CHALLENGING THE CONSTITUTIONAL SUPREMACY: A NATURAL RESOURCE FACET

CHALLENGING THE CONSTITUTIONAL SUPREMACY: A NATURAL RESOURCE FACET

Written by Bishwa Kallyan Dash[1]

 

ABSTRACT

Constitution of any country lays down the fundamental norms of the governance structure. But, time and again it has been seen the dilution of the constitutional mandate to give prevalence to the developmental aspirations of national economy. In lieu of the same, many safeguards which are fundamental in nature thus guaranteed by the grund-norm itself, has been compromised. Time and again the citizen of the country has raised the concern but has yield result in minimal or no result. This, struggle to dilute the Constitutional supremacy has raise the eye brows of the various organs in India’s democratic set up. Thus, this paper tries to look into some of the aspects where some of the fundamental constitutional mandates has been compromised vitiating the rule of law. This paper in no way tries to accuse any of the institutional framework in place for the time being in India, but tries to raise the concern about the anomaly that it would bring in for the future generations to come and further to the indigenous people in precise.

Key Words: Natural resource, governance, Constitutionalism, Common Property resource,  etc.

 

INTRODUCTION

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it. – Abraham Lincoln[2]

 

Governance in a democratic establishment like India, has a wide ramification; it is synonymous with securing justice, empowerment, employment and efficient delivery of services to all the concerned in the democratic set up. It is also referred to as the quality of relation between market, state and civil society. Accountability, transparency, predictability and participation, are considered to be the four key components of good governance. Achieving good governance requires the understanding and participation of every member of the society. The media, their roles, channels and content, are considered powerful enough to make this achievement a reality.[3] The freedom which has been a fruit of constant struggle and bloodshed is to be safeguarded from all odd. This is what the ends of justice looks at.

Government refers to the machinery and institutional arrangements of exercising the sovereign power for serving the political community, whereas governance means the process as well as the result of making authoritative decisions for the benefit of the society. “Governance”, according to oxford dictionary, means “the act or manner of governing or the way of control”. So we derive governance; as the manner in which authority, control and power of government is exercised in mobilising a society’s economic and social resources to address the issues of public interest. In brief, it is the art of governing, associated with the exercise of authority within specific jurisdiction and is embedded in the structure of authority. In any scheme of government, there are three essential activities:

  • making laws,
  • executing laws and
  • interpreting laws

As such the legislature, the executive and the judiciary are three pillars of a government. The constitution of India was created for specific objectives. The philosophy of Indian constitution and the objectives of governance have been enshrined in the preamble of constitution.

 

CONSTITUTIONAL WINGS OF INDIA

The entire infrastructure of the Constitution remained colonial. The focus was on organization of the State apparatus, on a political system, on institutions of government, on division of powers, on functionaries and officers—their rights and jurisdictions, etc. There was little emphasis on the principles of governance or traditional values in Indian political thought. Whatever little thought was given to governance got relegated to the non-enforceable Directive Principles part of the Constitution, perhaps, the only place where our Constitution uses the term ‘governance’ is in article 37 under the Directive Principles.

Art 37 “The provisions contained in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws”. Article 37 speaks of certain ‘principles’ being `fundamental’ in the ‘governance of the country’ but not ‘enforceable by any court’[4]. Adherence to some of these fundamental principles of governance would require the State to secure:

  1. i. Social order for the promotion of the welfare of the people with social, economic and political justice for all (article 38(1)); ii. Minimization of inequalities in status, facilities and opportunities Among individuals and groups of people (article 38(2)); iv. right to adequate means of livelihood for all citizens, men and v. women, equally (article 39(a)); vi. Opportunities and facilities for children to develop in a healthy vii. manner and in conditions of freedom and dignity article 39 (f)); viii. right to work, to education and to public assistance in cases of ix. Unemployment, old age, sickness disablement etc. (article 41); x. just and humane conditions of work and maternity relief article 42); xi. a living wage for workers with conditions of work ensuring a xii. decent standard of life and full enjoyment of leisure (article 43); xiii. raising the level of nutrition and the standard of living and to xiv. improve public health (article 47); xv. protection and improvement of environment and safeguarding xvi. of forests and wild life (article 48A) etc.

These and other fundamental principles of good governance ordained by the Constitution are defiled, defaced and debunked openly almost daily and yet nobody can do anything. If these were given the status of enforceable fundamental rights, the story of the Constitution in the 21st Century, would have been very different and much less distressing than what it is today.[5] Nehru had told the Constituent Assembly that the first task of the Assembly was ‘to free India through a new Constitution, to feed the starving people and clothe the naked masses and give every Indian the fullest opportunity to develop himself according to his capacity’. He had added that if the Constitution failed to solve the basic problems of the poor and the starving it ‘will become useless and purposeless’[6].

It is often said that there was nothing wrong with the Constitution and if it failed, those working it must be vile. But, it cannot be ignored that the vile were the products of this Constitution—its demands, constraints, compulsions and the system established under it. For example, the electoral system under the Constitution encouraged and necessitated the role of vote mathematics—of vote banks, corruption, black money, criminalization, casteism, communalism, violence and mafia power.

 

CONSTITUTION AND NATURAL RESOUCRES

In the midst of dismal poverty, abysmal illiteracy and alarming inequalities, a functioning participatory democracy is inconceivable. The framers of the Constitution did not seem to have foreseen a situation where the concept of collective ministerial responsibility to the Lok Sabha would tend to absolve the Ministers of all responsibility to the people at large and where the government would become so dependent on shifting party loyalties and temporary majorities. Also, they could hardly visualize how with all the electoral corruption and malpractices; with the majority of members getting elected on minority of votes, even the representative character of the rulers would come to be seriously doubted. With a view to arrest the trend of unprincipled defections by legislators and the growing instability in governments, the Constitution of India was amended and the 10th Schedule, better known as the anti-defection law, was added providing a tool through Constitution of India to govern.

What has become a categorical imperative is clean and quality governance as it affects the lives of the people. The essential prerequisites for quality governance are that the system should be good and suited to the needs, aspirations, background and ethos of the people concerned. Those selected for operating the system should be endowed with character and competence and motivated by the spirit of public service.

While examining what institutional forms would be appropriate for natural resource management, it is important that a number of questions be addressed simultaneously. It is important to understand the environmental outcomes and whether these are universal in nature or effected by culturally specific norms. Keeping this in mind, the researchers have in this paper sought to examine the controversy surrounding common property resources. We seek to examine whether local systems of authority are more sustainable than state sponsored ones and very importantly if institutional mechanisms can be replaced from one scenario to another. One of such natural resource i.e. the common property resources at India are in distress from the economic aspiration of the state.

Common Property Resources have been primarily viewed from the economic viewpoint of efficiency and utility by economists like Garrett Hardin. He has based his analysis of the Common Property Resources on the ‘Tragedy of the Commons’ which has been subsequently taken up by other scholars in explaining in Concept of the Commons and more so in dismissing it as a system which is doomed to fail sooner or later.[7]

The policy of State control over the natural resources including the Commons lead to negative effect on the “close and living relationship” between the natural resources, tribal population and the village based poor people who majorly dependent on these resources for their subsistence. The British policies of “scientific management” were focused to benefit the tactical needs of the British but it also lead to the ruin of the forest wealth of the rural communities whose natural way of life was badly affected apart from subsistence problems which also cropped up for them as a result of the disturbance of the delicate balance between environment and traditions and customs of rural communities.[8]

The future of common property resources do not seem to be very bright considering the framework in which it is rooted which includes intrusive state policies, rampant privatization of the Common Property Resources and overall disregard and overexploitation of the existing Commons. Apart from these primary factors, there are also some other important factors contributing to an uncertain future for the Commons which include the absence of any user-based lobby for advocating the significance of the common property resource. Also issues concerning the commons do not get much media attention and thus there is lack of awareness among the public regarding the importance of the common property resource.[9]

In the opinion of the researchers a lot needs to be done in order to ensure that the common property resource as a property regime and natural resource management does not fade into oblivion. The biggest stakeholders in this revival and resurgence of the commons will have to be the local rural community based people without any doubt. But at the same time there has to be a realization that there is an inherent need for some change for ensuring that common property resource system survives in the future as well. This realization must come to the local community people using the commons as they are the ones who have traditionally been involved in the management of the commons. The government on the other hand must also realize its responsibility of giving autonomy to the local rural community people in the management of the commons and it would desist from unnecessarily interfering in the governance of the commons. One should not jump to conclusions of dismissing the common property resource as a failed system but rather it should see the continuing existence of the commons despite its shortcomings as a proof of its significance in the lives of millions of the rural poor people living in the villages in India as also the importance of commons (when managed by local village communities in a traditional way) in maintaining ecological balance. Only in the above mentioned circumstances there can be some hope for the continued existence of the commons in the future.

Garrett Hardin argues against the Common Property Resources in his famous article titled “Tragedy of the Commons” in which he traces the first beginnings of the recognition of the concept of tragedy of the commons in the year 1833 by a mathematician by the name of William Forester Lloyd. He said that the main point to be noted in the remarkable tragedy is not the unhappiness but rather the absence of any remorse in the working of things.[10]

The most influential statement of the conventional position on Commons can be found in Garrett Hardin’s celebrated article in Science which warned the world about the ‘Tragedy of the Commons’.[11] Hardin’s thesis has been refined and restated in various forms over the years but the broad, overwhelming thrust of his argument still forms the core of the conventional wisdom. Wherever scarce resources are to be used by many individuals in a specific setting, Hardin’s analysis echoes through in the form of the clamor for privatization of the resource or in the demand for centralization of resource management.

The problem of the Commons can be characterized as one in which a set of actors have to govern themselves in such a manner that they continue to enjoy the benefits from the common resource system while facing the problems of free-riding, opportunism and uncertainty.[12] Here we explore the linkage between these problems and the institutional arrangements which try to solve them.

Institutions consist of individuals and the formation of an institution is a result of concerted, coordinated action of the different individuals involved. These individuals locked into a certain incentive-structure, i.e. they face varying incentives and disincentives with respect to the choices of action available to them. The institutional responses to the problem of the Commons are no exception. Here too the individuals are involved act, in an interdependent situation, and make choices facing varying constraints and incentives.

 

JUDICIAL NOTION OF RESOURCE DEGRADATION

Judiciary in India has been the prime watch dog of these resources. They always have tried their heart out to validate judicious protection to them while not compromising with that of the developmental goals. However, beyond all such checks, the resources are still depleting. In Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu[13] the Supreme Court had to deal with the question of ownership of a village tank built by villagers on the lands granted by a zamindar. In 1965, the gram panchayat took over possession and management of the tank by virtue of Sections 64 and 85 of the Andhra Pradesh Gram Panchayat Act which vested all common property (used by the villagers in common) and public water works with the gram panchayat. The Court interpreted the term ‘vesting’ to mean control and supervision and chose to maintain that there is no absolute or unqualified title. The Government, it was held, had the power to assume the control and supervision at any point of time. Also, it overruled Anna Narasimha Rao. v. Kurra Venkata Narasayya[14], where it was held that the village community rights would override the rights of the government. Therefore, it was held that the possession, control and supervision of common land by the villagers was subject to the over-riding right of the Government.

In India the indigenous people are known as ‘adivasis’ or ‘tribes’ which signifies a compact particularised social unit with strong sense of bonding and association with a specific territory and the members regard themselves as autonomous entities with political freedom, and distinctive cultural identity.[15] In India, they can also connote a group of families having a common name, speaking common tongue and endogenous in nature. These communities are provided with special treatment under article 342 of the Indian Constitution by virtue of giving them recognition in the name of ‘Scheduled Tribes’.[16] During the British period, there was violent and extreme resistance from the tribes towards the British which led to conflicts and the British took a step-back and formulated a dualistic policy of diverting the tribal anger against the zamindars, forest authorities, police and other personnel.[17] The use of force and coercion could not deter these tribes especially in the cases of areas like Chota Nagpur and Santhal Parganas, 1778, when Augustus Cleveland administered the entire Rajmahal hill housed by the Pahariyas under their hill authorities and this separated their administration from the general rules applicable thereby giving them autonomy.[18]

INDIGENOUS PEOPLE AND THEIR CONSTITUTIONAL RIGHTS

The Constitution of India provides safeguards and protection to the tribes and vulnerable groups in order to fulfil the aim of the founding fathers of the Constitution to secure to all the citizens social, economic and political justice and equality of status and opportunity as envisaged under the Preamble. Article 46 of the DPSP obligates the state to promote with special care and protect the educational and economic interests of the vulnerable groups of people especially the SCs and STs and protect them from social injustices and any form of exploitation.[19] These groups are provided with social safeguards under article 17 which prohibits untouchability and criminalizes its practice and in furtherance of this article there are 2 important enactments: the Protection of Civil Rights Act, 1955, and, the SCs and STs (Prevention of atrocities Act), 1989; article 23 which prohibits traffic in human beings, beggar, and forced labour, with regard to the STs there is a special legislation enacted by virtue of this article, i.e. the Bonded Labour System (Abolition) Act, 1976; article 24 which prohibits the employment of children below 14 years of age.[20] The ST children often get employed in hazardous activities of mining and developmental projects; and article 25 provides for freedom of conscience, profession, practice and religion.[21]

The tribes have also been provided with economic safeguards: article 244 (1) makes the fifth schedule of the constitution of India. The weaker sections have also been provided with educational and cultural safeguards under article 15(4) which obligates the state to make special provisions for the welfare of the socially and educationally backward classes of citizens especially the SCs and the STs.[22] Under article 16(4) the term ‘backward classes’ has been used to include various categories like STs, SCs, OBCs, de-notified Communities, etc.[23]

The problem of land grabbing has become quite acute. In State of M.P. v. Babu Lal[24] a suit was filed against an ST by a non-tribal person for declaring the former’s name as Bhumiswami in the revenue records. The case related to the provision under the M.P. Land Revenue Code which restricted the transfer of land by an ST.[25] Another important case with this regard is Manchegowda v. State of Karnataka,[26]the validity of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 was challenged. It provided for the restitution of the granted land to the SC/ST people if they had alienated their lands to any person violating rules. The Apex Court held that the Act was not in violation of the right to property and was valid as a special provision for safeguarding the SC/STs under articles 15(4), 19(5) and 46 of the Constitution of India. The SC/STs are victims of circumstances and have suffered a lot of exploitation by the rich and affluent and should be adequately compensated for all the historical injustices that they have suffered from the authorities in the name of development and also in the hands of private exploiters. Similarly, in the case of Lingappa Pochanna Appelwar v. State of Maharashtra,[27] the Court held the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 as constitutionally valid and upheld the rights of tribal people on their lands.

 

CONCLUSION

An overview of the above discussion shows that; although there has been an effort to recognize common property resources, the legislation, and on occasion courts of law, have largely been reluctant to provide meaningful recognition to common property resources. The socio-economic importance of common property resources, particularly to economically underprivileged people remains unrecognized. Any strategy needs to consider how to address the following concerns Guarantee of survival and livelihood options, Protection of individual and community rights, Access to and control over the natural resources, fulfillment of broader developmental aspirations, and participation in the civil society. This could only be achieved with consorted efforts from all the segments of the society in a holistic manner to give recognition to the existence of any such community right of common property resources and the same could only happen through policy deliberation and not by policy amplification. The magnitude of policies would never result in a possible solution rather would give scope for litigation.

 

[1] Ph.D. Research Scholar, West Bengal National University of Juridical Sciences- Kolkata; could be reached at: bishwakdash@gmail.com.

[2] Abraham Lincoln was an American politician and lawyer who served as the 16th President of the United States from March 1861 until his assassination in April 1865.

[3] Devesh Kapur and Pratap Bhanu Mehta (eds.), (Public Institutions in India: Performance and

Design, Oxford University Press, New Delhi, 2005)

[4] Granville G. Austin, (The Indian Constitution: Cornerstone of a Nation, Clarendon Press, Oxford, 1966).

[5] Granville G. Austin, n 41

[6] Subhash C Kashyap, Indian Constitution Conflicts and Controversies, 2010

[7] N.S. Jodha, “Rural Common Property Resources: Contributions and Crises” 25(26) Economic and
Political Weekly
A65 (1990) at p.65

[8] Rabindra N. Bhattacharya, Environmental Economics: An Indian Perspective,  New Delhi: Oxford University Press, 2001) at 2.

 

[9] N.S Jodha, “Rural Common Property Resources: Contributions and Crisis”, 25(26), Economic and Political Weekly, 1990 at 74-75.

[10] Garrett Hardin, “The Tragedy of Commons” 162(3859) Science at 1244 (1968).

[11] Id.

[12] Supra note 3 at 29

[13] 1991 (1)SCALE 818

[14] [1981] 1 AWR.325

[15]A S Anand, 1999, ‘The Indian Judiciary in the 21st Century’, India International Centre Quarterly, Vol. No. 26 (3), available at <http://www.jstor.org/stable/23005468> accesed on 2nd June 2015

[16] Supra n. 10.

[17] Vidhya Das, ‘Human Rights, Inhuman Wrongs: Plight of Tribals in Orissa’, EPW, Vol. No. 33 (11), 1998, 571-572, available at < http://www.jstor.org/stable/4406516 > accessed on 2nd June 2015

[18] R.C.Verma, Indian Tribes through the Ages (2nd Edn., Publication Division, New Delhi, 1995), p.8-9, as cited in P Ishwara Bhat, Law and Social Transformation in India (1st, Eastern Book Company, Lucknow 2009) 405450, under chapter 10, ‘Ethnic Pluralism, Tribal Development and Social Transformation: A focus on security, self-government and Social justice’.

[19] P Ishwara Bhat, Law and Social Transformation in India (1st, Eastern Book Company, Lucknow 2009) 405-450.

[20] The provisions for restoration of the area by afforestation, pollution control methods and such other measures as expedient for the proper functioning of the mining plan and also includes for provisions regarding EMPs.

[21] Section 2, MMDR Act, 1957-Declaration as to the expediency of Union Control:- it is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided.

[22]Supra n. 52, But whether calling them as ‘backward’ is fair on their parts is highly debatable; article 29(1) safeguards the cultural identity of the citizens and have been vested with the right to conserve their distinct language, culture, etc and this provision is especially beneficial to the STs who have a distinctive culture of their own; and article 350 A provides for primary education to children in their mother tongues.

[23] Ibid. As per the estimations out of the 16.94 lakhs internally displaced persons more than 70% are STs and SCs. This number would keep on rising if adequate steps are not taken to prevent it.

[24] (1977) 2 SCC 435.

[25]Supra n. 19. The defendant did not file a counter to the suit and the parties reached a comprise. The matter came into light and the State Government intervened and filed a writ petition in the High Court which was dismissed by the Court. An appeal was filed in the form a special leave petition to the Supreme Court which was quashed by the hon’ble Court and decree was passed.

[26]Ibid (1984) 3 SCC 301: AIR 1984 SC 1151.

[27]Id (1985) 1 SCC 479: AIR 1985 SC 389.

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