More on law, less on justice

Print edition : July 10, 2015

People of Nandigram fleeing following clashes between the police and political groups on the issue of land acquisition, on March 15, 2007. Photo: Arunangsu Roy Chowdhury

The book is primarily about the evolution of the LARR Act, 2013, and the debates that led to the making of it, but on the land question it is limited in perspective and detail.

In Dee Brown’s acclaimed book Bury My Heart at Wounded Knee, an Indian history of the American West, an anonymous Indian tells the journalist-turned-author that the white Americans “made many promises, more than I can remember, but they never kept but one; they promised to take our land and they took it”. That was America in the 19th century.

The Land Acquisition Act, 1894, introduced by the colonial rulers in the Indian context was not very different in its intention. It gave rights of “eminent domain” to the state to take land whenever it willed and for whatever purpose it deemed fit. The power of a government to expropriate private property for public use was a contested category, unregulated in character. After Independence, it suited the government to continue with this approach. It was sometime in the 1990s, when land began to be acquired on a large scale and handed over to various private entrepreneurs in the name of public good, that the 1894 Act and the minor amendments made to it in 1984 began to be questioned. People, especially landowners, were not keen to part with their land unless properly compensated. Also, people displaced by land acquisition under various projects were now protesting. A government keen to push its agenda of neoliberalism found it difficult to deal with the consequences of globalisation, even the one with a human face. The mantra of the decade failed miserably as the subsequent recession that hit Europe, an outcome of Europe’s more-than-three-decade-long experiment with neoliberalism, was to show. Neoliberalism and globalisation were the twin gods that had failed; ruined economies bore testament to that.

It is precisely against this backdrop that the United Progressive Alliance (UPA) government, in its second avatar, buoyant with the belief that it might yet notch a third term without the help of the Left parties whose progressive agenda had helped push several pro-people laws during its first term, undertook the exercise of revisiting the 1894 law. Protests against forcible acquisition of land were occurring practically all over the country, including in Congress-ruled States. Many of the protesters convinced themselves, as a matter of sheer political convenience, that it was the unfortunate episode in Nandigram (West Bengal), where, still unknown to many, not an inch of land was acquired, that provided the trigger for the reform of the 1894 law. Governments were finding it difficult to acquire land for the reasons mentioned above. The first national Rehabilitation and Resettlement Policy emerged only as late as 2003. It was prepared in response to the displacement and unrest following land acquisition in the Narmada valley for the Sardar Sarovar Project.

Legislating for Justice: The Making of the 2013 Land Acquisition Law by Jairam Ramesh, who was Rural Development Minister in the UPA government, and Muhammad Ali Khan, an advocate in the Supreme Court, gives a fairly competent and accurate overview of the immediate background in which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (LARR), 2013, emerged. As two individuals who were deeply involved in the drafting of the law among others—the Rural Development Ministry was the nodal Ministry—the authors had the opportunity to interact with a wide spectrum of representation and were able to take feedback from other political parties. What began in 2007 culminated in the enactment of a humane law in August 2013 as compared to the 1894 Act, which gave unbridled powers to the Collector.

The publication of the book coincided with the National Democratic Alliance (NDA) government’s decision to re-promulgate the ordinance amending the original Act for a third time. The authors give a little historical background about the reasons for the enactment of the new law, giving a comparison between the 1894 Act and the apparently more democratic and inclusive 2013 Act, replete with new features such as social impact assessment and consent of those whose lands were sought to be acquired. The authors also acknowledge that not only did the archaic law need to be replaced but the unrest and agitation over forcible acquisition was also a factor that influenced the government’s resolve to bring forth a new law. They explain why a policy like the National Rehabilitation and Resettlement Policy, 2007, or similar policies in some States and public sector enterprises were found inadequate. It was simple. There was no legal mechanism to implement a policy.

However, the documentation of the unrests has been selective. The authors have papered over the extended protests in Congress-led States such as Haryana. A case in point is the long-drawn agitation against the installation of the 2,800 MW nuclear power plant at Gorakhpur village in Fatehabad district. Farmers of the village conducted prolonged sit-ins from 2012, before the making of the law. The authors also fail to mention the protests by farmers of Jhajjar district in Haryana against the acquisition of their land for the setting up of a special economic zone (SEZ); the land was sold to a private entity and was lying fallow for several years. High-profile protests like the one at Bhatta Parsaul (an image of the protest is featured on the book cover) in western Uttar Pradesh and the textbook case of Nandigram are illustrated as examples of protests against land acquisition —both the protests took place in non-Congress-ruled States.

The authors acknowledge that rehabilitation and resettlement has been the “subject of impassioned debate for almost three decades in India. Entire movements for effective rehabilitation and resettlement have been spawned in the wake of coercive acquisitions”. They admit that there is no record of the actual number of people displaced post-Independence though it was estimated that the figure was around 60 million.

It is pertinent to perhaps note here that the three-decade period roughly coincides with the new economic regime introduced in the country post-1990s. Much of the accompanying acquisition and displacement took place when the Congress ruled at the Centre. Land was always a State subject, but it took almost six and a half decades for the party that was in power for the majority of that period to amend the colonial Act.

With all its warts and moles, the LARR Bill was finally passed by the Lok Sabha on August 30, 2013. For all purposes, it can be described as a reasonably fair piece of legislation, the fairness that a capitalist mode of development allowed without quite upsetting the apple cart as it were. There were provisions for partial application of a retrospective clause pertaining to compensation where land had been acquired under the 1894 Act and was in various stages of actual possession. However, the state could not be compelled to give compensation in projects that had been partially completed. There are some interesting details that indicate how the Congress-led UPA was keen to get the law passed before its term ended.

This is evident in the candid admission by the authors in the chapter on “Retrospective Operation”: “Following the passage in the Lok Sabha, anxious officers from the government of Madhya Pradesh flew down with a list of concerns. Suddenly having been presented with the real possibility that the Bill might become law, they sought certain amendments to prevent the law from having a deleterious impact on existing/pending projects… one of these recommendations suggested that compelling the State to provide rehabilitation and resettlement projects which had partly been completed would unleash a chain of protest and litigation that could derail the entire project. Giving way to this concern (which did seem legitimate), and mindful of the support required from the leading opposition party in the Rajya Sabha, it was agreed to carry out the required amendment.”

Self-adulatory

The book is somewhat timely for another reason, coming as it does in the midst of a raging controversy over the drastic amendments made to the law by the NDA government. A chapter cryptically titled “The Ordinance” gives a glimpse of the nature of the present controversy. For the Congress, which viewed the Act as one of its landmark achievements, the book serves as a useful propaganda tool. Some sections are somewhat self-adulatory.

For instance, the chapter on “Special Provisions for Scheduled Castes and Scheduled Tribes”, where paragraphs are devoted to evaluating the legislative and policy history of the UPA government between 2004 and 2014. “During this period, the government had one clear priority; the putting in place of measures to enhance the status of marginalised communities. Laws were interpreted broadly and then implemented zealously with the objective of fortifying the rights of a historically disadvantaged people.”

Two factors are conveniently overlooked here. First, that the UPA owed much of its progressive legislative agenda to the outside support extended by the Left parties to its government in its first term, and second, that the UPA sought legal remedies for solutions to problems facing the people. Land reforms or land redistribution strangely never seemed to be on the agenda. The authors are justifiably critical of the present government’s efforts to undo the law, the changes, which they say are “a significant step backward in India’s march to land reforms”. But the LARR Act, 2013, was never about land reforms.

The book is relevant and useful to the extent that it helps one understand why the law was necessary. What is untold, however, is how a government, eager to push its economic agenda with a human face, resolved to craft a law which by its very nature of projected fairness and transparency exposed the contradictions within various sections of the government and also the pressure of industry, which becomes evident in a closer reading of discussions preceding some clauses in the Act, particularly apprehensions relating to appraisals by non-governmental expert committees as well as the “conditional” acquisition of multi-crop land. That industry was unhappy with what it felt were cumbersome procedures for land acquisition apart from what it felt were high rates of compensation would be an understatement. The government, on its part, tried hard to assuage those apprehensions and project a pro-industry image as well.

It was an open secret that there were attempts to dilute the percentage and proportion of consent. There were pressures from within the government and from outside. Yet the UPA was desperate to project a pro-poor image in the light of the scams and corruption scandals that enveloped it.

The Land Bill, among various other “rights-based” pieces of legislation, was supposed to deliver the UPA into its third innings. It was not to be. The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) was faltering, the food security Act had not taken off, food inflation was at its highest and a piece of legislation on universal and accessible health care was still pending. Budgetary promises to the social sector, despite the slew of progressive laws, remained stagnant. Fiscal fundamentalism, just like in the NDA of today, remained a dominant feature in UPA-II. Interestingly, the opposition parties supported the Bill; many of them, the Left, in particular, moved amendments, some of which were incorporated early on, like that to include all those dependent on land eligible for compensation.

The 246-page book has 112 pages in annexures devoted to highlighting selected parliamentary debates on the Bill by members of various political parties, including the Bharatiya Janata Party, which was then in the opposition. The selected debates are not without a purpose.

The idea is to show that parties across the political spectrum debated the Bill and supported its passage. In fact, more than the Left parties who proposed amendments and even insisted on voting and a division of votes, it was the BJP which seemed to overwhelmingly support the legislation. This is in stark contrast to the present position taken by the BJP-led NDA, which has modified the original Act in many fundamental ways. The ordinance route was resorted to not once but three times despite overwhelming protests inside and outside Parliament.

The last chapter, “Acknowledging the real challenges”, does not do much justice to the real challenges as it identifies the “land problem” as one caused by the scarcity of land and a large population dependent on the same. Neither are poorly managed land records and weak land rights the real challenge, as mentioned, nor can the suggested solution be technocratic in form. No government, barring Left-led regimes, has dared to implement land reforms for fear of upsetting the cosy big-industrialist-big-landlord nexus. And India is not socialist enough for collective interests to take precedence over individual rights.

There are about 300 million landless people in the country and a law on land acquisition, however fair it may be, cannot address this. The present government has assured them jobs by bringing changes in the LARR Act. But mere acquisition of land does not lead to job creation as the audit report of the Comptroller and Auditor General (CAG) on the performance of 152 SEZs showed in 2014. The “growth engines” failed to deliver on employment and investment; in short, economic growth.

Legislating for Justice makes interesting reading. It explains the whys behind a law that is so much under discussion. A comparison with the experience of other countries, other than the United States and the United Kingdom, would have been more enriching. The book does justice to the title to the extent that it is primarily about the evolution of the LARR Act, 2013, and the debates that led to the making of it. Its understanding of the land question as it were is limited in perspective and detail.

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