'Courting' controversy

The protests against the Kudankulam nuclear power station are still fresh in our minds; the struggle against mining in Niyamgiri hills is in the news again with ten gram sabhas having rejected the proposal for mining, and the villagers of Dhinkia and Gobindpur still stand strong against steel giant POSCO's plans for land acquisition at any cost.

Hugely controversial and politically tumultuous projects with high investment have increasingly been finding place on India's trajectory for quite some time now. It also no longer comes as a complete surprise when project-affected farmers, fisherfolk, forest dwelling communities, or urban citizens assert their rights, challenging displacement and demanding an end to the auction of land, water and related resources despite huge social and ecological costs. But what is equally intriguing is the increasing trend of legal challenges to such projects, many among which end up before courts and tribunals.

One reason for this, of course, could be that regulatory agencies today have to deal with higher volumes, deciding on approvals for more dams, mines, industrial operations and ports than ever before. With more projects being proposed by the public and private sectors, and improved efficiency and regularity in the meetings of the expert committees approving them, decisions in favour of industrial expansion are being taken with unprecedented frequency. In many of these cases, the next step for the people with reservations is to seek judicial redress.

It has been argued by a few that there is nothing new in high profile projects being dragged to courts which then deliver decisive judgments. However, that should not rule out reflection on the kinds of conclusions arrived at by some recent judicial pronouncements or the implications of the processes that these pronouncements have set rolling. One can explore this point by looking at two recent judgments with far reaching implications. Both relate to projects that have faced strong on-the-ground resistance. The conclusions rendered by the Court and the values upheld stand at odds with each other.

The first case in point is the judgment of the Supreme Court on 6 May 2013 related to the commissioning of the Kudankulam Nuclear Power Plant (KNPP) in Tamil Nadu. The apex court observed that development of nuclear energy is important for India and allowed the plant to be commissioned in larger public interest. While the struggle against the KNPP has been long-standing, it has strengthened significantly over the last two years, during which affected people, civil society groups and scientists have come together to demand closure of the plant. There have been well-researched arguments on why nuclear energy is not necessary and why the plant will not serve public interest. A precautionary approach has been demanded given the risks of the project. It has been widely reported that Idinthakarai, which is just three kilometres away from the plant site, has served as the .Ground Zero" of the protests around the impact on marine life, on people's livelihoods as well as critical issues of disposal of nuclear waste and multiple safety concerns.

In the case of the recent judgment of the Supreme Court, petitioners had opposed the plant's operationalisation, highlighting the fact that many of the 17 additional safety measures prescribed by a government task force on KNPP had not been put in place. Many of these concerns were reiterated in the light of the March 2011 Fukushima disaster in Japan which was triggered by a massive tsunami. Following a major earthquake, a 15-metre tsunami disabled the power supply and cooling of three Fukushima Daiichi reactors, causing a nuclear accident. All three cores largely melted in the first three days. However, the central government and the Nuclear Power Corporation of India Ltd (NPCIL) have consistently maintained that the plant is safe and "fully equipped to withstand" Fukushima-type incidents, and also that 15 of the enhanced safety features have been implemented already. This aspect has been also upheld by the Court in its judgment.

The other judgment in question relates to the nine-year-old battle against bauxite mining in the Niyamgiri hills of Odisha. In this particular instance, Sterlite Industries along with the Government of Odisha had challenged the 2010 decision of the Ministry of Environment and Forest (MoEF) to disallow mining in the Niyamgiri hills spread across Rayagada and Kalahandi districts of Odisha. On 24 August 2010, Jairam Ramesh, then minister of environment, rejected the proposal for Stage II forest clearance for mining in Niyamgiri. The rejection order cited various reasons, including the ecological and human costs of mining and also the violations of several laws related to forest rights, forest diversion and environment protection.

Niyamgiri's tryst with the Supreme Court dates back to 2004 when three cases were filed by conservationists and human rights activists before the forest bench's Central Empowered Committee, challenging forest clearance for the mine and the alumina refinery. This case took various twists and turns and the order (dated 8 August 2008), and its conclusion that forest diversion would need to take place in .accordance with law", had an important bearing on the directions in the present case. The company and the state of Odisha in their challenge questioned the premise of the decision by the minister of environment. They claimed it to be against the Supreme Court's judgment delivered in August 2008, which according to their interpretation had allowed forest diversion for bauxite mining to take place. The state government continued to take the stand that the rights of the tribal and forest dwelling communities had been recognized. The MoEF response to this was that the SC judgment had not directed that forest diversion take place, but had merely said that the Ministry should act in "accordance with law." The 2010 decision only upheld that process.

Apart from making a few critical observations, the Supreme Court judgment in the Niyamgiri case vests the future of bauxite mining in the hands of the .gram sabha" or the village assembly in Niyamgiri. While the state government in Odisha has limited this process to 12 such village assemblies, the Minister of Tribal Affairs (MoTA) has publicly articulated that this would severely limit the scope of both the judgment and also the Forest Rights Act (FRA), which the MoTA is responsible for. The Court judgment says that the gram sabhas are to decide upon the older and newer claims under the FRA and the right of the Dongria Kondh, Kutia Kandha and other tribes to worship the Niyamgiri hills. These include both cultural and religious rights other than those extending to forests as well as forest produce. (Read: Niyamgiri gets time to breathe)

As of now, ten out of the twelve constitutionally recognised gram sabhas have rejected the proposition to remove bauxite from the Hills. The final decision on whether the forest land should be diverted for non-forest use rests with the MoEF and the Supreme Court has also asked the ministry to take a decision following the gram sabha process. It would be difficult for the Ministry to override this clear rejection of the project, especially as it still stands by its 2010 decision.

The fate of many other large scale operations are also hanging in balance, awaiting the highest court.s judgment or seeking the just sense of the more recently formed National Green Tribunal. And of late, this has been more common than ever before. In July 2011, the Supreme Court allowed the French cement company Lafarge to mine limestone in the forests of the East Khasi hills in Meghalaya. This was yet another hearing which followed fascinating twists in the regulatory tale. The judgment concluded by saying that limestone mining has been going on for centuries in the area where Lafarge is proposing to mine, and moreover it is an activity intertwined with the local culture and land holding and tenure system of the Nongtrai Village.

While the facts of these cases might tell intriguing stories themselves, the court room discussions on each of these projects and the subsequent decisions have varying degrees of impact on the struggles at the grassroots. At one level, the local articulation holds its strength irrespective of what the courts have to say; at another, there may be instances where the court's directions come to play a decisive role, at least when it comes to the project's paper trail. With some of these decisions already underway and many others on the anvil, India's ecological future and indigenous livelihoods seem to be pitted against industrial growth not just in the arena of political negotiations but in national courtroom dramas too. It is here that evidence often ends up fighting convictions.