Angry Peasantry, Annoyed Judiciary, Confused Entrepreneur and Complicit Government
Be it the latest visuals of the protests in Odisha against Posco or Rahul Gandhi’s pillion ride to villages Bhatta and Parsaul, in Greater Noida, or the violence in Singur or Nandigram, the real issue is acquiring people’s land for pittance, mostly through force by the state in the name of Public Purpose. All tell the story of forcible land acquisition in the name of national development to serve the interests of the rich and the powerful. It is the story of Colourable Exercise of Power and high handed governance to serve private interests in the name of public good.
The state government invokes the urgency clause in Section 17 of the Land Acquisition Act to justify its acts, and does everything available under law to show that it is doing it in good faith. However, it has finally been held by the Hon’ble Apex Court as the Colourable Exercise of Power, which in simple terms mean act of glossing over its bad faith and malafide intention.
At the heart of the problem lies the compensation paid by the government or a business house that wants to establish industries over vast tracts of lands which belong to farmers or villagers. Also, there are issues related to livelihood and displacement. What does the law say about this ? How should compensations be made better so that it should satisfy both the landholder and the government or private enterprise?
Though it cannot be denied that the need for development is paramount, development if done in the right spirit brings equity along with modern socio-economic infrastructure including roads, hospitals, schools and industries thereby leading to an all around improvement in the quality of life of the people. Yet when the same “development” is attempted in a socio-politico-legal administrative setting wherein all are hand in glove, be itpoliticians, police, administrative machinery or the corporate, the plight of the people is neglected, especially dalits, tribals and the other general category populace, who are usually inconsequential in terms of power and approach. They stand robbed of their only valuable asset by the state which more often than not invoke special provisions in the law to acquire the land, and many a time such acquired land is not developed for the said Public Purpose for years.
Whenever any socio-economic menace, be it corruption, forcible land acquisitions, black money etc., surfaces, there is a clamour for a separate law or an amendment in the existing law. And the government of the day very convenientlyconstitutes a committee to investigate or study the problem, and that committee keeps on studying the problem for some years, which in itself is good enough time to wipe the issue out of public memory. But soon enough, such menace resurfaces thankfully due to an unrelenting pursuit of vested interests by the elite. Then that committee submits its report to the government which decides whether it is to be made public, or to be acted upon.
Law is a living organism, reflective of the aspirations of the people, which manifests itself through the instrumentalities of the state. Law is the soul and the implementing agencies are its body. The critical ingredients, and honest and sincere implementation are at the heart of the success or failure of any law and its enforcement. For that matter any law, howsoever well thought-out and drafted with the minutest of details, would invariably fail if implementation is slack or would be a mere formality devoid of any sincerity towards its objective and commitment to its procedure. Therefore the law enforcement agencies have a critical role to play in making or marring a law otherwise it runs the risk of being misused, abused and being reduced to a dead letter. This is probably one of the most important reasons for the raging controversies behind land acquisitions across the country, be it BhattaParsol in U.P, Singur and Nandigram in Bengal, protests against Posco in Odisha in particular and Naxal “menace” and many such violent and non violent protests in the country.
Here we will restrict ourselves strictly to the critical clauses in the Land Acquisition Act, 1894, which, after being much maligned, now face legislative axe and would stand either amended or replaced with altogether a new one, as legislating laws is our national past time. It is admitted that the Act is an old one and needs fine tuning as per the life and times of the nation but we as a nation must realize that it is because of the lip service by our implementing agencies to the command of the sovereign i.e. the people that we are the most legislated and the least implemented country in terms of the laws.
Theory of Eminent Domain is behind the state’s power to acquire any land even without consent of any landowner. Eminent Domain in law is based on the legal maxim saluspropuliestsupremalex which means ‘welfare of the people is paramount in law’. Hugo Grotius, the eminent jurist whopropounded the concept, suggested two critical aspects of it. One was the power of the state to do anything with the land including acquiring it without consent of the land owner but it was qualified by the proviso that the state must make the loss good. Unfortunately Indian government (State govternments included) forgot the second part of Mr. Grotius’ formulation i.e. making the loss good. Here the acquisition is immediate but making the loss good is deferred i.e. the payout of the compensation is marked by procedural delays. The compensation is paid only to the land owners and the rest of the people who have been the beneficiaries, like landless labourers, gatherers, encroachers of the forest land who derive their livelihood from that land have just been very conveniently forgotten thereby denying the constitutional mandate of economic justice. This is also one of the most critical aspects which need to be addressed for social peace and harmony.
To achieve the objectives of greater common good, individual’s right to property was thought important because of which the fundamental right to property was finally repealed after the 44th Constitutional amendment thereby diluting the right to property to bare minimum status of a mere legal right. The Hon’ble Court of India also gave the concept the most liberal of the interpretations thereby facilitating the development of the country and to enable achievement of this concept in its true spirit. Therefore, not only roads and dams, etc. but also establishment of a sugar factory or a chemical factory have also been held to be public purpose. But the State of late has come out with great ingenuity in abandoning people of their only source of income by way of wrongfully invoking provisions like Urgency Clause to benefit the private interests. That is done in the name of public pupose causing lot of heart burn, distress, anguish and resultant protests which instead of being addressed through adequate measures have been responded to through the coercivemethods like firing, lathi charge, etc. thereby adding insult to injury.
The conception of compensation in the Act has many a catch in its fold, as has been described above that the technical conception of land ownership for paying out the already procedurally delayed “Compensation” causes a lot of distress to the poor ignorant farmers and other associated beneficiaries like land less labourers etc. Most of the time that is their only source of income and they have no other skills to seek employment or earn a living elsewhere. In such a scenario a well thought-out rehabilitation and resettlement package is the sole method to avoid any hardship to the people dependant on the acquired land.
Apart from that in almost all cases the people whose lands have been taken have complained of unequal compensation resulting in loss, emotional trauma and hardship due to loss of their livelihood. The politics is played over the genuine grouse of the people or sometimes over the dead bodies of the farmers or forest dwellers who were affected by any notification under this act. The Act requires making compensation at market value and prohibits intended use of the land while calculating value of the land and makes the compensation awarded by the collector final. This is a sure recipe for disaster and we can have many Nandigrams or BhattaParsols or the ugliest manifestation of angst in the Maoist style violent movements bordering on terrorism.
Therefore, any lopsided non inclusive development is worst way to serve “Public Purpose” which does not pay heed to the genuine grievances of the losers in this political game and will defeat the purpose of social justice and economic growth. Therefore law needs to be reviewed and loopholes should be corrected to avoid ‘heartburn’, agitation and shelving of projects.
The government started an initiative for the amendment of this Act and introduced the Land Acquisition Bill in 2007. The bill lapsed in 2009, however, the government has expressed its intent to reintroduce the bill in this Monsoon Session of the Parliament. So let’s keep our fingers crossed and see as to what happens to it.
“The Govt. is considering the recommendations of the NAC Working Group on Land Acquisition Law to be tabled in Parliament but no decision to include the same has been taken as yet regarding that”
TATA should have been allowed to hold the acquired land in Singur. Because, of all the corporates, TATA was the first who, before concepts like corporate social responsibility had became development buzzwords, understood the importance of socially responsible business therefore it has done so much for the people wherever it has been doing business.
Because the land holdings in the state are fragmented and 90% of the farmers are marginally unemployed. As a result the size of land holding is in fact holding back the farmer in parting away with his land. On the other hand small land holding is preventing the farmer to derive any sustainable income. So, if farmer needs to be redeemed from marginalised drudgery, industrial development is the only formula to deal with the situation.
Arrogance of the Communist Party cost it the elections. Instead of being hard headed and instead of trying to force through its decision had it tried to take the people into confidence and tried to communicate the whole development agenda the results would have been different.
It will have to be a joint effort of the people, industrialist and government, a proper participatory dialogue is the need of the hour and we all must resolve it otherwise it shall be difficult to have any
More often than not the government is found sleeping over any such report. The journey of a report after its submission to its enactment into a law is riddled with the same apathy, manipulations etc. While the ruling and the opposition parties have a gala time in accusing each other of insensitivity, being corrupt, against the poor, or common man, that common man keeps languishing in impotent rage, utter helplessness and extreme penury, andremains harassed forever by the administrative-police machinery.
This is how we as a polity deal with almost every issue of importance for the people. When a law relating to the hike in the pay out to our parliamentarians is proposed, it is passed with such efficiency that one wonders if they are the same people who adopt all sorts of dilatory tactics whenever common man’s interest is involved and when it comes to their own interests the alacrity and efficiency are worth noting.
Now same is happening to the law on land acquisition, the law is being sought to be amended since 1998, but it could not be done due to the similar politics and dilatory tactics.
The malaise, it appears, is much deeper which is not going to be resolved orremedied by enacting this law or that law. As it is common knowledge that the laws if at all enacted are not implemented in their true letter and spirit. The implementation is in the hands of the administrative and police machinery which have been found to be most corrupt, apathetic and anti-people. And it can also not be denied that the political leadership across the spectrum has let down the people and has time and again proved that it is bankrupt of intent, which is commonly known as “political will”.
True, the protests against the protests, be it Nandigram, Singur, BhattaParsol or against POSCO in Odisha , are a challenge to the theory of Eminent Domain. The prevalent notion of Eminent Domain needs to go and must be replaced with a highly curtailed eminent domain as we, i.e., National Advisory Council Working Group on Land Acquisition, have recommended in our discussion paper on Land Acquisition. It needs to be coupled with all the recommended checks and balances, and then only a just and humane legal regime would come about on land acquisition.
Social Impact assessment regarding the project affected persons should be done prior to declaration of land acquisition as a part of overall rehabilitation and resettlement package and the details regarding that may be found in the discussion paper.
Proposed legislation of two separate laws one for land acquisition and the other for rehabilitation and resettlement must not be done as it would lead to fragmented processes, confusions and delays, thereby adding to the woes of the poor. Therefore a single integrated law is the way out.
No amount of piousness of purpose can justify adoption of violent mode of protest, it is counterproductive. In short , a big no to altruistic violence be it then Nandigram or Maoist violence.
There are many bottlenecks in the way of development which need to be urgently corrected. One cannot argue that the infrastructure and industrial developmentshould be hampered because of ownership issue of the land. Obviously there are changes that are required on the part of the government to make this entire process of land acquisition trouble free. There should be transparency on the part of the government in acquiring land and compensating the landowner. The government should invest time and must ensure that the project for which it wants to acquire land will do a lot of good to the people. The public purpose of the government should be clean and above board, without any malafide intention. The compensation should be adequate and one’s source of livelihood should be restored, if it is being affected.
In fact, On May 24 2011 the Supreme Court of India voiced concern over the unreasonable compensation for the land taken over for a public purpose. While terming the grievances of the affected landowners as legitimate, a vacation Bench of Justices G.S. Singhvi and Chandramouli Kumar Prasad during a hearing on petition filed by a family in Mandoli village, east Delhi, whose land had been acquired by Delhi Transco to build a power sub-station in the run-up to last year’s Commonwealth Games, said, “In a large number of cases, the issue of compensation would not arise if the state paid reasonable compensation,”
The compensation in some cases, as pointed by the Supreme Court, was between Rs 7,000 and Rs 8,000 per square yard, whereas the market rate was Rs 25,000 to Rs 100,000 per square yard. “It is a legitimate grievance of land-owners that you take away their land, but give them inadequate compensation,” Justice Singhvi said.
Then there are concerns of companies who want to have speedy acquisition of lands as the entire process and the controversies result in time lags, escalation of cost and sometimes shelving of the project. The companies move from one process to another following archaicsystem concerning title certificate to land records to foreign exchange to title insurance.
The people who have been affected by acquisition of their land by The Yamuna Expressway Development Authority complain that there is no analysis of the policies of the government. In fact, there is no policy at all. There is total ad hoc-ism. Whatever the civil servants think right, they execute it without any control. There is no transparency, no objectivity in their functioning.
Therefore, any high handed and insensitive governance which does not pay heed to the genuine grievances of its citizens will defeat the purpose of social justice and economic growth. Therefore law needs to be reviewed and loopholes should be corrected to avoid ‘heartburn’, agitation and shelving of projects.
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