Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Indigenous and Tribal Populations Convention, 1957 (No. 107) - India (Ratification: 1958)

The Committee notes that the Government's report has not been received. It recalls the detailed discussion whch took place on this question in the Conference Committee in 1991, during which the Government provided considerable information, and the Conference Committee urged the Government to supply a detailed report as requested by the Committee of Experts.

The Committee notes also the developments which have taken place since the application of the Convention by India was last considered. It welcomes the discussions between the Office and the Government concerning the possibility of technical cooperation to benefit the tribal people of the country, which should also improve the application of the Convention, and asks to be kept informed of further developments.

It also notes, however, the publication in early 1992 of Sardar Sarovar: Report of the independent review, a report commissioned by the World Bank to examine the execution of the Sardar Sarovar dam and power project to which the Committee has referred on many occasions. The independent review has concluded that there have been many problems in the planning and execution of the project, with effects particularly on the people displaced by it, many of which coincide with the concerns which have been expressed by the Committee in recent years. The independent review cites Convention No. 107 extensively as a standard which has been ratified by India and which has not been respected. The Committee therefore hopes that the Government will provide information in its report on the effect given to the findings and recommendations in this report, as well as on the questions raised in its previous comments, which read as follows:

1. The Committee notes the discussion of the application of this Convention in the Conference Committee in 1990, and the information provided by the Government on that occasion concerning the questions raised in the Committee's previous observation. A brief further report on this question was also received during the week the Committee's session opened, and a report on the issues raised in the request addressed directly to the Government in 1990 was also received only very shortly before the Committee's session began.

2. The Committee has referred in comments addressed directly to the Government to a number of important questions affecting the 51 million tribal people in the country. It notes in that request that on a number of issues the Government has not provided information on the situation in practice, but has restricted itself to a reference to earlier reports. It hopes that in its next report the Government will make every effort to provide detailed information, and that it will submit a report in time for the Committee to examine it fully before its session begins.

3. The Sardar Sarovar Dam and Power Project. The Committee of Experts and the Conference Committee have had a dialogue about this subject for several years. The situation at issue is the construction of a large hydroelectric dam project, and the consequent removal from their lands of some 100,000 people, including some 60,000 tribals. The project is being financed in part by the World Bank. The Committee has on several occasions examined information received from the International Federation of Plantation, Agricultural and Allied Workers (IFPAAW), forwarding studies carried out on the subject by the non-governmental organization Survival International. This information has alleged that the displacement of these tribal people is not in conformity with the Convention - in particular its Article 12 - and that the situation will become worse in the future with the planned displacement of up to 1 million more people at future stages of construction.

4. A further communication from the IFPAAW and Survival International was forwarded to the Government on 17 December 1990. In its reply received on 4 March 1991, the Government referred to the information it provided to the Conference Committee in 1990, and provided some additional information. Some additional information was also received from the World Bank, to whom the IFPAAW communication had also been sent.

5. The communication from the IFPAAW states that despite the recommendations made by the Committee of Experts in 1990, the Government has not taken any positive action to guarantee appropriate compensation for displaced persons in accordance with Article 12 of the Convention. It states also that project authorities and Government officials have increasingly been resorting to force and violence in this connection. It notes that the Japanese Ministry of Foreign Affairs decided during 1990 that it would discontinue financing of the project, because the resettlement plans for those being displaced remain inadequate. The World Bank had renewed funding until July 1991 on the finding that progress on the conditions laid down was satisfactory, and this decision was said to be a political one taken despite violations of conditions and disregard for deadlines set. The IFPAAW also alleged that the Government has not yet been able to identify sufficient and adequate resettlement land, especially for people wanting to stay in their own State of Madhya Pradesh, and that people are being moved to inadequate resettlement sites in Gujarat. Finally, the IFPAAW states that the villages that have been resettled face acute health problems and land and water shortages.

6. A communication from the World Bank in reply to the IFPAAW communication stated that the decision to extend financing was made only after an exhaustive investigation of the project performance by the Bank staff, who visited the project site and concluded that overall implementation continued to be satisfactory. It also stated that the decision was made on technical, not political, grounds. The Bank was working with the Government and project authorities to help ensure that resettlement and rehabilitation policies and programmes are properly carried out.

7. The Government stated in its communication received on 4 March 1991 that the Union Cabinet has approved the release of forest land for rehabilitation and resettlement of tribals displaced in Maharastra, subject to compensatory afforestation by the State Government, and that the Narmada Control Authority is taking steps to prepare an action plan for this purpose.

8. In the information provided to the Conference Committee the Government stated that the allegations made by the IFPAAW were too general. It also provided a considerable amount of information on the number of families in each of the three States affected and the amount of land required for their resettlement.

9. The continuing efforts being made in this connection are evident from the information received. It is less evident, however, that these efforts have yet been successful. The Committee understands from the information provided that there is still a gap between the resettlement needs of the tribal populations being displaced and the amount of land available. It has no conclusive information on whether these lands are appropriate to the needs of these tribal populations, and whether the populations are fully compensated for the damages incurred by their displacement, but notes that non-governmental organizations both inside the country and outside have expressed very serious reservations in this regard. It hopes that information will continue to be provided on the progress achieved. It also again expresses concern, in view of the problems involved in resettling these "oustees", over the possibility of resettling some hundreds of thousands of others in future years as further stages of planned construction are implemented, in a manner which complies with the Convention's requirements.

10. The Committee recalls that the Convention recognizes rights to land which is "traditionally occupied" by tribal populations (Article 11), and that the meaning of this term in the present context has been the subject of discussion for some time. The IFPAAW has alleged that the Government is not fully compensating tribals who have traditionally occupied land to which the Government has title, especially when those tribals practice various forms of shared use, gathering of forest products and herding on these lands instead of settled cultivation. The Government has stated that the concept of traditional occupation does not apply to "encroachment" on government-owned lands, and particularly to recent encroachment; but that it has provided for compensation for displaced tribals even in cases where they have no clear traditional rights. The Committee has noted that the term "traditional occupation" is imprecise, but that the kinds of land use for which no compensation is given would appear to fall within the meaning of the term. However, the information before the Committee is not sufficiently clear to enable it to decide that traditional occupation has - or has not - been established in particular cases. In the information provided to the Conference Committee, the Government again raised the question, particularly in relation to the length of time lands would have to be occupied before the occupation could be considered traditional, but provided no additional information in this respect. The Committee therefore sees no reason to change its previous conclusions. It refers, however, to the concerns expressed in the Report of the Commissioner for Scheduled Castes and Scheduled Tribes (1987-89), over the denial of land rights to tribals who have long occupied land to which the Government has asserted title; these concerns correspond to the position expressed by Survival International and the IFPAAW, and to the concerns expressed by the Committee.

11. As concerns the health of the tribal populations that have been resettled, the Committee noted previously that steps were being taken to provide health care to displaced tribals in Gujarat, and the Committee requested information on steps taken in Madhya Pradesh and Maharastra, the other two States affected. As the Government has provided no additional information in this connection, the Committee requests it to do so. It would also appreciate receiving information on the environmental concerns raised previously.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.