10 August 2001

Shri Atal Bihari Vajpayee

Prime Minister of India

Parliament House

New Delhi – 110001

Dear Shri Vajpayee,

I am addressing this letter to your Excellency in my capacity as the United Nations Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, appointed by the United Nations Commission on Human Rights under its resolution 2000/9.

As part of my mandate given by the Commission, I am to monitor both the violations and the steps taken to realize the right to adequate housing all over the world. As a framework for this mandate, the Commission has identified the applicable legal norms to include article 25.1 of the Universal Declaration of Human Rights, article 11.1 of the International Covenant on Economic, Social and Cultural Rights, article 27.3 of the Convention on the Rights of the Child, article 14.2 (h) of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5 (e) of the International Convention on the Elimination of All forms of Racial Discrimination.

Based on this broad legislative mandate, and consistent with the authoritative interpretations given to the right to adequate housing by UN treaty bodies, I have defined (in my first report to the Commission on Human Rights, E/CN.4/2001/51) the human right to adequate housing as: “the right of every woman, man, youth and child to gain and sustain a secure home and community in which to live in peace and dignity.”

In this connection, I would like to draw your Excellency’s attention to information I have received concerning the housing and living conditions of the tribals and other people displaced by the Sardar Sarovar Project (SSP) on the Narmada River. As you are aware more than 40,000 families will be affected by this project.

Over the past six months, I have received numerous communications from civil society organizations in India, including the National Alliance of People’s Movement (NAPM) and the Narmada Bachao Andolan (NBA), about the grave situation of human rights in the Narmada valley. In response to these messages, I commissioned an independent fact-finding mission to the Narmada Valley. The mission was carried out in May 2001 and visited affected villages and rehabilitation sites in Madhya Pradesh, Maharashtra and Gujarat.

Your government’s publicity at both national and international levels, claims that the rehabilitation policy for those displaced by the Sardar Sarovar Project is the best so far formulated by India and that the work of rehabilitation of those displaced by the first phase of the project is proceeding in a satisfactory manner.

However, according to the findings of the fact-finding mission of my office, the reality seems to paint a very different picture. The much publicized elaborate structures and systems developed for ensuring proper rehabilitation are generally not functioning adequately and in some cases not functioning at all. Such a situation, is inconsistent with the guiding spirit and letter of our Constitution, numerous national legislations, the Narmada Water Disputes Tribunal Award (NWDT Award) or of the international human rights instruments India has ratified.

I am writing to you in the hope that the efforts of your Government to rehabilitate the tribals and others displaced by the Sardar Sarovar Project would benefit from the international human rights safeguards to protect the right to adequate housing. In this context I would like to bring the following instruments, that India is legally bound by, to your attention. Relevant excerpts of these instruments are included in an annex to this letter for your ready reference:

1. The Universal Declaration of Human Rights (UDHR).

2. The International Covenant on Economic, Social and Cultural Rights (ICESCR)

3. The International Convention on the Elimination Of All Forms of Racial Discrimination (CERD).

4. The Convention on the Rights of the Child (CRC).

5. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

6. Convention 107 (Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries) of the International Labour Organisation.

In addition to these legally binding instruments, there are a number of declaratory UN instruments that also provide valuable guidance for States to determine the feasibility and conditions that allow for the displacement (and adequate rehabilitation) of affected people and communities:

7. UN Commission on Human Rights resolution 1993/77 entitled ‘Forced Evictions’

8. General Comment No. 4 (1991) “The right to adequate housing” of the UN Committee on Economic, Social and Cultural Rights

9. General Comment No. 7 (1997) “forced evictions” of the UN Committee on Economic, Social and Rights

10. UN Comprehensive human rights guidelines on development-based displacement (1997)

11. UN Commission on Human Rights resolution 2000/13 and 2001/34 entitled “Women’s equal ownership of, access to and control over land and the equal rights to own property and to adequate housing”.

Proceeding from the understanding that these provisions, and authoritative interpretations, of international law must guide the planning and implementation of any development project in India, the mission from my office attempted to answer whether in the process of the planning, survey work and the building of the Sardar Sarovar Dam, the right to housing of those effected has been respected, or what nature of violations have taken place. The Main findings of the independent mission are outlined below:

Finding 1 A large number of SSP affected people are not considered as official Project Affected People and therefore not eligible for alternative housing and land.

• More than a lakh and a half (140,000 people due to construction of the canals) people are victims of forced evictions, being deprived of their right to housing under international law as the rehabilitation policy does not include them. The States have acquired these peoples’ homes and lands for the canals and dykes. Moreover, villagers from 104 villages stand to be affected due to the expansion of the Shoolopaneshwar Sanctuary. Only the reservoir-affected people are considered as the project-affected persons.
• The surveys to identify the project-affected people have not included all those whose houses and lands will be submerged. Take for example the omission from the surveys of the people at Kikarwas in Dhar district, Madhya Pradesh. There are people living at the rehabilitation sites without house-plots or land being allotted to them. At Simali rehabilitation site, for example, in Nandurbar District of Maharashtra people are without land or house-plots
• The Government records are incorrect as to which year the project-affected families will be submerged and how many people have moved from original village to rehabilitation sites such as in Manibeli, Maharashtra.
• The Madhya Pradesh Government has been and is continuing to put undue pressure on the oustees from its state. In Kikarwas village in Dhar district, for example people are being offered cash compensation or move to Gujarat. This is in violation of the legally binding Narmada Water Disputes Tribunal Award and the provisions of the right to housing under international human rights law ratified by India.

Finding 2 The Project-Affected People (PAP’s) that are recognized officially have not been provided suitable and adequate alternate housing including land, rendering them homeless.

• Due to the unsuitable and inadequate rehabilitation many of the oustees have been compelled to give up the lands at the rehabilitation sites and return to their original villages. Take for example, the people from Manebeli, Nandurbar District Maharashtra who returned from Parveta in Gujarat and around 45 families from Rajghat, Dhar district in MP went to a rehabilitation site in Kharsan, Baroda district and returned.
• The Rehabilitation and Resettlement Sub-group of the Narmada Control Authority has taken a decision to make ex-party allotment to people who are unwilling to accept the rehabilitation package.
• The land allotted at the rehabilitation sites is either partly or fully uncultivable even when the oustees have to bear considerable expenses on their own to prepare the land for cultivation. An example is that of Parveta, one of the oldest rehabilitation sites in Gujarat, where most people have indicated that at least half of their land was uncultivable.

Finding 3 The rehabilitation provided to the PAP’s violates minimum core obligations under the International Covenant on Economic, Social and Cultural Rights that are required to protect the right to adequate housing.

• The PAP’s do not have legal security of tenure over the land and houses provided to them. A large number of people who have been allotted lands that is in control of the original owner/occupants such as in Simali and the 4 rehabilitation sites in Taloda tehsil of Nandurbar district in Maharashtra. In some cases people’s lands have been acquisitioned again, for example in Simali for the purpose of canal construction. .
• Basic facilities such as drinking water and irrigation facilities do not exist in even in long-established sites such as at the Parveta rehabilitation site in Gujarat there is a severe shortage of drinking water or at the Vadaich rehabilitation site in Gujarat where the water is available only at odd hours of the night. After living there for 15 years people have become disillusioned and have categorically stated that they want to go back to their original villages.
• Where basic facilities do exist this has transpired only after the concerned local people, including local movements, protested and applied pressure on the Government. At Vadaich rehabilitation site in Gujarat, for example, the access road to the site was made after considerable pressure was put on the authorities. Until this happened, the people had to wade through knee-deep water during the monsoon to get to the road.
• The house-plots, material and money given for construction of houses raise the issue of affordability. Due to insufficient compensation for houses, only people with extra-income or savings have been able to construct pucca houses. Others continue to live in tin-sheds provided as temporary shelter such as at Simai, Maharashtra and Parveta and Vadaich in Gujarat. . This raises the non-satisfaction of the issue of habitability.

Finding 4 The standard of living of the tribals has fallen because they have lost the rich source of sustenance from the forest - such as minor forest produce, timber for building houses and fruits, etc - available in them in their home village. As a result many of them have had to resort to agricultural labor in grossly exploitative conditions. In addition to the relevant provisions of the Covenant on Economic, Social and Cultural Rights such as situation is in violation of India’s commitment under articles 2(1) and 12 of ILO Convention 107.

Finding 5 The project was announced as early as 1961. Since then all “developmental work” in the form of new constructions, and even repair or up gradation of old ones has stopped. In effect a whole generation have grown up without their rights to housing, education and health. The affected people are completely unprepared for a life post displacement which will require much greater skills and training in a setting where their traditional lifestyles and skills may no longer have a place. In the absence of these facilities in the villages to be displaced and the resettlement sites, children are growing up without these basic amenities in the present. Clearly India’s commitments under the Convention on the Rights of the Child are called into question.

The findings of the independent mission, based on eyewitness accounts, interviews with the affected people and data collected from civil society and governmental sources, concludes that the SSP resettlement of the affected people has been a comprehensive failure. The responsible authorities at local, state and the central level have failed to demonstrate either the commitment, or the capacity, to carry out the resettlement in a manner consistent with the basic human rights of the affected people. The displacement of the oustees of the SSP is forced evictions under international law and forms a clear violation of their right to adequate housing.

Such a situation indicates violations of, in addition to the right to adequate housing, the human rights to security of the home, the right to information, the right to work, the right to health, the right to food and so forth. All these are human rights contained in international human right instruments that India is duty bound to respect.

In the light of these, I would like to suggest that an immediate moratorium be called to any further increase in the heights of the dam so that ongoing violations come to a halt. In addition, the following concrete steps be initiated to ensure that resettlement is done in accordance with our Constitutional provisions and in keeping with our obligations to international human rights instruments.

Recommendations:

· The height of the dam should not be raised till the rehabilitation of all the project affected persons upto 90mts is complete so as to protect their human rights to livelihood, housing and congruent rights.

· The project authorities should show transparency and demonstrate the location and quality of land to be offered for resettlement. The government claims that it has land for rehabilitating oustees if the height of the dam is increased.

· The government officials carrying out or overseeing rehabilitation work should regard the rehabilitation of the project affected people as their human right flowing from the right to adequate housing, and not as a favour being granted to them or numbers to be filled in records.

· At the existing rehabilitation sites, the land related problems and the provision of basic services needs to be addressed immediately to ensure that the oustees can satisfy their right to housing and livelihood.

· The Madhya Pradesh Government should not violate the NWDT Award and force the project-affected people to move to Gujarat. The Madhya Pradesh Government is under an obligation to give full information to the oustees of their rights under the NWDT Award.

· Responsible governmental authorities at all levels need to pay particular attention to ensure that Women are ensured rights to property, land, housing and required civic services consistent with India’a obligations under CEDAW.

· Particular attention needs to be given to the SSP affected children. All governmental authorities should keep in mind the opinion of the UN Committee on the Rights of the Child (Concluding Observations (para 53) on India, January 2000) that “the Committee encourages the State Party to prevent any occurrence of forced evictions, displacement and other types of involuntary movements. The Committee recommends that resettlement procedures and programmes include registration, facilitate comprehensive family rehabilitation, and ensure access to basic services.

· The project-affected people should include those people whose lands have been acquired for the canals, dykes and sanctuary.

· In all the above outlined processes the human right to information and participation of the Project affected people must be respected. Genuine consultation followed by informed consent must be the basis of any progress to be made regarding rehabilitation of affected people.

To facilitate the implementation of these recommendations I would like to suggest that Your Excellency establish an independent Committee with a twofold objective: to investigate the status of resettlement in the Narmada Valley and to draft guidelines that would allow for monitoring compliance in the resettlement process with Constitutional provisions, the NWDTA and India’s international human rights commitments. These guidelines could lead to human rights impact assessments of the project to determine its feasibility in light of the violations that have already taken place. This would ensure that the complete cost benefit review of the SSP that is called for includes full consideration of the implications of continuing with this project on the human rights of those to be affected.

The establishment of such a Committee would be consistent with the authority vested in your office in the parts of the Indian Supreme Court Judgment in October 2000 (Narmada Bachao Andolan v. Union of India and Others) that deal with the determination of the adequacy of rehabilitation. I would urge Your Excellency, given the scale of violations that have already taken place, to include in the mandate of such a Committee to ensure that the rights to rehabilitation of all the people displaced by the SSP since the first displacements began in the 1980’s. As you are aware the conditions placed by the Supreme Court to ensure adequate rehabilitation are only for the people to be displaced after the raising of the height of the dam beyond 90 meters.

The Sardar Sarovar Project has received intense publicity at the national and international levels and has been one of the most controversial development projects in the world since the displacement of people began in the 1980’s. In this context, and given that one of the intentions of this letter is to initiate a dialogue on the level of compatibility of the rehabilitation with India’s international commitments to human rights I am releasing this letter to the public.

In India, numerous credible Committees have documented in detail the considerable shortcomings of the rehabilitation efforts; in particular the failure of the implementing authorities to comply with national law and the strictures lay down by the NWDTA. The most recent example of this is the report of the Justice S.M. Daud (Retd.) Committee established by the government of Maharashtra. The findings of this Independent Committee were submitted to the government of Maharashtra on 3 July 2001. I completely subscribe to the conclusions of this Committee, as they are consistent with my own findings.

What this letter has attempted to show that the international obligations have also been and continue to be violated. India’s credibility in the international community is at stake. Your leadership is urgently called for to ensure that the human rights of the project-affected people are respected and protected. I would urge you to take steps that these instruments are scrupulously adhered to.

I trust that the Special Procedures mechanisms of the United Nations human right program such as my mandate, can serve to be a resource in your efforts to seek the needed solution, towards protecting the right to adequate housing for the tribals and others displaced in the Narmada valley.

In the mandate entrusted to me by the UN, I am called upon “to report the status, throughout the world, of the realization of the rights (to adequate housing), and on developments relating to these rights, including on laws, policies and good practices,” taking into account information received from various courses, including governments. I have also been urged by the UN to seek collaboration with governments towards the fulfillment of the rights related to adequate housing.

In this context, I look forward to your response concerning further positive developments and offer my services for any role you see fit for me to play towards the resolution of the large-scale crisis that India finds itself in as she seeks to respect the human rights of all the people in the Narmada valley affected by the SSP.

Please accept, Excellency, the assurances of my highest consideration.

Miloon Kothari

United Nations Special Rapporteur on

adequate housing as a component

of the right to an adequate standard of living