India and Internally Displaced Persons: Current Legal Avenues and New Legal Strategies

摘要

The aim of this article is to analyse the international and national legal avenues that exist to address the rights and needs of internally displaced persons. Although the 1998 UN Guiding Principles on Internal Displacement are not legally binding, an increasing number of human rights proponents and scholars have argued in recent years that the instrument is likely to assume a legal significance beyond its status as a mere declaration of principles. From a normative perspective, there are two issues of which to be aware covered by the Guiding Principles and Indian land acquisition laws: the proportionality test (Principle 6(c) of the UN Guiding Principles), and the right to property and restitution, which has increasingly been considered vital for the realization of the rights of internally displaced persons. The proportionality test is crucial to assess the first phase of displacement (protection from displacement), while the second aspect relates to the third phase (protection after displacement). This article examines the two issues in detail. It also examines whether Indian courts take these issues into consideration when they determine compensation levels for displaced persons. The article concludes that the Land Acquisition Rehabilitation and Resettlement Bill 2011 should integrate human rights concerns to better protect the rights of displaced persons. It also argues that a rights-based approach can enhance the quality of the services delivered by authorities. To protect the basic human rights of displaced persons, human rights guarantees must be incorporated into appropriate legislation. The principles, norms, etc, on which implemented policies and plans are decided, should also be part of the legislation. In the final analysis, the 2011 bill seems to delineate duties rather than detailing rights.