January 20, 2022

Land Acquisition: From Eminent Domain to Eminent Governance

Land acquisition is governed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013(in force from January 1, 2014). The Land Acquisition was being governed by an Act of 1894 before this act of 2013 enacted. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement(Second Amendment) Bill, 2015 was introduced in the Lok Sabha on May 11, 2015. The Bill amends the act of 2013 and will be deemed to have come into effect from December 31, 2014.
Before we discuss the pros and cons of the bill introduced in the Parliament by the present government at the centre. Let me have your look at the provisions which governed the right of an individual concerning the ownership of land and the laws which give the State the power to acquire land from its owner. Former are the rights enshrined in our Constitution and later are the acts enacted by the Colonial Government and very much later amended by the Indian Government. The Constitution originally provided for the right to property(Articles 19 and 31). Article 19 guaranteed us to ‘acquire, hold and dispose of property’. Article 31 provided that “No person shall be deprived of his property save by authority of law.” and that the compensation would be paid if acquired for public purposes. The power to take private property for public use by a state constituted the EMINENT DOMAIN. The 44th amendment act of 1978 changed this position and the right to property is no longer a fundamental right, though it is still a constitutional right under article 300-A. Now The aggrieved person has no right to move the court under Article 32. Though some may argue against this amendment but I would say it was a welcome change. But my agreement to this amendment ends here only because the purpose to be served by this amendment was intended to be a public but in almost all cases interests served were private. Though it remained a constitutional right yet the laws enacted by the governments prevailed as the public purpose prevails over an individual. Now We may talk in brief about the major acts governing the land acquisition in India. Under the 1894 Act, consent of landowners was not required for land acquisition.Although there was no provision in 1894 Act of acquiring land for a private company as public purpose. This non explicity has been misused by the state governments(as the honble. Supreme Court has ruled that in all cases where compensation to the landowners is paid by the government, the public purpose clause stands invoked).The 2013 Act changed this so as to consent of 80% landowners was required for private projects and 70% of landowners for public-private projects. The consent of landowners was incorporated in the 2013 Act to provide a safeguard against the misuse of the state’s power of acquiring land for private interests disguised as public purposes. While drafting the bill that became an act in 2013 the following objectives were kept in mind which were recommended by NAC Which I am quoting as ditto.- 1. To prevent or minimise forced displacement of people by promoting non-displacing or least displacing alternatives; or genuinely voluntary transfer of land, for meeting development objectives of the nation. 2. To minimise the direct and indirect adverse human and social impacts of coercive land acquisition, and land use changes due to development and commercial projects, activities or policy changes (on land, shelter and livelihood access). And last but not the least- 3. In so far as displacement is essential, to ensure that acquiring authorities follow participatory, transparent and democratic processes, with prior informed consent of affected persons, to ensure that. These objectives resulted in a provision of Social Impact Assessment for large projects requiring R&R. The act of 1894 left the decision on purpose of a project entirely at the discretion of the executive but the 2013 act attempted to correct this by introducing the requirement of a Social Impact Assessment (SIA). Another major thing done by this act was redifining the Project Affected Persons (PAPs) a those who lose not only land or assets but also the livelihood opportunities. These provisions of the act secured the most vulnerable segments of those adversely affected by land acquisition. Now we may have a look at the changes which are proposed by the Amendment bill 2015-
The following five types of projects have been exempted from certain provisions of the Act: (i)defence; (ii) rural infrastructure; (iii) affordable housing;(iv) industrial corridors (set up by the government); and(v)infrastructure projects. And the provisions which now become non applicable are: (i) the consent of 80% of land owners when land is acquired for a private project and the consent of 70% of land owners when land is acquired for the PPP project; (ii)Social Impact Assessment; and (iii) limits on acquiring agricultural and multi-cropped land. Now the usual apprehension is that By creating these five broad categories and exempting them from the requirement of consent of landowners, the Amendment Bill has becomes regressive and imitates the one of 1894. Another provision which needs to be mentioned is that if land remains unutilised for five years, it is returned to the original owners but the period will be the later of: (i) five years; or (ii) any period specified at the time of setting up the project.

Now in a major daily suggested amendments have been justified by giving the following explanation which is comprehensive though yet not inclusive. It said that, “The price is not simply the money paid for acquisition and rehabilitation and resettlement. That is just one component of price, its direct component. There is a second component, an indirect price. This includes (a) transaction costs, which include the cost of doing social impact assessments, conducting referenda, running the massive new multilayered acquisition bureaucracy, etc. and (b) opportunity costs, which arise from the time taken to conclude an acquisition β€” doing social impact assessments, conducting referenda, etc. β€” time during which capital is not invested, infrastructure is not created, and production does not take place. If all the steps defined in LARR were accomplished in the allotted time, each acquisition would require about five years; in practice, it could take a lot longer.” It further adds that this proposed Amendment tries to split the direct and indirect prices for acquisition and keeps the direct prices (compensated) unchanged and attacks the indirect prices(bore by investor). For the land-acquirer, the ordinance tries to lessen, as much as it can, the indirect price of acquisition, the transaction and opportunity costs that have been listed. This it does by weakening or removing the requirements for social impact assessments and referendum. For the land-loser, the ordinance not only retains all forms of compensation and resettlement and rehabilitation, but also grows the number of land-losers eligible for these lucrative pay-offs by bringing into the ambit of LARR, 13 categories of acquisition that had been excluded earlier.

But this economic analysis of the amendment serves no purpose. Not with any development are attached only the material gains but are also attached some ethical values, environmental obligations and contentment other than financial ones. We can not weigh any act of the State in the name of public purpose just by looking at the gains accrued to both the parties but we must look at the losses incurred not only to both the parties but also the habitat of the parties. The provision of Social Impact Assessment must not done away with unless there are net losses to the Investors and I know which will never be the case. Just because conducting social impact assessment studies takes time it does not necessitate its exemption in certain cases and neither it validates the argument that development might get delayed. The problem is not inherent in the nature of the assessment but in the nature of the functioning of the system. Try to evolve the implementing machinery rather than trying to perfect the already evolved law. As was the case in 1894 act where it was the sole discretion of executive authority to decide whether the purpose is serving public or not, and constituted the Eminent Domain, similarly this amendment may, I fear, constitute the case of Eminent Governance where the bureaucracy becomes the sole deciding body as the provisions of Consent and SIA are not applicable. As said by an author in a major daily that we may choose to ignore the predictable noises made by usual suspects yet I would say we may not afford to ignore the voices of distressed individuals who are at the receiving ends. Before I conclude I would say that yes the development must be a priority for a developing country like ours yet we may choose this development to be sustainable and inclusive and here lies the test of real democracy that in the process of development every citizen has his say. And we may infer our guiding principles from these lines in a ruling of The Supreme Court: β€œAny attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people, especially of the common people, defeats the very concept of public purpose.”

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