Thursday, August 6, 2009

The Corporatised State

D Bandyopadhyay

[An article of D. Bandyopadhyay, a retired IAS officer was published in the Statesman on the land Acquisition Bill and Rehabilitation and Resettlement Bill. The article which critically analyzed the bills is read worthy. Editorial Board, Red Barricade]

Part I

TRUE to her character, Mamata Banerjee, the railway minister, stood up against the Land Acquisition (LA) Amendment Bill and the Rehabilitation and Resettlement (R&R) Bill. Her courageous and ethical stand on this issue was resented by the ruling establishment. Predictably, a section of the national print media criticised her position as anti-development and populist. The utter insensivity displayed by this group is at the root of many of our current problems, including what is commonly known as Naxalite extremism.

One could, perhaps, applaud the Government of India for giving teeth to the national R&R policy, 2007, by bringing in the Bill along with the legislation for the comprehensive amendment of the LA Act of 1894. The R&R policy 2007 and the R&R Bill indicate that a section of the establishment is pragmatic enough to realise that in the current scenario of popular awareness and unease, some concessions have to be made before any hard and harsh policy could be put in place. But a larger section among them, committed to total market economy reform measures, is totally averse to any such adjustment and compromise.

The amending LA Bill, instead of being people-friendly, incorporates features which are patently anti-people. Its first and formidable assault is on the definition of “public purpose”, reflecting the dominant philosophy of withdrawal of the State from the economic and social welfare domains. The current LA Act in Section 3(f) defines the expression “public purpose” which includes such features as provision of village sites, provision of land for town and rural planning, provision of land for residential purposes to the poor or landless or to persons living in natural calamity prone areas or persons affected by development projects, etc. There was a definite slant for the poor, the landless and people living in the rural areas.

Three aspects

THE impact of Nehruvian welfare was obvious in the definition of “public purpose”. But the proposed amendment totally negates the concept of welfare of the poor and downtrodden. It has three aspects: (i) Strategic purposes necessary for the state; (ii) Infrastructure projects where benefits accrue to the general public; and (iii) Any other purpose useful to the general public for which 70 per cent of the land has been purchased by “a person” through negotiation, but the remaining 30 per cent is yet to be acquired. The explanation of “a person” includes “any company or association or body of individuals, whether uncorporated or not.”

To take the last point first, a government is not expected to resort to trickery or, chicanery or double-dealing. Unfortunately, this is exactly what the government has done. Having omitted the word “company” from the preamble of the Bill, it brought back not only incorporated companies, but “a person” including association or unregistered body of persons, through a big back door. The law could now be used or abused or misused by any realtor, land speculator, private companies or by any land mafia gang under the cover of any respectable name.

And what is the sanctity of the magic figure of 70 per cent? Why not 80 per cent or 90 per cent or 100 per cent? In fact, it would have been better to allow a person to acquire through negotiated purchase 100 per cent of the land with the government acting as a “regulator” to protect the small and marginal farmers from being coerced, to part with their lands by the strong arm methods of the purchasers. After all what is the bargaining power of even a big farmer against mega corporate bodies whether national or multinational? They could be intimidated, browbeaten, bullied or frightened or induced to part with their land without the fair process of bargaining. In fact, the present law with Chapter VII for the acquisition of land for companies is more transparent, equitable, non-discriminatory and fair than the proposed amendment.

The proposed expression “public purpose” is not acceptable. One is compelled to comment that the State has skilfully withdrawn from welfare activities. The proposed law could be utilised by the government for strategic reasons or by “a person”, which means basically corporate entities. The implications are grave. It would imply that the government wishes to privatise welfare activities. If the private sector were to take up such activities, they would be able to earn a profit. Either they will not take up such activities; or such enterprise will be priced so high that intended beneficiaries will be excluded. “It would seem that the state is entirely fixated on infrastructure, security related concerns and corporate economic growth and is disowning individual oriented development and welfare activities targeted for the poor and weaker sections.” (Saxena, KB ~ The Land Acquisition (Amendment) Bill, 2007, Council for Social Development, July 2003, New Delhi, page 29).

A major deficiency of the Bill is that it totally ignores the problems of the Scheduled Tribes, particularly, those living in the scheduled areas. There are many protective laws for the STs and more so for those in the scheduled areas. One could argue that since the original Act did not provide for any special provisions for the STs living in such areas, an amendment to that Act could as well disregard the issue. A look at the map of Central India, where “Naxalism” or “Maoism” is widely prevalent, will reveal that the bulk of the area is covered by Fifth Schedule of the Constitution. Ignoring the problems of the tribals in the proposed amendment would only add fuel to the already raging fire.

Displaced tribals

STATISTICAL data will substantiate the point. According to Walter Fernandes, scholar and social activist, about 60 million Indians were compulsorily evicted from their hearth and home between 1954 and 2004 because of the land acquisition process. They included 20 million members of the Scheduled Tribes. Further, according to government’s own admission only 28 per cent of the ousted ST population was rehabilitated. What happened to the remaining 72 per cent of unrehabilitated tribal people? To put it bluntly, they had become the flotsam and the jetsam of our development process. The displaced tribals constitute 25 per cent of the 80 million tribal population. The map of the area where Maoists are active and the map of the displaced tribal belt broadly coincide. The whole issue needs to be viewed from the internal security angle. The new Bill should incorporate the relevant provision of the Panchayat (Extension and Scheduled Areas) Act 1996 (PESA), the important features of the Supreme Court’s “Samtha” judgment (Civil Appeals No 4601-02 of 1997) and the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. In addition, there are various laws for the protection of the Scheduled Tribes in every state. The Bill should try to harmonise the beneficial aspects of these protective laws. Any attempt to bypass these issues will intensify the Maoist movement in the hills and jungles of Central India. There are several laws for the acquisition of land by different Union ministries and the state governments. The present Bill does not address the incongruities and contradictions that exist among these laws. Either the new amendments should have overriding authority over these Acts or those acts should be amended in conformity with the proposed Bill. It is a difficult task, but it has to be done to avoid future complications.

Part II

THE Rehabilitation and Resettlement policy 2007 lays down the basic principle of “three minima” for the acquisition of land. These are: (i) minimise the displacement of people due to the acquisition for projects; (ii) minimise the total area of land to be acquired for the project; and (iii) minimise the acquisition of agricultural land for non-agricultural use in the project (page 34, para 1.4). Unfortunately the Bill does not make these principles mandatory. It only refers to the discretion of the scrutiny committee to select a site with minimum displacement and minimum acquisition of land. Knowing how the bureaucracy functions, they might consider some dummy sites and zero in on the site preferred by the requiring body. A statutory provision would have been helpful here.

The Bill introduced a new section “1A”. It states: “The provisions of the Rehabilitation and Resettlement Act 2009 shall apply in respect of acquisition of land by the appropriate government under this (LA) Act.” Thus there has been a thoughtful attempt to synchronise the implementation of both the amended LA Act and the new R&R Act 2009. So far so good!

Glaring deficiency

BUT two separate Acts would in all probability necessitate two separate implementation authorities. That might not be the compulsion for implementing both the laws simultaneously or in pari passu. Since the need for resettlement and rehabilitation arises out of compulsory displacement through the LA Act, it would have been better if the basic features of the R&R Bill could be incorporated in the LA Act. This would make the acquiring authority responsible and accountable for proper resettlement and rehabilitation of the people affected by the projects. There should be one basic Act incorporating the LA and R&R policy. To reduce the volume of the text, most of the procedural issues could be featured in the rules framed under this Act.

The most glaring deficiency of the LA amendment Bill is the absence of any “exit policy”. It is common sense that if an authority under certain circumstances can compulsorily acquire land, then under some other circumstances it should have the power to de-acquire the land and return the tract to the original owners or their rightful legatee. Section 21 of the General Clauses Act, 1897 states: “Power to issue to include power to add, to amend, vary or rescind notification, orders, rules or by-laws.” Based on this principle the amending Bill should provide for de-acquisition of land and restoration of the same to the original owners or their rightful legatees. I shall cite three well known cases in West Bengal.

An area of approximately 997 acres of multicrop land was acquired in Singur for setting up a small car factory by Tata Motors. It was taken possession of in December 2006. On 3 October 2008, Tata Motors abandoned the project and decided to shift the factory to Gujarat. What happens to the 997 acres of acquired land when about 30 per cent of the original landowners refused to accept compensation money? The law is silent. The unrest persists.

In the early fifties, Hindustan Motors was given 750 acres for setting up an automobile factory. In the last 50 years the company could use only 300 acres. An area of 450 acres of valuable prime land remained unutilised for over half a century. Why should not that unutilised land be “de-acquired” and handed back to the owners? The law has no answer.

In 1944-45, during the Governorship of RG Casey, several square miles of land were acquired in the Kalyani-Haringhata area of Nadia district for setting up the Greater Calcutta Milk Supply project. The Haringhata dairy farm was set on a small portion of this vast area. Even after 60 years, several square kilometres of land remain unutilised. Neither the government nor the law has an answer.

Complicated situation

NOTHING could be done because the original LA Act did not have an “exit policy”. The Supreme Court judgment in the Bhaskaran Pillai case made the situation even more complicated. The sum and substance of the judgment is that land once acquired for a public purpose has to be used for the same purpose. In case a part of the land is unutilised, it has to be used for some other public purpose. Or else, the land should be put up for auction and the net sales proceeds used for some public purpose. But the land cannot be returned to the original owners.
To get over this problem, the Tamil Nadu government moved a local (state specific) amendment to the LA Act under which the state can return the excess, unutilised land to the original owners.

Provisions will have to be made in the amending LA Bill for the restoration of the acquired land to original owners if the requiring body abandons the project or fails to utilise land within a specified period or when the scope of the project requires less land or for any other eventuality. Without these provisions, land acquisition will continue to be a contentious issue.

There are various other aspects, such as compensation, that need a relook. In the amending Bill, the basic feature of compensation remains unaltered. Loss of livelihood has to be recognised as an issue for compensation. Likewise there are various other loose ends which have to be attended to. If the nation could wait till 2009 from 1894, it could afford another couple of years to make the amending Bill properly respond to the changed situation since 1894 and to become people friendly.

Looking back, it appears that the much abused LA Act of 1894 had a more humane face than the proposed amendment. The amending Bill has, unfortunately, exposed the unlovely face of the corporatised Indian state.

The writer is a retired IAS officer

Source: The Statesman; 4 & 5 August 2009.

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