Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

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

A Government representative emphasized that India was a welfare State committed to the welfare and development of its people in general, and of vulnerable categories in particular, such as tribal peoples. The Constitution of India, and particularly its articles 38, 39 and 46, bore witness to this commitment. In this context, he noted that the population of the scheduled tribes in India amounted to 67.8 million, or over 8 per cent of the total population. Progress in the development of these people had been set out as a major objective of national policy in successive five-year plans. This commitment had also been shown at a very early stage by the ratification of the Convention in 1958.

With regard to the comments of the Committee of Experts on the working conditions in the ash area of the Gujarat Electricity Board, he drew attention to the sharing of powers and responsibilities under the terms of the Indian Constitution between the central and provincial Governments. Responsibility was also shared in this manner for labour legislation and labour administration. In this particular case, the responsibility was that of the provincial government of Gujarat, which had supplied most of the information that he would now provide to the Committee. The Gujarat Electricity Board owned the thermal power station at Ukai, which employed over 2,000 regular employees. There were also nine annual contractors employing some 300 workers and 12 casual contractors employing another 300 workers. All of these contractors possessed valid licences issued under the Contract Labour (Regulation and Abolition) Act of 1970. These workers worked according to shift hours fixed by the authorities and were entitled to overtime payments, and free medical benefits. Rest rooms and crèches had also been supplied, as well as uniforms and shoes. The workers were entitled to casual leave, earned leave, sick leave and public and optional holidays. The contractors also provided uniforms and shoes for their workers. The communication sent by the Bijli Mazdoor Panchayat trade union to the Committee of Experts concerned the people working outside the factory premises who separated burnt coal ash from water. These workers were not covered by any settlement and did not work under any registered contractor. The Gujarat Electricity Board had given this work out to a firm, which in turn gave the work to 200 persons known as "Mukadams", who were paid on the basis of the burnt coal ash removed from the premises. The Mukadams employed members of their families and outsiders. The Mukadams were paid on a monthly basis, but had not been registered under the Contract Labour (Regulation and Abolition) Act. He informed the Committee that two criminal cases had been filed against the enterprise concerned, as well as a case filed on the same matter by the Bijli Mazdoor Panchayat. The Ukai Thermal Power Station and the Gujarat Electricity Board had not accepted liability for providing facilities under the terms of the Factories Act to the workers in the ash area and had challenged the claim that the Factories Act applied to that area. However, the Assistant Labour Commissioner and the Gujarat Government Labour Officer had carried out inspections and taken a number of measures concerning the tribal workers. On humanitarian grounds, the Gujarat Electricity Board had agreed before the High Court to provide basic facilities to these workers, and had in practice provided drinking water, toilets, sheds, a crèche and first-aid facilities. The Mukadams were paid at a rate of 155 to 165 rupees per ton for separating the burnt coal ash from the flowing water, sieving and drying it. Their activity had not been covered under any scheduled employment under the Minimum Wages Act. The provisions of the Act had not therefore been fully implemented in that area, even though the Gujarat Government had proposed that the work should be covered by the Act and action in this respect was expected in the near future. Moreover, legal action under the Equal Remuneration Act against the employer of these workers had been sanctioned by the Commissioner of Labour. It could therefore be seen that the appropriate government had taken action against all those concerned in the exploitation of tribal workers. The results of this action would further improve their conditions of work.

With reference to the comments by the Committee of Experts on the question of the Sardar Sarovar Dam and Power Project, he explained that the differences noted in the progress of resettlement and rehabilitation between the various states were only natural, because the necessary measures were only taken as the project advanced every year. Indeed, the construction of the dam was linked to the implementation of resettlement and rehabilitation measures in order to ensure successful rehabilitation well before the lands in question were submerged. The construction of the various blocks of the dam was planned on an annual basis after reviewing the progress made in rehabilitation. This progress was reviewed by a rehabilitation committee, under the chairmanship of the Ministry of Welfare and reported to the Supreme Court of India. The families that were affected by the project were given priority, which accounted for the substantial differences between the states.

He then proceeded to provide information on the number of families affected in each state and the progress made in their resettlement. The total number of families affected in Gujarat was 4,600 and land was being made available for their resettlement from government lands and the purchase of private land. Of these families, 4,392 had been allocated agricultural land and 4,331 had been allotted house plots on 116 developed relocation sites. In Maharashtra, of the 3,113 families affected, some 2,114 had stated a preference for rehabilitation in Maharashtra and 999 in Gujarat. So far, of the latter, 662 families had been allocated agricultural land and 639 had been allocated house plots. The number of families affected in Madhya Pradesh was estimated at 33,014, of which 14,124 had preferred to settle in Gujarat. Of the latter, so far 2,652 families had been allocated agricultural land and 2,449 had been allotted house plots. Of the 18,890 families from Madhya Pradesh which wished to remain in this state, some 733 had been allocated house plots. He noted in this respect that for this latter category of families, either only their houses or less than 25 per cent of their agricultural land would be submerged. They would therefore be relocated near the submerged villages at a higher level. Some 2,000 hectares of agricultural land would be allocated to families who were willing to resettle in Madhya Pradesh. In Maharashtra, five resettlement and rehabilitation sites had been established. Civic amenities had been constructed on two of these sites, and were at an advanced state of completion on the remainder. In view of all the above information, he believed that the Committee should have no grounds for concern about the ability of the states in acquiring land to meet the challenges of resettlement.

With regard to the observation by the Committee of Experts that there were other cases in which tribal people were displaced for development purposes, he stated that the Government could provide information on specific cases from the data supplied by the provincial governments. He noted in this context that many of the areas in which mineral resources were mined and other developmental activities undertaken were populated by tribal people. However, the exploitation of natural resources was unavoidable for the economic and industrial development of the country. He emphasized that the rules and regulations that were in force provided adequate compensation for the affected people, including tribal people. Moreover, the Government did not follow any discriminatory policy in addressing the needs and problems of the persons affected. He hoped that he had been able to provide adequate information in response to the observations made by the Committee of Experts.

The Employers' members thanked the Government representative for the comprehensive information that he had provided. They recalled that the Committee had been examining the application of the Convention in India since the mid-1980s and that the most recent discussion of the case had been in 1993. However, at that time the Committee had only covered the question of the application of the Convention in the case of the Sardar Sarovar Dam and Power Project. The points raised by the Committee of Experts now also covered the working conditions of scheduled tribal workers in the ash area of a thermal power station in the state of Gujarat. In its report, the Committee of Experts described the very difficult working conditions of these people, who were mostly of tribal origin. In this context, the Government representative had said that the situation did not come under the authority of the central Government, but of the relevant provincial governments. The information provided by the Government representative had therefore largely been supplied by the provincial governments. He had stated in this respect that these workers were not covered by the normal labour legislation, which meant that, for example, the minimum wage was not complied with. It was clear that the Factories Act did not apply to work carried out in the so-called "ash area". The Committee of Experts had referred to many aspects of the working conditions of workers in this area that were not satisfactory. It was very unclear in practice which labour and social legislation should be applied to these workers. However, since they were all stated to be tribal persons, they clearly came under the special protection provided by the Convention. It was evident that much needed to be done to ensure compliance with the Convention in their regard and that, in view of the split responsibilities in the country in this respect, the central Government would face great difficulties in trying to impose its will to ensure that the inadmissible and inadequate working conditions in question were improved. The Employers' members therefore called upon the Government to provide as much information as possible in a written report on the labour situation of these people and to provide suggestions as to how their situation could be improved.

The Employers' members then referred to the matter discussed by the Committee in 1993, which related to the impact of the construction of a dam and power project and the major resettlement of tribal people caused by the project. The questions that arose concerned the manner in which the persons affected were being resettled, the compensation that was applicable to them and the extent to which these measures were being applied in practice. The Government representative had referred to the establishment of a five-member group to control these matters, as well as the relevant regional bodies. However, the procedures for the compensation and resettlement of the tribal peoples concerned were very complex and the Committee of Experts had noted broad differences in their treatment in the various states concerned. Although the Government representative had explained that the compensation and resettlement measures adopted were linked to the progress made in the project, the very detailed figures provided were difficult to place in context. Nevertheless, the general picture provided was that the compensation measures of all kinds had improved to a certain extent and were in practice higher than the claims granted by a court. Any such improvement was to be welcomed, although it was a matter of concern that substantial differences continued to exist between the measures taken in the various states. The Government should therefore be requested to provide all the relevant information in a comprehensive report containing detailed figures that were placed in the context of the general problem.

The Employers' members emphasized that efforts would be needed to give effect to the commitments undertaken by the country under the terms of the Convention, particularly in view of the large tribal population and the need to resettle many tribal peoples as a result of development and industrialization projects. Although these projects were clearly to the advantage of the country, it was necessary to ensure that the disadvantages of such projects were minimized for the traditionally weakest categories of the population, namely tribal peoples. The Employers' members also noted the inference by the Government representative that such cases of the displacement of tribal people occurred frequently. It was therefore necessary for the Government to keep the ILO informed as precisely as possible of the global situation of tribal populations so that the Committee of Experts, and if appropriate the Conference Committee, could examine whether the treatment of these matters in the country was in conformity with the Convention.

The Workers' members emphasized the magnitude of the case since, according to 1991 data, tribal peoples in India numbered around 68 million. The case related to several issues as regards the application of the Convention in law and practice. However, the matters before the Committee today were just the tip of the iceberg. The Committee of Experts had been monitoring the case for a number of years. On this occasion three main points had been brought to the attention of the Conference Committee. Article 15 of the Convention required ratifying States to adopt special measures for workers belonging to tribal populations, provided that they were not in a position to enjoy the protection guaranteed by law to workers in general. However, the Committee of Experts considered that these workers appeared to be dealt with in accordance with the general labour legislation. The Workers' members questioned this since, according to the information provided by the Government itself, it was quite clear that the workers in question were not being dealt with under the general labour legislation. Indeed, the evidence provided by the Bijli Mazdoor Panchayat trade union concerning the ash area pointed to appalling abuses, including 12-hour days, inhuman working conditions, safety and health problems, pollution by coal, dust and flying ash and the absence of access to the most basic facilities, such as toilets and canteens. The wages of these workers were so low that it was extremely difficult to imagine how they could survive. It was therefore clear that the Government regarded and treated these workers in a different manner to other workers who worked inside the factory gates. The Government representative had stated that, without conceding its legal position, the Gujarat Electricity Board had provided some basic facilities to these workers and that certain action had been taken as a result of labour inspections. Nevertheless, the Workers' members emphasized that the situation constituted a serious violation of Article 15 of the Convention.

The evidence obtained from the Centre of Indian Trade Unions had drawn attention to what was happening to tribal peoples, who were being evicted from areas in which mining, the construction of dams and other development projects were being undertaken. These projects had a direct impact on the peoples affected in terms of agricultural development, health, education and employment. The socio-economic development of tribal peoples fell far behind the national average and, as a result, rehabilitation and resettlement threatened their very survival. Indeed, rather than rehabilitation and resettlement, what was happening was eviction, the word used in the Experts' report. Instead of benefiting from the protection required by the Convention, most of the people affected were being treated in a brutal manner and were ending up homeless and landless. Greater energy and political will was required to deal with these issues.

The Committee of Experts had noted, in particular, huge differences between the progress made in the various states in resettling tribal people. In Gujarat, the resettlement rate was encouraging at 93 per cent. In Maharashtra, it was poor at 42 per cent, while in Madhya Pradesh, it was appalling at only 9 per cent. The fact that something could be done to help them was shown by the developments in Gujarat. However, the Workers' members expressed deep concern that, rather than an exceptional measure, as specified in Article 12 of the Convention, the removal of tribal people and their resettlement seemed to be a matter of routine. They noted from previous reports of the Committee of Experts that the Japanese Ministry of Foreign Affairs had decided in 1990 that it would discontinue financing the project in Sardar Sarovar because of the inadequacy of the resettlement plans for displaced families. In early 1992, the World Bank had published an independent review which had concluded that there had been many problems in the planning and execution of the project, which had particularly affected the people displaced by it. The World Bank had subsequently withdrawn from the project on the advice that it would contravene the Convention. The Workers' members considered that provision for resettlement needed to be made before these people were thrown off their land. They wished to be provided with further information on the levels of compensation that were being provided and how the resettled workers were faring in the long term. They also requested information on the recommendations made by the five-member group, particularly as regards the establishment of grievance and redress machinery and the assistance of voluntary agencies.

The Workers' members referred to the comment by the Committee of Experts that there were other cases in which tribal people were being displaced for development purposes. Further information was required from the Government on this matter, including the criteria used to determine what made the removal of these people necessary as an "exceptional measure" under Article 12 of the Convention. Information should also be provided on the programmes established by the Government to support these peoples during their upheaval, in the transitional phase of resettlement and during rehabilitation. With reference to the comment by the Government representative that the central Government did not possess data on other cases of the removal of tribal peoples, the Workers' members wanted to know why not. They warned that if the Government did not monitor these situations and obtain the relevant evidence, it could not claim to be complying with the requirements of the Convention because it would not have the information to justify this claim.

In conclusion, the Workers' members emphasized that it was the tribal people and the most vulnerable categories of society who often paid the price of economic development. The Government of India had a responsibility to ensure that any removals of tribal people were necessary as an exceptional measure. Assertive and focused action was required by the Government at the national level to protect a precious and irreplaceable part of the international community.

The Workers' member of India referred to the statement by the Government representative that the situation of the workers in the ash area of the power station at Ukai came under the responsibility of the provincial Government. In this respect, he emphasized that when the central Government ratified a Convention, the instrument also applied to the provincial governments. All provincial governments therefore needed to comply with its provisions. He also noted that India had a very high population of tribal people, who were subject to systematic eviction from the land that they occupied. The cases referred to by the Committee of Experts were only symbolic of the many instances in which this occurred. The Government of India needed to pay more attention to the problems of tribal people. In the case of the workers in question, the Gujarat Electricity Board was their principal employer and therefore had a responsibility with regard to contract employees. Unfortunately, the information provided by the Government representative had not been very clear. The ILO would need to look into the details and verify the real situation. In particular, the situation of resettled tribal people was very precarious. They were often removed from fertile land and allocated barren land. Another important consideration was the distance between the dispossessed land and the land which was allocated to the families concerned.

He emphasized that it was the duty of the central Government to monitor the application of the Convention and to collect the necessary information to do so. All too frequently, new development projects, such as mining developments, were located in areas occupied by tribal peoples and resulted in their removal. The Government should review all such projects with great care and should establish a proper monitoring unit to cover the situation of tribal people. Many laws had been adopted in India respecting tribal people. However, very few of them were implemented and the Government needed to make proper efforts to fully implement all the relevant legislation.

The Workers' member of Swaziland stressed that this case raised issues related to human rights, social responsibilities and obligations expected of governments towards tribal populations. The Convention required governments to promote social, economic and cultural development of tribal populations within their territories. Governments were expected to raise their living standards and foster individual dignity as well as advancement of individual usefulness and initiatives. The Convention required that tribal populations enjoyed the protection of national laws.

The Government of India was in serious default of the dictates of the Convention which it ratified in 1958. The tribals, largely women, were forced to work in local dust without protective clothing, sanitation, appropriate food or drink, child-care facilities, and so on. In addition, these workers were poorly paid and put in a state of exploitation. When these conditions were brought to the attention of labour inspectors, deliberate indifference and inaction were displayed. He insisted on the fact that this type of behaviour was a gross violation of the provisions of the Convention and unacceptable discrimination exercised towards tribal populations. Tribal people were displaced and evicted in view of development projects, but they were not adequately relocated. In cases where they were relocated, the land provided was not equivalent in value to the land they had lost through displacement. He concluded by fully concurring with the recommendation of the Worker spokesperson and the Committee of Experts.

The Employers' member of India supported the comments made by the Employer and Workers' members concerning the working conditions in the ash area of the power station at Ukai. There could be no doubt concerning the social responsibility of the central and provincial Governments to ensure that the workers concerned were properly looked after and enjoyed safe working conditions. However, on the question of the time taken to apply legislation including minimum wage provisions, he recalled that India was a democratic country which needed to abide by due process. Moreover, with regard to the time that elapsed in the implementation of development projects, he noted that all the persons involved were entitled to defend their rights and that the legal procedures involved, particularly for the purchase of land, could take years. Such cases could involve considerable hardship for displaced workers and their families, who sometimes had to wait many years to receive their entitlements. The Government therefore needed to develop systems that responded to their needs more rapidly. He added that, although it appeared easy to say that the central Government should take action in many fields related to tribal peoples, the provincial governments were jealous of their powers and were reluctant to give up their rights. Nevertheless, measures needed to be taken throughout the country to improve the standard of living of tribal people. On the question of development projects, he noted that they were often located in rural areas to avoid adversely affecting more densely populated zones. Moreover, in rural areas they had the advantage of giving employment to tribal populations. These projects therefore needed to be considered with a view to the benefits that they brought to all concerned.

The Government representative thanked the Employers' and Workers' members for their contribution to a meaningful discussion. In response to the remarks made concerning the division of responsibility for the application of the Convention between the central and provincial Governments, he noted that in his intervention he had merely provided a summary of the situation under the various provisions of the Indian Constitution and noted that the state governments concerned were the appropriate authorities with regard to the main points raised by the Committee of Experts in this case. He clarified that he did not say that the national Government was not responsible to meet the obligations under Convention No. 107. On the issue of the workers in the ash area of the power station at Ukai, he had clarified in his intervention that it was the company's claim that the area did not constitute part of a factory. He had added that the state Government did not share that view and that the matter was now before the courts.

In general terms, he emphasized that the economic and social backwardness of tribal peoples in his country was the result of their exploitation over several centuries. Much effort had been expended to enable them to catch up with other categories of the population, including the safeguards established in the Indian Constitution. As a result of all these efforts, tribal peoples now benefited from more jobs, economic and social progress and improved education and literacy. However, the 50 years of independence had not been sufficient to make up for the centuries of exploitation.

He noted that the Employers' and Workers' members had called for a determined effort on the part of the Government to fulfil its obligations under Article 15 of the Convention. He reaffirmed his Government's awareness of these obligations and recalled that the provisions of the Indian Constitution and its legislation had been found adequate in this respect. The inadequacy was only in the area of enforcement of the laws. If any of the protection provided were to be found inadequate, an effort would be made, as in the past, to adopt the necessary changes. He stated in this respect that his country was in the process of adopting the necessary legal measures to eliminate problems related to contract labour. In this context, his Government had given its support to the discussion of this subject by the International Labour Conference. Indian laws on contract labour were more stringent and detailed than the provisions of the proposed instrument. Moreover, the courts in India had played an important role in the application of the relevant legislation. In a recent case, the responsibility of the principal employer for labour and social security rights of contract workers had been upheld. The implications of this decision were still being examined and he would be pleased to provide information on this matter to the Committee of Experts.

On the subject of the displacement and relocation of tribal people as a result of development projects, he emphasized that it was necessary to use the country's natural resources for the purposes of development and industry. It just so happened that many tribal people lived in the areas where such resources were to be found. This was the case of many mining and hydroelectric projects. When considering these questions, the Committee should give due consideration to the national context, including the energy shortage and the danger of famine in an agricultural economy that depended on an unreliable monsoon season. The Government was very conscious of the need to avoid injustice and had adopted adequate laws for the compensation of the families affected. With regard to the Sardar Sarovar Dam and Power Project, he reassured the Committee that the resettlement of all the families concerned would be completed before their lands were submerged. He also undertook to provide a very detailed reply to the direct request on this Convention by the Committee of Experts. He reaffirmed the commitment of his Government to the cause of tribal people and its readiness to take any step that was required in law or practice to give effect to the Convention. However, he called on the Committee to place the issue in its proper context and not to adopt an overly legalistic attitude. Finally, he confirmed that he would provide all the information that was required in writing to the Committee of Experts, thereby emphasizing his Government's total commitment to give effect to the Convention in India.

The Committee took note of the detailed information provided by the Government and the discussion which followed. It also noted that indigenous workers were not protected in the manner required under Article 15 of the Convention and asked the Government to supply additional information on efforts made to improve the situation. The Committee observed in particular the advances in the resettlement and rehabilitation of tribal populations displaced as a consequence of the construction of the Sardar Sarovar Dam and that the most recent information communicated by the Government indicated progress in the resettlement of these populations. But the Committee awaited more information, in particular on the rehabilitation of the indigenous populations. The Committee equally noted the Government's assurances that no area would be flooded before the conclusion of the resettlement and compensation, but it shared the Committee of Expert's concern at the lack of information on other cases of displacement of indigenous populations due to development projects, and the conditions under which they took place. The Committee asked the Government to continue to provide detailed information on the progress made in solving this problem, which had been addressed by the Committee for many years.