"Business at the Cost of Ecology" - The TSR Subramanian Committee Report

In nuances of political governance, the competitive zeal of governments are never always prejudiced to do better, they might be seen competing for worst as well. With NDA government completing one year of its ascent to power, the glaring example of this notion rests with its Environment Minster, Mr. Prakash Javadekar who has outwitted his predecessor Veerappa Moily by miles and yet adding to the count of environmental clearances, having cleared more than 650 projects in 7 months by his own admission.

 The TSR Subramanian High Level Committee (HLC) set up purportedly, without any cabinet mandate by Ministry of Environment, Forests and Climate Change (MoEF&CC) was to align green laws at par to afford a “Single Window Clearance” system, even for sensitive environment clearances. Never to mind to check the track record of severe deviations on compliances and flouting of existential laws already, the HLC immediately got down to review the Laws, notably, The Environment (Protection) Act, 1986, Forest (Conservation) Act, 1980, The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. The HLC placed it recommendations in November 2014.

 The brief of HLC one would have assumed was to de-bottleneck the policy congestion for the Industry, setting up guidelines with significant safeguards for ecology and environment, mandated under the MoEF&CC. Instead, the committee recommendations, now almost accepted by the NDA government, have severely diluted the environmental laws, edging them closer from the origin of the Ministry’s mandate from “Protection of Environment” to solely on “Ease of Doing Business” in India.

 Besides recommending subsuming various laws into a single over arching law, the Environment Law Management Act (ELMA), it suggests to creates two bodies at both, Central; National Environment Management Authority (NEMA) and State level; State Environment Management Authority (SEMA) to “fast track” clearances for investments in development projects. Based on the principle of “Utmost good faith”, it further plans to do away the monitoring functions of Central & State Pollution Boards. Such is the reposed faith that it does not define “severe” penalties and “financial burden” to be levied in case of any attempt found flouting the environment protection rules by applicants..!

 The primary contentious recommendation though of the HLC is to dispense with Public Consultation and Public Hearings for “development” projects and Arrogation of powers of both legislation and an Appellate tribunal (dispensing with National Green Tribunal) under ELMA,   with no recourse to any court of law, even on “merit”, under the proposal.

 The committee recommends that dispensing hearings should be “modified” which shall pave way for faster clearances on the projects, for specific areas including amending the Forest (Conversation) and Wild Life Protection Act “suitably” devolving the powers of “Gram Sabha”, presently mandatory for project approvals under Social & Environmental Impact Assessments (S&EIA) for protected areas. The latter to add, has also been dispensed with under the proposed new law.

 It further goes on to request to define the “Forest” at the earliest, calling summarily by itself the areas with less than 70% of canopy covers as “treelands”, even if classified as and under  “protected areas”. This essentially means that the vast large patches spread across the country, which have seen enormous environmental and climatic degradation on the canopy cover, would immediately be available for “mega mining, industrial and infrastructural projects” and states no longer shall be able to define or advise any “Go-No Go areas to the centre.

 The threat of acceptance of this suggestion which came under severe criticism by several environmentalist and activists on major catastrophic impact on the environment was not lost when Mr. Javadekar in a written submission on the floor of parliament in April mentioned that 36,000 hectare of forest land has already been diverted for some 784 projects, ostensibly diluting the Forest Laws. This suggestion would further aid the executive policy decisions in diverting more forest land sans any accountability in name of development.

 Under Mr. Javadekar the MoEF&CC now equally is in direct confrontation with its own government Ministry, Ministry of Tribal Affairs and might also find itself coming under the judicial scrutiny (hence the attempt to enact the ELM Act) of the Courts of the country. Very specifically, the Supreme Court which has repeatedly under pain has led to protect the indigenous rights of the tribal’s to forest land, sustainability of livelihood from forest produce and exploitation of its natural resources against any or either move of industrialisation.

 The Ministry of Tribal Affairs has strongly refuted the draft “revised” guidelines on compliances meant for The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 for clearances of projects, calling it an overreach of MoE’s policy recommendation into its turfs. It has indicated in no uncertain terms that it shall continue to contest any dilutions so recommended, though for how long, is yet to be seen.

Notwithstanding the domestic blunt side, India shall also be flouting the 1992, “Rio Declaration on Environment and Development” with impunity which amongst the major principles articulates, Public Participation across all levels of citizenry including providing access to “all relevant information” as necessary, involvement at all stages of decision making with access to judicial and administrative proceedings and measures for redressing grievances. All but few recommendations of HLC and MoEF’s grandstanding of policy decisions relaxing “environmentally sensitive green norms” could afford to expose itself to “litmus test” of these standards.

 No surprises that on eve of completion of 1^st year, the “achievement report” released by MoEF&CC, called “Towards Transparency & Good Governance” in May recently, it critically misses much mention on further strengthening the guidelines on “Protection of Environment” but instead claims “Changing many rules for the protection of environment” and aligning the policy implementation and homogeneity of laws, and “clearances” of projects, as its sole single policy achievement.

Noted Canadian Environmentalist David Suzuki through his famous “Water Lilly” example explained the concept of exponential environmental destruction. He brought forth hat the damage to the eco system is never progressively linear, can’t be checked one at a time and hence difficult to monitor; and that, any system could perhaps be assaulted from thousand sources making it appear living one day and be dead the next.

 The MoEF&CC must know that relaxation of norms to only appear as “Pro Industry” by opening up of sensitive eco pockets hitherto out of bounds and yet protected would only lead to an irreversible destruction which no afforestation policy and the penalties could recover. Instead it must take a “green leaf” from Suzuki’s prudent advice and ideally strengthen the environmental governance avenues bringing robust institutional policy guidelines and strict compliance to existential laws to arrest the climatic decline and by instilling sufficient safeguards for the environment.

 The indulgence hence for sake of posterity, is quite "naturally” to ask, “On the swinging beam of Capital and Profits on one side and Ecological and Environmental Protection Charter on the other - Which side are you on Mr. Javadekar”..?

 

 

 Abhishek Joshi

(Author is a New Delhi based Policy Analyst)

My submissions to the Joint Parliamentary Committee on Land Acquisition Bill (LARR) 23rd June, New Delhi

Submissions to the Joint Parliamentary Committee on LARR, 23^rd June, New Delhi

 

 

On Quantum of Land & Food Security:

 

1. As submitted earlier, we demand a white paper on over all utilization of land since Independence resting with both Central and State Government, PSU’s, State Undertakings Public Private Organization (under PPP) and Government funded autonomous bodies which have been allotted but have not been utilized for allotted objectives, together with the facts and ownership pattern to assess; if any land has been diverted for different purposes other than allotted, the present ownership pattern and status of updated land records across states to afford the sum total of the over land available prior any further land acquisition.
2. We also demand clarity on how much of wasteland is available. The mention of “survey” to be done is misleading since the Rural Development Ministry under the department of land resources until few years back has identified roughly around 43.8 Lakh Mn Hectare Wasteland through both on the ground and satellite surveys. The report can be seen from “Ministry of Rural Development, Department of Land Resources web site.
3. The government needs to come clean on its intentions on “purported lip service to the survey” and clarify the points.
4. We also demand that in interest of Food Security, the government clarifies under the Act that no Multi crop land shall be acquired. The government’s contention is misleading when it says that “minimum” land shall be acquired. Who defines Minimum, Who justifies Minimum, What shall constitute Minimum is not clear in the bill and hence needs to be clarified.
5. In case of Industrial Corridor, 1 km of land is proposed to be acquired either side. This is subjective and the LARR Act 2015 provides not safeguards that Multi Crop land shall not be acquired. This is not acceptable.
6. A “Draft National Land Reforms Policy” was tabled in July 2013. We demand that the Land Policy, amongst looking at the factors of providing land to the landless also details a framework, together with the white paper on Land Utilization Aspects – bringing up a comprehensive Land Policy.
7. It must state the plans for next 15 years on how much of land corpus is to be made available for Housing, Infra Projects, Social and Civic Development, Agriculture etc detail plans for protecting the Agro Climatic and Ecology Sensitive Zones, which have  been plundered in name of development.

 

On Definition of Categories:

 

1. The LARR Act 2015 has created five special categories which exempt consent as mandated under the LARR Act 2013 of 80% of land owners for Private projects and 70% for PPP Projects.
2. These categories are Defence, Rural Infrastructure, Affordable Housing, Industrial Corridor and Infrastructure projects including for PPP projects where government owns the land
3. All these categories in present form provide significant subjectivity to the definition and loopholes to allow private players to acquire land and even the LARR Act 2015 is silent on what role the government shall play
4. The term “where government owns the land” equally is misleading in the LARR Act 2015. Example is Delhi Mumbai Industrial Corridor which is process of acquiring land plans to create several zone wise organizations which shall acquire land, but shall be given out to private players in name of smart cities and infrastructure development, This is not acceptable.
5. We seek clarification on what are the definitions of these categories and demand that the LARR Act clearly states this definition including defining what projects and how many Industrial Corridors are planned at the earnest.
6. We also seek clarifications on definition of what shall constitute Rural & Urban Areas with respect to government notifications to the states to settle the issues around compensation and rehabilitation and resettlement policies
7. The government has also inserted “entity” changing the definition of private companies and it is again misleading on clarifications on what shall constitute the entities. We demand a clarity of this term as well in LARR Act 2015

 

On Consent:

 

1.      As per LARR Act 2013 consent was mandated from of 80% of land owners for Private projects and 70% for PPP Projects.

2.      We demand that this gets maintained. The provisio of “consent of Gram Sabha’s” is needed to define what development is needed suiting the local requirements sans any negative impact on the environment and ecology and imperative that participatory involvement in name of development, is not diluted.

3.      There seems to be an attempt to dilute the provisions under PESA (For Scheduled Areas V & VI) and Forest Dwellers Act and LARR Act 2015. We feel if not checked could be a precursor to take away the consent clause in name of Infrastructure projects from Gram Sabha’s which is not acceptable. The government needs to clarify that provisions of the LARR Act 2015 for Forests, Wildlife and Ecological Sensitive Areas shall not be under the preview of Land Act 2015, which is silent on these issues and we demand an insertion to safeguard any attempt to dilute the Forest Dwellers Right in this regard

 

On Social Impact Assessment :

 

1.      The governments attempt to “exempt” 5 subjective categories from SIA is not acceptable. Government’s contention that this slows down the speed of the project has not been proven either in parliamentary discussions, inter ministerial reports or have been brought in the public domain through any independent reports. The government’s contention is in fact hollow when recent RTI by the Finance Ministry has proven to the contrary where only 8% of the Projects were stalled for want of Land Acquisitions. The government is misleading the nation and this assertion if anything is to protect its own interest to dole out benefits to the corporate for speeding their acquisition for creation of realty land banks.

2.      The government brow beats for imbibing best practices of other nations, should know that all leading and developed nations deploy both EIA and SIA to assess the situations “prior” the “purchase” (not acquisition) of land for development.

3.      Even World Bank – for which the government is seen rationalising multiple laws and policies for “ease of doing business” in India, equally has a mandatory norm to conduct the SIA and EIA for its own funded projects, though the effects of even World Bank projects have resulted in more displacements world over as presented by an International Independent Report

4.      As per NSSO 70th report and State of Agriculture report 2013, it has been proven that the rural ecology sustains upwards of 48% of the people, directly or indirectly to both Farm and Non Farm activities. The SIA is needed since the “compensation” be awarded only to the owner with no impact study it shall never determine the (PAP) Project Affected People, specially the marginalised community which depend on land resources for their livelihood.

5.      We demand SIA needs to be maintained across all of these categories since it’s the core of R&R policies, creating an equality both in terms of protecting livelihood and also ensuring the marginalised are not pushed away to societal periphery.

 

On Compensation:

 

1.      We demand to define the formulae for compensation. The govt is saying that there shall be 4 times compensation to be provided to the farmers in case of compensation, which is misleading. The FM in his budget presentation while proposing the “Benami Transaction Bill” mentioned the severity of Black money in real estate transactions and also his acknowledgement of deemed revenue accrued to the government is less than the notified price of land transactions and evasion of stamp duty payments are rampant hiding the actual market value.

2.      The compensation so to be paid for by the collector (who under the LARR Act 2015) is the notifying authority shall calculate the average price of 3 years to arrive the notified value or circle rate prevalent if notified to award compensation. This shall leave the actual compensation closer to the circle rate or rate of registration as an average value instead of the market value, depriving the farmers of the actual price, which the government claims.

3.      We demand the formulae to inserted in the LARR Act clearly defining the “Compensation Formulae”

4.      The other aspect is “Land Use”. Once notified of the land use, the market forces tend to determine the value of land and the farmers can perhaps get more value then than notified land value, which is not declared at the time of acquisition. There are no provisions to claim the higher price on land use.

5.      We demand that the “Land Use” is suitably build up in the formulae for award of compensation and the compensation formulae for both Rural and Urban Areas is clearly notified.

6.      The mandatory employment for 1 person in the PAP category is also misleading. A farmer having given up his land would have no deep skills to afford the project unless he stands trained to run the activity. Hence even that one job having forgone his “asset” despite the compensation would be left to fend for him for want of any useful skill.

7.      We demand that “land for land” should be made available within the same region to ensure continuity of societal and cultural aspects

8.      If not, we demand wasteland is made available and sufficient grant pool – non financial rural and agri support with interest free loans are provided to develop the land

9.      We also demand the “farmer whose land is being acquired” is considered as a “vested party” in the acquisition process and is issued debentures or identified as a share holder to whom a dividend on year on year basis on determined value of land is being paid on Annual basis or from any profits which gets accrued from the project post implementation and commencement of operations.

10.  We though strongly recommend, that for effective balance, the land should never be acquired but to be taken on lease and lease value to be paid to the beneficiaries including the PAP on regular basis at annualized value to safeguard livelihood and sustainability

 

On R&R:

 

1. We demand a comprehensive white paper on the R&R settlement, award of compensation, Details on Project Affected People and their suitable settlement including compensation awarded, employment status of the PAP and any compensation in kind which has been awarded thus far since independence.
2. It is know that R&R record owing to project displacement is pathetic and there are still PAP which are struggling to be reinstated, resettled or to be rehabilitated including cases of award of compensation by respective governments, as long as 42 years
3. The SIA as stated earlier becomes the most important aspect to ascertain the impact for PAP and the subsequent R&R including award of compensation in this light.
4. A report “Displacement and Rehabilitation of People due to Development Projects” prepared by IIT Roorkee was tabled in Parliament, for consideration of Lok Sabha Secretariat and Member of Parliament in  December 2013.
5. The report clearly brought the effect of displacement on marginalized communities including SC, ST’s and OBC which were left displaced due to Mining, Dam, Industrial Projects and Acquisition of Land for Public Purpose
6. There has been no discussion thus far either in the parliament or between the parliamentary committees on the impact of such displacement and the policies thus so formulated carry no proof of concept to ensure the devastating aspects of this independent study and its results have been considered while proposing or implementing the LARR Act 2015.
7. Unless there’s a comprehensive and detailed guideline including wider discussions in the public domain and historical and legacy issues are settled, including for award of compensation we demand the provisions of this act is kept in abeyance for any land acquisition.
8. The LARR Act 2015 also has changed the classification of earlier purchases including denotifying by an amendment the land which has been acquired since 5 years and compensation not paid to be considered as acquired and not giving back the land in case of any development for period of 5 years.
9. There are 2 demands, we say, that all land acquisition which has happened prior to the notification of land and for which compensation has not been paid, the compensation formulae as to be defined in LARR Act 2015 should be under its preview on not basis the old Act,
10. Secondly, it is unacceptable that the government acquires land to protect a higher compensation on a future date and is tempted to create a land bank in name of compensation having being paid in a “registered account” but not paid to the beneficiaries including PAP. This is not acceptable.
11. If there is no use for the land over the 5 year period, the land should be turned back to the farmers from whom it was acquired with compound interest paid on deposit from date of acquisition notified on prevailing circle rate.

 

On Powers with Collector and Land Dispute Redressal Authority:

 

1. The draconian aspects of Land Act 1894 have been resurrected with the Collector becoming the “Mai Baap” again. These provisions for notification, acquisition, compensation, R&R policies and challenging the decision powers have been done away with the amendments to LARR Act 2013 in the present LARR Act 2015.
2. The powers to prosecute has also been subject to sanctions by the Gov which is against the principles of natural justice, access to judicial intervention and subjugation of fundamental rights as conformed in the constitution
3. The LDRA, though has been shifted to the districts, the pathetic state of both civil and criminal cases and the state of pending cases running in hundred lakhs in district courts is widely known, and having a authority only to deal with such situations will accentuate the situation and hamper the process of justice.
4. As been seen recently the sanctions for Macro corrupt acts by the previous government was not forthcoming and it was only when leaders of high political stature decided to challenge that a landmark judgement “Subramanian Swamy Vs Manmohan Singh” was delivered by Hon’ble SC by interventions of the court where permissions for sanctions were considered as deemed to be granted if not provided for in 6 months from the time of such an application.
5. The plight of a vested wrong in case of access to justice for small farmer or from marginalized community should be seen in the aspect of whether the situations be conducive for him to file, plead and contest the cases with LDRA and whether he/she will have the wherewithal both financially and morally to contest against the collector within the same district as “affected” under the patronage, of the government..?
6. The other aspect is for the “Collector” to have the sole powers to refer the matter to the LDRA once the application has been filed and for want of any response, the affected farmer can approach to the LDRA for seeking directions to the collector to make the reference..?
7. This is not acceptable. How can it be perceived that a small farmer shall persist to complaint about the collector, to the collector himself and equally shall prevail on the collector to both refer the matter to LDRA and also to award a judgement for the acquisition in his favour once assuming the LDRA has a favourable opinion to consider the case..?
8. We demand, this provision is to be done away with, and clarity in terms of processes to be followed including identifying Ex Officio’s members, such as Member of Parliament, Member of Legislative Assembly and Councils including members of Gram Sabha is part of the panel to adjudicate in the matters under LDRA.
9. We also demand that the “affected person” definition is clarified under the LARR Act 2015, to include not only the owner but “all concerned” drawing livelihood from the land to be acquired
10. We also demand that the provisions as of owner of the land to be extended and are as applicable to Project Affected People (PAP) who demand redressal of their complaints.
11. We also demand setting up of “local common judicial fund pool” for providing legal aid and access to assistance for farmers at district level.

 

WTO’s duplicity & India’s conflict on Food Security

One of the major breakthroughs attributed to the incumbent Modi government is to have come closer to realize India’s long standing demand in the WTO negotiations on Food security.

 

Leading from the front, Prime Minister Narendra Modi himself established the framework during his visit to the US. But the essential ‘behind the scenes’ contours, which withstood series of diplomatic efforts, leading to the announcement of “resolving” of differences and securing the US support to the “Peace Clause” were firmly stitched by the Minister of Commerce Nirmala Sitharaman.

 

This “understanding” shall now allow India to table up a revised proposal to G-33 nations when the General Council of the WTO meets this month to forward a firm operational plan until a permanent solution for norms of calculating agriculture subsidies are qualified.

 

Ever since the Doha development round, the pressure has been on India to curtail the round of its agriculture subsidies and bring it on parity with other “developed” countries. The other contentious aspect is related to the Trade Facilitation Agreement (TFA) resulting in lowering trade anomalies through rationalization (read reforms) on concomitant customs duties and tariffs easing trade restrictions, a protocol which India refused to adopt during successive trade block discussions and development negotiations since Cancun rounds of 2003.

 

The “failure to reach compromise” and “Impasse” on underlying alignment of trade talks has been continuously referred to every directed effort of India seeking genuine redressal of its food security concerns notwithstanding the fact that the WTO Agreement on Agriculture (AoA), which came into effect in 1995, has seen significant changes in world pattern on food production and distribution. Controlled by Global behemoths the agribusiness rules have changed considerably and the resultant thrust has been more in securing global markets for agri-related trade interventions driven purely for profit than securing hunger, farm livelihoods dependent on agriculture and sustainable food security support for the poorest of the poor, perpetually relying on government subsidies.

 

It is not a hidden fact that speculation in commodity prices worldwide are controlled by less than five trans-national organizations creating an ever perpetual interplay on volatility in commodity prices, effectively managing both ends of the spectrums of demand and supply. This is ever in peril to countries which are either acutely dependent on agri-produce exports – losing out any advantage of food surplus production – or the countries, which rely on imports to sustain their food security needs, with each taking a direct brunt on their trading economies.

 

Further, the Agreement of Measurement (AMS) support is twisted so frivolously under the WTO agreement’s three classifications procedure that it self-grants the wealthy nations to heavily subsidize the agro businesses affording protection under “Non distorting” trade mechanisms (Green Box) short changing the “developing countries” which are bound so as not to breach the measures on 10% cap on agri produce and support (Amber Box) limiting them to support genuine agri subsidies calling it a distortion of trade.

 

Leading the duplicity and leader of the pack of Indirect (read Non Distorted) subsidies is the US itself which has increased the farm outlay on Year-on-Year (YoY) basis and spends roughly around USD 25 billion per year citing “Farm Income Stabilization”, mandated under the Farm Bill (2007). Roughly around 37% is allocated as beneficiary grant to farmers against loss of crop or Income and equally includes identified crops which guarantee beyond the floor price payments with Corn emerging as the top crop for subsidy payments with as much as 48% planned outlay. Further in addition to the Federal subsidy, the state subsidies are equally payable across select pool of farming regions and US has sternly refused thus far to bring it to a level where “competitive exports” of developing countries for non subsidized agri produce could compete with the subsidized in the International markets, as was clearly evident during the Doha round.

 

EU is not far behind in protecting itself in the “Green Box” doling out massive subsidies equally on YoY basis to the tune of Euro70 billion, which are obviously defined as Indirect and Non Trade Distorting support. India actually has not even yet breached the 10% cap ever and the pressure is solely been in anticipation of Right to Food becoming a reality in future!

 

Not surprising when India presented an alternative proposal seeking an institutional mechanism during the Ministerial talks in Bali in 2013 to compute the subsidy, which presently relies on a bizarre “administered price” using 1986-88 as a base year, the G-33 countries seeking dominant control of agri markets could see through the dilution in control of monopolizing the trade opportunities and have consistently ignored this demand, focusing instead on “Trade Facilitation Agreement”. India, on the other side, has been continuously losing out solely on the basis of this computation under “administered price” mechanism and thus scrutinized for its subsidies.

 

The “Peace Clause” itself needs to be further negotiated since it’s only the “understanding” which has been arrived at and is only applicable until the next ministerial meeting of 2017, pending the discussion on proposal and its further ratification by G-33 countries. There are stringent data compilation requirements on subsidies. Both the Centre as well as the States will have to supplement information across all levels of subsidies. These would include the programmes, crops covered, and provisions on procurement, disbursement, support prices of the targeted beneficiaries, which need to be listed and identified, something not done presently. Assuming for this to be followed, India shall expose itself completely on any future planned initiative without any potent safeguards.

 

With the Modi government firmly behind the “Right to Food” entitlement, further strongly committed to secure India’s food security and its provisions thus far, it will have to deal with this WTO duplicity playing an equal strong hand in the next round, despite the former appearing to be in favour.

 

The path forward for Modi government’s plan for Food Security solely rests on the tested principle adage of International Trade Diplomacy of “Nothing is agreed until everything is agreed” to be watched closely by G-All (Group All) including India..!!

 

 

Author is New Delhi based Policy Analyst.