44 Displacement in the Name of development: Impact on Environment and Livelihood Bineet Kedia, Lecturer- in- Law, Law College Durgapur, Rajbandh, Durgapur, West Bengal. ABSTRACT Development and displacement are interlinked with each others. Whenever there is development it induces displace. Development is necessary and inevitable for the prosperity of human beings. Development per se does not have any adverse impact on human being and environment, however in certain cases when there is forced displacement of the people without looking to the interest of the stakeholders it results in violation of human rights and also have an adverse impact on environment. The aim this paper is to analyze the various policies undertaken by the state to motivate the foreign investors in establishing industries in India and improve the economic development of the country and the affect of such policies on the environment and livelihood of people. Keywords Development, Land, Displacement, Human Rights, Environment. INTRODUCTION Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. 1 The doctrine of Eminent Domain empowered the king to take the property of his subjects. With the wearing away of the monarchy system, the doctrine requires two qualifications to be satisfied by the state before acquiring any property of the people: 1. The property should be acquired for the benefit of the public only, and 2. Adequate compensation should be paid for the property proposed to be acquired. With the pass of time, this monarchial system was replaced by the republic. Under this system, state assumed the power of acquisition of property under the principle of trusteeship. This principle asserts that the state is the trustee of the property and can acquire it when needed for 1 John Rawls, A Theory of Justice, Harvard University Press, USA, 1971, pp.3 the welfare and development of the society. 2 This principle also accepted by the apex court of India in the case of M.C.Mehta v. Kamal Nath and Others. 3 The aim and objective of this paper is to analyze the SEZ law in India and examine how far this law is in compatible with human rights and environmental issues. DEVELOPMENT AND DISPLACEMENT: LEGAL FRAMEWORK For a country to become more powerful and modern state, it is necessary that it concentrate on industrialization. But in the process of industrialization and development, the state forgets the consequence of such development which the people of the country has to face, i.e., displacement which usually results in landlessness, homelessness, marginalization, psychological trauma, loss of access to common property etc. a study of all World Bank-assisted development projects conducted in the year of 1994 shows that from 1986-1993 out of the total number of people displaced more than half of the people were displaced due to development process, such as transportation, urban infrastructure etc. These development programmes are likely to increase all over the world and resulting in involuntary population displacement. This portion of the paper primarily seeks to discuss some important policy incorporated by the Indian government under SEZ law in India. SPECIAL ECONOMIC ZONE (SEZ) Special Economic Zone is geographical regions that have more liberal economic laws as compared to the centralized laws of the country. SEZ concept itself gives the SEZ definition. The very purpose of a SEZ is to develop the area covered under the special economic zone by the following special economic policies. 4 2 Sharad Kulkarni, Comments on the Rehabilitation and Resettlement Bill, 2007, Paper for the Centre for Environment and Development, (Feb. 1, 2008), pp. 1. 3 (1997) 1 SCC 388. 4 Available at http://www.indiahousing.com/sez-specialeconomic-zones-india.html, last accessed on 15 th of September, 2010.
45 A. SEZ IN INDIA India was one of the first Asian countries who have recognized the effectiveness of the Export Processing Zone (EPZ), which was modeled in promoting exports. The Export Processing Zone (EPZ) was suffering from many shortcomings, such as problem of multiplicity of controls and clearance; there was no world class infrastructure etc. Thus in order to overcome such shortcomings and attract mass foreign investment in the country, the Special Economic Zones (EPZs) policy was announced in the year of 2000. The Special Economic Zone Act was passed by the parliament in the year of 2005 and come into effect on 10 th of February, 2006. The main objectives of the Special Economic Zone Act are: i. to attract industries and promote the domestic and foreign investment; ii. to minimize poverty by generating more economic activity and create employment opportunity; iii. to promote the export of goods and services; iv. to develop the infrastructure facilities, etc. According to Commerce Ministry and SEZ authority SEZs may be developed and managed in the private sector solely or it can be done by the joint effort of state government and a private agency or exclusively by the State Government or their agencies. 5 Any person who interested in setting up a unit for the purpose of operating in a SEZ will have to submit a proposal to the development commissioner of that SEZ. Development commissioner shall submit the application to the Approval Committee and the Approval Committee may, either approve the proposal without modification, or approve the proposal with modification. However, it is required that the modification suggested by Approval Committee will have to be within the purview of Special Economic Zone Act, 2005. 6 To attract the investor to the zone, the Indian government has offered numbers of financial incentives and concession, such as no excise duty, no export and import duties, no central or state sales tax, etc. The firms under the Special Economic Zone Act, 2005 are also exempted from income tax for the period of fifteen years. B. SEZ IN CHINA For the development of the country it is necessary that the state encourage the foreign investment. Today, China is the number one country whole over the world in relation to attracting foreign investment within the country. Success of the SEZs in China can be considered as one of 5 Ram Krishna Ranjan, Special Economic Zones: Are They Good for the Country?, CCS Working Paper No. 156, Centre for Civil Society, Summer Research Internship Program, 2006, p. 12; available at www.ccs.in, last accessed on 1 st of September, 2010. 6 Ibid. p. 14. the foremost reason for such amount of foreign investment in China. The first group of SEZ in China was set up in the year of 1980. The important features of SEZ in China are their large size of SEZs, flexible labour law, attractive tax incentives, delegation of power to provincial and local authorities regarding the acceptance of foreign investment etc. India, in spite of the first Asian country to create Export Processing Zone (EPZ) has failed to attract the foreign investment. The failure of the Export Processing Zone (EPZ) was due to the inherent problem attached with it, such as problem of multiplicity of controls and clearance; there was no world class infrastructure etc. SEZ law in India has raised a hope for the increase of foreign investment in India and thus, increase in economic condition. According to the FDI report, the performance of SEZs in India is too bad as compared to SEZs in China. 7 Indian SEZs has not succeeded to attract foreign investment as it was aimed while making the SEZ law in our country. This section seeks to compare between SEZ in India and in China on the basis of size of the SEZ in the country, incentive offered, labour law and role of local bodies in SEZ. C. A COMPARISON BETWEEN SEZ IN CHINA AND INDIA Indian government adopted the SEZ law in India after going through the success of China due to its SEZ. Since, the SEZ law is adopted after experience from the China; there is little similarity between the SEZ laws of two countries: 1. The objective behind the establishment of SEZ is same, i.e, to attract foreign investment and create more and more employment opportunity. 2. Both countries are providing various tax incentive packages for attracting industries, companies etc. In spite of such similarities, India is not able to get such success as the China has. There reason behind such difference can be found only after comparing between the two, which has been done below under different heading: 1. Size and infrastructure It has been said that one of the reason behind the success of SEZ in China is its size. The SEZ in China is more or less like a township. Table below shows the size of the SEZ in China. 8 Size of SEZ in China SEZ Area (in sq. KM) 1) Shenzhen 327 2) Zhuhai 121 3) Xiamen 131 4) Hainan 34000 5) Shantou 234 7 Ibid, pp. 26. 8 Ibid. pp. 27.
46 Indian SEZs, as compared to China, is very small, but according to the SEZ guideline, the area of SEZ in India should be 1000 hectares. Many economists have argued that size of SEZ in country matters and bigger the size more the advancement of the economy scale. But contrary to this argument, the best performance of SEZ in India is the SEZ in Mumbai which is set up in the area of 93 acres only. One of the reasons for the small size of SEZ in India is that SEZ has not been extended to the whole country. The Indian government has started the SEZ in pilot basis and can extend to whole country if it work as a tool for developing the economic condition of India and able to provide more and more job opportunity. For this it is necessary that the SEZ in India is established in disturbance free environment, which has now become a dream for India. The experience which the India has gained through SEZ in West Bengal and many other states is quite extreme and unforgettable. The performance of SEZ is also dependent on the inner infrastructure which as compared to China is too bad. 2. Tax incentives In order to attract the foreign investor the China SEZs has provided some attractive tax incentive package. According to Chinese SEZ the companies are not required to pay any income tax for the period of first two years. During the third and the fourth year they have to pay fifty percentage of the normal rate. However, from the fifth year the companies are required to pay the full tax in normal tax rate. In India, companies established under SEZ are exempted from any income tax for the period of fifteen years. This policy may be helpful in attracting more and more investor, but in the same hand, initially there will be lots of reduction in the resources which the Indian government gets through the tax. 3. Labour law The labour law in China has been relaxed by the government for the purpose of SEZ. Under their modified labour law, the investors have been given the power to hire and fire the workmen. However, later on, this hire and fire policy has been replaced by the contract system. The labour law in India is too rigid. No special preference has been given to the employer under SEZ. According to Section 25K 9 and 25N 10 of chapter VB of the Industrial 9 Article 25K(1) of the Industrial Dispute Act, 1947 states: The provisions of this Chapter shall apply to an industrial establishment(not being an establishment of a seasonal character or in which work is performed only intermittently)in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. 10 Article 25N (1) of the Industrial Dispute Act, 1947 states: No workman employed in any industrial Dispute Act, 1947, the industry which is employing not less that hundred workmen, shall not retrench any workman without giving a prior three months notice and taking the permission of the appropriate government. Thus, rigid legislation is one of the important which is restricting the industries to generate more and more employment. In most of the establishment it has been seen that where permanent employees are required, the people are allotted part time job only. Thus, for the purpose of attracting industries it is necessary that the labour law is made little flexible, especially in the case of SEZ. 4. Role of local authorities One of the significant features of the Chinese SEZ is the active role played by the local authorities with regard to SEZ. The Chinese law has empowered the local authorities to approve foreign proposal till the amount of $30 million. The Indian local system empowers the state government to set up a SEZ, but they are barred from approving any foreign proposal. The power of approving the foreign proposal is vested with the development commissioner who acts as a representative of the central government. The Indian Constitution speaks of the decentralization of power, but in practice it is seen that the power is still acquired by the central government only. For the purpose of boosting up of SEZ it is necessary that the state government and the other local bodies play an active role in the regulation of SEZ and should be empowered to approve the foreign proposal. However, the central government may by law restrict the limitation to which the local bodies are allowed to approve, as done in the Chinese INTERFACE BETWEEN DEVELOPMENT, DISPLACEMENT AND HUMAN RIGHTS: NEED FOR RECONCILIATION It has been already discussed that the Land Acquisition Act empowers the Indian government to acquire land for the public purpose by mere payment of monetary compensation. These involuntary displacements has affected the people in many ways, such as loss of employment, environment degradation etc. and thus requires the attention of the legislature that mere monetary compensation is not going to solve the problem. There is a establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until, (a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and (b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official.
47 requirement of rehabilitation and resettlement provisions in the Act. This part is focusing on some of the human rights issues which is associate with the displacement and are not been considered by the Indian government. FORCED DISPLACEMENT AND THE ASSOCIATED RISK In India there has been large number of protest rising against the compulsory acquisition of land by the government or its agencies, for example acquisition of land for the manufacture of Tata Nano in Singur, land acquisition for developing SEZ in Nandigram etc. In most of the case it has been seen that it is the agricultural land which is acquired by the government/government agency. Thus the main reason for protest against the compulsory land acquisition is the forced acquisition of this agricultural land, for which the protestor thinks that they have not been properly paid. Some of the potential risks which are associated with the forced displacement are: 1. Landlessness: It is the agricultural land which is mostly acquired by the appropriate government/ government agencies. Thus with the forced displacement the people may lose the land which was his sole mode of livelihood. 2. Homelessness: The losses of the shelter in some cases are temporary, as they may be resettled in some other place. But it not true with all the affected persons and most of them are forced to remain homeless for the large period of time. The bill which contains the resettlement and rehabilitation provisions for the forced displaced persons is still pending before the Indian Parliament and still requires sanction for its implementation. 3. Joblessness: The service which the native people had in any enterprise or other place is lost. But this loss of job can be replaced by the opportunity of work which the native people will get after the establishment of the industry. After all one of the objective of adopting SEZ in India is that it creates job opportunity. But the burgadar who was attached with a particular agricultural land may not be replaced, as they may be equipped with particular kind of work only. 4. Loss of access to Common Property: The common property such as wells, gazing lands which is attached with the acquired land is also lost. Other risks which are inherent in displacement are food insecurity, moralization, loss of schooling of the children etc. DISPLACEMENT AND HUMAN RIGHTS The center of problem is that in the case of displacement due to development there are some basic human rights which the displaced people sacrifice and are completely ignored by the government. In such case, the public interest outweighs the interest of the displaced persons. Some of the inherent human rights which are generally seen violated in the case of involuntary displacement are: 1. Right to participation: The Indigenous and Tribal Peoples Convention, 1989 11 states that indigenous people shall have right to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them. Article 25 of the International Convention on Civil and Political Rights makes it clear that every affected person, through its representative, have the right to participate in the process of decision making which shall directly or indirectly affect their interest. In India, in most of the cases, it the indigenous people who are displaced and they are not given the opportunity to participate in the decision making process which directly or indirectly affects their interests. 2. Right to life: Every human being has the inherent right to life. 12 When any person is forcibly displaced from his land, it creates a thread to their life and personal liberty. 3. Right to livelihood: Everyone has the right to work and to protection against unemployment. 13 It is the duty of the State to recognize the right to work and to take appropriate steps to protect them. 14 In most of the cases, the Indian government is targeting the agricultural land and the owner of such agricultural land is displaced. Thus with the right to life, right to livelihood is also ignored. DEVELOPMENT AND DISPLACEMENT RELATED STRESS ON ENVIRONMENT Development and displacement are interlinked with each others. Whenever there is development it induces displace. Development is necessary and inevitable for the prosperity of human beings. Development per se does not have any adverse impact on human being and environment, however in certain cases displacement caused due to such development results in violation of human rights and adverse impact on environment. The relation between the displacement and the human rights are already been discussed in the previous chapter. This chapter seeks to find the relation between the displacement and its impact 11 Article 7 of The Indigenous and Tribal Peoples Convention, 1989. 12 Article 6(1) of the International Convention on Civil and Political Rigths. 13 Article 23 of The Universal Declaration of Human Rights. 14 Article 6 of The International Convention on Economic, Social and Cultural Rights.
48 on environment and will also discuss some provision mentions under the Special Economic Zone Act with regard to the promotion and the protection of the environment. DEVELOPMENT INDUCED DISPLACEMENT AND ITS IMPACT ON ENVIRONMENT The Land Acquisition Act, 1894 empower the Indian government to acquire land for public purpose. The definition of the term public purpose is inclusive in nature and includes work done for the development of the country. In most of the cases it has been seen that it is the agricultural land which has been acquired by the government. 15 The Land Acquisition Act does make any provision for the rehabilitation and the resettlement of the people affect due to such land acquisition. The result of such lacuna is that large numbers of farmers are displaced from their land and the property once at a time. This results in urbanization and deforestation. The reason and the impact of urbanization have been discussed below in detail: 1. Urbanization: Most of the affected people who have been displaced once at a time do not have any means of resettlement. The consequence of this is that most of them rush towards the urban area. Most of the urban cities are already overcrowded and these act of people of rush toward the urban area works as a boost to the problem. Due to this overpopulation the problem of water and the proper sanitation can be seen. There is lots of garbage collected at a place and the municipality does have any proper place to dispatch it. The lands which were used for the purpose of dispatching the garbage are now occupied by the people who are displaced by the government in the name of development. This results in the degradation of air, water and soil and thus, degrading the environment. 2. Deforestation: The mass displacement at a time also results in deforestation. These displaced people, for the purpose of rehabilitation and resettlement, moves towards the forest and clear trees and plants for domestic use. This result in replacement of forest land into non-forest land. The natural forest is one of the important sources of absorption of carbon dioxide. Thus, the destruction of the natural forest results in the reduction of one of the source which absorb carbon dioxide. When the destruction of forest is done through fire, it adds 15 For example see the land acquired by the West Bengal Government in Singur and Nandigram. a fuel to the creation of carbon dioxide. 16 Most of the forest which are been cleared by the human beings are rich in verity of plants, animals and insect species. Thus, with the destructions of forests we are also destroying the raw materials which that forests caries and it also tends to bring an irreversible impact on environment and biodiversity. Moreover, these species are also been used for the creation of invaluable medicines which are used to cure the human beings. Thus, destruction of forest also increases the risk of spreading infectious virus. 17 SPECIAL ECONOMIC ZONE AND THE ENVIRONMENT The SEZ law in India provides lots of incentive packages so as to attract the foreign investment. The environmental law which is applicable to all industries in India are not applicable to the units established under the SEZ Act. The SEZ Act carries its own provision regarding the preservation of environment, such as: 1. The environmental impact analysis which is done under the Environment (Protection) Act is not applied to SEZ units. 2. The power to issue consent and objection letters is vested with the Development Commissioner and not with the Pollution Control Board. However, the Development Commissioner is required to consult with the State Pollution Control Board before issuing the letter. 3. The units which are classified as non-polluting industries; do not require any consent letter from the Development Commissioner for its establishment. 4. The units are required to submit a report regarding their compliance with the environmental standard. 5. The Development Commissioner shall appoint an officer to survey that the units are maintaining the environmental standard or not. 6. The units are free to follow their own methods of maintaining the environment. 18 The power to issue clearance letter is vested with the development commissioner, so that he does not take much time to issue clearance letter and the unit is established as soon as possible. But with this movement we forget that for the purpose of development we are disregarding its bad impact on environment. Development Commissioner is an 16 Roy, Sumit, Development, Environment and Poverty: Some Issues for Discussion, Economic and Political Weekly, Vol. 31, No. 4 (Jan. 27, 1996), pp. PE29-PE41. 17 Ibid. 18 Ramachandra Bhatta, SEZs and the Environment, Economic and Political Weekly, Vol. 38, No. 20 (May 17-23, 2003), pp. 1928-1930, pp.1930.
49 administrative person without any knowledge of environmental aspect. Liberalizing the environmental law for the units in SEZ will ultimately leads to the destruction of the environment and nothing else. CONCLUSION The compulsory land acquisition by the state/state agencies are causing problems to the people and violating their human rights, such as right to participation 19, right to life 20, right to livelihood 21 etc. It is also, to some extent, responsible for urbanization, deforestation and environment degradation. SEZ law is also not taking the environmental issues seriously and providing lots of power to the Development Commissioner. 22 While referring to the state power to acquire land for the purpose of development, it is necessary to know the actual meaning of the term development. It is needed to differentiate between the economic development and the overall development. If a society wants a true development, it is necessary that one should not be made to suffer for the economic benefits of others. After going through the above studies following suggestion can be made: 1. Rights of the stake holder other than the owner should also be recognized. 2. Giving monetary compensation is not enough. Provision should be made for long term income also. 3. The land owner is not given the opportunity to participate in the decision making process. It is necessary that a person should be able to participate in decision making process, either in person or through its representatives. 4. Provision should be made for rehabilitation and resettlement of the affected persons. 5. The power to issue clearance letter to the units under SEZ should be vested to the Pollution Control Board and not to the Development Commissioner. ARTICLES [1] Dhru, Kelly, Displacement Due To Land Acquisition For Development Projects In India: The Problems With The Existing Legislation And Policy, Research Foundation for Governance in India, 2008. [2] Jayal, Niraja Gopal, Displaced Persons and Discourse of Rights, Economic and Political Weekly, Vol. 33, No. 5 (Jan. 31 - Feb. 6, 1998), pp. PE30- PE36. [3] Kulkarni, Sharad, Comments on the Rehabilitation and Resettlement Bill, 2007, Paper for the Centre for Environment and Development, (Feb. 1, 2008). [4] Mukherji, Rahul, Special Economic Zone in India: Recent Developments and Future Prospects, Paper for the Institute of South Asian Studies, National University of Singapore, (30 De. 2007). [5] Ramachandra Bhatta, SEZs and the Environment, Economic and Political Weekly, Vol. 38, No. 20 (May 17-23, 2003), pp. 1928-1930. [6] Ranjan, Ram Krishna, Special Economic Zones: Are They Good for the Country?, CCS Working Paper No. 156, Centre for Civil Society, Summer Research Internship Program, 2006. [7] Roy, Sumit, Development, Environment and Poverty: Some Issues for Discussion, Economic and Political Weekly, Vol. 31, No. 4 (Jan. 27, 1996), pp. PE29-PE41. [8] Stavropoulou, Maria, Displacement and Human Rights: Reflections on UN Practice, Human Rights Quarterly, Vol. 20, No. 3 (Aug., 1998), pp. 515-554. WEBSITES 1. http://www.indiahousing.com/sez-specialeconomic-zones-india.html 2. www.ccs.in BIBLIOGRAPHY BOOKS [1] Palit, Amitendu, Subhomoy Bhattacharjee, Special Economic Zones in India: Myths and Realities, Anthem Press, 2008. [2] Rao, Sanjeeva, Law of Land Acquisition and Compensation, New Delhi, Butterworths, 2001. [3] Rawls, John, A Theory of Justice, Harvard University Press, USA, 1971. 19 Supra note 12. 20 Supra note 13. 21 Supra note 14. 22 Supra note 19.