Land and Human Rights

There are few more contentious and complex problems in India than those dealing with land and land rights. Rather than just focus on a single issue, a continuum of rights has to be established regarding land, especially in areas of access and reforms, laws and enforcement, use planning and management, administration and information, and its cross-cutting issues. The new and existing initiatives on land should be guided by the core values of pro-poor, conflict resolution, democratic governance, equity, and justice, as well as gender sensitiveness. Although land policy development is taking place, it generally lacks a human rights framework. Land is not simply a resource for one human right. While some rights have been recently established in the legal framework (like work, education, food), they all can be adversely affected by access to land, and the legal implications of it for a broad range of human rights is obvious. The Land Acquisition and Rehabilitation and Resettlement Bills should also be assessed on the basis of several international principles, interpretive documents and legal frameworks.

Framing Interventions by Sectors

If we frame land issues today through different interventions, we find more problems and disjoints than solutions, because interventions have often been narrowly framed in the context of specific sectoral and thematic perspectives. We have a few recent examples: a) Special Economic Zone (SEZ), a pet project of the Ministry of Commerce and Industry, Government of India, for economic growth, supported by quality infrastructure and attractive fiscal packages, both at the Centre and the State levels, with the minimum possible labour and environment regulations. The SEZ rules provide for different land requirements for different classes of SEZs. The Ministry continues with the same zeal, and the Board of Approval of SEZs at the Department of Commerce will meet as usual on 11 August 2009 to consider the applications for new SEZs and also to approve several other proposals of companies to facilitate the working of existing notified SEZs, including increasing their existing land areas. (See Ministry of Commerce website: sezindia.nic.in) b) Companies are getting restive over delays of their projects, mainly due to serious problems in land acquisitions and environmental clearances. Eighteen major projects in sectors like steel and power, equivalent of Rs 244,815.5 crores, are stuck due to procedures relating to land acquiring and forest and environment clearances, states a recent study by Assocham. The major companies involved are Arcelor Mittal, POSCO, Vedanta Group, Tata Steel, Essar Steel, Jindal and DLF. c) Government lacks a policy framework and has little internal and intra-ministerial coordination. The Ministry of Rural Development, who is now championing the Land Acquisition and Rehabilitation and Resettlement Bills, constituted a ‘Committee on State Agrarian Relations and the Unfinished Tasks in Land Reform’ in January 2008, under the chairmanship of Minister of Rural Development. It had experts like K. B. Saxena, Praveen Kumar Jha and Ram Dayal Munda, and had a stated motto that ‘socially just access to land, land-related services and security of land rights are of utmost importance in achieving the desired pace and level of economic growth and sustainable development’. However, in the same Ministry and Department, the Committee’s report and recommendations now find no mention. d) Planning Commission, an important body for coordinated policy formulation in critical areas of resources and economic development, in its report by an Expert Group on ‘Development Challenges in Extremist Affected Areas’ (April 2008) recommends several land-related measures: serious effort must be made to continuously implement the land ceiling laws; landless poor in occupation of government land should not be treated as encroachers and ordinarily should not be evicted; comprehensive protective measures against alienation of tribal land must be taken up as a priority national programme, etc. Recommendations relating to land acquisition and rehabilitation and resettlement say that indiscriminate land acquisition should be stopped and land acquisition for public purpose should be confined to public welfare activities and matters of national security. According to the report, the proposal of amendments contained in the Land Acquisition (Amendment Bill, 2007) however, fail to achieve these objectives. These proposals need to be further revised to minimize displacement and secure the rights of affected displaced persons. This exercise must be done in consultation with affected persons and not merely with the government agency. None of these have been taken into account in the current governmental exercise.

Human Rights Framework

Land Acquisition Act with a colonial legacy must go, either by amendment or by abolition. One can argue on the positive side that the cross-sectoral aspect of land issues sometimes allows for piecemeal selection of how to frame interventions in the most strategic way in a given context. For example, would a government, with a new mandate and a stated pro-people commitment, be more responsive to land interventions targeted towards economic growth, or would an activity that focuses on peoples’ rights, environment and natural resource management, and increased agricultural productivity garner the most support? Choosing the best way to frame interventions requires understanding of a country’s land issues, and how they connect to larger conflicts. In this regard, international human rights standards are also valuable tools. Conventions of the ILO (especially c 169 concerning Indigenous and Tribal Peoples) underscore the importance of several key principles related to land. These are: free, prior informed consent (FPIC), relocation, rehabilitation, compensation, return, and procedures to deal with grievances. It lays the basis of informed consent, and offers protection for the community, recognizing its rights, even if there may not be a formal legal title of ownership. It recognizes the idea of collective ownership, establishes legal procedures, sets out principles for use of resources, institutes relocation principles and principles for compensation, and calls for penalties for unauthorized intrusion.

In 2007, the U.N. General Assembly adopted the Declaration on the Rights of Indigenous Peoples, with India speaking in favour of it. It states that ‘indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.’ The Declaration, while not binding, states that indigenous people have a right to own and develop resources on their land, a right to legal recognition of indigenous lands by states, and a ‘right to redress… for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged.’ Both the Convention and the Declaration emphasize participatory dialogue and the need for free, prior, and informed consent with respect to decision-making about land occupied by indigenous people, especially where the relocation of people from the land is under consideration.

The human rights crisis facing rural India today largely centres on the issue of land rights. Our slums, resettlement colonies and tribal areas are home to numerous campaigns to save their lands and habitat, to secure land reform, and press for land claims. If we only take into account the known eighteen disputed projects in 2009, some 300,000 Indians are known to live at risk of being forcibly evicted in the wake of land disputes, land grabbing, and agro-industrial and urban redevelopment projects. Thousands have already been forcibly evicted in recent years, many left homeless, others relocated to inadequate resettlement sites with poor infrastructure, lacking basic amenities, including sanitation, and with limited access to work opportunities. We have failed to protect, in law and in practice, the population against forced evictions. By contrast, those with political or economic power are allowed to act with impunity in arbitrarily expropriating land. This is the burning context amidst which we are dealing with the land acquisition and rehabilitation bills. Today a ‘menu’ of approaches might help facilitate broader access to land to multiple stakeholders like the industries, developers and colonizers, but it endangers equality in economic opportunities. Alternatively, the government could go for improving employment prospects by introducing an agrarian reform programme for landless groups, and by promoting alternative employment opportunities, emphasizing that access to land and agrarian reform form a key part in the forthcoming right to food initiative.

4 thoughts on “Land and Human Rights”

  1. I think this post raises a very important issue. I am in broad agreement that framing land issues by sector results in a sort of fractured understanding. But to be frank, I feel equally frustrated by a human rights framework that depends heavily on covenants and universally applicable principles.

    The troublesome part of this whole turmoil actually centers around what is suggested in the sentence: “Choosing the best way to frame interventions requires understanding of a country’s land issues, and how they connect to larger conflicts.”

    The large majority of people who are affected by changing land use patterns are those who have very fragile (often non existent) legal claims to land. For them, the issue is not somuch about land but about ‘place’ and ‘location’. For example, for many displaced slum residents, the biggest damage arises from loss of local social relationships that are crucial to their livelihoods.

    When agricultural land changes hands to become industrial, it is those migrant workers who live on the margins of the agrarian economy who suffer the most as they lose all those little resources that come with living near agricultural lands. When a horizontally spread slum becomes a vertical public housing unit, it can still work for young couples but it can be disastrous for single women, young unmarried women, widows with grown up daughters and so on. For young men who dont have regular jobs and have to depend on local information networks to make a living, these changes mean very difficult readjustments.

    I dont know which human rights frameworks have actually taken on board these kinds of issues.

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  2. Mukul Sharma points out that “some 300,000 Indians are known to live at risk of being forcibly evicted in the wake of land disputes, land grabbing, and agro-industrial and urban redevelopment projects.” This wrt 2009 projects alone.

    I will quote from a letter I wrote to the Hindu in response to Ramaswamy Iyer’s analysis of the proposed LAA amendment & R&R bill. (A slow but sure step forward)

    Forced Land Acquisition and on-paper-only rehabilitation have been displacing and impoverishing lakhs of Indians before Independence and every year since.

    Rather than widening the definition of public purpose, as the amended LAA does, to include private and company interests, we must ask the most basic question, “who defines public purpose?”

    Unfortunately in neither the existing LAA nor the amended LAA can anyone contest the ‘public purpose’ for which land is being acquired.

    We must ensure that those who are asked to invest land in any project are consulted at the earliest stages of planning the project, not just in view of their vulnerability as losers, but also for their expertise in social and natural resource management which they have honed over generations. This is the time to seek out paths for “minimum displacement” and “non-displacing alternative” so that the people can help in planning the project to meet the objectives efficiently. We should also plan in such a way that we can return the land to the investors in case the project is not effective. Though it may not be returned in the same condition as when it was acquired, it should nonetheless be returnable if it turns out that the project was a failure and should not remain as permanent government property without consultation with the investors.

    These investors must be treated as shareholders in the project and have a role in planning its public-purpose benefits as well. In the Narmada Valley I have listened to the adivasi people say, “we are willing to sacrifice for the benefit of those who are poorer than ourselves.” Yet the drought-affected farmers for whom the Sardar Sarovar dam was supposedly built, were left high and dry as Narmada waters were given to industries, water parks and cities along the canal route long before it could reach Kutch and Saurashtra.

    So let there be no doubt that the landholding poor will not support projects for the public interest. Take their help from the beginning and we are sure to see the sun shine on non-displacing alternatives.

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  3. Any and all legal rights do not originate from written words but from the very fact that we are all living beings. The fact that we Live is proof enough for the existence of universal Land Rights. Land is Life and therefore the Inherent Birthright of every Man, Woman and Child period. God grants this right as can be witnessed throughout Creation as every creature has the inherent ability and intuitive understanding to find any suitable place to create shelter for themselves. Bow down to the one you serve (words written by man or the Creator) for you will surely get what you deserve. Peace to all my brothers and sisters.

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  4. Simple solution to True, Lasting Land Reform –

    1. Remove ALL LAND from the marketplace and move the current monetary value of the Land onto the improvements.
    (so value is not lost to the owners of the improvements)

    2. Charge lease fees on ALL LAND that is in use. The lease fee is based on current market value of the Land.

    3. Take the resulting revenue generated from the lease fees and redistribute 100% of it equally to every man, woman and child in the form of a yearly Land Dividend Check. The Yearly Land Dividend Checks for a family will exactly equal the lease fees for the average piece of Land. This is the only way to fairly share the Land among all peoples ;-)

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