Times of India, Feb 11, 2011
Both are mining projects in Orissa and both involve diversion of forest land for non-forest purposes. So how could environment and forests minister Jairam Ramesh allow forest diversion in Posco's case last fortnight after he had done just the opposite in Vedanta's five months earlier?
The contrast has a lot to do with jurisdictional violations where one entity strayed into the domain of another for clearing the mining projects.
In Vedanta's case, the trespasser was the Supreme Court itself. While dealing with a challenge to the alumina refinery set up by the UK-based company in Lanjigarh, the Supreme Court granted forest diversion clearance to the bauxite mining project on the nearby Niyamgiri hills from where the refinery was proposed to get its raw material.
The Supreme Court's order flew in the face of the Forest Conservation Act, under which it was the Central government alone that was competent to assess the merits of the proposal to divert forest land for non-forest purpose and decide whether to grant clearance for the project concerned.
The Supreme Court, strictly speaking, could have intervened only after the government had exercised its discretion one way or the other, that too in the event of a challenge to the executive decision. But since the apex court jumped the gun in the Vedanta case, it resulted in the unusual situation in which the government actually overruled the Supreme Court's clearance.
Before crossing the Rubicon, Jairam Ramesh had consulted attorney-general Goolam E Vahanvati who was reduced to saying that the Supreme Court's clearance did not get in the way of the government's statutory power to take a call on the Vedanta project. Accordingly, Ramesh refused forest diversion on Niyamgiri in August 2010 on the basis of a range of violations found by an expert committed headed by N C Saxena. A crucial part of the evidence considered against the bauxite mining project was the adverse effect it would have had on the only habitat of Dongaria Kondhs, who are officially classified as a "primitive tribal group". Across the world, protests were held against the sacrilege on the "mystical" mountain worshipped as a deity by the tribes.
There is no such tribal angle to the Posco proposal of diverting 1,253 hectares of forest land for the purpose of mining iron ore as part of an integrated steel plant, which is hailed as the largest foreign direct investment (FDI) anywhere in the country.
This is despite the fact that the Meena Gupta Committee set up by Ramesh to examine all issues related to the diversion of forest for Posco came up with conflicting findings on whether it violated the statutory rights of forest dwellers.
The issue in contention was not whether any tribal groups resided in the Posco-acquired forest land and therefore came under the protection of the Forest Rights Act (FRA). Rather, it was about another category of people protected by FRA called "other traditional forest dwellers" (OTFD).
The Gupta Committee was divided on whether any of the non-tribal residents of the affected forest qualified to fall in the category of OTFD. Anybody claiming to belong to the OTFD category will have to fulfill three prescribed criteria:
* They should have primarily resided in the forest for at least 75 years prior to December 2005.
* They should at present be dependent on the forest or forest land for bona fide livelihood needs.
* They should have been in occupation of forest land in December 2005.
So, when Ramesh granted clearance to Posco on January 31, it was subject, among other conditions, to a "categorical assurance" from the Orissa government that at least one of the three criteria was not fulfilled by those claiming to be dependent on the land in the project area.
Whether such an assurance from Orissa can be relied upon or not, Ramesh himself is vulnerable to the charge of usurping the authority of the relatively low profile ministry of tribal affairs. Since it is the nodal agency for FRA, Ramesh should have left the issue of enforcement of that law to the tribal affairs ministry. He had empowered himself to monitor the compliance of FRA by issuing a self-serving circular in July 2009. Thus, if the Supreme Court had overreached itself in the Vedanta case, the environment ministry committed the same jurisdictional lapse in the Posco case.
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