But the Minister failed to mention a rather important fact. The law already provides for such a democratic process, and his Ministry is the single biggest reason that those laws are not followed. The result is gross injustice to millions of people across the country, who find that their lands and forests are grabbed for corporate profit (incidentally, let's not call this "development"; in the case of POSCO, for instance, the project will destroy three times as many jobs as it will create and will result in no benefit other than profits to the company).
Let's take a closer look at the process involved. Under section 2 of the Forest (Conservation) Act, "diversion" of forest land, or the use of forest land for "non-forest purposes" (essentially any activity except afforestation) requires the permission of the Environment Ministry. This is the so-called "forest clearance" process. Approximately 23% of the country's land area is recorded as forest; under a 1996 Supreme Court order, all land recorded as forest is subject to the Forest (Conservation) Act. Thus, land use in almost a quarter of the country is technically under the jurisdiction of a single Ministry of the Central government.
These vast areas have millions of people dependent on them for individual cultivation, collection of forest produce and other livelihood activities. In many areas they are also under some form of village management, ranging from the informal forest protection committees in the POSCO area, to the elaborate state-sanctioned Van Panchayats of Uttarakhand, to the entirely community controlled areas of parts of the Northeast.
But unlike most other processes concerned with natural resources - whether it is private land acquisition, the Environmental Impact Assessment process, urban planning, etc. - neither the Forest (Conservation) Act nor its Rules provides for even informing the public, leave alone consulting them, before decisions on diversion of forest land are made. This extreme centralisation of power leads to both absurdity and tragedy. Examples abound: the Lower Subansiri Dam project, where the MoEF has diverted forest land that does not even belong to the government (it is community land); the Polavaram dam, bigger than the Sardar Sarovar project, where more than 250 adivasi villages are to lose their lands and community forests without a word about their rights; and of course POSCO.
Until January 1st, 2008, this was deemed to be legal, despite being grossly unjust. On that date, the Forest Rights Act came into force. The FRA had two critical sets of provisions that affected takeover of forest land. First, it recognised individual and community rights of forest dwellers on forests and forest lands, and explicitly barred (section 4(5)) removal of forest dwellers until the recognition and recording process is complete. Second, and more importantly, the FRA gave communities - and specifically their gram sabhas (assemblies of all village residents) and village institutions - the power to manage and protect forests, biodiversity, water sources and their cultural and natural heritage.
But this clashed headlong with the entire basis of the forest governance regime in the country, under which forests were treated as the private property of the state, to be policed, protected and destroyed as per decisions made by the forest authorities. As a result, despite the fact that it was now engaging in a direct violation of a law, MoEF simply carried on diverting forest land for projects as if the FRA and people's rights did not exist.
After widespread protest and demands from forest rights movements, in July 2009 the MoEF finally accepted that it was violating the Forest Rights Act and issued a new order. The order was simple: it said no proposals for final clearance for forest diversion would be accepted without, among other things, a set of resolutions from the affected gram sabhas. The resolutions should certify that the Forest Rights Act had been fully implemented in the area, and that the people consented to the diversion of the forest land.
Simple, but revolutionary. For the first time, the government had accepted that forest dwellers had a role in decision making over forest land diversion. The order recognised what the Forest Rights Act required, namely that forest dwellers had to be negotiated with before their lands and forests could be taken. On paper, MoEF had taken a step towards the "democratic process" that Jairam Ramesh now calls for.
Much has been made in certain quarters - by the Odisha government for one, and by Meena Gupta, dissenting member of the POSCO Enquiry Committee - of the fact that the FRA does not explicitly state that the consent of the gram sabha is required for diversion of forest land. Ms. Gupta should know; as the then Secretary of the Tribal Ministry, it was she who removed this explicit provision from the Bill as recommended by the Joint Parliamentary Committee. But in reality, even without an explicit provision, one cannot ignore the gram sabha during diversion of forest land. It is a basic principle of jurisprudence that one law - in this case the Forest (Conservation) Act, under which diversion is done - cannot be implemented in such a manner as to destroy the rights and powers of someone under another law (the FRA). The FRA states that people have both individual and community rights over forests, and the gram sabha has the power both to do the initial determination of these rights, and to manage and protect the community's forests for sustainable use. What meaning would the FRA have if another authority can simply destroy people's forests at the stroke of a pen?
But then this, of course, is exactly what MoEF had been doing - and what it has simply carried on doing, even after the July 2009 order. In the public domain there is not a single case known of a gram sabha decision being considered when rejecting or clearing a project. The Forest Advisory Committee minutes for most of last year practically never (except in a handful of meetings, with no follow up) refer to the July 2009 order or the FRA. The Minister's much-vaunted speaking orders also ignored the FRA and its implications entirely. Violation of the FRA during diversion only really became an issue of public contest, outside the struggles of the forest movements, in the POSCO case.
And what was the result? On May 2nd, after two official enquiries and even the Forest Advisory Committee agreed that both the order and the Forest Rights Act had been violated, the MoEF ignored all the evidence with it and said the project should go ahead. The full problems with this decision are beyond the scope of this article (for those who want a quick reference, take a look at the May 2nd letter of the POSCO Pratirodh Sangram Samiti, which was sent just before the order but was ignored). For our purposes here it's enough to note one thing. People have rights over this land and its forests; there is a democratic way of deciding whether this land can be taken or not; and MoEF ignored both the law and the democratic process in order to grant the land to POSCO.
And that, more than anything else, is why children are raising their small fists against thousands of armed police in Orissa, in their last, desperate bid to save their forests and homes from daylight robbery by the state.
We should recognise that MoEF's illegal actions - in POSCO and in hundreds of other projects - are happening at a time when struggles over resource grabs have become a central faultline in Indian politics. While there has been a lot of discussion about the Land Acquisition Act, few are aware of these acts by MoEF, which translate into a far more brutal and illegal land grab. In this grab, there is rarely any talk of compensation or rehabilitation. Since people mostly do not have recorded rights, they are simply thrown out. The Central government is presenting these people, Indian citizens with legal and constitutional rights, a simple choice - flee like animals from your homes, or face the wrath of the full machinery of state repression that will tear into your mountains, forests and fields for private profit.
The question before the Ministry, and before all of us, is simple. Do we believe in a society in which democracy has at least minimal meaning? Or do we believe in a state machinery who sees its raison d'etre as being the takeover of resources for private capital and state agencies? If it is the former, the forest land grab has to stop.
For more information on the July 2009 order on the Forest Rights Act and forest land diversion, see this web page.. For more on what happened on the FRA in the POSCO case, see this web page with documents, timelines and other information on forest rights and the struggle over the POSCO project.