The Age of Consent


What is it about India that makes the right to consent such ground-breakingly alien notion to swallow? How have we come to embrace that all-pervading sense of kuch bhi ho sakta hai, given enough money, power or unbelievable persistence? From the next-door auntie deciding the due date and career paths of your imaginary children, to Bollywood that persuades us that the boy will always get the girl, if he stalks her long enough, from a culture of gender violence that assumes that women are always asking for it, and finally, to our gross domestic love affair with growth that seeks to make poverty vanish by pushing indigenous and historically disadvantaged cultures to the margins, despite their overwhelming dissent- it seems almost impossible for us to take ‘no’ for an answer from those most directly affected by our overreaching decisions.

What changes, then, when the voiceless finally are allowed to write their own history and determine their own development? What happens when they are informed of the environmental, social and human rights impacts of this larger ‘public purpose’ that is inflicted upon them? What if they were made aware of their rights and knew how to exercise them? And what can we learn from them, if we would only listen?

On August 19th, Vedanta Resources, was forced to accept a unanimous ‘no’ from the indigenous communities of Niyamgiri, who have been resisting Vedanta’s mine plans in their sacred hills for over a decade. What makes Niyamgiri historic is that this is perhaps the first time that the exercise is not one of token ‘consultation’, as is often the case with environmental public hearings, but one of seeking free, prior, informed consent (FPIC) pertaining to their cultural and customary rights. Advocated by the United Nations Declaration on the Rights of Indigenous People (UNDRIP), FPIC has now been echoed in the National Advisory Council’s recommendations to PESA (Panchayat Extension to Scheduled Areas Act 1996), in December 2012 and then in August 2013, post the Niyamgiri hearings.

The Supreme Court judgment of April 2013, by leaving the decision to the gram sabhas, was a landmark affirmation of civil, political and religious rights extending to those cultures we have historically undermined and scarcely understood.

Even during the run-up to the gramsabhas, there were attempts to restrict the sanctitude of Niyamgiri hills by the Odisha government. First, to 12 villages in the immediate vicinity of the mine site, then, once the hearings began, to restricting religious rights to only village deities. (Imagine confining the holiness of Ayodhya or the Vatican to less than a 5 km radius.)

Once the referendum began, district officials were made to trek for hours through the mountains and rain to register the opinions of the Dongria and Kutia Kondh adivasis and other local communities. If the Ministry of Tribal Affairs had its way and the Supreme Court judgment implemented in its true spirit, they would have had to trek to an additional 100 villages before possibly arriving at the same decision. It would have certainly been a much-needed, humbling exercise in seeing true democracy as it finally trickled down to those who have seen the least evidence of it.

Neither were the hearings free from intimidation and taint. Sources spoke of CRPF combing in the run-up to the referendum citing Maoist presence, and of the unmissable security buildup during the hearings, police allegedly outnumbering the Dongria Kondhs. “Shake that bush and 3 CRPFwallahs will fall out,” said one of the locals to journalists, some of whom were also at the receiving end of state scrutiny.

The legitimate process of consent-seeking was further maligned by those quick to paint a decade-long, non-violent struggle red, or allege a foreign hand.

If only we had collectively listened, with the same respect we accord to wizened economists in their sanitized bubbles, we would have been witness to a nuanced development debate at its most basic level, with compelling arguments against growth for the sake of growth made by one of India’s most ‘primitive’ tribes and perhaps its foremost environmentalists.

Once the 7th gram sabha voted against Vedanta, clocking in a majority, the paranoia as to how the process might have been conducted transformed to joy for those who were following the case. People across time zones – – from Delhi to Koodankulam to London – were celebrating and protesting, in the light of Vedanta’s impending Annual General Meeting. On August 19th, as Jerapa, the 12th gram sabha registered its final answer; there was not a shred of doubt left. The spirit of universal law, as embodied by Dongria Kondh deity Niyamraja, had prevailed, guided by the consent of those who revered it most.

Close on the referendum’s heels, the new Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill was passed in the Parliament, laying down 80% mandatory consent of communities for private sector projects, and 70% in the case of public-private partnerships (PPP). The Act also makes provisions for social impact assessment (SIA) that must be carried out in consultation with gram sabhas at the village level. However, SIA is not mandatory in cases of acquisitions sanctioned by Parliament, and in the case of ‘other emergencies’ that could possibly be misused. While the new, significantly diluted bill was received with an uproar from industry, a large number of industries that undertake large-scale land acquisition, from coal, to SEZs and atomic energy, have been exempted from its enlightened provisions on consent, assessment and consultation.

On another level, the sense of victory for indigenous community rights seemed almost too good to be true, and to some extent, it is. The alumina refinery at the base of the Niyamgiri hills resumed operations after a period of 7 months on July 12, 2013, a week before the hearings were to begin. Post the hearings, the Odisha government has openly voiced that Niyamgiri is only a minor setback, and that bauxite will be sourced from neighbouring Schedule V tribal areas.

For now, though, Niyamgiri is a source of inspiration to millions across this country faced by projects that refuse to acknowledge their existence, their cultures, their livelihoods, their struggles and their definitions of development.

With time, as we get used to used to the idea of asking permission, and not seeing it as an affront to but a sign of a mature democracy, I hope that we are able to learn from and realize the wisdom of cultures that do not need advanced degrees in geology to realize that it is bauxite that protects the streams, that biodiversity and cultures are things to be revered and preserved and that mere monetary compensation is not necessarily development. One can only hope that a little consent, to begin with, will a go long way.

(Aruna is a Senior Researcher with Amnesty International India and the views expressed in the blog are her own and does not necessarily reflect the views and opinions of Amnesty International)


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