By Ritwick Dutta (Posted: April 18, 2013)
In a landmark judgment, the Supreme Court of India today (18-4-2013) refused to allow the UK based Mining giant: Vedanta to source its mineral requirement for its alumina refinery plant from the Niyamgiri Hills of Kalahandi District of Orissa till it has obtained an approval from the Gram Sabha (general assembly) of villagers in accordance with the Forest Rights Act, 2006. The verdict recognize the rights of forest-dwelling Dongria-Kondh tribals to have a say in projects that affect their habitat, economic development and culture, the Supreme Court has said that it’s up to the Gram Sabhas or local self-governments in two districts to decide if the Niyamgiri Hills are home to their deity. They have been asked to share their decision within three months with the union Environment Ministry. The Supreme Court said: “If the project, affects their (tribals) religious rights, especially their right to worship their deity, known as Niyam Raja, in the hills top of the Niyamgiri range of hills, that right has to be preserved and protected. We find that this aspect of the matter has not been placed before the Gram Sabha for their active consideration.” The fight against Vedanta has been unique for it has seen human rights activists, tribal rights activists and wildlife conservations joining hands to protect the ecology and the traditional culture and livelihood of the tribal communities. The judgment of the Supreme Court delivered by a bench comprising of Justice Aftab Alam, Justice Radhakrishnan and Justice Gogoi is the latest blow to Vedanta Resources PLC, whose Alumina Refinery project as well as mining plans have been a subject of series of litigation before various courts since the year 2004. The local tribal communities comprising of the Dongria Kondhs have been at the forefront of the legal battle against the mining proposed on a hill regarded as sacred by them.
The litigation against Vedanta and the Orissa Mining corporation has been going on for nearly a decade at various courts and tribunal: the Central Empowered Committee, The National Environment Appellate Authority, The National Green Tribunal, the Orissa and Delhi High Court and the Supreme Court. On the issue of the rights of traditional forest dwellers, the Supreme Court observed that customary and cultural rights of indigenous people have also been the subject matter of various international conventions, “Many of the STs [Scheduled Tribes] and other TFDs [Traditional Forest dwellers] are totally unaware of their rights. They also experience lot of difficulties in obtaining effective access to justice because of their distinct culture and limited contact with mainstream society. Many a times, they do not have the financial resources to engage in any legal actions against development projects undertaken in their abode or the forest in which they stay. They have a vital role to play in the environmental management and development because of their knowledge andtraditional practices. State has got a duty to recognize and duly support their identity, culture and interest so that they can effectively participate in achieving sustainable development.” In view of the above, the Supreme Court held that the Forest Rights Act had been enacted conferring powers on the Gram Sabha constituted under the Forest Rights Act to protect the community resources, individual rights, cultural and religious rights. The Court also clarified that the Act protects a wide range of rights of forest dwellers and Scheduled Tribes including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation and that the Act intends to protect custom, usage, forms, practices and ceremonies which are appropriate to the traditional practices of forest dwellers. The Court also clarified that religious freedom guaranteed to scheduled tribes and traditional forest dwellers under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands. The above mentioned Articles guarantee them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved. In this regard, the Court observed that the Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs and other TFDs under the Forest Rights Act and has an obligation to safeguard and preserve the traditions and customs of the STs and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs vide its letter dated 12.7.2012.
In view of this, the Supreme Court has directed the Gram Sabhas of Kalahandi and Rayagada to decide whether or not any religious right or the abode of the deity Niyam Raja would be disturbed by the bauxite mining project and if, in any way, the same affects their religious rights, in the hills top of the Niyamgirirange of hills, has clarified that such right has to be preserved and protected. The Supreme Court also observed 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.