Rules of new land acquisition Act provide a process of social impact assessment that is miles ahead of all earlier processes

shripadBy Shripad Dharmadhikary*

The National Democratic Alliance government – amidst speculations that it is set to dilute important provisions of the new land acquisition Act – has recently notified the rules for two of its most important and progressive sections, those pertaining to the Social Impact Assessments (SIA) and the Consent provisions. These rules, notified on August 8, 2014 detail out how to implement these two provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which is the full and formal name of the new land acquisition Act (referred to hereinafter as Act).

Overall, these Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 (Rules hereinafter) provide a relatively progressive framework of implementation (click HERE to download the Rules).

Provisions for Social Impact Assessment

There are some significant provisions for carrying out the SIA. First and foremost, the Rules require that the SIA be carried out in consultation with the local self-government institutions in the affected area. This provision is also there in Act.

The Rules require the state or the central government to establish a Social Impact Assessment Unit, “an independent organisation which shall be responsible for ensuring that Social Impact Assessments are commissioned and conducted by such person or bodies other than the Requiring Body as per the provisions of the Act” (emphasis added). This is a critical provision for maintaining the credibility of the SIA. Here, a lesson seems to have been learnt from the problems with the Environment Impact Assessments (EIA) process, where the project proponent selects, commissions and pays the agency that carries out the EIA. This creates a direct conflict of interest, and it’s not surprising that most EIAs are highly biased towards the project proponent’s interests.

The Rules empower the SIA Unit to formulate the Terms of References for any SIA proposal, list the activities required, decide the size and profile of the team required, and prepare the costs estimates for the same. Then, the Requiring Body (the agency that wants the land) will deposit the money with the Government, and the SIA Unit will select the agency to carry out the assessment from the roster that it maintains.

To further ensure a distance between the Requiring Body and the SIA team, the Rules explicitly state that the Requiring Body shall not be involved in any way in the appointment of the SIA agency, and that it should be ensured that there is no conflict of interest involving the team members of the SIA agency.

The Rules allow the SIA team to include independent practitioners, academics, qualified social activists, and mandate the inclusion of at least one woman member.

The SIA Unit is also tasked with building and “continuously expand a Database of Qualified Social Impact Assessment Resource Partners and Practitioners”, “conduct training and capacity building programmes for the Social Impact Assessment team and community surveyors”, and “continuously review, evaluate and strengthen the quality of Social Impact Assessments and the capacities available to conduct them”.

Apart from giving a detailed list of the aspects that the SIA must cover, which include all direct and indirect impacts, the Rules also require the SIA to “assess the viability of impact mitigation”. This is critical because often, the mitigation measures are just listed out as a lip service and the project cleared on this basis, but the affected people suffer because it is practically impossible to carry out the measure effectively particularly when the displacement involves large numbers.

In this context, it is also important that the Rules require the SIA to “provide an assessment as to whether the benefits from the proposed project exceed the social costs and adverse social impacts that are likely to be experienced by the affected families or even after the proposed mitigation measures, the affected families remained at risk of being economically or socially worse, as a result of the said land acquisition and resettlement”.

There are several other important provisions including the time period for the SIA (six months), recording the views of the affected families in writing, involving local voluntary organisations and media in the public hearings, recording and considering in the SIA every objection raised in the public hearings, the SIA and public hearings to be in local language and a web-based flow management information system of the acquisition process.

The Consent Provision

The Consent related Rules specify that the Consent process shall be carried out by the Government, through the District Collector. The consent would be obtained (where required by the Act) at two levels – the Gram Sabha level and for the private and public-private partnership projects, at the individual land owner levels.

For getting the consent from the Gram Sabha, the quorum requirements not only ask for 50% of the total members to be present, but also require that one third of total women members also to be present.

The Rules specify that negotiated terms for rehabilitation, compensation, impact management and mitigation which the Requiring Body has agreed to, shall form a part and parcel of the Consent Agreements. This means that the Consent is given only against these commitments.

It also declares that any attempt to coerce or threaten anyone into giving consent shall be treated as a criminal offence, and most important, if any such threat has been made, the consent so given shall be void.

Two Caveats

Of course, these Rules cannot and do not transcend the fundamental problems with the original Act itself (see here for a detailed account of these), but within that limitation, provide a much better process than has been available earlier for project affected people.

Second, it’s a question as to whether and how long these Rules will survive, as the very provisions that these Rules help actualise are the ones that the Central Government seems to want to do away with. However, till such an eventuality, these Rules will be the ones that will provide the framework for implementation of the Act.

A Lesson for the MoEF

All in all, even with several limitations, these Rules provide a process of SIA that is miles ahead of all earlier processes. Indeed, at this time, the Ministry of Environment and Forests is examining all the environment protection laws, and it could do well to adapt all these provisions of the SIA for the EIA process too.

*http://shripadblog.blogspot.in 

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