One of India’s most fragile and biodiverse frontiers—the Andaman & Nicobar archipelago—faces a mega-infrastructure push on Great Nicobar. Beyond clearances and EIA checklists, the dispute now touches first principles: who decides the fate of forests and tribal homelands—and should nature itself have enforceable legal rights?
The legal and community lens
FRA due process and the Niyamgiri signal
In Orissa Mining Corporation v. Union of India (2013), the Supreme Court affirmed that gram sabhas are competent to decide claims affecting their culture, religion, and community resources. It ordered village-level referendums in the Niyamgiri Hills; all affected sabhas rejected mining, and the project stopped.
Great Nicobar’s question: Have the Tribal Councils/gram sabhas of Little & Great Nicobar been allowed to certify settlement of rights and record free, prior, informed consent before forest diversion? Allegations from the Tribal Council that FRA rights were “not settled” sharpen scrutiny of any diversion decision.
From project appraisal to constitutional values
FRA sits alongside Fifth/ Sixth Schedule principles, Article 21’s environmental dimension, and the public trust doctrine. For islands with unique ecologies and vulnerable communities, the standard of proof and participation must be higher: complete rights settlement, culturally appropriate hearings, and options analysis that considers no-go scenarios.
Rights of nature: the next step—or a distraction?
The idea
‘Rights of nature’ treats ecosystems (rivers, forests, mountains) as rights-holding legal persons. Remedies flow to the ecosystem, represented by court-recognized guardians. The aim is to make ecological injury directly justiciable, not merely a derivative human harm.
India’s experiments
The Uttarakhand High Court (2017) briefly recognized legal personhood for the Ganga–Yamuna and their glaciers, with designated guardians; the Supreme Court later stayed the ruling. Even so, the guardianship model—who speaks for the ecosystem, who is liable, how funds are managed—offers a template that could be adapted through statute rather than ad-hoc orders.
Global touchstones
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Colombia (Atrato River, 2016): Court recognized bio-cultural rights, pairing river personhood with co-guardianship between State and affected ethnic communities, and a funded restoration plan.
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Ecuador/Bolivia: Constitutional and statutory rights of nature; direct actions possible in court.
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New Zealand (Whanganui River): Legal person with joint Māori–Crown guardians and endowment for stewardship.
Design choices for India
If considered for Great Nicobar: (1) Statutory guardianship including Tribal Council nominees, scientists, and State; (2) Dedicated fund for restoration/monitoring; (3) Clear standing and remedies (injunctions, restoration orders, ecological compensation); (4) Interface with FRA so community rights and nature’s rights are complementary, not competing.
What robust decision-making would require now
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FRA first, diversion later: Independent verification that all forest rights are identified, recorded, and consented via properly convened gram sabhas; public release of proceedings and maps.
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Alternatives analysis: A credible “least-damage” study, including no-build or down-scaled options, with cumulative impacts on reefs, turtle nesting, endemic species, freshwater, and disaster risk.
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Island-appropriate safeguards: Set ecological carrying-capacity limits, strict zoning, and blue-green infrastructure standards; align with disaster risk reduction for cyclones/tsunamis.
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Guardian-style oversight (even without personhood): Constitute a multi-stakeholder oversight board—Tribal Council, independent ecologists, coast & forest authorities—with veto/trigger powers tied to ecological thresholds.
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Transparent benefit-sharing: If any project proceeds, legally earmark funds for community livelihoods, cultural protection, and habitat restoration with third-party audits.
Bottom line
Great Nicobar is not only an environmental clearance test; it is a governance test. The Niyamgiri precedent makes community consent indispensable under FRA. The rights-of-nature debate offers a structural answer to chronic enforcement gaps: guardians with standing, funds, and duties. Whether or not India embraces legal personhood now, any credible path forward must center tribal consent, ecological limits, and long-horizon stewardship for an island that is irreplaceable.
Credits: Anwar Sadat; Source: The Hindu
