Complexities of Land Acquisition-Legality, Politics and the Public Interest
The Land Acquisition Amendment Bill 2015 (henceforth LAA 2015) which replaced the Land Acquisition Rehabilitation and Resettlement Act, 2013(henceforth LARR 2013) which in turn substituted for the draconian Land Acquisition Act of 1894 is one of the most important issues before the country today. While it has been debated in parliament and on the streets, many substantive issues that need to be addressed have been missing from the conversation. Some of these came up at a seminar held at the Delhi School of Economics in April – such as the larger political, economic and judicial contexts within which one can make sense of the trajectory of the land acquisition laws; the constitutional and historical bases of sovereignty and public interest; the relationship between land reforms, land acquisition and land use change. Who are the different stakeholders and what are the varying claims involved in the question of land acquisition? Is the provision of compensation at market value and employment an adequate substitute for the loss of land and livelihood? What regional and rural-urban variations are important in understanding the impact of land acquisition?
The Historical Trajectory of the Land Acquisition Act, Regional and Urban-Rural Experiences of The Act
LARR 2013 was passed with the support of all major political parties after two years of intense discussion and introduced several important changes to the 1894 act. The first major change was in the degree to which land acquisition is compulsory. While the colonial act allowed acquisition of land for ‘public purposes’, defining such public purpose was left to the state. The LARR act, however, reduced the scope for arbitrariness by making it mandatory for the government to obtain the consent of 80 per cent of the affected families. Likewise, the introduction of the Social Impact Assessment feature that makes it compulsory to calculate the associated costs and benefits underlining the acquisition process, curtailed the power of the state to acquire land under the eminent domain clause. While the earlier act granted cash compensation between one fourth to one fifth of the market value making the process of land acquisition highly subsidized, with the LARR 2013 act it was raised to twice the market value for urban areas and four times the market value for rural areas. This was also accompanied by the introduction of the right to rehabilitation and resettlement which emerged as a legal right for the affected party for the first time. Moreover LARR also brought in a retrospective clause which mandated that if the land was not used for five years it would be returned to the original owner. It specified the kind of land that could be acquired and restricted the acquisition of multi-cropped fertile land. Furthermore it also imposed a penalty clause involving punishment for government officials who were found guilty of violating any of the terms and conditions of the law.
With all these changes in place, the new act was considered a huge step forward from the 1894 act, with a degree of space for affected families. However, as soon as NDA came to power in 2014, they wanted to go back on the act they had agreed to in 2013. The excuse for bringing in an ordinance was that it was required to extend the higher market rate to 13 parallel laws under which land is acquired listed in the LAAR 2013 appendix. Additionally, PM Modi argued that the LARR 2013 was too cumbersome and was holding up land acquisition for key projects; and claimed that changes were also required for rural infrastructure. The ordinance proposes a removal of the consent and SIA clause, suggests an elimination of the rider on acquisition of multi-cropped land and attempts to maneuver around the rehabilitation and resettlement feature of the LARR act. Moreover, by expanding the idea of what counts as public purpose, wherein it lists luxury hospitals and schools as public interest, it makes acquisition under the pretext of infrastructure and development easier for private interests.
In this sense then, the ordinance appears as a return to the 1894 act that had led to so much protest over the years, as well as police firings. This does not imply, however, that the LARR 2013 was free from asymmetries of power between state and affected families. While the current ordinance expands on the idea of public purpose the LARR 2013 kept this idea ambiguous and inclusive, making room for power to flow in as vested interests.
One of the features of the 2013 act which has also been retained and has been much publicized by the NDA is the enhanced compensation across all acts under which land is acquired such as the Coal Bearing Areas Act. However, market value means different things for different entities like the state, real estate brokers and land owners. Government market value is significantly less than the actual market value. Moreover, in many places such as scheduled areas, there is no market in land as land cannot be freely bought and sold to non-adivasis. Besides, the act ignores the lack of desire on the part of many land owners to part with their land despite high monetary compensation.
While LARR 2013 required consent, it is a well known fact that fake and forcible consent can be obtained and land acquisition carried out. The same is also true for the Social Impact Assessment feature which can be as precarious as an Environmental Impact Assessment (EIA). These are often rigged in a way where those actually affected are denied a voice, and others who have nothing to do with the project are brought in from outside.
Neither LARR 2013 nor the LAA 2015 have focused adequately on the idea of land use change which is an essential feature of land acquisition today. While most often land acquisition is a prior step to land use change making the latter an easy process, this does not mean that we conflate the two processes. Some land use change based on stricter ideas of rehabilitation, resettlement and compensation is needed and one cannot always oppose all instances of land acquisition. This implies that while land acquisition can be justified in some instances, attempts at mapping out what these conditions are and making this process legitimate have so far been absent within the debates around the legality surrounding land acquisition.
Evidently then, there is a need to substantively alter the present land Acquisition bill alongside challenging the earlier existing LARR 2013 act so that vested interests are not allowed to benefit from ambiguities and possible loaded interpretations of law. Regional experiences of land acquisition from West Bengal, Goa and Gujarat alongside the urban-rural variations in land acquisition point to various inconsistencies present within LARR 2013 as well. For instance, both the 1894 Act and LARR 2013 did not recognize the existing Goankari system of common land use and ownership in Goa. Similarly, there have been multiple provisions within these acts used to acquire land in Gujarat and Uttar Pradesh which have not been in best interests of land owners and have benefited industrialists and real estate players. Moreover many of these acquisitions have been facilitated using police brutality and by misusing the law and the expression for dissent has been narrow and heavily curtailed in this regard.
Most of these acquisitions have been carried out under the pretext of urbanization which is described by the government as a viable public purpose, and there is consistency in terms of promoting an imagination of the urban which involves building smart cities, industrial corridors and changing land use from agriculture to more productive activities. In fact such urbanization is seen as coterminous with development and this logic then dominates the acquisition of wastelands as well, where waste is seen as being passed on to more “productive hands” to ensure urbanization. The fact that what government defines as wasteland continues to provide people with their livelihood reveal how the state’s perception of urbanization, growth, waste and so on need to be more deeply probed for a nuanced understanding of the problem at hand.
The state’s incorporation of a fixed urban imaginary also requires inquiring into the nature of land acquisition within urban space. The specific example of Mumbai shows how forceful land acquisition is an equally common practice in cities. However, it is not termed as land acquisition within the boundary of a city and instead appears in the contexts of firstly, affordable housing and secondly, industrial corridors. These two, in particular, reflect a new strategy of urbanization wherein multi-crop fertile land will be acquired to build a “smart city” and land on the rural-urban periphery will be traded off for land within the city for the urban poor. This is indicative of a desire to not only push the urban poor to the margins but also implies that there is no law to deal with ‘acquisition’ in the city, rendering all acquisition that takes place within the city necessarily lawless. While the 2013 LARR at least mentions urban areas, there is absolute lack of clarity regarding what the 2015 ordinance might propose in this context. Such ambivalence then allows the state to exercise arbitrariness in interpreting laws that benefit some people at the expense of others and makes room for impunity within the law.
Public Interest, Sovereignty and the State: The larger Emergent Politics of Land Acquisition
The idea of the state as sovereign, holding ultimate supreme power is a European concept that found entry in India with colonialism. The basis of eminent domain is sovereignty, public interest and the state’s supposed capacity to determine this notion of public interest. But rather than the constitutional idea of the state being a protector of the weak against the strong, today it is no longer even a neutral arbitrator appearing to mediate between varying claims and interests. Post the liberalization era even the limited Nehruvian efforts for land reforms came to a halt. Instead, the eminent domain clause is invoked for private interests with the constant invisibilization of those displaced. Likewise, with the present ordinance, sovereignty is also asserted by providing legal protection to government servants against penalization for violating conditions laid out by the law during the course of land acquisition.
Such lack of accountability then pushes one to question where the state is exercising its powers of decision making. In this regard it has been argued that primary decisions surrounding land and its usage have come to be located at the upper echelons of state bodies and principles outlined by them are difficult to challenge even through litigation. Nevertheless, in the last few years there have been multiple overruling by the Supreme Court in the form of judgments around land acquisition cases in areas like Gurgaon where the decision has been in the interest of the aggrieved parties. These positive interventions by the judiciary however have not been able to solve the problem of contentious issues like compensation which even after being enhanced barely comes down to the level of actual market value. The market value for land which is calculated through circle rates or sale deeds most often is undervalued because of obsolete land records, and tendency to understate stamp duty resulting in over-acquisition of land.
Besides, there is a need to look at the larger politics surrounding the practice of land acquisition which influences the power to determine rights to land. With the current ordinance, seen in conjunction with other bills like the Mines and Minerals Bills, the distribution of such power has been disproportionate and the Centre has been devolved with greater power than the state governments. For instance, the present Mines and Minerals ordinance gives the Centre power to increase the area marked out for mining and set the conditions for auction of leases and selection of bidders. This essentially restricts the power of the state governments in controlling such matters and indicates to bias in devolution of powers with the new legal changes being introduced.
In this context then, there emerges the need to look for possible solutions to the ongoing land acquisition problem both in terms of demands for adequate rights to land and livelihood, such as a National Development Act. Organizations like the National Alliance of People’s Movements have asked for a white paper on land usage since 1947. In combination with a demand for rights surrounding land and livelihood, there also exists a need to insist on plurality in terms of the location of decision making and sovereignty. Regarding the present land amendment ordinance, only time can tell what shape the current problem surrounding resources like land will take, but for now the need of the hour is to analyze and discuss the law threadbare so that the substantial and collective land rights are not usurped from land owners.
Sophia Zehra Abbas | The writer is a research scholar at the Department of Sociology, Delhi School of Economics. This article is based on a seminar held at the Delhi School of Economics on April 8, 2015.