National Policy for Development Planning, Minimum Displacement and Just Rehabilitation

Foreword

A Process towards a National Policy for Development Planning, Minimum Displacement and Just Rehabilitation

The history of struggle as well as discussion and debate regarding displacement and development has been a long one. Emerging out of this, there is also been years long process of consultation and drafting of the National Rehabilitation Policy carried forward by peoples organisations and official bodies. A draft prepared by Narmada Bachao Andolan (by Adv. Girish Patel, Medha Patkar) in 1987 was thoroughly discussed and finalised by the National Working group on displacement, involving eminent activists, lawyers and intellectuals such as Dr. B.D. Sharma, Baba Adhav, Smitu Kothari, Vasant Palhsikar, Achyut Yagnik, Pradip Prabhu, Vasudha Dhagamwar, Bittu Sehgal and others in 1987. Another national process initiated by Indian Social Institute including Prof. Vijay Paranjapye, S.R. Hiremath, Sharad Kulkarni, Walter Fernandez and others in 1990’s, led to a draft R&R policy.

These initiatives by the people’s movements and NGOs working in the field and on the policy changes since years involved a large number of common people especially the adivasis, dalits, other rural communities of farmers, fishworkers, artisans, labourers, forest dwellers and others facing the backlash of development. There was a debate with so called multiple stakeholders organised Lal Bahadur Shastri National Academy of Administration, Masoorie. The draft policies brought out by the Planning Commission in mid- 90’s and the one by the Ministry Of Rural Development in 1998, incorporating non-governmental drafts were the government initiatives wherein we had participated and made extensive contributions.

However shelving these drafts, after a long lull, the NDA government brought out National Rehabilitation Policy-2003 - highly secretively and in an absolutely non-participatory, non-transparent manner. As a fate accompli, this was analysed and assessed by the people’s organizations who brought out a strong critique of the same and demanded that the UPA government start a consultative process not just to amend the NRP but also to review the serious-most issues of displacement & rehabilitation, and therefore think and work towards a comprehensive Act on Development Planning, minimum displacement, and Just rehabilitation.

Subsequently, a small group of concerned activists worked out a draft and presented the same to the National Advisory Council (NAC) through Aruna Roy and N.C. Saxena in 2004-2005. The national consultations; one held by the National Advisory Council at TISS, Mumbai and other national conventions such as one organised by National Alliance of Peoples’ Movements (NAPM) and collaborating organisations in Delhi, with participation of representatives of selected political parties and peoples' representatives helped consolidate diverse viewpoints and incorporate the varied comments, suggestions, etc into the draft. The same, we were told, not through any formal communication but informally, was passed by the National Advisory Council. Since then, the draft remained pending with the Central Cabinet on the excuse that there were questions and barriers to be faced and clarified, before it could get its sanction.

It is after one full year that a new draft, mostly related to and comparable with the NRP-2006, is brought out by the Ministry of Rural Development. The shortest time of 7 to 15 days granted by the Ministry for comments has killed the possibility of consultations even if those were to be initiated and carried out by the people’s movements and non governmental organizations. However the mandate is well spell out by now, not only by the people’s struggles but also the fundamental duties of the State and the civil society as enshrined in the Constitution of India. At a time when the scale of development induced displacement has grown to a large number & brutality as well as incapability of the State to rehabilitate those forcibly evicted is established, a fundamentally different yet most reasonable thinking has to emerge.

This can be described as follows:
a) The British legacy of land Acquisition without Rehabilitation must be left behind. The Land Acquisition Act, 1894 should be abolished and a new comprehensive legislation must be spell out (i) our development goals (as a reference) for defining public interest (ii) the planning process including options assessments and criteria for choice and (iii) the democratic structure as well as (iv) process – legal, humane - for minimum displacement and (v) just and fair rehabilitation – principles, provisions and processes with democratic, decentralised administrative structure
b) There should be an emphasis on the resources belonging to people and the people’s rights to statutory duties underlined in the Indian Constitution, not on the principle of eminent domain, which has created a havoc
c) The policy, must be a step towards minimizing the displacement and not for increasing it. The policy already on paper (prepared by a large group of activist and representatives of the development project affected) should be taken as a reference, for bringing out a consensual final policy statement. for ready reference
d) The unit of planning a project, not only rehabilitation, should be the smallest social unit, ie: hamlet / village in the rural areas and basti (of not more than 1000 families) in the urban area
e) The change in the utilization pattern of natural resources, including land, can occur without ‘displacement’, if it is in favour of the contributor/investor of the resource; voluntary and not without an alternative ensuring a better life/livelihood & share in the benefits. This would thus mean some change in the habitat in the location or source of livelihood, but not ‘displacement’ or even severe deprivation causing migration/destitution, even if at a later point
f) A large majority, including adivasis, dalits, farmers and laborers require protection from ‘evictions’ in the present context and hence no displacement without ‘prior informed consent’ should be acceptable in the case of any of the affected populations
g) The options assessment as a part of the project planning process also can begin at the smallest unit and needs to be finalized, pre-facto to ensure the appropriate option with minimum of overhauling, socio-environmental impacts, displacement to destruction and effective, efficient and just distribution of benefits
h) No use of force against the project affected should be acceptable and permissible in any development project
i) Rehabilitation would mean social, economic and cultural alternative way of life and hence can’t be attained without an alternative livelihood which needs to be land based (to be allotted as private and common property) for agriculturist populations, forest dwellers and nomadic pastoral communities affected
j) This policy should be for both rural (dalit and tribal) and urban populations and hence the any such draft needs a review by more than one ministry. A Consortium of ministries including Ministry for Rural Development, Ministry for Social Justice and Empowerment, Ministry for Tribal Affairs, Ministry for Human Resource Development, among others should be collectively taking this process forward
k) The earlier proposal and demand for a National Resettlement & Rehabilitation Commission seems to have been omitted from the present policy draft. The NRRC was suggested in the earlier drafts as a national level redressal mechanism and formation of it should be a part of the policy plan. The purpose behind the NRRC and that of having project level Grievance Redressal Committee should be understood as separate
l) The R&R Planning Committee as well as the NRRC, while differentiated in duties and mandate should form the basic implementation instruments as well as redressal mechanism, for any development project, to make sure exploring of maximum socio-economic options, minimum displacement and participatory economic progress.
m) Linkage with a temporal schedule between the project impact, displacement and rehabilitation should be such as to make rehabilitation a precondition to any impact-direct or indirect with a sufficient time gap.
n) If in any region (district or a ward) there is a substantial number of families affected by plan/project but not rehabilitated, there should be a declared moratorium on further displacement until all the affected people are fully and fairly rehabilitated.

It is thus imperative that the draft that was widely discussed and approved amongst the civil society groups, affected peoples organizations and presented before the National Advisory Council chaired by Smt. Sonia Gandhi, be the best reference to finalize the NATIONAL POLICY FOR DEVELOPMENT PLANNING, MINIMUM DISPLACEMENT AND JUST REHABILITATION, even today.

It is towards this end that we suggest the following as urgent steps:
1. One national as well as 5 regional consultations (north, north east, south, west and east India level) to be held within next two months
2. A final draft to be thoroughly discussed by a small group selected out of these consultations
3. Declaring one year as an experimental phase for executing/applying the policy, reviewing it at the end of the year and formulating an enactment on its basis within a year’s time

A CRITICAL ASSESSMENT OF
THE DRAFT NATIONAL REHABILITATION POLICY-2006

Specific Comments On the Provisions of NRP by People’s Movements

1. Preamble

(Refer to 1.1) There is no need to explicitly state and highlight the principle of eminent domain at the very outset. This colonial principle is being reviewed all over the world and is rejected in many countries, same needs to be done in our case.

Instead we may put it thus: “people living in communities with access to, and control over natural resources along with those rights guaranteed by the Constitution of India and various international human rights treaties and conventions that India has ratified”.

Plans and projects for public good involve acquisition of land and other private property and resources and also impacts upon people’s access to common property resources. This leads to displacement of people and among those most severely affected are adivasis, dalits, small and marginal farmers, children and women.

Displacement is caused by the main project, sub-units as well as project related works. The State must fulfill its statutory obligations and constitutional duty by ensuring and protecting the right to life and livelihood of all those displaced by the project and project related works.

Add: With the growth of projects and large scale activities in the name of development and public purpose, there is change, growth and acceleration of the scale and nature of displacement and other environmental, social and economic impacts which are being increasingly questioned and challenged. Taking cognizance of the same, the Government of India recognizes the need to minimize the incidence as well as the adverse impacts of this form of development and the displacement that follows.

(Refer to 1.2) Add: This calls for a careful assessment of the social and economic impact of displacement and a holistic effort aimed at improving the standard of living of the affected and displaced population, covering provisions of alternative source of livelihood and just and adequate rehabilitation of households, land and other resources, villages or communities with all public amenities and services along with rebuilding socio-cultural relationships and capacities.

(Refer to 1.3) There is a need for careful quantification, involving the communities whose resources form the capital for the project, as well as equity analysis of costs and benefits that will accrue to the affected population and the larger society, which will then determine the desirability and justifiability of each project.

(Add 1.5) The policy will be transferred into an enactment once it is finally accepted by all the stakeholders especially the affected people and their organisations. Towards the latter objective, there will be a national consultation and some regional consultations held before the first draft is finalized and another national consultation before one year of completion so as to review the experience and only then will the final policy would be declared. The draft policy would however be applicable during the first year of operation.

2. Objectives of the policy

Since the objectives spell out the various special concerns, these may also include:
• “To ensure that there is no forcible eviction/displacement and that relocation takes place only with prior informed consent and participation of the affected families and community.”
• The objective “to provide a better standard of living to displaced families…” should be “to provide a better standard of living compared to that before displacement by ensuring ‘resource for resource’ rehabilitation and an alternative source of livelihood along with a share in the project benefits” so as to avoid any false increase in the standard of living through distribution of cash compensation.
• At every point in the policy, reference should be to project affected persons / families/ communities and not project displaced persons alone. Family and community are to be treated as separate units and even those amongst them who may not be losing a house and hence not to be displaced but whose property or livelihood is affected, should be covered by the policy.

3. Definition

• “Affected zone” should mean area to be affected by a project and related works in terms of houses, farms, trees, forests, any property private or public and therein the definition need not be based on Government notification.
• Why is definition of “agricultural family” avoided? It should be taken as it is from NRP-2003.
• If marginal farmers are with holdings of less than 2 ½ acre, the policy should also consider the category of “small farmer”, defined and specially protected/ provided for. (Marginal farmer being one who holds upto 5 acres and Small farmer being one who holds upto 10 acres in the right kind of categorization.)
• Which category would a trader and various, professionals or other self employed fall in? It can’t be a part of labour, agriculture or non-agriculture / artisans. Separate and specific categorization is a must.

This policy with land acquisition as a part of it, should not equate acquisition of land by the Government for its own projects, with acquisition for (or on behalf of) any corporate body or other non-statutory agency/ies. This will mean the state is active as an agent transferring the resources of people to the private agencies for private interest and not public interest. Even if one presumes the private body brings in some benefits, when it earns profit it has to be dealt with differently through market mechanisms. Requiring body for application of this act has to be necessarily ‘the appropriate Government’.

4. Social Impact Assessment

(Refer 4.1) SIA should apply for any project displacing more than 100 families en masse in plain areas, and 25 or more families en masse in tribal or hilly areas and areas mentioned in schedule V and schedule VI of the Constitution of India.

The SIA should not be linked to EIA and should be submitted to a committee, maintained by a consortium of ministries including Ministry of Rural development, Ministry of Urban Development & Planning, Ministry of Social Justice, Ministry of Tribal Affairs, Ministry of Labour as well as Ministry for Women and Child Development. This committee should also be authorized to monitor the SIA.

(Refer 4.2) SIA report should not be prepared by agencies accredited by the Government but by departments of social work, sociology, anthropology or political sciences of Indian universities or a deemed university, which is a Government aided or semi-government institution. This is a must in the case of public projects in order to prevent private profiteers/contractors and such other interests from exerting their influence leading to corruption.

(Refer 4.3) A multi-disciplinary expert group can’t be common for EIA and SIA nor can it look at SIA in relation with EIA. To begin with, SIA, should have an independent status although it will include displacement and other social impact on the families due to destruction or degradation of environment (such as impact on fish and fisheries, affecting fish workers).

Experts group must include experts from faculties of social work, sociology, anthropology, economics, political science, geography and archeology and atleast 1/3rd should be from non-governmental agencies and mass movements who have good experience of having worked with the project affected.

(Refer 4.4) Clearance on the basis of SIA should not be granted by the expert group but should be the prerogative of the National Resettlement and Rehabilitation Commission (refer comments on National Commission).

EIA also should be covered under this policy and detailed guidelines must be issued for this. The guidelines should include ways to link EIA and SIA

(Refer 4.5) Public hearing must take place in the affected area at the most convenient and affected place and it should be; before any process related to the project begins, based on a preliminary proposal that should be made public atleast three months before the hearing. After the SIA and EIA is ready, and made public, atleast two months before hearing, separate hearings to be held on SIA and EIA. Detailed guidelines for public hearings should be made public and sought comments, suggestions on!

(Refer 5.1) The criteria should be 100 families in plain areas and 25 in the hilly/ adivasi areas.

(Refer 5.3) He/She should be accountable first to the Resettlement & Rehabilitation Planning Committee and then to the state/ National Commission for R&R, depending on whether the project is state level or a national level. (Please see comment on the commission)

(Refer 5.4) The Administrator for R&R can‘t be the planner too. The agency should be in charge of implementation of a plan evolved by a ‘Resettlement & Rehabilitation Planning Committee’ which should be a multi-disciplinary body and with at least 50% of its members coming from the civil society with at least 1/3rd being the representatives of Project Affected Persons, belonging to various occupational and socio-economic classes including women amongst the affected (proportionate to their percentage among the affected population).

The monitoring of the resettlement and rehabilitation plan must be done by the R&R Planning Committee or the National R&R Commission.

The Administrator should not be paid her/his salary and work expenses by the project authority or acquiring body.

(Refer 5.5) The decision and action necessary to minimize displacement of persons and to identify non-displacing or least displacing alternatives can’t be left to the Administrator and the requiring body. That would submit the scope to the least possible within a project/plains framework and can’t bring in any options of different technology, scale and location with even demand options and not just the supply options.

(Refer 5.5 ii & iii) Consultations should not only be held with the affected persons but also with the communities, the Gram Sabhas and the Mohalla/Basti Sabhas. Similarly ensuring protection of the disadvantaged section should be done in conjunction with communities, gram sabhas and Mohalla/basti sabhas.

Why has this process been brought down to the level of affected persons instead of affected families as it was stated in NRP- 2003?

(Refer 5.5 v) Administrative task of budgeting also should not be left open to be based on consultation with any representatives of the affected families and the requiring body as there is no level playing field. It has to be a part of the Planning to be done by the R&R Planning Committee, with accountability.

All the other clauses should also be appropriately modified incorporating the role of such a committee at every stage.

6. Resettlement and Rehabilitation Plan

Land for any project as well as for Resettlement and Rehabilitation should be acquired under a Land Acquisition law/act (a new legislation, based on this policy), so as to make acquisition a part of a holistic process that will include project planning as well as rehabilitation.

Every survey and planning task should be carried out with full information, prior informed consent and participation of the Gram Sabhas (in rural areas) and Basti Sabhas (in urban areas), to be sought through Panchayats and through local social institutions. Finalizing the affected zone should also be done involving local self Governments from village to district level and Gram Sabhas/ Basti Sabhas.

(Refer 6.2) Every declaration/order/notification should be published in the affected zone for resettlement and rehabilitation as also in at least three main vernacular newspapers with widest circulation in the area. It should be put up on the notice boards of Gram Panchayats and all the nearest government establishments especially: Tehsildar’s, BDO’s, Dist. Supply Officers’ offices and government supply institutions (like ration shops, among others) in the locality.

(Refer 6.3) Before the survey, all project related information, every document whether at the preparatory/ draft stage or otherwise, should be provided/ furnished to each Gram Sabha / basti sabha. A survey team should be appointed with majority of members from the affected families and it must include women.

(Refer 6.4) Survey must be done with affected families as well as community (gram or basti) as units (respondents) with two separate research tools for both.

It is essential that community level survey is done first to understand the total resource base, vocational and economic practices, social institutions, amenities, traditions and culture, interrelationship to opinions on the project and visions of change regarding development as also views and choices pertaining to resettlement & rehabilitation.

(Refer 6.4 {i} to {iv}) Survey should be exhaustive, covering all demographic data as well as opinion poll of the families. Secondary data survey also should be done and a report prepared on that basis. It should cover details of monthly and annual income of each family. It should include families indirectly affected due to impact on their source of livelihood, even if not residing in the area (by finding ways to identify them through public appeal).

It should include those who are not affected but left behind in a no habitable condition (such as marooned area people in the case of the dam affected).

Families living on the common property resources including government waste land or forests but with no legal rights to house plots and land should also be covered under the policy.

In the case of the urban population, cut-off date for survey can be based on those who are in place on the date of the survey and in the case of the rural population, it can be one year prior to notification and the survey whichever is later. This can be for house details, ownership magnitude of private property status, occupation and resource base in possession.

For survey, 3 years prior to notification can’t be used as the cut-off date since in that case, the information coming in would be outdated.

For forestland cultivators too, the cut-off date should not be 1980 but one year prior to survey. (Since in any case the families that are to be displaced will have to be accommodated if we have to prevent further encroachment on or destruction of forest.)

It is indeed obnoxious to say that the survey must be completed within ninety days from the date of declaration. If the consent of the Gram Sabha / Basti Sabha is properly obtained and their participation enlisted, there is no reason why a survey should be delayed. However, there shouldn’t be such a time limit since the left out people (who are always identified at a later stage) would never be covered and there can be genuine reason (such as contour survey found to be wrong later, landless labourers not available due to migration for work etc.) for which it may have to be kept open.

(Refer 6.6): The period for raising objection or filing suggestions should be not less than 90 days since it’s found that 30-40 days are inadequate. There is neither mention of personal hearing (on receiving objections) nor about Gram Sabha/ Basti Sabha endorsement.

A personal hearing should be given to the individual/family raising objections or suggesting changes, by the survey team as suggested above and the administrator with the Rehabilitation Planning Committee should be the appellate authority.

(Refer 6.7): The Draft survey must be furnished to the Gram Sabha/ Basti Sabha and its consent, recommendations and suggestions for correction must be sought within a period of 30-60 days depending on the size of the Gram Sabha/ Basti Sabha.

(The principle to be followed is: there should be no eligible person and no entitlement left of record. No haste at that stage would save future delays.)

(Refer 6.8): Hearing & dialogue on “the Survey” - A special Gram Sabha must be called with the concerned officials of the revenue, forest departments, and projects authority etc. present. The consent too may be sought in this meeting, if they are given the authority to make most of the simple corrections.

(Refer 6.9 & 6.10): Identifying lands, planning relocations etc. should not be left to a single official, but must be the task of R&R Planning Committee.

(Refer 6.11): a) Government waste or other lands also should be considered only after settling of rights of all those who may be old cultivators/ residents on that land. Their claims should be considered based on the same criteria as those of the project affected for R & R Scheme, and they also should be treated as Project-affected and must be resettled.
b) Compulsory acquisition for resettlement, bringing in secondary displacement, should be totally rejected.

(Refer 6.12): This cannot/ shouldn’t happen without going through the same procedure as with the project affected people, with the people therein involved at every stage of the process. Otherwise, this policy would be completely unjust and would end up in clearing the project at the cost of others.

(Refer 6.13): Comment same as 6.11 (b)

Ensuring alternative livelihoods to the non-agriculturists should also be part of the plan and responsibility of the Administrator with the R&R Planning Committee.

(Refer 6.14): Such a vague direction on planning process and those who would plan is unacceptable. There must be:
a) A Resettlement & Rehabilitation Planning Committee with proper representation – as described at an earlier point
b) The draft plan prepared must be endorsed by Gram Sabha (in the case of presence of various groups/communities in the Gram Panchayat, each of the villages/communities in a GGP should be treated as separate Sabhas and separate Sabhas should be held with a compulsory attendance of 3/4th of the villagers/community members and with a prior notice of at least 15 days as against 7 days, since this is a special case).

In the case of urban areas, “Basti Sabha” for 1000 or less families should be recognised and its consent sought as a precondition.

(Refer 6.18): A major purpose behind the R&R plan is to present the nature and state of impact on the property, private and common- in possession of a family or community. This can come from household survey, community level survey and impact assessments (social, economic, environmental, etc) that take into consideration long term impacts and the people to be even indirectly affected (e.g. fisheries).
 The policy must take into account existence of the informal/unorganized sector dependents, whose livelihood sources will be affected by the resettlement. Their earning, education and future possibilities should be ensured
 Appropriate lands to ensure that new residential sites are closer (within 5 Km radius to the new place) to sources of livelihood
 Land to be allotted to individuals, groups, and to the community for resettlement must be cultivable and irrigable. If it’s for agriculture or/and if displacement is for irrigation project they should be provided irrigation free for all encumbrances
 Land for residential sites must be suitable for house construction
 The distance between the residential site and livelihood/ agricultural land should not be more that three kms. for the agriculturists and the urban poor (BPL)
 Distance between the residential sites and all other public services including ration shops, health centres and schools should not be more than two kilometers.

(Refer 6.19): The involvement of the state & central R&R planning committees in final approval of the plan is a must. It cannot be left to the state government or the central government (in the case of inter-state project) vaguely.

(Refer 6.21): What is called to be ‘a fast track exercise’ is one, which needs to be undertaken carefully, e.g. settling land rights and updating land records must be done carefully, following laws and special provisions under this R&R policy (which provide for certain entitlements for those who posses property/ livelihood without ownership). All such tasks should be precondition and preceding land acquisition and not be carried out simultaneously with land acquisition.

(Refer 6.21): The time schedule must be based on a well-defined temporal condition of linkage between acquisition, resettlement and impact of the project. “In no event should there be any impact of a project faced by any person/ family/ community unless all the entitlements under the policy related acts are granted and accepted by the affected”. This clear clause must be added to avoid violations.

The allotment of agricultural land should be done at least one year prior to occurrence of impact and making any other alternative livelihood available must happen at least 6 months before the impact to ensure the same is not ridden with any problem.

(Refer 6.19): Plan is not only to be made known locally and consent of concerned Gram Sabha/ Basti Sabha must be sought.

(Refer 6.21): Exercise of settling land rights may be on a fast track, but should be carefully carried out. Without compensation of the same (to be certified by the Gram Sabha/ Basti Sabha) no step towards land acquisition should be undertaken.

(Refer 6.22) ‘Ouster’? Even after the compensation award is declared that too well in advance, can there be “ouster” PAF’s? This is a term indicating the mentality of the planners! The term must be “ousted” from the policy.

Not just ‘full payments of compensation can provide adequate resettlement’, but full rehabilitation must precede any implementation of a project (on any part of any PAF’s property).

(Refer 6.23) Emergency provisions must be dropped. This section must be removed from the Act. In any case, the minimum period for acquisition is very minimal within the preview of the Act and that can attained without any special ‘emergency’ provision but after ensuring that PAF’s rights are not compromised with. Any ‘emergency provision’ is bound to be misused/abused.

(Refer 6.24) Unless it is clearly stated that land acquisition for one purpose cannot be transferred for another purpose (even if it is also another project purpose) the present problem cannot be solved (legal land acquired for agricultural university should not be used for any other project like SEZ – Special Economic Zone).

In any case section 54 under Land Acquisition Act, which allows land acquired for public purpose to be transferred to private companies, should be deleted. Consent of the oustees as well as certain conditionalities such as, the project be a mixed one with state equity share being about 50% and 80%, with beneficiaries belonging to the lower and middle class, may be put forth as prerequisites to transform any land to any owner other than the state. Eg. a public hospital project, if converted for a private school will serve the interest of different classes and will deprive the affected populace of any benefit. The complication can be avoided by deleting this section and keeping the option open, provided the project is for public purposes and not catering to commercial / private / industrial purpose alone.

(Refer 6.24) period of ten years for returning of land be too long in the case of small projects and in the long projects, this limit may lead to a haste and the project work without rehabilitation and compensation for the environmental impacts should not happen. We propose that the period should be based on project plan and may be fixed by R&R Planning Committee, incorporating Gram sabha/ Basti sabha into the process plan.

7. R & R Benefits for Affected Families

(Refer 7.1): Presuming that any process of development planning or project planning would be carried out in such a way as to ensure minimum displacement, we assert that a fair and just scheme wherein R&R benefits shall be attained by all the affected (PAF’s), whose any property is directly or indirectly affected to any extent.

(Refer 7.2) The benefit suggested here is largely agreeable, provided the house plots should be allotted in a rehabilitation village or a basti where there would be all basic civic amenities. For every 25 families displaced, a site/village/basti can and should be planned and the list of amenities can be announced as rights equal to the list of amenities in NWDTA (Narmada Water Disputes Tribunal Award) with some modification.

(Refer 7.3): It cannot be only cash compensation, its full rehabilitation with all entitlements. Else it is unacceptable.

(Refer 7.4): Land for land must be the basic and major priority without “if’s and but’s”. Eg. If land is not available, agricultural land cannot be taken over and farmers property should not be acquired. Any family loosing 25% or more land of his/her landholding should be entitled to land, the minimum being 2 hectares. One hectare is a non-viable unit in India and hence minimum 2 hectares.

In case of irrigation project, following principle of justice, land allotted should be of fertile nature. If land affected is above 2 hectors, ceiling should be the maximum limit. Land should be of a quality equivalent or higher than the one affected.

(Refer 7.5): Stamp duty as well as income tax payments should not be paid by the PAF’s. Land should be allotted at least one year before submergence or any kind of impact. This is a must and land should be adjacent to residential sites.

(Refer 7.7): Making land cultivable should be the responsibility of the project authority or must be covered under government scheme/s.

(Refer 7.8): Rs- 3000/ for cattle shed is too less. The amount to be related to size of land holding and the number of cattle owned by the individual.

(Refer 7.9): Shifting of house material should be the responsibility of the government project authority

(Refer 7.10): Rural artisans, traders and other self employed should get the minimum capital for restarting the business. This should be done, working out a full fledged scheme. The compensation as a grant for creating new business should be not less than equivalent to 2 year’s income from the occupation to be affected.

(Refer 7.11): The planning of alternatives livelihood should be worked out considering individuals/groups and should be done by the Rehabilitation Committee for which community consent should be sought.

(Refer 7.12.2 {a}): For rights to reservoir fishing, the fish workers need not have fishing rights prior to displacement but should be fishing in the river since atleast 5 years prior to displacement period. The fishing rights should be given to small organised groups or on a community basis or co-operative/s. Fishing rights must be granted to affected persons within the criteria.

(Refer 7.13): Subsistence allowance has to be atleast equivalent to wages for one year. This should not be in lieu of alternative livelihood. Those who would loose land and become small and marginal farmers must be supported to have a supplementary income generated.

(Refer 7.15): PAF’s would include all families affected due to a project and project related works (directly or indirectly as specified earlier).

(Refer 7.16): The area within 5 km radius from the rehabilitation site (from all sides) should be declared a project resettlement zone and the PAF’s will be given priority for access to the resources. This should be a newly created area, to avoid any clash of interest with those who live around the area originally.

(Refer 7.17): As per comment given earlier with respect to forest cultivators.

(Even linear acquisitions can cause serious impediments and the scale too need not be small, eg. Infrastructure development in large cities such as Mumbai affect 5000 and more families).

(Refer 7.18): All forest land cultivators from adivasi communities, residing in the area since generations must be considered as rightful/ equivalent to the landholders and should get alternative land in rehabilitation.

(Refer 7.18 {1}): Evolving a TDP will be meaningful/good.

(Refer 7.18 {2}): Every aspect related to Land Acquisition Act and role of Gram Sabhas etc should be followed, as stated before.

(Refer 7.18 {5}): No cash compensation should be given in lieu of livelihood loss unless impact is very minimum and not at all severe.

(Refer 7.18 {10}): SC/ST status must continue

(Refer 7.19): Infrastructure -

(Refer 7.19.1): The criteria should be same for all R & R sites and should be as close as possible to the original site and used as centres of change where there should be single clearance.

(Refer 7.19.3): A complete list of amenities should be provided in the resettlement plan in proportion to the number of project affected.

8. GRC and RRPC

(Refer 8.1): A detailed comment on Rehabilitation committee (suggesting it as R&R Planning Committee, separate from National R&R Commission) is given at a prior point.

(Refer 8.2): Grievance Redressal Cell

GRC’s composition should be within a frame work:
• 1/3rd of the members should be from the affected families
• Atleast 50% of the members should be non-official (representatives from civil society including academics, social workers, activists, sociology and anthropology students and so on)
• More than technical experts, they should be persons belonging to different social backgrounds
• Official member in-charge should be of the rank of a secretary
• GRC must give due respect and importance to Gram Sabha resolutions, else will be declared to be against law

(Refer 8.2.3): GRC must seek opinion of the agriculture experts and farmers. The official must give the decision within 15 days of the complaint reaching the GRC. The redressal must happen before impacts occur.

(Refer 8.3): Inter-state projects which are large scale (centralized) and conflict-ridden should be avoided if displacement is to be minimised.

In the exceptional cases, inter state body (tribunal or award) with representatives of affected and benefited, of peoples organisations and of governments in the concerned states should be the main agency.

(Refer 8.3.1 to 8.3.3): On behalf of the Central Government it can’t be Ministry of Rural Development alone. Eg. For Urban displacement/projects it has to be Minister of Urban Development, also. In general, the MoRD must form a consortium with other ministries such as Ministry for Social Justice and Empowerment, Ministry for Environment and Forests, Ministry of Finances, Ministry for Tribal Affairs, etc depending on the nature of the project and the social composition of the affected.

(Draft Critique for discussions, prepared by Medha Patkar with help and inputs from Malavika Vartak, Jibin, Simpreet Singh & Vijayan MJ).

(ANNEXURE-I)

National Alliance of People's Movements
National office: A wing, Haji Habib Building, Naigoan Cross Road,
Dadar (East) Mumbai- 400014
Phone: 022-24150529 E-mail: mumbainapm@gmail.com

Shri Raghuvansh Prasad Singh 31st October 2006
Hon’ble Minister for Rural Development,
Government of India, New Delhi

Subject: Response from People’s Movements and organisations to the Draft National Rehabilitation Policy

Dear Shri Ranguvansh Prasadji,

Thank you for extending the date for receiving our comments on the draft National Rehabilitation Policy 2006.

All the allies and friends in various peoples' organizations and movements strongly feel that the dissemination and consultation process and time period allotted for comments on such an important policy has been highly inadequate and hence there is an urgent need to hold a national consultation, which needs to be initiated by your ministry at the earliest, before going any further on the policy.

It is also our view that the draft approved by the National Advisory Council (NAC) in 2005 should be the basis for any further process of consultation and not the new draft circulated by MORD, as this has heavily depended on the NDA Government’s draft, which was rejected by the civil society and affected people at large. This would also save us from repeating the long process, which major networks and hundreds of organizations in the country have already gone through. Without this, a consensus on the serious issues of conflict related to development, displacement and rehabilitation is difficult to attain.

The scale and intensity of impact of displacement in the name of development; the unprecedented transfer of agricultural land and other resources; has reached a stage where a serious national debate has already emerged. Any process bringing out a new policy, must take into cognizance the new issues, the civil society's responses and inevitable conflicts and struggles of the people facing the inhuman impacts with no replacement of livelihoods.

Another aspect is that the policy titled ‘National Rehabilitation Policy’ is one exclusively for ‘Project Affected’ Rural areas and says nothing about the ongoing and massive urban displacement in India. Since the policy is coming from your ministry, this is understandable; however, since this has not been titled “Rural Rehabilitation Policy”, a comprehensive approach, with all aspects of displacement and rehabilitation is required.

Enclosed herewith are our comments and critique on the draft circulated by MORD through the Internet. We have done this inorder reiterate and bring to your kind attention the fact that the NAC 2005 draft, being much more people-friendly, should be used as the base for any future discourse on a National Policy. We request you to also disseminate the said policy draft in Hindi and atleast 5 other regional languages in the form of booklet immediately (at least one month prior to the proposed national consultations).

We assure you all support in this process if planned to be transparent, participatory and conclusive.

Regards,

MEDHA PATKAR
On Behalf of
National Alliance of Peoples' Movements

Endorsed by
• National Fishworkers’ Forum
• Narmada Bachao Andolan
• Samajwadi Janparishad
• Shoshit Jan Andolan - Maharashtra
• Andhra Pradesh Vyavasaya Vrithidarula Union ( AP Agricultural Worker’s Union)
• Pennurim Iyakkam, Tamilnadu
• Shahar Vikas Manch, Mumbai
• National Federation of Unorganised Sector Workers
• Sarva Seva Sangh
• Lokshakti Abhiyaan -Orissa
• NAPM- Uttar Pradesh
• NAPM –Delhi
• Jan Sangharsh Vahini,Delhi
• Paryavaran Suraksha Samiti, Gujarat
• Mazdoor Kisan Shakti Sanghatan, Rajasthan
• National Forum Of Forest People and Forest Workers
• Jharkhand Jungle Bachao Andolan, Jharkhand
• New Trade Union Initiative
• National Agriculture Workers Alliance
• Initiative, Mumbai
• Delhi Forum

CC to: Secretary, Ministry of Rural Development, GoI

A Rehabilitation Policy for the development of the nation as well as the displaced Adivasi

A Rehabilitation Policy - that will lead to the development of the nation as well as the displaced Adivasi –
Stan Swamy

The ‘Rehabilitation and Resettlement Policy’ of Jharkhand govt is unacceptable.
It is too little, too late. A just and meaningful policy should contain the following elements.

  1. Adivasi People should no more be displaced. 30% of them have already been displaced and 41% of their land has already been alienated from them. Only 25% of them have been resettled. The remaining 75% have been neatly forgotten. The following policy should first be applied to those already displaced (15 lakhs in Jharkhand alone). As for other communities, displacement should be avoided if at all possible, and if it cannot be, it must be as minimal as possible. Past experience shows that the govt and the project holder very easily decide on displacement without regard for the dispossession and impoverishment of the to-be-displaced. Again, much more land is forcibly acquired than what is strictly necessary for the realisation of the project.
  2. Prior informed consent of the to-be-displaced must be obtained before displacing them. The Gram Sabha should be the medium between people and the company. The prevalent practice as of now is taking the affected people for granted and officially notifying them of the fact of acquisition. This practice is unjust and unethical.

  3. Mining of whatever minerals must be done by people's cooperatives in Scheduled Areas. This is in keeping with the Supreme Court's verdict [Samata Judgment,1996] which prohibits even the govt from mining in Scheduled Areas.

    Private mining companies have no right to enter Scheduled Areas. Rather, the govt should help in the formation of People's Cooperatives, register them as legal entities, provide the technical expertise and arrange initial capital from a nationalised bank.

  4. The people are not just stake-holders but owners of whatever minerals are found in their lands. They will excavate and they will sell to the govt or the private company as an equal partner. This proposition may be difficult to digest in our capitalist society where the govt assumes to itself the right of 'eminent domain'. But the validity of this claim has been established by some Indigenous Peoples in some parts of the world.

  5. The consent of the Gram Sabha should be obtained before making the acquisition of land in the Scheduled Areas for development projects and before re-settling of rehabilitating persons affected by such projects in the Scheduled Areas. This is as per the 'The Provisions of the Panchayats (Extension to the Scheduled Areas)Act,1996' [4.i]. The sad fact is that although this Law has been in existence for well over 8 years, the govt behaves as if no such law even exists.

  6. The land that is taken with people’s consent should not be sold or transferred to the company but only given on lease. During the duration of mining, the company should pay the land owner a monthly rent of at least Rs. 1000 per acre. After the mining is over, the company should restore the land back to the land owner in a restored condition so that agricultural cultivation can be resumed.

    With non –mining companies acquiring land on a permanent basis, land for land must be a necessary condition because land is the only sustaining source.

  7. Employment to every adult (male & female) member of the family is a must.
    Lack of education / technical skills cannot be an excuse. The employing company has the obligation to equip these young men & women by setting up technical training centres so that it will have trained men and women in its work force. Of course local residents should enjoy priority over outsiders.

  8. The value of the land that is leased or acquired should be estimated by the value of the mineral deposit in the case of mining, and by the end use of the land for other projects like dams, factories, highways etc.

  9. Togetherness of Adivasi Communities in the resettlement process is absolutely necessary because that is the only way for them to preserve their culture and social traditions.

  10. Complete rehabilitation should be completed at least two years before displacing people . This is necessary because people need time to adjust to the new set up.

  11. In this whole process, establishing correct facts such as land ownership, number of families, members in each family, the functioning of the Gram Sabha, amount & value of the mineral deposits etc. is of vital importance. This task cannot be left to the govt or the company. Rather it must be done by an independent, academic agency situated in the district or state.

  12. In those situations where mines & factories already exist, A minimum of 20% of the annual net profit made by the mining company should be set aside towards the development of the villages where the mine or industry is located. [Samata judgment, 1996, para 112-113]. The people from whose land the mineral wealth is excavated should be the first beneficiaries in the monetary value that is generated. The govt which claims royalty and the capitalist miner with his claim for profit are only the second and the third partners.

  13. A Rehabilitation Policy containing the above elements will alone be just and fair to the Adivasi People. This alone will lead to their development along with the nation’s development. Besides, such a policy should be enacted into an Act of the Parliament and the State Assembly. Then only it will have a binding power on the government and the company.

To conclude, National Development should not take place at the expense of some communities of people, such as Adivasis, whose only source of livelihood is their land.

And such a Policy / Act alone will be acceptable to the Adivasi Community.

Independence Day 2008

Adivasis are not beggars:: ridiculous proposal of R & R policy to give 1% of the annual profit

Adivasis are not beggars
- Context: the ridiculous proposal of R & R policy to give 1% of the annual profit of the industrialist to Adivasi land-owner -
Stan Swamy

There should be a limit to the greed of the industrialists. They want to take the 99% of the annual profit their companies make and throw one trivial per cent at the Adivasi in whose land all the mineral wealth is stored. It is like a rich, fat man giving a ten-paise alms to a hungry beggar. The contradiction in this is that all the mineral wealth is in the land of the Adivasi and therefore it is given by nature and he is the rightful owner of what is on, above and beneath his land. The country’s capitalist law makes the State the owner of the minerals and hence it is violative of the law of nature. The law of nature is above any state law.

This was the way the ‘natives’ in America, Canada, Australia, New Zealand were deprived of their rights to the land and forcibly put in secluded pockets during the colonial period. If this process of dispossession continues in India, our Adivasi People will not even have secluded pockets to live in but will just be eliminated.

Adivasi land-owner’s share in the value of the minerals: Let us take one concrete example of this industrialist loot. This is from Santal Parganas in Jharkhand. In 1988, a systematic exploration for coal was initiated in an around the villages of the Pachuara region by the Geological Survey of India. The Pachuara region has reportedly 562 million tonnes of coal reserves in an area of approximately 1300 hectares.

Pachuara Central Coal Block in Pakur district of Santal Pargana. The Jharkhand govt has given lease license over 1300 hectares covering nine Santal Adivasi villages to a private mining company called PANEM to excavate coal

As per the report published by PANEM Co, 562 million tons of coal is to be excavated from the 1300 ha of land slated to be taken from the people of Pachuara Central Coal Block. The monetary value of coal must be estimated as per the current market value for 562 million tons and divided by 1300 hectares, and at least 50% of it must be paid to the land owners.

A rough calculation shows that the value of 562 mill. tons is Rs. 1,12,400 cr. divided by 1300 hectares gives Rs.86 cr per ha, and converting it to acres it works out to Rs. 34 cr per acre. It means every acre has a coal deposit to the value of about Rs. 34 cr. The owner of the land should be entitled to at least 20% of the value. That would work out to Rs. 6.8 cr., and this should be credited as shares in the company in favour of the land owner.

Putting the above facts more graphically…
Coal mining in Pachuara Central Coal Block in Pakur Dt of Santal Pargana.
( a rough estimate )
Value of one kg coal Rs. 2 (at a minimal level)
Value of one ton coal Rs. 2000
Value of one million tons Rs. 200 crores
Value of 562 mill. Tons Rs. 1,12,400 cr
Divided by 1300 hectares of land Rs.86 cr p/hect
Divided by 2.5 to convert hectares to acres Rs. 34 cr p/acre
20% of value in favour of land-owner to be converted into shares Rs. 6. 8 cr

This is not being unfair to the industrialist because from the remaining value of 80%, the industrialist may spend about 30% in putting up the infrastructure, purchase of technology, paying the managerial personnel and labour force. So he will still have 50% of the value as his profit. That should be more than enough to satisfy his thirst for wealth.

Similar calculation can be done anywhere depending on what mineral deposits are there and the market value of such minerals. It is necessary to keep in mind that this is the only way the nation’s wealth can be equitably shared and the industrial production can lead to the development of all. Needless to say, the government of the day should have the honesty to accept this as a just policy and should have the political will to implement this.

Besides, this is in keeping with the Preamble of the Indian Constitution where it affirms that the Indian State is committed to realising a ‘socialist society’. Again it is confirmed in the Samata Judgement of the Supreme Court of 1997 where it says ‘at least 20% of the profit of the company should be ploughed back to the community for welfare & development work’.

Certainly, the Jharkhand Govt should change its R&R policy and industrialists should accept to share their profit more justifiably with those who give their land freely and willingly. The necessary intermediary is the Gram Sabha.

People are awakening to their rights. Resistance Movements are building up. The nation’s wealth should be evenly shared. That alone will lead to the development of the country as a whole.

24 November 2008
--------------------------------------------------------

Bagaicha
c/o Agricultural Training Centre
Namkum P.O.
RANCHI - 834 001
Jharkhand

Ph. 9939411612
Email: stan.swamy@gmail.com

Cricket : a game by the leisurely, for the leisurely lowest exertion, highest remuneration

Cricket : a game by the leisurely, for the leisurely lowest exertion, highest remuneration –

Stan Swamy

Cricket game has become a contagious fever. This fever comes especially to the youth of middle and lower-middle classes. Now that TV channels are bringing it ‘live’, which ever be the country where it is played and whatever be the odd hours when it is played, the youth are ready to keep awake just to be able to watch it. Often it looks as though these young people have nothing else to do in life. Cricket as a leisurely and long drawn out game stands in such contrast to other games such as Hockey, Football, Basket Ball, which are played with tremendous intensity and exertion so that it is all over within a maximum of two hours.
If the Indian team is doing well and is winning, there is tremendous cheer and fire-crackers are liberally exploded; if, on the other hand, our team is doing badly and is losing, there is grim silence. When the Indian team returns home as winners, the players are cheered as ‘heroes’; if they return as losers, they are booed as ‘villains’. The State and Central Governments vie with each other in rewarding the players in cash and kind.
Unfortunately these young people do not realize that cricket is used by the capitalist ruling class as a safety-valve to diffuse the socio-economic tensions the youth face and divert their attention from the serious problems such as unemployment.
Let us probe a little on the history of this game and discover the contradictions thereof.

Colonial origin: The origin of cricket as a game is.to be traced to the British colonial period. The first rules were written in 1744 and exported to all the British colonies. It is not a surprise, therefore, cricket has become popular in the erstwhile British colonies such as India, Pakistan, Sri Lanka, Bangladesh, West Indies, South Africa. The illegal British occupation of Australia where the native Aborigines were massacred and marginalised, made it possible to export cricket there also.
This was a game of the British upper class and was meant for their relaxation. It was played mostly during Sundays which was a day of rest and relaxation. The elitist character of this game is that the lower class were not supposed to play this game. It was a preserve of the white ruling class. It is significant to note that although colonialism as a political factor has come to an end, the local native population is hardly represented in the teams of Australia and South Africa. Verily smacking of racial discrimination.

Destructive of local traditional games: Traditional games like hockey which used to be considered as India’s game and in which we were so good that India just could not be defeated at international level has been pushed to lower levels of esteem and attention. Now many other countries have overtaken India to the extent that the Indian team could not even qualify to compete in the next Olympics.
Another heartening feature of hockey is that the tribal boys and girls have been excelling in it at local, national and international forums. It used to be a pleasant sight to see small tribal boys and girls in villages playing hockey with self-made hockey sticks made out of small tree branches in open spaces and even in the fields. But sadly, even this home-game is fast losing out to cricket.
Another destructive aspect of cricket is that it takes such a long time to be played. It normally takes two, three, four consecutive days to conclude. Even the one-dayer takes one full day. That means the viewers have to take the day off from all other occupations inclusive of earning one’s livelihood. This way, cricket encourages laziness in the young viewers and distracts them from gainfully employing themselves in life.
More damaging is the fact these young people are slowly drawn into outright unethical practices such as gambling and betting on which team will win. Thus there is every possibility of these young people will grow up to becoming irresponsible adults.

Cricketers have become purchasable commodities in the market : One writer observes that today’s cricketers are “being evaluated like prize-bulls bought up by the super-rich” ! Thus we have a handful of new crorepathis and the only gain the nation can have is a few crores of rupees realized as income tax.
One often wonders what motivation these cricket-heroes have in playing the game.
Is it their name and fame? Is it our country’s prestige? Or, is it the Dollars?
From the way the game is organised and the players are rewarded, it looks that Dollars is the most important and coveted factor. This is very unfair towards the rest of the country men majority of whom are struggling to make both ends meet. It is very unjust towards the Indian government which foots their extravagant air & surface travel, stay in luxury hotels and all other arrangements for the players comfort and enjoyment.

Show-pieces for cheap advertisements of consumerist goods:
Just like cinema-stars who allow themselves to be used for cheap money in ads for consumer items like soap / talcum powder / TVs / computers / motor-bikes / cars etc
cricketers also have become show pieces in cheap ads. Very few of them really stand up in defence of human values and concerns such us human rights / stand against displacement / steps to reduce unemployment of the youth / dignity & respect for women, child-workers etc. In other words, cricketers by and large are not desirable models for the rest of society to follow. They are playing for their own name & fame and are keen on earning as much wealth as they can when the wind is still
blowing in their favour.

A capitalist game at home in the capitalist society:
Capitalism by its very nature is promotive of leisure, comfort, luxury, inequality.. Cricket also by its very nature is a leisurely game and promotive of the values of capitalism. Mass media, both print & electronic, in capitalist society make the cricket stars objects of purchase & sale. So, as long as capitalism will prevail, cricket also will flourish.

10 October 08

Environmental Public Hearings are a mockery of the law in Jharkhand

Environmental Public Hearings are a mockery of the law in Jharkhand
- the case of public hearing at UCIL-Jaduguda on 26 May 09 –

Stan Swamy

Public Hearings for Environmental Clearance of various Developmental Projects was made mandatory under the Environmental Impact Assessment (EIA) notification in 1997. Public Hearings allow for people’s participation in the decision making of developmental projects and is the only opportunity for people to raise their concerns about the proposed project. It is the responsibility of the State Pullution Control Board (SPCB) to call for a public hearing when a project is proposed in an area.

The story of UCIL-Jaduguda and the struggle of the mostly Santal Adivasi People against the company is not unknown to the general public. UCIL has been operating for over four decades now. Many of the social problems like the just compensation for the land acquired, cost of medical treatment for radiation-caused illnesses among the workers and the local population, contamination of land, water and air have not been addressed at all.
People have been demanding (a) no new uranium mine (b) bring the existing mine under the international safety guide lines (c) return of tribal land acquired earlier, but not utilized for mining (d) provide livelihood and rehabilitation to the displace people.(f) clean up of the contamination (g) an independent study about the environmental contamination and health effects among the people (h) continuous monitoring of the water bodies to ensure that the radionuclides do not seep into the aquifer, the life line of more than 100,000 people.

The ‘Public Hearing’ on 26 May 09: This hearing was held to get the peoples’ consent for a capacity addition of 20% (from current 2020 tpd to 2500 tpd or uranium ore to be milled) and for another tailing pond to house the radioactive mill tailing. The total tailing that will be let off in the pond will be about 850,000 tons per year. About 15 acres of forest land has also been sought for these.

As per the law, the venue of the meeting should be near the affected communities. But on 26th it was held in the UCIL colony whereas the affected people are not usually even allowed to enter. However, the affected Santal tribal people together with their organisation Jharkhandis Organisation Against Radiation (JOAR) wanted to enter the hall, they were prevented by the employees of the company who had already occupied the hall.
The public hearing was held in the private land of UCIL, near the camp of the Central Industrial Security Forces. Early morning, hundreds of UCIL workers and other beneficiaries had occupied the chairs kept in the hall for the public hearing. The real public, who have lost their lands for the mines and whose health has been damaged due to radiation, had no place in the entire process.
There were lots of public and there were also lots of policemen and members of different security forces. For every one person not in uniform, there was one person from the forces in uniform, some wielding batons, others with rifles and some in riot gear. Though most of the workers are exposed to dangerous levels of radiation, most of them consider themselves fortunate and lucky. That is quite expected in a country where the wage rates/returns in farming is very low and there is not any other job opportunity.

Around 11 AM, the General Manager of UCIL read out a document listing the details of the project. The presentation by the general manger lasted for about 30 minutes. After this, the organizers announced the names of the speakers from the ‘public’. Everybody was unanimous on one issue – UCIL provides jobs, food, clothing and houses. All talks about radiation is anti-national propaganda. UCIL has to be protected at any cost. There is no need to hear any viewpoint which is against the interests of the company.

JOAR and other organizations fighting on environmental issues related to radiation, livelihood issues related to loss of land due to mines and contamination of farmlands and water bodies decided to boycott the drama called public hearing, as there was no possibility of presenting the view of the affected people.

“when compared with hunger, pollution is a small issue” is the slogan raised by the workers and other employees of UCIL. Is this the mental attitude to which the ruling class in India is bringing the poor and downtrodden in India? Such an attitude would in the long run prove disastrous. If allowed to continue, pollution will become a bigger killer than hunger itself.

1 June 09

----------------------------------------------------------------
Bagaicha
c/o Agricultural Training Centre
Namkum P.O.
RANCHI - 834 010
Jharkhand

Ph. 09939411612 (mobile)
0651-2260224 (land line)

Email: stan.swamy@gmail.com
stanswamy@jharkhandi.com

Is standing up for human rights make one a Maoist ?

Is standing up for human rights make one a Maoist ?

- the police do not observe their own rules in arresting a person –

Stan Swamy

Massive displacement of people, especially the Adivasis & Moolvasis, is taking place. It is done in violation of the Supreme Court’s directive [Samata Judgement, 1997] that the government should consult the concerned Gram Sabha before starting any project. It is natural, therefore, people have begun to resist displacement and refuse to hand over their land to industry and mining. Of late, the Jharkhand, Orissa and Chattisgarh governments have started arresting human rights activists who are providing leadership to anti-displacement and anti-communal movements.

The list is long, but I will mention only some of the more prominent among them:

Jitan Marandi Jharkhand author, poet, human rights activist
Damodar Turi Jharkhand anti-displacement & human rights activist
Munni Hansdah Jharkhand anti-displacement & human rights activist
Ram Charan Roy Jharkhand anti-displacement & human rights activist
Hopna Baskey Jharkhand anti-displacement & human rights activist
Abhay Sahu Orissa anti-displacement & human rights activist
Lenin Kumar Orissa author & anti-communal activist
Ravi Jena Orissa publisher & anti-communal activist
Dhananjay Lenka Orissa anti-communal activist
Protima Das Orissa advocate & anti-displacement activist
Pradeep Orissa anti-displacement activist
Binayak Sen Chattisgarh medical doctor & human rights activist

And there are many more.

Adding insult to injury . . . the police do not observe their own rules.

The National Police Commission (1997) affirms that Legal Protection/Safeguards for Detainees in Custody are inherent in Article 21 and 22(1) of the Constitution and therefore require to be recognised and scrupulously protected. Some such safeguards are:

1) An arrested person being held in custody is entitled to have one friend or relative informed that he has been arrested and where he is being detained.

2) The police officer shall inform the arrested person when he is brought to the police station of this right.

3) An entry should be made in the Diary as to who was informed of the arrest. A police officer making an arrest should also record in the Case Diary the reasons for making the arrest.

Apart from the above, the historic judgement of the Supreme Court in D.K.Basu v/s State of West Bengal (AIR 1997 SC 610) compels the Indian police force to follow these requirements:

1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations.

2) The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

3) The person arrested must be made aware of this right to have someone informed of his arrest as soon as he is put under arrest or is detained.

4) An entry must be made in the Diary disclosing the name of the friend / relative who has been informed of the arrest.

5) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries on his body must be recorded.

6) The “Inspection Memo” must be signed both by the arrestee and the police officer, and its copy provided to the arrestee.

7) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody.

8) The arrestee may be permitted to meet his lawyer during the interrogation.

9) The right of every person detained / arrested to know the grounds of arrest and his right to bail should be honoured.

10) Failure to comply with the requirements mentioned above shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court.

Added to these are the recommendations of the Law Commission (November 2000) that

1) representatives of registered rights groups and NGOs should be entitled, under law, to visit police stations and examine custodial records.

2) Arrest or search of women should only take place in the presence of women police officers and should not take place at night.

3) Women should be detained separately from men. The effectiveness of this gender-based detention should be monitored by independent mechanisms.

The reality is very different. . .

There are serious flaws in the way police goes about arresting people.

1) most often the police raids a place like a bull-dozer breaking doors and any thing that is on the way. The custom among Adivasi people is they leave footware outside and enter their house bare-footed. The place where they prepare and have their food (‘adig’) is considered a sacred place where the spirits of their dead ancestors dwell. The police have no consideration for the cultural values of people and enter the house with their dirty boots, pushing and thrashing any and every body in the house.

2) The police do not usually produce ‘search warrant’ but jump on the person they have come to catch. Then they search the house / office turning every thing up side down. They usually bring with them some leaflets / booklets called “maoist / naxalite literature” and pretend they found it in the premises.

3) Rarely is a respected local person present during the raid to bear witness to the search operation. Some times one or two ‘police informers’ may be brought along who will do the police bidding.

4) It is a rare occasion a “search-inventory”is made which is signed by the arrestee and one other witness.

5) Once they have arrested a person they want, they can do any thing to him / her. The arrestee is brought to the police station, beaten up brutally like an animal under the pretense of “extracting truth / evidence”.

6) Can the police in all honesty say they do not use ‘third degree methods’ on the detainees?

7) if the police wants to put the label “naxalite / extremist / maoist”, they just place a table, put some old pistols / guns on it, line up the detainees behind the table and call some press persons to take a photograph and publish in local news papers. Sadly, many of the press reporters also go along with the police version without checking / verifying the facts.

Once this is done, the general public is made to believe that the detainees are really extremists and the police have done well in catching them.

But who will bell the cat?

Sadly, we cannot look up to the local government to come to the rescue of these victims of police atrocity. In fact the local govt administration is part of the game. Neither can we expect the district-level judiciary to save them because it goes by the version of the police and even refuses to grant bail.

The electronic media and the press in general play safe and mostly project govt views. Only in exceptional and shocking cases such as Babri Masjid demolition, Gujerat genocide, Orissa Kandhamal attack on Christians we saw some sane reaction from the mass media. There are plenty of intellectuals, authors, legal experts, artists who can play a healthy role. Only they need to be helped to form distinct forums of their own so they can speak their mind when glaring human rights violations take place. Last but not the least are the masses of people who through specific People’s Movements and People’s Organisations can undertake civil disobedience movements. There is nothing like people’s power. Shri Jayprakash Narayan has shown us the way.

We are then left with human rights and democratic rights organisations at local, national and international levels who alone will come forward to defend the human & constitutional rights of the unjustly arrested and tortured human rights activists. The challenge before us is to network these groups and organisations so they become strong pressure groups. And if they can be connected to international bodies like the United Nations Human Rights Commission it can go a long way in safeguarding human rights. There is no other way.

20 December 08

The only solution to NREGA- corruption in Jharkhand

The only solution to NREGA- corruption in Jharkhand
Remove the BDO office which is blocking development and link the village
Gram Sabha directly to District administration

Stan Swamy

Prof Jean Dreze, member of the Central Employment Guarantee Council, refers to Jharkhand State as “ one of the worst performing states as far as NREGA is concerned” in the country [The Hindu, 19 July 2008]. There are two main reasons for this: (1) massive corruption built into the system; (2) people’s ignorance of their rights. The two go together.

The NREGA, a scheme meant to provide relief to households suffering chronic unemployment, has become another site for harassment. In the country as a whole, around ten lakh rural BPL households paid bribes to avail of NREGA benefits, to the tune of Rs 7.15 crores in the course of one year! Around 47% of rural BPL households that interacted with the NREGA found officials/staff corrupt. Half the households that paid bribes did so to get registered for work under the scheme [Centre for Media Studies (CMS) & Transparency International India (TII) in India Corruption Study-2007]

In Jharkhand the situation is still worse. The factors affecting NREGA in Jharkhand are:
1)a repressive state machinery which looks upon any one raising any question about the implementation of NREGA with suspicion. It is so easy to dub such individuals and organisations as either being Naxalites or associated with them. Once the tag of Naxalism / Maoism is put on a person, anything can be done to him. He can be summoned to the police station and harassed, or he can be arrested for a few days without any charges, or he can be beaten up badly and released, or he can be arrested and produced before the magistrate and charged as being a Maoist or having links with militants. Unfortunately the govt and the police do not realize that this type of repression will itself provoke young men and women to join the extremist forces. Thus there will be a strengthening of militants and their organisations in Jharkhand.
2)Helplessness of working people: 80% of Jharkhandi people live in rural areas where poverty is deepening. Studies show that 60 – 70% of rural population is below Poverty Line. In some districts of Jharkhand the literacy rate among rural women is as low as 18 % and 24%. When they cannot even read their Job Card and do not know where their names are written on the register, and saddest of all, they cannot sign their name on the muster roll but can only put their thumb impression, what accountability or transparency can be expected in the functioning of NREGA? The sad part of it is that the capitalist ruling class and the govt want to keep the majority of people in this situation of helplessness.
3)Lack of system to redress grievances: if day-to-day checking of NREGA functioning is to be done it is best done by the local Gram Sabvha. But the govt is reluctant to give this power to the gram sabha. Instead it appoints high-level retired bureaucrats and college professors to check on the functioning of NREGA projects. By the time these big people reach a particular NREGA project, all the rats run into their holes! Recently a govt announcement in newspapers giving a Delhi-phone number for people to report about any wrongs in NREGA provokes laughter! One phone number for the whole country, and that too in Delhi. How many NREGA - workers would have access to an STD phone, and even if they phone, what reply or remedy they are likely to get?
4)Absence of Gram Panchayats: It is a known fact that Jharkhand has not had Panchayat election for well over 25 years. Sadly even the present govt does not seem serious in holding it. The higher judiciary which ruled against some of the provisions of PESA Act does not seem to be in any way concerned about giving its final judgement on the matter. However, the State Govt can at least conduct panchayat election in the non-scheduled areas. But there is no will power to do it. Consequently thousands of crores of rupees of the central govt to be channelled through gram panchayats and gram sabhas is not being sent to Jharkhand. A very big loss to the Adivasi people of Jharkhand indeed. Another factor to take note of is the fact that in most of Scheduled Areas there is in existence the age-old traditional Munda-Manki system which is very functional. The NREGA schemes can very well be channelled through these bodies. Again, the govt seems unconcerned.
5)Casual attitude of government towards the implementation of NREGA is most regrettable. Prof Jean Dreze, member of Central Employment Council, during his recent visit to Ranchi called the state govt’s attitude towards NREGA as “lip service”. He further stated that various social audits across the state have proved that the government officials, politicians and contractors were taking profit of the NREGA projects. In several places, the works are being carried out by contactors, which is illegal under the act.

How else to clean the stable? . . . only possible through local People’s Organisations.
It is my belief that only those who are presently victims of corruption will be able to correct it. And the corrective mechanisms should be on the spot and have a stable presence. Sporadic officious visits of retired high level govt appointees cannot do it. Let us name a few such people’s mechanisms:
1)People’s Organisations: People have instruments like Gram Sabha at the village level, Panchayat at inter-village level, Parishad at block and district level. It is already laid down in The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA for short) that all projects should be placed before the gram sabha for approval, the choice of the beneficiaries, implementation of the schemes. The NREGA programme should be placed before these people’s institutions at the grassroot level and they should be asked to take charge of the entire programme. It should be a collective responsibility of the whole gram sabha / panchayat / parishad.
2)In Scheduled Areas, the traditional Adivasi social organisation & leadership should be recognised as the implementing agency. This is a system that is based on collective leadership and consensus decision making process. Therefore it is ideally suited in identifying the real needs of the local community and implement the schemes through community-participation. Also because of the collective and community process, there is less space for corruption and more space for transparency.
3)The Block Development Office and the BDO should be kept out of the picture completely. Historically the BDO (office and officer) have come to be known for incompetence, inefficiency and corruption. Their functioning has been like the feudal zamindar lording over people. They have been blocking rather than aiding rural development.
4)Human & Civil Rights Organisations with clear secular credentials should be authorized as checking agencies. In the recent years these organisations have highlighted crucial areas and issues relating to the rights of the marginalised sections of society which the ruling class and the govt failed to do any thing about. There is genuine commitment and no vested interests on their part. The govt must make sure that their recommendations are taken seriously and acted upon.
5)A few carefully selected print & electronic media can be empowered to highlight discrepancies in the functioning of NREGA. Most national newspapers have sold themselves to the corporate houses. Only a few local and regional media can be trusted with the poor people’s cause. These media persons can be asked to investigate specific problematic situations and highlight them in their write ups and presentations.

‘Jharkhand State seriously failing in protecting the Human Rights of its people’ - ACHR

The Asian Centre for Human Rights, a centre dedicated to promotion and protection of human rights in Asia,
declares
‘Jharkhand State seriously failing in protecting the Human Rights of its people’

Stan Swamy

Some extracts from its 2008 - Report

Both the Naxalites and the security forces were responsible for serious human rights violations including extrajudicial killings and torture. The Maoists targeted political activists.

The NHRC revealed in July 2007 that there were as many as 84,000 cases of human rights violations under consideration of the NHRC out of which 3,000 were from Jharkhand. However, Jharkhand government failed to establish a State Human Rights Commission.

The Adivasis continued to face serious human rights abuses. According to the National Crime Records Bureau, a total of 332 cases of crimes against Scheduled Tribes were reported in Jharkhand during 2006.

Tribals have been arrested under false charges when they tried to access minor forest produce in Jharkhand. About 12,000 cases have been filed by the state’s Forest Department against tribals as of 12 August 2007 for claiming land rights by tribals guaranteed under the Scheduled Tribes (Recognition of Forest Rights) Act.

Bottom of Form
II. Human rights violations by the security forces
a. Violations of the right to life

The NHRC received three cases of police custody death in Jharkhand during the period of 1 April 2006 to 31 March 2007. It also reported two cases of ‘encounter deaths’ during the same period.
b. Arbitrary arrest, illegal detention and torture

the NHRC received two cases of illegal arrest, two cases of unlawful detention, one case of disappearance and 128 cases of other police excesses in Jharkhand during the period of 1 April to 31 March 2007. The police failed to take action in 144 cases. The police often tortured the accused persons during interrogation.

III. Violations of International Humanitarian Law by the AOGs

The Maoists were responsible for gross violations of international humanitarian law. According to a report prepared by the Jharkhand Police, 70 per cent of the people killed by Maoists belong to tribal and Dalit communities.
a. Violations of the right to life

28 civilians were killed by the Maoists during January to September 2007. Political leaders and police informers were specifically targeted.

The Maoists continued to kill alleged police informers. The Naxalites continued to organise Jana Adalats, Peoples Court, to impose Maoist ‘justice’.
b. Destruction of public properties

The Naxalites continued to destroy of public property.
IV. Judiciary and administration of justice

The judiciary continued to limited by judicial delay in Jharkhand. Yet, there were 11 vacancies out of the sanctioned strength of 20 judges in the Jharkhand High Court as on 1 January 2008. There were 66 vacancies out of the sanctioned strength of 503 vacancies in the District and Subordinate Courts as on 30 September 2007. Besides, there were a total of 49,276 cases pending with the Jharkhand High Court and a total of 2,63,901 cases were pending with the District and Subordinate Courts as of 30 September 2007.

There has been lack of tribal representation in the judiciary of Jharkhand. Though the tribals constitute about one third (nearly 80 lakh) of the total population of the state, as of 18 May 2007, there was not a single tribal representative as a high court judge or district judge. There were about 300 lawyers from the Scheduled Caste and Scheduled Tribes, minorities and women out of the 1,836 practitioners registered with the Advocates Association of Jharkhand High Court. The state judicial service officers’ strength was about 430. Significantly, the law officers, appointed by the state government, to argue its cases in various courts, including the high court, did not have a tribal member either.

V. Violations of the rights of indigenous peoples

The National Crime Records Bureau of the government of India reported a total of 332 cases of crimes against the Scheduled Tribes in Jharkhand during 2006. These included 13 cases of murder, 21 cases of rape, 13 cases of kidnapping and abduction, 91 cases under the SC/ST (Prevention of Atrocity) Act of 1989, among others.

The conditions of the tribals were deplorable due to government’s apathy in Jharkhand. The Sabar tribes, one of the oldest in the Chottanagpur Plateau, were on the verge of extinction due to government’s apathy. In Darisai village, once dominated by over 200 Sabar families, was left with a mere 11 families consisting of only 47 people as on February 2007.
a. Land alienation and displacement

In Jharkhand, cases of alienation of tribal land have risen despite two laws - Chotanagpur Tenancy Act and Santhal Parangan Tenancy Act to prevent sale of tribal land to non-tribals in the state. A total of 2,608 cases have been filed by tribals with the Special Area Regulation Court in 2003-2004, which increased to 2,657 cases in 2004-2005 and further to 3,230 cases in 2005-2006. As of January 2007, 3,789 cases have been filed with the Special Area Regulation Court in 2007.

Lack of lawyers to take up land-related cases of the tribals further delayed adjudication. Around 5,500 land-related cases of tribals were pending in various district courts in Jharkhand as of March 2007. The government of Jharkhand had an annual budget of Rs 50 lakh to provide legal assistance to poor tribals to pursue their land-related cases. However, less than 10 per cent of the total allocated budget was spent over the last six years. Lawyers were unwilling to fight cases on behalf of tribals seeking government assistance. The offer of Rs 5,000 per case was cited as one of the main reasons for pendency of land-related cases in courts.

In February 2007, the Supreme Court allowed a tribal petitioner to file a fresh petition before the Jharkhand High Court for recovery of his land from a mining company. In its order, the Supreme Court held that the Jharkhand High Court was wrong to dismiss the petition of Surendra Dehri, a tribal who alleged that over 10,000 acres of “notified tribal land” had been usurped by mining contractors in connivance with the government officials. The High Court had dismissed his petition saying that it involved only “private interest”. But a bench of Supreme Court comprising Justices B.N. Agarwal and P.P. Naolekar stated that a clear violation of constitutional guarantees given to the tribals could not be held to be related to “private interest”.

The tribals of Jharkhand have also been protesting against the implementation of Koel Karo hydroelectric project by National Hydroelectric Corporation over the Koel and Karo rivers. The project, if implemented, would submerge as many as 256 villages involving 50,000 acres of forest area, 40,000 acres of agricultural land and 300 forest groves (considered sacred by the tribals), 175 churches and 120 Hindu temples.
b. Repression under the forest laws

The tribals have been intimidation and abuse including arrest for accessing minor forest produce. About 12,000 cases have been filed by the state’s Forest Department against the tribals as of 12 August 2007. Most of these cases related to the claims of land rights by the tribals guaranteed under the Scheduled Tribes (Recognition of Forest Rights) Act.

On 12 August 2007, the government of Jharkhand ordered the release of all tribals who had been lodged in various jails in the state in connection with cases registered by the Forest Department and to pay compensation to all the villagers who had lost their paddy fields and vegetable farms due to forcible plantation undertaken by the state’s Forest Department.

VI. Violence against women

Violence against women including rape and dowry deaths continued to be reported. According to the National Crime Records Bureau, a total of 2,979 cases of crimes against women were reported in Jharkhand during 2006. These included 799 cases of rape, 410 cases of kidnapping and abduction, 281 cases of dowry death, 668 cases of cruelty by husband and relatives, 414 cases of molestation, 11 cases under Immoral Trafficking (Prevention) Act of 1956, among others.

The security forces were responsible for violence against women and children. Tribal women were especially targeted for sexual violence.

VII. Violations of the rights of the child

According to the National Crime Records Bureau, a total of 112 cases of crimes against the children were reported in Jharkhand during 2006. These included 9 cases of murder, 28 cases of rape, 11 cases of kidnapping and abduction, among others.

The provisions of the Juvenile Justice (Care and Protection of Children), 2000 continued to be violated. Children were often tortured in homes/orphanages.

The security forces continued to occupy schools for military purposes, thereby making the schools targets of the Naxalites. As of mid-April 2007, 25 schools were converted into police camps. Many schools remained closed over the last five years. Estimates put the number of affected students at 12,000. A few schools such as Chatrapur Middle school of Daltanganj had been closed since 1990. Many schools have not been totally closed but the security personnel live in the school buildings. Often, children were forced to learn their lessons in the open sky, apart from living under the fear of the attacks by Maoists.

VIII. Violations of the prisoners’ rights

the NHRC received 59 cases of death in judicial custody in Jharkhand during the period of 1 April to 31 March 2007.

[source: ACHR’s quarterly newsletter, Naxal Conflict Monitor series of 2007.]

----------------------------------------------------------------
Bagaicha
c/o Agricultural Training Centre
Namkum P.O.
RANCHI - 834 010
Jharkhand

Ph. 09939411612 (mobile)
0651-2260224 (land line)

Email: stan.swamy@gmail.com
stanswamy@jharkhandi.com