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While conflict-induced internally displaced persons (IDPs) are increasingly being recognized internationally as an important category who need urgent attention in the countries where such displacement takes place due to violence, pitifully, in India, so far, no police framework, let alone a legal framework, exists which can take care of them. The UN Guiding Principles on IDPs describes IDPS as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”The Internal Displacement Monitoring Cell (IDMC), of the Norwegian Refugee Council, has estimated that, as on December 31, 2112, there were “at least 540,000 people displaced by armed conflict and violence in India”. The states where such conflicts have happened are Andhra Pradesh, Gujarat, Orissa, Chhattisgarh, Jammu & Kashmir, and the North-East.
The study, “Homeless in Homeland: A Study on Internally Displaced Persons in India”, supported by Action Act, which has presence in several countries, and anchored by the Centre for Social Justice (CSJ), Ahmedabad, has sought to highlight how, given this framework, the need for a viable policy for the IDPs arose and why there is a need for a legal framework for IDPs. The need for such an intervention goes back to the CSJ’s experience in 2002 Gujarat riots. The CSJ carried out a survey of the IDPs of Gujarat riots under the guidance of the National Human Rights Committee’s (NHRC’s) monitoring committee. It listed 4,387 internally displaced families that had failed to return to their original houses for fear of safety. The survey report said it had only collected a sample, estimating, the number of IDPs “would not be less than 10,000 families.” It added, in the first week of April 2002, there were 1,13,697 persons from the minority community in need of security and shelter, and they lived in 102 relief camps.
Calling Gujarat violence an “organized campaign to eradicate Muslims” with the “state doing little to stop this”, the report regretted the government had refused to recognize these as IDPs. Those who had not been able to return lived in “semi-permanent camps” funded by local NGOs. The result of the survey was compiled in “The Uprooted: Caught Between Existence and Denial”, which threw light on the status of education, sanitation, health and employment situation of the IDPs. Even then, the Gujarat government refused to acknowledge the plight of the IDPs. Worse, the then Gujarat chief secretary went on record to say that the IDPs were “not returning to their home because they had better employment opportunities”.
In August 2006, two human rights defenders — writer, consultant and activist Farah Naqvi, who is a member of the National Advisory Committee, and CSJ director Gagan Sethi — filed a complaint on the issue of continued internal displacement in Gujarat before the newly-constituted National Commission for Minorities (NCM). The NCM was the first quasi-judicial body to send a team to actually visit 17 colonies in Gujarat spread across four districts. From October 13 to 17, 2006 an NCM team consisting of vice chairman Michael Pinto, and two members, Zoya Hasan and Dilip Padgaonkar, accompanied by joint secretary, Government of India, A Bannerji, visited the colonies, accompanied by official machinery in each district. The team spoke to scores of internally displaced survivors and also met state government officials and the Gujarat chief minister. On October 23, 2006 the NCM said, “The state government has provided no amenities or facilities in the camps, nor has it made any attempt to facilitate the return of these families, in a safe environment, to their original homes.”
Interaction with NGOs in other states, meanwhile, made it clear that the IDP problem was not specific to a state, but was much wider issue needing policy intervention. There should be a complete view of the situation of the IDPs across the country and how different states had responded to the situation. Activists, organizations and individuals who have been working on the issue were contacted to form National Level Collective on IDPs to make a presentation to the Planning Commission. Prior to the representation, it was necessary that the situation of each state be discussed and come up with common points which needed immediate attention. The result was, several organizations, including CSJ, Act Now for Harmony and Democracy (ANHAD), Agricultural and Social Development Society (ASDS), Human Rights Forum, Action Aid, Janvikas, Action North-East Trust (ANT) and Red Cross shared real life situations about their region and carried out a survey, which has been published in “Homeless in Homeland.”
Survey results
A study, “Homeless in Homeland”, is based on survey undertaken in five states, Gujarat, Jammu & Kashmir, Orissa, Andhra Pradesh and Assam. It found that religion was the main reason for conflict leading to arbitrary displacement in three states — Gujarat (100 per cent), Kashmir (79 per cent) and Orissa (65 per cent). Caste conflict was identified as the main reason leading to displacement of Assam’s 79 per cent of IDPs, while armed clash was the main reason for the conflict among 98 per cent of the Andhra Pradesh IDPs. In many cases, the IDPs had to shift from one place to another. Thus, 62 per cent Gujarat’s IDPs and 28 per cent of Assam’s IDPs were forced to shift twice, while 43 per cent of Orissa’s IDPs had to shift thrice or more times. Gujarat’s 77 per cent IDPs said fear of attack was the main reason which forced them to shift for more than one time. A similar reason was given by Orissa’s 78 per cent of the IDPs. About 63 per cent of the IDPs identified lack of facilities at the earlier site as the main reason to shift to the new site from the old one.The survey results further showed how dismally the IDPs were protected during the times of conflict. Nearly 78 per cent of IDPs of Assam, 67 per cent of IDPs of Gujarat, 97 per cent of IDPs of Kashmir and 79 per cent of IDPs of Orissa said they were left unprotected during the time of conflict. While being displaced, the IDPs were put into great hardships. Nearly 90 per cent of IDPs of Assam said, threats were issued out against them during their transit. The other important reason identified by Assam IDPs was abuse (30 per cent). Gujarat’s 28 per cent of IDPs and Kashmir’s 58 per cent IDPs, similarly, said they were being frequently threatened while in transit.
Despite huge losses they suffered as a result of being forced to settle at a new place, a large section of IDPs was not aware of whether any assessment of the losses by a government agency was ever carried out. Thus, Andhra Pradesh’s 59 per cent and Assam’s 59 per cent of the IDPs said that they were not aware of any such assessment, while another 36 per cent of IDPs of Andhra Pradesh and 38 per cent of IDPs of Assam said it was never carried out. About 80 per cent of the IDPs of Jammu & Kashmir said the damage assessment of all that they had lost was not carried out. In Gujarat, 55 per cent of the IDPs said the damage assessment was carried out, but 26 per cent said it was not carried out and another 17 per cent said they were not aware of it. Similarly, 46 per cent Orissa IDPs said their damage assessment was carried out, while 19 per cent said it was not carried out and another 21 per cent were not aware of it.
Many IDPs lost their kin during the time of conflict. Several of the IDPs’ relatives went missing, too, with no trace in site. About 58 per cent of Assam’s IDPs said they could not reach the new site safe with their families, followed by Kashmir’s 36 per cent of IDPs, Orissa’s 27 per cent IDPs and Gujarat’s 21 per cent IDPs. Despite such huge losses, majority of IDPs said police did not take enough action.
Livelihood became a matter of major concern for most ISPs. About 82 per cent of the IDPs cultivated their own land in Andhra Pradesh at the original place of living; this came down to 67 per cent at the new site. At present, 51 per cent of the Andhra Pradesh IDPs now worked agricultural workers, and 36 per cent worked under the National Rural Employment Guarantee Scheme (NREGS). Assam’s 95 per cent of IDPs at their original habitat were cultivators. At the new site, this came down to a mere seven per cent, with great majority (78 per cent) working as casual workers. Gujarat’s 61 per cent of IDPs said they were cultivators on their own land before being displaced. However, at the new site, this went down to a mere three per cent, with a great majority (63 per cent) working as casual workers.
The UN Guiding Principles on IDPs say, “Every human being has the right to recognition everywhere as a person before the law… To give effect to this right for IDPs, the authorities concerned shall issue to them all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates and marriage certificates. In particular, the authorities shall facilitate the issuance of new documents or the replacement of documents lost in the course of displacement, without imposing unreasonable conditions, such as requiring the return to one’s area of habitual residence in order to obtain these or other required documents.” It insists, “Women and men shall have equal rights to obtain such necessary documents and shall have the right to have such documentation issued in their own names.” This right was being violated at several places in the five states which were surveyed.
In Gujarat, the IDPs in at the Himmatnagar Colony, North Gujarat, said they been denied below poverty line (BPL) cards on the ground that they lived in pucca houses. However, they were not staying in these houses out of their own free will, and the actual owner of the houses was a religious trust. In Odissa, among the IDPs in Shaktivihar, only four families had voter ID card, and all except one family had access to Unique Identity (UID) or Aadhar cards. The rest of them had a written document from the landlord stating that they were his tenants. In Jammu, voter ID cards and PDS cards were not provided to the IDPs living next to Mansar, Udhampur. This made it difficult for them to get MGNREGS job cards. The names of the Kashmiri Pandits also did not figure in the voting list of the Valley. They alleged that it was because they did not constitute a significant vote bank.
In Assam, for the IDPs in the Sakkipara camp, no cards were issued by the state government even though data had been compiled and sent to the government by an NGO. In West Gumurgaon, the IDPs were not being given land clearance. This prevented them from returning. In Rangjohra, the Bodos hampered their efforts to get tribal certificates. Instead, they were provided with OBC cards. The Santhals who left their lands and settled on forest or private land did not own any ration card, despite the fact that their names were there in the voting list. In Andhra Pradesh, in Rayannapeta, the IDPs complained that a person from Mumbai took Rs 20,000 from them promising voter ID and ration cards. They have not heard from this person.
Need for policy framework
The survey results reached the conclusion that that there was a need for urgent policy framework. Yet, the study, “Homeless in Homeland”, points out, the current legal system poses a number of inadequacies in terms of protection and relief needed by the vulnerable groups of IDPs. As per the UN Guiding Principle on Internal Displacement, IDPs are those people who had to leave their home as a result of armed conflict, generalized violence, violation of human rights or natural or man-made disaster. The magnitude of the problem suggests that the government should formulate a new law that would focus on the vulnerable conditions of the IDPs and fill in the gaps that have been observed in the present laws and legal procedures. There are legislations like the Land Acquisition Act, 1894, which guarantee some compensation to the IDPs who are affected by development projects. There is also National Rehabilitation and Resettlement Policy, 2007, which takes care of the IDPs affected by development projects, providing them with relief and rehabilitation.However, as for conflict-induced IDPs, they do not fall under any single policy framework, the study underlined. Even then, there have been efforts to address the issue. In 2008, the National Human Rights Commission (NHRC) issued certain recommendations on relief and rehabilitation of displaced persons, which specifically spoke of “displacement on account of natural and manmade disasters, including conflicts”. It recommended that conflict-induced displacement should be made part of the Rehabilitation and Resettlement (R&R) Bill, which was introduced in 2007. It said, to quote, the bill “must explicitly cover persons displaced due to violence as also due to natural or other man-made disasters.”
Even as underlining the need to make the National Rehabilitation and Resettlement Policy as well as the R&R Bill, 2007 “comprehensive”, the NHRC noted that its existing reference to involuntary displacement was “very vague”, pointing towards how it did not specifically cover conflict induced displacement and displacement due to natural disasters. It said, “In instances relating to displacement on account of conflicts, there is a need to focus on what assurances would displaced persons require in order to repatriate to former place of residence voluntarily.” It wanted that people displaced on account of conflicts “should be able to return to their former places of residence voluntarily in safety and dignity”.
The NHRC emphasized, “Authorities should ensure that their property is protected against destruction and arbitrary and illegal appropriation when they are displaced. When they return to their places of habitual residence, they shall not be discriminated against. Authorities shall assist the returnees to recover, to the extent possible, their property that they left behind or were dispossessed of upon their displacement. Where it is not possible to recover property and possession, then authorities shall be responsible for providing just reparation to them.”
Despite the recommendation, an overarching legislation or policy, which could provide adequate need-based relief to the IDPs through a single channel, remains a far cry. No doubt, efforts have lately been made to address some of the IDP issues. One such effort is proposed the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 (or CTV Bill), which adheres to the principles enunciated in international laws and conventions. It provides for holistic relief for the IDPs. Monetary compensation, rehabilitation, and provision for lost property and land have been included in. The CTV Bill, unlike earlier bills on communal violence, provides for medical care, counseling, provision of education, special care for people with disability, elderly, unaccompanied minors and expectant mothers. It has carved separate provision for gender-based violence. Further, targeted and communal violence, hate propaganda, offences by public servant and continuation of violence as a result of dereliction of duty by a public officer have been incorporated as an offence. Section 14 of the Bill seeks to establish command responsibility of public officer.
If a public servant who is in command, control or supervision of the armed forces or security forces fails to exercise control over persons under his or her command, control, or supervision, and the failure leads to commission of offences, the public servant is sought to be penalized. The Ministry of Home Affairs (MHA) is the in-charge of the Bill. The Bill is still pending, but if passed in its present form, will be effective enough in creating a deterrent against the perpetrator of violence. The state machinery will also be obliged to uphold law and order. There will not be any need of sanction for initiating a case against police and army personnel.
The need for a legal framework for IDPs also arose from a Government of India-constituted committee headed by Justice JS Verma, which suggested reform in the criminal law vis-Ã -vis cases of sexual assault. The report drafted by the Committee is known as the Report of the Committee on Criminal Amendments to Criminal Law and popularly referred as Justice Verma Committee Report. The Report made a number of recommendations to the government. It sought to introduce acid attack, voyeurism and stalking within the purview of the criminal law. In the context of IDPs, the report takes a note of plight of women in Kashmir, the North-East, Chhattisgarh, Odisha and Andhra Pradesh. The Report made following recommendations:
- In cases of sexual assault armed forces or uniformed personnel should be governed by ordinary law.
- Safety and security of complainant, witnesses, and detainees in police stations or at army or at paramilitary check should be ensured.
- Armed Forces Special Powers Act, which prohibits individuals from taking any legal action against military personnel, should be reviewed.
- Police and army personnel should be given a gender orientation and sensitisation programme.
- Commissioners sensitive to the issue should be appointed to ensure speedy protection and relief in the concerned areas.
Criminal Law Amendment Act, 2013, passed in Parliament, was planned in order to take care of some of the recommendations of the Justice Verma Committee Report. However, several lacunae remained. Still, the AFSPA remains intact, and sanction is required for prosecuting an armed force personnel accused of a crime against woman. The provision of command responsibility was excluded. Thus, the IDPs may remain untouched by the changes brought about by the Act.
International law
In the absence of a domestic law to take care of IDPs, the study “Homeless in Homeland” says, the course of action to be adopted by the legislators has been laid down in the case of Vishaka vs Union of India. In its landmark judgment the Supreme Court held:“Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the Parliament enacts legislation to expressly provide measures needed to curb the evil.”
However, experts point out how, as with many other topics, internal displacement is a difficult subject for analysis as many of the standards for displacement are not part of customary international law. Catherine Phuong in her book “The International Protection of IDPs” (2005) points towards how things particularly become difficult as several countries “view situations causing internal displacement as falling within the domain of internal sovereignty and not an international concern.” Another expert, Elisa Mason in “IDPs: Guide to Legal Information Resources on the Web”, notes: “Unlike refugees, IDPs do not have a universal convention to call their own. Instead, there is a soft alternative in the form of the Guiding Principles on Internal Displacement, developed in 1998, with the aim of restating existing human rights and humanitarian law rather than trying to create new law. No doubt, the expert adds “The Guiding Principles also sought to clarify grey areas and identify gaps in IDP protection.”
IDMC of the Norwegian Refugee Council, in its report “Global Overview 2011: People internally displaced by conflict and violence – India”, notes how confusing things are at the policy level in India: “There is no national policy, legislation or other mechanism to respond to the needs of people displaced by armed conflict or generalized violence in India. The central government has generally devolved responsibility for their protection to state governments and district authorities. These bodies are often unaware of IDPs’ rights or reluctant to offer support, particularly in those cases where they have played a role in causing the displacement.” It says that there is “no ministry at the central level” with the mandate to “ensure the protection of IDPs.” Worse, there is no central agency which can take the “responsible for monitoring the number and situation of people displaced, returning, settling elsewhere in India or seeking to integrate locally.”
The study believes, as the first step in the absence of a law to deal with the IDP problem, the Government of India should appoint a special nodal agency, preferably under the Ministry of Home Affairs (MHA), in order to identify those who become displaced as a result of violence. Experience suggests that things have not moved in the absence of any such agency. Even a decade after the Gujarat riots, nothing has been done to rehabilitate the children who were psychologically affected due to the riots. A 2009 report, “Challenges of Promoting Mental Health among Internally Displaced Children in India: How Value‐Education Heals Riots Victims”, commissioned by Janvikas, and conducted by Kumar Ravi Priya of the Indian Institute of Technology, Kanpur, how the children who had seen riots happening remain under the influence of the highest degree of deprivation, fear and depression. The study involved 102 children who had witnessed violence, killings, rapes, mayhem and vandalism during the Gujarat riots. No lessons have apparently been learnt from Gujarat. The rehabilitation of the victims of the Kandhamal remains a non-starter even today.
Indeed, there are several crying needs which such an agency alone can look into:
- Enumerate the number of IDPs and entitlements to be given to the victims.
- Provide reparation and compensation in such a way that women and children are not made further victims.
- Assess special vulnerabilities and ensure that state and Central government agencies attend to them.
- Identify the government agencies which are duty bound to do all this, and what should be done in case of non compliance.
The actions that can be taken urgently can be brought under three categories – rescue, relief and rehabilitation:
Rescue:
* Availability of fire engines, trained rescue workers and emergency health services must be ensured.* Safe passage from site of violence to temporary shelter must be ensured.
* A three-tier structure must be set in place to ensure that efficient measures are taken to ensure the basic rights of the affected people.
* All affected people must be registered within 15 days of the time of they become of victims of violence and are forcibly displaced. They should be issued and appropriate identity by the relief commissioner, and till such time as they are fully and certified as rehabilitated, they should be given below poverty line (BPL) or antyodaya cards and all benefits available under BPL or antyodaya card holders should be made available to them.
* The schemes under which BPL and antyodaya card holders can benefit – including subsidies provided for food grains and other goods though public distribution system, housing, livelihood, health and education should be identified and government departments asked to given work.
* The state departments of women and child development should be responsible for administering schemes related to maternal and infant health, anganvadis, balvadis. Targeting both families listed as affected as well as individual women and children.
* Health schemes like janani suraksha, vaccination programmes, ensure emergency health care, run mobile health van should be made available.* Fast track courts should be organized to conduct trials on a day to day basis. National Legal Services Authority (NALSA) provides for free legal service for “a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or”. The assistance of NALSA should be taken not only to provide legal aid but also for periodic monitoring of the cases for speedy disposal. NALSA’s training programmes should ensure the magistrates become more sensitive to issue.
* Complete entitlement based on assessment done by the designated authority should provide a certificate and a statement of the list of entitlement to the victim/ family and the timeframe by which they need to be provided and the person authority responsible for the disbursement and/ or service mentioned. In case of default the right of the victim to complain should also be given and an appropriate nodal officer should monitor these complaints till a final certification of all entitlements having been duly given is not taken from the victim.
* Efforts should be initiated to bring to tolerance, respect for pluralism and need to set up human rights culture among the youth. Diversity appreciation camps must be organized at large scale in affected areas.
Relief:
* All affected people must be registered within 15 days of the time of they become of victims of violence and are forcibly displaced. They should be issued and appropriate identity by the relief commissioner, and till such time as they are fully and certified as rehabilitated, they should be given below poverty line (BPL) or antyodaya cards and all benefits available under BPL or antyodaya card holders should be made available to them.* The schemes under which BPL and antyodaya card holders can benefit – including subsidies provided for food grains and other goods though public distribution system, housing, livelihood, health and education should be identified and government departments asked to given work.* The state departments of women and child development should be responsible for administering schemes related to maternal and infant health, anganvadis, balvadis. Targeting both families listed as affected as well as individual women and children.
* Health schemes like janani suraksha, vaccination programmes, ensure emergency health care, run mobile health van should be made available.
* Fast track courts should be organized to conduct trials on a day to day basis. National Legal Services Authority (NALSA) provides for free legal service for “a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or”. The assistance of NALSA should be taken not only to provide legal aid but also for periodic monitoring of the cases for speedy disposal. NALSA’s training programmes should ensure the magistrates become more sensitive to issue.
* Complete entitlement based on assessment done by the designated authority should provide a certificate and a statement of the list of entitlement to the victim/ family and the timeframe by which they need to be provided and the person authority responsible for the disbursement and/ or service mentioned. In case of default the right of the victim to complain should also be given and an appropriate nodal officer should monitor these complaints till a final certification of all entitlements having been duly given is not taken from the victim.
* Efforts should be initiated to bring to tolerance, respect for pluralism and need to set up human rights culture among the youth. Diversity appreciation camps must be organized at large scale in affected areas.
Rehabilitation:
* Complete entitlement based on assessment done by the designated authority should provide a certificate and a statement of the list of entitlement to the victim/ family and the timeframe by which they need to be provided and the person authority responsible for the disbursement and/ or service mentioned. In case of default the right of the victim to complain should also be given and an appropriate nodal officer should monitor these complaints till a final certification of all entitlements having been duly given is not taken from the victim.* Efforts should be initiated to bring to tolerance, respect for pluralism and need to set up human rights culture among the youth. Diversity appreciation camps must be organized at large scale in affected areas.
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