Photo: Aruna Chandrasekhar

New Delhi/Bengaluru: Recent changes made and proposed to India’s environment and land acquisition policies strike at the right of communities to be consulted on decisions affecting them, Amnesty International India said today.

India’s Ministry of Environment, Forests and Climate Change (MoEFCC) has in recent months weakened requirements for public consultation with communities affected by mining and other infrastructure projects, and sought to dilute provisions mandating the free, prior and informed consent of Adivasi (indigenous) communities.

The Ministry of Rural Development has suggested changes to land acquisition laws that seek to dilute consent requirements and discard social impact assessments.  Public consultations over changes to key environmental laws have been largely superficial.

“Many corporate-led infrastructure projects could severely affect the rights of communities to clean air, water, health, livelihood and a healthy environment. The people most affected by these projects must have a say in whether and how they go forward,” said Aruna Chandrasekhar, Business and Human Rights Researcher at Amnesty International India. “Attempts to shut these communities out of the decision-making process are short-sighted and counter-productive.”

“Some of the amended laws also fall short of international standards on consultation and consent, and could further marginalise vulnerable communities who seldom have a voice in decisions taken around their lands and resources.”

“Instead of carrying forward the previous government’s efforts to dismantle safeguards on consultation, authorities must strengthen and enforce existing laws.”

Public consultations with affected communities

On 30 May 2014, the MoEFCC issued an executive memorandum stating that existing coal mines with a production capacity of up to 16 mtpa (million tonnes per annum) would not need to conduct public hearings with project-affected communities before expanding their capacity by up to 50 per cent. Public hearings are mandated as part of the environmental clearance process for certain projects under the Environment (Protection) Act. They are the only existing formal means of consultation under Indian law for both indigenous and non-indigenous project-affected communities.

On 28 July, the Ministry extended the exemption from conducting public hearings to mines with a capacity above 16 mtpa seeking to expand their capacity by up to 5 mtpa. On 2 September, the Ministry issued another memorandum, exempting mines with a production capacity of over 20 mtpa seeking to expand capacity by up to 6 mtpa from conducting public hearings.

On 25 June, the Ministry amended its Environment Impact Assessment notification of 2006, which details the process by which environmental clearances are granted. The amendment made certain categories of projects, including irrigation projects which required less than 2000 hectares of land, exempt from requiring environmental clearances, and therefore exempt from needing to consult affected communities.

“The right to consultation must not be seen as a roadblock to projects, but as an integral part of the development process,” said Aruna Chandrasekhar. “The Ministry must require public hearings and environmental impact assessments to be conducted for all projects that could impact people’s lives, livelihoods or environment.”

Indigenous communities’ rights

Under India’s Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act – also referred to as the Forest Rights Act – any use of forest land for non-forest purposes requires the prior consent of the concerned gram sabhas (village assemblies), and documentary evidence that all individual and community claims over forest and community lands under the Act have been settled.

In recent months, authorities have sought to dilute these requirements. On 4 July 2014, the MoEFCC wrote to all state governments stating that documentary evidence of settlement of claims would no longer be required for proposals for prospecting in forest land.

On 28 October, the Ministry wrote to state governments stating that in cases where there were no recent census records of the presence of tribal communities and plantations had been categorized as ‘forests’ after 13 December 1930, gram sabha consent and documentary evidence of settlement of claims would not be required for forest land to be used for non-forest purposes.

The letter suggested that there could technically be no ‘Other Traditional Forest Dwellers’ – another category of indigenous communities – living in these forests. Under the Forest Rights Act, these communities need to have lived in and depended on forest lands for at least three generations prior to 13 December 2005, dating back to December 1930.

However the Act makes no distinction between plantations and other forests, and its definition of ‘forest land’ does not refer to a date of classification. The Ministry’s narrow interpretation of ‘forest land’ would therefore affect the rights of Other Traditional Forest Dwellers living in these forests to consultation and free, prior and informed consent.

Media reports also suggest that the government is planning to do away with the consent requirement for projects located outside ‘scheduled areas’ – certain Adivasi regions identified under the Constitution as deserving special protection.

“India must uphold its obligations under international and Indian law to protect the rights of indigenous communities over their lands and territories, and ensure that their free, prior and informed consent is sought on matters affecting them,” said Aruna Chandrasekhar.

Land acquisition

In July 2014, the Ministry of Rural Development wrote to the Prime Minister’s Office proposing a number of amendments to the flawed but progressive Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, which came into force on 1 January.

The changes proposed included diluting or doing away with provisions requiring the consent of 70 per cent of families where land was sought to be acquired for public-private partnership (PPP) projects and 80 per cent for private projects. The Ministry also recommended that social impact assessments mandated by the Act be restricted to only large projects or PPP projects as they ‘might delay the land acquisition process’.

Other changes proposed include reexamining the Act’s definition of ‘affected families’ eligible for resettlement and rehabilitation to exclude those who don’t own land but whose livelihood is affected by land acquisition.

The Act excludes several important industries – including coal mining by the state – from its ambit, and states that the central government shall make it applicable to these industries within one year of its commencement. However, the government has not taken any known measures in this regard.

“Authorities must not rush to amend a law which has barely been implemented on the ground. Instead, they must ensure that its provisions are strengthened and extended to all people affected by any project, and explicitly prohibit forced evictions in all circumstances,” said Aruna Chandrasekhar.

Consultations on legal reform

On 29 August 2014, the MoEFCC set up a committee to review key environmental laws, including India’s Air Act and Water Act, and “recommend specific amendments…to bring them in line with current requirements to meet objectives” within three months. However the committee’s mandate, while broad, remains vague, and its consultations have provided limited opportunities for public participation. The committee has conducted consultations in only urban centres so far, which have been largely inaccessible to many project-affected communities across the country.

A consultation held in Bangalore in September, which was attended by Amnesty International India, ended before schedule, and members of the public were not given sufficient time to provide feedback. The MoEFCC has invited suggestions and comments from members of the public. However these suggestions can only be made online, and at one point were restricted to under 1000 characters.

“A review of important environmental laws that will have long-lasting implications on millions of people must not be done in haste or in a perfunctory manner,” said Aruna Chandrasekhar. “It must involve consultations with a wide-range of stakeholders, especially from affected communities, in a manner that is transparent, meaningful and inclusive.”