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No fair deal: Way ahead for Kosi project victims

A flood control and irrigation project was commissionedin 1954 between India and Nepal, on the trans-boundary river Kosi. The mighty river was strewn with manmade infrastructure; canals, bunds, embankments and barrages. And the wide, wild river was eventually forced to flow on a pre-determined narrow, constricted course; over a riverbed that rises every year as more and more silt deposit occurs on it.

The Kosi project agreement signed between India and Nepal in 1966, however, presents two glaring omissions. One, the Kosi Project is conceived as a flood mitigation project without a flood management plan and thus it fails to provide any kind of action plan on what needs to done and by whom when floods occur in India and Nepal. In other words, possibility of future floods in Kosi after embankments are built has not been conceived under the Agreement.  Secondly, while there is a compensation methodology for ascertaining the cost of loss of land and property due to Kosi Project in Nepal, there is no such thought for the loss of land and property in India. Thus the people and land trapped between the embankments in Bihar could not be compensated since their water, land and livelihoods rights were not recognized under the Kosi Agreement.

As for the affected Nepali people, a onetime compensation was paid by India to Nepal as per the Agreement. This wasto be paid to the project affected people (PAP) by the Nepali authorities. However, very little is known about the manner and process adopted to pay the compensation to these PAP in Nepal. The execution of this package was an arduous task in itself, and could not be completed effectively due to the absence of cadastral surveys, a precondition for determining the compensation as per the Agreement. And so, issues of compensation are still pending in Nepal and continue to remain contested even after almost 50 years.

And in India, no due process was followed for acquisition of lands or for eviction of people from the acquired land. The Agreement does not take into account the negative impacts of the project, nor is there any report that suggests that any form of public hearing was conducted at that time to address people’s concerns. The understanding seems to have been that since the main structure, the Kosi barrage was to be located in Nepal, only the people living there needed to be compensated. Another probable reason for this omission may have beenthe perceived and illusionary benefits that were expected to accrue for India on account of flood control and irrigation measures undertaken.

Thus, not only was productive agricultural land in the Kosi basin lost to the project construction, but more land since then has been lost to cultivation due to seepage, waterlogging and contamination; all of them a harbinger forenvironmental disaster. Today, the river ecology is permanently altered; the groundwater, soil and sub-soil heavily contaminated with persistent organic pollutants such as arsenic and lead. Deadly waterborne diseases and deaths among women and children, infirmities by birth are common in villages within and along the embankments.

Communities blame the project for the poor state of environment and complete breakdown of drainage system in the basin. They argue that this is an unnecessary project, neither does it control floods nor does it provide any irrigation in the basin.  On the contrary, the Project has led to irreversible ecological damage, posing a challenge for the poor in the Basin, who ended up as victims of environmental injustice due to anill planned joint venture and its outcomes.

Right to water
In India, customary water rights of people have been accepted and codified in many of the statutes concerning land and water. This international project curtailed this traditional water rightof the people in the basin. Based on various Acts, right to water exists as a negative right i.e a right in which there is an obligation on the government and others to refrain from doing something that hinders the enjoyment of right. However, the Kosi Project attempted to transform the natural water rights of people into a positive right i.e where government takes on itself the responsibility to ensure supply of water. And this is what is critical here in Kosi Basin; the governments took absolute control of a water resource but failed to ensure the positive water rights of its people.

What does the law say?
Right to environment and water and Right to shelter and rehabilitation, rights recognised by both Nepal and India, have been violated in the Kosi basin where the oustees still battle uncertainties and paradoxes. Indian statutes and judgments provide a steel framework against water contamination from industries or process; but there is nothing on contamination spread by the waterlogging due to embankments, as has been the case of the Kosi Basin.

Looking back and moving ahead
The fact that the Kosi basin straddles across two neighbouring countries and comes under different administrations, limits the Kosi Agreement itself. The Agreement is grossly inadequate and obsolete; and there is no legal space in it to address future problems that arise.  The irreversible changes in the ecology, siltation and raised river bed pose eminent danger to those that live there. Deprived of their basic human and environmental rights, people living in the basinface gross environmental injustice.

To replace the existing Agreement by a new one may not be an easy task.  A practical answer is to creatively utilize a large body of environmental rights and justice framework in India and Nepal. They can then assert for environmental justice for the victims of the Kosi Project; seeking specific relief for pollution, flooding, rehabilitation, drinking water, right to education and right to food.

A key step in this direction is also to activate the Kosi Pradhikar (Kosi Victims Development Authority) and implement its proposed programs. These joint actions may help generate a future template that is able to replace the Agreement with a newer, more comprehensive one that seeks to undo the historical injustice to the people of Kosi Basin.

This blog has been written by GEAG based on a Policy Brief titled – “Seeking Environmental Justice: A Way Forward for the Victims of the Kosi Project” by Mr Shawahiq Siddiqui and Ms Maria Faridi, as part of the project on Synergizing Political, Economic and Gender Dimensions for Sustainability of River Ecology and Resources in the context of Water-Energy-Food Nexus in Kosi Basin, supported by The Asia Foundation.