by R Jagannathan 1 day ago
|Only in India will governments legislate patently bad laws and then do everything in their power to subvert them so that they don’t affect development. Under UPA, bad law-making hit a new high, when rights were legislated in almost every area – food, education, land, forests – and then the government of the day tried to find ways to bypass the spirit of the law.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (aka the Forest Rights Act, or FRA) is one such bloomer enacted by the UPA in 2006 and made effective from 2008. Since then, after huge damage was done to prime industrial projects like Posco and Vedanta in Odisha, Manmohan Singh tried hard to bypass it by attempting to dilute the rules governing the applicability of law, especially the consent of gram sabhas for any developmental activity in forest areas inhabited by tribals. But with even the Supreme Court upholding the law in the Vedanta case, MMS found no way around it.
Now, the Narendra Modi government is doing its damnedest to achieve what Manmohan Singh couldn’t: find a way to bypass the requirement that tribal sabhas have to okay projects needing forest land. According to this Business Standard report, the NDA government is “discussing possible ways to do away with the mandatory requirement of securing consent from tribal gram sabhas before cutting down their forests for industrial purposes. The deliberations… are for zeroing in on such a way that the requirement is removed without going through the politically difficult route of getting the FRA amended.”
Clearly, the squeamishness is about changing the law, which is seen to be fraught with political risk. But that is actually the best way, for the FRA is simply one law too many and impinges on the applicability of many other laws – including the Forest Conservation Act and the UPA’s own Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Ac t, 2013 (the so-called Land Acquisition Act).
Worse, the FRA moves away from a very basic constitutional principle where the individual is at the centre of rights. The FRA deliberately, and with little sense of constitutional niceties, shifts rights away from individual tribals to gram sabhas. The community trumps the individual. The khap wins.
The FRA (read the full Act here) makes small concessions on what kind of development can take place in traditional tribal areas – building of schools, hospitals, anganwadis, fair-price shops, tanks, drinking water supply pipelines, minor canals, and, yes, even roads – but then adds two onerous conditions: “such diversion of forest land shall be allowed only if (i) the forest land to be diverted…is less than one hectare in each case; and (ii) the clearance of such development projects shall be subject to the condition that the same is recommended by the gram sabha.” (Italics mine)
Quite clearly, this is an anti-development law drafted entirely by NGOs who romanticise the lives of poor tribals. Imagine trying to allow a road in only “one hectare” of land, or a canal, for that matter. And even this needs a gram sabha to nod in unison.
With a total population strength of 104 million, 8.6 percent of the 2011 census total, India’s scheduled tribe (ST) population is large enough to make a huge demographic impact even without this legal mollycoddling. The STs get job and educational reservations (along with SCs) and their huge voting strength gives them a decisive say in elections in many states. Apart from the north-east, where they are often in a majority, the big tribal states are Odisha, Jharkhand, Gujarat and Madhya Pradesh. Barring Gujarat, the rest of the areas are relatively underdeveloped states. All of them have more than 30 percent of their populations living below the poverty line, most of them tribals (see this poverty map and details here).
What the FRA thus does is make development even more difficult in the states that specifically need larger doses of development and investment to lift people – especially tribals – out of poverty.
This is not to suggest that poor and/or illiterate tribals don’t need some kind of protection, but the FRA is not the right law for this. In fact, the FRA is essentially a patronising way of telling our tribals that they are not citizens, and need the protections of the nanny state (nay, good-hearted NGOs) to remain in their pristine state.
The key justification for having an FRA are, according to the FRA website, the following: (a) to empower and strengthen local self-governance, (b) to address the livelihood security of the people, leading to poverty alleviation and pro-poor growth, and (c) to address the issue of conservation and management of natural resources and conservation governance of India.
Objective (a) is the essence of the panchayati raj law (are tribals any different from normal rural folk?); objective (b) can be addressed by schemes like NREGA and food security, not to speak of the Land Acquisition Act, whose main purpose is to (over) compensate and rehabilitate people affected by development projects; and objective (c) is the business of the Forest Conservation Act, the Wildlife Protection Act and the Biological Diversity Act, among others.
The moral argument for giving tribal rights additional protection is that tribals are not legal owners of the forest areas they occupy and that they may anyway be too illiterate to fight for their age-old rights. Hence FRA. But the logical way to protect them is to make special provisions for them – including rehabilitation, if dispossessed on their traditional livelihoods – in the Land and Forest Conservation Acts, not create a separate law for tribals.
By enacting a separate law for tribals, we are effectively saying the following:
One, tribals are not one of us. They are not ordinary citizens with the same rights as other Indians. Normal laws are not enough to protect their rights.
Two, tribals are like endangered species, and the FRA is intended to create large tiger reserves for humans labelled tribals. But tribal proportions are actually rising in India, with their total in India’s population rising from 8.2 percent in 2001 to 8.6 percent in 2011.
Three, the community has to be privileged over the individual – since it is not individuals who have rights to land or livelihoods, but the community. This is fundamentally against the constitutional scheme of things. Consider how silly it would be if we were to enact a Jat Rights Act as though Jats are not individuals, but a collective entity only. But we are doing this for tribals.
India’s tribals do deserve protection, but not patronisation. The FRA is essentially a deliberate attempt by do-gooders to keep them in their pristine state of under-development.
The Forest Rights Act needs to be repealed wholesale, and the genuine rights of tribals protected by a reference to fundamental rights guaranteed under our constitution. Livelihood rights can be protected through other social legislation, of which India does not suffer any lack.
The bad law needs to go.