161© The Author(s) 2016K.B. Nielsen, A.G. Nilsen (eds.), Social Movements and the State in India, DOI 10.1057/978-1-137-59133-3_8

CHAPTER 8

Rights-Based Legislation in Practice: A View from Southern Orissa

Minati   Dash

M. Dash ( ) Mayur Vihar, Phase-1, 156-E, Pocket 4 , New Delhi 110091 , India

In recent years, rights-based legislation has emerged as a critical site of contestation for communities struggling against dispossession and claim-ing their rights to land and forests (see Nielsen and Nilsen 2014 ; Kumar and Kerr 2012). In response to the increasing violation of the legal rights of the rural poor by powerful actors, the judicialisation of politics—that is, the increasing reliance on the courts and judicial means for address-ing questions of livelihood and fundamental rights—has emerged as a signifi cant phenomenon (see Randeria 2007). Comaroff and Comaroff ( 2006 : 26) rightly argue that with the emergence of this new form of mobilisation, “politics itself is migrating to the courts”. This new terrain of engagement has variously been labelled “lawfare” (Sundar 2009 : 3) or “law struggles” (Sundar 2011 : 188), and involves contention over law and the attempts of ordinary people to defi ne the rule of law, and ensure that the laws are observed. In doing so, the rural communities often operate according to the logics of what O’Brien and Li ( 2006 ) have called “right-ful resistance”—that is, a form of contentious politics that operates near the boundary of authorised channels and appeals to elites’ commitment to laws and policies.

In this chapter, I consider the engagement of rural communities with two of the foremost acts—the Panchayati Raj (Extension to Scheduled Areas) Act, 1996 (PESA), and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)—in their fi ght against mining companies in Orissa. Both PESA and FRA are con-sidered path-breaking rights-based acts, in terms of upholding traditional land and forest rights of the Adivasi communities (Mondikota 2010 ; Equations 2007 ). Broadly, I look at the functioning of these acts in Orissa where large-scale mining leases to private and corporate actors are central to the government’s development agenda (Padel and Das 2010 ). 1

In this chapter, I focus on two of the strongest anti-mining movements in Orissa since the 1990s with the following questions in mind: what dis-courses and outcomes are generated on the ground as a result of rights- based mobilisation by social movements? How do activists conceive of the role of legal infrastructure in resistance against dispossession? What ten-sions and limitations inform the operation of these laws in the context of states that are dependent on mining? The chapter suggests that in com-parison to PESA, which should be seen as a broadly defi ning constitutional rights framework in the Scheduled Areas, the FRA ushers in a potentially far more powerful and accountable regime of rights—a veritable “new rights agenda” (Ruparelia 2013 ) that both state authorities and corporate forces driving industrial projects fi nd hard to ignore. In the process, the possible stakes of communities in relation to these laws are also raised. I will show that such laws and rights remain very potent instruments in the hands of rural communities as they engage in claims-making and rightful resis-tance. At the same time, I suggest that the operation of these laws on the ground triggers a number of tensions. For example, government authori-ties often fi nd themselves responsible for implementing laws that restrict their powers of eminent domain at the same time as they are making efforts to scuttle such laws; social movements might experience that their ability to use legal infrastructures to protect their rights runs into limitations; and rights-based legislation might come to be moulded by extra-legal factors.

MINERAL DEPENDENT STATES, PEOPLES’ RESISTANCE AND RIGHTS-BASED LEGISLATION

It is important to mention that the three Adivasi-dominated states of Orissa, Chhattisgarh and Jharkhand account for 70 per cent of the coun-try’s coal reserves, 80 per cent of its high-grade iron ore, 60 per cent of

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its bauxite and almost all of its chromite reserves (Sixth Citizen’s Report 2008). The process of liberalisation that started in India in the early 1990s—and the antecedents of which can be traced as far back as to the Green Revolution of the late 1960s (see R. Desai, this volume)—has made Orissa potentially the most attractive destination for large capital-intensive projects by private fi rms in the mineral sector (Mishra 2010 ).

Orissa alone contains nearly a quarter of India’s mineral wealth, includ-ing over 55 per cent of its bauxite and 95 per cent of chromium. 2 Reforms in the mining sector in Orissa began in the 1990s in line with the open-ing of the mining sector for foreign and private players with the National Mineral Policy, 1993. Consequently, Orissa’s share in the total value of minerals produced in India has gone up from 4.2 per cent in 1994–1995 to 15.7 per cent in 2006–2007 (Mishra 2010 ). In a big leap, the percent-age of state gross domestic product derived from mining, quarrying and mineral-based manufacturing has more than doubled from 1991–1992 to 2010–2011—from 16.74 per cent to 34.35 per cent (Odisha Economic Survey 2014–2015). 3 The state’s ambition to garner investment in min-ing and metal industries has also led to a private investment boom with “private investments under implementation in Orissa (at about USD 125 billion) (at) almost three times the annual gross state domestic prices (of the state)” (World Bank Report 2008 : 3). Indeed, economic growth in Orissa has been led by expansion in the mining sector, particularly after 2002–2003 (Database in World Bank Document 2008 : 17) resulting in what has been called “mega mining” (Mishra 2010 ). Mining projects and metal industries remain crucial to the state’s development agenda (World Bank Report 2008 ).

As per offi cial records, massive development projects led by mining–industrial projects have displaced over 81,176 families between 1950 and 1993  in Orissa (Jena 2006 ). This fi gure is contested by activists who have suggested that the numbers of displaced due to these projects could be more than two million (Jena 2006 ; Pattnaik 2006 ). In this con-text, commentators have rightly noted that, in the last 20 years, virtu-ally all of Orissa, including Kashipur in Rayagada, Gopalpur in Ganjam, Dhinkia in Jagatsinghpur, Lanjigarh in Kalahandi, Lower Suktel area in Balangir, Kotagarh in Phulbani, the mining–industrial belt in Jharsuguda, Kalinganagar and now Rourkela, has turned into a battleground on the issue of development and displacement (see Mishra 2011 ). The opposition of local communities that has led to the stalling or stoppage of projects has resulted in the loss of over INR 166.72 billion in the mining sector

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(Das  2015 ). Indeed, as investments in development projects increase, there is also corresponding widespread grassroots resistance to mining and other large-scale industrial projects that threaten to displace communities and destroy their environments (Kumar 2014 ; Mishra and Mishra 2014 ; Padel and Das 2010 ).

The vehement and growing opposition of rural subaltern communi-ties against massive land alienation has coincided with the passage of acts such as PESA and FRA. However, the presence of these laws has not prevented large-scale land alienation. On the contrary, since the implementation of these laws, the rate of land alienation has actually accelerated in Orissa. Since 2006—the year FRA was implemented—close to 12,000 hectares of forest land have been diverted in the state for mining and refi ning infrastructure as the rate of mining–industrial development has increased (Business Standard 2012 ). This implies that the enactment of laws in itself does not necessarily halt land alienation; laws safeguarding subaltern rights over resources are not always imple-mented, and as a result their property rights are denied in favour of the doctrine of eminent domain, which gives absolute rights to the state to acquire land and its resources (see Ramanathan 2009 ; Singh 1986 ; Sundar 2011 ). This has to be taken into account when we consider the ways in which rights-based legislation such as PESA and the FRA have been invoked and used by communities in their fi ght against develop-ment–industrial projects.

PESA AND FRA: THE JOURNEYS OF TWO INTERRELATED ACTS

In India, PESA is the fi rst legal provision to provide a constitutional frame-work for self-governance in Adivasi areas—or, as they are also known, the Scheduled Areas identifi ed under the Fifth Schedule of the Constitution. The Fifth Schedule deals with the administration and control of the scheduled areas and scheduled tribes in these areas. It covers Adivasi areas in nine states including Orissa. It is conceived as “a clear statement of Fundamental Rights of tribals” (Padel and Das 2010 : 117) that grants rights of self-governance to the gram sabha (all adults of the village) in these Adivasi areas. Dandekar and Choudhury ( 2010 ) have called PESA a “Constitution within the Constitution” in the sense that it recognises the customary rights of Adivasi communities and the formal system of

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the state as governed by rule of law within a single, non-discriminating framework. It gives power of mandatory consultation to the gram sabha and panchayats (village councils) in matters of land acquisition, as well as the power to prevent the alienation of land. It also mandates conformity of these laws with the customary law, social and religious practices and man-agement practices of community resources, including traditional rights to commons. 4 Orissa adopted PESA in the same year as it was introduced at the national level. However, in the process of adopting PESA, the state government completely overlooked the key provisions of the Act as we shall see in the subsequent sections.

If we now turn our attention to FRA, we encounter a law that pres-ents us with clear evidence of how people’s movements can participate in and push the legislative process (Kumar and Kerr 2012; Sundar 2011 ). Although the resultant outcome might not have been strictly in accor-dance with what the social movements that were engaged in the pro-cess had aimed and hoped for, its symbolic gains are nevertheless hugely important in terms of establishing a new discourse of rights (Sundar 2011 ) and creating new political imaginaries that arouse deep popular attach-ments (Ruparelia 2013 ).

In the words of the former Prime Minister of India Manmohan Singh, the FRA was intended to address the “historical injustice to the forest dwelling Scheduled Tribes” by recognising and vesting the forest rights and occupation of forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers. This Act not only recognises the rights to hold and live on forestland under individual or common occupation, for habitation or for self-cultivation for livelihood, but also grants several other rights in order to ensure Adivasi control over forest resources—for example, the right of ownership of minor forest produce; commu-nity rights such as nistar 5 ; habitat rights for primitive tribal groups and pre-agricultural communities; right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use. Moreover, the FRA gives a central role to the gram sabha , vesting powers in it to veto diversion of forestland for any development work.

One of the key differences between PESA and FRA in Orissa is that whereas PESA gives powers to the zila parishad (district council, third tier of the Panchayati Raj system)—thus diluting the spirit of the Act—the FRA vests power at the level of the gram sabha and its Forest Rights Committee

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(FRC), which is constituted of 10 to 15 members of the village. As FRA claims have evidentiary basis in the form of record of individual titles and community forest rights, it has far greater litigation value. As noted above, PESA forms the fundamental framework from which the FRA draws both its legal and its moral strength as a correction to the historical injustices against the Scheduled Tribes and traditional forest dwelling communities. By drawing a comparison between the Kashipur movement that began in mid-1990s and the Niyamagiri movement that began in mid-2000s, I want to bring into focus how rights-based legislation—particularly the FRA—has ushered in a distinctive arithmetic of claims-making that has become a rallying point across many movements opposing mining–industrial proj-ects in Orissa. Whether it is the Tata steel project in Kalinganagar or the POSCO (Pohang Steel Company) project in Dhinkia (Jagatsinghpur), claims have been advanced by the local villagers under the FRA in their fi ght against the corporations, with varying rates of success. 6

Hence, in the next two sections, I provide detailed accounts of the move-ments against these two mining projects in which the resisting villagers advanced claims under PESA and the FRA, respectively. I give an account of how engagement with rights-based legislation results in different outcomes for the two movements. The fi rst case is that of a bauxite- mining project in Kashipur that was proposed in 1994, which coincides with the passage of PESA. PESA and its potentials generated immense enthusiasm among the resisting villagers, but the legislation did not cause governments or the judiciary to act in their favour. Kashipur is, then, illustrative of the limita-tions of rights-based legislation, yet at the same time demonstrates how engagement with such laws generates a rights-based discourse deepening subaltern notions of rights. In contrast, the mining project of Lanjhigarh in the Niyamagiri hills, which was proposed in 2003, presents us with a case in which the FRA claims prompted a high- level committee probe and Supreme Court intervention that aggressively defended the rights of the local villagers in the Niyamagiri areas. Together, these two struggles foreground the ten-sions between the government’s dependence on and corporate interest in mining as development on the one hand and the communities that oppose the dispossession that mining inevitably brings on the other. Consequently, the two case studies point at the limitations and possibilities of deepening democracy as rural communities draw on the vocabulary of legal rights to make their claims in the context of a dominant discourse that values probing resource frontiers in order to secure accumulation and growth.

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THE KASHIPUR MOVEMENT AND PESA In the mid-1990s, a consortium of three multinational mining compa-nies named Utkal Alumina International Limited (UAIL) began survey work in the villages of Kashipur in the Rayagada district in southern Orissa. The local communities including Adivasis (Scheduled Tribes) and Dalits (Scheduled Castes) vehemently opposed and prevented the survey work. The attempts of the state to give these lands to the min-ing company were challenged by the local villagers in the vocabulary of traditional rights to lands and hills. The villagers contested the claims of the state over their lands and hills and interpreted the efforts at land acquisition as morally wrong. 7

The villagers, led by the local political representatives (Member of Legislative Assembly), sought political mediation in the matter. They met various leaders of mainstream political parties of the state and centre several times in the hope of stopping the mining project. These efforts, according to the villagers, resulted only in empty promises from vari-ous political parties without corresponding results. From 1994 to 1996, the Corporate Social Responsibility (CSR) programmes of the min-ing company such as health camps and fertiliser and seeds distribution programmes were aggressively opposed by the villagers. Construction works related to the mining project, particularly in the refi nery site, were also targeted. Often, hundreds of villagers marched to these sites armed with traditional axes and hoes and brought down the structures. In early 1996 the Kashipur movement organised itself under the name of Prakrutika Sampada Suraksha Parishad (PSSP—Natural Resources Protection Council) to steer the movement. 8 Many leaders admitted that although the villagers spiritedly engaged in acts of confrontation with mining company offi cials and contractors, there was also an environment of uncertainty regarding the project. There was a growing feeling that the government was not sympathetic to their demands. This environ-ment became further exacerbated when many villages accepted the com-pensation they were offered for their acquired land. 9 During this period a series of regional consultations were held to generate awareness and seek feedback on the features of the proposed PESA draft. The leaders of the Kashipur movement attended one such meeting. Krushna Saunta, a prominent leader of the movement, noted to me how learning about PESA boosted their morale and reinforced their conviction to fi ght the

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company at a time when “everything before their eyes was getting dark” ( aanki aaga andhaar heu thila ) 10 :

Samatha and Agragamee (Civil Society Organisations) had taken us to Paderu (in Andhra Pradesh) for a meeting. B.D.  Sharma was present in this meeting. 11 Bhuria Committee recommendations were discussed in the meeting. 12 B.D. Sharma told us that the lands in Adivasi areas cannot be taken by anybody else. We were very happy that our lands would not be taken by the mining company. It brought courage back into our bodies…we felt encouraged in our resolve to oppose the company…as our rights to lands and forests were recognised by the government. Thus, we understood that our fi ght was legitimate…we were on the right path. 13

Upon their return from this meeting, the leaders spoke excitedly about PESA in village meetings. On the ground, PESA was interpreted as the government’s recognition of rights of Adivasis over their lands and hills. As PESA was implemented into law on 24 December 1996, the movement leaders considered this to be a victory for their ensuing fi ght. 14 In village meetings, leaders presented the mining project as “illegal” and against the new rules of the government that stated that Adivasis in scheduled areas had primary rights to their resources.

Throughout the period from 1996 to 1997, PSSP sent scores of letters and petitions to the various ministers (including the Prime Minister and the Chief Minister of Orissa) and central ministries (such as the Ministry of Mines and Ministry of Welfare) as well as senior administrative offi cials to draw attention to the violation of PESA and the forced land grab in Kashipur. In order to put across their voice with greater assertion, a wide group of local volunteers painstakingly conducted a village-wise referen-dum to seek community opinion over the UAIL project in 1998 across 40 villages with the help of Agragamee. In this survey, over 96 per cent of the people rejected the project. The results were publicised across the area and letters were sent to the administration at all levels to convey the “desire of the people” ( loka kona chahuchanti ) with respect to the UAIL project.

During this period, the landmark “Samatha Judgement” was also passed in July 1997 by the Supreme Court of India. 15 The Judgement given in the case against the state government’s granting of lease rights to a private com-pany to allow mining of the Borra reserved forest area in Vishakhapatnam in Andhra Pradesh declared that all lands leased to private mining companies in the Scheduled Areas are unconstitutional and therefore null and void. 16 The Judgement drew from the 73rd Amendment Act, 1992—that is, the Panchayati Raj Act of the Indian Constitution. 17 The Judgement gave the

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gram sabha in Scheduled Areas a key role in preventing the takeover of tribal land by non-Adivasis for any purpose. It is shocking that both at the state level and at the centre, efforts were made over a period to amend the Fifth Schedule to counter the adverse effect of the Samatha Judgement (Mathur 2013 ; Rebbapragada and Kalluri 2009 ). For instance in Orissa, the govern-ment constituted a state sub-committee under the Chief Minister in July 2003 that concluded that the Samata Judgement was not binding on the state as the state already had laws to protect the interests of the Adivasis in the state (Mathur 2013 ). In addition, blunting the strength of PESA, the Orissa government passed on the powers of the gram sabha to the  zila pari-shad while adapting PESA. In this manner, the state bypassed the rights of the Adivasi people to be consulted (Mathur 2013 ).

Although there was no concrete outcome of the PSSP’s engagement with PESA, locally in 1997–1998 marches and rallies were organised in Kashipur in which appeals were made to the government for a speedy implementation of both PESA and the Samatha Judgement. Asserting the right to self-governance, the movement erected roadblocks in many vil-lages to prevent the entry of outsiders into the area. The roadblocks were forcibly opened and the villagers were violently beaten up by the police. The response of the administration to the demands of implementation of PESA and the Samatha Judgement was nothing less than callous. On the ground, however, all efforts of the mining company to start work were foiled. It was not until 2006 that the company could start work in the area—following several rounds of severe police repression.

Returning to the genealogy of events, by 1998 most of the leaders of PSSP had lost hope in the power of PESA. This was fi rst refl ected in the reorientation of the movement’s action repertoire that shifted from petitioning the government to direct action and mass-based mobilisa-tion. Whereas letters continued to be written by the leaders to various administrative offi cers, ministers, ministries and departments, there was an increasing focus on strengthening and deepening the organisational work on the ground, and resorting to direct action as a key strategy of resistance. Krushna Saunta related this strategic shift to their failed attempts to gain from the implementation of PESA in the following way:

We tried several other ways, we told them (the company) to go away, we met the Chief Minister, we told the administration that we don’t want the company, we sent truckloads of petitions, we spoke about laws (PESA and Samata), but nobody heard us. Instead of leaving the area, the company scared our people and forced them to accept (compensation) money. Nothing…

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absolutely nothing changed on ground due to these laws. These laws were no more than lines on water. So, we took it in our hands. We mobilised more and more people. Whenever the company would do any work, our people would just go and destroy it; if people come into our area, we made them sign papers such that they do not come again. We began to do it after 1997–1998. We did not fear anybody, we were on the right side of the law. PESA and Samatha had given us the rights over our lands.

In the above section, one can clearly sense that the leaders became dis-gruntled after their initial enthusiasm with respect to PESA and the Samatha Judgement died down—primarily due to inaction on the ground. However, it is nevertheless interesting that although PESA was not useful in practice, it did generate a sense among the villagers of their “fi ght as rightful” ( nyay ra ladhai )—that is, that they were on the right side of the law. As Nielsen ( 2015 ) has noted, legal processes are time-consuming and their outcomes are uncertain, and activists therefore tend to downplay their value to movement processes. In this regard, it is also notable that the key activists of the Kashipur movement who entered the fray towards the later part of the 1990s and shaped the direction of the movement in many ways did not consider engaging in legal process due to the lack of resources and its time-consuming processes. 18

The strong local mobilisation and close engagement of some of the NGOs (which spoke against the company although they were not directly active in the movement) led to many successes for the Kashipur move-ment. In 1997–1998, local opposition compelled TISCO (Tata Iron and Steel Company) to announce its withdrawal from the project. Sustained resistance from the villagers and criticism from a civil society organisa-tion (Integrated Rural Development of Weaker Sections in India) led Norsk Hydro too to express uncertainty about continuing with the proj-ect. Ultimately, Norsk Hydro withdrew in 2001 following unprovoked police fi ring in which three Adivasi men were killed in Maikanch village. Soon, Indal-Alcan also announced that it had put the project “on ice”. 19 It appeared that the people had won.

However, in 2003–2004, there were fresh attempts to revive the proj-ect with a series of consultations in Rayagada where the administration insisted that neither the Samatha Judgement nor PESA applied to Orissa. 20 Following police repression and the company’s selective engagement with the local villagers from 2004 to 2005, the collective resistance shifted from active opposition to the company to collective negotiations over compensation rates and employment in the company, backed up by sit-in

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campaigns. These negotiations went on for a few years but the collec-tive resistance increasingly splintered and extensive relations of patronage developed between the company and local villagers across the project area. By early 2010, collective resistance had nearly collapsed and the company began to make signifi cant progress, both in the refi nery and in the mining site. At the time of writing this chapter, the opposition to the company is largely centred on seeking better terms of incorporation; the resistance of the past is now mainly a part of their collective memory. The lacking implementation of PESA clearly reveals the tension between the law and the state’s commitment to honour it and protect the project-affected com-munities. In the context of mining-dependent states, the tensions become more explicit, and refl ect at the same time how governments attempt to circumvent legal rights of the rural poor through executive orders or pass-ing laws at the state level that might violate the primary law itself, as in the case of PESA in Orissa, where the decisive powers of the gram sabha were passed to the zila parishad while adopting PESA.

At this point, I would like to turn towards the neighbouring Niyamagiri hills in Lanjhigarh in Kalahandi district where the FRA played a critical role in stopping the mining project. I want to specifi cally understand and analyse the role of the FRA in this case and what questions it raises regard-ing the complex nature of resource confl icts in the context of forest rights. The FRA was implemented ten years after the PESA Act and is considered to be far more effective in terms of upholding the rights of rural commu-nities. Therefore, the juxtaposition of the two movements as the journey of two acts can throw light on what has changed in the global and national scene since the unravelling of the Kashipur campaign—particularly in the context of law, indigenous rights and mining, and the tensions that affect the practice of these rights-based Acts.

NIYAMAGIRI HILLS AND THE FOREST RIGHTS ACT It is useful to start with an overview of the proposed mining project of Sterlite Industries (later known as Vedanta Resources and hereafter called Vedanta) in Niyamagiri hills in terms of struggles over law. The project was conceived in 2003 with plans to set up an alumina refi nery plant in Lanjhigarh area and mine the neighbouring Niyamagiri hills for bauxite. Since its conception the project was opposed by the villagers who resided in several hill villages. The administration tried to persuade the villagers to accept compensation for the “development” of Adivasi and the area. Soon

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after, in 2004, over four villages which were forced to accept compensa-tion were razed to the ground and the people were piled into trucks and transported to a nearby rehabilitation colony. Later, the land belonging to these four displaced villages became the site of the refi nery. 21

Meanwhile, most of the other villages vowed to neither accept com-pensation nor give up their homes and hills. But under immense pressure from the company that was giving them money and liquor and selling them dreams of doing well once the mining operations were to begin, the villages split into two broad camps—on the one hand those who accepted the company and on the other hand those who opposed it. In 2003, pub-lic hearings were organised for seeking clearance for the project from the MoEF (Ministry of Environment and Forest) and the OSPCB (Orissa State Pollution Control Board). In the fi rst hearing that took place in Lanjhigarh, the Dongria Adivasi from the villages that were to be affected by the project were not present. In the second hearing their opposition at the site of the hearing went unrecorded.

By 2004, activists from the Kashipur movement and other prominent activists from the state began to visit the area and mobilise the villages to resist the mining company that would dispossess them from their land and culture. The opposition of the villagers to the company was constant: they damaged the foundation stone of the refi nery, set fi re to company machines and went on oath marches to the neighbouring Lanjhigarh town to demonstrate their opposition. Throughout this period, activists were regularly beaten by company goondas . In 2005, one of the Niyamagiri movement leaders died under mysterious circumstances. At the same time, the construction work at the refi nery site continued at an accelerated rate.

In 2004, three writ petitions were fi led at the Cuttack High Court in Orissa and in the Supreme Court of India challenging the proposed min-ing lease on the grounds that it violated India’s constitutional provisions under the Fifth Schedule, the Supreme Court’s order on the Samatha case and the country’s environmental and forest conservation laws. 22 The Supreme Court set up a Central Empowered Committee (CEC) in 2005 to look into the matter. In the fi nal order in 2008, the Supreme Court granted clearance to the project. Subsequently, the MoEF also gave in- principle clearance to the diversion of some of the forestland for the proj-ect. However, a site inspection of the mine area undertaken on behalf of the Forest Advisory Committee of the MoEF in January–February 2010 found blatant violations of environmental laws—in particular, there were cases of non-compliance with the Forest Rights Act 2006 putting a span-ner in the wheels of the project (Saxena Committee Report 2010 ).

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Following this damning report, the MoEF revoked the forest clearance in August 2010. The environmental clearance was revoked in July 2011, thus effectively preventing Vedanta from mining the Niyamagiri hills. Vedanta closed its refi nery temporarily in October and December 2012 citing shortage of bauxite, but resumed work in July 2013 and has since been sourcing the bauxite from neighbouring Chhattisgarh and Andhra Pradesh (Dash 2015 ). The state government appealed in the Supreme Court to reverse the ban on mining. On 18 April 2013, the Supreme Court rejected the appeal and decreed that the local villagers would have the fi nal word in deciding if the company should be allowed to mine their hills or not. In the  gram sabha meetings conveyed in over 12 villages under the vigil of policemen who outnumbered the villages exponen-tially, all the villages rejected the mining plans with a resounding “no”. Eventually, in January 2014, the MoEF decided not to allow Vedanta to mine the Niyamagiri hills (Goswami and Mohanty 2014 ).

It is important to note that in contrast to the Kashipur movement, the Niyamagiri movement received sustained international civil society and media attention. This attention was crucially centred on Dongria indigene-ity: the tribal group was represented as being primitive and deeply attached to the Niyamagiri hills and with the Niyama raja—the deity of the moun-tain. The powerful symbolism of Survival International volunteers dressed and painted in blue as Na’avi characters from the 2009 Hollywood movie “Avatar” holding placards that read “Save the real Avatar tribe—Vedanta’s profi t, Dongria’s Destruction” cannot be overstated (Burke 2012 ; Hopkins 2010 ; Singh 2010 ; Variety 2010 ). Whereas the FRA became a key point in the Supreme Court judgement, there was also consideration of the rights of the rural communities as derived from PESA, pitched as customary rights to religion and culture, in this case their right to worship their god, the Niyama raja. In so doing, the judiciary accepted a relational notion of indigeneity—that is, a notion of indigeneity centred on the cultural rela-tionship between the Adivasis and their natural environment. In this sense, it acknowledged that a place—the Niyamagiri hills—is the “product of interaction rather than a thing” (Massey 2005 ). In expression of this vic-tory, the Adivasis and their civil society supporters organised a bijaya diwas (victory day) in the neighbouring town of Muniguda on 16 January 2014.

In Niyamagiri the activists of the movement consider FRA as one of the most important weapons that sealed the fate of Vedanta in the favour of the Adivasis. 23 In the recommendations of the NAC (National Advisory Committee) and the Supreme Court judgement, Niyamagiri hills thus rightly appear as a site in which FRA rights specifi cally, and the voice of the

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gram sabha , acquired power against one of the biggest and most powerful mining giants. The Supreme Court judgement, by giving the fi nal word on the company to the  gram sabha , and the eventual and unequivocal rejection of the company signalled a victory for the struggle of the villag-ers in Niyamagiri and indeed for other movements of rural communities fi ghting to assert their rights over land and forests.

One might have expected that the Supreme Court judgement and the eventual rejection of the project would have settled the case—at least till such time that the legal premise of the judgement became untenable or was challenged and overturned in the context of changed legal infrastruc-ture or legal interpretation. What is surprising, therefore, is that neither the gram sabha resolutions nor the pronouncements of the Supreme Court and the subsequent decision of the MoEF rejecting the mining project have brought a sense of fi nality or closure to the local villagers, their leaders and most anti-displacement activists in Orissa. In interviews, most of the activists and leaders of Niyamagiri expressed scepticism about the present victory. Many activists associated with the movement noted to me that at best, the Niyamagiri verdict had brought a sense of temporary relief that soon evaporated when people began to ask, “now what?” and “what happens to our decisions in the  gram sabha ?” This perhaps needs to be seen in the context of the stoic silence of the state government on anti- mining  gram sabha resolutions.

Activist Siba Naik (name changed) noted that “we really do not know what to tell the people because we do not ourselves know about the future of this project” ( kana kohemu jani nai hebar ). 24 He noted to me this irony by clarifying that they are not “cynical” activists; rather, uncertainty around the project had made them equally uncertain about rights and laws—particularly so considering ever-changing government decisions:

This is a big victory for us. Very big victory! But it does not mean that our struggle has ended. Today, we know that we have won. But does it mean that the hills would not be mined tomorrow? One can’t tell. It is also diffi cult to say that the legal battle is over. Today the FRA rights have been upheld, but there is no guarantee that in the years to come, these rights would not be usurped. Soon after the  gram sabha meetings in which the people rejected the mining of Niyamgiri, we begin to hear that another round of  gram sabha would be soon held to initiate the mining project. We hear that the govern-ment is now planning to circumvent both the FRA and Samatha guidelines. It is diffi cult to repose faith in these laws. At one time, the government follows it, at another it could break these or it changes it to benefi t the corporate.

174 M. DASH

The selective interpretation of rights-based legislation which in some cases acquire force and in other cases are superseded by the primacy of the notion of eminent domain indeed makes law struggles a slippery territory (Sundar 2011 ), a situation which is further compounded by states’ intro-duction of newer laws or amendments into existing laws defl ecting the pro-rights tone of such legislations.

In the course of the conversation, Siba also noted that the new Land Acquisition Ordinance 2014 was “dangerous” because of its dilution of the consent clause. Many fear that this could make the  gram sabha or the FRA gains irrelevant. 25 Various news reports and statements from promi-nent politicians from the state also seem to fuel this sense of uncertainty and anxiety (Dash and Das 2015 ; Mohanty 2015 ; Satapathy 2014 ). The activists and the people have pledged that they would fi ght Vedanta and the Orissa government tooth and nail. It is also seen in the annual Niyama Paraba (Annual Niyama Festival) held in the last week of February every year, which has increasingly transformed into a site that attracts media and activists from across the country, and which showcases part of Dongria “culture” to the world in reiteration of the continuing fi ght against Vedanta and the government. 26

Movement leaders assert that the Niyamagiri movement would be over only after the existing Vedanta refi nery is shut down. However, in the present circumstances, there are rising concerns among the activists in Orissa that even the mining of the Niyamagiri hills might not be a fore-gone issue, and that more contentious politics in the form of legal battles and other kinds of resistance would follow in the future. Their fears are not unfounded. The Orissa government has not fully relinquished its right to mine the controversial Niyamgiri bauxite deposit. In April 2015, the state-owned Orissa Mining Corporation (OMC), which is the partner of Vedanta and was granted mining rights for 30 years in 2004, wrote to the Union Ministry of Environment, Forest and Climate Change (MoEF), seeking “guidance on how to proceed” with the matter (Mohanty 2015 ). 27 In other words, rights of self-governance and forest rights are seen as nei-ther consistent nor fi nal, even where these have worked favourably. Law and rights, in other words, are seen as changeable in situations where poor, rural communities are pitted against powerful corporate interests. Yet at the same time, Vedanta may equally have thought that they had a done deal, only to fi nd that the FRA came along and changed the rules of the game. This illustrates the potential of rights laws to become corpora-tions’ Achilles heel.

RIGHTS-BASED LEGISLATION IN PRACTICE: A VIEW FROM SOUTHERN ORISSA 175

Kenneth Bo Nielsen and Alf Nilsen ( 2014 : 4) propose a compelling Gramscian analytic of rights-based legislation that advances the concept of “‘compromise equilibrium’ between, on the one hand, subaltern groups that are both vulnerable and capable of mobilization, and on the other hand, dominant groups whose economic interests are intimately linked to the exploitation of the spaces of accumulation that are currently being pried open by market-oriented-reforms”. They suggest that rights-based legislation represents a set of concessions to social movements that have contested land acquisitions. These, in turn, constitute the foundations of a compromise that can provide a fi rmer basis for the onward march of the neoliberalisation of the Indian economy in the twenty-fi rst century. Whereas Nielsen and Nilsen sketch a general dynamic of how hegemony is constructed in the neoliberal present, my analysis of concrete sites of contention in Kashipur and Niyamagiri illustrates that these concessions do not apply equally. In many cases, rights-based legislation provides rule of law only on paper, and its application depends on a host of contin-gent factors such as suitable assertions of indigeneity, the interest shown by state and central governments and the nature of the responses from the media and the judiciary. The Kashipur movement was considered far stronger in terms of mobilisation and opposition of the local villagers, but its legal engagement was relatively limited and it did not articulate an identity of victimhood based on indigeneity. The movement had PESA as an instrument to protect its rights, but even a decade and half after its implementation, the law has failed to generate results—primarily due to lack of clarity, legal infi rmity, bureaucratic apathy, lack of political will and its dilution by most state governments, including Orissa (UNDP Report 2012 ).

Niyamagiri, in contrast, became a case in which the political interest of the Government of India at the time—the United Progressive Alliance led by the Congress—was also obvious. Indian National Congress Vice- President Rahul Gandhi, who visited Niyamagiri in 2010, called himself the “Dongria Adivasis soldier in Delhi” and vowed to safeguard their interests. The Congress Party was quick to credit him with the victory in Niyamagiri after the  gram sabha resolutions were passed (Choudhury 2013 ). These aspects become particularly critical insofar as state govern-ments dependent on mining often do not care a fi g about law, rights and procedures, unless irregularities are exposed and there is political or media pressure on it to take action against illegalities.

176 M. DASH

THE AMBIGUITY OF RIGHTS-BASED LEGISLATION: CHALLENGES AND SILVER LININGS

It is no secret that acts such as PESA, FRA and the Samatha guidelines have the power to change the fate and face of development as we know it. For instance, the development of mining-rich states such as Orissa, Jharkhand and Chhattisgarh is centred on violation of the rights of Adivasi and other rural communities. The idea of rights becoming seamlessly inte-grated into movement discourse through “rights talk” (Santos 2002 ) shows how deeply the sense of rights ushered in by PESA has penetrated, and how it is valued in the fi ght against corporate mining. However, the case of Kashipur demonstrates that these rights might not be operative in practice due to the very ambiguity in implementation.

More generally, in practice rights-based legislation reveals a lack certi-tude and closure. It thus reveals the tightrope walk for the communities in their law struggles to protect their resources. On the one hand, there is an awareness among the communities that their rights could be ambiguous in practice, with doubts about whether their rights would be upheld by courts or not. On the other hand, they also demonstrate a hope that rule of law, that is, their rights and right-based legislations, would prevail over dominant corporate or state interests. Although so far the FRA appears to be on a much stronger footing—albeit inconsistently—efforts have been on at the level of state governments for a while to dent its effectiveness. On July 2015, the Orissa state government transferred the duties of the  gram sabha regarding the protection and management of forests to village-level forest councils ( vana surakshya samitis ). Under heat from activists and a rap from the centre, the government fi nally withdrew this controversial decision that would have virtually stripped the  gram sabha of its decision-making power in matters related to forest land (Aggarwal 2015). Similarly, the Maharashtra Village Forest Rules of 2014 similarly sought to violate FRA norms by trying to gain control over village forests (Shrivastava 2014 ). This is not all. In the case of Niyamagiri hills, the OMC has recently fi led an interlocutory application seeking fresh gram sabha meetings in the 12 villages. At the same time, in the last three years state repression has intensifi ed in the area targeting the leaders of the Niyamagiri movement, justifi ed as a measure intended to contain the Maoists. 28

Rights-based legislation and judicial spaces have become fresh sites where a constant tug-of-war between struggling rural communities

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asserting their rights and often less-than-willing governments keen to promote mining as a development strategy, plays out. In this chapter, I have shown that this space is animated to a considerable extent by exter-nal factors such as appropriate media constructions, indigeneity, inter-national attention and the sustained involvement of civil society actors that might shape the outcomes of these legal engagements. In this sense, rights-based legislation reveals the tension between differently empow-ered actors (such as subalterns, states, the judiciary, mining corporations, civil society organisations and international indigenous rights groups) with varied interests. This in turn exposes both the potentials and limita-tions of these laws to deepen democracy and to change the relationship between poor Adivasis and the state in India. It is this tension and its potential leverage by rural communities fi ghting for their rights through law that we have to focus on if we wish to understand in which direction the “compromise equilibrium” underpinned by rights-based legislation will ultimately evolve—towards democratic deepening or towards limit-ing democratic engagement.

NOTES 1. The chapter is based on interviews and interactions with urban

activists and local leaders of anti-displacement movements in Orissa, more specifi cally of the Kashipur and Niyamgiri struggles against corporate mining. The fi eldwork was undertaken in 2010–2011. A number of interviews were also conducted in Delhi and Bhubaneswar with activists and local leaders in 2013 and 2015.

2. It also accounts for 95 per cent of India’s chromite, 92 per cent of its nickel ore, 69 per cent of its cobalt ore and 55 per cent of its bauxite, to name some. It is the leading producer of chromite (99.8 per cent), iron ore (47 per cent) and bauxite (36 per cent) in the country (Government of India 2015 ).

3. Odisha is the new name of the state from 2011. 4. See http://www.tribal.nic.in/ . 5. Nistari rights include traditional rights of access and usufruct rights

over forest produce such as fi rewood, grazing, minor forest pro-duce or other specifi c resource uses as mentioned in the traditional community claims.

6. In the case of the POSCO project in Jagatsinghpur District, FRA stood out as a key factor in forcing the Ministry of Environment

178 M. DASH

and Forest (MoEF) to intervene via a four-member committee in July 2010. Two separate reports were submitted by the committee as it had split into two due to differences between members. Both the reports—and specifi cally, the three-member report—criticised the state government over violation of FRA rights and its lack of implementation. The project has remained mired in controversy due to violation of FRA rights and diversion of forest area for the project. Eventually, POSCO pulled out in 2014 due to new rules that invalidate preferential grants in mining and made auction mandatory. Although the fate of the project remains uncertain, in many ways FRA has been far more useful in upholding and guard-ing the rights of the rural communities against dispossession by forcing both state and central governments to respond to claims of FRA; In Kalinganagar where over 12 iron and steel companies have been allocated over 12,000 acres of land, the fate of FRA remains uncertain to this day as the claims made by Adivasi villagers con-tinue to be ignored, even as work on the industrial area has contin-ued to progress rapidly (Pandey 2008 ; also see http://epgorissa.blogspot.in/ for more details).

7. Fieldnotes, 2010–2011. 8. Fieldnotes, 2010–2011. 9. Several interviews with movement leaders, November–December

2010. 10. Krushna Saunta, personal interview, 21 November 2010. 11. Samatha is a voluntary organisation that works for protection of

Adivasi rights and environment in the Eastern Ghats in India. Most of its active work is located in Andhra Pradesh. Agragamee is a vol-untary organisation based in Kashipur. It has been working on the issues of Adivasi rights and women’s empowerment in the area from the 1980s. Dr. B.D. Sharma was a former Commissioner of the SC and ST Commission. He was also a well-known activist tirelessly working for Adivasi self-governance. He died on 6 December 2015.

12. The Recommendations of the Committee were accepted and the PESA Act was formulated in 1996.

13. Krushna Saunta, personal interview, 21 November 2010. 14. Maharaj Majhi, personal interview, 12 March 2011. 15. The Samatha case was heard in response to a petition fi led by an

Andhra Pradesh-based NGO, Samata (Equality), against the state of Andhra Pradesh.

RIGHTS-BASED LEGISLATION IN PRACTICE: A VIEW FROM SOUTHERN ORISSA 179

16. The Samatha Judgement, however, upheld that the transfer of land to the government instrumentalities (such as government mining agencies) is an entrustment of public property because the aim of public corporations is in the public interest.

17. Through the 73rd Amendment, local self-governance was intro-duced in rural areas.

18. Interview with Kashipur activist Rajak (name changed), 26 November 2010.

19. In 2007, Indal-Alcan withdrew from the stalled project, citing local opposition as the reason. It sold its stake to Hindalco, the metals fl agship company of the Aditya Birla Group which then became the sole owner of UAIL. Hindalco brought in Alcan as its technical partner.

20. Minutes of Proceedings of the First Meeting of the Reconstituted RAC (Rehabilitation Advisory Council) on establishment of Alumina Plant in Kashipur area by UAIL held on 17 July 2004.

21. The broad contours of the timeline of the Niyamagiri movement and operations of Vedanta in the region are reconstructed based on vari-ous sources including personal interview with Siba Naik, 20 August 2014; Action Aid ( 2007 ), Mitra ( 2012 ) and Padel and Das ( 2010 ).

22. Interim Application 1324 & 1474, Writ petition (Civil) No. 202 of 1995, with Interim Application Nos. 2081–2082 at Writ Petition (Civil) No. 549/2007. These three separate writ petitions were fi led by PUCL New Delhi, environmentalists Prafulla Samantarai and Biswajit Mohanty and the Kalahandi-based advocate Siddharth Nayak who represented Dongria Kondh Adivasi interests.

23. Although the activists feel that discourse on religious and cultural rights within Supreme Court was also critical to the Supreme Court judgement.

24. Interview, Siba Naik. 20 August 2014. 25. The ordinance relaxed the consent clause and Social Impact

Assessment clause for projects related to defence, rural infrastruc-ture, affordable housing, industrial corridors and social infrastruc-ture projects in public–private partnership mode.

26. Celebrating Tradition with passion. http://www.odishanewsin-sight.com/top-story/celebrating-tradition-with-passion-niyamgiri- festival/ . Accessed on 2 March 2016.

27. OMC is a wholly state-owned corporation of Government of Orissa. It has mining interests in chrome, iron and manganese ore.

180 M. DASH

It also enters into joint venture projects with private mining com-panies for exploiting minerals. In many cases, it transfers the rights to the private partner after obtaining the relevant clearances from various ministries and departments.

28. Press note, 2016. Save Niyamagiri, Save Democracy—Stop fake encounter, Save Dongrias.

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