Submission made to the Ministry of Corporate Affairs on the Draft NAP on business and human rights

SUBMISSION OF COMMENTS ON THE ZERO DRAFT OF THE NATIONAL ACTION PLAN (NAP) ON BUSINESS AND HUMAN RIGHTS

Arpitha Kodiveri[1]

Introduction

The zero draft of the National Action Plan marks a decisive step towards the recognition of principles in the United Nations Guiding Principles on Business and Human Rights. The plan in its current form takes into account a myriad of aspects that the guiding principles have but misses out on some of the fundamental aspects of state protection towards human rights, corporate compliance and access to remedy. The comments being provided here are being done in the spirit to strengthen these guidelines and build on the existing work being done by the Ministry of Corporate Affairs.

I have restricted my comments to the area of environmental protection, forest rights and land acquisition in the extractive sector based on my experience as a Doctoral Researcher working on this. I will begin with comments on the overarching approach where I will layout the missing aspects of state protection, corporate compliance and access to remedy. In the next section, I will provide detailed comments on the different sections based on the thematic areas. This plan is an important step in fostering a legal environment where businesses and the state are held accountable for human rights violations while paving the way for a market and economy that is inclusive and sustainable.

  1. Comments on the Overarching Approach and Principles

In the table below I am outlining comments on the overarching approach and principles drawing from the UNGPs, International Human Rights Law and the ongoing discourse on business and human rights globally.

Pillar I: State duty to protect human rights a.       In this section, the NAP merely lays out the existing legal framework in support of the different aspects. It does not use the opportunity that soft law provides for norm incubation. Soft law is a legal terrain on which higher legal standards can be experimented with, instead, the hard law continues to form the core of this section without any push towards more stringent legal standards.

b.       It fails to draw from the rich rights-based jurisprudence India beyond environmental law and restricts its exploration to statutory law.

c.       It fails to address the larger question of the role of the state which in the Indian context is trapped between the role of a regulator and an enabler for business. The state has to make a decisive choice on how it will balance these competing modes of operation.

d.       There is a lack of critical engagement with the status of implementation of these different legislations and the political economy of India. The state’s duty to protect human rights is contradicted by the demands placed on it to create an enabling environment for businesses. There is a need to underpin this NAP with a realistic assessment of the role of the state, the status of the laws being referred to and the existing political economy.

Pillar II: Corporate Responsibility to Respect Human Rights a.       In this entire section, there is an emphasis on the role of soft law in ensuring corporate responsibility but little attention is paid to the role of hard law in this. The question of enforceability is largely unaddressed.

b.       The challenge of corporate accountability and responsibility needs to be located in the complex structure of corporations. As the Bhopal Gas Tragedy case has shown there exists a difficulty in attributing liability when parent and subsidiary companies are involved.

c.       An additional section on the responsibility of multinational and transnational companies should be included and how India intends to deal with the question of jurisdiction in such cases.

d.       It does not mention the tools that companies can adopt like human rights due diligence. Strides are being made in the European Union to develop a due diligence framework which the NAP can draw from.

Pillar III: Access to Remedy a.       In this section, the NAP restricts its understanding to courts and other legal avenues established by the state. There is a need to expand this to include internal grievance redressal mechanisms that companies can establish keeping in mind the communities they impact.

 

 

 

 

 

 

  1. Detailed Comments on environmental protection, forest rights and land acquisition in the extractive sector

 

In the table below I provide comments thematically on three aspects, namely, environmental protection, forest rights and due process in land acquisition in the extractive sector. Though thematically provided the comments cut across the points made under the three pillars.

 

Environmental Protection a.       There is a need to recognize the role of local communities in environmental protection and monitoring. The laws mentioned here do not list the Forest Rights Act,2006 or Panchayat Extension of Scheduled Areas Act,1996 or the Biodiversity Act,2002 which ensures the equitable role of local communities in environmental decision making.

b.       There is a need to take into account the responsibility of not just corporations but also investors on aspects of environmental protection. Responsible investment practices are being adopted globally and something the NAP can draw on.

c.       The NAP does not tackle the question of climate change. There is a need to attribute accountability to the state, corporations, and investors on their contribution towards climate change.

d.       The National Green Tribunal which is an important avenue to hear cases of violations of environmental law has been rendered defunct. It is pertinent that the NAP takes into account the weakness of existing institutions to act as a viable avenue to obtain a remedy.

Forest Rights a.       The Forest Rights Act,2006 (FRA) is a significant piece of legislation that aimed to address the historical injustice meted out to forest-dwelling communities. As large swathes of forest land are being diverted for development activities this act should shape most of the decisions made. The NAP needs to include the responsibility of the state and the corporations to comply with the provisions of this act beyond the gram sabha consent requirement.

b.       Community Forest Rights recognize the rights of the forest-dwelling communities to manage and conserve their customary forest lands. There have been instances where these rights have been done away with to make way for mining companies. There is a need to earnestly adhere to these rights. The NAP should include modalities to encourage such compliance.

Due Process in Land Acquisition in the Extractive Sector a.       The NAP misleads as the section is titled ‘community consultation’ while the legal requirement is one of consent. The challenge with the implementation of the consent requirement under the Land Acquisition Act,2013 or the gram sabha consent requirement under the FRA has been false resolutions being used or inability of the community to access information among others. While the rules to these Acts hint towards a process of how consent should be obtained, the NAP can be an opportunity to fine-tune how this process should be and what the guiding principles should be to ensure that the participatory potential of these provisions can be realized.

b.       The NAP does mention the recently passed Mines and Minerals Act,2020. In it, the Coal Sector has been opened up to private companies and foreign investment. This would translate to more coal mining operations, there is a need to specifically address how this will impact the due process standards placed under the LARR and FRA.

 

[1] Arpitha Kodiveri is a doctoral researcher in the department of law at the European University Institute where her work focuses on business, human rights and the environment in India.

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