India’s failed National Rehabilitation
and Resettlement Policy, 2007
the last ACHR WEEKLY
REVIEW, ACHR expressed concern over the negative consequences of India’s
booming economy: the dramatic rise in conflicts. ACHR was particularly
concerned about the dangerous consequences of the use of state sponsored
informal militias to tackle these conflicts.
The National Rehabilitation and Resettlement Policy of 2007 notified on 31 October 2007 fails to address the key issues relating to the booming of conflicts: forcible acquisition of lands. The 2007 Policy was supposed to be an improvement of the Draft National Rehabilitation Policy of 2006 which was drafted to address the admitted failures of the National Policy on Resettlement and Rehabilitation for Project Affected Families of 2004.
The 2007 Policy appears to be another key driver of these conflicts related to land acquisition. The Policy is yet another facet of State failure to provide the conditions for sustainable development, address burgeoning conflict and its predictable human rights abuses. There is an urgent need for a rethink.
a. One law one purpose
The 2007 Policy upholds the sovereign power of the State to apply the concept of “eminent domain” to forcibly acquire any private property in any part of the country in the name of “public purpose”. This power is provided under the Land Acquisition Act of 1894. The 2007 Policy defines “land acquisition” or “acquisition of land” as “acquisition of land under the Land Acquisition Act, 1894 (1 of 1894), as amended from time to time, or any other law of the Union or a State for the time being in force”.
The 2007 Policy deletes previous provisions of the 2006 Draft Policy which provided that emergency provisions under Section 17 of the Land Acquisition Act of 1894 should be “used rarely” and should be applied only after considering “full justification” of the proposed project (Clause 6.23 of the 2006 Draft Policy). Clause 7.18 of the 2007 Policy implies that land can be acquired in case of emergency under Section 17 of the Land Acquisition Act, 1894 or similar provision of any other Act of the Union or a State for the time being in force by keeping the affected families in “transit and temporary accommodation, pending rehabilitation and resettlement scheme or plan”.
Clause 4.7 of the 2007 Policy further exempts the Ministry of Defence from conducting any Social Impact Assessment or Environmental Impact Assessment while acquiring any land in connection with national security. So, for example, if a nuclear plant were set up for national interest or defence purposes or in the case of border fencing, no one can oppose the project.
b. Exclusion of the land owners, vulnerable groups and the poorest from the decision making process
i. No benefits in case of small intensity displacement
The Preamble of the 2007 Policy states that: “A national policy must apply to all projects where involuntary displacement takes place”. But under Clause 6.1, the appropriate Government shall declare area of villages or localities as an “affected area” only if 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 Schedule V or Schedule VI to the Constitution due to acquisition of land for any project or due to any other reason”. In short, the 2007 Policy only applies to large scale displacements. In case of tribal villages in hilly areas, the number of project affected families may not touch the golden mark of 200 or more families, but a large area can be potentially affected by a project.
ii. No right to say “no” to a project
The call for “the active participation of affected persons” (Clause 1.2) in the process of resettlement and rehabilitation is not reflected in the processes of development of the project. The affected persons are denied the rights to take any kind of informed decision regarding the usage of their lands with regard to development projects.
Only in the case of acquisition of lands in the Scheduled Areas (under Schedule V and Schedule VI to the Constitution of India) does the 2007 Policy provide that the concerned Gram Sabha/ Panchayats/ Village Councils shall be “consulted” (Clause 7.21.2). However it is important to note that “consultation” in no sense denotes “consent”. The affected persons do not have the right say “no” at the time of determination of the project site.
iii. No inclusion of the affected groups in Social or Environmental Studies: Concerns over the independence of the studies
There are no provisions in the 2007 Policy for the inclusion of the affected persons or their representatives in the preparation of the Social Impact Assessment (SIA) report and/or the Environmental Impact Assessment (EIA) report of the project.
The 2007 Policy fails to define who conducts the SIA or EIA. It only states that “the appropriate Government shall ensure that a Social Impact Assessment (SIA) study is carried out in the proposed affected areas in such manner as may be prescribed” (Clause 4.1). This lack of clarity opens the possibility for concerns over the independence and or capacity of those designated to carry out SIA and EIA studies.
The 2007 Policy provides for the constitution of an “independent multi-disciplinary expert group” to examine the SIA report. Members are nominated by the appropriate Government.
There is also no provision for consultation with the affected families during the final preparation of the SIA and EIA reports so that their views are reflected in the report to be examined by the independent expert group.
Obviously, government nomination raises concerns about the independence of the expert group. And the fact that the people affected by the changes are not represented is yet another concern.
iv. No inclusion in the survey/census of affected persons
After the declaration of an area as “affected area”, the Administrator for Rehabilitation and Resettlement undertakes a baseline survey and census for identification of the persons and families likely to be affected by the proposed project. Although the Administrator is required to publish a draft of the details of the findings to invite comment and objections from the affected persons, there is no provision for the compulsory inclusion of any affected persons or their representatives in the survey.
c. Lack of independence for Administrator or Commissioner
Wherever there is large-scale displacement, the 2007 Policy provides that the appropriate Government may appoint an Administrator for Rehabilitation and Resettlement (hereafter called “Administrator”), who is an officer not below the rank of District Collector, to oversee the resettlement and rehabilitation plan. But the Administrator can delegate his/her powers and duties to any officer not below the rank of Tehsildar or equivalent (Clause 5.6).
A Tehsildar is the lowest ranking officer in the State administration. That the Administrator can delegate his/her power to a Tehsildar shows that there is no seriousness to properly rehabilitate the affected families.
In one hand, the Administrator is vested with the power of “overall control and superintendence of the formulation, execution and monitoring of the rehabilitation and resettlement plan” (Clause 5.4). But on the other hand, the Administrator can only exercise his powers and functions “subject to the superintendence, directions and control of the appropriate Government and Commissioner for Rehabilitation and Resettlement” (Clause 5.3) and “subject to any general or special order of the appropriate Government” (Clause 5.5).
The Commissioner for Rehabilitation and Resettlement is appointed by the State Government and therefore, cannot be considered independent.
d. Causing further displacement in the name of resettlement
The first and the foremost objective of the 2007 Policy is to “minimise displacement and to promote, as far as possible, non-displacing or least-displacing alternatives”. But the 2007 Policy allows further displacement in the name of resettlement and rehabilitation of the project affected families. Under Clause 6.9, “The appropriate Government shall, by notification, declare any area (or areas) as a resettlement area (or areas) for rehabilitation and resettlement of the affected families”. This may cause further displacement of non-project affected persons. Although it has been mentioned that “the Administrator for Rehabilitation and Resettlement should ensure that such acquisition of land does not lead to another set of physically displaced families”, displacement of non-project affected families is bound to occur under the provisions of Clause 6.9 of the 2007 Policy.
e. Inadequate safeguards to displaced persons
The 2007 Policy provides that the Scheduled Tribe families who are or were having possession of forest lands in the affected area prior to the 13th December 2005 (Sub Clause (vii) of Clause 6.4 of the 2007 Policy) be included in the survey of the Administrator for the Resettlement and Rehabilitation. However, it does not guarantee land-for-land compensation to the displaced families.
Clause 7.4.1 states that each affected family owning agricultural land in the affected area and whose entire land has been acquired or lost, agricultural land or cultivable wasteland “may be allotted” only “if Government land is available in the resettlement area”. In other cases, the 2007 Policy only makes weak guarantees such as “may be allotted”, “may be provided”, “may be offered”, etc.
Clause 7.4.2 provides that: “In case a family cannot be given land in the command area of the project or the family opts not to take land there, such a family may be given monetary compensation on replacement cost basis for their lands lost, for purchase of suitable land elsewhere”. Under Clause 7.14, the affected families could be coerced to accept money in lieu of land. It provides that “In case of a project involving land acquisition on behalf of a requiring body, the affected families who have not been provided agricultural land or employment shall be entitled to a rehabilitation grant equivalent to seven hundred fifty days minimum agricultural wages or such other higher amount as may be prescribed by the appropriate Government”.
There is little guarantee for employment for the displaced persons in the projects. Clause 7.13.1 states that in case of a project involving land acquisition on behalf of a requiring body, at least one person per nuclear family should get preference in getting employment in the project but this is subject to “the availability of vacancies and suitability of the affected person for the employment”.
Moreover, rehabilitation and resettlement for affected families displaced by linear acquisitions in projects relating to railway lines, highways, transmission lines, laying of pipelines etc is absolutely inadequate. According to Clause 7.19, the victims of linear acquisitions would be provided only ex-gratia payment of such amount as the appropriate Government may decide but not less than Rs 20,000. However, the benefits of rehabilitation and resettlement under the 2007 Policy will be provided to any land-owner if he/she becomes “landless or is reduced to the status of a ‘small’ or ‘marginal’ farmer” as a result of land acquisition.
f. Not adequate safeguards for STs/SCs
For the first time, the 2007 Policy has proposed to collect disaggregated data about the number of Scheduled Tribe (ST) and the Scheduled Caste (SC) families affected by the project in the survey to be conducted by the Administrator of Resettlement and Rehabilitation. It also provides that in case of displacement of 200 or more Scheduled Tribes families, a Tribal Development Plan shall be prepared.
But the 2007 Policy fails to provide adequate safeguards. According to the definition of “affected family” as provided in Sub Clause (b) of Clause 3.1, the affected family, among others, must have been “residing or engaged in any trade, business, occupation or vocation continuously for a period of not less than three years preceding the date of declaration of the affected area”. Tribals who practice traditional mode of agriculture, such as shifting cultivation, which requires temporary shifting from one place to another place every year for cultivation of crops, and other nomadic forms of life, may not be residing continuously for a period of three years at a particular place and hence may not come under the strict definition of “affected family” to get the benefits under this Policy.
There has been a positive improvement in the 2007 Policy as it provides prior consultations with the concerned Village Councils in the 6th Scheduled Areas as well as with concerned Gram Sabhas (Village Council) in the 5th Scheduled Areas in all cases of land acquisitions including land acquisition in cases of urgency under Land Acquisition Act of 1894. Earlier, the 2006 Draft Policy had such provision only for the land acquisitions in the 5th Scheduled Areas. Yet, as stated above, “consultation” is not consent. Nor the 2007 Policy provides guarantees for land-for-land compensation which is mandatory under the Constitution for the Scheduled Tribes living in the 5th and 6th Scheduled Areas.
g. Faulty redress
The Policy provides for the establishment of the Resettlement and Rehabilitation Committee at the project level to monitor and review the progress of implementation of resettlement and rehabilitation schemes. The Committee is not an independent body as the State governments appoints the members and prescribes the “procedure regulating the business [….], its meetings and other matters connected thereto” (Clause 8.1.3). The State Government also prescribes the composition, powers, functions and other matters relating to the functioning of the Rehabilitation and Resettlement Committee at the District level which is headed by the District Collector/ District Commissioner of the district (Clause 8.2.1). Hence, there is no guarantee for the inclusion of the affected persons or their representatives at the District level Committee.
Similarly, the Ombudsman which has been created to serve as the higher appellate authority to dispose of grievances does not have enough powers, mandate and resources. The Ombudsman is appointed by the appropriate Government which also prescribes “the form and manner in which and the time within which complaints may be made to the Ombudsman and disposed of” (Clause 8.3.3). The Ombudsman has limited mandate. Under Clause 8.3.5 “In case of a project involving land acquisition on behalf of a requiring body, the disputes related to the compensation award for the land or other property acquired will be disposed of as per the provisions of the Land Acquisition Act, 1894 or any other Act of the Union or a State for the time being in force under which the acquisition of land is undertaken, and will be outside the purview of the functions of the Ombudsman”.
The 2007 Policy is as best as inadequate in a framework where there are no adequate checks and balances. The processes are open to abuse and the appointment processes of all bodies raise serious questions about independence. The process wholly excludes the affected groups a say in their own future.
The application of such a Policy in a hostile polarized environment like in the case of West Bengal where Chief Minister Buddhadeb Bhattacharjee justified militia violence - that included rape and killings of local people opposing a development project - as ‘paid back in the same coin” (see ACHR Weekly Review 197 ), underlines the need for an immediate rethink on the National Rehabilitation and Resettlement Policy of 2007.
Unless the government of India addresses the issues raised by the misuse of the Land Acquisition Act of 1894, the Act will continue to be a cause of conflict. India needs development but not at the cost of burgeoning conflict. Development policy that inflames conflict at the local level is counter-productive. It is bad for business. The 2007 National Rehabilitation and Resettlement Policy suggests that the Government of India is yet to understand the relationship between the application of its policies at State level and the consequent rise in conflict across India.
The duty of the
State is to provide an environment where development can flourish but allows all
players with equal opportunities to derive rewards. The duty of the State is
not to stack the odds in favour of the powerful, force land acquisition and to
disempower the weak and most vulnerable.
The abuse of a law designed for allotting land use for ‘public purpose’ for private gain is a case enough for review. But the fact that the National Rehabilitation and Resettlement Policy of 2007 also provides a catalyst for blatant human rights violations suggests that the whole question of land acquisition for socalled ‘public purpose’ must be re-examined with urgency.