The morning of 18 April was both high pitched and definitively calm. The fate of the Niyamgiri hills in Odisha was once again being decided upon by the Supreme Court of India. Till 10.30 am that morning, while most people whizzing past the apex court in New Delhi remained unaware of the significance of the proceedings inside, there were many others strewn all across the globe who had been waiting for the court's verdict since much before the D-day.

The Niyamgiri juggernaut could have gone any which way. Either the apex court would have paid heed to the legal argument presented by Sterlite Industries and the government of Odisha challenging the Ministry of Environment and Forest's (MoEF) decision of 2010 to disallow mining in Niyamgiri, or the hills could continue to breathe. The actual verdict turned out to be somewhere in between these differently envisaged futures.

The Niyamgiri Hills in Odisha; File pic

Niyamgiri's politico-legal journey

Till 2004, the Niyamgiri Hills spreading across Rayagada and Kalahandi districts of Odisha were barely on the global map. But once Sterlite Industries (part of M/s Vedanta plc, registered in the London Stock Exchange) and the Odisha Mining Corporation (OMC) disclosed their plans to mine bauxite at the hills and transport it to Sterlite's alumina refinery at Lanjigarh, there was no looking back. Three sets of cases were filed before the Supreme Court's Central Empowered Committee set up as part of the ongoing Godavarman case and the case went on for the next four years, with the court agreeing to a “way out” that could let mining take place through a special purpose vehicle (SPV) and other related mechanisms.
(See:Niyamgiri again)

One of the key legal issues from the very beginning of the legal battle has been that Sterlite had initiated the construction of the refinery without approvals for the mining component, integral to the project's viability.Launched after much ado in court and several options, OMC's Lanjigarh project in Niyamgiri Reserve Forest in Rayagada and Kalahandi districts claims a potential annual production capacity of three million tonnes of bauxite by open-cast mechanised method, involving a total mining lease area of 721 hectares. But of this, 660.749 hectares is forest land, and the diversion of the same for such purpose requires separate permission - which was still pending at the time the project began. Sterlite and OMC linked and delinked the mining component several times over to ensure that the construction of the refinery does not get impacted (See previous articles at India Together at linksone, two and three).

Over the last nine years, primarily three things have been core to the advocacy of several national and international environmental, cultural, human rights and livelihood protection discourses: the socio-cultural and ecological importance of Niyamgiri Hills, the impact of mining on the Dongria Kondh tribal community, and their invocation of their sacred Niyamraja. Niyamgiri is now no longer a remote and lesser known destination in eastern India. In early 2008, both the area and the issue also received strong political attention when the Indian National Congress, and in particular party general secretary Rahul Gandhi, promised to back the Niyamgiri issue and the Dongria Kondhs.

While the Supreme Court through its August 2008 judgment recommended forest diversion, it directed the MoEF to do so in “accordance with law”. What this meant was that the road for mining was gradually being cleared up with the diversion of forest land under the Forest Conservation Act, 1980 seemingly “sorted out.” But this left the room open for the MoEF to take a decision on the matter in accordance with law. While the in-principle or Stage 1 forest clearance followed on 11 December 2008, the statement of the August judgement, in which the MoEF was asked to take approval in accordance with law, came up substantively over the last two years when Niyamgiri's future was being debated in the apex court.

The Court has regarded the FRA as a law having a "social welfare or remedial statute," and one which seeks to protect a range of rights of tribal and other forest dwelling communities. This includes customary rights to use forest land as a community forest resource and is not restricted merely to property rights or to areas of habitation.

 •  Round and round the sacred hills
 •  Niyamgiri tribals await verdict

In the course of Niyamgiri's legal escapades, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) and its corresponding rules of 2008 came into effect, even though its core principles had been articulated by community based organisations even earlier. Following the FRA, several government-appointed committees (all of whom are referred to in the 18 April SC judgment) had opined that granting forest clearance without following the process of the recognition of rights under the FRA would not just be illegal, but also unconstitutional. The forest land therefore could not be diverted for mining purposes till the rights of the people in the area were duly recognised and, as per the August 2009 circular of the MoEF, consent of the Gram Sabha sought.

With all of the above factors and perhaps more influencing the decision, Jairam Ramesh, the then Minister, Environment and Forests, rejected the proposal for final forest clearance for mining in Niyamgiri on 24 August 2010 with the support and recommendation of the statutory Forest Advisory Committee (FAC). He cited various reasons, including the ecological and human costs of mining but core to the rejection was the issue of recognition of rights under the FRA Act, 2006.

MoEF's order had stated, “Their (Dongria Kondhs’) dependence on the forest being almost complete, the violation of the specific protections extended to their “habitat and habitations” by the Forest Rights Act, 2006 is simply unacceptable. This ground by itself has to be foremost in terms of consideration when it comes to the grant of forest or environmental clearance.”

Arguments behind the April 2013 judgment

For Sterlite and its parent company Vedanta, however, this was not to be the end of the road, and which is what makes the April 18 judgment of the SC significant. Counsels arguing for Vedanta/Sterlite and the government of Odisha, described the MoEF's 2010 order as going against the earlier judgments of the SC that had allowed the formation of  SPV (November 2007) and given a go-ahead for the forest clearance after a clear set of steps had been followed (August 2008). MoEF's decision was also argued to be untenable and unsustainable under law.

The considerations of the FAC and the various committee recommendations which pointed to the importance of the FRA process as well as other legal violations in the clearance-seeking process by Sterlite were also questioned as part of the arguments in Court. In fact, the counsel for the government of Odisha, reiterated the earlier stance of the state in the FRA matter saying that several of the individual and community claims from Rayagada and Kalahandi Districts have been settled by giving alternative lands.

The counter to all of this was the fact that all committees and processes followed by the MoEF - such as seeking more information, setting up of additional committees - had been done in compliance with legal mandates to be followed before a clearance is granted or rejected under the Forest (Conservation) Act, 1980. The MoEF argued that this was something even the SC had allowed for in its 2008 judgment when it said that the next steps need to be in accordance with law. All this needed to ensure that the conditions laid out during the Stage I approval, which included that the FRA related issues be addressed, are complied with. Only then can Stage II approval be granted. It is a different matter, of course, that the MoEF itself chooses to violate this principle in many other cases - both on the forest clearance procedures as well as those which need to be in compliance with the FRA. 

The judgment

As part of the judicial review, the SC judgment deliberates upon a whole range of issues. Two critical ones  - other than that of religious rights of the tribals which is not being discussed here - relate to the interpretation of the scope of the FRA and second, the principle of “eminent domain,” both of which today have a very critical bearing on industrial, mining and infrastructure projects in the country. [“Eminent domain” refers to the power a government or the state has to obtain the property of an individual even without the person's full consent. In stricter legalese, it is defined as “the power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.”]

The SC has regarded the FRA as a law having a “social welfare or remedial statute,” and one which seeks to protect a range of rights of tribal and other forest dwelling communities. This includes customary rights to use forest land as a community forest resource and is not restricted merely to property rights or to areas of habitation. The judgment, however, is silent on the larger question surrounding the point at which any “right” starts to shift from custodian or stewardship to that of ownership and hence can be bought, sold or acquired even after being recognised.

The other significant point in the SC judgment is related to the powers of the government or more broadly, the state. The April judgment clearly states that the FRA “neither expressly nor impliedly, has taken away or interfered with the right of the State over mines or minerals lying underneath the forest land, which stand vested in the State. State holds the natural resources as a trustee for the people.” However, it remains open-ended on how the resource below and resource above (forests) would relate to each other when communities want to exercise their rights over forests and the state would want to stake its ownership on the mineral below. Would the eminent domain powers of the state/government reign stronger than anything that a gram sabha would have to state? Niyamgiri could sure be a test case for this if indeed the gram sabha, in whose hands the decision on the projects rests now, decides against mining. And then, who would take on the role of the “State”, the government of Odisha or government of India?

The SC's decision therefore vests the future of bauxite mining in the hands of the gram sabha or the village assembly in Niyamgiri. It is this assembly which will decide upon the older and newer claims under the FRA and the right of the Dongaria Kondh, Kutia Kandha and other communities to worship the Niyamgiri hills. Since the Niyamgiri hills region would have more than one gram sabha, the contours of how this process is carried out remain to be seen over the next two months, during the course of which the complex process of rights determination and rights recognition needs to take place. Any decision on the final forest clearance will follow that.

According to newspaper reports, in the light of the above order, the Ministry of Tribal Affairs has issued detailed instructions to the Government of Odisha to take forward the SC directions by issuing advertisements to inform villagers, making arrangements to record their meetings, sending observers and ensuring that company representatives or anyone who might have a fearful influence are kept out of village assembly meetings. The state of Odisha has also been asked to prepare a list of villages and hamlets which are likely to be affected in the area where OMC and Sterlite propose to mine bauxite. The reports indicate that the Tribal Affairs Ministry wants to be apprised of the progress in a consistent manner.

This does not seem to be the end of the road either for mining in the Niyamgiri hills or for re-engaging in further legal battles, but even as the gram sabha and subsequently the MoEF deliberates on the decision they would eventually take in the matter, the hill and its people get some more time to breathe.