The Way Out: Adv Sanjay Upadhyay

THE LIGHT OF ANDAMANS | ISSUE 30 | 20 APRIL 2012

The Way Out: Adv Sanjay Upadhyay

In the 42-page report submitted by Sanjay Upadhyay, he has hinted that the bases of the notification were not provided to the Commissioners by the Administration. He has suggested to lay bare the file noting or the bases of the decision making process and requested the Apex Court to examine the reasons for disagreement as well as the reasons for overruling those disagreements and to reach a fair decision to avoid any arbitrariness that may or may not have crept in the decision making process as it impacts the lives and livelihoods of over one hundred thousand people who have been settled by the State themselves.

On the impact of Buffer Zone on the Islanders, in his report, Sanjay Upadhyay has mentioned that there is no clarity on the extent of land falling within the buffer zone area, since a land to land survey has not been carried out. The owners of commercial establishments as well as farmers residing in the areas notified as the Buffer Zone have and will suffer heavy losses. Yet no move has yet been made to compensate them for such losses.

Adv Sanjay has also taken cognizance of another case pending in the Supreme Court which has not been resolved till date. He felt that the details about the case need to be discussed since the order passed in the matter details on the closure of the ATR. He has widely cited from the various expert committee reports and the Shekar Singh Commission's Report.

Citing the various narratives on Jarawas by the stakeholders, Sanjay says that although the settlers sympathise with the plight of the Jarawa, they also have various objections to the move of the Administration with implementation of the Buffer Zone Notification dated 30.10.2007 as well as the recommendations on closure of the ATR as suggested in the Shekhar Singh Commission Report. These objections, he says that came from both settlers' perspective as well as those pursuing commercial activities especially in the public hearing as well as the written response.

Adv Sanajy in his report says that it is alleged that livelihoods of the majority population of the islands would be hindered if the ATR is closed. Connectivity and communication is only possible through the ATR and the sea route. The sea route is mostly problematic because of infrequent boat services and heavy monsoon season, thus people residing in these islands are languishing. An increasing number of settlers use the ATR as the only means for commerce and transportation. If closed, it would lead to problems for the islanders in accessing education and health facilities. Also, in a disaster scenario, such as earthquake, tsunami or cyclones, the ATR is easiest to travel on. ATR is not a mere 'convenience' but a bare 'necessity' for islanders from rural South, North and Middle Andaman. Further on, it had been alleged that funds which have been sanctioned for the development of alternate sea route was done so without taking into confidence the locals and members of the PRIs.

He also mentions about their drive through the ATR without any fan fare and like ordinary tourists. However, it is pertinent to note that the Administration officials had taken them on second convoy and not the first one, in which mostly tourists ply to Baratang.

As per the proposal for amendment sent to The Secretary, Ministry of Home Affairs, Govt. of India by the Directorate of Tribal Welfare ANI Administration in November 2011 to the PAT Regulation 'Commercial Establishment/ Activities means any commercial establishment other than tourist establishment which may employ more than 20 (Twenty) persons or have annual turnover of Rupees 1 (One) crores.' Anything that does not comply with the above shall be prohibited. This implies that anyone who employs one less person i.e. 19 persons and whose annual income is a rupee less than one crore would be exempted. Adv. Sanjay feels that such criteria where only number of employees and pecuniary limit is set to exempt or allow any activity, seems arbitrary. He suggests a more rigorous and scientific process to be established where the restrictions are more pragmatic based on ethnographical parameters and the real impacts assessed due to any commercial or tourist activity.

Adv Sanjay has criticised about exemption of Govt run guest houses in the Buffer zone. The report says that thus any private investment have been prohibited on one hand where as the Government run guest houses have been totally exempted giving an impression that they need no self regulation. Given the track record of a mixed up policy on Jarawas and other vulnerable tribes it would be unfair to make this arbitrary classification. He has therefore recommended that every tourism or commercial activity be it Government or private be put to strict regulation prior to their establishment

Taking a dig on the confused Tourism Policy, Adv Sanjay says that the tourism policy which aims to develop beach resorts, setting up of tourism circuits and development of 36 beach sites also includes the area in question in South Andaman. He has therefore recommended the Andaman Administration to take a clear stand as regards their policy of involving or not involving private players especially in the context of tourism in the areas in and around the tribal reserve.

He has also recommended implementation of the Island Integrated Management Plan (IIMP) in a time bound manner under the directions of the Court and a special monitoring authority under the National Coastal Zone Management Authority to be specifically constituted for monitoring the development of tourism in the ANI and specially in and around the tribal reserve.

He feels that in the current context where a one size fits all mechanical 5 km Buffer Zone from an unclear and unsurveyed boundary of tribal reserve would be clearly inappropriate. He has suggested an amendment introducing a new buffer concept based on scientific rigor and ethno graphical parameters already been proposed by the new Jarawa Policy. He has recommended that principles already enunciated by the Court to be adapted in the current context and to serve as a guidance to the Administration for a more fair and transparent mechanism of declaring a buffer zone.

He is critical about the mechanical and outright prohibition of tourism or commercial activities citing it to be detrimental to the overall development of the Andaman Islands in the long run as brought out by the various submissions at the Public Hearing. In his opinion requests the Court to put in a strong regulatory authority including a robust multi disciplinary monitoring body to scrutinize every aspect of potential impact of establishing tourist or commercial facilities and provide a detailed self audit framework.

He doubts whether a new proposed amendment to the original PAT Regulation can or should be retrospectively applied? The normal legal position, he cites is that the notifications are prospectively applicable. Such has been the position in all Notifications issued under the Environment Protection Act including the EIA as well as CRZ notifications. In view of the above, he recommends that the Buffer Zone notification be applied prospectively and if current establishments have to be prohibited then adequate and fair compensation be worked out.

From the public hearing and the reading of secondary resource material, he infers that prior to complete prohibition of commercial establishments as well as tourism facilities, minimal or no public consultation was done especially where a totally new concept of "buffer" was introduced which was not hitherto present in the legal instrument.