To
Smt Droupadi Murmu
President of India
Rashtrapati Bhawan
Respected Rashtrapati Ji,
Subject:- Mega Infrastructure Project in Great Nicobar Island- Need to consult the ShomPens and Nicobarese- Legal lacunae in clearances
I refer to my earlier letter dated 29-1-2023 addressed to the office of Rahtrapatiji (readily accessible at https://countercurrents.org/2023/01/mega-infrastructure-project-in-great-nicobar-island-would-be-violative-of-the-constitutional-mandate-and-adversely-impact-the-lives-of-the-local-tribals/) about a Mega Infrastructure project being taken up in Great Nicobar Island.
I further refer to my two letters dated 27-11-2022 & 8-4-2023 on the subject addressed to the National Commission for the Scheduled Tribes (NCST) [they can be accessed at https://countercurrents.org/2023/04/great-nicobar-island-a-mega-infrastructure-project-cleared-by-ministry-of-environment-without-prior-consultation-with-the-ncst-2/]
There are two tribal communities, small in number, resident in Greater Nicobar Island, the ShomPens and the Nicobarese. The ShomPens are recognised as a Particularly Vulnerable Tribe (PVTG) requiring special measures to safeguard their interests.
The ShomPens have not been adequately studied yet, since they are largely confined to their forest habitat. The ShomPen habitat in Great Nicobar Island is an important biological hotspot. The Anthropological Survey of India (AnSI) has attempted a conceptual framework for laying out a comprehensive policy for promoting the well-being of the ShomPens and it needs to be further followed up (https://ncst.nic.in/sites/default/files/2017/Seminar/Amit_Delhi_Presentation_on_Shompen_NCST_Seminar_June_2018.pdf). The mega project in question will preempt any attempt to translate the ideas of AnSI into tangible action, to the detriment of the interests of the tribe.
Regarding the statutory safeguards applicable to the islands, the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956 (PAT56) governs the same. This was a Regulation promulgated under Article 240 of the Constitution. Regulation 11 of this reads as follows:
“The provisions of this Regulation and of any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law, or in any usage or agreement, or in any decree or order of any court or other authority”
This implies that the 1956 Regulation has an overriding effect over the laws applicable elsewhere. Strictly, laws such as the Mines & Minerals (Development & Regulation) Act, 1957 (MMDRA), Forest (Conservation) Act (FCA), 1980 and the Environment (Protection) Act, 1986 (EPA) are not automatically applicable to A&N Islands, where PAT is in force and Regulation 11 provides it with an overriding effect.
It is therefore prima facie violative of PAT56 for MEFCC to have summarily issued clearances for this project, either under the EPA or the FCA.
In all matters that have a likely impact on the tribals, the NCST, constituted under Article 338A, needs to be mandatorily consulted by the government, as required under Article 338A(9) [“The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes”]. To the best of my knowledge, no such consultation has been held so far with The NCST.
In addition, under Article 338A, the NCST has also the authority “to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under [the] Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes; to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State”
Considering that the project involves an investment of around Rs 75,000 Crores, it would lead to a huge influx of outsiders, whose presence would impact the Tribal Reserve and hurt the interests of the local tribal groups. According to one estimate (https://scroll.in/article/1038263/planned-destruction-of-adivasi-culture-and-lives-experts-raise-alarm-over-great-nicobar-project), “the project seeks to increase the population of the ecologically-sensitive island from the current 8,000 to more than 3.5 lakhs in the next three decades. This is an increase of over 4000%. It is only marginally less than the entire population of the Andaman and Nicobar islands, which was 3.8 lakh as per the 2011 Census“. Great Nicobar Island with a UNESCO recognised large Biosphere of an extent of 73279 ha and a Tribal Reserve of 75100 ha cannot obviously carry such a population load without affecting the biosphere and without affecting the tribal communities.
In the normal course, Niti Ayog, which conceptualised the project and MEFCC, which cleared it, ought to have consulted the Anthropological Survey of India (AnSI) to understand the implications of the project for the local tribal communities but no such consultation has apparently been attempted.
On a petition filed by an NGO before the National Green Tribunal (NGT), the Tribunal pronounced an order on 3-4-2023 (Appeal Nos. 29 to 31/2022/EZ) with the observation, “There are some unanswered deficiencies pointed out by the appellants which need to be addressed,…..Tribal rights and their rehabilitation has to be ensured“. The NGT for this purpose has constituted a committee to be headed by the MEFCC with representation from different concerned agencies. As per the wording of the NGT order, there appears to be no representation from the Ministry of Tribal Affairs nor any representation from the Anthropological Survey of India, which has made a preliminary study of the tribal groups in the islands.
Moreover, the NGT’s ambit is confined to the environmental concerns, whereas the larger issues of the legal infirmities that exist in the way clearances are given for the project, the likely adverse impact of the project on the lives of the ShomPens and the Nicobarese and the fact that the project endangers the rights of the tribals under Article 21 of the Constitution remain unaddressed.
An example of how hurriedly the Ministry of Environment had cleared the project may be discerned from the way it tried to fulfil the “compensatory afforestation” condition laid down by the Hon’ble Supreme Court in the well-known Godavarman case, by identifying land in Haryana and other States, located thousands of miles away from the Great Nicobar Islands. How can raising trees in far-off places compensate the ShomPens and the Nicobarese for the intrusion and loss of their forest habitat?
Had the MEFCC consulted the NCST, the Union Ministry of Tribal Affairs and eminent anthropologists who have studied both these tribes beforehand, it would have appreciated the legal and anthropological implications adequately.
Under Article 19, the tribals of Greater Nicobar Islands are entitled to know the details of the project and the implication from their point of view. The Andaman administration had earlier said that the Tribal Council of Greater Nicobar Islands had no objection to the project, apparently without taking the Tribal Council in full confidence. According to a recent report ( https://www.hindustantimes.com/india-news/controversy-surrounds-great-nicobar-township-project-as-tribal-council-withdraws-noc-for-land-diversion-documents-suggest-101681407749046.html0), the Tribal Council has since withdrawn its “no ejection” to the project.
A “no objection” to such a huge project, involving several legal lacunae and loss of forest habitat for the tribals cannot be treated in a routine manner. In a case [WP(C) No. 180/2011. relating to bauxite mining in a tribal habitat in Odisha], the Hon’ble Supreme Court, instead of relying on such a routine assurance from the local administration, ordered on 18-4-2023, the convening of Gram Sabha meetings in eleven tribal villages in the presence of a member of the judiciary to ascertain the genuine feelings of the tribals. A similar intervention may have to be made in this case also.
The Constitution confers special responsibilities on the high offices of the President and the Governor of State to exercise oversight on administration in the tribal areas. Given this, I believe that, since both the ShomPens and the Nicobarese are small in number, facing threats of intrusion from outsiders, it is perhaps desirable for your office to intervene and seek the considered view of the NCST in the matter.
It is also for consideration for your office to make a special reference to the Hon’ble Supreme Court for advice on the legal aspects and, if necessary, a suo moto intervention to ensure that the Constitutional rights of the tribals are fully protected.
While the government may have compelling arguments on the project from the national security point of view, the Constitution has conferred special protective provisions for the tribals, which in my view are inviolable.
Respectfully,
E A S Sarma
Former Secretary to the Government of India
& Former Commissioner (Tribal Welfare) in erstwhile Govt of AP
Visakhapatnam
