Bypassing a law

The promise to fast-track environmental clearances raises concerns about whether such decisions will be made ignoring the very purpose of the LARR Act, which is to do justice to all victims of land acquisition.

Forty hectares of agricultural land, including the paddy field in the picture, is slated to be acquired by the Chennai Metropolitan Development Authority to build a truck terminal abutting the Outer Ring Road in Tiruvallur district.

THE Congress-led United Progressive Alliance (UPA) government’s reported zeal to fast-track environmental clearances pertaining to a slew of projects in the public and private sectors as well as those in a public-private partnership mode has raised concerns about whether the stipulations of consent, social impact assessment, fair compensation and rehabilitation laid down in various laws, including the recently enacted all-encompassing Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, or LARR, 2013, will be bypassed in the process. The fast-tracking of the clearances has to be seen particularly in the light of the new law, which came into effect on January 1 with the notification of the rules (draft rules as of now).

The UPA, accused of prolonged policy paralysis, appears to be making a point to the corporate sector possibly to prevent it from moving towards an investor-friendly Bharatiya Janata Party (BJP) and its prime ministerial candidate and Gujarat Chief Minister Narendra Modi. More so, when the LARR Act itself has been largely silent on several fundamental issues pertaining to land use and on the definition of public purpose.

While the need to replace the Land Acquisition Act, 1894, was recognised by all political parties and some of the provisions of the new Act have been hailed as progressive, the exclusion from the main Act of as many as 13 Central laws under which the bulk of land acquisition is done as of now remains a matter of concern. It maybe recalled that the 1894 Act was amended drastically and a new piece of legislation was drafted following widespread protests by farmers and peasants over the arbitrary acquisitions of their land by the government, in many cases on behalf of the private sector. The new Act provides for a basic regulatory framework under which all land acquisition negotiations may be done under a time frame, and lays down firm parameters for social impact assessment, compensation and resettlement. Only in certain circumstances does the Act provide certain projects exemption from social impact assessment. In addition, monetary and non-monetary benefits have also been laid down in the Act.

Many of these fast-track clearances pertain to the areas that come under the exempted list under Schedule 4 (Section 106) of the LARR Act, such as the Land Acquisitions (Mines) Act, 1885, and the Coal Bearing Areas Acquisition and Development Act. The overarching declarations of fast-tracking of projects by the Ministry of Environment and Forests (MoEF) have raised concerns about whether such pronouncements and decisions are fraught with the danger of bypassing the very basis of the LARR Act, which is to do justice to all victims of land acquisition. Interestingly, the government has arrogated to itself the power to issue a notification amending or altering any Schedule in the Act, bypassing Parliament. This, in effect, means that if the government so wills, it can bring the exempted Central Acts listed in its Fourth Schedule under its main domain, making applicable all the provisions and preconditions of consent, compensation, rehabilitation and resettlement in these cases as well. “If the government is sincere about implementing the LARR Act, it should do this,” said P. Rajeev, Rajya Sabha member of the Communist Party of India (Marxist). He had moved several amendments to the LARR Bill during the debate in Parliament, including one that called for the inclusion of the exempted Acts as well.

Public purpose There has been considerable disquiet over the definition of public purpose in the Act. The report of the Standing Committee on Rural Development (2011-12) which examined the draft Bill had said emphatically that the definition of public purpose and infrastructure projects should not be left open-ended. The main contention was that the Bill had thrown the doors wide open for any kind of land acquisition, whether by state enterprises, private enterprises or PPPs. Why should the state be involved in acquiring land, which is the most precious and scarce of the three factors of production? PPPs should be limited to linear infrastructure and irrigation, including multipurpose dams, and social sector infrastructure such as schools, hospitals and drinking water works and sanitation lines should be constructed at state expense.

“The new law should be applicable to all projects, even the pending ones. If the project comes under the Panchayats (Extension to Scheduled Areas) [PESA] Act, 1996, or the Forest Rights Act, consent, not just consultation, of the gram sabha is needed. The fast-track mechanism is essentially to bypass all these processes. If at all there are complaints of delay, the government should amend the rules and give reasons for declining sanction or explain why the project satisfies the criteria of public purpose. If any provision contradicts any other Act pertaining to the environment, for instance, the existing Acts should be amended in accordance with the LARR Act. This is a new piece of legislation and in consonance with objective realities. It could be better but all clearances should be subject to this new law,” said Rajeev, who was a member of the Standing Committee on Rural Development. He expressed surprise at the fast-track clearance approach of the new Minister for Environment and Forests, M. Veerappa Moily. “It should be explained whether adequate procedure has been followed on land acquisition under the new law. If the government is so keen to show its investor-friendly face, it should approach the Supreme Court to lift the stay on coal projects. As it would be a clear violation of rules, the government is not doing so. The rules have to be followed in this case as well,” he said.

Referring to the assurance given by Union Minister for Rural Development Jairam Ramesh that the exempted Acts would be brought under the main body of the LARR Act within a year, he said the intention would be clear if the government brought forth amendments. “As per my understanding, there is neither an intention nor an attempt to do so. After an assurance is given, it should be implemented within 60 days and if the Ministry concerned fails to do so, it should approach the committee on governmental assurances, giving reasons or seeking extensions. When I was in the chair of this particular committee, I found an assurance that was pending for 10 years. We looked into it and cleared it within two weeks. There has to be some action taken report by the Ministry for the assurances given by its representative on the floor of the House,” he added.

Pointing to a more fundamental problem of multiplicity of authority and laws, including bureaucratic interference, S. Ramachandran Pillai, Polit Bureau member of the CPI(M), cited the example of two different reports on the status of the Western Ghats—the Madhav Gadgil report and the Kasturirangan Committee report. The latter report, which he said was mainly a “political document”, had rejected the former. The entire issue concerned six States. It was for the government and the bureaucracy to say which of the two reports was more scientific and correct, he said. “Files are pending [in government departments] for various reasons; and some are cleared for reasons that are not clear, raising speculations and allegations of corruption. Clearances are given on the basis of personal likes and dislikes or for political reasons,” he told Frontline . A statutory body consisting of experts and people’s representatives should be the basis for drafting any piece of legislation, and conclusions should be arrived at by adopting a transparent procedure. He said only when projects were cleared did people come to know about them. Most of the laws relating to the environment or the LARR Act itself had emerged against the background of neoliberal policies, and environmental protection had become a casualty in the process.

The CPI(M) had demanded that the government at least come up with a land use policy to assess how much land was required for cultivation and land acquisition be done strictly on that basis. “Had there been a land use policy, over-exploitation of resources and people could have been avoided,” he said. The Land Reforms Policy, he said, was a reasonably good document and contained provisions for the preparation of a land use plan for acquisition, but this policy lacked statutory backing. “It is only the Ministry of Rural Development that is pushing this policy. Even the Cabinet has not approved it,” he said, adding that the Central government should show a will to implement it. He was critical of the government’s moves to approve foreign direct investment in farmland and real estate. “The only thing that the peasants have is land. They have to be made partners in development,” he said.

Clearly, fast-track clearances are meant to assure the captains of industry that the government does not intend to put impediments in their path. Expediting projects on such a basis could only end up making a mockery of the seemingly just clauses in laws such as the LARR Act which, despite its drawbacks, appears to have provisions for democratic participation and economic and social justice.