Final push

Jairam Ramesh's final clearance to the POSCO project in Orissa, despite evidence of its illegality, causes outrage in civil society.

in New Delhi

ON May 2, Union Minister for Environment and Forests Jairam Ramesh accorded final approval to the Orissa government for the diversion of 1,253 hectares of forest land in favour of Pohang Steel Company (POSCO). Defending his decision, Jairam Ramesh said in a press release: I believe as Minister my responsibility is not just to do the right thing, but do the thing right. However, a close examination of the reasons cited by him for his decision and the facts makes one wonder whether he had, as claimed by him, upheld due process while taking this momentous decision.

The Orissa government and POSCO signed a memorandum of understanding (MoU) on June 22, 2005, to set up an integrated steel plant with a total capacity of 12 million tonnes per annum (with four million tonnes in the first phase) at Paradip in Jagatsinghpur district. The proposed project included a captive power plant and a captive minor port. The entire project complex requires about 1,621 hectares of land, of which about 1,253 hectares is forest land.

On January 31 this year, Jairam Ramesh accorded environmental clearance (EC) for the steel-cum-captive power plant, with 28 additional conditions over and above those stipulated in the original EC granted on July 19, 2007. He also accorded EC for the captive minor port, with 32 additional conditions over and above those stipulated in the original EC granted on May 15, 2007.

However, the grant of forest clearance for the project was left pending in view of the claims of those dependent on or cultivating land in the POSCO project area that their rights would be violated under the Forest Rights Act, 2006, (FRA) if forest diversion took place. The POSCO project site is far away from the nearest Fifth Schedule Area. The Fifth Schedule of the Constitution deals with the administration and control of scheduled areas and Scheduled Tribes in these areas. The Fifth Schedule is a guarantee to indigenous people on the right over the land they live in. The Constitution itself identifies the Fifth Schedule areas in nine States, including Orissa.

However, under the FRA, non-tribal people have to fulfil three conditions before their claims as Other Traditional Forest Dwellers (OTFD) can be recognised. These are

a. They should have primarily resided in the forest over 75 years prior to the 13th day of December 2005;

b. They should be at present dependent on the forest or forest land for bona fide livelihood needs; and

c. They should have been in occupation of the forest land before the 13th day of December, 2005.

Non-tribal people who meet the above three conditions constitute OTFDs regardless of whether they file any individual claim for land or not. To rule out that there are legally tenable claims of non-tribal people wanting recognition as OTFDs, Jairam Ramesh asked the Orissa government to give a categorical assurance to the MoEF that at least one of the above three conditions was not fulfilled in the case of those claiming to be dependent on or cultivating land in the POSCO project area.

Palli sabha resolutions

On April 13, the Orissa government communicated this categorical assurance to the Ministry of Environment and Forests (MoEF). Jairam Ramesh accepted this assurance even though two committees, one headed by N.C. Saxena, a former member of the Planning Commission, and the other a four-member Enquiry Committee chaired by Meena Gupta, former Secretary in the MoEF, had concluded that there were both OTFDs and forest-dwelling Scheduled Tribes in the project area. On April 14, Jairam Ramesh referred the matter back to the State government because of two supposed palli sabha resolutions, which he had received from the POSCO Pratirodha Sangram Samiti (PPSS), a non-governmental organisation that has been opposing the project, on behalf of the affected people.

The POSCO project area comprises seven villages, namely, Dhinkia, Gobindpur, Nuagaon, Polanga, Bhuyanpal, Bayanalakandha and Noliasahi. The project area also includes a part of the reserve forest area of Jatadhar village.

Dhinkia and Gobindpur villages passed the palli sabha resolutions on February 21 and February 23 respectively. The resolutions stated that the people of the project area were eligible to be treated as OTFDs, that they enjoyed both individual and community rights under the FRA, and that they refused consent to the proposed diversion of forest land for the POSCO project. The palli sabha is the meeting of the electorate of a revenue village in Orissa. Certificates from the palli sabha that it consented to the diversion of forest land and stating that the FRA has been implemented are required under the law.

In its reply to the MoEF on April 29, the Orissa government described these resolutions as illegal. The State government contended that out of a total of 3,445 voters of Dhinkia, only 69 persons had signed the palli sabha resolution of February 21, 2011, and of 1,907 voters of Gobindpur, only 64 persons had signed the palli sabha resolution of February 23, 2011.

The State government rejected the resolutions as invalid for lack of quorum to make them binding. According to Rule 4(2) of the Forest Rights Rules, 2007, the quorum of the gram sabha meeting shall not be less than two-thirds of all members of the gram sabha. Jairam Ramesh concurred with the State government that the number of members who signed the resolution was far lower than the quorum.

He also pointed out that under Rule 3(1) of the Forest Rights Rules, 2007, gram sabhas should be convened by the gram panchayat, whereas in this case these seemed to have been convened by the sarpanch without the authority of the gram panchayat. Rule 20)(a) of the Orissa Grama Panchayat Rules, 1968, also authorises only the gram panchayat to convene the palli sabha.

The State government also claimed that the two resolutions purported to have been passed by the palli sabhas were not available in the book (recorded by the gram panchayat secretary and signed by the sarpanch) and were, therefore, fake. Jairam Ramesh concurred with this contention as in his view, under Rule 26 of the Orissa Grama Panchayat Rules, the proceedings of the palli sabha should be recorded in a book specially maintained for the purpose.

Jairam Ramesh acknowledged that he had three options first, seek further legal opinion on what the State government had stated; secondly, institute an independent inquiry into the claims and counter-claims made by the State government and the PPSS; and thirdly, repose trust in what the State government had stated so categorically.

Jairam Ramesh rejected the first two options and adopted the third one because he felt that the primary responsibility for implementing the FRA was that of the State government through the institutions of the gram sabha, the Sub-Divisional Officer (SDO) and the District Collector. I must respect the reports from the SDO and the Collector. Their views and also of the State government must prevail unless there is overwhelming and clinching evidence to the contrary, he said in his press release.

He justified his stand, notwithstanding the fact that the State government had been actively canvassing for the project. He added: Faith and trust in what the State government says is an essential pillar of cooperative federalism, which is why I rejected the second option. Beyond a point, the bona fides of a democratically elected State government cannot always be questioned by the Centre.

He, therefore, concluded that there had been no legally valid resolution of the gram sabha claiming recognition of forest rights as required under Section 6(1) of the FRA. To him, the facts of the case, in particular the lack of signatures of two-thirds of the adult population of the village on the resolution passed by the sarpanch, were too obvious to require any further inquiry or verification.

Contesting claims

But the PPSS contested these claims in its letter to Jairam Ramesh on May 2. Curiously, Jairam Ramesh attached a copy of this letter to his press release on May 2, but avoided any comment on it. In this letter, the PPSS has alleged that the Orissa government lied about the palli sabha resolutions. The State government claimed that there were only 69 and 64 signatures respectively on the resolutions, but the hard copies of the full resolutions with more than 70 per cent quorum in both Dhinkia and Gobindpur were sent by registered post acknowledgment due to the Orissa government and to the MoEF.

The PPSS has alleged that the Orissa government used the scanned electronic copies of the resolution, whose covering letter stated that only the first page carrying the signatures was being included. It is inexplicable why Jairam Ramesh ignored the hard copies of the resolutions, which could have helped to establish the veracity of the PPSS' claims.

Besides, in his press release, Jairam Ramesh is silent about the PPSS' claim that the Orissa government is required to submit palli sabha certificates for forest diversion in favour of POSCO and that it has not done so. The PPSS has urged Jairam Ramesh to ask the State government to call a palli sabha on this issue in the presence of neutral observers from the State and Central governments and from civil society to certify that it took place according to law.

Inconsistencies

Jairam Ramesh's May 2 press release has other inconsistencies too. He reveals that he was deeply uncomfortable with the original POSCO MoU (it has since expired), which had provisions for the export of iron ore, and he says he hopes that the new MoU will be negotiated by the State government in such a way that exports of iron ore are completely avoided. He also adds that he could well have waited for the MoU to be renewed and for a final decision of the Supreme Court, which is hearing an appeal on the decision of the Orissa High Court cancelling the Orissa government's allotment of out-of-turn (ignoring over 200 applicants waiting for long) and large iron ore mining permits benefiting POSCO. He, however, did not do so because he felt it would have amounted to filibustering.

Leo F. Saldanha, coordinator, Environment Support Group, Bangalore, has asked whether Jairam Ramesh respected the State government more than the Supreme Court and what the urgency was to accord the diversion of forest area in the absence of sufficient legal support, that is, an MoU.

On the question of the palli sabha resolutions, Jairam Ramesh appears unsure of his position even after agreeing with the State government's view that they are illegal. In paragraph 16 of his press release carrying his speaking order, he expects the State government to pursue action immediately under the Orissa Grama Panchayat Act, 1964, against the sarpanch of Dhinkia for what it has categorically said are fraudulent acts in calling the meeting of the palli sabha. If no action is taken forthwith, he believes that the State government's arguments will be called into serious question. Why did he not wait for the State government first to take action against the sarpanch before rushing to take the decision?

Jairam Ramesh is proud of the fact that the 60 conditions imposed as part of his decision of January 31, 2011, will ensure that the project will not be detrimental from the ecological and local livelihoods points of view. However, critics such as Saldanha consider the setting of these conditions as mere window dressing, relying largely on the rhetorical commitment from the investor to safeguard peoples' rights and the environment. According to Saldanha, the experience in India has been that such conditions are rarely complied with and violations are hardly punished. As many of these additional conditions articulate the need for thorough assessments and comprehensive studies into environmental and social impact of the project, critics wonder whether the MoEF's earlier clearances were accorded without any relevant material.