2.MoEF Changes Stand on Relocation of Dhari Devi Temple for Alaknanda Dam

By: Soma Basu: May 10, 2013 Source: Click here to read.

AHPCL had earlier proposed shifting the temple to a higher place with the help of the non-profit The Union Ministry of Environment and Forests (MoEF) has opposed the relocation of the Dhari devi temple in Uttarakhand that would be submerged by the Shrinagar Hydro-Electric Project being constructed along the Alaknanda river, a tributary of the Ganga. In an affidavit submitted to the Supreme Court, the ministry defended the right of people to worship at the temple, drawing a parallel with the Vedanta case in which the apex court had upheld the right of the Dongria Kondh tribal people to worship the Niyamgiri hill, earmarked for blasting for bauxite mining.

“The right to worship at Dhari Devi temple is identical to the case argued at Niyamgiri and it is submitted that the present position and location and the consequent right to worship at the Dhari devi temple, cannot be compromised on any account,” the affidavit states. But the affidavit contradicts a report of the joint committee set up by the ministry, which said the temple could be raised to a higher level and that even the priests were not opposed to it. The court, it is learnt, expressed displeasure over inconsistencies between the ministry's affidavit and other reports on raising the temple structure to a higher level, a project already under way (see pic).

The 330 MW Shrinagar Hydro-Electric Project by Alaknanda Hydro Power Co. Ltd.(AHPCL), a subsidiary of infrastructure major GVK, had been trying to shift the Dhari Devi temple from its original site near Srinagar town where the project is under way for enhancing the project’s capacity from 200 MW to 330 MW. GVK was given the task of completing project in 2006 after its construction remained suspended for nearly 20 years due to financial crunch and other factors.

The issue triggered widespread agitation among religious groups. In July 2012, senior BJP leaders, including LK Advani, Sushma Swaraj and Arun Jaitley, submitted a memorandum to Prime Minister Manmohan Singh, requesting him not to relocate the temple. They also demanded that Uttarakhand be given 2,000 MW of free power from the Centre to cater to its needs as many hydel projects cannot be built on the Ganges, which is viewed as a national heritage.

In 2011, Anuj Joshi and Bharat Jhunjhunwala, petitioners in the case, sought directions from the high court of Uttarakhand in Nainital so that the temple is not shifted and its sanctity maintained.

MoEF had issued stop work notice to AHPCL on June 30, 2011.

Environment clearance conditions not followed

The Supreme Court, on April 25 this year, had ordered MoEF to verify the current status of environmental compliance of conditions by AHPCL as stipulated in the environmental clearance of May, 1985 as well as MoEF’s order dated June 30, 2011. The verification was to be carried out by a joint committee comprising officials of MoEF and the government of Uttarakhand. MoEF constituted a joint committee which visited the project site on May 1 and 2 and submitted its report on May 4. The report said that compliance to a number of conditions is unsatisfactory. In the affidavit, MoEF submitted that while the main project is nearly complete, the progress of catchment area treatment (CAT) and green belt development is “totally unsatisfactory”. Muck disposal arrangement, slope dressing, terracing and toe walls are yet to be completed. Only Rs 46 lakh has been spent on CAT as against an estimated amount of Rs 22 crores. The Uttarakhand forest department has stated that the greenbelt activity can be started only after impoundment. MoEF says that the wait is unnecessary since submergence areas are already known and it should be possible to start green belt work around project periphery.

Most importantly, the affidavit states that the Dhari Devi temple is of “tremendous religious, emotional and cultural significance for people all over the country…several religious leaders have under taken fast unto death on the score and several have announced that several will commit jal samadhi (death by drowning self)”. The affidavit also states that BJP leader Uma Bharati also visited the site several times and announced she will take jal samadhi if the temple was disturbed.

Indian National Trust For Art and Cultural Heritage (INTACH). An MoEF committee as well as the committee sent by B K Chaturvedi (constituted by the National Ganga River Basin Authority chaired by the prime minister) had found that the proposal to protect the structure by building a dry well around it was not feasible.

MoEF questions temple elevation work

The affidavit also says that it is the strong religious belief of a large section of Hindus that not just the superstructure but the very rock on which the temple stands is where Adi Shankaracharya worshipped and the rock has immense religious significance and neither the rock nor the temple should be disturbed. “To this end, the project proponent’s (AHPCL) plant to lift the temple up on columns and preserve it under the guidance of INTACH cannot possibly be a solution to this important issue.” The affidavit also pointed out that recent case of Orissa Mining Corporation (Vedanta case), MoEF had put forward similar arguments regarding the rights of the local tribal people to worship the Niyamgiri hill and the Supreme Court had ruled that the right to worship must be respected.

The affidavit also refers to AHPCL’s argument that they have completed a large portion of the construction work in relation to the shifting of the temple. However, this has been done at the company’s own risk and without explicit sanction from MoEF and thus does not confer any right upon the developer. MoEF has consistently pointed out over the past one year that the Dhari devi temple must be protected at its present location. Therefore, it is now for the project proponent to put forward a solution to preserve the temple undisturbed at its present location in order to avoid causing irreparable hurt to the religious sentiments of a large section of Hindus, both within Uttarakhand and outside.

It is learnt that the Supreme Court rebuked MoEF for inconsistencies between the joint committee report by MoEF and Uttarakhand government on compliance with environmental clearance conditions and Dhari Devi temple rehabilitation option and the affidavit submitted in the court. The court asked MoEF how it can disown its own committee report and indicated that the committee report would be heeded in the court and not the affidavit. The committee had reported that the priest association of Dhari Devi temple does not object to elevation of the temple. The committee report reads: “to preserve religious sanctity and character of the Dhari devi temple, a modified plan will be prepared in collaboration with INTACH, a conservation architect, the local temple samithi and the representatives of GSI (Geological Survey of India).

The plan should, inter alia, examine how part of rock on which the platform of the deity has been constructed, along with the rock that formed its backdrop, shall be mounted at a higher elevation in such a way that it maintains contact with the base rock from which it is raised.” While the committee report backs the B K Chaturvedi Committee report of April 2013, the affidavit dismisses its feasibility.

There is also a hurry to complete the construction work at the temple before monsoons set in. Unconfirmed reports say the date of completion of the construction work at the temple was May 13. However, sources said that even if the Supreme Court doesn’t give a stay order on the relocation of the temple, it is highly unlikely that the idol with the base rock would be shifted soon.

IN FEBRUARY, the Union Ministry of Environment and Forests (MoEF) took many by surprise when it opposed a mining project in Odisha’s Niyamgiri hills in the Supreme Court solely on the ground of violation of tribal’s’ religious rights. Extracting bauxite from the region would violate the fundamental right of a particularly vulnerable tribe, Dongria Kondh, who consider the Niyamgiri as the abode of their deity Niyam Raja, MoEF said. Till then MoEF had maintained violation of environmental laws as the reason for cancelling clearance of the project by Vedanta in 2010.

Three months later, MoEF served another shocker. On May 6, it told the apex court the ancient Dhari Devi temple in Uttarakhand, which was at risk of being submerged by a hydroelectric power project along the Alaknanda river, should not be relocated because it would affect people’s right to worship. In an affidavit to the court, MoEF drew parallel to the Niyamgiri case and said the present position and the right to worship at the Dhari Devi temple cannot be compromised. It also named leaders of political parties, including opposition BJP’s L K Advani, Uma Bharati, Arun Jaitley and then BJP president Nitin Gadkari, who have been opposing the temple’s relocation citing religious sentiments.

In the Vedanta case, the court left it to the gram sabhas (village councils) of the villages likely to be affected in Rayagada and Kalahandi districts to decide whether mining will affect religious rights of the tribals. It asked MoEF to take a final call based on the decision of the gram sabhas. In the Dhari Devi temple case the court expressed displeasure over difference in opinion of MoEF and its own committee that had said the temple could be raised to a higher level to avoid submergence. The court has reserved its decision on the case.

Though MoEF now has little say in the two projects, the eagerness with which it has argued for religious rights has stunned many. “Religious issues have been the bone of contention in many projects, but for the first time MoEF has argued its cases on religious grounds,” says a former member of the Forest Advisory Committee who does not wish to be named.

Religious rights v ecological issues

Many have hailed the Vedanta court judgment because it reaffirms the gram sabha’s authority in deciding matters related to tribal rights. The court said the gram sabha has a role to play in safeguarding religious rights of forest dwellers under the Panchayat (Extension to Scheduled Areas) Act and the Forest Rights Act (FRA).

FRA recognises traditional rights of forest dwellers over forest resources, including their way to worship. Analysts believe the judgment will come in handy for communities fighting for their sacred groves from development projects (see map [1]).

The way MoEF argued the case, however, has not gone down well with tribal rights activists. They say the ministry has reduced the larger issue of compliance with FRA to violation of religious rights. Ecological issues were also not properly argued for, add analysts.

In February MoEF was in a tricky situation. It had to defend its decision of rejecting the Vedanta project for violating FRA in the court. At the same time, there was pressure from industry and the Prime Minister’s Office to dilute powers of the gram sabha to veto a project using FRA. A 2009 MoEF order had made it mandatory for projects that require forestland diversion to obtain consent of the affected gram sabhas—something Vedanta failed to do. It was then that MoEF argued for religious rights.

The ministry told the court that people’s consent is required only in cases where a “large number of people are displaced” and “which affect their quality of life”. But in case of Vedanta, said MoEF, the project should not be allowed solely because it will affect the fundamental right of the 8,000-odd Dongria Kondhs to worship. “In a way, MoEF restricted the scope of FRA to religious rights. What about areas where a project will affect other rights of forest dwellers?” asks environment lawyer Ritwick Dutta, adding, “besides, MoEF did not define the large number of people and quality of life.” R Sreedhar, a litigant in the case, complains MoEF did not argue strongly on the violations of the Environment Protection Act and the Forest Conservation Act. “The ministry’s own committees had pointed that several conditions of in-principle forest and environment clearances were not met by the developer,” he says. Even in its judgment the court said it did not intend to pronounce on any issue except those on violation of FRA. It explicitly said that right to worship will have to be protected—and made no mention of how mining will affect other rights.

Perhaps excited by the success of its argument in the Vedanta case, MoEF issued a stop work notice to Alaknanda Hydro Power Co Ltd, which was trying to relocate the Dhari Devi temple despite the court reserving its judgment on the matter. Six days later on May 16, the ministry had to revoke the notice after the court’s intervention.

Analysts say the arguments of MoEF may lead to a situation where religious rights take precedence over ecological concerns in governance. “MoEF might be looking for an easy way out; religious arguments do evoke strong sentiments both in court and in public domain,” says Ashish Kothari of NGO Kalpvriksh, adding, “the government might be trying to gain political mileage with elections round the corner.”

Dhari Devi (above 3,200 CRORE):

Expansion of Shrinagar Hydro-Electric Project by Alaknanda Hydro Power Co, a subsidiary of infra major GVK, is underway near Srinagar town Religious concern: Expansion will submerge ancient Dhari Devi temple, sacred to Hindus. It is believed Adi Shankaracharya had worshiped on the rock on which the temple is built Ecological concerns: A committee of the environment ministry said measures such as catchment area treatment were not in place while the project work is nearly complete Current status: The Supreme Court has reserved its judgment.