APPENDIX N1
Supreme Court: the Jarawa Case
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In 1999 the High Court at Calcutta, Constitutional Writ Jurisdiction, Appellate Side, in the Circuit Bench at Port Blair two writs have been filed under (among others) article 226 of the Constitution of India and the Rio Declaration of Environment and Development 1992, one in respect of the Onge (see Supreme Court: The Onge Case) and the other in respect of the Jarawa (dealt with in this chapter). On 9th April 2001 the Jarawa Case was heard at Port Blair. It is a tremendously informative and important judgment and makes one feel rather more optimistic about the future of the Andamanese than one has been recently. Thanks to the Society of Andaman and Nicobar Ecology (SANE) under Samir Acharya we can here present a summary of the case and the operative parts of that judgment. Both these and other cases before the Supreme Coar of India are of considerable importance to anybody even slightly concerned about the Andamanese and in the fate of the remaining Onge and Jarawa, not to mention anyone interested in the origins and ancestry of the human race and the ecology of this most unusual archipelago. |
SOCIETY FOR ANDAMAN and NICOBAR ECOLOGY (SANE)
Post Bag No, 63
Port Blair; 744 101
Andaman and Nicobar Islands
India
Contact Person: Samir Acharya
Tel: 91 3192 32929/34624/35002
Fax: 36014/33072
E-mail: sane@andamanisles.com
Web site: www.andamanisles.com
Under No. WP 048/199 a petition was filed on 24th May 1999 by Port Blair lawyer, Ms. Shyamali Ganguly. She had seen the plight of the Jarawa (see chapter 1) after their coming out of the jungle with her own eyes during a trip on the Andaman Trunk Road . As a result she was hoping to help them by legally forcing the government to "civilize" the Jarawa by "rehabilitating and "re-settling" them, i.e. by bringing them into the mainstream of Indian society. Ms Ganguly also mentions in her petition that the "Andamanies" (the surviving Great Andamanese) had been rehabilitated in their own habitat on Straits Island with "all facilities of modern life and protection by the Administration" and that the Onges were also "very well rehabilitated in Debong Creek (Dugong Creek on Little Andaman), that the Shompen on Great Nicobar were "getting care from the Administration" and that the Sentinelese were "still cut off" but that the "Administration was organizing contacts with them, time to time, for making them friendly with the civilized people as they are violent." Clearly, the lady was in favour of the government's long-standing policies for "rehabilitating" the Andamanese tribes and only wished the same procedures to be follwed in the case of the Jarawa. She was not aware of the disastrous effects that such well-meaning but badly informed "help" had caused among the Onge and the Great Andamanese. Ms Ganguly admitted in Court that she had little knowledge of the Jarawas or any other aboriginal tribes.
SANEat Port Blair realized that if Ms Ganguly won her case, it would have provided a windfall for any forest contractor, wood-based industry and land-hungry developer, all complete with their associated bureaucrats. SANE decided to act . After failing to persuade Kalpavriksh of Pune and the Bombay Natural History Society (BNHS) of Mumbai (who are both involved in the Onge Case, see below) to be co-interventors, SANE decided to go it alone, paid the costs and became an intervenor in the case. It first submitted a short Affidavit of Opposition, and followed this later by other and more extensive documentations, including the writen opinions of ten eminent anthropologists and sociologists from all over the world which Survival International persu aded to supply. Their opinions are summarized in the judgment and given below.
The Jarawa case was heard by the circuit bench of the Hon'ble Calcutta High Court at Port Blair on 9th April 2001 before Mr. Justice Samaresh Banerjea,Senior Judge, and Mr. Joytosh Banerjee. Mr. Asish Ray, Advocate, appeared on behalf of SANE. The 60-page judgment in form of a wreitten order was later sent from Calcutta and reached Port Blair on 28th May. SANE received it on 30th May 2001. Only its operative part is reproduced below.
OPERATIVE PART OF AN ORDER PASSED BY MR. JUSTICE SAMARESH BANERJEA AND MR. JUSTICE JOYTOSH BANERJEE IN THE CIRCUIT BENCH OF HON'BLE HIGH COURT OF CALCUTTA AT PORT BLAIR ON 09.04.2001
We therefore pass the following directions upon the Central Government as also upon the Administration of the Andaman and Nicobar Islands which have been implemented by them in all seriousness and also within the time stipulated by the Court :-
The Central Government through the Principal Secretary, Ministry of Home Affairs, within two months from the communication of this order shall form a Committee of Experts with the Lieutenant Governor of the Islands as the Convenor, comprising of renowned Anthropologists, Sociologists, Nutrition Experts, Doctors, for immediately undertaking a scientific study, research and survey in the aforesaid change in the behaviour of the Jarawas and to find out the cause of the same. The decision in this regard has to be taken by the Home Secretary and not by any of the Secretaries of the Home Department, in consultation with the Lieutenant Governor. Apart from including in the said Committee noted Anthropologists, Sociologists, Nutrition experts, persons having acquaintance with the Jarawa language and with their behaviour and culture must also be included in the said Committee. Mr. Awardi, who prepared the aforesaid Master Plan, having already undertaken a detail work in respect thereof may also be included in the Committee on behalf of the Andaman and Nicobar Island Administration. The said committee shall undertake their aforesaid research, scientific study and survey in the manner such experts will obviously feel will be fit and proper for the purpose, but suggestion from this court is in view of the situation which is now being faced by the Administration at this stage, such survey and study and research should also be made by such experts by going inside the Jarawa territory, after themselves being properly innoculated, and by establishing contact with the Jarawa for ascertaining their views, if possible.
The said committee shall submit its report within six months from the formation of such committee before the Central Government and the Lieutenant Governor, Andaman andNicobar Islands and also shall file a copy thereof before the Circuit Bench of this court.
It will be necessary for the said committee to clearly spell out in the report the reason which according to them has caused such change of behaviour of the Jarwas in the manner aforesaid and their suggestion relating to remedial measures to be taken in respect thereof. Within six months thereafter the Central Government through the Home Secretary himself and the Lieutenant Governor of the Andaman and Nicobar Administration shall formulate a policy, plans and programmes on the aforesaid questions whether the steps should now be taken from brining the Jarawas in the main-stream of the society or they should be left to their own way of life as before or the balance between the two should be struck following the peaceful existence theory as suggested by Mr. Awardi in his Master Plan or by any other experts. For the aforesaid purpose, the Central Government shall arrange seminars and open discussions of the different experts, National and International on the line, Anthropologists, sociologists and others as also individuals and non-governmental organisations having knowledge and experience in the matter inviting them by issuing public notification in widely circulated news papers and sending them letter of invitation and thereafter shall frame the policy decision within the stipulated period after deliberation and discussion on such opinions with the approval of the concerned Ministry. The Central Government shall also publish the papers, discussions and deliberation of such seminar, at its cost, for future reference. The cost for such seminars shall be borne by the Central Government and the cost of travel, boarding and lodging of such experts, organisations and persons and of such research, survey, field work etc. shall also be borne by the Central Government.
It is made clear that for the aforesaid purpose, individuals as also organisation, governmental or non-governmental will be at liberty after issuing of such notification to submit their own opinion, views supported by cogent reasons and materials, in the said seminars also to be considered by the Central Government.
After formulation of such policy, the same shall be notified by the Central Government and the Andaman and Nicobar Administration and shall also be placed before the Circuit Bench of this Hon'ble Court for appropriate order.
In the meantime, the Andaman and Nicobar Administration is directed to take the following immediate steps on war-footing;
- To stop poaching and intrusion into the Jarwa territory and prevent its further destruction by encroachment and deforestation;
- To issue appropriate notification clearly demarcating the Jarwa Territory as far as possible;
- Until formulation of such policy as aforesaid not to make any new construction or extension thereof in the Jarawa territory and not to make any extension of the Andaman Trunk Road.
- To take appropriate and suitable measures to discourage the Jarawa to come out in the open road for the purpose of accepting food, gift or otherwise and to educate the local people of the nearby village by holding frequent awareness camps, not to give foods clothes and gifts explaining to them the danger of doing so and to teach them that Jarawas are not inferior but are different.
- To give them medical aids when they come out for the same only to the extent necessary and in the event one is required to be hospitalised, to seggregate him totally from other patients by keeping him in the seggregated area or ward.
- To undertake periodical programmes to give medical aids to the Jarawas only to the extent it is necessary in their own territory so that they need not come out on the open for receiving the same.
- To prevent contacts with the Jarawas by unauthorised persons.
- To take penal measures against the encroachers, poachers and who destroy the forest and also against the police and civil administrative authorities who are negligent in taking steps against the poachers, encroachers and destructor of forest.
- To form a high powered committee to monitor all the steps to be taken as mentioned above and to ensure such steps are taken with all seriousness and with utmost expedition.
- The Administration shall submit a report through an affidavit before the Circuit Bench within six months from date how and in what manner such short term directions are being implemented by the Administration giving full particulars in respect thereof and also indicating there in how they have borne results.
After submission of such report the matter will be in the list for further orders.
Signed (SAMARESH BANERJEA, Judge)
Signed (JOYTOSH BANERJEE, Judge)
The registry is directed to forward a copy of the present judgement and order to the Lt. Governor, Andaman and Nicobar Islands and to the Principal Secretary, Ministry of Home Affairs, Union of India, New Delhi forthwith for their immediate compliance with the directions passed upon them in the present judgement and order.
Signed (SAMARESH BANERJEA, Judge)
Signed (JOYTOSH BANERJEE, Judge)
EXCERPTS FROM THE HON'BLE COURT'S ORDER
It appears to this Court that under the order of the Court, on an earlier occasion, a non-governmental organisation, namely, Society for Andaman and Nicobar Ecology (hereinafter referred to as the "SANE" ) which filed another writ petition being Writ Petition No. 76 of 1999 against devastation carried out against Little Andamanes and the Ongees has been impleaded as respondents in the present Public Interest Litigation.
The said SANE has also filed affidavits before this Court expressing their views as to the protection and welfare of the Jarwas, some of which are diametrically opposed to the views of the petitioner as also the report of the said Committee.
It appears from the said Affidavit that the said SANE after coming to know about the Public Interest Litigation sought opinion from different experts through out the world most of whom are Anthropologists and according to SANE such experts opined that solution proposed by the petitioner although may be well intentioned would make the matter worse; that it is unlikely that hunger is the cause of present problems; forced settlement would be disastrous and very possible measures should be taken to control incursions into Jarawa territory, and it will be the obligation of the Administration to ensure that the hunter gatherers are not dispossessed of land, the contacts being culturally and otherwise unsafe, should be stopped. It was further stated in the said affidavit on the basis of the opinion of the said experts that the belief and notion in dominant society that the Jarawas are backward and they need improvement and the benefits of the modern society, is actually a racist notion based on ethnocentric thinking, and that similar crisis's exists among the indigenous people of U.S.A Canada, Australia and New Zealand where contacts inevitably lead to epidemic.
It was further stated in the said affidavit that case studies from various parts of the world showed that it is inappropriate to force indigenous people to live in settled housing, forcing them to wear clothes gives rise to skin problems and respiratory infections and forced settlement results in fall in the birth rate. Such state action falls within the meaning of genocide. Referring to various other facts and various materials, the said SANE prayed that direction be passed upon the respondents 1 to 3 to immediately remove from the Jarawa Reserve all encroachers and camps and outposts; for an order setting up a commission with a direction upon the commission to enquire into whether the Andaman Trunk Road ought to be closed and alternate routes to be used for transportation.
The Committee, thus, has opined against any attempt to merge them in the mainstream of the society which is being asked for by the petitioner, had has advocated for giving protective measures to them.
Dr. James Woodburn, an anthropologist to the Department of Anthropology, London School of Economics, who is a University Teacher and a Researcher in the Department of Anthropology at the London School of Economics and Political Science since 1965 and whose specialist area of expertise is a comparative study of the World's remaining hunter-gatherer societies and was Chairman of the Organising Committee for the 1986 International Conference on Hunting and Gathering Societies and who claims that for the past forty years he has maintained an active interest in the indigenous inhabitants of the Andaman and Nicobar Islands and have read almost everything that has been published about them, has submitted his opinion through SANE in the present case. He has opined that the present situation of Jarawa, in which they are for the first time having extensive contacts with outsiders, should be treated as a medical emergency. An immunisation programme should be put into effect with the utmost urgency as according to him it has been found that when previously isolated or even relatively isolated, population density is high, people in the previously isolated group will become ill and many die as people living in isolation, are unlikely to have had exposure to many of the common infectious diseases like influenza, chicken pox, measles , whooping cough and many others. Therefore, when the isolated population group comes into contact with outsiders, because of lack of immunity they acquire illness which often lead to their death and ultimately extinction. Although he has opined that it is unlikely that the Jarawas are suffering from the problem of hunger or malnutrition, he has further opined that the careful research is urgently needed to establish exactly under what situation the Jarawas are begging along the road. He has strongly opined against the settlement of the Jarawas pointing out that such an attempt in other parts of the world has resulted in a disaster. He has further strongly opined that the Jarawas should be left to decide their future and the role of the Administration in the present situation is to safeguard with all possible rigour, their rights to land, their health, their security and their ability to live self-dependent lives.
Dr. Vishvajit Pandya also an anthropologist and belonging to the Department of Anthropology, Victoria University, Wellington, New Zealand has also advocated against any attempt to move the Jarawas from their present location. He has further opined that the contact of Jarawas with the outside world, as happened in Kadamtalla region, is inevitable and the same needs to be made culturally safe and controlled. He has further opined that it is time that policy makers, experts and scholars are brought together to take a well thought out stand in relation to future of the Jarawas. Mr. Pandya who appears to have regularly visited the Andaman and Nicobar Islands and has examined the previous attempts of the Administration to re-settle the tribals including the Jarawas in other islands has advocated against any such attempts as according to him such attempts in the case of Great Andamanese and Ongees have not really succeeded, but has created human zoo. He has further opined that it is to be understood first and foremost that the culturally unsafe but inevitable contact between the Jarwas and the outside world must be stopped or controlled and systematic effort must be made to formulate a long term plan for the Jarwas.
Stephen Corry, Director General, Survival International which appears to be a world-wide Organisation supporting tribal people is of the opinion that relatively small populations ( of less than a couple of thousand people) are unlikely to survive the effects of sedentarisation and the effect would be made in whatever manner the settlement of the Jarwas attempted. He has criticized the widespread belief that hunter gatherer nomads are 'backward' and in need of both 'improvement' and ' benefits of modern society'. In his opinion such an idea is a racist notion based on ethnocentric thinking which does not stand up to objective scrutiny and which is nowadays discredited by most serious social scientists. Referring to the experience in U.S.A, Canada, Australia and New Zealand he has stated that the experiment of similar kind made with the indigenous people of those countries has led to social cultural and economic degradation of such tribes. He has opined that the effect of such settlement is invariably profoundly demoralising for the tribal people who find their previous way of life belittled and even ridiculed by people who have little or no conception of what it actually invoked. He has referred to the experiences of Brazilian government to settle certain indigenous types like the Jarwas which only resulted to their degradation and after contact with others their numbers repleted and they also did not accept the new environment and the food and ultimately had to be returned to their own land and the Brazilian State was found guilty by the federal judge of causing death and cultural harm to the Panara Indians. He has further opined that the settlement of the Jarawa, at this time when their free and informed consent can obviously not be secured, would constitute a violation of their human rights as the same may wipe out the Jarwas because of disastrous contact with the outside world which would amount to genocide in terms of the U.N Convention on the Prevention and punishment of the crime of genocide to which India is a signatory.
Dr. Mark Levene of the Department of Hisotry, University of Warwick have also pointed out in his opinion that the historic precedents involving the relocation and sedentarisation of the tribal people have often led to their complete destruction, even in notable cases where the State did not set out with willful malice to harm the group but, on the contrary claimed to be protecting their interests. He has explained the same in his report by referring to the case studies of three indigenous tribes, one in Tasmania, the other in Amazonia and lastly to the Chagmas in the Chittagong Hills Tracts (CHT), Bangladesh.
Dr. Marcus Colchester, who is an Oxford University trained anthropologist and a tropical forest ecologist and professional anthropologist as well as working with Indigenous peoples on all four tropical forest regions Latin America, Africa, South and South-East Asia and the Pacific, has also opined against the poor settlement of the Jarawas and has also opined that all too often forced resettlement can provide a fatal blow to Indigenous peoples and what may appear to the planners as a minor impact, can have serious social repercussions, since the economic and religious life of many indigenous peoples is often linked to specific topography of their lands. He has further opined that any such relocation apart from anything else may also create legal problems as India is a signatory of the International Labour Organisation Convention. 107 and Article 11 of the said Convention acknowledge the right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised, and Article 12 of the said Convention provides the populations concerned shall not be removed without their free consent from their traditional territories.
Professor Terence Turner, Professor of Anthropology, Cornell University, Ithaca, NY,USA has opined that uncontrolled contract of the Jarwas with the outside world poses medical dangers and the threat of violent incidents, already endemic in response to the incursions of poachers in the reserve. She has strongly opined against the settlement and re-settlement of the Jarwas on other islands which according to her would lead to a catastrophe from which the Jarwas would be unlikely to recover. She has also pointed that a similar experiment with other indigenous tribals of Andaman and Nicobar Island namely, the Great Andamanese and the Ongees have ultimately lead to their drastic reduction in number; for the Great Andamanese have dropped from 5000 in 1857 to 28 in 1999 and the Ongees have been similarly reduced to 101 only. She has further pointed out because of such experiment both such groups exist in total dependency of the local government, acting as labourers of tenants of resettlement projects which is too familiar story to anthropologists cognizsant of the record of governmental schemes for the settlement of nomadic hunting or pastoral peoples in Asia, Australia and the America. She has further opined that social, cultural and political and economic adjustments involved, when coupled with disempowering effect of government paternalism and the intensified pressure for assimilation to dominant cultures and societies, have almost invariably proved demoralising and destructive to the indigenous societies involved resulting in demographic collapses like those of the Andamanese groups. In her view an appropriate action in the recent complex situation must proceed from respect for the rights of Jarawa as a tribal minority within the Indian State which must begin with correction of abuses of those rights by both government and private agents and such actions should be taken with the full knowledge, consent and participation of the Jarawa themselves; government policy and relations with settlers alike must be governed by respect for the fundamental right of the tribal people to lead the life they choose on the land that is rightfully theirs and must be recognised that the State has no right to force a tribal people to abandon its culture or take on an alien most of production, whether in the name of progress, modernization or assimilation into the local or national society.
Mr. Nepuni Piku, Executive Secretary of the International Alliance of Indigenous Tribal Peoples of the Tropical Forests having its office at London and who himself is an indigenous tribe has also raised voice of protest against the attempt of re-settlement of the Jarawas. He has written that the International Alliance of Indigenous and Tribal people of Tropical Forests is an inter-continental confederation of indigenous and tribal people spanning eight regions of the world - Central America and Caribbean, South America, Anglo-phone Africa, Franco-phone Africa, South Asia, the Bahasa Region and Maritime Asia and the Pacific and such alliance brings together as forest-dwelling peoples of these regions to promote their rights and futures and ensure that their voice is heard in all decisions that affect them. Mr. Piku has written that many of the peoples have suffered severely from imposed development plans including from relocation and they strongly oppose all such impositions. It is stated that these indigenous peoples are strongly tied to their ancestral territories, homes, and spiritual foundations and when they are taken off from their land, they lose connection to that which give their identity and gives meaning to their existence. It has been further stated that their futures are their own to define and in the case of the Jarawas, their best interests are served by following the structures of international law; their lands should be secured and they should be allowed the time and dignity to decide for themselves the way they wish to develop their interactions with the rest of the world.
Dr. Thomas N. Headland, who is an Adjunct Professor, University of Texas at Arlington and SIL International Anthropology Consultant, has also strongly opined against any attempt of re-settlement of the Jarawas in different areas. He has strongly opined that the same would be a violation of the United Nations Universal Declaration of Human Rights if force is used for removing of the indigenous Jarawa from their land and way of life. He pointed out that hundred years ago the British Colonial government attempted to civilize and impose change on the Andaman Negritos. It ended in tragic results in drastic reduction in number. He has pointed out that similar was the result attempted by the American government to move traditional Native America indigenous tribes into other lands and teach them agriculture. He opined that reservation created in the homeland of the Jarawa by the government of India is now in danger of being taken away from them. He has further opined that the Jarawa will inevitably chance in the coming years, as they come into more contact with outsiders, but such process will be slow and they must be allowed the freedom to make their changes voluntarily and at their own pace and no change must be imposed on them and the borders of their reserve must be retained or resorted their 1957 limits and they must be protected from encroachment. It will thus appear from the opinions of the above-mentioned anthropologists and sociologists that all of them are unanimous in their opinion against any attempt of the Administration to resettle the Jarawas in a different area, as according to them that will result in the destruction of their land, culture and very identity. It appears that similar experiment with other indigenous tribes in the other parts of the world have failed including in Indian in the case of Ongees and the Great Andamanees who have become dependant entirely on the Administration for their survival.
All such experts above-mentioned have also warned that the contact of the Jarwas with other people of the society may cause serious medical problems as they may to infected with the number of communicable diseases which may lead to their destruction as it had happened in other parts of the world. While some of them have opined such contact with the outside world is inevitable, all of them have also opined nothing should be forced upon the Jarwas and it is for them to decide ultimately what kind of life they would lead. All of them are also unanimous in their opinion that strong measures are required to be taken to protect the Jarawas from being infected with the communicable diseases and from the very destruction of their habitat by encroachment in their land and de-forestation.
SUBMISSIONS made by SANE IN THE JARAWACASE
1) EN-MAI, glorified as Ambassador of Goodwill, was excommunicated from his own community (Tirur). He is known to have killed the suitor of the lady who is now his wife.
2) A 'Cargo-cult' has been establishing with En-Mai at the centre. The importance and attention given to him by the authorities like giving him a separate room in the Hospital, lavish gifts, permitting him a car or jeep to travel in when lessor mortals ride on the back of a truck, etc. This has built up his image among impressionable youngsters and young women.
3) In a hunter-gatherer society, the leadership is always with the older people because they are the repository of all knowledge and skills of survival accumulated through experience. Establishing En-Mai as a cult figure has created rifts in the traditional Jarawa Society.
4) It is known to all travellers on ATR (Andaman Trunk Road) that the Jarawa encountered on the road are mostly minors with an occasional young woman among them. The able-bodied males and older people are conspicuous by their absence.
5) The older people are actually busy in their traditional hunting-foraging activities. The youngsters on the road are losing valuable experience and lessons in survival by their absence from the forest. They would, if they continue in the same path, soon become unfit to survive in the forest.
6) The contact parties' only notable success is in making the Jarawa proficient in the choicest Hindi slangs. While many years work of experts and many tens of lakhs later, we are yet to have a Jarawa Primer that would permit us to have a dialogue in their dialect, the Jarawa youngsters on road today puts a veteran sailor or a policeman to shame in a slanging match. So much for acculturation.
7) Dr. Erika Hegalberg extracted mitochondrial DNA from the hair roots of some Andamanese hair collected by a British Civilian in the first decade of the last century, and compared it to the mDNA of other negrito people of the world. She found that the Andaman Negrito are closer to the East African bushmen than to the Asian or Australian Negritoes.
8) Dr. Erika Hagelberg believes that the Andaman Negritoes being one of the earliest migrants from Africa probably hold the key to the very question of human ancestry. She postulates that the Andaman Negritoes had arrived in the Islands at least 40,000 years ago.
9) The ancestors of Andaman Negritoes would have been forced to migrate due to competition for food and space in Africa and would have arrived here in outrigger canoes. Because of the availability of large foraging area on land, some of them would have lost their boat-craft and navigational technique. The Islands were then joined together became of a fall in mean sea level caused by an ice age. When the sea level rose later, the Islands got separated and the communities who had lost sea-craft became isolated from each other and over a period of time, developed separate dialects mutually incomprehensible.
10) The Jarawas and the Sentinelese are the last two tribes that had maintained racial and genetic purity and avoided cultural contamination. They hold the key to the mystery of human evolution. Allowing contamination of their genetic and cultural purity would be like burning the library of Babylon again. Experts today recognise that the New world did not fall to the might of Spanish arms, it fell before the onslaught of European germs. Once again we are exposing a pristine race that is defenceless to our civilised pathogens. Extinction through an epidemic is a reality just a single infection away. The Jarawa has survived the measles epidemic but would they survive if the epidemic was of Syphylis, Hepatitis B or C or AIDS? Continue survival and well being of the Jarawa can only be ensured by banning all contact with the Jarawa banning attempts like teaching them agriculture, fishing technique and Hindi(!) evicting all encroaochers from within the Jarawa Reserve.Banning construction of any facility near the reserve in the name of " tribal welfare" Closing the Andaman Trunk Road to traffic.
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