Appellants: Orissa Mining Corporation Ltd.

Vs.
Respondent: Ministry of Environment and Forest and Ors.
Citation: 2013V AD (S.C.) 289, 2013(3) FLT560, JT2013 (5) SC 565, 2013(6) SC ALE57, (2013)6SC C 476
Hon'ble Judges/Coram: Aftab Alam, K.S. Panicker Radhakrishnan and Ranjan Gogoi, JJ.

CASE HISTORY
A writ petition was filed before the Supreme Court challenging the order of the Ministry of Environment
and Forests rejecting the Stage II forest clearance for diverting 660.749  hectares  of  forest  land  for 
mining  of  bauxite  ore  in  Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts of Orissa to the
Orissa Mining Corp. (OMC) and also for other consequential reliefs on the grounds of violation of
environment and forest laws besides violation of rights of primitive tribal groups such as the Dongria
Kondh.

Petition in Supreme Court (2004)

In 2004, three individuals filed petitions in the Supreme Court requesting cancellation environmental
clearance for the alumina refinery. These individuals were drawn from local environmental, wilderness and
human rights groups.

Forest Rights Act 2006

After many years of campaigning by Advisasi (tribal) groups across India, the “Forest Rights Act 2006”
was enacted. In India first time this act granted the right to hold and live in forest land to the member of
forest dwellers and forest tribe

Second Judgement (8 August 2008):

The Supreme Court gives permission forest clearance for Vedanta project. The court also imposes certain
condition.

Report of Saxena Committee (August 2010)

On 23 August, 2010, the Saxena committee’s report was placed before the Forest Advisory Committee,
which, having found compelling and significant evidence of prima facie violations of the ‘Forest Rights
Act’ ‘Forest Conservation Act’ and ‘Environmental (Protection) Act’ recommended that any clearance
would thus be in contravention of this legislation
Appeal to Supreme Court (11 July 2011)

MOEF withdraws the ‘environmental clearance’ for the project. This decision is appeal by the company to
the Supreme Court.

Supreme Court decision (18April 2013):

The Supreme Court sends the decision regarding the mine clearance to the Gram Sabha (the local tribal
councils). The Supreme Court said that the dongria kondh are the primitive groups and they have
customary right to worship the mountains. The Supreme Court asked the state government to take consent
of the village people on the legal ground under Forest Rights Act 2006. The court said that it is in hand of
village decide whether POSCO mining project violate their religious rights or not.

Decision of MOEF (8 January 2014)

The Ministry of environment and Forests reiterated its decision to reject approval under the “Forest
Conservation Act” for diversion of 660749 hectares of forest land to Orissa Mining Corporation for mining
of bauxite ore in Lanjigarh Bauxite reserve in kalahandi and rayagada district

MATERIAL FACTS

The Orissa Mining Corporation Ltd. filed a petition before the Supreme Court of India challenging the
denial of final forest clearance, for the purposes of mining, by the Ministry of Environment and Forests
(MOEF). Te MOEF had rejected the Stage II forest clearance due to the adverse findings on the social
impact of the project on tribal settlement. The MOEF1 relied on the Saxena Committee Report which raised
various objections against the clearance of the mining project. There were alleged lapses on the part of
petitioners that were shown by the Report of the Committee. Te lapses included lack of consultation with
the native tribal groups and the possibility of adverse impact on the existing biodiversity and ecology of
Niyamgiri Hills on which the lives and the habitat of the tribal population depended. Further, the report
pointed out violations of the provisions of environmental protection legislations such as the Forest Rights
Act, 2006, the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986. The petition
before the Court opposed this order of the MOEF, which in turn had halted the mining of bauxite in the
area. The opposition to this petition was not only by the Ministry but also by the tribal inhabitants. For the
natives it was a direct afront of the modern state on their sacred lives. Such an instrumentalist conception
of land was not merely interfering with their lifestyle but was also an unacceptable trespass into the sacred
temple on hill top.

1
Ministry of Environment & Forest
KEY QUESTION
1. Whether the decision to reject environmental clearance for the construction of a mine because of its
impact on indigenous tribes is lawful?
2. Whether permission for mining rights can be granted by Gram Sabha?

DECISION

The court relying on the case of Union of India v. Rakesh Kumar & Ors2 decided that the Primitive
Tribal Groups were stakeholders in this venture. The court said that the rights of the people affected by
such a venture directly or indirectly should be of paramount consideration while giving such clearance. The
Supreme Court sends the decision regarding the mine clearance to the Gram Sabha (the local tribal
councils). The Supreme Court said that the Dongria Kondh are the primitive groups and they have
customary right to worship the mountains. The Supreme Court asked the state government to take consent
of the village people on the legal ground under Forest Rights Act 2006. The court said that it is in hand of
village decide whether mining project violate their religious rights or not. Then Kalahandi and Rayagada
district administrations notified that village community had already claims are submitted under the forest
Rights Act 2006 and settled with land tenures. Subsequently, in gram sabha after gram sabha all the
villagers, vociferously said “the entire 240 sq. km of the Niyamgiri hill range is ours” and denied they had
ever made all the previous individual and community claims under FRA that they had submitted to their
respective district administrations just weeks earlier. In the last gram sabha on August 19 at Jarapa village,
Wanjelika Jambu, one of the 12 voters who participated spoke for all. He said, “We don’t need any land
ownership deed from the government, we need Niyamgiri only.” 12 Gram Sabhas vote unanimously
against the mine.

RATIO
Right to freely profess, practice and propagate religion3

Due to mining the temple on hill top was going to be demolished which was major setback to right to
practice religion and was against the faith and belief of people.

2
CIVIL APPEAL NOS. 484-491 OF 2006
3
Article 25 of the Constitution of India
Right of tribals to equality and equal protection under the law4

It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well. This Article also provides the
autonomy to the State to grant special provisions for the backward classes, under-represented States, SC &
ST for posts under the State.

Right to live in dignity5

Dignity and of the equal and inalienable rights of all the members of the human family is the foundation of
freedom, justice and peace in the world and recognises that these rights derived from the inherent dignity of
the human beings.

Recognition of Forest Rights Act6 regarding Scheduled Tribes and other forest dwellers.

"Community forest resource" means customary common forest land within the traditional or customary
boundaries of the village or seasonal use of landscape in the case of pastoral communities, including
reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the
community had traditional access.

Forest Conservation Act, 1980, and Forest Protection Act (tribal peoples)

The act recognize and vest the forest rights and occupation in Forest land in forest Dwelling Scheduled
Tribes (FDST) and Other Traditional Forest Dwellers (OTFD)who have been residing in such forests
for generations

UN Declaration of the rights of Indigenous Peoples7

Right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions,
while retaining their right

The Supreme Court has taken the stand of safeguarding such stakeholders by putting the above points in
consideration in the judgments where in the Supreme Court has strictly laid the ratio that development
cannot be tolerated on the edge of environmental degradation and loss of livelihood of native people.

REASONING

The Court considered the entitlement of tribal people to land which is owned by the company. However,
the Court went on to clarify that the State holds the natural resources as a trustee of the people; as such,
local populations must give consent to any efforts to extract these resources. Following a series of 12
4
Article 14 of the Constitution of India
5
Article 21 , Constitution of India
6
Forest Rights Act Section 2(a)
7
Article 2, UN Declaration of the rights of Indigenous Peoples
village consultations regarding the Vedanta project, the Dongria unanimously rejected the proposal.  The
Court noted that agriculture was the only source of livelihood for the tribes concerned, apart from the
collection and sale of minor forest produce to supplement their income. The tribes had great emotional
attachments to their lands. The United Nations Declaration on Rights of Indigenous Peoples notes that
tribal forest dwellers have a right to maintain their distinctive spiritual relationship with their traditionally
owned or otherwise occupied and used lands.

CRITIQUE

The immense barriers that stand in the way of remote and vulnerable communities gaining redress and
having the law enforced against powerful multinational business. it took over a decade of determined local
and international efforts by some of the most authoritative and experienced human rights NGOs within
India and globally to achieve the outcome of stopping the mine almost every court, administrative body
and non-judicial body that the matter came before found in favour of the Dongriakondh and remarked upon
the failure of Vedanta and the Odisha Mining Corporation to adhere to state and national laws and
international human rights norms. It is remarkable then that it nevertheless required a campaign on an
international scale and extraordinary efforts on behalf of one of India’s best-known human rights legal
teams to revoke permission for the mine. Also the judgment expands the contours of judicial interpretation
to include various forms of diversities- biodiversity in understanding the relationship of these people with
their ecology, cosmological diversity by allowing the claims of different worldviews in their own terms and
epistemological diversities by being sensitive to the language and logic of the tribals though they may not
fit well within the validation of the logic of modern law. This response of Supreme Court is overwhelming
and this case is trendsetter regarding rights of indigenous people over corporate giants. Further the ratio of
this case was used in various cases and the latest case which used the ratio of this case was in Young
Indian vs. CIT (Exemption), New Delhi8 and the ratio used was: It is also well settled that mining rights
are vested in the State and the lessee is strictly bound by the terms of the lease Orissa Mining Corpn. Ltd.
v. Ministry of Environment and Forests. So we can understand the gravity of this case and how it is
working as precedent to safeguard environment.

8
(15.11.2019 - ITAT Delhi): MANU/ID/1367/2019