The average citizens is bound to be perplexed by the sudden changes caused through an Ordinance amending the barely year-old Right to Fair Compensation & Transparency in land Acquisition Rehabilitation & Settlement Act, 2013 (2013 lA Act). This new Act stood implements from January, 1, 2014. This Act replaced the colonial land Acquisition Act of 1894. It introduced rudimentary elements of democracy and diluted the over-lording, expropriatory and the commercial concept of “eminent domain”. The new law, made by the Republic of India after more than six decades of acquiring freedom, turned acquisition of private land, specially of farmers, conditional upon the consent of land owners, social impact assessment and impact on environment and food security. It also provided for a substantially higher compensation and very considerate and sensitive rehabilitation and resettlement arrangements. It was a result of Parliamentary consensus on a major sensitive issue concerning lives and livelihoods of millions of average land-dependant Indians.
But this consensus was ruptured through an Ordinance in barely a year by the ruling party, which has been a champion of the new Act in the course of its enactment. The BJP represented by its leaders like Rajnath Singh and Susma Swaraj had suggested, during the preliminary debate, for more stringent procedures safeguarding the citizens. The Parliamentary Committee dealing with the Act headed by Sumitra Mahajan had opposed the then Government’s attempt at diluting the Bill. But after barely a year, there are dilutions that the nation has to swallow in such a sensitive and significant sphere of administration.
The Ordinance does away with consent, social assessment and food security assessment and the like by carving out five “exemptions” – the first one is “defence”, which has an inclusive “definition” covering projects “vital to national security” and ‘defence production”, which can conveniently include all kinds of infrastructural or even privately-owned projects. The second exemption is for industrial “corridors” conveniently not subjected to the rigours of definition and this expression is capable of covering thousands acres of land. The third exemption - “affordable housing” and “housing for the poor people”. The expression “affordable” gives an expanded scope not limited to affordable housing for the poor alone. The fourth and fifth exemptions relating to “rural infrastructure” and “infrastructure and social infrastructure” in PPP mode where land is owned by the Government. This exemption could be wide enough to cover railways, roads, mines, airports, ports, oil and gas pipelines, canals, dams, storage, hospitals, supermarkets, cold storages, electricity, telecom towers, agricultural facilities, tourism and hotels of the highest classes and so on.
One is reminded of the famous sayings of the Mahatma: “There is enough for everybody’s need, but there is not enough for everybody’s greed”. It is now left to the ingenuity of bureaucrats, politicians, greedy businessmen to include several activities within these five categories of exemptions. Acquisitions for private purposes have now been facilitated by prompting acquisition for any “private entity” which could manage a proprietorship, partnership, NGO, private company or maybe, a shell company. The ban on acquisition of land for private educational institutions, private hospitals, etc., has also been done away with. What is more disturbing is that minimal protections of right to objection and right to hearing, available under the colonial 1894 Act, are significantly diluted to the extent that minimal safeguard in this regard are rendered illusory.
The Government has, however, bottled the old wine in a new bottle by projecting as though the quantum of compensation is now through the Ordinance extended to several other Acquisition Acts relating to national highways, coalmines, etc. These were already provided under the 2013 lA Act, authorised and mandated to have been achieved through a Notification under the lA Act, 2013, months before the Ordinance came into existence.
The disturbing features of the amendment are from the point of view of the landowners and their agriculture-dependent social sectors. They have been given a raw deal through the land acquisition Ordinance. Removal of the concept “consent” amounts to removal of bargaining power in the hands of the landowners. The land acquisition proceedings, incomplete by January 1 2014, have also been subjected to the Ordinance, though the 2013 Act extended benefit to the continuing proceedings subject to certain conditions. More hazards in this regard are in leaving the quantification of the compensation package to the vagaries of the rules to be framed by the State Governments. The spirit of the Ordinance is bound to have a negative impact on the rules that will be promulgated by the State Governments. It is reported that Haryana has notified rules restricting and reducing the quantum of compensation.
There is a concerted attempt to carve out flexible and expanding areas where forcible acquisition of land, including those of farmers, could be made without what was come to be known as “due process”. This is not a trend conducive to democracy. It goes to the credit of the Supreme Court to have highlighted the significance of “due process”, especially in the context of deprivatory laws. Our democratic process demonstrates strange and fractured features. Political parties which are considered to be pro-right to property are strangely not speaking of oblique and collateral nationalisation and do not find anything wrong in the forcible deprivation of poor and marginal farmers resulting in the denial of their sole source of life and livelihood. Acquisition of power and settling down in the seat of power appear to attract the maladies of depriving the underprivileged without adequate justification, in the process, and to subserve the interests of the affluent sections of the society amongst builders and industrialists and the like.
These aberrative indicators of power and its utilisation necessitate a public debate. The interest of the richer sections represented by corporate industries, including builders, and the interest of marginal and small farmers are now tending to head towards a clash of civilisations; a confrontation of the haves and have-nots. This is bound to be an unequal contest in the greedy game of power and wealth, especially in a society ruled by law where reason and relevance and the holistic interest of the country should be the sole determining factor. There is hardly any audible voice that could arrest the trend towards perversion. The Indian youth power has to wake up to this distortion that would affect their future in a dominant manner. If democracy is of principles, the majority seems to have gone into a slumber. It is the interest of a few that would be served with the glossy label of development/industrialisation attractive to a larger section of the community. We are at the threshold of a serious imbalance in the social and legal framework of our fragile polity. If there is too much silence in this regard in 2015, we may have to blame ourselves as the change is not for the better. The caveat is to everyone that 2015 onwards should not be “Achhe Din” for a handful and “Bure Din” as usual but for the larger number of needy and uncared for. This requires immediate rectificatory measures through legislative empowerment by conversion of the “entitlements” of the lesser privilege into “enforceable rights”. And this concerns all of us!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor and a former Advocate General of Odisha. jayantdas@hotmail.com)