Saturday, December 19, 2009

Land Acquisition (Amendment) Bill: A slow but sure step forward

Land Acquisition (Amendment) Bill: A slow but sure step forward

Land Acquisition (Amendment) Bill: A slow but sure step forward

By Ramaswamy R. Iyer. The Hindu. August 7 2009

The debate about the displacement of people caused by various developmental projects has been going on for over two decades. Without going into that history in detail, we may note that the Government of India finally notified the National Rehabilitation and Resettlement Policy 2007 in October 2007, and followed that up with the Rehabilitation and Resettlement Bill 2007 and the Land Acquisition (Amendment) Bill 2007. Those Bills have lapsed and have now to be introduced afresh in the new Lok Sabha. There have been reports that Railway Minister Mamata Banerjee is unhappy with the Bills. There have also been protests against the Bills by many NGOs.

Superficially, the Bills seem to include a number of good elements. There was a demand for a Rehabilitation Act and here is a Bill; the much-criticised Land Acquisition Act is being amended; ‘public purpose’ is being re-defined; governmental acquisition of land for private parties is being reduced; ‘minimum displacement,’ ‘non-displacing alternatives,’ consultations with the people likely to be affected, and so on, find a place in the Rehabilitation Bill; a Social Impact Assessment is provided for; an Ombudsman is being provided for the redress of grievances; and a National Rehabilitation Commission is envisaged. Why then are the Bills not being welcomed?

Let us consider the Land Acquisition Amendment Bill first. At first sight, the deletion of all references to companies gives us the impression that acquisition by the state for private parties is being eliminated, but that is not the case. The original Act had the wording “for a public purpose or for a company”; the words “or for a company” are now being omitted; but the definition of “public purpose” itself is being changed to include a (supplementary) acquisition for “a person” (including a company). If the private party purchases 70 per cent of the required land through negotiation, the balance 30 per cent can still be acquired by the government for that party. This means that sovereign compulsion will be brought to bear on those who are not inclined to sell their land, and also that state patronage for industrial houses can continue. Incidentally, it will be seen that the definition of ‘public purpose,’ instead of being made stringent and narrow as many had recommended, is being widened.

Moreover, it was necessary not merely to rule out (or limit) the acquisition of land for private parties under the Land Acquisition Act, but also to ensure that rural communities are not taken advantage of by corporate bodies in unequal negotiations. There is no such provision in the Bill.

Judging by its name, The Land Acquisition Compensation Disputes Settlement Authority will apparently deal only with compensation issues. A longstanding criticism of the Land Acquisition Act has been that the ‘public purpose’ for which land is being acquired is not open to contestation. There seems to be no change in that position.

One wonders whether the bar on the jurisdiction of the civil courts and the establishment of a Dispute Settlement Authority instead is in fact a good thing to do. There is room for misgivings here.

Turning now to the Rehabilitation Bill, the provision for a Social Impact Assessment seems very good, but the impacts are rather narrowly confined to physical assets (buildings, temples), institutions, facilities, etc. Social impacts must be more broadly understood to include the loss of identity; the disappearance of a whole way of life; the dispersal of close-knit communities; the loss of a centuries-old relationship with nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an independent multi-disciplinary expert body, but it should first be prepared by a similar body. The provision for a Social Impact Assessment clearance is good, but not enough: it should be part of an overall clearance for displacement. If the felling of trees and interference with wildlife and nature in general require statutory clearances, should not the displacement of people be subject to a similar requirement? Such a clearance must come from an independent statutory authority and not from the bureaucracy. The clearance must of course be subject to certain conditions and must be revocable in the event of non-compliance or lapses; and the revocation clause should be actually used.

The terms ‘minimum displacement’ and ‘non-displacing alternative’ are music to the ears, but the application of this criterion is left to a late stage when the consideration of options may no longer be possible, and the decision is left to the Administrator for R&R. In other words, this crucial decision is entrusted to the bureaucracy.

An impressive structure of institutions has been specified, but their responsibilities and powers have not been spelt out. Administrator, Commissioner, project-level and district-level R&R Committees, Ombudsman, Monitoring and Oversight Committees, National R&R Commission: what each will do, how they will be inter-related, what decision-making powers each will have and in relation to what aspects, and so on, are far from clear. Everything is covered by the phrase “as may be prescribed.”

Words such as “wherever possible,” or other similar phrases are scattered throughout the Bill. For instance, group settlement is laid down, but qualified by the phrase “wherever possible;” training is to be provided “wherever necessary;” there are also qualifications such as “if government land is available,” “preferably,” and so on. They seem innocuous, but all of them involve decisions. Such hedged-in requirements can hardly be mandatory: they are likely to become discretionary, with the discretion vesting in the bureaucracy.

The Ombudsman provision is a good one, but ‘grievance’ has been narrowly defined to cover only the case of “not being offered the benefits admissible.” Grievances could relate to many other things: non-participatory project decision, failures of consultation, non-compliance with the minimum displacement condition, non-inclusion of a person in the ‘affected’ category, and so on. How the Ombudsman will be appointed, how the Ombudsman will function, etc., are left to be ‘prescribed.’

Taking the preceding points together, it appears that the precise manner in which this seemingly benign and enlightened legislation will actually work in practice will be entirely determined by the delegated/subordinate legislation, that is, the rules that are made under it.

The National Monitoring Committee seems totally bureaucratic, except for the non-mandatory association of some experts (the operative word is “may”). No civil society or NGO participation seems envisaged.

In the case of the Sardar Sarovar Project the basic principle in force (though it may not always be complied with) is: rehabilitation must precede submergence. The present Bill retreats from that position and requires only “adequate progress in rehabilitation” prior to displacement. This is a retrograde step. Besides, who will decide the adequacy of the progress?

The elements of the rehabilitation ‘package’ seem inferior to the policies already adopted in projects such as Sardar Sarovar and Tehri. Moreover, cash in lieu of land is envisaged in several places. This is fraught with danger. Eventually, cash may well become the main form of compensation.

In the event of deliberate or inadvertent lapses or non-compliance or deviations, what consequences will follow? The Bill is silent on this. Without such sanctions, how can the provisions be enforced? Far from sanctions for non-compliance, there is a sweeping indemnity provision!

In addition to those primary points, there are many others, some of them quite important, that need consideration. They cannot be set forth in detail here for want of space.

The conclusion that emerges from this quick examination of the two Bills is that there are many weaknesses and questionable features in these Bills which need to be rectified. Opposition to the Bills is therefore warranted. However, the very fact that the government is thinking of a rehabilitation law and of amending the Land Acquisition Act is an achievement for public opinion. It has taken more than two decades for the debate to reach this stage. Opposition to the Bills should be carefully modulated so that we can proceed further from here and not lose what has been gained.

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