New Bill is not what it is being made out to be; it will not address any of the major problems in land acquisition
The new draft Land Acquisition and Resettlement and Rehabilitation Bill, announced by the Ministry of Rural Development, is a classic example of a law that looks good on paper but that will produce a very different result. This is true not only because of internal flaws or drafting mistakes, but because of its very character and spirit.
Most commentators have been relying on the introductory material produced by the Ministry without reading the Bill itself; but a close reading of the Bill shows that the reality is different from what is being presented. In a few cases the presentation says things that are not in the Bill at all, while in most cases the law contains far more loopholes and dangers than the presentation reflects.
The major problems in land acquisition today include the following:
How will the draft Bill in this form respond to these problems? The short answer is:
This Bill will supposedly open the process of decision making on projects to public input. In
particular, the most significant stated advance is that 80% of the affected people have to consent for acquisition for a private company.
But the Bill contains so many loopholes that it will be very easy for almost any project to get around the 80% consent clause.
Witness the following:
Section 1(2)(b), to which the 80% clause does not apply, permits the government to engage in "partial" acquisition of land for a private party. The term "partial" is not defined. So if a private party acq
uires 100 acres and asks the government to acquire 3000 acres, 80% cosnent is not required, so long as the project is for "industrialisation or urbanisation" (a public purpose under s. 2(y)(ii)) and can be considered a project of the government. Even the area to be acquired is decided by the private company (as implied by proviso to s. 1A(2)). All such projects, it should be remembered, are typically pursued as part of one or the other government scheme or plan. More importantly, many private infrastructure projects are done under "Build Operate Transfer" contracts, under which - after a period of 30 or 50 years - the government is supposed to receive full ownership. But in the interim the private company makes all the profits it wishes.
Suppose the private party wants the government to acquire the entire land. Then, section 1A(1)(a) permits the government to acquire land for "its own use, to hold and to control" without taking 80% consent; crucially, it also permits the government to later change the public purpose. The way the section is phrased, what matters is the intent of the government at the time of acquisition. Therefore, all that is required is a notification that stat
es the government is acquiring the land for its use and control for purposes of industrialisation / urbanisation (a public purpose under 2(y)(ii)); then there's no need for 80% consent. Then, since the public purpose can be changed, the government merely declares that it has changed its mind later and transfers to a private party (contrary to what the presentation says, the Bill nowhere states that transfer can only happen between government departments). This can of course be challenged in court, but the burden comes on the person who is making the challenge to prove what the actual intent of the government was.
Finally, as happens routinely today, the law provides enough space for someone to simply break it. Who decides if a project has got 80% consent? How, in fact, is this "consent" to be taken? There is no procedure for obtaining the consent in the law itself. Indeed, as per section 7, 80% consent has to be "ascertained" (not obtained) by the Chief Secretary's committee - implying that it may well be the private developer who will be obtaining the "consent." Even if that is not the case, such a committee is totally unaccountable, and it can easily lie or accept forgeries (this has happened in several cases where consultation was required under PESA, including Polavaram and Nagarnar).
Aside from the 80% consent clause, there is supposed to be a social impact and public hearing process, which is advertised as another step forward for transparency and checking if projects are actually beneficial. Consider:
The entire SIA process is modeled on the Environment Impact Assessment process, which the current Minister Jairam Ramesh described - as the then Environment Minister - as a "farce", with almost 99% of projects receiving approval. The reason was that the assessment process was done by private parties and decided by a centralised body with no time to check facts. This mechanism is almost identical.
The law says nothing about who will do the Social Impact Assessment and how.
There is a public hearing required by section 4; but the results of this hearing are never mentioned. What happens if people object? What happens if most oppose? Who is accountable for deciding on these objections and who will answer for them? Under this draft, no one.
At three different places, the law says "gram sabhas will be consulted." What happens if they object? There is no procedure.
The decision on whether a project is a public purpose will be taken by a Chief Secretary's committee consisting almost entirely of serving State-level government officers. In what way is this different from the current procedure, where this decision is made by the State government?
In short, most of the provisions for public consultation amount to essentially formalities, without any impact on the final decision. The final decision making is done by the same people who do it at present, with or without any additional inputs.
The second claim to fame is the idea that land acquisition and R&R will be "integrated."
But this is also far from the truth. In particular, note that:
Both the presentation and the Bill state that the R&R package will not even be drafted until after the acquisition process is set underway. People are expected to assess the impact of the project (social impact assessment), give objections to the impact assessment, object or accept the supposed public purpose being served, etc. - all without knowing what kind of rehabilitation is to be done. Would this not be the first question asked of them?
Can land be taken before R&R is complete? Presentation and section 29(3) say no; section 53 says land can be taken before compensation is paid, so long as interest is added. Even s. 29 leaves it to the Collector to decide when rehab is complete.
As for "integration", consider what the Bill actually does:
the number of affected / interested people will be determined sep any land acquisition and rehabilitation law arately three times (s. 3 for SIA; s. 11(2) for acquisition; s. 12(1) for R&R), without any mechanism for deciding which is correct;
there are three separate public hearings / invitations for objections to be held at various times, none of which feed into each other, and none of which can lead to the cancellation of the project;
There is an R&R committee (s. 33) with various people on it whose sole job, as per the law's terms at least, is to sit with the Collector once and review the proposed R&R package (s. 13(1));
The Act contains no provisions for enforcement of the R&R package or for its monitoring and grievance redressal during implementation (this in a situation where the biggest complaint about R&R is that it is simply not done as promised). The seriousness of monitoring can be taken from the fact that, once again, there is no monitoring process, and instead three separate authorities are all given the same responsibility for monitoring R&R (the Administrator under 31(3); the Commissioner under 32(2); the R&R Committee under 33(1)), an arrangement that by definition will fail.
The dispute settlement authority that is supposed to settle all disputes under the Act, including R&R (s. 38(1)), is only empowered to give orders on compensation (s. 44); it cannot direct any authority to do anything, nor can it change the R&R package in any way.
The result in practice will be that R&R will not occur and affected people with sufficient support will be sent into PILs and endless court battles; those without will be left with nothing. This is just what happens at present.
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Anyone with a dispute cannot approach a civil court; they have to go to a Dispute Settlement Authority in the State capital, or, in case of Central projects, in Delhi. Is this feasible for most project affected people?
Moreover, no one can approach the authority directly; they have to get a reference from the Collector (s. 38), the very person against whom they are most likely complaining.
The dispute settlement authority is only given the power to award compensation, as noted above, and not to direct any authority to do anything or to change the R&R package.
A government official who violates any provision of the Act is at most punishable by disciplinary action (s.58(3)), which is already the case, and which is entirely controlled by the concerned government.
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The effectiveness of such a system can be imagined.
The Minister's presentation states that the Bill will be in compliance with the Forest Rights Act and the Panchayats (Extension to Scheduled Areas) Act. Yet, despite lip service, this Bill complies with neither.
Forest dwellers are covered as "interested parties", but they are not merely "interested persons" but rights holders with particular rights and powers - in particular over natural and forest resources. This Act treats them as if their rights can simply be taken over in exchange for a fixed R&R package,
when:
the range of rights extends to such rights as grazing areas, water bodies, habitats of "primitive tribal groups", ownership of minor forest produce, etc., which cannot be simply be compensated or replaced, and which require a different procedure; and
more importantly, the Act ignores the powers of forest dwellers to decide on use and protection of forests, under which the decision to create the project in the first place requires their consent.
As for the PESA Act, excepting some ritualistic statements to the effect that "gram sabhas will be consulted", there is nothing in the Bill. This is meaningless when the law does not say by whom, in what manner, and with what result these consultations will be done. Further, as said above, the key question is what happens when gram sabhas object; but the Bill assumes this will never happen, defeating the entire purpose of consultation.
How can such a mess be avoided? The need is to go back to the purpose of land acquisition is in the first place. The only way such acquisition can be justified in a democratic society is if it is 1) in accordance with the overall social goals of that society and 2) decided by a democratic process. More details on this alternative will be presented later, but at present, we reiterate that this process has to have the following basic features:
A democratically decided land use plan: Without an overall land use and development plan, decided from the level of the village up to the State and decided in a democratic manner, such acquisition will continue to be destructive and exploitative.
Any significant change in land use should require resettlement and rehabilitation and a demonstration of public purpose being achieved: This would cover both private parties and the government.
A democratic process of deciding on whether any change of land use achieves a public purpose: This should be through an open process of public decision making from the gram sabha level upwards.
The consent of the gram sabha to any major change in land use: Finally, the consent of the village assembly should be required.
In the absence of this basic procedure, the current problems are likely to continue.
A Good Looking Empty Shell: The New Land Acquisition and Resettlement and Rehabilitation Bill
The new draft Land Acquisition and Resettlement and Rehabilitation Bill, announced by the Ministry of Rural Development, is a classic example of a law that looks good on paper but that will produce a very different result. This is true not only because of internal flaws or drafting mistakes, but because of its very character and spirit. Most commentators have been relying on the introductory material produced by the Ministry without reading the Bill itself; but a close reading of the Bill shows that the reality is different from what is being presented. In a few cases the presentation says things that are not in the Bill at all, while in most cases the law contains far more loopholes and dangers than the presentation reflects.
The major problems in land acquisition today include the following:
1.Profiteering by private interests taking advantage of government acquisition (e.g. NOIDA, Bhatta Parsaul);
2.Non-existent or inadequate rehabilitation and compensation for displaced people;
3.Affected people have no recourse for enforcing their rights, which are often ignored both during land takeover (e.g. POSCO) and during rehabilitation;
4.As the central cause for all of the above, a decision-making process that is totally controlled by government officials, with no democratic or public involvement.
How will the draft Bill in this form respond to these problems? The short answer is:
Problem 1 - contrary to what is being projected, this will probably get worse.
Problem 2 - with the exception of increased compensation for some, this may not change a great deal.
Problem 3 - Recourse will in fact become more difficult.
Problem 4 - The decision making process, despite some gestures towards change, will remain entirely state-controlled.
In short, the draft Bill will not significantly improve things and may make them worse. Public purpose has been so widely defined, and then so many loopholes provided, that there are ways to get around the supposed safeguards. The only two real positive measures are 1) the restrictions on invoking "urgency" and 2) the increased compensation for some landowners. However, increased compensation will not address most of the existing conflicts, and in any case the compensation will still be below what may actually be just.
Below we explore some of the major issues (we have not included all points here). We present some alternatives at the end.Consulting People and Taking Their Consent for Projects
particular, the most significant stated advance is that 80% of the affected people have to consent for acquisition for a private company.
But the Bill contains so many loopholes that it will be very easy for almost any project to get around the 80% consent clause.
Witness the following:
Section 1(2)(b), to which the 80% clause does not apply, permits the government to engage in "partial" acquisition of land for a private party. The term "partial" is not defined. So if a private party acq
Suppose the private party wants the government to acquire the entire land. Then, section 1A(1)(a) permits the government to acquire land for "its own use, to hold and to control" without taking 80% consent; crucially, it also permits the government to later change the public purpose. The way the section is phrased, what matters is the intent of the government at the time of acquisition. Therefore, all that is required is a notification that stat
Finally, as happens routinely today, the law provides enough space for someone to simply break it. Who decides if a project has got 80% consent? How, in fact, is this "consent" to be taken? There is no procedure for obtaining the consent in the law itself. Indeed, as per section 7, 80% consent has to be "ascertained" (not obtained) by the Chief Secretary's committee - implying that it may well be the private developer who will be obtaining the "consent." Even if that is not the case, such a committee is totally unaccountable, and it can easily lie or accept forgeries (this has happened in several cases where consultation was required under PESA, including Polavaram and Nagarnar).
Aside from the 80% consent clause, there is supposed to be a social impact and public hearing process, which is advertised as another step forward for transparency and checking if projects are actually beneficial. Consider:
The entire SIA process is modeled on the Environment Impact Assessment process, which the current Minister Jairam Ramesh described - as the then Environment Minister - as a "farce", with almost 99% of projects receiving approval. The reason was that the assessment process was done by private parties and decided by a centralised body with no time to check facts. This mechanism is almost identical.
The law says nothing about who will do the Social Impact Assessment and how.
There is a public hearing required by section 4; but the results of this hearing are never mentioned. What happens if people object? What happens if most oppose? Who is accountable for deciding on these objections and who will answer for them? Under this draft, no one.
The decision on whether a project is a public purpose will be taken by a Chief Secretary's committee consisting almost entirely of serving State-level government officers. In what way is this different from the current procedure, where this decision is made by the State government?
In short, most of the provisions for public consultation amount to essentially formalities, without any impact on the final decision. The final decision making is done by the same people who do it at present, with or without any additional inputs.
Will R&R Actually Happen Alongside Land Acquisition?
The second claim to fame is the idea that land acquisition and R&R will be "integrated."
But this is also far from the truth. In particular, note that:
As for "integration", consider what the Bill actually does:
there are three separate public hearings / invitations for objections to be held at various times, none of which feed into each other, and none of which can lead to the cancellation of the project;
There is an R&R committee (s. 33) with various people on it whose sole job, as per the law's terms at least, is to sit with the Collector once and review the proposed R&R package (s. 13(1));
The Act contains no provisions for enforcement of the R&R package or for its monitoring and grievance redressal during implementation (this in a situation where the biggest complaint about R&R is that it is simply not done as promised). The seriousness of monitoring can be taken from the fact that, once again, there is no monitoring process, and instead three separate authorities are all given the same responsibility for monitoring R&R (the Administrator under 31(3); the Commissioner under 32(2); the R&R Committee under 33(1)), an arrangement that by definition will fail.
The dispute settlement authority that is supposed to settle all disputes under the Act, including R&R (s. 38(1)), is only empowered to give orders on compensation (s. 44); it cannot direct any authority to do anything, nor can it change the R&R package in any way.
The result in practice will be that R&R will not occur and affected people with sufficient support will be sent into PILs and endless court battles; those without will be left with nothing. This is just what happens at present.
Can People Actually Enforce the Positive Provisions of this Law?
Having provided this confused mass of loopholes and complex provisions, the law finally lets people down on the question of enforcement. Witness the following:.jpg)
Anyone with a dispute cannot approach a civil court; they have to go to a Dispute Settlement Authority in the State capital, or, in case of Central projects, in Delhi. Is this feasible for most project affected people?
The dispute settlement authority is only given the power to award compensation, as noted above, and not to direct any authority to do anything or to change the R&R package.
A government official who violates any provision of the Act is at most punishable by disciplinary action (s.58(3)), which is already the case, and which is entirely controlled by the concerned government.
.jpg)
The effectiveness of such a system can be imagined.
Tribals and Forest Dwellers
The Minister's presentation states that the Bill will be in compliance with the Forest Rights Act and the Panchayats (Extension to Scheduled Areas) Act. Yet, despite lip service, this Bill complies with neither.
Forest dwellers are covered as "interested parties", but they are not merely "interested persons" but rights holders with particular rights and powers - in particular over natural and forest resources. This Act treats them as if their rights can simply be taken over in exchange for a fixed R&R package, when:
the range of rights extends to such rights as grazing areas, water bodies, habitats of "primitive tribal groups", ownership of minor forest produce, etc., which cannot be simply be compensated or replaced, and which require a different procedure; and
more importantly, the Act ignores the powers of forest dwellers to decide on use and protection of forests, under which the decision to create the project in the first place requires their consent.
As for the PESA Act, excepting some ritualistic statements to the effect that "gram sabhas will be consulted", there is nothing in the Bill. This is meaningless when the law does not say by whom, in what manner, and with what result these consultations will be done. Further, as said above, the key question is what happens when gram sabhas object; but the Bill assumes this will never happen, defeating the entire purpose of consultation. Alternatives and Demands
How can such a mess be avoided? The need is to go back to the purpose of land acquisition is in the first place. The only way such acquisition can be justified in a democratic society is if it is 1) in accordance with the overall social goals of that society and 2) decided by a democratic process. More details on this alternative will be presented later, but at present, we reiterate that this process has to have the following basic features:A democratically decided land use plan: Without an overall land use and development plan, decided from the level of the village up to the State and decided in a democratic manner, such acquisition will continue to be destructive and exploitative.
Any significant change in land use should require resettlement and rehabilitation and a demonstration of public purpose being achieved: This would cover both private parties and the government.
A democratic process of deciding on whether any change of land use achieves a public purpose: This should be through an open process of public decision making from the gram sabha level upwards.
The consent of the gram sabha to any major change in land use: Finally, the consent of the village assembly should be required.
In the absence of this basic procedure, the current problems are likely to continue.
