A Project on

“JUDICIAL REVIEW WITH RESPECT TO RIGHTS OF

INTERNALLY DISPLACED PEOPLE”

SUBMITTED TO: - Prof. Dr. Kamuddhi Challa

FACULTY, C.G. (Hons.)

SUBMITTED BY: - GUNEET KAUR

ROLL NO- 18
SEMESTER IX; BATCH IX

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR, (C.G)

1
 TABLE OF CONTENT

ABBREVIATION 5
ACKNOWLEDGEMENT....................................................................................................................................6
RESEARCH METHODOLOGY........................................................................................................................7
CHAPTER 1 : BACKGROUND: THE EXISTING INTERNATIONAL LEGAL FRAMEWORK.......12
CHAPTER 2: INDIA'S APPROACH TO THE THREE PHASES OF DISPLACEMENT.....................22
CHAPTER 3: CONCLUSION...............................................................................................................................37
BIBLIOGRAPHY.............................................................................................................................. 38

2
 Certificate of Supervision:

This project is made under the express guidance and supervision of Dr.
Kaumudhi Challa

3
 Declaration of originality

This project is my original and unpublished work and has not been presented or
communicated for publication elsewhere.

4
 ABBREVIATION

Cri……………………………………………..Criminal
ed. …………………………………………….edition
J&K…………………………………………...Jammu and Kashmir
Journ…………………………………………..Journal
Ltd. ……………………………………………limited
Mad……………………………………………Madras
no. …………………………………………….number
p……………………………………………….Page
pp. …………………………………………….pages
Pvt. ……………………………………………private
Q.B. …………………………………………..queens bench
SC……………………………………………..Supreme Court
SCC…………………………………………...Supreme Court Cases
v. ………………………………………………...….Versus
Vol……………………………………….……Volume

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 ACKNOWLEDGEMENT

I regard it a flattering privilege to be writing a project on this

unique work. For one thing, I am too unlearned to comprehend the gems of
oceanic wisdom the topic contains and for another, I lead too busy a life ‘to
pause and reflect and move to the next, of that sublime sequence of lofty ideas,
to grasp the quintessence of ‘Judicial Review with respect to Rights of Internally
Displaced’.
I take this opportunity to thank Ms. Kaumudhi Challa who has played the role of
a central character and always given me the courage and wisdom to shape my
ideas in right direction. I would like to extend special thanks to the I.T. staff and
library staff who have devoted their valuable time to give me all sorts of
suggestions, ideas and facilities regarding this topic.
Last but not the least I thank all the members of the H.N.L.U. and all others who
have helped me in the completion o this work.

Thanking You,
Guneet Kaur
Roll no- 18

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 RESEARCH METHODOLOGY

The research paper is both analytical and descriptive in nature. This doctrinal

research is based on secondary sources of information. All other authorities relied on

have been duly mentioned in ‘Bibliography’.

7
 INTRODUCTION

In recent years, India has witnessed a grave and controversial pattern of land acquisitions
that has raised issues related to the rights of internally displaced persons (IDPs). Land use
has been a critical factor in India's development process and has led to tensions for over
three decades. In the process of development, the land problem has been exacerbated by
the displacement of entire communities from their land and by the acquisition of land
belonging to small farmers at nominal prices. Allegations of abuse in the land acquisition
process have been rife. In a few instances, land that had been initially acquired for
industrial purposes at a low price was later transferred to builders for residential use.
Some of these land acquisitions have resulted in clashes between the aggrieved public
and government officials. For example, on 7 May 2011, Bhatta and Parsaul villages in
Greater Noida saw violence break out between police and government officials and
aggrieved residents. Eight people, including two policemen, were killed and around 100
people went missing. Following this, a few arrests were made, a curfew was imposed and
the construction of an expressway was stopped. The residents of the two villages were
agitating for fairer compensation for their land, which was to be used for a hi-tech city
and an expressway. The government has offered Rs 880 per square metre, while the
market rate is over Rs 25,000 per square metre because of the area's proximity to Delhi
and Noida. The farmers have refused to back down, notwithstanding the prices offered,
and are fighting to retain some of their land for cultivation.1

Prior to this controversy, Nandigram was an unexceptional rural area with two
community development blocks in the Haldia subdivision of PurbaMedinipur district in
the Indian state of West Bengal. In 2007, the West Bengal government decided to allow
the Salim Group to set up a chemical hub at Nandigram under the special economic zone
policy. This led to resistance by the villagers. Clashes with the police followed, fourteen
villagers died and there were accusations of police brutality.2
1
AjoyAshirwadMahaprashasta, 'Fight for Land' (2011) 28 Frontline, see the Frontline website: lt;
http://www.frontline.in/fl2811/stories/20110603281112500.htm>.

2
See Wikipedia: lt;http://en.wikipedia.org/wiki/Nandigram>.

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Besides development related IDP’s India also has IDP’s induced by conflict. Ironically,
conflict-induced internal displacement in India has been a great equaliser, affecting all
communities, of all religions, and tribal groups in tragically similar ways. In the absence
of any Central government monitoring agency or data, human rights groups (like ACHR
and Amnesty International) and organisations like the IDMC (International Displacement
Monitoring Centre) conservatively estimate 6,00,000-plus conflict-induced internally-
displaced people in India 3. Estimates of Kashmiri Pandits displaced since 1990 range
from 2.5 to 4 lakh.4 In the North-East alone, 47,000 people displaced by Bodo-Muslim
and Bodo-Santhal violence in 1993, 1996 and 1998 have been in camps in Kokrajhar and
Bongaigaon districts of Assam (of those displaced in 1996 and 1998, 44,000 were
estimated to be children);5 125,000 people displaced by Bodo-Muslim violence in 2008
have been in camps in Darrang and Udalguri districts of Assam; 6 4,000 people were
displaced by violence between Khasis and Nepali-speakers in 2010 in the Assam-
Meghalaya border region;7 31,703 Brus were displaced from Mizoram to Tripura in 1997
and 2009.8 In Chhattisgarh more than one lakh people have been displaced since June
2009.9 Thousands continue to be displaced in Gujarat (since 2002) and in Orissa after
violence in 2007 and 2008.10 These numbers are generally of those living or registered in

3
Norweign Refugee Council : Global IDP Database, PROFILE OF INTERNAL DISPLACEMENT :
INDIA, at p. 7 available at http://www.idpproject.org (last accessed on 03.10.2012.

4
Id. at p. 13.

5
Id. at p. 17.

6
Id.

7
Id. at p. 18.

8
Id. at p. 20.

9
Id. at p. 19.

10
Id. at p. 31.

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camps, not those dispersed elsewhere, still without a durable solution or resettlement.
Add them, and the figures swell.

With respect to an important starting point in addressing these displacement issues

would be to assess the situation from the perspective of relevant international legal
standards. The Government of India has recently taken initiatives to draft national
policies and laws to protect the rights and interests of IDPs. The initial efforts of the
Ministry of Rural Development (MoRD) resulted in the adoption of the National
Rehabilitation and Resettlement Policy 2007 11. Thereafter, MoRD drafted two bills,
namely, the Land Acquisition (Amendment) Bill 2009 12 and the Rehabilitation and
Resettlement Bill 200913, to underline the rights of IDPs. The content of these bills was
discussed at the National Conference on Relief and Rehabilitation of Displaced Persons,
which the National Human Rights Commission (NHRC) of India organized in 2008.
NHRC put forward thirty-six suggestions and recommendations on these bills. These
efforts by the government of India have led to the drafting of a new bill known as the
Land Acquisition, Rehabilitation and Resettlement Bill 2011 (LARR 2011) 14, which this
article examines against the backdrop of the framework of international legal norms and
developments in this area.

With respect to conflict infuced displaced people India has not moved an inch towards
recognising the nature of targeted violence in law; recognising those displaced by each
episode of targeted violence not as mere “migrants” but as IDPs with certain inviolable
rights; or creating national standards for comprehensive remedy and reparation, including

11
See Marco Simons, The Emergence of a Norm Against Arbitrary Forced Relocation, 34 COLUM. HUM.
RTS. L. REv. 95, 127-28 (2002).

12
See ROBERTA COHEN & FRANCIS M. DENG, MASSES IN FLIGHT: THE GLOBAL CRISIS OF
INTERNAL DISPLACEMENT 258.
13

See Elizabeth E. Ruddick, Note, The Continuing Constraint of Sovereignty: International Law,
International Protection, and the Internally Displaced, 77 B.U.L. REv. 429, 480 (1997).

14
See Internally Displaced Persons: Report of the Representative of the Secretary-General, Mr. Francis
Deng, Submitted Pursuant to the Commission on Human Rights Resolution 1993/95 and 1994/68, U.N.
ESCOR Comm. on Hum.Rts., 51st Sess., Item 11 (d), 14, U.N. Doc. E/CN.4/1995/50 (1995) .

10
relief, rehabilitation and compensation.15 There is no policy or law that recognises the
grave gendered implications of violent displacement — separation of family members,
alteration of gender roles when families are separated, break down of family structures,
loss of community support, desperate pressures of child care, increased domestic
violence, sexual exploitation in exchange for relief handouts, and the long-term
psychosocial trauma that accompanies all this. We have nothing but arbitrary and
selective amounts of compensation being doled out, guided by a sense of charity rather
than by a rights standard. And all of this, with no possibility of reparative justice — of
apology by States for failing to protect, of guarantees for the future — no participation of
survivors in planning the terms of their resettlement, no promise of justice. The tragic
failure of policy is compounded by the fact that much of this was recognised and
addressed in the Draft Prevention of Communal and Targeted Violence (Access to Justice
and Reparations) Bill, 201116, which has been languishing with the government for the
past year.

15
See Guiding Principles on Internal Displacement: Report of the Representative of the Secretary-General,
Mr. Francis M Deng, Submitted Pursuant to Commission Resolution 1997/39, U.N. ESCOR Comm'n on
Hum. Rts., 54th Sess., Agenda Item 9(d), Addendum 2, 8-12, U.N. Doc.E/CN.4/1998/53/Add.2 (1998)
[hereinafter Guiding Principles.]

16
See Francis Deng, Foreword to SUSAN FORBES MARTIN, HANDBOOK FOR APPLYING THE
GUIDING PRINCIPLES OF INTERNAL DISPLACEMENT i-iii (United Nations Office for the
Coordination of Humanitarian Affairs 1999) (providing field practitioners and advocates with pointers for
applying the Guiding Principles in the field), available at
http://www.reliefweb.int/rw/lib.nsf/db900SID/LGEL-5CTJBU/$FILE/IDPprinciples.pdf?OpenElement
(last visited Feb. 19, 2005).

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 Chapter 1: BACKGROUND: THE EXISTING INTERNATIONAL LEGAL
FRAMEWORK

The formation of the UN Guiding Principles on Internal Displacement (Guiding

Principles)17was the outcome of the evolution of the ideal of a robust law of humanitarian
assistance. Given that the Guiding Principles do not constitute a legally binding
instrument, this is a very modest beginning.18 Furthermore, the Guiding Principles adopt a
'needs-based', rather than a 'rights-based', approach. 19 A rights-based approach relates to
responsibilities and recognizes the concept of perfect and imperfect obligations and the
duty of all parties to respect the rights of others. Such an approach also aims to enhance
people's capabilities and relates closely to such principles as participation and
accountability. Although rejecting a rights-based approach, the Guiding Principles are
considered to be a turning point in the development of contemporary international law
principles on IDPs and in the formation of a progressive attitude towards IDPs. Its
importance as a framework to be adhered to by states and institutions cannot be denied.
There is a growing realization that internal displacement must be addressed at the
national level, both as a matter of legal obligation and to best respond to national
characteristics. However, both the international legal standards reflected in the Guiding
Principles and the range of domestic legislative and policy measures that must be
complied with present significant obstacles in the exercise of national responsibility.

The Guiding Principles make a vital contribution to this area by formulating measures of
protection and informing their structure. The Guiding Principles on IDPs consist of thirty
principles that are comprehensive in scope and apply to all phases of displacement,
17
Guiding Principles on Internal Displacement, UN doc E/CN.4/1998/53/Add.2.

18
Walter Kälin, Guiding Principles on Internal Displacement — Annotations (ASIL and Brooking
Institution, 2000).

19
See WALTER KALIN, GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT: ANNOTATIONS
3 (Am. Soc'y of Int'l L. & Brookings Institution Project on Internal Displacement, Studies in Transnational
Legal Policy No. 32, 2000) (highlighting that refugees are granted a special legal status because they have
lost the protection of their own country), available at http://www.asil.org/study-32.pdf (last visited Feb. 19,
2005).

12
namely protection from displacement, protection during displacement and protection
after displacement. The Guiding Principles on IDPs consist of five sections underlining
significant mechanisms/measures for the protection of IDPs. In recent years, some of
these measures, for instance, the proportionality test 20, the right to property21, and the
restitution of property to IDPs22, acquired prominence in addressing the needs of IDPs.
Interestingly, in a modest sense, these measures ensure the rights and interests of IDPs
during all three phases of displacement: the proportionality test, in Section II, ensures
protection from displacement: the right to property, in Section III, provides protection
during displacement; and restitution/compensation/ resettlement/re-integration, in Section
V, guarantees protection after displacement. Although these principles continue to be
debated among policy makers and international law scholars, it seems clear that these
measures have acquired a normative status such that they must be taken into account in
the framing legislation and in judicial action of any state in respect of IDPs.

Section II deals with the principles related to protection from displacement. Over the
years, the increased significance of this section's proportionality test has been noted.
Section III focuses on principles related to protection during displacement. Principle 21
of this section guarantees a right to property. Section V lays down principles related to
the return, resettlement and reintegration of IDPs. Principle 29(2) guarantees the
restitution of property to IDPs. Challenges to these principles have been the cause of
concern at an international and national level. In India, there is a general concern that
many of these principles have been violated, yet it is clear that India has simply not been
able to develop laws to prevent this violation. Indeed, there is a fundamental lack of
judicial, executive and legislative support in this area in India.

20
See generally Michael Cernea, Bridging the Research Divide: Studying Development Oustees, in IN
SEARCH OF COOL GROUND: WAR, FLIGHT AND HOMECOMING IN NORTHEAST AFRICA
(Tim Allen & James Currey eds., 1996)

21
Mahendra Lama, Internal Displacement in India: Causes, Protection and Dilemmas, FORCED
MIGRATION REv., Aug. 2000, at 25

22
See generally Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in
India: Looking Back to See Ahead (1950-2000), 14 AM. U. INT'L L. REV. 413, 458 (1998)

13
1.1 Principles related to the first phase of displacement: the proportionality test

Principle 6 is considered one of the most important provisions in the Guiding Principles.
It expressly recognizes a right not to be arbitrarily displaced. This right is inferred from
various human rights guarantees, including freedom of movement and residence, and
humanitarian law provisions dealing with the forced displacement of civilians during
armed conflict.23 Paragraph 2 of Principle 6 sets forth categories of prohibited
displacement, including displacement occasioned by armed conflict. This principle
reflects several provisions of the Fourth Geneva Convention 24 and the Additional
Protocols.25 To strengthen the protection mechanisms in this phase of displacement,
Principle 6(2)(c) prohibits displacement in cases of large-scale development projects, that
are not justified by compelling and overriding public interests. Furthermore, Principle
6(3) stipulates that displacement shall last no longer than required by the circumstances.
Principle 8 prohibits displacement that is carried out in a manner that violates the right to
life, dignity, liberty and security of those affected. Moreover, Principle 9 obliges states to
protect indigenous peoples, minorities, peasants, pastoralists and other groups with a
special dependency on and attachment to their lands from displacement.

The Guiding Principles also cover other basic guarantees such as protection of IDPs from
discriminatory arrest and detention resulting from their displacement (Principle 12(3)),
right to an adequate standard of living (Principle 18), the protection of property (Principle
21), and the right to education (Principle 23).

Of particular importance during the first phase of displacement is the proportionality test
(Principle 6(2)(c)), which forms part of the body of customary international law and
23
Robert Kogod Goldman, 'Internal Displacement, the Guiding Principles on Internal Displacement, the
Principles' Normative Status, and the Need for Their Effective Domestic Implementation', Lectures
Delivered at Indian Society of International Law, New Delhi, Sept 2005, 4.

24
Thomas R Berger, The World Bank's Independent Review of India's Sardar Sarovar Projects, 9 AM. U.
J. INT'L L. & POL'Y 33 (1993).

25
Anil Patel, Resettlement Politics and Tribal Interest, in THE DAM AND THE NATION -
DISPLACEMENT AND RESETTLEMENT IN THE NARMADA VALLEY 66 (Jean Dreze et al. eds.,
1997).

14
which has its roots in the concept of equity in international law. It prohibits displacement
in cases of large-scale development projects that are not justified by compelling and
overriding public interests and it states the requirements that can justify the forced
relocation of a development project. In other words, it allows projects, such as the
construction of large dams, if they serve a 'compelling and overriding public interest'.
Principle 6(3), which limits the duration of displacement, provides another element to the
proportionality test. Broadly speaking, it attempts to balance humanitarian considerations
with countervailing social, political, developmental and environmental concerns. Taking
economic and developmental considerations into account in the context of human rights
is not a new trend. In fact, recent years have seen the proportionality test becoming the
threshold to review many development projects.

The proportionality test has been subject to considerable debate in recent years.
Moreover, discussions on the substance of the concept have taken on a political nature,
with an increasing stress being placed on issues of displacement, development and human
rights. Its overall formulation has evolved to take into account a varied catalogue of
essential elements and the emphasis and interrelationship between them has changed. It
should be pointed out that this concept suffers from vagueness and has been coined in
abstract terms. The proportionality test may go against the spirit of the protection of
rights of IDPs, being based on the needs of both IDPs and development, although these
needs are not explained. How can the law in this area balance the needs of IDPs and
developmental considerations? How can it best achieve intergenerational equity? How
does displacement interact with political considerations in particular cases? Its
applicability in specific situations is also very unclear.

These are unresolved issues. Shortcomings in the formulation of the Guiding Principles
do not weaken, however, their importance as a framework for future projects.

15
1.2 Principles related to the second and third phases of displacement: property rights of
IDPs in international law

As discussed above, significant normative principles that are enshrined in the Guiding
Principles, in particular the right to property and restitution, constrain the second and
third phases of displacement. During the last few years, these principles have been
discussed and interpreted many times over and much interesting literature has been
produced in this area.

It has been increasingly recognized that it is the dispossession from homes and other
properties that lies at the root of the displacement of IDPs. Thus, it is important that IDPs
should be allowed to retain possession of, or reclaim, any property that they own. Internal
displacement can result from forced evictions as a result of development projects, internal
conflict, natural disasters, the declaration of protected areas (national parks and
sanctuaries), and the declaration of slum areas for clearance.

One of the most interesting and pressing questions in this area is whether there is a
human right to property. This is one of the imponderables of international human rights
law that still awaits an answer. From the beginning, the right to property as a human right
has been controversial. Clearly, Marxists would not share the view that property rights
fall within any of the alternative definitions of human rights. 26 This view led to the
exclusion of private property protection rights in the 1966 International Covenant on
Economic, Social and Cultural Rights (ICESCR) and the 1996 International Covenant on
Civil and Political Rights (ICCPR). An examination of the travaux préparatoires of the
1950 European Convention on Human Rights (ECHR) suggests that the adoption of
article 1 of protocol I dealing with the right to property was controversial. 27 In addition,
26
Patrick Macklem, 'Rybna 9, Praha 1: Restitution and Memory in International Human Rights Law' (2005)
16 European Journal of International Law 1–23.

27
See Suzette Brooks Masters, Environmentally Induced Migration: Beyond a Culture of Reaction, 14
GEO. IMMIGR. L.J. 855, 855 (2000) (noting that environmental events, such as natural disasters and
industrial accidents, and othe environmental factors, like climate change and increased population density,
surpass armed conflicts as the chief cause of involuntary population displacement).

16
there was division among European states regarding the inclusion of the property
protection clause, and the nature of compensation for property expropriated by States
Parties, in the ECHR.28 It is important to mention that article 1 of Protocol I does not
guarantee ownership but, rather, affirms the 'peaceful enjoyment' of property.
Nonetheless, the last fifty years have witnessed a discernible trend, at least in human
rights law, to accord this special status to the entitlement to property.29

In brief, there is an absence of clarity regarding some of the rights covered by the
Guiding Principles. There is disagreement over whether the right to property is a civil and
political right covering registered property, as opposed to an economic, social and
cultural right applicable to the customary claims of indigenous people who link the land
to their rights to food, housing, work and the right to life itself. 30 Moreover, general
human rights instruments do not set forth a right to restitution for property and the soft
law remains vague.31 Thus, the question arises: how can the right to property and
restitution be secured effectively?32The idea that restitution is the primary remedy for all
breaches of international law has caused controversy in the past. 33 One of the challenges
28
Art 1 of the First Protocol to the European Convention says, 'Every natural or legal person is entitled to
the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general principles of international
law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as
it deems necessary to control the use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.'

29
Supra n 6, 1–23.

30
Cecilia Bailliet, 'Researching Transnational Approaches to IDP Protection: A Legal Perspective' (2003)
7–8 Feb Forced Migration Review 10.

31
Id.

32
Megan Bradley, 'The Conditions of Just Return: State Responsibility and Restitution for Refugees',
Working Paper Series, Refugee Studies Centre, available at lt http://www.rsc.ox.ac.uk>.

33
In the Chorzow Factory case, [Germany v. Poland, 1927 P.C.I.J. (ser. A) No. 9 (July 26)] the Permanent
Court of Justice said, 'the essential principle contained in the actual notion of an illegal act — a principle
which seems to be established by international practice and in particular by the decisions of arbitral
decisions — is that reparation must, as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if that act had not been committed.
Restitution in kind or, if this is not possible, payment of a sum corresponding to the value which a

17
in establishing the primacy of restitution lies in the large gap between theory and
practice.34

It is worth recalling the long debate in the International Law Commission regarding
whether the state responsible for an internationally wrongful act must prioritize
restitution. The 2001 Draft Articles on State Responsibility state that reparation can take
the form of restitution, compensation, satisfaction or a combination of these. Here, it is
pertinent to review the report by the International Law Commission on the issue of State
Responsibility and the distinction between primary and secondary rules in the context of
the consequences of international crimes.35 It is important to note the long-standing
disputes between developed and developing states that deal with the treatment of aliens
and, in particular, the expropriation of foreign-owned property. 36 Also, self-contained
regimes, such as those of the World Trade Organization and the European Union, have
their own institutional procedures and specific treaty rules as to reparation. This raises the
question of whether human rights treaties create special regimes for the consequences of
the breach of international obligations that exclude general rules of international
law.37This matter is left uncertain in the ILC Draft Articles.

restitution in kind would bear'. See Christine Gray, 'The Choice between Restitution and Compensation'
(1999) 10 European Journal of International Law 413–23; Dinah Shelton, 'Righting Wrong: Reparations in
the Articles on State Responsibility' (2002) 96 American Journal of International Law 832–73.

34
Gray, Id.

35
J Combacau and D Alland, 'Primary and Secondary Rules in the Law of State Responsibility:
Categorizing International Obligations' (1985) 16 Netherlands Year Book of International Law 81–109.

36
There was a long debate as to whether internationally wrongful acts against foreign nationals were an
exception to any general rule of the primacy of restitution in kind. The fundamental disagreement on this
issue between the arbitrators in Texaco v Libya, 53 ILR (1979) 389, and BP v Libya, 53 ILR (1979) 297, is
notorious. In the Texaco case the arbitrator relied on the dictum in the Chorzow Factory case and awarded
restitution on the basis that this was the primary remedy in international law. In Contrast, the arbitrator in
the BP case examined not only the jurisprudence of judicial and arbitral decision but also state practice in
the area of expropriation and concluded that there was no support for the proposition that restitution was
the primary remedy in international law available at the option of the injured state in cases of
nationalization. See Kamal Hossain and SR Choudhury (eds), Permanent Sovereignty over Natural
Resources in International Law: Principle and Practice (Francis Pinter, 1984); NicoSchrijver, Sovereignty
over Natural Resources: Balancing Rights and Duties (CUP, 1997).

37
See, James Crawford, 'The ILC's Articles on Responsibility of States for Internationally Wrongful Acts:
A Retrospect' (2002) 96 American Journal of International Law 874–90; Gray, above n 13; Bruno Simma,

18
The right to housing has been recognized as an economic, social and cultural right
guaranteed by the ICESCR.38 As a recent report by the Committee of the ICESCR notes,
there have been some positive developments in addressing the housing problem
worldwide, but significant challenges remain. According to General Comment 4 of the
Committee, 'adequate' housing includes: (a) legal security of tenure; (b) availability of
services, materials, facilities and infrastructure; (c) affordability; (d) habitability; (e)
location; and (g) cultural adequacy. 39 In decision 2001/122, the Sub-Commission
entrusted Paulo Sergio Pinheiro with the preparation of a working paper on the return of
refugees' or IDPs' property. He has produced two reports pursuant to this mandate.

The first report, submitted to the Sub-Commission on 12 June 2002, 40 notes a number of
issues that require further study. The report notes that forced displacement is often
precipitated by forced eviction and that this constitutes a gross violation of human rights.
The report revisits article 49 of the Geneva Convention, relating to the Protection of
Civilian Persons in Time of War 1949,41 article 75(1) the Rome Statute of the
International Criminal Court,42 and article 34 and 35 of the Draft Articles on State
Responsibility.43 The report recognizes the progress made but asserts that restitution is an

'Self-Contained Regimes' (1985) 16 Netherlands Yearbook of International Law 111–36.

38
Rights to housing are enshrined in various instruments, eg, art 25 of the UDHR; art 17.1 of ICCPR; art
5(e) of the CERDS; art 2 and 14(2)(h) of CEDAW; art 27.3 of the Convention on Right to Child; etc.

39
Para 8, UN doc HR/GEN/1/Rev.1 at 53 (1994).

40
E/CN.4/Sub.2/2002/17.

41
'Person … evacuated shall be transferred back to their homes as soon as hostilities in the area in question
have ceased'.

42
'The Court shall establish principles relating to reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation'.

43
Art 34 states that full reparation for the injury caused by the internationally wrongful act shall take the
form of restitution, compensation and satisfaction, either singly or in combination. Art 35 states that a State
responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-
establish the situation which existed before the wrongful act was committed.

19
essential remedy, and that the issue of compensation in lieu of restitution requires
detailed examination. However, this concern, while understandable, seems overstated as
the overwhelming consensus is that compensation is not an alternative to restitution but
should be available when restitution is not possible, or when the injured party voluntarily
accepts compensation in lieu of restitution, for example, when property no longer exists,
or when return to the property is not in the victim's best interest.44

The second report was submitted on 28 June 2005. In it, Pinheiro presented the Principles
in Section II on housing and property restitution for refugees and IDPs. Principle 2.1 of
this section ensures the right for refugees and IDPs to have housing, land and/or property
restored, or to be compensated if it cannot be restored, to be determined by an
independent tribunal. Principle 2.2 requires states to demonstrably prioritize the right to
restitution as the preferred remedy for displacement and as a key element of restorative
justice. The right to restitution exists as a distinct right, and it is prejudiced neither by the
actual return nor non-return of refugees and IDPs entitled to housing, land and property
restitution. In addition to this, Principle 21.1 states that all refugees and IDPs have the
right to full and effective compensation as an integral component of the restitution
process. Compensation may be monetary or in kind. The state is required to ensure that
the remedy of compensation is only used when the remedy of restitution is not possible,
when the injured party voluntarily accepts it in lieu of restitution, or when the terms of a
negotiated peace settlement provide for a combination of restitution and compensation.
Thus, the current draft principles take a firm view on the primacy of restitution; this
inevitably entails the need for limits and exceptions to its award.45

Will the challenges that arise in this area be resolved by a mere review of the provisions
relating to the right to property and its corollary rights? Or do the problems go deeper
than the provisions, and relate more to the history of the right to property? Indeed, do we

44
Working Paper Submitted by Paulo Sergio Pinheiro Pursuant to Sub-Commission Decision 2001/122,
E/CN.4/Sub.2/2002/17.

45
For more discussion, see Giulia Paglione, 'Individual property restitution: from Deng to Pinheiro — and
the challeges ahead' (2008) 20 IJRL 391–412; and S Leckie, 'New housing, land and property rights' (2006)
25 Forced Migration Review 52.

20
not need to fundamentally re-think the entire right to property, particularly based on its
historical roots?

The progress made in codifying the state's responsibilities to individuals has bolstered the
arguments of some progressive scholars and governments to the effect that a state's claim
to sovereignty is dependent upon the state effectively shouldering its primary
responsibilities (ie, sovereignty as responsibility). 46This view, and the full implications of
it, is very much a work in progress, but it is clear that failing to hold a state responsible
for its international wrongful acts by failing to transform the aspirations of the Guiding
Principles into reality means that hundreds of millions of people view the right to
property as an empty right.

Higgins states that questions relating to property in international law need to be looked at
within the context of law as a coherent whole. 47The questions of permanent sovereignty
over natural resources, restitution, the nature of compensation, and human rights are all
intertwined and law looked at in isolation excludes relevant factors from consideration.
Her observations reflect the division of opinion among academics and within
international forums on property issues in international law and represent an attempt to
construct a comprehensive approach to the contemporary international law on property.

46
See, FM Deng, 'Sovereignty, Responsibility and Accountability — A Framework of Protection,
Assistance and Development for the Internally Displaced', Concept Paper for the Brooking Institution-
Refugee Policy Group Project on Internal Displacement, 1995; Roberta Kohen, 'Some Reflections on
National and International Responsibility in Situation of Internal Displacement' in OP Mishra (ed), Forced
Migration in the South Asia Region (Manak Publication Pvt Ltd, 2004), 346; L Henkin, 'An Agenda for the
Next Century: The Myth and Mantra of State Sovereignty' (1994) 35 Virginia Journal of International Law
115; Judge CancadoTrindade made a fundamental point to this effect in his separate opinion appended to
the Kosovo advisory opinion (Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion of ICJ, 22 July 2010).

47
Rosalyn Higgins, 'The Taking of Property by the State: Recent Developments in International Law'
(1982) 176 Recueil Des Coure.

21
CHAPTER 2: INDIA'S APPROACH TO THE THREE PHASES OF DISPLACEMENT

2.1 The first and second phases: public purpose and the proportionality test

The most basic legal question that can be posed here is: does India's current legal and
institutional framework adhere to the measures laid out in the Guiding Principles
examined above? In other words, is it adequate to address the rights implications of
displacement? How do the State Rehabilitation Laws and Policies address this issue? Are
human rights concerns mainstreamed in the relief and rehabilitation process? How do we
ensure that human rights are better integrated into the various legislations, policies and
plans drawn at different levels to deal with development-related displacement? What
would be the most effective strategies be to deal with the relief and rehabilitation of
IDPs? Does the LARR Bill 2011 adequately integrate human rights concerns?

The fact is that the prevailing situation of development-induced displacement in India is

one in which irrational governmental regulatory action affects private property in such a
ways as to obligate the government to pay compensation. The legislation at the centre of
the debate is the Land Acquisition Act 1884 and the Indian Forest Act 1927, which are of
colonial vintage.48 After independence, the Forty-Fourth Constitutional Amendment Act
1978 abolished the right to property as a fundamental right and incorporated it merely as
a constitutional right to be regulated by ordinary law. Consequently, article 19(1)(f) and
31 were deleted, and the new Chapter IV, namely the Right to Property (article 300-A),
was inserted in the Indian Constitution. Article 300-A provides that 'no person shall be
deprived of his property save by authority of law'. This article gives the government an
inherent right to take property. This power is known as 'eminent domain'. However, it
imposes only one limitation on the power of eminent domain, namely, the authority of
law. In view of the decision of the Supreme Court in the Maneka Gandhi case49 and a
48
Jaivir Singh, '(Un)Constituting Property: The Deconstruction of the “Right to Property” in India', CSLG
Working Paper Series, CSLG/WP/04–05.

49
Maneka Gandhi v Union of India, AIR 1985 SC 597.

22
series of subsequent cases, the validity of law depriving a citizen of his property can be
challenged on the ground that it does not provide for the payment of compensation and is
not for 'public purpose'.50 Thus, the expression 'public purpose' becomes important in
assessing just acquisition.

Briefly, the Land Acquisition Act 1894, is founded on the principle of eminent domain of
the state. The Act empowers the Collector of the district, or any government officer
specially appointed, to exercise their independent and quasi-judicial power. It requires
public notification under section 4 to inform the public of the state's intention to acquire
land for what it claims to be a 'public purpose'. The courts in India and the Law
Commission of India have examined issues relating to declarations issued under section 6
of the Land Acquisition Act 1894, which led to the promulgation of the Land Acquisition
(Amendment) Act 2002 (LAA), enabling authorities to make a fresh declaration within
180 days of the judgment of a court if any action or proceeding is taken in pursuance of a
section 4(1) notification, or if any declaration made under section 6(1) has been set aside
or quashed by a court.51

It is significant that subsequent amendments to the LAA in 1984, and the new bill, the
50
JN Pandey, Constitutional Law of India(Central Law Agency, 2004), 599–601.

51
The subject was taken up suomotuby the 16th Law Commission of India for removing the lacuna
regarding issuing of a fresh notification for the acquisition of land for public purpose under section 4 of the
Land Acquisition Act 1894, which has arisen in view of the decision of the Supreme Court in
PadamsundaraRao v State of Tamil Nadu [JT 2002 (3)SC 1], delivered on 13 Mar 2002, overruling the
view taken in N Narasimhaiah v State of Karnataka [1996 (3) SCC 88], on the ground that fixing of any
further period for making a fresh declaration would amount to legislation by judicial fiat. In the
Narasimhaiahcase, it was held that, where any declaration made under section 6(1) was set aside or
quashed by a court, a fresh declaration could be made within one year from the date of the judgment of the
court. It was this view that was not accepted in the recent case of PadamsundaraRao. The Commission,
therefore, considered it appropriate to examine the said lacuna and recommends amendment of section 6 of
the Land Acquisition Act 1894 with a view to subserve the public purpose, allow the land acquisition
proceedings to be continued without a fresh notification under section 4(1) and render the judicial process
meaningful and efficacious and also to enable the aggrieved owner to vindicate his grievances in the
pending land acquisition proceedings itself.
The Law Commission of India, have, inter alia, recommended amendment in section 6 of the Act to enable
authorities to make a fresh declaration within180 days from the judgment of the court if any action or
proceeding is taken in pursuance of section 4(1) notification or any declaration made under section 6(1) has
been set aside or quashed bythe court.
As the Supreme Court Judgment in the Padamsundaracase overrules the Narasimhaiahcase prospectively,
separate provision is made to cover events after 13 Mar 2002.

23
LARR Bill 2011,52 currently under consideration by the government, neither undermine
the state's power of eminent domain, nor the unassailable power of the state to determine
what constitutes 'public purpose'.53 Instead, these measures widen the scope of public
purpose. For instance, clauses 3(za) and 2(2) of the LARR Bill 2011, when read together,
define 'public purpose' and expressly include the provision of land for infrastructure
projects of the appropriate government and for any other purpose useful to the general
public, assuming that the land has been purchased by a person under lawful contract. 54
Sub-clause (vi) of clause 3(za) is a residuary provision that virtually covers anything, thus
widening the mandate to include any acquisition under eminent domain. 55Thus, the
attempt to constrain and limit the use of 'public purpose' by the courts has been defeated
52
2011 Bill.

53
Working Paper of the World Commission of the World Commission of Dams, Displacement,
Resttlement, Rehabilitation, Reparation and Development, 32, available at lt;http//www.irn..org/wcd>.

54
(za) 'public purpose' includes —
(i) the provision of land for strategic purposes relating to naval, military, air force, and armed forces of the
Union or any work vital to national security or defence of India or State police, safety of the people; or
(ii) the provision of land for railways, highways, ports, power and irrigation purposes for use by
Government and public sector companies or corporations; or
(iii) the provision of land for project affected people;
(iv) the provision of land for planned development or the improvement of village sites or any site in the
urban area or provision of land for residential purposes for the weaker sections in rural and urban areas or
the provision of land for Government administered educational, agricultural, health and research schemes
or institutions;
(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas
affected by natural calamities, or to persons displaced or affected by reason of the implementation of any
scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land in the public interest for —
(A) use by the appropriate Government for purposes other than those covered under sub-clauses (i), (ii),
(iii), (iv) and (v), where the benefits largely accrue to the general public; or
(B) Public Private Partnership projects for the production of public goodsor the provision of public
services;
(vii) the provision of land in the public interest for private companies for the production of goods for public
or provision of public services:
Provided that under sub-clauses (vi) and (vii) above the consent of at least eighty per cent. of the project
affected people shall be obtained through a prior informed process to be prescribed by the appropriate
Government:
Provided further that where a private company after having purchased part of the land needed for a project,
for public purpose, seeks the intervention of the appropriate Government to acquire the balance of the land
it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired
through private negotiations and it shall comply with all provisions of this Act for the remaining area
sought to be acquired.

55
Id.

24
by sub clause (vi).

This sweeping power of the government has led to abuse of power. Undoubtedly, the
concept of 'public purpose' represents 'uneasy compromises, delicately balanced interests,
and dimly discernible contradictions' between the government and the needs of IDPs. For
instance, can land be acquired by the government for private corporations? Section (vi)
and (vii) clearly stipulate provision for this. 56 Activists and civil society groups have
strongly alleged that the 2011 bill will facilitate the transfer of resources to the private
sector.

There seems to be increasing consensus of unresolved incompatibility in the law of

public purpose.57 What constitutes public purpose has deliberately been left open. The
power to determine its definition rests essentially with the executive branch, and Indian
courts have expressed great deference to the state, stating that 'it is primarily for the state
government to decide whether there exists public purpose or not and it is not for the court
to evaluate the evidence and come to its own conclusion whether or not there is public
purpose'.58 This means that Indian courts are effectively abdicating their role in testing the
objectives of these projects. There are high expectations for Indian courts to embody
social justice in the law and not to apply principles mechanically. However, it cannot be
denied that Indian courts have generally endorsed the doctrine of eminent domain.59

Indian policy makers, legislators and courts can, indeed should, make use of international
standards/principles to mitigate the risks. The Supreme Court's numerous judgments
stating that the concept of 'public purpose' needs to be regulated has, unfortunately, had
little or no impact on the ground. There is an increasing concern that the misguided and

56
Id.

57
Dr Usha Ramanathan, 'Displacement and the Law' (1996) 31 Economic and Political Weekly 1486.

58
BajiraoKote v State of Maharashtra (1995) 2 SCC 282.

59
Ram Chand v Union of India, AIR SC 1994.

25
unregulated use of the concept of 'public purpose' for the acquisition of land will only
displace the weaker section of society. As such, Indian policy makers, legislators and
courts should ensure that their engagements with these issues are informed by the
Guiding Principles. For example, an evaluation of the concept of 'public purpose' as set
forth in the Land Acquisition (Amendment) Bill 2011, within the context of Principle
6(2) (C) of the Guiding Principles, would see the use of a proportionality test that takes
into account both a project's overall benefits and the detriment to those that it would
displace.

The Supreme Court of India recently rejected the contention that there was an urgent
need to acquire land in Greater Noida. The court made this decision after it was informed
that the Allahabad High Court had quashed the notification issued by the Greater Noida
Authority based on the fact that the agricultural land at issue was initially acquired for
industrial purpose at a low price but was later transferred to builders for residential use.
The court examined whether efforts had been made to find alternative land, not in
agricultural use.60

On 31 May 2011, the Allahabad High Court had quashed the acquisition of 170 hectares
in Gulistan village in Greater Noida for industrial development. It declared that the
acquisition of land in Greater Noida for residential apartments, after invoking section 17
of the Land Acquisition Act and refusing to accept objections on the ground of urgency,
was a 'colourable exercise of power'. This was the third time that the Allahabad High
Court had set aside land acquisition in Greater Noida and it led to street confrontations
between aggrieved farmers and the police. 61On 12 and 15 May 2011, the Allahabad High
Court had also quashed the acquisition of more than 170 hectares in Gautam Budh Nagar

60
See, The Hindu
<htpp://www.hindu.com/2011/06/28/stories/2011062860910100.htmCached>. (last accessed on
12.10.2012).

61

See
<http://articles.timesofindia.indiatimes.com/2011-05-31/noida/29603891_1_greater-noida-land-acquisition-
urgency-clause-land-for-public-purposes>. (last accessed in 10.10.2012)

26
district.62

These instances of land acquisition provide a good opportunity for courts in India to use
the proportionality test as an international standard against which to assess their
lawfulness. The proportionality test prohibits displacements that are not justified by
compelling and overriding public interest, courts in India are attempting to balance these
competing objectives. Indian courts should consider expressly referring to the
proportionality test to make their decisions more meaningful and protective of rights.

Nevertheless, many activists and civil society groups have proposed that 'public purpose'
should include such purposes by which the government intends to bring into effect the
Directive Principles of State Policy of the Constitution of India. These Principles are an
unimpeachable listing, and part of the Constitution, of state responsibilities, chiefly
related to social equity. Furthermore, such groups propose that land acquired for
individuals, or companies producing or offering goods or services for profit, should not
be considered a public purpose. Therefore, these suggested legal changes for state
acquisitions of land would require proof that an acquisition is for a purpose related to
social equity.63

It is also important to note that the power of eminent domain invariably conflicts with
Constitutional imperatives contained in Part XVI of the Constitution of India, which is
designed to protect Scheduled Tribes.64The LARR Bill 2011 provides for the
rehabilitation and resettlement of persons affected by the acquisition of land for projects
of public purpose, or by involuntary displacement due to any other reason. In brief, the
new bill subjects all eminent domain acquisitions, as well as private purchases of over
100 acres in rural areas and 50 acres in urban areas, to a mandatory rehabilitation and
62
Id.

63
See AbhijiGuha, 'Resettlement and Rehabilitation: First National Policy' (2005) 40 Economic and
Political Weekly 43.

64
UshaRamanathan, 1995, cited in Working Paper of the World Commission on Dams, Displacement,
Resettlement, Rehabilitation, Reparation and Development, available at lt;http://www.irn.org/wcd> 32.

27
resettlement (R&R) package, with a host of benefits for both affected landowners and
livelihood losers. These benefits include annuities, a transportation allowance, land for
land, a portion of capital gains from resale and the construction of alternative housing and
communal amenities in the event of the loss of homestead. Procedural safeguards have
also been introduced, including social impact assessment, adequate notification and
consent of at least 80 per cent of the affected community. These measures show
considerable progress in ensuring the rights of IDPs.

However, the government's sincerity in recognizing the justiciable rights of IDPs can be
easily questioned, given that two separate bills were placed before Parliament in 2009.
The historic demand to link land acquisition and rehabilitation together as justiciable
rights for IDPs was not taken into consideration when presenting these bills. The new bill
of 2011 merged the two bills of 2009 into one but did not address the demand for a cause
and effect relationship between acquisitions and resettlement and did not yield legal
measures in this regard. Many believe that the merging of the two bills was an attempt to
cover up issues relating to development induced displacement.65

2.2 The third phase: rehabilitation & resettlement in Indian law and restitution and
compensation in international law

As noted above, the right to property in India is guaranteed by article 300-A of the Indian
Constitution. The concept of eminent domain has been an underlying legal principle for
land acquisition in India. This leads to the issue of the nature and extent of state
responsibility for the rehabilitation of the displaced. The state in India has been reluctant
to admit responsibility beyond the payment of compensation as determined by law.
Nevertheless, it has been armed with draconian powers of compulsory land acquisition.
Recently, the Ministry of Rural Development of the Government of India issued the
National Rehabilitation and Resettlement Policy 2007. 66 In fact, the government would

65
Mihir Desai, 'Land Acquisition Law and the Proposed Changes' (2011) 46 Economic and Political
Weekly 95–100.
66
Published in the Gazatte of India, Extraordinary Part-I, Section 1, No. 46, dated 17 Feb 2004.

28
always prefer to deal with the rehabilitation of IDPs in an ad hoc manner. Moreover, such
a policy has legitimized the rights of government to acquire land without the consent of
IDPs with full knowledge that such actions have traumatic, psychological and socio-
cultural consequence for those affected.67 Central government and state government have
continued to resist outlining the precise nature of its responsibilities for rehabilitation,
even in the form of a comprehensive policy statement. Most state governments either do
not have comprehensive rehabilitation policies or legislations or, where they do exist,
such policies are observed more in the breach. The state governments of Madhya
Pradesh, Maharashtra and Karnataka, for instance, have passed progressive laws that
provide for the rehabilitation of the displaced in the command area of big dams.
However, these laws are only enabling provisions, and the state governments have chosen
not to exercise these powers for any project.68Interestingly, these policies provide for
'land for land', but all carry an escape clause of 'whenever possible'.
The nature of debate on restitution and compensation in India can be well understood
when one considers the background of recent decisions of the High Courts of states and
the Supreme Court. Interestingly, the return of land to its owners when its purpose has
been frustrated has been a concern for the courts.

In Tata Motors Limited and Another v State of West Bengal (28 September 2011),69for
example, two writ applications preferred by Tata Motors Limited (Tatas) were heard by
the Calcutta High Court between 28 July 2011 and 16 September 2011. One of these
challenged the constitutionality of the Singur Land Rehabilitation and Development Act
2011 (Act), which enjoins, inter alia, Tatas to restore the vacant status of the land in

67
Preamble of the National Rehabilitation and Resettlement Policy, 2007.

68
Madhya Pradesh enacted a law for resettlement and rehabilitation as early as 1985, following this
Maharashtra enacted a Rehabilitation Act in 1986 that received the president's assent in 1989, and then
Karnataka enacted a rehabilitation law in 1987. Four other states of India, Andhra Pradesh; Tamil Nadu;
Orissa; and Gujarat, issued government orders/resolutions on the rehabilitation of families affected by
displacement caused by development.

69
In the High Court at Calcutta, Constitutional Writ Jurisdiction, Appellate Side, WP No 9949 (W) of 2011,
With WP No 10198 (W) of 2011.

29
favour of the District Magistrate in Hooghly. The Act seeks to revoke the takeover of 997
acres of land for a Tatas car factory.

Section 5(3) of the Act determines the amount of interest to be paid by the state
government on the return of the purchase price paid.
Tatas argued as follows:
1. The impugned Act (state Act) was absolutely repugnant to the Land Acquisition
Act 1894, and was, therefore, void. It relied upon article 254(1) of the Indian
Constitution, which provides that if any state law was contrary to a law made by
Parliament, or the law made under the Concurrent list, the law of Parliament
would prevail. The Land Acquisition Act 1894, being a law made by Parliament
underscores the concept of 'eminent domain', and was followed in cases, right
from State of Bihar v Kameshwar Singh70 to the two latest five Judges' bench
decisions of the Supreme Court in Rajiv Sarin v State of Uttarakhand and KT
Plantation (P) Ltd v State of Karnataka.71

2. Tatas next contended that section 4(3) of the Act, which was interpreted in such
a way as to direct Tatas to restore vacant possession in favour of the District
Magistrate in Hooghly, was an unguided power. Tatas relied on State of
Maharashtra v Mrs Kamal SukumarDurgule and Others.72 It was submitted that
any action of the government or a statutory authority in undue haste constitutes
malice in law and could be presumed to be arbitrary. 73Thus, the action of the
government in enacting the Act and the rules thereunder and its implementation of
the Act through its possession of the land on 21 June 2011 was prima facie an
70
AIR 1952 SC 252.

71
Judgment delivered on 9 Aug 2011, for more details see lt;http://www.indiankanoon.org/doc/1214980/>.

72
AIR 2002 Kant 365.

73
SarvaShramikSangh, Bombay v Indian Hume Pipe Co Ltd and Another (1993) 2 SCC 386; RS Garg v
State of UP and Others (2006) 6 SCC 430; ZenitMataplast Private Limited v State of Maharashtra and
Others (2009) 10 SCC 388; and Fuljit Kaur v State of Punjab and Others (2010) 11 SCC 455.

30
 abuse of power.

3. No public purpose was disclosed in the Act. Tatas said that the willingness or
unwillingness of a person was not material in acquisition, referring to the
CharanjitLalChowdhurycase. Therefore, the reference to unwillingness did not
signify any public purpose.

4. Thereafter, Tatas came to the question of abandonment and argued that there
was no abandonment on the part of Tatas. 'Abandonment' was interpreted here as
meaning permanently leaving the land, and it was contended that Tatas had not
done this, that they had only removed their plant, equipment and machinery from
the site.

The single judge bench of the Calcutta High Court held that the Singur Land
Rehabilitation and Development Act 2011 is constitutional and valid. The Act is not
wholly an exercise of the power of the state legislature under entry 18 of list II of the
seventh schedule to the Constitution of India, but is also an exercise of its power under
entry 42 of list III. Hence, this was a case of acquisition of land leased out to Tatas. The
court also held that a sufficient public purpose had been made out. However, it was
judged that the District officials had exceeded their powers in taking possession of the
land without any notice to Tatas and had acted hastily. Therefore, the District Magistrate
and the Superintendent of Police in Hooghly were appointed as Joint Special Officers, in
addition to their official duties, to ensure the safe and smooth transition of the land from
Tatas to the state. They were charged with having to take all necessary steps to ensure
that Tatas could remove their items. Both the writ applications were disposed of.

Interestingly, clause 95 of the 2011 bill does not require return of unutilized land or
acquired property to landowners.74 Clearly, it is unfortunate that, where restitution is

74
Clause 95, LARR Bill 2011, states 'When any land or part thereof, acquired under this Act remains
unutilized for a period of ten years from the date of taking over the possession, the same shall return to the
Land Bank of the appropriate Government by reversion.'

31
possible, it is not considered as an alternative remedy for IDPs by the bill.

In September 1997 the Supreme Court (SC) passed a landmark judgment in the Samatha
case75 that established that government lands, tribal lands, and forestlands in the
scheduled Areas cannot be leased out to non-tribal’s or to private companies for mining
or industrial operations. Consequently, all mining leases granted by the State
governments in V Schedule Areas therefore became illegal, null and void and the State
Government was asked to stop all industries from mining operations mining activity
should be taken up only by the State Mineral Development Corporation or a tribal co-
operative if they are in compliance with the Forest Conservation Act and the
Environment Protection Act at least 20% of the net profits should be set aside as a
permanent fund as part of business activity for establishment and provision of basic
facilities in areas of health, education, roads and other public amenities after the 73rd
Amendment and the Panchayat (Extension to Scheduled Areas) Act, under the Gram
Sabhas are competent to preserve and safeguard community resources and reiterated the
right of self-governance of Adivasis. ? in cases where similar Acts in other States do not
totally prohibit grant of mining leases of the lands in the Scheduled Area, similar
committee of Secretaries and State Cabinet Sub-Committees should be constituted and
decision taken thereafter. Before granting leases, it would be obligatory for the State
government to obtain concurrence of the Central Government which would, for this
purpose, constitute a Sub-Committee consisting of the Prime Minister of India, Union
Minister for Welfare, Union Minister for Environment so that the State's policy would be
consistent with the policy of the nation as a whole. It would also be open to the
appropriate legislature, preferably after a thorough debate/conference of all the Chief
Ministers, Ministers concerned, to take a policy decision so as to bring about a suitable
enactment in the light of the guidelines laid down above so that there would emerge a
consistent scheme throughout the country, in respect of the tribal lands under which
national wealth in the form of minerals, is located.

The Constitutional Provisions (Fifth Schedule and Article 244) empower the Governor of

75
Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297

32
a State to regulate and make regulations for Scheduled areas and for Scheduled Tribes so
that what rightfully belongs to the tribals cannot be taken away by any means. The
majority decision in the Samatha Case has held that the granting of mining lease to non-
tribals in Scheduled Area is violative of the Fifth Schedule. However, it is felt that Fifth
Schedule and Article 244 cannot purport to take away the sovereign right of the
government to transfer its land in any manner. Justice Pattanaik in his dissenting view has
observed that "A combined reading of Article 244 and Fifth Schedule of the Constitution
would indicate that there is no constitutional obligation on the Governor to make
regulations prohibiting transfer of Government land in favour of a non-tribal within the
Scheduled Area".

The majority decision has directed for all States where similar Acts do not totally prohibit
grant of mining leases to non-tribals in Scheduled Area, mining leases in such areas can
be granted by the State Government only after formation of Committee etc,
(para 129, 130). Such a direction raises fundamental interpretation issue relating to the
Constitution on the applicability of a Central Act Mines and Mineral (Development &
Regulation) Act, 1957 - (MMDR Act) which was enacted under the Constitutional
Provisions of the Seventh Schedule of the Constitution (Entry 54 - List 1). The MMDR
Act, 1957, which extends to the whole of India, empowers the State governments to
grant mining leases and the Fifth Schedule to the Constitution does not fetter the
operation of the Parliamentary Law. Further, the Fifth Schedule empowers the Governor
to make regulations, which he may not exercise, while the majority judgement at para 50
states that the Fifth Schedule 'enjoins' the Governor to make regulations.
(iii) The decision in the Samatha case that the 1959 Regulations are retrospective in intent
is a conclusion diametrically opposed to a binding decision (of September 1995) of a
Bench of three Judges of the Supreme Court - Dy. Collector vs. S.Venkataramaniah 76.
(iv) The 1959 Regulations were made by the governor under Paragraph 5(2) of the Fifth
Schedule to regulate transfer of land in the Scheduled Areas specifically mentioned in the
Regulation. In the making of this Regulation, the Governor obviously did not intend to
specifically affect any of the provisions of the MMDR Act, 1957 in the Scheduled Areas

76
1995 (6) SCC 545

33
in the State, much less to add to repeal or amend any of its provisions. The MMDR Act
1957, which extended to the whole of India, continued to apply to Scheduled Areas in the
State of Andhra Pradesh in so far as they related to mining leases and prospecting
licenses granted by the State Government under the provisions of the MMDR Act,
1957. In making the 1959 Regulations the Governor has not purported to add, to repeal or
amend any part of the word "persons" in Clause 3 of the 1959 Regulations could not
possibly have meant the State Government (as the authority empowered under the
MMDR Act, 1957, to grant mining leases/prospecting licenses) as this would otherwise
involve an amendment of the provisions of the MMDR Act, 1957, as applicable to the
Scheduled Areas.

It may be noted that Justice J.Pattanaik recorded in the minority Judgement in the
Samatha Case that "in my considered opinion the expression 'person' used in Section 3(1)
(a) of the Regulation should have its natural meaning throughout the Section to mean a
'natural person' and it does not include the State".

In addition to the several substantial questions of law as to the interpretation of the

Constitution narrated in the preceding paragraph, the moot question is the interpretation
of para 5(2) of the Fifth Schedule to the Constitution [Appended as Annexure -
2]. While interpreting para 5(2), the Court cannot frame regulations and provide
something more than what is provided in para 5(2). Every Governor has power to frame
Regulations depending upon the need and for the peace and good governance of any
scheduled area in his State. The majority view in the Samatha case has virtually rewritten
the Fifth Schedule to the Constitution by making it mandatory for the Governor to make
regulation prohibiting the State Government from transferring its lands to non-tribals.

In 1994, the Narmada BachaoAandolan filed a public interest litigation petition 77 with the
77
People's Union for Democratic Rights v. Union of India (1982) 1 S.C.R. 456 (announcing that any person
acting in the public interest may petitionthe Indian Supreme Court on behalf of the underprivileged); see
generally VijayashriSripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India:
Looking Back to See Ahead (1950-2000), 14 AM. U. INT'L L. REV. 413, 458 (1998) (commenting on the
success of judicial review in India and the use of constitutional litigation as a tool to liberate India's poor
and oppressed citizens). The Supreme Court, in its recent past, expanded its human rights jurisdiction in a
judge-led revolution known as the Public Interest Litigation ("PIL") movement in India. Id. at 453. The

34
Supreme Court of India.78The Indian government halted work on the dam in 1995 due to
a Supreme Court ruling recognizing that the rehabilitation of displaced people was
inadequate.79 However, an October 18, 2000 Indian Supreme Court ruling allowed
construction of the SSP to proceed.80

This article has shown that the new institutional mechanisms are needed to ensure that the
property rights of original landowners are protected in the current climate of economic
development in India. One method that has been suggested is to vest the ownership of the
land being developed in a new company and to lease out the land, giving the original
landowners a proportionate stake in the land-holding company. An alternative another
idea would be to allot shares in the new enterprise to those displaced from the
land.81However, the 2011 bill says nothing regarding state regulation of such negotiations
to ensure equity.

Court, in the beginning stages of the movement, broadened the concept of locus standi, or standing, and
removed the previous requirement where petitioners were required to show personal injury. Id. at 454.
Though PIL is not without critics, the Court played a vital role in reinvigorating respect for the Constitution
and for the fundamental rights provisions contained within. Id. See generally South Asian Human Rights
Documentation Centre, Human Rights Features, Collective Rights in India: A Re-assessment (describing
the disparity between India's laws on the books and what occurs in practice), available
athttp://www.hrdc.net/sahrdc/hrfeatures/HRF36.htm(last visited Feb. 19, 2005). India has a progressive
constitution, a court system that has witnessed an increase in public interest litigation, and a society with an
energized spirit that contributed to the creation of the Narmada Movement. Id. Yet, India has not attained
its significant potential for the protection of collective rights because PIL does not operate within a legal
framework, and does not have the type of institutional support that provides it consistency or sustainability.
Id. As a result, the progress of the PIL movement is largely subject to the attitudes of the judges sitting on
thebench.

78
See Written Submissions on Behalf of the Petitioners, Narmada BachaoAndolan v. Union ofIndia and
Others, A.I.R. 1994 S.C. 319 (arguing, among other things, that SSP authorities failed to consider all
pertinent issues and did not provide the people affected by the project with an opportunity to make
submissions before proceeding with the project). The petition remarked that the SSP was flawedand that it
could not be implemented without serious violations of human rights and harm to the environment. Id.

79
See Order of May 5, 1995, Narmada BachaoAndolanv. Union of India and Others, A.I.R. 1994 S.C. 319
(concluding that a review of the SSP project was urgently needed).

80
See Narmada BachaoAndolan v. Union of India and Others, A.I.R. 2000 S.C. 587 (directing that the SSP
should be completed at the earliest possible time and in compliance with the conditions that mandated land-
for-land rehabilitation of all affected families twelve months prior to any increase in dam height).

81
Economic Times, 5 Jan 2006.

35
In addition to interpreting Article 21 as recognizing the right to livelihood, the Indian
Supreme Court in Mullin v. Union Territoryof Delhi elaborated on the right to adequate
shelter as part of the all- encompassing right to life. 82 Eight years later, the Court
reaffirmed this view in Ram Prasadv. Chairman,Bombay Port Trust when it held that the
right to life prohibited the eviction of slum dweller families unless the Bombay Port Trust
provided them with alternative accommodations.83

As far as people displaced due to conflict are concerned, when displacement takes place
under fear and constant direct threat of violation of Article 21 of the Constitution, the
trauma with which survivors face the future is considerably worsened, and protection of
constitutional rights must be sought through a clear non-negotiable framework of
entitlements. The Supreme Court in the landmark judgement of Nandnini Sunder v. State
of Chhattisgarh84, came heavily upon the state and union government and criticized their
policy for forced relocation of tribals on the pretext of fighting naxalites. The supreme
court passed a comprehensive rehabitilation policy that involved rebuilding of schools
and movement of tribals living in camps back to their villages.

82
See Mullin v. Union Territory of Delhi, (1981) 2 S.C.R. 516, 529 (building upon the idea that the right to
life includes the right to live with human dignity, and that such a right can only be attained with the receipt
of adequate nutrition, clothing, and shelter).

83
See Ram Prasad v. Chairman, Bombay Port Trust, A.I.R. 1989 S.C. 1306 (India) (holding that public
authorities cannot evict families living in slumdwellings unless they are provided with alternative sites).

84
Writ Petition (Civil) No. 250 of 2007.

36
 Chapter 3: CONCLUSION

Undoubtedly, the protection of IDPs has been a challenge for Indian policy makers,
legislators and courts. An independent and objective institution that can effectively
monitor and rapidly respond to situations and allegations of violations against IDPs is
urgently needed to adequately respond to the gross inequities that remain in the system.
Once again, the legislation, the LARR Bill 2011, has been developed haphazardly,
without internalizing the established norms on the subject.

The importance of the significant protection mechanisms available in the Guiding

Principles needs to be appreciated by India's national institutions and its authorities.
Internalizing the core principles of the Guiding Principles may reduce hardship to IDPs in
India. Furthermore, the use of the Guiding Principles would reinforce proposed changes
in Indian acquisition laws in many ways. To adopt international standards is not an
additional burden, as is often portrayed in the Indian discourse. On the contrary, stronger
emphasis on international standards will provide a more robust and sustainable
framework for future work on this subject.

There is a need to relook at right to property today. India has gone beyond the stage of
social legislations. Today the already marginalized sections of the society are being
deprived of their property under the pretext of eminent domain. Due process clauses
should be added to right to property and the court through intelligent interpretation
should make sure that no person is denied of his property with due process as was
initially envisaged in the constituent assembly.

37
 BIBLIOGRAPHY

BOOKS:

1. B.P. Singh Sehgal, Human Rights in India: Monetary Compensation for the
violation of Human Rights, 2004.
2. N.P. Jian and S.N. Jain, Principles of Administration Law, 1986.
3. JN Pandey, Constitutional Law of India (Central Law Agency, 2004),
4. M.P. Jain, Constitutional Law of India, Wadhwa Publishers, 2008

ARTICLES:

1. Suzette Brooks Masters, Environmentally Induced Migration: Beyond a Culture

of Reaction, 14 GEO. IMMIGR. L.J. 855, 855 (2000) Cecilia Bailliet,
'Researching Transnational Approaches to IDP Protection: A Legal Perspective'
(2003) 7–8 Feb Forced Migration Review 10.
2. James Crawford, 'The ILC's Articles on Responsibility of States for
Internationally Wrongful Acts: A Retrospect' (2002) 96 American Journal of
International Law 874–90.
3. Christine Gray, 'The Choice between Restitution and Compensation' (1999) 10
European Journal of International Law 413–23;
4. Dinah Shelton, 'Righting Wrong: Reparations in the Articles on State
Responsibility' (2002) 96 American Journal of International Law 832–73.
5. J Combacau and D Alland, 'Primary and Secondary Rules in the Law of State
Responsibility: Categorizing International Obligations' (1985) 16 Netherlands
Year Book of International Law 81–109.

38
CASES CITED:

1. BajiraoKote v State of Maharashtra (1995) 2 SCC 282

2. Chorzow Factory case, [Germany v. Poland, 1927 P.C.I.J. (ser. A) No. 9 (July

26)]

3. Fuljit Kaur v State of Punjab and Others (2010) 11 SCC 455

4. Maneka Gandhi v Union of India, AIR 1985 SC 597

5. Mullin v. Union Territory of Delhi, (1981) 2 S.C.R. 516, 529

6. Nandini Sunder v. State of Chhattisgarh, Writ Petition (Civil) No. 250 of 2007.
7. Narmada Bachao Andolan v. Union of India and Others, A.I.R. 2000 S.C. 587

8. Narmada BachaoAndolanv. Union of India and Others, A.I.R. 1994 S.C. 319

9. People's Union for Democratic Rights v. Union of India (1982) 1 S.C.R. 456

10. Ram Chand v Union of India, AIR SC 1994.

11. Ram Prasad v. Chairman, Bombay Port Trust, A.I.R. 1989 S.C. 1306 (India)

12. Ram Prasad v. Chairman, Bombay Port Trust, A.I.R. 1989 S.C. 1306

13. Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297.

14. Sarva Shramik Sangh, Bombay v Indian Hume Pipe Co Ltd and Another (1993)

2 SCC 386;

15. ZenitMataplast Private Limited v State of Maharashtra and Others (2009) 10 SCC

388;

39