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Lessons from Bhopal Disaster: Why mandatory UN treaty on business enterprises is crucial for humanity

Written By mediavigil on Monday, December 02, 2024 | 9:25 AM

Forty years after the Bhopal disaster of 1984, the victims and the adversely affected ecosystems await relief and remediation. Lessons from such industrial disasters create a compelling logic for an internationally binding treaty for transnational corporations (TNCs) and human rights.

Given the fact that corporations, banks and other business enterprises are admittedly not meant to be “democratic public interest institutions”, the decisive negotiations on an enforceable treaty on transnational corporations and human rights which are currently underway has great significance. A UN resolution of 2014 had created the UN Open-ended intergovernmental working group and tasked it to prepare the text of a binding treaty. States are due to meet in Geneva, for the 10th session of the UN's Open Ended Inter-Governmental Working Group (OEIGWG) to negotiate the updated draft of the future Binding Treaty during 16-20 December 2024. The first and second sessions of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights were dedicated to conducting constructive deliberations on the content, scope, nature and form of a future international instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

During the third session, the Working Group discussed elements for a draft legally binding instrument prepared by the Chairperson-Rapporteur of the OEIGWG taking into consideration the discussions held during the first two sessions. At he fourth session, the Working Group's discussions focused on a zero draft legally binding instrument, as well as a zero draft optional protocol to be annexed to the zero draft legally binding instrument. During the fifth session, a revised draft of the legally binding instrument served as the basis for negotiations. At the sixth session, a second revised draft of the legally binding instrument served as the basis for negotiations. During the seventh session, a third revised draft of the legally binding instrument served as the basis for negotiations. At the eighth session, the third revised draft of the legally binding instrument with the textual proposals submitted by States during the seventh session served as the basis for negotiations. Additionally, to help advance discussions during the eighth session, States and non-State stakeholders could also comment on informal contributions presented by the Chair-Rapporteur on select articles of the instrument. During the ninth session, an updated draft legally binding instrument served as the basis for negotiations.

At its 56th session, on 11 July 2024, the Human Rights Council adopted decision 56/116  to enhance the support capabilities of the OEIGWG in line with the mandate established by the Council in its resolution 26/9, and to enhance the support capabilities in the area of business and human rights within the Office of the United Nations High Commissioner for Human Rights, for the work on the legally binding instrument.

In its essence, the proposed draft treaty is an outcome of over 50 years of effort, which underlines that self-regulation by corporations is not enough at all. As a consequence of such realization as early as July 1972, at the initiative of Government of Chile, United Nations Economic and Social Council (UNESC) had requested UN Secretary General to appoint a Group of Eminent Persons to study the role of transnational corporations in relation to developing countries and international relations. This UN Group was headed by L K Jha, former Governor, Reserve Bank of India. Developing countries Chile, India, Ecuador have been grappling with the ungovernable might of corporations like International Telephone and Telegraph Company, Union Carbide Corporation and Chevron.

The persistent efforts to enact a binding treaty for corporations expose the emptiness of voluntary UN Global Compact and UN Guiding Principles on Business and Human Rights.

Prior to the current efforts initiated by Ecuador and supported by India, China, South Africa, Russian Federation, Philippines, Viet Nam, Indonesia, Venezuela, Cuba, Algeria, Benin, Burkina Faso, Congo, Côte d’Ivoire, Ethiopia, Kazakhstan, Kenya, Morocco, Namibia and Pakistan to provide the legal remedy to wrongs committed by business enterprises, the UN Sub-Commission on the Promotion and Protection of Human Rights had approved the 'UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights'. These norms had emerged as a step towards ensuring corporate accountability in August 2003. 

But the report of the Prof. John Ruggie, a Special Representative of the UN Secretary-General on business and human rights undermined these proposed mandatory UN Norms under the influence of International Chamber of Commerce and the International Organization of Employers. It chose to promote Guiding Principles on Business and Human Rights in July 2011 as part of advocacy for the status quo of voluntary regulation by the companies while admitting that "While corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions.”

The efforts of the UN working group vindicate the UN Norms which were drafted by Prof. David Weissbrodt and other co-authors for mandatory regulation of TNCs. Prof. Weissbrodt had underlined how only 1,000 of about 75, 000 TNCs had joined the voluntary UN Global Compact. Even the ones who joined are at a liberty to withdraw at their sweet will.

In order to inspire confidence the new efforts for the proposed legally enforceable mandatory treaty must ensure that business enterprises are subservient to both peoples’ will and legislative will. It should ensure that natural persons have the principle of primacy of their human rights and public interest over private economic interests. It should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.

After the third session of the UN inter governmental working group concluded, on October 27, 2017 a representative for the USA asserted gleefully that this “binding treaty will not be binding for those who voted against it”. The US reaction to the efforts for binding treaty gives a sense of déjà vu. After the initial adoption of the mandatory UN norms, the corporations reacted sharply saying: these norms are “duplicate and unnecessary”. Prof. Weissbrodt had responded saying, the mandatory norms are indeed “duplicate” in the sense that they are based on existing laws and principles, therefore, they are necessary.     

 Notably, USA did not participated in the three-year process after the adoption of the UN resolution on 26 June, 2014 at the 37th meeting of UN Human Rights Council (UNHRC). Instead, USA along with UK, France, Germany, Italy, Japan and Republic of Korea besides countries are like Austria, Czech Republic, Estonia, Ireland, Montenegro and Romania have voted against the resolution for a binding treaty. Under external influence countries like Saudi Arabia, Sierra Leone, United Arab Emirates, Gabon, Kuwait, Maldives, Mexico, Peru, Argentina, Brazil, Chile, Costa Rica and Botswana abstained.   

The Draft Report of Guillaume Long, the Chair-Rapporteur of the UN working group paving the way for the treaty has been approved by consensus. It will now be submitted for final approval to the UNHRC in March 2018. The Elements paper towards a Treaty proposed by Ecuador remained open for comments until the end of February 2018. It formed the basis for developing the zero draft treaty for the fourth session of the UN working group in 2018.

The Report on the ninth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, presented at the Fifty-fifth session of Human Rights Council during 26 February–5 April 2024 revealed that list of participants in the exercise included members of the UN like Albania, Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia, Brazil, Cameroon, Chile, China, Colombia, Côte d’Ivoire, Cuba, Czechia, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Gambia, Germany, Ghana, Honduras, India, Indonesia, Iran, Iraq, Ireland, Israel, Jamaica, Japan, Kenya, Luxembourg, Madagascar, Malawi, Malaysia, Mexico, Mongolia, Mozambique, Namibia, Nepal, Netherlands, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, Sierra Leone, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Türkiye, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Viet Nam. State of Palestine, a non-member was represented by an observer.

Instead of re-inventing the wheel, the UN working group ought to have adopted the proceedings of previous UN efforts and the Draft Code of Conduct on Transnational Corporations which emerged out of the report of the UN’s Eminent Persons besides the UN Norms. This Code was submitted at the special session of the UN Commission on Transnational Corporations to the UN Economic and Social Council on May 31, 1990. 

So far consistent with the legacy of Non Aligned Movement (NAM), India supported these UN efforts especially after May 26, 2014 when Sushma Swaraj took charge of foreign ministry from Salman Khurshid. Indian Government’s position on the binding treaty amid maneuvers from the European Union, USA and commercial czars merits attention.    

The tremendous influence of US-based Union Carbide Corporation (UCC) became visible when the author posed a question to the chief minister of Madhya Pradesh in October 2017 on a NDTV program co-hosted by Amitabh Bachchan, a former legislator and a veteran actor. When asked about the disposal of the 336 tonnes of hazardous waste lying in the UCC factory, its liability and the disclosure of the report of the judicial inquiry commission on the 1984 Bhopal disaster. The then Chief Minister and the current Union Agriculture Minister chose to maintain a studied silence about all these questions. Significantly, although the Justice S.L. Kochar led commission submitted its report to the state government in February 2015; it has not been made public as yet. In the name of trade secret, UCC has not disclosed the composition of the gas which was leaked on the night December 2, 1984. 

Meanwhile, in March 2024, the 22nd Law Commission of India published a report titled “Trade Secrets and Economic Espionage” along with a draft bill based on its consultation with likes of Associated Chambers of Commerce & Industry of India (ASSOCHAM), Federation of Indian Chambers of Commerce and Industry (FICCI), Confederation of Indian Industry (CII) and US Patent and Trademark Office.

In order to inspire confidence, the new efforts for enforceable UN treaty and Indian trade secrets and economic espionage legislation must ensure that business enterprises are subservient to both peoples’ will and legislative will. These laws should ensure the primacy of human rights and public interest over private economic interests. They should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.

Dr. Gopal Krishna

The author’s doctoral thesis is on corporate crimes and the accountability of public institutions. He is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org.

 

Seventh meeting of Paris Agreement, COP 29 of UNFCCC fail to deliver, solution for climate crisis to wait till COP 30 in November 2025

Written By mediavigil on Monday, November 25, 2024 | 7:18 AM

The Thirteenth Conference of Parties to the UN Framework Convention on Climate Change  (UNFCCC COP-30) will convene in November 2025 in Belém, Brazil. It will serve as the 20th meeting of the COP serving as the Meeting of the Parties to the Kyoto Protocol (CMP 20), and the Seventh meeting of the COP serving as the Meeting of the Parties to the Paris Agreement (CMA 7). UNFCCC was voluntary. Kyoto Protocol was mandatory. Paris Agreement is voluntary. The distressing outcome of Twenty Ninth Conference of Parties to the UN Framework Convention on Climate Change  (UNFCCC COP-29) was more disappointing than the outcome of the COP 28 held in Dubai, the United Arab Emirates, during 30 November-13 December 2023.  These outcomes reveal that the adoption of Paris Agreement instead of adopting third commitment period of the Kyoto Protocol was/is a misleading initiative. CMP 20 of Kyoto Protocol should be used to re-negotiate its third commitment period. COP29 decision text has come under unprecedented criticism. 

India became the first Global South nation to reject the UN climate deal, which offers $300 billion annually to developing countries to address the consequences of climate crisis they did not cause. India rejected the climate spending goal adopted at the COP29 in the Azerbaijani capital of Baku. Chandni Raina, an advisor at India’s Finance Ministry and COP29 negotiator for India, severely criticised the deal saying, "In continuation of several such incidents of not following inclusivity, not respecting country positions...We had informed the presidency, we had informed the secretariat that we wanted to make a statement prior to any decision. However, this is for everyone to see, this has been stage-managed. We are extremely disappointed." She said that India was not allowed to speak before the adoption of the deal. She added: "USD 300 billion does not address the needs and priorities of developing countries. It is incompatible with the principle of CBDR (Common but Differentiated Responsibilities) and equity, regardless of the battle with the impact of climate change". She underlined her sadness: "We are very unhappy, disappointed with the process, and object to the adoption of this agenda". She asserted: “I regret to say that this document is nothing more than an optical illusion. This, in our opinion, will not address the enormity of the challenge we all face. Therefore, we oppose the adoption of this document.” 

Prior to this India had expressed disappointment at the shifting of focus from enablement of adequate Climate Finance to emphasis only on mitigation, at the Plenary Session at the CoP29 of the UN Climate Change Summit in Baku, Azerbaijan. India aligned its stance with the statement made by Bolivia on behalf of Like-Minded Developing Countries (LMDCs) and reiterated that the process of the fight against Climate Change has to be guided by the UNFCCC and its Paris Agreement, as the Global South continues to face the intense impacts of Climate Change.

Delivering India’s statement, Secretary (MoEFCC) and Deputy Leader of the Delegation, Leena Nandan had said, “We feel disappointed by the fact that we continue to shift focus when the time has come to ensure that the mitigation actions are fully supported through provisions of adequate Finances as per CBDR-RC and equity considerations. COP after COP, we keep talking about mitigation ambitions - what is to be done, without talking about how it is to be done - in other words, the enablement of mitigation ambitions. This COP started with Focus on enablement through New Collective Quantitative Goals (NCQG), but as we move towards the end, we see shifting of the focus to mitigation.”

India firmly asserted that any attempts to deflect the focus again from Finance to repeated emphasis on mitigation cannot be accepted. The statement read, “All countries have submitted their NDCs and will be submitting the next round of Nationally Determined Contributions (NDCs) being informed by the various decisions we have taken together in the past as well as on the basis of our national circumstances and in the context of sustainable development goals and poverty eradication. What we decide here on climate finance will certainly influence what we submit next year. The attempt by some parties to further talk about mitigation is primarily a shift in focus from their own responsibilities of providing finance.” The statement called for a ‘Balance in the Climate Discourse’, and added, “If not so ensured, we may have continuous talk of mitigation that has no meaning, unless supported by enablement that is needed to make climate actions happen on the ground.”

India put forth its stance on the following issues that are critical in the fight against Climate Change. They are:

NCQG

India highlighted that as grant-based concessional Climate Finance is the most critical enabler to formulate and implement the new NDCs, action will get severely impacted in the absence of adequate means of implementation. The statement read, “The document needs to be specific on the structure, quantum, quality, timeframe, access, transparency, and review. The goal for mobilisation needs to be USD 1.3 trillion, with USD 600 billion of this coming through grants and grants equivalent resources. Expansion of the contributor base, reflection of conditional elements such as macroeconomic and fiscal measures, suggestion for carbon pricing, focus on private sector actors for scaling up resource flows as investments – is contrary to the mandate for the goal. NCQG is not an investment goal. We must accept that climate actions by Developing countries will have to be country driven, in line with their circumstances and in the manner best suited to country priorities.”

Mitigation

India strongly protested against changing the scope of the Mitigation Work Programme (MWP) in the draft text. India further cautioned against shifting of temperature goals, which  need to be as per the exact language in the Paris Agreement. India called the introduction to the targets for 2030, 2035 and 2050 in the preamble as purely prescriptive.

India urged to add to the text certain elements like noting the pre-2020 mitigation gap by Annex-I Parties; noting with strong concern that the emission of Annex-I Parties is increasing from 2020 to 2030 etc. India strongly urged to recall the negative impacts of coercive unilateral measures on climate action specifically mitigation ambition and implementation.

Just Transition

India strongly declined to accept any renegotiation of the shared understanding prevalent on ‘Just Transitions’ in the decision from Dubai. The statement read, “Just transition is interpreted in narrow domestic terms, implying that it is national governments that have to take actions to ensure domestic just transitions. However, we have repeatedly made the point that Just transitions begin globally with Developed countries taking the lead in mitigation and ensuring that they provide the means of implementation to all Developing countries.”

India statement further said, “We have also repeatedly made the point that the possibility of our domestic transitions, our right to development, and our over-riding priority to pursue sustainable development, is constrained by repeated and ongoing inaction of Developed countries. The current text completely disregards this point that we have been making about our understanding of just transitions, which is also reflected in the Dubai decision. We absolutely cannot accept these paragraphs. They are prescriptive and completely reinterpret just transitions.”

GST

On the GST India stated the following:

  1. India does not agree to a follow up of the GST outcomes. As per Paris agreement, GST is supposed to only inform parties to undertake climate action.
  2. The new chapeau on Enhancing Action, Support and International Cooperation has been drafted without adequate connection or integration with the text, parts of which are under negotiation on the UAE dialogue.
  3. The last text from the negotiations undertaken by Parties was one that captured the views of all Parties and was a viable basis for further negotiation. The new options under the Section titled Modalities of the UAE dialogue does not capture this at all.
  4. The new chapeau has no connection with the subject matter of finance which is the main aim of the UAE dialogue.
  • Further, the phrase “with developed countries (as per the synthesis report of the Biennial Reports) on track to increasing their emissions by 0.5 per cent from 2020 to 2030” may be added after the phrase “by 2.6 per cent by 2030 compared with the 2019 level”.
  • Though the new chapeau title is general, the text added is completely mitigation centric and completely unbalanced. India does not accept this text.
  • India does not accept the way the options have been formulated in the Timing and Format sections of the UAE dialogue.

Adaptation

India shared the following five points, which are essential to consider the draft decision:

  • Final outcome should include indicators on means of implementation in order for this work on global goal on adaptation to be meaningful.
  • There is no need to further focus on transformational adaptation. Instead, it is important to focus on other approaches such as incremental adaptation, long term adaptation in the context of national circumstances.
  • The data used for reporting on indicators should be taken from Party submitted reports and not from any third party databases. Therefore, this text may be dropped.

  • Language on Establishment of Baku Road Map as a means of continuing work pertaining to the global goal on adaptation, is essential.
  • Indicators should reflect the progress in the GGA goals. Further segregation may not be required.

In conclusion, reiterated that this COP is the Finance COP - the Balancing COP, the enabling CoP. The statement read, “If we fail here, we fail in the fight against Climate Change for which the onus should be on those who are obligated to provide finance for climate action.”

The Nigerian representative called the $300 billion goal “a joke,” while Bolivia slammed it as an “insult and a flagrant violation of justice and climate equity.” Ali Mohamed, speaking on behalf of more than 50 African nations, called the deal “too little, too late for a continent facing climate devastation while contributing least to emissions.” He noted that an estimated $5.1–6.8 trillion is needed for climate action by 2030. The Association of Small Island States (AOSIS), a group of 43 island nations quit the summit saying that the COP29 discussions “were not offering a progressive way forward.”

Raina concluded: "India does not accept the goal proposal in its present form."

 

Briefing Paper: Bihar’s third survey for land consolidation, Model Conclusive Land Titling Act and Aadhaar Number

Written By mediavigil on Saturday, September 14, 2024 | 7:38 AM

Bihar’s third survey for land consolidation, NITI Aayog's Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title
 
Bihar’s “third survey” for land consolidation which is underway is linked to NITI Aayog's Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title. Significantly, any violation of fundamental rights and constitutional rights in the process of special survey for land consolidation will have no legal remedy in the Courts and Tribunals because the laws under which this exercise is being undertaken are under the Ninth Schedule and Article 31 B of the Constitution of India. It has implications for social policies guided by indiscriminate digital and biometric profiling.
 
The first survey happened during 1898-1920. Cadastral Survey was undertaken under Bengal (Bihar) Kashtkari Adhiniyam, 1885. The word 'cadastral' means a public record of the extent, value and ownership of land for purposes of taxation. This type of survey involves the preparation of village maps showing the boundaries of groups of holdings, large scale plans of survey fields showing the boundaries of each holding,topographical details and all measurements, and land registers giving the number, nature, tenure, area assessment and reputed ownership of each holding. This survey is repeated from time to time when changes occur in occupation and in the boundaries of fields particularly when such changes are too numerous to be dealt with by the ordinary revenue staff. The term 'cadastral' has been derived from the French word 'cadastre' which means public register of ownership of parcel of land. In fiscal terms, it means a register of properties according to their value. 
 
The second survey happened during the 1960s. This revisional survey of land started after the abolition of zamindari in 1950 but 12 districts of Bihar were not covered.“Revisional Survey” means survey operations initiated and conducted on the basis of the blueprint map of the cadastral survey in order to update the land records.
 
The third survey of the land for the consolidation of land is happening under Bihar Special Survey and Settlement Act, 2011 and Rules under it and the related provisions of the Bihar Consolidation and Holding and Prevention of Fragmentation Act, 1956. The Bihar Special Survey and Settlement (Amendment) Rules, 2019 defines “Special Survey”. It means the construction of digital maps and construction and maintenance of record of rights to be made on the basis of position of the property and ownership relating to the land with the help of modern technology by using aerial Photographs/Satellite Images - taking the latest position of land.” The special survey work has been pending at least since September 2020 after the amendment in the law in 2019.
 
Bihar special survey work for the raiyats/land holders has started in compliance with an Order No. 177 dated January 11, 2024 issued by the Directorate of Land Records and Survey, Government of Bihar and the order of Chief Minister dated July 3, 2024. Letter No.:- 252, dated August 24, 2024. A formal announcement in the format of Form-1 was made for village-wise land survey and settlement between August 1-7, 2024. A village-wise Gram Sabha was scheduled between September 16-30, 2024. The survey exercise and publication of the final record of rights is required to be completed by August 24, 2025.

A review of the implementation of the special survey law and the related provisions under the Bihar Consolidation and Holding and Prevention of Fragmentation Act shows that the drawn out process of survey and settlement is likely to increase social unrest and increase the burden of civil and criminal cases related to land disputes. The claim that work of special survey and settlement, when completed, would reduce the cases of land disputes is not supported by any study. If over 60 per cent of incidents of crime in the state occur mainly because of land-related disputes, the spate of reported crimes amid the current special survey indicates that these incidents are likely to increase in near future if the exercise is not stopped in supreme public interest. 
 
A careful scrutiny of the provisions of these laws has revealed that there is no provision which is linked to land dispute related crimes. There has been no study undertaken in this regard in the State. It is not surprising that despite the announcement that the special survey work started in September 2020 and was to be completed by December 2023, it made no progress. There was another announcement made in September, 2022 that the special survey and settlement of lands will be completed by November 2024. On July 3, 2024, Chief Minister sought completion of the Special Survey by July 2025. The special survey commenced in 45,862 revenue villages to digitize land data with a one-year time frame for completion. He repeated the observations he had made in September 2022 about the exercise being aimed at reduction of crimes related to land disputes. He repeated them again in July 2024. 
 
The framers of the law did not factor in the implications of these laws on non-resident Biharis who constitute over 15-20 million. Between 1951 and 1961, about 4 percent of Bihar’s population migrated. In 1971, 2 percent of its population migrated. In 1981,the total number of migrants more than doubled at around 2.5 million. During the inter-censual period between 2001 and 2011, around 9.3 million Bihari people migrated (Census 2011). Had the Census been conducted on time in 2021, it would have shown how these laws are unjust and insensitive to the just needs of non-resident Biharis and their resident families.
 
After its passage from the Bihar legislature, the Bihar Special Survey and Settlement Act, 2011 was published in the Bihar Gazette on December 22, 2011 subsequent to Governor’s assent on December 20, 2011. Its purpose can be ascertained only by a harmonious construction of relevant provisions of the Bihar Tenancy Act, 1885 (as amended till 2017) and Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956 (as amended in 1970, 1975 and 1982). The purpose of these laws is to undertake survey of the land and regularize the status of raiyat and create a record of rights.
 
The special survey is aimed at conducting surveys in the whole of the state using modern technology, aerial survey technique with ground verification by means of Digital Global Positioning System (DGPS), and Electronic Total Station (ETS). It is also aimed at preparation and maintenance of to-date record of rights for revenue and land resource management, computerisation of land records in uniform way to address gap between computer data and to-date ground realities, conclusive ascertainment of current title, possession and classification of lands - for agricultural credit, subsidy, relief and insurance related activities. It provides for identification & demarcation of public lands, Government lands, lands treated as common property resource and the like-to record it in the Record of Rights. It provides for Publication of record of rights and consolidation operations after special survey and settlement under the Bihar Consolidation & Holding & Prevention of fragmentation Act (as amended in 1975).
 
The Bihar Consolidation & Holding & Prevention of Fragmentation Act deals with the closure of the consolidation operations. As soon as possible, after fresh maps and records have been prepared and certificates of transfer have been issued to the raiyats under the scheme, the State Government shall issue notification in the Official Gazette stating that the consolidation operations have been closed in the unit. It prohibits transfer of lands. Section 37 of the Act deals with "Bar of jurisdiction of Civil Courts. It states: "No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. " Section 37A of the Act states: "Authorities under the Act to be deemed courts of competent jurisdiction." Section 37 B of the Act states that "Authorities under this Act have powers and privileges as are vested in a Civil Court in certain matters". 
 
Section 14 of the Bihar Special Survey and Settlement Act provides for maintenance of records in digital form. Section 20 of the Act overrides all other laws. Section 21 of the Act makes State a party in “certain cases" but does not define “certain cases”. These laws put a bar on the jurisdiction of civil Courts which indicates the trend of executivisation of judicial functions. 

The provisions incorporated in the Bihar Consolidation & Holding & Prevention of Fragmentation law during internal emergency (1975-1977) in this regard need to be subjected to a test of constitutionality. In order to restore peace in rural and urban areas of the State disturbed due to the special survey, there is a compelling need to stop the exercise and revise the law and rules in consultation with all the land rights holders and farmer organisations to make it more pragmatic. It must take people into confidence regarding the relationship between the special survey and the consolidation of land under the Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956.

Notably, in November 2019, NITI Aayog's Model Conclusive Land Titling Act was framed. Its Section 56 states: Compulsory use of biometric identification-The Authority may, by notification from time to time in this regard, appoint a date from which it shall provide compulsory use of one or more than one particular personal identification system such as biometric authentication, Iris diagram or finger-print,or any other such method for establishing the identity of any person, for the purpose of any transaction or transfer of any Immovable Property recorded in the Register of Titles. Its Section 65 (2) (m) provides power of the State Government to make Rules states: "use of biometric authentication including AADHAR or other identification." NITI Aayog shared this Model Act and the Maharashtra Land Titling Act with the States for adoption.
 
A Bihar Gazette Notification dated May 9, 2023 stated that Aadhaar Number is voluntary but news reports in Bihar say, it is mandatory! The fifth sentence in the last paragraph of the Bihar Gazette notification dated May 9, 2023 clearly says, "Aadhaar authentication" is "on voluntary basis" for the registration of land. It has to be voluntary because of Section 7 of the Aadhaar Act 2016. The second para of Section 7 of the Aadhaar Act 2016 implies that Aadhaar is not mandatory for anything. It shows that due to some communication gap or ignorance of relevant legal provisions, there is misreporting of facts regarding Aadhaar being mandatory. But contrary to this notification, Aadhaar Number is being demanded during the registration of land. Coincidentally, the Union Budget by the Union Finance Minister unveiled plans for 'Bhu-Aadhaar' unique IDs for rural land parcels and digitization of urban land records by 2027.
 
Bhu-Aadhar refers to Unique Land Parcel Identification Number (ULPIN). ULPIN is part of the Digital India Land Records Modernization Programme (DILRMP). It is a 14-digit identification number accorded to a land parcel based on the longitude and latitude coordinates of the land parcel and depends on detailed surveys and geo-referenced cadastral maps. ULPIN is a Single, Authoritative Source of Truth for information on any parcel of land or property to provide Integrated Land Services to the citizens as well as all stakeholders. The ULPIN system is based on an international standard which complies with Electronic Commerce Code Management Association (ECCMA) standard and Open Geospatial Consortium (OGC) standard. There is a formula to generate and assign ECCMA (Electronic Commerce Code Management Association) Standard prescribed 14 digit Unique ID “Property Natural Identifier Unit” (PNIU) using the parcel Geo Referenced coordinate of vertices. This computationally generated Unique ID would be organically dependent on Parcel vertices expressed in Lat/Long coordinates “Property Natural Identifier Lot” (PNIL) and Unique ID (PNIU) would spatially be pointing to the surface of the parcel. 
 
The exercise of special survey for consolidation of land and biometric authentication through Aadhaar Number as proof of conclusive land title is happening unmindful of the fact that the Aadhaar case is pending before a 7-judge Constitution Bench of the Supreme Court. It is apparent that it is related to the the Asset Monetization programme and the National Monetisation Pipeline (NMP), a Government of India's initiative to establish a roadmap for "monetisation ready" assets. Pursuant to the announcement made in the Union Budget 2021-22, the NMP is listing potential core assets of Union Government Ministries/PSUs for monetization during the period 2021-22 to 2024-25. For instance, there are 258,000 acres of land with port trusts and railways has 113,000 acres. The State government too has surplus land. The special survey and settlement exercise aims to ascertain surplus land in the state for possible announcement of distribution ahead of the upcoming assembly elections. The plan was prepared by NITI Aayog in collaboration with the concerned Infrastructure Ministries in pursuance of the recommendations made by the Finance Ministry’s Vijay Kelkar Committee in 2012. Notably, NITI Aayog has sent a Model conclusive land titling law to the States. It is apparent that these initiatives pave the way for social policies guided by digital-biometric determinism and discredited Eugenic thinking. 

Conclusion 

Amidst growing unrest, on September 20, 2024, Bihar revenue and land reforms minister announced that the government is determined to go ahead with the ongoing land survey in the state but more time would be given to landowners for submission of self-declaration regarding ownership of land. “We have looked into the matter and the deadline would be extended. The official communication will be issued in a few days. We have reviewed the ongoing process, and it has been going well. The objective of the entire exercise is to help the genuine people with digitised land records to end disputes once and for all. They will get time to file self-declaration”. The official communication has not been issued as yet. The  problem of land in many families which is still in the name of grandfathers and great grandfathers, while several generations shifted outside has not been addressed by the government. Nothing has been done to respond to the allegations of corruption at the ground level in getting documents prepared. Digital platform for procuring land-related documents is a problem rather than a solution in rural areas. The land acquisition for major projects is also a big challenge for the survey. Even if land is acquired, giving compensation becomes a challenge due to lack of proper land records and documents.

The survey does not factor in the temporary nature of the diara land and frequent changes in river-courses which has led to many disputes and lawsuits related to land and fishing rights. The complications which arise due to alluvial and deluvial land has been ignored. The land in Bihar is subjected to alluvial and deluvial action by the rivers. The land which is found adjacent to the river course and made up from the changing course of the river, is known as alluvial land. It refers to lands gained from the rivers by alluvion. The land lost due to river is diluvion land. It does not deal with the legality of suit land purchased through auction sale given the fact that the auction sale is illegal for want of notice and also under the provisions of Money Lenders Act as well as due to misdescription of the sold land. 

According to state government's data, there are 33.16% poor families in the Other Backward Classes (OBC); 25.09% poor families in the General Category; 33.58% poor families in the Extremely Backward Classes (EBC); 42.93% poor families in the Scheduled Castes (SC); and 42.7% poor families in the Scheduled Tribes (ST). From among these poor and Dalits, a large number were given land by erstwhile landlords. They are likely to be deprived because of absence of required documents. Dalits who came to possess land because of struggle by people's movements are likely to be adversely affected because of paucity of property documents. The concerns of those who live in urban areas but have land in rural areas has not been addressed as yet. There is nothing in the law, the rules and the technical guidelines to suggest that the issues of ownership in the matter of huge number of pending land ownership dispute related court cases has been factored in. 

In such a backdrop, the survey must start after ascertaining and factoring in all these aspects in general and the status of Court cases related to land ownership disputes in particular at the Gram Sabha level. 

For all the special land survey documents and technical guidelines refer  to https://dlrs.bihar.gov.in/compendium.pdf 
 


 Dr. Gopal Krishna

The author is a lawyer and a bilingual philosophy and public policy researcher. He has given expert testimony before the Indian, European and German Parliamentary Committees in the matter of national and international legislations on the land acquisition, national identification, hazardous waste trade, corporate code of conduct, civil liability for nuclear damage, consumer protection and biological diversity. E-mail:forcompletejustice@gmail.com

Adopt river basin and watershed based approach beyond parochial anthropocentric nation-state framework

Written By mediavigil on Tuesday, September 03, 2024 | 9:56 PM

In the backdrop of environmental and human disasters in Hiroshima, Nagasaki and Fukushima, there is a compulsion to think about the water footprint of 14, 500 nuclear weapons, 2, 000 nuclear tests and 495 nuclear reactors. Within India, the water footprint of 23 nuclear reactors in eight nuclear plants is yet to be factored in. The nuclear plant in Narora, Bulandsahar, Uttar Pradesh and the upcoming nuclear plant in Rooppur, Pabna, Bangladesh poses a threat to the residents of Ganga river basin.


Land and water co-exist. The colonial narrative separated land and water because it was concerned primarily with revenue from the land. Food is virtual water. It is water embedded in the food and in the food production process. Water exists in river basins, watersheds, atmosphere, ocean and under ground. Land erosion is linked to water flow and deforestation. The shrinking of agricultural land due to erosion, indiscriminate industrialisation and urbanisation poses a threat to food security.

UNDP’s report of 1994 introduced a new concept of human security, which equates security with people rather than territories, with development rather than arms. It recognised that water faces biggest environmental threat. It regards water scarcity as a factor in ethnic strife and political tension. It referred to the silent emergencies caused by polluted water and degraded land which puts lives and livelihoods at risk.

UNDP’s special report of 2022 on human security underlined that natural systems provide food and water provide besides ecosystem services such as watershed protection, and climate control. But in 123 countries an increase in wealth between 1990 and 2014 has been accompanied by a decline in natural capital. It recognises that cyberwarfare can disrupt electricity grids and water system.

The simile of water flow for data flow for creating data grid and water grid is remniscent of Marx’s observation regarding capitalism’s tendency towards centralisation, which ultimately overpowers the centrefugal forces of competition. Digitalisation and centralisation of data seems to entail colonisation of the ecological space and human space.  

UN Convention on Law of the Non-Navigational Uses of International Watercourses came into force in August 2014 after the ratification by 36 countries. None of the countries in the Himalayan watershed have ratified it because of Article 7 of the Convention which requires that States “take all appropriate measures to prevent the causing of significant harm” to other States sharing an international watercourse in the upstream and downstream. The interests of upstream and downstream States do no seem to converge as far as exploitation of the water is concerned. The definition of the watercourse in the Convention is quite parochial.      

The idea of water grid by linking rivers was rejected by Prof. S. R. Hashim headed National Commission on Integrated Water Resources Development Plan in 1999. But it too re-birth because of Supreme Court’s orders in 2003 and 2012. The proposal of diversion of some 39 rivers for Interlinking of Rivers (ILR) project, the world’s biggest project is likely to give birth to water security issues because “international watercourses” like Ganga, Kosi, Mechi and Brahmaputra are involved. It can adversely impact relations with Nepal, Bangladesh and China. Under Indo-Bangladesh treaty on sharing of Ganga waters, Ganga is deemed a deficit river but as part of the ILR project it is presented as a surplus river by National Water Development Agency (NWDA), an agency whose only mandate is to link major Himalayan rivers and Peninsular rivers at any environmental and human cost. The economic rationality of ILR like projects is contrary to water cycle and biological cycle because NWDA holds that there are “surplus” rivers, “deficit” rivers and water which goes o the sea is wasted. This assumption is unscientific and contrary to folk wisdom. It treats rivers as pipelines which can be twisted, mutilated and diverted for the ILR project. The project entails re-writing the geography of South Asia. It is caught in a time warp. The data on which the project is based from the 1970s. It ignores the fact that Himalayan rivers are unpredictable. This pre-climate crisis era project does not factor in green house gas emissions due to colossal land use change. The project is unfolding despite opposition from several states. It gives birth to myriad gnawing human security concerns.     

Disregarding the approach of the UNDP, UNFCCC and the G-77 group of countries, which focuses on human security, some members of the UN Security Council (UNSC) has been unsuccessfully attempting to establish a natural security narrative for climate crisis. UNSC failed to do in 2007, 2011 and 2020 and 2021 because of opposition from Russia, China, India and G-77 countries. The natural security narrative emerged out of a report entitled “National Security and the Threat of Climate Change”, from a US government-funded national security think tank, the Center for Naval Analyses. The Military Advisory Board and the study team that authored the report received briefings from the U.S. and U.K. intelligence community, climate scientists, and business and state leaders. The US military report recommended, "Military planning should view climate change as a threat to the balance of energy access, water supplies, and a healthy environment, and it should require a response." There are attempts underway to pursue this narrative despite failure at the UNSC. In February 2023, World Economic Forum Annual Meeting took the position that "Water security is a national security issue." NATO’s Parliamentary Assembly has published a draft report entitled “Turning The Tide: Addressing the Impact of Water Insecurity on Allied Security” in May 2024.    

International financial institutions (IFIs) like World Bank Group has been promoting contradictory and inconsistent projects wherein they consider river water quality improvement projects to be different from water quantity projects like dams. These institutions do not recognise that when the flow of water in the river is depleted, water quality deteriorates. Such projects are a threat to water security in particular and the river basins in general.

The disasters in the Himalayas and Western Ghats remind that water has memory. It never forgets itS course. The military people, economists and technocrats remain deaf to the message from the rivers. The solution lies in adopting genuine river basin and watershed based approach beyond parochial anthropocentric nation-state framework, which normalises and naturalises financialization and monetisation of natural wealth.          

Dr. Gopal Krishna's lecture at a webinar on "Security at Crossroads: Land, Food, Water" organised by the Calcutta Research Group (CRG) on 13th August 2024.  The other speakers were: Dr. Rajendran Narayanan, a Data Scientist who teaches at Azim Premji University and Dr. Meenakshi Nair Ambujam, a post-doctoral fellow affiliated with the Department of International Development at the University of Oxford. The webinar was chaired and moderated by Prof. Sabyasachi Basu Ray Chaudhury Professor, Department of Political Science, Rabindra Bharati University, Kolkata.

The event details to the first webinar of the series "Security at Crossroads" is at http://www.mcrg.ac.in/Security_Studies/Security_Studies_Webinars.asp and the video link is available at https://www.youtube.com/watch?v=aO91sIHSYH4


Suggestions to the new government for environmental protection

Written By mediavigil on Wednesday, June 05, 2024 | 4:11 AM

Environmental health researchers, lawyers and activists are at their wits' end because an ideology of “development at any cost” is creating an impression that environmental regulations are a hurdle in the process of financial growth and development.

 
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