28, 2013
|
Vol. XXXVII
No. 17 April 28, 2013 |
The
Vedanta Judgement: Significance and Implications
Archana
Prasad
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
COURT
ORDER
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
CONTEXT
&
SIGNIFICANCE
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.
Finally,
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
have been
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
highest in
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.
