Doing it Right: Development model for Naxal-hit areas

The root cause of Maoist problem has been identified. But how do you address it?

There is a broad agreement on either side of the Maoist divide that the “root cause” of the trouble in the tribal heartland is lack of development. But for Mani Shankar Aiyar, who talks about implementing the Panchayats (Extension to the Schedule Areas) Act of 1996 (PESA), the development model being pursued in those areas continues to be more of the same--something that has only aggravated the situation as is evident in the rapid spread of the Maoist-held territory.

Just how flawed our development model for the tribal areas have been is evident from a letter that the Prime Minister’s Office (PMO) wrote to the Environment and Forests Minister Jairam Ramesh recently asking him to relax the “no-go” areas for coal mining. The letter went on to suggest that this was necessary for the "development" of the no-go areas as absence of such "development", meaning mining, would invite the Maoists! Mining remains one of the key factors for displacement and exploitation of the tribals, turning the tribal heartland into a breeding ground of the ultras. But it is shocking how this simple truth has escaped the PMO.

As for what should be the right model of development in the tribal areas we really don't need to look far. Over the years we have found the right solutions but don't implement them. That is our problem. Let me explain.

Few realize that the Fifth Schedule of the constitution (under which nine states have declared tribal dominated areas as “schedule areas” and six of which are Maoist-affected) gives a protective shield for the tribals by way of the Governor. The Governor can stop operation of any law or modify it before being applied in the "schedule areas" if he thinks that would adversely impact the tribals. No Governor has used this privilege ever. Had they, some of the laws like the Forest Conservation Act of 1980, which made tribals encroachers of their homes in forests, would have never come to force in the scheduled areas! That would have saved millions of tribals from eviction and harassment at the hand of the forest officials and the trouble of having to struggle for the Forest Rights Act of 2006. And also, at least Gadchiroli of Maharashtra could have been saved from falling into the Maoist hands.

Who knows, gad the Governors been alive to their responsibility the fate of the Godavarman case of 1996, in which the Supreme Court widened the definition of the forest to include even the dictionary meaning of it and thus aggravating the tribals' woes, could have been different. Now, Law Minister Veerappa Moily blames this judgment for spreading the Maoist net (“unrealistic judicial activism on the part of the judges is one of the main reasons for increased Naxalism in the country”, he has been telling the newspapers).

Similarly, there are a few other laws that need to be implemented, like the PESA and the Forest Rights Act of 2006, to grant the tribals their rights over the minor forest produce, which excludes timber but includes everything else—bamboo, tendu leaves, chironji, amla, mahua, honey and so on. These forest produce sustain them for better part of the year. The laws provide that the tribals are the owners of the minor forest produce. But not a single state government has so far given that right to the tribals. They merely get wages to pluck tendu leaves, for example, which is theirs. The bamboos too are their property but the paper mills of the country are the ones who get the leases. This is not surprising since, as the Planning Commission has now pointed out, these minor forest produces are worth Rs 50,000 crore! Imagine what such a sum will do to the tribals life if they get what is rightfully theirs.

Bastar fell to the Maoists in 80s because they demanded better price for tendu leaves on behalf of the tribals. Ironically, when in 2005, the Maoists organized a strike and prevented the trade in the tendu leaves, ostensibly to extract a better price, it sparked anti-Maoist Salwa Judum movement in the region.

PESA goes much beyond this. It gives the tribals the right over their land (including the right to identify and restore land alienation), minor minerals, right to protect their environment, decide development work in their area and protect their way of life, including traditional judicial system. This is a part of the autonomy and local self-governance that was envisaged in the 73rd and 74th constitutional amendments.

Laws also provide that the tribals are consulted for all mining and industrialization activities in their areas before land is acquired and environment clearance is given. But this is not so in practice. In the case of the Vedanta’s bauxite project in Orissa’s Niyamgiri hills, the Dongaria Kondhs, a primitive tribe that would be directly affected, were not told about the project or the findings of the the Environment Impact Assessment (EIA) studies. Most of the tribals did not know the impact nor the purpose of the meeting that forwarded their consent for the project and land acquisition.

Similarly, in the case of POSCO's steel plant project in Orissa, the district officials merely constituted “forest committees” and passed on the proceedings as an agreement by the villagers to land acquisition. Based on that, the MoEF gave final clearance to the project (regarding diversion of 1253 hectares of forest land) in December 2009. It was only in May 2010 that the truth was discovered when someone read the state government’s reports in Oriya. The MoEF put its clearance on hold, stating that certain conditions like “consent” of the tribals were needed.

There is a well-known apex court judgment, known as the Samtha Case of 1997, which said in the scheduled areas mining can be done only by a “state instrumentality” or the “tribal cooperatives” to ensure that the tribals are not exploited by the private companies. Andhra and Orissa governments circumvent this by granting mining leases to the APMC and OMDC, their mining corporations which then either sub-lease or form joint ventures with private corporates who actually carry out the operations. This is true of the proposed mining of the Niyamgiri and several others in Andhra Pradesh.

Illegal mining is another area of concern. All the mining scams to have hit the headlines recently--be it the Reddy brothers of Bellary, the Orissa mining scam or the Madhu Khoda mining scam--show the extent of the malaise to be very widespread. There is no scope for rehabilitation or compensation for the tribals in such cases. Our Environment and Forests Minister is reduced to issuing appeals to the Chief Ministers to stop illegal mining. But this is easier said than done.

Apart from implementing the law of the land, the government can make a few changes in the existing law.

The most important one of these is to amend the antiquated Land Acquisition Act of 1894, which doesn’t recognize the right to be compensated or rehabilitated or be consulted before land is acquired. According to a 2008 report by the Rural Development Ministry, 40 million people have lost their land since 1950 “on account of displacement due to large development projects”, of which 40 percent of them are tribals who still “await compensation and rehabilitation”.

Sometimes, land acquired for public purpose is misused. For example, parts of land acquired for the Sardar Sarovar Project at Kevadia in central Gujarat was sought to be given to private corporate bodies to develop 5-star hotels and golf courses a few years ago. The Kevadia villagers who lost their land are still fighting a legal battle for their rehabilitation, for which they are not even considered eligible. Finally, it was a public outcry which stopped the state government from going ahead with the plan. The Forest Rights Act provides for "consent" of the tribals before their land can be acquired but this is bypassed and the Land Acquisition Act is brought into force for the purpose. This is a gross violation of law and has to be stopped.

A National Rehabilitation and Resettlement Policy was adopted in 2007 with a view to provide for a greater say of the people whose land is being acquired. But it is yet to be given the legal teeth. But before that some changes are required. These include, providing that the land can be acquired “rarely” and after “full justification” for the project; replacing “consultation” with people losing their land with their “consent”; providing land and job to the people losing their land, instead of using vague words like “if land is available” and “as far as possible” etc; lowering limits for applicability of the policy only if a project entails 400 people in plains and 200 families in hilly terrain and ensuring that the land acquired can’t be used for purpose other than “public purpose”.

Making the tribals partners in development is an idea whose time has come. A beginning has been made by proposing a 26 percent share to such people in the new Mining and Minerals (Development and Regulations) Bill of 2010. Haryana adopted a land acquisition policy in 2007 that provides for an annual income of Rs 15,000 for the next 33 years “over and above the usual land compensation”. These elements can be easily incorporated in other sectors and elsewhere in the country. Such a change would make tribals less hostile to development projects.

The tribals can also be made partners in development by promoting their cooperatives as the Samatha judgement proposed.

The MoEF may add its bit by discarding its bizarre policy of granting “in principle” clearance to mining and other projects that require forest land, before a “final clearance” is given. The gap between the two clearance sometime takes years and provides a window for misuse as those having the "in principle" clearance then proceed to build their industrial units and start mining. There have been several instances when the MoEF officials themselves have asked the state governments to allow such activities while the "final clearance" is pending. Recently, the Jindal Power Limited was stopped mid-way from constructing a 2400 MW poweer plant in Chhattisgarh after an environment activists blew the whistled. It was then discovered that not only did the company not have environment clearance, it didn't even had got the land lease! But mostly, such things are never detected or stopped and then the projects are handed out as “fair accompli” when legality of such projects are challenged in the court of law.

The simple thing to do is to stop giving "in principle" clearance. The clearance has to be given only once and after the procedural requirements--like environment impact assessment, consent of the affected tribals, completion of rehabilitation and resettlement, forest clearance etc-- are completed!

While giving clearance, nobody bothers to find out how a project will affect the community which is being uprooted from its natural habitation like the tribals. Especially, how will affect their social life as their life style and survival is dependent on the environment. Thus, a social impact assessment should be made mandatory before clearing any project.

It makes immense sense to take a holistic view of the project in the tribal areas, that dramatically changes the environment and life, to ensure that the damage to the environment and people are minimum and find ways and means to minimise the impact.

Land reform is another long pending issue that needs attention. Its importance can never be over-stated. If West Bengal remained free of the Maoists until now in spite of the fact that the Naxalbari uprising happened there way back in 1969, the credit goes to the subsequent land reforms. And the first demand of the Maoists when they held peace talks with the Andhra Pradesh government in 2004, was distribution of surplus land to the landless and tribals.

It was land grabbing that sparked the Telangana revolt of 1945-51, the first Maoist revolutionary action. It returned to Andhra in the form of the People’s War Group in 80s because of the same reason. The case is no different in many of the tribal districts of Orissa.

The last but not the least, the government must review all the secret MoUs that have been signed by the governments of Chhattisgarh, Orissa and Jharkhand in the past few years. Last counted, Orissa had signed 44 and Chhattisgarh 115 MoUs since 2002. Not for nothing that the Red Corridor is also the MoU Corridor of India.

A largesse too late: Cong washes its Bhopal guilt with Rs 1500 cr

governancenow.com June 22, 2010

26 years after the disaster, the government sees it fit to hand out Rs 10 lakh to the kin of those who died


The Bhopal package announced by the group of ministers (GoM) is a welcome step in the sense that it will provide some financial help to the victims, who, by some estimate, received a measly sum of Rs 12,410 each as compensation for the biggest industrial disaster that struck the country in 1984.

Beyond that it is no more than a knee-jerk reaction aimed at containing the sense of outrage that sweeps across the country. Had that not been the caser, the GoM would have focused on the core issues--rehabilitation of the victims and fixing responsibility for the disaster--which go completely unaddressed.

For example, 26 years after the tragedy, we have no idea how many people died or were disabled, either permanently or partially, because of the gas leak. The Madhya Pradesh government’s website still carries the official figure of those died at 3,787. Unofficial estimates vary from 15,000 to 25,000 deaths. The GoM, on its part, has arrived at a figure of 15,342 deaths, but on what basis is anybody’s guess. Same goes for those who were permanently or partially disabled. How will anyone ensure that the victims actually benefit from the compensation in absence of even a survey?

The GoM has announced Rs 10 lakh for the dead, Rs 5 lakh for the permanently disabled and Rs 3 lakh for the partially disabled. Can the money alone restore their lifestyle and their ability to lead a healthy life? Shouldn't the government even think of rehabilitating the victims who were not only denied justice for 26 years, but were left to fend for themselves?

Don’t forget, when that the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) fought a bitter fight between 2004 and 2008 for additional compensation from the central government—as the Supreme Court had given them this right to recourse in its 1991 judgment—the central government dismissed it both before the Supreme Court and before the Office of the Welfare Commissioner of Bhopal. Why this change of heart now if not to deflect the ire increasingly aimed at a departed leader held dear by the present government?

The second key element of the package is to seek extradition of Warren Anderson, the then chairman of the Union Carbide Corporation, the US-based parent company. Given the long history of complicity of the political bosses and the bureaucrats in first facilitating a “free passage” and then not seeking his extradition, it sounds hollow and rather pompous for the GoM to make such a recommendation at the first place—26 years after the sin was committed.

If the GoM is serious about fixing responsibility, it should have asked the Dow Chemicals, which took over the Union Carbide, to pay for cleaning the toxic materials still lying in the pesticide plant in Bhopal. The GoM is silent on this. Instead, it is talking about setting aside Rs 300 crore for the job and floating tender for the purpose. Has any government, be it at the centre or the state, bothered to even assess the extent of damage the toxic material has caused in all these years? No. “It is a joke. Let them first assess the magnitude of the problem”, comments of ND Jayprakash of the BGPSSS.

It is alright to talk of filing a curative petition to challenge dilution of the charges against the Union Carbide executives but is it going to be of any use now? It was way back in 1996 that the then Chief Justice of India A.H. Ahmadi had not only diluted the charges to a mere road accident, he had even dismissed a review petition subsequently. If the first round of conviction took 26 years, imagine the time it will take for the curative petition to bear fruit, assuming that it does reinstate the “culpable homicide not amounting murder” charge. One of the eight convicts is already dead. And we are not even talking about 89-year-old Anderson who may not ever be extradited after such a delay.

Recall how the Supreme Court had dismissed civil and criminal liability of the Union Carbide in 1989 and how top most lawyers of the country defended the Union Carbide in courts in India and abroad. Also the role played by several ministers, some of whom are members of this GoM, and lawyers from both the ruling and the opposition parties, in trying to absolve the Dow Chemicals from its liability to clean up the Bhopal plant. Can this GoM or the central government or the judiciary be trusted to fix liability and bring justice to the victims? The history of the past 26 years tells us clearly they can't stand up to a multinational. The GoM doesn't even pretend to be doing so.

As far as the GoM’s recommendation about upgrading the Bhopal Memorial Trust Hospital goes, for which Rs 230 crore is proposed to be set aside and its management would be taken over by the government, one hopes the government is serious. Not only has this hospital, which is meant exclusively for the gas victims, turned into a private one under the very nose of the same Justice A. H. Ahmadi as its chairman, it has a long record of dismissing gas victims disdainfully and prescribing medicines which don’t have anything at all to do with their problems.

Ram rattles BJP

governancenow.com, June 16, 2010

Legislators locked up to uphold his glory

Ram Jethmalani’s candidature has so rattled the Bharatiya Janata Party that the party with a difference has holed up all its 79 legislators in Rajasthan in a five-star hotel on the outskirts of Jaipur—a practice so far reserved only for making or breaking a governments and not for winning a Rajya Sabha seat as is the case now. Worse, the party has the required numbers to ensure victory for its two candidates—Ram Jethmalani and V.P. Singh. It needs 80 first preferential votes in a house of 200, after the CPM declared to absent from voting, and it has 79 members of its own. Its ally, the JD(U), brings in another member.

It should have been a smooth affair but it isn’t because two key players in the state are not in the best of their moods. Vasundhara Raje is upset for being unceremoniously ousted as the Leader of Opposition by former president Rajnath Singh in spite of being the preferred choice. The post remains unoccupied to date—Ghanshyam Tiwari is only an “acting” Leader of Opposition.

The second key player is state president Arun Chaturvedi, who was himself an aspirant for the Rajya Sabha. Three of the last four party presidents-- Om Prakash, Ram Dass Agarwal and Lalit Chaturvedi--were rewarded with Rajya Sabha seats. He was been denied the honour after the Gujarat strongman, Narendra Modi, sprang a surprise and imposed Jethmalani’s candidature.

The trouble was compounded when industrialist and Congress leader Santosh Bagrodia jumped into the fray as an independent with the backing of his party. The official candidates remain Ashk Ali Tak and Anand Sharma. The Congress has 33 extra first preferential votes—over 80 needed to elect Tak and Sharma—and thus, Bagrodia needs 7 more to get elected. That worried the BJP so much that former president Venkaiah Naidu air-dashed to Jaipur to lock-in the party legislators in a hotel.

Arun Chaturvedi has an interesting explanation though. He says the state is witnessing a voting for Rajya Sabha for the first time in 20 years or more—all candidates got elected “unopposed” since late 1980s-- and that there are many legislators who are not aware of the voting system. “There are technical issues that need to be explained to the legislators”, he says.

He may say what he will and there may not be any surprises in the voting which is scheduled for tomorrow, it cannot be denied that the Rajasthan unit of BJP is a state of disarray, requiring immediate attention.

Bhopal’s Hall of Shame:The power people who let down gas victims

governancenow.com, June 12, 2010


Top-notch politicians, judges, lawyers and bureaucrats conspired to deny justice to the Bhopal victims
The 1984 gas leak from the Union Carbide’s Bhopal plant killed at least 15,000 people and grievously injured over 500,000 others. Here is a list of people who played key role in the denial of justice to the victims:

Warren Anderson: The then chairman of the parent company in US, the Union Carbide Corporation, who was arrested on December 7, 1984 in Bhopal and then given a bail on the condition that he will stand trial in India but never returned. Remains a fugitive till today.

Arjun Singh: The then chief minister of Madhya Pradesh who ordered that Anderson be released and flown to New Delhi by the state plane. He is yet to come clean on why and on whose orders he released Anderson.

Rajiv Gandhi: Prime Minister and Foreign Minister at the time. His role is under cloud after it was revealed that Arjun Singh had ordered Anderson’s release after getting a call from someone.

M.K. Rasgotra: The then foreign secretary had assured a safe passage for Anderson and the ministry of external affairs arranged for his release and escape to the US. This has been disclosed by the then deputy chief of the mission of the US embassy in India Gordon Streeb told NDTV in an interview on June 17, 2010.

G. Parthasarathy, the then joint secretary and spokesman in Rajiv Gandhi's PMO told the Hindu in an interview on June 17, 2010, that the "ministry of external affairs, in consultation with the PMO" had assured a "safe passage" to Anderson even before he landed in India. Arun Nehru, a minister in Rajiv Gandhi's government told CNN-IBN in an interview on June 14, 2010 that Anderson met the then president Giani Zail Singh and the then home minister PV Narasimha Rao in New Delhi before flying out to the US.

Justice A. H. Ahmadi: The then CJI who, in 1996, diluted the charges against the Union Carbide executives from “culpable homicide not amounting to murder”, that attracts 10 years of imprisonment to “causing death by negligence” that entailed two years of imprisonment.

Justice R.S. Pathak: The Chief Justice of India, who, heading a five-member bench, in 1989, facilitated the compensation settlement for $ 470 million that the Union Carbide had offered (it was the company’s insurance sum with interest), as against $ 3.3 billion that the Government of India had demanded (as representative of the gas victims). He also quashed all criminal proceedings against the Union Carbide. The settlement was described as "just, equitable and reasonable" in the judgement.

He was rewarded with a plum posting at the International Court of Justice in the Hague.

Justice ES Venkataramiah: The CJI in 1989, who was member of the same Supreme Court bench headed by Justice Pathak that approved the settlement in 1989—dropping all criminal liability of the Union Carbide for agreeing to pay $470 million of insurance sum as compensation!

Justice Ranganath Mishra: The CJI between 1990 and 1991, who too was part of the same Supreme Court bench of 1989 headed by Justice Pathak.

Justice M.N. Venkatachalliah: The CJI between 1993 and 94 who was a member of the same Supreme Court bench of 1989 headed by Justice Pathak.

Justice N.D. Ojha: Former Chief Justice of Madhya Pradesh HC in 1987 and the only member of the Justice Pathak bench who did not rise to become the CJI.

Nani Palkhivala: The last word on Indian constitution, who fought the case for the Union Carbide in the US court and demolished American legal experts who pleaded that the victims of Bhopal were more likely to get justice in the stricter American courts. That was in 1985. A year earlier, he had told the Time magazine that the Union Carbide case in India will drag to the next century.

Fali S Nariman: Distinguished constitutional jurist who defended the Union Carbide Corporation in the Supreme Court and played a major role in the infamous 1989 judgment--settlement of claims ($ 470 million as the compensation) and "consequential termaination of civil and criminal proceedings".

Soli Sorabjee: Former Attorney-General of India who advised the NDA government in 2001 against seeking Anderson’s extradition. The government ignored him and proceeded in 2003, but the US government rejected it for lack of evidence.

Central Bureau of Investigation: The premier investigating agency which did not seek Anderson’s extradition until 2003. A former joint director B R Lal, who handled investigation between 1994 and 1995, has revealed that the ministry for external affairs, had asked CBI not to pursue Anderson.

A.N Verma: Cabinet secretary in February 1995, when at a high-level meeting it was decided that in view of Indo-US relations it would not be advisable to press for Anderson’s extradition. Others who attended and were a party to the decision--chemicals and petroleum secretary K.K. Mathur; secretary (finance) K Srinivasan, home secretary K Padmanabhaiah, secretary, legal affairs, P C Rao, and the then CBI director, K Vijayramarao.

Those who wouldn’t let the Dow Chemicals, which acquired the Union Carbide in 2001, to clean up the Bhopal plant which still holds tonnes of toxic materials which have seeped through to contaminate ground water and the environment, as a recent official study established. This contamination is making more people sick every day. The ministry of chemicals and fertilisers had wanted the Dow Chemicals to clean up the plant.

Ratan Tata: Widely respected industrialist, who, in November 2006, in his capacity as chairman of the National Investment Commission and also as the chairman of the Tata Sons Limited, was against the ministry's move. He wrote to the then finance minister P Chidambaram proposing, instead, to set up a fund or trust to clean up the Bhopal plant with contribution from public and private sectors.

P Chidambaram: Through the RTI it has now come to notice that the then Finance Minister wrote to the PM, in the wake of his visit to attend Indo-US CEO Forum in New York, that Ratan Tata’s offer to clean up the Bhopal plant be accepted. He now heads a GoM constituted to look afresh into the Bhopal case after the court verdict sparked country-wide outrage.

Kamal Nath: The then minister for commerce too had lobbied with the Prime Minister’s Office in 2006 not to press the Dow Chemicals to clean up the Bhopal plant in the interest of investment that the multinational will bring to the country.

Montek Singh Ahluwalia: As deputy chairman of Planning Commission, he also supported Ratan Tata.

Abhishek Manu Singhvi: Congress spokesman and lawyer who advised the Dow Chemicals in 2006 that it was not liable for contamination spread by the toxic material still stored in the Bhopal’s pesticide plant as it acquired the Union Carbide after the 1984 gas leak. The Dow Chemicals took over the Union Carbide plant in 2001.

Arun Jaitley: Leader of Opposition in Rajya Sabha and lawyer who too advised in 2006 that the Dow Chemicals was not liable for contamination of the Bhopal plant or its cleaning.

Those eight who were convicted for two years’ sentence for their role in running the Union Carbide’s Bhopal plant in 1984 (except one who is dead, others were immediately released on bail):

Keshub Mahindra: chairman

Vijay Gokhle: Managing Director

Kishore Kamdar: Vice-President

J Mukund: Works Manager

R.B.Roy Chowdhury: Asstt. Works Manager

S.P.Choudhury: Production Manager

K V Shetty: Plant Superintendent

Shakeel Qureshi: Production Assistant

Will the Nuke Bill sell us cheaper than Bhopal?

Governancenow.com, June 08 2010
Day's Debate

Much is being made out of $ 470 million that the Union Carbide paid as compensation for the Bhopal gas tragedy of 1984 that killed at least 15,000 people and caused grievous injury to over 500,000 others. It is being pointed out that this compensation amount means a paltry sum of Rs 12,410 to each victim.

But that was in 1999, when the compensation amount was decided in an out-of-court settlement. At the current exchange rate (Rs 46.90 to an US dollar), $ 470 million would mean a cool Rs 2,206 crore—that is a hell of a lot more (more than four times actually) than what our government has fixed in the case of a nuclear disaster.

That’s right. The Civil Liability for Nuclear Damage Bill of 2010, which the Manmohan Singh government surreptitiously introduced in Lok Sabha on the last day of the last budget session, fixes the maximum amount of liability for the operator of a nuclear plant in case of a disaster at Rs.500 crore!
If the successive state and central governments failed the victims of the Bhopal gas tragedy and sold them cheap, our present government intends to sell us even cheaper in the case of a nuclear disaster.

Shouldn’t Law Minister Veerappa Moily be focusing on ridiculously low amount of liability fixed in the nuke bill, rather than going around giving sound bytes to television channels how justice was “buried” in the Bhopal case?

What do we do when the three pillars of governance conspire against us?

Governancenow.com, June 9, 2010

We must answer that to prevent the tragedy of the Bhopal verdict

Former chief justice of India A H Ahmadi made an interesting observation while defending his decision to dilute charges against Union Carbide executives in the Bhopal gas tragedy case. He said: “There is no concept of vicarious liability. If my driver is driving and meets with a fatal accident, I don’t become liable to be prosecuted under 304-II (of IPC)”. That’s highly debatable but that makes Warren Anderson (the then chairman of Union Carbide Corporation of the US, the parent company of the Bhopal-based pesticide plant) the owner of the car and the eight who were tried and sentenced to a mere two years of imprisonment by a Bhopal trial court the actual drivers! They were the ones running the pesticide plant in Bhopal—its chairman, director, vice-president, works manager, assistant works manager, production manager, plant superintendent and production assistant. They were directly liable for the disaster by Justice Ahmadi’s logic! But he diluted the charges against all of them making them liable only for negligence that would entail jail of only two years. So Justice Ahmadi is defeated by his own usound logic.

The former CJI was bold enough to make two other comments to PTI in the same interview (June 8, 2010) worthy of notice. He said “(more) compensation could have been granted” and that “it was unfortunate that Anderson was allowed to go in the first place because he was the principal offender and unless the principal offender is there the subsidiary offender might say that if he can go scot-free, why do you want to punish us?”

Note the contradiction in Justice Ahmadi’s description of Anderson, ruling out his “vicarious liability” at one point and then holding him “the principal offender” at another in the same interview. But that is not our point. The point is who let Anderson go? All that is known so far is that the then chief minister of Madhya Pradesh, Arjun Singh, received a call and ordered that Anderson, who was in police custody in Bhopal, be freed and flown to New Delhi on his way to the US. Who ordered him to free Anderson?

Arjun Singh has refused to speak and so we would probably not know. As for the compensation, we know that the Supreme Court brokered a settlement with the Union Carbide and accepted $470 million that the company was offering as against $3.3 billion that the government of India, representing the Bhopal victims, had demanded. This meant a paltry Rs 12,410 for each of the victims. We don’t know why the agreement was arrived at the lowest end of the bargain.

The Indian government had also gone to a US district court to determine the parent company’s liability in the case but it was dismissed after our legal legend, late Nani Palkhivala, argued convincingly on behalf of Union Carbide that the Indian judicial system was capable of handling the Bhopal case. Now we know better.

We also know that the district administration and other government officials who were responsible for giving the clearance to set up the pesticide plant which was using highly toxic methyl-isocyanate (MIC) gas and those who failed to monitor and ensure that all safety measures were in place, especially after the earlier incidents of toxic gas leakages, were not booked or prosecuted.

So, effectively, nobody is really held responsible or made accountable, at least not by any substantive way for the world’s biggest industrial disaster that claimed about 15,000 lives and grievously injured several lakh others. Now our law minister M Veerappa Moily says lessons have been learnt and a new law will be made to deal with such disasters.

The real issue, however, is not that our government has woken up to the fact that we need a legal framework to tackle disasters of the Bhopal kind. That could have been done very easily at any point in all these 26 years by simply adding a section to the Indian Penal Code to distinguish the Bhopal disaster from a road accident that it eventually became and prescribing a stiffer punishment. That’s all.

The real issue here is how do you deal with a situation where all the three pillars of our governance—the executive, the legislature and the judiciary—fail or conspire against the citizen? That is the question we need to ask. The founders of the constitution created the three pillars to counter-balance each other. Not to stand against the citizen.

Tribals as partners in development

Governance Now, June 1-15


A bill proposes 26 percent shareholding for tribals in companies getting mining leases in their area

While the anti-Maoist security drive is making big news, a development initiative is underway quietly, without much public debate and away from the media glare--an initiative that may go a long way in addressing the development concerns of the tribals and help in weaning them away from the ultras. This comes in the form of a legislative move which seeks to actually make them stakeholders in the mining activities – a major source of unrest in the tribal heartland of the country. A draft Mines and Minerals (Development and Regulation) Bill 2010 which is meant to replace the existing law of 1957 has been put in the public domain to invite comments.

There are five key elements in this draft bill. The most significant among them is to provide a 26 percent partnership in the company to people living in an area over which a mining lease is granted. The second element is to give the local inhabitants a say before a prospecting licence or a mining lease is granted and before their land is acquired for the purpose. The third makes room for setting up a tribal cooperative for the purpose of granting such leases and giving preference to it for granting mining concessions.

The fourth element relates to the setting up of a National Mining Tribunal to adjudicate disputes arising out of any mining lease and related activities and the fifth one puts restrictions on the companies getting the lease to sub-lease it further to trigger a chain reaction at the end of which the company that actually finances, controls and excavates the mines is a complete outsider to the process of granting the lease.

While the fourth and the fifth elements are important for the role they would play in the whole scheme of things, it is the first three which will, if the bill becomes a law, mark a paradigm shift in the way mining operations are carried out. It also address some of the concerns that have caused distress, displacement and exploitation of the tribals – pushing them to seek shelter in the Maoist rebels.
As far as providing stake-holding goes, clause 43(2) of the draft says that the holder of a mining lease “shall in respect of a person or persons holding occupation or usufruct or traditional rights of the surface of the land over which the lease has been granted be liable to allot free shares equal to 26 percent in the company through the promoter’s quota in case the holder of the lease is a company, or, an annuity equal to 26 percent of the profit after tax in case of lease is a person, on account of annual compensation.”

This is a kind of move for which there has been a consistent demand from civil society groups which have argued that the tribals never benefit from the development activities in their areas and due to which they are dispossessed of their land and livelihood and that they either get little or too little compensation. These voices had entered the realm of policy-making way back in 1995 when the Dilip Singh Bhuria committee recommended such a measure and the National Commission for the Scheduled Tribes endorsed it saying that in all industrial enterprises set up in the Scheduled Areas (other than small ventures) the community should be deemed to be the owner with 50 percent shares in its favour by virtue of its allowing the industry to use local resources and get established. But nobody paid any attention to the proposal and it never figured in any legislation.

Even the Supreme Court had advocated a direct and regular share of the benefit for the project affected people in the Samatha vs State of Andhra Pradesh case of 1997. A three-member bench had said that “at least 20 percent of the net profits should be set apart as a permanent fund as a part of industrial/business activity for establishment and maintenance of water resources, schools, hospitals, sanitation and transport facilities by laying roads etc.”

As far as the next element, that is, providing an active role to the tribals living in the Fifth Schedule (tribal-dominated areas declared as “Scheduled Areas” by the states) and the Sixth Schedule (tribal land of the Northeast) in deciding mining activities is concerned, it is a direct take-off from the Panchayats (Extension to the Scheduled Areas) Act of 1996 (PESA).

Clause 13 (5) of the draft bill says before a prospecting licence is granted, the state, among other things, “shall obtain all necessary permissions from the owners of the land and those having occupation rights.” Clause 13 (11) adds that “notwithstanding anything contained in this section, notification of an area for inviting applications in respect of public lands in areas covered by Fifth and Sixth Schedule shall be issued after consultation with the gram sabha or district councils as the case may be…” (a gram sabha is the basic unit in the Fifth Schedule areas and so is a district council in the Sixth Schedule areas.)

While clause 13(5) is self-explanatory, the key phrase in clause 13(11) is “after consultation”, which civil society groups would like to be replaced by “after consent” of the gram sabhas so that the people living in a proposed mining area play a crucial role in the decision-making process. The PESA already provides overriding powers to the gram sabhas in the Scheduled Areas to decide everything linked to them and their environment – which includes deciding what development activities can take place in their areas and whether any land can be acquired or a mining lease can be given.

In fact, B D Sharma, former SC/ST commissioner who has been working for the welfare of tribals for close to four decades, has consistently pleaded for honouring the constitutional obligations towards the tribal communities and providing them a complete autonomy in deciding what development they want for themselves, instead of imposing it from outside. The intent of the Fifth Schedule and the purpose of the PESA are precisely this but neither the centre nor the state governments is implementing them for the obvious reasons.

Land alienation by way of awarding mining leases in the tribal area has exercised the Supreme Court too. In the Samatha case, for example, the apex court dealt with it in a great detail and observed: “The object of Fifth and Sixth Schedules to the constitution, as seen earlier, is not only to prevent acquisition, holding or disposal of the land in Scheduled Areas by the non-tribals from the tribals or alienation of such land among non-tribals inter se but also to ensure that the tribals remain in possession and enjoyment of the lands in Scheduled Ares for their economic empowerment, social status and dignity of their person.”

But there is no escaping the mining, and the consequent displacement of the tribals, because of the windfall profit that it brings. Karnataka Lokayukta and former Supreme Court judge Santosh Hegde provided a glimpse of it in his report on the mining scene in the state in 2008. He pointed out that while the cost of production of iron ore came to a mere Rs 150 a tonne, it fetched a whopping export price of Rs 6,000 to Rs 7,000 to the mining companies between 2004 and 2006! But the government did not benefit from it. In fact, the Karnataka government earned a paltry sum of Rs 16 to Rs 27 a tonne (depending on quality of ore) by way of royalty. It was the allegation of complicity of government officials and large-scale illegal mining that prompted the state in the first place to ask Hegde to inquire into the matter. Post-inquiry, the state raised the royalty to a maximum of Rs 200 a tonne.

Now, how can the natural resources found in the tribal areas be utilised for the common good? With a two-to-one majority, the Supreme Court had ruled in the Samatha case that only the “government instrumentalities” and the tribal cooperatives be given the mining lease. (As far as mining minor minerals go, PESA makes the gram sabha’s “recommendation” mandatory.) The present draft bill makes talks about the latter, the tribal cooperatives, by providing that in the Fifth and Sixth Schedule Areas “the state government may allocate such mines to local Scheduled Tribes as a cooperative through framing of regulations” and “give preference to local cooperative for the grant of concession” (Clause 6(6)).

At a two-day brainstorming session on the draft bill in New Delhi in May, civil society activists were reasonably happy with its framework. Ritwick Dutta, a prominent environment lawyer, commented: “On the face of it, a bulk of the bill is positive. There are some areas of concerns though, like the provision for awarding a maximum of 100 square km of lease for both the major and minor minerals. No single lease should be so large because it will completely take away the rights (of people living in the area) and the forest areas. A very negative step. The maximum area should not exceed 20 square km. The other area of concern is waving off “mining plan” for the minor minerals. If the maximum mining area that can be allowed in this case is also 100 square km, why not make mining plan mandatory?”

What bothers the civil society activists like Dutta most, however, is if the mighty mining lobby will allow the bill to be passed unchanged, particularly the provision about the stake-holding.

As far as rest of the draft bill goes, there are provisions for setting up a National Mining Tribunal and certain safeguards to prevent what is known as “raising contract”–-transferring the lease to somebody else.

Dealing with the issue of the transfer of lease, clause 18 says, among other things, that the lease holder “shall not, without the previous approval in writing of the state government…enter into or make any arrangement, contract or understanding whereby the lessee will or may be directly or indirectly financed to a substantial extent by, or under which the lessee’s operations or undertakings will or may be substantially controlled by, any person or body of persons other than the lessee”.
It may restrict “raising contract” only to the extent of prior approval, but this may be considered reasonable for now.

Should the bill get enacted, it would be the UPA’s second big move after the Forest Rights Act, which provides for tribals’ right over forest, to address the tribals’ concerns.

Theatre of the absurd

Governance Now, June 1-15

Rather ironically, Shibu Soren symbolises everything that has gone wrong in Jharkhand in 10 years of its existence


Jharkhand has slipped into yet another political crisis of a very familiar kind and for a very familiar reason: one man’s obsession to remain the chief minister, whatever be the cost to the people of the state. By the time you read this, the fate of the man and his government would have been decided but the political instability that has gripped the state is unlikely to end anytime soon, not with the kind of opportunism that marks the politics here. It is rather ironic that someone who symbolises the aspirations of the tribals of Chhotanagpur and Santhal Pargana and their success in getting a homeland of their own should also symbolise everything that has gone wrong since then. But then, that is Shibu Soren for you. Soren burst into the national limelight with the JMM bribery scam in 1993 and has done nothing since then to wipe that stain. No such allegations were made this time but by voting in favour of the Congress during the cut motion in parliament in April, while running his government in Ranchi with the BJP support, he has only added to his list of dubious deeds.

Soren’s obsession with the office of the chief minister began in 2005 when, though he didn’t have the numbers, he managed an invitation from the governor to form the government. It lasted for 10 days. When he got the next opportunity, he pulled the rug from under the Madhu Koda government and became the chief minister in 2008 for less than five months as he lost a by-election he need to win to continue in office. The latest was his third attempt and will end on a sour note – even if he were to muster the numbers he needs to get elected to the assembly by the end of June, which is now out of question.

But why blame him alone? The fractured mandate in successive assembly elections has led to all kinds of unholy tie-ups and horse-trading. So much so that the second-longest-serving chief minister (nearly two years), Madhu Koda, was an independent legislator who, with the help of just two other independents, pulled down Arjun Munda’s government in 2006. Munda had replaced the longest-serving and the first chief minister, Babulal Marandi, who remained in office for just over two years and fell victim to the BJP’s internal squabbling. No wonder, the state has had seven chief ministers in 10 years of its existence. As for governance, that has long been forgotten in the theatre of the absurd that is on display in Ranchi quite frequently.