Mapping dilutions in India’s 2013 Land Acquisition Law: How states severely compromised its scope

namati mapping dilutions 25 sept 17 header

By Kanchi Kohli and Debayan Gupta*

Even as the Joint Parliamentary Committee’s report on the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) is awaited, several states have already brought about changes that severely compromise the scope of clauses related to consent, Social Impact Assessment (SIA), food security and higher compensations. These changes also restrict the applicability of the 2013 law at state level.

States have executed these changes through Rules under Section 109 of the Act, or have enacted their own state level land acquisition legislations using Article 254(2) of the Constitution of India. States, which have exercised the latter option, have managed to override the provisions of the central law. In the present case this has meant doing away with the provisions of consent and Social Impact Assessment.

While ‘land’ is the subject matter of the State list, the ‘acquisition and requisitioning of property’ finds place in the Concurrent list of the Constitution. This implies that both the central and state governments have jurisdiction over the same. In such cases, state level rules need to be within the binds of the central law; as in the case of the RFCLARR, 2013. However, Article 254(2) allows for instances for states to override the central legislations provided they receive presidential assent.

The year 2013 saw the enactment of the RFCTLARR replacing the colonial 1894 law on land acquisition. This new law introduced several critical requirements such as SIA, consent from land-owners, increased rates of compensation, provisions related to return of unused lands and food security.

Several of these provisions would have been repealed had the amendments proposed in the Bhartiya Janata Party’s RFCTLARR Ordinance, 2014, been accepted. In response to mass scale protests by farmer’s organisations, political parties and objections by NGOs and researchers, Prime Minister Narendra Modi announced that the government would not be pursuing these amendments. However, in the last three years several dilutions proposed in the Ordinance have found their way into state laws and Rules.

An examination of these legal changes reveals the following trends:

  • At least six state governments have enacted their own land acquisition laws by seeking Presidential consent using Article 254 (2) of the constitution. This is based on suggestions of the NITI Ayog in 2015.
  • These new state laws like the RFCTLARR (Gujarat Amendment) Act, 2016 directly adopt the amendments proposed by the 2014 land ordinance. With this the Gujarat state law manages to dispense the requirements for consent and SIA for a range of projects, including industrial corridors, infrastructure or those projects important for national interest, as was proposed in the Land Ordinance.
  • States are also adopting the clauses of the NDA government’s 2014 land ordinance through the drafting of state rules, thereby attempting to ‘amend’ the central law. This is being done by dispensing with the requirement of specific processes or restricting the scope of the law. For instance, the process of conducting an SIA under the Uttar Pradesh Rules is much less comprehensive than the 2014 Central Rules.
  • State level rules are diluting the applicability of progressive clauses like prior consent, public hearings or SIAs. In Jharkhand, the state rules reduce the quorum of the Gram Sabha consent to one-third from half as required in the central law.
  • States are repatriating unused acquired land into land banks rather than returning it to the original owners as required by the central law. This is being done by Odisha and Jharkhand. The Tamil Nadu law allows unused land to be taken for any other purpose, provided the District Collector certifies the same.
  • State Rules are reducing the amount of compensations to be paid against acquisitions. In states like Haryana, Chhattisgarh and Tripura, the multiplying factor for rural land is fixed at 1.00 as against 2.00 as specified in the central law.
  • State Rules are reducing the amount of compensations to be paid against acquisitions. In states like Haryana, Chhattisgarh and Tripura the multiplying factor for rural land is fixed at 1.00 as against 2.00 as specified in the central law.
  • The Joint Parliamentary Committee (JPC) set up to review the proposed amendments to the 2013 law, has been extremely active since mid-2017, after a lull period of one year. Its composition has also significantly changed.

The United Progressive Alliance (UPA) government had replaced the colonial Land Acquisition Act, 1894 with the newly enacted RFCTLARR Act, 2013. Though critiqued for expanding the definition of public purpose to include projects developed by the private sector, the new legislations had been welcomed by political parties, social movements, farmer groups and NGOs. This is primarily due to the clauses regarding conducting a Social Impact Assessment (SIA), the requirement of prior consent, the clauses for the return of unutilized land to original owners, food security provisions and better compensation.

The Rules framed by the States or the new state level land acquisition laws seek to ease the process of land acquisition in favour of governments and investors. While certain States have reduced the time period for the conducting of the SIA process or do away with it entirely, there are others who have lowered the compensation award or modified the applicability of the retrospective clause regarding return of land. Some states have adopted the provisions of the land ordinance that remove the requirement for consent from the land acquisition procedure.

Even though the Land Ordinance was not pursued, its provisions have already found their way in state level land acquisition processes.

land

*With the Centre for Policy Research-Namati Environmental Justice Program

Click HERE for the authors’ full paper, “Mapping Dilutions in a Central Law: A comparative analysis of rules made under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013”

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