Governance Now, Dec 1-15, 2010
By going in for the moneybag brand of development at the cost of what people need or prudence demands, Orissa is fast turning into a basket case and is all set to replace Bihar in the ‘bimaru’ club
When you head towards Ersama block (which bore the brunt of the Supercyclone of 1999) in Jagatsinghpur, about 100 km from Orissa’s capital city of Bhubaneswar, you are immediately struck by the light green paddy fields stretched for miles on either side of the road, skirted by tall dark green trees at the far ends. The air is clean, the surroundings refreshing. Mahanga river, which has been parted at several places to mark exclusive fishing areas for the villages, gives you company some way to the cluster of villages that those tall dark trees hide in their midst. Cattle egrets and an occasional drango make their appearances to complete the picture of a calm, peaceful and pleasant rural set-up. Once there, you expect a chirpy village life waiting to greet you. Instead, you are hit by an eerie silence so conspicuous that you suddenly realise you are in a condemned zone. Several villages falling under three panchayats – Dhinkia, Gada Kujanga and Nuagaon – are living under constant fear. The government is determined to acquire 4,000 acre of their homestead and farmland for a South Korean steel company, POSCO.
What the villagers fail to understand is why the government is bent on throwing them out of their forefathers’ land and destroying their lives by giving away their land to a foreign company when, three km down south there is plenty of barren land that can be used for the same purpose. Shifting the location of POSCO’s plant will not mean much inconvenience for the company except for levelling the sandy shore of the Bay of Bengal. Of course, the government never consulted them nor responded to the suggestion about shifting the plant site.
Incidentally, they are still recovering from the Supercyclone that killed more than 8,000 in this block alone and washed away several villages. They got paltry sums between Rs 1,000 and Rs 3,500 for the houses damaged or washed away. Then came an IOC refinery (in Abhaychandpur village) for which hundreds lost their homes in 2001 but the rehabilitation site remains barren even today.
What People Need
“Given a choice, what kind of development you would like for your area?” I ask one of the villagers, Ranjan Swain of Govindpur village in Dhinkia – a 30-year-old betel vine grower who has turned a full-time anti-plant activist. Here is what he said: “I would like a cashew processing plant in our area. We produce about 200 tonne of cashew a year which is sent to Kolkata for processing. The processed product then comes back to Cuttack for sale in and outside the state. My second wish would be nurseries for fish and prawn that grow so well in salty waters of Mahanga and Jatadhar rivers and our ponds. Right now, we get the hatchlings from Hyderabad. My third wish would be export facilities for excellent ‘banarasi’ paan (betel leaf) that only we grow.” He also points out how government apathy in the past led to closure of two textile mills in the district in 1990s as a result of which the villagers stopped growing cotton altogether.
His sarpanch, Shishir Kumar Mahapatra, adds a few to the list: Roads, maintenance of a cyclone shelter built by the Maharashtra government in 2000, power connections to homes and a public health centre.
Nearly 600 km southwest of Bhubaneswar, in Kashipur block of Rayagada district, the situation is no different. Kashipur has been in news for all the wrong reasons – starvation deaths of 2001 (when many succumbed after consuming infected mango kernel) and resistance to bauxite mining and alumina plants. This is among the most picturesque places of Orissa with green hills covering the entire region, some of which carry bauxite. Some would go to the extent of comparing its natural beauty with that of Kashmir. Primitive Kondhs and Parajas live at the foothills and practice jhum cultivation because of which many of the hills are now barren. Vidhya Das of Agragamee, a non–government agency, has been working among these tribals for more than quarter of a century. I ask her the same question that I had asked Ranjan Swain.
In response, Vidhya says communication and livelihood issues bother her the most and need fixing. There are no roads in this block. Bits of tar one finds give an impression that the roads were laid 10 to 20 years ago and never been re-carpeted since. There are only two private minibuses that connect it to nearby district headquarters. Villagers walk for 5, 10, 20 even 30 km on foot every day. Some cross the hills wherever possible. As for livelihood issues, the tribals practice jhum that involves clearing up hills to grow rice, millets and oil seeds. They grow only one crop, Kharif, as there is no irrigation. Productivity is low and people let their cattle roam free for rest of the year. Vidhya would like the government to promote “settled” agriculture by helping with irrigation, watershed and land reclamation programmes. Poor marketing avenues deprive people good return on their products. This forces them to cut more trees to generate cash. Panasguda, the village that had witnessed mango kernel-related deaths in 2001, has no source of income other than selling wood though it is located one km away from the Kashipur block headquarters. The hills surrounding the village are without a tree. They now cross over to cut wood from the other side.
There are other issues. Malaria, cholera and diarrhoea claim a steady stream of lives throughout the year. The block has seven PHCs and one community PHC. According to the local block development officer (BDO), none of the PHCs has a doctor and the community PHC has two, instead of seven.
Instead of fixing these issues to improve the living conditions, the state has focused on handing over hills, villages and farmland for bauxite mining and alumina plants by coercion and allurement. Some of the anti-mining leaders have, thus, turned contractors and work for setting up Utkal Alumina’s plant and its mining of the Baphlimali hills. Thousands have been displaced on account of this. Those who continue to resist face criminal cases and are forced to stay away. Aditya Birla is coming up with another alumina plant and will mine the Sasbahumali hills. Vedanta’s original plan was to set up its alumina plant here and mine these hills but it was forced to shift to Kalahandi and seek the Niyamgiri hills. The protests may have subsided but anger and resentment simmer.
I did two more such exercises, one of which was in Kalinganagar in Jajpur district, 100-odd km northeast of Bhubaneswar and another conflict zone. People of Chandia and Gobarghati panchayats, who are Ho and Mundari settlers from Chhotanagpur plateau of Jharkhand, are facing eviction for a steel plant by the Tatas. Their leader Ravindra Nath Jarika says the land is fertile but requires irrigation for the second crop. The area needs a PHC, upper primary and high schools, teachers, doctors and NREGA work which was never taken up because these villages have been out of bound for the government officials since 2004 and witnessed a cold–blooded killing of 15 tribals by police in January 2006.
What Prudence Demands
It is quite apparent that there is a huge gap between what the people need and what the state is doing by way of so-called development and this is at the heart of conflicts in many parts of the state. A few facts about the state will make it easy to understand and find solutions to these conflicts which often turn violent.
“Orissa is an agrarian state” goes the first line of the state agriculture policy of 2008, adding that 83 percent of the farming community consists of small and marginal farmers. Latest economic survey (ES) report says though agriculture and allied sectors contribute less than 30 percent towards the state’s GDP it engages 60 percent of state’s workforce (2001 census said 70 percent). Both, however, ignore a huge and growing population of migrant workers to Andhra’s brick kilns, Surat’s textile and diamond units, to Raipur, Delhi, Mumbai, Bengaluru and elsewhere for other menial jobs.
The state has rich forest cover (more than 37 percent) and mineral resources too, especially in the backward and tribal dominated districts. These districts grow plenty of rice, millets, fruits like mango, guava and banana, medicinal plants, bamboo, cardamom, oilseeds and so on. The mineral resources include iron ore, bauxite, coal, copper, manganese, nickel etc.
Given the spread and dependence on agriculture and forests, it would seem logical for the state to focus on these areas, except that it doesn’t. The state’s focus is only on mining and mining-related industries for the past decade and more – the kind of activity that holds special attraction for the moneybags and their brand of development. If it means displacement and destruction of thousands of lives, so be it! Any wonder that 17 of 30 districts in Orissa are Maoist-hit?
Moneybag Development
Ever since sparkling-clean Naveen Patnaik came to power in 2000, his government has signed 87 MoUs for setting up industries. Not a single of these is related to either agriculture or forest. The MoUs are primarily for steel, power and alumina plants. About 30 of these have materialised but all the big-ticket projects (that of POSCO, Tata, ArcelorMittal, Jindal) are stuck due to protests. But the protests have made no difference.
When I asked industry minister Raghunath Mohanty why not one MoU is for agro or forest-based industry, he said, “We have an open mind.” When I asked why the state took no initiative to set up such industries, he was irritated and said, “But I told you the government has an open mind and if anybody comes forward, we will welcome it.” As for why the state is bulldozing its way through by denying people forest rights (which is the case in Ersama, Kashipur, Kalinganagar and elsewhere) he was quite emphatic that “they (people seeking forest rights) have no such rights; we told this to Jairam Ramesh.”
Agriculture minister Damodar Rout concedes that the state’s priorities are wrong, after having dismissed it initially: “You are right. We don’t have a sound agro-based policy. Now we are planning to do that.” What forced his hands is damning evidence – that all agro-based industries, save for three sugar mills, have been shut or become defunct in the past one-and-half decades and the state has no plan either to revive or set up new ones, as of now.
Agriculture production has remained stagnant for years. Latest government records show except for 2001-02 and 2007-08, all other years between 1998 and 2009 saw deficit foodgrain production (see boxes). Worse, land under cultivation is shrinking (from 45 lakh hectare in 2001-02 to 44 lakh in 2007-08 as per Economic Intelligence Service report of 2010).
Former finance minister Panchanan Kanungo (between 2002 and 2004 in Naveen Patnaik’s government) presents a stark picture of a lop–sided approach. He says all of 18 textile mills, one jute mill, eight oil mills, three of seven sugar mills and one of three fertilizers plants have closed down or become defunct in the past 10-12 years. Of course, there are no forest-based industries to make use of fruits, bamboos, kewda, medicinal plants and so on.
Irrigation has shrunk. Latest ES report says “irrigation intensity” has gone down to 31 percent, from 46 percent (ES 2004-5). This is an alarming situation and makes the state more of a one-crop wonder in spite of scores of rivers, mountain streams, plenty of easily accessible groundwater and a healthy rainfall of 1,450 mm a year. The ES concludes that “lack of irrigation still remains a major stumbling block on enhancing agricultural productivity”.
In such a situation, crop insurance comes handy. In early years of his term, Naveen Patnaik made gram panchayat (GP) as the basic unit to consider for relief in case of drought/crop failure (benchmarked at 60 percent damage). This was changed a year later to make the “block” as the base unit (one block may have 12 to 25 GPs), thereby depriving a lot of farmers from drought/crop failure relief. State’s agriculture secretary UP Singh says reverting to the block as a unit is being contemplated.
Add poor seed supply (“seed replacement rate” for rice, the main crop, is only 10 percent) and fertiliser, both chemical and organic, (half the national consumption) and you stare at a desperate situation.
But that is not all. Other support systems are bad too. Kanungo says, as per the official records, of 52 lakh agriculture families in the state only 24 lakh get farm credit (15 lakh from cooperative banks and 9 lakh from other banks), thus leaving more than 50 percent at the mercy of microfinance companies and moneylenders. Even when farmers get loan, it is used mostly for sustenance. Agriculture secretary concurs: “Actual use for agriculture is very small.”
Food procurement (confined to paddy only), which the state began in 2003-04, remains erratic with frequent protests and road blockage in western districts and distress sell in southern ones because of complete lack of any marketing facility.
Kanungo says, in his assessment Orissa spends about Rs 2,500 crore every month in importing wheat, pulses, oil, milk and milk products, potato, onion, fish, eggs etc. because of the lop–sided policy of the state government.
His conclusion: “Initially, the Naveen Patnaik government put some emphasis on agriculture. But the focus shifted to mining–linked industries in the next two terms. Past mistakes are being repeated by Naveen.” Patnaik is in his third term and Kanungo refers to past CMs of Orissa, who, save for Nabakrushna Choudhury, seemingly took little interest in rural economy and agriculture.
Land distribution is another key reason for poor agriculture. As 83 percent farmers fall in small and marginal farmers and tenancy is widely prevalent, little by way of technology or input goes into farming (officially, the state’s agriculture is described as “subsistence agriculture”). The Orissa Land Reforms Act of 1960 attempted to give “land rights” to the tenants but it harmed more because, as Prof Mamata Swain, economic professor of Ravenshaw College, says, it led to tenants being thrown out even at the cost of keeping land fallow. On the other hand, Bengal’s Operation Barga, introduced in late 1970s, sought to protect “tenancy rights” and achieved remarkable success before its decline. Subsequent attempt to redistribute Bhoodan land and land in excess of ceiling failed because of poor implementation. A 2008 study by UNDP said: “The ceiling surplus operation failed to yield the desired result because of lack of actual physical possession by the beneficiary, unavailability of records of rights and poor land quality making it impossible for the beneficiaries to cultivate the land.” As for Bhoodan land, it said the land either remained undistributed or were re-occupied. A 2007 drive, My Land and My Homestead Land, too failed to ensure possession, the report said.
Look at some other related issues. The state has not added a unit of power in decades and T&D loss remains 65 percent in spite of the fact that Orissa was the first state in the country to reform transmission and distribution functions way back in 1990! Only 22 percent rural households are electrified (as per ES) and power consumption for irrigation “is in declining trend” (departmental “status” report).
Orissa’s GDP growth (“advance estimate” for 2009-10 says 8.35 percent) is slowly catching up with the national growth rate largely due to the mining-related industrial activities. But this is not an unqualified success story. ES says cottage industry has fallen by 50 percent since 2000-01. Of 4,806 micro, small and medium enterprises (MSME) units, 1,690 have gone sick by 2008-09. Thirty-two PSUs have been closed and of the other 32 PSUs, nine are either loss making or running on no-profit-no-loss basis.
As for mining, more than 60 percent of licences are illegal, as the apex court-appointed central empowered committee pointed out in its report in April this year.
Therefore, poverty endures. ES provides a measure of it. Orissa remains at the bottom of the country-wide list in per capita expenditure in rural areas and fourth from the last for the same in urban areas (as per 2006-07 NSS data).
An enquiry commission headed by Justice (retd) SK Mohanty, which looked into regional imbalances and submitted its report in 2008, made several telling points. It said 14 districts fell under ‘backward’ or ‘very backward’ category in agriculture and asked for urgent steps to provide irrigation, agro-based industries, agriculture credit, seed supply, technical guidance and marketing facility to improve production and stop distress selling in those districts. It also said 15 districts were industrially ‘backward’ or ‘very backward’ and pointed out how industries required to spend a part of their profit in “peripheral development” (in lieu of concessions like “free/cheap land, cheap electricity and water”) were actually spending in “urban areas including improvement of government buildings”. As for infrastructure, it said all indicators like road and electrification were low in those districts.
This report has not received the importance it deserves. In fact, one road being built in Kashipur (a rare sight!) under the PMGSY is actually meant to connect Utkal Alumina’s plant to its mining site and so passes through largely empty land.
No wonder, Orissa continues to remain a laggard. The latest India Today magazine’s “State of States” report keeps Orissa at number 15 in the overall ranking for performance among 20 big states. In investment environment and macro economy, the state is placed at 14 and 15, respectively. Be it agriculture (17), consumer market (19), primary education (14), infrastructure (15), governance (17) and primary health (16), the state is in the bottom pile. Bihar, though placed lower, has been termed the “turnaround champ”. No such hope for Orissa yet.
In fact, when I first met former finance minister Kanungo in Bhubaneswar and introduced myself as a reporter from Governance Now, his opening remark was: “You have come to a place where governance is missing.” Ranjan Swain, Vidhya Das or Ravindra Jarika won’t really disagree with that view. n
prasanna@governancenow.com
Wednesday, December 22, 2010
Wednesday, December 1, 2010
Missing posts
Time for BJP to explain, why Yeddyurappa is still around
governancenow.com, nov 2010
After a long time, the Bharatiya Janata Party seems to have got its act together as an effective opposition party and put the government on the mat. Parliament remains paralysed on the issue of corruption and several heads have rolled - Shashi Tharoor (Kochi IPL scam), Ashok Chavan (Adarsh housing scam), Suresh Kalmadi (CWG scam) and A Raja (2G spectrum scam).
In many ways, this is a positive development, the most important one of which is to bring corruption in public life to the centre stage of national debate. There is no denying that corruption is rampant and that the central government has to a lot to explain. It is also obvious that the central government is merely staging a “public expiation” by way of getting Tharoor, Chavan, Kalmadi and Raja to resign. That it has no intention of actually punishing them is clear because not a single FIR – the first step to begin the process of bringing them to justice - has been registered against any of them.
Typically, the BJP has sought a joint parliamentary committee (JPC) probe into all of these scams, without talking much about beginning the legal proceedings. For the past few days, parliament has been stalled to press for a JPC into the 2G spectrum scam.
The motive, quite clearly, is political because a JPC provides an opportunity to keep the issue alive for a longer time. Had probity in public life or punishment for corruption been their motive, the party would have put its house in order first.
A glaring example of corruption in its own rank is that of Karnataka chief minister
B S Yeddyurappa. Yeddyurappa has been accused of nepotism. He has made out-of-turn allotment of residential plot to one of his sons in Bangalore and several industrial plots to the firms owned by his two sons and a daughter near Bangalore. While he has been brazing out the call for his resignation by saying that he is “following the tradition set by the Congress and the Janata Dal (Secular), the BJP’s central leadership has maintained silence.
Not long ago, the nation was rocked by the allegation of illegal mining in Bellary by the Reddy brothers, Karunakar, Janrdhan and Somasekhar (one is a minister in Yeddyurappa cabinet and another a member of parliament), who are crucial to the survival of the very first BJP government on the other side of the Vidhyas. Inspite of mounting evidence, they have not been not been asked to resign.
If the BJP wants people to take it seriously on the corruption issue, it should first get its act together and seek resignation of Yeddyurappa and the Reddy brothers first before stalling the parliament on corruption issue.
At least the UPA government has taken some action, however token it may be,
--
Will Ayodhya verdict lead to resolution of the dispute?
October 1, 2010
The Allahabad high court’s verdict on Ayodhya would seem to suggest that the resolution of the long-standing dispute lies in building both a temple and a mosque at the site - a perfectly secular solution for a secular country.
But there is one jarring note. The claim for a temple seems to have been granted on the basis of “faith and belief of Hindus”, rather than legal reasoning and historical facts. It not only ignores vandalism by the faithful who sneaked in an idol in 1949 or the politicians who led the mob to demolish the mosque at the site in 1992 but also seems to lend credence to ASI's questionable findings about a pre-existing temple there.
This issue is bound to figure prominently when the matter reaches the supreme court, primarily because of the fear that this verdict, if not overturned, will legitimize vandalism and provoke more of the same in future.
Hence the question: Will the Ayodhya verdict lead to a resolution or merely prolong the dispute?
--
Shouldn't we bar MPs and ministers from taking any job we have not given them?
April 23, 2010
For more than a week the legislature and the executive have been grappling with the IPL controversy. Almost every enforcement agency is busy digging up the dirt and as more and more murky deals come to surface the cry for an all-encompassing enquiry gets louder, leading to repeated adjournment of parliamentary proceedings. But how fair and meaningful can an enquiry be when it involves several ministers and senior legislators cutting across the party line?
Shouldn’t our legislators better employ their time and energy on the purpose for which they have been elected—to address the concerns of their electorate? After all, their election is a solemn promise to the electorate to work for their betterment for the next five years. But as the IPL controversy reveals, many of our ministers and sitting MPs are busy with something else—running sports bodies. Shouldn’t we bar ministers and sitting legislators from taking up any job, for- or not-for-profit, other than the one we have given them?
governancenow.com, nov 2010
After a long time, the Bharatiya Janata Party seems to have got its act together as an effective opposition party and put the government on the mat. Parliament remains paralysed on the issue of corruption and several heads have rolled - Shashi Tharoor (Kochi IPL scam), Ashok Chavan (Adarsh housing scam), Suresh Kalmadi (CWG scam) and A Raja (2G spectrum scam).
In many ways, this is a positive development, the most important one of which is to bring corruption in public life to the centre stage of national debate. There is no denying that corruption is rampant and that the central government has to a lot to explain. It is also obvious that the central government is merely staging a “public expiation” by way of getting Tharoor, Chavan, Kalmadi and Raja to resign. That it has no intention of actually punishing them is clear because not a single FIR – the first step to begin the process of bringing them to justice - has been registered against any of them.
Typically, the BJP has sought a joint parliamentary committee (JPC) probe into all of these scams, without talking much about beginning the legal proceedings. For the past few days, parliament has been stalled to press for a JPC into the 2G spectrum scam.
The motive, quite clearly, is political because a JPC provides an opportunity to keep the issue alive for a longer time. Had probity in public life or punishment for corruption been their motive, the party would have put its house in order first.
A glaring example of corruption in its own rank is that of Karnataka chief minister
B S Yeddyurappa. Yeddyurappa has been accused of nepotism. He has made out-of-turn allotment of residential plot to one of his sons in Bangalore and several industrial plots to the firms owned by his two sons and a daughter near Bangalore. While he has been brazing out the call for his resignation by saying that he is “following the tradition set by the Congress and the Janata Dal (Secular), the BJP’s central leadership has maintained silence.
Not long ago, the nation was rocked by the allegation of illegal mining in Bellary by the Reddy brothers, Karunakar, Janrdhan and Somasekhar (one is a minister in Yeddyurappa cabinet and another a member of parliament), who are crucial to the survival of the very first BJP government on the other side of the Vidhyas. Inspite of mounting evidence, they have not been not been asked to resign.
If the BJP wants people to take it seriously on the corruption issue, it should first get its act together and seek resignation of Yeddyurappa and the Reddy brothers first before stalling the parliament on corruption issue.
At least the UPA government has taken some action, however token it may be,
--
Will Ayodhya verdict lead to resolution of the dispute?
October 1, 2010
The Allahabad high court’s verdict on Ayodhya would seem to suggest that the resolution of the long-standing dispute lies in building both a temple and a mosque at the site - a perfectly secular solution for a secular country.
But there is one jarring note. The claim for a temple seems to have been granted on the basis of “faith and belief of Hindus”, rather than legal reasoning and historical facts. It not only ignores vandalism by the faithful who sneaked in an idol in 1949 or the politicians who led the mob to demolish the mosque at the site in 1992 but also seems to lend credence to ASI's questionable findings about a pre-existing temple there.
This issue is bound to figure prominently when the matter reaches the supreme court, primarily because of the fear that this verdict, if not overturned, will legitimize vandalism and provoke more of the same in future.
Hence the question: Will the Ayodhya verdict lead to a resolution or merely prolong the dispute?
--
Shouldn't we bar MPs and ministers from taking any job we have not given them?
April 23, 2010
For more than a week the legislature and the executive have been grappling with the IPL controversy. Almost every enforcement agency is busy digging up the dirt and as more and more murky deals come to surface the cry for an all-encompassing enquiry gets louder, leading to repeated adjournment of parliamentary proceedings. But how fair and meaningful can an enquiry be when it involves several ministers and senior legislators cutting across the party line?
Shouldn’t our legislators better employ their time and energy on the purpose for which they have been elected—to address the concerns of their electorate? After all, their election is a solemn promise to the electorate to work for their betterment for the next five years. But as the IPL controversy reveals, many of our ministers and sitting MPs are busy with something else—running sports bodies. Shouldn’t we bar ministers and sitting legislators from taking up any job, for- or not-for-profit, other than the one we have given them?
Making sense of vanishing projects
Governance Now, Nov 15-30
If big-ticket development projects are getting scrapped by the day, blame it on the flawed policy
Since August 24, the ministry of environment and forests (MoEF) has scrapped three big-ticket hydel projects - NTPC’s Loharinag Pala (Rs 600 crore spent, 40 percent work complete), Pala Maneri and Bhaironghati in Uttarakhand - and stopped two industrial ones - POSCO’s steel plant and Vedanta’s refinery and mining in Orissa. This happened inspite of the fact that all the statutory approvals had been granted in advance, save for the ‘final’ forest clearance for Vedanta’s mining. If that makes you wonder why, the short answer is this: These projects had got their approvals on the basis of half-truths or untruths to begin with.
And that was possible because the very policies governing the process of approval are designed just to approve. There is little scope for rigorous evaluation for suitability and sustainability of a project or discovering better ways to achieve the same goal.
Therefore, the moment a project is challenged, the cookie crumbles. If you are then tempted to assume that more big-ticket projects may tumble, you may be right. Watch out for the Indira Sagar (Polavaram) multipurpose project in Andhra Pradesh and the Lower Subansiri hydel project in Arunachal Pradesh.
Here we examine these policies in detail.
Missing perspective
Once an MoU is signed with the promoter, which is usually a hush-hush affair with little that is made public, a project comes to the public domain when it is presented for environment clearance. At this point, it is a stand-alone project, like a dam for example. There is no way to examine if the same objective - providing water for drinking and irrigation - can be achieved through more cost effective and efficient methods like smaller dams, check dams, water harvesting and watershed management, localised river linking or revival of dead rivers (as Waterman Rajendra Singh has shown in Rajasthan). A power generation component is often added to the dam to tilt the balance, without provoking independent assessment of power needs or options.
The four-stage environment approval process involves screening, scoping, public consultation and appraisal. Screening is aimed at identifying if a project needs an environment impact assessment (EIA) study; scoping sets up the terms of reference (TOR) for EIA, if needed, before a project is presented for public consultation and then it is approved.
All that the EIA Notification of 2006 (which replaced the 1994 one), that governs the EIA study, seeks by way of alternatives is just two innocuous columns in the application form - which asks about alternative “site” and “technology”. These columns don’t matter because by this time the site is already decided and acquired or in the process of being acquired. Resistance to POSCO’s steel plant could have been avoided by shifting the site by a mere three kilometre south, but that never figured. And there is no reason why a developer will provide a technology option other than his own.
In fact, so unifocal is the government’s approach that when the planning commission sat down to prepare an integrated action plan to counter the Maoist menace, it didn’t bother about options but simply increased fund allocations to the existing schemes.
The EIA study is not even designed to do a cost-benefit analysis of a project. It only seeks and gets fact-sheets of costs and supposed benefits.
Missing big picture
The problem is accentuated by the missing big picture. Arunachal Pradesh is saddled with more than 100 hydel projects; the Western Ghats with numerous mining and thermal power projects and river Bhagirathi faces threat from several dams in Uttarakhand. Environment minister Jairam Ramesh has now sought moratorium on projects in the Western Ghats and Arunachal Pradesh and has scrapped three hydel projects in Uttarakhand to save Bhagirathi - Loharinag Pala et al.
In Arunachal Pradesh, 11 hydel projects (8,200 MW) are proposed in the Lohit river basin, six of which are on the Lohit river alone (within a 86 km stretch). Multiple dams on a single river, or in a river basin, may kill the river system, and all those who survive on it. Therefore, it is prudent to do a comprehensive study of the cumulative impact of the dams “in advance”. In fact this is what the National Environment Appellate Authority (NEAA) suggested in 2005.
The MoEF did accept it and ordered such a study in the Lohit river basin but while approving the Demwe Lower hydroelectric project (1,750 MW) on Lohit river in January this year, it said this project “should not be linked with the completion of the basin studies.” The study then becomes meaningless.
Same is the case with the downstream study. It is restricted to 10 km downstream of a dam at present, even though it affects water flow of the entire stretch downstream. Worse, in the case of the Demwe Lower project, downstream impact only on the stretch between the dam and the powerhouse – just 600 metres – was sought.
Similarly, the Aravali hills are devastated by a large number of small mining projects. Iron ore mines in Bellary and bauxite mining in Andhra Pradesh are causing havoc with the environment there. All this is because mines of less than 25 hectares are ‘exempted’ from MoEF clearances. Thermal power plants of less than 500 MW are also exempted.
Self-certification
The problem is further accentuated by the way the EIA is designed. It is essentially a self-certifying exercise. The promoter is expected to get the study done at his own cost – a clear case of conflict of interest. Even in such sensitive issue as introducing genetically modified (GM) food, all toxicity studies, impact on environment and health, have to be conducted by the one pushing for it – Mahyco in the case of Bt brinjal.
The ostensible purpose of the EIA study is to ensure that the “development options are environmentally and socially sound and sustainable” and to address the issues, if any, at the very stage of planning and designing, but the opposite actually happens.
These issues can be easily addressed through independent evaluation. Various expert bodies of the MoEF that clear EIAs work as its extension, endorsing whatever is submitted by a promoter. They add a few conditions to make it seem objective but these are often meaningless or self-defeating, for example, asking for “impact assessment of impounding of water by construction of the dam on the river on aquatic flora and fauna” while approving the Polavaram project in Andhra Pradesh and giving clearance on the “assurance” that the state government will construct 120 km of embankments on two rivers, Sileru and Sabari, to prevent submergence in Orissa and Chhattisgarh.
A planning commission’s task force asked the government to set up an “independent and statutory body” to evaluate and give clearances to projects in 2006. The report is gathering dust.
Kanchi Kohli of non-government organisation Kalpavriksh says, “The entire process of environment clearance is designed to approve. The conditions are, therefore, to mitigate or justify the clearance.”
Defective assessment
These shortcomings get amplified through “rapid”, “draft” and partial EIAs which are allowed, instead of insisting on a comprehensive, all-season assessment. The logic to allow rapid EIA, as given in the EIA Notification of 1994, is: “As a Comprehensive EIA report will normally take at least one year for its preparation, project proponents may furnish Rapid EIA report to the IAA (impact assessment agency) based on one season data (other than monsoon), for examination of the project. Comprehensive EIA report may be submitted later, if so asked for by the IAA”.
Taking advantage of this, POSCO presented a single-season environment impact study for one-third of a steel plant (4 MT capacity, instead of 12 MT) and a power plant (400 MW), sidestepping a captive port, a township, a big water pipeline project, and road and rail links involved with the mega project. It said only 471 families would be affected as against more than 4,000 families according to the locals. A separate rapid EIA was submitted for the port. On the basis of such EIAs it got approval in 2005.
The EIA Notification of 2006 does not talk about “rapid” EIA, but the old regime endures because it allows the project promoters to set the terms of reference (TOR) for the EIA study and allows it to be the “final” one if MoEF’s expert appraisal committee (EAC) doesn’t finalise it in 60 days.
The Adani group-promoted Waterfront Development Project in Mundra, Gujarat, which involves four ports and an LNG terminal, was allowed a “rapid” EIA and was cleared in 2008 under the 2006 notification.
Neeraj Vagholikar of Kalpavriksh says the real issue is “not insisting on a comprehensive EIA for the big projects”. But the policy flaw remains.
No public participation
The project clearance process may allow “public consultation” but this isn’t same as “public consent”. Moreover, what they get by way of an EIA study is a “draft” one, as per the EIA Notification of 2006. Affected people have no say in the final stage of approval, to which only the project promoter is invited. It works this way: Vedanta’s refinery in Orissa gets approval on wrong information, starts operations in 2007 and completes 60 percent of six-fold expansion when MoEF “discovers” the truth in August 2010 and stops it.
Secondly, there is also a provision “to skip” this consultation altogether on a flimsy ground - if “it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed,” as per EIA Notification of 2006.
The 73rd and 74th constitutional amendments give wide-ranging powers to local self-government bodies like municipalities and panchayats to plan and approve projects in their respective areas. The Forest Rights Act of 2006 and the Panchayats (Extension to the Scheduled Areas) Act of 1996 give overriding powers to tribals and other forest dwellers. These bodies and laws are not part of the approval process. Both the projects of Vedanta and POSCO in Orissa were stopped because of denial of forest rights to the affected families.
The MoEF’s approval process is also completely delinked from land acquisition process if it doesn’t involve forest land. And in case it does, a separate clearance process is followed and a separate department deals with it. There is a disconnect among various departments. As a result Vedanta’s refinery started working, and expanded, without the mining part getting approval.
Blind alleys
All these shortcomings can be overcome if a large number of expert bodies and agencies of the MoEF, set up to recommend a wide range of projects for approval, work in a transparent manner, independently and apply their mind. Apparently, they don’t and that is because they are not even expected to do so.
Vedanta and POSCO both submitted “rapid” and “partial” EIAs, conducted in the monsoon months which is expressly “banned”. Vedanta even presented one which was different from the one presented to the public. Yet, they got clearances.
Himanshu Thakkar, a prominent environment activist, points out that P Abraham, promoter of the Demwe Lower project, was chairman of the very expert appraisal committee (EAC) that actually approved it! He also points out how the expert bodies giving environment and forest clearances act independent of each other even when dealing with the same project. So, projects often start after one set of clearances while the other is pending.
Further, proceedings of the Central Water Commission (CWC) that gives techno-economic clearances to irrigation projects like Polavaram are not subject to public scrutiny.
Given all these, at least an effective and independent monitoring system should be in place. Even that is missing and hence, fact-finding teams are sent selectively; only when protests grow too loud or there are political interests to serve.
What should be done...
* No piecemeal, stand-alone clearance. Project be considered in totality, taking into account overall plan for the geographical region and human and environment cost
* No para-dropping of projects. Participation and approval of local self-government bodies should be mandatory
* Independent national authority to then evaluate and clear projects
* Mandatory disclosure of all MoUs for projects requiring public or private land and national resources
* No conditional clearances if such conditions or impact studies have the potential to alter the project
* Fact-sheets of cost and benefit be replaced with cost-benefit analysis
* No exemptions from MoEF clearance for smaller mines, dams, thermal power plants
* Mandatory downstream and river basin study
* Mandatory comprehensive and final EIA. No rapid or draft EIAs
* Independent and credible body to prepare EIA studies
* Public “consent” be made mandatory
* Independent body to monitor and check compliance
* Accountability and transparency in approval process
If big-ticket development projects are getting scrapped by the day, blame it on the flawed policy
Since August 24, the ministry of environment and forests (MoEF) has scrapped three big-ticket hydel projects - NTPC’s Loharinag Pala (Rs 600 crore spent, 40 percent work complete), Pala Maneri and Bhaironghati in Uttarakhand - and stopped two industrial ones - POSCO’s steel plant and Vedanta’s refinery and mining in Orissa. This happened inspite of the fact that all the statutory approvals had been granted in advance, save for the ‘final’ forest clearance for Vedanta’s mining. If that makes you wonder why, the short answer is this: These projects had got their approvals on the basis of half-truths or untruths to begin with.
And that was possible because the very policies governing the process of approval are designed just to approve. There is little scope for rigorous evaluation for suitability and sustainability of a project or discovering better ways to achieve the same goal.
Therefore, the moment a project is challenged, the cookie crumbles. If you are then tempted to assume that more big-ticket projects may tumble, you may be right. Watch out for the Indira Sagar (Polavaram) multipurpose project in Andhra Pradesh and the Lower Subansiri hydel project in Arunachal Pradesh.
Here we examine these policies in detail.
Missing perspective
Once an MoU is signed with the promoter, which is usually a hush-hush affair with little that is made public, a project comes to the public domain when it is presented for environment clearance. At this point, it is a stand-alone project, like a dam for example. There is no way to examine if the same objective - providing water for drinking and irrigation - can be achieved through more cost effective and efficient methods like smaller dams, check dams, water harvesting and watershed management, localised river linking or revival of dead rivers (as Waterman Rajendra Singh has shown in Rajasthan). A power generation component is often added to the dam to tilt the balance, without provoking independent assessment of power needs or options.
The four-stage environment approval process involves screening, scoping, public consultation and appraisal. Screening is aimed at identifying if a project needs an environment impact assessment (EIA) study; scoping sets up the terms of reference (TOR) for EIA, if needed, before a project is presented for public consultation and then it is approved.
All that the EIA Notification of 2006 (which replaced the 1994 one), that governs the EIA study, seeks by way of alternatives is just two innocuous columns in the application form - which asks about alternative “site” and “technology”. These columns don’t matter because by this time the site is already decided and acquired or in the process of being acquired. Resistance to POSCO’s steel plant could have been avoided by shifting the site by a mere three kilometre south, but that never figured. And there is no reason why a developer will provide a technology option other than his own.
In fact, so unifocal is the government’s approach that when the planning commission sat down to prepare an integrated action plan to counter the Maoist menace, it didn’t bother about options but simply increased fund allocations to the existing schemes.
The EIA study is not even designed to do a cost-benefit analysis of a project. It only seeks and gets fact-sheets of costs and supposed benefits.
Missing big picture
The problem is accentuated by the missing big picture. Arunachal Pradesh is saddled with more than 100 hydel projects; the Western Ghats with numerous mining and thermal power projects and river Bhagirathi faces threat from several dams in Uttarakhand. Environment minister Jairam Ramesh has now sought moratorium on projects in the Western Ghats and Arunachal Pradesh and has scrapped three hydel projects in Uttarakhand to save Bhagirathi - Loharinag Pala et al.
In Arunachal Pradesh, 11 hydel projects (8,200 MW) are proposed in the Lohit river basin, six of which are on the Lohit river alone (within a 86 km stretch). Multiple dams on a single river, or in a river basin, may kill the river system, and all those who survive on it. Therefore, it is prudent to do a comprehensive study of the cumulative impact of the dams “in advance”. In fact this is what the National Environment Appellate Authority (NEAA) suggested in 2005.
The MoEF did accept it and ordered such a study in the Lohit river basin but while approving the Demwe Lower hydroelectric project (1,750 MW) on Lohit river in January this year, it said this project “should not be linked with the completion of the basin studies.” The study then becomes meaningless.
Same is the case with the downstream study. It is restricted to 10 km downstream of a dam at present, even though it affects water flow of the entire stretch downstream. Worse, in the case of the Demwe Lower project, downstream impact only on the stretch between the dam and the powerhouse – just 600 metres – was sought.
Similarly, the Aravali hills are devastated by a large number of small mining projects. Iron ore mines in Bellary and bauxite mining in Andhra Pradesh are causing havoc with the environment there. All this is because mines of less than 25 hectares are ‘exempted’ from MoEF clearances. Thermal power plants of less than 500 MW are also exempted.
Self-certification
The problem is further accentuated by the way the EIA is designed. It is essentially a self-certifying exercise. The promoter is expected to get the study done at his own cost – a clear case of conflict of interest. Even in such sensitive issue as introducing genetically modified (GM) food, all toxicity studies, impact on environment and health, have to be conducted by the one pushing for it – Mahyco in the case of Bt brinjal.
The ostensible purpose of the EIA study is to ensure that the “development options are environmentally and socially sound and sustainable” and to address the issues, if any, at the very stage of planning and designing, but the opposite actually happens.
These issues can be easily addressed through independent evaluation. Various expert bodies of the MoEF that clear EIAs work as its extension, endorsing whatever is submitted by a promoter. They add a few conditions to make it seem objective but these are often meaningless or self-defeating, for example, asking for “impact assessment of impounding of water by construction of the dam on the river on aquatic flora and fauna” while approving the Polavaram project in Andhra Pradesh and giving clearance on the “assurance” that the state government will construct 120 km of embankments on two rivers, Sileru and Sabari, to prevent submergence in Orissa and Chhattisgarh.
A planning commission’s task force asked the government to set up an “independent and statutory body” to evaluate and give clearances to projects in 2006. The report is gathering dust.
Kanchi Kohli of non-government organisation Kalpavriksh says, “The entire process of environment clearance is designed to approve. The conditions are, therefore, to mitigate or justify the clearance.”
Defective assessment
These shortcomings get amplified through “rapid”, “draft” and partial EIAs which are allowed, instead of insisting on a comprehensive, all-season assessment. The logic to allow rapid EIA, as given in the EIA Notification of 1994, is: “As a Comprehensive EIA report will normally take at least one year for its preparation, project proponents may furnish Rapid EIA report to the IAA (impact assessment agency) based on one season data (other than monsoon), for examination of the project. Comprehensive EIA report may be submitted later, if so asked for by the IAA”.
Taking advantage of this, POSCO presented a single-season environment impact study for one-third of a steel plant (4 MT capacity, instead of 12 MT) and a power plant (400 MW), sidestepping a captive port, a township, a big water pipeline project, and road and rail links involved with the mega project. It said only 471 families would be affected as against more than 4,000 families according to the locals. A separate rapid EIA was submitted for the port. On the basis of such EIAs it got approval in 2005.
The EIA Notification of 2006 does not talk about “rapid” EIA, but the old regime endures because it allows the project promoters to set the terms of reference (TOR) for the EIA study and allows it to be the “final” one if MoEF’s expert appraisal committee (EAC) doesn’t finalise it in 60 days.
The Adani group-promoted Waterfront Development Project in Mundra, Gujarat, which involves four ports and an LNG terminal, was allowed a “rapid” EIA and was cleared in 2008 under the 2006 notification.
Neeraj Vagholikar of Kalpavriksh says the real issue is “not insisting on a comprehensive EIA for the big projects”. But the policy flaw remains.
No public participation
The project clearance process may allow “public consultation” but this isn’t same as “public consent”. Moreover, what they get by way of an EIA study is a “draft” one, as per the EIA Notification of 2006. Affected people have no say in the final stage of approval, to which only the project promoter is invited. It works this way: Vedanta’s refinery in Orissa gets approval on wrong information, starts operations in 2007 and completes 60 percent of six-fold expansion when MoEF “discovers” the truth in August 2010 and stops it.
Secondly, there is also a provision “to skip” this consultation altogether on a flimsy ground - if “it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed,” as per EIA Notification of 2006.
The 73rd and 74th constitutional amendments give wide-ranging powers to local self-government bodies like municipalities and panchayats to plan and approve projects in their respective areas. The Forest Rights Act of 2006 and the Panchayats (Extension to the Scheduled Areas) Act of 1996 give overriding powers to tribals and other forest dwellers. These bodies and laws are not part of the approval process. Both the projects of Vedanta and POSCO in Orissa were stopped because of denial of forest rights to the affected families.
The MoEF’s approval process is also completely delinked from land acquisition process if it doesn’t involve forest land. And in case it does, a separate clearance process is followed and a separate department deals with it. There is a disconnect among various departments. As a result Vedanta’s refinery started working, and expanded, without the mining part getting approval.
Blind alleys
All these shortcomings can be overcome if a large number of expert bodies and agencies of the MoEF, set up to recommend a wide range of projects for approval, work in a transparent manner, independently and apply their mind. Apparently, they don’t and that is because they are not even expected to do so.
Vedanta and POSCO both submitted “rapid” and “partial” EIAs, conducted in the monsoon months which is expressly “banned”. Vedanta even presented one which was different from the one presented to the public. Yet, they got clearances.
Himanshu Thakkar, a prominent environment activist, points out that P Abraham, promoter of the Demwe Lower project, was chairman of the very expert appraisal committee (EAC) that actually approved it! He also points out how the expert bodies giving environment and forest clearances act independent of each other even when dealing with the same project. So, projects often start after one set of clearances while the other is pending.
Further, proceedings of the Central Water Commission (CWC) that gives techno-economic clearances to irrigation projects like Polavaram are not subject to public scrutiny.
Given all these, at least an effective and independent monitoring system should be in place. Even that is missing and hence, fact-finding teams are sent selectively; only when protests grow too loud or there are political interests to serve.
What should be done...
* No piecemeal, stand-alone clearance. Project be considered in totality, taking into account overall plan for the geographical region and human and environment cost
* No para-dropping of projects. Participation and approval of local self-government bodies should be mandatory
* Independent national authority to then evaluate and clear projects
* Mandatory disclosure of all MoUs for projects requiring public or private land and national resources
* No conditional clearances if such conditions or impact studies have the potential to alter the project
* Fact-sheets of cost and benefit be replaced with cost-benefit analysis
* No exemptions from MoEF clearance for smaller mines, dams, thermal power plants
* Mandatory downstream and river basin study
* Mandatory comprehensive and final EIA. No rapid or draft EIAs
* Independent and credible body to prepare EIA studies
* Public “consent” be made mandatory
* Independent body to monitor and check compliance
* Accountability and transparency in approval process
Time to go beyond resignations
Governance Now, Nov 15-30
Let the process of law begin at the beginning with FIRs against Chavan, Kalmadi and Raja
On the face of it, the Manmohan Singh government seems to have acted against Ashok Chavan and Suresh Kalmadi for their alleged involvement in corrupt deals, by removing one from the chief ministership of Maharashtra and the other from the party’s parliamentary party. Given the main opposition party’s unrelenting campaign and the latest report of the Comptroller and Auditor General of India (CAG) holding telecom minister A Raja personally responsible for the Rs 1.7 lakh crore 2G spectrum scam, the government may well seek his resignation too. But does any of this amount to punishment for the crime these three are alleged to have committed? Certainly not. The rule of law is clear in this matter. Once there is a prima facie evidence of any wrongdoing on anybody’s part, the law enforcing agency is supposed to file an FIR, arrest and interrogate the suspect, collect necessary evidence and file the chargesheet within a stipulated time for the trial to begin. Our judicial process then takes over, which is quite an elaborate affair and takes 15 years, on average, to dispose a case.
Where do Chavan and Kalmadi stand in this scheme of things? Not a single FIR has been filed against Chavan for his role in clearing the Adarsh society in violation of almost every law of the land or getting his in-laws flats. Knowing how our law enforcing agencies and the governments function, there may not be any FIR against him. A year down the line, he may well be brought to the centre as a minister, wiping out a game of deception being played out at present for the benefit of the common man, who somehow never gets away from the long arms of the same law. Similar is the case with Kalmadi. A series of corrupt deals by the Commonwealth Games organising committee he headed has come to public notice. Again, not an FIR has been filed. Nor is there any indication that this will be done in the foreseeable future. No law enforcing agency has landed at the door of either Chavan or Kalmadi to arrest or interrogate them or to start inquiring about their assets and the manner in which these were made. Kalmadi, in the meanwhile, has flown to China to attend the Asian Games. A lesser mortal would have had his passport impounded but no such inconvenience for Kalmadi.
A CBI inquiry has been ordered in all the three scams, including the 2G spectrum allocation. Given the dubious track record of our premier investigating agency in dealing with corrupt politicians one can predict, without the slightest hesitation, that nothing will come out of it. Assuming for the sake of argument that something does come out none of the politicians will be brought to justice. The CBI has a very clean record in the matter. If you think personal honesty and integrity of the prime minister will make any difference, here is a grim reminder: The current central vigilance commissioner (CVC), P J Thomas, who supervises the CBI’s functioning, was appointed in spite of the fact the very same CBI had chargesheeted him in connection with the palm oil scam of Kerala in the 1990s. The CBI’s case file is very much open at present but if he is roaming free it is because the government didn’t give permission to prosecute him. A dubious “single directive” in the CVC Act calls for the centre’s clearance to prosecute officers of the joint secretary rank and above. Thomas’ role as telecom secretary in protecting his minister Raja in the 2G spectrum scam too is highly suspicious. Weeks before his appointment as CVC, he had sought and armed himself with a law ministry opinion that the 2G spectrum allocation was beyond the jurisdiction of CVC and CAG, on the plea that it was a “policy matter”. Now a PIL has been filed challenging his appointment as the CVC and the apex court has sought all relevant records from the government. Can anyone expect him to do an honest job and catch the minister? Not even in his wild dreams.
Where does all this leave us? Frankly, it is a hopeless situation. But an editorial can’t end on a note of pessimism. It has to show the direction and hence, the
inevitable advice to the government: Take
the first step and register FIRs against Chavan, Kalmadi and Raja.
Let the process of law begin at the beginning with FIRs against Chavan, Kalmadi and Raja
On the face of it, the Manmohan Singh government seems to have acted against Ashok Chavan and Suresh Kalmadi for their alleged involvement in corrupt deals, by removing one from the chief ministership of Maharashtra and the other from the party’s parliamentary party. Given the main opposition party’s unrelenting campaign and the latest report of the Comptroller and Auditor General of India (CAG) holding telecom minister A Raja personally responsible for the Rs 1.7 lakh crore 2G spectrum scam, the government may well seek his resignation too. But does any of this amount to punishment for the crime these three are alleged to have committed? Certainly not. The rule of law is clear in this matter. Once there is a prima facie evidence of any wrongdoing on anybody’s part, the law enforcing agency is supposed to file an FIR, arrest and interrogate the suspect, collect necessary evidence and file the chargesheet within a stipulated time for the trial to begin. Our judicial process then takes over, which is quite an elaborate affair and takes 15 years, on average, to dispose a case.
Where do Chavan and Kalmadi stand in this scheme of things? Not a single FIR has been filed against Chavan for his role in clearing the Adarsh society in violation of almost every law of the land or getting his in-laws flats. Knowing how our law enforcing agencies and the governments function, there may not be any FIR against him. A year down the line, he may well be brought to the centre as a minister, wiping out a game of deception being played out at present for the benefit of the common man, who somehow never gets away from the long arms of the same law. Similar is the case with Kalmadi. A series of corrupt deals by the Commonwealth Games organising committee he headed has come to public notice. Again, not an FIR has been filed. Nor is there any indication that this will be done in the foreseeable future. No law enforcing agency has landed at the door of either Chavan or Kalmadi to arrest or interrogate them or to start inquiring about their assets and the manner in which these were made. Kalmadi, in the meanwhile, has flown to China to attend the Asian Games. A lesser mortal would have had his passport impounded but no such inconvenience for Kalmadi.
A CBI inquiry has been ordered in all the three scams, including the 2G spectrum allocation. Given the dubious track record of our premier investigating agency in dealing with corrupt politicians one can predict, without the slightest hesitation, that nothing will come out of it. Assuming for the sake of argument that something does come out none of the politicians will be brought to justice. The CBI has a very clean record in the matter. If you think personal honesty and integrity of the prime minister will make any difference, here is a grim reminder: The current central vigilance commissioner (CVC), P J Thomas, who supervises the CBI’s functioning, was appointed in spite of the fact the very same CBI had chargesheeted him in connection with the palm oil scam of Kerala in the 1990s. The CBI’s case file is very much open at present but if he is roaming free it is because the government didn’t give permission to prosecute him. A dubious “single directive” in the CVC Act calls for the centre’s clearance to prosecute officers of the joint secretary rank and above. Thomas’ role as telecom secretary in protecting his minister Raja in the 2G spectrum scam too is highly suspicious. Weeks before his appointment as CVC, he had sought and armed himself with a law ministry opinion that the 2G spectrum allocation was beyond the jurisdiction of CVC and CAG, on the plea that it was a “policy matter”. Now a PIL has been filed challenging his appointment as the CVC and the apex court has sought all relevant records from the government. Can anyone expect him to do an honest job and catch the minister? Not even in his wild dreams.
Where does all this leave us? Frankly, it is a hopeless situation. But an editorial can’t end on a note of pessimism. It has to show the direction and hence, the
inevitable advice to the government: Take
the first step and register FIRs against Chavan, Kalmadi and Raja.
Friday, October 29, 2010
25 years of struggle to nowhere
edit, governance now, nov1-15
The Narmada people continue their epic battle for survival far away from national consciousness
People of the Narmada valley marked their 25 years of struggle against big dams without much fanfare a few days ago, quite clearly because their struggle has gone out of public discourse and national consciousness. A sad comment indeed given the seminal contribution they made towards what we have come to recognise now, though not fully implement yet, as good governance practices. It was their struggle which, for the first time, raised a voice for right to information, right to land and forests, right to food and livelihood, right to resettlement and rehabilitation and, above all, questioned the logic of big dams, a deeply flawed growth-centric development paradigm that benefitted a few at the cost of the others and proposed smaller dams, check dams and other water harvesting measures, instead, to take care of the water needs. They were also the ones, for the first time, to seek people’s participation in decision-making.
Post independence, there have been several major political movements; some, like those in Punjab and Assam, died down but others, in Kashmir, parts of the Northeast and the tribal heartland, continue to simmer. What sets people of the Narmada apart is their adherence to the Gandhian non-violence and satyagraha, not by compulsion but by choice. Ashish Chadha, who teaches anthropology at Yale University, USA, wrote an article in the Hindustan Times a few months ago recalling his days of the Manibeli satyagrah of 1991 in which Medha Patkar, activists of her Narmada Bachao Andolan (NBA) and some tribals planned to drown themselves in rising waters of the Narmada. (This Maharashtra hamlet went down in 2009.) He remembers what members of the dreaded People’s War Group said to him: “We told Medha-tai to let us lead the movement for just one day. We will see to it that this dam (Sardar Sarovar) is never made. Gandhian non-violence will not do you any good. You don’t know this government. It will trample you. It will mercilessly crush you.”
Medha didn’t relent and the prophecy came true. She and her NBA stand discredited and marginalised today, thanks to suppression and vicious state-sponsored campaigns. Their place has been taken over, in the tribal heartland at least, by the marauding Maoists (after PWG and Maoist Communist Centre merged in 2004) who have brought to centre stage the debate about good governance and alternate development models. Medha may not profess violence but is now often seen in the company of Maoist front organisations and Arundhati Roy, the celebrated author who batted for Medha’s non-violence for many years, is thoroughly disillusioned and has become an apologist for the cult of Maoist violence.
As for the Narmada’s hapless people, their struggle endures. Unofficial assessment (as per Justice AP Shah report of June 2010) puts the number of people yet to be fully rehabilitated at 2,00,000. There is no official word on it decades after construction of the Narmada dams (30 major, 135 medium and 3,000 small ones) began. That is because dispute over the very definitions of “submergence area” and “project affected family” continues even today. The Narmada Tribunal and then the supreme court added to the mess by saying rehabilitation could happen “pari passu” with the dam work.
Benefits from the Narmada dams? Well, the ground realities are vastly different from what was promised because some of the dams and most of the canal work remain incomplete. Disputes over water allocation for irrigation and power plants have ensured that even the build-up facilities remain under-utilised. Kutch and Saurashtra, in whose name Gujarat government built up a resistance to the NBA, may have got water for drinking but not for irrigation because the canal works are stuck in the first phase (they will get it in the third phase). In any case, only 1.5 percent of cultivable area in Kutch and 7 percent of cultivable area in Saurashtra were to get water.
The Narmada struggle has provided countless lessons, without putting a gun to our head. Probably that has proved to be their undoing.
The Narmada people continue their epic battle for survival far away from national consciousness
People of the Narmada valley marked their 25 years of struggle against big dams without much fanfare a few days ago, quite clearly because their struggle has gone out of public discourse and national consciousness. A sad comment indeed given the seminal contribution they made towards what we have come to recognise now, though not fully implement yet, as good governance practices. It was their struggle which, for the first time, raised a voice for right to information, right to land and forests, right to food and livelihood, right to resettlement and rehabilitation and, above all, questioned the logic of big dams, a deeply flawed growth-centric development paradigm that benefitted a few at the cost of the others and proposed smaller dams, check dams and other water harvesting measures, instead, to take care of the water needs. They were also the ones, for the first time, to seek people’s participation in decision-making.
Post independence, there have been several major political movements; some, like those in Punjab and Assam, died down but others, in Kashmir, parts of the Northeast and the tribal heartland, continue to simmer. What sets people of the Narmada apart is their adherence to the Gandhian non-violence and satyagraha, not by compulsion but by choice. Ashish Chadha, who teaches anthropology at Yale University, USA, wrote an article in the Hindustan Times a few months ago recalling his days of the Manibeli satyagrah of 1991 in which Medha Patkar, activists of her Narmada Bachao Andolan (NBA) and some tribals planned to drown themselves in rising waters of the Narmada. (This Maharashtra hamlet went down in 2009.) He remembers what members of the dreaded People’s War Group said to him: “We told Medha-tai to let us lead the movement for just one day. We will see to it that this dam (Sardar Sarovar) is never made. Gandhian non-violence will not do you any good. You don’t know this government. It will trample you. It will mercilessly crush you.”
Medha didn’t relent and the prophecy came true. She and her NBA stand discredited and marginalised today, thanks to suppression and vicious state-sponsored campaigns. Their place has been taken over, in the tribal heartland at least, by the marauding Maoists (after PWG and Maoist Communist Centre merged in 2004) who have brought to centre stage the debate about good governance and alternate development models. Medha may not profess violence but is now often seen in the company of Maoist front organisations and Arundhati Roy, the celebrated author who batted for Medha’s non-violence for many years, is thoroughly disillusioned and has become an apologist for the cult of Maoist violence.
As for the Narmada’s hapless people, their struggle endures. Unofficial assessment (as per Justice AP Shah report of June 2010) puts the number of people yet to be fully rehabilitated at 2,00,000. There is no official word on it decades after construction of the Narmada dams (30 major, 135 medium and 3,000 small ones) began. That is because dispute over the very definitions of “submergence area” and “project affected family” continues even today. The Narmada Tribunal and then the supreme court added to the mess by saying rehabilitation could happen “pari passu” with the dam work.
Benefits from the Narmada dams? Well, the ground realities are vastly different from what was promised because some of the dams and most of the canal work remain incomplete. Disputes over water allocation for irrigation and power plants have ensured that even the build-up facilities remain under-utilised. Kutch and Saurashtra, in whose name Gujarat government built up a resistance to the NBA, may have got water for drinking but not for irrigation because the canal works are stuck in the first phase (they will get it in the third phase). In any case, only 1.5 percent of cultivable area in Kutch and 7 percent of cultivable area in Saurashtra were to get water.
The Narmada struggle has provided countless lessons, without putting a gun to our head. Probably that has proved to be their undoing.
Pillai ruffles diplomatic feathers, again!
governancenow.com, oct 28
His motive to bring up Headley is suspect
An otherwise reticent and publicity-shy bureaucrat, home secretary G K Pillai has queered the pitch again just ahead of the US president’s visit to India. Without any apparent provocation, he told the media on Wednesday that India was disappointed with the US for not sharing intelligence input regarding the Lashkar-e-Taiba operative, David Coleman Headley, at the right time. “We were disappointed the name of David Headley was not provided, if not pre-26/11, at least post-26/11”, Pillai said.
There is nothing new in it, though. Our security establishment has made their displeasure known in the past too, pointing out that the US shared information about Headley only after his arrest in Chicago in October 2009. Had that not been so, Headley could have been arrested, if not before 26/11, at least after 26/11, when he travelled to India.
But this was serious diplomatic faux pas and prompted an immediate rebuttal from the US ambassador to India, Timothy Roemer, who said: “The U.S. shared intelligence on a regular and consistent basis with the government of India prior to the Mumbai attacks. We have also shared information with the government of India after the Mumbai attacks”.
Pillai had done the same in July this year, just a day before foreign minister S M Krishna was to visit Pakistan for bilateral talks. Pillai had mentioned Headley then too and said how he had implicated Pakistan’s ISI in the 26/11 terror strike on Mumbai. This remark became the focus of the bilateral talk and the joint press conference that followed, causing a serious embarrassment to Krishna and the country.
True the subject has everything to do with Pillai’s brief but timing it to high-profile diplomatic visits raises serious questions about his motivation. Surely a bureaucrat of his stature understands the implication of what he said and he also knows that there is a ministry for external affairs to raise the issue, if it all it has to be, with the US president or his officials. It would be naïve to assume that he was talking out of turn. But the other plausible inference, that it was a command performance, doesn’t speak well of the government, at least on the diplomatic front, if true.
Is there a disconnect between the home and the external affairs ministries? Is the home ministry trying deliberately to undermine the external affairs ministry?
Or is it a ploy to engage the US in a diplomatic exchange on a subject that we may not dare or desire to take up directly?
We may never know. But for now, it doesn’t reflects India’s maturity in handling diplomatic affairs.
His motive to bring up Headley is suspect
An otherwise reticent and publicity-shy bureaucrat, home secretary G K Pillai has queered the pitch again just ahead of the US president’s visit to India. Without any apparent provocation, he told the media on Wednesday that India was disappointed with the US for not sharing intelligence input regarding the Lashkar-e-Taiba operative, David Coleman Headley, at the right time. “We were disappointed the name of David Headley was not provided, if not pre-26/11, at least post-26/11”, Pillai said.
There is nothing new in it, though. Our security establishment has made their displeasure known in the past too, pointing out that the US shared information about Headley only after his arrest in Chicago in October 2009. Had that not been so, Headley could have been arrested, if not before 26/11, at least after 26/11, when he travelled to India.
But this was serious diplomatic faux pas and prompted an immediate rebuttal from the US ambassador to India, Timothy Roemer, who said: “The U.S. shared intelligence on a regular and consistent basis with the government of India prior to the Mumbai attacks. We have also shared information with the government of India after the Mumbai attacks”.
Pillai had done the same in July this year, just a day before foreign minister S M Krishna was to visit Pakistan for bilateral talks. Pillai had mentioned Headley then too and said how he had implicated Pakistan’s ISI in the 26/11 terror strike on Mumbai. This remark became the focus of the bilateral talk and the joint press conference that followed, causing a serious embarrassment to Krishna and the country.
True the subject has everything to do with Pillai’s brief but timing it to high-profile diplomatic visits raises serious questions about his motivation. Surely a bureaucrat of his stature understands the implication of what he said and he also knows that there is a ministry for external affairs to raise the issue, if it all it has to be, with the US president or his officials. It would be naïve to assume that he was talking out of turn. But the other plausible inference, that it was a command performance, doesn’t speak well of the government, at least on the diplomatic front, if true.
Is there a disconnect between the home and the external affairs ministries? Is the home ministry trying deliberately to undermine the external affairs ministry?
Or is it a ploy to engage the US in a diplomatic exchange on a subject that we may not dare or desire to take up directly?
We may never know. But for now, it doesn’t reflects India’s maturity in handling diplomatic affairs.
Ten mistakes NAC made on food bill
governancenow.com, Oct 25, 2010
It provides old solutions, retains old problems
Jean Dreze, development economist and a member of the National Advisory Council (NAC) which finalized its recommendations on the proposed food security law, has aptly summed up the final outcome in his dissent note: “An opportunity has been missed to initiate a radical departure in this field. The NAC proposals are a great victory for the government – they allow it to appear to be doing something radical for food security, but it is actually “more of the same”.
A look at the NAC’s formulations will make it abundantly clear how the NAC’s formulations have, instead of solving anything, defeats the very purpose of a food security law and introduces more complexities and confusion that would only weaken the existing subsidized food regime. Here is a list of 10 mistakes it has made:
1. A right to food has to be a universal. The NAC proposes an entitlement to only 75 percent of population – 90 percent in rural and 50 percent in urban areas.
2. This is further divided into “priority” and “general” category, instead of the existing BPL and APL categories. It is a mere name-change and if at all, it adds to confusion.
3. The “priority” category is meant for 28 percent urban and 46 percent of rural population. This is a marginal improvement from the Tendulkar’s formulation for BPL (37 percent) which would have been implemented in any case since the government has already accepted it. As per Tendularkar’s BPL families constitute 26 percent urban and 42 percent rural population.
4. NAC introduces a new category and hence, the complexity. It “excludes” 50 percent in urban and 10 percent in rural areas (Point 1) from subsidized food regime.
In existing system, there are only two categories exist – BPL and APL. Nobody is excluded per se. The bureaucrats will now have a field day, magnifying the problems of exclusion and inclusion.
5. NAC proposes 35 kg of food (at Rs 3 for rice, Rs 2 for wheat and Rs 1 for millet), which is an extension of the Antyodyay scheme to the “priority” (or BPL) families.
6. In the name of nutritional needs, it has only added millet to the list, instead of adding oil, pulses and other coarse grain to the food basket.
7. Pension to the aged, which is in force as per the interim orders of the supreme court monitoring the food programmes in the country (PUCL vs the Union of India and others case), has been left out. So, this is dilution of the existing support system.
8. PDS has derailed our subsidized food regime. The NAC merely promises to look into reforming it in future. With the existing PDS, we can only expect more loot of food grain. It defeats the very purpose of legislating a new law.
9. NAC has introduced the problem of identification. Who is a “priority” family? Who is a “general” family? NAC does not define, but leaves it to the government. This recommendation is useless and adds needless complexity. It gives reason for the government to junk it and continue with BPL and APL categorisation.
10. A host of other existing food programmes, like ICDS, mid-day meal, anganwadi (community kitchen) etc will continue. So, why need a new law?
Dreze is right. The NAC’s formulations amount to not only “more of the same” solutions, but also to “more of the same” problems.
So, why do we need a food security law?
It provides old solutions, retains old problems
Jean Dreze, development economist and a member of the National Advisory Council (NAC) which finalized its recommendations on the proposed food security law, has aptly summed up the final outcome in his dissent note: “An opportunity has been missed to initiate a radical departure in this field. The NAC proposals are a great victory for the government – they allow it to appear to be doing something radical for food security, but it is actually “more of the same”.
A look at the NAC’s formulations will make it abundantly clear how the NAC’s formulations have, instead of solving anything, defeats the very purpose of a food security law and introduces more complexities and confusion that would only weaken the existing subsidized food regime. Here is a list of 10 mistakes it has made:
1. A right to food has to be a universal. The NAC proposes an entitlement to only 75 percent of population – 90 percent in rural and 50 percent in urban areas.
2. This is further divided into “priority” and “general” category, instead of the existing BPL and APL categories. It is a mere name-change and if at all, it adds to confusion.
3. The “priority” category is meant for 28 percent urban and 46 percent of rural population. This is a marginal improvement from the Tendulkar’s formulation for BPL (37 percent) which would have been implemented in any case since the government has already accepted it. As per Tendularkar’s BPL families constitute 26 percent urban and 42 percent rural population.
4. NAC introduces a new category and hence, the complexity. It “excludes” 50 percent in urban and 10 percent in rural areas (Point 1) from subsidized food regime.
In existing system, there are only two categories exist – BPL and APL. Nobody is excluded per se. The bureaucrats will now have a field day, magnifying the problems of exclusion and inclusion.
5. NAC proposes 35 kg of food (at Rs 3 for rice, Rs 2 for wheat and Rs 1 for millet), which is an extension of the Antyodyay scheme to the “priority” (or BPL) families.
6. In the name of nutritional needs, it has only added millet to the list, instead of adding oil, pulses and other coarse grain to the food basket.
7. Pension to the aged, which is in force as per the interim orders of the supreme court monitoring the food programmes in the country (PUCL vs the Union of India and others case), has been left out. So, this is dilution of the existing support system.
8. PDS has derailed our subsidized food regime. The NAC merely promises to look into reforming it in future. With the existing PDS, we can only expect more loot of food grain. It defeats the very purpose of legislating a new law.
9. NAC has introduced the problem of identification. Who is a “priority” family? Who is a “general” family? NAC does not define, but leaves it to the government. This recommendation is useless and adds needless complexity. It gives reason for the government to junk it and continue with BPL and APL categorisation.
10. A host of other existing food programmes, like ICDS, mid-day meal, anganwadi (community kitchen) etc will continue. So, why need a new law?
Dreze is right. The NAC’s formulations amount to not only “more of the same” solutions, but also to “more of the same” problems.
So, why do we need a food security law?
Tuesday, October 19, 2010
Lessons from the Narmada struggle
Governance Now, Oct 16-31
The state sets out to replace a British era law for land compensation – with even more anti-people laws
I n the third week of October, people of the Narmada valley will observe the 25th anniversary of their struggle against large-scale displacement in the name of development and their right to be resettled and rehabilitated – something that was unheard of until then though development projects, especially big dams like Bhakra, Hirakud, Tungabhadra and Rihand had displaced thousands before that and in spite of the fact that our constitution had, in 1950, declared that ours was a ‘welfare state’.
So this might be a fit occasion to take stock of another “struggle” – the struggle of our supposedly welfare state to resettle and rehabilitate people affected by the supposedly development projects.
The magnitude of the problem can be gauged from the simple fact that six crore people have been displaced by development projects between 1947 and 2004, involving 25 million hectare of land (40 percent of which is tribal land), according to a rural development ministry report of 2009. N C Saxena, a retired bureaucrat and member of the National Advisory Council (NAC), circulated a note to the fellow council members last month which said: “Studies have shown that in the past only 20 to 25 percent people benefited after displacement, the rest were left worse-off.” This sort of displacment happens to be one of the major reasons why the Maoists have come to virtually rule one-third of our country.
The rural development ministry, several state governments and various central government departments which acquire land for development projects have, since then, adopted various resettlement and rehabilitation policies and even laws. But these policies and laws have failed to address the problem because the fundamental issues remain unaddressed.
The central government stepped in for the first time during the NDA regime but all it has done so far is to produce two bills – Land Acquisition (Amendment) Bill of 2007 (LA Bill) and Resettlement and Rehabilitation Bill of 2007 (RR Bill) – which were introduced in the last Lok Sabha and lapsed with it.
Thanks to Congress general secretary Rahul Gandhi’s interest in the farmers’ protest against land acquisition for the Yamuna Expressway in Uttar Pradesh that the prime minister woke up and promised a couple of months ago that these bills will be taken up for passage in the winter session of the parliament.
As we will see, the two bills, which are inter-linked and should have actually been part of one piece of legislation, too will fail to make any material difference to the ground realities because no lessons have been learnt from the Narmada struggle, or from any other such struggle going on in several states across the country.
Right to land
The key to the problem, it was realised, lies in the antiquated Land Acquisition Act of 1894 that embodies the doctrine of ‘eminent domain’, which means the government can acquire any private land for ‘public purpose’ with or without the permission of the owner. It does provide for ‘compensation’ for land, standing crop, house etc but not for resettlement and rehabilitation because the context then, 116 years ago, was different.
There has been a paradigm shift in our policies in recent years. The Panchayats (Extension to Scheduled Areas) Act of 1996 (PESA) and the Forest Rights Act of 2006 (FRA) have dented the ‘eminent domain’ doctrine and provide for mandatory ‘prior consent’ before any land can be acquired, primarily in the tribal areas, by recognising both people’s right and the community’s right over their land and forests.
The NAC, which took up the resettlement and rehabilitation issue in 2006, argued that this legal right should extend beyond the tribal areas. It had proposed that the “law should primarily defend the fundamental and other legal rights of the citizens, rather than facilitate the exercise of the eminent domain of the state”.
Recognition of this right over land and forests is also essential to make the RR Bill meaningful and effective.
The purpose of the RR Bill, as its ‘statement of objects and reasons’ acknowledges, is to recognise that land acquisition leads to “displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment” and that these have “traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, in particular of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families.”
While it remains a mere ‘statement’ in the RR Bill, the LA Bill doesn’t even acknowledge that or factor in people’s right over land and forests as granted by the PESA and the FRA while going for acquisition.
Further, the LA Bill retains clause 17 of the 1894 Act, which provides “special powers in case of urgency” to acquire land. Demands that this clause should be qualified so as to be used “rarely”, as the NAC and social activists have been proposing, and with “prior informed consent” of the affected people have also been ignored.
Right to livelihood
On the contrary, the LA Bill says ‘public purpose’ for which land can be acquired are three: (i) strategic purposes relating to defence forces or any other work vital to the state, (ii) infrastructure projects and (iii) “for any purpose useful to the general public for which land has been purchased by a person under lawful contract to the extent of 70 percent but the remaining 30 percent of the total area of land required for the project as yet to be required.”
Purpose number (iii) makes a dangerous proposition, that a private entity can acquire 70 percent of land, before the state steps in to acquire the rest on its behalf for a project. Advocate Sanjay Parikh, who has been dealing with the issue, warns that this provision will unleash moneybags, land sharks and their musclemen who can cause havoc in tribal and other vulnerable areas, besides being violative of the ‘welfare state’ concept enshrined in the Directive Principle of State Policy.
This has other serious consequences too. The government’s RR schemes and plans under the RR Bill will actually apply to the 30 percent area that the government acquires, not the 70 percent that the private entity does (clause 2) – that being the private entity’s responsibility.
Further, clause 20 (1) of the RR Bill says the proposed law is meant for “involuntary displacement of 400 or more families en masse in plain areas, or 200 or more families en masse in tribal or hilly areas.” Which means, even if 399 families (about 2,000 people) lose their land and are displaced in the plains and 199 families (about 1,000 people) do so in the hills, they will not be covered by the law.
Clauses 6(1) and 34 of the RR Bill rub more salt by saying that the environment impact assessment and social impact assessment studies will also be restricted to the 30 percent area.
Read together, all these provisions defeat the very purpose of both the LA Bill and the RR Bill.
But these are not all. The RR Bill further dilutes resettlement and rehabilitation schemes and plans through several other provisions.
Clause 36(1) says land will be given to the displaced “if government land is available”.
Clause 41 says jobs will be given “subject to the availability of vacancies and suitability of the affected person for the employment”.
Clause 35 says only the BPL families will get house for losing theirs, the rest will get land.
Clause 30 (3) says the government will decide what infrastructure facilities and amenities be given at the resettlement colony, without specifying anything.
By now it is clear that the RR Bill goes on to systematically defeat its very raison d’être.
Medha Patkar, the torch bearer of the Narmada struggle, has been insisting on a framework that should govern the policy of land acquisition and RR. She advocates: (i) recognition of the displaced as ‘investors’ in the project as their land, forest and natural resources are used for development, (ii) recognition of rights of people over their land and natural resources, like forest rights etc, (iii) protection of constitutional rights of everyone, including the displaced and (iv) recognition of decision making power of the affected people.
Concerns of the Narmada struggle that found an outlet through NAC’s formulation on the RR policy in 2006 had spelt out what the objective of the RR law should be: (i) displaced families to have a standard of living superior to what they had, (ii) they should have sustainable income above the poverty line and (iii) gains to the displaced be proportionate to the gains to the project beneficiaries. There is no sign of any of these being considered while drafting the two bills.
Private purpose
Revisit the definition of ‘public purpose’ in the LA Bill (clause 5) mentioned earlier. A parliamentary committee that examined the bill and submitted its report in 2008 was so disappointed that it actually said “unanimously” that this definition should be scrapped and replaced with, irony of ironies, the one in the British era law of 1894!
The Raj law had defined public purpose to include land for village, planned development or improvement of existing village, town and rural planning, housing for the poor or landless, educational, housing, health facilities etc. But the bill is silent on these aspects.
Para 4.38 of the parliamentary panel report says: “Further, the Committee feels that the definition of public purpose as given in Section 3 (f) of the Principal Act (of 1894) was much better. Besides, Part VII of the Principal Act which the amending legislation proposes to delete further tightened the definition of public purpose by putting some of the conditionalities. In view of this, the Committee unanimously decided not to agree to the proposed definition of public purpose as per Clause 5 of the amending legislation. The Committee after deliberations unanimously decided that the definition of public purpose as given in the Principal Act of 1894 along with Part VII of the Principal Act should be retained.”
Land to the tiller
Singur and Nandigram happened because the government acquired fertile, multi-crop agriculture land which was the only source of livelihood for thousands of farmers. At a time when food security and falling productivity of land are a cause of concern and the government records show how the cultivable land has shrunk from 18.50 crore hectares in 1980-81 to 18.25 crore hectares in 2005-06, the LA Bill is silent on protecting such land. UPA chairperson Sonia Gandhi had joined issue with the prime minister Manmohan Singh in early September by asserting that development or industrialisation shouldn’t be at the cost of fertile land.
Acquiring land in excess of need is another cause of concern. So is the absence of any legal provision to return the acquired land, excess or unused when the project fails to take off within a time frame, back to the people. K B Saxena, former bureaucrat associated with the Council for Social Development, has been advocating a policy to return land to the people, and not vest it with the government when a projects fails to take off in five years or excess land is detected, on the ground that this would act as an effective deterrent. The bill ignores this aspect too.
Stake in development
In the mid 1990s, the Dilip Singh Bhuria Committee made a dramatic suggestion to resolve the growing conflict between the tribals and the development projects in their area. He proposed an ownership pattern in all such projects in which community will have 50 percent stake, the displaced 24 percent and the investor the rest, 26 percent.
More recently, the ministry of mines circulated a draft Mines and Minerals (Development and Regulation) Bill, 2010, proposing 26 percent stake for tribals in the mining companies.
Needless to say, Bhuria’s suggestion was never considered. That of the mines ministry is strongly opposed by the private companies.
In the meanwhile, Haryana devised a vastly attractive RR policy in 2007 which, apart from various compensations, provides for an annuity of Rs 15,000 a year for every acre of land acquired for next 33 years. UP chief minister Mayawati made an improvement to this recently by announcing an annuity of Rs 20,000. Many, including NAC member Saxena, have suggested that the compensation package should also take into consideration future value of the land.
All these, however, are a matter of details. So long as the constitutional rights to land and livelihood are honoured, the issues will be addressed adequately. If not, the proposed legislations will benefit only a handful.
prasanna@governancenow.c
The state sets out to replace a British era law for land compensation – with even more anti-people laws
I n the third week of October, people of the Narmada valley will observe the 25th anniversary of their struggle against large-scale displacement in the name of development and their right to be resettled and rehabilitated – something that was unheard of until then though development projects, especially big dams like Bhakra, Hirakud, Tungabhadra and Rihand had displaced thousands before that and in spite of the fact that our constitution had, in 1950, declared that ours was a ‘welfare state’.
So this might be a fit occasion to take stock of another “struggle” – the struggle of our supposedly welfare state to resettle and rehabilitate people affected by the supposedly development projects.
The magnitude of the problem can be gauged from the simple fact that six crore people have been displaced by development projects between 1947 and 2004, involving 25 million hectare of land (40 percent of which is tribal land), according to a rural development ministry report of 2009. N C Saxena, a retired bureaucrat and member of the National Advisory Council (NAC), circulated a note to the fellow council members last month which said: “Studies have shown that in the past only 20 to 25 percent people benefited after displacement, the rest were left worse-off.” This sort of displacment happens to be one of the major reasons why the Maoists have come to virtually rule one-third of our country.
The rural development ministry, several state governments and various central government departments which acquire land for development projects have, since then, adopted various resettlement and rehabilitation policies and even laws. But these policies and laws have failed to address the problem because the fundamental issues remain unaddressed.
The central government stepped in for the first time during the NDA regime but all it has done so far is to produce two bills – Land Acquisition (Amendment) Bill of 2007 (LA Bill) and Resettlement and Rehabilitation Bill of 2007 (RR Bill) – which were introduced in the last Lok Sabha and lapsed with it.
Thanks to Congress general secretary Rahul Gandhi’s interest in the farmers’ protest against land acquisition for the Yamuna Expressway in Uttar Pradesh that the prime minister woke up and promised a couple of months ago that these bills will be taken up for passage in the winter session of the parliament.
As we will see, the two bills, which are inter-linked and should have actually been part of one piece of legislation, too will fail to make any material difference to the ground realities because no lessons have been learnt from the Narmada struggle, or from any other such struggle going on in several states across the country.
Right to land
The key to the problem, it was realised, lies in the antiquated Land Acquisition Act of 1894 that embodies the doctrine of ‘eminent domain’, which means the government can acquire any private land for ‘public purpose’ with or without the permission of the owner. It does provide for ‘compensation’ for land, standing crop, house etc but not for resettlement and rehabilitation because the context then, 116 years ago, was different.
There has been a paradigm shift in our policies in recent years. The Panchayats (Extension to Scheduled Areas) Act of 1996 (PESA) and the Forest Rights Act of 2006 (FRA) have dented the ‘eminent domain’ doctrine and provide for mandatory ‘prior consent’ before any land can be acquired, primarily in the tribal areas, by recognising both people’s right and the community’s right over their land and forests.
The NAC, which took up the resettlement and rehabilitation issue in 2006, argued that this legal right should extend beyond the tribal areas. It had proposed that the “law should primarily defend the fundamental and other legal rights of the citizens, rather than facilitate the exercise of the eminent domain of the state”.
Recognition of this right over land and forests is also essential to make the RR Bill meaningful and effective.
The purpose of the RR Bill, as its ‘statement of objects and reasons’ acknowledges, is to recognise that land acquisition leads to “displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment” and that these have “traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, in particular of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families.”
While it remains a mere ‘statement’ in the RR Bill, the LA Bill doesn’t even acknowledge that or factor in people’s right over land and forests as granted by the PESA and the FRA while going for acquisition.
Further, the LA Bill retains clause 17 of the 1894 Act, which provides “special powers in case of urgency” to acquire land. Demands that this clause should be qualified so as to be used “rarely”, as the NAC and social activists have been proposing, and with “prior informed consent” of the affected people have also been ignored.
Right to livelihood
On the contrary, the LA Bill says ‘public purpose’ for which land can be acquired are three: (i) strategic purposes relating to defence forces or any other work vital to the state, (ii) infrastructure projects and (iii) “for any purpose useful to the general public for which land has been purchased by a person under lawful contract to the extent of 70 percent but the remaining 30 percent of the total area of land required for the project as yet to be required.”
Purpose number (iii) makes a dangerous proposition, that a private entity can acquire 70 percent of land, before the state steps in to acquire the rest on its behalf for a project. Advocate Sanjay Parikh, who has been dealing with the issue, warns that this provision will unleash moneybags, land sharks and their musclemen who can cause havoc in tribal and other vulnerable areas, besides being violative of the ‘welfare state’ concept enshrined in the Directive Principle of State Policy.
This has other serious consequences too. The government’s RR schemes and plans under the RR Bill will actually apply to the 30 percent area that the government acquires, not the 70 percent that the private entity does (clause 2) – that being the private entity’s responsibility.
Further, clause 20 (1) of the RR Bill says the proposed law is meant for “involuntary displacement of 400 or more families en masse in plain areas, or 200 or more families en masse in tribal or hilly areas.” Which means, even if 399 families (about 2,000 people) lose their land and are displaced in the plains and 199 families (about 1,000 people) do so in the hills, they will not be covered by the law.
Clauses 6(1) and 34 of the RR Bill rub more salt by saying that the environment impact assessment and social impact assessment studies will also be restricted to the 30 percent area.
Read together, all these provisions defeat the very purpose of both the LA Bill and the RR Bill.
But these are not all. The RR Bill further dilutes resettlement and rehabilitation schemes and plans through several other provisions.
Clause 36(1) says land will be given to the displaced “if government land is available”.
Clause 41 says jobs will be given “subject to the availability of vacancies and suitability of the affected person for the employment”.
Clause 35 says only the BPL families will get house for losing theirs, the rest will get land.
Clause 30 (3) says the government will decide what infrastructure facilities and amenities be given at the resettlement colony, without specifying anything.
By now it is clear that the RR Bill goes on to systematically defeat its very raison d’être.
Medha Patkar, the torch bearer of the Narmada struggle, has been insisting on a framework that should govern the policy of land acquisition and RR. She advocates: (i) recognition of the displaced as ‘investors’ in the project as their land, forest and natural resources are used for development, (ii) recognition of rights of people over their land and natural resources, like forest rights etc, (iii) protection of constitutional rights of everyone, including the displaced and (iv) recognition of decision making power of the affected people.
Concerns of the Narmada struggle that found an outlet through NAC’s formulation on the RR policy in 2006 had spelt out what the objective of the RR law should be: (i) displaced families to have a standard of living superior to what they had, (ii) they should have sustainable income above the poverty line and (iii) gains to the displaced be proportionate to the gains to the project beneficiaries. There is no sign of any of these being considered while drafting the two bills.
Private purpose
Revisit the definition of ‘public purpose’ in the LA Bill (clause 5) mentioned earlier. A parliamentary committee that examined the bill and submitted its report in 2008 was so disappointed that it actually said “unanimously” that this definition should be scrapped and replaced with, irony of ironies, the one in the British era law of 1894!
The Raj law had defined public purpose to include land for village, planned development or improvement of existing village, town and rural planning, housing for the poor or landless, educational, housing, health facilities etc. But the bill is silent on these aspects.
Para 4.38 of the parliamentary panel report says: “Further, the Committee feels that the definition of public purpose as given in Section 3 (f) of the Principal Act (of 1894) was much better. Besides, Part VII of the Principal Act which the amending legislation proposes to delete further tightened the definition of public purpose by putting some of the conditionalities. In view of this, the Committee unanimously decided not to agree to the proposed definition of public purpose as per Clause 5 of the amending legislation. The Committee after deliberations unanimously decided that the definition of public purpose as given in the Principal Act of 1894 along with Part VII of the Principal Act should be retained.”
Land to the tiller
Singur and Nandigram happened because the government acquired fertile, multi-crop agriculture land which was the only source of livelihood for thousands of farmers. At a time when food security and falling productivity of land are a cause of concern and the government records show how the cultivable land has shrunk from 18.50 crore hectares in 1980-81 to 18.25 crore hectares in 2005-06, the LA Bill is silent on protecting such land. UPA chairperson Sonia Gandhi had joined issue with the prime minister Manmohan Singh in early September by asserting that development or industrialisation shouldn’t be at the cost of fertile land.
Acquiring land in excess of need is another cause of concern. So is the absence of any legal provision to return the acquired land, excess or unused when the project fails to take off within a time frame, back to the people. K B Saxena, former bureaucrat associated with the Council for Social Development, has been advocating a policy to return land to the people, and not vest it with the government when a projects fails to take off in five years or excess land is detected, on the ground that this would act as an effective deterrent. The bill ignores this aspect too.
Stake in development
In the mid 1990s, the Dilip Singh Bhuria Committee made a dramatic suggestion to resolve the growing conflict between the tribals and the development projects in their area. He proposed an ownership pattern in all such projects in which community will have 50 percent stake, the displaced 24 percent and the investor the rest, 26 percent.
More recently, the ministry of mines circulated a draft Mines and Minerals (Development and Regulation) Bill, 2010, proposing 26 percent stake for tribals in the mining companies.
Needless to say, Bhuria’s suggestion was never considered. That of the mines ministry is strongly opposed by the private companies.
In the meanwhile, Haryana devised a vastly attractive RR policy in 2007 which, apart from various compensations, provides for an annuity of Rs 15,000 a year for every acre of land acquired for next 33 years. UP chief minister Mayawati made an improvement to this recently by announcing an annuity of Rs 20,000. Many, including NAC member Saxena, have suggested that the compensation package should also take into consideration future value of the land.
All these, however, are a matter of details. So long as the constitutional rights to land and livelihood are honoured, the issues will be addressed adequately. If not, the proposed legislations will benefit only a handful.
prasanna@governancenow.c
Not so judicious
Governance Now, Oct 16-31
The judicial accountability bill proposes an oversight committee that is neither independent nor permanent in nature
The Judicial Standards and Accountability Bill of 2010, which was approved by the union cabinet on October 5, is yet another formulation in the decades-long endeavour of the government to bring in transparency and accountability in the higher judiciary. Meant to replace the Judiciary (Inquiry) Act of 1968, the latest formulation provides for a “national oversight committee” with which anyone can lodge a complaint against the higher judiciary, including the chief justice of India (CJI) and the chief justices of high courts. The oversight committee will be a five-member body, which will be headed by a retired CJI, one judge each from the apex court and the high court who will be nominated by the CJI, the attorney general and an eminent person nominated by the president.
Once a complaint is received, it will be forwarded to a “scrutiny panel”. If the complaint is against a supreme court judge, the panel will consist of a former CJI and two sitting apex court judges and if it is against a high court judge, the panel will have a former chief justice of high court and two of its sitting judges. This panel will submit its report in three months. In case the complaint is against a chief justice, the oversight committee itself will carry out the scrutiny. If charges are found correct, an “investigation committee” will go into it and the action will follow. If charges are not serious, the oversight committee will issue an advisory or warning. But if serious, the judge will be requested to resign, failing which the oversight committee will recommend his removal to the president. In such an eventuality, the impeachment proceeding will begin as per the existing system of impeachment.
There are two other key features in the proposed bill. One, the judges will be required to file annual return of assets and liabilities of their own, their spouse and children and will be put up on the websites of the respective courts. Two, the judges will be prohibited from having close association with lawyers who practise in the same court, permit relatives to appear before him or hear a case involving their family, close relatives or friends. Besides, there are other don’ts like not to contest elections to any club, association connected with the law or any court, not to air views on political issues or pending cases and not to speculate in securities or indulge in any trade or allow official residence for professional work by family members.
It must be acknowledged that these are quite radical steps, especially in view of the fact that there is no legal mechanism to deal with the complaints against judges and an in-house system that exists doesn’t really work, which was evident in the way complaints against Justice PD Dinakaran and Justice Nirmal Yadav were dealt with. Impeachment has not been able to remove even one judge for misconduct in the past 60 years because of the stiff conditionalities and reluctance of the politicians to antagonise the judiciary.
But the proposed bill falls short of expectations in one crucial area. The oversight committee consists of a majority of ex-officio members. To expect sitting judges to sit on judgment over the misconduct of brother judges, who could be their senior (if the complaint is against the CJI, for example) or with whom they may be sharing the bench every day, is expecting too much. So is the case with the attorney general who has to practice in their courts. The scrutiny panel too suffers from the same shortcoming and can’t be expected to do any better than the in-house mechanism that exists now. Apart from reluctance, ex-officio members may be short on time and motivation. As Prashant Bhushan, senior advocate campaigning for judicial accountability for many years, has been pleading, such a body has to be an independent and permanent body, members of which should be drawn from a wider catchment area and involving various other institutions like the leaders of opposition, human rights bodies, CEC, CVC and CAG etc.
The problem with the nature of the oversight committee becomes even more acute when we realise that the judges self-appoint themselves through a collegium, which consists of a group of senior judges of the apex court. This is an opaque system and needs to be replaced with an outside body, without which any talk about transparency and accountability in judiciary is meaningless. The bill should start from there, instead of overlooking it.
The judicial accountability bill proposes an oversight committee that is neither independent nor permanent in nature
The Judicial Standards and Accountability Bill of 2010, which was approved by the union cabinet on October 5, is yet another formulation in the decades-long endeavour of the government to bring in transparency and accountability in the higher judiciary. Meant to replace the Judiciary (Inquiry) Act of 1968, the latest formulation provides for a “national oversight committee” with which anyone can lodge a complaint against the higher judiciary, including the chief justice of India (CJI) and the chief justices of high courts. The oversight committee will be a five-member body, which will be headed by a retired CJI, one judge each from the apex court and the high court who will be nominated by the CJI, the attorney general and an eminent person nominated by the president.
Once a complaint is received, it will be forwarded to a “scrutiny panel”. If the complaint is against a supreme court judge, the panel will consist of a former CJI and two sitting apex court judges and if it is against a high court judge, the panel will have a former chief justice of high court and two of its sitting judges. This panel will submit its report in three months. In case the complaint is against a chief justice, the oversight committee itself will carry out the scrutiny. If charges are found correct, an “investigation committee” will go into it and the action will follow. If charges are not serious, the oversight committee will issue an advisory or warning. But if serious, the judge will be requested to resign, failing which the oversight committee will recommend his removal to the president. In such an eventuality, the impeachment proceeding will begin as per the existing system of impeachment.
There are two other key features in the proposed bill. One, the judges will be required to file annual return of assets and liabilities of their own, their spouse and children and will be put up on the websites of the respective courts. Two, the judges will be prohibited from having close association with lawyers who practise in the same court, permit relatives to appear before him or hear a case involving their family, close relatives or friends. Besides, there are other don’ts like not to contest elections to any club, association connected with the law or any court, not to air views on political issues or pending cases and not to speculate in securities or indulge in any trade or allow official residence for professional work by family members.
It must be acknowledged that these are quite radical steps, especially in view of the fact that there is no legal mechanism to deal with the complaints against judges and an in-house system that exists doesn’t really work, which was evident in the way complaints against Justice PD Dinakaran and Justice Nirmal Yadav were dealt with. Impeachment has not been able to remove even one judge for misconduct in the past 60 years because of the stiff conditionalities and reluctance of the politicians to antagonise the judiciary.
But the proposed bill falls short of expectations in one crucial area. The oversight committee consists of a majority of ex-officio members. To expect sitting judges to sit on judgment over the misconduct of brother judges, who could be their senior (if the complaint is against the CJI, for example) or with whom they may be sharing the bench every day, is expecting too much. So is the case with the attorney general who has to practice in their courts. The scrutiny panel too suffers from the same shortcoming and can’t be expected to do any better than the in-house mechanism that exists now. Apart from reluctance, ex-officio members may be short on time and motivation. As Prashant Bhushan, senior advocate campaigning for judicial accountability for many years, has been pleading, such a body has to be an independent and permanent body, members of which should be drawn from a wider catchment area and involving various other institutions like the leaders of opposition, human rights bodies, CEC, CVC and CAG etc.
The problem with the nature of the oversight committee becomes even more acute when we realise that the judges self-appoint themselves through a collegium, which consists of a group of senior judges of the apex court. This is an opaque system and needs to be replaced with an outside body, without which any talk about transparency and accountability in judiciary is meaningless. The bill should start from there, instead of overlooking it.
Monday, October 4, 2010
They blew the whistle and came to grief
Governance Now, Sept 16-30
Abhijit Ghosh
Ghosh, a former general manager of the Central Bank of India who had also worked as an adviser on deputation to the CVC during 2000-05, had complained against the then bank chairperson H A Daruwalla for collecting donations from customers for her alma mater, favouring a travel agency in which her sister worked and forwarding loans of
Rs 12 crore which turned into non-performing assets (NPAs) in less than six months.
Ghosh used the whistleblower resolution (PIDPI of 2004) to approach the CVC in 2005. Later, the finance ministry found the charges correct and sought CVC’s guidance in proceeding against Daruwalla earlier this year because she had retired on December 31, 2008.
But Ghosh faced the music. His identity was disclosed to Daruwala and he was charged with “maligning” her image. The CVC didn’t intervene when he was suspended in October 2008. Former CJI R C Lahoti wrote to the CVC on his behalf but it was ignored. Ghosh retired on March 31, 2010. Just two days before his retirement the suspension was revoked but he is waiting for some of his dues to be cleared.
Ghosh meanwhile approached the Delhi High Court where his case is pending. Ghosh’s RTI applications provided some startling disclosures. In reply to his applications, the bank disclosed it had spent Rs 69.24 lakh on lawyers during 2008-10 to defend Daruwalla. Of this, Rs 48.5 lakh went to Congress spokesman and lawyer Abhishek Manu Singhvi. The bank also revealed that the decision to engage lawyers had been taken by Daruwalla herself, against whom Ghosh had made corruption charges.
Azam Siddiqui
As a divisional engineer of BSNL in Allahabad, Siddiqui exposed the illegal routing of international calls by Reliance Infocomm, which led to the unearthing of a series of such scams in several parts of the country. When BSNL didn’t take note of it, he wrote to CVC in 2005 under the whistleblowers’ resolution of 2004. CBI and DoT found the charges correct. Three senior officials were transferred and Rs 5 lakh recovered from Reliance Infocomm. Similar probes were ordered in other districts.
But CVC, in its attempt to get the BSNL’s comments/explanations, disclosed his identity and the victimisation began. False charges about unauthorised leave and doing departmental work without written permission were made. His promotion has been held up since 2007.
Siddiqui challenged departmental proceedings and also approached CVC for protection. CVC held that he was not being victimised even after the Patna high court asked it to protect him. The legal battle is now being fought in the supreme court.
S K Nagarwal
Nagarwal, a deputy chief engineer with the railways in Jaipur, had exposed corruption in laying the Eklakhi-Balurghat broad gauge line in West Bengal’s Malda in 2003. This led to 26 railway officials getting chargesheets but he is not made witness in any of the cases.
His identity too was blown off by the CVC. His complaint was forwarded to the railways and soon it found its way to the contractors, who started making threat calls to him.
His woes didn’t stop there. He was harassed with charges like making excess payment for civil works (through fake documents which were subsequently found out), wrongly claiming HRA etc and his promotion to the selection grade was stalled. He was transferred from Malda to Katihar, Guwahati, Jaipur, Ajmer and now he is back in Jaipur. He wrote several letters to CVC for protection but received no response. He is fighting a legal battle and his case is pending with the Rajasthan high court.
Sudhir Chopra
An officer of the Indian Defence Estate Service in Pune, Chopra had exposed corruption in the department by pointing out in 1998 that the ex-maharaja of Kota had been paid Rs 8 crore as “rent” over a period of time while, following the land
ceiling law, he was to be paid only Rs 2 lakh as compensation for the
entire land.
While nothing happened to the case, he was transferred to the Northeast for five years, against a normal tenure of two years. After coming back in 2005, he complained to CVC under the whistleblower resolution. He got no protection and his promotion has been held up since 2007 on flimsy grounds.
The CVC took a bizarre stand that he is not entitled to protection as his complaint was not treated under the whistleblower resolution of 2004.
It also closed the inquiry into the land scam in 2006 saying that the defence ministry was “stonewalling” it. A classic case in which non-cooperation by the department concerned derails the CVC. The whistleblower bill formalises such derailment.
Abhijit Ghosh
Ghosh, a former general manager of the Central Bank of India who had also worked as an adviser on deputation to the CVC during 2000-05, had complained against the then bank chairperson H A Daruwalla for collecting donations from customers for her alma mater, favouring a travel agency in which her sister worked and forwarding loans of
Rs 12 crore which turned into non-performing assets (NPAs) in less than six months.
Ghosh used the whistleblower resolution (PIDPI of 2004) to approach the CVC in 2005. Later, the finance ministry found the charges correct and sought CVC’s guidance in proceeding against Daruwalla earlier this year because she had retired on December 31, 2008.
But Ghosh faced the music. His identity was disclosed to Daruwala and he was charged with “maligning” her image. The CVC didn’t intervene when he was suspended in October 2008. Former CJI R C Lahoti wrote to the CVC on his behalf but it was ignored. Ghosh retired on March 31, 2010. Just two days before his retirement the suspension was revoked but he is waiting for some of his dues to be cleared.
Ghosh meanwhile approached the Delhi High Court where his case is pending. Ghosh’s RTI applications provided some startling disclosures. In reply to his applications, the bank disclosed it had spent Rs 69.24 lakh on lawyers during 2008-10 to defend Daruwalla. Of this, Rs 48.5 lakh went to Congress spokesman and lawyer Abhishek Manu Singhvi. The bank also revealed that the decision to engage lawyers had been taken by Daruwalla herself, against whom Ghosh had made corruption charges.
Azam Siddiqui
As a divisional engineer of BSNL in Allahabad, Siddiqui exposed the illegal routing of international calls by Reliance Infocomm, which led to the unearthing of a series of such scams in several parts of the country. When BSNL didn’t take note of it, he wrote to CVC in 2005 under the whistleblowers’ resolution of 2004. CBI and DoT found the charges correct. Three senior officials were transferred and Rs 5 lakh recovered from Reliance Infocomm. Similar probes were ordered in other districts.
But CVC, in its attempt to get the BSNL’s comments/explanations, disclosed his identity and the victimisation began. False charges about unauthorised leave and doing departmental work without written permission were made. His promotion has been held up since 2007.
Siddiqui challenged departmental proceedings and also approached CVC for protection. CVC held that he was not being victimised even after the Patna high court asked it to protect him. The legal battle is now being fought in the supreme court.
S K Nagarwal
Nagarwal, a deputy chief engineer with the railways in Jaipur, had exposed corruption in laying the Eklakhi-Balurghat broad gauge line in West Bengal’s Malda in 2003. This led to 26 railway officials getting chargesheets but he is not made witness in any of the cases.
His identity too was blown off by the CVC. His complaint was forwarded to the railways and soon it found its way to the contractors, who started making threat calls to him.
His woes didn’t stop there. He was harassed with charges like making excess payment for civil works (through fake documents which were subsequently found out), wrongly claiming HRA etc and his promotion to the selection grade was stalled. He was transferred from Malda to Katihar, Guwahati, Jaipur, Ajmer and now he is back in Jaipur. He wrote several letters to CVC for protection but received no response. He is fighting a legal battle and his case is pending with the Rajasthan high court.
Sudhir Chopra
An officer of the Indian Defence Estate Service in Pune, Chopra had exposed corruption in the department by pointing out in 1998 that the ex-maharaja of Kota had been paid Rs 8 crore as “rent” over a period of time while, following the land
ceiling law, he was to be paid only Rs 2 lakh as compensation for the
entire land.
While nothing happened to the case, he was transferred to the Northeast for five years, against a normal tenure of two years. After coming back in 2005, he complained to CVC under the whistleblower resolution. He got no protection and his promotion has been held up since 2007 on flimsy grounds.
The CVC took a bizarre stand that he is not entitled to protection as his complaint was not treated under the whistleblower resolution of 2004.
It also closed the inquiry into the land scam in 2006 saying that the defence ministry was “stonewalling” it. A classic case in which non-cooperation by the department concerned derails the CVC. The whistleblower bill formalises such derailment.
CVC: A SLUMBERING WATCHDOG
Governance Now, Sept 16-30
Forget teeth, it does not even bark any more
Manoranjan Kumar hit the headlines a couple of months ago when former chief justice of India R C Lahoti took up his case with the prime minister and the UPA chairperson, seeking his protection as a whistleblower. Nothing came of it, and nothing probably will, but his case is instructive and hence bears repetition.
An Indian Economic Service officer, Kumar was deputy chairman with an additional charge as chief vigilance officer (CVO) of the Kandla Port Trust in 2007 when he exposed a series of corruption cases involving the port’s land. He presented nine reports to the Central Vigilance Commission (CVC) pointing out how more than 16,000 acre of land had been given for salt manufacturing, warehousing, liquid storage etc to private bodies at nominal prices which were then renewed in violation of the original contracts. He said these deals led to a revenue loss of over Rs 6,000 crore.
CVC found merit in the reports and handed over the cases to the CBI. The cases are in various stages of prosecution at present but Kumar is not made a witness in any of these cases.
Meanwhile, Kumar was transferred in January 2008 to his parent cadre, the finance ministry, on the ground of “poor performance”. But he was neither given a posting nor salary. He approached the CVC which told him that nothing could be done because he was “not a whistleblower” and so, the protection under the government of India resolution on Public Interest Disclosures and Protection of Informer (PIDPI) 2004 was not available to him. (PIDPI was issued following the murder of IITian Satyendra Dube to protect whistleblowers and the CVC was made the “designated agency” for its implementation.) He was also told that he was “not a regular CVO” because he was holding additional charge as the CVO and, hence, could not be given protection that is available to other CVOs either.
Kumar approached the Central Administrative Tribunal (CAT) and got the transfer cancelled. Yet, the finance ministry didn’t give him any posting, or salary. The ministry challenged the CAT order in the Delhi High Court where the matter is pending now. Mercifully, the high court directed in February 2009 that Kumar be given his salary, and promotion that would be due in course. So, he now gets salary but has been without a job since January 2008.
When the government introduced the whistleblower bill, making CVC the “competent authority”, in the Lok Sabha on August 26, Kumar had this to say: “If the CVC fails to protect its own arm, the CVO, despite clear guidelines and rules, should CVC be given the task of protecting the whistleblowers? What has the CVC done to protect civil servants who are protecting the exchequer to merit such responsibility?”
Kumar is not the only one questioning the CVC’s credentials or functioning. There are several other whistleblowers who met a similar fate (see the boxes), prompting Lahoti to point out in his letters that every whistleblower who went to the CVC in recent years “came to grief”. These whistleblowers have charged the CVC with not just disclosing their identity—in some cases by directly forwarding their written complaints to those against whom complaints were made—but also that the CVC provided them no protection whatsoever, forcing them to seek help from the courts of law.
A reading of these cases would make it clear that there is no transparency or accountability in the functioning of the CVC, parimarily because it is answerable to none. It has not even prepared its annual reports since 2008. In any case, its annual reports never got attention of Parliament. Arvind Kejriwal, an RTI activist who is a member of the Vigilance Advisory Committee that oversees CVC’s functioning, says “there are no checks and balances” and therefore, no remedy for a series of charges of nepotism made against the top corruption watchdog. “This committee is a farce and hardly ever meets,” he adds.
If all the whistleblowers are forced to approach the court for their protection, there is little justification in making the CVC the “competent authority” in the whistleblower bill.
But these are not the only issues with the CVC. Seeking an overhaul of the anti-corruption mechanism, Kejriwal has written an open letter to the UPA chairperson describing the CVC as “a toothless body; it neither has resources nor powers to investigate and prosecute”.
Consider these facts about CVC:
* It is an advisory/recommending body, whose views are not binding on anyone.
* It is not an investigating agency. It works through the CBI and departmental vigilance officials but has no direct or effective control over any of them. CBI is under the administrative control of DoPT and the vigilance officials that of their respective departments. The only investigation it does on its own is civil works, as in case with the Commonwealth Games, but even here, it can and has only recommend action, not taken any.
* It can’t initiate inquiry against senior bureaucrats (joint secretary or above) for which it needs prior permission of the government, in what is better known as the “single directive”.
* It can’t direct investigation against the political executive.
* It has a staff strength of less than 200 to check corruption in more than 1,500 central government ministries and departments.
* It can’t register an FIR or investigate any criminal case; it deals only with vigilance or disciplinary matters.
“CVC is a mere ornamental body. It can’t even ask the CBI to register an FIR,” comments Vineet Narain, a veteran journalist who exposed the Hawala scam in the 1990s. “The government will never give autonomy to CVC or CBI. I had said it to the Supreme Court then”, he recalls. It was his efforts that led to the historic 1997 apex court judgment that bears his name and courtesy which CVC got statutory status, supervisory power over the CBI and the leader of opposition was made part of the selection process of the central vigilance commissioner.
Former CVC Pratyush Sinha admitted these shortcomings in an interview shortly before he demitted office in August. He and his predecessor P Shankar were part of a deliberation on the subject of “Deficiencies in the present anti-corruption system” at the India International Centre on August 10. It left nothing to imagination when they endorsed the recommendations which, among other things, said the “CVC should be placed under the superintendence of the Lokpal” to look after only the vigilance cases!
Karnataka Lokayukta Justice Santosh Hegde, former CEC J M Lyngdoh and advocate Prashant Bhushan were some of the other members of that panel. Their first two recommendations were: The government should immediately institute a “Lokpal” at the centre and the “Lokayukta” in the states (which don’t have them) with adequate powers to act as “apex, independent and effective” anti-corruption agencies.
If these are not enough, appointment of retired or about-to-retire bureaucrats as CVC has taken away even the pretence of it being a competent or impartial or non-pliable body to fight corruption. P J Thomas, the incumbent CVC, was appointed despite a red flag from leader of the opposition Sushma Swaraj, who is part of the three-member selection committee. Thomas was not only once an accused in a palm oil scam in Kerala, but days before he quit as telecom secretary, he had armed himself with a law ministry opinion that investigation into the 2G spectrum scam was beyond the purview of the CAG and the CBI. (The CBI is currently investigating the scam in which his former boss, telecom minister A Raja, is the prime accused.) What message does his appointment give to the corrupt of the country?
Given all these failings, entrusting CVC with an additional responsibility under the whistleblower bill raises serious doubts about the government’s intention to fight corruption. It must, though, be said that the bill makes a small concession by way of giving CVC powers to impose penalty on officials for not cooperating in investigation or revealing identity of the whistleblower and some power to punish with imprisonment in case of false or frivolous charges or “restoration of status quo ante” if a whistleblower is found to be harassed by way of transfer etc.
But these are of little consequence given the serious flaws in the whistleblower bill itself (See “Whistleblowers bill is self-defeating”). Moreover, these are not the real issues. The real issue is whether the CVC is serving any purpose at all and should we continue with it. If it was meant to be a corruption watchdog, it stopped barking long ago...once the first CVC, N Vittal, demitted office.
The real need is, as Justice Hegde et al proposed, for a Lokpal-like statutory body with “real” powers to investigate and prosecute the corrupt, especially senior bureaucrats and the political executive, because when they are involved the whistleblowers come to grief and the judicial process gets derailed. n
Forget teeth, it does not even bark any more
Manoranjan Kumar hit the headlines a couple of months ago when former chief justice of India R C Lahoti took up his case with the prime minister and the UPA chairperson, seeking his protection as a whistleblower. Nothing came of it, and nothing probably will, but his case is instructive and hence bears repetition.
An Indian Economic Service officer, Kumar was deputy chairman with an additional charge as chief vigilance officer (CVO) of the Kandla Port Trust in 2007 when he exposed a series of corruption cases involving the port’s land. He presented nine reports to the Central Vigilance Commission (CVC) pointing out how more than 16,000 acre of land had been given for salt manufacturing, warehousing, liquid storage etc to private bodies at nominal prices which were then renewed in violation of the original contracts. He said these deals led to a revenue loss of over Rs 6,000 crore.
CVC found merit in the reports and handed over the cases to the CBI. The cases are in various stages of prosecution at present but Kumar is not made a witness in any of these cases.
Meanwhile, Kumar was transferred in January 2008 to his parent cadre, the finance ministry, on the ground of “poor performance”. But he was neither given a posting nor salary. He approached the CVC which told him that nothing could be done because he was “not a whistleblower” and so, the protection under the government of India resolution on Public Interest Disclosures and Protection of Informer (PIDPI) 2004 was not available to him. (PIDPI was issued following the murder of IITian Satyendra Dube to protect whistleblowers and the CVC was made the “designated agency” for its implementation.) He was also told that he was “not a regular CVO” because he was holding additional charge as the CVO and, hence, could not be given protection that is available to other CVOs either.
Kumar approached the Central Administrative Tribunal (CAT) and got the transfer cancelled. Yet, the finance ministry didn’t give him any posting, or salary. The ministry challenged the CAT order in the Delhi High Court where the matter is pending now. Mercifully, the high court directed in February 2009 that Kumar be given his salary, and promotion that would be due in course. So, he now gets salary but has been without a job since January 2008.
When the government introduced the whistleblower bill, making CVC the “competent authority”, in the Lok Sabha on August 26, Kumar had this to say: “If the CVC fails to protect its own arm, the CVO, despite clear guidelines and rules, should CVC be given the task of protecting the whistleblowers? What has the CVC done to protect civil servants who are protecting the exchequer to merit such responsibility?”
Kumar is not the only one questioning the CVC’s credentials or functioning. There are several other whistleblowers who met a similar fate (see the boxes), prompting Lahoti to point out in his letters that every whistleblower who went to the CVC in recent years “came to grief”. These whistleblowers have charged the CVC with not just disclosing their identity—in some cases by directly forwarding their written complaints to those against whom complaints were made—but also that the CVC provided them no protection whatsoever, forcing them to seek help from the courts of law.
A reading of these cases would make it clear that there is no transparency or accountability in the functioning of the CVC, parimarily because it is answerable to none. It has not even prepared its annual reports since 2008. In any case, its annual reports never got attention of Parliament. Arvind Kejriwal, an RTI activist who is a member of the Vigilance Advisory Committee that oversees CVC’s functioning, says “there are no checks and balances” and therefore, no remedy for a series of charges of nepotism made against the top corruption watchdog. “This committee is a farce and hardly ever meets,” he adds.
If all the whistleblowers are forced to approach the court for their protection, there is little justification in making the CVC the “competent authority” in the whistleblower bill.
But these are not the only issues with the CVC. Seeking an overhaul of the anti-corruption mechanism, Kejriwal has written an open letter to the UPA chairperson describing the CVC as “a toothless body; it neither has resources nor powers to investigate and prosecute”.
Consider these facts about CVC:
* It is an advisory/recommending body, whose views are not binding on anyone.
* It is not an investigating agency. It works through the CBI and departmental vigilance officials but has no direct or effective control over any of them. CBI is under the administrative control of DoPT and the vigilance officials that of their respective departments. The only investigation it does on its own is civil works, as in case with the Commonwealth Games, but even here, it can and has only recommend action, not taken any.
* It can’t initiate inquiry against senior bureaucrats (joint secretary or above) for which it needs prior permission of the government, in what is better known as the “single directive”.
* It can’t direct investigation against the political executive.
* It has a staff strength of less than 200 to check corruption in more than 1,500 central government ministries and departments.
* It can’t register an FIR or investigate any criminal case; it deals only with vigilance or disciplinary matters.
“CVC is a mere ornamental body. It can’t even ask the CBI to register an FIR,” comments Vineet Narain, a veteran journalist who exposed the Hawala scam in the 1990s. “The government will never give autonomy to CVC or CBI. I had said it to the Supreme Court then”, he recalls. It was his efforts that led to the historic 1997 apex court judgment that bears his name and courtesy which CVC got statutory status, supervisory power over the CBI and the leader of opposition was made part of the selection process of the central vigilance commissioner.
Former CVC Pratyush Sinha admitted these shortcomings in an interview shortly before he demitted office in August. He and his predecessor P Shankar were part of a deliberation on the subject of “Deficiencies in the present anti-corruption system” at the India International Centre on August 10. It left nothing to imagination when they endorsed the recommendations which, among other things, said the “CVC should be placed under the superintendence of the Lokpal” to look after only the vigilance cases!
Karnataka Lokayukta Justice Santosh Hegde, former CEC J M Lyngdoh and advocate Prashant Bhushan were some of the other members of that panel. Their first two recommendations were: The government should immediately institute a “Lokpal” at the centre and the “Lokayukta” in the states (which don’t have them) with adequate powers to act as “apex, independent and effective” anti-corruption agencies.
If these are not enough, appointment of retired or about-to-retire bureaucrats as CVC has taken away even the pretence of it being a competent or impartial or non-pliable body to fight corruption. P J Thomas, the incumbent CVC, was appointed despite a red flag from leader of the opposition Sushma Swaraj, who is part of the three-member selection committee. Thomas was not only once an accused in a palm oil scam in Kerala, but days before he quit as telecom secretary, he had armed himself with a law ministry opinion that investigation into the 2G spectrum scam was beyond the purview of the CAG and the CBI. (The CBI is currently investigating the scam in which his former boss, telecom minister A Raja, is the prime accused.) What message does his appointment give to the corrupt of the country?
Given all these failings, entrusting CVC with an additional responsibility under the whistleblower bill raises serious doubts about the government’s intention to fight corruption. It must, though, be said that the bill makes a small concession by way of giving CVC powers to impose penalty on officials for not cooperating in investigation or revealing identity of the whistleblower and some power to punish with imprisonment in case of false or frivolous charges or “restoration of status quo ante” if a whistleblower is found to be harassed by way of transfer etc.
But these are of little consequence given the serious flaws in the whistleblower bill itself (See “Whistleblowers bill is self-defeating”). Moreover, these are not the real issues. The real issue is whether the CVC is serving any purpose at all and should we continue with it. If it was meant to be a corruption watchdog, it stopped barking long ago...once the first CVC, N Vittal, demitted office.
The real need is, as Justice Hegde et al proposed, for a Lokpal-like statutory body with “real” powers to investigate and prosecute the corrupt, especially senior bureaucrats and the political executive, because when they are involved the whistleblowers come to grief and the judicial process gets derailed. n
Whistleblowers beware. The government’s here to help!
Governance Now, Sept 16-30
Ronald Reagan was right. The nine most terryfying words in the English
language are indeed, “I’m from the government and I’m here to help”!
Seven years in the making, the whistleblower bill or the ‘Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010’ was finally introduced in Lok Sabha on August 26. This long preparation has been a waste. There are several provisions that defeat the very purpose for which it is being legislated.
These provisions are as follows:
* No action shall be taken if the disclosure is anonymous. (Clause 3(6))
The purpose of the exercise is to get credible information to fight corruption. So what if it is anonymous? In any case, as the very name of the bill suggests, it is about “protection” to the whistleblower, not his identity.
* No complaint can be entertained against any member of the armed forces or anything related to the armed forces, not even when they are involved with “maintenance of public order”. (Clause 3 (1))
This is nothing short of blasphemy, given the growing number of scams involving even generals and brigadiers in land deals, diversion of petrol, diesel and liquor, purchase of arms and ammunitions, uniforms and other equipment in recent years. Incidents of rape of women and killing of innocent civilians in the name of fighting militancy by the men in uniform in Jammu and Kashmir and the Northeastern states are not exactly rare. That is why a debate is on in the country about restricting powers given to the armed forces in troubled areas under the Armed Forces (Special Powers) Act.
* If information is found worthy of investigation, the “competent authority”, that is, central or state vigilance commissioners, would need to take “comments or explanation or report” from the “head of the department (HoD) of the organisation or authority, board or corporation concerned” before proceeding further. (Clause 6(3))
What if the HoD is involved in the wrongdoing, which is often the case? Or his close confidants? Will he cooperate and confirm the charges of corruption? Whistleblowers face threat not because they seek to expose clerks but the high and the mighty. This is an obvious contradiction and will kill the bill, says RTI activist Arvind Kejriwal.
* The identity of a complainant can be disclosed “if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, becomes necessary to reveal the identity of the public servant to the HoD of the organisation or authority, board or corporation concerned or office concerned, the competent authority may reveal the identity…” (Clause 4)
This defeats the whole purpose of the proposed law. There is absolutely no need for the bill as this provision provides sufficient excuse to blow the cover of the whistleblower.
* In the course of inquiry the competent authority, which will have powers of a civil court, can’t force anyone to part with any information or document if it is “likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign state, public order, decency or morally…” (Clause 7(1))
What if the corruption charges are against a person or persons holding such information or documents? Kejriwal wonders if the government’s position is that our national interest is safer in the hand of the crooks. He says there is no such bar on any other court or the information commissioners and there is no reason why that should be the case with the CVC/state vigilance commissioners.
* No complaint can be made “after the expiry of five years from the date on which the action complained against is alleged to have taken place.” (Clause 5)
This will lead to a situation in which the time of the offence will be investigated first and if found to be five years’ old or more, the matter will be dismissed. Are we to understand that corruption too has an
expiry date?
* In case a person is found to have made a disclosure “mala-fidely” he would be punished for up to two years of imprisonment. (Clause 15)
It is not rare for the vigilance or other investigating agency to do a shoddy job. Now that the bill provides for punishment for “mala fide” disclosure, there is an additional reason to do a shoddy job and punish the whistleblower.
* The bill is silent on the private sector.
Are we to understand that there is no corruption in the private sector? Or that corruption in the private sector is none of our business? What about the public-private partnership (PPP) projects that the government is promoting in a big way, not only in the infrastructure sector but also in the social sector?
Ronald Reagan was right. The nine most terryfying words in the English
language are indeed, “I’m from the government and I’m here to help”!
Seven years in the making, the whistleblower bill or the ‘Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010’ was finally introduced in Lok Sabha on August 26. This long preparation has been a waste. There are several provisions that defeat the very purpose for which it is being legislated.
These provisions are as follows:
* No action shall be taken if the disclosure is anonymous. (Clause 3(6))
The purpose of the exercise is to get credible information to fight corruption. So what if it is anonymous? In any case, as the very name of the bill suggests, it is about “protection” to the whistleblower, not his identity.
* No complaint can be entertained against any member of the armed forces or anything related to the armed forces, not even when they are involved with “maintenance of public order”. (Clause 3 (1))
This is nothing short of blasphemy, given the growing number of scams involving even generals and brigadiers in land deals, diversion of petrol, diesel and liquor, purchase of arms and ammunitions, uniforms and other equipment in recent years. Incidents of rape of women and killing of innocent civilians in the name of fighting militancy by the men in uniform in Jammu and Kashmir and the Northeastern states are not exactly rare. That is why a debate is on in the country about restricting powers given to the armed forces in troubled areas under the Armed Forces (Special Powers) Act.
* If information is found worthy of investigation, the “competent authority”, that is, central or state vigilance commissioners, would need to take “comments or explanation or report” from the “head of the department (HoD) of the organisation or authority, board or corporation concerned” before proceeding further. (Clause 6(3))
What if the HoD is involved in the wrongdoing, which is often the case? Or his close confidants? Will he cooperate and confirm the charges of corruption? Whistleblowers face threat not because they seek to expose clerks but the high and the mighty. This is an obvious contradiction and will kill the bill, says RTI activist Arvind Kejriwal.
* The identity of a complainant can be disclosed “if the competent authority is of the opinion that it has, for the purpose of seeking comments or explanation or report from them under sub-section (3) on the public disclosure, becomes necessary to reveal the identity of the public servant to the HoD of the organisation or authority, board or corporation concerned or office concerned, the competent authority may reveal the identity…” (Clause 4)
This defeats the whole purpose of the proposed law. There is absolutely no need for the bill as this provision provides sufficient excuse to blow the cover of the whistleblower.
* In the course of inquiry the competent authority, which will have powers of a civil court, can’t force anyone to part with any information or document if it is “likely to prejudicially affect the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign state, public order, decency or morally…” (Clause 7(1))
What if the corruption charges are against a person or persons holding such information or documents? Kejriwal wonders if the government’s position is that our national interest is safer in the hand of the crooks. He says there is no such bar on any other court or the information commissioners and there is no reason why that should be the case with the CVC/state vigilance commissioners.
* No complaint can be made “after the expiry of five years from the date on which the action complained against is alleged to have taken place.” (Clause 5)
This will lead to a situation in which the time of the offence will be investigated first and if found to be five years’ old or more, the matter will be dismissed. Are we to understand that corruption too has an
expiry date?
* In case a person is found to have made a disclosure “mala-fidely” he would be punished for up to two years of imprisonment. (Clause 15)
It is not rare for the vigilance or other investigating agency to do a shoddy job. Now that the bill provides for punishment for “mala fide” disclosure, there is an additional reason to do a shoddy job and punish the whistleblower.
* The bill is silent on the private sector.
Are we to understand that there is no corruption in the private sector? Or that corruption in the private sector is none of our business? What about the public-private partnership (PPP) projects that the government is promoting in a big way, not only in the infrastructure sector but also in the social sector?
SC directive a green light to violations
Governance Now, Sept 16-30
Approaching it only after all statutory clearances have been given will result in ‘fait accompli’
Chief justice of India S H Kapadia has set a new norm for approaching the ‘green bench’ of the supreme court that he heads. “In short, we want all statutory clearances from statutory authorities in place henceforth. After this only will it (environmental dispute) come to the supreme court. Henceforth this is the norm,” the bench noted.
At first glance, it may seem to be quite logical as the court also explained that this norm is aimed at preventing a situation in which parties obtain an environment clearance from the apex court in the initial stages, later fail to satisfy statutory norms and then start a “second round of litigation”.
But it isn’t really so logical because of the way the ministry of environment and forests (MoEF) functions and grants its clearances. The court’s directive has come in connection with Mayawati’s Noida park memorial. The MoEF has been changing its position before the apex court – saying at times that the project needs no environment impact assessment (EIA) study and at other times, that it does. While the litigation is on, construction of the memorial is complete, save for the final touches. All the trees that needed to be felled, have been felled. The statues have been installed and the damage to the environment (it is next to the Okhla bird sanctuary) already done. For all practical purposes, the memorial is a ‘fait accompli’.
Let us take another example, say the Niyamgiri project of Vedanta which was in news recently and in which Justice Kapadia’s bench played a role – by granting ‘in-principle’ forest clearance on August 8, 2008 for mining the Niyamgiri.
The ministry’s records show this project, which involved a smelting plant in Jharsuguda, a refinery in Lanjigarh and mining of the Niyamgiri, got a series of clearances at different points of time, starting from September 2004 to December 2008. The only one pending was that of the ‘final’ forest clearance, which the MoEF denied last month.
Let us say, Vedanta moves the apex court now, as indeed it might. The ground reality today is this: The smelting plant started its operation in 2008. The refinery started operation in 2007. Expansion of the refinery is 60 percent complete. A conveyor belt to the mining site is partially built. So is the case with a ‘mining access road’. All these violate environment, forest and tribal laws. What can the apex court do now? Can it undo the smelting plant, the refinery or the expansion of the refinery?
As MoEF confesses now, it gave environment clearance to the refinery in 2004 which was not only based on a faulty EIA study but on an EIA which was different from the one on the basis of which the public hearing was conducted! And that this involved forest land for which no clearance was sought or given. The plant became operational in 2007. Can the supreme court undo the damage?
There were similar charges with the smelting plant also, which was given clearance in 2007 and became operational in 2008. In the case of French company Lafarge’s mining of the Khasi hills in Meghalaya for limestone, the mining started in 2006 after MoEF gave all clearances. Violations were “detected” only
after that. The supreme court ordered a stay in February this year. What can it do
beyond compounding the offence by way of compensatory afforestation and other
financial burden for local development? Sooner than later, it will have to lift its stay.
The real problem lies with the MoEF’s faulty policy of granting environment and forest clearances, which are not only given separately but also in various stages involving a time span of several years. In the meanwhile, the projects are allowed to proceed and by the time final clearance comes, the projects are already a ‘fait accompli’.
When the laws are followed mostly in their breach, Justice Kapadia’s new norm is an open invitation to indulge in more of the same. What will happen when challenging a project in the initial stage is denied? Won’t it encourage violations?
The solution might lie in replacing piecemeal clearances with time-bound, one-shot clearances. But there is neither political nor corporate motivation for such a change in policy. As long as the government keeps giving clearances in fits and starts it does seem like unsound logic to insist that justice is available only once.
Approaching it only after all statutory clearances have been given will result in ‘fait accompli’
Chief justice of India S H Kapadia has set a new norm for approaching the ‘green bench’ of the supreme court that he heads. “In short, we want all statutory clearances from statutory authorities in place henceforth. After this only will it (environmental dispute) come to the supreme court. Henceforth this is the norm,” the bench noted.
At first glance, it may seem to be quite logical as the court also explained that this norm is aimed at preventing a situation in which parties obtain an environment clearance from the apex court in the initial stages, later fail to satisfy statutory norms and then start a “second round of litigation”.
But it isn’t really so logical because of the way the ministry of environment and forests (MoEF) functions and grants its clearances. The court’s directive has come in connection with Mayawati’s Noida park memorial. The MoEF has been changing its position before the apex court – saying at times that the project needs no environment impact assessment (EIA) study and at other times, that it does. While the litigation is on, construction of the memorial is complete, save for the final touches. All the trees that needed to be felled, have been felled. The statues have been installed and the damage to the environment (it is next to the Okhla bird sanctuary) already done. For all practical purposes, the memorial is a ‘fait accompli’.
Let us take another example, say the Niyamgiri project of Vedanta which was in news recently and in which Justice Kapadia’s bench played a role – by granting ‘in-principle’ forest clearance on August 8, 2008 for mining the Niyamgiri.
The ministry’s records show this project, which involved a smelting plant in Jharsuguda, a refinery in Lanjigarh and mining of the Niyamgiri, got a series of clearances at different points of time, starting from September 2004 to December 2008. The only one pending was that of the ‘final’ forest clearance, which the MoEF denied last month.
Let us say, Vedanta moves the apex court now, as indeed it might. The ground reality today is this: The smelting plant started its operation in 2008. The refinery started operation in 2007. Expansion of the refinery is 60 percent complete. A conveyor belt to the mining site is partially built. So is the case with a ‘mining access road’. All these violate environment, forest and tribal laws. What can the apex court do now? Can it undo the smelting plant, the refinery or the expansion of the refinery?
As MoEF confesses now, it gave environment clearance to the refinery in 2004 which was not only based on a faulty EIA study but on an EIA which was different from the one on the basis of which the public hearing was conducted! And that this involved forest land for which no clearance was sought or given. The plant became operational in 2007. Can the supreme court undo the damage?
There were similar charges with the smelting plant also, which was given clearance in 2007 and became operational in 2008. In the case of French company Lafarge’s mining of the Khasi hills in Meghalaya for limestone, the mining started in 2006 after MoEF gave all clearances. Violations were “detected” only
after that. The supreme court ordered a stay in February this year. What can it do
beyond compounding the offence by way of compensatory afforestation and other
financial burden for local development? Sooner than later, it will have to lift its stay.
The real problem lies with the MoEF’s faulty policy of granting environment and forest clearances, which are not only given separately but also in various stages involving a time span of several years. In the meanwhile, the projects are allowed to proceed and by the time final clearance comes, the projects are already a ‘fait accompli’.
When the laws are followed mostly in their breach, Justice Kapadia’s new norm is an open invitation to indulge in more of the same. What will happen when challenging a project in the initial stage is denied? Won’t it encourage violations?
The solution might lie in replacing piecemeal clearances with time-bound, one-shot clearances. But there is neither political nor corporate motivation for such a change in policy. As long as the government keeps giving clearances in fits and starts it does seem like unsound logic to insist that justice is available only once.
Supreme nonsense
Governance Now, Sept 16-30
The Centre’s Ayodhya nervousness is way beyond comprehension
All this fuss over the Ayodhya verdict would suggest that there is a real threat to peace and communal amity in the country or that there is a real possibility of an out-of-court settlement to the six-decade-long dispute. By the time you read this, the verdict would probably be out and we would have known how badly that impacted us or helped in finding a solution. But for now, it seems the government and the court are over-reacting to a future event that may turn out to be nothing more than another milestone in the history of the dispute.
True, we are not privy to any “intelligence input” to assert one way or the other about the possible fallout of the verdict but there is not even a faint hint that something like this exists to warrant some extraordinary preventive measures that the government has taken, like banning bulk SMS and MMS services in the entire country and flag marches by the security forces in Ayodhya and elsewhere. The central government sent 52 companies of paramilitary forces to UP and stationed hundreds more at strategic locations in various states a week ahead of September 24, the day on which the Allahabad high court was to pronounce its verdict.
The supreme court stepped in where no intervention was required. The Allahabad high court was set to deliver its verdict after rejecting an appeal to defer it on the ground that one more chance be given for an out-of-court settlement. Justice RV Ravindran of the two-member apex court bench that heard a similar plea and stayed the Allahabad high court verdict in an interim order, was right in his observation that “let the verdict come; one way or the other.….the matter will come up before us (the supreme court)”. But a stay had to be granted as per the convention because the other judge in the bench, Justice HL Gokhale, differed and supported the plea for out-of-court settlement. Interestingly, this plea had not come from the main parties to the dispute. On the contrary, the main parties and the political forces behind the festering trouble were keen on the verdict. A stay has only deferred
the already delayed verdict.
As for the government, it seems it wants us to believe that indeed riots would break out in the city of Ayodhya and elsewhere if the verdict is given or that would be the normal way for us to react whether or not we have moved far away from the
volatile days of late ’80s and early ’90s.
The Centre’s Ayodhya nervousness is way beyond comprehension
All this fuss over the Ayodhya verdict would suggest that there is a real threat to peace and communal amity in the country or that there is a real possibility of an out-of-court settlement to the six-decade-long dispute. By the time you read this, the verdict would probably be out and we would have known how badly that impacted us or helped in finding a solution. But for now, it seems the government and the court are over-reacting to a future event that may turn out to be nothing more than another milestone in the history of the dispute.
True, we are not privy to any “intelligence input” to assert one way or the other about the possible fallout of the verdict but there is not even a faint hint that something like this exists to warrant some extraordinary preventive measures that the government has taken, like banning bulk SMS and MMS services in the entire country and flag marches by the security forces in Ayodhya and elsewhere. The central government sent 52 companies of paramilitary forces to UP and stationed hundreds more at strategic locations in various states a week ahead of September 24, the day on which the Allahabad high court was to pronounce its verdict.
The supreme court stepped in where no intervention was required. The Allahabad high court was set to deliver its verdict after rejecting an appeal to defer it on the ground that one more chance be given for an out-of-court settlement. Justice RV Ravindran of the two-member apex court bench that heard a similar plea and stayed the Allahabad high court verdict in an interim order, was right in his observation that “let the verdict come; one way or the other.….the matter will come up before us (the supreme court)”. But a stay had to be granted as per the convention because the other judge in the bench, Justice HL Gokhale, differed and supported the plea for out-of-court settlement. Interestingly, this plea had not come from the main parties to the dispute. On the contrary, the main parties and the political forces behind the festering trouble were keen on the verdict. A stay has only deferred
the already delayed verdict.
As for the government, it seems it wants us to believe that indeed riots would break out in the city of Ayodhya and elsewhere if the verdict is given or that would be the normal way for us to react whether or not we have moved far away from the
volatile days of late ’80s and early ’90s.
Monday, September 20, 2010
Sins of commission
Edit, Governance Now, Sept 16-30
Central vigilance commissioner’s appointment betrays government’s lack of interest in fighting corruption
This is a stain on the dignity of the CVC’s office which should be occupied by an officer with an unblemished record,” remarked Sushma Swaraj, leader of opposition in Lok Sabha, after registering her protest with president Pratibha Patil against the appointment of PJ Thomas as the central vigilance commissioner (CVC). It was too late by then as hours earlier Thomas had been sworn in to the office. But this aptly sums up the mood.
It was a historic moment in 1997 when the Supreme Court directed the government to involve the leader of opposition in selecting the CVC. The objective was to insulate the organisation (and hence the CBI over which it was given supervisory powers) at a time when the hawala scam rocked the nation. In the Vineet Narain case, the court had laid down the procedure: “Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the cabinet secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee.” This then found its way to the CVC Act of 2003.
The spirit of this judgment was undermined when the prime minister and the home minister shot down Swaraj’s objections to Thomas’ candidature. They also ignored her plea that she was agreeable to any of the other two in the panel of candidates. This raises an interesting debate over whether the three-member selection committee’s “recommendation” has to be taken to mean “consensus” or a “majority decision”. Vineet Narain, the man behind the landmark 1997 judgment, is right in pointing out that if the “recommendation” were to mean “majority decision”, there is no relevance of the leader of opposition in the committee. After all, the prime minister and the home minister can decide for themselves and save the leader of opposition from an embarrassing situation.
Swaraj’s objection was about suitability of Thomas’ candidature. The apex court was specific that the CVC be selected from among “outstanding civil servants and others with impeccable integrity”. He may have been honourably exonerated but there is no denying that Thomas was investigated for his role in the palm oil scam of Kerala some years back. More damagingly, it has now come to notice that as the telecom secretary he had sought the law ministry’s opinion on whether the Comptroller and Auditor General of India (CAG) can audit 2G spectrum scam, in which his minister A Raja is the prime suspect, on the ground that it was a policy formulation. The law ministry responded saying that 2G spectrum scam was not only beyond the jurisdiction of the CAG but also that of the CVC as it was indeed a policy matter. In such a situation it is natural to suspect that Thomas, who took charge as telecom secretary after the scam surfaced, was doing a cover-up job for his minister. Since Thomas’ predecessor Pratyush Sinha had referred the case to the CBI last year, it is no surprise that Swaraj’s party has raised a red flag saying he would, as the CVC, scuttle the CBI investigation.
Propriety and norms of good governance would suggest that the prime minister should have addressed these concerns before appointing Thomas. He didn’t.
This development is all the more worrisome because the CVC’s reputation as the apex body to fight corruption in the country is at an all-time low. Barring the expose on the Commonwealth Games contracts, it has done precious little in the past few years to inspire confidence. Hence the inevitable conclusions that it is time to revisit not only the selection mechanism of the CVC but also the relevance of CVC, given its status as an “advisory” body which can’t even register an FIR by itself.
But more important than that is the sincerity of the government to fight corruption. The way the Manmohan Singh government has tried to bulldoze corruption charges in the 2G spectrum scam, and now brazen its way through in the appointment of Thomas, probably a fresh round of public upraor against this traditional trait of the Congress governments is what can make a difference. But are we ready for that? That is a million dollar question we need to ask.
Central vigilance commissioner’s appointment betrays government’s lack of interest in fighting corruption
This is a stain on the dignity of the CVC’s office which should be occupied by an officer with an unblemished record,” remarked Sushma Swaraj, leader of opposition in Lok Sabha, after registering her protest with president Pratibha Patil against the appointment of PJ Thomas as the central vigilance commissioner (CVC). It was too late by then as hours earlier Thomas had been sworn in to the office. But this aptly sums up the mood.
It was a historic moment in 1997 when the Supreme Court directed the government to involve the leader of opposition in selecting the CVC. The objective was to insulate the organisation (and hence the CBI over which it was given supervisory powers) at a time when the hawala scam rocked the nation. In the Vineet Narain case, the court had laid down the procedure: “Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity to be furnished by the cabinet secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee.” This then found its way to the CVC Act of 2003.
The spirit of this judgment was undermined when the prime minister and the home minister shot down Swaraj’s objections to Thomas’ candidature. They also ignored her plea that she was agreeable to any of the other two in the panel of candidates. This raises an interesting debate over whether the three-member selection committee’s “recommendation” has to be taken to mean “consensus” or a “majority decision”. Vineet Narain, the man behind the landmark 1997 judgment, is right in pointing out that if the “recommendation” were to mean “majority decision”, there is no relevance of the leader of opposition in the committee. After all, the prime minister and the home minister can decide for themselves and save the leader of opposition from an embarrassing situation.
Swaraj’s objection was about suitability of Thomas’ candidature. The apex court was specific that the CVC be selected from among “outstanding civil servants and others with impeccable integrity”. He may have been honourably exonerated but there is no denying that Thomas was investigated for his role in the palm oil scam of Kerala some years back. More damagingly, it has now come to notice that as the telecom secretary he had sought the law ministry’s opinion on whether the Comptroller and Auditor General of India (CAG) can audit 2G spectrum scam, in which his minister A Raja is the prime suspect, on the ground that it was a policy formulation. The law ministry responded saying that 2G spectrum scam was not only beyond the jurisdiction of the CAG but also that of the CVC as it was indeed a policy matter. In such a situation it is natural to suspect that Thomas, who took charge as telecom secretary after the scam surfaced, was doing a cover-up job for his minister. Since Thomas’ predecessor Pratyush Sinha had referred the case to the CBI last year, it is no surprise that Swaraj’s party has raised a red flag saying he would, as the CVC, scuttle the CBI investigation.
Propriety and norms of good governance would suggest that the prime minister should have addressed these concerns before appointing Thomas. He didn’t.
This development is all the more worrisome because the CVC’s reputation as the apex body to fight corruption in the country is at an all-time low. Barring the expose on the Commonwealth Games contracts, it has done precious little in the past few years to inspire confidence. Hence the inevitable conclusions that it is time to revisit not only the selection mechanism of the CVC but also the relevance of CVC, given its status as an “advisory” body which can’t even register an FIR by itself.
But more important than that is the sincerity of the government to fight corruption. The way the Manmohan Singh government has tried to bulldoze corruption charges in the 2G spectrum scam, and now brazen its way through in the appointment of Thomas, probably a fresh round of public upraor against this traditional trait of the Congress governments is what can make a difference. But are we ready for that? That is a million dollar question we need to ask.
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