The Forest Conservation Act is a legislation designed to safeguard and promote the conservation of forests. According to this act, state governments are prohibited from issuing any order until it is approved by the central government to change the status of a forest area or authorise the use of forest land for non-forest activities, allocate portions of forest land to non-governmental organisations, including corporations or clear the forest area for any other purposes. The original law granted significant authority to the central government, empowering it to ensure fair compensation for any diversion of forest land, even if not officially labelled as ‘forest’ in official records. Over the years, the legislation has seen multiple amendments which made it into a provision that primarily focused on extending protection to areas resembling forests. According to the current government, the current amendments aim to eliminate ambiguities and provide “clarity” regarding the Act’s applicability and mark a shift from its past interventions.

The proposed Forest (Conservation) Amendment Bill, 2023 or what it is now known as, Van (Sanrakshan Evam Samvardhan) Adhiniyam, has been noted that it seeks to amend the pivotal law which was designed to curb the conversion of forest land for non-forestry or commercial purposes and prevent the corporate takeover of forest land and tribal rights. The new law was passed by the Lok Sabha in July, and by the Rajya Sabha in August.

“Death knell” to forest rights

The PIL filed by the retired public servants sought to challenge the constitutional validity of the Forest Conservation Act amendments. They have also moved a stay application by arguing that the law restricts the scope of forest which was informed by the Supreme Court’s judgement in the TN Godavarman case of 1996. The petitioners have forewarned that if the forests are destroyed, it would be a source of damage that will have repercussions that will not be able to be fully reversed, “The 2023 Amendment Act is in blatant violation of several principles of Indian environmental law, the principle of sustainable development, precautionary principle, intergenerational equity, principle of non-regression and public trust doctrine.”

The Supreme Court has in turn given its response and has opted to not stay the amendments. The bench which comprises Justices BR Gavai and PS Narasimha asked the government to respond to the concerns of the petitioners. The additional solicitor-general Balbir Singh responded by saying that that the amendments had no intention to dilute the 1996 judgement’s definition of forests. The government further stated that any exemption from the definition of forests would be in line with upcoming guidelines. To address petitioner concerns, the court went on to direct the government to ensure that “no precipitative action” would be taken per the Godavarman judgement’s understanding of the definition of a forest. The court has granted the government four weeks to file a detailed response to the petition.

The court further issued notice on the basis of another petition which raised a similar argument, where senior advocate Gopal Sankaranarayan has pointed out that the new amendment allows the construction of projects of national importance and national security buildings on forest land which is within 100 kms of distance from the international borders. According to the Hindustan Times report, the senior advocate has stated that the north-eastern states, including Sikkim, have objected to this provision.

According to a report by Sabrang India, the proposed amendments to the Forest (Conservation) Act, 1980 have raised objections on various grounds. Critics have voiced their concerns about potential dilution of the Supreme Court’s pivotal 1996 Godavarman case judgement, which granted the extension of legal protection to extensive forest areas which were not officially recorded as forests. The new amendment thereby has proposed exemption from forest clearance for construction projects within 100 km of international borders or the Line of Control in geographically sensitive regions.

Furthermore, this amendment also brings to effect a proposed change the name of the 1980 law from the Forest (Conservation) Act to the Van (Sanrakshan Evam Samvardhan) Adhiniyam, which basically translates to the Forest (Conservation and Augmentation) Act. Critics have argued that the new name is exclusionary and overlooks linguistic and cultural diversity, especially in South India and the North-East. However, the Environment Ministry had defended the name change, stating that it brings to light the broader elements of conservation of forests.

Related:

Forest Conservation Bill 2023: too many exemptions, discretion to Centre

Forest (Conservation) Amendment Bill: North-east to bear the brunt

Forest Conservation Rules violate Forest Rights Act: reiterates NCST

Adivasi struggle led by trailblazers working on-ground: Teesta Setalvad

The post Supreme Court refuses to stay amendments to forest law appeared first on SabrangIndia.

The bill seeks to amend the decades old Forest Conservation Act, 1980. It also aims to remove the mandatory central government approval for diversion of forests in certain cases. This means that decisions regarding the diversion of forest land would be taken by state governments and the UT administration only. Among the changes suggested, the below preamble was inserted into the act, and the “Forest (Conservation) Act” is substituted by “Van (Sanrakshan Evam Samvardhan) Adhiniyam” in the principal Act.

A deeper analysis of the Bill and the concerns raised against it can be read here.

Ironically, on September 8, during the much publicised G20 Summit opening day, the New Delhi Leaders’ Summit Declaration was adopted by India and other participating nations which included Sustainable Development Goals (SDGs). The Declaration also highlighted issues like increase in Global greenhouse gas (GHG) emissions, climate change, biodiversity loss, pollution, drought, land degradation and desertification threatening lives and livelihoods.

As India plans to work towards” effective implementation of the 2030 Agenda for Sustainable Development”, below are some statistics providing an insight into the status of forest land diversion and the extent of compensatory afforestation done in India prior and post the Forest Conservation Act. The said data is based on the answer provided by the government to Shri Feroze Varun Gandhi (BJP) during the monsoon session of the Lok Sabha. Statistics were also provided regarding the land acquired for compensatory afforestation. It is essential to note here that compensatory afforestation is one of the adopted mitigative mechanisms while approving proposals for de-reservation or diversion of forest land for non-forest use. Essentially, the purpose of compensatory afforestation is to compensate for the loss of land by land and the loss of trees by trees. 

Forest Land diverted for non-forestry use since 1980- approximately one million hectares:

The Forest Conservation Act, 1980 was passed by the government in an effort to control the conversion of forest land and prevent additional deforestation. The use of forest land for non-forest purposes was constrained by the act.  Without taking any mitigation measures, 4.1 million hectares of forest area were diverted over a 25-year period between 1951–1952 and 1975–1976. This occurred prior to the passage of the legislation. Approximately 1.65 lakh hectares were diverted annually on average during this time.

After the enactment of the act, over the forty-year period between 1980 and 2021, a total of 9.9 lakh hectares of forest land is diverted for non-forestry purposes. As provided by Factly, the average annual rate of diversion during this period came down to around 23,618 hectares. These figures also illustrate the impact that the legislation has had in reducing the diversion of forest area for non-forest area use, which partially explains why the current government has been eager to bring amendments to the same. 

State-wise statistic on Forest land diversion for non-forestry use in the last 15 years:

As provided by Shri Bhupender Yadav, Minister for Environment, Forest and Climate Change (MoEFCC), a total of 3,05,945 hectares of forest land had been approved for non-forest use under Forest (Conservation) Act, 1980 between 2008-09 and 2022-23. This land has been approved for a total of 17,301 projects.

From the data, it was deduced that from amongst the states, Punjab toped the forest land diversion, followed by the states of Madhya Pradesh and Odisha. As per the data, over the last fifteen years, Punjab had diverted over sixty thousand hectares (61,318) whereas Madhya Pradesh diverted more than forty thousand hectares (40,628), and Odisha diverted nearly thirty thousand hectares (28,321). In fact, as per the data, states namely Punjab, Madhya Pradesh, Odisha, and Telangana account for approximately half of the total forest land diversion in the past fifteen years.

The aforementioned answer provided by the MoEFCC also provides that over the period of the last 15 years, mining projects account for the highest diversion of forest land for non-forest uses, accounting for almost approximately sixty thousand hectares of diverted forest land. Mining projects are then followed by road projects, accounting for a diversion of forty-five thousand hectares, and irrigation projects, which accounts for thirty-six thousand hectares of forest land diversion. Crucially, these four project types- mining, road, irrigation, and transmission cumulatively account for more than half of the total forest land diversion.

Over 9 lakh hectares of land taken up for Compensatory Afforestation, reports of poor quality:

Guidelines of the MoEFCC provide for compensatory afforestation is to be raised on suitable non-forest land, equivalent to the area proposed for diversion, at the cost to be paid by User Agency. Additionally, the non-forest land for Compensatory Afforestation had to be located as close to or adjacent to Reserved Forest or Protected Forest.

On compensatory afforestation, the data provided by the MoEFCC depicts that over 9 lakh hectares of land had been taken up as compensatory afforestation in the last 15 years between 2008-09 and 2022-23. Out of that 9 hectares of land, almost 1/3rd was taken up since 2020-21.

Furthermore, the state-level data over the last 15 years indicate that the state of Jharkhand tops in compensatory afforestation with 1.5 lakh hectares, followed by Rajasthan with 1.05 lakh hectares, Karnataka with 0.9 lakh hectares, and Jammu and Kashmir with 0.87 lakh hectares.

The complete answer can be read here:

It is crucial to highlight here that as per a report in the Indian Express, India’s showpiece compensatory afforestation programme has been struggling to compensate for forests being cleared for development. The said report revealed the poor quality of the compensatory afforestation, with land being spread in different locations instead of being contiguous, the quality of lands used for afforestation, using lands belonging to tribals and forest dwellers for afforestation among others.

Inconsistencies in govt data on forest land diversions and compensatory afforestation, raises questions on validity:

The report by Factly, inconsistencies are evident in the data provided by the government on forest land diversions and compensatory afforestation. As per their report, the data provided by various sources on these issues did not match. For instance, the “e-green watch” portal showed that a total of 3,87,239 hectares of forest land had been diverted for non-forest use (no time period specified), while the Lok Sabha answer had depicted that a total 3,05,945 hectares of forest land had been diverted since 2008. These inconsistencies have raising serious questions on the reliability of the data provided to the public.

Furthermore, the 2013 Compliance Report of CAG on Compensatory Afforestation[1] revealed the discrepancies in data given by the individual state forest departments and the Regional Offices of the MoEFCC. The CAG was also concerned about the lack of reliable reporting systems to track the amount of diverted forest land and assess the degree to which these forest lands had been depleted due to a shortage of non-forested land. The entire monitoring system in place at the MoEFCC and State Forest Departments in this regard is called into doubt due to the discrepancies in the data and the validity of the statements on the compensatory afforestation.

[1] Microsoft Word – 01 Ist Page – inner page (cag.gov.in)

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The post 3 lakh hectares of forest land diverted for non-forest use over 15 years, compensatory afforestation programme a showpiece   appeared first on SabrangIndia.

However, recent legislative developments within the hallowed chambers of the Indian Parliament have cast a shadow of concern over the robustness of these cherished principles. The ongoing monsoon session, which has witnessed the passage of contentious bills, serves as an illuminating case in point. Among these, the Forest Conservation Amendment Bill 2023 stands out as a stark reminder of the delicate balance between development aspirations and environmental safeguards. Despite fervent objections raised by civil societies and environmental advocates, the bill sailed through the Lok Sabha unaltered, underscoring the need for a closer examination of the prevailing legislative trends.

There have been a number of bills that have been passed or tabled by the parliament, regardless of the criticism and worries from the general public. A number of bills that directly impact the rights enshrined in each of us by the Constitution of India.

1. The Digital Data Protection Bill.

India’s lower house of parliament has recently passed the Digital Personal Data Protection Bill, despite facing criticism and concerns regarding the discretionary authority it grants to the union government. This legislation aims to establish a “comprehensive framework for the protection of digital personal data in the rapidly evolving digital landscape of the country.”

Key Provisions of the Data Protection Bill

The Digital Personal Data Protection Bill introduces several important provisions to regulate the collection, processing, and sharing of personal user data:

• Explicit User Consent: The bill mandates that companies collecting user data must obtain explicit user consent before processing it. This is a significant step towards ensuring that individuals have control over their personal information.
• Legitimate Uses Exemption: While explicit user consent is a general rule, the bill includes “certain legitimate uses” as exemptions for data collection without consent. This allows platforms to process personal user data when provided voluntarily in specific situations, such as sharing payment receipts or providing public services.
• Government Authority: The bill grants the Indian government the power to waive compliance requirements for certain data fiduciaries, particularly startups. Additionally, the government is empowered to establish a data protection board and appoint its members, including the chairperson.
• International Scope: The bill extends its reach beyond Indian borders, covering digital personal information handling even if it occurs outside India but relates to providing goods or services to Indian individuals.

Challenges and Concerns Surrounding India’s Data Protection Bill

While India’s Digital Personal Data Protection Bill introduces several positive measures to enhance data privacy and protection, it also faces a range of challenges and concerns that have sparked debates and discussions among various stakeholders. These challenges are significant and must be addressed to ensure that the bill achieves its intended objectives without compromising citizens’ rights and privacy.

A. Amendments to RTI Act:

One of the most prominent concerns raised by critics is the proposed amendments to the Right to Information (RTI) Act. The bill seeks to amend Section 8(1)(j) of the RTI Act, which governs the disclosure of personal information. While the original RTI Act allows for the sharing of personal information if it is in the larger public interest, the proposed amendment seeks to exempt all personal information from disclosure. This blanket exemption raises concerns about limiting transparency and accountability, as citizens might be denied access to important information that could be essential for monitoring public activities, exposing corruption, and holding public authorities accountable.

B. Lack of Independence of the Data Protection Board:

The establishment of an effective and independent oversight mechanism is crucial for the successful implementation of any data protection framework. The bill’s provisions regarding the Data Protection Board do not provide adequate autonomy from the government. The bill grants the government significant powers, including the ability to appoint the chairperson and members of the board. This lack of independence raises concerns about potential government influence on the board’s decisions and actions, which could compromise its ability to fairly enforce data protection regulations and ensure citizens’ rights are upheld.

C. Excessive Government Discretion:

The bill grants the central government wide discretionary powers, particularly in the form of issuing notifications and rules. This includes the power to exempt both government and private sector entities from compliance with specific provisions of the data protection law. Such broad discretionary authority can potentially lead to arbitrary decisions and undermine the overall effectiveness of the data protection framework. This excessive government discretion could be exploited to favor certain entities or interests, thereby weakening the bill’s objective of safeguarding citizens’ privacy.

D. Exemptions for Government and Lack of Accountability:

The bill’s provisions grant exemptions to the government itself, allowing it to process personal data without user consent in certain situations. This raises concerns about unequal treatment and a potential lack of accountability for government agencies. Additionally, the bill’s provisions protect the Data Protection Board and the government from legal action. This provision could hinder citizens’ ability to challenge potential data privacy violations and limit accountability for any misuse of personal data by government entities.

E. Limited Redress Mechanisms:

While the bill establishes the Data Protection Board to oversee data protection compliance,  the board’s ability to address citizens’ grievances effectively might be limited. The bill’s provisions for fines and penalties for non-compliance are significant, but citizens might face challenges in accessing the board and seeking redress for privacy violations. This could undermine the overall effectiveness of the data protection framework in providing timely remedies for data breaches and privacy infringements.

2. Forest (Conservation) Amendment Bill, 2023

The recent passage of the Forest (Conservation) Amendment Bill, 2023 in the Lok Sabha has raised significant concerns about its potential ramifications for the rights of minorities, marginalized communities, and the environment. Amidst cries of protest from the opposition, the bill was approved within a mere 30 minutes, prompting intense debates about its implications. This piece delves, again, into the provisions of the bill, its impact on various stakeholders, and the controversies surrounding its passage.

The Forest (Conservation) Amendment Bill, 2023 introduces crucial changes to the existing Forest Conservation Act of 1980. Under the new amendment, forest land within a 100 km radius of India’s borders can be exempted from forest conservation laws for the purpose of national security projects, small roadside facilities, and public roads leading to habitation areas. This amendment raises concerns about potential environmental degradation and its repercussions for indigenous communities residing in these areas.

Redefining the Purview and Exemptions:

One of the central changes introduced by the Forest (Conservation) Amendment Bill, 2023 is the redefinition of the Act’s purview. The bill exempts forest land up to 100 km along India’s borders from the Act’s coverage. Additionally, it grants the central government the authority to define and permit activities for ‘non-forest purposes’ on forest land. While proponents argue that such changes are necessary for national development, critics contend that these exemptions could lead to the degradation of forests and adversely affect marginalized communities that depend on these resources for their livelihood.

This has severe impact for the ecologically and politically fragile regions of India’s north eastern states.

Legal Issues and Ecological Concerns:

Critics of the bill point to legal issues stemming from a 1996 Supreme Court judgement, which clarified the applicability of the 1980 Act to all forests, regardless of classification. The new amendment could undermine this judgement by limiting protections to only officially designated forest areas. Environmentalists express ecological concerns, fearing that the bill’s provisions may lead to deforestation, habitat loss, and disruption of vital ecosystems. They argue that the bill’s emphasis on ‘compensatory afforestation’ is insufficient to mitigate the potential environmental damage.

Federal Structure and Indigenous Rights:

Another contentious aspect of the bill pertains to federalism and indigenous peoples’ rights. The bill grants the central government the power to decide whether certain activities can be classified as ‘non-forest purposes,’ which infringes upon the rights of state governments. Indigenous communities, often residing in forested areas, are likely to be disproportionately impacted by the bill’s provisions. The Forest Rights Act of 2006, which recognizes the rights of forest-dwelling tribes, could also be undermined, potentially leading to displacement and loss of livelihood for these communities.

Impact on Minorities and Marginalised:

The Forest (Conservation) Amendment Bill, 2023 could disproportionately affect minorities and marginalised communities that rely on forests for their subsistence. Indigenous tribes, traditional forest dwellers, and other marginalised groups often have deep-rooted connections to these ecosystems, relying on them for food, medicine, and cultural practices. The potential loss of forest land and disruption of ecosystems could further marginalize these communities and exacerbate existing inequalities.

The passage of the Forest (Conservation) Amendment Bill, 2023 has sparked significant debate over its potential impact on the freedom and rights of minorities and marginalized communities. While proponents argue that the bill is necessary for national development and achieving environmental goals, critics raise valid concerns about its legal, ecological, and socio-economic implications. As India continues to strive for sustainable development and the protection of minority and marginalized communities, it is crucial to carefully consider the long-term consequences of such legislative changes and ensure that their rights and well-being are adequately safeguarded

3. Biological Diversity (Amendment) Bill

The recent passage of the Biological Diversity (Amendment) Bill in the Rajya Sabha has sparked widespread debate and discussion due to the numerous concerns and critiques surrounding its provisions. The bill, introduced by Union environment minister Bhupender Yadav, proposes amendments to the existing Biological Diversity Act, 2002, with the aim of facilitating ease of doing business and promoting the commercial use of traditional resources, particularly in the AYUSH industries. Despite the concerns expressed by various stakeholders, the bill was passed by a voice vote in both houses of Parliament, raising questions about its potential impact on the fundamental rights of Indian citizens.

Critiques and Concerns:

One of the primary concerns raised by critics of the bill is its perceived bias towards promoting the interests of the AYUSH industries and facilitating ease of doing business at the expense of conservation and equitable benefit sharing. Critics argue that exempting users of codified traditional knowledge and AYUSH practitioners from sharing benefits with local communities contradicts the original objectives of the Biological Diversity Act, which aimed to ensure sustainable use of biological components and fair distribution of benefits arising from the use of biological resources.

Furthermore, the bill’s decriminalisation of offences related to biodiversity and its replacement with monetary penalties have also drawn criticism. This shift has led to concerns about the balance of power between government officials and the judiciary, as well as potential implications for the deterrence of offenders. Some critics argue that these changes could undermine the progress made in democratising biodiversity governance in the country.

Impact on Fundamental Rights:

The passage of the Biological Diversity (Amendment) Bill has raised significant questions about its impact on the fundamental rights of Indian citizens, particularly with regard to the right to a healthy environment and the rights of indigenous and local communities. The original Biological Diversity Act, 2002, was enacted to safeguard biodiversity and ensure equitable sharing of benefits, aligning with the constitutional obligation to protect and improve the environment for present and future generations.

The concerns regarding the bill’s potential to dilute these protections have implications for the fundamental rights of citizens. By prioritizing commercial interests and ease of doing business, there is a risk that the bill could lead to the exploitation of biological resources without adequate consideration for conservation and the well-being of local communities. This, in turn, could infringe upon the right to a healthy environment and the right of indigenous and local communities to their traditional knowledge and resources.

While the passage of the Biological Diversity (Amendment) Bill may have addressed certain policy goals, it has also given rise to valid concerns about the potential consequences for fundamental rights and conservation efforts in India. The delicate balance between promoting economic interests and safeguarding the environment, traditional knowledge, and the rights of local communities must be carefully managed. As the bill becomes law, it is imperative for policymakers, stakeholders, and civil society to remain vigilant and engage in ongoing dialogue to ensure that the implementation of the amendments does not compromise the essential principles enshrined in the Indian Constitution.

4. Government of National Capital Territory of Delhi (Amendment) Bill, 2023

The passage of the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, commonly referred to as the Delhi Services Bill, has sparked a heated debate and controversy within the Indian political landscape. The bill aims to replace an existing ordinance and grants the central government extensive control over the appointment, transfer, and posting of bureaucrats in the Delhi government. While proponents argue that the bill streamlines administrative functioning, critics view it as an assault on democratic principles, federalism, and the separation of powers. This essay delves into the concerns and criticisms surrounding the Delhi Services Bill, highlighting its potential unconstitutionality and implications for Indian democracy.

Erosion of Democratic Principles:

One of the central concerns raised against the Delhi Services Bill is its potential to undermine democratic principles. The bill empowers the central government to wield significant authority over the administrative machinery of the Delhi government, bypassing the authority of the elected Chief Minister and the state legislature. This move not only erodes the autonomy of the elected government but also raises questions about the balance of power between the executive and legislative branches. Such a shift in power dynamics could lead to a situation where bureaucratic decisions are made without democratic accountability.

Violation of Federalism:

Federalism, a fundamental feature of the Indian Constitution, ensures a distribution of powers and responsibilities between the central and state governments. The Delhi Services Bill appears to encroach upon this principle by granting the central government unilateral control over key bureaucratic appointments and transfers. This not only diminishes the authority of the state government but also undermines the cooperative federalism envisioned by the Constitution. The bill threatens the delicate balance between the center and the states, potentially setting a precedent for similar interventions in other states, thereby weakening the fabric of Indian federalism.

Disruption of Separation of Powers:

A cornerstone of democratic governance is the separation of powers between the executive, legislative, and judicial branches. The Delhi Services Bill raises concerns about the separation of powers by granting the central government extensive control over bureaucratic appointments, which traditionally falls within the purview of the executive branch. This intrusion blurs the lines between the legislative and executive branches, potentially compromising the system of checks and balances that ensures accountability and prevents the concentration of power.

Unconstitutional Nature:

The Delhi Services Bill is unconstitutional as it infringes upon the powers and prerogatives of the state government, as defined by the Indian Constitution. The Supreme Court’s ruling in May, prior to the introduction of the bill, upheld the primacy of the elected Delhi government in matters of services and administration. The bill’s provisions that empower the Lieutenant Governor to unilaterally make decisions on various matters contradict the Court’s ruling and undermine the Constitution’s intent. Such a departure from the Court’s interpretation raises concerns about the bill’s constitutionality.

The passage of the Delhi Services Bill has ignited a fierce debate over its potential implications for democratic governance, federalism, and the separation of powers in India. The bill’s provisions pose a threat to the very foundations of the Indian Constitution and could set a concerning precedent for the centralization of power. While supporters of the bill maintain that it aims to streamline administration and ensure efficient governance, the concerns and criticisms raised highlight the need for a nuanced and balanced approach that respects the principles of democracy, federalism, and the separation of powers. It is imperative that the constitutional validity and democratic implications of such legislation are thoroughly examined and deliberated upon before enacting potentially transformative changes to the fabric of India’s governance.

5. Amendment to the Registration of Births & Deaths Act, 1969

The recent passage of the Registration of Births & Deaths (Amendment) Bill, 2023 in the Lok Sabha has ignited a fervent debate regarding its implications on privacy, democratic rights, and marginalized populations. This amendment seeks to establish a National Database of Births & Deaths, granting significant control over vital registration data to the Indian government. While the bill’s passage raises serious concerns, it is imperative to delve deeper into its provisions to comprehend the potential ramifications.

Privacy:

A Fundamental Concern Privacy, an intrinsic right, has been a topic of discussion as the amendment centralizes birth and death data. By sharing this sensitive information with national authorities, individuals’ control over their own data is compromised, opening avenues for potential misuse. The absence of clear guidelines on data access creates an unsettling scenario, wherein the government can decide which databases can tap into this repository. This unchecked delegation of authority raises questions about the government’s intentions and its commitment to safeguarding citizens’ privacy.

Impact on Democratic Rights:

The proposed amendment introduces a series of implications for democratic rights, notably:

1. Right to Education: The bill mandates birth certificates for school admission, inadvertently threatening marginalized populations. For those struggling to obtain birth documentation, this provision could hinder their right to education, thereby perpetuating societal inequalities.
2. Right to Vote: While the constitutional status of the right to vote remains a topic of debate, the emphasis on birth certificates could indirectly affect this crucial democratic right. Linking voting eligibility to birth certificates might exclude individuals who lack proper documentation, casting doubts on the inclusiveness of the electoral process.

Marginalised Populations: Caught in the Crossfire

The amendment inadvertently shines a light on marginalized populations. Its provisions may disproportionately affect these groups, potentially intensifying their struggles to access essential services. The requirement of birth certificates for various purposes could deepen the divide, further marginalizing vulnerable sections of society who face challenges in obtaining proper documentation.

Centralisation of Data: Lessons from the Past

The amendment’s centralization of birth and death data mirrors previous governmental attempts at data consolidation. Yet, history has shown that centralization often fails to address underlying issues and may even exacerbate problems. Rather than focusing solely on data centralization, the government should prioritize enhancing the efficiency and accessibility of birth and death registration systems.

Lack of Provisions:

A Recipe for Uncertainty One glaring concern lies in the lack of provisions to address the issues and gaps raised by the amendment. The absence of safeguards or guidelines for the protection of marginalized populations from exclusion highlights a significant oversight. A proactive approach to addressing these concerns would demonstrate the government’s commitment to an inclusive and equitable society.

Legitimising Exclusion:

A Cause for Alarm Perhaps the most troubling aspect of the amendment is its potential to legitimize exclusion. By failing to adequately address the concerns of marginalized populations, the amendment inadvertently reinforces existing inequalities. To foster a just society, the government must consider the implications of its actions on all citizens and take deliberate steps to ensure that no group is left behind.

The passage of the Registration of Births & Deaths (Amendment) Bill, 2023, has set the stage for a critical dialogue surrounding privacy, democratic rights, and the well-being of marginalized populations. As the amendment seeks to establish a National Database of Births & Deaths, it is paramount that its potential consequences are thoroughly examined. While the government’s intent to modernize data management is commendable, it must be accompanied by robust safeguards, inclusivity, and a genuine commitment to upholding the fundamental rights of every citizen. In this era of data-driven governance, the protection of individual rights and the promotion of an equitable society must remain paramount.

6. Press and Registration of Periodicals Bill, 2023

The Press and Registration of Periodicals Bill, 2023, which was introduced in the Rajya Sabha by the Union Minister for Information & Broadcasting, Anurag Thakur, and is meant to replace the existing Press and Registration of Books Act, 1867 (PRB). Though the “Statement of Objects and Reasons” mentions that the “proposed legislation is based on the spirit of upholding media freedom and ease of doing business”, in effect the new bill in fact widens the powers of the State to have more intrusive and arbitrary checks into the functioning of newspapers and magazines than the existing law had. However serious concerns have been expressed by the Editor’s Guild of India that has termed the proposed law “draconian.”

The expansion of powers of the Press Registrar, the new restrictions on citizens to bring out periodicals, the continuation of power to enter premises of news publications, the vagueness inherent in many of the provisions, and the ambiguity surrounding power to frame rules that can have adverse implications on press freedom.

 Expansion of power beyond Press Registrar

In the definitions section of the Bill, the term “specified authority” gives power to government agencies beyond the Press Registrar, to conduct the functions of the registrar, which could even include police and other law enforcement agencies.

Given the intrusive, expansive, and vague nature of powers that the bill in any case allows to the Press Registrar, the power to further delegate this power to other government agencies including law enforcement agencies is deeply distressing. Media organisations have strongly urged that only the Press Registrar should be the relevant authority for the purpose of this act and no other government agency should be given any powers with respect to registration of periodicals.

Denial and cancellation of registration to persons convicted for “unlawful activity”

Sections 4(1) and 11(4), allow the Registrar to deny the right to bring out a periodical, and to cancel the certificate of registration of a periodical, to persons convicted of “terrorist act or unlawful activity”, or “for having done anything against the security of the State”. Interestingly, the PRB Act, 1867, had no such provisions.

Given the liberal and arbitrary use of UAPA (which is the basis for defining “terrorist act” and “unlawful activity”), as well as other criminal laws, including Sedition, against journalists and media organisations to suppress freedom of speech, the introduction of these new provisions, and the way they can be misused to deny the right to bring out news publications to persons who are critical of governments is a matter of serious concern.

Power to enter premises of Press organisations

Under section 6(b), the Bill also gives power to the Press Registrar, (as well as any other “specified authority”) to enter the premises of a periodical to “inspect or take copies of the relevant records or documents or ask any questions necessary for obtaining any information required to be furnished”. This authority to enter a press organisation is excessively intrusive and it is deeply concerning that while on one hand, in the “Statement of Objects and Reasons” it is claimed that the intention is to make the process less cumbersome for press organisations, yet such powers are continued from the earlier laew.

Concerns regarding power to frame rules

Section 19 gives the Central Government powers to frame rules and guidelines under which news publishing is to be done in India. It has been seen time again that the power to frame rules under various acts has been used in arbitrary as well as excessively intrusive manner.

The recent IT Rules 2021, and the latest amendments made to it regarding setting up of a ‘fact checking unit’ with sweeping powers to order content take down is an illustrative example. Therefore, for the sake of preserving freedom of press, it is submitted that all such rules be clearly defined within the act, and there be no provisions be left to the discretion of a future government or a government authority.

To ensure that publishing of news in India remains free of encumbrances and intrusive checks on publishers by the registrar, and that the primary emphasis of the registrar and the PRP remains ‘registration’ and not ‘regulation’, as the latter has the potential of restricting freedom of press, this Bill needs to be reconsidered, amended before it is deliberated upon and made into a law.

The law on this issue should be more respectful of freedom of the press and should avoid granting vast powers to regulatory authorities to either interfere or shut down the press at their whims and fancies.

The Bill has already been passed in the Rajya Sabha, the Speaker of the Lok Sabha has been urged to refer it to a Parliamentary Select Committee, to allow a deep discussion on the issues that are crucial for press freedom.

Bills that have been passed in the last 5-10 years in the face of criticism- A pattern?

In the annals of India’s legislative history, the past decade has witnessed the emergence of a series of transformative bills that have ignited profound debates, courted legal challenges, and raised significant questions about their alignment with the nation’s constitutional ethos. These laws have traversed a spectrum of domains, ranging from governance and land rights to social justice and personal liberties. While they have aimed to address pressing issues and propel the nation forward, their impact on the bedrock of freedom and constitutional principles has been both lauded and contested. This part of the essay embarks on an exploration of key legislative acts enacted within the last 5-10 years, delving into their implications and the patterns that underlie their passage despite criticism. As India’s democracy grapples with modern complexities, these legislative developments provide a lens through which to examine the evolving relationship between governance, freedom, and constitutional fidelity.

In a rapidly changing world, where societal needs and aspirations are continually evolving, legislatures bear the weighty responsibility of shaping policies that reflect the nation’s values while addressing contemporary challenges. The bills under scrutiny have been emblematic of these endeavors, encapsulating the aspirations of a diverse and dynamic population. However, as the nation navigates the intricate dance between progress and preservation, the interface between these legislative measures and the sanctity of individual freedoms has emerged as a central concern.

These are some of the bills passed in last 5-10 years in the face of criticism-

1. Lokpal and Lokayuktas Act 2013:

While the Lokpal and Lokayuktas Act aimed to curb corruption, criticisms arose regarding the independence of the Lokpal and the effectiveness of its provisions. Concerns included the appointment process, the inclusion of the Prime Minister within its purview, and the potential for government influence, thereby raising questions about transparency and accountability.

2. Land Acquisition Bill 2013 (amended in 2015):

The Land Acquisition Act amendments faced opposition due to perceived violations of property rights and the rights of indigenous communities. Critics argued that the bill favored corporate interests over farmers’ livelihoods and local communities, leading to protests and legal challenges.

3. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Amendment 2018:

Amendments to this Act were criticized for diluting safeguards for marginalized communities. Protests erupted over concerns that the amendments weakened protections against discrimination and atrocities faced by these communities, leading to questions about social justice and equality.

4. Surrogacy (Regulation) Bill 2019:

The Surrogacy Bill faced criticism for being restrictive and not adequately addressing the complex issue of surrogacy. Concerns included the exclusion of single parents and LGBTQ+ individuals from surrogacy arrangements, raising debates on personal autonomy and reproductive rights.

5. Transgender Persons (Protection of Rights) Bill 2019:

The Transgender Persons Bill was criticized for failing to recognize the rights and identities of transgender individuals. Critics argued that the bill did not adequately address discrimination, lacked affirmative action measures, and violated the principles of self-identification and dignity.

6. Citizenship Amendment Act (CAA) 2019:

The CAA sparked nationwide protests and legal challenges due to its selective approach to granting citizenship based on religion. Critics contended that it violated the secular fabric of the Constitution and discriminated against Muslims, raising concerns about religious freedom and equality.

7. Farm Bills 2020:

The Farm Bills led to massive farmer protests over concerns about potential exploitation by corporations and the erosion of the Minimum Support Price (MSP) system. Critics argued that the bills could adversely affect farmers’ livelihoods and bargaining power, impacting their economic freedom.

8. Article 370 and 35A Repeal (Jammu and Kashmir Reorganization Act) 2019:

The repeal of Article 370 and 35A for Jammu and Kashmir led to debates about federalism, autonomy, and the rights of the region’s residents. Critics raised concerns about the manner in which the constitutional provisions were abrogated and the implications for the region’s identity and freedoms.

Democracy?

In the intricate tapestry of democracy, the process of passing legislation stands as a hallmark of governance that is meant to reflect the will of the people, protect their rights, and promote the common good. However, recent trends have unveiled a disconcerting pattern – bills being passed amidst criticism, raising valid questions about the democratic integrity of the legislative process. This essay delves into the complexities of this pattern, examining its implications for transparency, inclusivity, accountability, and the foundational principles of a democratic society.

Lack of Transparency:

Transparency serves as the bedrock of a healthy democracy, ensuring that decisions are made openly and with the public’s knowledge. When bills are passed despite criticism, a shroud of opacity descends over the legislative process. This lack of transparency undermines the public’s ability to understand the rationale behind decisions, eroding their trust in the democratic machinery.

Exclusion of Voices:

At the heart of democracy lies the principle of inclusivity, where every citizen’s voice is heard and represented. Passing bills amidst criticism, however, can lead to the exclusion of dissenting viewpoints. Such an exclusionary approach contradicts the democratic ethos and deprives the legislative process of the diverse perspectives necessary for well-informed decision-making.

Undermining Checks and Balances:

A fundamental tenet of democracy is the establishment of checks and balances to prevent the concentration of power. Passing bills without adequately addressing criticism can circumvent these mechanisms, leading to unchecked authority and a potential erosion of the separation of powers. This poses a significant threat to the delicate equilibrium that sustains democratic governance.

Ignoring Public Opinion:

Public opinion is the lifeblood of democracy, serving as a guiding force for policymakers. However, passing bills in the face of substantial public opposition or concerns undermines the significance of citizen input. The resulting dissonance between the government and the governed threatens to fracture the democratic contract that hinges on responsiveness to public needs.

Diminishing Accountability:

Accountability is the cornerstone of a functional democracy, ensuring that those in power are held responsible for their actions. Passing bills without addressing criticism can diminish accountability by evading rigorous scrutiny and accountability mechanisms. This evasion raises concerns about the potential consequences of such decisions and the erosion of the democratic principle of answerability.

Marginalization of Minorities:

Democracy is a safeguard against the tyranny of the majority, guaranteeing the rights of minorities. When bills are passed without adequately addressing criticism, the concerns of marginalized groups can be easily overshadowed. This marginalization of minority voices compromises the democratic commitment to protecting the rights and interests of all citizens.

Erosion of Trust:

Trust is the glue that holds a democratic society together. Passing bills amidst criticism erodes public trust in the government’s dedication to democratic principles. This erosion of trust can lead to disillusionment with the democratic process itself, weakening the social contract that underpins a functional democracy.

Conclusion:

The pattern of passing bills amidst criticism presents a paradox within democracy – a mechanism meant to uphold the people’s rights can at times appear to disregard their voices. The implications of this pattern are profound, touching upon the essence of democracy itself. As we navigate the intricate terrain of governance, it is imperative to recalibrate the legislative process to ensure that transparency, inclusivity, accountability, and the protection of minority rights remain sacrosanct. Only by addressing this undemocratic conundrum can we fortify the pillars upon which a vibrant and resilient democracy stands.

(The author is an intern with the organization)

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