Rehabilitation of Internally Displaced Persons
Since independence, the Indian state has adopted a model of development which involves construction of large multi-purpose dams. Such is the faith in the merits of dams that they were said to be the temples of modern India. To support this assertion, several benefits of multi-purpose projects are often cited, while the costs behind them are shrouded from the public eye. India now boasts of being the world’s third largest dam builder. According to the Central Water Commission, we have 3600 dams that qualify as Big Dams, 3300 of them being built after independence. Six hundred and ninety-five more are under construction. According to a detailed study of fifty-four Large Dams done by the Indian Institute of Public Administration, the average number of people displaced by a large dam in India is 44,182. Importantly, this data relates to the big dams alone and does not reflect the displacement caused by several other development projects. When estimating the number of persons displaced by big projects since 1947, scholar-administrator and then, Secretary of India’s Planning Commission, Dr. N. C. Saxena, puts this number at 50 million.
Given the above statistics, it is fair to conclude that the costs behind the construction of dams have not been sufficiently debated or else what can explain the absence of a dedicated legislation on rehabilitation? It was largely in the 1980s owing to the struggles of the displaced persons due to the Narmada and the Tehri projects that the realities of human devastation in the name of large development projects came to light. The aim of this paper is not to denounce or question the merits of such projects, but to look into the manner in which they have been executed. More importantly, the object is to analyse whether the government has followed a transparent and fair procedure to rehabilitate the displaced persons ensuring their dignity and right to life as granted under Article 21 of the Constitution. To make such an enquiry it is imperative that the law, judicial pronouncements and the ground realities are explored and the first two sections of this paper shall be devoted to the same. The third section of the paper shall suggest an alternative solution to the problem of displacement and look for a remedy in international refugee law to address the issue.
According to UN guiding principles on Internal Displacement Internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid 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.
1. Jammu and Kashmir: Kashmiri Pundits still in exile
India’s largest situation of internal displacement stems from the conflict in the north-western state of Jammu and Kashmir between militants seeking either independence or accession to Pakistan, and Indian security forces and police. The status of Kashmir has been in dispute since the creation of an independent India and Pakistan in 1947, and the two countries have twice gone to war over the issue. Since 1989, the insurgency in Indian-administered Kashmir has claimed at least 38,000 lives including more than 10,000 civilians. Some 350,000 Kashmiri Pandits (the government says 250,000) remain internally displaced as a result of this armed conflict. Around 100,000 live in the city of New Delhi and some 240,000 people in Jammu (USCR 2003, ORF 2003).
Elections in November 2002 and a new Jammu and Kashmir coalition government raised expectations for an end to displacement of the Kashmiri Pandits. In this regard, the state government developed a plan to facilitate the return of about 125,000 Pandits to the Kashmir Valley. The plan includes cash assistance, interest-free loans and the building of 500 apartments in the Anantnag district where the displaced Pandits can stay until they have repaired their own houses.
While the state government has encouraged the return of the displaced, protection of the remaining Pandit population has been far from adequate. The security situation has not been conducive to return, with continuing attacks and massacres by separatist groups discouraging people from returning to the Kashmir Valley (SAM, 16 August 2003). After an upsurge of violence and killings, 160 of the estimated 700 Pandit families who were left in the Kashmiri Valley fled due to fears of being targeted. The security situation declined further prior to national elections in April and May 2004 (AI, 2 December 2003; COE-DMHA 5 April 2004).
a. Most displaced returned along Line of Control
Since the end of the 1990s, clashes between India and Pakistan forces and attacks by separatist militant groups have also led to several waves of displacement from the border villages long the Line of Control (LoC) and international border. A persistent build-up of political tension between India and Pakistan during this time meant that the danger of war between the two sides remained extremely high until June 2002, when Western mediators facilitated an easing of tensions (ICG 2002). According to the Indian government, more than 100,000 persons remained displaced due to instability along the LoC as of spring 2003. The ceasefire that was concluded between India and Pakistan in November 2003 has led to substantial improvement of the security situation. The information regarding subsequent return movements is conflicting. While local media has reported that 75 per cent of the population has returned to their homes, another local source says that many still remain in camps awaiting demining of their fields and repair of their homes. A vast demining operation of the border areas (more than one million mines were laid following the build-up of troops after the December 2001 attack on the Indian Parliament) is a prerequisite for a successful return of the displaced.
2. The North-East: displacement in Assam on the rise
The seven states in the geographically isolated and economically underdeveloped North-East are home to 200 of the 430 tribal groups in India. An influx of migrants from neighbouring areas has led to ethnic conflicts over land and fighting for political autonomy or secession. Several political and/or armed insurgent groups have been formed, many of which resort to “ethnic cleansing” in order to defend their interests against a real or perceived ethnic enemy. At least 50,000 people have been killed in such conflicts in the North-East since India’s independence in 1947 (COE-DMHA, 2 April 2004). Violence has broken out in the states of Assam, Manipur, Nagaland, Tripura and Arunachal Pradesh, involving at least eight different ethnic groups (Bodos, Nagas, Kukis, Paites, Mizos, Reangs, Bengalis and Chakmas). The largest forced displacement movements have occurred in the states of Assam, Manipur and Tripura.
There is no official estimate of the number of internally displaced persons in the North-East. Most information is found in local newspapers, while objective research in terms of assessing the magnitude of conflict-induced displacement in the region is yet to be executed by either governmental or non-governmental agencies (IPCS, Routray, 17 January 2004).
In Assam, resentment among the Assamese against "foreigners", mostly immigrants from Bangladesh, has led to widespread violence and displacement of Bengalis, Hindus and Muslims. The largest displacement situation in the state stems from the (still ongoing) fighting between Bodos and Santhals which erupted in the early 1990s and displaced an estimated 250,000 persons. The most recent estimates of the number of people remaining in relief camps range between 110,000 and 135,000. The camps are located in Assam's Kokrajhar, Gosaigaon, and adjoining districts (USDOS 2003).
The Karbi Anglong and North Cachar Hills districts have been the main scenes of ethnic violence over the past few years and the situation has become increasingly volatile. In March 2003, fighting erupted between the Dimasa and Hmar tribes over land holding and governance in the North Cachar Hills. Up to 5,000 people were displaced as a result of this conflict. Women, children and the elderly took shelter in relief camps in the states of Manipur and Mizoram (The Telegraph, 20 June 2003). Today, normalcy has returned with a peace accord having been signed by both tribes. Although no information has been found regarding the return of the displaced, it is likely that most of them have gone back to their homes.
In the Karbi-Aglong district, thousands of civilians have been displaced following a series of incidents of ethnic violence due to two separate but overlapping conflicts, one between two militant groups, the United Peoples’ Democratic Solidarity (UPDS, a Karbi militant outfit) and the Kuki Revolutionary Army (KRA), and the other between the UPDS and the Khasi-Pnar people. Attacks by Karbi insurgents in October and November 2003 led to the displacement of 5,000 Kukis to Manipur and Nagaland. An unknown number of Karbis were also displaced (COE-DMHA, 5 December 2003; IPCS, Routray, 17 January 2004). In March 2004, following retaliatory attacks, more than 2,000 Karbis fled their homes in the Karbi-Anglong district of Assam to government-run relief camps (COE-DMHA, 29 March 2004).
Khasi-Pnar tribals were similarly severely affected by attacks from Karbi militant groups. In November 2003, 5,000 fled to Meghalaya as a result of threats and extortion by the UPDS and militants from another group, the Karbi National Volunteers (IPCS, Routray, 18 December 2003). The displaced were sheltered in relief camps run by Meghalayan authorities until they returned two months later (NENA, 6 December 2003). However, the Khasi-Pnars accuse Karbi groups of continuously violating their human rights by raping, killing, kidnapping, torching houses and grabbing their land (The Telegraph, 1 January 2004).
The worst attack on non-Assamese people occurred in November 2003, when a major wave of violence was launched against Hindi-speaking people, many of them coming from Bihar to find seasonal work in Assam. The conflict was triggered by a row over jobs and reported intimidation of Assamese people in Bihar and violence quickly spread from the capital city of Guwahati to areas in Upper Assam. Mobs and militants killed at least 56 people and torched hundreds of houses. There is no estimate of the number of people who became internally displaced within the state, but at least 18,000 fled to about 40 camps in and outside Assam (The Hindu, 2 December 2003; Frontline, 6 December 2003; Reuters, 21 November 2003).
a. Displacement in other parts of North-East India
The Naga people in India's North-East have been fighting for a homeland for over 50 years. In April 2001, a decision by the central government to extend a five-year-old ceasefire to all Naga areas in the North-East was met with violent protests in Manipur, Assam, and Arunachal Pradesh. The ceasefire was seen as a step towards the establishment of a greater Naga state which could infringe on the territory of the neighbouring states. Some 50,000 Nagas, fearing revenge attacks, fled the Imphal valley in Manipur to Naga-dominated districts in Manipur and Nagaland. According to the Naga International Support Centre, most of the internally displaced have returned to their homes and a final peace agreement is under negotiation with Indian authorities.
In North Tripura, some estimate that more than 100,000 people are internally displaced due to ethnic fighting and terrorist attacks by tribal insurgent groups targeting non-tribal settlers. During the first months of 2003, attacks by the outlawed National Liberation Front of Tripura and All Tripura Tiger Force, sparked off an exodus of non-tribal Bengalis from the interiors of the state. An estimated 31,000 Reangs from Mizoram also remain displaced after fleeing ethnic fighting with the Mizos in 1997. Despite recommendations and orders of the National Human Rights Commission and the central government, the state government of Mizoram refuses to take back the displaced Reangs because they maintain that only half of the displaced are citizens of Mizoram.
In Arunachal Pradesh, at least 3,000 Chakmas have been displaced in previous years and the tension between nationalist movements and the Chakmas threatens to displace many more. Residents have protested at the presence of the Chakmas, who began arriving from the Chittagong Hill Tracts of Bangladesh in 1964. Many residents still view the Chakmas as refugees, despite a ruling of India’s Supreme Court in 2000 directing the government to grant the Chakmas citizenship (USCR 2003). The Chakmas are regularly threatened with expulsion, in particular by an influential Arunachal student organisation, which maintains that the Chakmas should be resettled elsewhere (IPCS, 19 September 2003). Controversy mounted over the inclusion of 1,500 Chakma residents in the electoral rolls in April 2004.
3. Internal Displacement in Gujarat
In February 2002, violence erupted in the state of Gujarat. The violence began after a Muslim mob in the town of Godhra attacked and set fire to a train carrying Hindu activists. The reprisal attacks on the Muslim population killed more than 2,000 people and as many as 100,000 Indian Muslims were forcibly displaced from their homes. The state government organised relief camps, where the internally displaced reportedly lacked the most basic necessities such as food, medical supplies and sanitation (HRW, April 2002). Despite strong international concern, the Indian government refused to solicit or accept international assistance (USCR 2003). By October 2002, virtually all the camps had been closed, forcing many to return to their neighbor-hoods where their security was continually threatened. In rural areas, incidents of killing and looting continued until April 2003. Many were forced to flee to relief camps again, where they remained basically unassisted. In July 2003, a report by Human Rights Watch concluded that both the Indian government and the state government of Gujarat had failed to provide sufficient protection, assistance and compensation to the displaced. It is not known how many people have been unable to reclaim their homes and remained displaced as of June 2003 (USCR 2003). The Muslim population in Gujarat continues to face discrimination and episodes of violence targeting Muslims were frequent during 2003, especially in the district of Ahmedabad. The Gujarat state government is still being accused of being complicit in the on-going violence against the Muslim community in Gujarat.
4. Displacement of Nepalis in Northeast India
The process of migration of the Nepalis in Northeast India, Darjeeling, and Southern Bhutan began about two centuries ago with recruitment of Gorkha soldiers into the British Indian Army after the treaty of Sugauli (1816). The British who wanted a hardy labour force for their tea plantations facilitated the Nepali migration to Darjeeling while in Sikkim, the Nepalis served as a wedge to contain the Bhutias.
Anti-Nepali feeling in Northeast India was first observed during the Assam Movement. While the targets were the illegal migrants from Bangladesh, the Nepalis were also included in the anti-foreigner discourse. Allegations of Nepalis from Northeast India crossing over to side with the Lhotshampas and of their leaders, fleeing to Assam, probably encouraged the targeting of Nepalis in Northeast India in ethnic assertions and backlashes. They were largely caught in the crossfire between the Assamese anti-foreigner agitation and the Bodo Movement.
Although the government of India had clarified its position on the Nepalis early in February 1984 - that those in possession of the Restricted Area Permit would not come within the definition of 'illegal migrants' and stood protected - their position was soon threatened by the agitation for a separate Bodoland. The Nepali population in the Bodo Autonomous Council (BAC) areas in Western Assam was only 2.5 percent and in no way large enough to constitute a threat to the Bodos. However, the presence of the Nepalis along with the 63 per cent non-Bodos (Bodos make up 34 per cent) constituted a major threat according to the Bodos. During the ethnic cleansing of these areas a considerable number of Nepalis was displaced.
In Manipur, the sentiment took the form of a movement that in 1980 manifested itself in direct attacks on the Nepalis, compelling many of them to relocate and flee to safer areas. Meghalaya, saw similar sectarian violence in 1987. The violence primarily targeted the Nepali minority living in Shillong, Jowai and other parts of Meghalaya, which had over 150,000 Nepalis. Most of the Nepali people fled but the worst affected were the dairy farmers who had to give up their occupation and leave the state. Today, most of the displaced from Meghalaya and Manipur are settled in Rupandehi, Jhapa, Banke and other parts of Nepal's Terai region, besides Kathmandu and Pokhara. The anti-foreigner upsurge also spread to Mizoram and Nagaland where again Nepalis suffered violence and eviction.
Anti-foreigner movements almost all over Northeast India, triggered by the ‘son of the soil’ agitation in Assam, the Assam Movement (I979-85), which sought out Nepali and Bangladeshi migrants to be deported to their respective countries of origin, have made these migrants vulnerable to growing instances of nativist backlash.
The issue of the Nepali IDPs has failed to draw much attention first, due to their small number and second, due to the apparently mobile nature of the community that makes it easy to ignore the many complexities that affect this community in recent times in Northeast India.
Internal Displacement in Central India
In central India, leftist extremist groups commonly referred to as Maoists or Naxalites, have significantly increased insurgent activities during the past few years, including in the states of Madhya Pradesh, West Bengal, Bihar, Chhattisgarh, Jharkhand, Orissa, Tamil Nadu, Maharashtra and Andhra Pradesh.
Violence has been especially on the increase in Andhra Pradesh and Orissa. Distinction against the tribal population, displacement by large development projects and government failure to ensure food security have been the main reasons for the rapid spread of the Naxalite movement, according to an independent study released in June 2005. Estimates of the extent of the Naxalite groups differ widely. The last available government report states that 76 districts in nine states were affected by leftist rebels, while the June 2005 study says Naxalite groups had extended their influence to 155 districts in 15 states, affecting close to 300 million people across 7,000 towns and villages as of February 2005. Furthermore, such groups were reported to control almost 20 percent of India’s forests over an area two-and-a half times the size of Bangladesh.
The government’s response to the insurgency has been criticised of being ad-hoc and piecemeal. In addition to federal police and paramilitary troops, some states are also believed to use private armies in their hunt for insurgent groups and sympathisers. In Jharkhand state, for example, it is known that the state government has sponsored village “defense” groups for this purpose. In Chhattisgarh, a state sponsored movement against Naxalite violence has gained momentum. While the movement, called Salwa Jodum, is gaining support among the local population, state authorities have been accused of using the campaign to justify a brutal search for supporters of Naxalite groups.
No estimate of the number of people displaced as a result of the insurgency in central India is available, but anecdotal information suggests that thousands of villagers have been displaced either as a result of government mobilisation against the insurgent groups or because they flee Naxalite violence. In Chhattisgarh, approximately 15,000 people from 420 villages have fled to temporary camps. People have left behind their cattle and most of their household goods. Displacement is reportedly continuing while more police and para-military stations are being set up. 7,000– 10,000 people fled to camps protected by the police to avoid Naxalite retaliation because they had joined the Salva Jodum movement. In Orissa, the state authorities have reportedly forcibly displaced local tribes because they were suspected of sympathizing with the Naxalites.
The following issues mainstreamed the Naxalite conflict in 2006: First, with 48.5% of the total killings being reported from Chhattisgarh, the Salwa Judum campaign with its disastrous consequences such as the violations of the right to life by the Naxalites and the security forces and Salwa Judum cadres, forcible displacement of 43,740 persons as of 31 December 2006 and abdication of the law and order to the lawless and unaccountable Salwa Judum cadres brought national and international spotlight on the Naxalite conflict in India.
Second, the Naxalite conflict has spread to new areas in 2006. According to the 2005-2006 Annual Report of the Ministry of Home Affairs, Naxal violence in 2005 was reported from 509 police stations across 11 states. In 2006, Naxal violence has been reported from 1,427 police stations in 13 States. Among the Naxalite affected States, Chhattisgarh, Andhra Pradesh and Jharkhand were most severely affected, followed by Maharashtra and Orissa.
Third, the attack on Jehanabad jail in Bihar on 13 November 2005 by the Naxalites was followed up by the simultaneous attacks on the State Armed Police camp, the local police station, sub-jail, treasury, tehsil office and a telecom tower in Udayagiri town of Gajapati district of Orissa on 24 March 2006 in which 40 prisoners were freed, three policeman were killed and arms were looted. Similarly, the killing of 13 Central Reserve Police Force personnel at Kanjkiro, 62 kilometers from Bokaro, Jharkhand on 2 December 2006 was followed up with the detention of the Tata-Kharagpur passenger train near a deep forest between Gidni and Chakulia stations in Jharkhand on 10 December 2006. These incidents raised the spectre of the Maoists’ increased striking capability reminiscent in neighboring Nepal.
Fourth, the easy access to small arms by the Naxalites, hitherto known only in the North East and Jammu and Kashmir, came to the fore.
Fifth, while the security forces continued to violate human rights, the chilling massacres of the unarmed civilians by the Naxalites in 2006 were unprecedented.
Across the Naxalite affected areas, the edifice of the State structure remains weak and the State governments have virtually failed to deliver to the citizens even the basic amenities. Consequently, the law and order approach in the areas where there is neither law nor order remained dominant. The Naxalites while frowning at the lack of development systematically targeted all such governmental buildings that could provide shelter to security personnel and virtually blocked all development initiatives.
Increasing conflicts as a result of the acquisition of lands either for Special Economic Zones (SEZs) or development of industrial projects without free, prior and informed consent and without proper and appropriate relief/rehabilitation of the displaced persons in more ways than one mainstreamed the Naxalites’ worldview as never before."
Governments Response towards Internal Displacement
The Indian government has been accused of failing to adhere to standards laid out in the UN Guiding Principles on Internal Displacement and to international human rights standards in its response to displacement in Kashmir and Gujarat.
Overall, the government’s response to internally displaced from Kashmir has been much more generous than the response to displaced elsewhere in the country (ACHR, October 2003). According to an official report in 2000, the Indian government spends $532,000 per month on financial and food aid for the displaced in Kashmir (ORF, September 2003). Recently, the government also announced a wide-reaching development programme for Jammu and Kashmir where $2.2 million is earmarked for relief to displaced Kashmiri Hindus (SAM, 16 August 2003). No such assistance is being provided to internally displaced in the North-East. The government does however grant relief on an ad-hoc basis. After the violence against Hindi-speaking people in Assam, the government announced a relief package including construction of houses for nearly 20,000 people living in 30 relief camps in Assam, supply of relief materials, including food grains and other essential commodities (NENA, 7 December 2003). In Gujarat, reports blame local authorities as well as the state government for failing to address the needs of the displaced altogether, despite promises made by the government with regard to rehabilitation. In a positive development, efforts were made to make displaced voters participate in the April and May national elections. The Electoral Commission ordered that displaced Kashmiri and Reang citizens could vote in their home states by submitting postal ballots. Newspapers also reported that polling booths were put up in relief camps for displaced people in Assam.
In March 2004, the Asian Development Bank (ADB) announced a loan of $243 million to Indian-controlled Kashmir. Part of the loan is expected to address the problems facing internally displaced people fleeing conflict in Kashmir.
India frequently denies international humanitarian actors access to internally displaced populations, arguing that local governments take full care of the affected people. Most of the North-East, for example, is off-limits to foreigners.However, Médecins Sans Frontières (MSF) and the Lutheran World Federation have obtained access to relief camps for internally displaced in Assam. MSF has also assisted internally displaced in Jammu and Kashmir. In general, India lacks a national IDP policy and the government systematically refers to internally displaced persons as “migrants”. A clear mandate for national and state institutions to assist and protect internally displaced people as well as improved data collection would constitute vital steps towards establishing an improved response to the displaced in line with international standards.
Judicial Response to The Displaced
Though the court expanded the language of Article 21 to incorporate the right to rehabilitation as a fundamental right, it did not apply the same to a real fact situation. Instead, it chose to take a narrow approach by demarcating a line between policy decisions and judicial interference. The result was that the oustees could not secure justice and were failed by the courts ailed as citizen’s custodian of rights. More significantly, the following criticisms can be made of the above decisions.
1. In Narmada, the court allowed the construction of the dam to proceed by blatantly disregarding the evidences placed before it. The court’s final decision did not take into account the affidavit filed by the government of Madhya Pradesh which stated that that it has no land to resettle the oustees, that in all these years Madhya Pradesh has not produced a single hectare of agricultural land for its oustees. It ignored the facts that not one village has been resettled according to the directives of the Narmada Water Disputes Tribunal Award, the fact that even thirteen years after the project was given conditional clearance, not a single condition has been fulfilled, that there is not even a rehabilitation Master Plan.
2. In Narmada, the court went on to say that, “It is for the Government to decide how to do its job. When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a Court may have to play is to see that the system works in the manner it was envisaged.” The petitioners had not asked the court to intervene in policy decisions of the government, but to restrain the construction on the ground that the project was not being implemented as it was envisaged, without any rehabilitation. The distinction made by the court between policy decisions and the permissible area of judicial intervention was unnecessary in this context. More importantly, contrary to its own finding, the court itself indulged in commenting on the policy decisions of the government when it presented an unqualified eulogy on the virtues of a dam such as the following in the Tehri’s case. It said, “The benefits which have been reaped by the people all over India with the construction of the dams are too well-known and, therefore, the Government cannot be faulted for deciding to construct the high dam on river Tehri with a view to provide water and electricity in the area as was the decision in the Sardar Sarovar project’s case also.”
3. The court refused to accept the report prepared by the Morse Committee which was an independent committee appointed by the World Bank. The Morse committee, which was set up by the World Bank comprised qualified and reputed members. Assisted by the finest consultants from around the world, it conducted an extensive review of the rehabilitation and environmental aspects through a period of 10 months. The committee being the only one with access to all the documents relating to the project from the World Bank, governments, NGOs, NBA etc, produced a comprehensive report. However, the report was not accepted either by the World Bank or the Government of India. This rejection by the World Bank and Government of India was not surprising since the report was critical of both the project and the World Bank. But what is highly unacceptable is the Supreme Court’s rejection of the report on the grounds that it was rejected by both the World Bank and the Government of India.
4. The majority order of the Supreme Court observes that, “Once the Award is binding on the States, it will not be open to a third party like the Petitioners to challenge the correctness thereof. We therefore, do not propose to deal with any contention which in fact seems to challenge the correctness of an issue decided by the Tribunal.” This is a very legalistic interpretation of the Inter State Water Disputes Act (ISWDA) and Article 262 of the Constitution. The Narmada issue being a dispute between the state and the people and one where the fundamental rights of the people are involved, the court’s declaration that a third party cannot challenge the Tribunal is an incorrect application of the ISWDA which created the Tribunal to solve disputes between the states inter se. The fact that the people were not given a hearing before the Tribunal clearly indicates the injustice involved.
Even if there is an assumption that the governments represent the people, in this case, the governments represent to the tribunals on behalf of the beneficiaries and the affected. This being a conflict of interest, it is only fair that there be a provision enabling the representation of the affected people. If this cannot be done, there should at least be a provision to challenge the tribunal, especially since it involves the right to life of the citizens. The need is furthered by the existence of situations wherein the facts and assumptions on which the tribunal based its order have been found to be incorrect, as in the case of the Sardar Sarovar Project. It would be a difficult situation if the implementation of one part of the tribunal award becomes impossible and there is no right to challenge the tribunal order. The situation is akin to what is happening in the Sardar Sarovar project where implementation of the rehabilitation plans is incomplete leading to the violation of the tribunal order time and again. In such cases, it should be open to the person to challenge the order on the ground that the part of it dealing with right to life is not being implemented.
The three states, namely Madhya Pradesh, Maharashtra and Gujarat, along with the Narmada Control Authority, the machinery to implement the tribunal have not bound themselves by the tribunal. While clause VII of the Tribunal award says, “The Tribunal hereby determines that the height of the Sardar Sarovar Dam should be fixed at Full Reservoir Level (FRL) 455 feet and Maximum Water Level (MWL) 460 feet”, the above mentioned authorities have changed the height of the Sardar Sarovar Dam to a MWL of 455. According to the tribunal, the people who are below MWL and above FRL have to be rehabilitated. By changing the MWL, the done away with the need to rehabilitate people. Thus the Sardar Sarovar Dam height has been changed, and this change cannot be challenged by people mainly because according to the majority it is impossible to change the height of the dam. An analysis of the cases reveal that the courts have given decisions that helped in legitimising government’s abuse of power. Thus, even though the court granted formal rights by expanding the scope of Article 21, it desisted from applying the same to real fact situations such that the abstract could be contextualised.
Thus, both the legislature and the judiciary have failed to provide a solution to the problem of rehabilitation. While it was expected that the judiciary would correct the legislative slackness of not enacting a national legislation on rehabilitation by assuming a more dynamic role; however in its absence, the need arises to look for an alternate solution and the next section shall do the same.
The legislature has shown unwillingness to enact a rehabilitation legislation even after sixty years of independence. Although, the judiciary has granted rights to the displaced prima facie, it did little to implement them. In fact the Narmada and the Tehri judgments reflect how courts have supported the acts of the government by taking a stand that would further their interest. The situation now is that both the legislature and the judiciary have failed to address the injustice caused to the internally displaced persons. Thus, this paper made a case for creating international pressure on the nations to grant the right to rehabilitation of the refugees by expanding the current definition of refugees such that internally displaced persons are included in its purview.
The existing definition of refugee in international documents has been consistently criticised beginning with Simpson in 1938. The consistent claim against the existing definition in chief international documents is the fact that they are irrationally narrow and exclusive in their scheme without enough justification supporting such a scheme. It is a fact that the accepted definition of refugee excludes internally displaced persons from its purview by putting forth ‘crossing of international borders’ as a necessary condition for designation of refugee status, in spite of the fact that the plight and suffering of the internally displaced persons is every bit as serious as persons crossing international borders.
Such a requirement completely ignores socio-economic and legal impediments to crossing of international borders. This argument against the existing definition has never been satisfactorily countered. Again, exclusion of causes apart from individualized persecution, such as natural disasters and large scale developmental projects, from the purview of the definition of refugee appears to be unreasonable. This appears especially irrational in light of the fact that these unrecognized causes of flight account for displacement of enormous population in contemporary times and there is enough statistical data to corroborate this argument. Thus, there are enough arguments for remodeling the accepted scheme of definition of refugee so that these unjustified exclusions are rectified. There is a significant case for broadening the definition of refugee by doing away with crossing of international border as a necessary condition for designation of refugee status and recognizing causes other than individualized persecution, especially large scale developmental projects and natural disaster, as legitimate causes of flight.
# Arundhati Roy, Lies, Dam Lies and Statistics, THE GUARDIAN, June 5, 1999.
# Indian water resources society, five decades of water resource development in India 7 (1998).
# Satyajit Singh, taming the water: the political economy of large dams 188 – 99 (1991)
# At a meeting in New Delhi on 21st January 1999 organised by the Union Ministry of Rural Areas and Employment, for discussion on the Draft National Resettlement and Rehabilitation Policy and the Amendment to the Draft Land Acquisition Act: Arundhati Roy, The Greater Common Good, in THE ALGEBRA OF INFINITE JUSTICE 60 (2002).
# GOI 2002-2003, Chapter III, p.13
# GOI 2002-2003, pp. 27-28
# Hindu Press, 9 March 2003
# GOI, 2002-2003, Chapter III, p.29; SAM, 16 August 2003
# COE-DMHA, 5 March 2004; COE-DMHA, 26 March 2004; Reuters, 17 December 2003
# USCR January 2000, p.2-3, 5-7, Bhaumik, p.22-24
# The Hindu, 16 March 2004; ACT- LWFI, 20 February 2004
# NPMHR, 5 January 2002, AHRC, 1 October 2003
# Deccan Herald 20 March 2004, Rediff.Com, 21 May 2003
# Rediff.Com, 12 May 2003
# ACT-LWS-I, April 2003
# IIJ, December 2003, Times of India, 4 November 2003
# IIJ, December 2003, p.51
# Haldr, Chiranjib, March 2007, The Nepali Influx in Northeast India.
# Center of Excellence in Disaster Management & Humanitarian Assistance (COEDMHA), 14 April 2005, Indian federal government boosts counter-insurgency operations against leftist rebels.
# Asian Centre for Human Rights (ACHR), 21 September 2005, Naxalism and civil wars of India; Frontline, 15 July 2005, A naxalite corridor.
# South Asia Analysis Group (SAAG), 13 June 2005, Messing up with Naxalites, by Col R. Hariharan.
# Ministry of Home Affairs, Government of India, (MHA-GoI), 2005, Annual report 2004 – 05, p. 43.
# The Telegraph, 26 November 2006; Center of Excellence in Disaster Management & Humanitarian Assistance (COE-DMHA), 6 February 2006, Clashes with Maoists in south-central India responsible for at least 16 deaths India: tens of thousands newly displaced in north-eastern and central states 9 February 2006; South Asia Analysis Group (SAAG), 13 June 2005, Messing up with Naxalites, by Col R. Hariharan. Frontline, 15 July 2005).
# Stratfor, 16 January 2006, The Threat to India's High-Tech Sector.
# People's Union for Civil Liberties (PUCL), 2 December 2005, Fact-finding report on the Salwa Judum, Dantewara District.
# PUCL, 16 November 2005.
# Asian Centre for Human Rights (ACHR), 10 January 2007, Naxal Conflict in 2006.
# HRW July 2003, p. 38; ORF September 2003
# IIJ, December 2003; HRW, July 2003
# The Hindu, 16 March 2004; Deccan Herald, 24 March 2004; India EC 2004
# COE-DMHA, 19 March 2004
# GOI, 21 July 2000; USCR, January 2000, p.4
# Narmada Bachao Andolan vs Union of India, A.I.R. 2000 SC 3751
# NBA comments on the Supreme Court judgment, www.narmada.org/sardarsarovar/sc.ruling/ nba.comments.html. (Last visited on November 2, 2008).
# Letter to Supreme Court Judges on Narmada Case – Sardar Sarovar Dam Height Changed available at http://www.narmada.org/sardar-sarovar/sc.ruling/ravi.letter.html (Last visited on January 5, 2008).