The Supreme Court was seized of the matter earlier also on a petition filed by Vedanta for directions to MoEF to grant environment clearance for the setting up of the Alumina Refinery and had decided in 2007 that the mining of bauxite could go ahead provided certain conditions regarding environmental protection and rehabilitation of the project affected persons were met and that the MoEF granted environmental clearance on the basis of existing legal provisions. A review petition was filed by an intervener against this order stating that the religious and cultural rights of the Dongria Kondhs as guaranteed under the FRA were being violated but this was dismissed by the Supreme Court in 2008. Meanwhile the MoEF gave a Stage I clearance to the Orissa Mining Corporation in early 2009. Thus, the path appeared to be clear for Vedanta to go ahead with mining bauxite.
However, this is when the campaign against the project gathered steam on several fronts. The Dongria Kondhs themselves began to organise in an active manner against the project and several environmental activist groups in India and abroad began providing support to their struggle. These groups together ensured that for the first time the Dongria Kondhs approached a law court to fight for their rights as a petition was filed in the National Environment Appellate Authority against the order of the MoEF granting stage I clearance in 2009 alleging serious violations of the Environment Protection Act 1986 (EPA), FRA and the Forest Conservation Act 1980 (FCA). Simultaneously a huge international campaign was kicked off against Vedanta exposing all its skullduggery in willfully violating environmental laws and also trying to displace the Dongria Kondhs. The violations of the laws was so blatant and so well exposed by the petitioners that the NEAA ordered the MoEF in 2010 to reconsider its decision to give environmental clearance. This led the MoEF to constitute a committee headed by Dr N.C. Saxena to study in depth the situation prevailing in the project area with regard to compliance with various relevant laws. This committee submitted a scathing report documenting in detail the serious violations of various laws committed by the Government of Odisha and Vedanata. On the basis of this the Forest Advisory Committee of the MoEF refused forest clearance and eventually the MoEF refused the Stage II clearance.
The present judgment is a tour de force in legal reasoning. The judges were well aware of the fact that all the objections raised had been heard before in the earlier petition before the Supreme Court and yet it had dismissed them and ordered that the MoEF should decide on the basis of the prevailing laws on granting the clearance. Therefore, the judgment upholds the need for the exploitation of the bauxite for development and the right of the Odisha Government to so develop it. The judgment also says that even though there are gross violations of the EPA and the FCA by the Alumina Refinery and there is a clear link between the refinery and the bauxite mining in Niyamgiri it is not going into that. Instead the judgment traces the development of the law with regard to the sanctity of the rights of the tribals right from the constitution of the Dilip Singh Bhuria Parliamentary Committee, the subsequent enactment of the Panchayat Extension to Scheduled Areas Act 1996 (PESA Act) on the basis of the recommendations of the Bhuria Committee, the judgment of the Supreme Court in the Samatha case upholding the provisions of the Fifth Schedule of the Constitution regarding the rights of tribals to their land (Samatha v. Andhra Pradesh (1997) 8 SCC 191), the judgment of the Supreme Court upholding the provisions of the PESA Act (Union of India v. Rakesh Kumar, (2010) 4 SCC 50) and the enactment of the FRA and also cites the various international conventions for the protection of the tribals and the environment to show that the rights of tribals and the close proximity of their lifestyles to the environment and its sustainability are paramount and protected by law. The FRA specifically provides that the Gram Sabha has to decide on the status of various rights of the tribals and these include religious and cultural rights. Thus, while the rights to land of some of the tribals in the Niyamgiri Hills have been settled by the Gram Sabhas in that region, the rights of the tribals to continue to worship Niyamraja who resides on the plateau on top of the Hills has not been settled by the Gram Sabha because this has not come up before it. The FRA specifically states that before any tribal group can be displaced from a certain area all their rights must first be settled by the Gram Sabha. Therefore, the Supreme Court in its judgment has ordered that the Gram Sabhas should be held in the region to decide on the religious and cultural rights of the tribal residents and only if they decide that they are willing to allow Niyam Raja's abode to be accessed can mining take place there. The court has also ordered that a district judge will oversee that the proceedings of the Gram Sabhas are completely fair and there is no pressure applied on the members by the Government or Vedanta.
This is a piquant situation. The Supreme Court now feels that mining should take place with the necessary environmental protection and social welfare measures as ordered earlier by it but yet it puts in the caveat that this can happen only if the Dongria Kondhs say that their religious and cultural rights will not be hurt and it is the tribal Gram Sabhas that will sanction this. With this judgment the tribal Gram Sabhas have now become the most powerful entities with regard to governance in their areas of jurisdiction.
An interesting feature of the case as it unfolded in the court is that the Government of India through the Solicitor General argued in favour of the MoEF rejection of the clearance. This goes to show that the combined power of tribal mobilisation at the grassroots and legal and policy lobbying by environmental action groups both nationally and internationally can lead to tremendous results. Beginning with the mobilisation for the enactment of PESA from 1993 onwards, two decades of such combined activism has resulted in the present judgment which has made the tribal Gram Sabha supreme in its area and immensely empowered small tribal organisations which are fighting the good fight in isolated remote locations. Some people have expressed their reservations regarding the judgment saying that the Government and Vedanta will use all their resources to subvert the Gram Sabhas. They may well do so even though given the level of mobilisation of the Dongria Kondhs and the supporting activists this will not be an easy proposition but what is important is that despite the Judges being disposed towards allowing mining they have been forced to stick to the letter of the law and empower the tribal Gram Sabha. By any counts it is a fantastic judgment that all of us working in tribal areas can use to increase our power and ensure justice for the tribals.