On 14th April 2015, a demonstration in Sonbhadra, Uttar Pradesh against a proposed dam on the Kanhar Valley by Adivasi, Dalit protesters was met with police violence and gunfire which injured seven women and one man. Photo: counterview.net.
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Legal 'reforms' may make violence the only option for India's eco-defenders
26th August 2015
President Modi is determined to sweep away 'obstacles to growth' including the laws that allow marginalised communities to challenge the confiscation of their lands and forests for dams, mines and other 'development' projects, writes Arpitha Kodiveri. If proposed 'reforms' are enacted, the only remaining avenue of dissent may be one of armed conflict.
These proposed amendments are systematically demolishing legal spaces where people could express their struggles through rights. As resistance begins to function outside the legal rubric, violent conflicts will be more likely.
Recently, I stood at the construction of another mammoth dam on the Kanhar river in Dudhi Tehsil, in the Sonebhadra district of Uttar Pradesh, India. I was between river and forest, development and rights, conservation and loss, protest and discipline.
As I wrote an initial version of this piece in April 2015, I received word from Kanhar that the police had opened fire against the locals protesting the construction of the dam, leaving one tribal leader hit by a bullet and eight others severely injured.
This was just the beginning. Later, peaceful protests were further quelled by the arrests of activists Roma Malik and Sukalo Gond.
It is clear that the construction of this dam is illegal, but resistance to it became dangerously illegitimate as rights were suppressed, heightening the possibility of violence.
The dam is being constructed to provide irrigation to industries in the nearby area, which is heavily industrialized, while submerging over 4,000 hectares of land in the states of Uttar Pradesh, Chattisgarh and Jharkhand. The affected population here is mainly Adivasis (indigenous), Dalit and forest dependent communities, their loss deemed by many as an acceptable cost of economic growth.
Removing obstacles to growth
This is the cost-benefit narrative one constantly hears in different countries as development and infrastructure projects are underway. Yet India has a progressive legal framework that actually protects the rights of these communities and provides legitimacy to their struggles, even as many involved in the economy push for growth-oriented reforms.
But the current government is attempting to drastically alter environmental laws and land acquisition legislation. Kanhar is one such site where this contestation is taking place, and is emblematic of the conflict that is deepening in many parts of the country.
The government intends to change the existing legal framework, claiming that economic growth has been stalled by the process of granting environmental clearance as well as the new land acquisition act of 2013-an act that mandates social impact assessments and consent from affected families.
While the government views the existing regulations as obstacles to growth, people like those affected in Kanhar understand the proposed reforms to be a dilution of their rights over land and resources.
These flashpoints - where interests are positioned against each other in a way that conflicts are inevitable - can be seen across the country, from mining to other extractive industries. Here, law becomes a critical site for discussion and compromise. Especially important is the ability of the current law to accommodate negotiations in ways that allow for the expression of rights and questions of justice.
Shrinking the space to challenge development
However, the proposed legislative amendments would shrink the space within environmental laws and the land acquisition act that allows for a democratic conversation between both sides. The proposals seek to change the legal framework for environmental clearances, applying the doctrine of 'utmost good faith', meaning that businessmen would be trusted to declare the nature and extent of the damage the industry will cause to the environment.
The project proponent would be required to disclose all facts pertaining to the proposed project on an affidavit; in the case of misrepresentation or suppression of facts the proponent would be severely penalized with criminal proceedings to follow.
However, in the present clearance process, affected communities have multiple avenues - such as the initial public hearing and presentation of the environment management report - to challenge the impacts of the proposed project. The amendments would only provide one avenue to challenge, in the case of misrepresentation.
This allows industrial interests to be adequately represented, while the interests of the affected communities would be negotiated by industry itself. The 'utmost good faith' principle would function as a self-certification process where industries will determine the nature and extent of impact, and this will form the basis of obtaining clearance.
This clearly coopts the democratic space presently available for communities to express their resistance within the legal realm. It is inevitable that when restrictions like this are put into place, resistance will begin to operate outside the scope of law.
Laying the foundations for violent confict
The proposal for an amended land ordinance promises to have similar effects. These amendments seek to do away with consent for acquisition of land, either for public projects or public-private partnerships. They also are designed to remove social impact assessment provisions, which were incorporated into The Land Acquisition, Rehabilitation and Resettlement Act of 2013 after much struggle from peoples' movements for the recognition of land rights.
Amendments to the progressive Forest Rights Act also dilute the provisions for consent from the village assembly in cases of linear projects like roadways or railways.
These proposed amendments are systematically demolishing legal spaces where people could express their struggles through rights, replacing such spaces with a framework where resistance has no place in law. As resistance begins to function outside the legal rubric, violent conflicts will be more likely.
Laws relating to the environment and land are a product of social and political struggles that shaped India's legal and political creation, and the changes will adversely challenge this foundation. Encouragingly, the amendments proposed by the High Level Committee were rejected by a parliamentary standing committee on science and technology, but it appears likely that legislative space will remain a source of struggle.
As the new government negotiates the pressing need of economic progress, it is changing the role of law as a site for upholding rights and negotiating conflict. As disputes over the environment increase across India, it remains to be seen how these laws will impact communities and shape the struggles to come.
Arpitha Kodiveri is an environmental lawyer and an associate with Natural Justice where her work focuses on recognition of biocultural rights. She is also an LL.M candidate at UC Berkeley Boalt Law School.
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