Land acquisition ordinance

The Ides of March

Print edition : April 17, 2015

Members of the Bhartiya Kisan Union protest against the NDA's anti-farmer policies at Jantar Mantar in New Delhi on March 18. Photo: Shiv Kumar Pushpakar

The BJP government is taken aback by the groundswell of opposition to the land ordinance.

IF the outcome of the Delhi Assembly elections came as a shocker to the Bharatiya Janata Party, the broad opposition, inside and outside Parliament, to the promulgation of the land acquisition ordinance and the government’s decision to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Act, 2013, also called the LARR Act, has stumped it. The bugle of protest was sounded in early January itself, with political parties like the Congress taking to the streets and mass organisations of the Left and other people’s movements making their resentment vocal in separate forums. Moves to defend the ordinance, first by Union Finance Minister Arun Jaitley and then by Parliamentary Affairs Minister M. Venkaiah Naidu, had little impact as the government was viewed as increasingly obdurate. The three-day protest in the national capital in mid-March by thousands of farmers from western Uttar Pradesh, Punjab, Haryana and even Karnataka, led by the Bharatiya Kisan Union of Rakesh Tikait, was perhaps a signal to the government about the widespread resentment. The BKU had lent its support to the BJP during the Lok Sabha elections.

There was a marked difference between the agitations in January and in March; adding to the farmers’ ire against the LARR ordinance this time is the major crop damage in north and north-west India because of unseasonal rains and the delay in the survey of the damaged crops—mustard, wheat and sugarcane. The “Mann ki Baat” address on national radio by Prime Minister Narendra Modi on March 22 was therefore to assure the farming community of the government’s sincere intentions. But with the speech focussing only on the ordinance and that too without addressing the core issue of consent for land acquired and compensation for damaged crops, the public relations exercise seems to have backfired.

Exhaustive consultations were held before passing the LARR Bill, 2013, mainly because the previous United Progressive Alliance (UPA) government was compelled to address contentious issues and conflicts arising from land acquisition that were making the implementation of its own economic and industrial expansion agenda difficult. The BJP lent wholehearted support to the consultations. The Standing Committee on Rural Development was headed by the current Speaker of the Lok Sabha, Sumitra Mahajan of the BJP.

In fact, the Left parties had pushed for several progressive amendments that dealt with the consent of the gram sabha and the rehabilitation of and compensation for all people dependent on land, not just landowners. It was also at the insistence of the Left, pushed primarily by Basudeb Acharia of the Communist Party of India (Marxist), or CPI(M), and Prabodh Panda of the Communist Party of India (CPI), that sections incorporating compensation and employment to the landless were included in the Act.

The ordinance of December 31, however, seemed to negate the very ethos of the legislation, as set out in its opening paragraph: to “ensure, in consultation with institutions of local self-government and gram sabhas… a humane, participative, informed and transparent process for land acquisition for industrialisation, development of industrial facilities and urbanisation, with the least disturbance to the owners of the land [and] the affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to improvement in their post-acquisition social and economic status….” The ordinance, in fact, broadened the list of categories of projects exempted from consent and social impact assessment (SIA).

In the LARR Act, consent was mandatory in all categories of land acquisition except in the case of the exempted categories where the “urgency” clause applied and where the government would acquire land for government projects. SIA was mandatory for land acquisition even in the exempted categories. This was basically to ensure that the displaced populations would be financially compensated, resettled and rehabilitated elsewhere.

The LARR Act also mandated that 13 pieces of legislation listed in its Fourth Schedule, which initially exempted projects from consent, SIA, and land acquisition in view of food security safeguards, were to be amended within a year so as to bring the compensation, rehabilitation and resettlement provisions of these 13 laws in consonance with the Act. The Left parties had insisted on this from the very beginning, but the then government left it hanging.

Private entity

What the BJP government did was to bring about fundamental changes in the Act, whereby it not only expanded the ambit of the exempted categories in order to facilitate land acquisition without the obligations of consent, compensation, rehabilitation and resettlement but also introduced new features, citing that State governments, including Congress-led ones, were finding it difficult to implement the 2013 Act. First, it introduced the concept of “private entity” instead of “private company”, widening the definition of the term itself. According to this, “private entity” is any “entity other than a government entity or undertaking and includes a proprietorship, partnership, company, corporation, non-profit organisation or any other entity under the law for the time being in force”. Under the LARR Act, land could be acquired by the government and by private companies only after fulfilling certain conditions.

Secondly, the 2013 Act explicitly stated that when the government acquired land for its own use, hold and control, including for public sector undertakings, it could do so for infrastructure projects too except for private hospitals, private educational institutions and private hotels. This was in keeping with a list of infrastructure activities notified by the Department of Economic Affairs of the previous government. A new clause in the 2015 ordinance omitted the parts relating to private hospitals and private educational institutions; this indicates that the government can now acquire land for such purposes as well under infrastructure.

In fact, Arun Jaitley argued vociferously for such institutions in his article “Amendments to the land acquisition law: The real picture” on why he defended the ordinance. Interestingly, Modi’s address to the nation strove to give the impression that even if the government acquired land for such purposes, it would be in the control of the government. But nowhere was it mentioned that infrastructure would mean government hospitals or government educational institutions.

Thirdly, the ordinance exempted five categories from consent, consultation with the panchayat, municipality or municipal corporation, and SIA. These are national security or defence; rural infrastructure, including electrification; affordable housing and housing for poor people; industrial corridors and infrastructure; and social infrastructure under public-private partnership (PPP) where the ownership of land would continue with the government.

The LARR Act also provided for an environmental impact assessment and the appraisal of the SIA by an expert group. Chapter 3 of the Act, in particular, had provisions to ensure food security when land is acquired. In this, it was required to be established whether the land being acquired was done under exceptional circumstances or as a demonstrable last resort. It also provided for an equivalent area of cultivable wasteland to be developed for agricultural purposes in the eventuality of multi-crop land being acquired.

The ordinance further granted exemption from consent and SIA to projects listed under Section 10 A, which were in the nature of PPPs, projects of private companies for public purpose. The 2013 Act clearly stated that consent of 80 per cent of the affected families in the case of private companies and 70 per cent in the case of PPPs (where the land would vest with the government) was required. The relevant subsection stated that no land would be transferred by way of acquisition in the scheduled areas in contravention of any law in such areas. The ordinance did away with all these protective clauses.

Other contentious areas in the ordinance included nullifying the retrospective application of enhanced compensation and the return of unutilised land. In fact, the BKU reminded the government that when the ruling party was in opposition, it had pushed for land being taken on lease rather than acquisition by the government or private entities.

New features

Interestingly, notwithstanding the growing opposition to the ordinance and the discomfiture of the NDA constituents themselves, the government has introduced more amendments to the ordinance where now it can acquire land up to one kilometre on either side of industrial corridors. It has withdrawn the term “social infrastructure” from the list of the five new categories it had created for exemption and has introduced provisions to determine whether the land was the bare minimum required for the project, for the survey of wasteland, for the mandatory employment for farm labour, and so on. While some of the “new features” introduced, such as the employment of the landless displaced by acquisition or the survey of wastelands, were aimed at projecting that the government was not anti-poor or anti-farmer, there is no change in the clauses pertaining to the return of unutilised land and retrospective enhanced compensation. The acquirer was no longer obligated to return unutilised land, neither was there any obligation to provide enhanced compensation where notifications under the 1894 Act had been issued and where neither possession nor compensation had been paid. In addition, the new proposal to extend the land for industrial corridors has created a fresh controversy given the experience of the Yamuna Expressway.

‘Draconian provisions’

The All India Kisan Sabha (AIKS) has protested strongly against the amendments to the LARR Act. In a statement released by its office-bearers Amra Ram and Hannan Mullah, it said that the “government has in effect reinstated the most draconian provisions of the colonial Land Acquisition Act of 1894 and removed the necessity to seek consent of farmers and other dependants on land as well as done away with the SIA altogether”.

Vijoo Krishnan, joint secretary of the AIKS, told Frontline that the ordinance continued to exempt the category of projects under Section 10 A from the requirements of SIA. He said that there should be safeguards for food security as even fertile multi-cropped land and productive rain-fed land could be acquired. He reiterated the old demand of the AIKS for a land use policy at the national and State levels. The 2013 Act was silent on this, but the ordinance too is equally impervious to this demand. In fact, both the CPI(M) and the CPI had vociferously argued for a land use policy during the UPA’s tenure.

“The government’s claim of offering a job to one person of a family is like uprooting a family from their main source of livelihood and giving a token job to one person of the family. It also does not address the problems of a wide cross section of dependants on land,” said Krishnan.

He added that the expansion of the definition of industrial corridors was a violation of the provision that only the bare minimum of land required for projects be acquired. He said that there were calculations which showed the Delhi-Mumbai Infrastructure Corridor, passing through six States, alone would require 14,41,726 square kilometres and over 50 per cent of this area was agricultural land. Similarly, for the creation of the new capital of Andhra Pradesh, over 7,000 s. km of fertile land was being acquired. “The government is trying to arrogate to itself the right to decide what is ‘good’ for the people without taking their opinion or consent or having a social impact assessment,” he said.

Significantly, while the Prime Minister in his address to the nation accused the opposition of spreading lies, the reactions from farmers and land dependants across the country have been different. Farmers from Baghpat Frontline spoke to said that they were not averse to homes being built for the poor. “Let the government or the acquirer give us full compensation at market rates and rehabilitate us too; we will give them our lands. Why have they stopped the subsidised fertilizer? We have learnt that imported sugar is lying at the ports while we have not been paid our dues from the sugar mills for months. It is a problem not only of the landowner. Even the landless are connected to land. All farming clans and communities [known colloquially as the chattis biraadari] have links with land," one of them said.

Farmers from Jind and Hisar in Haryana narrated how fertilizer was being distributed from police stations and how women were lathi-charged in Barwala (Hisar) when they protested against the short supply. “There is no fertilizer anywhere,” one of the farmers said. The State government apparently has not announced any compensation for the damaged crops and only three districts in the State have been declared as being affected by the unseasonal rains.

“The Chief Minister tells us that the Haryana farmer does not know how to sell. He says we should not grow cotton or wheat but cultivate flowers,” said Pradeep, the head of Mirchpur village in Hisar district. “The farmer’s consent is absolutely essential. Under no circumstance should fertile land be taken by government or anyone else. They will install factories manufacturing face cream and powder,” said Sunil from Baghpat.

As opposition to the ordinance mounts, the BJP too seems to be doing a rethink given the impending elections in Bihar where it does not want to be seen as an anti-farmer or anti-landlord party.

The government was taken aback by the resolute and impressive joint march led by 14 political parties to the Rashtrapati Bhavan to submit a memorandum to the President protesting against the ordinance. The Left parties, which were an active part of this march and vehemently opposed several of the contentious Bills introduced in the last session, have extended their support to a joint front opposing the land Bill.

The ordinance will lapse on April 5. The Cabinet Committee on Parliamentary Affairs has recommended the prorogation of the Rajya Sabha as that would be the only way it can re-promulgate the ordinance.

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