We conclude with a brief comment on the
practical aspects of the LARR Act 2013, and the options open before the NDA
government and the development protagonists who feel that the requirements are
so onerous as to effectively put a stop to any new projects.
The underlying philosophy of LARR 2013 is
that the state and the acquirer of private property has a moral obligation to
look after the affected persons and communities in the long term, and this has
now been made a legal obligation as well. Previously, acquisition was seen as a
one-time operation, and once the compensation had been awarded through the due
process, good or bad, the transaction was considered a closed deal, and no
further obligations resided on the government’s side. The drafters of LARR 2013
apparently felt that the State has a much wider responsibility in ensuring that
the project did not leave the affected persons worse off in the long term. In
this sense, we may characterize LARR 2013 as a legal form of the strong egalitarian criterion in welfare
economics, where a proposed public project is to be passed only if it can
generate sufficient surpluses to not only compensate the losers fully in principle, but also has the obligation
to effect this in practice. Welfare
economics offers a choice of measures to arrive at a just valuation, such as
the different consumers’ surplus concepts, and the willingness to pay (to
obtain benefits or to avoid losses), and willingness to accept (compensation
for losses or forgone opportunities) concepts.
One of the weaknesses of the LARR edifice
my well be the absence of a dedicated cadre to carry out the onerous
obligations it casts on the administration, starting from the social impact
assessment (SIA), and including the subsequent R&R etc. The SIA itself
could be made to say anything, as it will require the investigator to draw up
scenarios or predictions of what will happen with and without the project. This
will be likely to be based on personal assumptions rather than any dependable
models. The implementation of the R&R plans would, as already mentioned, be
weak in the absence of a dedicated cadre on the ground (a weakness shared with
the FRA 2006).
What does LARR 2013 portend in practical
terms? Because of the increased number and complexity of processes and the many
stages at which public confrontation between project proponents and the public
is envisaged, it is likely that acquisition proceedings on the whole will be
more protracted, will cost more, and will be more contested and fractious. This
may force project proponents, especially in the joint and private sectors, to
think twice before embarking on such ventures. This will probably put much more
demands on the public sector undertakings and government departments to take up
development projects, with private firms receding to the background as service
providers rather than proponents. To some extent, this will take us back to the
pre-liberalisation days, with its drawbacks of lesser choice of products,
perhaps poorer quality of finish and packaging, poorer responsiveness to
customer feedback, and perhaps not quite up-to-date technology, but the
benefits would be in the provision of a minimum level of services to the public
at lower prices than the private sector is wont to charge.
A more serious effect of the LARR 2013 may
be the withdrawal of the public sector machinery itself from the sphere of
development projects. This is because of the greater personal responsibility of
officials up and down the line for the implementation of all the stages and the
safeguards. Previously, public servants and government officials were shielded
to a large extent by the immunity clause from prosecution for acts done in the
course of duty, and the requirement of government sanction for any such
prosecution. That immunity now seems to have been withdrawn, partly by court
judgements that the government officer no longer has the status of a public servant
after retirement, so that government sanction is no longer needed for prosecution;
and partly by new laws like the LARR 2013 that make the public official
primarily responsible for fulfilling the expectations of the public in respect
of the rights conferred by the UPA’s rights-based legislation (Right to
Information, Right to Food, Recognition of Forest Rights, Right to Education,
Right to Services, Right to Employment, and now the right to fair compensation
and R&R under the LARR 2013). The NDA amendment (ordnance) did make it
necessary to obtain government permission for prosecution of officials, but
this has been vehemently opposed as a dilution of the act (Ramesh & Khan,
p.127).
The fact is that the government machinery
is likely to simply not be in a position to provide the type of continuing
support to livelihoods and to R&R envisaged in the LARR (and before that,
in the R&R policy declarations of various government and entities). In fact
Sanjoy Chakravorty, who has written a definitive book on the subject (2013),
goes so far as to characterize this act as “ unworkable” (Chakravorty, 2015). If
the government could achieve all the welfare measures contemplated for all the
‘affected persons’ in addition to the ‘oustees’ of development projects, this could
as well have been achieved through all these decades of developmental spending
in independent India. The fact is that people do not become better-off directly
by such spending, and the R&R efforts will be sure to fall behind targets,
and projects will get bogged down endlessly in litigation and counter-charges. So
probably the immunity granted as a matter of form to the individual government
employee will have to be restored for ‘laches’ or failure to ensure enjoyment
of rights by the people. While the enthusiasm and idealistic intents of the law-drafters like Ramesh and Khan can
be lauded, in practical terms these rights are more aspirational than
realistic, and to hold individual bureaucrats responsible for their non-fulfilment
would appear to be too drastic and may even be counter-productive. Too much
scape-goating by watchdog authorities has a dampening effect on the sense of
initiative and risk-taking by the average bureaucrat.
A basic weakness in the legal morality of
LARR is the acquiescence to the general practice of under-reporting land
values, and therefore setting compensation rates at multiples of these bogus
reported market-value. This will make every District Collector a party to what
is strictly a criminal act of misleading or even cheating the state. If and
when people start reporting values closer to the actual money exchanged
(perhaps because transactions are being watched and tracked more closely
through information technology), acquisition will become prohibitively costly,
and moreover may attract adverse comments from audit, and even criminal
proceedings against the officials complicit in such actions. The government departments will, therefore,
tend to avoid running after such wild geese, and will prefer to work within the
resources that they have already garnered in the past, and hesitate to venture
into new expansions.
One positive side-effect of LARR 2013 may
be that leaders of development sectors and individual firms decide to use their
existing resources much more
efficiently. Scores of examples could be envisaged, and we proffer just a few
here. Urban developers, for instance, will find ways of squeezing in more
habitation or office units onto a smaller extent of land, by growing vertically
rather than spreading horizontally. Many companies may be having excessive land
holdings (especially public sector giants and old private companies in sunset
sectors), and will surely minimize their requirements of fresh acquired land in
future. While community consent may not apply to government projects, the
R&R and compensation process requirements would be a disincentive to ask
for too much land, especially if there is some leeway in design to enable the
project to scrape in under the threshold limits for various requirements that
will be fixed by LA Rules or by state governments. One example that comes to
mind is the huge campuses required by ministry guidelines to set up central
universities, which are difficult to administer and look after, and are
immensely inconvenient for their primary clients, the students, who have to
walk up and down a few kilometres to get from one office to another. They will
probably press the education policy-makers to settle for smaller campuses in
future.
A not so happy side-effect may be increased
pressure for providing government wastes and forest land, subject to the
seemingly lesser costs of compensating only for community uses like fuelwood or
grazing, but this will be bad for forest and wildlife conservation.
Another
aspect is that the new types of rights-based legislation, exemplified by LARR
2013, will call for much more detailed operations manuals with copious notes,
legal opinions and flow charts to guide the public official as well as the
non-official professionals who may be involved as members of expert groups, as
assessors and evaluators, and so on. Since each of their actions and decisions
will be up for public scrutiny as well as, inevitably, judicial review in a
large number of cases, these professionals will have to be very clear about the
procedures, methodologies, standards, and so on they are expected to follow and
uphold. Their actions and laches may well subject them to not just being
over-ruled by higher authorities, but also being hauled up for criminal liability
or negligence for failure to do due diligence and so on. As the sphere of
action and discretion of the public official shrinks, we may expect a
corresponding expansion of the role of the expert bodies and the quasi-judicial
authorities and appellate bodies, and of course of the higher courts, as has
happened in the forestry sector. The net result of all this is likely to be an
evolution of Indian polity to a much more contested, litigious and adversarial
form, which seems to be an emulation by the intellectual class of the fashion
of “adversarial legalism” in the USA (Fukuyama, 2014, p.473) and generally in
the liberal democracies of the west. The difference, of course, would be that
in those countries, the state developed before full democracy, so that people
are much more conscious of their responsibilities as citizens, and hence the high costs of transparency and
egalitarian decision modes can be absorbed without crippling damage to the
fundamental capability of the state. In third world democracies like India
A final consideration we would like to
place before the disgruntled industrial sector is that the LARR 2013 probably
calls for a basic change in their approach to resource garnering. What galls
the dispossessed landholders, especially in hitherto predominantly agrarian
tracts, is the windfall gains that the ‘city slicker’ is able to make on their
backs. Even tribal communities, who have repeatedly lost possession of their hard-won
land holdings for trivial debts incurred to preserve their social prestige and honour
in the community, resent their regression to the role of landless labour in their own
homelands (see, for instance, Fuerer-Haimendorf,1979). On the other hand, stories are told every
day in cities like Delhi, of how the lowest staff in the city’s offices were
beneficiaries of the land boom in the capital region; they come to work in
menial positions in their battered Maruti cars from their villages round and
about Delhi, to pass the day, but they are actually sitting on crores of rupees
of bank deposits after selling their land for property development. True or
not, these anecdotes suggest that development proponents, who need land, can
think of including rural landowners in some sort of (sleeping!) partnership.
Suggestions that this is feasible are seen
in the new Andhra Pradesh government’s ‘pooling’ approach to township building
(for instance, see the report in the Economic
Times by Sukumar and Kesireddy, 2015). The original landowners will at
least have a claim on part of the huge capital gains that will accrue when the
developed land is sold on in the distant future, just like any retail
shareholder. There may even come a time when the rural landholders themselves
may develop aspirations to use their resources jointly for different types of
development, designed after their own predilections and their own styles.
The question of the landless project-affected
persons will remain, but here also some stake, some realistic hope in a better
future at least for the younger generation, would have to be built, along with
plans and buildings for the factory or township. It is possible, in this view,
that private entrepreneurs will rapidly realize that there are no more windfall
gains to be made from acquired land alone, and will come round to this partnership
mode of thinking once the unavoidable reality of LARR 2013 and the new
rights-based approach pioneered by the UPA sinks in.
References
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Chakravorty, Sanjoy. 2015. Improving an
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