At the turn of the last century, sociologist Max Weber crafted a striking definition of the modern State – as having legitimate monopoly over physical force. Implicit within such a contract between citizens and State is the State’s responsibility to ensure peace.
In May 2021, for the first time since India’s independence, the citizens of the Union Territory of Lakshadweep launched a series of (ongoing) protests against the State challenging the use of its monopoly on physical force. Their contention – the State was using its powers in relation to union territories to introduce a host of unreasonable legislations, including the draft Lakshadweep Development Authority Regulation, 2021 (LDAR), which would impact their rights, livelihoods and fragile ecosystems. Their protests are a painful indication that the State has violated its contract with the citizens, breaking years of peaceful existence on the islands.
We broke down the legal terms of the islanders’ objections in a detailed analysis of the LDAR, which we summarise here.
Undemocratic manner of promulgation
The LDAR was introduced in complete absence of public consultation with the citizens of Lakshadweep. The 100+ page document was published on April 28, 2021, with the deadline of May 19, 2021 to receive comments. This timeline coincided with a sharp spike in COVID-19 cases in Lakshadweep after nearly a year of reporting zero cases. Clearly, this was not a time when citizens had any capacity to examine any legislations with serious implications for their lives, a point raised by the islanders repeatedly.
However, neither the poor timing nor the severe deadline for comments have been reviewed. While the government claims prerogative on the process for public consultation, compare the LDAR’s consultation process with that of the draft Environmental Impact Assessment (EIA) notification 2020. Although introduced during the pandemic, with the intervention of citizens and the Delhi and Karnataka High Courts, the EIA notification was given 170 days to solicit public comment. The LDAR, on the other hand, gave people 21 days.
Moreover, the draft LDAR is published only in English and has not been translated into the one local language, Malayalam. On the other hand, the High Courts had required the EIA notification to be translated into 22 languages, emphasising on the need for wide publicity. The entire manner of introducing the LDAR was itself a major bone of contention by the citizens of Lakshadweep, who justifiably felt that it violated their natural justice rights.
The undemocratic nature of this introduction is also made clear by resolutions passed by the panchayats of several islands asking to revoke all orders, notifications and draft regulations of the administration. Their statement that it disrupts the peace and harmony of the people, flies in the face of Article 240, whereby the President’s powers to make Regulations for the Union Territories is for “peace, progress and good government."
Excessive delegation and context inappropriate provisions
The LDAR gives overarching powers to a Development Authority (DA) to acquire, hold and dispose of property, make and modify land use. However, the LDAR provides vague and inadequate guidelines to the DA on the purposes for notifying ‘development areas’, grounds for acquisition or modification of land and other such powers. For example, Section 18(2) and Section 2(3) have no guidelines on what qualifies as a ‘bad layout’ or ‘obsolete development’, but give the Chief Town Planner/DA the power to not only notify areas as ‘areas of obsolete development’, but to relocate people from these areas.
Similarly, as per Section 130, if permission is granted under the LDAR, but permissions under other laws are not granted, the development is not considered invalid. This, for instance, can mean that CRZ clearance will not be needed. The LDAR is replete with provisions like these, a clear case of excessive delegation of powers as established by the Supreme Court in the case of In Re Delhi Laws Act.
The provisions of the LDAR are also totally unsuitable to the ecology, economic and social life of Lakshadweep. A quick glance at the Goa, Daman and Diu Town and Country Planning Act, 1974 (extended to Dadra and Nagar Haveli in 1984) shows a striking resemblance to the LDAR, with almost every provision being exactly the same. However, Lakshadweep has an entirely different ecological and social context than coastal towns in India. On these islands, where land scarcity and land erosion are both very real problems, the LDAR seeks to acquire land for tourism and development that will further threaten local livelihoods and ecosystems. Despite 94% of the population being categorised as Scheduled Tribe, the LDAR makes only one reference in the entire draft [Section 48 (1) (j)] to socially and economically backward classes.
The citizens of Lakshadweep have a high dependence on the stability of the fragile islands, integrity of its groundwater systems, and the health of the lagoon systems. Land and sea tenurial security are central to the lives and natural-resource based livelihoods of the islanders. The LDAR, if brought into force, will be a violation of the citizens’ Right to Life.
Appropriation of panchayat’s powers and disempowering communities
The LDAR blithely undermines the authority of the panchayats in determining the development patterns and functions. Chapter 5 [Section 44(3)] of the Lakshadweep Panchayat Regulation, 1994 vests powers and functions with the panchayats of Lakshadweep to carry out developmental work to promote the health, safety, comfort or convenience, social, economic or cultural well-being and education of the residents of the islands. The new DA under the proposed LDAR will override these functions altogether.
Further, the LDAR constitutes the Lakshadweep DA as a generalised town planning authority with only one representative from the local authority for a planning area. With over 90% of islanders belonging to the ST category, their limited representation and powers (decision by vote) in the draft LDAR ensures that they will never be able to veto decisions of the DA even if the local community opposes them. The DA is meant to create maps, plans, and registers for land use and development but with almost no space for public participation.
The Department of Panchayats (DoP) also issued a notification on May 5, 2021, arbitrarily transferring powers and functions in relation to agriculture, animal husbandry, fisheries, education and health, from the panchayat to the respective directorates. Read together, the LDAR’s powers to bring about land use change and the dialling down of panchayat powers indicate a systematic attempt to reverse the constitutional mandate of decentralisation and reduce the powers of the democratic representation of islanders in crafting their development pathways.
Ignoring Supreme Court orders on sustainable development of Lakshadweep
In 2012, in the case of Union Territory of Lakshadweep & Ors v. Seashells Beach Resort & Ors, the Supreme Court had directed a committee headed by its former judge, Justice RV Raveendran to look into the environmental and developmental challenges in Lakshadweep. The Committee made extensive recommendations for the development of Lakshadweep in a sustainable manner. Its recommendations, placed before the Court on November 18, 2014, included consultation with elected self-government bodies for development plans, protection of corals from anthropogenic activities and development based on Integrated Island Management Plans (IIMPs). As per the notification by the Lakshadweep administration, the IIMPs, modified based on the Committee’s recommendations, were approved by the Union Ministry of Environment, Forests and Climate Change (MoEFCC) and the Lakshadweep administration was directed to comply with the plans.
The LDAR is written as if these critical events never transpired. It makes no mention of the Justice Raveendran Committee Report or the IIMPs. The notification on IIMPs requires the administration to take an integrated approach “involving all stakeholders”. However, Section 7(3)(iv), which provides for composition of the DA, does not require representation of any persons or organisations who can advise on sustainable development, nor adequate community representation.
Where the Justice Raveendran Committee suggested a slow and cautious approach, the LDAR is on a speedy mission for rampant urbanisation and development. For example, Section 17 of the LDAR proposes to reserve land for the extension and development of highways, trains and airports, none of which are possible in Lakshadweep which has a mean land area of ~3.2 sq.km per island. These provisions appear to be directed at large-scale reclamation and anthropogenic activities that have been proven to be disastrous for vulnerable areas like Lakshadweep.
An unsuitable development vision
It is interesting to dwell on the definition of development articulated in the LDAR. Section 2(9) says:
“development”...means the carrying out of building, engineering, mining, quarrying or other operations in, on, over or under, land, the cutting of a hill or any portion thereof or the making of any material change in any building or land, or in the use of any building or land, and includes sub-division of any land; …”
The LDAR thus takes a view of development that relies on modification of natural features, building, construction and concretisation. This definition does not reflect a nature-based solution or an integrated approach. Societies living atop chains of coral atolls, on the cusp of climate change induced sea level rise, need development that takes a ‘ridge-to-reef’ approach, one in which activities upstream or inland, do not impact coastal and reef biodiversity. The Dasgupta Review (2021), an independent and global review on the economics of biodiversity suggests that “sustainable economic growth and development requires us to take a different path, where our engagements with Nature are not only sustainable, but also enhance our collective wealth and well-being and that of our descendants.”
Internationally, the principles of sustainability in development and the need for security of tenure are well recognised, particularly under instruments such as Sustainable Development Goals 13 (Climate Action), 14 (Life below water) and 15 (Life on land), the Convention on Biological Diversity, Voluntary Guidelines on the Responsible Governance of Tenure, and others. The link between tenurial security and sustainable development has also been well established. The constitutional right to property, the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act 2013, the Biodiversity Act 2006, the Environment (Protection) Act, 1982 and other constitutional provisions and legislations in India set forth India’s commitment to sustainable development and tenurial security.
Keeping this in mind, the Development Report prepared for Lakshadweep in 2007 by the Planning Commission highlighted that “Ecological protection should constitute the top priority for the island people since it is the basic condition for their survival and growth.”
Despite a historical matrix of progressive land governance and with the looming threat of climate change, by hastily introducing the LDAR at the time of a global pandemic, one can only conclude that the State plans to wield this law to usher in an authoritarian and retrograde set of changes. Lakshadweep should not be seen just as land - it is land, sea, coast, coral reef, drainage as well as local commons and participation. Any view of development that does not recognise the interconnectedness of life on the islands is rightly rejected as dangerous to human and ecological health. This understanding is the core of the challenge by the citizens of Lakshadweep to the State’s powers.
Disclaimer: The views and opinions expressed in this article are those of the authors' and do not necessarily reflect the views of Bar & Bench.