Project Team: Namita Wahi, Siri Gloppen, Hugo Stokke, Kavita Navlani Søreide, Dr. Pratap Bhanu Mehta, and Namita Wahi.
Timeframe: 01/01/2013 - 06/06/2019
Abstract: India faces serious challenges in constructing development paths that are socially inclusive, ecologically sustainable and politically feasible. The main goal of the research project is to understand how the legal regimes adopted to protect vulnerable groups and ecosystems interact with the socio-political dynamics of the Indian federal system. Moreover, we aim to understand how this shapes the opportunity structure of central development actors producing dissimilar decisions and social effects in different contexts.
Background and purpose:
The project pursues four sub-goals based on the analytical dimensions of property rights, rights of traditional communities, environmental protection, and federal political dynamics.
The Fundamental Right to Property in India
The first sub-goal is to understand how state institutions in India have managed the tension between private property rights and the state’s power to acquire property for the purposes of economic development and social redistribution.
At the time of its adoption, the Indian Constitution guaranteed a fundamental right to property. However, Article 31 of the Constitution enabled the state to acquire private property for a public purpose upon payment of just compensation. The acquisition of large tracts of land for industrial and infrastructure projects have resulted in the widespread displacement of poor peasants, and traditional communities, forest dwellers, cattle grazers and other indigenous groups. In the last sixty years, over a hundred acquisition laws have been enacted, the most significant amongst them the Land Acquisition Act, 1894. This act provides for compensation for land to be paid at the market value but the compensation given is often significantly lower. Public attention on displacement has led to several moves to amend the 1894 land Act. We will examine whether the abolition of the fundamental right to property furthered the constitutional goals of greater socioeconomic justice or enabled greater dispossession of poor peasants and traditional communities.
The Legal and Institutional Apparatus
The second sub-goal is to understand the structure and functioning of the legal and institutional apparatus governing the rights of traditional communities in different contexts. Article 244 read with the Fifth and Sixth Schedules of the Constitution provide protection to the indigenous people (adivasis) living in the Scheduled areas. The Fifth Schedule covers central India and mandates the creation of Tribes Advisory Councils. The Schedule also requires that laws be passed to regulate land transfers in these areas. The Sixth Schedule covers Northeast India, in which there are Autonomous District and Regional Councils with a long tradition of relative political autonomy. We will analyze the impact of these institutional differences on the protection of the land and property rights of the Scheduled Tribes. We will also examine whether differences in demography, development and poverty in the selected states are linked to land and property rights of traditional communities and their control of natural resources.
The third sub-goal is to understand how the environmental law protections interact with property rights and rights of traditional communities. The Schedules areas are rich in mineral resources and the need to fuel the development engine based on the exploitation of these resources has created conflict with the rights of the scheduled tribes. The Forest Rights Act, 2006, is an attempt to empower the scheduled tribes to exercise influence on the disposition of natural resources in this areas. However, there are serious governance and implementation challenges with respect to these laws, which in turn have implications for environment protection laws. We look at how, and in favor of whom, these differences over development, environment and ownership issues are resolved in concrete cases. The National Commission on STs and the Ministry of Tribal Affairs will be a focal point in this analysis.
Political Dynamics of the Federal State
The fourth sub-goal is to understand how the legal strategies adopted to deal with the challenges of inclusive sustainable development is impacted by political and institutional factors. The Indian federation was established under peculiar and trying circumstances and favored a strong center. Sates had no right to secede, and the federal state took upon itself to be the engine of development. However, Indian federalism is undergoing a process of evolution as the forces of decentralization, liberalization and privatization continue to influence Indian politics, economy and society. The aim is to trace environmental policy gaps that are due to the federal – institutional and political asymmetries in India. In addition, we want to understand how environmental regulation and federal dynamics combine to condition the choices made regarding development projects, natural-resource-dependent communities, and broader environmental impacts.
Updates on the project you can find here.
For information from our Indian partners, the CPR Land Rights Initiative, go here.