Author: cprindia

The final list of the National Register of Citizens (NRC) in Assam was published in August this year. The objective of the list was to identify illegal immigrants in the state. On publication, it was discovered that nearly 2 million people have been excluded from the list, thus making them vulnerable to the threat of statelessness.

Scholars at CPR have closely followed the NRC exercise and analysed its implications. In July 2018, Honorary Research Professor, Sanjoy Hazarika, wrote in Economic & Political Weekly, about defining citizenship in Assam. He points that the publication of the NRC is unlikely to resolve the controversy over illegal immigration from Bangladesh, which spans over four decades. His article can be read here.

In the curated analysis below, CPR scholars unpack the implications of this exercise, raising critical questions about citizenship, rights and the role of bureaucracy:

• Remaking the idea of an Indian citizen by Yamini Aiyar

Yamini Aiyar writes in Hindustan Times about how the NRC has brought to light the challenges to the ‘construction of citizenship in contemporary India.’ Aiyar highlights that the NRC ‘is illustrative of the ways in which the politics of religion has increasingly begun to intersect with institutional processes to shape understandings of who is a ‘legal’ citizen.’ She states that the flawed NRC process has provided the political fuel to push the demand for The Citizenship Amendment Bill, a bill that can have dangerous consequences as it fundamentally remakes citizenship in India.

• How NRC is legitimising exclusion by Yamini Aiyar

In August 2018, Yamini Aiyar wrote in Hindustan Times about how the State’s excessive reliance on papers and documents for proving citizenship has become an instrument of state coercion and politically driven exclusion. Aiyar highlights how a combination of bureaucratic failure and vulnerability to corruption, made the NRC exercise arbitrary and disempowering.

• [WATCH]: National Register of Citizens: What it means for India | The Big Picture

Yamini Aiyar also appeared on an episode of Hindustan Times’ The Big Picture to discuss the various facets of the NRC exercise, including questions about the idea of Indian citizenship, politics of religion, judicial intervention and bureaucratic capacity.

• A more precarious citizenship by Sanjib Baruah

Sanjib Baruah writes in The Indian Express about how ‘defining hundreds and thousands of people living in the country as non-citizens will create a new form of precarious citizenship — people with fewer rights and entitlements.’ Baruah highlights that while India is unlikely to deport those who fail the NRC test, creation of such a citizenship is ‘uncharted and potentially dangerous territory for a democracy.’

• In Assam, basic dignity at stake by Sanjoy Hazarika

Sanjoy Hazarika writes in The Hindu about concerns over how the State government plans to solve the issue of stateless citizens after the NRC exercise. He questions if there is a detailed process in place while such individuals apply to tribunals and courts for relief, and how the government will deal with those who are declared non-citizens, especially if Bangladesh refuses to take them. Hazarika highlights that the basic dignity of the weak, voiceless and vulnerable is at stake, pointing out that ‘many of those who are off the list are poor, cannot afford lawyers and may not even know of their right to legal aid.’

• Untangling the knot of citizenship by Sanjoy Hazarika

In July 2018, Sanjoy Hazarika wrote in The Tribune about the implications of the NRC exercise post the publication of the second draft list. Hazarika highlights that ‘the Centre and the state have become unnerved by the specter of looming statelessness that they have neither the skills, understanding or will to deal with.’

• India’s citizenship question and the never-ending Assam imbroglio by Sanjoy Hazarika

Sanjoy Hazarika writes in Al Jazeera about how the campaign to update the NRC has upset everyone, including its proponents. He sheds light on the challenges that those who will have to seek legal recourse due to exclusion from the list will face, highlighting, ‘this is a thankless and frightening prospect of prolonged litigation for even the well-to-do, which a large number of those off the NRC are not. How will they sustain their lives and families, not just the litigation?’

The current government’s steady push on digitising governance follows decades of such interventions. A new Accountability India series chronicles the experiences of former senior bureaucrat TR Raghunanandan on what it has taken to implement a system-wide change, and where the gaps have been.

• In ‘Wither, e-Governance’, Raghunanandan asks the crucial question of whether innovations in e-Governance will indeed make the government more responsive and accountable to the people.
• In the second part of the series, he talks about the introduction of desktop computers in government offices and how the transition began with only some officials understanding the full potential of this new technology in increasing efficiency. In ‘Spreading Spreadsheets’, he goes on to recount the value of spreadsheets in removing red tape and easy access to data. Yet, nearly three decades later, the large majority of people in the government have not taken to such innovative tools.
• In ‘MISRA – and the era of cute acronyms’, Raghunanandan recounts his experience of reforming land records in Karnataka using MISRA, an interface he and his team created. At the time, reporting protocols of land administration had begun to fail. Less attention paid to the daily tasks of land record maintenance, coupled with staff shortages and the expansion of welfare responsibilities, was beginning to weaken the land records system. The resultant confusion and uncertainties about land ownership had the potential to derail the entire economic base for the rural economy. As a solution, Raghunandan and team established a computer-aided system that would completely replace the manual system that was in place.
• In another experience, he discusses his stint with the tobacco board and how the computer operator was key to the integrity of the system which set quotas and imposed upper limits on what a farmer could sell. It took very little time for computer operators to hack the software. Then, for a price, farmers who exceeded quotas would be able to sell their extra tobacco.
• Thus, while establishing good e-Governance infrastructure is essential, the human capital that goes in maintenance and implementation cannot be overlooked. As Raghunanandan points out in his next blog ‘’Grasp’ing the Zilla Parishad’, the champions of e-Governance move on even before the systems they develop are entrenched in government processes.
• He closes the series with a thought provoking look on the dichotomy in the government’s enthusiasm for e-Governance in ‘Attitudes that block e-governance’. He asks if the government is a lot more cautious when it comes to transparent service delivery while this is not the case when making transactions from the citizens to government (such as tax paying) easier.

The National Green Tribunal (NGT) has emerged as an important player in Indian environmental regulation. It has issued orders on a variety of issues–ranging from pollution to deforestation to waste management. It recently directed the Delhi government to de-register all diesel vehicles more than 10 years old–a decision being opposed by many stakeholders, including the Central Government.

In the interview below, environmental lawyer and CPR faculty Shibani Ghosh talks about the National Green Tribunal and it’s functioning. Shibani practices before the National Green Tribunal and has written on various issues of domestic environmental law and governance. She is currently editing a book on key principles of Indian environmental law.

Can you tell us about why and how was the NGT established?

The need to set up special environmental courts was highlighted by the Supreme Court of India in a series of judgments, the first one being in 1986 in the Oleum Gas Leak case, and by the Law Commission of India in its 186^th report in 2003. The Court was of the opinion that environmental cases raised issues, which required technical knowledge and expertise, speedy disposal, and continuous monitoring, and therefore these cases should decided by special courts with necessary expertise and technical assistance.

The Parliament passed the National Environmental Tribunal Act, 1995 but it was never implemented. Subsequently, the National Environment Appellate Authority Act, 1997 was enacted under which the National Environment Appellate Authority was set up. There were several problems in the functioning of the Authority, including its limited mandate and key vacancies that the government did not fill. The Authority functioned till October 2010 and was replaced by the National Green Tribunal.

The National Green Tribunal was set up under the National Green Tribunal Act, 2010 (NGT Act). The objective of the NGT Act is to provide effective and expeditious disposal of cases relating to the protection of the environment. Even though the Act came into force on 2 June 2010, the first hearing of the Tribunal was held only in May 2011. The Tribunal suffered from serious ‘teething troubles’. Despite being a body constituted by an Act of Parliament, the Supreme Court had to intervene to ensure necessary administrative arrangements were made by various branches of the government for the Tribunal to become functional.

How does the Tribunal function?

The members of the Tribunal are a mix of persons with a legal/judicial background and those with knowledge and expertise in environmental issues or with administrative experience. There is a principal bench of the Tribunal in New Delhi and four regional benches in Bhopal, Kolkata, Pune and Chennai. These are ‘co-equal benches’ i.e. the principal bench is not ‘higher’ in a judicial hierarchy than the other benches. Each bench has a specified geographical jurisdiction. For instance, cases arising from Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Pondicherry, and Lakshadweep have to be filed in the Southern bench in Chennai. Occasionally ‘circuit benches’ are also constituted. These are specially constituted benches, which visit a particular city for a few days to hear cases relating to that state.

The Tribunal has original (to be the first judicial forum to hear a case) and appellate (review a regulatory authority’s decision) jurisdiction with regard to the implementation of seven environmental laws. These are the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, and the Biological Diversity Act, 2002. The notable exception is the Wildlife (Protection) Act, 1972 which is not included. A significant number of cases that may arise under the Wildlife (Protection) Act are criminal cases–and the Tribunal has no jurisdiction over criminal cases.

The Tribunal has original jurisdiction over all civil cases raising a substantial question relating to environment and which arise out of the implementation of the seven laws. This makes the Tribunal a crucial avenue for grievance redressal for persons who wish to highlight environmental issues which have serious implications but are not linked to a single government decision.

For instance, cases relating to the widespread pollution in the River Ganga and Yamuna, increasing air pollution in the National Capital Region, and illegal mining activities in different parts of the country have all been brought before the Tribunal under its original jurisdiction.

While exercising its appellate jurisdiction, the Tribunal decides cases in which a regulatory approval or consent granted (or rejected) by the relevant government agency is being challenged. These approvals or consents are those issued under the seven laws. For example, environmental clearances under the EIA Notification 2006, forest clearances under the Forest (Conservation) Act, and consents issued by the State Pollution Control Boards under the Water Act and the Air Act are included.

Who can approach the NGT?

According to the NGT Act, an aggrieved person can file a case before the Tribunal, and could be an individual, a company, a firm, an association of persons (like an NGO), even if not registered or incorporated, a trustee, a local authority (like a municipal corporation), or a government body (like the State Pollution Control Board). The person need not be directly affected by the project or development in question, but could be any person who is interested in protecting and preserving the environment. There is a time period within which the case has to be brought before the Tribunal, which varies according to the type of case.

What kind of decisions can the NGT deliver, and what is the timeline?

The Tribunal has the power to cancel an approval or consent granted. It can also issue a stop work notice or an interim stay order. It can direct the constitution of a committee of experts to carry out fact finding or monitor the implementation of its orders; and direct concerned government agencies to take affirmative action to prevent or mitigate environmental damage. It can also direct the demolition of unauthorized construction. The Tribunal also has jurisdiction to order payment of compensation to victims of environmental damage or an environmental restoration fine to a government agency for restitution of damaged environment.

The NGT Act requires the Tribunal to hear cases as expeditiously as possible and endeavour to decide the case within six months from the date on which the case is filed. Despite this indicative timeline, it often takes longer as all parties have to be heard and allowed to present necessary evidence, and sometimes, the Tribunal initiates special investigations into facts, which may take up additional time.

Is the verdict of the NGT binding?

The decision of the NGT is binding on the parties, unless they approach the Supreme Court in appeal and the NGT’s order is either stayed or reversed. Failure to comply with the orders of the Tribunal could lead to a fine or imprisonment of the person responsible.

You can read more about Shibani Ghosh’s work on the National Green Tribunal below:

• Climate Litigation in India: gaining traction?
• Access to Information as Ruled by the Indian Environmental Tribunal
• Environmental litigation in India

People facing/likely to face the negative impacts of land use change may not communicate their grievances immediately. When these impacts are communicated to the project entity or the media or the government and collective action is taken towards addressing the impacts, they become cases of conflicts. The strategies that communities deploy during the course of a conflict could range from a single one-time action for a single remedy to engaging with multiple strategies for one or different remedies.  For instance, an affected community may choose to go to court to seek directions for increasing compensations or addressing pollution harms. Another group of affected people may approach one government agency for addressing water contamination and/or take to the streets to resist additional acquisition of land and/or engage the media to create awareness about the loss of livelihoods. These can take place all at the same time or at different stages of the conflict and the project. Below is a tabular synthesis of key strategies used in the 75 cases of conflicts, as reported in the media, analysed for each of the study countries- India, Indonesia and Myanmar.

* T: Total number of cases in which a particular remedy has been used; S: Used singly; C: Used in combination

The above analysis makes it clear that most often communities deploy multiple strategies. Presented below are examples of how these strategies have been used in the three countries. The examples demonstrate that there are only a few instances when a strategy can be linked with a clear success. Most often they stop short at certain interim outcomes such as an inquiry or an investigation or they start to head towards a specific outcome only to be turned around at a later stage.

Protests

India: The proposed amendments to the new 2013 Land Acquisition Act in December 2014 led to a nationwide farmers’ protest in India. In August 2015, in light of protests and ahead of the Bihar state elections, the government of India held back the proposed amendments and referred the matter to a Joint Parliamentary Committee (JPC).

Myanmar: In Shan State in 2016, 100 farmers from Ye Pu village in Taunggyi planted on 2,000 acres of confiscated land. Between 2010 and 2015, despite the land being confiscated the farmers were allowed to plant on the land on a payment of 10,000 Kyats per acre. In May 2016, the farmers were asked to sign documents transferring the land to the army. These 100 farmers didn’t sign the document and continued planting. The army filed a lawsuit against them for trespassing.

Litigation

Indonesia: Responding to a civil suit, the Bandung administrative court decided in April 2017 that expansion plans for the Cirebon coal-fired power plant in West Java were in violation of the local spatial planning law. The court ordered the project’s environmental license to be revoked.

India: A case against the Parsa East Ketan Besan (PEKB) coal mine was filed before the National Green Tribunal, the special court for environmental cases, and a judgment suspending the forest diversion approval was given. This was challenged by the operating company before the Supreme Court, where the court allowed mining to continue even as the environment ministry was to review its recommendation. The matter has been subjudice since 2014.

Administrative complaints and appeals

Indonesia: In the case of BNJM coalmine in East Barito in Central Kalimantan, the local environment agency on request from communities, collected samples from the river being polluted by the mine refuse. However, this was done after the community of Lalap and Bentont villages had filed multiple complaints with photographs and media reports on the siltation of the river. In this case, strong evidence of the violation of environment laws helped in getting the government to take action.

India: In the case of the proposal to construct the Tadadi port in Uttara Kannada district of Karnataka, local villagers and environmentalists primarily engaged with the District Collector and the regulatory institutions to influence the decision on whether the port should be granted approval. Although the environment ministry’s expert committee recommended approval in December 2016, the project had not been issued a formal clearance letter and has not initiated construction activity.

International Redress

Myanmar: Thilawa is one of the few projects from the delta region in which international redress has been tried. The Thilawa Social Development Group (TSDG) contacted the Japan International Cooperation Agency (JICA) seeking rehabilitation and relocation facilities as per its guidelines. In response, JICA increased the compensation and improved facilities at the relocation site. Although the relocation site still falls short on many of JICA’s own prescriptions, the efforts resulted in certain corrections.

Indonesia: An example of seeking international redress is the case of Batang Thermal Power Plant. In December 2016, the community approached the Japan Bank for International Cooperation (JBIC), the key financer with a petition against the plant. In response, the JBIC visited the site and met with the community but claimed that there was no evidence supporting people’s complaints.

Media campaigns/reporting

Indonesia: Media reporting has always been seen in combination with more than one strategy. Because of constant media scrutiny of Batang Thermal Power Plant and Jakarta Bay Reclamation Project along with the protests against the two, the work on the projects has been slow.

India: This has been an important strategy for affected people, especially when they are working with national and international NGOs and researchers. Two prominent examples of this are visible in the strategies used to address conflicts in the Vedanta bauxite mine in Niyamgiri, Odisha and the actions against setting up of the coal mine in Mahan, Madhya Pradesh. Local struggles were supported by national and international media reporting and public campaigns seeking support against setting up of these projects.

Myanmar: Both the local and international media have kept the issue of land confiscations alive. Big cases such as the Letpadaung mine and Myitsone dam and campaigns against the thermal power projects have been on the radar of the media. Media has been key in influencing certain court cases as well.

While these are only a few strategies, affected communities combine these with several other strategies. Political advocacy, participation in administrative procedure such as public hearings, approaching the project owner, are other ways to seek redress. The study, Understanding Land Conversion, Social Impacts and Legal Remedies in Asia, through the country reports, provides an extensive account of how and when each of the strategies has been used. Through the case studies it tries to explore the question of why certain strategies are chosen and how factors such as stage of the conflict, desired remedies, communities’ capacity and agency and political and policy developments influence this choice.

This is the second blog based on the study carried out by the CPR-Namati Environmental Justice Program, and supported by a grant from IDRC, Canada.

The other pieces in the series can be accessed below:

• Understanding the Impacts of Land Use Change
• Understanding the Outcomes and Remedies sought for impacts of Land Use Change
• Detailed Studies of cases of Land Use Change Conflicts: Part I
• Detailed Studies of cases of Land Use Change Conflicts: Part II

The number for out-of-school children [OOSC] put out by various official sources in India, show wide variations. The Ministry of Human Resource Development (MHRD) survey (IMRB-SRI, 2014) estimate of this figure is 6 million, while for the same year, the National Sample Survey (NSS) figure is 20 million.

Each figure is based on an estimate of ‘never enrolled’ and ‘dropped out’ children. A closer look reveals that problems exist not just in the definitions, especially of drop out used by each source, but also in the methods of estimating ‘never enrolled’ as well as ‘dropped out’ children. In addition, discrepancies and inefficiencies in the overall system of collecting and collating data compound the problems.

This study by Senior Fellow Kiran Bhatty attempts to address these issues through developing a more direct approach to calculating ‘never enrolled’ children based on a child census, as well as identifying OOSC using a broader understanding of absenteeism or ‘dropped out’ children based on irregular attendance.

It also analyses the links between attendance and socioeconomic and school factors. In doing so, it fills an important gap in the literature by questioning the definition/understanding of an ‘out-of-school’ child, as well as by using methodologies not employed before to estimate children not enrolled in school and to track attendance of those enrolled over an academic year.

The findings of the paper are divided into two sections – the first section describes the survey findings and estimates of OOSC and attendance patterns of students and teachers; while the second section provides an analysis of the links between child attendance and various household and school level factors.

The full working paper can be accessed here.