Not long after coming to power the National Democratic Alliance government made sweeping changes to the land acquisition law of 2013, claiming that the legislation was making land acquisition and economic growth impossible. The claim was brazen in its assumptions because there was no empirical indication to back it. More audacious, however, was the route the government chose to push the changes through: instead of putting the amendments through the parliamentary process, the government pursued the ordinance path.
It is undoubtedly the constitutional right of a government to pass ordinances under certain circumstances when the government cannot wait for Parliament to reconvene. But there was no such reason in this case. This flagrancy of the NDA government has led to stiff opposition from the public and other political parties who have criticised its opportunistic and chameleon-like transformation. When the land acquisition law – or the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – was passed in the Parliament two years ago, all the major political parties had unanimously voted in its favour.
Those who support the ordinance today claim the only change it has brought is the extension of the benefits of the land acquisition legislation to other legislations through which private property can be acquired. This is not true. While extending benefits to 13 other legislations, the ordinance has made big changes to major clauses that determine procedures for acquisition, grievance redress and most importantly to the projects to which its procedures will apply.
It has added a long list of vaguely worded project “types” that are exempt from the consent and impact assessment procedures. These include industrial corridors, infrastructure, affordable housing, rural electrification and defence projects. If a law such as this makes exemptions (besides for public projects), they are bound to be exploited. It is certain that most public-private partnership projects and private projects would seek exemption from assessment procedures by claiming to belong to one of the excluded types. If evidence of this is required, we just need to look at how exemptions played out in environment legislations that determine siting and procedures for grant of environment clearances to infrastructure projects.
Due to the opposition from some of its political allies, the Bharatiya Janata Party-led government has decided to review the clauses in the ordinance and make them more “farmer friendly”. As we wait for the second version to be revealed, here are some crucial aspects related to the government’s justification that need a rethink.
Ideas of Consent and Compensation
The noisy debates on 24/7 news channels and in Parliament fail to make the distinction between two aspects of the land acquisition process – consent and compensation. Many supporters of the ordinance have gone on air to state that this is a good policy because it offers good money to farmers in return for their land, and so farmers are double beneficiaries. They get both compensation and development.
Over and over, the distinction between the two terms is obfuscated. Compensation should be thought of only after due process for acquisition is followed and if farmers or land owners have consented to give up private property. If this distinction is blurred or removed, private property of any kind – not just land but human bodies, creative arts or intellectual property – will all be at risk. It is fascinating that this government has reduced the idea of owner’s consent to a time-consuming burden on its development plans when it is the sanctity of ownership. Without consent, private property has almost no meaning.
Land Owners versus Land Users
The ordinance knocked off the requirement of Social Impact Assessment for the excluded project types. The arguments for this have been that it is a vague exercise, is time-consuming and that if these projects are preordained as ‘public purpose’, why should this be necessary. But Social Impact Assessment is important precisely for protection against the overuse of such arguments by the government.
Under the 2013 legislation, SIA had two useful functions. One, to provide a robust justification of “public purpose” by a project to those from whom it takes away resources. And two, to determine how the project impacts non-owners of the resources. Anyone who understands the rural land economy knows that there are multiple sets of users of land, formal and informal. There are tenant farmers, seasonal farmers and daily wage farm labourers. There are also those who use land for forest produce, grazing, pottery or fishing – mostly without owning it.
The supporters of the ordinance are quick to suggest that land owners are waiting to sell off because farm revenues have been on the decline and that makes it needless to ask any other land dependents for consent. But this ordinance does not even acknowledge the need for some process by which land users will be identified and compensated. How can we determine who are the dependents, to what extent is their dependence and how should they be supported if the land is acquired?
These dependent groups are not encroachers squatting on lands beyond their ownership. These are composed of the poorest social groups such as the landless dalits, tribals and widowed, separated or unmarried women. If an infrastructure project comes up on the lands used by them, these groups are the last ones to be counted for employment or other benefits because of their lack of education or bargaining power in society.
Expectations versus Aspirations
Our government, through its Ordinance Raj, is determined to work for an aspiring India – one that wants jobs, better lifestyles and incomes. But should these be offered at the cost of citizen’s expectations to be treated with dignity and fairness? The minimum rights, protections and safeguards for the poorest and weakest groups cannot be seen as burdens in the way of providing for limitless desires.
Land acquisition has always been a power contest. From Jawaharlal Nehru’s times, we have heard about sacrifice for national interest. Is this any different? Neither has this government stated why more land is necessary for its development objectives nor has it told us the status of the land already acquired and lying unused in several states. In areas where lands were acquired long ago, affected people continue to wait for courts to hear their cases. It is therefore not surprising that this ordinance takes away even the affected party’s right to directly approach the court for situations when an official has violated the law. It now has to be done only with prior sanction of the “government”.
This government can do better than be paternalistic towards its rural citizens and assume that they cannot understand “public purpose” or participate in such decisions or are not deserving of the consent clause when their own property or source of livelihood is being taken away. Moreover, it is not legal anymore to deny poor citizens their property rights, resource claims and human dignity. Instead of arguing about their efforts being stonewalled, we hope this government shifts to the right side of law and justice.
The authors are environmental researchers.
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It is undoubtedly the constitutional right of a government to pass ordinances under certain circumstances when the government cannot wait for Parliament to reconvene. But there was no such reason in this case. This flagrancy of the NDA government has led to stiff opposition from the public and other political parties who have criticised its opportunistic and chameleon-like transformation. When the land acquisition law – or the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – was passed in the Parliament two years ago, all the major political parties had unanimously voted in its favour.
Those who support the ordinance today claim the only change it has brought is the extension of the benefits of the land acquisition legislation to other legislations through which private property can be acquired. This is not true. While extending benefits to 13 other legislations, the ordinance has made big changes to major clauses that determine procedures for acquisition, grievance redress and most importantly to the projects to which its procedures will apply.
It has added a long list of vaguely worded project “types” that are exempt from the consent and impact assessment procedures. These include industrial corridors, infrastructure, affordable housing, rural electrification and defence projects. If a law such as this makes exemptions (besides for public projects), they are bound to be exploited. It is certain that most public-private partnership projects and private projects would seek exemption from assessment procedures by claiming to belong to one of the excluded types. If evidence of this is required, we just need to look at how exemptions played out in environment legislations that determine siting and procedures for grant of environment clearances to infrastructure projects.
Due to the opposition from some of its political allies, the Bharatiya Janata Party-led government has decided to review the clauses in the ordinance and make them more “farmer friendly”. As we wait for the second version to be revealed, here are some crucial aspects related to the government’s justification that need a rethink.
Ideas of Consent and Compensation
The noisy debates on 24/7 news channels and in Parliament fail to make the distinction between two aspects of the land acquisition process – consent and compensation. Many supporters of the ordinance have gone on air to state that this is a good policy because it offers good money to farmers in return for their land, and so farmers are double beneficiaries. They get both compensation and development.
Over and over, the distinction between the two terms is obfuscated. Compensation should be thought of only after due process for acquisition is followed and if farmers or land owners have consented to give up private property. If this distinction is blurred or removed, private property of any kind – not just land but human bodies, creative arts or intellectual property – will all be at risk. It is fascinating that this government has reduced the idea of owner’s consent to a time-consuming burden on its development plans when it is the sanctity of ownership. Without consent, private property has almost no meaning.
Land Owners versus Land Users
The ordinance knocked off the requirement of Social Impact Assessment for the excluded project types. The arguments for this have been that it is a vague exercise, is time-consuming and that if these projects are preordained as ‘public purpose’, why should this be necessary. But Social Impact Assessment is important precisely for protection against the overuse of such arguments by the government.
Under the 2013 legislation, SIA had two useful functions. One, to provide a robust justification of “public purpose” by a project to those from whom it takes away resources. And two, to determine how the project impacts non-owners of the resources. Anyone who understands the rural land economy knows that there are multiple sets of users of land, formal and informal. There are tenant farmers, seasonal farmers and daily wage farm labourers. There are also those who use land for forest produce, grazing, pottery or fishing – mostly without owning it.
The supporters of the ordinance are quick to suggest that land owners are waiting to sell off because farm revenues have been on the decline and that makes it needless to ask any other land dependents for consent. But this ordinance does not even acknowledge the need for some process by which land users will be identified and compensated. How can we determine who are the dependents, to what extent is their dependence and how should they be supported if the land is acquired?
These dependent groups are not encroachers squatting on lands beyond their ownership. These are composed of the poorest social groups such as the landless dalits, tribals and widowed, separated or unmarried women. If an infrastructure project comes up on the lands used by them, these groups are the last ones to be counted for employment or other benefits because of their lack of education or bargaining power in society.
Expectations versus Aspirations
Our government, through its Ordinance Raj, is determined to work for an aspiring India – one that wants jobs, better lifestyles and incomes. But should these be offered at the cost of citizen’s expectations to be treated with dignity and fairness? The minimum rights, protections and safeguards for the poorest and weakest groups cannot be seen as burdens in the way of providing for limitless desires.
Land acquisition has always been a power contest. From Jawaharlal Nehru’s times, we have heard about sacrifice for national interest. Is this any different? Neither has this government stated why more land is necessary for its development objectives nor has it told us the status of the land already acquired and lying unused in several states. In areas where lands were acquired long ago, affected people continue to wait for courts to hear their cases. It is therefore not surprising that this ordinance takes away even the affected party’s right to directly approach the court for situations when an official has violated the law. It now has to be done only with prior sanction of the “government”.
This government can do better than be paternalistic towards its rural citizens and assume that they cannot understand “public purpose” or participate in such decisions or are not deserving of the consent clause when their own property or source of livelihood is being taken away. Moreover, it is not legal anymore to deny poor citizens their property rights, resource claims and human dignity. Instead of arguing about their efforts being stonewalled, we hope this government shifts to the right side of law and justice.
The authors are environmental researchers.
