Manufacturing Consent: Mining, Bureaucratic Sabotage and the Forest Rights Act in India

ABSTRACT

This article traces how substantive decision-making power over extractive projects is denied to India’s indigenous and forest-dwelling communities, even as they have clinched rights to ownership and consent under the landmark Forest Rights Act of 2006. By examining the consent mechanism provided under the act, we contend that the possibilities, and limits of such mechanisms are shaped by the larger architecture of the state-bureaucratic apparatus and practices that govern the process of transferring forests (“forest diversion” in bureaucratese) from rural communities to corporations. By analyzing a case of a forest diversion proposal for an iron ore mine in India’s resource-rich state of Odisha, we argue that consent provisions are derailed by “bureaucratic sabotage,” i.e. the power of corporations and state officials to control and manipulate the movement and circulation of documents through different tiers of government. In conclusion, we offer some thoughts on the weaknesses of the FPIC mechanism and the possible ways to address some of these. However, ultimately, the larger implication of such sabotage is the headlong collision between FPIC provisions and the principle of eminent domain. For FPIC to be meaningful, in India and globally, this fundamental contradiction must be confronted and resolved in favor of resource justice.

KEYWORDS:

• FPIC
• extractive industry
• indigenous rights
• Adivasis
• India

Acknowledgments

Chitrangada carried out much of the fieldwork for this paper as a Fellow with the Open Society Foundations. She is grateful to Bipasha Ray, Stephen Hubbell and Milap Patel at the fellowship program. We are also grateful to the residents of the seven villages of Keonjhar for their generosity, insights, and efforts to protect their forests. Stuart Kirsch and Omolade Adunbi’s feedback improved our paper. Finally, we are very grateful to the anonymous reviewers for their valuable comments. The usual disclaimers apply.

Disclosure statement

No potential conflict of interest was reported by the authors.

ORCID

Chitrangada Choudhury http://orcid.org/0000-0002-4382-2069

Aniket Aga http://orcid.org/0000-0003-1074-3441

Notes

1 While “communities” are not a homogenous monolith, in our context the term is useful for the purpose of sketching the dynamics of violent dispossession of forest-dwelling peoples.

2 Indigenous communities of mainland India self-identify as Adivasis, or original inhabitants.

3 The Environment Ministry refers to what is today called the federal Ministry of Environment, Forests and Climate Change, and is the parent body of the forest bureaucracy. For detailed accounts of the politics surrounding the framing of the Forest Rights Act over 2002–2006 and its passage, see Bijoy 2017; Gopalakrishnan 2017; Kumar and Kerr 2012.

4 For an account of environmental policymaking in the UPA regime see Ramesh 2015.

5 These include the Right to Information Act of 2005; the Mahatma Gandhi National Rural Employment Guarantee Act of 2005; the Right to Education of 2009.

6 The amendment is available at http://indiacode.nic.in/coiweb/amend/amend73.htm.

7 Under Section 6 of the FRA the role of district and state-level bureaucrats was restricted to the functioning of the Sub-Divisional Level Committee and the District Level Committee, tasked with supporting gram sabhas with the logistics of vesting rights, and resolving complaints against gram sabha resolutions and disputes between gram sabhas.

8 As Mohanty (2014) points out, in Odisha alone over a 100 Memoranda of Understanding were signed between the state government and industry, mainly extractive corporations.

9 For instance, Section 4 (2e) mandated that the free and informed consent of gram sabhas was necessary before forest dwellers could be displaced and re-settled in order to protect wildlife.

10 Author 1’s email communication with Kalpavriksh, December 12, 2016.

11 Author 1’s email communication with Campaign for Survival and Dignity, December 7, 2017.

12 Kumar (2014) analyses the Niyamgiri case in depth.

13 In a recent biography of former Prime Minister Indira Gandhi, Ramesh (2017, 6) describes his tenure as Environment Minister over 2009–2011 thus: “During this period, I got transformed from being a zealot for rapid economic growth at all costs, to someone who came to insist that such rapid economic growth must be anchored in ecological sustainability.”

14 Letter F. No. 11-9/1998-FC (pt) by C. D. Singh, Senior Assistant Inspector-General of Forests, dated August 3, 2009 available here: http://www.moef.nic.in/divisions/forcon/3rdAugust2009.pdf.

15 In 2013, the Ministry of Rural Development, under Jairam Ramesh, issued a new land acquisition act, which incorporated the FPIC principle in its main body.

16 As Madhu Sarin notes (2014, 115), “ … the FAC has no accountability to the local people whose land and forests it is empowered to permit for diversion, and it is not required to take legally recognised rights into consideration.”

17 http://www.fra.org.in/ASP_OrderCiculars_UploadFile/%7B8c4ef3db-b6cf-4297-a291-a69ebaf53345%7D_MoTA_letter_to_MoEF_on_diversion_of_forest_land.pdf.

18 See http://www.odishaforest.in/ (accessed December 17, 2017).

19 The website www.forestclearance.nic.in provides information about forest diversion proposals, FAC meetings, agendas, minutes as well as the final forest diversion approvals awarded by Environment Ministry. It is revealing that the government first publicly discloses information about a diversion proposal, that too through the limited medium of an English-language website, only when most of the decisions at the state and district level have already been made.

20 The villages were Urumunda, Uppar Jagara, Donla, Ambadahara, Nitigotha, Uppar Kainsari and Ichinda.

21 Since our focus is on India’s FPIC regulation, this paper does not go into what has ensued in the forest clearance procedures for the Gandhamardan-B project after the forgeries came to light. Briefly, though, after Choudhury (2016) published an investigative piece about the forgery in a national newsmagazine, the Environment Ministry asked the state government to probe the matter. Though the subsequent probe by officials in Keonjhar district glossed over several issues, ministry officials accepted its findings, and concluded that no further action needed to be taken. Villagers who had written to the Environment Ministry in 2014 protesting the forged gram sabha resolutions, have received no responses until the time of writing this paper. In October 2018, the Ministry issued forest clearance to OMC (see Choudhury 2019a).

22 Since 2008, when the FRA came into force, the Environment Ministry has sanctioned the diversion of around 310,000 hectares of forests (Bijoy 2017).