Strengthening Democracy in India through Participation Rights

Abstract

This paper is contextualised around the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 in India, which recognises both individual and community rights of the Scheduled Tribes and other traditional forest dwellers relating to forest land and forest produce. The Forest Rights Act, along with the Panchayats (Extension to the Scheduled Areas) Act 1996, also recognises decision-making power of the Scheduled Tribes to make decisions regarding claims on forest land. The paper argues that the recognition of such participation rights, broadly understood as the right to participate in specific decisions that impact our other rights, can be an important means for strengthening democracy in India. This creates space for oppressed communities who may face exclusion in other institutions, to directly participate in decisions involving their substantive rights. It holds the potential to deepen a deliberative version of democracy, creating space for discussion and deliberation within communities while deciding questions regarding their rights, rather than a version of democracy based on interest-bargaining and power-play. Participation rights may also serve as an important tool for oppressed people to secure their substantive rights, such as the right to forest land. The paper therefore contributes to wider debates around democracy and rights. It explores what we understand by ‘democracy’, advocating for a deliberative view of democracy. It explores how democracy relates to rights, both participation rights and substantive rights. Lastly, it evaluates the design of existing participation rights - the Forest Rights Act and the Panchayats (Extension to the Scheduled Areas) Act 1996 - to examine whether these are designed to deepen deliberative democracy and secure substantive rights. It concludes that existing participation rights are flawed, but there is potential to interpret these in a manner that strengthens deliberative democracy, and the ability of participation right to secure substantive rights to forests, by relying on the Indian Supreme Court’s jurisprudence in Orissa Mining Corporation.