CHOSEN SCENARIO SCENARIO 3: Why does Kashipur burn?

Ques 1. Undertake a Human Rights-Based (HRBA) Situational analysis (SITAM) of the displacements presented in scenario you have selected Displacement of people is typified by forced movement of people from their locality or environment and occupational activities. It is followed by destruction of homes, property and livelihood of the displaced people. It is very stirring and has a number of psychological impacts on the people being displaced. As it affects the occupation of the displaced people, it has a negative effect on the economic conditions of the people. The displaced people are forced to resettle in alienated environments unknown to them. Displacement may be of different kinds based on the reason for displacement: Displacement due to armed conflict Displacement due to development and environmentally issues Displacement of victims of human rights abuse Displacement of natural disaster struck people

Human rights are the rights and freedom to which every citizen of the country is entitled to irrespective of nationality, caste, creed, sex, religion and race The author would now like to proceed towards a human rights based approach to the chosen scenario. The discussion would involve the victims of human rights abuse and displacement and the causes of violation of human rights, the modes and methods of abuse of the rights of people involved and consequences and losses in terms of lives, livelihood, community, habitat, family and self. The vulnerability of the citizens involved would also be analyzed. Who are being displaced? The people of Kashipur are being displaced. The people include the indigenous adivasis and the dalits who have been staying in Kashipur for generations.

The displacers responsible for this massacre are mainly the Government, which include the local police, district administration and the state government itself, and the main institution responsible is UAIL which is a 100% export-oriented joint venture alumina consortium. Currently HINDALCO and ALCAN hold 45% and 55% stakes in UAIL and are directly responsible for the chosen scenario prevailing in Kashipur.

Why are they being displaced? In the year 1987, people of Kashipur were starving due to lack of food as an outcome of no occupation left for the people belonging to that place. Rajiv Gandhi took a survey of the situation and a new development strategy for the poor jobless communities was formed and introduced by the State and Central Government to relieve and poor and needy people of Kashipur. In order to help the poor people, next year a number of private companies were granted permission for mining activity in the region. The extracted alumina was supposed to cater to the needs of the global automobiles, aviation and missile industries and at the same time serve to the needy and poor people belonging to that region but instead the poor were exploited, abused and denied basic human rights. How are they being displaced? The private company UAIL had permission for extraction of alumina from Kashipur but on the conditions of employing the local people of Kashipur which was the main motto of the new strategic development policy. The company later announced that they didnt need helping hands, instead they needed sharp heads, making it clear that they their sole intention was profit making. The survey initiated by the company was kept as a secret so that the people wont come to know about their hidden intentions. When asked, the people received only one standard response This is government land and we are doing it for the government. This resulted in opposition by the ethnic minorities and the agitated people resisted against the advancement made by the company. The State Government instead of supporting the indigenous people backed the company and a number of adivasis were arrested and implicated in false cases.

Goons hired by the company started manhandling the native people and stopped them from resisting. As an outcome, several people were killed; rape threats and filthy abuses became rampant as well as families and livelihoods destroyed What? The basic and fundamental rights of the native people were lost. Mostly women and children were targeted and tortured. A number of people were killed which violated their basic fundamental right to live. The adivasis and dalits were not treated fairly which violated their right to equality. Livelihoods were destroyed. The native people of Kashipur were ppromised employment according to the new development strategy which was never fulfilled. Fake promises were made on the part of government and the company UAIL which hurt the emotions and sentiments of many native villagers who were counting on it as it was their only hope left for survival. Causality Analysis The immediate cause of concern is the inhuman behavior on the part of the Government to have overlooked the interests of the adivasis and dalits in Kashipur. The brutal attack by the police on December 1, 2004 on the native villagers as per the orders given by the district Superintendent of Police Sanjaya Kumar and the Rayagada District Collector P.K. Mehrda near the proposed UAIL plant gives a true picture of the causal situation prevailing in Kashipur. In the attack mostly women were seriously injured which is a matter of shame. On December 16, 2000, police fired upon adivasis in Maikanch village of Kashipur block, killing three protestors and seriously injuring 30 The proximate cause is the neglect and corruption on the part of the Government. The police and district administration have misused their power for their personal gains and have to catered to the needs of the wealthy and powerful UAIL and have neglected their duty towards the state and the people of the state. The adivasis and the dalits were easily suppressed as they lacked power and are poor.

The institutional systematic cause is the misuse of power by UAIL i.e the big companies involved in the development project. The UAIL has been trying to suppress the people by continuing such brutal atrocities on the weak and poor native villagers due to their hidden intentions of profit with the help of corrupt government officials at the district level. The private company UAIL has misused its power to exploit the weak, poor and needy, native people of Kashipur and has emerged successful which wouldnt have been possible without the corrupt Government officials at the district level. The root cause of this massacre is the outlook of the society towards the adivasis and dalits. Though all the citizens of India have the same fundamental rights but the minorities groups like dalits and adivasis are looked down upon by the other sections of the society. These minority groups are discriminated on the basis of colour and race. In the chosen scenario, development which is supposed to be the means for the greater realization of human rights had all too often become the source of human rights violations and denials. This is a tragic paradox because development is supposed to be part of the solution, and not part of the problem of human rights denials and abuses. Vulnerability Analysis The adivasis and the dalits who are the native people of Kashipur are vulnerable. They are vulnerable to physical and emotional abuse by the strong and powerful corrupt government officials and UAIL. They are vulnerable because they are physically and economically weak, and illiterate opposed to the strong and powerful UAIL which is backed by the corrupt Government. Hence the poor and vulnerable native people have no one to count upon for justice. The vulnerable minorities need to be aware of their rights and the Government too should lay more emphasis on proper implementation of rights. One of the sole reasons of this massacre is illiteracy so awareness amongst the people is very essential in order to protect themselves from any kind of exploitation. Role and Pattern Analysis Being the citizens of India, the indigenous and ethnic groups like the dalits and adivasis have the same rights as any other citizen of the country but since they are minority groups and mostly

illiterate so they so they need to be made aware of their fundamental rights that are essentially being denied to them. The treatment that is meted to them is due to age old traditions, prejudices and beliefs. When people are more aware of their rights, it enables them to exercise it in a better way and at the same time they enjoy that their rights are being fulfilled, which leads to satisfaction. The minority groups need to be protected from powerful and corrupt Government and private institutions by making them aware of their rights or else they will fall prey in the hands of corrupt and powerful people who shall exploit them according to their own needs and benefits. As said that with great power, comes great responsibility, the Government and the private institutions have duties towards the state and the people of the state. They have an access to unlimited resources and power which should not be misused and should be used for the benefit of the people. Red tape reduction in Government and Private institutions is very necessary to uplift the minorities and protect them from being exploited because lacking in decision making or implementations will increase the problem by manifolds which will add on to the current problems. Corruption on a large scale often leads to organized crime which is a loss to the entire nation. The Government and the Private institutions should realize it and help in making the country corruption free which in turn will help the minority groups to be uplifted and be at par with the other citizens of the country. Capacity Analysis Capacity assessment of the Government institutions, society and organizations must be done to obtain strengthen and maintain the capabilities to set and obtain their own development objectives over time. It is important otherwise hindrances can be faced in the path of development. Capacity development of the Government institutions, Private institutions and the society is important for development of knowledge, skills and attitudes within individuals and group of individuals for the purpose of achieving development and at the same time dealing with the complexity associated with it

Ques 2. Based on SITAM identify and elaborate upon the human right impacts of the displacements occurring in the scenario you have chosen Human rights are the basic rights and freedoms that all citizens are entitled to irrespective of nationality, sex, age, national or ethnic origin, race, religion, language, or other status. Human rights are universal rights, with all people having equal rights by virtue of being human. They are often known as natural or legit rights, in both national and international law. The many human rights violations that the indigenous people continue to face include:-

1. Right to participation of affected communities has been denied. The affected communities must be able to participate in different levels of decision making form the local, state, national and international levels. Indigenous and tribal people have the right participate in formulation implementation and evaluation of national and regional development plans that affect them.

2. Right to freedom of speech and expression (as provided by article 19 of the Constitution and various international instruments like the UDHR) of adivasis and dalits have been denied as they have been suppressed continuously by the Government and Private institutions in the chosen scenario. The right to freedom of expression is very important as this right has enjoyed by each and every citizen of a democratic country. The minority community cannot be kept away from it otherwise it will be discrimination on the part of the Government to do so. This is violation of equality under Article 14 of the Constitution.

3. Rights of Vulnerable groups have been denied. While development projects may create vulnerability through impoverishment, they disproportionately affect groups that are vulnerable to begin with particularly indigenous peoples and women. These rights are of utmost importance to the vulnerable groups which needs an upliftment to be at par with the other sections of the society. .

4. Right to remedy has been denied as the Government institution was aware of the problems being faced by the native people but still it backed the private institution in further suppressing the vulnerable group of people. This is a fundamental right and equally important right because if it is denied, there will be no end to problems.

5. The dalits and adivasis have been resorted to extreme forms of torture, cruel, inhuman and degrading treatment(as denied by the UDHR) by the Government institution including the police and the goons hired by the private institution UAIL. This behavior is inhuman and the minority groups need to be protected from being exploited by the other sections of the society for their own benefit.

6. Right to life, liberty and security of dalits and adivasis have been denied as they were subjected to aggressive lathi charge and the women were seriously injured in the attack ordered by the Government. The women also received rape threats at the same time. Right to life and liberty (under Article 21 of the Constitution) is the basic fundamental right because every human being present on this planet has the right to survival, liberty and safety at the same time, which may otherwise pose a direct threat to human community as a whole.

7. The right to protection of interests of minorities of the Indian constitution has been violated as the employment promised to them was denied and their homes were destroyed. Coming from politically marginalised and disadvantaged strata of society, these groups often end up neglected and impoverished. This right is very important from the point of view of uplifting them. If this right is not protected the minorities will never have a place in the society and shall alwys be looked down upon.

8. The right to occupation has been denied to the dalits and adivasis as employment was promised to the native villagers but never fulfilled by UAIL. They were told that- we dont need useful hands, we need sharp heads. If the right to occupation is not protected, the natives of Kashipur wont be able to survive because for them occupation is the only means of earning a livelihood.

9. The right to livelihood and occupation was denied to the native people of Kashipur as the UAIL project acquired 2,865 acres of land of Kashipur block in 1995 which included 1,000 hectares of land presently under cultivation, besides forests and the dangars, which were used for farming. If their lands are not protected it will lead to a large scale unemployment and ultimately starvation, the way it was back in 1987. . 10. The right to protection of environment will be denied as the land acquired for UAIL is used for cultivation including forests. Also the project will cause drying up of natural springs, desertification of area, flash floods leading to climate change (global warming as an after effect) and posing a threat to the natural habitat, causing an imbalance in the environment.The imminent threat is in the form of climate change and consequently man made natural disaster. There is nothing maurally unnatural about cetain disasters like man desertification (which are slow and gradual and vary in intensity) If this right is not protected there will be an imbalance in the nature. It will lead to an increased level of carbon dioxide in the atmosphere and due to the Greenhouse effect, it will lead to Global Warming which will melt the glaciers leading to a rise in the sea level posing threats of tsunami, typhoons and floods in low lying areas. Moreover, sustainable development is important to make resources available for the future generations by judicious use of the resources by the present.

11. The right to life with dignity and the right to liberty has be denied as the people have been forced not to resist by the goons hired by the private institution and at the same time the state has resorted to terrorizing people and also arrested a few adivasis by implicating them in false cases.

12. A lack of participation of people can be seen in planning of projects, There has been an excessive use of force by Government on poor and weak dalits and adivasis. The use of economic power has been exercised by the wealthy, powerful well-off companies against the poor and vulnerable indigenous groups

13.Ground level politics (people participation) is extremely important. lack of Transperancy, lack of accountability by govt and companies are sore sights in a country where the Government is for the people, by the people and of the people., There is violation of democracy by not taking into account will of people. Democracy and democratic principles are important as it is crucial for survival of the diversified people of India.

14.Everyone has the right to adequate housing as a component of the right to an adequate standard of living. The right to adequate housing includes, inter alia, the right to protection against arbitrary or unlawful interference with privacy, family, home, and to legal security of tenure.

3. Undertake a critical assessment of the relevant international and national policies, laws, institutions and processes applicable to your answer to question 2 above.

The author would now go on to discuss the relevant international and international policies, laws, institutions and processes that are applicable in cases of displacement and human right abuses in the present chosen scenario.

Infrastructural development projects carried out by states, often with the assistance of the international community, frequently result in the displacement of peoples from homes that stand in the way of dams, highways, or other large-scale construction projects. New standards are emerging for states to address the displacement consequences of development.

In 1986, the UN General Assembly adopted a Declaration on the Right to Development, which states that "every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. The crux of the matter and the popular and widely believed perspective is that the positive aspects of development projects, the public interest, overshadow the negative ones, the displacement or forfeiture of the rights of a few.

Presently, there are certain laws that are available to the victims of development induced development. The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of September 2011, the Covenant had 72 signatories and 167 parties.[1]The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).

The obligation of States to refrain from, and protect against, forced evictions from home(s) and land arises from several international legal instruments that protect the human right to adequate housing and other related human rights. These include the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (art. 11, para. 1), the Convention on the Rights of the Child (art. 27, para. 3), the non-discrimination provisions found in article 14, paragraph 2 (h), of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5 (e) of the International Convention on the Elimination of All Forms of Racial Discrimination. In addition, and consistent with the

indivisibility of a human rights approach, article 17 of the International Covenant on Civil and Political Rights states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, and further that everyone has the right to the protection of the law against such interference or attacks

In the present scenario, as is noticed that the people of the state of Kashipur, were not included in the policy making process. The state of Kashipur was declared to be an under developed area during the prime Ministership of Rajiv Gandhi and the companies were brought for the purpose of development of the area. However, the people of Kashipur were never made a part of the development process of the area and nor were their opinions, general needs and specific requirements taken into account by the government or the concerned companies. The survey work for the UAIL project was started under a veil of utmost secrecy. To all their questions, the people received only one standard response This is government land and we are doing it for the government. The affected communities must be able to participate in different levels of decision-making, from the local (project), state (programme), national and international levels.

When the agitated people of Kashipur decided to resist every activity of the company in the region, the state resorted to terrorising the people, arresting a number of adivasis and implicating them in false cases. Company goons began to move in the villages, manhandling and coercing the villagers to end their resistance. This is a clear instance of a bias towards the native people of the land. Studies on the social impact of development projects suggest that indigenous people and ethnic minorities are disproportionately affected. Coming from politically

marginalised and disadvantaged strata of society, these groups often end up neglected and impoverished.1

The right to participation is well grounded in the International Bill of Human Rights (for instance, (ICCPR, art. 25). More specifically, The 1991 International Labour Organisation Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) stipulates (Article 7) that indigenous and tribal peoples shall participate in the formulation, implementation and evaluation of national and regional development plans that affect them.

Rape threats, filthy abuses, tear gas shells and an aggressive lathi-charge targeted more than 300 adivasis and dalits who were protesting against the forcible setting up of a police station and barracks for armed police at D-Karol. Another December day four years earlier, December 16, 2000, police fired upon adivasis in Maikanch village of Kashipur block, killing three protestors and seriously injuring 30. The people had put up a barricade on the road at Maikanch as part of their resistance against the alumina project. UAIL is a 100% export-oriented joint venture alumina consortium. The UAIL project will destroy the homes, lands, forests, mountains and perennial water streams that form the basis of life and livelihood of more than 20,000 people in at least 82 villages.

When security forces take action to move people forcibly or to repress civil dissent against development projects, this may constitute a direct threat to the right to life, which is protected in the UDHR (Article 3)2 and the ICCPR (Article 6)3.

Module on development induced development, Training on the Protection of IDPs- The IDMC(Internal Displacement Monitoring Centre) has compiled a series of training modules reviewing some key aspects of the protection of internally displaced persons (IDPs). These modules can be used to facilitate training workshops targeting mainly field based actors, such as national and local authorities in charge of IDPs, field workers of international agencies, international and local NGOs, representatives of displaced communities.
2

Everyone has the right to life, liberty and security of person.

The right to livelihood is endangered by the loss of dwelling and the means to make a living whether farming, fishing, hunting, trading or the like when people are displaced from habitual residences and traditional homelands. The right to own property and not to be arbitrarily deprived of this property as well as the right to work are spelled out in the UDHR (Articles 17 and 23, respectively)4 as well as in Article 6 of the ICESCR5. Article 11 of the ICESCR, moreover, provides for "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions".

The Rayagada District Collector P.K. Mehrda and the district Superintendent of Police Sanjaya Kumar led the police in a brutal attack on a peoples demonstration at village D-Karol, near the proposed alumina plant of Utkal Alumina International Limited (UAIL) at Doraguda. Rape threats, filthy abuses, tear gas shells and an aggressive lathi-charge targeted more than 300 adivasis and dalits who were protesting against the forcible setting up of a police station and barracks for armed police at D-Karol.

As stated in question 2, the disproportionately affected groups are particularly the Dalits (the historically depressed classes in the traditional caste system of India.) Indigenous peoples and women. Human rights of vulnerable groups are protected generically in the International Bill of Human Rights. The ILO Convention 169 spells out protections for indigenous groups. The principle of non-discrimination is not only codified in the UDHR (Article 2)6, the ICCPR

It states that Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
4

Article 17 and Article 23 state respectively - Everyone has the right to own property alone as well as in association with others and Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
5

It states that The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
6

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international

(Article 2)7 and the ICESCR (Article 2)8 but also in the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The object of providing certain rights to the people is that the rights can be exercised not only before they are abused or when they are in process of violation but also when the rights have already been violated. The individuals or persons or the institutions responsible for the violation of the act cannot be allowed to escape the net of the rights if a right to remedy is not provided to the wronged people. The right to remedy is asserted in the UDHR (Article 8)9 and in the ICCPR (Article 2)

The increased occurrence of internal displacement in recent years has resulted in a growing concern within the international community. The concern is because often, the internally displaced suffer extreme deprivation, threatening their very possibility of survival, and are often exposed to considerable danger, both during flight and while in displacement. At present there exists no internationally agreed upon definition as to is a displaced person. United Nations current working definition given by the Guiding Principles in Internal displacement (1998) holds them to be: Persons or groups of persons who have been forced to flee or to leave their homes or places of habitual residence as a result of, or in order to avoid, in particular, the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State Border.
status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
7

It states that Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
8

It states Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
9

It states that Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

The IDP definition in the Guiding Principles does not specifically mention development projects as a possible cause of displacement, the words "in particular" introducing the listed examples of causes indicate that this list is not exhaustive. It can be argued that development projects, such as the construction of hydroelectric dams, leaving communities without adequate resettlement and compensation, could be considered a "human-made disaster" and a human rights violation, and therefore that those displaced fall within the definition in the Guiding Principles. 10 Guiding Principle 6 explicitly covers development-induced displacement by restating the prohibition of displacement in cases of large-scale development projects "which are not justified by compelling and overriding interests.

Many steps have been taken in the United Nations to enhance its capacity to respond to situations of internal displacement. In 1990, the General Assembly assigned to resident coordinators the function of coordinating assistance to IDPs. In 1991, the post of Emergency Relief Coordinator(ERC) was created to promote a more rapid and coherent response to emergency solutions. In 1992, the UN created the Inter-agency Standing Committee (IASC) chaired by the ERC and composed of heads of the major UN humanitarian and development agencies, to strengthen coordination in emergency situations. Also chaired by the ERC since mid 1997 is a smaller body, the Executive Committee on Humanitarian Affairs (ECHA), which the SecretaryGeneral created in 1997, composed of the heads of humanitarian and development agencies and of the UN departments on peacekeeping and political affairs. In the same year it also created the Department of Humanitarian Affairs (DHA) to assist ERC which was replaced in 1997 by a smaller office renamed the Office for the Coordination of Humanitarian Affairs (OCHA). However, the effectiveness of the steps taken and the implementation of the measures remain an issue.

India does not have an official refugee policy. It prefers to deal with issues on an ad hoc basis, under bilateral treaties with neighboring countries. India does not have an official definition of
10

Ibid.

refugee. A commission chaired by Justice P N Bhagwati in 1997, whose task was to construct a uniform, model national law on refugees, produced a Bill (never tabled in Parliament) which

offers the following definition Any person who is outside his/her Country of Origin and is unable or unwilling to return to, and is unable or unwilling to avail himself /herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, sex, ethnic identity, membership of a particular social group or political opinion. Indias policy and practice is one of administrative decisions, based on political and security Considerations. India has concluded that unwanted migrations, including those of refugees, are a source of bilateral and not multilateral relations, and international agreements could constrict her freedom of action. The Registration of Foreigners Act, 1939, the Foreigners Act, 1946, and the Foreigners Order,1948 are the primary documents dealing with the treatment of foreigners in India. Article 2 of the 1939 Registration of Foreigners Act defines a foreigner as a person who is not a citizen of India. The Ministry of External Affairs (MEA) is the main institution involved. Both the Act and the Order affirmatively grant the Indian government powers to restrict the movement of foreigners inside India, to mandate medical examinations, to limit employment opportunities, and to control the opportunity to associate, and the ability to refoule, or return, refugees. The Refugee Convention, however, bars all these actions.

The method adopted by the judiciary is by creative interpretation of Article 21 of the Indian constitution which guarantees the right to life and liberty to all persons and not merely to citizens. There are several decisions of the Supreme Court of India and the High Courts where refugees have been given protection by evoking Article 21 of the Constitution. The leading case is of the Chakma Refugees, National Human Rights Commission versus State of Arunachal Pradesh. In this decision the Supreme Court held that Chakma Refugees who had come from Bangladesh due to persecution (when Bangladesh was under Pakistani Rule) cannot be forcibly sent back to Bangladesh as they may be killed there and thus they would be deprived of their right under Article 21 of the Constitution.

Included in the right to life is the right to environment. This concept has also been phrased as intergenerational equity or the right of future generations to inherit a planet, or a particular piece of it, that is capable of sustaining life.11 The many linkages between protection of human rights and protection of the environment have long been recognised.12 The 1972 United Nations Conference on the Human Environment declared that "man's environment, the natural and the man-made, are essential to his well being and to the enjoyment of basic human rights--even the right to life itself".

The main policy and legal instruments governing development-caused forced displacement actions in India are based on land expropriation or acquisition measures introduced in the 19th century. The centerpiece legislation was, and remains, the Land Acquisition Act (LAA) of 1894, as amended. Currently LA A is in the process of being repealed and replaced. It has been recommended that there should be incorporation of principles in the National Relief and Rehabilitation Policy [NRRP], in the Rehabilitation and Resettlement Bill, 2007. The bill if it would come into force would Act shall apply to the rehabilitation and resettlement of persons affected by acquisition of land under the Land Acquisition Act, 1894 or any other Act of the Union or a State; or involuntary displacement of people due to any other reason. It, however, falls short of the World Bank and the Asian Development Banks (ADB) Policies on Involuntary Resettlement in several respects. ADB policy defines Affected People (APs) as those who stand to lose, as a consequence of the project, all or part of their physical and nonphysical assets (including homes, communities, productive lands, and resources, such as forests, rangelands, fishing areas, or important cultural sites, commercial properties, tenancy, income-earning opportunities, social and cultural networks, and activities).

11

Concept of Sustainable use of resources.

12

Module on development induced development, Training on the Protection of IDPs- The IDMC(Internal Displacement Monitoring Centre) has compiled a series of training modules reviewing some key aspects of the protection of internally displaced persons (IDPs). These modules can be used to facilitate training workshops targeting mainly field based actors, such as national and local authorities in charge of IDPs, field workers of international agencies, international and local NGOs, representatives of displaced communities.

With regard to disaster induced situations, the National Human Rights Commission had received complaints of displacement or had acted suo motu to redress violations of human rights during the Super cyclone that struck the coastal districts of Orissa 1999; Gujarat earthquake that devastated large areas of Gujarat 2001; Tsunami, which hit the coastal India in 2004; Earth Quake in Jammu & Kashmir in 2005 and many more other situations.

There are certain state obligations under the international law too. The state to strive for mitigation by addressing the causes of risks to environment and potential causes foe climate change and consequently, natural disasters. It has to strive for reduction of emissions of greenhouse gases under the UNFCC and the Kyoto Protocol.

At the same time, the state has to address the potential causes for harm to environment. By reducing risks created and vulnerabilities caused. Under human rights law, the 2005 Hyogo Framework for Action: Building the Resilience of Nations and Communities to Disasters, the 2010 UN Climate Change Conference and its Cancun Agreements (Cancun, Mexico) and its Ad Hoc Working Group on Long-term Co-operative Action under the Convention (UNFCCC), and case law on the right to life, the State competent authorities must:

(i)

Enact and implement laws on all aspects of disaster risk mitigation with necessary mechanisms and procedures.

(ii)

Take the necessary administrative measures, including supervising potentially dangerous situations.

(iii) (iv) (v)

Inform the public about possible dangers and risks. Evacuate potentially affected populations. Conduct criminal investigations and prosecute those whose neglected duties caused death by a disaster.

(vi)

Compensate victims and their survivors.

Under human rights law, the 1998 UN Guiding Principles on Internal Displacement, and the 20110 Operational Guidelines on Human Rights and Natural Disasters was adopted by the UN

Inter-Agency Standing Committee IASC. The IASC is the co-ordinating body of the UN humanitarian agencies and the big international humanitarian NGOs.

Q4. What reforms do you suggest to address the gaps; shortcomings (including relating to enforcement and implementation); in your answer to question 3 above?

The most glaring problem in the above mentioned laws are the lack of a comprehensive and committed policy, law or framework in the national level. There are international laws that are applicable in the given scenario. On the face of it, they seem to comprehensively address the problems faced by the people of Kashinagar state. The submission of the author is that they address most of the issues of human rights abuses. However, the fact remains that international laws form merely a guideline for the Indian Government to follow and lack the kind of enforceability and the binding power that laws addressing such grave breaches of human rights should allow.

The nature of international law.

The rights, as have been mentioned above, are frequently abused because of a problematic internal relationship between states and individual citizens. International law recognises that states should be allowed to solve their internal problems by themselves in respect for the sovereignty of the state.13 Effective legal action at international level requires mechanisms which allow for individual complaints and which create sufficient pressure to ensure respect for basic norms. The effectiveness of such mechanisms depends on the preparedness of international organisations to jeopardise economic projects in the interests of human rights. This may depend on public pressure and the acceptance that human rights make good economic as well as moral sense. So first and foremost, what is important is that apart from a comprehensive framework in a single international law, there should be an institution at the centre of complaint and a watchdog mechanism whose authority is accepted by one and all. However, it is difficult to come

13

Article 2 of the United Nations Charter.

by such a statute that does not provide for the reservations of the state. Such is the nature of international law.

A proper legal national framework.

Another shortcoming is the absence of a proper national legal framework. In the absence of a proper national policy and its implementation such violations of human rights are difficult to put an end to. The Land Acquisition Act deals with the cases of eviction of land by Government in return for compensation. However, as the World Bank and the Asian Development Banks (ADB) Policies on Involuntary Resettlement deals with both the loss of the physical and non physical assets, the same should be taken into consideration with the national policy of India. There is no provision for the compensation of land by land and the compensation, that is determined on the basis of the market value of the land, in many cases falls short of adequate compensation. Moreover, the development projects should take into account the social costs involved in the development project. The displacement of people as a result of the development project causes not only the loss in terms of land but also loss of livelihood and a way of life. The environment that the people live in is majorly effected and apart from serious impact on the climate that gradually pave the way for man-made or natural disasters. The compensation given by those involved in the development projects should take into account this aspect of the consequence of development project also.

Policy reform, on a national level, requires greater clarity and specification of goals as well as the development and enforcement of a coherent vision and framework of policy issues around human rights, sustainable development and poverty elimination. Such an approach would help in greater accountability of the people involved. This framework should incorporate the perspectives of affected people. Donors could facilitate the reform process by paying closer attention to the way rights and entitlements are safeguarded in major development projects. The best possible efforts should be made to ensure that the national laws are in conformity with the

internationally accepted guidelines so as to ensure proper and just framework of police, guidelines, laws and institutions that are acceptable in the international standards.

The problem of implementation.

There are serious policy failures with implications for the scope and limits of national and international development policies and their implementation. It is inherent in the institutional process of resettlement and rehabilitation itself. Implementation is inherently problematic. Almost always, an implementation deficit obstructs the hypothetical smooth translation of policy into action as policy gets transformed by the very process of implementation. The normative frameworks formulated by high level policy makers do not necessarily involve clear policy goals for they have to be broad enough to reconcile divergent and even contradictory political positions. This paves the way for differing interpretations of policy further down the bureaucratic hierarchy.

To overcome the problem of effective translation of written laws into real life practical situations in the best possible manner, States should actively monitor and carry out quantitative and qualitative evaluations to determine the number, type and long-term consequences of displacement and the related human rights abuses, including forced evictions, that occur within their jurisdiction and territory of effective control. Monitoring reports and findings should be made available to the public to encourage transparency and accountability. Concerned international parties in order to promote the development of best practices and problem-solving experiences based on lessons learned. States should entrust an independent national body, such as a national human rights institution, to monitor and investigate forced evictions and State compliance with these guidelines and international human rights law.

Q5. From your answer to question 2 above, select (and explain your reason/s for selection) 3 prioritized human rights impacts, consequences, issues problems, concerns related to the displacements in the Scenario you have selected. For each of the 3 selected, identify strategic non-legal, extra-legal and meta-legal response.

The issue of caste and structural change in society. The most important human rights issue is the rape threats, filthy abuses, tear gas shells and an aggressive lathi-charge targeted more than 300 adivasis and dalits who were protesting against the forcible setting up of a police station and barracks for armed police at D-Karol. The attack on the vulnerable sections of the community such as the dalits and the adivasis are alarming in nature because they re-enforce and bring into light the deep rooted stigmas and prejudices by existing in society and its blatant manifestation by those in positions of social and economic power. The fact that there has been obvious violation by those who are the safeguards of the rights of the citizens of the nation brings into open the backwardness of the country in terms of the mentality and long held prejudices of the people. One of the legal remedies in such a case are the strict and effective implementation of the Article 14 of the Constitution of India which deals with the concept of equality.

The concept of equality involves equal treatment among the equals. But as seen in the present circumstances, the conditions available and the treatment of the depressed classes of the society is indicative of the fact that a level playing field is difficult to access for those who are shunned and discriminated against. Obviously, the point at which there can be equal treatment among those in an equal position never arises. This leads to measures for reservations and affirmative action(consequences), which are sometimes availed of by the wrong secton of society. This creates a kind of situation where groups or specifically, castes draw identity form the caste itself. This creates tension and resentment as there are non availability of the scarce resources that the different groups compete for superimposed by the belief that caste systems are just and necessary.. This is a vicious circle that makes complete elimination of the caste system an almost impossible endeavor.

The submission of the author is that the importance in such human right issue lies (and that is why it was chosen) in the fact that a solution for redressal of such a problem may well lie beyond that of a law or a policy or an institution. It calls for a change in the mindset of the existing society, opposing and vehemently championing the cause of equality among all individuals irrespective of the caste, creed, religio, race, colour etc. This is a slow, gradual and a long drawnout process that could take, years or centuries and there may be no definite end to it. Hence, the importance of the issue lies in its gravity.

The violation of democratic principles. In the course of their struggle, the people have begun to see the true character of the state machinery, which is essentially at the service of the corporate and feudal interests. They are fighting against the unholy alliance of the corporate exploiters, the lawmakers, the policy experts and the implementation apparatus (administrative officials, police and paramilitary forces), united against the will of the people, against their real development. There is a lack of participation of people in planning of development projects and the people of Kashinagar were hoodwinked by authorities to believe that the project is for their benefit and that they would be provided with employment opportunities. In the present circumstances, when the injustices was protested against, there was excessive use of force by the Government. The disparity of the economic, political and social power of the well-off companies and Government., There was lack transparency, lack of accountability by Government and companies, violation of democracy by not taking into account will of people. India is considered to be the largest democracy in the world. However, such actions are not befitting a self proclaimed democracy such as India. There was violation of the freedom of speech and expression and the right to life and liberty as guaranteed under the Constitution of India and various international instruments which emphasise on the worth and dignity of every single human being. The importance of the issue lies, once again, in the deep rooted beliefs and a Government of a democratic country that is plagued by beaurocracy, red tapism and corruption at all levels. The Right to information act, if properly implemented can enable greater transparency and

accountability. Also, since it involves a major change in thought and belief processes and attitudes of society in general, it is a long drawn out process. Another of the measures that cen be taken is sensitization and greater awareness of the people whose rights are denied. They have to be more assertive of their rights. The realization also has to be by those responsible of violation of rights, of their duties and obligations to the society.

The displacement laws and institutions-the issue of violation of the right to adequate housing/land(right to live with dignity.)

One of the major issues is the displacement of people in the state of Kashinagar. Forced evictions constitute a distinct phenomenon under international law, and are often linked to the absence of legally secure tenure, which constitutes an essential element of the right to adequate housing. Forced evictions share many consequences similar to those resulting from arbitrary displacement, including population transfer, mass expulsions, mass exodus, ethnic cleansing and other practices involving the coerced and involuntary displacement of people from their homes, lands and communities.

According to international human rights law, everyone has the right to adequate housing as a component of the right to an adequate standard of living. The right to adequate housing includes, inter alia, the right to protection against arbitrary or unlawful interference with privacy, family, home, and to legal security of tenure.

Forced evictions constitute gross violations of a range of internationally recognized human rights, including the human rights to adequate housing, food, water, health, education, work, security of the person, security of the home, freedom from cruel, inhuman and degrading treatment, and freedom of movement. Evictions must be carried out lawfully, only in exceptional circumstances, and in full accordance with relevant provisions of international human rights and humanitarian law. Forced evictions intensify inequality, social conflict, segregation and ghettoization, and invariably affect the poorest, most socially and economically vulnerable and marginalized sectors of society, especially women, children, minorities and indigenous peoples.

States must ensure the equal enjoyment of the right to adequate housing by women and men. This requires States to adopt and implement special measures to protect women from forced evictions. Such measures should ensure that titles to housing and land are conferred on all women. States should ensure that binding human rights standards are integrated in their international relations, including through trade and investment, development assistance and participation in multilateral forums and organizations. States should implement their human rights obligations with regard to international cooperation, whether as donors or as beneficiaries. States should ensure that international organizations in which they are represented refrain from sponsoring or implementing any project, programme or policy that may involve forced evictions, that is, evictions not in full conformity with international law.

States must ensure that protection against forced evictions, and the human right to adequate housing and secure tenure, are guaranteed without discrimination of any kind on the basis of race, colour, sex, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth or other status.

Another good effort. But you were required to address just one scenario. I have marked both and am selecting the one with higher marks.

Answer Paper Marks: 64 out of 90.

COURSE EVALUATION

1.Understanding Displacement: As process and not just event Who is displaced, and why? How was displacement effectuated What was lost in displacement

COMMENTS: Displacement is a phenomenon that is not of random occurrence but it is a cause of several factors, natural and man-made coming together as a whole. To understand the process of displacement as not just as an event, is a true human rights based approach. This is because it involves going beyond the faade and identifying the multiplicity of players and issues. The understanding of the process of displacement in terms of the displaced and the causes (immediate, proximate, structural, institutional) is an extremely educative approach.

2. Understanding the human rights impacts of displacement a. War ad conflict-induced displacement. b. Development-induced displacement. c. Environment-induced development d. Natural disaster-induced development.

COMMENTS: The various types of displacement bring out the plethora of man made and natural causes of causing pain and hardships to fellow human beings. It brings out the various dimensions of the issue of displacement and helps in chalking out the relevant issues and exercising thought processes for solutions and better ways of management of the plight of the people suffering from displacement.

3. Critical assessment of existing international and national policies, laws and institutions relating to international displacement. You missed the next question on internal displacement. a. Treaty-based b. UN Charter-based c. Constitution d. Policies e. Laws f. Jurisprudence

COMMENTS: The assessment of the international policies and its applicability and shortcomings was a step further in the process of evaluating issues such as displacement and understanding the most minute issues of the same. As a student of human rights, its a realization as to the deficiency of the people who care enough for the displaced and the lack of more concrete and sustained approaches to find the remedy of the same. The obligations under the international law are not met with and there is lack of effective national policy or law. The urgency of the pitiful situation appeals to the mind. 4. Law and Policy reform responses a. National b. International

COMMENTS: Suggestions for reforms is an effective mode of evaluation of the understanding of the laws as a human rights student and as a lawyer. A close reading of the law leads to better comprehension of the same whish in turn would require valid suggestions from many who hold different perspectives, values, beliefs and opinions. It is the opening up of minds and meeting of ideas that is useful and progressive in nature and also essential in the policy making process.

5. Taxonomy of non-legal, extra-legal or meta-legal responses

COMMENTS: It brings out that which affects us most as individuals and also, the ideas and principles in our mind that enable a flow of ideas and formation of important opinions and important steps in the field of human rights. As lawyers, it is going beyond the legal aspect and examining the issue with a human rights perspective and taking into account the consequences that result from the human rights violations.

Evaluation Marks 7 out of 10. TOTAL 71% Dr. C. J. Dias October 17, 2011.