Kaelvi Kadhai (part of Iniyavai Indru) is an eight minute Tamil series with animation and narration anchored by Malavika PC, written and directed by Samyuktha PC for a Tamil cultural television channel called Puthuyugam TV in 2013. The animation was done by Trotsky Marudu’s team of animators. This particular episode furthers our conversation on land use, land ownership and land rights.The purpose of producing this show was to explore everyday concepts as stories and discover the individual’s relationship with the same.
Please watch, share and write to us on your experiences and observations with land use patterns around the world. For instance, what kind of a role does the State have in relation to land? What legislations are present or afloat to protect or grab land? What kind of power is in the hand of the people from the land? Add questions, thoughts, images and anything else. Comment below or send us the longer replies to email@example.com
Tamil, 8 mins 30 s
Akhila PR replies to Devdutt Patnaik’s Op-Ed article – In maya, the killer and the killed – which appeared in The Hindu, 14th January 2015
Mr. Devdutt Patnaik has written in The Hindu that – in essence – if you mock anything, especially a religion, you should be prepared to pay the cost for that decision on any terms suitable to the offended; e.g. being mowed down by Kalakshnikovs. This differs a bit from the usual expectation of someone being responsible for what they produce in a legal or even moral sense. Dialogue and views on the motivation of the creator is out the window and the offended person’s feelings (valid or not) reign supreme, blotting out all else.
Mr. Patnaik, begins by citing an extract from one incident in the Mahabharat which is rather out of context . This is Krishna cutting off Sishupala’s head after Sishupala insults him a 100 times, with the explanation “The limit of forgiveness was up”, implying that ‘God’ as he was, even Krishna had to retaliate after such a barrage of insults. However, the context of the Krishna-Sishupala story is:
It was fore-ordained that Sishupala would die at Krishna’s hands. Sishupala’s mother, Krishna’s aunt, then begged Krishna to spare her son. Krishna promised that he would forgive Sishupala 100 times but would then kill him.
This introduction, then, is particularly poorly chosen, unless the author wishes to imply that the Charlie Hebdo massacre is part of a larger Cosmic plan where the killers and writers had made a pact in a previous birth to kill and be killed in this life and was not only significant of the inability to not be offended.
He then goes on to postulate the interesting, but slightly obfuscating point, that it is Neo-Brahminical to expect everyone to employ language in the way the elite writers do, and that to term ‘barbarians’ those who resort to bullets rather than prose is a priggish, ivory-tower world-view.
To state right off the very obvious counter to this: would Mr. Patnaik be as implacable in his demand for the right to ‘equitable rather than equal response´ if I were to barge into his place of work toting a gun – or to be culturally sensitive – a pistol, a kukri, an aruvalu or a flaming torch, because words failed me and I saw no other means of response to his writing?
Let’s put Charlie Hebdo in a bit of cultural perspective: I was rather surprised at Charlie’s hard-line mockery of religion and the State. But I realized how much my thinking was conditioned by my growing up in India, a country where religion and state are as hard to separate as several balls of twine knotted together –not impossible, but requiring aeons of work, burnt fingers and perhaps, ultimately, resorting to snipping off bits that just wouldn’t untangle. From my perspective, Charlie really was playing with fire.
But in France, the separation of State and Church is not only a constitutional guarantee, but one that many publications ensure is kept up through the use of free speech to talk out against all institutions that wield power (religion and state prime among them). Charlie came up in a time of political censorship and vigilance. It was initially shut down for joking about Charles de Gaulle’s death. The paper re-opened as Charlie Hebdo, determined to speak out against the forces that had muzzled it. While much of the humour is, perhaps, in bad taste (that is to say, not to mine), it is a lively instrument for gauging how committed the State remained regarding the freedom of expression.
To reiterate, Charlie was meant for France – a country where this freedom was welcomed and response in letters was traditional. It is not really Charlie’s doing that in the decade following its rebirth, the world changed dramatically through the wider adoption of neoliberal economic policies and the creation and installation of the godhead of the Web. When Charlie went beyond the borders of France as easily accessible material, it was seen as an attack on their religion(s) by those outside France. And people who had and have no conception of the cultural context in which Charlie was created and read, made it their business to shut it down, a desire which then permeated the country of its creation.
While Charlie is a conundrum that many in religion-bound countries like India will find hard to square with their conscience, there is another example of physical coercion triumphing over the written word much, much closer home: Perumal Murugan.
Mr. Murugan is a Tamil writer with several books behind him. Then came the English translation ‘One Part Woman’, which has been burned and bullied out of existence by a group of religious enthusiasts (to be charitable). The book, whose Tamil version came out four years ago with no protests surrounding it, is about a childless couple and their attempts to have a child. One of these attempts is a consensual sex-rite at the Ardhanareeswarar temple, a rite where a woman has sexual intercourse with a man who is not her husband, in order to get impregnated.
Yes, a consensual sex-rite in a temple, in a country where temple-architecture regularly depicts orgies and, as that beaten-to-death drum gasps out, whose Kamasutra remains an important, perhaps unparalleled, contribution to the world of sexual relations.
But all this is really quite irrelevant. Mr. Murugan has access to a large and rich world of fact and fiction – the world he creates in his head. This world is answerable to no one and as long as he is not shoving his writing down the throats of everyone in this country (which would constitute several violations of Rights) there is no force, moral or legal, that should stop him penning his thoughts down whether we are known for the Kamasutra or the re-installation of Section 377 of the IPC.
Forces have, nonetheless, succeeded in doing this by burning the books and convincing Mr. Murugan that the safest path was complete retreat. He has recalled all the books from his publishers (the English version published by the much-harassed Penguin), promising to compensate them for any copies unsold and, further, has taken on a vow of silence. ‘Perumal Murugan the writer is dead’, he announced.
When writers are silenced for fear that anything they write will be offensive to someone out there and when the saying ‘the Pen is mightier than the Sword’ is taken as justification for picking up the sword, there lies the death of the author, free speech and human interaction.
Mr. Patnaik states that in today’s world the right to words is being privileged over the right to military action. The self-serving blindness of this statement, penned in a time when there are daily military engagements (state-sponsored and privately-funded) around the world and increasing demands for censorship, should be an indicator of how laughable his basic premise is. Indeed, even the examples he puts forth, citing mental violence, are ridiculous:
“So, one has sanction to mock Hinduism intellectually on film (PK by Rajkumar Hirani and Aamir Khan) and in books (The Hindus: An Alternative History by Wendy Doniger), but those who demand the film be banned and the books be pulped are brutes, barbarians, enemies of civic discourse, who resort to violence.”
Laughable though they are, his contentions, which will be taken up by many, are dangerous. His argument that the ‘offended’ can only respond with violence is in itself an offensive polarization of thought and action. Surely somewhere a contradictory point of view can find middle ground between writing and murder? In India itself we have a reasonably vast variety including, of course, burning things (posters, books, effigies – not actual land-property like houses and places of worship). These acts can be seen as a legitimate expression of protest. However, that is where freedom of expression STOPS.
You can protest. But no legal force on earth should ensure that your choice to be offended trumps someone else’s thoughts’ right to exist.
And this is where his argument about PK and Wendy Doniger runs into a brick wall. Protesting isn’t barbaric. But to demand that your protests be heeded “or else..” is to become an enemy of civic discourse.
And while it is an undeniable fact that language-based hegemonies exist the world-around, stemming from several complex causes, it is fatuous to suggest that because someone cannot write like a Charlie Hebdo or a Murugan, they should promptly take physically coercive measures to silence them.
Writers and ‘artists’ in general tend to stand out because of the something different they bring to any field of human existence. The sad little fact is that not everyone is a Voltaire or Kalki or Tagore. My inability to respond in Tamil prose is not reason enough for me to ban Kalki being read if something in his writing offends me.
And, interestingly, many of these doers who are so bereft of words that they must needs resort to violence, belong to groups that are led and inspired by immensely articulate individuals who know and milk the power of the Word: Bal and Raj Thackeray, Laden, even Hitler, Gandhi, Obama, Jayalalitha… So the ‘hegemonic power of the Word’, it would seem, is only railed against when it goes counter to one’s beliefs.
Finally, from talking about taking offence and how it can be measured, the author brings up the closing conceit of this article: everything is Maya. Maya, commonly interpreted as relating to the transient and ephemeral world, which is only a part of the larger, unfathomable universe, is interpreted here as the world of the measurable and tangible.
Mr. Patnaik’s claim is that physical violence is condemned because it is measurable and emotional abuse (read: offence) is dismissed because it is not measurable; a farcical argument in this case: in a work of art, your engagement with it is your responsibility and your choice. If something offends you, you do have (among several others) the option of moving away and not engaging further**. Neither of these conditions holds true for the majority of abusive one-on-one relationships in personal life.
Maya is also a leveling concept. One cannot posit that everything is Maya (‘Killer and Killed’, the title states) but go on to imply that some things are more or less worthy of being ‘Maya’ than others, as with the approving tone when talking about the ‘offended’ and the opprobrious tone when talking of the ‘offender’ laughing to the bank.
Everything is subjective, including our experience of the world of Maya, we are told. But if everything is subjective, should everyone remain ensconced in their cozy little construct without engaging outside it for fear of offending someone whose construct might be different? Mr. Patnaik’s article seems to imply that we hold back from ever expressing views which may differ from another’s, since these views fall outside the purview of the other’s person’s experience of reality. An extreme extension of this article would ban education itself as an Other being imposed on my native understanding of the world.
Yet, contradictory schools of thoughts clashed and then became entangled over centuries to create new thoughts and new beings. As seen in Mr. Patnaik’s own popular writings on myth and interpretation, religion itself is in constant recreation and reinterpretation. In the sense of a transient, illusory phenomenon, religion itself is Maya. So if you want to go down that path, what is offence? What is belief? What is sacred?
Large parts of the Mahabharata offend my perhaps Westernized sensibilities and my internalized Indian concept of Guru-sishya reverence. Drona’s warcraft ensured the Kauravas didn’t lose the battle of Kurukshetra, so the Pandava Yudhishtira (revered as Dharmaraja) lied to his Guru about the death of his son to get him to ‘off himself’. And this was done on the advice and with the able abetting of the ever-present Krishna, whose act of silencing Sishupala is the opening piece of this article. Even in its out-of-context form, isn’t this story, like all stories in all mythologies pertaining to god, just a means of showing that Krishna, an avatar of a God, is not perfection himself? If Krishna were perfection, why the Vishwaroopam++ on the battlefield? Is his conduct (especially as seen in the Mahabharat!) really something to aspire to, especially in this instance?
As if the author himself squirms over this quandary, the closing paragraph of the article goes out of its way to explain Krishna’s act within the framework of the Jay-Vijay myth. But if words are so psychologically damaging and if only actions are allowed to speak, Sishupala’s taunting Krishna is surely more than enough justification for Krishna to lose his head (and ensure Sishupala loses his too)? Why tie yourself into knots to show that Krishna was, really, only part of a larger game? Because, somewhere, Maya or not, there is in inherent recognition of the crude brutality of Krishna’s act and the need to explain it beyond and better than just the desire to avenge offence.
++On the battlefield of Kurukshetra, when Arjuna begins to agonise over the pointless bloodshed, Krishna reveals himself in the ‘divine’ form, of which he is just a physical manifestation, to reassure Arjuna that it is all for some greater good that Arjuna’s conception of ‘right’ and ‘wrong’ cannot contain.
A talk by Dr. Usha Ramanathan, at the Madras Institute of Developmental Studies on 12 January 2015. (Transcript. 1 hour 40 mins)
Karen Coelho – We are very happy to welcome you all to today’s seminar on understanding reforms in environmental, land and labour laws. Dr. Usha Ramanathan… is actually a very well known familiar figure here at MIDS. We have had her over several times. Every time she’s visiting, she very graciously agrees to come and give us a glimpse in to the inner workings, sort of lesser known aspects of what we all know is going on at the Center, in terms of various developments on the policy and legal front and various struggles that civil societies engaged in with these developments. For those who don’t know her Dr. Ramanathan works in Delhi. She’s a legal scholar, very well known legal scholar who works on the jurisprudence of law, poverty and rights. She is a research fellow at the Centre for Studies in Developing Societies. She teaches Environmental Law, Labour Law and Consumer Law at The Indian Law Institute. She’s a regular guest professor at various universities around the world. She has published very widely in Economic and Political Weekly and various other fora. She is very much a sort of public intellectual. She has very broad portfolio of topics on which she writes, researches and publishes on struggles including mass displacement, eminent Domain, civil liberties, surveillance, degree, criminal law, custodial institutions, judicial process and all of these things. One could go on, but I will stop. You’re ready, Usha? Thank you.
Usha Ramanathan – If I can just change that introduction a little bit, because like many things on the internet this too is severely outdated. I don’t teach Consumer Law and Labour Law anymore, but I do work in Labour Law quite a lot.
In recent times, the reason I have some access to what’s happening in the corridors of State power started with the privacy committee that was set up by the Planning Commission because I have been working on the UID (Unique Identification) for a long time. That is one of the things I have spoken about here before. The Privacy Committee then led to another committee, which was set up on DNA, because there is a proposal to have a Human DNA Profiling Bill. The Government at that time decided not to go ahead with the Bill until it had been considered by a committee of experts. Of course, these experts don’t exist. So each of us represents or gets represented as an expert, and you have to become an expert after that…
More recently, and more relevant to what we’ll be discussing today, I was part of a team that was set up to look at the socio-economic status of tribal communities, and there’s a lot that we learned in that process. There were some things that we went with, because all six of us who were on the committee had…already been working on those issues. But I think we learned an enormous amount, because things are changing very fast on the ground. One of things we did realize was that in the media you don’t hear anything about what’s happening in places that you can’t see from the city. We just have no idea what’s happening outside of this. So tracking some of those changes was very helpful.
Actually we submitted the report in May last year, and the printed copy was finally sent to the government in July. The Government has not yet done anything with it. I hear that they are considering it, but in the meantime somebody got a copy of it and sent it back to us saying is this the correct report that you submitted. It was the report we had submitted. So we okay-ed it and it is now available in the public domain. I think, Sainath recently launched his PARI (People’s Archive of Rural India) and it is on that website. So you can access it there.
That is the background from which I come. I was thinking of today’s session more in terms of understanding what is happening, because I am not coming here to impart understanding. I too have been struggling to understand what on earth is happening around us because the changes are quick and everyday and they follow a certain kind of pattern.
For instance, having the Ministry of Environment and Forests renamed as the Ministry of Environment, Forests and Climate Change has not been explained. We have no idea why they have added climate change and what in the portfolio of the MoEF tells us the logic of this. There are multiple things like this where we hear the slogan, but we don’t really know what is behind the slogan, because we don’t know what the policy is, or why the decision was made.
So when Nityanand suggested that we could have a meeting here on this, I must confess that selfishly it is a fabulous thing for me because some of us are trying in our little pockets to find out what this is about. I’ll set out some of the things that I know and I am hoping it will stoke some conversation around it. I don’t think it necessarily needs to be question-answer, because I may not have all the answers, but there are a number of questions and a number of confusions in relation to this.
There are some things to begin with. One of the primary things we have had to deal with is this contest over land. It’s not new. See, one of things we found when we started looking at what the present government is doing is that this government is not really doing anything different from the earlier government. They are just doing it differently. And the reason they are able to do it differently is because they see themselves as having the legislative power to be able to make changes in the law. The Manmohan Singh dispensation did a number of things which are being done now, but without the support of law and therefore it was done through, not even through executive fiat; it was done by internal arrangements within the government.
Just to give a couple of illustrations of that; one was what was called the Cabinet Committee on Investment. Now, under the law you can’t just take over land and you can’t make decisions which override the law of the land. But what they did was to say that when there is a project that is worth 1000 crores or more, then there is no need to worry about any laws whether they have to do with pollution, or land acquisition. You can just take it over and it doesn’t matter. You can make decisions. That group which is sitting there as the Cabinet Committee on Investment can override laws. That’s a very serious kind of thing to do, but they were doing it.
The second illustration is where in relation to forests, in Fifth Schedule Areas especially, which is the area populated by scheduled tribes, there are all kind of restrictions about land transfer, land alienation; and the State has the role of protecting the interests of the tribal in their relationship with the land. Now, they needed that changed because there were a number of projects that were a priority for that government. So they said that there would be an exception that was made to the Forest Rights’ Act, to questions of public hearing, to PESA (The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996), that those could be bypassed in cases which dealt with linear projects.
What are linear projects? Linear projects are projects like roads, canals, highways, broadband, electricity, and so on. All these would be exempted. So, if you need to take over land for that, there is no need for public hearing. There is no need to go through a Gram Sabha hearing. You don’t need any of it. You don’t need consultation, consent, recommendation. The logic of excluding linear projects is not located in law. The Forest Rights Act and PESA does not give room for this exemption, but they just did it via an executive circular, which exempted all these projects from all the processes that have been set in place in law. And that was worrying a lot of us because you have the Parliament doing something; as it is, all of us know how difficult it has been to engage with law making when it is done through Parliament, which is the most open process that we have now. And then when you convert that in to executive decision-making that changes things in ways which ought not to be acceptable in a democracy.
In March 2014, the Secretary to the Ministry of Tribal Affairs had sent in a note to the Government…I should step back a bit and say this. The Ministry of Environment and Forests has stopped being a ministry that protects the environment. It’s been like that for some time now and that’s the other thing that causes anxiety. In fact, like some friends say, it should be renamed the Ministry of Development because environmental concerns are seen as an obstacle to development. Therefore, the minister is expected now to deliver development, to deal with environment in a way where it will not come in the way of development. It’s still the Ministry of Environment and Forests, but it is the Minister who has the power over the environment. It has been re-interpreted like this. It was the MoEF that issued this circular saying that for linear projects we don’t need to deal with all of this. We can just take over that land and we can have our projects. The Ministry of Tribal Affairs has become the one ministry that is concerning itself with what is happening in these parts. The Secretary to the Ministry of Tribal Affairs had sent in a letter to the MoEF asking them on what basis they had made this exception. How could you take linear projects out of the Forest Rights Act and PESAA? Where did they get that power from? Of course, there was no answer to that. But it is the Ministry of Tribal Affairs that has been saying that you cannot make these exceptions because there is no room in the law.
You know, there are laws which might have a clause right at the end which says that in the event of difficulties the Central Government can do certain kinds of things. Forest Rights Act doesn’t have that. So you can make no exception. It has therefore been happening illegally. And that’s the other concern that we have had over this period of time because the State has in fact been acting like it doesn’t have to follow the law. That’s something that happened before. That’s something that continues to happen now. It’s in this background that we started looking at the kind of changes that are coming in now.
I will just run through some of the legislation, which have come in. The first thing we have of course is the Land Acquisition Act. If you want the full title, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. Now you have an amendment ordinance that has come in. I am sorely tempted to stop here and say a few words on this idea of the ordinance. When a government that has a pretty rocking majority in one of the houses of Parliament feels that it has to go down the ordinance route there is something seriously wrong. And some of the reasons we are being given for why ordinances are being made. The reason, for instance, for the Citizenship Act being amended by ordinance was because the Prime Minister had gone and made a commitment that he would be changing the status of people PIOs (People of Indian Orgin) and OCIs (Overseas Citizens of India). Therefore, to fulfill that commitment it had to be done through an ordinance before this Pravasi thing going on. It makes no sense. It makes no constitutional sense. And it is unethical for them to bring in practices like this.
So there are two things that are of serious concern and I think maybe all of us need to get involved in it. One is the idea that you can have changes that are brought in by ordinances. We also realize that there is another statement that is doing the rounds, which says that it is alright to have an ordinance, because once you have an ordinance, the next time Parliament meets within six weeks of that Parliament meeting then they either have to pass it into a law or it ceases to be effective. Then you have to re-promulgate the ordinance. There is already a 1980s decision where they have slammed the idea of re-promulgation of ordinances saying that you can’t keep doing this. You can have it as an emergency provision, but if the Parliament after that doesn’t adopt it then you cannot continue that law through ordinance. This idea of re-promulgation of ordinances – it’s a firm statement that has come from the court saying that it constitutionally unacceptable.
At this stage, we are dealing with only the first round of ordinances. Not yet with re-promulgation. But it becomes important because you have a minister, for instance, saying that whatever happens between now and the time that this ordinance lapses will any case be valid and legal; and therefore we can push through some of the changes that we want now, we’ll worry about whether the law gets passed later or not. This is another aspect of unethical constitutional behaviour. It is unconstitutional behaviour. That’s something, I think we really need to worry a little bit about.
The second thing we need to concern ourselves with, in an emergent kind of way, is the idea that if Lok Sabha passes it and Rajya Sabha is going to give us some trouble, we’ll just have a joint sitting of Parliament. There is logic to why we have a bicameral legislature. We have a Parliament which is going to debate between two houses of Parliament and that’s one of the checks that we have in law-making. That a sweeping majority is not going to do whatever it wants. And you have to have two sets of deliberations on this and two sets of decision-making and they have to agree. There is logic to why you have a Rajya Sabha and a Lok Sabha. To say we can collapse these into one, well legally we can do it, constitution permits us to have joint-sittings of Parliament and therefore we will do it, is introducing a convention, I mean it will become a convention if they keep practicing this, which is constitutionally objectionable. While technically they might be able to get away with it in part, it is not something that is in keeping with the parliamentary system as we practice it here. Therefore, it should not be permitted. It’s only to be used in the event of an emergency and there is no emergency for giving OCIs and PIOs a better status or a converged status. There is absolutely no emergency in that. There is no emergency either in changing the law without having debate in public about many of these laws.
See, the Land Acquisition Act when it was passed, it was not a well-drafted legislation. It was done when Mr. Jairam Ramesh was the Environment Minister. If we read it a little carefully, we find that there are problems in that law. It is far from perfect. But one thing that they tried to do, which is also part of the reason why it doesn’t work, is that they tried to keep the interests of multiple groups of people and say that we will take all of that on board so that nobody can complain. Now, these are conflicting interests. They are not interests that can just converge and you can’t say, ‘Let’s be friends.’ It’s not that kind of a law. So to say that industry says it wants land and it wants the State to help them get land and therefore we will do what is necessary for industry to get the land..!
See, what is it that prompted the changes in the law? It’s not like the State did not have the power to take land, when it wanted to under the Land Acquisition Act. Unfortunately, one of the things that as academics and as activists, to an extent, we have failed in doing was to tell the State, to remind the State and to question the State about this idea that the State is sovereign over all land in its territory and it can do what it wants in all that land in its territory. The idea of Eminent Domain has never been that the State has control and sovereignty over all land in its territory. That’s a misconception. Eminent domain is a limited doctrine. That doctrine says that the State can take ‘private’ land for a ‘public’ purpose on payment of compensation. It has nothing to do with land which is not private land and it has nothing to do with just taking land away regardless of whether there is a public purpose or not. While courts may be unwilling to take on the challenge of deciding what is in the public interest and what is not, for the public in a democratic space that is still up for debate. So this power that they had for taking private land for a public purpose has slowly become, you know, has acquired a certain proportion where the State says, ‘Well if I can take private land, I can use any land in any way that I think it is good, any way that I think constitutes a public purpose.’ It’s like the State ultimately holds control over all the land and the people are subjects of the State.
It was 2004 by the time the Supreme Court had started using the language of subject. In a 2004 decision, the Supreme Court says that there is no question of the State having to buy land, there is no question of the State having to acquire land, which is already in its possession from its subjects. Now I think it’s time that we started asserting that this country doesn’t have subjects anymore. We’ve moved way beyond the idea of subject-hood. There are citizens in this country and the State is bound by the law. It needs reassertion. And the Eminent Domain doctrine and our allowing it, in one sense, we didn’t challenge it. We only said don’t use the Eminent Domain power like this. We haven’t sufficiently challenged the power itself and the kind of interpretation of the power that exists. So that’s been one of our failures that’s we urgently need to set right. We find that problem re-emerging when we see what is happening now.
The reason the 2013 version of the Land Acquisition Act was brought in, was not because the State was thinking well this is a hundred year old law and we need to change it. It is because they were pitched battles around the country. The major one that we knew in the early years was Narmada, but Narmada was neither the first nor was it anywhere near the last. I think there are some maps that have been drawn of the kind of battles that there are all around the country and its difficult now to even put a dot because it is everywhere around the country. Why is it that there is such a problem? The reason that we have this degree of problem is because of the experience that people have with displacement.
The significant difference between the earlier 1894 law and the 2013 law is that in the 1894 law they essentially talked only about land owners and those who have interest in that land; now that interest had over time come to mean only ownership, title, and related interests, not other interests. But by the 1980s, it was very clear that the project of development in this country was producing mass displacement and mass displacement is not dealt with, in fact, displacement itself is not dealt with under the Land Acquisition Act of 1894. Because 1894 Act basically said that it is an Eminent Domain principle where they say, ‘Okay if we have a public purpose and we need to take that land from a private person and hand it over for that public purpose, the State intervenes, buys that land and hands it over for that public purpose.’ By 2013, we certainly knew that the effects of the development project were far vaster than anything that the Land Acquisition Act of 1894 could deal with. That change is what resulted in the 2013 law and that is reflected there too because the government of the day recognised that we have to reduce conflict. There are people who are upset. The understanding was limited.
At that time, just outside Delhi, those who owned land in Noida, their land was being bought over for the urban development project. They had earlier been told that when they land was bought there would be factories, and other things coming up which would provide them with a certain amount of employment. So they would get their compensation, they would also have jobs which would keep them in a certain degree of dignity. When they found that that land was actually being converted into housing, it basically meant that the jobs that exist are domestic help, chowkidars, and so on. They said this is not what we gave our land for and this is not what we saw as our future. Since you are changing all of this, you’ve got to change the amount of compensation that you give us.
So when the 2013 law was being discussed and debated they found that what these Noida people are saying is that they want more money for the land that they are giving up and that got extrapolated to the rest of the country, which is a completely fallacious understanding of why people are saying no to many projects. The whole uprooting of lives that happens, the urban periphery responds very differently to change of this kind from how you have people in places more far-flung ,where they do not want the project because they see the project as destroying their lives, which has a very different consequence.
Therefore, the 2013 law is a kind of politically correct law. As a lawyer, I can tell you that it is not a very workable law in certain provisions but not with the provisions that are sought to being changed now. What is being sought to be changed now is to make it more pragmatic for the State to be able to go ahead with its development project. And that’s reflected, for instance, in the terms of reference of TSR Subramanian Committee when it was set up. The Committee was told that it should re-look at five laws, it later became six, to help meet the ‘objectives’ that the State had set up. So the objective of environmental law was no longer the environment. The objective of forests or wildlife law was no longer forests or wildlife. It had to be re-tutored to fit the objectives of the State as it exists today. And obviously, we are going to get garbled laws.
So the 2013 law, with all the problems that it had still tried to put in a few politically correct positions in and when it is politically correct it doesn’t become just politically correct. Some of them were extremely important. The idea of consent, for instance, did not come only in 2013. The idea of consent has been there, for some time now, especially since 1996.
So just to pause for a bit there and move to this, see many of the places where this development project is being taken are places in the Fifth Schedule. The Fifth Schedule are areas that are constitutionally recognised and where it’s not that the majority of the people there are tribals, but a large number of tribals live in those areas. The idea of the Fifth Schedule was the need to protect the life, the custom and the relationship with nature of these communities. Therefore, the State steps into the fifth schedule areas not just as the State, but as a protector of those interests. It’s a different role. If there were to be a Parens Patriae principle, which is not a very comfortable principle, but which is what the State very often speaks about when it speaks to people, it would have been to ensure that the rights and interests of the tribal communities are not impacted. What’s the fundamental thing in the relationship between the State and the tribal in any scheduled area? The fundamental thing is for the State to ensure that land is not transferred away from tribal communities. It should not be given to non-tribals. So for a long time, the only person who could take land, the only entity that could take land from a tribal for a public purpose was the State. Now we see that the State has been diluting, over the years, it’s not just happened now, but now it is acquiring a new kind of momentum where the state is now stepping in saying, ‘We have our own vision of what we want this country to be and what we need to do for it we have the power to do. If we have the law with us, we will work with the law. If we don’t have the law, we will create executive ordinances.’ If we don’t have either, I presume, it will be brute force. Because it comes to that where people are seen as obstacles to development, and that’s what we are seeing happening in this.
So when we look at the new land ordinance, what are the kind of changes that they are asking for? It’s an interesting explanation that Mr. Jaitley had. He said that they wanted this ordinance to come in a hurry because by December 31st of last year, if they did not do something urgently, then fourteen legislations that are scheduled to the 2013 Act would cease. In those places there would be no rehabilitation, none of the procedures that are there under this law would apply to those kind of acquisitions. They include legislation within that like the Railways Act, the Electricity Act, Acts relating to mines, highways, the Metro, atomic energy, and petroleum. All these would then get exempt from the Land Acquisition Act. So he says that the reason that we needed to bring in an ordinance is because we wanted to save those laws and those who get impacted by action under those laws. We didn’t want them to get excluded from the Land Acquisition Act. That’s why we brought this in. But, I think, anyone here would be able to advise Mr. Jaitley that if you wanted to make an exception to that 105 and bring that into force, all you need to do was have an ordinance which related to Section 105. You don’t need to have all kinds of changes made to the law through an ordinance because you feel that you want to save people who are going to be affected by that schedule. So now the explanation that is offered for us is by bringing in this ordinance we have made sure that people who are going to be impacted by projects that might have got excluded from this law, they too are going to be included, so we are pro-farmer, pro-people who are going to be displaced. That really didn’t need this kind of an ordinance.
There was a debate that went on when the 2013 law was brought in. The Supreme Court has played all kinds of roles in this and their understanding is also skewed. I can’t tell you by what, but it’s often skewed. We find that under the Land Acquisition Act, the earlier one, once land is acquired by the State – there is a Section 04 notification, then a Section 06 notification – they pay the compensation, and then the State takes it over without any encumbrances and then it belongs to the State. Now what happens if the State does not go ahead with the project that they said they wanted to go ahead with? What happens then? The land just lies fallow. What happens to it? The idea of this land being returned to the person from whom it was taken is not there in the Land Acquisition Act, in the earlier Act. So they never returned it. It became then State property.
Since 1950s, the question has remained – who is the State in relation to land? Is the State a landlord? Is it a trustee? Is it a super-landlord? Is it an owner, a super-owner? Is it above the law? What is the State in relation to land which is with them? And that is an un-answered question. And I think it is time we start finding answers because it is becoming urgent now.
Now when they did not return that land and there were people who challenged it, they went to the court. The court came up with this, not once but twice over, they said that this land not only cannot be returned under this law, but ought not to be returned to the orginal owner. And why? Because if you were to auction this land, then it would fetch much more and by not auctioning it and putting out in the open market you were depriving the treasury of what should duly be sent to the treasury. Land by then had become a marketable commodity and it had ceased. The moment the acquisition is complete the person who originally owned the land has no longer any interest in that land. They are like anybody else. Therefore, it cannot be returned to them because by now they are like anybody else.
So when the 2013 law was being negotiated one of the things was, we will give you a reasonable amount of time. If you have been able to justify public purpose, you are able to say that this is something that you need to do, okay. Take it. But within a certain period, if you have not utilized the land for the public purpose for which you took it, return it to the person from whom you took it. When the 2013 Act came in and they were debating it, initially they said it will be returned. Give a period of five years. If in five years it is not done, we will return the land. But by the time the law actually came in, they changed that and said – if in five years it’s not done, it maybe returned or it may be put in to a land bank, which the State will keep. So now the State becomes owner of land through creation of land banks, with land that was, in one sense, illegally acquired because it is not used for the public purpose for which it was taken. So it’s actually not even legal that they should have taken it. That use of the law to do whatever they wanted; they use it take more land and have control over the land. Now what have they said? In the present ordinance, they say that if land that has been acquired under this and is not put to use within five years or any other period that may be specified, whichever comes later; if I say for the next 25 years I have this grand plan of whatever, creating Twin Towers maybe, I don’t know because there are all kinds of ambitions afloat; and it’s not done. This is treated as public purpose. It’s not done in five years time. It has not even begun in five years time. They can just say we plan to do it over a 25 year period. There are no limits on this kind of time. So the idea of returning that land or of relinquishing that land even to a land bank doesn’t exist now.
Laws are not made in vacuum. There must be some logic to why the law was made this way. This is about taking control over land and we need to understand what that means. If the time limits that are offered; five years is not a short time. What we found when we were reading this was that on the one hand we say we need to shrink all procedures. In sixty days, let’s do everything electronically. Nobody needs to survey the land. We’ll do it through GPS. You don’t need to go find out if people are there or not. Make electronic applications. The turn around time will be really quick. We’ll give you all of these permissions. You start your projects. Then you say, but we may give you longer than five years to even begin the project. So there is something fundamentally a problem there.
One of the things that we found in the earlier dispensation, which is continuing in this, which this dispensation has not bothered to change, and which this law does not address at all, is this emerging scenario, it has actually emerged now, of the State becoming a contracting party with corporations. When we did the tribal committee report, we went to the different state governments, but we did a little bit of survey of what we could find. And we found that in Orissa and Chhattisgarh, for instance, there are large numbers, I am sure it is across, these are two that we found because they are Fifth Scheduled states, large numbers of MOUs between companies and the State. If one state the size of Chhattisgarh is going to have 168 MOUs for various kinds of projects, and sometimes multiple MOUs given to the same company. Like SR might have four places where they are asking for land or the Tatas might have four places where they are asking for land. So the big guys having large amounts of land being allotted to them. There are many other players. Many of them totally unknown. Who, for instance, if you say coal mining, they perhaps have never mined coal in their lives, but they take it anyway. They get the license and they can transact on that license. So we saw the whole coal scam emerge in this period. All of this part of this MOU culture that has come in. This MOU culture asks very little. If you read the MOUs, you’ll find that they ask very little in terms of what the company is supposed to deliver. It talks much more about what the State has to deliver to the company.
So to give you two, three things that should worry us, it has been worrying some of us over this period. One of them says that there are environmental laws, but the State makes the law, and then it finds that this law is actually a bother. So the State gets in to an MOU with a company saying that we will help you get expedited environmental clearance. So too with the forest clearance, they say we will help you get expedited forest clearance. Increasingly we are finding the MOUs have started saying we will help in the maintenance of law and order around your project, which is basically about conflict between local populations and corporations that want to go and settle there. The State, you need to think of it either as an neutral entity or as an entity which is going to support the weak, because that’s what the Constitution talks about as the role of the State. You find that they are getting into relationships with the more powerful.
Expect, of course, if you were to go to some of these meetings and hear the corporations, you will feel that they are really weak! They need human rights and they need all the protection that they can get. Sometimes it’s like meetings are parodies. They are not meeting at all. When they say, ‘What do we do? We are happy to bring all these projects and pump our money into it, but we are helpless. All these people on the ground are preventing us from doing anything. So the State has to make sure that we get the land, and protect us at our operation.’
I think Madras had one instance, which Justice Chandru’s court had given a decision. This was a case where Dow Chemicals had asked for an injunction. They said that if people come and do dharna which blocks the ingress and egress, then it was going to affect their business. Therefore, they wanted an injunction. They said nobody should be allowed to come within 500 metres of their office and everyone should stay further away so that they can carry on with their business as usual. I think, Justice Chandru had given a decision where he said that anybody wanting to come in and do their business in India has to confirm to the rules, laws and the Constitution of India. The Constitution of India gives people the right to protest. So it maybe inconvenient. It might even result in some losses for you, but that is the constitutional position here. You come if you are prepared to respect the constitution as it is here. Now, that gets often forgotten in many of these things. So what we have in the law therefore today is we are back in a place where we (State) are saying that we’ll keep this land with us, we can keep it as long as we want, we can use it we want to and we may not use it, and we give ourselves a long leeway.
There is another thing that has happened which has also not got stopped, which this government has continued. We have had fiscal deficit in this country for some time. So the earlier government had put together a committee, Vijay Kelkar Committee, on fiscal deficit. Now normally those of us who work on land and issues such as this may not have read that too carefully. It just happened that it came within the notice of some of us that we need to read it. And we find a little clause there that says that there are many agencies of the government, which have excess land with them. Now that excess land, for instance ports, railways, public sector corporations, they all have excess land with them. Now if you were to sell that excess land, then you can use that money to start dealing with the fiscal deficit. These lands which are now being asked to be sold off were originally purchased under Land Acquisition proceedings. Most of them. There is a history to each of these lands. The purpose of the Land Acquisition Act can never be to deal with fiscal deficit. You can’t say I will buy from my own people and then I will sell it to somebody else at higher rate and I’ll make some money and I’ll use it for fiscal deficit. That doesn’t even deal with fiscal deficit. Presume they are saying that we take it from our people but we sell it to somebody else outside. This way of dealing with fiscal deficit is unethical. Between unethical and illegal, it is actually quite a thin divide. But in this case, the Land Acquisition Act certainly doesn’t permit this to happen. You find that kind of prescription that was given tells us a couple of things. One that in many cases there has been over acquisition of land and that’s important when we think of what the government is trying to do today.
In the present land ordinance, they have said that they don’t want to have social impact assessments, right? It’s one of the big things that they have said. They said that social impact assessment is time consuming and it is disruptive. So we don’t want to go through this process. I just want to say two things. One is that under the Land Acquisition Act as it existed, the 1894 law, there was a role for the Collector. The role for the Collector was to listen to all objectors, to collect their objections, and to report to the State on whether the project should go on there. He had a pretty big role. That role had shrunk in to non existence through non-performance in many of these cases. It had become like a symbolic role. Second, in the 2013 Act they started saying alright let’s have professional social impact assessments. Now I must confess that it needs more debate. I don’t know if it’s just social impact assessments by private agencies, which is a good idea. We know McKinsey, Price Waterhouse, whoever, the kind of reports that get produced and the kind of accusations in many places, kind of things they are facing today because they did something their client wanted. They knew what was expected of them and you are not going to continue being a consultant if you are not going to give at least something of what the person who is appointing you is going to ask you for. So I am not sure this is the best route anywhere, but I don’t think that there is denial that if we do not know what the situation is on the ground – how many people are getting affected? Is this the best place to locate a project? How do we make sure this is the least displacing alternative? Is there anything else we can do with it? And what will be the long term consequences so we can establish foreseeability? Can we anticipate what kind of problems will exist after this? If there is going to be there a denial saying that no, nothing is going to happen and something actually goes wrong with people’s lives, it might be impoverishment. It might be in Kalinga Nagar, the local tribals dying because they were drinking poisoned water. It might be a number of things that happen. But if we are not to have any awareness of that, how can any State do any planning? So why would a State want to dispense the social impact assessment without putting anything else in its place? There is actually no role. There is nobody who has got a role, which will help the State understand what will happen to local populations. And that was what the social impact assessement was about. Now they say that it is cumbersome and obstructive. It is a hurdle. Throw it out of the window. And that’s hugely problematic.
We find that when we look at something like Vijay Kelkar Committee Report and the VKC Report did not remain a report. There are many parts of the report that didn’t get followed up, but this has got followed up where they have started selling and auctioning the lands from these various projects. What does that mean? It means that there was over acquisition at that time. Over decades, they have not used that land at all. Then land becomes real estate and they convert it into real estate which they can use for making profit for themselves, when you have actually displaced people in that process. There is no answer-ability in this system at all. Social impact assessment, in whatever form it might be, we may need to engage a little bit on that to figure out what form will work, but as a concept it is something that will tell us what the problem is on the ground. What this idea of wiping social impact assessment completely off the slate does for us is what the problem is on the ground so that you don’t have to be prepared for anything. You just take the project on and then, I presume, something will trickle. That’s the expectation. I am not sure, what that something is.
The other very interesting change that they have made in this is that the 2013 law deals with private companies and that was problem enough because using the coercive element they said that 70% consent or 80% consent from people. It’s a quibble in a sense. Initially they said the 80% of affected people… have to give their consent. First you need to know who the affected people are, right? Now that becomes a problem. The quibbling still goes on whether it is going to be 80 or 70 or 60.
But they have shifted from the idea of private company to private entity. Any private entity can become part of this law. What the corporations are constantly talking about is that you (State) have to make rehabilitation happen, it is too expensive, we can’t pay so much. If the actual cost on the people in the community is going to be so much, then who is to bear the cost? Externalizing the cost means it falls somewhere. If it is going to fall on the local population, obviously it is not going to reduce conflict. It is not going to reduce the social cost it generates. So it’s got economic costs, transaction costs, social costs. It’s got multiple costs, which will all be unaccounted for in all of this. And that’s now going to be extended to private entities also. Because the fact is, if you look at the 2013 law what they do not change in the present dispensation is where the earlier law says that the project proponent does not have to do the rehabilitation, they don’t have to worry about it. They just have to pay for that rehabilitation. So they give the money to the State and the State is supposed to rehabilitate. I really want to know where they get this confidence from, that a State that has never delivered on this is suddenly going to start delivering on rehabilitation. It never has. It’s been one of the biggest problems in our situation. They simply don’t have either the mechanism or the political, I won’t just say will, the kind of alignments that are needed within an establishment for them to be able to deliver. So it is an impossibility that is being placed there.
Interestingly, they have one clause there which they do not dispense with here. But I am wondering what are they ways in which this will come. They say there in the 2013 law that if rehabilitation is not complete, then you can’t have change of land use. See, we have a system here. There is private land and thenthere are other lands. All these have a certain land use. There is a land use pattern. You can’t just shift, for instance, from agricultural land to industrial use unless you go through that process. They say for the completion of that process where you can actually have your project there, rehabilitation should be complete. So the company will pay or any private entity will pa,y after this ordinance becomes whatever it becomes. And then the State will have to rehabilitate, but somebody has to certify that is done. That’s all it’s going to require, a certification. Now who is going to do the certification? Because till that certification is done they can’t carry on with that project because you can’t change land use pattern. So you can’t make a habitation into a mine or into a plantation or anything that you may want it to be. What we then have, in relation to land, is the exceptions that they want.
The other grand exception that they want here, I am sure those of you who followed the debates at that time, the idea of mutli-cropping agricultural land being shifted to some other purpose, to industrial or any other purpose, was much debated. And finally they brought in, kind of, half-hearted protection of multi-crop rich agricultural land, that you don’t divert it to purposes which are non-agricultural. The country also needs food security. Therefore, you need to protect it. The idea of food security has, therefore, been brought into the earlier law. Now they are saying that they want to exempt it in a variety of projects. What are these kinds of projects? For projects of national security and defense of India, now those are broad enough. Of course, after the Subramanian Committee Report there is one more kind of idea that has come in, projects of strategic importance. What they mean, I will leave it to your imagination. Then you have rural infrastructure where you are including electrification and all of that. Portable housing. Industrial corridors! So you can have all of this, you don’t have to worry about agriculture, food security and all of that. You had no social impact assessment where it has to do with industrial corridors, then infrastructure and social infrastructure projects. As of now, I think, hotels too fall within this social infrastructure projects. And they want exemption from all of this for the process that is there in law. Most of us by now we know that if there is no process, there is no protection and there is no answer-ability of the State either. You can’t talk about transparency in the title and then have no transparency at all in the way in which you function.
The kind of ordinance that they have brought in now threatens to bring it down to a point where there will be changes that are brought on the ground through executive fiat. And that is something I don’t think any of us can sit back and take. Now the last thing, which I found completely bizarre. I don’t know why they have done this. See, many legislations have what is called a good faith clause. Where administration has to act, towards the end of the legislation they will have something called a good faith clause – anything done by any official acting under this law will be presumed to be done in good faith. So if you want to challenge what they have done, you want someone to be prosecuted under that, you have to be able to establish that it was not done in good faith. T
his is the first time that I have seen the law, I mean, lawyers here will perhaps be able to tell us if there are other examples in legislations of this kind, where you have the introduction of Section 197 of the CRPC. What is Section 197 of the CRPC? It is actually being contested everywhere else. In cases, like, where there is torture, you can’t have prosecution of the person who has committed torture unless the State gives you permission to prosecute them. Since so often they themselves are agents of the State, they are officials of the State, it is very difficult to get that sanction. And the sanction power has been contested. It has been contested for a long time now. And it seemed very clearly as an over protection of State agents, especially, where you can clearly see that there has been a violation of the law. You at least have to turn it around. See, the reason that this is given is because administrators will find it impossible to function if any disgruntled person can go and file a case against them. So we have been saying for some time now we understand that. I mean as many persons who work on the ground we’ll be able to see how easy it is to paralyze a person by foisting cases on them. That’s the technique the State often uses when it comes to non-governmentals, for instance. So when you use it on a State official it might paralyze their function. The way you can turn it around is by saying that alright, if there is anybody who is making a request for prosecution, if there is an application for filing a case against a person, the State can consider it within a set time. Maybe three months and give their response on whether they are giving sanction or not. If they decide not to give sanction, then they will have to give it with reasons for why they are not giving sanction. Then those reasons will be justifiable. You can go to a court and challenge those reasons. At least it will mean that the State first of all has to apply its mind. Second, it will mean that there is some kind of answer-ability of the State. So they have to give reasons and then they will have to answer in a court. For a person who is outside of the state apparatus and is feeling victimized by it, it happens quite often, they too get an opportunity to fight their own battle. There is at least an arena where you can fight a battle and a law that supports you asking these questions. Section 197 is a much maligned with reason provision. While we are trying to remove it from torture, they have introduced it in to Land Acquisition, which is basically saying now they will have a free hand. They should be allowed to function under this law, however they want to function and nobody can ask any questions. You come and tell the State. The State will decide whether they need to be prosecuted or not. So they are introducing a 197 into the Land Acquisition legislation. That’s a bit extreme. Since many of these things are not explained it’s difficult to understand why they did it.
You know, there are two other legislations in relation to land. I won’t say too much about them because I don’t know if Madras will be enthused by it or Tamil Nadu will be enthused by it. But I have a suspicion that in this group there might be people who will be interested. So please pick it up if you find it is of interest to you. This is the Panchayat’s Extension to Scheduled Areas Act and the Forests Rights Act. Forest Rights Act, I find particularly fascinating. In 1980, they brought in the Forest Conservation Act. When they brought that in there was already the Indian Forest Act of 1927. The 1927 Act was consolidating what had been there before. If we read these laws carefully, we find that the 1927 Indian Forest Act was about the State saying that timber of commercial interest should be within the control of the State, because we have multiple projects whether it’s the railways or anything we may think of; we need to have access to that timber and nobody should be allowed to cut it without our permission. Anybody that does something that the State says you should not do under the law or under the executive guidelines that come under the law, we’ll take it away from them and they will be penalized. So this is how you had the idea of the reserved forests. They were reserved for the purposes of the State. Purposes of the state, especially after 1950, became purposes for which the State allowed certain sets of people to use it. So it might be whole forest areas of land being given to certain companies because it was part of the project of development. The 1927 law, therefore, if you read it carefully, is really about saying that they are reserved, they are protected, they are village forests, it’s revenue forests, which if they are not handled properly which if they are not handled properly can taken over by the State. So the State was asserting its control over these forests and it is right to do what it wants within that control.
By 1980, the agenda had, at least the rhetoric had changed. We were by then talking about environment, about having to half the silent valley, Mrs. Gandhi was also talking about saving the environment, saving our forests, wildlife. In the Forests Conservation Act, it’s a very small legislation, even for non-lawyers it is an easy law to read because it just has some four provisions in that. All it says, essentially, it says we are shifting control from the states to the Center. It was not about relinquishing control. It was about shifting control about decision about diversion. So it did not say that we will not divert land or we will have certain norms which will be put into the law about non-diversion. It said that the power to divert will shift from the states to the Center, because the Center can then coordinate for the whole country and 33% of the land mass has to be under forests.
By now, I think, all of us also know that there are large parts, about 23% of the land mass of India has been with the Forest Department because of the Indian Forests Act. Of these reserved forests, large areas under that don’t have any trees because they were made for commercial use. They were not meant to be forests. It’s all actually depleted. So when we think of the Forest Act, we think of Forest Department, and Forest Conservation Act, we tend to imagine that we are talking about conservation of forests, that we are talking about generation of forests and of preserving any kind of forest heritage that we have. The fact is that that’s not what it is about. We read the law carefully. We find that it’s about the State having control over forests and control over the decision about diversion from forests to non-forest purposes. So the 1980 Act did not really, therefore, I mean, it put a little bit of friction on diversion, but it did not stop it.
So if you read the TSR Subramanian Committee Report, they say that in all these cases when people ask for permission, when project authorities ask for permission, it takes a long time. 99% of them get the permission anyway. It’s just that it gets delayed. So we need to hasten that process. That tell us what this Forest Conservation Act does. It gives the Center the power to decide diversion and that’s something which is becoming important for us to recognize now.
The Forest Rights Act is fascinating for many reasons. One of them is this, I personally think we need to have a wider discussion on this, that 23% of the land mass which was just under the Forest Department, in these places anybody who was there whether they were forest dwelling communities, whether they were forest tribes, whether they were people in forest villages that are recognised as forest villages, whatever, all of them were perpetually vulnerable to being treated as criminals within that system, as offenders within the system. If you were to go, when the Forest Rights Act was being implemented, it’s being implemented even now in various ways and various shapes, you’ll find that many of them show their long vintage in that area, long residence in that area, they’ll have these pink slips which are evidence of forest offenses of which they have been charged from many many years ago. That establishes that they have been there for a long time.
What’s interesting about the Forests Act is that it does not give people rights. It does not say, ‘Oh, you are all forest dwelling communities. Oh you poor people, we are giving you rights.’ It says, ‘We recognize the rights that you have and we are setting right a historical injustice done to you. You were actually right to be where you were all along. We criminalized you. We are now withdrawing from that. We are recognizing a right that you already had.’ So in this whole area where you have the 23% of forests, the Forest Department has had to start relinquishing control. They have to start giving up some of their control because it is not about the control by the State. It is about recognizing the rights of people in that area. So this in that sense a historic moment. It’s a very important moment which many of us are missing. Maybe we need to pay some attention to that, especially now, with all these forests and tribal communities being asked to be decimated in the project of development.
One of the things we heard very often in many places from among the bureaucracy when we went on the tribal committee work, was that they said ‘What Madam, you are saying tribal, tribal. What tribal? They also want education. They also want health. They also want employment. They want something that everybody else wants. What is tribal about that?’ The two things that they refused to acknowledge was because you want health, should you not want health and retain your interest in your land and your community. So the idea that if you want what is mainstream you have got to be mainstreamed and integrated and therefore you have to lose what you have your tribal identity, has become part of this development language, which you hear everywhere. You want to be part of development, you stop being this tribal who is under-developed. There’s a deep contempt or a disdain. There’s no acknowledgement of what tribal life and tribal communities are about. They may be good, bad, indifferent. I am sure they are different in different places. There’s no understanding at all when we say this. And this is what is informing policy today. I think, that’s going to be another huge problem that we will have to look into.
The second thing is when the Land Acquisition Act came in, they introduced into that, they said that if you are going to have tribals in the forest, then you need to go through the PESA. You need to go through the process. You need to consult with them. And you need to get their consent from 2010 on. You need to get their consent for any project that you are going to locate where they are. This is obviously a problem for many of these people. That’s why when they talked about linear projects they said let’s exclude that because if we have it there then many of these communities maybe saying why do you want to put the road through my village you take it a little away, we will use that road when we want it, but we don’t want it going through our village. So you don’t want to give that kind of option. So they want to destroy the idea of consent. But what I found deeply disturbing was that they had even put the land that comes under the Forest Rights Act, in whatever form, within land acquisition. Because if you place it within the Land Acquisition Act.
You know to draw an analogy which may not be accurate but which also has the same kind of resonance; you know sometimes we think if it comes from the UN it has to be good, and sometimes it’s not quite true because sometimes they don’t get it. So to my mind, the convention against the worst kinds of child labour is really not a great piece of work at all, because what it says is that in the worst forms of child labour you include things like using children in pornography. It is not child labour at all. It’s a crime. By using this language of child labour, we are actually giving a kind of, it’s only an offence, it’s something you shouldn’t be doing, it’s not good, it’s immoral, but it doesn’t have the weight of it being a criminal act. That kind of dilution that happens in many legislations and it happens in this kind of a scenario too.
What they have done is by putting in the Land Acquisition Act they have made it appear like those who have land recognised through the Forest Rights Act, their land too can be taken away under the processes of the Land Acquisition Act. The Land Acquistion Act, the 2013 Act says that you have to go through the PESA hearing and whatever, but it does still say that it is amenable to the 20% of whatever forcible acquisition. The idea of using a statute to take land from one person and hand it over to another, has an element of force inherent in it. We don’t need to look beyond it. The dilution of various norms within the law will mean that… today, I think all of us must have seen in the paper that somebody from Greenpeace was stopped and not allowed to travel out. In our report, the Tribal Committee Report, we’ve used the work that they did on Mahan, because we got it confirmed from other sources too, including from within Government that what they were saying was not wrong. The consent in the Mahan project had in fact been acquired through fraud. People were bullied and threatened. They went from house to house and they got the consent. People did they say that it did happen, but yet it is in the power of the State to decide what is okay and what’s not. What can be investigated and what cannot? Who can investigate and who cannot? When this kind of power exists, then to place somebody within a law by itself makes them vulnerable to the power of that law. So there is a problem with having the Forest Rights Act.
The second thing is, when you go to those territories you will find that people will say we are happy to have this recognised and to get a patta because now we can mortgage this land so that we can send our children for their education. Now mortgaging the land will have to be done with some private entity whether it’s a bank or whoever or with the State. If you are not able to pay back, what happens? You lose the land. Now the protection that is offered that tribal land should not be alienated to a non-tribal gets broken down through this process. So if a State can see where this recognition of this rights is happening people are needing or thinking even in terms of mortgaging that land, the requirement of that local community has to be seen to protect their relationship with the land. That doesn’t happen at all. Instead it seen as one of those points through which we can make an entry to get the land from them. This is the kind of dangerous trend that we see.
See, there is one thing that we were taught during this process which I think maybe we need to think a little about when you look at the PESA it is actually called Provisions to the Panchayat’s Extension to Scheduled Areas Act. Initially, I didn’t understand the significance of this panchayat and none of us in the committee did. We had somebody coming in from Jharkhand who is himself a tribal who said, ‘Just sit down, I’ll give you a constitutional lesson.’ I must confess, it was hugely humbling to have him tell us because we were all a little impatient. We had only six months in which he had to finish all our work. What he told us was supremely significant. He was saying that you have the 73rd and 74th amendment that came. You have the panchayats that are described under that. But when you look at the provisions in the constitution you will find that this does not automatically apply in Scheduled Areas. For it to apply Parliament has to make a law. It has to make law which will make provisions of this panchayat law from the constitution apply in scheduled areas.
And that is because, to give some of the things that are in PESA which explains it; any legislation under PESA says has to be in tune with customary law, social and religious practices, and traditional management practices of community resources. So the general panchayat law may not account for all of this. So when you look at the general panchayat law and you look at PESA, which is the law that has been made to extend some of the provisions of the panchayat law to the scheduled areas, you find that it is a completely different thing that you see. Because there we are talking about autonomy of local populations. You are talking about relationships between the tribal population and the resources. You are talking about their own recommendations to the State, of what they think should be development in their area. You are talking about consulting with those populations before you proceed to do anything else. And for the past year, there has been a proposal which is floating, which says it should not be consultation, it should be consent of that population before you can do anything in their area. This is totally different from what you have in general panchayats. And that’s because you are thinking in terms of protection of the rights of these communities and of their lives, and their lifestyles. Now that is somewhere getting lost, but at least in scheduled areas you still have it where there are panchayats.
We noticed that there was one thing happening, which is that municipalities, in 73rd and 74th you have panchayats and municipalities, the same rules apply to municipalities; in municipalities too, you need to have a law that is made by the Parliament which will extend some provisions from the constitution to those municipalities. No law has been made so far on municipalities. So what we are finding in the scheduled areas is that there is an attempt to make more and more parts of panchayats to integrate them into the municipalities and bring them in under the regular municipality law, which will not give the tribal protection, the protection the tribals get under the law. It will be shorn of that. And that’s unconstitutional. As a lawyer, it’s a word that keeps coming back, because many of these things are totally unconstitutional. You cannot have creation of municipalities.
Now when they talk of having smart cities in fifth scheduled areas, they cannot do that till they have a law that is passed by Parliament which deals with what municipalities will be in scheduled areas. So this is some parts of it.
I think I’ll just quickly, honestly there are many more things; but I’ll just quickly run to the labour legislations, because that’s the area where we see some of this happening. It’s going to have a huge impact. We are talking about displacing populations, which will then have to re-equip themselves to become part of mainstream work and that work is getting reconstituted. So in many places we find like there are at least three sets of law that are being brought in now. One is revamping of the Factories Act. Actually there is one thing in that Factories Act revamping, which is not altogether bad, but it is not good enough. And that again has to do with Bhopal. After the Bhopal Gas Disaster, when the government was in the court, and they were battling the Union Carbide in (19)87; at that time the Government was saying that with the Union Carbide there had been a design defect in the plant and it is that design defect that had resulted in, that was at least partly the causative agent of the, which caused the Bhopal Gas Disaster. And Union Carbide was saying that that’s not true, it’s a great design, it’s just you people who operated on the ground in India you’re not good enough, and if you were to deal with it properly then disaster would not have happened. Of course, I think by now that’s a myth that has been broken many times over. At the time that this was being debated in the court, in 1987 you have an amendment that is made to the Factories Act. And many things that are there in the Factories Act in relation to hazardous processes was introduced then. Along with that, they slipped in one provision, which gave any company that was going to come in, they said anybody who is a manufacturer, importer, seller, designer, of any plant or machinery were to come into India, and they were to sell it to an actual user, who gives a written undertaking that if properly used it will not result in any health damage, damage of any kind, then prima facie it absolves that person. Think about Union Carbide when you say this. It will absolve them of any liability. So even to begin with you will say, ‘No, no, no, no, it could not have been the designer’s fault, because you as the actual user gave a written undertaking saying that if properly used nothing will go wrong. So if something has gone wrong, it is because you did not use it properly.’ It was slipped in. Many people within the government were aware of it. They felt that it was not a correct provision to be there, but it has taken years and years and years before finally now and this is one, it is not a full silver lining, but at least it begins to, there is at least a glimmer there, that now they are saying that this is not the language that we are willing to use. It is not about if it’s properly used, but they say as far as practicable if you can make sure, ‘as far as practicable’ is still something we can challenge, you have to make sure that your design or machinery will not cause any harm. If you are able to do that, then if you have breached that provision that’s where the problem comes in, the penalty is very meager. They say some three months. Now when you have massive, you know that comes after Bhopal Gas Disaster. You can’t have three months as punishment for anybody. It’s like an insult to people who are going to die. We have had about 25,000 people die of the Bhopal Gas Disaster already, and to say that you will have 3 months imprisonment or 1 lakh fine is not saying very much. But it is still a shift from where we were, where we were putting the burden on the local and completely absolving the global. I think that shift if this comes through we would have at least taken one step towards improving that situation.
I must, however, make just one mention that, you know, you have the National Green Tribunal. Now they want to dilute the National Green Tribunal. It’s not going to be that easy, like some journalists have been saying, it’s not going to be that easy because too many people are watching it and too closely. But the National Green Tribunal itself has a very interesting, I don’t know how many people really noticed, that the National Green Tribunal is not only about environment clearances, it is also about the fallout of Bhopal. See, when the disaster happened, then in 1991 you had some interim compensation through a law. In 1995, they passed a law called the National Environment Tribunals Act, aptly acronym-ed NETA and like most NETAs it didn’t have a beginning at all. It was never activated. It just sat there on the statute books. The Executive never notified it. And then it kept waiting patiently till it was merged with the National Green Tribunal. And now nobody knows of its existence. Even people who work on the field are not aware that you have some remedies which have built into it. It is a very shoddy piece of legislation, but it is there. That part of it is very shoddy on how they have included the principles of compensation and restitution in to the National Green Tribunal. But this is one of those cases where we have secret-law-making not because the law itself is secret but because nobody tells you it’s there and it takes a long time before you discover it’s there. But it is there, so please take a look at it. It’s something that we need to work on because if industry, does in fact, come like it’s intended now.
You know, it’s one of those ironies. I don’t know how else to view this, except with stronger language maybe. We talk about a cleaner India and then we are asking for pollution everywhere because that’s the only way we can develop. And we haven’t really applied our mind to this at all, because we are asking for dilution of air pollution and water pollution standards. We are asking for dilution when it comes to deciding where you are going to locate industry.
So in labour law, you find that what has become very popular now in this present government is to say let’s have self-certification. And let’s do it all E. You send me one e-application. I will send you one e-acceptance. That will make it quick. That it may actually make it inaccurate and meaningless is getting lost somewhere. And it is also interesting that when the TSR Subramanian Committee was looking at how permissions need to be given, the case that they referred to was the Lafarge case. Lafarge case, itself, deserves to be maligned and it has been maligned by many. Because it’s one case where you have the Supreme Court saying, at the time when this company went to mine limestone they were told that there are no forests. How were they to know that there were forests? Now a company that is going to set up shop in an area, going to do mining there, it left it to some consultant to go and find out if there was mining and the consultant gave them wrong information and they had no idea. So this idea that poor things with their ignorance of what there is on the ground that was endorsed by Lafarge. So to use that as an example, for saying that we need to make things simpler and even in Lafarge they said whatever they said is side-stepping the main issue and looking for comfort in the only place maybe where they could find it. Because if they had to refer to Vedanta in the same way, they might have not got the same kind of answers. In labour laws, they are talking about e-application, e-registration, and you can also e-de-register, which means you can just close and inform the authorities that you are closing.
This is a country where every time we have had failures we find solutions that have nothing to do with the problem itself. So in this country we have had a very poor record of labour law implementation. I think all of us know it. It’s been really difficult to get any kind of labour law implemented. So they are saying let’s not implement, let’s not regulate. Why have regulators? So in the small scale industry sector, now they want to bring a law which will say that forget about Payment of Wages Act, Employment Provident Fund Act, forget about all these legislations, Minimum Wages Act, Maternity Benefit Act; we need to acknowledge that all employers must pay minimum wages, all employers must pay wages on time, all employers must be good to their workmen, or whatever. And then you just have one agency and that’s enough. You go to them, if you have a complaint, you go to them. They will deal with it. So the idea that they had before, in the earlier legislation, where you have an inspector who takes responsibility as the State to make sure that there is no exploitation of labour, that’s totally taken off. So there were certain categories of labour that were always recognised as being exploited or had the potential for being exploited. These were people like contract labourers, especially. Now all those protections now they need to take off and they want to bring in hire-and-fire because that’s only way you can generate employment. As we have seen even now around us, what it does generate in huge measure is insecurity. And there is no means today under the new kinds of laws that are coming in of preventing victimization. So if anybody does make a complaint, if somebody does go and say that there is a problem, they can be thrown off their jobs and there is nothing in law to protect them. By breaking down structures of unionization, by breaking down the idea of regulation and taking away the responsibility of the State to make sure that people are not exploited, and locating that in the inability or the non performance of the State so far, amounts to an abandonment of a whole class of people who are the new working class and the old working class. So this is broadly what they say.
For instance, there are new kinds of terms coming in. For instance, Apprentices Act. Initially when they were amending the Apprentices Act; you know, now we have started watching it more carefully, because many of these seem to have a similar kind of agenda. In the Apprentices Act, earlier you would see that they can be employed as apprentices at the age of 16 up to 18 after which either they get absorbed, but their apprenticeship period will be for that period. Now they say you can employ them at the age of 14 and there is no obligation on the employer to keep them on even when they turn 18. And they can use them in multiple ways. It’s like getting cheap labour, without having to take responsibility for that labour. Maybe I’m a softie on this, but I was thinking, you are even doing it to children now. How far will we go? Why would we want to say it’s alright, lets put children into it, let them do the work? In the Right to Education, we know that there has been a problem with this idea of having Right to Education just between the ages of 6 and 14. When we tried digging out to see where did this 6 to 14 come from, I mean most of our children go to school before they are six and nobody stops their education at 14; maybe today if somebody stops their education at 14, they would find themselves able to stand for panchayat elections in Rajasthan where they want you to be at least have an eighth standard pass. It’s completely ridiculous. But what you have here is 6 to 14 again being endorsed, and then saying that 14 you can use them as apprentices and there is no responsibility for providing continuing education along with that apprenticeship. So all you get is this kind of vocationalizing, with no guarantee at the end of it of being absorbed anywhere or for any agency to take responsibility for placing them anywhere.
This is broadly what we have. I’ll stop now.
This English transcript was done by volunteers in Chai Kadai. Feel free to share, copy, distribute and translate this transcript under this Creative Commons license. Please attribute the talk to Dr. Usha Ramanathan and Madras Institute of Developmental Studies. Recording done by Radio Potti.
Dear President Obama,
I am 14 and live in the Palestinian Sheikh Jarrah neighbourhood in East Jerusalem. Almost four years ago my family and I were evicted from part of our home by Israeli settlers, backed by Israeli court decisions. The process has made life almost unbearable for me and tens of thousands of Palestinians. Settlers are working towards Jewish control of all of East Jerusalem, at times using violence against Palestinians.
This was once a beautiful neighbourhood. Everybody was so close, and before part of my house was evicted, I was never afraid of going to sleep. We used to have no worries. Now it doesn’t feel like a Palestinian neighbourhood any more. All the signs are in Hebrew, and the music too.
The people who’ve been evicted have lost financially and emotionally. My father has stopped going to work for almost a year, because it was so crowded and dangerous and every day there was tension and violence, so he couldn’t just leave us alone in the house with the settlers. The little kids wet their beds. My sister couldn’t sleep. The settlers have a dog in our house and every time it went past, she wet herself.
This thing that happened tore us apart. We were one big family, and now everyone lives in a different city. We are extremely uncomfortable and uncertain about what is going to happen here. Children my age and much younger are regularly arrested, interrogated and beaten by Israeli police, and violently attacked by settlers. For most of my life I have felt unsafe and threatened in my own neighbourhood and even in my own home.
Mr President, you have the power to change that. The most simple thing you could do is see our situation for yourself and speak out about it, to see the reality and talk about what you see. It’s not like you don’t know what’s happening here. I’m sure you know everything.
On this trip I hope that you will speak out against the Israeli government’s role in supporting the settlers and pressure the Israeli government to change its policies. US military aid to Israel is used directly against unarmed Palestinian demonstrators. I hope in the future you will stop giving military aid to support Israel’s illegal occupation of my people.
I also hope that in the future justice will return to the people. I hope the world will begin to speak out against the oppression we face in my neighbourhood and [the oppression] against all Palestinians. That you and others will not remain silent while our homes are taken, children are arrested and injured, and our future threatened.
Mr President, we want our houses back. And our pre-1948 land. It’s not fair what’s happening here, and most of the world doesn’t realise it. So if I had one wish I would get everyone’s rights back. From a little ball they stole from a boy in the street to a big farm they stole from a grandfather.
Mohammed El Kurd
Found at the comicvine.com forum conversation on Feminist Theory.