LAW RESOURCE INDIA

Who will save our Na’vis?

BY MANOJ MITTA IN THE TIMES OF INDIA

Long before they gained currency as the real-life counterparts of the Na’vis portrayed by Hollywood blockbuster “Avatar”, the author of the Vedanta verdict — Justice S H Kapadia — had made clear about how he saw the Dongaria Kondhs, who are officially classified as “primitive tribal group”. Kapadia, now chief justice of India, described this tribe from Orissa as a people “living on grass”.

His unflattering, almost dismissive description came in a 2008 lecture, barely four months after his last order in the case. Given his choice of words, it is no surprise His Lordship found himself on the wrong side of history last week. In a bizarre reversal of roles, environment minister Jairam Ramesh all but overruled Kapadia’s decision to grant the bauxite mining project the right to clear the forests in the Niyamgiri hills, where the 8,000 Dongaria Kondhs live.

Clearly, the lapses that have come to light go beyond Vedanta and the Central and state governments. They extend to the Supreme Court as well. Kapadia did not call the Dongaria Kondhs grass-eaters in either of the orders he wrote in the Vedanta case. But the fact that he did so in a public lecture, which was reproduced in full in a law journal, may underline all that was wrong with the basis of his judgment. In the modern idiom, he might have seemed to have shown where he was coming from.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Did he? Why did he call the tribe grass-eaters? He was seeking to justify the circumstances in which the court had come up with an economic formula — 5% of the project profits would go to tribal welfare — ostensibly to balance the conflicting interests of development and environment. But, as the government-appointed Saxena committee recently pointed out, the Dongaria Kondhs don’t really need such intervention. Far from living on grass, they are known to be skilled horticulturists and earn handsome profit from growing pineapple, mango, banana, orange, lime and ginger.

So much for Kapadia’s indiscreet dismissiveness. But it pales when examined alongside the repercussions of the two SC orders in the Vedanta case. Ramesh’s decision is, after all, limited to scrapping the mining proposal despite the court’s decision to grant forest clearance to it. He could not do much about the even more damaging alumina refinery because it has already been built, with the court’s blessings, at an estimated cost of Rs 4,000 crore and is in production. All that the minister could do is to issue notices seeking to know why the environmental clearance granted to the refinery should not be cancelled. The other notice asks why an application to expand its capacity six times should not be spiked.

The refinery is located in the foothills, in Lanjigarh and was predicated on the mining of bauxite from Niyamgiri. Since it has been running for the past three years with ore from sources other than the Niyamgiri hills, the refinery has already wreaked havoc on its pristine environs. The air of the ecologically sensitive area is now polluted, the level of effluents in the Vamsadhara river is at unsafe limits and the ground water has been contaminated.

So what does all of this tell us? Not just that Kapadia had a relatively unreconstructed view of forest tribes but that the court has been shoddy about its self-appointed task of overseeing the regulation of forests through a special bench and a central empowered committee (CEC).

The blunder of allowing the refinery at Lanjigarh could have been averted had the court taken prompt action on the petition filed before its CEC in November 2004. The petition was filed well before construction work began at the site and pointed out that Vedanta had obtained environmental clearance without disclosing that the Lanjigarh refinery was predicated on the mining of bauxite from Niyamgiri.

In September 2005, the CEC recommended the environmental clearance be revoked but the court properly heard the matter only in April 2007, by which time the refinery had been built and started to operate.

When the court passed its first order in November 2007, it declared that the refinery would be allowed to operate provided Sterlite, a subsidiary of Vedanta, adopted the rehabilitation package it had devised. But when Sterlite accordingly came forward with a fresh application, the court’s final order of August 2008 said nothing about whether the environmental clearance given to the refinery was valid or not. Instead, the court granted forest clearance to the mining project on Niyamgiri, although it was an independent issue.

This led to an anomalous situation. Responding to a query from the environment minister last month, attorney general Goolam E Vahanvati was reduced to saying that the apex court’s decision to grant forest clearance to the mining project was not binding on the government. Reason: the government alone is authorized by law to decide whether such clearance should be granted or not.

The court’s forest bench clearly needs to learn the lessons of the Vedanta case. Else, how are we to save our 21st century Na’vis?

http://timesofindia.indiatimes.com/home/sunday-toi/special-report/Who-will-save-our-Navis/articleshow/6453608.cms

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