Gender and Social Protection: Brief Overview

India’s constitutional obligations on social security is reflected in the fundamental rights guaranteed to the citizens and the Directive Principles require the State Policies to focus attention on these aspects. In terms of measures undertaken by the State and the Society in preventing, reducing and eliminating economic and social vulnerabilities and eliminating poverty and deprivation, India’s achievement over its 70 years of Independence is appalling. One estimate of the adverse sex ratio of females to males suggests that the country has 63 million “missing” women and about 21 million “unwanted” girls.

The Government of India’s Economic Survey[i] tries to justify the poor status of women and social protection measures by alluding to the concept of “development time” and “chronological time.” It therefore suggests that since India is way far behind in development time, Gender indexes such as the Global Gender Gap Index of the World Economic Forum (WEF) or the Gender Inequality Index (GII) of the United Nations Development Program (UNDP) which rank countries in chronological time is the cause for the poor statistics. However, the reality is that while for political reasons several Schemes are launched, the investments are too little and spread too thin and the implementation of the schemes lackadaisical to make any tangible difference to the really poor. The fact that Rwanda ranks 4th, Nicaragua 6th, Slovenia 7th and Philippines 10^th completely negates the contention of the Government and it an important question as to why and how have these countries managed to do so well despite having Gross Domestic Products which are far less than ours, economies which are perhaps not as vibrant as the Indian economy and diversity issues similar to those we have in India[ii]. The pink colour to the year’s economic survey emphasising government’s concern seems more promotional and face-saving rather than admit to the realities on the ground.

The total number of female workers in India is 149.8 million and female workers in rural and urban areas are 121.8 and 28.0 million respectively. Out of total 149.8 million female workers, 35.9 million females are working as cultivators and another 61.5 million are agricultural labourers. Of the remaining female workers, 8.5 million are in household Industry and 43.7 million are classified as other workers. There is a wide range of activities covered under other workers including those in mining, forestry etc.

The work participation rate for women declined over the last census decade and was 25.51 percent in 2011 as compared to 25.63 per cent in 2001 indicating a deteriorating situation for women to obtain gainful employment. The work participation rate for women in rural areas is 30.02 per cent as compared to 15.44 per cent in the urban areas[iii].

Social Sector Expenditure, Union Government
Year	Amount In Million INR	Percentage of Total
2012-13	1247250	8.87
2013-14	1424260	9.12
2014-15	686630	4.41
2015-16	1006820	5.68
2016-17	1160230	6.01
Accounts of the Union Government, No. 44 of 2017 (Financial Audit), CAG

In terms of expenditure on social services the Union Government accounts expenditure which, in turn, are grouped into three sectors, namely General Services, Social Services and Economic Services. In relation to the total expenditure, General Services showed an increase from 47.42 per cent in 2012-13 to 53.07 per cent in 2016-17 while expenditure on Economic Services has remained between 40 to 44 per cent during the same period. In Social Services, the expenditure share remained below 10 per cent for the period of 2012-13 to 2016-17.

It is very clear that a dramatic reduction on expenditure on social services, almost cutting it to less than half-the-previous year is noticed when there was a change in the Government and even until this year they have not been restored back to the 2012-13 levels.

The total revenue expenditure, which excludes any capital investments, includes expenditure on Education, Sports, Art and Culture, Health and Family Welfare, Water Supply and Sanitation, Housing, Urban Development; Welfare of SCs, STs and OBCs, Labour and Labour Welfare, Social Security and Welfare and Nutrition and Relief for Natural Calamities.

The Revenue Expenditures are required to ensure that the current services are operational and is able to pay for the staff and regular expenditures that would be required for these purposes. However one sees a dramatic reduction on assumption of power by this Government and therefore the reach to the poorer sections of the community.

Revenue Expenditure in Social Sector (In Million INR)
Year	Education, Sports, Arts and Culture	Water Supply, Sanitation, Urban Development and Housing	Health and Family Welfare	Welfare of SC, ST, OBC and Minorities	Others	Total
2012-13	627410	224600	195030	3480	116600	1167120
2013-14	684800	268240	223580	6060	157130	1339810
2014-15	306360	18990	111420	15640	141960	594370
2015-16	330380	46540	132020	33770	341730	884440
2016-17	378800	132910	169430	25840	265120	972100
Accounts of the Union Government, No. 44 of 2017 (Financial Audit), CAG

Thus we find the cumulative expenditure in the last two years of the previous government was higher than the three succeeding years of the present government.

Gender Budget

The first Gender Budget Statement appeared in the Union Budget 2005-06 in keeping with the other commonwealth countries which had by then introduced this concept.  Since then ten states in India have also introduced gender budgeting. However, there is no standardised nomenclature for the various schemes has made it difficult to access and assess the data.

Gender budgeting was introduced in 2005-06. Gender Budget of the Union Government discloses expenditure proposed to be incurred within the overall budget on schemes which are designed to benefit women fully or partially. Schemes relating to gender budget were bifurcated in two categories viz. Part-A, schemes in which 100 per cent budget provisions were related to women and Part-B, schemes in which at least 30 per cent of budget provisions were related to women.

The allocations and the utilisation when analysed (Budget Estimates versus Revised Estimates) indicate that there was variation ranging from-16.52 per cent to 2.51 per cent in RE as compared to BE during 2012-13 to 2016-17 under the schemes designed to benefit women. In BE 2016-17, 27 Ministries/Departments/ Union Territory Governments have made allocations for gender budget. During 2012-13 to 2014-15, expenditure at RE stage was less than that of BE. However, RE was higher compared with BE during 2015-16 and 2016-17.

In RE stage in Part A scheme amounting to  INR 211791 Million for the year 2016-17, Rs 16,000 crore (76 per cent) was pertaining to only one scheme, i.e. Pradhan Mantri Awaas Yojana, against which the actual expenditure was Rs 16,071 crore, which is an housing scheme and not wholly focussed on women. It is also pertinent to note that over 80 Schemes in Part A, the allocations were less than INR 10 million lending credit to the criticism that many schemes have been launched for political reasons and to provide a psychological effect rather than actual budgets to address the needs of women.

Poor Utilisation of Special Fund for Women’s Security

Months after the gang-rape of a 23-year-old physiotherapy student which triggered outrage across India and led to tougher laws against rape and sexual harassment in the Budget of 2013-14 the Union Government announced the formation of a new fund for the safety, security and welfare of women with and initial corpus of INR 1000 Million.  Currently the corpus has over INR 31000. The fund which was established with such objectives lies unutilised and reflects the clear lack of seriousness of the State. Only a small proportion has been set apart for compensation of victims which amount to INR 2000 Million. The victims availing compensation under the scheme is nowhere close to the incidents of rape being reported every year. As per government data, close to 39000 case of rape were reported across the country in 2016. Even if we were to go with the conviction rate of around 25%, we are talking about thousands of victims each year.

Gender – Wage Gap

Sector	Average Gender Pay Gap
Manufacturing	29.9%
IT	38.2%
Construction and Technical Consultancy	18.1%
Financial Services, Banking and Insurance	21.5%
Education and Research	14.7%*
Healthcare, Caring Services and Social Work	22.6%
Transport, Logistics, and Communications	7.7%
Legal and Market Consultancy and Business Activities	27.5%
* The only industry where gender pay gap decreased to -3.4% from 2015- 2016, however, the average from 2014-2016 remains at 14.7%.Source: Monster Salary Index (MSI)

The gap in male-female wages is the lowest in regular service activities, where female workers get almost 80 percent of the male wages. However, the gap is higher in casual manufacturing activities where female wages are only approximately 59 percent. It is important to highlight this aspect as sectors which have more employed female workers, such as the casual manufacturing activities, the wage gap is wider and for those activities where the presence of female workers is less, such as regular high skilled economic and financial service sectors, the gap is narrower. What this implies is that with higher levels of education and employability, male-female wage differences tend to decline.

India enacted an Equal Remuneration Act as early as 1976. The legislative measures are, no doubt, intend to ensure protection of women workers in particular but in actual practice the enforcement of the provisions of the Act have worked against the interest of a large numbers of female workers.  The rules framed do not have any penal provisions and only allows for claims. More recently the National Commission on Women[iv] reviewed the functioning of the law and suggested the following amendments which have been yet to be taken up by the Government;

 Section 5 : Under Section 5 women are prohibited or restricted by law to take up certain employment or to take up the employment during particular hours of the day. It is high time that the list of the

category of the work, wherein women are prohibited or restricted by law from taking the work is pruned down, unless the same is hazardous and threatens the life and limp of the women. Today, the women are giving effective competition to men in different sphere of activity and has proven themselves. It the restrictions are not removed or significantly curtailed, then they are likely to be challenged on the ground of discrimination and violation of Article 14 of the Constitution.

Section 7 : Section 7 relates to the officer manning the adjudicatory body. It is the first pint of contact for the aggrieved party. The Act provides for a Labour Officer to hear the complaint relating to contravention of any provisions of the Act of non-payment of equal wages. Since the complaints primarily emanates from Women section of the employees it is of utmost important that the adjudicatory authority should provide assurance and should inspire confidence of aggrieved party. For this reason, the Labour Officer who has been empowered under this Section should be a women with background of Labour practices.

The power of filing complaint should not be confined only to the aggrieved party. It has to be broad based on any information relating to contravention of the Act must be entertained. For this reason, two changes are necessary under Section 7. Firstly, if any person including voluntary organisation reports of any contravention of provisions of the Act, the same should be treated as a complaint and the adjudicatory authority should dispose of the same as per law. Secondly, if the Labour Officer or whosoever, is the adjudicatory authority get some information or knowledge about any practice by the employer which is in contravention of the Act, then it should have power of registration of complaint upon its own knowledge and information. These amendments are also necessary as the employees are likely to be reluctant to lodge any complain against their present employer, least they face the wrath of employer.

Section 10 : Providing a penal clause against the person who does not comply with the order made by the officer under Section 7 (1).

Section 15 : Section 15 deals with special benefits given to the women. It is necessary that the explanation be incorporated in the Section, wherein it should be provided that the special treatment should never be detrimental to the interest of the women.

One of the setbacks on equal remuneration is highlighted in a recent judgement in which Supreme Court remanded the case of Chemical Mazdoor Panchayat vs Indian Oil Corporation for a fresh decision by the High Court of Gujarat. The original decision under appeal, Indian Oil Corporation vs Chief Labour Commissioner – raised a crucial question of the interplay between the constitutional principle of equal pay for equal work, and the statutory guarantee contained in Rule 25(2)(v) of the Contract Labour (Regulation and Abolition) Rules of 1971, framed under the Contract Labour (Regulation and Abolition Act) of 1970[v].

Before the High Court of Gujarat, the issue, briefly, was whether various contract labourers, including cooks, sweepers, and gardeners, who were working in the premises of the Indian Oil Corporation, were entitled to equal wages, on parity with permanent employees.

The Gujarat Mazdoor Panchayat – the representative union of the workmen – made their first reference to the Labour Commissioner on this issue in 1994. After a few rounds of litigation, in 1992, the Labour Commissioner found that the work done by the contract labourers, and the permanent employees, was “same or similar”, and consequently, Rule 25(2)(v) of the CLRA Rules was applicable. This order was challenged, and eventually, in 2013, a division bench of the Gujarat High Court issued notice, observing that the Commissioner was wrong in taking into account only the nature of work:

“… if only apparent work is to be seen without ignoring the quality and capability of the person concerned, based on his qualification, experience, etc., such would frustrate the basic requirement. The essential purpose of Rule 25 is to ensure that there is no exploitation by the principal employer by engaging person through contract labourer, but that does not mean that the other requirements of qualification, experience, quality of work, nature of the work, responsibility and the accountability for the work are to be done away.”

Subsequently, on 8th May 2014, the High Court set aside the order of the Labour Commissioner, holding that the source, mode of recruitment/appointment, nature of work, value judgment, responsibility etc. – and not only similarity in designation or quantum of work – was relevant for equating two sets of employees.

 In this case, the regular employees were recruited through a written examination, and were required to have certain qualifications, which the contract labourers didn’t. Consequently, there was no obligation of equal pay. It was against this judgment that the labour union approached the Supreme Court, and the case – as observed above – has now been remanded on the question of the status of the contract labourers.

Allocations for Weaker Sections

Government of India started to make separate allocations for the development of Scheduled Castes (SCs) and Scheduled Tribes (STs) from the financial year 2011-12 with instructions to the not to re-appropriate the provisions. Although there was no major variation at RE stage in all the schemes put together, it was noticed that in 22 schemes for SCs and 19 schemes for STs, the amount was reduced ranging from 50 to 100 per cent at RE stage in contravention of instructions.

 Further, out of total 256 and 261 schemes for welfare of SCs and STs, there were no budget allocation in 36 and 42 sub-schemes respectively at BE stage during 2016-17.

Draft Social Security Code 2018

The draft Social Security Code[vi] is the newest intervention the Government has initiated. The problem statement as identified by the Government is that;

1)      Biggest lacuna is that the current system leaves almost 90 percent out of the folds of any social security. Unorganized sector workers are largely excluded.

2)      The schemes have very limited outreach.

3)      There is large scale fragmentation: there are multiplicity of laws, policies, schemes and agencies.

4)      The existing wage and number thresholds creates perverse incentives for the employers to shy away from joining the system thus resulting in artificial exclusions and distortions in the labour market

While the objectives of universal coverage is stated as prime the draft code has several lacunae which will eventually mean a more cumbersome processes for the worker while it will ease compliance for the employer. The draft code claims of extensive participation, for instance in its preface it states, “A first draft of Labour Code on Social Security was published and put in the public domain on 16th March 2017, for comments of stakeholders. A number of workshops and discussions were held with various stakeholders, such as Employers’ organisations, Worker’s organisations, State Governments, NGOs, representative of unorganized workers law practitioners etc. We were very encouraged with the feed-back and response from all the stakeholders. We received extensive comments on various provisions of the draft code, which ran into almost 3000 pages. In addition, we also received technical inputs from the International Labour Organisation (ILO). It was an arduous task in going through all the inputs and refining the draft of the Code accordingly.

As conceded by the latest version, this code is yet to undergo a thorough scrutiny of a legal drafting which will be done after completing the tripartite and other consultations and hence may not in the final text reflect the sentiments of the various stakeholders.

The Labour Code on Social Security is an attempt to simplify, rationalize and consolidate the hitherto fragmented laws to make them less complex for easier comprehension implementation and enforcement. Basic core principles that have been incorporated are - (Progressive) Universalization to entire workforce; Integration of fragmented schemes; Decentralization of administration; Rights based approach and Single window compliance.

The Code aims at universalization of Social Security and as such the definition of employee covers all kinds of employment including a part time worker, casual worker fixed term worker, piece rate/commission rated worker, informal worker home-based worker, domestic worker and seasonal worker. The Universalization, however does not mean that all the workers proposed for coverage under the code would be covered from Day 1, as the code provides the flexibility of progressive extension of coverage. Thus the meaning of universal coverage has been undermined in its definition itself by creating exclusions from the beginning. The code also enables Union Government to centralise the finances by enabling any current surplus in a Fund, is to be transferred by the State Boards to the Central Board for professional management of investment of the Scheme Funds. This is to ensure that economies of scale may be utilized to the maximum possible extent and good return could be fetched on the investment. The Central Board has been provided the responsibility to manage the investment of the Funds mentioned above on behalf of the States in accordance with the investment pattern notified by the Central Government. Thus it seems a mechanism for finding investible surpluses from what is primarily meant to meet the crying needs of the workers. The code proposes for confiscation of unclaimed amounts and credit of the EFPO to National Stabilization Fund, if no claimant could be found even after inviting claims and objections in respect of such amounts thus enabling itself to use money in the manner it decides.

It further envisages that like the levy of Building and Construction Cess, on all construction works above a certain threshold the provision of Cess has been kept only as an alternate mechanism to collect contributions (of employers / employees). The Government does not intend to levy cess on any sector, as the normal Employer’s and Employee Contribution levied is expected to be sufficient to meet the Social Security requirement. However, it is understood that certain sectors are very prone to informality, due to which number of employees are not declared by the employers, leading to their exclusions from social security. In order to handle such sectors, the powers to levy cess has been kept, so that in sectors where employers are escaping their obligations, the concerned workers can be protected by levy of cess, and providing their contribution from this collection of cess. Thus the code concedes that the same issues which have been plaguing the system will perhaps continue and that the consolidation of all the funds so far collected to be used for specific category of workers will be bundled into a large fund of the State.

The obligation to register a worker falls on the employer, except for own-account worker, who needs to register himself. The Draft code prescribes penalties for employing an unregistered worker beyond a specified period. However, if the employer fails to register the worker within the specified time period, the worker has been provided with the facility of registering himself under the provisions of the code. The code thus puts the onus on the worker and requires all (active) workers to be registered under the Universal Registration system which will be based on the now controversial Universal Identification Scheme (Aadhar) which is contested vehemently in the Supreme Court on issues of privacy. The protocols will be decided by the Central Board – for universal applicability and portability of registration but the actual registration in the field is expected to be performed by Local Bodies (i.e. Gram Panchayats / Municipal bodies). The State Boards which will have oversight of the process is enabled by the code to have PPP arrangements to provide facilitation centres for registration services thus privatising the role of the State.

The funding of social security under the Code is a combination of Employer / employee funded and Taxpayer funded thus providing leeway to the employers and placing the burden on common people. The code expects to scientifically classify and identify such workers who belong to poorest socio-economic category for whom Code envisages the Social Security be taxpayer funded. Workers, at the time of registration are expected to provide data about their socio-economic parameters and based on which, the categorization will be automatically determined.

A three tier Social Security Administration Structure proposed with tripartite representation in all these bodies drawing representatives of workers, employers and Government.

(a) National Social Security Council headed by the Prime Minister to be the Apex Social Security Organization in the Country for overall regulation and monitoring;

(b) Central Board of Social Security at Union level and

(c) State Board(s) of Social Security at State/UT level for implementation of the Social Security framework.

In addition functions have been prescribed for local bodies (panchayats / urban local bodies) of registrations and facilitation.

The new social security structure created through this code will replace the entire present setup which means that EPFO and ESIC will cease to exist in the present forms. However, they would cease in only those states where the new set up has been notified and would continue as such in the remaining areas.

Thus it will cause more confusions for workers in terms of even the existing workers who are covered under those schemes.

Nine types of social security described in the Convention in the ILO Convention 102 is aimed by this code. Social Security Fund in each State is to provide for schemes such as Pension, Sickness Benefit, Maternity Benefit, Disablement Benefit, Invalidity Benefit, Dependent’s benefit, Medical Benefit, Group Insurance Benefit, Provident Fund, Unemployment Benefit and International worker’s pension benefit. However, it may not be taken that code proposes to provide each of these to every worker from the day 1. We will have to work in a phased manner given our budgetary constraints. There is no prescribed time-table for universal coverage.

Even though the code claims that there is no exception, but Schedule – I has been provided to specify class of workers / establishments that are excluded from certain provisions of the Code. This exclusion will be applicable only to such workers who can avail normal / regular security available to government servants (e.g. workers on whom CCS Pension Rules apply). Further, This Schedule – I can also be used for gradual phase-wise implementation of the Code. For Employers who can provide PF and Gratuity system managed by their own, there are provisions for permission for Alternate Coverage Mechanism.

The code as it exists also has the threat of large scale privatisation of the Social Security Systems through the provision for licensing of Intermediate Agencies in the fields of Fund Management, Point of Presence, Service delivery, Benefit disbursement, Record keeping and Facilitation for enabling PPP system in administering social security. These agencies are to be agents of the Board to deliver certain services without any accountability as the ultimate liability and responsibility of providing the services and benefits remains that of the Boards.

The existing situation is dismal and the emerging scenario on Social Security in India portends greater threat. Unless concerted efforts by the State and the Society are not forthcoming and implementation issues are not ironed out, the situation of workers in more vulnerable sectors such as Mining, Forestry and Household work would be far more difficult to address and redress.

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[i] http://mofapp.nic.in:8080/economicsurvey/

[ii] https://feminisminindia.com/2017/11/08/global-gender-gap-report-2017/

[iii] Census of India, 2011

[iv] http://ncw.nic.in/frmReportLaws23.aspx#2

[v] https://indconlawphil.wordpress.com/2017/04/09/equal-pay-for-equal-work-statute-and-constitution/

[vi] https://labour.gov.in/sites/default/files/Letter_of_Social_Security_Code_2018.pdf

African Development Bank – Some thoughts on Intent and Politics of Meeting in Gandhinagar

African Development Bank – Some thoughts on Intent and Politics of Meeting in Gandhinagar

1.     What is the logic behind holding the AfDB meet in Gandhinagar's Mahatma Mandir instead of holding it in Delhi?

The AfDB has been doing this in the past, having non-members host the Annual Meeting. Their site says

“ The Ahmedabad gathering is the fourth time the Annual Meetings are hosted by a non-regional member country, after Valencia, Spain, in 2000; Shanghai, China, in 2007; and Lisbon, Portugal, in 2011. In 2018, the meetings will take place in Busan, Korea.”

2.     Is it because a need was felt to keep the participants insulated, away from civil society, diplomats, intellectuals, who would influence them on different issues?

I think there is a larger tug of war that is going on which includes “insulation from these constituencies”, but as the EU is trying to take charge of AREI perhaps they are creating a counter-block. (See attached letter to EU from NGOs).

3.     There is a view that China has made major inroads into Africa. By holding the meet in Gandhinagar, Modi's men would be able to interact with Gujaratis who are in Africa and are on African boards. Do you agree with this view?

It is no secret that India wants as much economic space it can garner through all the mechanisms possible and do all the dirty things that corporates and hegemonies do. That’s why you find them investing in mining, telecom and oil and often in areas of conflict (Nigeria, South Sudan, Angola). Perhaps Indian State is concerned that China has so much surplus to invest that it has to enable AfDB and also find such filial nexus! The stories of Guptas in South Africa to big investors like Vedanta are clear articulation of extending our economic hegemony. Fundamentally, the Indian Corporates are in doldrums and have also led our banks to be so and the Government is desperate to save the banks and therefore these indulgent corporates and taking a “hair cut” of possibly over Rs 860,000 crores (130 Billion USD) the gross NPAs as of now. Recent analysis suggests that atleast Rs 100,000 crores need to be infused into the banks for them to survive.

The same article states in their official website,  “Key discussion will focus on how the Bank’s High 5s, especially agriculture and energy, can be leveraged to promote Africa’s transformation. These include a series of Presidential forums on critical agro-industry issues, such as Leadership for Agricultural Transformation; Creative Energy Solutions to Boost African Agriculture, Innovative Financing for Agriculture, Financing African Infrastructure, Women in Agriculture, and Changing Perceptions on Agriculture: the Role of the Entertainment Industry (“Nollywood Meets Bollywood); among other varied topics and issues.

“Our goal is clear: achieve food self-sufficiency for Africa in ten years, eliminate malnutrition and hunger and move Africa to the top of agricultural value chains,” says AfDB President Akinwumi Adesina. The Bank is investing US $24 billion in agriculture and agribusiness on the continent in the next 10 years.”

By hosting this event we are also eyeing for a pie!

4.     Gujarat-based tycoons are interested in making inroads into Africa. Do you think by holding the meet in Gandhinagar, things would become easier for them?

Gujaratis in particular but Indian Business in general. Ease of doing business is a mantra of this government both within the country and outside for the benefit of the corporates. The crisis in the economy has left very little options for the Government. After all, not every citizen does business. If it is not the business of the government to business it also not pandering to one of the most economically inefficient and corrupt system. The role of government must and should be only the welfare of the citizens and ensure that atleast the basic tenets of the constitution are practiced.

5.     By holding the meet in Gandhinagar, no questions would be asked on racialist attacks in Delhi. Do you agree?

6.      

These institutions are insular and multilateral, therefore they will neither nor it is expected of them to take a stance on the real life of the people. Even when we talk about the poor quality or often no rehabilitation and inadequate and de-human resettlements, most MDBs have a long-winding bureaucratic dispensation of grievance redressal that it will be concluded only when the project is completed and they have washed their hands.

7.     What could be AfDB's interest in holding the meet in Gujarat?

The fact that EU is trying to take charge of AREI perhaps they are creating a counter-block may have influenced the Bank. Many African countries are also vary of China.

Many thanks to Rajiv Shah for provoking to think on specific questions…

From Safe Havens to Tax Havens

The Mining Game Plan suiting State, Corporates and the Maoists must be abandoned

This is the reality of mineral richness and the politics of mining and money making in Chhattisgarh has become a zone of war. The State is more in focus in the recent days with the brutality unleashed and confrontations with extremists and loss of innocent lives from both sides and mindless pursuit of mining in the State. This is where the Prime Minister goes and announces a Mega Steel Plant for the benefit of the tribals!

Mining is perhaps the most destructive economic activity and Chhattisgarh being one of the mineral rich states has to unwittingly be a party to this profitable sector. In the madness to proclaim this model of development a success, such exploitative activity is politically and legally justified.

If we trace the history of any of the operational mine, the initial period was virtually a battle to push the local community aside to enter into the mining activity. Once huge profits are made they enable huge rents the entire system gets vitiated. Isolated such displacements and elimination often go literally un-noticed.  When an entire mineral belt is rapidly mined rapaciously, simmering discontent leads to anger and violence and gets to be the veritable space.

 So in the context where our mining industry and the mining sector is more tending towards the kind of methods that were in practice in the worst of its periods rather than as a limited economic activity, it has become a norm to violate all the laws and return with huge profits and in the event of any down turn renege all your commitments. Maoism and violence is handy once such circumstances are created.

Two decades ago what was a safe haven amidst the enclaves created by the reservoirs in the heat of the greyhounds and other state created entities in adjoining regions, has become a theatre of war. An estimate of around 7000 armed Maoists are made but even this data can never be credible. Let’s assume its correct. In contrast, just after 2013, over 25000 armed paramilitary personnel have been deployed in Bastar alone as per official statements. This is besides all the SPOs to other normal police forces and led by some of the ferocious and notorious officials, epitomised by the current IG.

Isolated areas with low population densities and rich mineral resources are ideal for both miners and Maoists. The huge exploitation provides a reason for sympathy, the isolation provides for certain opaqueness in operation, the need for explosives to mine -almost a kilogram for every tonne of ore produced provides ammunition. And over time this has settled into a tenuous economic and force equilibrium where the Maoists and the State including paramilitary forces pervade the space.

Eventually the local people have to be cleared as the last “overburden” for this profitable but intense and tenuous equilibrium to co-exist.

If it were not so, the slurry-pipelines to rail-lines exclusively meant for the ores seem to be more secure than a battalion of paramilitary forces.

See these two incidents, one on first of April 2015 and the other of same April Fool’s Day in 2016. It clearly points out that both actors are similar in their practice and therefore they are there to compete and not to resolve.

April 1 2015

http://www.satp.org/satporgtp/countries/india/maoist/timelines/2015/Chhattisgarh.html

Five employees of Jayaswal's Neco Company and few locals including drivers and machine operators were abducted and later released by about 10 armed CPI-Maoist cadres from Chargaon, Metabodli iron ore mines in Kanker District of Chhattisgarh. One of them was released soon after abduction while others were released in evening. Maoists had targeted to abduct important and senior officers but didn't succeed therefore released all of them. Maoists apparently opposed construction of roads and mining in the region and the supervisors and managers were out on inspection when the incident took place.

The villagers of Chintagufa from Sukma District of Chhattisgarh have claimed that the person killed in an encounter with the CRPF's CoBRA team on March 31 was "an innocent villager" and not a "Maoist".

1 April, 2016

https://www.amnesty.org.in/show/news/india-chhattisgarh-government-must-keep-its-promises-to-forcibly-evicted-fa

On 1 April, officials from the state revenue department demolished three houses belonging to two families – including a Gond Adivasi family - in Bankheta village in the district of Raigarh for the expansion of the Gare Pelma IV/4 open cast coal mine. The mine is operated by Hindalco Industries, a part of the Aditya Birla group of companies. Human rights defenders protesting the evictions were detained briefly for allegedly obstructing public servants. The government had acquired land for the mine in 2010.

Following protests over the evictions by other human rights defenders and members of affected communities, on 2 April, the Additional Collector and Additional Superintendent of Police of Raigarh stated in writing that all evicted families would receive compensation and rehabilitation within 15 days, and that the cases against the human rights defenders would be dropped.

In my visits to the mining belts of Chhattisgarh it is very often that you see seasonal operators. Whenever they get an order they know where to quickly quarry and sell it. The state has no credible information. Take, an incident like this as a report said “The Maoists set ablaze at least 17 vehicles engaged in mining work in Kanker District of Chhattisgarh. Armed Maoists attacked the Barbaspur iron ore mining site under the limits of Korar Police Station and after threatening the labourers, torched 17 trucks deployed for mining work. They then fled into the forest.”  The attribution may be totally incorrect as may be one the seasonal operators for all we know. Thus while the Maoists themselves have a tendency to exaggerate their strength, the state plays a helping hand in attributing illegal mining mafia to their strength. While the real operators of minor minerals who raid river-sand are small-time mining mafias but just as the nexus with politics is so tight that with major mining areas extremism thrives.

In the height of the Chinese and Korean booms a tonne of iron ore raised and sent at a cost of Rs 300/tonne was selling at around Rs 6000 a tonne. NMDC’s operations rake in such huge profits. Its audit report states in the financial year 2014-15, EPS – Earning per Share - that for a Re 1 share the returns were Rs 16.20! If our perceptions about the efficiency of the Public Sector that it is inefficient in general are correct, the private players are making multi-fold profits. The reality is, if State institutions are themselves so exploitative and insensitive, how they could ensure that the rest of the industry follows the norms. This is a legitimate Government owned company. Even today the price is over Rs 3000 a ton.

It is not only the iron ore mining, the entire mining and industrial sector is using public money to usurp the resources and more and more people are being marginalised. This becomes a potent breeding ground for resistance. People have nothing more to lose. They have lost the livelihoods and lifestyles. The miners have made millions. You pull out the ore and the water and pump it hundreds of kilometre and ship it across the globe and the entire system becomes opaque. Thus the safe havens of Maoists have become the source for resources for the corporate to enrich the Tax Havens.

A person from a leading political party told me that their policy was clear – South Chhattisgarh has huge mineral and Forest Wealth and needs Military and Central Government to get out resources. The low population density and therefore fewer number of assembly segments means it is not important politically. If others are equally unpopular they could win seats. The rice bowl north of it, central Chhattisgarh has the maximum population density and needs nurturing and almost pandering to win maximum number of seats. The northern portion can still be left to the industrialists without much loss of political positions. He said after all you are politics to capture the assembly!

Ours is a country where we get legal information through the questions in the Parliament on the “illegal” mines. We have a whopping 100,000 of them as compared to 10,000 which probably has some clearances. Only a third report to the regulator and a tenth of them are perhaps ever inspected. There is absolutely no regulatory over sight. That most of the FDI is “round-tripping” The State is out to ease their business further!  The recent arbitration claim of USD 44.7 million by ANRAK from the Andhra Pradesh Government for not providing bauxite for its refinery which was to come from Jerilla may push the government into action and in the name of the Maoists brow-beat the local adivasis to allow for mining in this ecologically sensitive areas.

Potential violent exploitative mining scenario is emerging in South Chhattisgarh and perhaps may extend into the Jerrilla mines, in the five decade old mining zone rich in high quality iron ore and bauxite. This is reminiscent of the years of brutal mining for diamonds in Sierra Lone where local people were caught between mafia groups, security forces, industry armed security groups and are yet to recover ever since. Unless dramatic changes to reduce the rate of mining and ownership of resources and rights are established for the communities the situation could head to such an irretrievable situation very rapidly. The mining game plan of the State has to be abandoned and must be able to rebuild credibility with the community. The State and the Corporate have lost credibility and now even the credit in the emerging economic scenario.

This is not an alarmist proposition but a call for reasoning and response.

  

No.	Major Mineral	2014-15 Value  Rs Cr	2014-15 Royalty Rs Cr	Royalty as % of Value	Value Rs/ton
1	Coal	10376.82	1808.20	17.43	770
2	Iron Ore	9830.49	1336.99	13.60	3052
3	Bauxite	97.00	25.49	26.27	664
4	Dolomite	97.29	22.27	24.39	345
5	Limestone	439.58	170.80	38.86	189
Directorate of Mining and Geology; Chhattisgarh

Environmental Supplemental Plan: A last nail in the Coffin

If there has been one broad area which has been the casualty in the recent times is the Environment. Being obsessed with “ease of doing business”, the various safeguards that have been built over the past have been falsely targeted as a villain and attacked. The Environmental Supplemental Plan is perhaps the final nail on the coffin.

EIA Resource and Response Centre[1] filed a series of Right to Information (RTI) requests to the Ministry of Environment, Forests and Climate Change (MoEF & CC) with respect to the number of projects approved and challenged. Only the Committee for CRZ and Miscellaneous Projects responded which is indicative of the trend. All big construction projects, airports and malls are appraised by this committee. During January 2013 to March 2015, a total of 118 projects were granted Environmental and CRZ Clearance. Of the 118 projects, only 4 projects were challenged before the National Green Tribunal. Of the 4 projects challenged, the Environmental Clearance of only one project i.e KGS Aranmula Airport in Kerala was revoked by the National Green Tribunal.

Thus, out of a total of 118 projects approved, only one Environmental Clearance was revoked. While some of these trends were visible in the dying stages of the previous regime, the new Government has accelerated the process of completely undermining the environment. Immediately after assuming power, the government began its exercise to curtail several safeguards, dilute provisions of existing laws and bring creeping changes through office memorandums and instructions. Several dilutions have been affected in the name of decentralising power.  In short in the first two years of “less government, more governance” the Government has been living with rhetoric on saving the environment while acting diametrically opposite to the cause. Transparency is clearly restricted to the corporate and governments whether the issue of auctioning natural resources, formation of rules and regulations and setting standards.

The time and information and the mode in which it is made available to the public makes it extremely opaque and this notification only adds to the maze.  While the Environmental Supplemental Plan (ESP) for the first time defines “Environmental Justice” as “the fair treatment and meaningful involvement of all people, caste, colour, creed or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies”, the ESP itself is a symbol of violation of this principle with very little information provided to people who have web access. For this very reason alone the process needs to halted and a comprehensive mechanism for meaningful involvement of those who are and will be particularly affected by the violation need to be consulted.

Tampering with Environmental Legislations

The first serious attempt to bring about a wholesale dilution in a range of environmental legislation was the formation of a High Level Committee. The committee was constituted on 29^th of August 2014 by the Ministry of Environment, Forests and Climate Change (MoEF&CC) to review various environmental laws submitted its report to the Central Government on 20-11-2014. The Committee was entrusted to review the Environment (Protection) Act, 1986, the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972, the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981. The Indian Forest Act, 1927 was added subsequently to this list. 

The recommendations include a ‘single window’ approval process, a fast track treatment for linear and power and coal projects, ‘a special procedure’ for ‘strategic’ and ‘national projects’. There is also an introduction of what can be termed as the ‘private trust’ doctrine as opposed to the ‘public trust’ doctrine.

Under this ‘private trust’, there is implicit trust in whatever information is submitted by the private business entities under the concept of ‘utmost good faith’ and at the same time, there is a sense of suspicion on the community by requiring the people to prove their ‘bona fide’ and by limiting public participation to only those the HLC describes as ‘genuine local people’. 

In sum, in less than three months the HLC has not only suggested radical changes that would undermine all of the laws it was tasked to review, is has also recommended changes to render less effective a number of laws it was not charged to review and has also recommended a brand new piece of legislation to be strangely called as the Environmental Laws (Management) Act or ELMA, which the HLC suggests, they suggest, would prevail over all contrary court judgments issued in past decades or the provisions of any environment law promulgated till date.  This prompted the concerned environmentalists to state “Calling the HLC report ‘radical’ is an understatement – it is revolutionary, but a revolution against the environment, the voice of the people, and democratic processes[2].”

The more recent is the attempt to bring in the Environmental Law (Amendment) Bill, 2015. The Objectives state, the Bill aims to provide for an “effective deterrent penal provisions and introducing the concept of monetary penalty for violation and contraventions”. The effective deterrent is as regressive as the position of the Government in the case of nuclear liability. Just as it restricts the liability of the project entity to Rs 500 cr in case of a nuclear disaster, this bill envisages a maximum fine of Rs 20 cr for a polluting industry.  Devoid of any scientific basis, the Bill proposes the following categories of violations and penalties.

Nature of Offence	Definition	Penalty Proposed
Substantial Damage	Within 5 Kms of the Outer Boundary of the Project	Minimum Rs 5 Crores and Maximum Rs 10 Crores
	Beyond  5 Kms of the Outer Boundary of the Project within 10 Kms	Minimum Rs 10 Crores and Maximum Rs 15 Crores
	Beyond 10 Km	Minimum Rs15 Crores and maximum of Rs 20 Crores
Non Substantial Damage		Maximum Rs 1 Lakh and Maximum Rs 5 Crores
Minor Violation		Minimum Rs 1000 and maximum Rs 10,000

It is common sense that impacts and cost of remediation would vary with the nature of the project and pollutions effects cannot be capped arbitrarily to some kilometre-basis. Therefore if a mine-dump or ash-dam breach regular in mining areas and coal-fired thermal power plants, the impact has to be beyond 10 kilometres for evoking the maximum fine. Environment Protection Act came in the backdrop of the disastrous Bhopal Accident for which even after spending over thousands of crores is still unresolved. A similar accident post this law would mean that the company pays Rs 20 cr and remains in business. This bill envisages creation of adjudicating authorities thereby restraining the role of the National Green Tribunal.

Dilution of the provisions

It is a cardinal principle of law that there is no power to confer legislative power on the executive. The Supreme Court has held that essential legislative function cannot be delegated by the Legislature, that is, there can be no abdication of legislative function or authority by complete effacement, or even partially in respect of a particular topic or matter entrusted by the Constitution to the Legislature;  Power to make subsidiary or ancillary legislation may however be entrusted by the Legislature to another body of its choice, provided there is enunciation of policy, principles, or standards either expressly or by implication for the guidance of the delegate in that behalf. Entrustment of power without guidance amounts to excessive delegation of legislative authority.[3]

The proposed legislation aims at excessive delegation and this will certainly be cause of rent-seeking. Many of existing laws have been diluted through executive action. For instance projects which have a capacity expansion of 25 percent do not have to go through a process of fresh environmental assessment process and public hearing. This opens up a way for increasing capacities multiple times and avoiding the due diligence. Environmental clearances have been made “transferrable” even if it is known that the new possessor is a habitual violator and may need greater safeguards. Linear projects no longer require the consent of the gram sabhas as if the linear projects do not have impacts on the resources or land of the villages. Similar has been the case with the effort to do away with the provisions of Social Impact Assessment and consent in the Right to Fair Compensation and Transparency in Land Acquisition Resettlement and Rehabilitation Act 2013 in the omnibus category of “infrastructure” projects.

Dilution of provisions is also being encouraged through the States in the name of decentralisation and cooperative federalism. Several State Governments want to keep the implementation of the Forest Rights act in abeyance in areas where they want to grant mining leases, promote hydropower projects or industries and this seems to be done with active knowledge and collusion of the respective central authorities. In the case of National Highways the Government has done away with the environmental clearance for projects below 100 km thus paving way for breaking them into projects below this length as is been done with the NH-21 from Chandigarh to Manali. It has been broken into four segments and the Govind Sagar Sanctuary denotified to enable the construction of a four-lane highway and ironically dump muck into the Bhakra Reservoir. In March 2016, the Government has done away with Environmental clearances for a new “white” category of industries which includes hydropower projects under 25 megawatt and several industries whose products may be harmless or less harmful but the process could involve pollution in the presumption that these have virtually no impacts.

The most recent in this series of dilutions through delegation is the proposal to establish a District Environmental Impact Assessment Committee and Authority to grant clearance to mining projects of upto 5 hectares of lease area. The Irrigation Engineer is nominated as the head of this authority. Everyone knows that he has a conflict of interest if it involves materials for irrigation projects. Further when even the National and State level formations are so bereft of knowledge and courage to undertake unbiased and technical evaluations, this authority will only be a “rubber-stamp” and a new opportunity for rent-seeking.

Projects with Disastrous Consequences

Several disastrous projects which have been in abeyance have begun to come back into reckoning including the interlinking of rivers. The Ken-Betwa link is a classic example of this type of projects. The project will significantly destroy the Panna Tiger reserve. Let us remember that this was a reserve where all the tigers were eliminated and over the years crores have been spent to bring back tigers and today claims to have over 20 tigers. While people are being displaced in the name of conservation, apart from this, the corridor between Panna and Navardehi Wildlife sanctuary is under serious threat as the Government is doing all it can to enable a global mining company with an extremely bad reputation to open up a diamond mine sacrificing nearly 1000 ha of forests.

The Polavaram project which will involve displacement of over 300 villages is another such example where despite alternatives being suggested, the project which is being surreptitiously pushed ahead.

The case of Vizhinjam port is actually astonishing as it involves the company which is seen as a “blue-eyed boy” of this government. Originally touted as a naval infrastructure and most clearances obtained on that basis, the project is turning out to be a “port-estate”. The naval component has been abandoned and the company being allowed to build luxury apartments and hotels with access to the sea-face. Thus it avoids the Coastal Zone and other regulations if the project as it was conceived by the corporate was revealed in the beginning.

While the government has been lauding itself about the high targets it has set for renewable and claims to be very conscious of the climate, it is doubling the coal output and promoting production through polluting sources almost with a vengeance. The result is that we have coal inventories mounting and thermal power plants forced to either reduce production or sell at prices below par.

In short, if the trend we are watching in the first two years of the new regime continue, whether the dream of “Make in India” succeeds or not, it is certain that no meaningful environmental protection will remain in the next decade. This calls for seriously bringing to bear the importance of environment in our long term sustainability at the core of our governance agenda.

Today 'Polluter Pay Principle' and the 'Precautionary Principle' form the edifice of environmental law. The Supreme Court has held that Polluter Pay Principle can't be a licence to pay and pollute. The draft notification allows illegal activity to take place without environmental clearance, and ESP amounts to 'pay and pollute.'

The fundamental problem in the draft notification is that it condones a criminal act on the part of the project proponent and replaces it with a procedure which allows the violation to be legalised with a semblance of pecuniary punishment. In the case of violation of a statute, the law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim “Expressio unius est exclusion alteris”, meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible. (See Taylor v. Taylor, (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma; 25 and Indian Bank’s Association v. Devkala Consultancy Service, AIR 2004 SC 2615).

There is also a growing criticism of plagiarisation in the draft notification. Such mindless application of some law from another country no matter however “developed” it may be considered will lead to greater deterioration. We need an indigenous method of monitoring and evolving methods to control the process.

Thus it is essential that extreme “good faith” must be placed on the community to monitor as it is their living environment. The need of the hour is definitely “Environmental Justice” and this is not much contested on its definition. It is the opaque manner in which the environmental monitoring and especially through indicators which cannot be easily comprehended by the community. We need communicable indicators to be able to ensure environmental justice. This needs to be followed up with actual analysis before what the new draft ESP notification – the classical “putting the cart before the horse”- does. It sets up a process where violation could turn out to the norm and this risk is avoidable.

We demand that the present notification should be withdrawn and a meaningful mechanism must first be created to seek inputs from diverse groups of people affected by the decisions of the Ministry on upkeep of the environment. This will go against the very spirit of this notification itself, let alone the environment.

[1] www.ercindia.org

[2] The High Level Committee Report on Environmental Law: A Recipe for Climate Disaster and Silencing People’s Voice 

Ritwick Dutta, Manoj Misra, Himanshu Thakkar

[3]1968 AIR 1232