NDA’s Land Bill: Unleashing Development Terrorism

Pushparaj Deshpande

Land_Ordinance1It is almost universally acknowledged across the political spectrum that India must be modernized in the image of the ‘developed’ world, which is why the State aggressively pursues the “urban-industrial vision of modernity” (adapted from- Nandy, Ashis [2003]: “The Romance of the State and the Fate of Dissent in the Tropics”, Oxford University Press) through the paradigm of ‘development’. The development process itself entails, among other things, the creation of infrastructure (private, public and social) that has been actualized through the acquisition of private property by the State, under the principle of eminent domain. This has invariably dispossessed communities of their land, livelihoods and shelter, as well as restricted their access to traditional common property resources, thus leading to their socio-economic and cultural marginalisation . Just to contextualize the enormity of the problem, it has been estimated that the total number of people displaced because of land acquisition between 1947-2000 was over 50 million.

Given that the penultimate telos of any development is to enhance the quality of life of a people, it is therefore imperative to maintain a balance between the zeal to develop aggressively and safeguard the rights of communities. The trick is to expedite the process of instituting an enterprise while minimizing the “adverse impacts of acquisition on people, habitats, environment and bio-diversity”, as the National Advisory Council’s (NAC) seven-point test highlighted. The two must complement one other, without which any development would be both counter-productive and exclusivist. Finding, and sustaining that delicate balance has been one of India’s enduring problems, and the recent amendments to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (henceforth LARR Act, 2013) have completely failed in this regard.

The first point of order is the manner in which the National Democratic Alliance (NDA) Government initially chose to amend such a crucial act, without even a semblance of debate on the floor of the House. In defending the Ordinance route, Finance Minister Arun Jaitley argued on a social media platform that the Government had to amend the Act before the end of the year since section 105 of the LARR Act specifically mandated the extension of the provisions of the Act to 13 central legislations (which had been previously exempted), latest by the 31st of December 2014. This notification was to have been placed before Parliament for a period of 30 days, something that the NDA regime conveniently ignored to do, and the Finance Minister, in offering no explanation as to why the NDA did not do so, simply expects us to accept the government’s action (or more accurately, inaction) as a fait accompli. By incorrectly citing the deadline for this routine notification as the rationale for bringing the Ordinance (and this does not seem like an error of omission), the NDA regime not only bypassed the Legislature and resorted to an “Ordinance Raj”, but illicitly sneaked in a host of other unwanted, and anti-people amendments that unarguably destroy the spirit of the original act.

The Bill that replaced the abovementioned Ordinance (and which has been subsequently re-promulgated as an Ordinance) makes nine revisions, reportedly to placate the NDA’s disgruntled coalition partners as well as the massive public outcry. However, a careful analysis reveals that the amendments are cosmetic in nature, and do not alter the original intent of the Ordinance in any significant way.

One of the most contentious of all the amendments, the insertion of an additional proviso after sub-section 2 basically exempts the Government from the consent requirements for a special category of projects (under the original Act, prior consent was mandatory from 70% of affected families if land was being acquired for Public-Private Partnership projects and from 80% of affected families in case of private companies), the Social Impact Assessment (SIA) requirements (originally, SIA was mandatory within six months), as well as the review by the Expert Group, for a special category of projects. The five items in this special category include industrial corridors and infrastructure and social infrastructure projects including projects under PPP. The government has removed social infrastructure from the list of special category projects, but this does not in any way reduce the scope of acquisition since the category of social infrastructure was not defined in the first instance. This particular amendment is just a shoddy attempt at window dressing by the NDA government.

The reason the previous government found it compelling to re-define “public purpose”, rightly so in this author’s estimation, was precisely to restrict the scope for acquisition by the State, and limit it to only those projects where the “benefits accrue to the general public, as the Statement of Objects & Reasons of the 2013 Act stated”. However, the NDA government has negated this entirely by exempting the abovementioned special category of projects from the provisions of the act. History has shown that most acquisitions fall in these categories and the dilution of this provision allows the government to acquire land for almost any purpose, (in the Ordinance, this included private hospitals and private educational institutions, something that the NDA has thankfully removed, although their initial inclusion raises some uncomfortable questions about the government’s intentions). Moreover, forceful acquisition is still permitted for industrial corridors. Although this is ‘restricted’ to one kilometer of land on either side of designated railway lines and highways, this still gives governments widespread discretionary powers. For example, it has been pointed out that in just the Delhi-Mumbai Industrial Corridor, 2,966 sq km. (a separate estimate calculates 14, 41, 726 sq.kms.) of land spread over six states can be acquired forcefully”!

But even more problematic is that this amendment automatically excludes potentially affected families in the decision making process. One of the key motives of the LARR Act, 2013 was to bring people to the centre of the decision making process, thereby making the idea of development more inclusive, and truly democratic. This would have greatly rationalized the process of determining what precisely “public purpose” constitutes, which has now been left to the (arbitrary) discretion of the State. This amendment however, completely demolishes the idea of participatory dialogue and the need for free, prior, and informed consent, which will especially adversely affect Scheduled Tribes and Scheduled Castes, who have been historically marginalized, something that was recognized by the U.N. General Assembly declaration on the “Rights of Indigenous Peoples” (2007). In fact, in a controversial submission to the World Bank during consultations held on the Bank’s “Safeguard Policies & Proposed Environmental and Social Framework”, the NDA Government shockingly argued against the proposed policy since it “prohibits forced evictions of indigenous peoples (and that) this standard mandates…free, informed and prior consent (in) a project affecting indigenous people”. It went on to argue that “the proposed clauses like free, prior and informed consent (replacing the consultation process with gram sabhas that the Forest Rights Act currently mandates) can lead to legal complications, delays, increase in costs and delay in project execution”.

The dilution of the SIA clause is especially problematic because land acquisition does not only affect land owners, but also significantly impacts those dependant on the land for their livelihoods (these include labourers, share croppers etc.),whose numbers invariably exceed the number of landowners (of the 263 million agricultural workers in rural India, 118.1 million are cultivators, while 144.3 million are agricultural labourers).The SIA was accordingly designed to be instrumental in recognizing who, and howmany people would be affected by the acquisition of land, in sync with the World Bank’s Poverty and Social Impact Analysis (PISA) guidelines. Even if one disregards the unethicality of excluding people from decisions affecting their lives, as the NDA regime has evidently done, from a logistical point of view, how is the government to identify who the affected people are (and hence what the rehabilitation & resettlement package should be), when it does not even evaluate risks or impacts through the SIA? Similarly, how does the NDA government propose to provide employment to one person of an affected household (as one of its amendments mandates), without conducting an SIA?

The Bill (as the Ordinances that preceded and followed it) also removes the earlier ban on the acquisition of irrigated, multi-cropped land. This was purposely included to both protect the interests of farmers and to ensure food security. In addition, in case such land was acquired under exceptional circumstances (and that too as a “demonstrable last resort”), provision was made for the cultivation of an equivalent area to compensate for the lost area. This particular amendment is especially problematic. Although 47% of India’s land is used for agriculture, the average size of operational holdings in India has diminished progressively from 2.28 ha in 1970-‘71 to 1.23 ha in 2005-‘06, thus contracting the availability of cultivable land (it is telling that 64.8% of all land holdings in India are less than one hectare and thus marginal in nature). This policy modification is therefore going to severely stunt the government’s commitments towards ensuring food security, something that should have ideally been factored in before such an extreme step.

One of the nine amendments passed by the Lok Sabha does tentatively extend the right of redressal to farmers. However, in the absence of mandatory SIA, and in light of the fact that the appeals authority is to be a government appointed person whose authority to review the compensation package is absolute, the redressal process is bound to be stunted.

The original Act had also placed greater accountability for bureaucrats working to implement the law by incorporating provisions to penalise offenders in case of violations. In addition, it had also uniquely mandated command responsibility by also placing liability of infractions on the head of a particular department. In itself, this was a radically forward measure designed to institutionalize transparency and accountability within governance. However, in insisting that prosecution of such officials can be initiated only after taking prior sanction from the government, the NDA regime has completely diluted this clause. The idea that the Court must take prior sanction automatically ensures that no corrupt public servant will ever be brought to task, as they would automatically be shielded from prosecution. For a government whose Prime Minister constantly talks about good governance, this amendment is extremely ironic.

Another bold reform included in the LARR Act, 2013 expressly laid down that if un-utilised, any acquired land must be returned to the original landowners / legal heirs, or to a Government land bank after five years. This was instituted to prevent any fraudulent or excess acquisition, which has routinely happened in the past. In acknowledging the realities of forcible ‘expropriation’ of land, Jairam Ramesh, the former Minister for Rural Development, highlighted how land is usually acquired in excess of requirements and is then diverted for private use. Data from the Industrial Development Corporations of five states corroborates this view. All together, Maharashtra, Andhra Pradesh, Uttar Pradesh, Rajasthan and Gujarat acquired 5, 72,793 acres since their inception. However, an astounding 2, 55,471 acres (roughly 45%) is yet to be allocated for any project. Given this, there is indisputably some merit to the provision for returning un-utilised land. The NDA regime has reversed this fundamentally sound measure by establishing that any acquirer can stipulate a protracted period for the completion of any project. This essentially paves the way for widespread excess acquisition and diversion of such land. Through this amendment, the NDA government is deliberately conflating private profit with public purpose to serve vested interests, clearly aping the Gujarat model of development, which has been consistently proselytized as a “consumable commodity” (adapted from Nandy, 2003).

Just one example will suffice to underscore the detrimental nature of the Gujarat model, which is clearly not worth emulating. In May 2005, the Modi government in Gujarat issued a resolution allowing corporations to acquire up to 2000 acres of rural land for a mere Rs. 20, 80, 500, payable over 20 years! Acquirers of such land were also entitled to mortgage these lands to banks (who could then subsequently divert it for uses other than the original intended purpose). There has consequently been a drastic increase in land holdings over 20 hectares, and this has led to dramatic upheavals in the socio-economic and political fabric of Gujarat, most adversely affecting indigenous and rural communities(Sen, S. & Mallik, C. [2012]: “Understanding Gujarat’s Agricultural Growth in a Liberalizing Environment: Signs of a Redefined Margin?”, in Sood, A. [ed.]: “Poverty Amidst Prosperity: Essays on the Trajectory of Development in Gujarat”, Aakar Books).

This paper is likely to be misconstrued, especially by the private sector, and therefore a caveat is essential. The point of this paper is not to be anti-private enterprise, which admittedly, some proponents tend to be. The issue of land acquisition is simply not a question of private enterprise versus local communities, as the BJP’s reductionist discourse portrays it to be. Private enterprise has, and will continue to play an integral role in the socio-economic development of the nation, and the State must facilitate ease of doing business.

In the interest of enhanced profitability, industries legitimately seek to reduce the gestation time for a project, and reduce obstacles in such endeavours. However, as any conscientious enterprise would acknowledge, these cannot come at the cost of those most unable to defend themselves. By voiding this idea, this NDA regime has completely overlooked the needs of local and indigenous communities, those most needing of the State’s support. Moreover, they have overlooked the fundamental problem in ease of doing business, namely administrative hurdles. If the BJP were to focus more on streamlining bureaucratic red tape rather than disempowering communities, it might actually aid private enterprise.

In fact, the Finance Minister, in his specious defense of the Ordinance vests his entire argument on grounds that “historically the power to acquire land is a sovereign power… (and that) a larger public interest always prevails over private interest”. Firstly, there is inconsistency in Mr. Jaitley’s stance since one of the amendments originally brought in by the NDA allowed the government to acquire land for private hospitals and private educational institutions (hence withdrawn). Exploring why the NDA government sought to outsource its welfare functions to private entities (whose primary motive would naturally be profit) lies beyond the scope of this paper, although this is a pertinent question.

But the inherent hypocrisy in Mr. Jaitley’s pontification is less problematic than his prioritization of a certain kind of development that is reminiscent of the colonial era. Imposed top down, this model of development not only centralizes the planning and execution of development projects, it also vests on a skewed notion of sovereignty. Gandhi, who the BJP has been using rather instrumentally in their drive to seek historical legitimacy, viewed the State as a body of people and hence argued for devolution of powers to the gram panchayats. In conceptualizing sovereignty so narrowly, this government is squashing the principle that the people are equal share-holders in the process of development. Whatever the BJP argues is the raison d’être of this Bill, the naked fact is that it will unleash an epidemic of State sponsored “development terrorism” (adapted from Nandy, 2003). Goethe’s assertion is therefore something the NDA government would do well to remember: “to rule is easy; to govern difficult”.