Monday, 15 June 2015

Land acquisition legislation VI:
Abridging Social Impact Assessment

Social Impact Assessment is Integral to the Act of 2013
Social Impact Assessment is the most innovative part of the Act of 2013, where an attempt is made to seek the participation of the constitutionally established institutions of local self-government, including the Gram Sabhas, in the process of acquisition. This also forms the core part of the Act; the preamble of the Act begins thus: “An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition …”

The Act of 2013 devotes a whole Chapter, Chapter II, entitled “Determination of Social Impact and Public Purpose”. The Social Impact Assessment is meant to establish that: i) the proposed acquisition indeed serves a legitimate public purpose; ii) the land proposed to be acquired is the bare minimum required and there is no alternative, less disruptive place feasible for the project; and iii) there is no previously acquired but unutilised land available with the government in the project area. The Assessment is also meant to estimate the number of affected families and the extent of private and common lands and other properties likely to be covered by the acquisition; to list the public and community assets and infrastructure likely to be affected; and, to estimate the costs and ways of addressing the social impacts of the project.

The Act indeed makes the process of Social Impact Assessment quite onerous. It requires that the preliminary investigation of the social impact shall be carried out in consultation with the local bodies; the report of such assessment shall be appraised by an expert group; and finally the government, after considering all the reports, shall make a determination of the minimum and the least disruptive extent of acquisition. The process as laid out in the Act is likely to take about a year.

However, in cases of acquisitions under the emergency provision provided in the Act (section 40), it exempts the government from the Social Impact Assessment Study (section 9). It also allows the government, in the second proviso to subsection (4) of section 7, to overrule any recommendation of the expert group against acquisition by merely recording its reasons in writing. Thus, while the process of social impact assessment obliges the State to engage in discussion with the local bodies and expert groups and to carry out detailed due diligence, it does not take away the sovereign authority of the government in the matter of acquisition.

Several State bureaucracies have indeed been opposed to SIA
This most innovative part of the Act has also been the most contentious. The Chapter goes against the spirit of bureaucratic governance prevalent in India and forces the officers on the ground to engage in effective and substantial consultation with the affected families and their representatives at different levels. It is, therefore, not surprising that there has been much bureaucratic resistance to this provision in the bill every stage. Before the Parliamentary Standing Committee on Rural Development under the Chairpersonship of Shrimati Sumitra Mahajan, this resistance was expressed most strongly by the state of Madhya Pradesh.

The suggestion of that State on the Chapter concerning provisions of Social Impact Assessment was: 
The entire Chapter should be reduced into just one Clause which should provide: 'A Social Impact Assessment study shall in every land acquisition be carried out by the Appropriate Government in the manner as prescribed by it under the Rules.'  
This idea of having a Collector sponsored SIA study, EIA, Expert Group, Examining Committee, Public Hearing (twice in the Act) etc. will make the entire exercise of LA a very languorous, lumpish and leisurely exercise. It should be left to the States to decide their own course of how to get SIA done. …
Other States did not express themselves quite as strongly as Madhya Pradesh, but several of them had reservations about these provisions. Many States suggested that the SIA may not be made mandatory for Government projects and that its scope may be restricted to only larger acquisitions. The reservations stemmed from the fact that these represented an innovation in Government procedures and the State bureaucracies were not comfortable with these. The resistance to consent clause of the Act also originated from similar bureaucratic apprehensions.

Similar sentiments were expressed by several States in the Revenue Ministers’ Conference held in June 2014. Madhya Pradesh once again made the same case, though in much stronger language. But even a State like Kerala expressed apprehensions about this “most important procedural change in the new legislation …”

But the Standing Committee wanted the SIA provisions to be strengthened
The Standing Committee after considering the representations of different States and Ministries recommended further strengthening of the provisions in different ways. In particular, it suggested that the Social Impact Assessment should not involve only consultation with the Gram Sabha but also consent of that body:
In Clause 4(1) it has been provided that whenever the appropriate Government intends to acquire land for a public purpose, it shall carry out a Social Impact Assessment study in consultation with the Gram Sabha at habitation level or equivalent body in urban areas in the affected area in such manner and within such time as may be prescribed. The Committee find that Clause has not specified whether the consent of Gram Sabha should be necessary and in case Gram Sabha does not give its consent how the matter will proceed further. Accordingly, the Committee recommend that Clause 4 may be amended to indicate that SIA will be completed with the consent of Gram Sabha or equivalent body.
The Committee at several other places recommends that the consultation with the local bodies should be replaced with consent ‘so that the approval of the Gram Sabha or equivalent urban body becomes mandatory’.
The summary of the suggestions emanating from the Revenue Ministers Conference held in June 2014, however, took an entirely contrary view, stating that:
Mandatory Social Impact Study (Clause 4 to 9) should be done away with or SIA should be confined to large Projects/PPP Projects as it may delay the acquisition process.

Proposed amendments do away with the SIA
The amending ordinance and bills indeed reduce the SIA requirement to a single proviso providing that “the appropriate Government shall, before the issue of such notification, ensure that the extent of land for the proposed acquisition keeping in view the bare minimum land required for such project”. Otherwise, the amendments give the appropriate Government the authority to entirely exempt the five listed categories of projects from the requirements of SIA by notification; and since these five categories exhaust all possible public purposes, the amendment in fact amounts to repeal of Chapter II concerning the “Determination of Social Impact and Public Purpose” in its entirety. Incidentally, the proviso mentioned above was added as an amendment to the bill placed in the Lok Sabha; the first amending ordinance did not have even this proviso.

The lack of SIA does not take away substantive benefits
The removal of the SIA provisions does not take away any of the substantive material benefits that the Act of 2013 grants the landowners and affected families. The amendments proposed by the Government do not alter the provisions regarding compensation and resettlement and rehabilitation; therefore, the entitlements of the landowners and affected families created in the Act of 2013 remain largely intact.
What is more, the essential requirement of determining the number of families and the extent of private and common lands, common facilities, etc., likely to be affected by any land acquisition remains even after the Chapter on SIA provisions is repealed. No acquisition can proceed without making a determination of such impacts. Therefore, in section 16 of the Act of 2013, the acquiring authority is obliged to make a list of affected families and properties, etc., through detailed census and survey. Thus what was supposed to be done in consultation with the affected people and their representatives shall now be done by the Government through its own machinery.

But this defeats one of the core objectives of the Act
But the core objective of the Act to prescribe a process of acquisition that is transparent and involves consultation with and consent of the affected people stands defeated. The landowners and affected families are not losing any material benefits, but they are losing the valuable opportunity of being consulted on an issue that directly affects their life. The privilege of participation in the administration of one’s own affairs and that of the immediate community is the essence of democracy. Long ago, in 1820, a perceptive British administrator, Thomas Munro, looking at the state of India under the British had noted those who “lose the privilege of … having any share in their own administration …” lose the privileges of being a nation.

The Issue of Practicability
The main argument that the Government have been making in favour of removing the SIA provisions is that these are highly impractical and would inordinately delay even essential acquisitions. This argument may be correct; though much of it flows from the inherent resistance of bureaucratic systems to anything innovative. The issues of practicability could have been looked into while drawing up the rules and procedures for the SIA process; the Act allows the various Governments to draw their own rules and procedures for this purpose. The Act even provides the Government to overrule the conclusions of the SIA, and bypass SIA in case of urgency. All these provisions could have been used to ensure that the process is made practicable. In any case, it would have been proper to give the States some time to experiment with these innovative provisions and undertake a comprehensive amendment on the basis of experience gained over a year or two.

The argument regarding federalism
The second argument that the Government have put forth is that of the compulsions of federalism. The Government have repeatedly asserted that these amendments have been undertaken keeping in view the apprehensions of the State Governments. The Prime Minister has himself has repeatedly said that he wants to run a genuinely federal polity and therefore he cannot afford to ignore the sentiments of the States. This is, of course, correct. As we have seen, many States have, at different stages, expressed strong apprehensions about the clauses concerning consent and social impact assessment provisions.

But why stop our federal concerns at the level of the States alone? Just as the States have the right to be consulted and heard by the Centre; the local bodies should have the right to be consulted and heard by the States and their bureaucracies. The SIA provisions, by providing for such consultation, thus attempt to deepen federalism, not curtail it. The effort to involve the local bodies in deciding on issues that concern them is in consonance with the spirit of decentralised governance and decision making, which is so essential to the thought of Pandit Deen Dayal Upadhyaya, who is the founding figure of the BJP, whose thought forms the ideological foundation of the party, whom the Prime Minister deeply reveres, and whose birth centenary we are now celebrating. Letting the consultation and participatory provisions in the process of land acquisition stand unchanged would indeed be a humble tribute to the memory of that great philosopher-politician of our times.

— Dr. J. K. Bajaj