The April 18 Supreme Court judgement on the Vedanta’s bauxite mining project in the Niyamgiri hills has been widely reported. While some quarters and activists hailed it as a positive judgement, Vedanta and Orissa Mining Corporation (OMC) found enough reason for hope and opportunity in the judgement. Other reports underscored how local people had been given the right to decide on the operations of a global mining giant, pointed out how it was a landmark event, and underscored the power of the local tribals.
Most reports, however, failed to point out the fact that the court had, in a sense, chosen to bypass the most vexing questions relating to violations of environmental laws in the case. The SC decision, while granting the ‘right’ to decide on the fate of the bauxite mine to the gram sabhas, chose to set aside all ecological concerns and made religious rights of the Niyamgiri tribals the central plank of the judgement.
The OMC had decried the earlier 2010 order of the Supreme Court where it refused clearance to the bauxite mining project on grounds of violation of laws in the alumina refinery. The Supreme Court order, while making a note of this, said:
Petitioner… submitted that the order wrongly cites the violation of certain conditions of environmental clearance by “Alumina Refinery Project” as grounds for denial of Stage II clearance to OMC for its “Bauxite Mining Project”…the violation of any statutory provision or a condition of environmental clearance by one cannot be a relevant consideration for grant of Stage II clearance to the other.
Holding forth on the connections between the two ‘projects’— a crucial plank in the petitioner’s argument — the Supreme Court judgement made all the right noises. It noted:
Quite contrary to the case of the petitioner, it can be strongly argued that the Alumina Refinery Project and Bauxite Mining Project are interdependent and inseparably linked together and, hence, any wrong doing by Alumina Refinery Project may cast a reflection on the Bauxite Mining Project and may be a relevant consideration for denial of Stage II clearance to the Bauxite Mining Project.
The court, however, refused to take a clear stand on the issue. In the same breath, it went on to rule:
In this Judgment, however, we do not propose to make any final pronouncement on that issue but we would keep the focus mainly on the rights of the Scheduled Tribes and the “Traditional Forest Dwellers” under the Forest Rights Act.
With this, it may be argued, the judgement refused to tackle the most vexing aspect of the case; instead, in focusing on the rights of the STs and TFDs, it shifted the parameters of discourse elsewhere, away from violation of environmental laws by a part of the project.
In no uncertain terms, the judgement states that the only the state has the right to decide on the extraction of minerals. It notes:
The Forest Rights Act, 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.
Through the judgement, the Supreme Court has clearly defined the arc within which the local population of an area may have a say in a large-scale mineral extraction project in their area. In the event of majority of claims under the Forest Rights Act in the project area being settled, the only grounds on which local people can oppose a project they may not want is religion and culture. The judgement, in the last part, holds forth on this:
Religious freedom guaranteed to STs and the TFDs under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands…Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved.
The court further observed:
We are, therefore, of the view that the question whether STs and other TFDs, like Dongaria Kondh, Kutia Kandha and others, have got any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja, have to be considered by the Gram Sabha.
The gram sabhas have been asked to arrive at a decision within three months, and the MoEF is supposed to take a final call on the matter within the following two months.
What does this shift in the parameters of the discourse hold? For one, in shifting the locus of decision-making in the gram sabhas to the domain of the cultural/ religious, the argument will now shift from verifiable facts to matters of perception.
In the coming months, local bodies in the area will have to deal with the following question: will the local deity be disturbed if mining is allowed within a 10-km radius of his/her abode? How much space, and what kind of access will be required to preserve my religious practices and rituals? As is evident, there can be no factual replies to such questions; instead, responses will be based on perceptions. Therefore, the task of any well-meaning industrialist has to be one of perception management.
In a clear reflection of this, the Economic Times editorial on April 19, the day after the judgment, pointed out:
The Supreme Court has…opened a window of opportunity for Vedanta to win over the tribal group, Dongariya Kondhs, who worship the bauxite mounds the company wants to mine…Mining companies should offer terms that elicit consent of those who stand to be displaced for the uprooting of life and livelihood as they have known them. The Kondhs in Niyamgiri can perhaps be persuaded to restrict their worship to a couple of hills, by offering them access to a better, albeit different, life.
As pointed out earlier, this editorial underscores how religious and cultural rights are a matter of perception, and how sound negotiation can persuade locals to re-look at their traditional practices.
To be sure, Vedanta is no novice at perception management. Readers will recall its “Creating Happiness” campaign, and its claims of running plush health clinics and educational institutes in the project-affected areas. Although some reports and documentaries showed how these clinics were without doctors and hardly had any health facilities, and how local educational institutes were, in some cases, merely buildings, Vedanta has continued to cultivate perceptions in and outside the project- affected area. Now, perhaps, it needs to do a wee bit more to convince the poor tribals that their deity after all will be well served by prosperity.
ET’s Vedanta plug?
In fact, a piece on the edit page of the Economic Times on April 19 makes precisely this very argument. Waxing eloquent on the prowess of Vedanta chief Anil Agarwal, the article notes:
Vedanta has somehow acquired this public image of being hostile to environment and the habitats of tribals and villagers…All this may have been due to past mistakes and a communication gap, but it is time for Agarwal to address and solve this problem. Many mining and metal companies operate in India but only Vedanta seems to face this problem on a persistent basis.
It is strange that the author can make this claim about only Vedanta facing this problem on a persistent basis in the same breath where he speaks about the shutting down of the company’s smelter in Tamil Nadu owing to violations of environmental laws.
The choice of words is also instructive, for the writer says that Vedanta has ‘acquired this public image of being hostile’— a sleight of hand suggesting that this is actually not the case; that Vedanta in fact, adheres to the highest norms of upholding rights of local communities.
The writer goes on to locate the troubles of Vedanta in the activities of hostile global NGOs. In what appears to belittle the Dongria and Kutia Kondhs, the author proclaims:
Tribals are often smarter than city dwellers. They know the advantages of proper schools, housing and a decent standard of living, and are unlikely to dismiss sincere outreach efforts.
All that Vedanta’s Anil Agarwal needs to do is “use his clout as an industrialist to win over Niyamgiri”, as the article suggests. Perhaps, the Supreme Court judgment lays the ground for this. After all matters of religion and culture, particularly when it does not happen to pertain to forces right of Centre, are not set in stone.
Irony escapes notice
Those opposed to the Vedanta project, as well as Vedanta and OMC — the project proponents — lauded the judgment. This irony, however, escaped the notice of most papers, which remained fixated on the flawed narrative of tribals halting a multi-million dollar company in its tracks. Indian Express, The Hindu, Times of India, Economic Times, The Telegraph, Hindustan Times and Mint — all reported on the verdict. In its coverage, Mint looked at the Niyamgiri verdict in conjunction with the SC verdict on partial lifting of iron-ore mining ban in Karnataka. The story suggested that the twin verdicts were a relief for the natural resources sector, but there was hope for mining companies. None of the newspapers, however, carried an editorial or opinion pieces on the judgment.
However, Ananda Bazar Patrika, the Bengali daily from the Telegraph stable, reflected on the judgment in a piece on the edit page on April 25. The article sought to underscore the SC judgment for what the author saw as the most important aspect. She noted that the judgment, perhaps for the first time, had upheld the religious and cultural rights of tribals. She noted that while tribals constitute over 11 per cent of the population, their right to uphold their traditional and religious practices had so far escaped recognition. The author, Jaya Mitra, questioned whether anyone would dare raise the issue of taking apart even a section of the Kalighat temple or the Jama Masjid in the interest of a project, while pointing out that the opposite has been the norm as far as places of worship of tribals are concerned. In the same piece, however, she noted that examples of large corporations being punished for violating environmental norms are few and far between.
What effect will Mitra’s observation hold for large projects in tribal areas across the country? Perhaps, it is imperative to mention the case of the Western Ghats here: Readers might recall that a recent MoEF High Level Working Group identified around 37 per cent of the total area of the Western Ghats as ecologically sensitive, classifying the rest of the 63 per cent area as “cultural landscape”. The operative word here, of course, is culture, and following the SC verdict on Niyamgiri, people in these areas would not have any grounds to oppose a project — however detrimental it may be to the environment — save by resorting to a religious lexicon.