INTRODUCTION:

Societies have always tried to balance between Individual Rights and Power of State. However in the post-Independence period, as progress, national self-sufficiency, industrialism, and large development projects have become synonymous there is an increasing pressure on land. The developed projects are usually located in remote villages, hills and forests and the people displaced from these areas are indigenous people who have been traditional agents of conservation. Here displacement means loss of livelihood, habitat and assets, social disruption and disorder and severance from an eco-system which had sustained them. Most critically these displacements threaten the poor and the weak with even greater impoverishment. Thus the effect of such displacement lasts for many generations and acts as a profound psychological trauma and more. Such consequences lead to the requirement of legislations that address not only the issue of compensation, but also of resettlement, rehabilitation and participation in negotiation. However the lack of rehabilitation policy in India goes against the right to life enshrined in our Constitution under Article 21 and right to equality under Article 14 (interpreted as right against arbitrariness).

The displacement of the people raises human rights issues. In particular a question to be mooted upon is whether or not the rights of displaces are violated by forcible resettlement or by specific strategies of resettlement. Often the governments and other agencies resettling the displaced people have violated the basic rights listed in the 1948 Universal Declaration on Human Rights. In other cases adequate housing, education, participation in cultural life or the advisability of measures all listed in the International Covenant on Economic, Social and Cultural Rights or the right to culture, listed in the International Covenant on Civil and Political Rights have been breached.Bills such as Rehabilitation and Resettlement Bill 2007 and Land Acquisition (Amendment) Bill 2010 are being considered by the Parliament. However there is no immediate solution to this long lasting issue. There has been a chronic failure at the policy level. Galloping urbanization demands that strict laws and policing agencies be put in place. Our laws and the judicial mechanism require change to protect the rights of its citizens

Each year, millions of persons are forcibly displaced by Dams development projects. While such projects can bring enormous benefits to society, they also impose costs, which are often borne by its poorest and most marginalized members. As author W. Courtland Robinson points out, “for millions of people around the world development has cost them their homes, their livelihoods, their health, and even their very lives.” Impoverishment and disempowerment often become their lot, with particularly harsh consequences for women and children.

IMPACT OF DEVELOPMENT PROJECTS

Forced population displacement is always crisis-prone, even when necessary as part of broad and beneficial development programs. It is a profound socioeconomic and cultural disruption for those affected. Dislocation breaks up living patterns and social continuity. It dismantles existing modes of production, disrupts social networks, causes the impoverishment of many of those uprooted, threatens their cultural identity, and increases the risks of epidemics and health problems.

-Michael Cernea¹

Those displaced “are supposed to receive compensation of their lost assets, and effective assistance to re-establish themselves productively; yet this does not happen for a large portion of oustees.”² Interlinked potential risks intrinsic to displacement³ are-

1. Landlessness: Expropriation of land removes the main foundation upon which people's productive systems, commercial activities, and livelihoods are constructed.

2. Joblessness: The risk of losing wage employment is very high both in urban and rural displacements for those employed in enterprises, services or agriculture. Yet creating new jobs is difficult and requires substantial investment.

3. Homelessness: Loss of shelter tends to be only temporary for many people being resettled; but, for some, homelessness or a worsening in their housing standards remains a lingering condition. In a broader cultural sense, loss of a family's individual home and the loss of a group's cultural space tend to result in alienation and status deprivation.

4. Marginalisation: Marginalisation occurs when families lose economic power and spiral on a “downward mobility” path. Many individuals cannot use their earlier-acquired skills at the new location; human capital is lost or rendered inactive or obsolete. Economic marginalisation is often accompanied by social and psychological marginalisation.

5. Food Insecurity: Forced uprooting increases the risk that people will fall into temporary or chronic undernourishment, defined as calorie-protein intake levels below the minimum necessary for normal growth and work.

6.Increased Morbidity and Mortality: Displacement-induced social stress and psychological trauma, the use of unsafe water supply and improvised sewage systems, increase vulnerability to epidemics and chronic diarrhoea, dysentery, or particularly parasitic and vector-borne diseases such as malaria and schistosomiasis.

7. Loss of Access to Common Property: For poor people, loss of access to the common property assets that belonged to relocated communities (pastures, forest lands, water bodies, burial grounds, quarries and so on) result in significant deterioration in income and livelihood levels.

8. Social Disintegration: Displacement causes a profound unravelling of existing patterns of social organisation. This unravelling occurs at many levels. When people are forcibly moved, production systems, life-sustaining informal networks, trade linkages, etc are dismantled.⁴

Others have suggested the addition of other risks⁵ such as the loss of access to public services, loss of access to schooling for school-age children, and the loss of civil rights or abuse of human rights, such as loss of property without fair compensation, or violence from security forces or risks of communal violence in resettlement areas.

HUMAN RIGHT CHALLENGES

Displacement from one’s habitual residence and the loss of property without fair compensation can, in itself, constitute a violation of human rights. In addition to violating economic and social rights, listed above, arbitrary displacement can also lead to violations of civil and political rights, including: arbitrary arrest, degrading treatment or punishment, temporary or permanent disenfranchisement and the loss of one’s political voice. Finally, displacement carries not only the risk of human rights violations at the hands of state authorities and security forces but also the risk of communal violence when new settlers move in amongst existing populations.

Right to Development and Self-Determination. In 1986, the UN General Assembly adopted a Declaration on the Right to Development, which states that “every human person and all peoples are entitled to participate in, contribute to and enjoy economic,social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” The Declaration, moreover, asserts the right of peoples to self-determination and “their inalienable right to full sovereignty over all their natural wealth and resources.”⁶ In Rajagopal’s interpretation, such language makes it “clear that local communities and individuals, not states, have the right to development.”⁷

Right to Participation. If self-determination is the right to say whether development is needed or not, participation rights begin to be relevant when development begins. The right to participation is based on various articles of the International Bill of Human Rights, which consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).⁸ More specifically, the 1991 International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) stipulates (Article 7) that indigenous and tribal peoples shall participate in the formulation, implementation and evaluation of national and regional development plans that affect them.⁹

Right to Life and Livelihood. When security forces take action to move people forcibly or to quell civil dissent against development projects, this may constitute a direct threat to the right to life, which is protected in the UDHR (Article 3) and the ICCPR (Article 6).The right to livelihood is threatened by the loss of home and the means to make a living—whether farming, fishing, hunting, trading or the like—when people are displaced from habitual residences and traditional homelands. The right to own property and not to be arbitrarily deprived of this property as well as the right to work are spelled out in the UDHR (Articles 17 and 23, respectively) as well as in Article 6 of the ICESCR.

Article 11 of the ICESCR, moreover, affirms that “States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”

Included in the right to life is the right to environment, which, as Rajagopal puts it, “makes life worth living, materially and culturally.”¹⁰ This concept has also been phrased as “intergenerational equity” or the right of future generations to inherit a planet, or a particular piece of it, that is capable of sustaining life. The 1992 Convention on Biological Diversity, for example, asserts that state signatories are “determined to, conserve and sustainably use biological diversity for the benefit of present and future generations.”

Rights of Vulnerable Groups. Growing evidence shows that, while development projects may create vulnerability through impoverishment, they disproportionately affect groups that are vulnerable to begin with, particularly indigenous groups and women. Human rights of vulnerable groups are protected generically in the International Bill of Human Rights. The ILO Convention 169 spells out protections for indigenous groups. For women, as Sarah Aird notes in a study of dam-related displacement but whose observations could apply more generally:

Some governments still recognize only male heads of household as legitimate landowners, denying women compensation for submerged lands and exacerbating pre-existing gender inequalities. In tribal communities where women enjoy user rights over land but not ownership rights, governments do not provide these women with any compensation. In addition to suffering greater negative effects due to dams, women also generally do not enjoy the same benefits men do, such as enhanced employment opportunities.¹¹

The principle of non-discrimination is not only codified in the UDHR (Article 2), the ICCPR (Article 2) and the ICESCR (Article 2) but also in the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Right to Remedy. The right to remedy is asserted in the UDHR (Article 8) and in the ICCPR (Article 2). As Rajagopal notes, “often, due to the nature of the development process, the project-affected peoples come to know about actions that have been taken without their knowledge or consent. Therefore, they need a quick and efficacious remedy that can halt on-going violations and prevent future ones. The right to remedy is therefore crucial…to all development projects.”¹² Put more broadly, “A right without a remedy is no right at all.”¹³

INDIA'S DOMESTIC FRAMEWORK

1. The Indian Constitution and the Rights to Livelihood and Housing

Lacking an international legal and institutional system of protection to depend on, IDPs must rely on their own country's laws and policies with regard to resettlement and rehabilitation.¹⁴ However, there are no separate Indian laws pertaining specifically to the state's legal responsibility to its internally displaced. Thus, IDPs must turn to the Fundamental Rights provisions of the Constitution and the writ jurisdiction of the courts for recourse.In fact, the Indian Supreme Court has advanced human rights in India by implementing the principles of international declarations and treaties in support of the Constitution.One of the most important provisions pertaining to human rights in the Constitution is Article 21, which provides the framework for securing the right to life.¹⁵ In addition, Article 39 directs the state to secure its citizens with the "right to an adequate means of livelihood."¹⁶ In a related provision, Article 41 articulates that the state shall "make effective provision for securing the right to work." ¹⁷

In an unprecedented decision, the Indian Supreme Court expanded the socio-economic dimension of Article 21 in Olga Tellis v. Bombay Municipal Corporation and provided persons who are forcibly evicted with a more meaningful interpretation of the right to life.¹⁸ In this case, Bombay sidewalk dwellers argued that the construction of an expressway would destroy both their home and workplace, and would result in the loss of their means of livelihood and deprive them of their right to life.¹⁹ The Court agreed and stated that any person deprived of his or her right to an adequate livelihood or right to work can challenge the deprivation as offending Article 21 's right to life.²⁰

In addition to interpreting Article 21 as recognizing the right to livelihood, the Indian Supreme Court in Mullin v. Union Territory of Delhi elaborated on the right to adequate shelter as part of the all encompassing right to life.²¹ Eight years later, the Court reaffirmed this view in Ram Prasad v. Chairman, Bombay Port Trust when it held that the right to life prohibited the eviction of slum dweller families unless the Bombay Port Trust provided them with alternative accommodations.²²

2. The Land Acquisition Act

Provisions of the Land Acquisition Act ("LAA"), which the government uses to implement large projects such as the SSP, unfortunately nullify the impact of these landmark decisions.²³ The most significant principle underlying the LAA is the doctrine of eminent domain, according to which the state can acquire land from private citizens for public purposes.²⁴ The state's powerful right of eminent domain is nearly impossible to challenge legally, and thus the displaced are left with no mechanism by which to resist the state's acquisition of their land.

The LAA specifies cash compensation at market value for the loss of individually-owned land, but little else.²⁵ Rehabilitation, which is defined as the process of reconstructing the livelihood of displaced persons, is not required under the LAA.²⁶ Furthermore, the government takes the position that rehabilitation is not a prime consideration when acquiring land for a "public purpose.²⁷ Finally, the LAA provides that the Indian Supreme Court is the only appellate forum for individuals whose land is to be acquired, an assertion which significantly curtails the rights of displaced persons.²⁸

3. The Narmada Water Disputes Tribunal Award

In light of the immensity of the SSP and the magnitude of its impact on local populations, the Indian government established the Narmada Water Disputes Tribunal Award ("NWDT Award") in 1979.²⁹ The NWDT Award sets the policy framework for resettlement and rehabilitation associated with the SSP.³⁰According to the Supreme Court, the NWDT Award is the benchmark for resettlement and rehabilitation, and the high court has held that it is binding on the three involved states in western India.³¹ The primary purpose of the NWDT Award is to establish conditions regarding the resettlement and rehabilitation of those displaced by SSP submergence.³² One of the conditions provides that relief is only available for "Project Affected Persons" ("PAPs"), who are defined as families that lose their legally owned land to the reservoirs.³³ The NWDT Award does not recognize families that lose their land to canals, suffer secondary displacement due to loss of their land to resettlement sites, or those that are affected downstream of the SSP.³⁴

The resettlement policy is based on the principle of "land for land."³⁵ One of the most important specifications of the NWDT Award asserts that the livelihoods of landholders must be restored by provision of alternative land instead of the cash compensation that is awarded under the LAA.³⁶ The NWDT Award also mandates that affected populations must be rehabilitated as communities³⁷ on irrigable land of their choice in the state of their choice.³⁸ Additionally, the NWDT Award specifies that resettlement must precede submergence by at least twelve months.³⁹ However, the NWDT Award does not provide for tribal populations that cannot claim legal title to land despite their customary rights to the land and their cultivation of the land for generations.⁴⁰ In addition, the NWDT Award does not mention the status of those who are landless.⁴¹

CONCLUSION:

In India, the government, which is the planner, financier, developer and owner of numerous large dam projects, does not have figures of people displaced by large dams, either since independence in 1947 or in toto. This fact is the biggest sign of the fact that displacement and resettlement of people is the least concern of large dam builders. This is particularly clear when we see that India is the third largest dam builder country in the world. It now has over 3600 large dams and over 700 more under construction. Thus observations and suggestions in this regard are as follows-

1. Accurate figures of people displaced by large dam projects is difficult to come by due to the utter lack of sensitivity shown by the promoters of large dams across the world. This should be countered by maintaining proper records in this regard. Such kind of lack of sensitivity should be penalised.

2. The weakest sections of people in India, namely the tribals, the scheduled castes and backward caste people have suffered maximum in the process of displacement, much disproportionate to their population percentages. Women among these classes suffer even more. Thus such sections need more attention.

3. The condition of people displaced, who are claimed to have been resettled is pathetic, with basic civic amenities and livelihoods severely endangered and standard of living much worse than before displacement, as per many independent assessments. If this is the condition of people displaced by most controversial, most visible project that is under scrutiny of the highest court in India and that was for a long time under the scrutiny of the World Bank, and of a project whose proponent claim that the resettlement is best in the world, the condition of other displaced can be expected to be worse. This issue is to be dealt with utmost care.

4. India even now does not have a national resettlement policy. Not that existence of one would help unless there are legal institutional mechanisms to ensure its implementation. This is abundantly clear from the condition of people under the World Bank projects even now, even as the World Bank continues to have an R&R policy that ensures that living standards of people must improve after resettlement. Thus there is urgent need of having national resettlement policy. That leads us to the last conclusion. This submission is not just about numbers. Numbers are necessary to reiterate the seriousness of the issue of displacement due to large dams. This submission would like to emphasize that unless past performances are analysed honestly, ruthlessly and thoroughly, no amount of policy making will help.

REFERENCES:

1. 1995, “Social Integration and Population Displacement.” In International Social Science Journal, 143/1.

2. Michael Cernea, 1996, “Bridging the Research Divide: Studying Development Oustees.” In Tim Allen (ed), In Search of Cool Ground: War, Flight and Homecoming in Northeast Africa (London: United Nations Research Institute for Social Development, Africa World Press and James Currey). The term “oustee” he notes, “is borrowed from the Indian literature on involuntary population displacement, where it is commonly used to describe people forcibly ‘ousted’ from their habitat through government intervention, generally for the purpose of some development-required change in land or water use.”

3. Cernea, “Why Economic Analysis is Essential to Resettlement: A Sociologist’s View.”

4. Descriptions of the first seven risk factors are drawn from Michael Cernea, 2000, “Risks, Safeguards and Reconstruction.” The description of the eighth risk, social disintegration, is from Michael Cernea, 1996, Public Policy Responses to Development-Induced Population Displacements (Washington, DC: World Bank Reprint Series: Number 479). In later writings, Cernea has used the term “social disarticulation” in place of “social disintegration.” Assuming that the two are effectively synonymous, this report prefers “social disintegration” as more immediately accessible.

5. Robert Muggah, 2000, “Through the Developmentalist’s Looking Glass: Conflict-Induced Displacement and Involuntary Resettlement in Colombia.” In Journal of Refugee Studies 13(2): 133-164. See also Theodore E. Downing, 2002, Avoiding New Poverty: Mining-Induced Displacement and Resettlement (International Institute for Environment and Development), p. 3.

6. UN General Assembly, 1996, Declaration on the Right to Development (A/RES/41/128).

7. Rajagopal, Human Rights and Development, p. 5.

8. Fact Sheet No. 2 (Rev.1), The International Bill of Human Rights (www.unhchr.ch).

9. Cited in Sarah C. Aird, 2001, “China’s Three Gorges: The Impact of Dam Construction on Emerging Human Rights,” Human Rights Brief 24, Winter 2001. For ILO Convention 169 see http://ilolex.ilo.ch

10. Rajagopal, Human Rights and Development, p. 10.

11. Ibid.

12. Rajagopal, Human Rights and Development, p. 11.

13. Dana L. Clark, 2002, “The World Bank and Human Rights: The Need for Greater Accountability.” In Harvard Human Rights Journal 15, Spring 2002, p. 220.

14. Jeremy Levitt, Conflict Prevention, Management, and Resolution: Africa - Regional Strategies for the Prevention of Displacement and Protection of Displaced Persons: The Cases of the OAU, ECOWAS, SADC, and IGAD, 11 DuKE J. COMP. & INT'L L. 39, 78 (2001) (discussing the responses to internal displacement in African nations, where the international community failed to extend adequate resources to protect the rights and well-being of displaced populations, a failure that has resulted in great suffering in many cases).

15. INDIA CONST. Art. 21 (stating that "no person shall be deprived of his life or personal liberty except according to procedure established by law"); see also id. pmbl. (requiring policies to balance "social and economic" rights).

16. Id. Art. 39 (proclaiming that the state should direct its policy toward securing, among other things, a right to adequate means of livelihood for men and women equally, and equal pay for equal work for both men and women).

17. Id. Art. 41 (conveying that the state's obligations are limited by its "economic capacity" and "development").

18. Olga Tellis v. Bombay Mun. Corp., (1986) 2 S.C.R. 51, 83 (holding that the right to life conferred by Article 21 includes the right to livelihood and that eviction from a sidewalk dwelling constitutes a deprivation of livelihood). See generally Jeremy Cooper, Poverty and Constitutional Justice: The Indian Experience, 44 MERCER L. REv. 611, 611-12 (1993) (claiming that justices in India should not pursue a narrow inquiry into the rule of law, but rather they should look at how such laws can be applied to avoid harsh, unjust results).

19. Olga Tellis, 2 S.C.R. at 80 (using the Indian Constitution's Directive Principles to expand the Fundamental Rights of the pavement dwellers).

20. Id. at 79-80 (theorizing that unless the right to livelihood is protected as part of the right to life, continued, systematic deprivations of the pavement dwellers' right to livelihood would result in the wholesale denial of their right to life). The Court responded by halting all evictions for four years after the petition was filed. Id. at 98

21. Mullin v. Union Territory of Delhi, (1981) 2 S.C.R. 516, 529 (building upon the idea that the right to life includes the right to live with human dignity, and that such a right can only be attained with the receipt of adequate nutrition, clothing, and shelter).

22. Ram Prasad v. Chairman, Bombay Port Trust, A.I.R. 1989 S.C. 1306 (India) (holding that public authorities cannot evict families living in slum dwellings unless they are provided with alternative sites).

23. Land Acquisition Act, 1894 (India) (providing the statutory statement of the Indian government's power of eminent domain); see also IYER, supra note 3, at 147 (providing an overview of the policies, institutions, and procedures which make massive acquisition of land and the subsequent displacement of people possib!e).

24. Land Acquisition Act, pt. II, Acquisition (vesting the state with absolute control over the land within its territory).

25. Land Acquisition Act, pt. 111(23) (laying out a limited legal mandate regarding what matters should be considered in determining compensation).

26. Rangachari et al., (defining the Land Acquisition Act, and its broad range of powers, as the "instrument of displacement").

27. Lama, (noting that the Indian government refused to make its definition of "public purpose" available to the public).

28. The Land Acquisition Act, pt. VIII(53) (asserting that all appeals shall lie before the Supreme Court subject to the provisions of the Code of Civil Procedure); see also Lama, (describing the process of displacement as silent, where the disenfranchised are given little opportunity to voice their disapproval of the SSP project).

29. Final Order and Decision of the Narmada Water Disputes Tribunal Award (Dec. 12, 1979) [hereinafter Narmada Tribunal Award] (laying out the scope of the final order in sixteen clauses), available at http://www.narnada.org/nvdp.dams/nwdt.final.award.pdf (last visited Feb. 19, 2012)

30. See id. cl. XI (providing for land compensation, non-land compensation, and civic amenities).

31. See DIVAN & ROSENCRANZ, (commenting on the history of the SSP and the Narmada Water Disputes Tribunal). The NWDT, established in 1969 under the Interstate Water Disputes Act of 1956, resolved conflicts between the beneficiary states of Madhya Pradesh, Maharashtra, Gujarat, and Rajasthan. Id. Final preparation and work on the SSP commenced when the NWDT approved its final order in 1978. Id.

32. See Narmada Tribunal Award, cls. I-IV (determining the allocation of Narmada River waters between various states, fixing heights for the Sardar Sarovar dams, and establishing parameters for canal levels and gradients).

33. See id. cl. XI(I) (providing category-specific resettlement and rehabilitation policies); see also Patrick McCully, International Rivers Network, Sardar Sarovar Project (SSP): An Overview (May 25, 1994) (explaining that displaced families are called Project Affected Persons, or PAPs, and are actually a family unit rather than one person), available at http://www.narmada.org/ sardarsarovar/ imoverview940525.html (last visited Feb. 5, 2012).

34. McCully, (noting that the Canal Affected Families ("CAFs"), who are not recognized as PAPs, are ineligible for the same compensation package as the displaced people living in the reservoir areas). An estimated ten percent of the CAFs are tribal people.

35. Narmada Tribunal Award,cl. XI(II) (detailing the areas of land to be acquired for the SSP under the provisions of the LAA). If more than seventy-five percent of a person's land of contiguous holding is compulsorily acquired, such person shall have the option to compel compulsory acquisition of the entire contiguous holding. Id. cl. XI(II)(i).

36. Id. cl. XI(IV)(vii) (ordering that agricultural plots equal in size to the holdings prior to displacement would be made available to all displaced families who lost more than twenty-five percent of their holdings).

37. Id. cl. XI(IV)(i) (ruling that the SSP authorities must relocate villages as a community). According to the NWDT Award, SSP authorities are also required to set up "rehabilitation villages" with all the amenities ecessary for the village and its residents. Id. cl. IV(II)(iv).

38. Id. cl. XI(IV)(2)(ii) (recognizing that the project-affected people have a right to choose between Gujarat and their home states with regards to resettlement and rehabilitation).

39. Id. cl. XI(IV)(2)(iv) (adding that SSP authorities must first offer to rehabilitate the displaced people in their own territory before offering land in a neighboring region).

40. Indigenous Rights,(asserting that project authorities gave little or no thought to how the landless would be rehabilitated).

41. Manoj Saranathan & Nagini Prasad, The World Bank, Multi-National Corporations, and State Governments.: The Narmada Struggle Continues, 3 econ. Just. News online., Apr. 2000, at 1

Received on 11.01.2014 Modified on 18.02.2014

Int. J. Ad. Social Sciences 2(1): Jan. –Mar., 2014; Page 22-26