On December 31, 2014, the President assented to an ordinance to amend the Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act, “satisfied that the circumstances exist, which render it necessary for him to take immediate action”, (albeit with a raised eyebrow, according to media reports). The ordinance found form in a Bill, introduced on February 24, 2015, in the Lok Sabha, but sparked off a walkout by opposition parties.
The need for an ordinance amending the Act has been widely questioned, including by the leaders of the opposition, civil society and affected communities. Demonstrations have been under way in various parts of the country ever since the ordinance came into force. Recently, the capital too witnessed a huge assembly of people’s movements and affected communities protesting against the ordinance, emphatically supported by Anna Hazare and Arvind Kejriwal.
The LARR Act is a little over a year old. However, the ‘urgency’ to introduce the amendments to it has been justified in an information note on the ordinance from the perspective of Section 105 of the Act. This section states that 13 central laws which had been made exempt from the provisions of the Act would have certain exemptions—relating to compensation, rehabilitation and resettlement—withdrawn within a year.
Laws which were given a year of exemption from the LARR Act include the Coal Bearing Areas Acquisition and Development Act, 1957, the Atomic Energy Act, 1962, the Railways Act, 1989, the Land Acquisition (Mines) Act, 1885, among others.
The ordinance accomplishes the above task of making the Act’s provisions on compensation and rehabilitation apply to these 13 exempted laws. (Why Section 105 did not conceive of withdrawing exemptions relating to the other provisions of the Act is a serious question worth posing to the Act’s UPA authors.)
This could also have been accomplished by a Parliamentary notification. But under the garb of this ‘urgency’, crucial requirements around seeking consent and conducting social impact assessment (SIA) have been bypassed for a new, expansive list of industries under the umbrella of ‘strategic and development activities’. These include industrial corridors, defence and national security projects and infrastructure projects, which can be set up by not just public sector and public private companies, but private companies as well.
SIA and consent
While the central government is in a hurry to boost ‘nation-building’ projects, it is important to remember what SIA implies under the very Act that the BJP helped pass in 2013.
SIA under the Act is envisioned as an exercise meant to not just map the rights and dependencies of all communities impacted by the project, but also to provide a thorough assessment of individual and community assets at stake. This is crucial to determine alternatives, mitigate impacts, and determine compensation and rehabilitation through informed and meaningful consultation. It is an exercise that can minimise future conflicts between companies and local stakeholders, and avoid delays in the long term.
Environment impact assessment (EIA) reports list the environmental impacts of a project and the pollution it can cause, but it does not account for the loss of common property resources and its impact on livelihoods. This is where SIA plays an important role.
In Jagatsinghpur, Odisha, communities continue to resist POSCO’s steel plant for the ninth year running, even after it has received regulatory clearances. Despite being faced with arbitrary arrests and living under a state of siege, they say their traditional livelihoods of tending to betel vines on common lands are far more economically rewarding than what POSCO has to offer them. A SIA team may have been able to predict and prevent this face-off, as well as explore alternative sites for POSCO’s port in consultation with those whose livelihoods are at risk.
Another advantage is that SIA is carried out by an independent team of experts without any connections to the company. EIA is are currently carried out by consultants hired by and paid by companies, and so have little incentive to portray the situation on the ground accurately. A SIA in the case of Vedanta’s proposed mine site in Kalahandi, Odisha, would have mapped vulnerable tribal groups and cultural and religious sites of importance, which could have avoided the decade-long litigation the company was embroiled in.
While the government’s efforts to extend compensation and rehabilitation benefits to the exempted projects are laudable, removing the SIA and consent processes threatens the effectiveness of these measures. How will compensation be calculated without factoring in the costs and impacts of private assets, including bore wells, temporary sheds, electrical fittings and housing materials and animal sheds? How can companies possibly hope to generate meaningful employment without assessing existing wage rates and poverty levels or understanding the specific livelihood activities that men and women carry out, across castes and communities?
Improper rehabilitation for large-scale projects can affect the lives of thousands of people. The Polavaram hydel-power project in Andhra Pradesh, Odisha and Chhattisgarh, for example, is likely to displace over 2 lakh people, including over 73,000 adivasis. How can rehabilitation measures for a project of this scale be responsibly determined without fully assessing the nature of communities at risk, the available land for resettlement, community dependencies on common property resources, and livelihood activities and social cohesion patterns?
Project-affected communities often argue that their concerns on rehabilitation and compensation are dismissed at the public hearings held as part of the environmental clearance process. Environmental data shared with communities prior to these public hearings can be incomprehensible due to the technical nature of the information. Both the public hearings and the consent process under the LARR Act involve openly sharing the terms and conditions of compensation with communities, as well as allowing for negotiation and developing rehabilitation plans.
A SIA team is supposed to determine whether a project will serve a ‘public purpose’ through a detailed cost-benefit analysis. However, through the ordinance, the government has bypassed this process and instead, in effect, created its own arbitrary definition of ‘public purpose’.
The government has placed one progressive foot forward by extending compensation benefits to a section of project-affected persons through the Bill. However, compensation and rehabilitation without SIA, consultation and the seeking of consent of affected indigenous communities would be far from fair, transparent, equitable or meaningful.
The Bill cannot be seen in isolation from other policy changes that have weakened the rights of citizens to be consulted on decisions affecting their lands and livelihoods. These changes provide evidence of a troubling shift in the perception of the relationship between business and human rights, which assumes that compensation is the only currency that matters.
Requirements of consultation and free, prior and informed consent cannot be bartered away—these rights are enshrined in international law and standards, including the International Convention on Civil and Political Rights and the UN Declaration of the Rights of Indigenous Peoples. Ignoring the voices of affected communities is likely to result in forced evictions, which are prohibited under international law and constitute serious violations on a range of human rights.
From a purely business perspective, the lack of human rights impact assessment and consent could lead to prolonged litigation, reputational risks, social unrest and the very same delays the Act and the Bill hoped to mitigate. Policy-makers would do well to dwell on these issues before they sign the Bill into a law.
The author is senior researcher, Business & Human Rights,
Amnesty International India