A few weeks ago, Nick posed a question on this blog as to what is the most pressing legal issue today. He stated that in his experience, Indians view the state’s obligation to lift them out of poverty as “the core promise of the state”. Given that promise, Nick argued that today,
“the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO, or NAZ; even though these are all critical to how India’s future will be shaped and in some cases threaten to potentially tear the country apart. The largest challenge is to close the gap between what the law says and what is implemented.”
The rest of Nick’s post focused on improving implementation mechanisms and exploring administrative law mechanisms to ensure greater implementation of laws in Indian society. I wholeheartedly endorse Nick’s argument about the necessity to eliminate corruption, understood in its simplest form as the sort of sordid saga that has been playing out in the Telecom ministry and the Congress government of late, which has permeated through the length and breadth of the Indian polity. But certainly when we speak about the gap between law and implementation, we cannot assume the neutrality of “law”. Some laws should be implemented; others like the erstwhile S.377 criminalisation of sodomy or restrictions on adoption of children by married women should not.
More importantly however, I would like to argue that POSCO and other projects that involve issues of displacement and deprivation are fundamental challenges for the Indian polity. Without denying the importance of either the Ayodhya issue or the Naz judgment (particularly for minority groups like Muslims and homosexuals respectively), I submit that the issues relating to POSCO (and other projects like Vedanta in Orissa, the Adani Port and Special Economic Zone in Gujarat, and Jindal Steel and Power Plant in Chhatisgarh) are crucial to a vast majority of the Indian population. Not only are these issues significant for the poverty upliftment of 37.2% of India’s population or 400 million people that live below the poverty line, they are crucial also for the challenge to India’s democracy by the increasingly violent Naxalite struggle in India. The Naxalite movement involves a complex set of issues including lack of development, exacerbation of inequalities and distrust in state power bred by arbitrariness and corruption. At its heart however, the movement is about struggle over land and resources and related issues of displacement and deprivation. Today, 40% of India’s geographical area is engulfed by the Naxalite struggle, up from 33% a few years ago.
Each of the abovementioned projects, i.e. POSCO, Vedanta, Adani port (and there are thousands of others) involve displacement of masses of people, many of whom are completely dependent on common property resources, including the forests, grazing land and the seas. Many of the displaced peoples are tribals (like the Dongri kondhs in the Niyamgiri hills in Orissa), or minority groups (like Muslim fishermen with a 14% literacy rate in Gujarat). In each case, people are being displaced from land that for a long time (ranging from half a century to several centuries) has been used by them to support their way of life. In fact, so long have these people lived on this land that they should have recognized customary and easementary rights over it. In reality, however, the government of India fails to recognize even their existence on this land let alone any legal claims they might have to the same. In each of these cases, displacement means destruction of a way of life and the only means of livelihood available to the group because of the government’s failure to provide them with education or any other marketable skills that would enable them to adapt to a changing economic environment. The result is sheer and abject poverty of the kind that these people have not known so far despite their humble conditions. In each of these cases, the projects impose large scale environmental degradation, including cutting down of forests, uncontrolled mining operations, reclamation of the seas and extinction of animal and marine life.
People interested in poverty alleviation, ostensibly the NAC (although the extremely watered down version of the Food Security Act and the failure to ensure a universal PDS clearly belie that impression) need to pay attention to the simultaneous processes of immiseration that the UPA government has sanctified and presided on over the past 7 years. Mr. Jairam Ramesh’s efforts to give some teeth to the environmental laws in this country are highly laudable in this regard (given that the Ministry of Environment and Forests has rubberstamped every sort of project in the past in the most non transparent and corrupt matter without regard for the human or environmental consequences of the same) but he faces opposition from half a dozen ministers in his own cabinet and a neoliberal elite who think of development only in terms of growth rates and GDP. Consequently, his achievements will likely be limited. What is shocking however is the failure of print media to sufficiently highlight these contradictions in India’s development story and that of scholars and intellectuals to engage with these issues in a comprehensive and sustained manner. POSCO and Vedanta need to be understood not merely as involving problems of violation of environmental laws and corruption issues. They have to be understood fundamentally as posing serious ethical questions about the problems of redistribution and resource allocation in Indian society. There are ample lessons from history on how to better manage these fundamental tensions and contradictions within the process of economic development, mostly on what not to do. But to take advantage of these lessons, we first need to be mindful of the nature and magnitude of the problems we are facing.
Although i dont have as clear a stand on the topic as the author, i definitely agree that this side of the argument has received a dismally low media coverage.
Also in the link about Jairam Ramesh, the statement by a coal ministry official that Ramesh's 'go' and 'no go' demarcations have no 'legal sanctity' doesn't really make sense to me.
I think Namita makes some very important points, especially when she says that, "POSCO and Vedanta…have to be understood fundamentally as posing serious ethical questions about the problems of redistribution and resource allocation in Indian society."
Certainly this is about the ethics of who gets what and how. For now it seems that the "greater common good" story is endlessly being pressed into action to deprive the weak of their possessions — in the name of development.
It is about the justification of certain needs — notably those of the middle class — to expropriate resources from those who cannot fight back.
The ethics of the question has to be seen in the methods employed in specific cases, as the recent study done by MZPSG has exposed [http://miningzone.org/]. It is about the provisions of amendments to the Land Acquisition Act that is to be tabled in the winter session of Parliament. [http://www.tehelka.com/story_main47.asp?filename=Ws081110TheWinter.asp]
As Namita points out, one has to be aware of the "contradictions in India’s development story."
I very much agree with your post Namita, especially about how resources are allocated in India today (largely with public acquiescence and not debate). When I posited that the biggest legal challenge facing India today was the implementation gap, I didn't mean to imply that implementing law for its own sake was a universal good, but rather no good can come from law (any law) unless the state has the capability of implementing it. That said, we need to address multiple legal challenges head on, simultaneously, as if the future of the country depends upon it – because in a very real way it does.
First, I'd like to thank everyone for their thoughts.
Psynox: I agree with you. I think the environmental laws of this country give the Environment Minister enough authority to declare "go" and "no go" areas. The problem is that folks in the Coal Ministry, Commerce Ministry, Mines, Power etc. all want to push for more and more projects to please their corporate constituents (and possibly themselves, if I were to adopt a somewhat cynical view in light of the scandals erupting out of the UPA closet). But the environment situation in India is so bad that Mr. Ramesh needs to adopt some tough measures to do the little he can to salvage the situation. To give you an example, ideally, the forest cover in India should be around 30%, GOI claims it is around 22-24%, people working on forests tell you that in reality it is only between 14-18%.
Umang: Thanks for sharing the http://www.miningzone.org resource and for pointing out the methods employed in the POSCO case. Having worked as a lawyer in the Mundra case, I read with interest the similarity of the methods employed in POSCO. Essentially, in all these cases, the environment clearance is given following an Environment Impact Assessment by an independent government agency. More often than not, the agency either directly or indirectly relies upon reports prepared by or data given by groups that are paid by the industrial group seeking clearance. The mandatory public hearing held for the project is either a sham involving collusion between the company and the local bureaucrat or is ignored by the state level or national level body granting the environment clearance. The industrial group usually starts construction on the project before clearance is granted. While the clearance is being challenged before the environment authority and the court, sometimes because stay is not granted and at other times because stay though granted is violated, the company continues construction. Ultimately the Court and/or the government are presented with a fait accompli and the project is regularised. This is the sorry state of environment and forest management in India.
Nick: Thanks a lot for your comment and clarification. As I mentioned in my post, I completely endorse your point about the challenges of implementation of laws in India which certainly play an important role in cases like POSCO and the others I mentioned in my post. You raised several important issues in your post which provoked some of my reflections on the contradictions within India's development story. We have a government that is pushing more and more people into poverty by depriving them of their legal rights and then prides itself on doing something for the poor through schemes like NREGA and the Food Security Bill, essentially distribution of state largesse. On top of that the neoliberal elite that run our country want to even deny this largesse to those whom their policies have impoverished. And yet there is no public debate whatsoever about the injustice involved in such resource allocation. That's the pity.
The POSCO case is of interest not merely as one more issue of "violation of environmental laws", but because it has emerged as a key test of the radical new requirements under the Forest Rights Act (which are entirely being ignored by the Environment Ministry – and the 'progressive' Jairam Ramesh – some lip service notwithstanding). Under these requirements, for the first time in Indian law, the consent of the local community is required for takeover of natural resources. There's more on this on our website: http://www.forestrightsact.com/corporate-projects
Thanks Shankar for your insightful comment about the Forest Rights Act, certainly a step in the right direction and the failures to implement the same, which connects with what Nick had written about in his post. Indeed the question is whether the government lacks the ability or willingness to implement the law? I suspect it is the latter. But at the same time we must understand the government as a gigantic enterprise with many levels and factions of operation. Therefore, even if the central MOEF wants to take certain positive steps, the fact is that its ability to do so is greatly hampered by failures at the state and local levels. And this is not just the case in environment. It is true of interventions in sectors like health also. There are huge governance, accountability and implementation failures at every level. We must highlight such failures relentlessly and force the government to fix its functioning.