Dams, Development and Displacement : A Sorrow Picture of Farce Inclusive Growth*

Like becoming a refugee, being forcibly ousted from one’s land and habitat with the construction of a dam, reservoir or highway, is not only immediately disruptive and painful, it is also fraught with serious long-term risks of becoming poorer than before displacement, more vulnerable economically, and disintegrated socially.1

“According to a detailed study of 54 large dams done by the Indian Institute of Public Administration, the average number of people displaced by a large dam is 44,182. Admittedly 54 dams out of 3,300 is not a big enough sample. But it’s all we have… let’s err on the side of abundant caution and take an average of just 10,000 people per large dam. 33 million… that’s what it works out to… What about those that have been displaced by the thousands of other Development Projects? Fifty million people…I feel like someone who’s just stumbled on a mass grave.”¹³

The state has failed to draw up credible plans of rehabilitation for the displaced, let alone implement them properly. What is more, the people adversely affected have rarely been consulted when such schemes have been put through. This kind of callousness not only affects the conditions of living of the displaced persons but also their dignity as human beings.14 It was abundantly clear from the beginning that mega-projects would induce displacement or forced uprooting of substantial populations, particularly for hydro electrical projects which entail large-scale submergence for reservoirs. However, national leaders and policy-makers typically viewed these as legitimate and inevitable costs of development, acceptable in the larger national interest. People were uprooted along the way that was deemed a necessary evil or even an actual good, since it made them more susceptible to change. It is acceptable to a certain point that displacement becomes inevitable and sometimes perhaps necessary to make way for development.Any actions leading towards development is always a step forward towards achieving the mandate of the Constitution; the apprehension lies in the measures that are taken for Resettlement and Rehabilitation (R&R) of the displaced people due to development projects. Law ostensibly is a major tool for protecting and providing assistance to displaced people. However, the truth is that there is no specific policy formulated either by the Central or State governments to address the issue of the project displaced people. In the past, R&R of displaced people had been based on ad hoc plans, resolutions and orders, passed for specific states or even projects when the need arose on a case-by-case basis.15

1. EVOLUTION OF INTERNATIONAL POLICY RESPONSE TO DISPLACEMENT
Until the mid-1980s, governments and dam builders never took the issues of R&R seriously, but the Narmada Bachao Andolan (NBA) changed the whole scenario. The Washington Post quoted “Sardar Sarovar has become a global symbol of environmental, political and cultural calamity”.16 The main financiers of dam building, the World Bank and Asian Development Bank, seriously considered their commitments with the states in which they were involved and pressed them to adopt appropriate R&R polices; the UN also approached the matter seriously on internal displacement, even though their concerns were mainly regarding refugees.

(i) GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT (GPID): The United Nations Guiding Principles are the first guidelines developed within the context of human rights and humanitarian law to address internal displacement and Development Induced Displacement (DID). The Guiding Principles is not a binding law nor does it create new law but rather it highlights and, reaffirms the relevant existing rights and freedoms provided for in binding international instruments as well as in customary international law.17 The basis for the GPID is the Universal Declaration of Human Rights (UDHR)18 and other international conventions and treaties mainly the International Covenant on Civil and Political Rights (ICCPR),19 the International Covenant of Economic, Social and Cultural Rights (ICESCR),20 the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,21 the Convention Relating to the Status of Refugees,22 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),23 and the Fourth Geneva Convention as well as the two 1977 Additional Protocols.24The GPID mainly identifies the rights and guarantees that are to be observed and respected to prevent arbitrary displacement and address the needs of ID’s in terms of safety, support and solutions. The GPID is divided into five sections and is ordered according to the phases of internal displacement: general principles;25 principles relating to protection from displacement;26 principles relating to protection during displacement;27 principles relating to humanitarian assistance;28 and principles relating to return, resettlement and reintegration.29 The analysis below will highlight the principles from the GPID that are specifically relevant to DID

‘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’.³⁰

The above description on IDPs does not formally specify or address DID, but it can be inferred as DID as a human-made disaster and GPID can be applied to address the issues of DID.GPID provides for rights to adequate necessities like shelter, land, and property in the context of displacement.³¹ If displacement can be avoided, then the question of remedy does not arise. In this connection, the states have been obligated to avoid displacement, it provides, “all authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons.”³²

Right to shelter has been given a very important note; every human being is entitled to choose his place of residence and be protected against being arbitrarily removed from his place of habitual residence.³³ Further it explains what actions can be considered to be arbitrary displacement and specifically mentions “in cases of large-scale development projects, which are not justified by compelling and overriding public interests.” ³⁴ Displacement for the cause of development needs definite decision by the state and the states shall look into all feasible options and try to avoid displacement³⁵ and where there are no alternative options, the state is bound to take all measures to minimize displacement and its adverse effects on the displaced people. In reality, it is observed in majority of the cases, that displacement remains as first and last option of concerned governments. Further the GPID provides that “the authorities undertaking such displacement shall ensure, to the greatest practicable extent that proper accommodation is provided to the displaced persons that such displacements are effected in satisfactory conditions of safety, nutrition, health and hygiene, and that members of the same family are not separated.”³⁶ These has remained a core issue in DID and until these primary issues are not taken care of, the problem continues not only for the people affected by it but also for generations to come.

The cardinal principles of right to life, dignity, liberty and security have to be followed in cases where people are displaced.³⁷ Unfortunately these basic principles of Human Rights are often violated in most cases of dam construction in the name of development. States are duty bound to protect especially the displacement of indigenous people, minorities, peasants, pastoralists and other groups who are specially depend on the lands.³⁸ This principle is most important as it directly speaks on the obligations on the states to protect vulnerable groups. Their land and other activities connected with is primary to their livelihood and in most cases they would have been inhabitants of the place since generations and moving them out of these places would not only affect their livelihood but their whole life system.

The aspects of living standards which can be achieved only through basic essential needs are given prime importance in GPID.³⁹ The authorities are mandated to provide minimum essentials regardless of the circumstances, and without discrimination, to ensure safe access to:⁴⁰
(a) Essential food and potable water;
(b) Basic shelter and housing
(c) Appropriate clothing; and
(d) Essential medical services and sanitation.The most attributing part is the importance given to women in managing and planning the above requirements that are the need to maintain a healthy standard of living.41

Guiding Principles and Its Legal Effect: GPID is not a binding document, because it is not a resolution, declaration or recommendation by international organizations or institutions, nor have they been negotiated by states and thus do not entail state responsibility.42 But a closer look and proper understanding of GPID reveals they are well grounded International law.43 In the year 2005 UN world summit in New York, the Heads of the State and Government unanimously recognized GPID as “important international framework for the protection of internally displaced persons and resolve to take effective measures to increase the protection of internally displaced persons”,44 the General Assembly not only welcomed “the fact that an increasing number of States, United Nations agencies and regional and non-governmental organizations are applying them as a standard” but also encouraged “all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement”.45

Legally the GPID can be considered to have the same effect as other international conventions and laws as the principles are complimentary and addresses basic human rights issues of internally displaced people. Especially the provisions of ‘right to be protected against being arbitrarily displaced’ is clearly mentioned in humanitarian law which prohibits displacement in some specific and limited situations and human rights law, in general guarantees not only freedom of movement but also the right to choose one’s own residence.46 Majority of the dams around the world have displaced thousands of indigenous and tribal people. Legal protections against displacement from their home and environment have been specially adopted in ILO convention No.169,47 Article 16 (1) of the convention provides that indigenous people “shall not be removed from lands which they occupy.” If “the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent” or if such “consent cannot be obtained… only following appropriate procedures established by national laws and regulations, including public inquires where appropriate, which provide the opportunity for effective representation of the peoples concerned” (paragraph 2). The Sub-Commission on Prevention of Discrimination and Protection of Minorities, in its draft of United Nations declaration on the Rights of the Indigenous peoples, also acknowledge that “indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option to return.”48 From this it can be inferred that a right not to be arbitrarily displaced is already implicit in international law and binding on all nation states.

Major dam-building activities are financed by World Bank (WB). In 1980, the WB formulated the first policy49 on involuntary resettlement of any development agency engaged in funding or constructing projects that caused displacement. Critics observe that the WB was forced to come up with a policy as its funding into development projects had ‘devastating social impact of poorly planned population relocation’.50 The operational objectives were first drafted in 1980 and are updated periodically since then.51 The WB also encourages the improvement or formulation of country policies and legal frameworks significant to the rights of displaced persons. In many countries, the bank-borrower policy dialogue and the lessons derived from bank-assisted projects have led to the elaboration of improved or new domestic legislation.52 The Bank mandates that the projects it finances should not engage in practices that violate universally recognized rights in borrowing countries and this can force for adoption of domestic resettlement policies by the governments in developing or underdeveloped countries which may go a long way towards safeguarding social and economic rights, and speeding up the productive re-establishment of Oustees. The WB operational policies is a comprehensive document that has attempted in providing guidelines and measures that are necessary to address the development and resettlement process. However critics observe that:

“It is clear from the experience with other World Bank funded projects that the degree of its capacity to enforce its policy is linked to the nature of the regime in power, the strength of the economic and political interests behind the regime, the nature of the countervailing pressure of organizations of affected people as well as the Bank’s own structural incapability”53

The Asian Development Bank (ADB) formally adopted an Involuntary Resettlement Policy (IRP) in 1994.54 It is modeled on the WB policy. The IRP requires that “people who lose assets or livelihood because of a project, irrespective of tenure status, receive assistance from the project for relocation and resettlement and be paid market or replacement value for assets acquired by the project. A major IRP objective is to ensure that those affected receive rehabilitation assistance to achieve at least the same level of well-being with the project as without it. The IRP requires that all projects, including co-financed and private sector projects with identified resettlement effects, have a satisfactory resettlement plan (RP), with time-bound actions and appropriate budget”.55

In recent years, a number of multilateral and bilateral agencies have prepared and adopted resettlement policies or guidelines that are similar to those of the WB and ADB. The Inter-American Development Bank adopted a set of resettlement guidelines in 1990.56 The Overseas Development Administration in the United Kingdom has adopted guidelines that are essentially the same as those of the World Bank.57 The Overseas Economic Cooperation Fund of Japan (OECF)58 issued checklists on involuntary resettlement based on OD 4.30. Although a number of agencies have prepared and adopted resettlement policies/guidelines, data on their experiences are not readily available.59

The above mentioned financial institutions have essentially non-political mandates and these seriously limit the extent to which they can make loans dependent on respect for human rights and the environment.Governments that made bilateral loans to a country for developmental projects, especially dam constructions, are potentially in a better position to make assistance conditional with respect to resettlement and rehabilitation, as donor countries are in a better position to use political influence on countries, and will be able to garner the political support (either on its own or through international agencies or institutions) that is necessary to withdraw or withhold development aid to countries which abuse the rights of individuals and groups on which the loan was conditioned.60 So it may be appropriate that an international alliance of funding if created then the policies can be enforced with greater authority as it has both financial as well as political will to see that comments are strictly adhered and human rights are respected and protected.

The involuntary (forced and coerced) displacement of people is the very negation of the preamble⁶¹ of the Constitution which focuses on commitment to justice-social, economic and political; it also compromises the guaranteed fundamental rights.⁶² The ‘Right to live with Dignity’ as enshrined in Article 21 is violated by forced deprivation of the means of livelihood and life supporting resources to those displaced. Right to Equality and Equal Protection⁶³ is denied because most development projects have led to unequal distribution of benefits and sufferings. The Directive Principles of State Policy,⁶⁴ enshrined in Article 38, 39 (b) and (c) which proclaims social order based on justice i.e., economic justice⁶⁵ are ignored; special protection provided to the Scheduled Tribes in the Constitution, particularly in Schedules V and VI are infringed as development projects lead to forced eviction of tribals⁶⁶ who migrate to other areas where they disintegrate as a community and lose their identity and benefit as scheduled tribes.⁶⁷

With a few exceptions, most projects prior to 1980 did not have resettlement plans for oustees. Only in some projects resettlement was undertaken on a case-by-case basis. To mention a few, there were projects like the Nagarjunasagar, Hirakud, Tungabhadra and Mayurakshi dams; the Rourkela, Bhilai and Bokaro steel plants, several defence establishments, coal mines, etc., which did offer resettlement in the form of house sites to the displaced. Only the National Thermal Power Corporation (NTPC), and the Coal India Limited (CIL), two public sector units (PSUs) have formulated R&R policy and constituted R&R departments to administer it. In addition, resettlement colonies have been demarcated near all their project sites to resettle the displaced.⁶⁸ Different state governments and ministries of central government⁶⁹ have followed different policies on R&Ras there was no national R&R policy.

(i) State Enactments: Maharashtra was the first state to institute a rehabilitation law in response to the demands of the displaced persons with the construction of a large number of dams during the first five year plan;⁷⁰ Maharashtra’s R&R policy is considered to be the most comprehensive Act compared to other states⁷¹ as the Act was framed long back in 1973 and it has done without policy compulsions of WB or the ADB.⁷² In 1973, the Government of Orissa announced a resettlement policy for the Rengali Dam, which was its first such initiative. Until then there was no resettlement policy in Orissa for people displaced by dams or other projects. In 1977, Orissa for the first time in India, conceded the right of a displaced landless to the land based rehabilitation. The state of Orissa has number of polices on different developmental projects.
The states of Madhya Pradesh in 1994, Karnataka in 1994⁷³ (the Karnataka law is said to have been signed because the WB refused the next loan installment for the Upper Krishna project (UKP)⁷⁴ till the act was framed and enacted)⁷⁵ and Rajasthan in 1997 have resettlement legislation but most State governments⁷⁶ rely not only on law or universal policies made from time to time but they also rely on ad hoc administrative instructions, in conformity with the bureaucratic preference for what is described as case-by-case approach, like in Orissa, the R&R policy differs among mining, industrial, thermal power and water resources development projects.

(ii) Central Enactments: The only existing law relating to involuntary displacement with all-India coverage, until 2013, was the draconian Land Acquisition Act (LAA)⁷⁷ of 1894 enacted by the colonial empire. Other such laws, on the same lines but without direct relevance to big dams, include, like the Indian Forest Act 1927,⁷⁸ the Army Manoeuvres and Practice Act 1938⁷⁹ and Coal Bearing Areas (Acquisition and Development) Act 1957,⁸⁰ adding to the list The National Highways Act 1956,⁸¹ The National Highways Authority Act 1988,⁸² The Railways Act 1989,⁸³ Airport Authority of India Act 1994⁸⁴ play a major role in applying LAA.

(iii) THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013. (referred as ACT)
The preamble of the Act addresses core issues of displacement and democratic principles that need to be practiced as mandated by the Constitution. It emphasizes on the need for industrialization, urbanization, necessary infrastructural development and in this connection, how to have a balanced attitude in maintaining development and protection of rights of those who lose their homes, jobs and other related rights connected with land, by providing them with appropriate compensation, rehabilitation and resettlement, which can improve their social and economic status much better than what they were earlier to land acquisition. The primary words in the preamble that needs to be highlighted are humane, participatory, informed consultative, transparent process, just and fair compensation, rehabilitation and resettlement and partners in development. If these words are put into actions then probably the Act would serve the interest of people who have always been on a losing end due to the authoritative acts of the states for a long time in the name of ‘common good’.

The Act consists of thirteen chapters and four schedules; the Act provides a uniform legislation for land acquisition and appropriate rehabilitation mechanisms for all affected persons and importantly replaces the colonial Land Acquisition Act, 1894. The provisions of this Act shall not apply to the sixteen (IV schedule of the Act)⁸⁵ enactments relating to land acquisition.⁸⁶ The Act covers land acquisition, rehabilitation and resettlement when the appropriate Government acquires land⁸⁷ The big question on the applicability of the Act is, if land is acquired by government for dam construction, whether R&R will be provided as per the Act or the government will exempt itself stating that the provisions of the Act is not applicable to projects which are in public interest, like power and irrigation. The Act has an exhaustive definition of ‘affected family’⁸⁸ and the most discussed and disputed word ‘public purpose’⁸⁹ includes provisions for:

(i) the provision of land for strategic purposes relating defence, national security, state police or public security;
(ii) the provision of land for railways, highways, ports, power and irrigation;
(iii) the provision of land for project affected people;
(iv) the provision of land for planned development or the improvement of village sites or urban area or for residential purposes for the weaker sections or for Government administered educational, agricultural, health and research schemes or institutions;
(v) the provision of land for residential purposes to the poor or the landless;
(vi) the provision of land in the public interest for— where the projects benefit general public; public goods or public services by private companies or public private partnerships; these require the consent of eighty percent of project affected people.

The explanation is satisfactory to a large extent but it does not clarify whether eighty percent of project-affected people’s consent is mandatory for projects undertaken by government. The Act seems to be contradicting on its view of consent which needs to be clarified before it comes into force.The most striking feature of the Act is that it provides provision for a Social Impact Assessment⁹⁰ (SIA) of the project⁹¹ and public hearing;⁹² it also provides for appraisal of the SIA by an independent body which is empowered to recommend the project on following ground:

(a) the project will serve the stated public purpose;
(b) the project is in the larger public interest; and
(c) the potential benefits outweigh the costs and adverse impacts.

Or recommend for cancelling the project on following grounds:

(a) the project does not serve the stated public purpose; or
(b) the project is not in the larger public interest; or
(c) the costs and adverse impacts of the project outweigh the potential benefits.

Earlier experiences show that most of the independent and government bodies have recommendation powers, but it is not mandatory on the authorities (concerned government body or the government) to accept the recommendations and it may have its own way and the same is expected to happen with SIA appraisal committee. Further the Act provides for a Constitution of committee to examine the proposals for land acquisition of hundred and more acres and the SIA Report⁹³ in this regard. The drawback is that there is no provision of public hearing by the independent appraisal committee which is vested with the powers of recommendation and this may result in a flawed recommendation.

It is acceptable that in most cases land acquisition becomes inevitable for developmental and infrastructural activities, but the compensation awarded based on ‘market value’ for the loss of land is always a contesting point and even the Supreme Court has delivered judgments time and again on this matter. In Special Tahsildar. L.A. v. Mangala Gauri⁹⁴ the court held that ‘market value’ as the price that willing seller might reasonably expect from a wiling purchaser. But in most of the cases seller’s willingness is always through coercion (states authoritative action) and we can never assess the real price to be paid to the seller. In K.Pasayya v. Special Tehsildar⁹⁵ the court acknowledged that the definition of ‘market value’ as ‘price that willing seller might reasonably expect from a willing purchaser’ does not easily lead to a precise determine of market value, as market conditions keep on fluctuating and the uniqueness of each property’s location, size, quality, and possible potentialities affects market value. And each of these factors is difficult to be quantified in comparable monetary terms. To sum up, it is difficult to quantify market value through a simple algebraic formula or mathematical exercise.⁹⁶

The compensation amount⁹⁷ shall be based on the higher of (a) the minimum land value, specified in the Indian Stamp Act, 1899 for the registration of sale deeds; and (b) the average sale price of the higher priced fifty percent of the last three years’ sale deeds registered in for similar type of land situated in the vicinity.⁹⁸ In case of rural areas the amount is further doubled.Immovable assets like trees, plants, buildings etc is and will be added to the doubled amount. The total amount will then be multiplied by two to get the final compensation amount and in case of the urgency clause,⁹⁹ and then the multiplication factor in determining the compensation will be 2.75. If this formula is applied in determining the compensation amount, it would do more harm than benefiting the displaced because in most of the cases registered sale deeds understate the actual sales price to reduce tax liability. Land acquisition authorities despite knowing this well will apply the comparable sales method of valuation and this will automatically result in substantial undervaluation.

The core concept of R&R is placed in Chapter five and six of the Act.¹⁰⁰ It mandates the Collector to pass R&R awards for each affected family in terms of the entitlements; the R&R award shall include R&R amount payable to family; bank account number of the person to which the R&R award amount is to be transferred; particulars of house site and house to be allotted, in case of displaced families; particulars of land allotted to the displaced families; particulars of one time subsistence allowance and transportation allow ancein case of displaced families; particulars of payment for cattle shed and petty shops; particulars of one-time amount to artisans and small traders; details of mandatory employment to be provided to the members of the affected families; particulars of any fishing rights that may be involved; particulars of annuity and other entitlements to be provided; particulars of special provisions for Scheduled Castes and the Scheduled Tribes and every displaced family should be resettled in resettlement area which has all infrastructural and basic amenities.¹⁰¹

But the dilemma is, nowhere in the Act it makes mandatory on the part of authorities or the state to transfer the R&R benefits or compensation to the oustees before they are moved out of their land¹⁰² and in cases of acquisition of land for irrigation or hydel project, being a public purpose, the R&R shall be completed six months prior to submergence of the lands proposed to be so acquired;¹⁰³ People losing their homes are left with little respite as rehabilitation policy offers construction of house of plinth area of not less than150 sqmts of house site in rural areas or 50 sqmts plinth area in urban areas and in case families opt out of the benefit of a constructed house (by the authorities) then they will be offered an amount not less than 1.5 lakhs. This will never balance the equation as people who lose their house will suffer, as the house constructed by the authorities will be as per government schemes. If they settle for 1.5 lakhs, (which is minimum amount) what additionally they would get will depend on the sole criteria of the acquisition authority. There will be more damage when joint families break into nuclear family (which is bound to happen when they lose their ancestral property), as the Act states that ‘no family affected by acquisition shall be given more than one house’.¹⁰⁴

The Act promises that ‘in case of irrigation project, each affected family owning agricultural land in the affected area and whose land has been acquired or lost, or who has, as a consequence of the acquisition or loss of land, been reduced to the status of a marginal farmer or landless, shall be allotted, in the name of each person included in the records of rights with regard to the affected family, a minimum of one acre of land in the command area of the project for which the land is acquired: Provided that in every project those persons losing land and belonging to the Scheduled Castes or Scheduled Tribes will be provided land equivalent to land acquired or two and a one half acres, whichever is lower’.¹⁰⁵ In almost all previous cases it has been evident that ‘land for land’ has been much contested issue as land scarcity is a reality. The Act fails to positively address the issues of R&R. Most provisions in the Act have failed to comprehensively provide appropriate alternatives to the oustees and are not specific on issues that mostly hurt the oustees like land for land, alternative employment, incentives for receiving communities, and protecting the cultural and traditional rights of tribals. The Act does have many positive aspects, but putting these things in to reality seems to be a mirage.

“We want to show that we can build big dams and do big things… but the idea of having big undertakings and doing big tasks for the sake of showing that we can do big things is not a good outlook at all.”¹⁰⁶

Nehru’s statement reflects how most of the third world countries blindly adopted the idea of building big dams considering them to be symbols of economic progress and status. These ideas yielded results in short term but in most cases the negative impacts of big dams on the people displaced was colossal and the damages were irreversible.

WCD mentions the benefits of dams to the nations in its development process; it has been a very important means of meeting perceived needs for water, energy and related services and as a strategic investment. It is considered to deliver multiple benefits, like flood control, industrial development, employment generation and the like.¹⁰⁶ WCD also records the socio-cultural costs of these big dams. The WCD report mentions the problems of oustees, especially in their resettlement process and directly blames the political and institutional actors for having letdown the oustees.

“Impoverishment of affected people is increasingly seen as unacceptable but it is also unnecessary since there are a wide range of opportunities available for making not only resettlers, but all affected people, project as beneficiaries. This is in the interests of all stakeholders since, as beneficiaries, affected people add to the stream of project benefits, while reducing costs. The problem of making them beneficiaries lies not with affected people, who time and again have shown the capacity to respond to opportunities that are available, but with the inadequate laws, policies, plans, financing capacity and political will of governments and project authorities”.¹⁰⁸

It is clear that laws, policies, plans and very importantly, non-committedpolitical class, lackluster governments and indecisive projects authorities have minimized the benefits of dams. If dams are considered as indicators of development then that development should have choices, decision making rights and moreover, serve the public cause. To improve development outcomes in the future, it is important to look at the proposed water and energy development projects in a much wider setup, i.e., a setting that reflects full knowledge and understanding of the benefits and impacts of large dam projects and alternative options for all parties. To achieve this it is important to bring new voices, perspectives and criteria into decision-making, and develop an approach that will build consensus around the decisions reached either in favor of dam or otherwise. This will result in fundamental changes in the way decisions are made in building dams that can change lives of thousands. In this context it is appropriate and important to make dams a positive oriented development by mandatorily following:

(a) Public Acceptance,
(b) Comprehensive Options Assessment,
(c) Recognizing Entitlements and Sharing Benefits and
(d) Ensuring Compliance.

*A updated paper presented at ICSSR Funded Two-Day International Conference On ‘‘Ethnicity,, Discrimination and Social Exclusion of Minorities and Margins:: Post-Colonial Debates’’ organised by Centre for Study of Social Exclusion and Inclusive Policy, Mysore University, Mysore scheduled on 18th and 19th December 2014
•Associate Professor, P.G.Department of Studies in Law, Karnatak University, Dharwad, Karnataka India. E-mail vishwanathm@kud.ac.in
1Michael M.Cernea, “Bridging the Research Divide: Studying Development Oustees.” In Tim Allen (ed.), In Search of Cool Ground: War, Flight and Homecoming in Northeast Africa (London: United Nations Research Institute for Social Development, Africa: World Press and James Currey, 1996).
2As in many other “Green Revolutions” the rich have gotten richer and the poor have remained poor or grown poorer. James C. Scott, “Weapons of the Weak Everyday Forms of Peasant Resistance”, (New Haven: Yale University Press, 1985),p. xvii
3Fabiola Bigler, Jan Landert and Arko Ghosh‘ A Case Report for the Course Science and Politics of Large Dam Projects’. April 2007, p.3 ETH Zurich.
4Amiya Kumar Bagchi, ‘Inequality, Deprivation and Displacement’ in Nirmala Banerjee and Sugata Marjit, (eds.), Development, Displacement and Disparity, (New Delhi: Orient Longman Pvt. Ltd, 2005), p.18.
5The official name given in India to the lowest caste, considered ‘untouchable’ in orthodox Hindu scriptures and practice, officially regarded as socially disadvantaged. Oxford Dictionary; The word ‘Dalit’ comes from the Sanskrit, and means ‘ground’, ‘suppressed’, ‘crushed’, or ‘broken to pieces’. It was first used by Mahatma Jyotirao Phule in the nineteenth century, in the context of the oppression faced by the erstwhile “untouchable” castes of the twice-born Hindus. Oliver Mendelsohn, Marika Vicziany. The Untouchables: Subordination, Poverty, and the State in Modern India, (Cambridge: Cambridge University Press, 1998), p.4; The British government termed them as ‘Depressed Classes’ and the Government of India Act 1935 aimed at giving greater self-rule set up a national federal structure and provided reservation of seats for the Depressed which came into force in 1937. The Act mentioned depressed class as ‘Scheduled Castes’ (All the untouchable castes, which were listed in 1931-Census of India, came to be known as the ‘Scheduled Castes’), and defined the groups as including ‘such castes, races or tribes or parts of groups with in races or tribes, which appear to His Majesty in council may prefer. This discretionary definition was clarified in The Government of India (Scheduled Castes) Order, 1936 which contained a list, or Schedule, of castes throughout the British administered provinces. HL Deb 08 April 1936 Vol 100 cc506-7; After independence, the Constituent Assembly continued the prevailing definition of Scheduled Castes and Tribes, and has given the President of India and Governors of states responsibility to compile a full listing of castes and also the power to edit it later as required. Article 341(1) (2) the Indian Constitution.
6National Register of Large Dams for India cited in WCD Case Study; WCD Report Dams and Development: A New Framework for Decision-Making 2000, p.10
7Lakshman K. Mahapatra, “Testing the Risks and Reconstruction Model on India’s Resettlement Experiences.” In Michael Cernea (ed) The Economics of Involuntary Resettlement: Questions and Challenges (Washington, DC: World Bank, 1999), p.193
8According to the Central Water Commission, 3,300 dams had been built since 1947 and another 1,000 are under construction.
9Mahendra Lama, “Internal Displacement in India: Causes, Protection and Dilemmas.” Forced Migration Review, 8, August 2000, p.25
10Fernandes, W., J.C. Das and Sam Rao. 1989. “Displacement and Rehabilitation: An Estimate of the Extent and Prospects” in W. Fernandes and E.G. Thukral (eds.). Development, Displacement and Rehabilitation. (New Delhi: Indian Social Institute, 1989); Fernandes, Walter ‘Power and Powerlessness: Development Projects and Displaced Tribals’, Social Action 41, (New Delhi: Indian Social Institute, 1991).
11Dr. N.C. Saxenahttp://planningcommission.nic.in/reports/articles/ncsxna/art_dam.pdf
12Walter Fernandes, ‘’Rehabilitation Policy for the Displaced’’, Economic and Political Weekly, Vol 39, Issue 12, March 2004, pp 1191-1193.
13Arundhati Roy ‘The Greater Common Good: The Human Cost of Big Dams’Frontline Volume 16 – Issue 11, May. 22 – June 04, 1999
14Ravi Hemadri, Bisalpur Harsh Mander and Vijay Nagaraj Dams, ‘Displacement, Policy and Law in India,’ Contributing papers to the World Commission on Dams, July 1999, pp.25-26. http://www.dams.org
15Projects like the Nagarjunasagar, Hirakund, Tungabhadra and Mayurakshi dams, the Rourkela, Bhilai and Bokaro steel plants, several defence establishments, coal mines, etc, offered resettlement in the form of house sites to the displaced.Ibid.
16Moore M., ‘India’s Lifeline or Man-Made Disaster? ”Washington Post, 24 August 1993.
17Oloka-Onyango J., “Movement-Related Rights in the Context of Internal Displacement” in Walter Kälin, Rhodri C. Williams, Khalid Koser, and Andrew Solomon (eds.), Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges (Washington, DC: The American Society of International Law and The Brookings Institution, 2010), p.12
18Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., 67th plenary meeting. U.N. Doc. A/810 (1948)
19International Covenant on Civil and Political Rights, Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. GOAR Supp. No. 16 at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, 6 I.L.M. 368 (1967)
20International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. GOAR Supp. No. 16 at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, 6 I.L.M. 368 (1967)
21Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 46, U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1984), 1465 U.N.T.S. 85, 23 I.L.M. 1027, as modified, 24 I.L.M. 535 (1985)
22Convention relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150
23Convention on the Elimination of All Forms of Discrimination Against Women, Sept. 3, 1981, G.A. Res. 34/180, U.N. GAOR Supp. No. 46 at 193, U.N. Doc. A/34/46, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980).
24Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T 3516, 75 U.N.T.S. 287. See also Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978, and Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force Dec. 7, 1978.
25Guiding Principles on Internal Displacement Principle1-4.
26Ibid., Principle 5-9.
27Ibid., Principle 10-23.
28Ibid., Principle 24-27.
29Ibid., Principle 28-30.
30Guiding Principles on Internal Displacement Para 2 Introduction: Scope and Purpose
31Shivani Chaudhry “Development-induced Displacement and Forced Evictions” in Walter Kälin, Rhodri C. Williams, Khalid Koser, and Andrew Solomon (eds.), Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges (Washington, DC: The American Society of International Law and The Brookings Institution, 2010), p.593
32Guiding Principles on Internal Displacement Principle, principle 5
33Ibid., principle 6
34The right to be protected against being arbitrarily displaced, principle 6 (2) (c)
35Guiding Principles on Internal Displacement Principle, principle 7
36Ibid.,Principle 7(2)
37Ibid.,Principle 8
38Ibid., Principle 9
39Ibid.,Principle 18 (1)
40Ibid.,Principle 18 (2)
41Ibid.,Principle 18 (3)
42Walter Kälin “How Hard is Soft Law? The Guiding Principles on Internal Displacement and the Need for a Normative Framework”, Brookings Rookings/Cuny Project on Internal Displacement December 19, 2001, p.1.
43See Walter Kälin, ‘Guiding Principles on Internal Displacement, Annotations’, Revised Edition, Studies in Transnational Legal Policy, No. 32 (Washington, DC: The American Society of International Law, 2008); Walter Kälin, ‘Guiding Principles on Internal Displacement, Annotations’, (Washington, DC: The American Society of International Law, 2000)
44UN General Assembly 2005 World Summit Outcome GA Resolution A/60/L.1 para. 132.
4576th Plenary Meeting 18 December 2007A/RES/62/153, para 10
46Article 12(1) of the International Covenant on Civil and Political Rights, articles 49 and 147 Geneva
Convention IV, Articles 51(7), 78(1) and 85(4) of Protocol I, Articles 4(3)(e) and 17 of Protocol II.
47Convention No. 169 was adopted in 1989 to revise the earlier Indigenous and Tribal Populations Convention, 1957 (No. 107).
48United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft declaration on the Rights of Indigenous Peoples, as adopted by the sub-commission as its forty-sixth session (Resolution 1994/45;E/CN.4/Sub.2/1994/2/Add.1)
49The policy was first issued as an internal Operational Manual Statement (OMS 2.33) to staff in February 1980.
50Alan Rew, Eleanor Fisher and Balaji Pandey, ‘Addressing Policy Constraints and Improving Outcomes in Development-Induced Resettlement Projects’ A review prepared for ESCOR and the Research Programme on Development-Induced Displacement and Resettlement Final Report organized by the Refugee Studies Centre, University of Oxford, January 2000
51Operational Directive 4.30 of 1990 on Involuntary Resettlement, which has subsequently gone through various revisions, culminating in the Operational Policy 4.12 on Involuntary Resettlement of January 2002
52Paul J.C.N. ‘International Development Agencies, Human Rights and Humane Development Projects’, Denver Journal of International Law and Politics, Vol.17. No.1 1988, pp..67-120
53Sao Paulo Consultation (SOC 161:1483) 1999 in Bartolome, L.J., de Wet, C., Mander, H., Nagraj, V.K. “Displacement, Resettlement, Rehabilitation, Reparation, and Development”, WCD Thematic Review I.3 prepared as an input to the World Commission on Dams,2000 , p.11www.dams.org
54The Asian Development Bank (ADB) adopted an involuntary resettlement policy (IRP) in February 1994 and formally endorsed it in November 1995.
55Involuntary Resettlement Policy Statement ADB.
56Definition and Scope: This policy covers any involuntary physical displacement of people caused by a Bank project. It applies to all Bank funded operations, in the public or private sector, whether Bank financing is directly channeled (as in investment loans) or administered by intermediaries (as in multiple works, time-slice or multi sector credit programs). It excludes colonization schemes, as well as the settlement of refugees or victims of natural disasters; Objective: The objective of the policy is to minimize the disruption of the livelihood of people living in the project’s area of influence, by avoiding or minimizing the need for physical displacement, ensuring that when people must be displaced they are treated equitably and, where feasible, can share in the benefits of the project that requires their resettlement.http://www.iadb.org/en/about-us/involuntary-resettlement,6660.html
57Formally accepted the OECD guidelines (1991) on Displacement and Resettlement http://www.dfid.gov.uk/
58http://www.jbic.go.jp/en/
59Policies of Other Agencieshttp://www.adb.org/documents/policies/involuntary_resettlement/reset232.asp
60Michael Barutciski ‘Addressing Legal Constraints and Improving Outcomes in DIDR Projects Improving Outcomes In Development-Induced Displacement and Resettlement (DDIR) Projects’ a Synthesis Report on the Findings of a Project by the Refugee Studies Centre, Queen Elizabeth House, University of Oxford, April 2002, p.5
61We The People of India, Having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic (Subs. by the Constitution forty-second Amendment for ‘Sovereign Democratic Republic” w.e.f. 3 January 1977) and to secure to all citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation (Subs. by the Constitution forty-second Amendment for ‘unity of the Nation’ w.e.f. 3 January 1977)
62Indian Constitution Article 19 (1) (d and e) – ‘to move freely throughout the territory of India’; ‘to reside and settle in any part of the territory of India’; is disregarded when people are involuntarily shifted from their existing habitat. Art-19 (1-G) to right to practice any profession or to carry on any occupation, trade or business is violated when they are forced to find alternative jobs or profession due to forced displacement.
63Ibid., Art-14.
64Ibid., Articles 36-51.
65Ibid., Article 39 (b) the ownership and control of material recourses of the community are so distributed as best to serve the common good; Article 39 (c) to ensure that the economic system should not result in concentration of wealth and means of production to the common detriment.
6640% of the people displaced by dams and other projects are Tribals and if the Scheduled Castes are to be added then the figure goes up to 60%. The 29th Report of the Commissioner for Scheduled Castes and Scheduled Tribes, 1990.
67Saxena K.B. “Development, Displacement and Resistance: The Law and the Policy on Land Acquisition” Social Change: September 2008: Vol.38 No.3.p.358
68Mohammed Asif, ‘Why Displaced Persons Reject Project Resettlement Colonies’, Economic and Political Weekly, Issue June 10 2000, pp 2005-2008
69G.O.I. Ministry of Water Resources 1994, Ministry of Rural development (1993 and 1994) etc, all came up with their policy statements on resettlement and rehabilitation.
70A Rehabilitation Directorate was also established at the Sachivalaya (Secretariat) to implement its policy.The Maharashtra Project Affected People’s Rehabilitation Act of 1976, enacted in response to the demands of farmers displaced by more than 1,000 medium dams built in that State in the 1960s; It was revised in 1986 and received the President’s assent in 1989; replaced by the Maharashtra Project Affected Persons Rehabilitation Act, 1999
71Bhuskute, R. V. “The Maharashtra Rehabilitation Act 1989,” in Walter Fernandes and Vijay Paranjpye (eds)., Rehabilitation Policy and Law in India: A Right to Livelihood, (New Delhi: Indian Social Institute, 1997), pp. 169-191.
72Walter Fernandes and Vijay Paranjpye (eds)., Rehabilitation Policy and Law in India: A Right to Livelihood. (New Delhi: Indian Social Institute, 1997), p.5
73Karnataka passed the enactment in1987 but it received the President’s assent in 1994.
74UKP work was taken up in two stages. The first phase completed with World Bank assistance of Rs. 1350 crores from 1978-1986. The second phase (1987-1993) was completed with the World Bank assistance of Rs. 650 crores.
75Ramesh, M. K. and Francis Guntipilly“A Critique of the Karnataka Resettlement of Project-Displaced Persons’ Act, 1987,” in Walter Fernandes and Vijay Paranjpye (eds)., “Rehabilitation Policy and Law in India: A Right to Livelihood”. (New Delhi: Indian Social Institute, 1997) pp. 201-214.
76Like Bihar, Gujarat, Punjab, Andhra Pradesh land acquisition and resettlement are governed by general or project-specific directives.
77With some amendments in 1967 and 1984, is till today a weapon in hands of the state for acquiring land from its people especially the poor and vulnerable.
78ACT No.XVI of 192721st September, 1927 (enacted with intention of the displacing people (mainly tribals and dependents on forest) from forests in which the state declared an interest in the name of protection of forest)
79ACT NO.V of 1938, 12th March, 1938 (the act provides for the ‘removal’ and ‘exclusion’ of persons from the danger zone- where the army used land for its field firing and artillery practice, which in turn displaced people, with under the state authority)
80ACT NO. 20 of 1957 8th June, 1957 (establish in the economic interest of India greater public control over the coal mining industry and its development by providing for the acquisition by the State of unworked land containing or likely to contain coal deposits or of rights in or over such land, for the extinguishment or modification of such rights accruing by virtue of any agreement, lease, licence or otherwise, and for matters connected therewith, clearly strikes into areas like forests and mountains where normally tribals reside)
81ACT No.48 of 1956 11th September, 1956
82ACT NO. 68 of 1988 16th December, 1988
83ACT NO. 24 OF 1989 3rd June, 1989
84ACT NO. 55 OF 1994 (Amendment in 2003)
851. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of1958); 2. The Atomic Energy Act, 1962 (33 of 1962); 3.The Cantonments Act, 2006 (41 of 2006); 4.The Damodar Valley Corporation Act, 1948 (14 of 1948); 5.The Indian Tramways Act, 1886 (11 of 1886); 6.The Land Acquisition (Mines) Act, 1885 (18 of 1885); 7.The Metro Railways (Construction of Works) Act, 1978 (33 of 1978); 8.The National Highways Act, 1956 (48 of 1956); 9.The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962); 10.The Requisitioning and Acquisition of Immovable Property Act, 1952 (30 of 1952); 11.The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (60 of 1948); 12.The Special Economic Zones Act, 2005 (28 of 2005); 13.The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of 1957); 14.The Electricity Act, 2003 (36 of 2003); 15.The Railways Act, 1989 (24 of 1989); 16.The Works of Defence Act, 1903 (7 of 1903).
86The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.Sec-105 (1).
87Act, Sec-2(a) for its own use, hold and control; or (b) with the purpose to transfer it for the use of private companies for public purpose (including Public Private Partnership projects but not including national or state highway projects); or (c) on the request of private companies for immediate and declared use by such companies of land for public purposes: Provided that no land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of the law relating to land transfer, prevailing in such Scheduled Areas. (2) The provisions relating to rehabilitation and resettlement under this Act shall apply in the cases where,— (a) a private company purchases or acquires land, equal to or more than one hundred acres in rural areas or equal to or more than fifty acres in urban areas, through private negotiations with the owner of the land as per the provisions of section 42; (b) a private company requests the appropriate Government for acquisition of a part of an area so identified for a public purpose: Provided that where a private company requests the appropriate Government for partial acquisition of land for public purpose then the rehabilitation and resettlement entitlements shall be applicable for the entire area identified for acquisition by the private company and not limited to the area for which the request is made.
88Ibid., Sec. 3(c) covers land owners, agricultural labourers, tenants, share-croppers or artisans whose primary source of livelihood stand affected by the acquisition of land.
89Ibid., Sec. 3(za)
90Ibid., Sec 4
91Ibid., Sec 4(4) (a) assessment of nature of public interest involved; (b) estimation of affected families and the number of families among them likely to be displaced; (c) study of socio-economic impact upon the families residing in the adjoining area of the land acquired; (d) extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisition; (e) whether the extent of land proposed for acquisition is the absolute bare minimum extent needed for the project; (f) whether land acquisition at an alternate place has been considered and found not feasible; (g) study of social impact from the project, and the nature and cost of addressing them and their impact on the overall costs of the project and benefits vis-à-vis the social and environmental costs the potential benefits outweigh the costs and adverse impacts
92Ibid., Sec 5
93Ibid., Sec 7
94AIR 1992 SC 666.
95AIR 1995 SC 1641.
96Ibid.
97Act, Sec-27-28
98The average sale price shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made; For determining the average sale price one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account.
99Act, Sec-9
100Rehabilitation and Resettlement Award sec-31-47
101Roads, drainage, safe drinking water, grazing land , Fair price shop, panchyat halls, post office, irrigation facilities, transport facilities, burial ground, electricity for houses, Anganwadi’s providing child and mother supplemental nutritional services, schools, primary health center, playground, community halls, worship places; in case of tribal separate land should be earmarked; The forest dweller families must be provided, where possible, with their traditional rights on non-timber forest produce and common property resources, if available close to the new place of settlement and, in case any such family can continue their access or entry to such forest or common property in the area close to the place of eviction, they must continue to enjoy their earlier rights to the aforesaid sources of livelihood.
102The Collector shall ensure that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements listed in the Second Schedule commencing from the date of the award. Act Sec-38(1)
103ActSec38(1) para 3.
104Act, Schedule II Applicable to Sec 38(1) ‘Provided also that no family affected by acquisition shall be given more than one house under the provisions of this Act’.
105Ibid.
106Jawaharlal Nehru’s statement at the 1958 annual meeting of the Central Board of Irrigation and Power; Irrigation and Power, Vol. XVI, No.1, January 1959, p.172 quoted in Patrick McCully, pp.20-21
107WCD Report, 2011, p.11
108Ibid., p.109