Unpacking the IT Rules, 2021

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The recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) are the result of multiple calls over the last few years for the regulation of digital content platforms, particularly social media intermediaries, OTT platforms and digital news services. Three particular strands of concern have coalesced into these calls: the growing menace of fake news, that has on occasion even resulted in deaths; the proliferation of online streaming platforms carrying un-moderated content that on other media (cinemas, television) has been subject to reasonably stringent regulation; and the increasing anxieties expressed over the power of “big tech” firms such as Twitter and Facebook, raising the need for regulations to curb their influence.

The IT Rules have come under criticism since their launch, with complaints of regulatory over-breadth and overreach. As many as five petitions have been filed in court challenging the Rules. Common objections include traceability, automated content removal, and takedown requirements for intermediaries; and the role of the government in grievance redressal for digital media and online curated content providers. Most of these objections have been articulated procedurally: that in seeking to impose these regulations, the rules are ultra vires the parent Act because they exceed the scope of what it permits, especially in terms of content blocking and takedown, and regulation of digital media platforms. These procedural objections are important, because delegated legislation is legally enforceable only when it is within the ambit of what is permitted under the parent law. However, while adherence to process is essential, there is a need for a strong substantive argument as well.

Recent experiences have shown us that a government that has Parliamentary majority can easily overcome procedural hurdles. And Parliamentary approval is not a guarantee for better regulations: take the Cable Television Networks (Regulation) Act, 1995, enacted in response to judicial observations regarding the regulation of cable TV, which as a medium was as new to the country then as digital media and online curated content are today. It resulted in a Programme Code that is applicable to all TV content, which does not seem to have been subject to any serious scrutiny despite several provisions being extremely vague and problematic. It is this Programme Code that the IT Rules extend to online content as well.

The key to good regulation is taking a principled approach to the issue at large, rather than knee-jerk reactions to an immediate problem. In the past, courts have asked for stringent internet regulation only in response to PILs that have highlighted an immediate crisis: ads for pre-natal sex determination, rape videos circulating online, online content accused of hurting religious sentiments, etc. Even with the IT Rules, the apex court mentioned that the rules have “no teeth” and has called for a legislation as instead. The argument that the IT Act does not permit regulation of digital media and the same should be done through Parliament is necessary but not sufficient, because while it may stymie the present Rules, it does not consider the consequences of their provisions being translated into a law. Hence, it is fundamental to scrutinise these Rules on first principles.

What would this look like? Substantively, it would involve a nuanced exploration of Fundamental Rights, especially Article 19(1)(a) on freedom of speech and expression and look at whether restrictions being placed on them through the regulations are necessary, reasonable, and proportionate. Procedurally, they would engage with tenets of participatory democracy: wide-ranging consultations, with all stakeholders being given the opportunity to comment and all concerns being taken on board. Neither process seems to have been followed while drafting the present IT Rules.

If we look at the regulatory aspects of the IT Rules, they require firms to submit and comply, rather than appropriately incentivise conduct. This has also revealed new fears about how this regulatory approach can deter the exercise of individual rights, for the current course seems to indicate that the government is attempting – similar to its attempts with the Personal Data Protection Bill (“PDP Bill”) –to eliminate the power of digital firms through its regulatory muscle, instead of creating a stable Indian internet ecosystem that incorporates independent checks and balances. It is also important to note here that the new rules have been enforced without a strong data governance framework. Moreover, the I&B Ministry’s claim to regulate content under the IT Rules is contrary to modern practice, including the Indian experience, of having regulatory bodies independent from the Government.

The IT Rules are symptomatic of a new kind of regulatory ecosystem emerging in India, also reflected in the PDP Bill’s call for data localisation. Besides being devoid of a principle-based approach, they make it clear that political economy is at the heart of India’s internet regulation. Are they preliminary markers to a digital nationalism – an “aatmanirbhar bharat” that runs the risk of eliding the difference between the nation and the government in power? Should power over the internet be concentrated in the hands of the state, rather than individual users? Answers to these larger questions will come only from a deeper understanding of the political economy of the state. To get them, we must argue on first principles, and not just on procedure.

Unpacking the Processes Involved in Declaring Udaipur Open Defecation Free

NEW STUDY BY ACCOUNTABILITY INTIATIVE AT CPR

 

On the request of the Udaipur district administration, the Accountability Initiative at the Centre for Policy Research undertook a sample survey of recently declared and verified Open Defecation Free (ODF) Gram Panchayats (GPs) in the district, in 2017. The study found significant gaps in the processes involved in achieving ODF, and resultantly found less than 100% toilet coverage and even lower usage, bringing into question the veracity of the ODF status.

While there have been a number of recent studies seeking to understand the status of sanitation in India, relatively fewer studies attempt to examine the processes involved in declaring villages or GPs as ODF. This study aimed at filling this lacuna by undertaking a detailed process evaluation of the recent sanitation efforts in Udaipur.

The study was conducted in a limited setting, and was designed to be representative only of the ODF GPs in Udaipur. However, the structural and systemic infirmities in the bureaucratic apparatus are not unique only to Udaipur administration. With Rs 30,973 crores allocated to rural sanitation by Government of India and over 4 lakh villages having been declared ODF, these findings therefore assume a national significance, especially as the Swachh Bharat Mission Period draws to a close. At the very least, it evidences the need to conduct similar assessments in other parts of the country, which have seen rapid ODF declarations since 2014.

The full case study can be accessed here.

Understanding Out of School Children (OOSC) in India: the Numbers and Causes

NEW WORKING PAPER CO-AUTHORED BY KIRAN BHATTY

 

The number for out-of-school children [OOSC] put out by various official sources in India, show wide variations. The Ministry of Human Resource Development (MHRD) survey (IMRB-SRI, 2014) estimate of this figure is 6 million, while for the same year, the National Sample Survey (NSS) figure is 20 million.

Each figure is based on an estimate of ‘never enrolled’ and ‘dropped out’ children. A closer look reveals that problems exist not just in the definitions, especially of drop out used by each source, but also in the methods of estimating ‘never enrolled’ as well as ‘dropped out’ children. In addition, discrepancies and inefficiencies in the overall system of collecting and collating data compound the problems.

This study by Senior Fellow Kiran Bhatty attempts to address these issues through developing a more direct approach to calculating ‘never enrolled’ children based on a child census, as well as identifying OOSC using a broader understanding of absenteeism or ‘dropped out’ children based on irregular attendance.

It also analyses the links between attendance and socioeconomic and school factors. In doing so, it fills an important gap in the literature by questioning the definition/understanding of an ‘out-of-school’ child, as well as by using methodologies not employed before to estimate children not enrolled in school and to track attendance of those enrolled over an academic year.

The findings of the paper are divided into two sections – the first section describes the survey findings and estimates of OOSC and attendance patterns of students and teachers; while the second section provides an analysis of the links between child attendance and various household and school level factors.

The full working paper can be accessed here.

Understanding Subaltern Urbanisation in India and its Impact

A SERIES OF INTERPRETATIONS DRAWING ON A NEW BOOK ON SMALL TOWNS

 

Context

This first piece introduces a series on Subaltern Urbanisation in India that aims at understanding the dynamics of small towns, their place and role in the Indian urban transition process. It summarises the origins, the rationale and the methodology of a collective research project that involved a team of around 25 researchers, including the urbanisation team at CPR. The series will detail some of the results produced in a recently published edited volume, point towards future directions for research, and open up debates on public policy.

The background of this project is located both in empirical and theoretical concerns. One out of 10 urban dwellers in the world lives in India and small towns (less than 100,000 population) account for 90% of Indian cities and over 40% of the urban Indian population. Therefore understanding India is necessary to understanding global urbanisation, and understanding Indian urbanisation requires an all-round view beyond the overwhelming attention given to metropolitan and large cities. There is therefore a need to return to a more complete idea of the urban and this includes the study of the dynamics of small towns.

Defining subaltern urbanisation

Coining the term Subaltern Urbanisation can be seen as polemical but it seeks to embody two important strands that shape a common thinking around the potential role of small towns.

  • First, it attempts to make small places intelligible in contrast to their current level of invisibility in India and at the international level;
  • Second, it tries to think of small towns as sites endowed with some level of autonomy and agency while the dominant paradigm, in particular in the New Economic Geography school of thought, sees small urban spaces as dependent on large metropolitan economies.

Methodology

From a methodological point of view, the project was launched by a collective formed around 2009 assembling researchers from different disciplines, in order to engage in a multidisciplinary dialogue combining both GIS (Geographic Information Systems), quantitative data and qualitative methodologies. Nevertheless, this mixed method approach has not only been used to capture diversity and multiscale analysis but also in order to understand small towns as abstracts entities. It goes deep into capturing the varied types of interactions that produce the diversity of these urban environments.

Redefining urban, its scope, and the urban transition process

The point of departure of this research and its content was to interrogate anew the definition of the urban, the scope of the urban world and the urban transition process itself.

Our research questions were shaped both from theoretical debates and from a prior research project that aimed to refine the UN’s (United Nations) efforts to build comparative data sets to measure urbanisation worldwide. It is grounded in a questioning of the existing restricted representations, measures and explanatory models of urban expansion.

For India, this data base enabled us to build data at the lower urban settlement level. It demonstrated the importance of small settlements, which was confirmed by the 2011 census. It aimed at bringing to the fore issues involved in defining the frontier of the urban and its political dimensions as well as raising the important (and to some extent increasing) role small towns play in the urban transition process. From a more theoretical point of view, our aim was to add to a growing body of work that reclaims the diversity of the urban phenomenon beyond the global metropolitan cities and highlights the range of national and regional trajectories.

Small towns and economic growth

An important aspect of the research was also concerned with the relationship between small towns, the larger employment story and growth. Indeed, small towns have remained an important feature of the Indian urban system. They might or might not account for a large share of the GDP but they represent a large and growing market and they also act as important service centres to the rural population. In a context of limited rural to urban migration, job destruction in the agricultural sector and very limited job creation, our results show how small towns are, inter alia, places of adjustment where people cope with poverty, uncertainty through the mobilisation of their kinship networks and family resources. This result, in particular, is confirmed by additional work carried out in Bihar and funded by the World Bank, which will be elaborated upon in a forthcoming podcast.

We have also been interested in the nature of economic activities that range from traditional activities (such as the collection of Tendu leaves in Abu Road in Rajasthan), to natural resource extraction (such as coal mining in Barjora, in West Bengal), manufacturing, services and trade; as well as real estate and the private and education institutions (in Tamil Nadu and Haryana in particular). Ethnographies of a variety of sites located in different States confirm the role of favourable land prices and regulation and cheap labour for the development of small towns. However, they also document how innovations and entrepreneurship are based on an ability to tap local resources and adapt to a very rapidly changing market condition, that include exploring international markets (such as the furniture industry in Kartarpur or drilling rig assembly industry in Tiruchengode).

The social dimensions of small towns’ economies

To answer this question, the project has also been concerned with understanding the kind of capital (human, land, social networks, etc.) that actors mobilise. It has observed small towns as sites of social changes and not looked at these spaces as frozen in time or as places of entrenchment of parochial societies. On the contrary, many case studies underscore the dynamism and the innovation taking place in some of these small towns, an innovation based on the harnessing of transnational networks (as in the case of the fishing industry in Udipi, in Karnataka), or the embeddedness of symbolic and religious dimensions in handling land and financial capital (as seen in the temple towns of Tamil Nadu). These interrelated dimensions are inscribed in a field of social relations, or historically trade relations. In other words, by paying attention to the multiplicity of interactions and the multiscale shape of networks, this project attempts to reclaim an embedded view of economic and social changes.

Small towns, governance and the politics of classification

Another research theme has dealt with the questions of governance and the politics of urban classification, as to whether it is important or not to have an urban status. This question is particularly acute for Census Towns that are classified as urban by the Census of India but remain rural settlements in terms of governance. Beyond analysing the linked benefits and costs of an urban status, the focus on the governance issue is critical to engage with public policies regarding cities and urban development.

The questions that the Subaltern Urbanisation book has raised and some of the answers it has provided is not only relevant for India but for other global contexts as well. By giving flesh and emphasising the diversity of urban processes, it can open up or contribute to a dialogue with other countries and continents for instance China, Asia and Latin America where the process of in-situ urbanisation is discussed, or even with Europe where interest in the place and the role of small towns has been renewed.

The next piece will discuss the nature and the extent of urbanisation in India and its evolution based on Census data analysis.

This piece has been authored by Marie-Hélène Zérah.

The other piece in the series can be accessed below:

 

Understanding the Curse of Air Pollution

THE FIRST ARTICLE IN A FOUR-PART SERIES ON INDIA’S AIR POLLUTION IN THE HINDUSTAN TIMES
AIR POLLUTION ENVIRONMENTAL JUSTICE

The quality of India’s air needs to be addressed as a pan-India public health emergency. Air pollution was responsible for 12.5% of the total deaths in 2017, as per the most recent iteration of India State Level Burden Assessment. The World Health Organization reports nearly 100,000 deaths in infants to be attributable annually to air pollution in India. But deaths form only a part of the story — there is growing evidence of how it causes illnesses in nearly every organ of our body. It affects the elderly and babies still in their mothers’ wombs – newborns show traces of particulates in their blood stream. It affects all of us.

This article is the first of a four-part series by researchers at the Centre for Policy Research written in collaboration with leading air pollution researchers. We take stock of what we know about air pollution, and what we could do to improve the air quality in India. In this series, we focus on fine particulate matter (or PM2.5), a useful proxy indicator for air pollution. These particles — a complex mixture of solid and liquid particles, originating from different sources and comprising multiple chemical substances — are the most damaging, as they can penetrate the lung barrier and enter the systemic circulation. In this article, we will lay out four foundational facts about when, how much, and where we should worry about air pollution. In short, the answers are: most of the time, a lot, and all over India.

First, air pollution is a near year-round problem, even though we notice pollution much more during periodic spikes especially in winter (see figure). Many parts of India, especially in the Indo-Gangetic belt record poor air quality levels across the year. In 2018 (so far), PM2.5 levels were ‘poor,’ ‘very poor’ or ‘severe’ 56% of the time in Delhi (RK Puram), 49% in Patna and 32% in Kanpur. Conversely, it was ‘good’ for six days in Delhi, one day in Patna and 37 days in Kanpur. While it is understandable that we focus on the visible peaks, adverse health outcomes result primarily to high long-term exposure, not just pollution spikes. To understand the severity of the problem, we have to look at annual average levels of emissions.

 

Second, annual average emission levels in much of India are multiple times safe levels (see figure). Three quarters of India’s population lives in areas where levels of PM 2.5 exceed the Indian national standard of an annual mean of 40 microgram/m3. These norms themselves are four times the far lower levels recommended by the WHO (see figure). Big western cities such as London, New York City and Paris have air quality nearly at these levels, and make the news when some of their neighbourhoods exceed the WHO norms by a few microgram/m3. Our levels are not just somewhat higher but many multiples higher: 72 of 640 districts in India, primarily in Delhi, UP, Bihar, and Punjab, have annual averages 10 times the WHO levels. Even Beijing, infamous for its air pollution, had PM2.5 levels about half of Delhi’s in 2016. We often hear that India suffers from inadequate data and knowledge of air pollution. While India does indeed need much better data and more sensors – much of the data reported here is from satellite data – this uncertainty should not be a reason for inaction, since new monitors will only tell us what multiple above safe standards we are.

Third, air pollution is not just a city or industrial area problem but a regional problem. Satellite data shows that air pollution levels are especially poor across the entire Indo-Gangetic Belt stretching from Punjab and parts of Rajasthan in the west to Bihar in the east. To an extent, this is a curse of geography. Sandwiched between the Himalayas in the north, and the Vindhyas in the south, this belt becomes a virtual valley where outward dispersion is difficult. Thus, while cities contribute to their own air pollution through traffic, industry, and waste burning, they are also affected by emissions from the broader regional ‘airshed’. As a result, rural areas are frequently also polluted. In addition, emissions from cookstoves using solid fuels not only lead to high levels of indoor air pollution, but also account for an estimated quarter to a third of outdoor pollution. India is dealing with both modern sources of pollution such as industries and vehicles, as well as pollution from traditional practices such as cooking with firewood, and we need to tackle both.

Finally, PM2.5 levels have been growing. Across Punjab, pollution levels nearly doubled between 1998 and 2016. It is sobering that India’s air quality is worse than China’s even while its GDP (PPP) per capita is less than half that of China. Clearly, the environmental quality of India’s growth is not sustainable.

Any serious plan to mitigate air pollution has to be long-term in nature, target multiple sources, operate year-round, and focus on regions rather than cities. In subsequent articles, we describe the impact of air pollution on health, explore the different sources of air pollution and conclude with a reflection on an approach to air pollution across India.

Santosh Harish is a Fellow at the Centre for Policy Research. Navroz K Dubash is a Professor at the Centre for Policy Research. 

This article is the first in a four-part series on India’s air pollution. The original article, which was published in the Hindustan Times on December 19, 2018, can be found here. For more information on CPR’s work on air pollution, visit the Clearing the Air? project page

In this Series:

Understanding the curse of air pollution (1/4)

Public Health in India a Casualty of Air Pollution (2/4)

Delhi Has a Complex Air Pollution Problem (3/4)

Air pollution: India’s waking up, but there’s a long way to go (4/4)

Understanding the Emergence of India’s Census Town: A Policy Research Working Paper

CO-AUTHORED BY PARTHA MUKHOPADHYAY AND MARIE-HÉLÈNE ZÉRAH
URBAN GOVERNANCE

This policy research working paper presents the results of an investigation of selected census towns in northern India. Census towns are settlements that India’s census classifies as urban although they continue to be governed as rural settlements. The 2011 census featured a remarkable increase in the number of census towns, which nearly tripled between 2001 and 2011, from 1,362 to 3,894. This increase contributed to nearly a third (29.5 percent) of the total increase in the urban population during this period.

Only part of this evolution can be attributed to the gradual urbanisation of settlements in the vicinity of larger towns. Instead, the majority of census towns appear as small ‘market towns,’ providing trade and other local services to a growing rural market. The case studies of representative census towns in Bihar, Jharkhand, Orissa, and West Bengal show the role of increased connectivity and growing rural incomes in driving the demand for the small-scale and non-tradable services, which are the main sources of non-farm employment in these settlements.

The case studies also reveal that the trade-offs between urban and rural administrative statuses are actively debated in many of these settlements. Although statistical comparisons do not show a significant impact of urban or rural administrative status on access to basic services, urban status is often favored by the social groups involved in the growing commercial and services sectors, and resisted by the residents still involved in the traditional farming sectors.

The full policy research working paper can be accessed here.

Understanding the Impacts of Land Use Change

BLOG SERIES BASED ON A CROSS COUNTRY STUDY ACROSS INDIA, INDONESIA AND MYANMAR
LAND ACQUISITION SOUTH ASIA

Land use change is defined as planned, government policy induced land transformations with anticipated or unanticipated environmental and social impacts, most often undertaken without prior informed consent of and/or due compensations for the affected, and abetted by failure of administrative or judicial remedies. The CPR-Namati Environmental Justice Program, supported by a grant from the International Development Research Centre (IDRC), Canada, studied land use change in India, Indonesia and Myanmar, and found that the impacts of such land use change can be broadly categorised into three categories:

Displacement and dispossession: Individuals or communities lose their homes in exchange for none or meagre compensations, and are expected to relocate to areas identified as rehabilitation sites or migrate to new areas on their own.
Loss of livelihood: This relates to losing out or giving up access to parts of or entire areas on which livelihoods are dependent. This could include agricultural lands, fishing harbours, forest areas and grazing lands. This may occur separately or in addition to physical displacement, causing an incalculable impact on both livelihoods and quality of life.
Environmental degradation and pollution: This leads to a decline in fish catch, agricultural productivity, groundwater contamination, and other related impacts. These have lasting effects on the health, economy and social lives of individuals and communities as a whole.
The table below provides trends and examples of how different sectors have contributed to negative impacts for communities in India, Indonesia and Myanmar.

India

Indonesia

Myanmar

Displacement and Dispossession

A study by the Indian Institute of Technology, Rourkee, estimates that 50 million people have been displaced due to ‘development projects’ over 50 years in India. The study states that of the 50 million people, 16.4 million were displaced by dams, 2.55 million by mines, 1.25 million by industrial development and 0.6 million by wildlife sanctuaries and national parks
One of the largest dam-induced displacement projects in the recent decades has been the Polavaram Multipurpose irrigation project that involved submergence of 42,000 ha of land across the 3 states of Andhra Pradesh, Chhattisgarh and Odisha. The estimated number of people facing displacement is 1,17,034 across 276 villages (as per the 2001 Census). All the displacement is in the state of Andhra Pradesh.
From 1970 to 2008, there have been approximately 100,000 people who have been displaced by the creation of Protected Areas (PAs).
Around 40% of the project-affected and displaced people from 1951 to 1980 belonged to tribal communities.
Freeport McMoran’s investment in copper and gold mining in West Papua was the first FDI agreement that Suharto signed after becoming the president. It displaced 15,000 people.
The number of landless farmers has risen from a few to 30% from 2004 to 2009 in Sumatra.
The Jabotabek Urban Development project in the suburbs around Jakarta displaced 40,000 to 50,000 people.
An impending 480-megawatt hydroelectric dam in Seko in North Luwu district of South Sulawesi is looking to displace members of indigenous communities of Pohoneang, Hoyyane and Amballong.
Conservation areas cover 28.2 million hectares in Indonesia and have largely been about exclusion of communities.
Recently, in Labuan Bajo Komodo Conservation area there have been reports of sale and purchase of indigenous people’s lands without their consent.
‘Land grab’ is a widely acknowledged term to refer to the state-driven forced acquisition of land.
The Letpadaung copper project in Sagaing Region involved the acquisition of 6,785 acres of land, largely farmlands, from 30 villages. 245 families from 4 villages have been forcibly moved to resettlement sites. 196 families are refusing to move at the risk of forced eviction.
The Asia Highway, a large-scale project, has a section of it passing through Southeastern Myanmar, crossing 17 villages and 3 townships in Dooplaya and Hpa-an districts. The project was initiated without consulting the locals and has caused eviction from several of these villages.
The construction of Thilawa Special Economic Zone is a prime example of this. The military government started confiscating land from the local farmers in 1997, using the land laws prevalent then, offering very little or no compensation.
Loss of livelihood

The land acquisition law of 2013 in India has added a specific section on assessing livelihood loss through social impact assessments and ascertaining compensations for the same. It clearly laid down the definition of ‘Affected Families’ to include farm labourers, fishers, share croppers, forest rights holders, gatherers of forest produce and so on.
The Parsa East Kete Besan coal mine in Chhattisgarh involves land use change of 2,711.034 ha. The mine is located in the Hasdeo Arand region, which is home to a large population of tribal and other traditional forest dwellers.
In another case, the operations of the Coastal Gujarat Power Limited in Kutch in Gujarat, have impacted two important fishing harbours. This was marked by a reduction in fish catch, impacts of coal ash on fish drying activities, particularly carried out by women, and constrained access to the fishing harbour.
The state in Indonesia considers large tracts of land as ‘non-productive’ and gives them out to oil palm companies despite the fact that these lands have claimants under the customary law and many smallholders cultivate them.
In the case of PT KEM, the gold mine impacted alluvial mining being pursued by local people in East Kalimantan. The loss of livelihood could never be recovered as all those who lost their livelihood could not be absorbed as part of the workforce in the mine.
Fish population in Buyat Bay in North Sulawesi has declined due to PT Newmont Minhasa Raya’s submarine tailing disposal.
Recently fishermen in parts of Komodo conservation reserve have been denied access to their fishing grounds, which forces them to fish farther resulting in higher costs. Access to the forest part of the Komodo conservation area is also blocked for communities to collect firewood.

Farmers made landless, find it hard to secure jobs; the random jobs they pick up are unstable and pay very little.
The construction of Mone Hydropower Dam led to submergence of 13 villages. The government authorities deemed that they were not responsible for compensation or relocation allowance to the villagers because the displacement was not caused by land confiscation but by the flood.
30 villagers from Char Khan fishing village were asked to vacate the area for the first phase of Dawei SEZ – when 3 fishers refused to move, they were imprisoned for a month.
The Labutta Township Forestry Department sued 12 local farmers for illegally fishing, breeding prawns, and felling wood in a forest reserve.
Government-licensed mining has impacted small-scale jade collection. Now, some of them make a living by picking pieces of jade in the waste dumped by mining companies.
Environmental Degradation and Pollution

Around 49 areas have been declared unsafe for human habitation in the Raniganj coalfield area of West Bengal.
The Damodar River is the major source of water in the regions of West Bengal and Jharkhand and is perhaps the most polluted river in India as it receives wastes from many industries situated on its banks.
Studies have indicated that open cast quarries, coal washeries, thermal power plants, coke-oven plants, cement factories and fertiliser plants add to air pollution.
The construction of large dams and ports alters the relationship of water and land, destroying the existing ecosystem balance, hydrology and fisheries.
Air and water pollution and soil erosion are the two main issues that occur when large areas on landscapes get changed for the construction of roads and railway lines.
Freeport’s Grasberg in Papua gold mine spread across 2.5 million hectares of pristine alpine forests, lowland montane forests, freshwater swamps, mangroves and coastal ecosystems, dumps an extraordinarily large amount of waste (as per its own estimates 700,000 tons per day) into local streams.
Lake Limboto is situated right next to Gorontalo city and the land conversions for this ever-expanding city have taken a toll on it. In 1932, the lake used to span over 70 square kilometres but today it measures only 25 square kilometres in area.
In North Borneo, fisher interests and shipping uses are in conflict. The coastal law doesn’t give any priority to fisher people. It doesn’t recognise fishers’ first right to the sea and categorises areas for fisheries as well as activities such as tourism and mining under the same ‘general use area’ category. This creates a conflict between the coastal law and fisheries law.
The Tigyit Coal Mine spews dangerous chemicals and pollutes the water and air. The operations compromise access of communities to their fishing areas, farms, and forests. Waste from the mine is dumped either on the grazing lands or on the path to the grazing areas.
People living close to industrial projects, who most often are the ones initially displaced for initiation of these projects, find themselves facing pollution impacts on a daily basis. Toxic and harmful wastes are discharged in local water sources and garbage is dumped on their farms and grazing lands. Air pollution and decline in groundwater are other challenges they are forced to live with.
Lakes in industrial zones have been reported with high level of contaminants. Wastewater from the industries of Shwe Pyi Thar Industrial Zone is released indiscriminately into nearby water sources.
Often, these impacts do not occur in isolation – loss of land essentially leads to loss of livelihoods; many times relocations after land-loss force people to stay close to industrial and development areas facing pollution on a daily basis; and environmental degradation translates into loss of income for communities dependent on natural resources. The study, Understanding Land Conversion, Social Impacts and Legal Remedies in Asia, is an attempt to bring out the interconnections, complex nature and severity of these impacts by highlighting these and several other trends and examples of land use change through the detailed country reports and granular case studies.

This is the first blog based on the study carried out by the CPR-Namati Environmental Justice Program, and supported by a grant from IDRC, Canada.

The other pieces in the series can be accessed below:

Understanding the Strategies used to address the impacts of Land Use Change
Understanding the Outcomes and Remedies sought for impacts of Land Use Change
Detailed Studies of cases of Land Use Change Conflicts: Part I
Detailed Studies of cases of Land Use Change Conflicts: Part II

Understanding the Land Rights of Tribal Populations in Scheduled Areas

KEY FINDINGS FROM A STUDY BY THE LAND RIGHTS INITIATIVE AT CPR
RIGHTS LAND ACQUISITION

Though only 8.2% of the total population, the Scheduled Tribes (ST) constitute 55% of the people displaced since independence due to the construction of dams, mines, industrial development and the creation of wildlife parks and sanctuaries. Poverty and landlessness is rampant amongst the STs. 51% of all STs are below the poverty line compared to 40.2% for the national average, and 65% of the STs are landless as per the 2011 Census. Therefore, clearly, this group has disproportionately borne the burden of economic development.

This, despite the fact that the Fifth and Sixth Schedules of the Indian Constitution carve out a separate legal and administrative framework for certain designated tribal majority areas within the territory of India. The Fifth Schedule designates tribal majority areas in ten tribal minority states within peninsular India including, Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa and Rajasthan. The Sixth Schedule designates such tribal majority areas in north eastern states, including Assam, Meghalaya, Mizoram, and Tripura. Of these, Meghalaya and Mizoram are tribal majority states.

This begs the question as to why despite the existence of special constitutional and legal provisions for safeguarding the rights of tribals to land and also special affirmative action provisions for the STs, they continue to remain the most displaced, most vulnerable, and most impoverished of all groups in India. Through archival and field research in the states of Gujarat, Andhra Pradesh and Telangana, the CPR Land Rights Initiative project on ‘Land Rights in the Scheduled Areas of India, attempts some preliminary answers to this question.

Key findings

No data existed on the extent of geographical area in the Scheduled Areas. Based on extensive 2011 census village and district level mapping of data, the Initiative has determined that 10.5% of all India’s geographical area lies within the Scheduled Areas.
Based on Census 2011 data available with the Initiative, even though the Scheduled areas were designated tribal majority areas, on average today, only 30% of the population in the Scheduled areas is tribal. That is, in actual fact, the designated tribal majority areas are tribal minority areas today due to continuous displacement of the tribals.
On all three narratives of development, representation, and rights to land, the Scheduled Tribes are pitted against the dominant mainstream of Indian society. The power imbalance between the tribals and the mainstream society requires both protective laws and a powerful state disposed towards the protection of the Scheduled Tribes.
The special protective provisions in the Fifth and Sixth Schedules cannot be seen in a vacuum but have to be seen against the backdrop of a contrary legal regime of land acquisition, forest and mining laws, through which the state actively displaces and facilitates the displacement of tribals from the Scheduled Areas.
The protective legal regimes fail also because of meagre financial allocations for their implementation and active subversion or confused implementation of the regimes by the administration.
A presentation of the key findings are available in the video (above). The panel discussion that followed can be accessed here. The Initiative also analysed Supreme Court cases on land acquisition over 66 years, delving deep into the massive power imbalance between the state and land losers. A video recording of this analysis can be accessed here.

Understanding the National Green Tribunal

IN CONVERSATION WITH SHIBANI GHOSH

 

The National Green Tribunal (NGT) has emerged as an important player in Indian environmental regulation. It has issued orders on a variety of issues–ranging from pollution to deforestation to waste management. It recently directed the Delhi government to de-register all diesel vehicles more than 10 years old–a decision being opposed by many stakeholders, including the Central Government.

In the interview below, environmental lawyer and CPR faculty Shibani Ghosh talks about the National Green Tribunal and it’s functioning. Shibani practices before the National Green Tribunal and has written on various issues of domestic environmental law and governance. She is currently editing a book on key principles of Indian environmental law.

Can you tell us about why and how was the NGT established?

The need to set up special environmental courts was highlighted by the Supreme Court of India in a series of judgments, the first one being in 1986 in the Oleum Gas Leak case, and by the Law Commission of India in its 186th report in 2003. The Court was of the opinion that environmental cases raised issues, which required technical knowledge and expertise, speedy disposal, and continuous monitoring, and therefore these cases should decided by special courts with necessary expertise and technical assistance.

The Parliament passed the National Environmental Tribunal Act, 1995 but it was never implemented. Subsequently, the National Environment Appellate Authority Act, 1997 was enacted under which the National Environment Appellate Authority was set up. There were several problems in the functioning of the Authority, including its limited mandate and key vacancies that the government did not fill. The Authority functioned till October 2010 and was replaced by the National Green Tribunal.

The National Green Tribunal was set up under the National Green Tribunal Act, 2010 (NGT Act). The objective of the NGT Act is to provide effective and expeditious disposal of cases relating to the protection of the environment. Even though the Act came into force on 2 June 2010, the first hearing of the Tribunal was held only in May 2011. The Tribunal suffered from serious ‘teething troubles’. Despite being a body constituted by an Act of Parliament, the Supreme Court had to intervene to ensure necessary administrative arrangements were made by various branches of the government for the Tribunal to become functional.

How does the Tribunal function?

The members of the Tribunal are a mix of persons with a legal/judicial background and those with knowledge and expertise in environmental issues or with administrative experience. There is a principal bench of the Tribunal in New Delhi and four regional benches in Bhopal, Kolkata, Pune and Chennai. These are ‘co-equal benches’ i.e. the principal bench is not ‘higher’ in a judicial hierarchy than the other benches. Each bench has a specified geographical jurisdiction. For instance, cases arising from Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Pondicherry, and Lakshadweep have to be filed in the Southern bench in Chennai. Occasionally ‘circuit benches’ are also constituted. These are specially constituted benches, which visit a particular city for a few days to hear cases relating to that state.

The Tribunal has original (to be the first judicial forum to hear a case) and appellate (review a regulatory authority’s decision) jurisdiction with regard to the implementation of seven environmental laws. These are the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, and the Biological Diversity Act, 2002. The notable exception is the Wildlife (Protection) Act, 1972 which is not included. A significant number of cases that may arise under the Wildlife (Protection) Act are criminal cases–and the Tribunal has no jurisdiction over criminal cases.

The Tribunal has original jurisdiction over all civil cases raising a substantial question relating to environment and which arise out of the implementation of the seven laws. This makes the Tribunal a crucial avenue for grievance redressal for persons who wish to highlight environmental issues which have serious implications but are not linked to a single government decision.

For instance, cases relating to the widespread pollution in the River Ganga and Yamuna, increasing air pollution in the National Capital Region, and illegal mining activities in different parts of the country have all been brought before the Tribunal under its original jurisdiction.

While exercising its appellate jurisdiction, the Tribunal decides cases in which a regulatory approval or consent granted (or rejected) by the relevant government agency is being challenged. These approvals or consents are those issued under the seven laws. For example, environmental clearances under the EIA Notification 2006, forest clearances under the Forest (Conservation) Act, and consents issued by the State Pollution Control Boards under the Water Act and the Air Act are included.

Who can approach the NGT?

According to the NGT Act, an aggrieved person can file a case before the Tribunal, and could be an individual, a company, a firm, an association of persons (like an NGO), even if not registered or incorporated, a trustee, a local authority (like a municipal corporation), or a government body (like the State Pollution Control Board). The person need not be directly affected by the project or development in question, but could be any person who is interested in protecting and preserving the environment. There is a time period within which the case has to be brought before the Tribunal, which varies according to the type of case.

What kind of decisions can the NGT deliver, and what is the timeline?

The Tribunal has the power to cancel an approval or consent granted. It can also issue a stop work notice or an interim stay order. It can direct the constitution of a committee of experts to carry out fact finding or monitor the implementation of its orders; and direct concerned government agencies to take affirmative action to prevent or mitigate environmental damage. It can also direct the demolition of unauthorized construction. The Tribunal also has jurisdiction to order payment of compensation to victims of environmental damage or an environmental restoration fine to a government agency for restitution of damaged environment.

The NGT Act requires the Tribunal to hear cases as expeditiously as possible and endeavour to decide the case within six months from the date on which the case is filed. Despite this indicative timeline, it often takes longer as all parties have to be heard and allowed to present necessary evidence, and sometimes, the Tribunal initiates special investigations into facts, which may take up additional time.

Is the verdict of the NGT binding?

The decision of the NGT is binding on the parties, unless they approach the Supreme Court in appeal and the NGT’s order is either stayed or reversed. Failure to comply with the orders of the Tribunal could lead to a fine or imprisonment of the person responsible.

You can read more about Shibani Ghosh’s work on the National Green Tribunal below:

Understanding the Outcomes and Remedies sought for impacts of Land Use Change

BLOG SERIES BASED ON A CROSS COUNTRY STUDY ACROSS INDIA, INDONESIA AND MYANMAR

 

In situations marked by grave injustice, fear, loss and confusion, affected communities articulate their grievances and seek out institutions to address them through remedies that are meaningful to them. The process of seeking remedies by affected communities helps not only to politicise questions of democratic decision making and land governance but also improves land and project governance outcomes. They take on the role of asking questions, monitoring and seeking accountability in a hostile environment of risk of intimidation and criminalisation. People affected by land use change seek a variety of remedies for the impacts they face. While some of these are towards short-term relief and one time payments/aid, others are towards long-term participation in projects. Some seek complete closure/suspension of projects, others are towards remedying the harms caused by ongoing projects or putting in systems in place to prevent further damage to their environment and livelihoods.

Using the above categorisations, this blog discusses key remedies that have been sought in the countries of India, Indonesia and Myanmar.

One-time assistance: compensation and better relocation

i. Compensations are sought by the affected people in return for the land acquired, and/or livelihood lost, as a one-time payment prior to the setting up of the project. In case of the Thilawa Special Economic Zone (SEZ) in Myanmar, while its first phase has started, communities’ expectation from the project have changed: initially they were refusing to relocate, then they switched to seeking better relocation facilities, now the group is preparing and organising itself to run a community driven organisational grievance mechanism. Simultaneously the farmers who know they would be relocated for the second phase are thinking how much compensation would they demand and strategising and organising on this expectation.

Compensations are also sought when project operations directly or accidentally damage water resources and/or farms or reportedly cause health impacts. The challenge arises when the affected people seek compensations from either the administration or the company. In the Uttara Kannada district of Karnataka, the construction of a National Highway is presently underway. Following a series of complaints and meetings with the Pollution Control authorities, the company operating a stone crusher for the project in Bogribail village, paid compensation to affected farmer families in December 2016. The affected people felt that this was far from adequate as the stone crusher continued to emit dust and damage their farmlands.

Despite the routine use of compensation as a way to remedy impacts borne by communities, it has been observed that across the countries, communities have little or no information how the compensation is to be calculated, how to assess if what they are getting/demanding is fair.

ii. Relocations are ideally provided prior to project start but the quality of relocation sites continue to be a festering issue for communities even after projects start operations. The case of Thilawa from Myanmar offered an interesting example. The Thilawa Social Development Group (TSDG) formed by the farmers who had to vacate their land for the first phase of the project made a visit to the relocation site for Dawei SEZ and saw the difference between what they were being offered and what Dawei evacuees were getting. They made a demand with the Japan International Cooperation Agency (JICA) for better compensation and improved basic amenities at the relocation site. While JICA increased the compensation to the farmers, not much improvement was seen in their living conditions.

Continued participation in project through financial stakes and benefit sharing

In Indonesia, it has been observed that in many cases of land conflicts, farmers opposing land takeover by plantation companies are offered plasma agreements as ‘fair’ remedy for their concerns. However, beyond the stipulation that the companies are expected to reserve 20% of their total plantation area for smallholders and provide them technical assistance in oil palm cultivation, plasma agreements are not governed by much. Usually a farmer cooperative enters into an agreement with the company. The farmers give a minimum of ten hectares of land for plasma to the company, become a part of the cooperative and receive share certificates for two hectares of plantation each. In most cases, cooperatives come to be managed by the office bearers of the village or others with might or money. Although on paper the cooperative has the autonomy to develop and manage plasma, in practice, decisions regarding land allocations, recruitment of labour and sales price of the palm fruits are made by the company.

Another example of taking part in the development activity is of Korba Bhuvistapit Company Limited from India. In the Korba coal-mining region in Chhattisgarh, over 2400 families who have been displaced but have not been provided jobs have come together to form this producer company. The main objective of the company is to demonstrate that communities can undertake activities including transportation, plantation and renewable energy and to maintain moral pressure on South Eastern Coalfields Limited (SECL) to provide opportunities for ancillary activities to the displaced members.

Partial or full closure of project

People affected by land use change also approach different institutions or use a variety of strategies that are clearly directed towards closing down the construction or operations of an existing project. This is often the case in two instances: first, when a project has recently initiated construction activity, and there appear to be possibilities of holding back land use change; and second, when several attempts at seeking compensations, employment or restoration of damage have failed and/or the project continues to impact the health/livelihoods of communities living in the nearby areas.

i. Project suspension: One of the landmark cases from India where few villages affected by the proposed land use change by a steel plant and port consistently demanded that the project’s construction activity not be initiated was the POSCO steel plant and port in Jagatsinghpur, Odisha. Every time the project authorities would initiate activities, there would be strong local protests and barricading disallowing the construction activity. Challenging the project approvals in court with the help of national NGOs and lawyers was the other strategy so as to hold back land use change.

Sometimes these demands for suspension of projects arise due to the non-participatory manner in which decisions are made. In case of Tarpein I and II dams in Kachin State of Myanmar, the Kachin Independence Organisation (KIO) deployed soldiers around the two dams and suspended their construction work when the Chinese authorities of China Datang Corporation (CDC) company refused to pay taxes to KIO. KIO also complained that local residents were not given any role in decision-making on these projects.

ii. Revocation of permits has been sought in cases of environmental degradation caused by mining in Jambi province of Indonesia. Pursuing this remedy, the communities along with other efforts, reported the cases to the Anti-corruption commission (KPK) in the hope that it would investigate the issue and eventually order suspension of their permits. As part of its investigation, the anti-corruption commission visited these mining sites. However, only one project has seen closure.

In case of the sulphuric acid factory near Letpadaung mine in Sagaing Region in Myanmar, the villagers demanded complete closure/relocation of the factory due to the dangers associated with toxic fumes emitted by it. While some cases see a change in people’s demands for remedies over time, in Myanmar, hydro and thermal power projects have been in suspension for a long time perhaps due to persistent demands.

Repatriation of land

This demand is made when a project has withdrawn from an area, and the affected people would like the land back to restore livelihoods, e.g. POSCO in Jagatsinghpur. After the private company has withdrawn from the project, the state government is seeking to build a wall around the land to protect it from ‘encroachments’. The villagers are demanding that the land be restored to all the forest dwellers whose rights are yet to be recognised under the The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.  More recently, the demand for this remedy has also been fuelled by the existence of a new legal clause as part of the 2013 Land Acquisition Law

Sometimes, after repatriation of land reverting to the original land use is not possible. In such cases communities pursue possibilities of owning the altered land use activities for their livelihood. This remedy can be a follow up to closure of a project and return of their land. In the case of PT Rejeki Alam Semesta Raya (RASR), active in Kapuas regency of Central Kalimantan in Indonesia, farmers of Sei Ahas village were pursuing the return of their land right from the beginning of the conflict in 2007. The lands were collectively held rubber plantations, which were turned into oil palm plantations by the company. While the group of farmers that demanded the return of their land shrank over the years as many accepted plasma agreement after their initial opposition, a group of 20 farmers continued with their initial demand. The farmers want the company to rescind its claim on the land and plantation so they can harvest the oil palm.

Restoration

This remedy is usually observed in cases of environmental degradation or damage to land caused by dumping of waste or extraction due to mining operations.  This remedy could be followed by closure/suspension of a project or a commitment by the project not to contaminate the land/water again. For instance, in several parts of India where sand mining has led to erosion or salinity ingress, people have sought that the activity be stopped and the area be restored.

In the case of activities of BNJM-KGLR in East Barito in Central Kalimantan, Indonesia, the villagers sought the restoration of the river that was heavily silted due to dumping of mine refuse by the company, to its original condition. The farmers also sought compensation for the damage they incurred in the past when the mud from the river ended up on their rubber plantations and left their crops dead. When asked if farmers would be in agreement if the company continued to pay for damages in the future while continuing to pollute the river, many didn’t reply in the affirmative. The villagers of Lalap and Bentont villages wanted the company to restore the river and abide by environmental laws in future.

Proactive measures as remedies

The demand for closure of a plant is often a big challenge for the affected people who are directly dependent on the plant for livelihoods. In such cases the remedies sought are towards making sure that the operations do minimum/no damage. They may want an assurance that the project would not be expanded in future, or compliance record of the project would be part of any future project decisions or policy changes such as communities are granted effective role in project monitoring. Realising that the land use change is unavoidable, they may even want to own the changed land use activity. This can be viewed as a proactive measure on part of communities to offer an alternative to private/government owned projects.

In India, villagers in Tamnar block of Raigarh district of Chhattisgarh registered their own firm and called it Gare Tap Upkram Producer Company. The idea behind establishing the firm was to mine the coal themselves rather than surrendering their land to industrialists. More than 500 villagers from 12 adjoining villages of Gare had pledged nearly 700 acres of land to the producer company. As they deliberated further on the issue of mining, the villagers decided against mining altogether and instead proposed setting up of production of alternate energy so that the land is not devastated by mining. The Gare Tap Upkram Producer Company has subsequently approached the Environics Trust, a national NGO, and requested it to conduct a study on the feasibility and willingness of the inhabitants of Gare in adopting alternate sources of energy, predominantly in solar and biogas energy.

In case of the Tigyit coalmine in Shan state of Myanmar, although the residents made peace with the operation of the mine, which has been operating in the area for nearly 20 years, their demand is that the project not be expanded. The residents spent their energies in resisting a thermal power plant to be cited next to the mine and were successful in suspending the plant. They opine that if the thermal power plant doesn’t run, the mine would not be given an expansion by the government. However, after being shut for two years, talks for the resumption of the thermal power plant are on and the villagers are bracing themselves to resist it again. As of end of 2017, test runs on the plant were being conducted and the government maintained that the plant will not be allowed if it is found to be linked with harmful impacts on health and livelihoods of the residents of Tigyit village in Shan state.

There are several remedies or outcomes that the affected communities succeed at getting. The study, Understanding Land Conversion, Social Impacts and Legal Remedies in Asia, through the country reports and the case studies, demonstrates that although these are mostly only limited successes, they surely are positive stories of collective agency and change. Albeit small, communities who struggle to get them view these as important victories.

This is the third blog based on the study carried out by the CPR-Namati Environmental Justice Program, supported by a grant from the International Development Research Centre, Ottawa, Canada.

Other blogs in the series can be accessed below: