Address by Mr. Justice S. Rajendra Babu, Chairperson, National Human Rights Commission at National Conference on Relief and Rehabilitation of Displaced Persons organized by National Human Rights Commission at 10 a.m. on 24 March 2008, India Habitat Centre, New Delhi
Union Minister for Home Affairs, Mr. Shivraj Patil, Union Minister for Rural Development, Dr. Raghuvansh Prasad Singh, Member, NHRC, my colleagues in NHRC, Chairpersons of the National Scheduled Castes Commission, National Scheduled Tribes Commission, National Minorities Commission, Chairpersons of State Human Rights Commissions, participants from various States and Union Territories, ladies and gentlemen. I thank you for responding to the Commission's invitation and joining us in an effort to find appropriate strategies and solutions to a serious human rights issue.
In recent times, our country has been witnessing an ever-widening gulf between individuals who have benefited from economic growth and the vast group of others who seem to have been left out of the process. This gulf was most vividly illustrated in last October when on the same day the sensex touched 20,000 points and nearly 25,000 people who had been marching on foot arrived in Delhi, seeking restoration of land to the dispossessed like them. Displacement of people from their natural habitat resulting in loss of source of livelihood is a manifestation of this ever-widening gulf. Displacement on account of development interventions has led to a lot of controversies and violence in a number of states, including West Bengal, Orissa and Goa in the past one year or so.
As you all are aware, the Commission has been intervening to ensure that human rights are respected, protected during such displacements of persons. I wish to emphasize here that displacement must not be seen in narrow terms as that caused due to development projects alone. Other factors, such as conflicts, natural and man made disasters could also lead to displacement and all of these also involve important human rights issues.
Recently, the Government of India has taken some significant measures in this regard. These include enactment of Disaster Management Act (DMA), 2005 to provide for institutional mechanism to deal with disasters, introduction of two bills in the parliament, namely, the Land Acquisition (Amendment) Bill, 2007 and the Rehabilitation and Resettlement Bill, 2007. The Government has also provided for policy initiatives and institutional mechanisms to deal with displacement management, relief and rehabilitation. For instance, in October 2007, the revised National Rehabilitation and Resettlement Policy came into effect. Bodies like the National Disaster Management authority and the various State Disaster Management Authorities have been constituted. The introduction of these two bills, especially the latter that deals with relief and resettlement is indeed noteworthy and the Commission welcomes steps to make these issues justiciable. In fact, as early 2001, in a discussion with the Ministry of Rural Development, the Commission had recommended that, "incorporation of relief & rehabilitation package in the law will ensure the relief & rehabilitation of Project-Affected-People in a systemic manner. The provision for relief & rehabilitation in the law itself will help to avoid litigation and consequent delays and prevent cost overrun of the projects. Once the R&R package is provided in the law, there will be uniformity in dealing with the cases by the Courts."
Of the various government initiatives, I would like to deliberate a little further on the Rehabilitation and Resettlement Bill, 2007. According to the Statement of Objects and Reasons of the Rehabilitation and Resettlement Bill, 2007, it will be primarily applicable to the rehabilitation and resettlement of persons adversely affected by the acquisition of lands for projects. However, involuntary displacement of people may be caused by other factors also, and the provisions of the Bill may apply to the rehabilitation and resettlement of persons involuntarily displaced permanently due to any reasons. The Preamble to the Bill also refers to "A Bill to provide for the rehabilitation and resettlement of persons affected by the acquisition of land for projects of public purpose or involuntary displacement due to any other reason, and for matters connected therewith or incidental thereto.
Though the reference to displacement owing to factors other than acquisition of lands for projects in the above Bill is wide, it is `general' and `vague'. It does not explicitly cover different categories of displaced persons; in particular, it does not cover conflict-induced displacement or disaster-induced displacement. The protective cover of this significant legislation is limited by the vague reference to involuntary displacement due to any other reason.
Also, the emphasis on development related displacement means that issues pertaining to other kinds of displacement may be overlooked. In disaster related displacement, rehabilitation is the biggest challenge. How does one rehabilitate displaced persons in their natural habitat? In instances relating to displacement on account of conflicts, what assurances would displaced persons require in order to go back? The Commission has intervened in conflict related displacement in Gujarat and J&K. Recently, the Commission made recommendations stressing the need to prepare an inventory of properties of Kashmiri Pandits and the need to restore the property to them.
The Rehabilitation and Resettlement Bill treats land as a mere tradable commodity whereas in practice people's attachment to land goes beyond its commercial value. Human beings develop emotional attachments to land, houses and livestock and the whole social structure around it. It is difficult to quantify this. Though the bill provides for social impact assessment, it only envisages the material impact of the project, rather than the social and emotional impact. Furthermore there is no clarity of norms or principles to be followed in making such social impact assessment. If one understands this, the underlying reasons for resistance, violence and struggles to reclaim their rights become clear. In any development related displacement, the best way is to ensure appropriate resettlement and rehabilitation and in particular giving stakes/ shares in the new enterprise as well as employment, done in consultation with affected persons. This alone will make them partners in development and progress.
Under the Rehabilitation and Resettlement Bill, 2007, a multiplicity of authorities are sought to be created. They include, among others, independent multi-disciplinary expert group, Administrator for Rehabilitation and Resettlement, Commissioner for Rehabilitation and Resettlement, Rehabilitation and Resettlement Committee at project level and at District level, Ombudsman, National Monitoring Committee, Oversight Committee and National Rehabilitation Commission. In several cases, modalities relating to their operation are "as may be prescribed" by the Government. It is impetrative to define and demarcate their roles clearly to avoid duplication and to provide guidance to them. It has been found that a vague law can end up being an "eye wash" or worse could lead to arbitrary decision-making.
The resettlement provisions include "land-for-land, to the extent Government land would be available in the resettlement areas [clause 7.4.1]; preference for employment in the project to at least one person from each nuclear family … subject to the availability of vacancies and suitability of the affected person..[clause 7.13.1]. The above conditionalities dilute the protective provisions in such important areas as land and employment to displaced persons.
As mentioned before, the bill's stress on development induced displacement means that issues pertaining to other kinds of displacement have not received sufficient attention. The bill seems like an ad hoc response given the controversy generated on account of development induced displacement in some states. It does not consider displacement holistically, taking into account the different kinds of displacement, the differences in the nature of response of the government machinery and other stake holders.
The Commission believes that displacement, whether due to disasters, conflicts or development interventions can lead to serious human rights violations. In fact, the Commission has taken cognizance of several cases wherein displaced individuals have sought relief from it. Some illustrations from our case law will highlight the human rights angle involved in displacement.
In a petition filed by an NGO Swami Vivekananda Youth Movement, Mysore in 1998, the attention of the Commission was drawn to the to the issue of rehabilitation and resettlement of the tribals uprooted from their century-old habitation as a result of the construction of the Kabini Reservoir and the Bandipur Tiger National Park projects during the early 1970's. The Commission directed the government of Karnataka to: a) act promptly to restore to the tribals their land following favourable verdict of the Court in the SPT/PTCL Act cases (Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands Act, 1978), b) issue suitable instructions to their field staff to give preference to the tribals affected by the Kabini and Bandipur National Park Projects in the matter of providing jobs on daily-wages, and c) Given the acute shortage of teachers in the schools meant for tribal students and the reported reluctance of outsiders to work in tribal areas, the Government may consider selecting a few boys and girls of the tribal community who have passed SSLC and put them to TCH Course (Teacher's Course Higher Certificate). They may be posted to the schools in the tribal areas after successful completion of the Course. As is clear from the Commission's directions, our orders covered a wide range of human rights concerns, including right to shelter, right to education and right to livelihood.
When a massive earthquake hit Jammu and Kashmir in 2005, an NHRC team visited the quake-affected areas of the J&K including Tangdhar and Uri. area and made several recommendations on post-earthquake measures to the Union Home Ministry. They include:
· Ensure equitable distribution of relief in kind.
· Consider having centralized collection and distribution centres at various places in the affected areas where relief material could be received from NGOs, civil society and other private agencies.
· Take steps to ensure that building material required for repairing damaged property or restoring destroyed property is available at the affected places.
· Where tents are not available, temporary shelter with all essential amenities be provided to the local population.
· Consider feasibility of constructing houses in the affected areas with pre-fabricated building material.
· Prepare computerized list of orphaned children, widows and young girls.
· Prepare computerized list of dead and missing persons to enable relief to next of kin.
At the heart of these recommendations lie human rights concerns, including the right not to be discriminated in supply of relief measures and the right to shelter. Our recommendations on preparing electronic list of orphans, widows and young girls is meant to ensure that these vulnerable groups are not overlooked in the provision of relief and rehabilitation and to prevent exploitation, including through trafficking.
On the issue of Kashmir post-earthquake measures, the Commission also took suo motu cognizance on newspaper reports that Sikh villages are still awaiting aid and that community leaders have alleged discrimination in disbursal of relief measures. It sought the comments of the Chief Secretary, J&K government on the matter.
It is clear from these illustrations that the Commission has sought to ensure that authorities respect, protect and promote human rights of the displaced people. The Commission believes that given the human rights issues involved in displacement, it is important for all stakeholders, including Union and State Governments, the National and State Disaster Management Authorities, State Human Rights Commissions, humanitarian organizations, community organizations and so on to build-in human rights principles into their work with the displaced.
Globally, there is now a shift in thinking regarding the provision of services by government to people. From a welfare or needs based approach that focused on beneficiaries who need a certain type of response which was decided by administrators, now there is a move towards adopting a rights based approach where the individuals are not regarded as mere beneficiaries who are at the receiving end of doles, but as bearers of rights who are entitled to these services as a matter of right - the rights that are spelled out in our Constitutions, laws and related international conventions to which India is a party. The Commission believes that such a rights-based approach alone can enhance the quality of the services delivered by authorities. As we have seen before, the range of rights can be thematic or substantive rights such as the right to livelihood and right to shelter, but it can also include procedural rights that cut across the whole spectrum of displacement. For instance, in our recommendations on the J&K post-earthquake measures, we had called on the authorities to ensure equitable distribution of relief. This is an instance of the Commission trying to ensure that right to equality is respected in the course of relief and rehabilitation. Right to equality is a right that should inform the entire spectrum of relief and rehabilitation.
The UN guidelines on internal displacement were adopted in 1998. These guidelines specify a range of rights that should be available for internally displaced persons and this includes, right to food and nutrition, right to education, right to shelter, right to livelihood, right against arbitrary displacement, especially in the context of conflicts, right against exploitation, right to non-discrimination, right to family unity and so on. As per these guidelines the primary responsibility for the displaced rests with the governmental authorities.
To protect basic human rights of displaced persons, the Commission believes that human rights guarantees for such persons must be incorporated in appropriate legislation. The basic principles, norms etc. on which implemented policies and plans are decided, should also be part of legislation.
Through this Conference, the Commission has made an attempt to bring various stakeholders on the same platform to discuss human rights issues related to displacement in a holistic manner especially to suggest legislative and other changes in handling such issues. I hope that the discussion will be frank and fruitful and at the end of the Conference, we come up with positive action related recommendations for changes in the proposed bills or suggestions for any new legislation and procedure.