Legal reasoning in the Vedanta report

‘There’s no emotion, no politics, no prejudice’, Environment and Forests Minister Jairam Ramesh was quoted as saying last Tuesday, when he announced the rejection of Vedanta’s application to mine for bauxite in the Niyamgiri Hills.  ‘I have taken this decision purely on a legal approach – laws are being violated’.  Ramesh’s decision was made in response to a report commissioned by the Ministry which accuses Vedanta and the Orissa state government of numerous breaches of environmental laws and the legal rights of the Dongria Kondh tribal people.  Given the unquestionably high political and monetary stakes, the episode has been argued to be a vindication of the rule of law in India.  And it may be so.  There is, however, reason for concern about the legal reasoning behind one of the report’s key claims.

The claim is that the full, informed consent of the Gram Sabhas of any affected tribal peoples is required under the Forest Rights Act, 2006 for any proposal to divert forest land for mining.  The claim, made repeatedly and without qualification (see p. 44–56), is surely dispositive of the whole controversy: given that such consent is obviously not forthcoming, the Vendanta proposal cannot go ahead.  The problem is that it is by no means clear that the FRA requires such consent and so the report gives the unfortunate impression of playing a little fast and loose with the law.

According to the Forest (Conservation) Act, 1980, the diversion of land for non-forest purposes is prohibited except with the prior approval of the Central Government.  The report claims that because of the Forest Rights Act, 2006, which confers certain rights and duties on tribal peoples like the Dongria Kondh, any proposed diversion requires the consent of their Gram Sabhas.

At one point (p. 52), the report claims that section 4(5) of the FRA expressly requires ‘community consent’:

According to section 4(5) of FRA, there can be no removal or eviction from forest land unless the tribal rights under FRA have been recognized and the verification procedure is complete; and the community consent after following due procedures is obtained in writing.

This is misleading.  Section 4(5), quoted below, says nothing about consent:

(5) Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.

At another point (p. 44), the report claims that the Act confers a general right of refusal against development projects:

… the Act clearly recognized that free, informed, prior consent of the communities is essential in governing these eco-systems and therefore laid out clear and transparent administrative procedures for obtaining this consent. In framing the issue of consent, the Act clearly indicates that the community had the rights of refusal, if the proposed development project was injurious to their well-being.

This, again, is misleading, though less so.  Section 3(2) of the FRA expressly requires the consent of Gram Sabhas for small-scale development projects for the benefit of villages themselves, but is silent on other kinds of projects:

3(2) Notwithstanding anything contained in the Forest (Conservation) Act, 1980, the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:-

(a) schools;

(b) dispensary or hospital;

(c) anganwadis; …

Provided that such diversion of forest land shall be allowed only if,-

(i) the forest land to be diverted for the purposes mentioned in this sub-section is less than one hectare in each case; and

(ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.

At another point, the report claims that the requirement of consent is implied from the responsibilities bestowed by the FRA on Gram Sabhas:

Section 5 of the FRA empowers the right holders to protect the wildlife, forest and biodiversity of Niyamgiri hill top and surrounding areas by constitution of committees for the protection of wildlife, forest and biodiversity in the villages through Gram Sabhas as required by Rule 4 (e). This also places a duty on the State to seek their informed consent before permitting any diversion of the forest land under Forest Conservation Act (FCA) (as also already required by [Ministry of Environment and Forests’] August 3, 2009 order).

Put aside the reference to the Ministerial order for a moment.  It is not self-evident that the statutory empowerment of Gram Sabhas to protect wildlife and so forth means that their informed consent is required for diversions of forest land – why, for instance, do Gram Sabhas enjoy more than a duty to be consulted?  The same gap in reasoning is demonstrated elsewhere in the report (at p. 56) where the requirement of consent is ‘automatically’ implied from the rights conferred by the FRA:

Rights such as the right to habitat, and the right to conserve, protect and manage community forest resources, automatically imply that the consent of the community is required prior to authorizing any damage or destruction of their habitat or community forest resource. Without this, such rights would obviously have no meaning.

The Ministerial order of August 3, 2009 referred to above is equivocal on the point.  The order (annexed to this document) says that proposals for diversions under the 1980 Act must be accompanied by, among other things:

… (c) A letter from each of the concerned Gram Sabhas, indicating that all formalities/processes under the FRA have been carried out, and that they have given their consent to the proposed diversion and the compensatory and ameliorative measures if any, having understood the purposes and details of proposed diversion.

… (f) Obtain the written consent or rejection of the Gram Sabha to the proposal.

Clause (c) seems to support the report’s claim; clause (f) points in the other direction.

This is not to say that an argument cannot be made that the FRA implies the requirement of Gram Sabha consent.  Section 4(2) provides that rights under the FRA may be modified or resettled in order to create inviolate areas for wildlife conservation, but only on the condition (among others) that:

(e) the free informed consent of the Gram Sabhas in the areas concerned to the proposed resettlement and to the [resettlement or alternatives] package has been obtained in writing.

If such consent is required for diversions of forest land for such a compelling societal interest as wildlife conservation, it could be argued that consent must also be required for diversions in the interest of economic development.

The point of all of this is not that the decision by the Minister was necessarily wrong; the report makes plenty of other allegations of illegality that have not been examined here.  The point, simply, is that a report commissioned by the GoI on a subject of this sensitivity must engage more seriously with the law on its own terms if a Minister’s decision is to be ‘purely on a legal approach’.