[Ed] Fencing the farmer out

In the name of economic reforms and development, the government has taken a significant step backward in India’s march to land justice. The pushing through of the Land Act ordinance violates all democratic norms

On Monday, the Bharatiya Janata Party government cleared the proposed ordinance to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. This amendment, insofar as has been made known to the public, creates a separate category of projects which shall be “fast tracked.” The items covered under this category include industrial corridors, defence and defence production, rural infrastructure including electrification, housing for the poor including affordable housing, and infrastructure projects including projects taken up under Public-Private Partnership (PPP) mode.

The immediate and likely impact of this amendment is that land can now be acquired for these projects without having to exhaust the pre-acquisition processes that had been put in place, namely the Social Impact Assessment (SIA) and the determination of prior informed consent from affected families. A cursory analysis of this amendment shows why the same is not just problematic but is also a serious step backward.

Reason behind pre-acquisition steps

First, there is a reason why the consent and SIA process had been hardcoded into the DNA of the law. Acquisition had become a tool for the use of brutal force by the state. Acquisition was almost always forceful, leading invariably to riots and protests (often violent in nature). By requiring the state to seek the consent of 70 to 80 per cent of the affected families, the law empowered those who were to be directly impacted against the arbitrary exercise of the power by the state. For the first time in the history of independent India was the citizenry given a say in how the state would deal with their land. Now with this one step, the BJP has returned us to the days of the British enacted law where our citizens enjoyed no say in their development.

Second, the unamended law was enacted after unprecedented nationwide consultations which took place over two years. Two all-party meetings were convened. The Bill was subject to 12 hour debates in both Houses in which over 60 members took part. Two key amendments suggested by Ms. Sushma Swaraj and Mr. Arun Jaitley were also accepted (These related to providing for lease as an option and the share of an original owner in case his land was subsequently acquired). The BJP unambiguously supported the law in Parliament and even expressed support for these very provisions it now seeks to exclude. In this context, this sharp ‘U-turn’ becomes all the more surprising.

Infrastructure projects
Third, under the unamended Act, the only exemptions to the consent and the SIA clause were the 13 laws given in the Fourth Schedule to the Act itself. Mindful of the fact that some projects were of greater national importance than others, the framers had already created this separate class of projects which included acquisition for the purposes of railways, national highways, atomic energy, electricity, etc. Acquisition for defence and national security had also been protected under the urgency clause. And even these 13 laws had to be amended within one year, i.e. by December 31, 2014 to ensure that compensation, rehabilitation and resettlement clauses were brought on a par with the new law (vide section 105 of the unamended law). With regard to this particular amendment, the government is attempting to make a virtue out of a necessity prescribed by their predecessors.

Fourth, crafting a set of categories which includes vague items such as infrastructure projects (including PPP projects) solely for the purpose of exempting them from consent requires enormous application of mind. The exemptions given in the unamended law were the result of sustained public consultation. In the case of the ordinance, exemptions have been created without any explanation as to why these activities or sectors are being placed in a class of their own. Such lawmaking practices veer dangerously close to arbitrariness in administrative decision-making.

Importance of a safeguard
Supporters of the amendment will undoubtedly argue that the law does not dilute the provisions of compensation, rehabilitation and resettlement but instead only makes the process for acquiring the land easier.

What they fail to realise is the gap between the bargaining power of the state and the lowest common denominator is a very wide chasm.

The SIA process gave these people (often farmers) the right to negotiate fairer rates of compensation while determining if the project was truly in the public interest. It had also removed the scope for the subjective use of discretion by the Collector and other representatives of the government.

Now, with the SIA process being waived, the Collector can once again determine what constitutes a public purpose and how soon can land be acquired. It was this unchecked authority that was at the heart of the multiple abuses of the law chronicled over the last 70 years. Discretion had been replaced by verifiable systems and processes to check capricious decision-making. Now, this safeguard stands eroded.

The SIA was designed to ensure that no acquisition in excess of the bare minimum requirement took place. This was an important objective as most acquisitions were characterised by excess zeal on the part of the state. More land was always acquired than was needed for the project in question. Without SIA, the possibility of arbitrary diversions once again becomes a reality.

No restrictions
Also, the new law didn’t introduce the concepts of rehabilitation and resettlement. It merely put in place a process that ensured compliance and enforcement. The Supreme Court of India had already mandated rehabilitation and resettlement even before the new law was enacted. There was even a national policy that existed on the subject but violations remained rampant. The SIA was created to provide a framework that would ensure its implementation.

Another fear is that this new ordinance will effectively undo the implicit limits that had been placed on the acquisition of agricultural or multi-crop land by the unamended Act (done to ensure continued food security for our citizens). However, the amendments seem to allow such acquisitions without restrictions. This gives rise to worrying questions as to who is the natural constituency of the party in power.

The government should have instead used this opportunity to strengthen the legal regime governing land titles in States where it is now in power (since land is primarily a state subject). Knowledge asymmetry and an active land mafia lead to the purchase of land being a risky proposition (and hence making acquisition more attractive). It is a pity that the government did not take this opportunity given that it is in power in both the Centre and in key States where acquisition is a burning issue (Maharashtra, Haryana, Rajasthan and Madhya Pradesh). The amendments will only disempower gram sabhas.

In the name of economic reforms and development, the government has taken a significant step backward in India’s march to land justice. An ordinance pushed through in this manner violates all democratic norms and is the shape of things to come in the Modi sarkar. Given this cloak-and-dagger approach becoming the norm for lawmaking in our country, we can only hope that in this era of acronym-anchored governance, ‘Modi’ does not come to stand for ‘Murder of Democratic India’.

(Jairam Ramesh is a Member of Parliament, Rajya Sabha, and Muhammad Khan is an advocate.)

Source - The Hindu