In 2013, the Congress-led United Progressive Alliance government passed a comprehensive law on the subject of land acquisition, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. This law was hailed as a historic step forward for the variety of safeguards that it contained to prevent forcible acquisition.
Upon being sworn into office in May, the Bharatiya Janata Party-led government quickly began an exercise to discredit the law as inoperable and difficult to implement. This opinion was admittedly founded on consultations with bureaucrats and state ministers but not with the public at large. Thereafter, with the avowed objective of making acquisition easier and spur development, the government introduced an ordinance on December 31 that effectively removed important processes that were intended to act as checks and balances on state power.
This included the removal of consent, the social impact assessment study and a limitation on return of land to affected families. Given the enormous political and social backlash, the government has been unable to convert the ordinance into a statute and has been compelled to re-promulgate it every time it has lapsed, the most recent being the third time on May 31.
In its most recent attempts to find a way around the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, the government is suggesting that states should enact and implement their own laws on the subject. Finance minister Arun Jaitley said on July 15 that “states cannot indefinitely wait for… consensus”, adding that if some of them want to enact their own land laws to spur development the Centre would approve.
The solution seems simple and elegant especially since “acquisition and requisitioning of property” falls within the concurrent list of the seventh schedule to the constitution of India. This means that both legislatures of the central government as well as those of the states can make laws on the subject.
In fact, advocates of this move will be pleased to know that some states will undoubtedly welcome this suggestion. When the law was being drafted, states such as Tamil Nadu, were vocal about how any legislation on land acquisition was an encroachment into the legislative domain of the state governments, since the constitution places land and revenue related matters in the state list. In response, they were reminded that the Land Acquisition Act 1894 was a central legislation and that the central government was vested sufficiently with the authority, under item 47, list III of the seventh schedule, to revisit the colonial legislation by way of repeal.
The debate surrounding the legislative claim on acquisition by both the Centre and states is an old one and unlikely to be settled anytime soon. But even if the central government relinquishes its claim and allows state laws to prevail on the subject of land acquisition there are persistent challenges that states will need to overcome. What seems like a worthwhile alternative is, upon closer scrutiny, disingenuous and inoperable. To be specific, the problems likely to arise are twofold.
Central law prevails
First, if there is a conflict between state and central laws on a subject then the central law prevails. That is known as the “doctrine of repugnancy” and is covered by Article 254 of the constitution. The Supreme Court has been quick to strike down state laws that have directly contradicted or sought to override those of the centre, most recently in March of this year on the subject of universities and academic appointments.
A landmark judgement of the Supreme Court decided in 1979, M Karunanidhi vs Union of India, lays down detailed descriptions and tests for what constitutes repugnancy. It is safe to say that the dilutions proposed, related to consent and social impact assessment, will qualify as ‘repugnant’. This means that states cannot contradict central provisions of the law related to consent and social impact assessment.
Such ‘repugnancies’, arising from contradictions between state and central laws, can be avoided if the central government repeals the 2013 law or amends the provisions that states find difficult to implement. In both cases, the source of the disagreements between the centre and states will be eliminated, so states will not need to legislate their own laws. But that is not what the centre is proposing to do.
In that case, supporters of states’ rights will rightly point out that sub-clause 2 of the same Article 254, which talks about repugnancy, also says that if a state law receives the assent of the president then it will be deemed to be operational in that state regardless of any conflict in provisions. While not impassable, it does require satisfying the president of the need for such repugnancy. Perhaps this is not far-fetched, given that the president has repeatedly given his assent to the ordinance promulgated by the government on the same subject and to dilutions in provisions in the law which he knew were widely unpopular. This is where the next point becomes important.
Safeguard in 2013 law
To turn to the second problem, it was to safeguard against exactly such abuses and attempts by states dissatisfied with the 2013 law that a safeguard was included. While framing the 2013 law, legislators ensured the inclusion of a provision that allows states to enact their own laws provided that these did not reduce the entitlements and benefits provided under the 2013 law. The credit for the inclusion of this clause goes to the Left Parties, who predicted, with some evident prescience, that attempts at dilution would be inevitable.
Therefore, even if the president allows a divergent state law on the subject of land acquisition to stand, it will still be in violation of this section if it dilutes the 2013 law. How judicial opinion will evolve around this cannot be predicted. Yet if an educated guess were to be made, based on the multitude of land acquisition cases heard and decided by the high courts and the Supreme Court over the past year and a half, then one can safely suggest that any such attempts will be struck down.
In sum, an attempt by a state seeking to reduce the safeguards laid down for acquiring land is prima facie without constitutional sanction and requires special presidential assent to confer it with legitimacy. It is also unlikely to withstand judicial scrutiny, given that the 2013 law specifically prohibits such an exercise. But that is not the end of why such an exercise is inadvisable.
Interconnected provisions
States fail to realise that any endeavour to make the law more amenable to implementation would result in rewriting the entire law. The 2013 law is interconnected in such a way so as to prevent zealous governments from severing important parts. Rehabilitation and resettlement benefits are directly linked to the performance of the social impact assessment, which helps identify the beneficiaries. Compensation, too, is linked to consent as the process involves achieving a consensus on compensation as well. This is why the central government’s attempt to strip the law of these safeguards is hurried, clumsy and reflects a complete non-application of administrative thought.
Also states, except Karnataka, Haryana and Gujarat, have alarmingly poor track records when it comes to basic land management. That is one reason why the 2013 law also lays down detailed exercises such as land surveys and title censuses to compensate for inadequacies in state statutes, of which compliance is weak.
When poorly defined acquisition laws are coupled with poor implementation of laws related to revenue records, then private ownership of property becomes an incredibly risky proposition. Ironically, this deters investment, which in turn hinders development which was, if we recall, the premise for promoting land acquisition.
The government would do well to think the ramifications through before it starts throwing its weight behind poorly drafted state laws.
Muhammad Khan, a lawyer, was the officer on special duty to former environment and rural development minister and current member of parliament Jairam Ramesh, with whom he has co-authored ‘Legislating for Justice: The Making of the 2013 Land Acquisition Law.’
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Upon being sworn into office in May, the Bharatiya Janata Party-led government quickly began an exercise to discredit the law as inoperable and difficult to implement. This opinion was admittedly founded on consultations with bureaucrats and state ministers but not with the public at large. Thereafter, with the avowed objective of making acquisition easier and spur development, the government introduced an ordinance on December 31 that effectively removed important processes that were intended to act as checks and balances on state power.
This included the removal of consent, the social impact assessment study and a limitation on return of land to affected families. Given the enormous political and social backlash, the government has been unable to convert the ordinance into a statute and has been compelled to re-promulgate it every time it has lapsed, the most recent being the third time on May 31.
In its most recent attempts to find a way around the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, the government is suggesting that states should enact and implement their own laws on the subject. Finance minister Arun Jaitley said on July 15 that “states cannot indefinitely wait for… consensus”, adding that if some of them want to enact their own land laws to spur development the Centre would approve.
The solution seems simple and elegant especially since “acquisition and requisitioning of property” falls within the concurrent list of the seventh schedule to the constitution of India. This means that both legislatures of the central government as well as those of the states can make laws on the subject.
In fact, advocates of this move will be pleased to know that some states will undoubtedly welcome this suggestion. When the law was being drafted, states such as Tamil Nadu, were vocal about how any legislation on land acquisition was an encroachment into the legislative domain of the state governments, since the constitution places land and revenue related matters in the state list. In response, they were reminded that the Land Acquisition Act 1894 was a central legislation and that the central government was vested sufficiently with the authority, under item 47, list III of the seventh schedule, to revisit the colonial legislation by way of repeal.
The debate surrounding the legislative claim on acquisition by both the Centre and states is an old one and unlikely to be settled anytime soon. But even if the central government relinquishes its claim and allows state laws to prevail on the subject of land acquisition there are persistent challenges that states will need to overcome. What seems like a worthwhile alternative is, upon closer scrutiny, disingenuous and inoperable. To be specific, the problems likely to arise are twofold.
Central law prevails
First, if there is a conflict between state and central laws on a subject then the central law prevails. That is known as the “doctrine of repugnancy” and is covered by Article 254 of the constitution. The Supreme Court has been quick to strike down state laws that have directly contradicted or sought to override those of the centre, most recently in March of this year on the subject of universities and academic appointments.
A landmark judgement of the Supreme Court decided in 1979, M Karunanidhi vs Union of India, lays down detailed descriptions and tests for what constitutes repugnancy. It is safe to say that the dilutions proposed, related to consent and social impact assessment, will qualify as ‘repugnant’. This means that states cannot contradict central provisions of the law related to consent and social impact assessment.
Such ‘repugnancies’, arising from contradictions between state and central laws, can be avoided if the central government repeals the 2013 law or amends the provisions that states find difficult to implement. In both cases, the source of the disagreements between the centre and states will be eliminated, so states will not need to legislate their own laws. But that is not what the centre is proposing to do.
In that case, supporters of states’ rights will rightly point out that sub-clause 2 of the same Article 254, which talks about repugnancy, also says that if a state law receives the assent of the president then it will be deemed to be operational in that state regardless of any conflict in provisions. While not impassable, it does require satisfying the president of the need for such repugnancy. Perhaps this is not far-fetched, given that the president has repeatedly given his assent to the ordinance promulgated by the government on the same subject and to dilutions in provisions in the law which he knew were widely unpopular. This is where the next point becomes important.
Safeguard in 2013 law
To turn to the second problem, it was to safeguard against exactly such abuses and attempts by states dissatisfied with the 2013 law that a safeguard was included. While framing the 2013 law, legislators ensured the inclusion of a provision that allows states to enact their own laws provided that these did not reduce the entitlements and benefits provided under the 2013 law. The credit for the inclusion of this clause goes to the Left Parties, who predicted, with some evident prescience, that attempts at dilution would be inevitable.
Therefore, even if the president allows a divergent state law on the subject of land acquisition to stand, it will still be in violation of this section if it dilutes the 2013 law. How judicial opinion will evolve around this cannot be predicted. Yet if an educated guess were to be made, based on the multitude of land acquisition cases heard and decided by the high courts and the Supreme Court over the past year and a half, then one can safely suggest that any such attempts will be struck down.
In sum, an attempt by a state seeking to reduce the safeguards laid down for acquiring land is prima facie without constitutional sanction and requires special presidential assent to confer it with legitimacy. It is also unlikely to withstand judicial scrutiny, given that the 2013 law specifically prohibits such an exercise. But that is not the end of why such an exercise is inadvisable.
Interconnected provisions
States fail to realise that any endeavour to make the law more amenable to implementation would result in rewriting the entire law. The 2013 law is interconnected in such a way so as to prevent zealous governments from severing important parts. Rehabilitation and resettlement benefits are directly linked to the performance of the social impact assessment, which helps identify the beneficiaries. Compensation, too, is linked to consent as the process involves achieving a consensus on compensation as well. This is why the central government’s attempt to strip the law of these safeguards is hurried, clumsy and reflects a complete non-application of administrative thought.
Also states, except Karnataka, Haryana and Gujarat, have alarmingly poor track records when it comes to basic land management. That is one reason why the 2013 law also lays down detailed exercises such as land surveys and title censuses to compensate for inadequacies in state statutes, of which compliance is weak.
When poorly defined acquisition laws are coupled with poor implementation of laws related to revenue records, then private ownership of property becomes an incredibly risky proposition. Ironically, this deters investment, which in turn hinders development which was, if we recall, the premise for promoting land acquisition.
The government would do well to think the ramifications through before it starts throwing its weight behind poorly drafted state laws.
Muhammad Khan, a lawyer, was the officer on special duty to former environment and rural development minister and current member of parliament Jairam Ramesh, with whom he has co-authored ‘Legislating for Justice: The Making of the 2013 Land Acquisition Law.’