Arguendo Series : Crisis in our Backyard: “Jaan debo, Jameen debo na” (part II)

By Abhishek Joshi :

The trend of gobbling land parcels citing national interest around the country without a scant sublimity and sensitivity towards the ecological and environmental disturbances, large scale displacement of people has its roots in the “principle of eminent domain” a practice resulting in “compulsory purchase” / “compulsory resumption” which we has been enforced under the draconian shadow of “Land Acquisition Act 1894” adopted from colonial powers. This act was explicitly created to facilitate government acquisition of private land.

This act since then has been most vehemently opposed than any other, more specifically deployed with its brutality after the opening of the markets under the liberalization regime. The powers vested under this act with the government have been questioned repeatedly forcing absolute interpretations defining “public interest”. Under strictures from Hon Supreme Court and pressure from civic organizations, the principle act was amended by the government through Land Acquisition (Amendment) Bill 2007. The amendments include rights of those displaced by land acquisition limiting the definition to acquire land under public purpose. The bill is also supposed to establish Land Acquisition Compensation Disputes Settlement Authority (LACDSA) at State and National Levels to arbitrate any disputes. This to be read in conjunction with Rehabilitation and Resettlement Bill also introduced in 2007.

Amongst other things the major succeeding factor in the amendment of Land Acquisition Act 1894 is a compulsory Social Impact Assessment Study if the land acquisition results in the displacement of 400 families in the plains or 200 families in the hill or tribal areas. The area under tribal areas is already protected under the 5th Schedule of the Constitution of India covering 9 States of India which provides for protection to the indigenous people living in scheduled areas.

Both Land Acquisition (Amendment) Bill 2007 and Rehabilitation and Resettlement Bill (2007) have also been mired in controversies. Even in the present shape and form there yet is a massive resistance and hence have concurrently lapsed due for its presentation and subsequent discussions in both houses of parliament. This pertains to valuation of land, fair compensation and addresses issues of displacement.

The Bill grants the LAC DS Authority the powers of civil court by barring them from entertaining any disputes or issuing any injunctions relating to land acquisition. With this barring of civil jurisdiction there is no mechanism by which a effected party could challenge the qualification of the project as “public purpose”. The Bill also defines special provisions for land taken in the case of urgency and both the Principle Act and the Amended Bill continue to remain silent on the definitions and provisions of urgency.

Both the Principle Act and Amended Bill under Clause 5(i) pertaining to “Easement” state that the “person interested in an easement affecting the land, shall be considered a person interested”. The term ‘easement’ is not defined either in the Act not in the Bill so proposed. It’s defined in the “India Easement Act 1882” and “The Limitation Act 1963” but the definitions are significantly different in these two acts, which would impact the implementation and resultant rights post displacement rights and benefits including compensation.

The Rehabilitation and Resettlement Bill (2007) also has its subjective clauses over ruling the “conjunctional” proportion under which it is to be read. For uninitiated, the Bills subjective purpose is to provide benefits and compensation to people displaced or other involuntary displacement. Reading the “finer” prints of the bill it’s imperially clear that at best it shall always remain subjective.

Though the purpose of the R&R Bill is ‘to provide for rehabilitation and resettlement’ of affected persons, the bill itself does not warrant that they should be settled. While the Statement of Objects and Reasons mentions minimizing displacement, protecting the livelihoods and improving living standards, the language of the bill does not make these clauses mandatory. For example, Land for Land “shall only be allotted” if “Government land is available” or for Employment “shall be given preference in providing employment” subject to “availability and suitability”. The Bill in proportion equally bars the jurisdiction of civil courts providing judiciary powers to Central Authorities, Ombudsman, and Administrative Tribunals who never have these qualifications or have demonsratable sensitivities on matter of these interests historically and hence subjugate the “right to appeal” in case of natural disputes.

Cherry on the cake “the Bill does not specify a clear time frame for rehabilitation” and hence has never seen the sun from a draft bill to a constitutional act. With globalized initiatives and no longer proscribed immunity to the economy, this sure will is anybody’s guess.

No surprises in less than a decade we have had issues surmounting agitations across the length and breadth of the country. The political shenanigan adding up the dose of uber development and economic prosperity has resulted in an efficacy, forming a doctrine for ushering development.

A doctrine which has been implemented with impunity from Narmada to Singur to Nandigram to Panvel to Singrauli to Niyamgri to Angul to Polavram to Tadadi to Jaitapur. The Democratic fabric of the country affords an advantage for these oppressed voices to be heard and hitherto they have seen binding in unison either in the form of social revolutions, agitations or collective associations for benefits of the causes and relative masses. However, if these vociferous voices continue to sustain momentum and rattle to compete with the deafness of the socio-political system forever, the precarious balance seems to be giving away. More actionable governance norms are needed than a mere symbolic constitutional act with all its jurisprudence interpretations and clauses would not owe itself of “factual” wrongs by “perpetual” rights.

From “humara adhikar le ke rahenge” (we shall have our right) to the extremes of “Jaan debo, Jameen debo na” (shall give our lives but not our land) we have really come progressively far to collect global accolades, never mention the wrath of our own people for the sake of development.

These voices have far met the wide eyes of development and decisions which were to be sustained by eco-centricity have all been taken on account of homogeneity. The losses of which to be borne by masses who have anything but hope and capital profits for select few who have anything but sensitivity

Other factor for these voices is to be continually dubbed in socio-imitative parlance from communal to communist to social brouhaha of civic and vested organizations, counter playing in finding polarity of issues. This can be diffused so long is this gets lampooned, crossed and sheltered as a convoluted anti-development ideology.

But, we have decided. We are a nation on the move and move we shall, by moving all who come to stand between charades of senseless development versus the constitutional right of humanity.

Having defined the opposite we are yet to define the concept of progressive development or perhaps we have. The doctrine of progressive implementation now rests on principle of eminency with a simpler choice…..

Jaan debo ya Jameen debo..?? (Your life or your land..??)

Arguendo Series : Crisis in our backyard - Jaan debo, Jameen debo na...! (part I)

By Abhishek Joshi :

A sleepy town Jaitapur in Ratnagiri district of Maharashtra was finally kicked out of its slumber by visiting French President, Nicolas Sarkozy on December 10th, 2010. He was not visiting the villagers to break bread with them as the “new in” concept followed by most of our young gregarious politicians but in Delhi shaking hands with Executive ensuring that they are well grasped so as not to slip the opening of India’s billion dollar lucrative nuclear power generation market. Joint declarations from French and Indian bureaucrats self patted their backs on the growing bilateral cooperation and assured assistance to India for securing its permanent membership in the Security Council. This included accommodating the elusive “P” word for us, which we continue to prod and plead, now as a tradition to any and every visiting delegation,” Sir...pls just once...!

Having said, eventually an agreement was signed for the construction of 1st set of 2 third generation nuclear reactors and supply of nuclear fuel for 25 years. French nuclear firm Areva SA and Indian state owned Nuclear Power Corporation of India signed this multibillion dollar (USD 9.3 Bn) valued agreement. The total generated capacity would be 9900 MW once commissioned and one of the largest nuclear power generating stations in the world. This further to be financed “again” by a consortium of French financial institutions and OECD which would continue to “protect” the clauses of general agreement and contract. We have a history on this but save this for future discussions.

Village Madban as the site chosen and Jaitapur Nuclear Power Project (name owing to the nearest port) modalities were announced. The decks were cleared covering up for the trust deficit which Indian government continued to had with successive world lords until the “Civil Liability for Nuclear Damage Bill (2010) was passed by the Parliament in August 2010. Controversial to the core, cleared without bearing consequences and consensus within the parliament, abjuring complete responsibility to the masses with sole objective of following the diktats and seen serving the masters, the bill was presented as the “only achievement of the incumbent government” and “through consistent dogged pursuit of our Prime Minister despite stiff opposition this year”

The bill prohibits an act of “class action suites” in India (much prevalent globally) in safeguarding any liability which could be brought to the fore in event of a nuclear disaster. The bill further states that total liability for a nuclear incident shall not exceed 300 Mn Special Drawing Rights, approximately 2100 Crores at current exchange rates. Even within this amount, the liability of the operator (in this case Areva SA) shall be Rs 500 Crores. If the liability exceeds Rs 500 Crores, the central government shall be liable for the amount exceeding Rs 500 Crores, limiting it again upto SDR 500 Mn.

The balance is tilted for the operator since he would have a “right to recourse” against the supplier and other individuals responsible for the damage under certain conditions. What could be achieved of these "certain conditions” if the operator chooses to exercise its right to recourse in due time, even the neo- liberals in their believes, including the ones who remain involved to get this through would know.

Not to be missed, smacking of Government of India bureaucratic standards matches to its hilarious propositions, when the Atomic Energy Regulatory Board (under who’s jurisdiction Nuclear Power Projects are commissioned) will have to notify a nuclear incident within “15 days” from the date of a nuclear incident occurring.

Further the track record of successive Indian governments in relating to the spirit is evident in the Bhopal Gas Incident, where claimants have all but received any compensation since 1984. The ones received were as less to Rs 28 to a far more generous of Rs 1200 as compensation for loss of life. Moreover, the impact of a nuclear disaster could be a holocaust compared to Bhopal incident which has left 200,000 people with permanent injuries reported to eye problems, respiratory diseases to neurological disorders, cardiac failure secondary to lung injury, female reproductive difficulties to birth defects among children born to affected women. The Indian government has and still after 25 years continues to stand on its denial negating the impact of any permanent injuries caused by the incident. Meager justice which followed is quite a testimony to these instances.

Having set the background, let’s come back to Jaitapur. Well it’s on the Arabian Sea Coast in Ratnagiri district in south western part of Maharashtra. The district is part of the Konkan region in Western Ghats, which includes a thin strip costal line of Raigad, Ratnagiri and Sindhudurg districts. Ecologically rich agricultural area, these Ghats was previously being applied to UNESCO MAB to be listed as a protected World Heritage Site. This also forms part of seismically sensitive area classified by our own government under “Earthquake hazard zoning of India”. Jaitpur falls under Zone IV a “high damage risk zone” which makes it all the more susceptible to cataclysmic events.

Trouble consistently has been brewing as opposition to the site and Nuclear Power Plant as a whole since 2006 when a court case was filed by Janhit Seva Samiti, Madban in Mumbai high court, which initially stayed any “developmental” initiatives lifting it completely in matter of few months. This lead to sporadic incidents of mass rallies organized collectively by the villagers in 2009 and early January 2010 when officials visited the plant site citing compulsory land acquisition of some 938 hectares from five villages. The villages resisted the move by refusing to accept the cheques and most importantly their presence. A Public hearing meeting building up to Environmental Impact Assessment Report prepared by NEERI was conducted by Maharashtra Pollution Control Board on behalf of MoEF had 600 objections being filed by the authorities was never released and delivered to 3 out of 4 Gram Panchayats within the district. Abetting the controversy which followed the quite overzealous MoEF sometime (and picky most of the time) claimed to have cleared the assessment report in flat 80 days from its first initial submissions with no explanations cited on the objections so been filed.

This despite the fact that most of the villagers across these districts have remained united and firm in their demands and continue to agitate on the site location citing environmental concerns of an already fragile eco-system, forced displacement, loss of livelihood, radiation effects and most severely no policy being defined for Radioactive waste disposal. This despite the fact that Tata Institute of Social Sciences (TISS) department of disaster management has criticized the site location not so politely and even pressing ahead accusations of eroding the social and environmental development by distorting facts without calling in for collective participation and transparent sharing of information of the project with its own citizens.

(to be continued)