The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR, hereafter referred to as LARR 2013) was the culmination of decades of struggle by people’s movements against arbitrariness, injustice and land grab. It appeared that people’s voice was finally reaching the portals of power. And although the Act did not cede the power of eminent domain in favour of the people, there were, nevertheless, some progressive elements in it. The task for the new government was to implement it in right earnest and iron out the difficulties encountered therein.
Much to the contrary, yet very much in the ambit of the expected, has happened. All indications in the run up to the Lok Sabha elections of 2014 were that LARR 2013, which was perceived by the corporate world as being ‘anti-growth’ and ‘anti-investment’, would be amended by the new dispensation at the Centre. Soon after the elections, the new rural development minister called a meeting of state revenue ministers to review LARR 2013 on June 27, a mere 40 days after assuming power. By December 31, 2014 it stood amended through an Ordinance. By any standards, the amendments are regressive and anti-people, anti-farmer and anti-agriculture. All in all, the amendments in the Ordinance make the land acquisition Act of 1894 look benign in comparison.
At the outset, let us clarify our usage of the term ‘farmer’ or ‘anti-farm’ or ‘agriculture’ in connection with land acquisition. The ambit of the land acquisition Act – both old or new – was and remains limited to private land holding only. Forests, coasts, rivers, pasturelands, wastelands, lakes and waterbodies – appropriately termed Common Property Resources (CPR) – are not covered by this Act. Not only are they not covered by law, they are also not covered by any policy directive or legal instrument formulated by any government of independent India even today. Pastoralists, fisherfolk, tribals, landless agriculturalists, saltpan workers – all communities that depend on these CPRs – are hence left out of the provisions of law.
The raison de etre of LARR 2013 was to address blatant injustice to farmers and others dependent on land in the process of land acquisition. In that sense, there were a few provisions that were at the core of the popular demands which got reflected in it. LARR 2013, for the first time, responded to the public outcry over the arbitrariness involved in the unexplained term ‘public purpose’. Many battles had been waged on this issue. The term public purpose was applied to explicitly stated items (in Section 2).
Public purpose redefined
‘Public purpose’ projects exempt from consent and SIA requirements under LARR 2013 were:
(a) For strategic purposes relating to naval, military, air force, and the armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, safety of the people; or
(b) For infrastructure projects, which includes the following:
* All activities or items listed in the notification of the Government of India in the Department of Economic Affairs (Infrastructure Section) number 13/6/2009-INF, dated the 27th March, 2012, excluding private hospitals, private educational institutions and private hotels;
* Projects involving agro-processing, supply of inputs to agriculture, warehousing, cold storage facilities, marketing infrastructure for agriculture and allied activities such as dairy, fisheries, and meat processing, set up or owned by the appropriate Government or by a farmers’ cooperative or by an institution set up under a statute;
* Projects for industrial corridors or mining activities, national investment and manufacturing zones, as designated in the National Manufacturing Policy;
* Projects for water harvesting and water conservation structures, sanitation;
* Projects for Government administered, Government aided educational and research schemes or institutions;
* Projects for sports, health care, tourism, transportation or space programme;
* Any infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification in Parliament;
(c) Projects for project affected families;
(d) Projects for housing for such income groups, as may be specified from time to time by the appropriate Government;
(e) Projects for planned development or the improvement of village sites or any site in the urban areas or provision of land for residential purposes for the weaker sections in rural and urban areas;
(f) Projects for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by the Government, any local authority or a corporation owned or controlled by the State.
Although these cover vast areas with broad brush strokes, it was nonetheless a beginning. ‘Prior and informed consent’ and social impact assessment (SIA) became mandatory elements for all projects not covered under the ‘public purpose’ rubric. The eminent domain powers in the Land Acquisition Act, 1894 made the government undertake land acquisitions without any form of consultation with the people who were to be displaced.
LARR 2013 introduced the consent requirement, albeit with a caveat. The consent requirement was to be necessary for public private partnership (PPP) projects, where the ownership of the land continues to vest with the government, and private companies with a public purpose. It was, however, not applicable to public sector undertakings (PSUs) and for ‘public purpose’. Gram sabha consent was also introduced for the first time, along with the introduction of a new category called ‘affected families’, i.e. consent of not only landowners, but all such families that derived their sources of livelihood/ income, directly or indirectly, from the land proposed to be acquired. In other words, the participation of the people and their voice in ‘development’ was legislated.
Then, LARR 2013 also had the requirement of a Social Impact Assessment (SIA) for all projects which mandated the consent requirement. The SIA was introduced with the objectives of ascertaining the impacts of the project on the area, its environment and ecology, on the natural resources of the area, and on the people residing therein, the extent of livelihood generation for the local population (to be displaced from land-based occupations), and whether the land being acquired was absolutely the minimum requirement for the project. Moreover, such an exercise was meant to ascertain the number of ‘affected families’.
Two of these most crucial elements of LARR 2013 stand amended by the Ordinance. Amendment 3(i) of the Ordinance does away with both these requirements – consent and SIA – for “private hospitals and private educational institutions” (which were earlier not exempt from these provisions). Then, 3(ii) exempts projects listed in section 10 A which is newly introduced. Section 10A is part of a new chapter III A, which is essentially a listing of projects exempted from the provisions of consent and SIA over and above those contained under the definition of ‘public purpose’. The list of projects which are covered by ‘consent’ and SIA requirement are shorter than the one exempting projects.
Section 10(A) of Chapter III A of the Ordinance exempts the following areas from consent and SIA requirements:
(a) Such projects vital to national security or defence of India and every part thereof, including preparation for defence; or defence production;
(b) Rural infrastructure including electrification;
(c) Affordable housing and housing for the poor people;
(d) Industrial corridors; and
(e) Infrastructure and social infrastructure projects including projects under public private partnership where the ownership of land continues to vest with the Government.
The struggle over inclusion of the definition of ‘public purpose’ thus stands negated. This is a regressive step and dangerous in its implications – for livelihoods, for farm-displaced and low or semi-skilled workers, for foodgrain production and for food security. The above items are also exempted from the ‘measures to safeguard food security,’ viz. the prohibition on acquisition of multi-cropped irrigated land except in “rare and demonstrably unavoidable circumstances”.
The Ordinance poses serious threat to the socio-economic fabric of the country. Land/ private property has not been granted the status of fundamental right as in other countries. Eminent domain powers were a colonial imposition for exploitative use of land by the colonial power. LARR 2013 tried to correct this wrong (even though it did not do away with the eminent domain powers of the state). The Ordinance has reversed this and moved towards facilitating the transfer of and consolidation of massive amounts of land in the hands of a few corporate/ industrial houses and big industrialists.
Likewise ‘consent’ and SIA were achievements of decades of struggle by farmers, people’s organisations, social movements. Removing these eases the road for corporate houses and big industry. Again, the terms here, such as ‘projects vital to national security or defence of India’, or ‘rural infrastructure’, or ‘affordable housing’, are fluid and lend themselves to flexible interpretations. Ports can be termed vital for the defence point of view. Anything can be included and “vital”. Things will perforce have to be decided by the judiciary, which will take 10, 15, 20 years, or perhaps more. In effect, it is a zero-sum game for big industry with deep pockets.
The Ordinance has added one new aspect viz. substituting the words ‘private company’ in the Act with ‘private entity’. This new term, ‘private entity’, has been defined as “any entity other than a government entity or undertaking and includes a proprietorship, partnership, company, corporation, non-profit organisation or other entity under any law for the time being in force” (Section 3(ii)(yy)). The government’s power to acquire land was restricted earlier to companies registered under the Companies Act. This amendment removes this restriction and empowers the government to acquire it for anyone or anything as per its will, choice or discretion, including an individual (this has not been spelt out explicitly but is implied).
This level of arbitrariness was perhaps not there even in the Land Acquisition Act, 1894. This must be looked at in conjunction with the changes in the definition of Company introduced in the new Companies Act, 2013, which has introduced such provisions like one-person company, private company, small company and dormant company.
Under LARR 2013, the employment potential of the upcoming industry had to be weighed against the displacement of the residents from agriculture or any other land-based occupations. This limitation is now removed and land can now be acquired even for a business establishment employing one person!
Section 24 (2) of LARR 2013 stipulated that, in cases where land had been acquired under the provisions of the Land Acquisition Act, 1894, but whose physical possession had not been taken, or compensation not paid, their proceedings would lapse and the matter would have to be started afresh under the provisions of LARR 2013. The Ordinance amends this provision, adding a proviso which essentially means that any delay on account of litigation (court mandated stay or injunction), or where the compensation amount lies unclaimed in the court, then such period will not be factored into the computation of the period of limitation.
Section 87 of LARR 2013 stipulated when and under what conditions a government officer could be held guilty and proceeded against in a court of law. It removed the earlier constraint, “the previous sanction of the appropriate government”, in order to act as a deterrent to bureaucrat-businessman nexus which was always detrimental to farmers’ interests. This section has also been amended in the Ordinance, restoring the previous limitation of government sanction for prosecution of a government employee.
Section 101 of LARR 2013 stipulated that any land acquired but remains unutilised for a period of five years from the date of possession would revert back to the original owner/s or their heirs or to the Land Bank of the government. The Ordinance has substituted the words “a period of five years” by the words “a period specified for setting up of any project or for five years, whichever is later”. This is another major concession to the corporate lobby. The original stipulation was meant to remedy the situation under which the unutilized acquired land would mean keeping farmers landless and jobless, even as price of the land appreciated by 10 to 20 times. The remedy in LARR 2013 was meant to give cheated farmers their due.
The Ordinance brings in arbitrariness in acquisition and holding. The project proponent may stipulate a longer duration (say 10 or 20 years) for setting up of a project and retain the land (most often for speculation). This is a draconian provision, which will return India to a state of oligarchy and zamindari under a new socioeconomic dispensation with a new set of zamindars.
Section 105 (3) of LARR 2013 stipulated that in cases of land acquisition (acquired under the provision of Land Acquisition Act, 1894), where compensation was pending or possession had not been taken, compensation and rehabilitation and resettlement (R&R) provisions as per LARR 2013 had to be made applicable to all enactments listed in the Fourth Schedule of the Act within one year from the date of commencement of the Act, i.e. by September 2014. The Ordinance has extended this limit to January 1, 2015.
Section 105 (4) of LARR 2013 mandated that any notification pertaining to compensation and R&R applicable to the enactments in the Fourth Schedule would have to be tabled (as a draft) in both Houses of Parliament. The notification would have to be passed to be effected, not otherwise. This section has been omitted in its entirety by the Ordinance. This means that R&R and compensation matters would not be brought before both the Houses of Parliament and may be “legislated” through government resolutions (GRs). How are people to know about these matters? RTI queries are routinely scuttled under one pretext or the other. The word ‘transparency’ in the title of the LARR 2013 has thus completely negated.
This development is important to understand for the implications for democracy and transparency. ‘Governance through GRs’ was an indispensable part of the ‘Gujarat Model of Development’, now going national. Important policy-related issues were routinely dealt with through GRs instead of being tabled in the Assembly and debated. Elections, elected representatives, opposition parties would all be systematically sidelined and made redundant. ‘Governance through Ordinance’ is but an imitation of this tried and tested method. Six months, by when the Ordinance will have to be put before the two Houses of Parliament, is a long time for any and all kinds of political deals.
Suppression of civil liberties
Whenever such draconian provisions to existing laws are made, it is imperative that they are challenged publicly by the people by voicing their dissent in a non-violent manner and within the bounds of law. However, in recent times, the state, through its law and order machinery, has been coming down heavily on such public forms of protest, at least in Gujarat. Although no violence has been committed by the state, the voice of dissent and protest has been successfully stymied. The routine methods of doing so are:
(a) denial of permission by the police for peaceful protests;
(b) holding activists and leaders into preventive detention of 24-72 hours;
(c) arrests of activists and leaders and court cases on them; and, d) routine visits and phone calls by LIB, IB officials to activists and leaders (as a means of intimidation).
In such an atmosphere organising and leading protest programmes become difficult and dissent is successfully silenced. Suppression of civil liberties is thus another method for furthering the neo-liberal agenda.
The amendments in the Ordinance have, at the stroke of a pen, decimated the achievements of decades of hard struggle by adivasis, farmers, and people’s movements against injustice in land acquisition. All amendments, it is clear, are to the benefit of the corporate lobby and are farm-unfriendly. Eighteen industrial corridors all over the country, which will take away land from a majority of farmers of the country, have been exempted from the provisions of the Ordinance, which reveals the anti-farm, anti-people attitude of the government. All farmers in the DMIC route falling in Gujarat (covering 18 districts and 60 per cent of its land) will be adversely affected by these amendments. Incidentally, the new amendments, by and large, remain true to the demands voiced by state revenue ministers in June 2014.
However, it is not that farmers are the only large group which is sought to be targeted for severe punishment. Labour laws are also slated for amendment. While it is not clear what they will be, given the anti-people or pro-management attitude so far displayed, they will certainly not benefit labourers. Dismal as the scenario seems, these amendments could yet prove to be an opportunity to bring together two huge labouring classes of our society, viz. farmers (rural) and industrial labourers (urban). It could be a moment of reckoning.
* Development sector professional and an activist with Jameen Adhikar Andolan Gujarat (JAAG), Ahmedabad.
** Activist with the land rights struggles in Gujarat and India and is Secretary, Khedut Samaj – Gujarat, Ahmedabad.
This is the bridged version of the discussion paper “Ordinance Amending the Land Acquisition and R&R Act, 2013: Sellout and Payback Time?”, distributed to Gujarat-based land rights activists (click HERE for full paper, with references).