Village veto

The Supreme Court's judgment linking forest clearance for mining projects to the recommendations by local Gram Sabhas has adverse implications on prospective investments in the country’s mineral-rich areas with significant tribal populations. The apex court, ruling on an appeal before it seeking permission for mining bauxite ore in the Niyamgiri hills of Odisha, has directed that the Gram Sabhas having jurisdiction in the project area be made to determine individual or community claims of the local traditional forest dwellers. These relate to not only basic livelihood needs, but even their “customary and religious rights”. More specifically, the Gram Sabhas may examine whether the proposed mining area, which is some 10 km from the hilltop that is considered to be the abode of the deity of the indigenous Dongaria Kondh community, would in any way affect their rights to worship.

What this ruling does, more than anything else, is to endow Panchayat institutions an effective veto in deciding whether any mining project is taken up in their areas. This, even if such projects may serve a public purpose benefiting far more number of people than those, whose livelihoods or cultural identities and traditions are seen as being threatened. The real losers in the bargain are the State Governments, which, even while technically “owning” the minerals beneath the forest lands in their territories, will see these rights supposedly “vested” in them being encroached upon by Gram Sabhas and other local bodies. States have every reason to be unhappy about this: A Naveen Patnaik or Raman Singh, after all, head legitimately elected Governments representing a larger mass of people than individual Panchayat bodies. And as far as investors go, if to the plethora of Central and State-level clearances, obtaining nods from the relevant Gram Sabhas are also added, it would amount to the proverbial fifth wheel in the cart.

The Supreme Court cannot, however, be blamed for the potential anarchy that its judgment may trigger. At the end of the day, it only interprets and pronounces on laws enacted by the legislature. When the Forest Rights Act, passed in 2006, gives the gram sabhas the powers to adjudicate on claims and take decisions on matters concerning indigenous communities within their areas — including large projects — how can the courts be expected to take any contrary stance? It is true that in the past, Governments frequently rode roughshod over forest dwellers and they lost out in the process of development. But today, there is an equal danger of all development projects being stalled in the name of protecting indigenous people’s rights. The need of the hour is a realistic approach. State Governments and corporates are increasingly learning that the old approach of land acquisition and disregard for environment isn’t going to work in a modern democratic framework. On the other hand, no one can take away the rights of elected governments to exploit mineral resources within their jurisdictions.

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