Mainstream, VOL LIII No 33 New Delhi August 8, 2015
Land Acquisition Amendment Bill, 2014: U-turn by the BJP
Saturday 8 August 2015
by M.R. Biju
The power to take property from the indivi-dual is rooted in the idea of eminent domain. The doctrine of eminent domain states that the sovereign can do anything if the act of the sovereign involves public interest. The doctrine empowers the sovereign to acquire private land for public use, provided the public nature of the usage can be demonstrated beyond doubt. The doctrine is based on the following two Latin maxims: (1) Salus populi suprema lex (Welfare of the People Is the Paramount Law) and (2) Necessitas publica major est quam (Public Necessity Is Greater Than Private Necessity). In the history of modern India, this doctrine was challenged twice (broadly speaking): once when land reform was initiated and another time when banks were nationalised.
In India, with this introduction of ‘social’ elements to the property rights, a new phase had begun. Justice K. K. Mathew in the Kesavananda Bharati vs State of Kerala had stated this precisely: “Property in consumable goods or means of production worked by their owners (use aspects of property) were justified as necessary condition of a free and purposeful life; but when property gave power not only over things but through things over persons also, it was not justified as it was an instrument of servitude rather than freedom.”
Land acquisition in India refers to the process by which the Union or a State Government in India acquires private land for the purpose of industrialisation, development of infrastruc-tural facilities or urbanisation of the private land, and provides compensation to the affected land owners and their rehabilitation and resettlement.
The Constitution of India originally provided the right to property (which includes land) under Articles 19 and 31. Article 19 guaranteed that all citizens have the right to acquire, hold and dispose of property. Article 31 stated that “no person shall be deprived of his property save by authority of law”. It also indicated that compensation would be paid to a person whose property has been taken for public purposes (often subject to wide range of meaning). The Forty-Fourth Amendment of 1978 deleted the right to property from the list of fundamental rights with an introduction of a new provision, Article 300-A, which provided that “no person shall be deprived of his property save by authority of law”. (Constitution 44th Amend-ment, w.e.f. 10.6.1979) The amendment ensured that the right to property is no more a fundamental right but rather a constitutional/legal right/as a statutory right and in the event of breach, the remedy available to an aggrieved person is through the High Court under Article 226 of the Indian Constitution and not the Supreme Court under Article 32 of the Constitution. The state must pay compensation at the market value for such land, building or structure acquired. Inserted by the Constitution, (Seventeenth Amendment) Act, 1964, the same can be found in the earlier rulings when property right was a fundamental right (such as 1954 AIR 170, 1954 SCR 558, which propounded that the word “Compensation” deployed in Article 31(2) implied full compen-sation, that is, the market value of the property at the time of the acquisition. The Legislature must “ensure that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of”. Elsewhere, Justice, Reddy, O. Chinnappa ruled (State of Maharashtra vs Chandrabhan Tale on July 7, 1983) that the fundamental right to property has been abolished because of its incompatibility with the goals of “justice” social, economic and political and “equality of status and of opportunity” and with the establishment of “a socialist democratic republic, as contemplated by the Constitution. There is no reason why a new concept of property should be introduced in the place of the old so as to bring in its wake the vestiges of the doctrine of laissez faire and create, in the name of efficiency, a new oligarchy. Efficiency has many facets and one is yet to discover an infallible test of efficiency to suit the “widely differing needs of a developing society such as ours”. [1983 AIR 803, 1983 SCR (3) 327]
Land acquisition in India is governed by the Right to Fair Compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act, 2013 and which came into force from January 1, 2014. Till 2013, land acquisition in India was governed by the Land Acquisition Act of 1894. On December 31, 2014, the President of India promulgated an ordinance with an official mandate to “meet the twin objectives of farmer welfare; along with expeditiously meeting the strategic and developmental needs of the country”. An amendment Bill was then introduced in Parliament to endorse the Ordinance. The Lok Sabha passed the Bill but the same is still lying for passage by the Rajya Sabha. On May 30, 2015, the President of India promulgated the amendment Ordinance for the third time. The Union Government of India has also made and notified the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 under the Act to regulate the procedure. The land acquisition in Jammu and Kashmir is governed by the Jammu and Kashmir Land Acquisition Act, 1934.
Purpose of the Legislation
As per the legislation, the Union or State Government can acquire lands for its own use, hold and control, including for public sector undertakings and for “public purpose”, and shall include the following purposes:
• for strategic purposes relating to naval, military, air force, and armed forces of the Union, including Central paramilitary forces or any work vital to national security or defence of India or State Police, safety of the people;
• for infrastructure projects as defined under the Act;
• project for project-affected families;
• project for housing for such income groups, as may be specified from time to time by the appropriate government;
• project for planned development or the improvement of village sites or any site in the urban areas or provision of land for residential purposes for the weaker sections in rural and urban areas;
• project for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by the government, any local authority or a corporation owned or controlled by the state.
The land can be acquired for private bodies for certain purposes:
• For public private partnership projects, where the ownership of the land continues to vest with the government, for public purpose as defined in the Act; for private companies for public purpose.
Proposed Amendments by Modi Government
The current Narendra Modi-led National Demo-cratic Alliance (India) Government-driven Land Acquisition Amendment Bill in the Lok Sabha on March 10, 2015 has seen a tough resistance from key parties that have called the proposed amendments anti-farmer and anti-poor. The proposed amendments remove requirements for approval from farmers to proceed with land acquisition under five broad categories of projects. While the Bill was passed in the Lok Sabha, it still needs approval from the Upper House, where the current government does not have a majority, for the proposed amendments to become effective.
The following are the main disputation points:
• The Right to Fair Compensation and Trans-parency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 defines ‘consent’ clause as “land can only be acquired with approval of the 70 per cent of the land owners for PPP projects and 80 per cent for the private entities. But the proposed amendments by the Narendra Modi Government remove consent clause for industrial corridors, Public Private Partnership projects, rural infrastructure, affordable housing and defence project.
• The Right to Fair Compensation and Trans-parency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 says the land unutilised for five years should be returned to the owner, but the amendment proposed by the NDA Government intends to change it to five years or any period specified at the time of setting up the project.
• While the the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 allows private companies to acquire land, the proposed amendment allows any private entity to acquire land.
• According to the new amendment, if any government official conducts any wrongdoing he or she cannot be prosecuted without prior sanction from the government.
• The Right to Fair Compensation and Trans-parency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 mandated social assessment before land acquisition but the NDA Government’s proposed Bill does away with this requirement.
U-Turn by the BJP on Land Bill,
In a climb-down, the BJP-led government has agreed to bring back the key provisions of the UPA’s land law including the ones on “consent cause” and “social impact” and other controversial amendments brought by the government in December 2014 through an Ordinance. Eleven members in the Joint Committee of Parliament on the Land Bill on August 3, 2015 moved amend-ments seeking to bring back the social impact assessment and consent clauses.
With the BJP retracting from its previous position, there is likelihood that the panel will come out with a consent report soon. Six of the amendments were dismissed on which there was a consensus. Out of the total 15 amendments in the NDA Bill, nine were substantial in nature that have been opposed by the Congress and other Opposition parties. Out of these nine, six (including the provisions dealing with the consent clause, social impact assessment, replacing the term private company with private entity) were discussed and a consensus has emerged on them.
The consequences of land acquisition in India are manifold. The empirical and theoretical studies on displacement through the acquisition of land by the government for development projects have so far focussed on the direct and immediate adverse consequences of land acquisition. Most of the analytical as well as descriptive accounts of the immediate conse-quences of land acquisition for development projects draw heavily from Michael Cernea’s ‘impoverishment risk model’, which broadly enumerated eight ‘risks’ or ‘dimensions’ of development-induced displacement. These eight risks are very much direct and basic in nature; these are: (i) landlessness, (ii) joblessness, (iii) marginalisation, (iv) loss of access to common property resources, (v) increased morbidity and mortality, (vi) food insecurity, (vii) homelessness, and (viii) social disarticulation.
But apart from these direct and immediate effects of land acquisition there are more subtle and indirect effects of this coercive and centralised legal procedure, which have a bearing on various decentralised and partici-patory democratic processes, and institutions of the state power. Land reforms and the Panchayati Raj institutions are the two most important areas, that are being vitiated by land acquisition.
Of all the States of India, the consequences and controversies around land acquisition in West Bengal has recently gained a lot of national and international attention. The peasant resistances against government land exprop-riation in Singur and Nandigram has finally led to the fall of the Communist Party-Marxist-led government in West Bengal, which ruled the State through democratic elections for 34 years. The Communist Party-Marxist-led Left Front Government of West Bengal under the economic liberalisation policy adopted by the Central/Union Government of the country shifted from its pro-farmer policy and took to the capitalist path of industrial development, which at the micro-level endangered the food security of the small and marginal farmers as well as sharecroppers who formed the vote-bank of the Left Front Government of West Bengal. Thus the process of land acquisition in India has proven unpopular with the citizenry. The amount reimbursed is fairly low with regard to the current index of prices prevailing in the economy. Furthermore, due to the low level of human capital of the displaced people, they often fail to find adequate employment.
1. “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013”, Law Street, The Gazette of India, September 26, 2013. Retrieved June 2, 2015.
2. “Land Acquisition Ordinance re-promulgated as Amendment Bill lies with Joint Parl Committee”, Law Street, June 1, 2015. Retrieved June 1, 2015.
4. “Research Foundation for Governance in India” (PDF), Research Foundation for Governance in India.
5. Bhat, P. I. (2004), Fundamental Rights: A Study of their Interrelationships, Kolkata: Eastern Law House.
6. Tripathi, P.K. (1980), “Right of Property After 44th Amendment Better Prosecuted Than Ever Before”, Air Journal (51).
7. Wikipedia the free encyclopedia.
8. Chakravorty, Sanjoy (2013), The Price of Land: Acquisition, Conflict, Consequence, New Delhi: Oxford University Press.
Dr M.R. Biju is an Associate Professor, Post Graduate and Research, Department of Political Science, Sree Narayana College, Kollam (Kerala). He is the Director, Asian Institute of Development Research and Editor, South Asian Journal of Socio-Political Studies (SAJOSPS). He can be contacted at e-mail: firstname.lastname@example.org