The below article is not directly related to the Jagpal Singh Judgement but has been reproduced below for its relevance on the subject of commons in India :
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Across the country, the common wealth of the people, like land and water, is being sold off to big capital, leading to environmental degradation and loss of livelihoods for communities.
Divya Trivedi
Frontline
THE COMMONS ARE UP FOR GRABS. The shared wealth of communities created and enjoyed by generations, the commons include the wind, water, resources below and above the earth, the grass, the leaves and, in modern settings, the pavements, playgrounds and also the Internet. From being public property for the common good, they are increasingly becoming private holdings for anybody who can name a price. And it is no longer a secret that political parties and corporate houses are colluding to ensure that every bit of land, water and natural resource is used up to feed the ghost of “development”.
From the east coast to the west coast, community rights are being trampled upon and converted into individual property rights to fit the capitalist scheme. Is there no resistance? Plenty of it, with affected people from across communities, used to the traditional ways of life, organising against the capitalist mafia, but to less and less avail.
As far as the political class is concerned, in denying the rights of the traditional communities, parties across the spectrum are proving to be more of a similar, rather than different, hue.
A conference on land rights, environmental protection and inclusive development organised by the Centre for Policy Research, the Christian Michelsen Institute and the University of Bergen in New Delhi last month saw the participants, led by the advocate Namita Wahi, thrashing out some of the issues plaguing our commons.
Gujarat
With a significant tribal population of 14-15 per cent, but with very few listed scheduled areas at the same time, the Bharatiya Janata Party (BJP)-ruled Gujarat is an evocative case study. The active capture of the coastal turf in Gujarat began nearly a decade and a half ago and the coastline today boasts of 41 ports and numerous power plants and special economic zones. With its nerve centre in Mundra, this industrial belt is dotted with projects ranging from ultra mega power projects to shipyards, agro parks and compressed natural gas (CNG) power plants.
In the rapid land-use transformation that has taken place within a span of 15 years, the synergy in the region between communities and the ecology has suffered irreversible damage, according to Kanchi Kohli, an independent researcher and writer. There are multiple projects with overlapping project areas, leading to confusion about allocation of land for various projects, rendering the exact status of the total land acquired ambiguous, she says.
Traditional farming and fishing communities are losing their hold on their livelihoods quickly and decisively. Their access to fishing harbours is blocked, there is a fall in fish catch. This is accompanied by the loss of grazing land. The industries have a damaging impact on horticulture and salt production too. This is leading to rising opposition to industrialisation per se. The ecological impact on water and air quality, mangroves, mudflats, inter-tidal areas, sand dunes, migratory birds and creeks are yet to be factored in. The privatisation of the commons, land and water has resulted in gated fishing harbours, where the fisherfolk now have to literally cross the threshold and walk through the gates of, say, an Adani property to reach the shore, says Kanchi Kohli.
At any given point in time there are 10-12 litigation proceedings initiated by individuals or groups of people from the community. Resistance by the people takes various shapes, involving negotiations and protests around land and access rights. But the problems remain, such as assessments and appraisals being compromised, tampering with baseline information of land use, post-facto studies, conditional approvals and limiting participation in decision-making, she says.
While violations of and non-compliance with regulatory procedures exist, there are legal challenges such as land restoration, repatriation of land, compensations, ecological destruction and impact assessments, she says. A ground report of the violations, authored by the Mundra Hitrakshak Manch, emphasises that the impact goes far beyond ecological destruction.
Giving the example of Gujarat’s industrialist Gautam Adani, known to be close to Chief Minister Narendra Modi, Kanchi Kohli says his company acquired land here 10 years ago but is starting to make use of it only now. In 1994, the Adanis made their first foray into Mundra, with the Gujarat Maritime Board approving a captive jetty. The Adani Ports and Special Economic Zone Limited (APSEZL) commenced its operations with one berth in October 1998 and today has 22 berths with a total quay length of 6.5 kilometres, in addition to two single-point moorings (SPM), according to Wikipedia. “The APSEZL’s Mundra Port is Adani Group’s crown jewel and the largest port in India,” states the company’s website.
Bharat Patel of Machimar Adhikar Sangharsh Sangathan (MASS), Kutch, says the situation in Gujarat is poignant because when it comes to acquiring land for private capital, the government is not going after private land but is redistributing the commons. “Whenever the government in Gujarat or elsewhere makes a bid for a farmer’s land, if not compensated, it faces stiff resistance. But if the government takes over the commons, there is not much a people pushed to the brink of existence can do,” he says.
To give an example of state apathy, he says people whose lands were acquired for the Sardar Sarovar project were given land in the Mundra area. Now, when their lands are being acquired again in Mundra, they are being given land in the Sir Creek/Kori Creek area.
In 2012, a five-member committee, headed by Sunita Narain, director general of the Delhi-based Centre for Science and Environment, and including officials from the Ministry of Environment and Forests (MoEF) and experts on coastal ecosystems and disaster management, was set up to look into the complaints of environmental degradation and non-compliance with green regulations by Adani’s Mundra multipurpose projects. The committee submitted its report to the Ministry last year. It found that the company had damaged creeks and mangroves around its project site while securing clearances on a piecemeal basis, circumventing mandatory regulations. The group companies manipulated and obfuscated data to get around coastal regulation rules, it said.
The construction activity for its North Port had led to the blocking and destruction of creeks. Seventy-five hectares of mangroves that were declared as a conservation zone under the environmental clearance granted to the company had been destroyed.
Based on the findings of the committee, the MoEF slapped a Rs. 200 crore penalty on Adani’s Mundra multipurpose projects. “As a deterrent for non-compliance and violations, Adani Ports & Special Economic Zone Ltd (APSEZL) shall set up an Environment Restoration fund, distinct and separate from Corporate Social Responsibility activities under Company Law amounting to Rs.200 crores or one per cent of project cost, whichever is higher, to be used for remediation of environmental damage in Mundra. The Fund will be operated under the Chairmanship of Secretary, Environment & Forests, and will include following activities as enumerated by the Committe—Protection of marine ecology; Protection and conservation of mangroves, including development of new mangrove conservation areas; Restoration and conservation of creeks; Independent studies and monitoring of the entire project areas, including cumulative impacts and public data disclosure systems; Social infrastructure and livelihood support for fishers community, including development of access of fishers from their temporary settlements to villages,” stated the order dated September 30, 2013.
Activists say that notwithstanding the fine, this move may set a wrong precedent by allowing companies to continue damaging fragile ecosystems and legitimise it later by spending a fraction of their earnings for “restoration” activities.
The MoEF’s order further states that under Section 5 of the Environment (Protection) Act, 1986, the North Port area and Bocha Island should be declared a conservation zone and protected. All the creeks, waterbodies and reclaimed land in these areas should be restored and brought back to the pre-2005 status within six months, according to the notice.
The Adanis were asked to prepare a specific action plan within six months to protect the livelihood of fishermen who had been affected by the degradation of marine ecology, the loss in fish catch and the loss of access to the sea because of the violations committed by the project. The plan should include a clear schedule of implementation and monitoring. Further, APSEZL shall provide necessary support for the development of an exclusive fishing harbour at Badreshwar, stated the order.
Within a month, the Adanis responded by stating that “Bocha Island and area proposed for North Port are not in possession of the APSEZL.” They said while they were committed to conserving the 88 hectares of mangrove in Bocha Island, they were unable to do so as local people were using the mangrove to collect fuel and for grazing their camels. They asked for the government’s support in this matter as they did not have any locus standi in restraining the local people from entering the area. They further stated that their project had no impact on fishermen as APSEZL had provided specific approach corridors for their movement through the APSEZL area.
“The entire waterfront is part of notified port-based SEZ area which is extremely sensitive from the national security point of view,” the Adanis stated in their response to the MoEF, dated October 14, 2013.
The company’s reluctance to comply with the order has raised questions about its intents and its attitude towards environment and ecological protection. Observers say that even if the fine is paid and a few mangroves planted, litigation may continue and the local people may lose their land and livelihood with little compensation.
In January this year, a Division Bench of the Gujarat High Court comprising Chief Justice Bhaskar Bhattacharya and Justice J.B. Pardiwala ordered the suspension and closure of 12 units in APSEZL in response to a public interest litigation (PIL) petition filed by the residents of Navinal, a village inside the SEZ. Various companies have challenged the High Court order.
Later in the same month, the Supreme Court, in an interim order, gave partial relief to the companies and allowed the units to function, but restrained them from carrying out further construction.
Andhra Pradesh
In his paper “Law for Tribals and their Land for Grabbers”, Prof. Madabhushi Sridhar, Information Commissioner, Central Information Commission (CIC), New Delhi, states: “New crime was created in 1971. If a non-tribal purchases tribal land, it would be a crime punishable with one year in jail and Rs.2,000 penalty. An ordinary police station can receive a complaint from any person, need not be aggrieved, any public servant or on their own. But strangely no case is booked so far like that. (In regulations of assigned land transfers, complaint by Tahsildar is made essential).”
The Andhra Pradesh Scheduled Area Land Transfer Regulation of 1959 is the first post-Independence legislation that prevents transfer of tribal lands. Purchase of tribal lands was prohibited in 1959. By the time the law was extended to Telangana in 1963, non-tribal people from Andhra had occupied tribal lands. This regulation is popularly known as Act 1/70, a major amendment to the Land Transfer Regulation law, says Prof. Sridhar.
He adds:
“Transfer of land between non-tribals and non-tribals is also prohibited in Scheduled areas, by this Act 1/70. It was challenged on the grounds of breaching Article 14, of the equality of all before the law, but the Supreme Court upheld it saying that unlimited increase in non-tribal population in tribal areas would push tribals into forests which would endanger them and the environment.
“Officially, 48 per cent of land in the Scheduled Areas of Andhra Pradesh is either owned or controlled by non-tribals. Others say it has increased to 52 per cent now. Unofficially, 90 per cent of tribal lands are under the occupation of non-tribals.”
Until 1976, the Lambadas were not considered tribal people, says Prof. Sridhar. “Their influx from Maharashtra after 1976 and the influx of non-tribals from Krishna, East Godavari, West Godavari [districts] led to further grabbing cases. Approximately 76,000 cases were filed in 45 years. Around 33,000 cases went against tribal people, 50 per cent of tribal land went into the hands of non-tribals “legally”. Each of this “judgment” is one-sided, not represented by the aggrieved tribal people and highly unjustified. But no one opposed or appealed against the judgments. The government and its lawyers will not come to the rescue of the tribal people. Not even the Legal Services Authority,” says Prof. Sridhar.
“The Supreme Court gave a very good judgment in the Samata case in 1996. The government is regarded as Non-tribal, which means that it also cannot transfer tribal people’s land to non-tribals. But it left a major loophole wherein ‘inter-governmental transfer’ of land was not treated as transfer at all. The government was very happy, as it could continue its activities. The Revenue Department transferred tribal peoples’ land to the Andhra Pradesh Industrial Development Corporation, which transferred it to non-tribal corporations. Tahsildars and other Revenue officers do not look into cases of agriculture land taken by the government prior to the judgment. Thousands of acres are under occupation of non-tribals through the government. Not even a single acre of land was given back to tribal people by the government,” he says.
Talking about his work in the Bora Caves, in his presentation “Health of the Hills is Wealth of the Plain”, Ravi Rebbrapragada, executive director of Samata, a non-governmental organisation, says that the local people are in constant struggle with landlords, the government and the Maoists. In the reservoir-rich territory of East Godavari and Visakhapatnam, a virtual battle for the bauxite deposits is under way, which adversely affects the access, availability and quality of water there, he says.
While the people may have been able to resist mining in the area, the rules of the game are changing. Unemployed tribal youth are being lured with motorcycles and mobile phones and it will not be long before some of them succumb to the temptations of capitalism. Until then we shall continue the struggle, says Ravi.
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