IS IT THE SUBMERGENCE OF THE RIGHT TO SAY ‘NO’?

IS IT THE SUBMERGENCE OF THE RIGHT TO SAY ‘NO’?

 

On September 17th,2017 Prime Minister Narendra Modi celebrated his birthday with the inaugural of the Sardar Sarovar Dam. The Sardar Saroval Project (SSP) hailed as an engineering marvel is also a bearer of destruction of lives and livelihoods of Adivasi’s, Dalits and local communities living on the banks of the river Narmada. The Narmada Bachao Andolan (NBA) has been resisting this project for thirty-three years in an effort to showcase that the benefits assured by the project of providing water to the drought prone areas of Gujarat will not be achieved but it would submerge several villages and leave 40,000 [1]families without land and livelihood. Prime Minister Modi in his inaugural speech mentioned that Adivasi’s who have sacrificed their lands and livelihoods for national interest will be appreciated by the nation. He stated that It was a sacrifice that they have made to enable the drought prone regions to now have water. Isn’t this burden of sacrifice disproportionately bourne by Adivasi communities?  further, does this burden of sacrifice mean that Adivasi’s and other local communities do not have the right to withhold consent to the devastating impacts of this project.

 

As a young law student visiting the areas impacted by this mega dam two chants from the NBA movement continue to shape my understanding of environmental justice in India.

 

“We will not leave, and the dam will not be built.”

 

“We want development and not destruction.” [2]

 

These are reasonable demands and the right to prior, informed consent is a part of India’s complex legal system enabling this claim. This right though enshrined in a myriad of legislations finds its strongest foot hold in the Forest Rights Act,2006 (FRA) where in the Supreme Court ruled in the Vedanta case[3] that Gram Sabha’s of affected communities can decide on whether the project should be permitted to be undertaken or not. This is now a procedural requirement for obtaining a forest clearance. There are of course several problems in its implementation given that it takes the form of a No Objection Certificate but does not extend it to the ability of impacted communities to provide a conditional consent[4]. Despite the Vedanta judgement the right to obtain consent remains a limited right. It is limited because it is operationalized only if the communities impacted are occupying forest land as part of the Forest Conservation Act,1980. Though the Land Acquisition Act,2013 requires the consent of the Gram Sabha this provision is being diluted in different states based on their adoption of the land ordinance that was put forth in 2015. The Right to prior, informed consent is an integral part of the Panchayat Extension of Scheduled Areas Act,1996 but most states have adopted this Act in a diluted fashion.

 

The NBA has often fought on the grounds of asserting the right to informed consent though none of the legal initiatives bore fruition in explicitly recognizing this right. The tussle between right of prior, informed consent and consultation clearly emerges in the thirty-three-year struggle against the dam. The unilateral decision of the government to close the gates in June,2017[5] of the dam without informing those impacted is illegal, yet the gates were closed and areas were flooded. This along with other instances of undemocratic actions showcase that the right to say ‘no’ is merely symbolic in the eyes of the state, where acknowledging the historical injustice faced by these communities takes the form of progressive laws but the state never actively engages with the reasons for communities withholding consent.

 

The exercise of this right has often been viewed as unreasonable and obstructing development causing it to be eroded. Below I attempt to capture the unfortunate process of erosion which in some cases does not even go through these different stages. The right to reject the development project is rarely accepted and the language of consent quickly shifts to the language of compromise. This transition from the right to withhold consent to negotiating terms of compromise is a violent one. It is achieved by the coupling of state support to the use of violence, administrative apathy and unnecessary use of force- where the assertion of rights is criminalized. Even at this stage of negotiations the terms of compromise often examining the process of rehabilitation tend to be unjust, the SSP project is testament of this where the negotiated terms of rehabilitation and resettlement are not being realized. When the Environment Impact Assessment (EIA) process was undertaken for the Narmada project it did not contain the higher legal standard of public hearing or consultation. The implementation of the FRA in these areas is underway. Given that these legal standards emerged after the project was approved should it not be reviewed on the basis of these new legal requirements? Would it not be just to make it mandatory that higher legal standards that protect vulnerable communities be retrospectively applied such that the appropriate legal shield is provided?

 

 

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The problem with consultation is that the process can never be seen in isolation of the uneven distribution of power between the state and impacted communities. The requirement of consent restores the power in favour of communities to decide while in a consultative process the state may undermine the terms put forth by the communities impacted-as such consultative processes are not working towards obtaining the consent of these communities.  Consultation is viewed as a procedural hurdle to be crossed of the list only at times is it meaningful, adequate and timely. A meaningful consultation is possible when the right to withhold consent is embedded into the process- in its present form either as the public hearing within the EIA or other informal processes does not function with the mandate to arrive at an agreement with the virtues of fairness towards communities impacted. When this administrative procedure does not take place appropriately the impacted communities have to rely on the judiciary for review of administrative action which is both cost and time intensive.

 

An Adivasi activist battling against the construction of the Kanhar dam in Uttar Pradesh said “If the dam is built it is because we have lost faith in our democratic machinery which prioritizes the need of the certain citizens demanding that we sacrifice our democratic rights to oppose this project”[6]. The narrative of sacrifice that are bourne by Adivasi’s and other local communities valorize this gross injustice as a legitimate compromise that communities have to make. This undue requirement of compromise is a symptom of an ailing democratic structure which is allergic to dissent. The democratic structure must be weak if dissent is seen as a threat as opposed to something that can strengthen its foundation. The Right to say ‘NO’ is fundamental if development is to take place inclusively, else destructive development will be the dominant paradigm of our times.

 

 

 

 

[1] http://www.ndtv.com/india-news/40-000-people-will-be-displaced-due-to-sardar-sarovar-dam-say-critics-1751427

[2] Field notes from my visit to Dhadgaon in January, 2009.

[3] http://fra.org.in/ASP_Court_Cases_UploadedFIle/%7B55233dc5-b38a-4c53-9228-00a2b8d19034%7D_Briefing_note_on_vedanta_judgment_April_18_2013.pdf

[4] A conditional consent here is seen as a process where the consent is granted by communities provided that certain conditions laid out by them are met.

[5] http://timesofindia.indiatimes.com/india/gujarat-gets-centres-nod-to-shut-gates-of-sardar-sarovar-dam/articleshow/59194590.cms

[6] Field notes from my visit in May,2015

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