There has been a fresh legal challenge to the controversial Great Nicobar Island project. The Rs 72,000-crore infrastructure project could spell devastation for the ecologically fragile region inhabited by the Shompen, a vulnerable indigenous group whose numbers are less than 230.

A petition filed in the Calcutta High Court in December has highlighted glaring violations of the Forest Rights Act in the clearances granted to the mega project. The petition was filed by Meena Gupta, a former secretary of tribal affairs and also environment and forests.

Crucially, the petition alleges that the recognition of forest rights certificate is void. It is the primary document under the Forest Rights Act allowing the project to go ahead. This means that the large forest area of the tribal communities on Great Nicobar cannot be diverted for use by the project.

The petition

On December 18, a bench of Chief Justice TS Sivagnanam and Justice Hiranmay Chatterjee admitted the petition and, in their order, noted the concerns listed by the petitioner. In the second hearing on January 16, the respondents were given five more weeks to file their responses with the next hearing scheduled for February 20.

The respondents include the Ministry of Environment Forest and Climate Change, the Ministry of Tribal Affairs, the administration of the Andaman and Nicobar Islands and the project proponent, the Andaman and Nicobar Islands Integrated Development Corporation.

The other respondents are deputy commissioner of Nicobar District and local bodies such as the subdivisional level committee for Great Nicobar – constituted under the Forest Rights Act – the Directorate of Tribal Welfare, the gram panchayat of Laxminagar, Great Nicobar Island, all of whom are involved in facilitating the diversion of the forest for the project.

Mega infrastructure project

The Port Blair-based Andaman and Nicobar Islands Integrated Development Corporation is implementing the project which has four main components: a transshipment port at Galathea Bay, a greenfield airport, a power plant and a greenfield township and tourism project. Great Nicobar Island is home to the Nicobarese community, a scheduled tribe, and the Shompen, a particularly vulnerable tribal group or PVTG.

The massive project covers a total of 166 sq km of land, of which 130.75 sq km is forest area, which will be diverted for infrastructure development. Eighty-four sq km of the project land, some overlapping with the forest, is designated as a tribal reserve under the provisions of the Andaman and Nicobar Protection of Aboriginal Tribes, 1956. This, too, is sought to be denotified for the project. In a letter dated August 12, 2021, the tribal welfare department of the Andaman and Nicobar administration assured the project proponent that it “will seek required exemptions” from regulations to protect tribal and forest dwellers, “as may be needed for the project”.

Stage 1 forest clearance, to divert the forest land, was granted by the environment ministry in October 2022 and was followed by environment and coastal regulation zone clearance a month later in November. Condition number 26 of the forest clearance had explicitly asked for compliance with the Forest Rights Act before the forest could be diverted for the project.

Multiple FRA violations

The petition argues there are multiple violations of the Forest Rights Act as well as the environment ministry’s August 3, 2009, order, which mandates that state governments strictly comply with the act and settlement of forest rights before diversion of forest lands. Central to the petition’s contention is the recognition of the forest rights certificate issued by the Nicobar deputy commissioner on August 18, 2022.

It states that all processes for settlement of rights under the Forest Rights Act have been carried out for the diversion of 130 sq km of forest land and that the rights of the particularly vulnerable tribal group have been protected. This certificate is the primary document under the Forest Rights Act allowing the project to go ahead.

This certificate, the petition contends, is null and void on several grounds. One of the key violations is the constitution of the subdivisional level committee for Great Nicobar constituted under the Forest Rights Act. According to Section 5(c) of the Forest Rights Act rules, the subdivisional level committee should have at least two members of a Scheduled Tribe, but in this case, there was only one member of the Nicobarese community.

A fourth member, in the form of the Tribal Welfare officer of the Andaman Adim Janjati Vikas Samiti, was nominated and authorised to give consent on behalf of the Shompen. The petition notes that there is no provision under the Forest Rights Act for someone to represent a particularly vulnerable tribal group, leave alone give consent on their behalf.

There is also a prominent conflict of interest: the project proponent Andaman and Nicobar Islands Integrated Development Corporation and the Andaman Adim Janjati Vikas Samiti are both under the same leadership – the Andaman and Nicobar Island administration. The grant of this certificate also conflicts with the reports submitted by the local administration to the Ministry of Tribal Affairs for the years 2018-2024 showing that no claims were settled under the Forest Rights Act.

The gram sabha of Laxminagar Panchayat that finally approved the diversion, the petition notes, is “not the gram sabha under section 2(g) of FRA”. The gram sabha had no members of either the Scheduled Tribe or the particularly vulnerable tribal group community and has no validity or authority under the Forest Rights Act.

Long delay

Raising questions of process and intention, the petition notes that while the Forest Rights Act was notified in 2007, it took more than 14 years and six months to constitute the mandated subdivisional level committee for grant of rights to the tribal communities in Great Nicobar.

Yet, it took just 23 days between the constitution of the subdivisional level committee on July 26, 2022, and the recognition of forest rights certificate being issued on August 18 through a process where the communities themselves had no role to play, which is a serious violation of their rights. The minutes of the subdivisional level committee meeting are further vitiated by the fact the proceedings are signed by ES Rajesh, a local contractor, businessman and a political functionary who should not have been even present there.

Given that the project is being pushed despite the violation of multiple laws such as the Forest Rights Act, 2006, Forest Conservation Act, 1980 and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the outcome of the petition will have an important bearing on the conservation of these ancient forests and rights of the Shompen and Nicobarese who have been living here for thousands of years.

Pankaj Sekhsaria is author/editor of five books on the Andaman & Nicobar Islands, the latest being The Great Nicobar Betrayal published in 2024.

Read Scroll’s ground report: On the Great Nicobar island, why the future is fearful