The letter, endorsed by legal luminaries such as Prof Kalpana Kannabiran, Gautam Bhatia, Prashant Bhushan, among others, calls for an immediate halt to the public hearings to clear 1,549 hectares of forest lands lying in areas covered by the V Schedule of the Constitution for violating the right to free, prior and informed consent of the affected communities.

Instead of undertaking due consultations under the PESA and FRA, the letter points out, the State government has followed an approach of repression to secure clearances through coercive means. Since early August, the police and paramilitary forces have conducted midnight raids, illegal detentions and arrests against the people of Kashipur village.
Nine leading activists of the Niyamgiri Surakshya Samiti, including Lada Sikaka, Drenju Sikaka, Lingaraj Azad and poet Lenin Kumar have also been made the subject of an FIR under the stringent Unlawful Activities (Prevention) Act (UAPA) for unlawful and terrorist activities. Goldman Environmental Prize 2017 winner, Prafulla Samantara, was abducted with his face covered and hands tied, and driven from Rayagada to his hometown in August 2023.

In addition, several FIRs have been filed by both the police as well as an official of M/s Mythri Ltd., related to M/s Vedanta Ltd., cumulatively naming about a hundred persons, along with hundreds of other unnamed. As such, kin of those arrested are struggling to secure their bail, while also looming under the threat of further persecution under these open-ended FIRs.

With key leaders in prison or facing further persecution, the State government insists proceeding with the public hearings, without complying with the legal requirements under the V Schedule, Panchayats (Extension to Scheduled Areas) Act (PESA), Forest Rights Act (FRA) and the EIA Notification 2006 on full-disclosure of information regarding the proposed project, the letter says.

The letter calls upon the Governor to release those imprisoned since August 2023 and withdraw all criminal proceedings, including those under the UAPA, to uphold their right to participate in consultations freely.

The letter also calls upon the Governor to ensure that information about the proposed bauxite mine is duly made available in compliance with the law, and to further halt the public hearings until an atmosphere of free and open democratic participation can be ensured.

On 13 September 2023, the Odisha State Pollution Control Board notified the announcement of a Public Hearing on 16 October 2023 towards the approval of proposed bauxite mining in Kashipur tehsil, Rayagada district and Thuamal-Rampur tehsil, Kalahandi districts. This Sijimali Bauxite Project, proposed by M/s Vedanta Limited, extends over an area of 1549 hectares covering eighteen villages, within or in proximity to more than twenty reserve forests and nine water bodies. Both Rayagada and Kalahandi are V Schedule areas with a predominant Scheduled Tribe population, comprising Kondh adivasi, Parajas and Dom dalit communities with a small percentage from other castes and communities.

Pertinantly, this Public Hearing has been notified following a month of intense repression and persecution of the people of Kashipur and other parts of Rayagada district. Starting from early August, when the police disrupted and declared as unlawful the peaceful assembly of more than a hundred persons to protest the entry of M/s Mythri Corporation for mining in their village, until today, people in Rayagada, particularly Kashipur tehsil, are living under an oppressive environment of fear, intimidation and terror. The active presence of police in the village is felt and arrests of persons are ongoing.

The decision of the Odisha government to proceed with the Public Hearings of the proposed bauxite mine in such a tense environment is not only illegal, but is a grave assault on the constitutional rights of the people to their customary homelands under the V Schedule, PESA and Forest Rights Act. Rayagada and Kalahandi district in Odisha are home to pristine dense rainforests with rich biodiversity, all of which stand to be destroyed by mining and extractive projects. On the ground, over the past two decades in Odisha alone, thousands of people have been evicted and displaced from their historic role of stewards of their land and waters. Some of the recent developments which have created the environment of fear and intimidation are:

Local leaders and several other persons illegally detained and arrested: Since the disruption of the 04 August 2023 protest in Kashipur, the police and paramilitary forces have conducted midnight raids in the villages. More than twenty persons were illegally detained and tortured. Most of them were later formally arrested under various provisions of the IPC, Arms Act and CLA. Most shocking among these FIRs are FIR Nos. 93, 96, 97 of 2023 at PS Kashipur which are duplicates of each other, have been filed successively on 08 August 2023, naming eleven persons and hundred other unnamed. Similarly, FIR No.101 dated 12 August 2023, filed by an official of M/s Mythri Ltd., names ninety four persons along with hundred others unnamed. Nine leading activists of the Niyamgiri Suraksha Samiti, including Lada Sikaka, Drenju Sikaka, Lingaraj Azad and poet Lenin Kumar have also been made the subject of an FIR under the stringent Unlawful Activities (Prevention) Act (UAPA) for ulawful and terrorist activities. Goldman Environmental Prize 2017 winner, Prafulla Samantara was abducted with his face covered and hands tied, and driven from Rayagada to his hometown in August 2023. Presently, more than twenty persons have been arrested, and continue to be in prison, with their bail applications having been denied. Those who have not been arrested are struggling for the release of their kin. As per reports, there continues to be heavy police presence in the area, and open-ended FIRs bringing within their fold hundreds of named and unnamed others, has given rise to a grave environment of fear, persecution and terror.

The violation of V Schedule, PESA, FRA: The lands and forests over which the bauxite mine is proposed fall under the V Schedule, subject to the right to self-governance of adivasis over their traditional homelands. In the 1997 decision of Samatha v. State of Andhra Pradesh, the Supreme Court had prohibited the diversion of V Schedule lands in favour of non-adivasis, including public and private corporations. Again in 2013, the Supreme Court in Orissa Mining Corporation v. Ministry of Environment and Forests, had held that the gram sabhas under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (FRA), which in the state of Odisha are the palli sabhas, have the ultimate right to make decisions pertaining to the protection and conservation of their community lands and forests. In this case, there have been no prior consultations with the affected gram sabhas who have a right to participate in all decisions affecting their customary forests and homelands. Pertinent to note that the 2013 Supreme Court decision was also related to bauxite mine proposed by M/s Vedanta Ltd. in the same districts, although covering different and smaller areas than the one proposed in the current Sijimali bauxite mine.

Lack of compliance with EIA-mandated Public Hearing process: Under the EIA Notification 2006 [Appendix IV], the full EIA report and not just the executive summary needs to be made publicly available, at public locations such as the urban local bodies/ panchayats/ public libraries etc. It should be in the language local to the affected communities, so that they might comment on it. The full EIA report also has to be uploaded electronically on the websites of the State Pollution Control Board, the District Collectors, the District Industries Office. The District Collectors have to request persons to write in their views and concerns so that all will be taken into consideration. This has not been done. It must be noted that the Letter of Intent for the proposed project was issued only in March 2023. The pace and manner in which the project clearances are proceeding creates the impression that the Public Hearings are being conducted as mere formality in the checklist of the clearance process, without upholding the spirit of participation and transparency.

To conduct hearings in such an atmosphere of fear and intimidation subverts the legal frameworks established for democratic participation. It is deeply concerning that the state government continues to adopt a strategy of coercion and repression, instead of protecting the right to free, prior and informed consent of the affected communities immediately before the notification of the Public Hearings, such that the process is rendered devoid of any meaning and substance.

Thus, as lawyers — Advocates, jurists and legal researchers — we call upon you to uphold the rule of law, and to defer the Public Hearings until the affected communities have a proper opportunity to participate freely, without intimidation, and with full information. We urge you to:

• Immediately order the withdrawal of criminal proceedings against the people of Rayagada and Kalahandi since 04 August 2023, and the release from prison of all those who have been arrested or detained. Adequate compensation to be awarded to all those who have been illegally detained and tortured.
• Immediately order the withdrawal of FIR No.87/2023 under UAPA filed against local leaders associated with the Niyamgiri Suraksha Samiti.
• Defer the Public Hearings until proper consultations are undertaken with the affected palli sabhas under the FRA.
• Immediately arrange for the release of all relevant information on the proposed project, including the full EIA report, to the public in local languages in all required sites.
• Ensure that affected communities have sufficient time to properly inform themselves of the impact of the proposed project on their lives, livelihoods and biodiversity before any proposed public hearings.

Click here for signatories. Copy of the letter sent to Pradip Kumar Amat, Minister, Environment, Forests and Climate Change, Government of Odisha; Prafulla Kumar Mallik, Minister of Steel and Mines, Government of Odisha; Swadha Dev Singh Collector and District Magistrate, Rayagada; P. Anvesha Reddy, Collector and District Magistrate, Kalahandi; Odisha State Pollution Control Board

Courtesy: CounterView

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Kalpana Kannabiran / Image courtesy Bar and Bench

In this interview with Bar & Bench, she speaks fearlessly on issues ranging from the death of Judge Loya, to the Supreme Court’s recent judgments on Section 498-A of the Indian Penal Code (IPC) and the SC/ST Prevention of Atrocities Act.

Several laws have been enacted to protect the rights of women, children and weaker sections of society in this country. Why does their implementation fall short?
We have not even begun to understand what the annihilation of discrimination means, and I am enlarging Dr. Ambedkar’s idea of the annihilation of caste here to discrimination. The representation of those that belong to the most marginalised sections in institutional structures is abysmal.

In the case of women, look at every rung of the social ladder: where do you find them? To begin with, you don’t find them in the Supreme Court, and I believe this is directly reflected in the judgments of the Supreme Court from time to time.

Why do you say that?
Look at the 498-A judgment. The norm and the normative is always set on the male experience – for judges as much as for laypersons.

I was going to come to 498A a bit later but now that you mentioned it, the order says don’t arrest people until you have investigated the complaint, because the law is at times being misused. What is wrong with that?
It’s the same thing they said about the Prevention of Atrocities Act (POA Act). In fact, when the 498A judgment came, several of us (human rights and women’s rights defenders) said that this was going to set a trend for future judgments. What is the empirical basis on which the Court has accepted the argument of misuse?

It is one thing for the men who have had complaints registered against them (I am not even saying ‘false’ complaints), to allege a malicious complaint in their own defence.
 

In March this year, the Supreme Court Bench of Justices AK Goel and UU Lalit introduced safeguards to prevent misuse of the SC/ST (Prevention of Atrocities) Act, 1989 / Image courtesy Bar and Bench
 
Petitioners facing prosecution can make the wildest allegations, and we saw that in the Prevention of Atrocities case as well, without any basis. But how can the Court accept public morality over Constitutional morality, that too without an empirical justification? This easy acceptance of dominant norms points to the possibility that judges are trapped within a dominant, hegemonic worldview and mindset.

I have studied judgments on rape from the 1950s till the present. It is shocking to see the kind of language that the judiciary uses to describe rape, with a few minor exceptions. Even the revered Justice Krishna Iyer, who was against the death penalty, and took celebrated stands on a number of rights issues, called rape an “adolescent exercise” in one of his judgments. But that pales into insignificance when we compare it to some others. There is a deeply entrenched complicity in dominance that destabilises the most progressive legislation – destabilises even the Constitution.

When you say “forces of dominance” can I take it to mean those in the highest echelons of the three pillars of the State?
I mean the ways in which state power is bolstered by social and political power on the ground – by a social compact, that sanctions violence against the marginalised. Courts are often complicit in this.
Look at the Suresh Kumar Koushal judgment or the Kerala High Court judgment in the Hadiya case. Kerala is touted to be one of the most progressive states in the country, touted to have found the magic potion to make women equal. Look at the mess the state has made in Jisha’s case and in Hadiya’s case.

The perilous moment is one where there is no separation of powers. We see that increasingly today. Right from state authorities to the police to the judiciary – they are indistinguishable from each other.
 

Judge Loya was targeted for daring to adhere to judicial procedure and the rule of law'' / Image courtesy Bar and Bench
 
Judge Loya is a case in point. For me, it is a case about the marginalised and the course of justice. Judge Loya was hearing a case pertaining to a victim who was being hunted for being from a particular community. It was an extrajudicial killing, a targeted assault, and Judge Loya was targeted for daring to adhere to judicial procedure and the rule of law.

The Supreme Court’s declaration that the four High Court Judges who made statements on Judge Loya’s death are beyond reproach, that the bonafides of the petitioners are suspect, and that asking for a full and fair investigation is an attack on the judiciary —  is a clear illustration of social compact which includes buying into politics of a certain kind.

The petitioners in the Loya case never presented any hard evidence of there having been a crime committed or any other sort of wrongdoing. All they said that it was suspicious, and most of the petitions were based on a media report. What do you have to say about that?
If it is suspicious then it needs to be investigated. By the time the case came to the Supreme Court, a number of loopholes and discrepancies surrounding Judge Loya’s death had come to light. Did they even look at what was placed before them?  All they did was question the bonafides of the petitioners. This has become the easy way out at a time when a right-wing majoritarian government sets the parameters for justice — question the bonafides of anyone who dissents and celebrate those who kill those who dissent with impunity.

Isn’t it premature to say that Judge Loya was killed in the first place? 
Well, we – as citizens and human rights defenders – are putting the onus on you. You show us that he was not killed.  I really think this is a citizen moment, where one has to turn it around and say, we are charging you on the basis of what we believe is evidence, or pointing you towards the big holes in your story. You demonstrate to us, on what basis we are wrong in our allegation. I am not willing to accept that just because you are a judge what you say is right. This is the civil liberties method – fact-finding. The petitions were painstakingly put together after having gone through several accounts of the incident and related reports. How is it that you did not bother to look at any of that?

Coming back to the question of marginality and the rule of law, Justice Basu and I were part of a team that did several sessions with 300 judicial officers in undivided Andhra Pradesh between 2004 and 2006. Repeatedly, the account that we heard from serving officers was that the CrPC has enough and more provisions that offer effective protection to complainants, witnesses, accused, investigators. But if you don’t allow judicial officers to function as they should, what is the use of having a good CrPC or special legislations where you have expanded the definition of caste atrocity and rape?

When you say “you” don’t allow the judiciary to function, who are you referring to?
I speak of interference from those in political power, who are aligned with and often belong to the dominant castes, the majoritarian community, and inevitably male.

This may happen in the lower judiciary, but do you think the higher judiciary can be influenced as well?
I think it was Professor Upendra Baxi who observed that the descriptors “lower” and “higher” judiciary do not make sense. It’s just a matter of different jurisdictions. There are courts with original jurisdiction and those with appellate jurisdiction; and there are different branches of judicial institutions presided over by judicial officers/judges, as the case may be.  By saying “lower” and “higher” you are creating a hierarchy and naturalising the attributes in that hierarchy – i.e. the higher is more meritorious than the lower. The good old graded inequality, to invoke Dr. Ambedkar yet again.

 Image courtesy Bar and Bench
 
This is not true. The reality, in fact, is quite mixed. The issues before us today don’t concern the magistracy. All of them concern what you call the “higher” judiciary. The four judges who held a press conference in January did not express views against the “lower” judiciary.  Judge Loya on the other hand, was part of the “lower judiciary”. We can multiply examples, but I rest my case.

Coming to special legislation like the POA Act and Section 498-A. Let us set the empirical basis for misuse aside for a moment. These were legislations where the arrest was mandated without investigation of complaints. Given that fact, do you think some good came out of these orders?
No, absolutely not. The reason why such legislation mandates arrest prior to investigation is precisely because of the way in which these atrocities happen. I have lived through the times of the Chunduru and Karamchedu massacres and any number of others. Countless cases of domestic violence, murder of wives and cruelty for reasons of dowry.

It is impossible for a complainant to proceed with the complaint if the accused is at large. It is impossible not only for fear of intimidation, but there is a real danger to life. A lot of times we totally underestimate the power of caste and majoritarian dominance.

These are violent people who have an utter disregard for the law and are asking to be treated outside the framework of the law – which means don’t arrest even if the law mandates it.

If you look at the Supreme Court’s decision on the POA Act, what I found striking was that the use of words like “malicious complaint,” “malicious prosecution,” “malicious complainant”, “instrument of blackmail” “personal vengeance” and settle scores arising from “personal vendetta”, by “scheming, unscrupulous complainant” – all of the accusatory terms target the SC or ST complainant; “unsuspecting,” “innocent” etc. by default only fall on the non-SC or non-ST.

As a judge, you know when you are making these statements that complainants under the POA Act can only be SC or ST. Is that not targetted abuse of an SC person? You are doing it willfully and with full knowledge in the written text of the judgment, using your power as a judge to make demeaning statements against a certain class of people. The use of power to target an SC person and verbal abuse specifically targeting persons belonging to Scheduled castes are both covered under the definition of “atrocity” under the Act.

Ironically, at no point in the entire order does the Bench link the POA Act to Article 17 of the Constitution. The POA Act is not merely another special legislation. It is a special legislation that flows from the Constitutional Protections in Part III against untouchability and caste discrimination. How was it possible that the two were not linked by the Court in its interpretation in this case?  Dr. Ambedkar was misquoted – the selective and distorted use of his words was deeply troubling.

I am really worried. Our Constitution is no longer in the hands of those who instill any confidence that they will protect it. Justice HR Khanna was resurrected and celebrated in the right to privacy judgment, and ousted from judicial memory in the more recent ones we have spoken about.

What prompted you to study law? Can you tell us about how your father influenced/inspired you to do the kind of work you do?
My primary discipline is Sociology. My encounter with the law happened much before I studied it. I did go on to study it and get myself a teaching degree but that was much later.
 

Kalpana's father KG Kannabiran was a human rights activist, lawyer, and co-founder of PUCL / Image courtesy YouTube
 
I grew up in a home where fact-finding missions, encounter deaths, illegal detention of teachers and students, torture by the police during the Emergency were discussed in our drawing room, at our dining table and with friends who visited.  Rameeza Bee who was raped in police custody and her husband killed in custody was around my age and I watched my father piece together the evidence to present before the Muktadar Commission. The witnesses to torture and encounter deaths during the Emergency stayed at our home before being produced before the Bhargava Commission.

And my father knew no fear. My mother didn’t either. And both of them always discussed their work in our presence. So we children imbibed the law – the Constitution – in our everyday life at home. But beyond that, my father was my teacher and my best friend. In fact, he is to date my only teacher – the only one who has imparted learning and who learnt from me, and my questions.

I watched him speak firmly, gently and persuasively with his clients; I sat in on his discussions;  I followed his gaze at his bookshelf, to see which book he was obsessing about; followed his markings in texts, and tried to understand why he had underlined what he did and read his written arguments to understand how one might build a reasoned argument.  On any issue. I learnt the ethics of work from him.

There has been a crackdown on dissent across campuses in the country. Your views on why this is happening and how the trend can be bucked?
What is happening on campuses is part of what is happening in our country today.  The rise of a new imperialism and colonisation in the name of religion – and all other forces are aligned with this.  

Seventy years after independence, I would say we need a second freedom struggle to liberate ourselves from the capture of our country and collective conscience by obscurantist, violent politics and governance. We need a deep reinstatement of our Constitution. It is a challenge for citizens and courts alike.

And students and campus communities across the country must continue to be at the forefront of this resistance because universities and higher education are major targets of this colonisation. 

 First published in Bar and Bench.
 

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