3.

DISPLACEMENT AND LAND ACQUISITION

By Atulaa Krishnamurthy 1882
This paper will discuss the legislations that concern issues of displacement and land
acquisition in India, and examine the legal tools at the citizens disposal to combat problems
of non-implementation and marginalization.
PERTINENT LEGISLATIONS
Land Acquisition Act, 1894:
The Land Acquisition Act 1894 is the earliest law on the process of acquisition of land by the
state in India. However, it has been criticised for various reasons. Some of these are-
a) The lack of an appeal mechanism to halt an acquisition process. The hearing
prescribed under Section 5A is not necessarily one that requires the objections of the
affected party to be considered.
b) The rates of compensation prescribed are on the basis of circle rates, which
disregard inflation and lead to undervaluing of the land
c) There is no provision for the rehabilitation and resettlement of displaced parties.
d) The urgency clause is undefined, which results in the acquiring authority invoking it
for almost every instance of acquisition, further easing the process of acquisition and
rendering approval of the affected parties irrelevant.
Bills:
In order to repeal the 1894 Act, which was largely considered to be outdated and old, two
bills, the Land Acquisition Amendment Bill 2009 and Resettlement and Rehabilitation Bill
2009 were drafted. It was recommended that these Bills be integrated as one as both the
acquisition process and rehabilitation and resettlement were processes that must go hand in
hand, and to prevent fragmented implementation, they should be brought within the same
law. Thus, the Land Acquisition, Rehabilitation and Resettlement Bill was tabled before
Parliament in 2011.
A few salient features of the Bill are-
a) Resettlement and Rehabilitation processes being outlined for the first time, including
measures such as land for land, housing, employment, annuities, etc.
b) Requiring that no person be dispossessed until all payments entitled to him or her are
made first,
c) Requirements of consent of Gram Sabhas if acquisition is in tribal areas.
d) Compensation of 4 times the value of land in rural areas, and 2 times the value in
urban areas,
e) Consent of 70-80% of affected parties in the acquisition is for private parties or
public-private partnership project.
f) Ceiling on acquisition of agricultural land.
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013:
This Act repeals the 1894 Act.
One of the most prominent issues with the land acquisition and R&R process in India was the
difficulty in providing relief packages to the land owner, as there are multiple land titling and
registration issues which make identification of the rightful owner difficult. The 2013 Act
provides for R&R even for the livelihood-loser, even if it cannot be shown that he or she is
the owner of the land. It clearly defines what public purpose is. It also mandates the
completion of a Social Impact Assessment for every acquisition.
However, it is still unclear whether the acquisition of land by state governments for industrial
corridors and SEZs and PSUs have to comply with the provisions of the new law.
Additionally, repeated demands by civil society and activists that the government not acquire
land for private corporations, which must instead buy land on the open market, have been
ignored.
PESA
The Panchayat (Extension of Scheduled Areas) Act of 1996 was a Central legislation that
reflected the objectives of the Fifth Schedule to the Indian Constitution, which had hitherto
been merely a paper tiger in the eyes of the legislature and the executive. The Constitution
guarantees certain tribes, designated as Scheduled tribes under Article 342(1) and 342(2), the
right to self determination under Article 244 of Part X. Additionally, the 73
rd
Amendment to
the Indian Constitution envisages a large role for the inputs of Gram Panchayats in the
programmes taken up in villages. The PESA Act tries to assure these tribes the right to
locally govern their own jal, jangal aur jameen (water, forests and land), and seeks to
devolve state power upon these local tribes.
The PESA-
a) Devolved power to the Gram Sabha level
b) Directed State Governments to not make any laws inconsistent with customary law
and practices
c) Mandated consultation with Gram Sabhas prior to taking any step towards acquisition
of tribal land.
However, the fact remains that PESA is a very loosely drafted piece of legislation, making it
extremely easy for State Governments to subvert its essence. The issues with the law in its
present form and implementation are-
a) Many State Governments, who were required to formulate PESA Rules for their
respective states, Panchayati Raj being a State subject under the Constitution, and
amend all the relevant rules and laws to make them consistent with the PESA Act,
have not yet done so, even 24 years after the enactment of the law. Even those who
have use these rules to bypass PESA provisions.
b) There is no overarching provision in the Act that prevents or punishes State
Governments from bypassing it.
c) Multiple terms in the Act are not defined. For instance, the Act mandates
consultation with the Gram Sabhas. State Governments have conveniently
interpreted this to mean that Gram Sabhas must merely be informed and their consent
and inputs can be ignored, as there is no requirement in the law for written consent.
This gives rise to many false claims of consultation. Another instance is that of
appropriate authority being left undefined. State Governments have been known to
consult district level bodies instead of Gram Sabha level authorities, who have no
nexus often with the land to be acquired.
PRACTICAL ISSUES
Multiple large-scale infrastructure projects, like the Sardar Sarovar Dam, that has displaced
over 200,000 people since 1991 in three states, POSCO and Essar mining projects in the
Mahaan forests, and the Delhi-Mumbai Infrastructure Corridor, which acquired 67000 acres
of land, have been known to displace large numbers of people. In many of these cases, land is
acquired, but sometimes not utilized because the project is declared to be unviable.
Now, the NDA government at the Centre has made moves to amend the 2013 Act to make it
more industry-friendly, as it is felt that complying with it will stall development projects too
much.
LEGAL TOOLS THAT CAN HELP
PILs and Landmark Judgments
The case of Samatha v State of Andhra Pradesh, SCC Appeal No 4601-2 of 1996 was one
that said that tribals had first control over their natural resources. It cited Article 4(c) of the
ILO Convention 107 which says that, the right of ownership, collective or individual of the
members of the population concerned over the land, which these population traditionally
occupy shall be recognised. The Convention also said that the populations traditionally
occupying the land shall have the right to decide their own priorities for the process of
development as it affects their lives, beliefs, institution and spiritual well being and land.
The Samatha judgment is significant because it ties together the above rights intrinsically
with the right to life under Article 21.
Pre Legislative Consultation
There had been a clamour for a clear process of pre-legislative consultation to be drawn up in
order to democratize the law making procedure in India by furthering the involvement of
citizens in the drafting and enacting of laws. The only way to have ones views heard on a
legislation is through Members of Parliament, who are often inaccessible, or if they invited to
be members of a Parliamentary Standing Committee.
On 10
th
January, 2014, the Committee of Secretaries outlined a 12 point Pre-Legislative
Consultation Policy, which is a subordinate legislation aiming to compel Departments and
Ministries to publish their proposed legislations on the internet and other media, to break
down legal provisions in a simple language, consult with all stakeholders and include
summary of feedback received in a referral to the Ministry of Law and Justice.
While it remains to be seen-
a) Whether these directives are actually binding on Government departments and
Ministries or merely recommendatory
b) Whether consultation equals consent and
c) Whether the policy applies to only Acts or even Amendments, the drafting of this
policy shows a will to more greatly involve stakeholders in the making of laws that
affect them.
The current Central Governments proposal to amend the 2013 Act to make it more industry-
friendly could mean doing away with the consent clause, making social impact assessment
necessary only for large projects and revising the definition of affected family.
Implementation of the pre-legislative consultation policy could mean the raising of a
powerful voice against such an amendment.
Emulation of the Grievance Redressal Authority Model of the Sardar Sarovar Project
The Narmada Control Authority has set up a Grievance Redressal Authority in Gujarat,
Maharashtra and Madhya Pradesh, appointed by the Supreme Court, to hear complaints and
grievances specifically relating to resettlement and rehabilitation. Any project affected person
can approach this independent body. Perhaps such independent authorities could be set up in
multiple states for general displacement related grievances, that are not necessarily connected
with a specific infrastructure project.
RTI, Whistleblowers Protection and Lokpal
We have seen that even though provisions that attempt to involve local bodies in the
utilization of their resources are made on paper, either these provisions are poorly
implemented or the State Government and its representatives bypass these provisions with
impunity.
In these situations, a useful tool to expose the violation of due process by public authorities is
the Right to Information Act, 2005. This not only enables individuals to obtain public
documents which will reveal compliance issues, but also narrows the gap between the
powerful and the not-powerful by giving them access to information. If any discrepancies are
found, the individual or even a non-governmental organization can file a complaint with the
Central Vigilance Commissioner without fear of his or her identity being revealed, as directed
by the Public Interest Disclosure and Protection of Persons Making Disclosure Act, 2011
(The Whistleblowers Act). These Acts, coupled with the Lokpal and Lokayuktas Act, 2013,
could bring about the much needed atmosphere of accountability which ensures that public
servants act in accordance with their people-serving duties. This is relevant especially in
context of land acquisition today, where governments acquire land for the benefit of private
bodies, and infrastructure projects fall comfortably within the understanding of public
purpose.
Apart from this, the role of civil society in raising voices against unfair acquisition practices
and spreading awareness cannot be emphasized enough. The efforts of the Narmada Bachao
Andolan in highlighting the displacement caused to people in the SSP areas resulted in the
World Bank withdrawing financial support for the project. Recently, Greenpeace India has
been taken to court by Essar for initiating a public campaign against Essars mining interests
in Madhya Pradeshs Mahaan projects. However, the entire process has served to bring the
interests of the people of Mahaan before mainstream media.