NHRC RECOMMENDATIONS ON RELIEF AND REHABILITATION OF DISPLACED PERSONS

New Delhi August 22, 2008
The following important recommendations and suggestions emerged at the National Conference on Relief and Rehabilitation of Displaced Persons organized by the National Human Rights Commission on 24-25 March 2008 in New Delhi.
I. General Recommendations

1. Pre-displacement, displacement, relief and rehabilitation should be viewed from a rights based perspective rather than as an administrative/governance issue that focuses on needs of beneficiaries. For instance, the lexicon of welfare/charity ("gratuitous relief" "beneficiary") should be jettisoned for language that respects human rights of the displaced or to-be-displaced people. In all instances of displacement, there should be minimum non-negotiable human rights standards that should be adhered to for all and especially for vulnerable and marginalized groups such as women, children, elderly and disabled.

2. As part of relief and rehabilitation, authorities provide food, potable water, clothing, shelter, basic health care, education etc. It is important to note that access to these basic minimum services is not a matter of welfare or charity but is a human right. Basic minimum standards for such facilities /services should be defined.

3. There is a need for Central and State Governments to re-examine and amend laws, policies, plans, regulations and practices to mainstream and integrate human rights concerns on issues related to pre-displacement, displacement, relief and rehabilitation. For instance, human rights principles should inform the relief manuals of various states.

4. Authorities concerned with pre-displacement, displacement and post-displacement activities should be sensitized about human rights through capacity building.

5. All affected and displaced persons have the right to be treated with dignity. In particular, no arbitrary decision, without reasoning should be taken in the matters that affect their source of food, shelter and livelihood. Furthermore, before any such decision is taken, they should have right to be heard/consulted. They should also have the right to appeal against such decisions in appropriate forums.

6. All affected and displaced persons have the right to be treated without any discrimination in matters relating to rescue, relief and rehabilitation. In respect of vulnerable groups among them such as women, disabled, elderly persons and children, the appropriate authority shall take special measures to protect their rights. Displaced persons who have returned to their homes or places of habitual residence or who have resettled in another part of the country shall not be discriminated against as a result of their having been displaced. They shall have the right to participate fully and equally in public affairs at all levels and have equal access to public services.

7. All affected persons and displaced persons have the right to information regarding all aspects related to immediate humanitarian assistance, relief and rehabilitation. This includes, but is not limited to the following:
a. Adequate measures to guarantee to those to be displaced full information on the reasons and procedures for their displacement and, where applicable, on compensation and relocation;
b. Proper publicity by the State Government so as to enable the affected people to become aware of their entitlements in the form of relief and compensation;

8. All displaced persons, in particular displaced children, have the right to receive education, which shall be free and compulsory at the primary level. Education should respect their cultural identity, language and religion. Education facilities should be made available as soon as conditions permit. Special efforts should be made to ensure the full and equal participation of women and girls in educational programmes.

9. All displaced persons have the right to an adequate standard of living. At the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide displaced persons with and ensure access to:
a. Essential food and potable water;
b. Basic shelter and housing;
c. Appropriate clothing; and
d. Essential medical services and sanitation.
(Explanation:- The term "adequate" means that these services are (i) available, (ii) accessible, (iii) acceptable, and (iv) adaptable: (i) Availability means that these goods and services are made available to the affected population in sufficient quantity and quality; (ii) Accessibility requires that these goods and services (a) are granted without discrimination to all in need, (b) are within safe reach and can be physically accessed by everyone, including vulnerable and marginalized groups, and (c) are known to the beneficiaries; (iii) Acceptability refers to the need to provide goods and services that are culturally appropriate and sensitive to gender and age; (iv) Adaptability requires that these goods and services be provided in ways flexible enough to adapt to the change of needs in the different phases of emergency relief, reconstruction. During the immediate emergency phase, food, water and sanitation, shelter, clothing, and health services are considered adequate if they ensure survival to all in need of them.
II Recommendations on development induced displacement
10. The basic principles in the National Relief and Rehabilitation Policy [NRRP] must be incorporated in the Rehabilitation and Resettlement Bill, 2007 (R&R Bill). {For instance, the five year residence limit (Sections 3(n), 3(d), 3(iii), 21(2)(vi) 35(2) of R&R Bill) is higher than the one in the NRRP, which only specifies three year residence (see Sections 6.4(vi), 3(o),7.3, 3.1(d), 3.1(b)(iii) of NRRP). Given that inter-state and intra-state migration for work occurs at a large scale in India and that the beneficiaries of these provisions are among the most poor and vulnerable sections of our society, it would be appropriate to lower the limit of number of years to three.}

11. There should be a mechanism to ensure equitable sharing of project benefits with the displaced people. This may be in terms of providing direct or indirect employment or reservation of a quota of shares etc.

12. The conditional availability of certain resettlement provisions in the Relief and Resettlement Bill are a matter of concern (S.36(1) reads "Each affected family owning agricultural land in the affected area and whose entire land has been acquired or lost, […] shall be allotted, […] agricultural land or cultivable wasteland[…] if Government land is available in the resettlement area..". S.41(i) provides, "In case of a project involving land acquisition on behalf of a requiring body-(i) the requiring body shall give preference to the affected families in providing employment in the project, at least one person per family, subject to the availability of vacancies and suitability of the affected person for the employment;[…]". S. 49(4) says, "Each affected family of Scheduled Tribe followed by Scheduled Caste categories shall be given preference in allotment of land-for-land, if Government land is available in the resettlement area.)Alternatives should be spelt out if these conditions are not met.

13. The Bill should be in line with other existing legislations such as those related to lands of tribal peoples or forest lands.

14. Time limit should be defined for various stages in the process for acquisition of the land. Besides, where land has been acquired and has not been used for the intended purpose or any other public purpose, then instead of auctioning the land, option should be given to the original owner to take it back on laid down terms. (Section 22 of the Land Acquisition Bill (LA Bill))

15. There shall be no arbitrary displacement of individuals from their home or place of habitual residence by state authorities. In particular, public interest should justify any large-scale development project. In all cases of large-scale development projects, authorities should hold public consultation with people likely to be displaced.

16. The concept of "eminent domain" should be in line with constitutional obligations and the proposed amendments to the land acquisition act and the relief and resettlement bill should provide for more scope for consultation/participation of affected people both in the acquisition as well as relief and rehabilitation process. (According to Section 6(2) of the R&R Bill, "The public hearing undertaken in the project affected area for the environmental impact assessment shall also cover issues relating to social impact assessment." The Bill does not envisage public hearing for social impact assessment where no environment impact assessment is required. Public hearing should be held during all instances of social impact assessment.)

17. Under the Rehabilitation and Resettlement Bill, 2007, a multiplicity of authorities are sought to be created. In several cases, modalities relating to their operation are "as may be prescribed" by the Government. It is impetrative to define their roles so that they are complementary and there is synergy in their functions. (Sections 9, 11,12,13,14,16 and 19 of the R&R Bill envisage creation of various administrative authorities.)

18. The guiding principle in cases of development related displacement should be minimal displacement.

19. Where agricultural land is sought to be acquired, it should be mandatory that area of wasteland equal to double the area acquired will have to be acquired and reclaimed for public purpose or at least funds for the same should be deposited in a special fund to be created for the purpose of rehabilitation of displaced persons or in the Central Relief and Rehabilitation fund.

20. People who are displaced due to development projects include not only property owners but also others such as tenants, farm labourers or others whose livelihood may be dependent on the land even though they may not have legal title to it. Therefore protection of their rights must be ensured. (Reading Section 3(b)(ii), 3(c) and Section 20(i) of R&R Bill it appears agricultural or non-agricultural labourer, landless person, rural artisan, small trader or self-employed person will be covered under this Act only in cases where there is likely to be involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Fifth Schedule or Sixth Schedule to the Constitution. An explicit provision to this effect should be provided in the R&R Bill to guarantee the rights of this category of people. LA Bill also should reflect the interest of people who do not have legal title to the land.)

21. It shall be mandatory for all local bodies to formulate land use plans and building rules so as to minimize and regulate conversion of agricultural lands for other uses. No non-agricultural activity should normally be allowed in areas marked for agriculture unless there are overriding and compelling reasons in public interest.

22. It has been the experience that where infrastructure projects like highways, roads are planned, the land values of the adjoining areas go up. Appropriate legislation should be put in place to charge additional duty/tax for such enhanced value, at least at the time of the subsequent transfers of the land and sums so collected should be transferred to the Central Relief and Rehabilitation Fund or any special fund created for the purpose of rehabilitation of displaced persons.

23. Social impact assessment and understanding local aspirations are best captured through continuous dialogue with local people who are affected and NGOs. Hence while carrying out social or environment impact assessment, local people especially those who are likely to be displaced and/or some expert NGOs may be consulted.

24. Norms of social impact assessment should be laid down and at least three alternatives should be examined in the same or different areas. (Section 4 of the R&R Bill should be appropriately amended to reflect this.)

25. Where there is multiple displacement, it is necessary to compensate the displaced people appropriately e.g. by enhancing the solatium amount provided for in the bill or otherwise.

26. Regarding service of notice under LA Act, Section 45(3) provides "When such person cannot be found, the service may be made on any adult male member of his family residing with him, and, if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells […]. The reference to "adult male member' is in violation of gender equality and autonomy of women. The term "adult male member' may be replaced with "adult member".

III Recommendations on displacement on account of natural and man made disasters including conflicts

27. The Rehabilitation and Resettlement Bill, 2007 must explicitly cover persons displaced due to violence as also due to natural or other man-made disasters. The NRRP as well as the R&R Bill, 2007 have to be comprehensive. The reference to any "involuntary displacement due to any other reason" is very vague. It does not specifically cover conflict induced and disaster induced displacement. Also the definition of disaster has to be widened taking into account the environmental vagaries in different parts of out country. For instance, soil erosion does not fall within the category of natural disaster. (According to Section 2 of the R&R Bill "The provisions of this Act shall apply to the rehabilitation and resettlement of persons affected by acquisition of land under the Land Acquisition Act, 1894 or any other Act of the Union or a State for the time being in force; or involuntary displacement of people due to any other reason.)

28. In disaster related displacement, rehabilitation is the biggest challenge. There is a need to address as to how one rehabilitates displaced persons in locations similar to their former residence. In instances relating to displacement on account of conflicts, there is a need to focus on what assurances would displaced persons require in order to repatriate to former place of residence voluntarily?

29. People displaced on account of conflicts or natural disasters should be able to return to their former places of residence voluntarily in safety and dignity. Authorities should ensure that their property is protected against destruction and arbitrary and illegal appropriation when they are displaced. When they return to their places of habitual residence, they shall not be discriminated against. Authorities shall assist the returnees to recover, to the extent possible, their property that they left behind or were dispossessed of upon their displacement. Where it is not possible to recover property and possession, then authorities shall be responsible for providing just reparation to them.

30. Temporary Settlement should not be long drawn and there should be a time frame for the completion of relief and resettlement of people displaced on account of conflict and natural disasters.

31. In the case of conflict, natural or human-made disasters, there is a need for a larger vision, which emphasizes the "prevention" aspect of displacement.

32. The Central Relief Fund (CRF) should be renamed as Central Relief and Rehabilitation Fund (CRRF) and funds should be set aside for rehabilitation of displaced individuals.

33. All affected and displaced persons have the right to security for their physical well being and their property. Security agencies functioning under the administrative control of the States / Central Government must be geared towards preventing looting and other anti-social activities, and instilling a sense of security amongst the affected and displaced persons.

34. All affected and displaced persons have the right to immediate humanitarian assistance. In particular, they have right to food, shelter, healthcare (including mental health care) and education. To ensure smooth rescue, relief and rehabilitation, lists of persons dead or missing as also property damaged fully or partially etc should be prepared in a transparent manner at the earliest and authenticated by appropriate authority. Such lists should be given wide publicity so that people can easily have access to the same. Special attention should be given to the vulnerable groups, e.g. disabled persons, women, children and elderly in this regard.

35. All affected persons have right to information about their missing relatives, friends, colleagues etc. Authorities concerned should put in place appropriate arrangements to collect information about missing persons and keep their kin/relatives informed about progress in the matter. Similar efforts should be made and arrangements put in place about identification of dead and dissemination of information about them, and handing over their mortal remains to their kin after following all procedures. Till then, the mortal remains shall be preserved properly. If the dead are not identified within reasonable time, their last rites may be performed after obtaining appropriate orders and with full respect for dignity as per customs of religion to which she/he is believed to belong based on prima facie evidence.

36. The concerned authorities after reasonable verification shall issue to affected and displaced persons all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates, death certificates and marriage certificates. Any lack of access to such legal documents or not having such legal documents shall not disentitle them for recompense.

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