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  • Author: Vimal Kalavadiya, Vinod Patgar, Vijay Rathod, Mahabaleshwar Hegde, Manju Menon, Krithika A. Dinesh, Hasmukh Dhumadiya, Bharat Patel, Tania Devaiah, Jayendrasinh Ker, Harapriya Nayak, Santosh Dora, Vimal Kalavadiya, Sandeep Patel, Debayan Gupta, Bipasha Paul, Kanchi Kohli
  • Publication Date: 12-2019
  • Content Type: Special Report
  • Institution: Centre for Policy Research, India
  • Abstract: The Centre for Policy Research-Namati Environmental Justice Program trains and supports a network of community paralegals or grassroots legal advocates who work with communities affected by pollution, water contamination and other environmental challenges. They use the legal empowerment approach to make communities aware of laws and regulations that can help secure much needed remedies for these problems that often arise out of noncompliance or violation of environmental regulations. As part of their work, the community paralegals write about their cases to create public awareness on the use of law outside of courts as well as engage the readers in these issues. This is an updated collection of published stories written by paralegals and their team members working in coastal Gujarat, Northern Karnataka, Chhattisgarh and Keonjhar, Odisha. These are a combination of case stories and opinion pieces on issues of industrial non-compliance that have adversely affected many local communities. Each article tries to highlight the gap between the law on paper and its implementation in reality, while putting forth the conviction that putting law in the hands of ordinary people can shift the balance of power in support of justice.
  • Topic: Civil Society, Environment, Law, Justice
  • Political Geography: South Asia, India, Asia
  • Publication Date: 12-2019
  • Content Type: Special Report
  • Institution: Centre for Policy Research, India
  • Abstract: Linear projects like highways have the potential to change existing land use of large areas. These changes are not limited only to the stretches made for transportation of vehicles. The effects of construction are also visible on landscapes on both sides of highways. This study presents the findings of a two-year long groundtruthing study carried out between June 2016 and August 2018 along 187 kilometres of National Highway 66. The study is a collaborative effort of the Centre for Policy Research-Namati Environmental Justice Programme and communities from towns and villages situated between Karwar and Kundapur, especially the 27 Panchayats, in the district of Uttara Kannada in Karnataka. The study presents evidence of non-compliance of environmental safeguards resulting in social, economic and health impacts on the local communities in the project areas. It also highlights several aspects that were not taken into account in the project’s impact assessments. The study includes a broad assessment of the project’s scale of direct impacts. During the course of the study, the following types of non-compliance were identified: Permissions for blasting, groundwater and river water withdrawal were not taken; Dumping soil on wetlands and creeks caused flooding and salt water intrusion; The construction caused soil erosion and landslides along embankments; Non-submission of six-monthly compliance reports by the project proponent; Non-compliance of other laws and compensation agreements; The report includes a case study of a stone crusher unit operating in Bogribail village and causing water and dust pollution.
  • Topic: Development, Environment, Infrastructure, Law, Social Policy, Pollution
  • Political Geography: South Asia, India, Asia
  • Publication Date: 03-2019
  • Content Type: Policy Brief
  • Institution: Centre for Policy Research, India
  • Abstract: The event was organised as a part of ‘Dialogues on Sanitation’ series and specifically focused on the legal and regulatory regime pertaining to urban sanitation. The event brought together senior policymakers, city and state level implementers, technocrats, members of the civil society and legal experts to brainstorm towards bettering the regulatory regime on urban sanitation. Several aspects such as the role of law and regulation in Faecal Sludge Management, rights of sanitary workers, and public-private participation in Urban Sanitation were discussed during the course of the workshop.
  • Topic: Government, Law, Regulation, Urban, Sanitation
  • Political Geography: South Asia, India, Asia
  • Author: Maanav Kumar, Parag Mohanty
  • Publication Date: 03-2019
  • Content Type: Special Report
  • Institution: Centre for Policy Research, India
  • Abstract: This study looks at the development of legal and regulatory framework governing drinking water and sanitation services in South Africa, England and United States. Around 780 million worldwide do not have access to clean drinking water and almost 2.5 billion people lack access to improved sanitation according to data published by Centers for Disease Control and Prevention. In such a situation, it becomes extremely important to study the legal and regulatory measures used internationally to control, manage and improve these resources. This study, covering South Africa, England and USA, sets out to identify, comprehend and analyze these legal frameworks and structures; examine the control exercised by national, state/provincial as well as municipal governments over water and sanitation-related questions; and the responsive measures being taken by them to preserve the water resources and their quality for future generations. The authors have observed that in presence of varying geographical, historical and social factors, while it would be impossible to compare each model against the other on the basis of merit, it becomes increasingly important for governments to balance the individual’s right to water with the planet’s ecological balance.
  • Topic: Environment, Government, Natural Resources, Water, Law, Regulation, Legislation, Sanitation
  • Political Geography: South Asia, India, Asia, Global Focus
  • Publication Date: 12-2018
  • Content Type: Special Report
  • Institution: Centre for Policy Research, India
  • Abstract: The Mormugao Port is located at Vasco bay in the Mormugao taluka of Goa at the point where the Zuari river meets the Arabian Sea. This region is home to thousands of fisherfolk from the Karvi community who live along the beaches of Mormugao, Salcete and Tiswadi talukas. It is a natural harbour that provides safe haven for ships and fishing vessels during storms, like it did in 2017 when cyclone Okchi hit this coast. The lives and livelihood of these fisherfolk are intrinsically linked to the activities of Mormugao port as they have had to share their customary livelihood areas – the sea and the beaches – with the port. This has resulted in them competing for space for their daily activities like fish landing, boat parking, net mending, and even housing with the port and its infrastructure development on the landward side, and competing with larger shipping vessels for navigation space and access to certain parts of Vasco bay. It was in this backdrop, that a community led groundtruthing study was initiated in April 2018 by Old Cross Fishing Canoe Owners Co-op Society Ltd, Baina Ramponkar, Fishing Canoe Owners Society, Destierro Fisherman Association – Vasco, Goenchea Raponkarancho Ekvott (GRE) and the Centre for Policy Research (CPR)-Namati Environmental Justice Program with support from concerned citizens of Vasco and the Federation of Rainbow Warriors.This groundtruthing study is also an attempt by the affected community members to understand the environmental impacts of these berths, link them to the regulatory requirements and then push for compliance of the same.
  • Topic: Environment, Law Enforcement, Law, Regulation
  • Political Geography: South Asia, India, Asia
  • Publication Date: 04-2018
  • Content Type: Case Study
  • Institution: Centre for Policy Research, India
  • Abstract: Across the globe, the “development experience” of communities varies depending on their socioeconomic and political backgrounds. As a result of advancing developmental projects, a few communities are invariably made to pay a disproportionate share of the environmental costs in the form of exposure to toxic waste, loss of livelihood, and restrictions on mobility or access to common resources. This injustice, more than often not, is an outcome of active noncompliance and violation of environmental regulations by the projects . The Centre for Policy Research–Namati Environmental Justice Program is an effort towards closing this environment regulation enforcement gap. We have created a network of community-based paralegals, called as enviro-legal coordinators (ELCs), who work with affected communities using an evidence-based legal approach. As a part of this approach, the ELCs combine their understanding of the law, negotiation and mediation skills, and understanding of local contexts to assist affected communities in the use of the law to resolve environmental conflicts. They help the communities to understand relevant laws and environmental regulations and support them in engaging with institutions using these laws for better enforcement of regulatory compliance on the ground. This approach also develops a collaborative space for institutions and citizens to craft practical and sustainable remedies for the impacts that communities experience. This publication is a compendium of a few cases undertaken by the CPR–Namati Program’s ELCs working across the coastal belt in Gujarat and North Karnataka. These case stories capture the process of our work and illustrate the systematic, evidence-based legal approach followed by the ELCs along with the affected coastal community members to resolve conflicts arising from noncompliance or improper implementation of environmental regulations. These case stories are divided into three major thematic sections as follows: Section 1: Establishment and Activation of Gujarat’s District-Level Coastal Committees (DLCCs) as per Coastal Regulation Zone (CRZ) Notification, 2011: This section includes case studies from Gujarat, where ELCs worked towards establishing or activating District-Level Coastal Committees, an institution set up for better implementation of CRZ regulations and protection of rights of traditional coastal communities. Section 2: Securing Housing Clearances for Coastal Communities under Coastal Zone Regulation Notification, 2011 in North Karnataka: This section includes case studies from Uttara Kannada, a district in North Karnataka, where ELCs supported members of coastal communities in securing housing clearances under the coastal protection law. Section 3: Legal Empowerment in Practice: Two Case Stories: This section has two case stories from our field sites in Gujarat that illustrate the process and outcomes of legal empowerment though our work with communities.
  • Topic: Development, Environment, Natural Resources, Law, Oceans and Seas, Pollution
  • Political Geography: South Asia, India, Asia
  • Author: Namita Wahi, Ankit Bhatia
  • Publication Date: 03-2018
  • Content Type: Special Report
  • Institution: Centre for Policy Research, India
  • Abstract: Context: India holds the unique distinction of being both the world's largest constitutional democracy and also one of its fastest growing economies. Critical to the process of India's economic development is state acquisition of land for infrastructure and industrial development. Creating a legal framework that ensures equitable and efficient acquisition of land by the state, through processes that are socially inclusive and politically feasible, has proved challenging. While the Indian Constitution guarantees property rights to all, it enshrines special protections for land rights of ‘Scheduled Tribes’, vis-a-vis the state and other communities, in geographically demarcated tribal majority areas known as ‘Scheduled Areas’ under the Fifth and Sixth Schedules of the Constitution. The currently designated Fifth Scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The currently designated Sixth Schedule areas are in the north-eastern states of Assam, Meghalaya, Tripura, and Mizoram. The Scheduled Tribes (STs) or adivasis consist of a number of heterogeneous tribal groups that have historically self-identified and been identified by the British colonial and independent Indian states, as lying outside the mainstream of Hindu society, partly because of their ’distinctive culture and way of life as a group’, and partly because of their ‘geographical isolation’. Currently, there are 750 tribes in 26 states and 6 union territories of India. The Constitution guarantees special protections for land rights of Scheduled Tribes in Scheduled areas because land is not only the most important source of tribal livelihoods, but it is also central to their community identity, history and culture. Many non-Scheduled area states have also created legal protections for protecting land rights of tribals. However, CPR Land Rights Initiative research shows that despite these special protections, Scheduled Tribes remain one of the most vulnerable, most impoverished, and most displaced of all groups in India. 47.1% of all STs in rural areas are below the poverty line as compared to 33.8% for the national average, whereas 28.8% of all STs in urban areas are below the poverty line as compared to 20.9% for the national average. Inspite of being the only group with constitutional protections for their land rights, 9.4 % of STs are landless compared to 7.4% for the national average. While STs constitute only 8.6% of the total population, it is estimated that they constitute 40% of all people who have been displaced during the period 1951 to 1990, some more than once, due to the construction of dams, mines, industrial development, and the creation of wildlife parks and sanctuaries. Only 24.7% of ST population that was displaced during this period was rehabilitated. Therefore, it is clear that these groups have disproportionately borne the burden of economic development. Why is this so? The CPR Land Rights Initiative report on ‘The legal and political economy of land rights of Scheduled Tribes in the Scheduled Areas of India’, offers some preliminary answers to these questions. Through a review of constitutional provisions, laws, and policies, governing the rights of Scheduled Tribes and the administration of Scheduled Areas, and the financial and administrative structures that effectuate these protections, the Report delineates a conflicting regime of protective and displacing laws, as well as conflicting policy narratives underlying these laws which facilitate the displacement of Scheduled Tribes and their corresponding landlessness. The Report also contains extensive primary data on the current mapping of Scheduled areas, and the current distribution of dams, forests, and mining activity, in the Scheduled areas. Key findings: Extent of geographical area, and distribution of forests, dams, and mining activity in Scheduled Areas: The Report establishes for the first time that as much as 13% of India’s geographical area is in the Scheduled Areas. Further, the Report finds that both the concentration of forest cover, and the concentration of dams, is significantly higher in Scheduled area districts (a little over two and a half times) as compared to non-Scheduled area districts. Finally, we find that 90% of all mineral wealth generated in India comes from states that have Scheduled Areas. Fragmented constitutional protections for Scheduled Tribes: The Report concludes that despite the centrality of land to the identity, economy, and culture of the Scheduled Tribes, the constitutional protections for Scheduled Tribes and Scheduled Areas are fragmented and contradictory. The creation of these fragmented protections was in turn a product of two factors. First, even at the time of drafting of the Constitution, many tribal communities were no longer located within the geographically isolated scheduled areas, while many non-tribal communities were resident there, some for several generations. The Constitution makers created safeguards both for tribal people resident in Scheduled areas and those that were residing outside Scheduled Areas, but these fragmented protections failed to fully safeguard the rights of STs. Second, they arose from an inherent contradiction in creating geographically protected areas for Scheduled Tribes, while at the same time imposing no restrictions on the movement of tribals outside those areas, or on the movement of non tribals to those areas. This enabled more dominant non-tribal communities to settle in scheduled areas and in practice displace STs. Special constitutional and legal protections for ST land rights negated by contrary laws: The Report concludes that special constitutional and legal protections for land rights of STs have been diluted by a contrary legal framework comprised of forests, mining, and land acquisition laws. While state land alienation prohibition laws prohibit transfer of land from tribals to non tribals, there is no prohibition on the state acquiring land in Scheduled Areas for its own purposes in the exercise of its power of eminent domain or assertion of its rights over forestland. State led lawfully sanctioned development in the form of dams, mines, industrial development, and wildlife parks and sanctuaries, has historically been the biggest displacer of STs. This is corroborated by data on the intensity of dams and mining activity in the Scheduled Areas as outlined in the Report. Fundamental contradictions between ‘identity based isolation’ and ‘development through integration’ policy narratives of the British and Indian states: The Report finds a fundamental contradiction between two narratives that have characterised the policies of the British colonial state and the independent Indian state. The first narrative, that the Report calls the ‘identity based isolation’ narrative, identifies the tribals as a ‘distinctive group outside mainstream Hindu society’ both in terms of their ‘cultural traits’ and ‘geographical isolation’, and argues that they are keen to preserve their distinctiveness and their isolation. The second narrative called the ‘development through integration’ narrative identifies the tribal way of life as backward, compared to mainstream Indian population and seeks to improve their economic and social indicators to ‘integrate’ or ‘assimilate’ them with the mainstream population. The Report concludes that while both the ‘identity based isolation’ and ‘development through integration’ narratives, characterised the drafting of constitutional protections for STs, post-independence policy making was guided primarily by the latter. STs have however, rejected the ‘development through integration’ narrative as paternalistic and patronising, alleging that it fails to capture their aspirations to ‘develop according to their own genius.’ Meagre financial allocations for ST welfare: Translating policy and legal protections into reality needs financial resources. Even though the Constitution envisages a centralised framework for the administration of tribal areas under the aegis of the President and Governors of states, the responsibility of financing the costs of progressive change increasingly vests with the states. The Report computes significant shortfalls in Planning Commission recommended financial allocations made by both central and state governments in Scheduled area states under the tribal sub plan. Misguided expenditure of allocated funds compounds the problem of shortfall of funds for tribal development.
  • Topic: Political Economy, Law, Economies, Constitution, Ethnicity, Land Rights
  • Political Geography: South Asia, India, Asia
  • Publication Date: 12-2017
  • Content Type: Special Report
  • Institution: Centre for Policy Research, India
  • Abstract: Large parts of the world, irrespective of their level of economic development, are at the cusp of severe environmental crises. In these regions, the operations of extractive projects such as large scale plantations, mining and industrial development have negated or worsened the economic, social and physical well-being of communities in their neighbourhoods and beyond. Their robust national and regional laws and institutions for the protection and governance of the environment and natural resources have remained on paper and the non-compliance by governments and corporations has had profound effects on community livelihoods, health, access to land and quality of life. CPR-Namati's Practice Guide for Environment Justice Paralegals is a step in the direction of closing this environmental enforcement gap. The guide provides a methodology for community mobilisers, activists and citizens groups to shift their attention from stating the problem to getting grievances addressed by environmental institutions. The guide is based on four years of work done by the paralegals of CPR-Namati Environment Justice Program to assist affected communities file complaints and seek remedies in over 150 cases of non-compliance in India. We hope that this guide will help local organisations and community groups to address environmental conflicts and seek useful remedies for affected people.
  • Topic: Development, Environment, Law, Justice
  • Political Geography: South Asia, India, Asia
  • Author: Kanchi Kohli, Debayan Gupta
  • Publication Date: 08-2016
  • Content Type: Working Paper
  • Institution: Centre for Policy Research, India
  • Abstract: For the last two years, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has been in the eye of debate and discussed for the controversial changes the National Democratic Alliance (NDA) government had sought to bring about through ordinances. Even though fate of the amendments rests currently with the Joint Parliamentary Committee report, several states have already brought about changes through Rules under Section 109 of the Act. An examination of these state specific Rules reveals they are headed towards: Adopting the changes proposed in the ordinances amending the central law; Diluting the applicability of the progressive clauses like consent or SIA; Clarifying procedures for implementation at the state level. The United Progressive Alliance (UPA) government had replaced the Land Acquisition Act, 1894 with the newly enacted RFCLARR Act, 2013. Though critiqued for expanding the definition of public purpose to include the private sector, the new legislations had been welcomed by social movements, farmers groups and NGOs. This is primarily for the need for a Social Impact Assessment (SIA), the requirement for prior consent, food security provisions and clear compensation related provisions. What was also central to this discussion were the clauses which allow for unused land to be returned to original owners. The Rules framed by the States aim to make the process of land acquisition much simpler for investors. While certain States reduce the time period for the conducting of the SIA process or do away with it in its entirety, there are others who make reductions in the compensation award or modify the applicability of the retrospective clause. There are also States which directly adopt the provisions in the ordinance that aim to remove the requirement for consent from the land acquisition procedure. This working paper paper attempts to trace and analyse how the state governments have modified and built upon the central Act. It also looks briefly at litigation that has emerged especially around the applicability of the retrospective clause of the law, ie. which requires the return of unused land to original owners or reinitiating processes under the 2013 law.
  • Topic: Development, Government, Law, Food Security, Land Law, Social Policy
  • Political Geography: South Asia, India, Asia
  • Author: Shibani Ghosh
  • Publication Date: 01-2016
  • Content Type: Working Paper
  • Institution: Centre for Policy Research, India
  • Abstract: In October 2015, the Ministry of Environment, Forest and Climate Change released a Draft Environment Laws (Amendment) Bill 2015 proposing amendments to the Environment (Protection) Act 1986 and the National Green Tribunal Act 2010. The stated objective of the Bill is to provide ‘effective deterrent penal provisions’ and to introduce the concept of monetary penalty. It also aims ‘to minimise the exercise of discretion and make an unambiguous framework’. This paper summarises the text of the Bill and analyses whether it will complement the environmental objectives the parent laws espouse. It discusses some of the major concerns relating to the proposed amendments under three broad themes: environmental damage and penalties, adjudicating authorities and rule making powers. It concludes that although penalties that effectively deter violators are certainly the need of the hour, the proposed amendments are unlikely to achieve this objective.
  • Topic: Climate Change, Environment, Law Enforcement, Law, Legislation, Deterrence
  • Political Geography: South Asia, India, Asia