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Dossier Dispossession and Resistance in India and Mexico

Land Acquisition and State Policy in India

, by JAIRATH Vasundhara

The quintessential beginning of the story of land acquisition in India as a systematic process carried out under the sanction of a formal state structure is the colonial Land Acquisition Act of 1894 (hereon LAA 1984), a colonial law brought into practice by the then British government. While the systematic dispossession of peoples from their lands has a longer history in colonial India, and even continued outside of the ambit of this law, in this article I trace the evolution of the institutionalization of land acquisition as a legitimate state concern and its links with questions of development.

This law, in its inception, lays out certain key principles in the process of land acquisition that continue to form the foundation of state policy and institutional mechanisms in place for the acquisition of land into the present-day scenario. First and foremost, it establishes and foregrounds the principle of eminent domain, a principle that grants the state, in the last instance, right to all property under its domain. This right underlies the authority of the state to acquire any individual’s private property for the ‘general good’ of its population or what has been termed ‘public purpose’. While the law has undergone several changes only in the last three to four years, this fundamental principle of eminent domain that is closely related to the notion of ‘public purpose’ as defined by the state remains firmly in place.

Land Acquisition Act 1894

The colonial law of 1894 continued to be in use as the principal law used for purposes of land acquisition for ‘development’ projects, a term that has been interpreted as widely as ever over the course of time, until as recently as 2013. Before moving on to examining the changes introduced in the law more recently, a close examination of the LAA 1894 is key to understanding the legal and institutional framework employed by the state in matters of land, displacement and development. Principally, the phrase ‘public purpose’ has been elaborated in the LAA 1894 under Section 3(f) as including the need for sites of planned development, extension or establishment of new villages, town planning, pursuing a government scheme or policy, housing for the poor and/or people affected by natural calamities, building of public or government offices, and for any other development scheme or plan, including construction of railways, irrigation canals, etc. The Act further includes companies, and therefore private capital, within its ambit, so long as prior consent of the government has been acquired, and it is ‘likely to prove useful to the public’ (Section 40(b)).

Section 5A of the Act makes provisions for objections that may be registered with concerned state authorities within thirty days of publication of the notification. However, this section is overruled by an urgency clause, the exact definition of what constitutes an ‘urgency’ remaining ambiguous. Under the urgency clause, there is little space for dissent and objections. On the resolution of such objections, a declaration of the proposed project is put forward by state authorities, serving as evidence that the land required is for a ‘public purpose’. With this the process of acquisition is set into motion and the matter of compensation and identification of persons who are to be compensated begins.

There are provisions within the law to deal with individuals who may oppose the said land acquisition and prove to be an obstacle in such a process, mandating government officials, assisted by state police forces to ‘enforce’ the surrender of such land (Section 47). The law, therefore, institutes and sanctifies the absolute authority of the state in forcibly acquiring land, codified in phrases such as ‘compulsory nature of acquisition’ and ‘enforced surrender’ of land.

Land Acquisition Act (Amendment) Bill 2009 and Resettlement & Rehabilitation Bill 2009

Following sustained criticism of the LAA 1894, most significantly from people’s movements protesting forced land acquisition, but also evident from several court rulings recognizing the undemocratic character of this Act [1], in 2006 the National Advisory Council (NAC) drafted a National Development, Displacement and Rehabilitation Policy. This document drew heavily on a draft presented by the National Alliance of People’s Movements (NAPM). NAPM is an umbrella organization of several people’s movements organizing around questions of land and livelihood, and its draft to the NAC followed a series of consultations with its various constituencies.

In 2009, the LAA (Amendment) Bill and R&R Bill were introduced in Parliament but were not passed owing to opposition, both within and outside the Parliament. However, several key changes were proposed in the law under the LAA (Amendment) Bill 2009. It broadened the category of persons who could claim compensation, including tenants who worked the agricultural land in question, as well as Scheduled Tribes and other traditional forest dwellers whose traditional rights over forest lands may have been lost (now recognized under the Scheduled Tribes and Other Traditional Forests Dwellers (Protection of Forest Rights) Act 2006). This was an important change, attempting to recognize not only those who had proprietary rights over the land, but also those whose livelihood practices were to be affected.

The phrase ‘public purpose’ that continues to remain a controversial phrase and one that is at the heart of much debate even now, came to be elaborated in greater detail under the proposed amendment. This included a range of activities from military and defense purposes, to infrastructure and industrial projects including activities such as mining. It introduced the centrality of rehabilitation and resettlement, and not mere monetary compensation, as integral to the responsibility of the state. This included responsibility for developing the infrastructure of rehabilitation sites including assuring proper health and education. Where the number affected is greater than 400 families in the plains and 200 families in the hills, the LAA (Amendment) Bill introduced the requirement of a Social Impact Assessment report, keeping in mind the impact on marginalized communities in particular.

The proposed amendment further brought to the fore the need to desist from acquiring irrigated multi-crop agricultural land and made a provision to follow the principle of minimum displacement, minimum disturbance to infrastructure and ecology. The period for presenting objections was increased to 60 days and a time frame was put in place to complete the process of disbursement of compensation and provision of rehabilitation and resettlement. There was an increase in the compensation for land, taking into account an increase in the value of the land once put to its proposed use, and a restriction in state intervention for acquisition of land for companies to thirty per cent of the land (where seventy per cent of the land would have to be acquired by the company itself through purchase in the market). In order to settle disputes regarding land acquisition it proposed a Land Acquisition Compensation Disputes Settlement Authority to adjudicate all such disputes within six months.

The Relief and Rehabilitation Bill 2009 mandated the procedures for determining eligibility and benefits for affected individuals and put in place authorities and bodies to oversee the process. However, it did not make compulsory the resettlement of affected people, but instead merely mandated the procedure. Its mechanism of grievance redressal was problematic in granting authority likened to that of a court to authorities outside of the judiciary.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013

In 2011, on recommendations of NAC to combine the two Bills, a comprehensive Land Acquisition, Rehabilitation and Resettlement Bill was introduced in the Parliament to replace the existing Land Acquisition Act 1894 and bring the process of land acquisition and subsequent rehabilitation of the affected population into the ambit of one single law.

Certain key new elements introduced in this Bill included the increase in compensation values to four times the market price of land in rural areas, and two times the market value in urban areas. While it limited the acquisition of land for public purposes only, it included private companies as well as public-private partnership projects within the ambit of the law, requiring the consent of 80 per cent of displaced people in this case. Consent was to be sought through gram sabhas, or village assemblies, as per existing Panchayati Raj institutions and laws, including PESA [2]. Social Impact Assessment was to be conducted in the case of all land acquisition. However, the law would not apply in the case of acquisition under 16 existing laws including the Special Economic Zone Act 2005, the Atomic Energy Act 1962 and other similar Acts [3]. This Bill was a far more comprehensive Bill taking into account several of the key demands of displaced and affected populations (and not merely landowners) by making the state as well as private companies responsible for R&R with proper infrastructure and basic services in place for the to be affected population.

Despite significant new features in this Bill, it continued to have certain problems, including the manner in which ‘public purpose’ remains a fluid category allowing any kind of private industry to flourish in its name, consent in the case of public projects is not required, no R&R provisions are mandatory in the case of temporary acquisition of land (for up to three years). However, it was a move ahead in establishing certain structures in place such that the interests of to-be affected populations are taken into consideration to a large extent.

The law that was finally passed in 2013 came to be known as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (RFCTLARR 2013). However, what was passed finally was a somewhat watered down version of the LARR Bill 2011. It created exceptions for a range of acquisitions for which an SIA and informed consent was not required, including projects in mining, railways, electricity, and national highways, amongst others. At present it is this law that governs the realm of land acquisition for the purpose of development projects.

Conclusion

Under the new government that came to power in 2014, significant amendments have been proposed and are being pushed through, that would remove most protections, safeguards, and checks and balances introduced in the new law. Specifically being sought is the expansion of the set of exceptions to the requirement of SIA and informed consent to include industrial corridors, infrastructure projects under public-private partnership, as well as electrification of villages and provision of housing for the poor, amongst others. Such a wide exception would result in practically handing over land forcibly from the farmers and subsistence peasants to large multinational corporations and big private capital in general.

Owing to large-scale farmers’ protests and political opposition, the current government was unable to have these amendments passed in the Parliament. Following this, however, and bypassing the democratic structure in place, the amendments were introduced as an Ordinance, approved by the President – a provision reserved for urgent changes in the legislation outside of Parliament session valid only till the next session. These changes have not been passed in the Parliament since, owing to heavy opposition to the move to undo all protections the law introduced, changes that would wreak havoc for farmers, peasants, agricultural labor, forest workers, adivasis, fishworkers and other members of the rural subsistence economy in India that is heavily dependent on an agrarian and/or forest economy. While on the one hand social movements protesting forceful land acquisition in India have mobilized to compel important amendments to the law and make the state and corporations accountable to impacted communities, at least on paper, on the other hand these very laws are constantly sought to be reversed by dominant forces in order to cement a neoliberal order in the trade of land and natural resources. The strict implementation of these laws, however diluted they may be, is ground for yet another battle.

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