Equity of land acquisition
The conflict over land is perhaps the most intractable conflict in Indian society today and land acquisition one of the most debated issues. While land is a state subject, ‘acquisition and requisitioning of property’ falls within the concurrent list, which means that both central and state legislatures can make laws with respect to acquisition of land. The Constitution mandates that any compulsory acquisition of land must be according to a law and not by executive fiat. Such a law must outline the ‘purposes’ for which the acquisition power is exercised; the ‘process’ that must be followed by the government in carrying out the acquisition; and the payment of ‘compensation’, which must be a fair equivalent of the value of land acquired.
Much has been written about the Land Acquisition, Rehabilitation and Resettlement Bill, 2011 (LARR) which is slated to overhaul the Land Acquisition Act, 1894 (LAA). The LAA, as amended by various state governments, currently governs land acquisition in India. It’s working has revealed four major problems that have led to widespread public discontent. First, the LAA only recognises the rights and interests of land title holders. In doing so, it fails to take into account the interests of those who while not holding title to the land are nevertheless dependent on it for their livelihood. Second, it is a well established legal principle that compulsory acquisitions of land must be for a ‘public purpose’ as a check against arbitrary state action. However, the LAA contains only an inclusive and not exhaustive definition of ‘public purpose’ and courts have deferred to legislative determinations of what constitutes ‘public purpose’. The third problem derives from the legal requirement that those deprived of their land and livelihood must be paid a fair equivalent of the value of the land as compensation. Unlike their approach on ‘public purpose’, the Supreme Court took the compensation requirement seriously, insisting in its early decisions that the compensation payable in case of compulsory acquisitions be the market equivalent of the value of the land. However, through a series of constitutional amendments, Parliament has substantially ousted judicial review of the quantum of compensation payable in individual cases. The fourth problem relates to the procedure involved in land acquisition under the LAA, which includes notification of land to be acquired, hearing of objections, final declaration and payment of compensation. This procedure has been criticised both by the government for delays in acquisition and by the people for their lack of participation in the government’s decision to take over their land as well as delays involved in the determination and payment of compensation.
The proposed LARR Bill attempts to address all four issues. First, by defining ‘persons interested’ as those having an interest in the land as opposed to actual title and ‘affected family’ as those dependent on the land for their livelihood, it takes a step in the right direction. But the definition of ‘persons interested’ excludes landless labourers and others like fisher folk and cattle grazers, which are included within the definition of ‘affected families’. Since only ‘persons interested’ can raise objections to the acquisition of land, this definition needs to be made more inclusive to include all those who are affected by the proposed acquisition. Moreover, the practice of land acquisition has revealed that government officials often deny the existence of these people or their dependence on the land in question insisting upon documentary proof of their association with the land which they do not usually possess. Therefore, the current Bill must be amended to ensure that all affected persons are not only rehabilitated and compensated but are also consulted in the process of acquisition.
In its commitment to payment of fair compensation, currently computed at approximately four times the value of the average of registered sale deeds, the Bill marks a positive reversal of government policy. Predictably however, the Bill is facing resistance from state governments accustomed to acquiring land at less than its market value. And though the lack of state finances could legitimately have been an excuse for such resistance by the government in the early years of the republic when India was impoverished by colonial rule and dependent on foreign aid, it is not something that can be accepted without justification when the economy even though slowing is growing at 7 per cent and India has emerged as a financial donor to other countries.
While it does a slightly better job of listing ‘public purposes’ than the LAA, the LARR Bill’s retention of a broad definition of public purpose as ‘any work that is useful to the general public’ enables the government to retain wide discretion in its decisions regarding land acquisition. It is true that an exhaustive definition of public purpose might be unduly restrictive for government activity. However, given the current development discourse, wherein any kind of industrial or infrastructural development is justified by the government as being useful to the general public irrespective of its short term and long term consequences, such unfettered discretion on the part of the executive does not provide a sufficient check against arbitrary and near-sighted government action, which is one of the primary reasons for discontent with the current law.
In its inclusion of requirements for Social Impact Assessment (SIA) of large projects, the LARR Bill acknowledges the need for public participation in assessing the governmental need for land acquisition. However, as the Bill currently stands, the committee in charge of conducting the SIA shall be composed of bureaucrats and not independent experts, which renders the provision nugatory. While the Bill provides for appraisal of the SIA report by an independent expert group, which has the capacity to make recommendations, such recommendations are not binding on the committee. Furthermore, land proposed to be acquired under the Bill’s urgency clause will be exempt from Social Impact Assessment.
The LARR Bill is undoubtedly a step in the right direction of ushering in a culture of justification wherein the government is required to explain and engage with the people it dispossesses of their lands, livelihoods and way of life, of the legitimacy and necessity of such dispossession. But it must be suitably revised in light of evidence of current state practices if the government’s promise to enact an equitable and transparent land acquisition law has any chance of becoming a reality.
(Views expressed in the column are the author’s own)
Namita Wahi is a lawyer and current doctoral candidate at Harvard Law School. E-mail:firstname.lastname@example.org