The Posco fiasco amply demonstrates the legitimate justification of the provisions of the 2013 land Acquisition Act, specially with reference to socioeconomic impact study and participatory decision-making as conditions precedent for enabling any acquisition of land for a public purpose. Rehabilitation and resettlement is also another condition that must be fulfilled before displacement takes place. In fact, the tenor of the Act is to make that yet another condition precedent for acquisition.
These are meant to be diluted in the proposed amendments which are stuck in the Rajya Sabha. Fortunately, the Odisha Government has supported the original Act and has opposed the amendments. The latest trend indicates that the Union Government might leave it to the State legislatures to evolve their own norms. But in so far as National Highway projects and railways are concerned, the Central laws will have their role. The Odisha Government has also reportedly suggested allocation of shares to gram panchayats or the adversely affected persons. This is a happy trend in a positive direction as participatory, non-exploitative and non-expropriatory acquisition.
If this scheme of evaluation had been adhered to as a condition precedent to enable acquisition of land for the most publicised Posco project then the irremediable and intractable situation that the project has landed in could have been obviated by alternate rational choice through due diligence. There was never any independent and rational evaluation of the location and the component elements of the project in terms of an objective decision-making. Probably, an alternate location would have by now seen the project in operation. Many fatal infirmities were not attended to in violation of different important legal prescriptions. These turned into insurmountable hurdles. land acquisition, forest and ecological clearances and the like were processed in a casual manner. The Palli Sabha was ignored and bypassed. A single officer’s report became a substitute for collective majority decision-making. Indications are available that Posco is already negotiating joint ventures with two different companies, one being in Odisha. This is also a pointer towards an alternate strategy. The assurance of a private port exclusively for the company along with a rich hinterland and assurance of mineral resource licence could not have been promised by any State Government in the manner they were. Publicity and propaganda overtook or avoided the essential pre-requirements of initial thinking, planning and devising documentations in conformity with law. See the ironic situation. Emergency clauses were invoked in land acquisition, but no patch of these lands could be taken possession of. Defective documentation based on mistaken views/advice ignoring mandatory provisions of law fatally vitiated the entire process.
Mineral resources are a nonrenewable national wealth. There is an Act of Parliament governing the licensing system for exploitation of mines. They also attract other laws like forest and environment. A slow-pace- tennis was played in handling the recommendation of an area, the selection of which has many fundamental flaws. Elementary distinctions between ‘notified’ and ‘not-notified’ areas and the manner of processing of a case relating thereto were brushed aside in the anxiety of erroneously and saying out of context “Atithi devo bhava”. But in Gandhi’s country, ends did not justify means. No lesson was learnt from the case of Niyamgiri, and the fact that there was now a supervening Act, 2007 conferring on the tribal inhabitants and traditional forest dwellers of the area a right of participating in the final decision-making and protecting their rights to the resources in different ways. While the Government bent over backwards to bend many other laws, the direction of the Supreme Court to conduct the Palli Sabhas overseen by respective District & Sessions Judges and helped by other judicial officers and the report was to be transmitted to the Supreme Court demonstrating the supreme majesty of Rule of law. The Constitution of India was vindicated. The small handful of tribals living in the huts thundered with their vote against mining in the biodiversity rich area. The particular place has also some links with the worship of divinity for the resident tribals. A mining licence could not be granted for an area because of the dissenting voice of a majority of the resident tribals. This power is reposed in scheduled tribes and other traditional forest dwellers by an Act of Parliament. The Act is remedy to the wrong perpetrated over generations and is to “recognise, vest and restore” the rights in certain categories of persons. This may not be palatable to persons enjoying immense amount of political or money power. But it is a vindication of our democracy and is in conformity with the requirements of the habitat, ecology, biodiversity, human rights, intergeneration equity and so on.
While this battle for the mine was going on without any fatal decision having been taken by the competent authority, the MMDR Act was amended. The minerals involved were now going to be under the regime of auction. Gold remained in the upper hand of the public sector company. Huge amount of hidden profits through the earlier mode of mining licence suddenly vanished. A concealed subsidy was no longer available. No industrial house comes forward for investment with the object of charity. The corporate entity has to maximise profits and satisfy a conglomerate that is behind it. It has to meet its own financial commitments. For Posco, what were, under the unamended MMDR Act, subsidised raw materials, suddenly stood exposed and subjected to rules highest offer prices. The cost-effect was bound to be upward demanding a relook at the proposed investment.
Idle manpower and other investments over a decade would necessarily have had their adverse impact on the future of the project. No wonder, Posco CEO Kwon Ohjoon said at Seuol on July 15, “The meltdown in commodity prices has factored in Posco’s to go slow or shut down the greenfield project. By the same token, the company has decided to put a freeze on unprofitable local and overseas business as part of a restructuring plan.” Having pumped in a sizeable quantum of money, Posco would not like to fully snap its linkages with what is now left of the onetime a project involving largest amount of foreign direct investment. There have been murmurs in the corridors of industrialists as to whether South Korea would allow an Indian metal firm to set shop there, use its finite resources and send them back home for cheaper production.
But this is no more a relevant question. The morale of the story is that we are a democracy governed by Rule of law, and the modalities effective in other countries may not be efficacious in the Indian milieu. For so many persons the grapes have turned sour. But the concerned industrial house would not have been in this lurch but for being a victim of inefficient and misdirected governance, uniformed policy and decision-making and gross disregard for the mandates of the technical aspects including the legal ones. What once appeared to be a no-win situation is now conveniently and probably wisely being converted into several projects of joint ventures. It is like a pendulum going full swing from one direction to the other. But the process of the swing took a decade through a tortuous process. There is a lot to learn from the biggest and mighty in failing to bulldoze with the open support of the State and Central Governments. What was not in the interest of the nation got halted by the will of the people and the courts of law. This case requires, in many ways, a comprehensive study by the state and the civil society. This has to be debated by one and all so that the lessons are learnt for our future benefits. This definitely concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)