Title: Draft Note on
Author: abc
Last saved by: Shekhar Singh
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THE PRIOR INFORMED CONSENT
A Constitutional Remedy towards Democratic, Consensual, Development Planning 
By The State and Community with Legal Rights - Draft Note

The Constitution of India, recognizing the common people, in whose name and for whom the law and legal rights are formulated, acknowledges their role in the statutory processes as well. The 73^rd and 74^th amendment especially grants to urban and rural communities, their space and a status in the decision-making that is a part of development planning in the country. Gramsabha is recognized to be the unit and the forum at which the authority and power to such decisions as would affect and concern the life of a community would be made. It is further empowered in the case of scheduled tribe area through the extension of the PESA Act (Panchayat Extension to Scheduled Areas), 1996-97, towards adivasi self-rule. In the case of urban areas, Basti-Sabhas that can be equivalent to Gramsabhas are not yet legally recognized which needs to be done immediately through a special ordinance. Internationally too, in Philippines as well as Australia, joint decision-making and consensual planning is a legal precondition in the development processes.

Any planning aiming at use or harnessing of the natural resources, land, water, forest, fish or mineral – that are under traditional and customary use and in possession of a community would, no doubt, be needed for the society at large. The role of the State in defining and applying a public purpose to justify any change of use pattern or exchange of resources from the local community to some outer, larger unit of population can’t be denied. At the same time, however, such an action or decision can neither be imposed on the people whose rights (even if usufructory) to the resources within their geographical limits i.e. the environs, are affected by a project; nor can they be denied the right to participate in defining the goals/purpose and choosing/approving a technology, a project. Being affected by a project includes all those directly or indirectly affected by a project or its related works. The spirit behind a democratic system with participatory mechanism of local self-government is just this, and the principle of eminent domain that allows and legitimizes the State’s intervention into planning to harness or allot and distribute resources too can’t but be in consonance with the former.

The most active, ever-expanding role of the State in the present times, the fast expanding development planning and accelerated action in response to the demands mostly of the better-off sections that is causing much upheaval in the lives of the people living on the very resources that are needed and acquired, used or diverted for ‘development’. This has brought forth a number of issues related to rights and impacts borne and given rise to a serious conflict between the State and the people on one hand and among the population on the other. The utter disregard for the local peoples’ rights and share in the benefits generated out of their resources is being questioned. The injustice results out of an exploitative, commercial approach to extraction and utilization that causes enormous social, environmental and economic impacts on the local people with no guarantee of fair and the fullest possible compensation, more often than not, affecting their right to life. Such a situation is confronted and challenged by the affected people’s organizations and other people’s movements. As the scale of the people deprived and/or displaced by the development projects is growing beyond all bounds, such a conflict between the State and the people too is intensified challenging and with no redressal and stalling development plan processes at times.

This situation needs an urgent review of the structural and process parameters of development planning in our country. It is here that the internationally accepted concept of ‘prior informed consent’ (PIC) guides us to an alternative path which is more democratic, consensual and away from the present one, the conflict-ridden. Defined as ‘the consent of a party to an activity that is given after full disclosure of information, the reasoning behind as well as the specific procedures it would entail, the potential risks involved and the full implications including the emerging benefits’, PIC is considered to be the crucial indicator of development that is humane and democratic both. Many raise a doubt as to whether with the principle of ‘Prior Informed Consent’, we will ever be able to move ahead with any project. It is also feared that this would be nothing less than granting a veto power to communities, which too would result in stalling of any and every project. The fear can be dispelled if PIC is conceived not as a veto power but as a formal procedure, which is adopted at other fronts and fora in a multiple level democratic system even if it is not termed as such and remains to be well defined and legally recognized. One needs to be reminded of the fact that ‘a community of the elected peoples’ representatives’ in our representative democracy, has the sole authority to make decisions. In spite of a highly heterogeneous (politically and socially divided) nature of this community, it does take consensual decisions – finding out ways and means – that have wide impacts. In reality, if real and direct participation as implied in PIC is enlisted at every level of planning, execution and evaluation, there is no reason why any individual, family or community would ever stall any activity. The justifiability of PIC is, however, based on a deeper regime of rights. Accepting the fact that the local people are not just ‘affected’ but are the real investors of the natural resources, critical to development, it should rightly be granted that they should play a crucial role in ensuring that the right kind of goals, technology, process of planning and distributive justice principles are chosen and followed in the name of a development paradigm and specific plans too are based on the same. If not, the community of natural resource investors should have the right to question and suggest an alternative. PIC can, therefore, be an inevitable check and balance and a monitoring mechanism that would shape, sharpen and strengthen our development vision and attain its realization as also popularization in true sense. Within the bounds of and following the democratic values with a decentralized modus operandi implied in our constitutional framework, there would be no hesitation in accepting PIC principle as a move towards ‘power to people’, a slogan of many a political party, that is left devoid of operationalization.

The Modus Operandi:

1. (a) In order to make PIC a part and parcel of the planning process, we should morally and legally accept and record the community’s first right to resources within its boundary. To define a community can be easy since the Gramsabha is almost equivalent to the same. Every voter resident with a minimum years of access to, occupation of and/or user relation with the resources therein as further criteria needs to be identified as a member of a Gramsabha in the application of PIC. No persons with resources, property – with or without a legal title -, activity or livelihood to be affected, can, however, be left out of the Gramsabha or a Unit for PIC application. The analogical unit in the urban area can be “Muhalla”, as part of a ward which is more interactive and homogenous as well as integrated, and may be termed as ‘Basti sabha’.

(b) Acknowledging and not ignoring the inequity – social, economic and political – within a village community, PIC should be considered as sought or obtained when at least 50% of members of each of a sub-community based on caste, class and gender and/or at least 75% of all the members give their consent.

2. Such a process at the community level, should not be a substitute for the process of seeking and hearing objections, if any, from individual whose property is affected by and acquired for a project, as defined under Land Acquisition Act, 1894 (section 4 to 5a).

3. Seeking PIC should not be one time contractual event but rather a multiple step process that can involve a phased out dialogue, or even bargaining over costs and benefits to the project affected. It should not be one sided and not be distorted by seeing it as just one of the many formal pre-conditions fulfilled as a target by the parties interested in pushing the project/activity/decision ahead, at any cost. It should be more democratically and delicately handled in the case of dalits, adivasis, women and a minority or any downtrodden/disadvantaged section of population.

4. In any case and all circumstances, the PIC must be sought before land acquisition or any one’s property is affected since rehabilitation would follow. Rehabilitation work must be completed before impact occurs. This is a principle adopted and highlighted in the Resettlement and Rehabilitation Policy for Sardar Sarovar Project on Narmada. This has also been a recommendation to the government by the World Commission on Dams. Moreover, this is a core directive in the national rehab policy (2003) which is under review ad is also enforced through the working group on tribals since 1990.

5.The existing acts including the Land Acquisition Act of the British regime, still in use and law on tribal self-rule etc may need to be suitably amended wherever necessary to avoid contradiction within legal regime. As is stipulated in PESA Act (1996), PIC should be sought twice, once before land acquisition and once again before rehabilitation, before resettlement begins.

6. PIC should be a part of the national policy and the enactment to follow. It should be legally enforceable with its violation being considered to be a cognizable offence with due punishment.

7. In order that the consent is sought after the full and released information such as that of impacts, the knowledge related to many aspects, may need to be specially gathered. The tasks of impact assessment, options assessment need to be taken up with a true spirit of transparency and reports be made available to the affected families as also concerned citizens. The processes of settling their land rights, updating land records and such others to be carried out at the community level in a participatory manner prior to seeking PIC. All such tasks which can be termed as pre-conditional or initial in planning process of development project, need to be sequentially listed and well defined.

8. In giving information, language also plays an important role. In interior tribal communities where there is little or no literacy, in the case of communities whose language is unwritten, only spoken with no script, it is necessary that both written and oral communication is carried out. Oral communication should be in the language of the affected, even if it means employing a haldful of translators. Written communication should be in an appropriate form and a medium and letter, with place of display/ disclosure/ publication being such as to enable reaching out to all, including the disadvantaged or peripheralizing communities.