Friday, January 16, 2015

When amendment amounts to nullification / RAMASWAMY R. IYER

This article will not go into the question of the propriety of the ordinance route to legislation in this case, but will try to present a broad-brush picture of what the ordinance does to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, hereafter LARR Act 2013.
The general industry view, accepted by the present government, is that the LARR Act 2013 was a radical and draconian law which will bring industrial development to a halt. That view led to the conclusion that the Act needed to be urgently amended drastically. It is therefore necessary to take a brief look at the history of the Act.
Attempt at fair resolution
The inter-ministerial debate on a national displacement/rehabilitation policy and on the related issue of a need to overhaul the colonial Land Acquisition Act 1894 began in the 1980s and continued over nearly three decades under successive governments. In parallel, there were conferences and debates in civil society too. The attempt to find a generally acceptable compromise which would reconcile the conflicting interests of industry and farmers/landowners continued intermittently. Eventually this resulted in the LARR Act 2013. This was generally considered a well-meant attempt at a fair resolution of a difficult and almost intractable conflict, though it continued to be criticised by both sides to the conflict. The point to note is that the LARR Act 2013 was not a hasty doctrinaire, ill-considered piece of legislation, but the final outcome of almost three decades of debate and consultation within government, among political parties and between state and civil society. The Bharatiya Janata Party (National Democratic Alliance) was a party to the passing of the 2013 Act. Barely a year later, with little experience of its working, that Act is now regarded as wholly retrograde, unacceptable and in need of root-and-branch “reform”. This arises out of industry’s impatient desire for the easy acquisition of land for its projects, and the centrality of industry in the present government’s view of “development”.
It is not being argued that the concerns expressed by industry and by commentators sympathetic to it should not be considered, or that the government’s desire to accelerate industrial projects is illegitimate. However, given those concerns, the government could have reopened the debate, held wide-ranging consultations all over the country, and tried to arrive at a fresh compromise between conflicting interests. Instead, it has wholly accepted one perception of the conflict, and sought to undo the compromise embodied in the 2013 Act without a review. Apart from the merits of the ordinance, this is an authoritarian, partisan and undemocratic procedure.
Losing a way of life
It has been argued that development necessarily entails the transfer of land from agriculture to industry, but this is something that happens over a period of time. It does not follow that this must be actively facilitated, supported and actually brought about by the state using its sovereign powers. It is curious that those who argue for reducing the role of the state and “deregulating” industry want the state to take land away from farmers and give it to industry.
Should the process of diversion of land from agricultural use to industrial use be in fact easy? Should there not be some salutary difficulty here? First, there is the question of food security. The transfer of land from agriculture to other use cannot and should not be prevented, but some consideration of what the unregulated transfer of land away from agriculture implies for the food security of the country seems necessary. LARR 2013 ruled out the acquisition of multi-cropped agricultural land. That provision has been criticised, but it showed a certain concern that was legitimate. That concern has disappeared in the present ordinance.
A second justification for a degree of difficulty in land acquisition is the protection of the interests of the landowner. No doubt the ordinance retains the generous compensation provisions of the 2013 Act, but is it solely a question of money? The acquisition of land means not merely loss of land and homestead, but also loss of livelihoods, loss of a community and cultural continuities, loss of a way of life. This is bound to be a traumatic experience. The Social Impact Assessment (SIA) provisions of the 2013 Act would have brought to notice the wider social and cultural implications of the acquisition of land, but that Act itself had exempted irrigation projects from this requirement, and now SIA has been virtually dropped in the amendment ordinance, considering the very large number of cases to which it will not apply.
The role of the state should surely be not merely to facilitate the availability of land for industry but also to minimise pain to the landowners (who are also citizens), protect their fundamental and human rights and ensure justice to them. Should the state use its sovereign powers only to make things easy for industry? Any such impression, if it gains ground, would unwittingly lend weight to criticisms (doubtless wrong) of the present government as pro-industry and anti-farmer, and as holding “development” to be synonymous with industrial projects.
Acquisition by the state
Let us turn to eminent domain, which means the sovereign right of the state to override private property. In the intermittent debate during the years from the 1980s to 2013, this was a prominent issue. It was felt by many that the continued use of the old colonial Act of 1894 for the acquisition of land was unfortunate, and that there was no case at all for the state to exercise its sovereign power to take over private property and give it to companies in the private sector for “projects” regarded by the state as serving a “public purpose”. While this was not the universal view, there was a strong body of opinion in favour of limiting acquisition by the state for private entities. The 2013 Act met this partially by limiting the acquisition by the state to 20 per cent in the case of a private company and 30 per cent in that of a public-private partnership (PPP) project, if the owners’ consent for the transfer of 80 per cent in the case of the former and 70 per cent in that of the latter had been obtained. This meant that the view of the community as a whole on the transfer of land had a certain weight. This safeguard virtually disappears in the ordinance because it will not apply in most cases. Apart from the virtual dropping of community consent, this change also means the return of the eminent domain of the state in full strength. This again is a non-democratic, authoritarian stance.
By way of a digression it may be added that property rights are presumably sacrosanct in capitalism, but evidently this does not apply to a farmer’s right to his or her land. The property of an industrialist is inviolable, and nationalisation is socialism and therefore anathema; but the acquisition of land from a farmer — which corresponds to nationalisation in the industrial sector — is evidently good capitalism!
One has to ask: after the amendment what is left of the Act? If we consider the huge exemption list (Section 10A introduced by the ordinance), and the concomitant disappearance of the SIA and the 80 per cent/70 per cent consent provision in most cases, it becomes clear that the Act has become purely ornamental. What the ordinance does is not to amend the 2013 Act, but virtually repeal it. Having done so, the ordinance sanctimoniously brings acquisitions under a number of other Acts within the purview of the amended Act and claims much credit for this. The Congress Party says that the coverage of those Acts was already foreseen in the 2013 Act. That response misses the point, which is that there is not much virtue in first rendering the Act toothless and then bringing other Acts within its purview. This is disingenuous, to say the least. One can only hope that the ordinance will be withdrawn or lapse for want of parliamentary support to the needed legislation. Alas, the hope is not very robust.
(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)

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