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Need for Greater Public Participation in the Law Making Process

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By– Arsh Dhanotia, who holds an LL.M in Constitutional and Administrative Law from the Symbiosis Law School, Pune and is currently practicing as an Advocate in the Supreme Court of India, High Court of Delhi and other Tribunals.

The article deals with how public participation is significant and essential towards lawmaking in especially uncertain times like these. The Covid crisis has made us realize the fact that the basic tenant of healthy democracy is more participation of the public in decision making. Numerous incidents guide us in this direction and thus, in this concern the piece tries to showcase how such participation can be vital for both the government and the public.

Lawmaking in India and How it is Incomprehensible

Laws tend to rely on different perspectives which makes the understanding of it complex. As one starts to acknowledge its real essence one must investigate so many concepts, which makes laws so ambiguous, at the same time what we extract out of it in most cases tends to be semantic and the same becomes indeterminate. In reality, laws simply are nothing but opinions, past experiences, current scenarios, future possibilities, thoughts, etc., and the list is non-exhaustive. The major concern is law-making is manipulated by the ones who are in power to serve agendas which are not for the betterment of the masses. In this connection, law making has seen the lowest of lows in India, as the problem is not only associated with the current law making, but has been prevalent since a very long time. For example, laws made during the emergency period can be seen in this concern, as lawmakers approved laws which were totally against the fundamentals of the Indian constitution especially violating civil liberties like the freedom of speech and expression. One such law was the Maintenance of Internal Security Act, 1971-1977, this act was amended several times to complement the agenda of the then government in power and included draconian provisions related to the search and seizure of property including detention of individuals. The provisions were used as a tool for arresting, torturing and in some cases shockingly sterilizing people. It is believed that around 1 lakh people which included opposition politicians, scholars and journalists were arrested and detained without giving a fair trial. All this showcases how law making can be molded by the one’s in power to satisfy their agendas.

Apart from that, in this category one can also include the recently formulated farm laws namely the Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020 and the Essential Commodities (Amendment), Act, 2020 which has brought the farmers from their farms to the roads in protest. The main dissatisfaction of the agitating farmers is that these new farm laws will make the Minimum Support Price (MSP) inconsequential and the farmers would not have any assurance as to a fixed income. But their voices are not being heard as the ones in power believe that the ones working in the fields do not know much about what policy and governance mechanism they need. The other legislation which can also be put in this category is the Citizenship (Amendment) Act, 2019, as basically this law is said to be unconstitutional, as according to many constitutional experts its passage directly works against the secular nature of the Indian state as stated in the dicta enumerated by the Hon’ble Apex court in Kesavananda Bharati vs State of Kerala (1974). The legislation also goes against numerous international laws like Convention on refugee law 1951 and its 1967 protocol, whose Article 3 clearly states that the state shall not discriminate on the basis of religion and nation when dealing with refugees. The same also points out as to how section 2(1) of the new CAA act is violative of the basic principles of human rights as well as the constitution of India, which clearly without any valid reason excluded persecuted Muslims. Apart from all these laws there is a list of 100 such legislations reported by three organizations i.e. Macro/Finance Group at the national Institute of Public Finance and Policy, Vidhi center for legal policy and Center for Civil Society which reports that all such Indian laws are not valid in today’s day and age. But in that connection, there is nothing which the public can do about it as there is no participation of the public in modifying or replacing laws on a major scale in India and even if they wanted the ones in power would never allow that to happen.

Need for Public Participation in the Law Making Process

When you concentrate all powers in government, it leads to tyranny, incompetence, and mass murder. But when you distribute that power from the government down to the people, it results in much more stability. We in theoretical terms have a government of the people, by the people and for the people. It basically means that for things to work properly, people have got to take care of their communities, about who is running the administration and why? but that does not happen at all. Instead, most of us think about escaping such issues, and do not think about fixing things. This would also help us overcome the trauma all of us face after perpetually electing the same incompetent people who push an agenda instead of fixing or addressing our problems. Society requires public participation, it should be our will to rescue our own society instead of having faith in incompetent leaders who fail us every single time. The Coronavirus pandemic and the current situation in India is proof of this and leaders from across the political spectrum are to be blamed.

Coming back to law making, it is true that for almost every infringement there are laws, but the practical applicability is not achieved in most cases because of time constraints and other technical aspects. But if public participation is allowed in the law-making process, it would be the most comprehensive way to provide what the law has always entrusted for, which is justice. The term justice in the current times is so vague that there can be volumes written on it. But in order to achieve actual justice, one must understand the concept of justice first so that we are able to formulate the notion of law and build our common sense upon as to how laws are framed. The same will also help us understand the permutations and combinations of it, and thus after recognizing all this one will understand why there is a need for public participation in law-making. The most logical way to move forward in this direction on an individual level is to come out of our comfort zone and bring a change in one’s surroundings through being vocal and critical which will in many ways create an awakening; desperately needed in these current times. 

Successful Trials

In India, central and state governments are still lacking in including greater public participation in law making, and the current situation in relation to the pandemic is again proof of that. But a lot of can be learnt from countries with direct democratic institutions like Switzerland, whereby any citizen can initiate amendments in the constitution with popular support. It is further evident that the laws made by the Swiss government during the Pandemic concerning coronavirus were subject to a referendum (public opinion). Another prominent democratic state which has stepped up in this direction is Canada where the citizens participate in law making in different ways, there exists a specific legal code which deals with how people will participate in legislative process. The best example in this concern can be the recent poll conducted throughout Canada during the Pandemic where the citizens of Canada were asked upon as to whether they were satisfied with the policy making of Canada, though not clearly concerned with law-making, but at least citizen participation was invited. Such steps can also be taken by the government in India if not binding opinions, then at least advisory opinions can be taken from the public.

Self-Reliance Coupled with Justice is the Key

Thus, during these Covid times where the entire nation is struggling governments must leave aside the tricky dynamics of power politics and should try to accommodate greater public participation in law making to bring an end to their own fallacy. The Pandemic has majorly derailed the country in every sector and hence, the entire community must work together for helping things come back to normal. The citizens of India can collectively give their valuable opinions on how to row this sinking boat so that our society can soar from these unprecedented times, as it is us who must safeguard our own rights and question the government on the numerous legislations they frame. Though I will not give any specific policy suggestion concerning public participation in law making, but what I can suggest is that justice should be the key element present in any such policy framed. Though it also cannot be denied that majoritarian can be one drawback of such an initiation, whereby the people in majority in any composition can try to implement laws which is more suited for them and their inner circle. But if one looks at urgent and emergency issues like the current Coronavirus pandemic such inclusive initiatives in fact can be very useful as the majoritarian notions based on religion, caste, color, race and sex seem to get neutralized as the virus does not make calculations on whom to hit.

Hence, greater public participation in the law-making process in especially the current times is the need of the hour…

Disclaimer: The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher or its members.

Opinion

Animal Sacrifice in Shrines of Himachal : Question of Belief and Rationality

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By – Dr. Devender Sharma, Assistant Professor, Department of Political Science, Centre of Excellence Government College Sanjauli, Shimla (Himachal Pradesh).

 The present piece deals with the recent public discourse on the 2014 High Court’s decision to ban animal sacrifice in Hindu religious places of Himachal Pradesh. There are various arguments in favor and against this decision. The historical process of transformation from the practice of animal sacrifice in the temples to the present movement towards vegetarianism and opposition to stop this practice as well as the interplay between two contradictory ideas is the focus of this article.

               On September 2014, animal sacrifice was banned in the religious places of Himachal Pradesh by a Himachal Pradesh High Court judgment. The decision provoked surprise and dismay amongst the people involved in the management of mostly Shaivism and Shaktivism centric shrines of the state. Many administrators and devotees decided to appeal to the Supreme Court against this judgement, in the name of freedom of religion. Others, by contrast, welcomed the Court’s determination to end what the judgment denounced as an evil custom in a civilized society. Later on in 2017 the Supreme Court gave an interim order on the petition against the orders of the High Court and reinstated the old tradition with some regulations.

Public Debate on the Court’s Decision

                Over the years numerous debates have come up on the issue and the most intense debate which started in the public sphere was focused on the court’s decision to adjudicate upon practices that are deemed as being an integral part of Western Himalayan Hinduism which is majorly centered around shrine based Shaktivism and Shaivism. Critics say the decision encroaches on the beliefs and religious practices of especially Western Himalayan Hindus and infringes their fundamental right to the freedom of religion. Such an act, they contend, is an effort to examine diverse traditions and customs through the prism of selective parameters, and to change the existing norms with new ones. Some feel that this decision is an incursion into matters of faith and runs against the principles of pluralism and diversity, which are considered indispensable components of Indian multiculturalism.

Based on the case details and ethnographic data there is something beyond the official and ‘public’ aspects and thus, it is pertinent to understand this practice from a socio-economic perspective as well as by keeping in mind the belief system of the people of major parts of the state.

 Historical Context

             Historians have traditionally made varying analysis of Bali (Sacrifice), through “great tradition” and “little tradition”. According to them “great tradition” means text based religious practices and “little tradition” means a residual set of practices, associated with divinities and spirits. Animal sacrifice is a “little tradition” in which ritual killing or offering of an animal is part of the religion to appease or maintain favor with the divine agency. Such forms of sacrifice are practiced within many religions around the world, from Judaism to Christianity and from Islam to Hinduism. In Hinduism, animal sacrifice was also part of the ancient Vedic religion as is mentioned in scriptures such as the Yajurveda. But over time especially the Vaishnavism sect of Hinduism experienced reforms in the medieval period, and an attempt was made to de-emphasize on animal sacrifice. But the same continued with the Shaivism and Shaktism sects of Hinduism and overtime this got strongly rooted in local popular or tribal traditions of especially the Western Himalayas which many Hindus term as the land of Shiv and Shakti.

Animal Sacrifice in the Shrines of Himachal

                 In Himachal Pradesh and the entire Western Himalayas which also includes Jammu & Kashmir and Ladakh, Hinduism is mostly centered around the Shaktivism and Shaivism sects and is well known for the deity worship culture. Here many consider festivals like Shivratri and Navratri more important than Diwali which is a Vaishnavism sect centered festival and thus there is a belief among people that without performing traditional rituals, local deities who are incarnations of Shiv and Shakti will bring misfortune to them. In especially many parts of Himachal Pradesh it is a common tradition to sacrifice animals in full public view during religious festivity in many religious places of Upper Shimla Area like Shaand Maha Yagna and Bhunda Maha Yagna, where goats and sheep are sacrificed in hundreds and are symbolically offered to the deity and later taken home by villagers and their guests for eating. Also, at the Mindhal Devi shrine of Pangi (Chamba), herds of sheep and goat are sacrificed to the deity. According to the tradition in many shrines of Kullu also, the sacrifice of animals is done on a massive scale. Further, in the Hidimba Devi shrine of Manali one can spot its exteriors adorned with sacrificial remains of animals including goats and buffaloes. The list goes on and on and many such examples which can be cited from across the state.

Animal sacrifice is also performed for life events such as birth, marriage, and death. There is also a strong faith in especially many communities of the state that without sacrifice of animals their tradition would die out, and therefore, sacrifice is essential for them.

 Practice under Transformation

However, in many parts of Himachal Pradesh, there is constant change in the acceptance of Bali, on the part of the diety or devta. In many places people are coming under the influence of the non-native Vaishnavism which is largely followed in the Hindi Belt and under the influence of this sect people have stopped offering animals as sacrifice and are moving towards vegetarianism. Puja is becoming more Satvic in nature and less Tamsic. The food which is being offered to the diety or devta is also becoming more purified in accordance with mainland Brahminic criteria’s which is mostly being spread in parts of the state by migrant Vaishnav Garhwali brahmans of Uttarakhand whose numbers have risen over the years. Also, wider Pan-Hindu notions of divinity, where vegetarianism is considered Sanskritic and essentially better is penetrating in the local society through the influence of a popular Vaishnavism centric religious movements in the region like ISKON and BAPS., which are gradually changing Himachali and Western Himalayan concepts of divinity and their related religious experience.

Furthermore, another dimension which needs to be explored in this context is that of animal rights activists who moot for ban on animal sacrifice and term it as abusive. They also believe that earlier people were uneducated and thus supported animal sacrifice but now according to many of them education has started creating awareness and is changing the value system of the younger generation. They connect the Bali system with backwardness and emphasize on the encounter between local traditions and modern education.

Thus, historically in Himachal Pradesh and the entire Western Himalayas, communities were meat eating due to different reasons like harsh climate, pastoral economy, scarcity of grains and pulses etc. Over the period meat eating among Hindus got religious sanctity through deities and animal sacrifice started in the Western Himalayan shrines. But in the present times there is no universal support for animal sacrifice due to dominance of Vaishnavism centric Hinduism and thus this practice under Shaktivism and Shaivism is in decline. Also, from the religious standpoint new mediums of sacrifice are being offered to deities by people influenced by Vaishnavism like sacrifice of pumpkin in place of goats and buffaloes etc. More connectivity with mainland India and especially the Hindi Belt is probably another reason for this. Then, education and development of people from pastoral economy to a settled agriculture economy has also changed the food culture of the people in the region.

 Conclusion

            To summarize, over the years material conditions changed in the region and meat eating along with animal sacrifice in shrines are being challenged by animal rights activists and movements related to the Vaishnavism sect of Hinduism. But only time will tell how this transformation will affect locals in the long run, as orthodoxy of any sort can damage communities. There is no doubt that traditional practices in Himachal Pradesh need reformation but outside religious influences especially from the Hindi Belt that challenge the traditional way of life in the entire Western Himalayas on Pan-Hindu lines can create more problems in the coming years leading to the eruption of a different sort of orthodoxy which could be more divisive and harsher. On the other hand, radical moral conclusions on the part of animal rights advocates also can further lead to unnecessary traction within communities. Thus, to avoid all this a modern progressive approach concerning the wider reformation of traditional practices within the entire Western Himalayan region seems to be the best approach as a mixture of tradition and modernity can serve all interests.  

Disclaimer: The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher or its members.

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Farmers’ Movement and Why it Has Failed to Make Inroads in Himachal?

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By – Dr. Devender Sharma, Assistant Professor, Department of Political Science, Centre of Excellence Government College Sanjauli, Shimla (Himachal Pradesh).

 The present piece relates to the ongoing farmers’ movement in India. An effort has been made to understand the reasons upon as to why the protests have failed to make inroads in the Western Himalayan province of Himachal Pradesh.

 The population of Himachal Pradesh is predominately involved in agriculture and horticulture, but one finds minimal active support in the province for the current nationwide farmers’ movement. There are plenty of reasons for this, which needs to the highlighted but before moving there a discussion is must on the findings of the recent NSS report released on 10 September 2021. As the findings are worrisome not just for the policymakers, but for farmers and the farmers’ movement as well. The NSS’s 77th round on the “Situation Assessment of Agricultural Households and Land and Livestock Holdings of Households in Rural India, 2019”, has noticed that an average farm family makes about Rs 10,000 per month, less than what a domestic worker would earn in big cities. In other words, a farmer’s family earns more from doing labor elsewhere than by working in its own fields. In the background of this report the ongoing farmers’ protest highlights issues like these which ultimately are a result of the policies adopted by governments from the time of independence.

Further, protesting farmer organizations also believe that the recently introduced farm laws are designed to further the interests of the large corporate houses which will make things more difficult for them. They say the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 has the potential of destroying the government led APMC mandis.  Also, according to them the second law on Contract farming puts the farmers in the dock by not just opening them to risks when getting into contracts with companies but also by closing the door of the courts for farmers. Then, they also oppose the Essential Commodities (Amendment) Act, 2020, as corporates are allowed to buy, store, sell produce minus regulation and accountability of any sort. It also according to them seeks to restrict the powers of the government with respect to the production, supply, and distribution of certain key commodities.

Situation of Horticulture and Agriculture in Himachal Pradesh

Moving to Himachal Pradesh and analyzing the situation here one can say that a large section of the population heavily depends on food grains produced by the farmers of the plains, which is distributed at subsidized rates through PDS, and thus these laws could prove to be a death knell for the state which is still run on largely welfarist lines. Though, in the post-independence era, land reform measures in states like Himachal Pradesh have been taken, as well as the policy push to develop horticulture, supported the farm-based economy. But conditions for subsistence in mountainous, forest and farm-based livelihoods only became more unfavorable with this. Fragmentation of land into small farms has affected yields. In addition, transition from traditional crops like millets and barley to cash crops (like apple and vegetables), has led to the younger generations moving out of non-remunerative subsistence farming, along with this the weakening of a livestock rearing economy has happened and these are trends which have largely emerged with state-driven neoliberal market interventions. In the year of the pandemic and resultant lock-down, access to labor and markets was very difficult. As a result, horticulturalists in the upper areas of the state suffered immensely.

Himachali farmers have been traditionally credited with turning the state’s rugged mountain valleys into India’s best farming hubs, especially with the coming up of the apple revolution and high-yield cash crops in especially the upper areas of the state. But the success story has now rapidly gone downhill as the share of agriculture in Himachal Pradesh’s economy has dropped to just 8 per cent in 2017-18, compared to 26.5 per cent in 1990-91. Large tracts of fertile land have been abandoned by farmers in the state for being uneconomical. This land is also used for various development projects of the government leading to scarcity of agricultural land. “The contribution of agriculture and allied sectors in the total State Domestic Product has declined from 55.5 per cent in 1967-68 to 26.5 per cent in 1990-91 and further down to 8.8 per cent in 2017-18,” said Himachal Pradesh’s latest economic survey report, tabled in the state legislative assembly. In comparison other sectors like transport and services have also seen a significant growth graph.

Over the last two decades, farmers have used government incentive to make the best use of controlled-atmosphere farming which is flooding markets across the country with heaps of off-season vegetables and flowers. Himachal produces around 17 lakh metric ton vegetables and almost 40 per cent are off-season vegetables. The production exceeds that of cereals and fruits. Yet there are problems pertaining to the post-harvest technology. The farmers have been pointing out that there are no mandis in the state for the exotic vegetables and flowers. Farmers are forced to take their produce to Delhi which is sold through agents. Thus, the Vegetable farmers in the hill state are facing multiple challenges including lack of cold storage and food processing units.

The horticulture sector in Himachal Pradesh — the backbone of the state’s economy is also facing a major crisis. The area under fruits, which was 792 hectares in 1950-51 with total production of 1,200 tonnes increased to 2,33,300 hectares during 2019-20 and the total fruit production was 8.45 lakh tonnes, while during 2020-21 (up to December, 2020) it has been reported as 4.82 lakh tonnes. Fruit growers have almost run out of packaging material to store their produce, after a 21-day nationwide lockdown was invoked to curb the spread of the novel coronavirus disease (COVID-19). Fruit growers also faced depleting supplies of fertilizers, pesticides, micronutrients and fungicides and a lack of means of transport to mandis for sale.

 Impact of nationwide farmers’ movement in Himachal Pradesh

              The farmers protest in Punjab, Haryana, and Western UP and for that matter in the entire Hindi Belt has had little impact in Himachal Pradesh. Apart from a tractor rally at Haroli and Paonta Sahib on 26 January 2021 and a couple of peaceful protests on Bharat Bandh in adjoining regions with Punjab and Haryana due to proximity with these areas, Himachal Pradesh has not witnessed any widespread agitations against the new Farm Laws. Like Punjab and Haryana, Himachal Pradesh is also a predominantly agrarian state, where 93 percent of the state’s population lives in villages and most of them are directly involved in agricultural activities.

To understand why support for this movement is weak among farmers of Himachal Pradesh. It is pertinent to look at three different dimensions. Firstly, the nature of the agriculture production in Himachal Pradesh is of subsistence nature. Punjab, Haryana and Western Uttar Pradesh are the areas where after green revolution, agriculture production has been highly commercialized, and farmers produce wheat and rice largely for the market. Their relations with market made them more organized. Contrary to this, the land relations developed in Himachal after extensively executed land reforms and around 87 percent of the farmers according to government data are small and marginalized farmers who are dependent on subsistence farming. This nature of subsistence economy could not relate to farmers who are market oriented and thus consequently farmers in Himachal Pradesh remained unorganized. Furthermore, the Agro Climatic zones in Himachal are very distinct in comparison to other states. There are four zones; Lower Hill Zone where wheat, maize, paddy, gram, sugarcane, potato are major crops; Mid Hill Zone which has very good potential for the cultivation of cash crops like off-season vegetables and ginger; High Hill Zone ideally suited to produce apple, quality seed potato and temperate vegetables, and finally the Cold Dry Zone suited to produce quality seed potato, temperate and European type of vegetables and their seeds. These distinct climatic zones are making it difficult to organize farmers for common issues.

Secondly, farmer organizations are not that much organized in Himachal as in Punjab, Haryana, or the Hindi Belt. Farmers in Punjab, Haryana and Western UP have commercialized farming, which makes it inevitable to develop market relations and consequently turns into contradictions. Contrary to these states, in Himachal non-commercial agriculture production could not organize farmers. However, apple economy and off seasonal cash crop production in a few areas is commercialized and has eventually brought together farmers on different issues, from reforms in marketing mechanism to demand of subsidized seeds and fertilizers. The first 1987 statewide agitation of apple growers started from Kotgarh and Rohru for shortage of carton and apple scab disease, but it was a localized movement and did not make impact in other parts of the state.

Thirdly, when the farmers’ movement for abrogation of three Farm Laws got momentum in Punjab and Haryana, few farmer groups from Himachal participated in the movement, limited to mainly the plain areas of Una and Paonta Sahib, which have proximity with Punjab and Haryana. Concerning the majority farmers of Himachal Pradesh, the demands of the mainland farmers for MSP does not coincide with the demand of the Himachal Pradesh apple growers along with other cash crops growers, who are demanding MIS (Market Intervention Scheme).

              Besides that, the direct implications of the three farm laws are difficult to comprehend for the common people, especially when the mainstream media reportage is pro-government and against the farmers’ agitation. On the other hand, the objectives of the farmers’ movement are also centered on mainland issues and problems of the Western Himalayan farmers of India’s Far North which also includes Jammu and Kashmir and Ladakh apart from Himachal Pradesh are not being highlighted by them.  

 Conclusion

To sum up, it can be said that the agricultural economy in Himachal Pradesh is largely of subsistence nature, which could not make market relations. Apple along with some cash crops have in some extent commercialized the economy and this has made farmers organized, but not to that level, where they could unite to lend active support for a nationwide farmers’ protest. Secondly, farmers of Himachal are not able to directly relate their problems with these three Farm Laws as the main issue for them is MIS which has not been highlighted strongly by the mainland farmers.

Though it can be said that if issues like Market Intervention Scheme is extensively taken up by the national farmer organizations, then it could lead to more support for them especially from the farmers of Himachal Pradesh as well as Jammu & Kashmir and Ladakh. Furthermore, trends towards high density apple production in hitherto predominantly agriculture production areas could also compel Himachali as well as Kashmiri and Ladakhi horticulturists to organize in a better way and form and support the nationwide movement.

Disclaimer: The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher or its members.

 

 

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Opinion

Development, Displacement, and Biodiversity: With Special Emphasis on the Forest Rights Act, 2006

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By – Aagam, Ph.D. Scholar at the Faculty of Law, Himachal Pradesh University.

The piece deals with the issue of development, displacement of indigenous people, and biodiversity. The article suggests that indigenous communities are closely linked to the forest and other similar resource-rich areas because they are the original inhabitants of such areas and are wholly dependent on that setup. In fact, they can be considered as the real protectors of biodiversity.  The work also highlights issues concerning the displacement of thousands of people through various development projects. Further, various pivotal provisions of the Forest Rights Act, 2006 and the problem concerning their ground implementation are discussed.

Development according to Amartya Sen is a process of expanding the real freedoms that people enjoy. It is the process of enhancing individual capacities to avoid various deprivations such as starvation, malnutrition, morbidity, and mortality. But nowadays the definition of development has changed. It has been limited to the GDP and prodigality. Constant destruction of nature has been a norm due to the coming up of many development projects in rural and tribal areas, at the same time all this plays with the interests of the inhabitants of these areas. In essence, when we discuss the term nature or forest, it does not mean only plants and trees rather it includes biodiversity and ecology. Everything is linked to ecology, from little plants and insects to large creatures and humans. Each component of this ecology serves a purpose, and each maintains a natural balance. Human beings are the ones who disrupt this balance, whether for the sake of development or to make indiscriminate profits. In the current Indian context, a lot is happening in this concern and various legislations enacted by the British colonizers have been used to grab the land in resource-rich tribal areas. The Indian Forest Act, 1927, can be seen as one such enactment which is wrongly perceived by many as an important legislation for the conservation of forests. But that is not the case, as it was only enacted to meet commercial and military demands for timber. By recognizing forests as state property, the enactment attempted to overthrow customary rights and forest management systems which gave an open license for timber exploitation.

Eventually, almost sixty years after independence, the Parliament passed the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights Act, 2006 (hereinafter mentioned as the Forest Rights Act, 2006). The legislation deserves praise as it admitted the historical injustices suffered by Adivasis and other traditional forest dwellers whose rights had been inappropriately recognized throughout the colonial period as well as in independent India. In essence, it has multiple progressive provisions like  Section 3(1)(a)  which provides that the members of a forest-dwelling Scheduled Tribe or other traditional forest dwellers have the right to hold and reside in forest land under individual or common occupation for habitation or self-cultivation for livelihood. Then, Section 3(1)(c) gives the right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries. Section 3(1)(d) provides for other community rights of uses or entitlements such as fishing rights in water bodies, grazing (both settled or transhumant), and traditional seasonal resource access of nomadic or pastoralist communities. Section 3(1)(g) then provides for the rights for the conversion of Pattas or leases or grants issued by any local authority or any state government on forest lands to titles. This legislation also grants the rights to protect, regenerate, conserve, or manage community forest resources under Section 3(1)(i). Furthermore, Section 5 empowers the holders of forest rights or other village institutions to protect the wildlife, forest, and biodiversity. It further puts a duty upon the holders of the forest right to ensure that adjoining catchments area, water sources, and other ecologically sensitive areas are adequately protected. They are empowered to ensure that their habitats are protected from any destructive practices that would harm their cultural and natural heritage. Further, they must have to stop any activity which adversely affects wild animals, forests, and biodiversity. Apart from this, the Gram Sabha has provided the authority to initiate the process of determining the forest rights.

Consequently, at the global level, all this can be related to the first half of the 19th century where imperialist powers had made most of the third world their colonies and implemented conservation strategies to loot natural resources. Then, in the late 60s, the strategy slowly changed, and neo-colonialism started getting implemented in these areas. This wave had a deep nexus with the corporates, who slowly and steadily in the decades to follow started running alternative propagandas with the help of the newly created NGO mechanism centered around campaigns which portrayed the opinion that people should plant more trees, save the environment, etc., and very consciously and cleverly were able to side-line social movements centered around environmental protection. Even with the emergence of the climate emergency, these powers did not halt their profit-hunger; instead, they vigorously promoted forest conservation propagandas whose main motive was never to protect the environment. In such conservation programs, many areas have been declared nature parks, wildlife sanctuaries, etc., and local people of the villages who lived in and around forests for hundreds of years were displaced from their lands. Moreover, as per the available data, Adivasis constitute 40% of those displaced in India between 1951 and 1990 as a consequence of large development projects. These are mostly poor and vulnerable people who are dependent upon primary production. They are dependent on natural resources such as water, grass, wood, fruits, flowers, and medicinal plants for their livelihood. Many forest dwellers who lived in and around forests were evicted from their ancestral lands in the name of conservation and very consciously they were made culprits and tagged as “encroachers”.

Pong Dam, District Kangra (Source: Indian Express)

At the same time, in India, thousands of people have been displaced from their lands due to the coming up of large projects in the name of national interest. In many cases, even rehabilitation was not done. For instance, many displaced people from the Bhakra Nangal and Pong dams have yet to receive their land or compensation for rehabilitation. According to a study, 90,702 people have been affected by the coming up of the Pong Dam, and 2,108 families were displaced due to the setting up of the Bhakra Nangal Dam. Approximately 8,000 ousted families which lost their land in the construction of the Pong Dam are still waiting to be rehabilitated because they were either denied land in Rajasthan or had their land allotments revoked by the Rajasthan Government. The tribals of Kinnaur in Himachal Pradesh are also one of the communities affected in this relation. The entire region is threatened by massive hydroelectric power projects. Heavy blasting is done during excavation and construction, causing cracks in the houses, and in some places, entire villages are in danger. The ecology has been damaged, and serious environmental threats are prevalent. In many villages of Kinnaur, claims filed under the Forest Rights Act by the villagers have been rejected. Though many organizations are working in these areas, New Delhi seems to be adamant about resource exploitation of these areas and pushing successive state governments in this concern. As hydroelectricity generated from these areas is very useful for the mainland and it’s developmental needs.

On the flip side, it also needs to be stated that, especially in post-colonial India the movement for environmental protection against the capitalist forces and their NGO brigade was started by anarchist and radical forces who also used the affected people as a tool to further their ideological propaganda. But in that process, they degraded and weakened the statist and socialist forces who stood the best chance at creating the change in the Indian context. Certainly, I believe that people who are fighting for forest rights i.e.,  jal, jungle, jameen are not against development. But development should be progressive, support-led, and aimed at social justice. Development must focus on the use of natural resources to fulfill the genuine interests of mankind. Development that is growth-mediated and profit-centric is not in the best interest of humanity as it segregates the larger community, as well as in the context of the environment causes massive destruction of natural resources and millions of inhabitants get evicted from their lands. The development of the Himalayan geographical region is of vital importance to the entire country and the sub-continent. The region has abundant natural resources, and these resources can lead to equitable prosperity and wellbeing, however, they must be used sustainably. Thus, there should be Himalayan-specific development policies in India as the conventional model of development of the plains is unsustainable for the mountainous areas.

Livestock of pastoral communities                                                        (Source: Discover Himachal with Surjeet)

Nonetheless, more autonomy should be given to the region and a decentralized approach should be preferred. Though, an attempt was made to decentralize forest management by enacting the Panchayats (Extension to Scheduled Areas) Act, 1996, and the previously stated Forest Rights Act, 2006. Both these acts give supremacy to the inhabitants by empowering the Gram Sabhas to determine the forest rights, protect and preserve natural resources, and other individual or community rights. Even the authorities are required to take a nod from the Gram Sabha for any development works like road construction or acquisition of the forest lands. In this context, another point which emerges is that the Forest Rights Act is being opposed by corporate conservationists, a few retired bureaucrats, and pseudo-environmentalists. The monopoly of the forest bureaucracy on forest management, as well as compensation and rehabilitation for resettlement, are among the major causes for opposition to this legislation. The moment Adivasis and other traditional forest dwellers are declared as illegal inhabitants or encroachers, it becomes much easier to evict them from their native lands. So, this legislation is becoming an obstacle in their respective agendas.  Although as stated above the provisions of the Forest Rights Act, 2006 are progressive, but the ground implementation is missing and Gram Sabhas are typically bypassed, and bureaucrats, as well as the forest department, take precedence over them. Moreover, claims filed by the people are being rejected without valid reasons.

In conclusion, forests are inseparable from forest dwellers and thus have the best chance of survival if communities are actively engaged in their conservation and regeneration. Conservation, in the genuine sense, is impossible if local communities are tagged as ‘encroachers’ and further excluded. Ecological balance or biodiversity is not disrupted by forest dwellers. Indeed, the Scheduled Tribes and other traditional forest dwellers who depend upon forests maintain biodiversity and the ecological equilibrium by protecting and preserving such areas. Finally, I would like to point out that in the Himalayan geographical region agricultural land is scarce and inhabitants of the region are dependent upon the primary production of the forests. Giving them certain exclusive rights will help in protecting the environment and preserving biodiversity. They are not threats to biodiversity; rather, they are the protectors.

 

Disclaimer: The opinions expressed in this article are those of the authors. They do not purport to reflect the opinions or views of the Himachal Watcher or its members.

 

 

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