Gods must be dazed

IN FEBRUARY, the Union Ministry of Environment and Forests (MoEF) took many by surprise when it opposed a mining project in Odisha’s Niyamgiri hills in the Supreme Court solely on the ground of violation of tribals’ religious rights. Extracting bauxite from the region would violate the fundamental right of a particularly vulnerable tribe, Dongria Kondh, who consider the Niyamgiri as the abode of their deity Niyam Raja, MoEF said. Till then MoEF had maintained violation of environmental laws as the reason for cancelling clearance of the project by Vedanta in 2010.

Three months later, MoEF served another shocker. On May 6, it told the apex court the ancient Dhari Devi temple in Uttarakhand, which was at risk of being submerged by a hydroelectric power project along the Alaknanda river, should not be relocated because it would affect people’s right to worship. In an affidavit to the court, MoEF drew parallel to the Niyamgiri case and said the present position and the right to worship at the Dhari Devi temple cannot be compromised. It also named leaders of political parties, including opposition BJP’s L K Advani, Uma Bharati, Arun Jaitley and then BJP president Nitin Gadkari, who have been opposing the temple’s relocation citing religious sentiments.

In the Vedanta case, the court left it to the gram sabhas (village councils) of the villages likely to be affected in Rayagada and Kalahandi districts to decide whether mining will affect religious rights of the tribals. It asked MoEF to take a final call based on the decision of the gram sabhas. In the Dhari Devi temple case the court expressed displeasure over difference in opinion of MoEF and its own committee that had said the temple could be raised to a higher level to avoid submergence. The court has reserved its decision on the case.

Though MoEF now has little say in the two projects, the eagerness with which it has argued for religious rights has stunned many. “Religious issues have been the bone of contention in many projects, but for the first time MoEF has argued its cases on religious grounds,” says a former member of the Forest Advisory Committee who does not wish to be named.

Religious rights v ecological issues

Many have hailed the Vedanta court judgement because it reaffirms the gram sabha’s authority in deciding matters related to tribal rights. The court said the gram sabha has a role to play in safeguarding religious rights of forest dwellers under the Panchayat (Extension to Scheduled Areas) Act and the Forest Rights Act (FRA).

FRA recognises traditional rights of forest dwellers over forest resources, including their way to worship. Analysts believe the judgement will come in handy for communities fighting for their sacred groves from development projects (see map).

The way MoEF argued the case, however, has not gone down well with tribal rights activists. They say the ministry has reduced the larger issue of compliance with FRA to violation of religious rights. Ecological issues were also not properly argued for, add analysts.

In February MoEF was in a tricky situation. It had to defend its decision of rejecting the Vedanta project for violating FRA in the court. At the same time, there was pressure from industry and the Prime Minister’s Office to dilute powers of the gram sabha to veto a project using FRA. A 2009 MoEF order had made it mandatory for projects that require forestland diversion to obtain consent of the affected gram sabhas—something Vedanta failed to do. It was then that MoEF argued for religious rights.

The ministry told the court that people’s consent is required only in cases where a “large number of people are displaced” and “which affect their quality of life”. But in case of Vedanta, said MoEF, the project should not be allowed solely because it will affect the fundamental right of the 8,000-odd Dongria Kondhs to worship. “In a way, MoEF restricted the scope of FRA to religious rights.

What about areas where a project will affect other rights of forest dwellers?” asks environment lawyer Ritwick Dutta, adding, “besides, MoEF did not define the large number of people and quality of life.” R Sreedhar, a litigant in the case, complains MoEF did not argue strongly on the violations of the Environment Protection Act and the Forest Conservation Act. “The ministry’s own committees had pointed that several conditions of in-principle forest and environment clearances were not met by the developer,” he says. Even in its judgement the court said it did not intend to pronounce on any issue except those on violation of FRA. It explicitly said that right to worship will have to be protected—and made no mention of how mining will affect other rights.

Perhaps excited by the success of its argument in the Vedanta case, MoEF issued a stop work notice to Alaknanda Hydro Power Co Ltd, which was trying to relocate the Dhari Devi temple despite the court reserving its judgement on the matter. Six days later on May 16, the ministry had to revoke the notice after the court’s intervention.

Analysts say the arguments of MoEF may lead to a situation where religious rights take precedence over ecological concerns in governance. “MoEF might be looking for an easy way out; religious arguments do evoke strong sentiments both in court and in public domain,” says Ashish Kothari of NGO Kalpvriksh, adding, “the government might be trying to gain political mileage with elections round the corner.”

Some 1,500,000 fisherfolk around the project site, who are at risk of being displaced, say the religious card is being used for political opportunism, while ecological concerns are being ignored. “If the Centre goes ahead with the project, the fisherfolk will be displaced, and if Ram Setu is declared a national monument, fisherfolk will not be allowed to fish in the area. Who will address their concerns?” asks T Peter, secretary, National Fishworkers’ Forum.