Sensitive Realities: “The religious argument is a double-edged sword. If the Gram Sabha is the deciding forum it is likely that people’s concerns will be addressed, but if the State gets to decide there is going to be scope for manipulation”…
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. 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.” Cultural claims can be dangerous, warns Amita Baviskar, sociologist at the Institute of Economic Growth in Delhi and former member of the Forest Advisory Committee. “It seems MoEF did not have any option but to become a part of the exclusive and communal politics. Documentation of the environmental impact assessment was tailored to suit Vedanta’s case, while the impacts on local hydrology were ignored,” she says. At MoEF, there is no system to study the forest quality or understand geomorphology, claims Baviskar. “In the Vedanta case, MoEF should have done a comprehensive mapping of the ecological landscape. The Ministry should commission more studies on the ecological impacts of mining.”
The trend of religious rights pushing ecological concerns behind is reflecting on the ground as well. Barely a month after MoEF came out in support of sacred rights, a faith-based turf war erupted in the forests of central India. On March 22, Amelia village in Madhya Pradesh’s Singrauli district performed a pooja to Dih Baba, deity and protector of Mahan forests. The residents worship Dih Baba every year before collecting forest produce. This March there was another reason for the pooja: people were claiming their land and religious rights over forests which were at risk because of a mining project, jointly proposed by Essar and Hindalco, in the Mahan Forest Range. Amelia has 200 families which rely on the forest for livelihood. The project falls in a dense forest which former Environment Minister Jairam Ramesh had declared a no-go area for mining because of its biodiversity. Yet, the project was given in-principle forest clearance last year.
To campaign against the project, the people at risk of being displaced formed the Mahan Sangharsh Samiti (MSS). They filed claims for community forest rights under FRA but they were rejected by the Gram Sabha. MSS alleges the sarpanch (village head) and patwari who control the Gram Sabha are in collusion with the developers and secretly passed the Gram Sabha resolution to allow the project. When nothing worked, people resorted to religious rights. “The only way now left for us to assert our rights is through Dih Baba,” says MSS member Bechau Lal. Religious sentiments can be a powerful tool to protect environment but they might not always guarantee security from development projects, cautions Shankar Gopalakrishnan of NGO Campaign for Survival and Dignity. “The religious argument is a double-edged sword. If the Gram Sabha is the deciding forum it is likely that people’s concerns will be addressed, but if the State gets to decide there is going to be scope for manipulation,” he explains.
The Vedanta judgement addresses Gopalakrishnan’s fear. The court maintained the Gram Sabha has the power to decide matters in Scheduled Areas and in areas where FRA is applicable. Outside such areas, religious or political groups can manipulate ecological concerns for vested interests. One such case is that of the Sethusamudram Shipping Channel Project in Tamil Nadu. The project, which aims to ease goods movement around the Indian peninsula, proposes to link the Palk Bay and the Gulf of Mannar through the sea Setu Samudram and a chain of limestone shoals known as Ram Setu, a religious site. In March, AIADMK-led Tamil Nadu Government, which is against the project, filed an affidavit in the apex court pushing the case for making Ram Setu a national monument. Aligning with the Centre’s position, AIADMK’s arch rival, DMK, said there was no archaeological basis of the formation of Ram Setu. The case is pending in the court.
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. An apex court-appointed committee had concluded that even if an alternative route is constructed to avoid using Ram Setu it would damage the Gulf of Mannar Biosphere Reserve, home to endangered marine flora and fauna. While religious rights are being politicised, the channel through which they should be addressed is being ignored. “Impact on religious aspects of the lives of affected people is part of the cultural impact assessment. This is an important part of environment impact assessment under the Environment Protection Act. Unfortunately, this is hardly done,” says lawyer Dutta. Environmental economist Aseem Shrivastava puts the debate in the context of a larger issue of development versus environment.
“Given the current model of globalised development, every project needs to be assessed on stronger parameters for socio-economic and ecological implications. The religious sentiments being evoked in this debate are in a narrow sense,” he says. Dongria Kondhs’ relationship with the Niyamgiri has a strong ecological and livelihood link. The hill is made of bauxite which holds water. “One should ask MoEF and BJP to explain the ecological and economic worth of sinking the Dhari Devi temple. One wonders why BJP failed to oppose the Narmada project in Madhya Pradesh and Gujarat which drowned many temples.”
Religion In Law Book
1949: Constitution: Article 25, 26 guarantee people the right to practise and propagate matters of faith
1994: Environmental Impact Assessment Notification: Impact on religious places and structures is one of the parameters on which a project will be assessed before it is granted environmental clearance under the Environment Protection Act
1996: Panchayat Extention to Scheduled Areas (PESA) Act: The law to extend the Panchayati Raj system to Scheduled Areas recognises communities’ customary laws, religious practices and management practices of community resources
2006: Forest Rights Act (FRA): Religious rights are not explicitly mentioned. They are recognised as part of the traditional rights customarily enjoyed by forest dwellers and Scheduled Tribes, along with an individual’s right to cultivate forestland or community’s right to manage and protect community forests.