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Monumental hurdles

The Supreme Court has invoked new add-ons for permitting mining

M J Antony 

M J Antony

Environmental concerns are not the only bugbear of mine operators. The Supreme Court has recently added a few unlikely ones like archaeology, cultural rights and freedom of religion, too, in recent judgments which should worry entrepreneurs.

In a 110-judgment delivered earlier this month, protection of ancient monuments was given precedence over development (K Guruprasad Rao vs State of Karnataka). The public interest petition was against the damage caused by iron ore to the 16th century Jambunatheswara temple in Bellary, the district that has recently been red-marked for predatory Accepting a committee report, the court stopped mining around the protected monument built in granite on an 800-foot hill, and asked the state government to create a corpus of Rs 34 million for its conservation. The committee was also asked to find out other protected monuments in the state that are facing similar danger from mining firms.

"Protection of ancient monuments has necessarily to be kept in mind while carrying out development activities," the judgment emphasised, and explained: "The need for ensuring protection and preservation of monuments for the benefit of future generations has to be balanced with the benefits which may accrue from mining and other development-related activities. While mining activity is sure to create financial wealth for the leaseholders and the state, the immense cultural and historical wealth cannot be ignored and every effort has to be made to protect the temple."

Three months ago, the court invoked freedom of religion under Articles 25 and 26 of the Constitution and the new to assert the claims of the forest community in Kalahandi, Odisha, to "protect and preserve their right to worship the deity Niyam Raja" (Orissa Mining Corporation vs MoEF). The decision to allow mining has been given to gram sabhas, with dramatic results evident earlier this week. Thus, new concepts have been brought in and the authority to sanction projects has been decentralised.

In a country with a large number of monuments and ancient places of worship, this could be a further damper on the development spree meant to benefit the top one per cent of our population. According to a recent answer in Parliament, there are encroachments in about 250 ancient sites. In Delhi alone, some 250 monuments have already "disappeared" recently, according to archaeologists. Modern construction, encroachment and mining are the main culprits. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Antiquities and Art Treasures Act, 1972 are hardly invoked when financial interests are involved.

It took Bhagirath-like efforts by the Supreme Court over decades to protect the Taj Mahal from encroachers and unregulated industries around the "trapezium", taking up the PIL, M C Mehta vs Union of India. The nearby Fatehpur Sikri of Akbar was also saved by another PIL, Wasim Ahmed vs Union of India. The Archaeological Survey of India (ASI) was directed to demolish all encroachments within 100 metres and the Uttar Pradesh police was told to assist it in the operation.

Last year, Delhi's pride, Jantar Mantar, was saved by another court order in the case, ASI vs Narender. The Aravalli hills, Suraj Kund and Badkal found courts as protectors against rampant mining. The Rajasthan High Court declared that the authorities have a right to proceed against building constructions by any person around Jaisalmer Fort. The Orissa High Court prevented any unauthorised construction coming up inside Barabati Fort in Cuttack when a club was given permission to raise a building.

All these measures of protection and preservation of ancient sites had to be ordered by courts in petitions moved by concerned citizens, though there are several authorities who should have done them in the first place. In one judgment, the Supreme Court profusely thanked a petitioner thus: "But for his painstaking effort, the Viceregal Lodge, Shimla, would have been desecrated into a five-star hotel in no time." (Rajeev Mankotia vs Secretary to President of India).

Since most of the monuments have religious significance, there is an aspect of freedom of religion also in the crassly profit-making sprees by miners. The Madras high court had to intervene to restrain mining around the 400-year-old Vaishnavite temple in Salem. The matter was taken up by a retired school teacher. The Patna high court struck down a Bihar government notification relaxing the mining rules and allowing quarrying near Ramshilla hill, which the local Hindus believe is the abode of god Yama (Rana Kumar Singh vs State of Bihar). The ceremonies conducted there were of a religious nature and therefore, freedom of religion guaranteed under Article 25 was violated, according to the court.

It was stated in the Bellary judgment that the concern for ancient sites started in 1666 when Sweden passed a law to set up professional agencies to protect them. Since then most countries have passed laws to protect their cultural heritage, even in the colonies. India has a high record on legislating and a low mark on implementation. Common people have to take the risk of moving courts against the mining and building mafia. Laws and its executors look on with the patience of a monument.

First Published: Tue, July 30 2013. 21:46 IST