Jairam Ramesh, the minister in the UPA-2
government who steered the new law, while admitting that such a law is
indispensable in the modern world, still says that the way it has been applied
over the years has “served to make acquisition a cannibalistic and inhuman
process” (Ramesh & Khan, 2015, p.4). It is therefore necessary that we
understand the grounds of this indictment and the perceived remedy in the 2013
Act.
Deficiencies perceived in the old LA Act
Ramesh & Khan (op. cit., p.7 et seq.)
cites some of these perceived defects in the 1894 law (as amended):
1) Lack of distinction between acquisition for a State purpose and for
a private enterprise (the words “or for a Company” were inserted in Sec.4 by
the 1984 amendment). Of course, it was noted above that private companies were
included only to the extent that they were undertaking work that is likely to
prove useful to the public, but according to the authors, a liberal
interpretation led to the opening the “floodgates” (quote from the
Parliamentary Committee report, Ramesh & Khan, op. cit.).
2) Lack of attention to livelihoods and rehabilitation of persons
displaced from their land by such compulsory acquisition (Ramesh & Khan,
p.9, quoting from a court judgement).
3) Time lapse from notification
to declaration under Sec.6 was reduced from 3 years to 1 year in the 1984
amendment, and award to subsequently issued within 2 years after Sec. 6 (Ramesh & Khan, p.10), failing which the
acquisition proposal would be deemed to have lapsed.
The new (LARR) legislation, 2013
The previous government (known as the UPA-2
from the label United Progressive Alliance adopted for the second term of the
coalition of parties under the umbrella of the Indian National Congress) was
marked by a vigorous championing of rights-based legislation, and therefore the
amendment to the Land Acquisition Act also came to be couched in the language
of enforceable rights: the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act of 2013, which
is popularly called the LARR act or bill. Instead of
tinkering with or modifying the erstwhile LAA, the LARR act should be seen as a
completely different piece of legislation. The important features that make
this such a departure from the past are as follows (see Ramesh & Khan,
p.11):
1) It addresses compensation for acquisition of property AND the
consequences of displacement, meaning rehabilitation and resettlement for
displaced families.
2) Much reduced discretion to the authorities (Collector etc.).
3) Fairer compensation.
4) “Consensual acquisition for a clear public purpose” (ibid.).
5) An “effective appellate mechanism” (ibid.).
Briefly, the new Act (LARR, 2013) seeks to
achieve these by the following mechanisms and institutions:
1) Rehabilitation and Resettlement (which
was entirely lacking in the old LAA) has been mandated strongly: not just for
the land losers, but for all others in the locality that would have been pursuing
their vocations in myriad ways. One of the ways in which attention is sought to
be focused on these issues is the mandated Social Impact Assessments, which
contain a long list of matters to be investigated and costed.
2) District Collectors (no doubt subject to pressure from around and
above) had “almost unbridled authority” (op. cit., p.13) to rule on what is a
‘public purpose’, but this has been more narrowly defined now. Similarly there
is less discretion on rates of compensation, taking possession, or calling on
‘urgency’ to do away with due process.
3) Because land purchasers (and sellers!) under-report the
consideration in cases of actual transactions,
the “market-value” would capture only a fraction if the authorities went
by the recorded and registered land deals. Of course, the Collector cannot
avoid doing this; so, recognizing the reality, LARR 2013 provides for
compensation at a multiple of the so-called market-value. This formula also
“completely removed the discretion of authorities” (ibid.).
4) There has to be a consent from at least 70% of the “affected
families” (in the case of public private partnership projects) to 80% (in the
case of acquisition for a private company); interestingly, any such expression
of consent is not required “if the Government is acquiring lands for its own,
use, hold and control” (sic., op.
cit., p.28). The other innovation is that the ‘urgency’ clause restricted to
national defense and natural disasters. “The definition of public purpose has
been circumscribed” (op. cit., p.12): this is one of the matters that the
Social Impact Assessment is supposed to address, “…whether the proposed
acquisition serves public purpose” (op. cit., p.16, 17), and the affected
persons are expected to contribute decisively to this analysis (p.18). The SIA
will be examined by an Expert Group and then decision taken by the authority
concerned.
It is not feasible to go into all the
details here, but one other facet can be taken up: the understanding of what is
a public purpose. Ramesh & Khan (2015) say that it has neither been defined in the older law, nor have
courts chosen to circumscribe it (op. cit., p.23). The resolution of this was
to reference a circular of the Finance Ministry (dated 27 March 2012) which had
“laid out what in the eyes of the Government constituted ‘infrastructure’ “
(p.24). The outcome is a long list (Ramesh & Khan, p.25-26) covering items
like national defence and security, infrastructure, agriculture, industry, and
so on. The question really then becomes, what is not included in the list that should have found a place. Keen
analysts will no doubt be able to
suggest items, but it appears on a cursory look that the one significant
subject that is omitted would be the environment and biodiversity conservation.
Perhaps it was felt that private land would not need to b acquired for these
(belying the US experience, for one), or that they were well served by other
laws like the Environmental Protection Act, Indian Forest Act, Wildlife
Preservation Act, and the Forest Conservation Act.
The other important subject is that of Rehabilitation
and Resettlement, R&R. There are already examples of national and
state-level R&R policies or laws, as well as sector-level policies and
practices followed by concerned industries like Coal India Ltd or the NTPC
(Ramesh & Khan, p.63), and the best practices have reportedly been put
together in the LARR act, and these components would be especially important
for those who were not the primary landowners but whose livelihoods would be
affected. The R&R part of the law is sought to be made effective by
requiring its completion before
possession is taken by the acquiring agency.
Another point to be noted is the clauses
concerning retrospective application of LARR 2013: cases where final award had
already been made under LAA 1894 would not be reopened, but in other cases
where proceedings were still on would have to be completed under the new act,
as would cases where a majority of persons had not yet received or accepted the
compensation under LAA 1894. But it was also recognised that provision would
have to be made for action taken under certain other laws; such laws would be
exempted from the onerous conditions of LARR 2013, “at least for the time
being” (op. cit., p.121). There is a baker’s dozen of such exempted laws listed
in Schedule IV of the act, including the Atomic Energy Act 1962 and the Coal
Bearing Areas Acquisition & Development Act 1957. However, it is required
that all these acts would also be brought in consonance with LARR 2013 in respect
of compensation and R&R within a year, that is by 31 December 2014. This
was sought to be done, ironically enough, by the Amendment Bill 2014, which was
issued as an Ordnance by the present NDA government. (To be taken up in the next post)
References
Ramesh, Jairam and Muhammad Ali Khan. 2015.
Legislating for Justice. The Making of
the 2013 Land Acquisition Law. Oxford
University Press, New Delhi
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