India: Red carpet rolled out for Corporates on Adivasi land

All constitutional, legal, judicial provisions defining Gram Sabha as ultimate authority -  thrown to the winds

Stan Swamy

22 April 2014

Ram Dayal Munda, a much loved Jharkhandi Adivasi ideologue, decries the development projects that have been destroying tribal economy and environment and promoting urbanization, leading to bankruptcy and other evils. In his poem " Vikash Ka Dard" ("The Pain of Development,"), he writes:

"I have become a vulture
Have been running towards the city
Before the death.
A big tree has been torn apart I was told
It was for the development of the nation."

In the above stanza he explains the effects of displacement. It is important to see how adivasi languages and cultural practices suffer once the people migrate and live in slums. Their languages die, as do their cultural practices and they become corrupted by the urban ugliness.

Here are some constitutional, legal and judicial provisions to safeguard the power of the Gram Sabha in Scheduled Areas:

• Forest Rights Act (FRA) 2006 Section 5(d) empowers the holders of forest rights, the Gram Sabha and the village level institutions, to protect wildlife, forests, water catchment areas, biodiversity and the cultural and natural heritage of forest dwellers and to ensure that the decisions taken in the Gram Sabha to regulate access to community forest resources...
• PESA Act 1996 enacts that consultation with Panchayats is a necessary pre-condition for alienation of any land in Scheduled Areas for development projects.
• Land Acquisition Act 2013 requires consent of the Gram Sabha for acquisition of land in Scheduled Areas for development.
• SC in April 2013 affirmed the central role of Gram Sabha in entertaining and determining upon community or individual forest rights. At para 59 of the judgment, the SC states that "the Gram Sabha is also free to consider all the community, individual as well as cultural and religious claims... State Government as well as the Ministry of Tribal Affairs would assist the Gram Sabha for settling of individual as well as community claims." [SC 2013(6) Scale 57]
• Taking all these facts into consideration, the Director of Ministry of Tribal Affairs sent a circular to all the Chief Secretaries of all States/Union Territories on 7 March 2014 cancelling all previous communications of the Ministry of Environment & Forests during 2013-14 as being against the directions of the SC. Hence compliance to FRA is a mandatory requirement before forest land can be diverted. Failure to do so would be a violation of law. [Circular No: 23011/02/2014-FRA of Ministry of Tribal Affairs].

In spite of the above very positive and helpful provisions, no positive outcome is to be seen at the ground level. The main culprit is none other than the Prime Minister's Office (PMO) itself which all through 2012-2013 has been directing all ministries to pull out all stops to weaken forest, environmental norms for industrial projects. The aim was to fast-pace industrial projects. The PMO instructed that regulations and norms had to be diluted or done away with. This included the UPA's much spoken about pro-tribal law The Forest Rights Act, 2006. Sometimes some of these changes were ordered on the direct instructions of the Prime Minister himself. The PMO recommended that the requirement of environmental clearance for projects worth up to Rs. 500 crores be done away with entirely. Projects worth up to Rs. 1000 crores should be evaluated only at State level and should not come to Union Govt for clearance. The PMO also asked that all buildings, real estate projects and Special Economic Zones be taken out of the purview of environmental clearance. It asked that expansion of capacity up to 25% for mining projects be done automatically without any public hearing. On forest clearances, the PMO asked that projects requiring up to 40 hectare of forests, instead of the then existing limit of four hectare, be handled by regional offices of the Ministry. It demanded that the handing back of rights over forests to tribals under Forest Rights Act be not verified before transferring forestland to industries. Let it be borne in mind that as per FRA the forest rights of tribals must be settled before any alteration can be made. The dilution meant exemption from environmental clearance National Highways Authority of India (NHAI) and other road expansion projects up a width of 60 metres 200 kms. Through an office memorandum the Environment Ministry ordered that public hearings for individual projects within the SEZs be done away with. A committee was set up to look at various issues the PMO had raised and it delivered the results as demanded, leading the Ministry to dilute the norms. [The Hindu, 27-2-2014].

When the main gate has been opened in terms of dilution of all constitutional, legal and judicial safeguards in favour of industries, it takes no special effort on the part of local govt administration to open other windows and doors so that the prescribed regulations and norms for transfer of tribal land to non-tribal entities can not only be diluted but also done away with. Two most important safeguards are (1) getting the consent of Gram Sabha, and (2) obtaining the approval of affected people through Public Hearings for environmental clearance. These are looked upon as cumbersome formalities that must somehow be shown as having been completed.

As for the consent of Gram Sabha, most of the representations made by respective Gram Sabhas to District-level authorities are either ignored or rejected. Nor do the officials take the trouble to inform and convene Gram Sabha meetings as per prescribed norms. As for obtaining the approval of affected people through Public Hearings, they are an eye-wash to say the least. For one thing, people are informed at the eleventh hour, and the venue of the public hearing which as per norms should be close to the affected communities is often in distant district headquarters or in exclusive facilities of the company seeking clearance. All those in favour of the project are accommodated first and those who are against the project are heckled and ridiculed and are not given an opportunity to explain their position. Added to this is the tense atmosphere created by the goondas hired by the company and numerous police with their batons and para-military personnel with their rifles. Most victimizing and humiliating experience for those opposed to the project. And these are mostly Indigenous Adivasi people whose only source of sustenance are jal, jangal, jamin.
To conclude, may we say the govt has become the guardian of corporate industrialists and is ready to sacrifice the poorest of the poor on the altar of ‘economic growth through industrialisation'.