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Archives for : February2017

Ramjas college violence : NHRC issues notice to Delhi Police

The Commission has given him 4 weeks to submit a detailed report in the matter

ANI  |

Protest, Ramjas College

ISA students protesting against ABVP activists in New Delhi

Following complaints that female students and media persons were harassed by police personnel during the violent clashes at Ramjas College on February 22nd, the Human Rights Commission on Tuesday issued a notice to the Police Commissioner.

“Allegedly, some journalists, covering clashes, were slapped, punched and kicked by the policemen. The Commission has taken on record complaints as well as media reports making similar allegations including threats to some students on The Commission has given him four weeks to submit a detailed report in the matter,” read the notice.

Earlier, Home Minister Rajnath Singh said that he was in touch with Police over the turbulent situation arising out of the Ramjas College clash.

“I have told Police to practice restraint so that nothing goes wrong. I am constantly in touch with the police commissioner,” he said.

A day after clash broke out between All Students Association (AISA) and Akhil Bharatiya Vidyarthi Parishad (ABVP) students at Ramjas College, the Police HAD called for strict action, while asserting that few policemen’s unprofessional actions were also noticed in handling law and order situation during the scuffle.

“Yesterday it came in the notice of top leadership of the police that unprofessionalism was seen on the part of certain policemen in handling law and order situation. We will take action according to the circumstances,” Police spokesperson Dependra Pathak told ANI.

Asserting that strict action would be taken against the guilty, Pathak said a Deputy Commissioner of Police (DCP) level officer is conducting an enquiry into the matter.

“A committee is instituted and top leadership is monitoring and taking care of it. We don’t condone such action. Strict action will be taken,” he added.

Emphasising that the police would make sure such events do not recur in future, he said: “In future, regarding student protest, we request students to remain peaceful and be in the bounds of law.”

He further said a probe has been launched into the matter.

“The allegations and adverse things have come out but we are enquiring into it. We are looking into certain allegations,” he added.

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Denial of History- Facts be damned !

‘Politicians have always dealt in lies and propaganda.’
‘But the scale of the propaganda and the impunity with which it is being unleashed now is stunning,’ says Shuma Raha.
Illustration: Uttam Ghosh/

Illustration: Uttam Ghosh

When Winston Churchill wrote the six-volume History of the Second World War, published between 1948 and 1954, he was probably playing out a saying which is often attributed to him — ‘History is written by the victors.’ He got the Nobel Prize in literature for that work.

And for many years, it was unquestioningly accepted as the most definitive history of World War II, one where Churchill, Britain’s great wartime prime minister, played a pivotal role.

If there were inaccuracies and facts glossed over, it was not until decades later that researchers began to point them out.

Britain and its allies had won the war and Churchill’s narrative was a winsome affirmation of that.

But Churchill is so last century. He merely tweaked a few facts here and there.

Look at the powers-that-be in India today — they are far more intrepid, far more insouciant in their attempts to deliver the history of their choice.

Facts and historical evidence be damned.

The latest effort in this regard is almost farcical in its audaciousness.

According to a report in The Indian Express, Rajasthan is considering rewriting history text books at the university level because it wants to depict Rana Pratap, the heroic Rajput king of Mewar, as having won the battle of Haldighati against the forces of Mughal emperor Akbar.

This is pure fiction, of course.

Historical records are unambiguous: Rana Pratap, who refused to submit to Akbar, lost the battle of Haldighati in 1576 at the hands of the Mughal army led by another Rajput royal, Man Singh.

Even the most exaggerated legends about Rana Pratap’s valour do not narrate a victory for him in this battle.

Evidently, the BJP government of Rajasthan doesn’t let such minor inconveniences as facts come in the way of its grand purpose of glorifying its cultural icons.

Evidently, it is not enough to celebrate Rana Pratap as a hero — he must be recast as a victor, a Hindu king who vanquished a Muslim ruler.

He must be redrawn to fit the narrative of right-wing nationalism, which wants to overturn the fact that at a certain period in history a large part of the landmass that became ‘India’ was ruled by Muslims.

But why blame the Rajasthan government for its brazen attempt to stand history on its head?

After all, an imaginative retelling of past events has become the hallmark of our post-truth world.

US President Donald Trump’s advisor Kellyanne Conway described as ‘alternative facts’ the White House’s assertion that the crowds at his inauguration were the biggest ever. (They were not).

Recently, she referred to a terror attack at Bowling Green, Kentucky, that never happened. Mr Trump himself is famous for his disregard for truth.

Our very own finance minister, Arun Jaitley, said recently that there was no shortage of cash at any point in the aftermath of the currency ban.

What about those who spent hours — and the 100-odd people who died — queuing up before banks and ATMs to withdraw some cash?

The minister did not go there, but they were clearly inhabiting an ‘alternative’ universe.

Of course, politicians have always dealt in lies and propaganda. But the scale of the propaganda and the impunity with which it is being unleashed now is stunning.

Today, whoever commands the bully pulpit gets the biggest shot at manipulating facts and megaphoning them until the lies settle in as the truth.

But to be fair to the Rajasthan government, it has been in the business of distorting history long before such phrases as ‘post-truth’ and ‘alternative facts’ became fashionable.

Last year, social science text books for Class VIII students of schools under the Rajasthan board of secondary education omitted references to Jawaharlal Nehru’s contribution to the freedom struggle and his role as India’s first prime minister after Independence.

The Rashtriya Swayamsevak Sangh, the BJP’s ideological fountainhead, makes no secret of its antipathy towards Nehru — the secular, liberal leader who was the architect of modern India.

Moreover, the remaking of history has long been part of the RSS’ nationalist agenda, which wants to indoctrinate the youth in the idea of India as a glorious monolithic culture.

A culture that is perhaps more rooted in myths than facts.

A culture that believes that our legends are sacrosanct and anyone who dares to deviate from them runs the risk of getting thrashed.

As filmmaker Sanjay Leela Bhansali was recently because it was rumoured that he planned to shoot a love scene between Rani Padmini of Chittor and Sultan Alauddin Khilji in his film Padmavati.

No doubt the Rajasthan government’s latest stab at altering history will evoke the usual hand-wringing by left liberals. It will give rise to the usual cry that education is being ‘saffronised.’

But I am optimistic. India is too vast and too diverse for a sweeping overhaul of its history.

Its youth are too invested in the future to worry too much about the past.

The denial of history — getting a kick out of portraying a Rana Pratap as a winner or a Nehru as a non-entity — will always be the preoccupation of sad old ideologues and their followers on the fringe.

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ATM dispenses Rs 500 notes without serial numbers in Madhya Pradesh’s Damoh

BHOPAL: A schoolteacher in Damoh was shocked to see an ATM dispensing new Rs 500 notes without any serial number. Narayan Ahirwal had withdrawn Rs 1,000 from his account through an ATM on Monday.

The two notes of Rs 500 denomination did not bear any serial number. “How’s it possible?”, he showed the notes to others while stepping out from the SBI ATM near government hospital in Damoh.

Sanjay Asati, another Damoh resident, was the next in queue. He too withdrew two Rs 500 currency notes and they too did not bear the serial number. Soon, there was an uproar among the people.

Someone called the police and the ATM was sealed for some time.

“I went to the nearest SBI branch, about a km away from ATM, and showed the notes to the officials but they refused to exchange them,” Narayan told the media.

Though the bank manager did not talk, branch employees told us to give them in writing about issue, Asati said.

This has not happened for the first time in Damoh, In the last one week, four such cases have happened including the two on Monday.

Three days ago, two similar incidents took place at the Ghantaghar ATM of Damoh. However, no police complaint was filed.

Talking to TOI, Damoh superintendent of police, Tilak Singh said, “I had come to know about the incident but have not yet received any complaint. Neither, the bank personnel nor the people who got the currency notes have lodged any FIR. In case we receive any complaint, we will definitely investigate.”

Bank sources said pleading anonymity such issues do come up and we advise the victim to submit the complaint in writing for investigations.

“It is not possible to exchange the note immediately”, bank sources said.

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War veterans’ battle for DU student Gurmehar Kaur

Manish Sirhindi| TNN |

Patiala: Support from war veterans has started pouring in for LSR student Gurmehar Kaurwhose social media campaign against ABVP drew a volley of hate messages on her Facebook account.

Punjab State Ex-Servicemen Welfare Association (Sewa) has stepped forward to fight a legal battle on her behalf. Other war veterans have also voiced their concerns against “rape threats” issued to the daughter of Kargil martyr Captain Mandeep Singh.

Col Kuldip Singh Grewal (retd), Sewa president, said they would fight for Kaur and see to it that a formal complaint against the hate messages is lodged. “We will make certain that the case is filed and taken to its logical conclusion,” he said.

Col Grewal, a 1971 India-Pakistan war veteran, said it was shameful that the daughter of a Kargil martyr was being threatened with rape. “All daughters of the country should be respected, especially of the Army men who fought for the country and laid down their lives. Gurmehar’s opinion should have been respected as she has the right to raise her voice,” Col Grewal said.

Col Tejinder Singh Bajwa (retd), another 1971 war veteran, said the countrymen should raise their voice in unison to protect the daughter of a martyr. No one should remain unaffected when a daughter is threatened with rape, he said.

“What sort of example is being set by the frontrunners of this generation? It is highly condemnable and should be disapproved of by all in one single voice,” said Brig Balwant Singh Tejey (retd).

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FIR against Chairman, Skoch Group for his article on Aadhaar #WTFnews


A police source said that they received a complaint regarding this from Yashwant Kumar, the assistant director general of UIDAI.

Kochhar has claimed that the Aadhaar ecosystem is flawed, vulnerable, has very poor security, and can be easily hacked.

 Kochhar has claimed that the Aadhaar ecosystem is flawed, vulnerable, has very poor security, and can be easily hacked.

New Delhi: The Delhi police has registered the first case under violation of Aadhaar Act 2016 against a man for allegedly spreading rumours on various social networking sites that the Aadhaar ecosystem is vulnerable. The complaint said that one Sameer Kochhar wrote a misleading article against the Aadhaar ecosystem and also uploaded a video to substantiate his claims.

The Unique Identification Authority of India (UIDAI) found the video and the article to be misleading and filed an FIR with the cyber cell of the Delhi police.

A police source said that they received a complaint regarding this from Yashwant Kumar, the assistant director general of UIDAI. The source said that they were yet to approach Mr Kochhar who wrote the article.

It is worth noting that the above-referred Mr. Kochhar is the Chairman, Skoch Group and also the author/editor of a book, ‘Modi’s Odyssey: Digital India Developed India’ – published in 2016, that includes an article – ‘Aadhaar at the Core of Digital India’, by Mr. Ram Sewak Sharma, former Director General, UIDAI (2009–2013) and currently the Secretary, D/o Electronics and Information Technology,M/o Communications & Info Tech, Govt of India. The article,
as expected, enunciates the official take on the subject issue.

In his article Mr Kochhar has claimed that the Aadhaar ecosystem is flawed, vulnerable, has very poor security, and can be easily hacked. He has also written that India is being taken for a ride by those with vested interest on Aadhaar enabled payment. He has further stated that the national security is at stake. The UIDAI discussed the matter with its legal team and it was decided that the article and the video was in violation of the Aadhaar Act 2016. The police said that they have registered a case, however, no arrest has been made so far.

The UIDAI has said in its complaint that Sections 34, 37, 9, 5 of Aadhaar regulations and Section 17-sub section 1 of chapter 3 of Aadhaar (authentication) regulations were violated by Mr Kochhar.

The police said that they have also added other relevant Sections of IPC and IT Act in the FIR. However, no arrest has been made so far.

The Delhi police has written in the FIR that the Aadhar Act System was not updated in their CCTNS system and hence they had to write it manually on the FIR.

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15 years after Godhra riots: The politics of hate still divides us


Survivors look at the pictures of the Godhra riots victims at a photo-exhibition held to commemorate its 10th anniversary in Ahmedabad, February 27, 2012. (REUTERS)

On February 28, 15 years would have passed since a gale of violence engulfed 20 out of the 25 districts of Gujarat. This persisted for several weeks, and in some places for months, as state authorities did little to control it.

More than 1,000 people, the large majority of who were from the minority Muslim community, were killed. Tens of thousands of homes and small business establishments — petty shops, wooden carts, autorickshaws, taxi jeeps, eateries and garages — were set aflame, and cattle and lifetime savings looted. This resulted in the long displacement and enduring pauperisation of more than 200,000 people. More than half of these were actively prevented — by fear, intimidation and social and economic boycott — from ever returning to their homes, resulting in their permanent expulsion from the villages and colonies of their birth.

Less noted, less dramatic, but even more terrifying is what happened in the dozen years and more that followed.

There is the new normalcy of Gujarat, in which Muslims have learnt to live separately, much like Dalits have been forced to exist for centuries. Much was touted, and celebrated, about the “Gujarat model” and the elections that followed were seen as a mandate to nationalise this in all of India. One part of this “Gujarat model” is no doubt connected with privileging a business-friendly administration over investment in the social sectors.

An Indian Muslim prepares a meal at a refugee camp in Sabarkantha district, 150 kms south of Ahmedabad, Gujarat, February 27, 2003. (REUTERS)

But what is less recognised is that part of the model is the systematic reduction of the country’s religious minorities to second-class citizenship. This is not different from what was accomplished so effectively — and with such little resistance or even notice and commentary from the country’s liberal public opinion — in the aftermath of the riots. This second-class citizenship of Muslims extends also to Christians, Dalits and tribal people in Gujarat as well.

Campaigns for ghar wapsi or (home-coming) of Christian and Muslim converts to Hinduism, suggesting that only the Hindu faith is “home” and persons converted to other faiths need to be brought back; or against beef-eating and “love jihad”; and abusive hate-speeches against Muslims; have generated fear and dread among India’s religious minorities. Especially during various state elections, anti-minority hatred is stoked cynically — examples are the comments on the “pink revolution” and the killing of rhinos to accommodate Bangladeshi Muslims in Assam in 2014, and the charge of discrimination after death to Hindus in the ongoing UP elections.

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Kerala priest held for rape of minor who gave birth

A Catholic priest was arrested in Kochi on Monday on the charge of sexually abusing a minor girl who later gave birth to a child. Kerala police identified the priest as 48-year-old Robin Vadakkancheril, vicar at the  St Sebastian’s Church in Kottiyoor in Kannur district. He will face charges under the POCSO Act and IPC section 376. From the Syro-Malabar Catholic diocese of Mananthavady, Vadakkancheril had served as director of the Church-run daily Deepika and Jeevan TV before moving to Kottiyoor. He had also worked with a college under the diocese. Police said the victim was a school girl, the daughter of farm hands. Police said the priest raped the girl in his bedroom at the parsonage attached to the church. “There was only one incident of abuse,’’ police said

“The girl gave birth to a child three weeks ago. The newborn was handed over to a private orphanage in Wayanad district. After the case was registered, the baby was handed over to a government-run orphanage in Kannur,’’ police said. On a tip-off from the government-backed Childline service for children in distress, police questioned the girl on Sunday. “Initially, the girl said she was abused by her own father. Later, when we questioned her in detail with the help of policewomen, the girl disclosed the name of Fr Robin,’’ police said.

According to police, her parents did not realise for quite sometime that the girl was pregnant — she attended school regularly, and wore the uniform in a manner that no one noticed she was pregnant. The spokesman of the Mananthavady diocese was not available for comment. Robin Vadakkancheril’s name and photograph had been removed from the website of the diocese. In Kottiyoor, residents said the priest had been at the church until Sunday when he announced that he would be away from the parish until Friday. Incidentally, he used to speak against sexual abuse of children and had even alerted police a few months ago about a sex racket in the region.

“The parents had not filed any complaint but based on a tip off received by the child helpline, we carried out an initial probe and found the report to be true. We have filed a case of rape against the priest. He was absconding but now has been taken into custody,” a police officer said.

According to the police, the girl was raped in May 2016. The police carried out an initial probe over the weekend, based on the tip off.

The newborn has been taken to a special home in Kannur based on the court orders, while the girl, a class 11 student, is with her parents.

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To the “friends” from ABVP

Dear “friends” from ABVP
if you like it
or not
we want to ask you something
First of all, tell us
Where is Najeeb Ahmed ?
what did you with him?
where is Najeeb?
We also want to ask you
than to anyone
Where is Najeeb ?
we want to ask you
tell us looking at the eyes of Fathima
Najeeb’s mother
tell us that
you don’t know where is Najeeb
We also know
that you had a hand in Rohit Vemula’s murder
but you were “clever”
since your uncles are in the government
but let me tell you
the shadows of rohit will hunt you from the stars
it will hunt everyone of you
You attacked girls
You raided students hostels and attacked
you even attacked your professors
who are you not against?
Dalit students?
Muslim students?
Girls students ?
Adivasi students?
Sexual minorities?
Students from Kashmir?
or students who even looked like them?
Students from the North Eastern states?
all students who don’t agree with you ?
Students who decent?
Everyone else who is not your member?
Who are you not against?
Is there any, you don’t want to attack
you don’t want to silence?
We, are not you
what will you do to us?
what can you do to us?
we all are grass
Even if you burn us
we will grow back
more in number faster and faster
we will grow back, on everything
that is trying to destroy us
We are grass, we will grow back, on everything.

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India – Why we need to reconsider the Aadhaar Act ?

What exactly is a money bill?

Suhrith Parthasarathy

Or, why we need to reconsider the Aadhaar Act, with all its implications for privacy

The Supreme Court will begin hearing final arguments next month on a writ petition challenging the validity of the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 — or the Aadhaar Act. The proceeding, initiated by Jairam Ramesh, a Member of Parliament in the Rajya Sabha, primarily questions the legality behind the Union government’s move in introducing the Aadhaar Act as a money bill. Through this categorisation, the government had the law enacted by securing a simple majority in the Lok Sabha while rendering redundant any opposition to the legislation in the Upper House of Parliament.

Imperils liberties

During preliminary hearings, the Supreme Court has suggested that it isn’t entirely convinced of the merits of Mr. Ramesh’s petition. But a closer examination will only show that the introduction of the Aadhaar Act as a money bill contravenes the bare text of the Constitution. In this case, the breach is particularly disturbing, because the legislation imperils our core liberties, in manners both explicit and insidious.

Originally, Aadhaar was conceived as a scheme to provide to every Indian a unique identity number, with a purported view to enabling a fair and equitable distribution of benefits and subsidies. There is little doubt that the scheme’s introduction, with no prior legislative backing, was a flagrant wrong, and was completely unjustifiable as a measure of democratic governance. For this Mr. Ramesh’s party, the Congress, must take full responsibility. But, when a draft of a statute was eventually introduced in the Rajya Sabha, in December 2010, it was done so as an ordinary bill. This meant that both Houses of Parliament had to provide their imprimatur to the bill for it to become law.

Nonetheless this draft legislation contained serious misgivings, so much so that a parliamentary standing committee released a detailed report differing with the government of the time over critical aspects of the bill, particularly its treatment of concerns over privacy and protection of data security. In the meantime, given that the Aadhaar project was being implemented even without statutory support, public interest petitions were filed in the Supreme Court challenging the project’s legitimacy. In these cases, the court issued a series of interim orders prohibiting the state from making Aadhaar mandatory, while permitting its use only for a set of limited governmental schemes.

In March 2016, the Union government withdrew the earlier bill, and introduced, in its place, as a money bill, a new draft legislation, titled the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016. This categorisation was extraordinary because a money bill, under India’s constitutional design, requires only the Lok Sabha’s affirmation for it to turn into law. Right on cue, within days of the bill’s introduction, the Lower House, in complete disregard of the Rajya Sabha’s protestations, passed the legislation, as Act No. 18 of 2016. This law, Mr. Ramesh now argues, is patently illegal, because its classification as a money bill infringes the Constitution’s mandates.

A money bill is defined by Article 110 of the Constitution, as a draft law that contains only provisions that deal with all or any of the matters listed therein. These comprise a set of seven features, broadly including items such as the imposition or regulation of a tax; the regulation of the borrowing of money by the Government of India; the withdrawal of money from the Consolidated Fund of India; and so forth. In the event a proposed legislation contains other features, ones that are not merely incidental to the items specifically outlined, such a draft law cannot be classified as a money bill. Article 110 further clarifies that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final.

Flawed counterpoint

The government’s response to Mr. Ramesh’s claim is predicated on two prongs: that the Speaker’s decision to classify a draft legislation as a money bill is immune from judicial review, and that, in any event, the Aadhaar Bill fulfilled all the constitutional requirements of a money bill. A careful examination of these arguments will, however, show us that the government is wrong on both counts.

To be fair, the assertion that the Speaker’s decision is beyond judicial review finds support in the Supreme Court’s judgment in Mohd. Saeed Siddiqui v. State of UP (2014). Here, a three-judge bench had ruled, in the context of State legislatures, that a Speaker’s decision to classify a draft statute as a money bill, was not judicially reviewable, even if the classification was incorrect. This is because the error in question, the court ruled, constituted nothing more than a mere procedural irregularity.

But there are significant problems with this view. Chief among them is the wording of Article 110, which vests no unbridled discretion in the Speaker. The provision requires that a bill conform to the criteria prescribed in it for it to be classified as a money bill. Where a bill intends to legislate on matters beyond the features delineated in Article 110, it must be treated as an ordinary draft statute. Any violation of this mandate has to be seen, therefore, as a substantive constitutional error, something which Siddiqui fails to do.

There are other flaws too in the judgment. Most notably, it brushes aside the verdict of a Constitution Bench in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha(2007), where the court had ruled that clauses that attach finality to a determination of an issue do not altogether oust the court’s jurisdiction. That is, the bench held, there are numerous circumstances where the court can review parliamentary pronouncements. These would include instances where a Speaker’s choice is grossly illegal, or disregards basic constitutional mandates, or, worse still, where the Speaker’s decision is riddled with perversities, or is arrived at through dishonest intentions.

What Aadhaar Act shows

A simple reading of the Aadhaar Act would show us that its contents go far beyond the features enumerated in Article 110. If anything, it is the provisions in the legislation that pertain to the Consolidated Fund and its use that are incidental to the Act’s core purpose — which, quite evidently, is to ensure, among other things, the creation of a framework for maintaining a central database of biometric information collected from citizens. Ordinarily, a draft legislation is classified as a money bill when it provides for funds to be made available to the executive to carry out specific tasks. In the case of the Aadhaar Act, such provisions are manifestly absent. The Speaker’s decision to confirm the government’s classification is, therefore, an error that is not merely procedural in nature but one that constitutes, in substance, an unmitigated flouting of Article 110.

In many ways, Aadhaar has brought out to plain sight the worryingly totalitarian impulses of our state. The government has argued, with some force, that Indian citizens possess no fundamental right to privacy. This argument, however, is predicated on judgments of the Supreme Court that have little contemporary relevance, and that have, in any event, been overlooked in several subsequent cases where the court has clarified the extent of the liberties that the Constitution guarantees.

Right to privacy

Privacy is important not merely because it advances the cause of equality and freedom but also because it is, in and of itself, a treasurable value. A failure to protect privacy adequately can have disastrous consequences that affect our abilities to determine for ourselves how we want to live our lives. And the Aadhaar Act hits at the core of this value. It permits the creation of a database of not only biometric information but also various other private data, without so much as bothering about safeguards that need to be installed to ensure their security. We scarcely need to stretch our imaginations to wonder what the government — and other agencies to which this information can be shared without any regulatory checks — can do with all this material.

That a statute so pernicious in its breadth can be enacted after being introduced as a money bill only makes matters worse. It has the effect of negating altogether the Rajya Sabha’s legislative role, making, in the process, a mockery of our democracy. It is imperative, therefore, that the court refers the present controversy to a larger bench, with a view to overruling Siddiqui .

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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India – Implement domestic legislation for Protecting the rights of tribals

Dongria Kondhs who voted against bauxite mining in the Niyamgiri hills of Odisha.   | Photo Credit: A. Manikanta Kumar

Even as bilateral investment treaties are strengthened, domestic legislation must be implemented

Recently, Ras Al Khaimah Investment Authority (RAKIA), an Emirati investor, initiated an investment treaty arbitration (ITA) claim against India under the India-UAE Bilateral Investment Treaty (BIT), seeking compensation of $44.71 million. This claim arose after a memorandum of understanding (MoU) between Andhra Pradesh and RAKIA to supply bauxite to Anrak Aluminum Limited, in which RAKIA has 13% shareholding, was cancelled, allegedly due to the concerns of the tribal population in those areas.

Similarly, in 2014, Bear Creek Mining Corporation initiated an ITA against Peru under the investment chapter of the Canada-Peru Free Trade Agreement, claiming violation of the investment obligations due to the withdrawal of mining concessions, allegedly as a result of the protests by indigenous peoples. These cases present an opportunity to evaluate the impact of the obligations of the host states under BITs on the rights of the tribal people.

Protection under law

The United Nations Declaration on the Rights of Indigenous People (UNDRIP), adopted in 2007, for which India voted, recognises among other things indigenous peoples’ rights to self-determination, autonomy or self-governance, and their right against forcible displacement and relocation from their lands or territories without free, prior and informed consent. In addition to the UNDRIP, there is the International Labour Organisation (ILO) Convention concerning Indigenous and Tribal Peoples, 1989 which is based on the “respect for the cultures and ways of life of indigenous peoples” and recognises their “right to land and natural resources and to define their own priorities for development.” India is not a party to this, but it is a party to the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957 which is outdated and closed for ratification.

At the domestic level, the Constitution provides autonomy to tribal areas in matters of governance under the Fifth and Sixth Schedules, which is further fortified by the Samatha v. State of Andhra Pradesh & Ors (1997) judgment where the Supreme Court declared that the transfer of tribal land to private parties for mining was null and void under the Fifth Schedule. The framework for protection of the rights of tribal and indigenous people is further strengthened by the Recognition of Forest Rights Act, 2006 which protects the individual and community rights of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.

Investment promotion

While the legislation for the protection of the rights of tribal people are in place, they are regularly flouted as has been highlighted by the Xaxa Committee report of 2014. Instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected, the state becomes more concerned about fulfilling contractual obligations towards the private investor. This means that constitutional and legal principles are discarded. This is evidenced by the increasing number of MoUs being signed by natural resources-endowed states with investors for facilitation of developmental projects. For instance, Chhattisgarh and Jharkhand have reportedly entered into 121 and 74 such MoUs, respectively, with various private players as of 2014. All this materially alters the role of the state vis-à-vis the tribal people as the state prefers economic expediency at the cost of the rights of tribal people.

For economic development, states invite investments not only from domestic investors but also from foreign players whose interests are not only protected under domestic laws but also under the BITs. The purpose of BITs is to give protection to foreign investors while imposing certain obligations on the host state. For instance, if a development project involving a foreign investor in tribal areas leading to acquisition of tribal land is met with protest, there may be two possible scenarios. One, the State government due to socio-legal and political pressures may yield to the demand of the tribal people to the detriment of the foreign investor, which is what has happened in the case of RAKIA. Two, assuming that the government continues with the project, the judiciary may order the cancellation of permits given to the foreign investor, which is what happened in the case of Vedanta in 2013 (Orrisa Mining Corporation Ltd v. MoEF and Ors). In both cases, foreign investors may drag India to ITA claiming violation of obligations under the BIT, such as fair and equitable treatment or indirect expropriation. This perceived threat of ITA against the state may compel the latter to refrain from implementing tribal rights in the development project area.

Conflicting interests

A recent report of the UN Special Rapporteur on the Rights of Indigenous Peoples recognises three main reasons for the serious impact that foreign investments have on the rights of indigenous people: failure to adequately address human rights issues of tribal people in BITs; the perceived threat of ITA for enforcement of investor protection; and exclusion of indigenous people from the policymaking process.

What then are the possible options available to India to tackle these issues? First, none of the 80-plus BITs signed by India contains even a single provision on the rights of tribals. Even the 2015 model Indian BIT does not contain any such provision. Thus, to avoid ITA cases by foreign investors, the government’s approach should be to include provisions relating to the protection of indigenous people in BITs. There are many examples from around the world: Canada, in many of its BITs, has several exceptions to protect the rights of indigenous people. The Trans-Pacific Partnership agreement also incorporates the rights of the Maoris from New Zealand.

Since India is going to renegotiate its existing BITs, it should create a special exception for taking regulatory measures for protecting the rights of tribal people, in which case it should have a textual basis in the BITs to derogate from investment protection obligations under BITs.

Second, the strengthening of BITs must go hand in hand with the implementation of domestic legislations for the protection of the rights of tribals, where the state does not consider tribals as impediments in the development process. Third, as far as possible, tribal people should be given representation even in investment policymaking.

Pushkar Anand and Amit Kumar Sinha are Assistant Professors at the College of Legal Studies, University of Petroleum and Energy Studies, Dehradun

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