New Delhi: A former IAS officer has written to President Murmu saying the Union government’s granting environmental clearances for its mega-infrastructure project on Great Nicobar island was without adequate consultation with the island’s tribal council and thus violative of constitutional regulations.
E.A.S. Sarma, who was tribal welfare commissioner in the Andhra Pradesh government as well as secretary to the Union government, said that in not adequately consulting the island’s tribal council, the government was violating the Andaman & Nicobar Islands Protection of Aboriginal Tribes Regulation, 1956, which he has previously said overrides laws applicable elsewhere.
His letter is reproduced at the end of this article.
The Great Nicobar project will involve the construction of settlements, a trans-shipment terminal, an airport, a power plant as well as defence facilities.
Sarma referred to an instance in 2022 where the island’s tribal council reportedly withdrew a no-objection certificate it had given for part of the project, saying it wasn’t fully informed of the project’s physical extent.
He alleged that in “pushing through” with environmental clearances to the project, the Union environment ministry had ‘totally ignored’ the Andaman and Nicobar Islands administration’s Shompen policy, which says the welfare of the Shompen tribe – classified as a ‘particularly vulnerable tribal group’ – must be prioritised and reviewed when moving with such projects.
He also criticised the ministry’s decision to direct afforestation in Haryana as compensation for denotifying forest land on Great Nicobar and said that as far as he knew, authorities did not consult with the Scheduled Tribes Commission while making preparations for the project as required by law.
In light of the alleged regulatory violation, Sarma wrote to the president: “…Perhaps there is a strong case for your high office to consult the apex court under Article 143 on the implications of the mega project for the Shompens and the Nicobarese of Great Nicobar island and the manner in which their concerns could be addressed.”
In related news, a report in The News Minute earlier this week said the island territory’s administration was flouting land acquisition laws in proceeding with the planned international airport on Great Nicobar.
And Sarma is not the only one to express his concern over the Great Nicobar project.
Earlier this year, 39 scholars wrote to Murmu saying the Shompens would face genocide if the Great Nicobar project went ahead, and last year scores of former civil servants wrote to her saying the project threatened not only the Shompens but also the island’s ecology.
§
To
Smt Droupadi Murmu
President of India
Rashtrapati Bhawan
Respected Rashtrapati Ji,
Kindly refer to my letters of 29-1-2023 and 14-4-2023, appealing for your urgent intervention to protect the interests of around 229 Shompens belonging to a Particularly Vulnerable Tribal Group (PVTG) and around 27,168 Nicobarese tribals in Great Nicobar Island, where it has been unilaterally proposed by the Central Government to set up a “Mega Infra Project”, that occupies 131 sq km out of 866 sq km of forest area, a little over 84 sq km out of 751 sq km of the statutorily notified Tribal Reserve, the exclusive habitat of the tribals and 70.6 sq km out of 733 sq km of a unique rain forest biosphere, posing a serious threat to the tranquility of the tribal communities, the original inhabitants of the island cluster.
My two letters cited above are accessible in the public domain 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/ &
The “Tribal Reserve” referred above has been declared under Section 3(1) of the A&N Islands Protection of Aboriginal Tribes Regulation (ANIPATR) notified through a Presidential Proclamation in 1956 under Article 243(2) of the Constitution.
Section 11 of the above cited Constitutional Regulation prohibits the application of any other law that violates the intent of that Regulation. The said Section is extracted below:
“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.”
In other words, the action taken hastily by the Ministry of Environment, Forests & Climate Change (MEFCC) to accord environment clearance for the project under the Environment (Protection) Act was prima facie illegal, as it was without adequate consultation with the Tribal Council of the Islands, constituted under the A&N Islands (Tribal Councils) Regulation [ANITCR], 2009 promulgated by the President under Clause 1 of article 240 of the Constitution and, therefore, violative of Section 11 of ANIPATR.
In fact, the Tribal Council of Great Nicobar Island, in their letter of 22-11-2022 addressed to the A&N Administration, the Ministry of Environment, Forest and Climate Change (Forest Conservation Division) and the Commissioner cum Secretary (Environment and Forests), Union Territory Administration of A&N Islands, expressed their objection to the setting up of the proposed Mega Infrastructure Project (including the airport), saying that the authorities had earlier “rushed them” into signing a “No Objection” letter on the basis of misleading information and, after careful consideration among their members, they would revoke that No-Objection letter. In my letter dated 14-4-2023 addressed to the President of India (https://countercurrents.org/2023/04/mega-infrastructure-project-in-great-nicobar-island-need-to-consult-the-shompens-and-nicobarese/), I did bring this fact to Rashtrapatiji’s attention.
The manner in which the A&N administration, prompted by the Union government, seems to be rushing through the project makes a mockery of the avowed policy of the government to safeguard the interests of the local tribal communities, as envisaged in the Constitution and the Regulations promulgated in pursuance of it.
The A&N Administration approved detailed guidelines on “Policy on Shompen Tribe of Great Nicobar Island” vide its gazetted notification No. 89/2015/F 1-892/2009-TW/557 dated 22-5-2015 (https://tribal.nic.in/downloads/PVTG/The%20Andaman%20and%20Nicobar%20Gazette%20dated%2022-05-2015%20-%20Policy%20on%20Shompen%20Tribes%20of%20Great%20Nicobar%20Island.pdf).
Para 6.3 of the said notification states as follows:
“With regard to large scale development proposals in the future for Great Nicobar Island such as transshipment container terminal etc., the welfare and integrity of the shompen community should be given priority and be reviewed in consultation with the Department of Tribal Welfare and Andaman Administration Janjati Vikas Samiti and the Ministry of Tribal Affairs.”
Despite such a policy being formally notified by the Union Ministry of Tribal Affairs to protect the Shompens, MEFCC had chosen to ignore it totally, while summarily pushing through statutory environment clearance for the project in the guise of cutting the corners for a “strategic” project.
The irony of MEFCC’s misplaced approach to de-notify a large tract of the unique rainforest stretch, which provides habitat for the tribals in Great Nicobar island was evident when that Ministry, ostensibly in the name of complying with the apex court’s direction to undertake “compensatory afforestation” for the loss of forest in Great Nicobar island, permitted “compensatory” afforestation in far off Haryana, thousands of miles away from great Nicobar island, knowing well that Haryana government itself had tweaked rules that paved the way for influential real estate developers to ravage the precious Aravalli forests there. How can the loss of biodiversity in a rainforest stretch of Great Nicobar be compensated by a mythical show of afforestation far away? (https://countercurrents.org/2023/11/tropical-forests-in-greater-nicobar-islands-to-aravalli-forests-in-haryana-the-green-connection-between-politicians-and-their-corporate-allies/)
The latest in the series of hasty steps taken by the Central government, ignoring the interests of the tribals, is by initiating action to acquire land for an international airport in Great Nicobar island under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013, in which a so-called “Social Impact Assessment” study once again ignored the existence of Shompens and Nicobarese who would get indirectly impacted, with their Tribal Council kept in the dark, and the Shompen Policy nowhere mentioned. It shows how insensitive the A&N administration is towards the tribal communities whose interests it ought to safeguard as its primary responsibility. Had the A&N administration cared to consider the impact of the project on the local tribal communities, it would have elicited the views of anthropologists and other experts who are familiar with the socio-economic conditions of the Shompens and Nicobarese, a requirement that stands ignored.
When such huge disruptive projects are taken up, that involve intrusion into the forest habitat of the local tribals and a statutory infringement of their Tribal Reserve, both the Union and the State are required to hold prior consultation with the National Commission for the Scheduled Tribes (NCST) under Article 338(9). To the best of my knowledge, no such prior consultation had been held.
In a participatory democracy like ours, when disruptive projects like the Mega Infra Project in Great Nicobar island are proposed to be set up, the communities likely to be affected, especially the local tribals, represented by their Tribal Councils, ought to be consulted. In the instant case, the Great Nicobar Tribal Council has expressed its objection but the authorities in the A & N administration and the Union government have evidently chosen to ignore their concerns. The procedures hastily followed by the A&N administration and the decision makers in Delhi violate the provisions of both ANIPATR & ANITCR.
One cannot expect the Shompens and Nicobarese of Greater Nicobar island to approach any institution on their own to persuade it to heed to their concerns arising from the proposed mega infra project that would affect their lives directly and indirectly. When almost all institutions today seem to adopt a “hands-off” approach vis-a-vis the executive, for reasons best known to them, one is not sure as to how the Shompens and the Nicobarese of Great Nicobar can ever persuade the authorities to listen to their voice.
Since there has been a prima facie violation by the A&N administration of the provisions of two sets of Regulations, namely, ANIPATR & ANITCR, promulgated by the President under the Constitution, perhaps, there is a strong case for your high office to consult the apex court under Article 143 on the implications of the mega project for the Shompens and the Nicobarese of Great Nicobar island and the manner in which their concerns could be addressed.
I appeal to you, Rashtrapatiji, to take such action that safeguards the tribals of Great Nicobar island at the earliest
Respectfully,
E A S Sarma
Former Commissioner (Tribal Welfare) Govt of Andhra Pradesh (AP)
&
Former Secretary to the Government of India
Visakhapatnam
