Land acquisition legislation VI:

Abridging Social Impact Assessment

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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

Land acquisition legislation V:

More on the Consent Clause and the Exempted Categories

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In my last post, I had mentioned that the amending ordinances and bills exempt infrastructure projects in the public-private partnership (PPP) mode from the requirements of consent, but for acquisitions on behalf of private entities, the requirement of 80 percent consent remains in force. A perceptive and knowledgeable reader pointed out that I was wrong; the amendments exempt all acquisitions, including those made for private entities, from the consent clause. I carefully read the original Act of 2013 and the amending bills again; and also asked some colleagues concerned with the issue. It seems that I was indeed wrong. For the five categories of projects that the amending ordinances and bills create, the consent clause no more operates, irrespective of whether the acquisition is for PPP projects or entirely private projects.

The Exempted Categories

The confusion was caused by the wording of the amendment. The amending ordinances and bills specify five categories of projects which the appropriate government may by notification exempt from the provisions concerning social impact assessment, safeguarding of food security and consent. These five categories are:

1. Projects vital to national security or defence of India and every part thereof, including preparation for defence and defence production;

2. Rural infrastructure including electrification;

3. Affordable housing and housing for the rural poor;

4. Industrial corridors set up by the appropriate Government and its undertakings (in which case the land shall be acquired up to one kilometres on both sides of designated railway line or roads for such industrial corridor); and

5. Infrastructure projects including projects under public-private partnership where the ownership of land continues to vest with the Government.

Since PPP is specifically mentioned only in the last category, I presumed that the remaining four categories of projects are meant to be Government projects. That is how I concluded that the requirement of consent remains unaltered in case of private projects.

But when we read the above five categories in conjunction with the Act of 2013, we find that:

1. The five categories of projects mentioned above are supposedly a subset of the list of public purposes defined in the Act of 2013. In fact, these are a restatement of the definition of public purposes in that Act; the language of many of these is similar to that of the original Act. 

2. The original Act, after giving the list of public purposes for which land may be acquired in section 2(1) further states in section 2(2) that the provisions of the Act would apply also in case when the appropriate Government acquires land for PPP or private projects for public purposes defined in 2(1) subject only to the proviso of consent.

Thus in terms of the original Act, the appropriate Government may acquire land for PPP or private projects related to any of the five categories above and, in terms of the amendment, this can be done without seeking consent of the affected families. The reference to PPP in the fifth category is thus inconsequential.

Having wrongly interpreted the reference to PPP in one of the categories to mean that the remaining categories are meant to cover only Government projects, I am now afraid that there may have been much lawyerly deceit in the formulation of the amending ordinances and bills. I would request the readers knowledgeable in interpretation of such legislation to clarify the issue.

Exempted Categories cover all of the public purposes

Reading the list of exempted categories along with the list of public purposes in the original Act of 2013, one gets the distinct impression that these five categories are so drafted as to cover, in a compact manner, every one of the public purposes defined there. So the amendments in reality do not create an exemption for some limited purposes, but give the appropriate Governments a blanket right to exempt any acquisition whatsoever from the operations of the provisions of consent, social impact assessment and safeguarding of food security.

Exempted categories probably expand the list of public purposes

The five specified categories can even be read in a way so as to expand the list of public purposes defined in the Act of 2013. The most striking example of this is the attempted inclusion of private hospitals and educational institutions, etc., in the list of public purposes. The Act of 2013 specifically excluded private hospitals, private educations institutions and private hotels from the definition of public purposes for which land might be acquired. The ordinance explicitly deleted this specific exclusion in the case of private hospitals and private educational institutions. An early version of the ordinance, as reported in the press, even deleted the exclusion of private hotels; but the final ordinance avoided it, though it could be read into it as part of “social infrastructure” which was mentioned as part of the fifth exempted category in the ordinance. In the bill as passed by the Lok Sabha, the amendment in favour of private hospitals and educational institutions has been withdrawn and specific mention of social infrastructure has also been removed. But the bill retains “infrastructure projects” as one of the exempted categories without defining “infrastructure”. In the Act of 2013, “infrastructure” is defined to include all activities or items listed in a specified notification of the Government of India; that notification covers social infrastructure including educational institutions, hospitals and high-end hotels. This is the reason why the Act specifically excluded these three from its list of public purposes. From the language of the amending bill, it is not clear whether these categories of projects, which the government originally intended to include, have been excluded or not.

I mention all these complicated details to underline that from the changing legalistic language being used, it seems that the Government does intend to expand the scope of public purpose defined in the Act of 2013. And the manner in which the fifth exempted category has been defined perhaps implies that private hospitals, private educational institutions and private hotels have become part of the exempted categories of public purposes as part of “infrastructure”.

Whatever the merits or demerits of the proposed amendments, the Government must redraft these in a transparent manner so that the objectives and the intentions become absolutely clear and no one is unnecessarily put through a lawyerly maze. It would then be much easier to discuss and debate the pros and cons of the proposed amendments.

— Dr. J. K. Bajaj

 

Land acquisition legislation IV:

Abridging the Consent Clause

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Abridging of the Consent Clause in the Act of 2013 is among the most contentious of the amendments proposed by the Government. 

The Consent Clause of the original Act mandated the following:

a)  No requirement of consent in case of any acquisition for the purposes of the Government;
b)  Prior consent of 70 percent of the “affected families” in case of acquisition for public-private partnership         (PPP) projects, where the ownership of the land continues to vest with the Government; and,
c)  Prior consent of 80 percent the “affected families” in case of acquisition for private entities.

The consent in the latter two cases was to be obtained “through a process as may be prescribed by the appropriate Government”.

The amending bills and the ordinances provide for removal of the Consent Clause for the PPP projects. The requirement remains unchanged for acquisitions for private entities.

Background of the Clause

The Consent Clause formed one of the important pillars of the Act of 2013. The need for the new Act to replace the Land Acquisition Act of 1894 had arisen because of the widespread feeling of distrust and disaffection that had been caused by en masse acquisitions undertaken particularly for the Special Economic Zones, which were all in the PPP mode. One of the main objectives of the Act of 2013 was to ameliorate the feeling of distrust and disaffection by prescribing a participative and transparent process of land acquisition. Seeking consent of some proportion of the “affected families” was one way of making them a party to the process. The requirement of Social Impact Assessment, which we would discuss in a later post and which also has been abridged through the amendments, was another process devised to involve the institutions of local self-Government in the process of acquisition. The Consent Clause, though limited only to acquisitions on behalf of the private entities, was thus a core component of the Act of 2013.

Discussions in the Standing Committee and Revenue Ministers' Conference

The clause was discussed extensively in the Standing Committee of the Parliament headed by Shrimati Sumitra Mahajan. According to the Report of the Committee, the States of Madhya Pradesh, Chhattisgarh, Maharashtra and Uttar Pradesh and the union ministries of Power and Commerce did express some apprehensions against the Consent Clause. On the other hand, several States, Ministries and other stakeholders wanted the clause to be retained and made more stringent. The position of the Department of Land Resources was clear: the Consent Clause was essential to ensure that there was no forcible acquisition of land. The Standing Committee, however, did not have to take a position on this issue because, as we mentioned in the previous post, it took the position that the Act should not provide for any acquisition for PPP or private projects. The question of obtaining consent, therefore, did not arise.

The Government have said that the suggestion for amending the Consent Clause came from the States in the course of a Conference of the States Revenue Ministers held under the Chairmanship of the then Minister for Rural Development, Mr. Nitin Gadkari, on June 14, 2014. It is remarkable that this Conference was held within about a fortnight of the formation of the new Government. In the summary of suggestions of the Conference released by the Ministry, the Revenue Ministers suggested that: “The Consent Clause should be re-examined. As ownership of land vests with the Government in the PPP projects, the Consent Clause should be removed from the PPP projects. Alternatively, Consent requirement may be brought down to 50 percent”. Incidentally, the proposed amendment in this regard closely follows the language of this suggestion.

According to the detailed proceedings of the Conference, specific objections to the Consent Clause were raised only by Madhya Pradesh, Chhattisgarh and Kerala; Rajasthan and Goa wanted the entire Act to be redrafted. The position that Madhya Pradesh and Chhattisgarh took in this Conference was similar to their stand before the Standing Committee headed by Shrimati Sumitra Mahajan, which had been considered and found unacceptable. On the other hand, several States participating in the Conference of Revenue Ministers had little problem with this Clause of with the Act as a whole; many stated that they had begun drafting rules under the Act of 2013 and had begun the process of acquisition under the new Act; Punjab even put on record that they had completed Social Impact Assessment in one case.

In the Standing Committee proceedings, Bihar had insisted that the Act should not only have the requirement of consent in case of acquisition, but no acquisition process on behalf of private parties should be initiated until the concerned parties have already obtained the consent of 80 percent of the landholders. This to some extent was the spirit in which the consent clause was introduced in the Act of 2013. It was presumed that in the normal course private or PPP project proponents would go to the land-owners and negotiate a consented price with them; the government would come in the picture only to ensure that the project is not held up because of the recalcitrant or obstructive attitude of a small minority of the owners.

Our Suggestion

There is perhaps a genuine problem with the Consent Clause as it requires the consent of a certain percentage of the “affected families”. The latter can be determined only through a detailed Social Impact Assessment; that is why the Act provided that the consent shall be obtained in the course of such Assessment. It would be much simpler if the consent requirement were to be restricted to the affected land-owners alone; the list of these can be obtained directly from the revenue records. The exact proportion of owners whose consent must be obtained before the process of acquisition sets in may also be negotiable. But in no case the consent should be of less than 51 percent.

Thus the Consent Clause for PPP projects can perhaps be amended to replace the term “affected families” with “affected land owners” and to replace the consent of “80 percent” with “not less than 51 percent”.

Doing away with the Consent Clause altogether as the amending ordinances and bills propose to do shall militate against the intent of the Act. The purpose of the Act was to make the process of acquisition transparent and consensual. It was enacted in the background of a series of protests among rural and tribal communities against forcible acquisition of land by the governments for private interests. Such protests had put the process of industrial development itself in jeopardy, as was seen most dramatically in the context of Singur. The Act of 2013 sought to ensure that incidents of that kind do not happen again; that lands for industrial and infrastructural development are acquired through the willing consent and participation of the affected communities; and that all the people feel involved in the process of development and nation building. Keeping the requirement of some level of consent in the acquisition process is essential to this national goal.

Tailpiece: Public-Private Partnership (PPP)

Public-Private Partnership is a business venture or public service that is funded and operated through a partnership between the Government and one or more private companies. The capital and the management expertise in such projects are normally provided by the private partner. The Government often provides the land, one-time capital grant, guarantees for the debt incurred by the private partner, guarantees for purchasing the service or product at a cost that is profitable to the private partner, and certain monopoly rights. The land, though formally vesting in the State, gets leased to the private partner on a long-term basis and the private partner is often able to draw substantial revenues and profits from the use of the land also, as in the case of Delhi Airport project and in the case of many of the SEZ projects. Therefore, it is not unreasonable for the landowners to expect that the private partner should negotiate the price of land directly with them, so that they may get at least a small share of the potential profits.

The PPP mode has become fashionable because it shifts the burden of capital borrowing to the private partner thus lowering the budget-deficits. The private partner also brings in the supposedly superior business and management skills. The risk of business is also generally supposed to be borne by the private partner, but the risk is considerably mitigated through Government guarantees and support. In the current budget, the Finance Minister has even promised to review the PPP mode to ensure that the risk in such projects is borne largely, though not wholly, by the Government. The exact words of the Finance Minister in this context were:

“Fourth, the PPP mode of infrastructure development has to be revisited, and revitalised.  The major issue involved is rebalancing of risk. In infrastructure projects, the sovereign will have to bear a major part of the risk without, of course, absorbing it entirely.”

Such shifting of the risk to the sovereign would make the PPP mode even more attractive from a purely business point of view; it would correspondingly decrease the need for subsidising the land component through compulsory acquisition by the State. This is one more reason why the Consent Clause for PPP projects must stay at least in some form.

Your opinions and observations on this specific issue of Abridgment of the Consent Clause are welcome. 

— Dr. J. K. Bajaj

Land acquisition legislation III:

Do we need to allow compulsory acquisition for private entities?

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One of the significant amendments to the Act of 2013 proposed in the amending ordinances and the bills is to change the phrase “private company” with “private entity” throughout the Act. The definition of “company” in the original Act was already very wide. It included a Company registered under the Companies Act or a Society registered under the Societies Act of 1860 or “under any corresponding law for the time being in force in a State”. In the amending ordinances and bills, the new term “Private Entity” is defined to include “a proprietorship, partnership, company, corporation, non-profit organisation or other entity under any law”. The amendment thus empowers the government to undertake compulsory acquisition of land on behalf of even unincorporated private owners and sundry NGOs. By including societies registered under different Acts, the original law already allowed acquisition on behalf of the latter; the amendments make this explicit.

It is difficult to comprehend the intention of the government in so extending the scope of compulsory acquisition. In the information note on one of the amending ordinances issued by the Government, it is said that under the Company’s Act, a private company must have a paid-up share capital of one lakh or more; this makes the provisions of the Act of 2013 restrictive; hence, the amendment in favour of private proprietorships, partnerships and NGO’s, etc. This argument does not sound very convincing.



Sumitra Mahajan led Standing Committee on the issue of acquisition for private interests

The Standing Committee on Rural Development in the previous Parliament was chaired by the present speaker and veteran BJP parliamentarian, Shrimati Sumitra Mahajan. It had considered the Land Acquisition Bill which later became the Act of 2013, in great detail. After much deliberation, it had strongly recommended narrowing the scope of acquisition for private interests. This suggestion of the Committee was not accepted by the then Government which retained the provision of acquisition on behalf of private companies; the present Government is further expanding on that provision.

Reviewing the history of compulsory acquisition legislation in this context, the Committee pointed out that the colonial Act of 1894 did not provide for acquisition on behalf of private companies except in the case of Railway Companies. This, of course, does not mean that no acquisition for private interests occurred during the British times; the colonial rulers did not always need to acquire through law, they could simply expropriate. Large scale expropriation of land and other property occurred during the British period; yet the British did not give legal status to compulsory acquisition for private interests. The scope of the Act of 1894 in this respect was considerably expanded after Independence through “a number of amendments in 1962 which permitted acquisition for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose.” The Act was again amended in 1984. These latter amendments, according to the Committee, “extinguished any differentiation between acquisition for a ‘State purpose’ and acquisition for a ‘private enterprise’ or ‘State enterprise’.” The courts interpreted the 1984 amendment to mean that any notification of acquisition issued under the amended Act of 1894 did not even need to specify whether the acquisition was for a public purpose or for a Company. This, according to the Standing Committee, “opened the floodgates to acquisition of land by the State for Companies. And this in turn has unleashed the tribal and rural backlash that has caused the current decision of the Government to replace the 1894 Act with an altogether new Act”. Such was the concern that the Standing Committee displayed on this issue.

The Committee wanted to know from the Ministry whether such compulsory acquisition for private interests was allowed in other democratic countries of the world. The Ministry claimed it had no information on it, except  for Pakistan and Bangladesh, both of which have inherited the Land Acquisition Act of 1894. The Committee on its own gathered information about the prevalent legal situation in several other countries, including the United States of America, Canada, the European Union, Japan and Australia, etc.  On the basis of this study, the Committee came to the conclusion that in “all developed democracies, private purchase of land, not State acquisition, is the norm. There is no provision in their laws for the State acquisition of privately held land for profit-making private enterprises, nor, by extension, for public-private enterprises. ...in India alone, the public purpose is defined so  as to include virtually every form of enterprise, particularly after the amendments made in 1962 and 1984...” Having obtained all this information, the Committee found it difficult to go along with the then Government on this issue; it frowned upon the clauses of the new acquisition bill that sought “to permit, and even facilitate, the acquisition of land by the Government for private companies”.

In view of this background of the inclusion of private companies in the Land Acquisition legislation, its deleterious impact on the rural and tribal communities, and its inappropriateness in a democratic polity, compiled so painstakingly by the Standing Committee, it is indeed odd that the present Government has decided to expand the list of private interests and to provide legislative cover for compulsory acquisition of private land for even private proprietorship or partnership concerns and for all kinds of private non-profit organisations.

This particular amendment is beyond comprehension and the Government has so far provided no cogent reason why it feels constrained to make such a provision. If there are some pressing reasons for this amendment, these should be made public or it should be withdrawn.


Inclusion of private hospitals, etc., in the list of public purposes

Another amendment that concerns expanding the scope of acquisition for private interests is the effort to bring private hospitals and educational institutions, etc., in the list of public purposes for which land may be acquired. The Act of 2013 specifically excluded private hospitals, private educations institutions and hotels from its definition of public purpose. The amending bills remove this specific exclusion; these private enterprises may now get covered under the general term ‘infrastructure’ for which acquisition is permitted. To avoid any misunderstanding, it is proper to restore the specific exclusion of these categories, as it was done in the Act of 2013.

 
Tailpiece: The Case of Narita Airport of Tokyo

While discussing the prevailing practices regarding acquisition of land in different countries, the Standing Committee refers to the celebrated case of Japan’s efforts to expand Tokyo’s Narita International Airport. Japan has no law that could force the surrounding paddy farmers to cede their land for the expansion of the Airport. The Government, therefore, had to engage in years of often frustrating negotiations with the owners of the land. Having never come under colonial rule, the State and the Society in Japan continue to retain a healthy respect for the villages, the cultivators, and their fields; none of these can be taken for granted, none of their rights can be taken away by fiat. This sense of deep respect for the people and the paddies may have delayed and constrained the expansion of Narita Airport, but it has certainly not stopped Japan from emerging as one of the most technologically advanced and affluent society of the world. Perhaps there is a lesson in this story for us and our law-makers.

With this post, we are activating the option of receiving comments from the readers. Your opinions and observations on this specific issue are welcome.

— Dr. J. K. Bajaj

Land acquisition legislation II:

Why do we need to discuss Land Acquisition Amendment Bill?

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It is now widely acknowledged, even within the Government and the BJP, that the attempted amendment of the Land Acquisition Act of 2013 has proved to be a crucial political watershed. It has given an occasion to the moribund opposition to unite on an emotive issue. The Indian National Congress, which had decisively lost the public mandate, suddenly got an opportunity to arise from the dead. Mrs. Sonia Gandhi leading a walking procession of nearly the entire parliamentary opposition to present a memorandum to the President against the amending ordinance and bill will perhaps go down in history as the defining visual image of the politics of this period; just as Srimati Indira Gandhi riding an elephant to Belcchi in August 1977 to commiserate with the families of the landless Dalits massacred by the Kurmis has gone down as the defining image marking the beginning of her comeback after the Emergency. The Government has managed to squander enormous political capital on this issue. It has also managed to dampen the enthusiasm of a number of affiliated organisations of the RSS, working among the farmers and the tribals; they are finding it difficult to defend the amendments among their constituents.

This government has come to power as an answer to the prayers of all the nationalist people of this country. All of them, not only the members of the BJP or the RSS alone, have a stake in this government. This government must succeed and stay, if the Indian nation is to rise and manifest its unique genius once again in the modern times. When this government came to power, a very senior and venerable political scientist of India called me to explain the importance of this victory. He said that the victory marks the coming back of the Hindus into the mainstream of the Indian polity. Until Independence, the Hindus occupied a significant space in the polity, largely because of the leadership of Mahatma Gandhi. Mahatma Gandhi conducted his campaign for Independence in a deeply Hindu ambience; the language, symbols and instrumentalities of his campaign were all reminiscent of the Hindu tradition and Hindu ways. After Independence, however, Nehru purged the Hindu ways from the mainstream of Indian polity; the Hindus became second class citizens in their own land. The coming to power of the Modi government marks the end of this recent period of eclipse of the Hindu ways in the public life of India. But, he emphasised, that for this revival to become permanent, this government must survive for at least 10 years. And, he said, it is the duty of all nationalist Indians to do everything within their power to ensure that this government does not falter.

The government seems to have clearly faltered in its attempt to hastily amend the Land Acquisition Act of 2013. In the process, it has given an impression that it is concerned about only a narrow spectrum of interests and does not really care for the peasantry. This impression is perhaps erroneous; the opposition has certainly worked assiduously and viciously to propagate this impression. But right or wrong, the impression has gone through and in politics, perceptions matter more than reality.

The situation is being worsened by the unseemly tenacity with which the government is pursuing the amendments. After all it is not usual that the same ordinance has to be repromulgated thrice in a row. The actions of the government on this issue are contrary to the repeated assurance offered by Shri Modi during his election speeches that he would govern by consensus; he repeatedly said that he as the Prime Minister would be representing every individual member of the Parliament and not merely the MPs of his alliance. His repeated assertion that he would relegate politics to the fifth year of his term, and for four years he would try to take everyone along, came as a breath of fresh air in the deeply fractured and adversarial polity of India. The issue of land acquisiton has unfortunately brought that fractured adversarial politics to the fore again.

It is important that these fissures are quickly healed. The amendments to the Land Acquisition Act are not significant enough to risk any change in the mood of great hope and expectation that has come to prevail with the coming to power of this government. The government should rethink the amendments, decide on what are the minimal amendments required to make the Act of 2013 workable, and try to evolve a consensus around them.

We are starting this discussion on the core issues concerning the Land Acquisition Bill to help arrive at a reasonable and widely acceptable solution on this contentious issue. From the next post onwards, we shall talk about the significant amendments proposed in the amending ordinance and the bill one by one. We hope to have a wide-ranging, lively and fruitful discussion on each of these.

                                                                                                                                                              — Dr. J. K. Bajaj