Don't Like the Law - Exempt Yourself From It!
Environment Ministry issues order to break the law
The Environment Ministry, with the apparent support of the Tribal Ministry, has now decided that some projects can be exempted from taking the consent of local communities as required under the Forest Rights Act. It is not clear how they reached this decision, since the gram sabha (or village assembly) under the Act is empowered to protect forests against any kind of damage - regardless of the type of the project. While it is welcome that the PMO's effort to bypass the FRA entirely has not yet succeeded, this order is untenable in law. But then the requirements of the law has never bothered those seeking these measures much.
To put this decision into context, consider:
The Environment Ministry has never respected the Forest Rights Act when diverting forest land. With one exception, it has never rejected a project because of lack of gram sabha consent. The Forest Advisory Committee ignores the FRA in almost every one of its meetings, and in its last meeting recommended projects despite recording that they have not complied with the FRA. Can there be delays as a result of a regulation that has never been enforced?
The Central Government in fact told the Supreme Court in December - in the context of the Vedanta case, the sole time the government has actually enforced the law, while transparently seeking to make electoral gains from it - that the FRA did not permit diversion of forest land for any purpose at all. Why has it suddenly become permissible to not only divert forest land, but to bypass forest dwellers entirely? Can a law be applied selectively?
In the recent press debate on the recommendations of the PMO committee, the Tribal Minister, the Environment Minister and the Rural Development Minister were all quoted saying that they stand by requiring gram sabha consent (see here, here and here for their statements). The Tribal Minister had earlier written two letters stating that diverting forest land without taking the consent of gram sabhas, and without certificates from them that all rights have been recognised, is illegal (see here and here). But till date not a single official has been prosecuted for illegally taking over forest land or for illegal diversion. When is the government going to stand by its own law? All that has resulted so far - after three Ministers have declared that forest rights should be protected during land takeover - is illegal violations on the one hand and policy exemptions on the other.
Last year the Ministry of Tribal Affairs issued new guidelines and Rules for implementation of the Forest Rights Act. These new Rules and guidelines are focused on protecting the community rights of forest dwellers to their community resources. What meaning will these progressive steps have if the government then turns around and says it can destroy the same community resources without so much as asking those with rights over them?
It is said that it is not possible for road or other linear projects to obtain the consent of a large number of gram sabhas and this should not be required when they are affecting only a small area of each village. If indeed they are doing so, obtaining gram sabha consent will not be difficult, and merely requires that the government give 15 days' notice and call the meeting. This is done routinely for a range of government schemes which require gram sabha involvement. Where then is the question of delay?
It is also said that "it is very difficult for project proponents to get the consent of gram sabhas" in big projects. We are apparently expected to feel pity for them because they may actually be required to consult the people whose resources they are seizing. It is even more difficult for forest dwellers to live when their homes, lands and livelihoods are destroyed for nothing and they are driven from their lands like animals - which is what is happening at present. Unfortunately, this does not stir the PMO or the financial media.
We fear that the real purpose of this "exemption" has nothing to do with linear projects and everything to do with weakening the law. In practice this requirement was never enforced and hence the exemption has nothing to do with delays in projects. After all, a CII lobbyist has already declared that they will "make a case for similar changes in other sectors." So much for the commitment of this government to people and the law.
Campaign for Survival and Dignity