Comprehensive Rehabilitation Plan for Dantewada and Bijapur Districts, Chhattisgarh

Index

I.  Background 3-4

II.  Summary of settled PRINCIPLES of REHABILITation 5-6

III.  COMPREHENSIVE REHABILITATION PLAN 7-20

1.  Background

2.  Categories of Internally Displaced Persons (IDPs) of Dantewada and Bijapur Districts

3.  Types of Rehabilitation and Reparation Required

4.  Need for a Monitoring Mechanism, with suggested composition of committee

5.  Survey and Identification of Affected Persons, Households and Villages

6.  Dissemination of Information regarding Plan and Procedures

7.  Rates of Compensation for Individuals and Households

8.  Provision of Village Infrastructure

9.  Legal Aid for Families

10.  Special Rehabilitation Package for Children

11.  Special Provisions for Women

12.  Reparations to the Community and the Administration

ANNEXURES: Extracts from Relevant documents on Principles Governing Rehabilitation 21-37

Annexure 1: Supreme Court Judgments

Annexure 2: UN ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, 2006

Annexure 3: National Rehabilitation and Resettlement Policy 2007

Annexure 4: NHRC’s Recommendations on Relief and Rehabilitation of Displaced Persons, 2008

Annexure 5: UN Guiding Principles on Internally Displaced Persons, 1998

Annexure 6: Scheme for Relief and Rehabilitation of Victims of Rape, 2005 prepared by the National Commission for Women on the directions of the Supreme Court.

I.  BACKGROUND

The present submissions are made pursuant to the orders of the Honourable Court dated 18.2.2010. The Court directed that “The petitioners may file a comprehensive rehabilitation plan and be submitted to this Court within the next date of hearing. The State would also file its objection, if any, to this Court on this aspect.” It may be recalled that while the order as recorded reads: “It is also requested by the petitioners that compensation should be paid to the persons who lost their houses and belongings by the acts of naxalites”, the matter was mentioned the following morning, 19.2.2010, before the Chief Justice in the presence of the counsel for the State of Chhattisgarh who had been notified. Thus it was clarified by the Court that the rehabilitation plan submitted would cover all those who are victims of the conflict in this regard, including vigilante, state and Naxalite violence.

The Hon’ble Court had also directed that “The State shall file a report as to what steps have been taken to see that FIRs are registered in cases where no FIRs have been registered, as pointed out in the report of NHRC and what further steps have been taken to prosecute the accused who have been already charge-sheeted by the police.”

It follows from this that there are two main aspects to the course of rehabilitative action being directed by this Honourable Court, which are entirely in keeping with international and national precedent and policy: a.) comprehensive compensation and rehabilitation for all those who have suffered loss of life, limb, livelihood, shelter and property, or undergone sexual violence on account of the ongoing conflict between the Naxalites, security forces and Salwa Judum, and b.) upholding the rule of law by means of registration, investigation and prosecution of all human rights violations. Upholding the rule of law is as much an integral part of the rehabilitation scheme as any other aspect of rehabilitation, since physical displacement of the tribals in Dantewada has been the outcome of infringement of the law by State and non-State agencies. Upholding the rule of law is crucial for ensuring that it may not be infringed in the future leading to further displacement.

In order to frame a comprehensive rehabilitation policy, we have relied on the settled principles of rehabilitative justice. In State of Gujarat v. The Hon’ble Court of Gujarat (1998) 7 SCC 392, the Supreme Court has recognized the 2006 ‘UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, then in draft form, as part of any scheme of rehabilitation, noting that “The victim is certainly entitled to reparation, restitution and safeguard of his rights.” In its 2008 recommendations on rehabilitation and resettlement, the NHRC has also recognized these 2006 UN principles and the UN Guidelines on Internally Displaced Persons, 1998, as the guiding principles for reparation to victims of human rights violations and rehabilitation of internally displaced persons. These internationally recognized humanitarian principles and guidelines are directly relevant to any proposal for rehabilitation in the present case.

The relevant portions of the Supreme Court judgments, the National Rehabilitation and Resettlement Policy 2007, the National Human Rights Commission (NHRC) Recommendations on Rehabilitation and Resettlement, 2008, the UN General Assembly Resolution on the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, 2006, and the UN Guiding Principles on Internally Displaced Persons, 1998, and the Scheme for Rehabilitation of Rape Victims 2005, drawn up by the National Commission for Women, on the directions of the Supreme Court, are annexed here as Annexures 1- 6.

The UN Guiding Principles on Internally Displaced Persons (IDPs), 1998, define IDPs as: “internally displaced persons are 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 humanmade disasters, and who have not crossed an internationally recognized State border.” The adivasis of Dantewda and Bijapur district are in every sense of the term “internally displaced persons”.

II.  SUMMARY OF SETTLED PRINCIPLES OF REHABILITATION

1.  “The Victims’ Right to Remedies under the UN 2006 Principles and Guidelines include (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms. Adequate, effective and prompt reparation in turn includes the following principles: 1. Restitution, 2. Compensation, 3. Rehabilitation, 4. Satisfaction, 5. Guarantee of Non- repetition.[1]

2.  In the case of conflict induced internally displaced persons, the NHRC (2008) has noted that it is critical to “focus on identifying and creating the assurances which displaced persons would require in order to repatriate to former place of residence voluntarily.” This includes “focusing on the prevention aspects of displacement, and a guarantee of non-repetition of human rights violations such as rape, murder, beating, arbitrary arrests, including criminal prosecution of the guilty”.[2]

3.  Identifying missing persons, compensating for death of relatives, or injury and sexual violence, as well as compensating for the resulting trauma, is critical to any rehabilitation and reparations project.[3]

4.  In a ‘victim oriented approach”, “compensation is payable irrespective of the criminal being apprehended or not and independent of the trial of the accused.”[4] This does not, however, absolve the state of its responsibility for criminal prosecutions of those accused of grave human rights violations, as accepted by the principle of equal and effective access to justice.[5]

5.  All affected and displaced persons have the right to immediate humanitarian assistance, wherever they are. In particular, they have the right to food, shelter, healthcare (including mental health care), clothing and education. There should, at the same time, be a time frame for full and voluntary return of all displaced persons in conflict situations.[6]

6.  Compensation and rehabilitation should restore affected persons, especially when they are scheduled tribes, to a situation better than before, and should include full infrastructural facilities in villages.[7]

7.  There should be full publicity given to such a plan and victims must be involved at all levels. In addition, there should be free access for civil society, media and humanitarian agencies, both national and international.[8]

8.  Rehabilitation will be impossible without monitoring by an independent committee which will exercise oversight over the rehabilitation and reparation process, under the continuing orders of the Court. The rehabilitation plan must account for events or processes that are not anticipated at the time of preparing the plan, but which become critical later on. This is in keeping with several judgments of this Court which have referred to an order in the nature of a permanent mandamus.[9] The need for a monitoring and grievance mechanism separate from the implementing government is also contained in the National Rehabilitation and Resettlement Policy of 2007. The UN Guidelines on Internally Displaced Persons (IDPs) 1998 provide for humanitarian organizations to be involved.

9.  There is a strong need for a national fund and policy on rehabilitation of conflict-induced IDPs. The rehabilitation package should be governed by common principles regardless of where the persons are located, or the type of conflict which has led to their displacement. The Kashmiri migrants, Gujarat riot affected persons, victims of the Sikh riots of 1984 or the adivasis of Chhattisgarh are all equally citizens of India.[10]

III. Comprehensive Rehabilitation Plan for Dantewada and bijapur districts, chhattisgarh, 2010

I.  Background

The scope of the problem is at the very least what is indicated by the NHRC’s visit to Dantewada and Andhra Pradesh (AP) in 2008. The NHRC annexures include testimonies submitted to it by next of kin or statements based on cross examination of relatives (Annexures B-1 to B-4 of NHRC report). These narratives of forcible displacement to Salwa Judum camps and to AP, killings, rapes, looting and arson by Salwa Judum, security forces, SPOs and Naxalites, signify the nature of the problem to be addressed if not its full scope. It is evident from NHRC’s report itself that their investigation was a limited one for the NHRC could not go into the vast majority of complaints listed in the petitions before the Court or the complaints that it itself received in the course of the investigation. By official statistics, 644 villages have been affected in the conflict.[11]

Table of Cases investigated by NHRC in response to charges in WP 250/2007 and 119/2007

The adivasi citizens of Dantewada, who were already the poorest in the country to begin with, have been rendered destitute by conflict, and are suffering from severe malnutrition. However, they will not come back home unless they can be assured of peace, which will come about only if criminal prosecution is initiated against the guilty, and there is an end to the continuing displacement caused by arson in the course of search operations. This is entirely in keeping with the NHRC’s recommendations to identify and create the assurances which displaced persons would require in order to repatriate to former place of residence voluntarily.

II.  Categories of Internally Displaced Persons (IDPS) of Dantewada and Bijapur districts

Overall, at least a lakh of people are directly affected, including old people, women and children, and some 3 lakh or so live in the affected area. The IDPs fall into three categories:

1.) Those hiding in the jungles around their villages, or living at home but periodically fleeing into the jungles, after their villages were attacked by the security forces and Salwa Judum, and houses burnt down. This is the largest category.

2.) Those who have fled to Andhra Pradesh, because of attacks by the Salwa Judum and security forces. There, they live an uncertain existence on forest land at the mercy of the Andhra Pradesh forest department, or other AP host villagers. The numbers here are estimated at 30-40,000 with at least 350 families having fled since September 2099 alone, according to local NGOs in Andhra Pradesh. They stand deprived of the rights to which they would be entitled under Schedule V of the Constitution of India, had they been allowed to stay in their home villages.

3.) Those still in Salwa Judum camps. Initially 47, 238 tribals were forcibly evicted into camps according to a Government of Chhattisgarh memorandum,[12] but by 2008, after three years of being held captive in the Salwa Judum camps, many of the villagers started going back to their village. Those who are left in camps are now mainly Salwa Judum supporters and SPOs, according to the NHRC report.

III. Types of Rehabilitation and Reparation REQUIRED

In addition to rehabilitating individuals and households, the village community as a whole has to be rehabilitated and restored as a functioning unit, with all necessary infrastructural provisions. There are no PDS shops, handpumps, schools, anganwadis etc. in affected villages. There is also an urgent need to restore the functioning of the administration and constitutional machinery which has completely broken down in the districts of Dantewada and Bijapur, as no FIRs are being filed, no services are being extended to the villages etc. In other words, rehabilitation and reparations have to take place at five levels:

1. Individual compensation for injury, death, sexual violence, without prejudice to criminal prosecution
2. Household compensation for property loss and damage
3. Rebuilding and provision of village infrastructure
4. Restoration of adivasi society which has suffered damage due to breakdown of trust and fratricidal violence
5. Restoration of district administrative, police and judicial machinery.

IV.  NEED FOR A MONITORING MECHANISM

It is the accepted principle of rehabilitation in such situations that a multidisciplinary monitoring committee should oversee all aspects of rehabilitation, compensation and reparation in order for it to be effectively implemented, especially since the existing administrative machinery in Dantewada and Bijapur has broken down causing such massive displacement and loss of lives. In fact, rehabilitation is not possible otherwise because different kinds of expertise would be needed for the identification of victims, assessment of damages, gender and child specific reliefs, and the adherence to humanitarian law. No government department by itself can handle the process of restoration. In fact, in Pakistan in the Swat valley and in Nepal, humanitarian aid was taken for a fairly successful restoration of IDPs.