Reject Land Acquisition Bill 2011: We Need a Just,Democratic and Effective Framework

No Attention to Land-Use Planning and Minimising Displacement

Current Practice: All decisions are taken by the bureaucracy in an ad hoc manner. There is no prioritisation or planning of land use in accordance with food and livelihood security, extent of displacement or environmental protection.

2011 Bill: (a) Does nothing at all to plan or regulate land use. Instead, it gives an arbitrary licence to acquire up to 5 per cent of multi-crop irrigated land without assessing projects in terms of their impact on food security. (b) The earlier draft required that projects be the ‘least displacing’ option; this has also been removed. (c) The constitutional powers of municipalities and panchayats over planning are simply ignored.

Bureaucratic Diktat without Public Scrutiny of Public Purpose for Acquisition

Current Practice: Whether land acquisition serves a public purpose or not is exclusively decided by the bureaucracy; courts have widened their powers further.

2011 Bill: A ‘state level committee’ consisting almost entirely of bureaucrats makes all decisions. A ‘social impact assessment’ (SIA) is to be done, but who will do it, and how, is unclear. In fact, the SIA is a mirror image of the discredited environment impact assessment process, which Shri Jairam Ramesh himself described as a farce. The SIA will neither consider the rehabilitation plan, nor whether the project is the ‘least displacing’ alternative, nor the question of public purpose—yet the state level committee is supposed to decide all this based on its report. Various public hearings and Gram Sabha consultations are suggested, but these are a mere formality; the views raised in them are not given any importance subsequently.

Moreover, the Bill has a series of loopholes that allow the government and companies to bypass whatever ‘safeguards’ are provided. One of these is ‘partial’ acquisition for private companies, which will not require consent of 80 per cent of the people (see next point). Another is in Section 76, whereby land that is ‘temporarily’ occupied for some ‘temporary’ use can then be acquired if it is ‘permanently damaged’. This would then bypass the entire procedure of social impact assessment, public consultation, consent, etc.

Farcical Prior Informed Consent—The Bill Does not Require Consultation with People

Current Practice: Consent or even consultation with those affected is not required, even where the law requires it (as in Fifth Schedule and forest areas).

2011 Bill: The Bill says that ‘consent of 80% of the affected families’ will be required for some types of acquisition. But it provides no procedure for taking this consent, for determining if it is given freely, for deciding what happens if consent cannot be obtained and for deciding whose consent is to be taken. The Bill provides no sound way for deciding who is affected and who is not; indeed no listing of affected people is even made until much later. Asking for consent in this manner is an open invitation for forgery and manipulation. And when will consent be sought? Also, those being asked for their consent cannot be told about rehabilitation as the package is not even drafted till much later.

Besides, to get around this, all that private companies need to do is purchase a little land and ask the government to engage in ‘partial acquisition’ for the rest, which could even be 99 per cent of the total area (Clause 8 proviso read with Clause 2(2)).

Definition of Public Purpose

Current Practice: Public purpose is defined very broadly, allowing for all kinds of projects to be included.

2011 Bill: In the 2011 Bill, the definition of public purpose has been widened even further. All types of real estate are deemed as public purpose and are exempt from 80 per cent consent (Clause 3(za)(iv)).

Besides, projects that are in ‘public interest’ (which is not defined) or that ‘produce goods or services for the public’ become public purpose (Clause 3(za)(vi) and (vii)). Is there any economic activity which does not satisfy these requirements? Thus, land acquisition for practically any project, private or public, will be possible, only subject sometimes to the dubious ‘80% consent’ requirement. Instead of making the process more rational, the Bill is opening acquisition to a free for all, giving private companies access to the state machinery for purposes identified by them. The Bill contradicts itself by first declaring that no change of purpose will be permitted (Clause 93); and then reverting unutilised land to the government ‘land bank’ (Clause 95). What is this if not a change of purpose? This is an incentive to acquire large tracts of land on plausible grounds and hold them for later use.

Regulation of Private Purchase and Projects

Current Practice: There is no regulation over private projects where land is purchased. Acquisition is held as a threat over the heads of landowners to force them to sell ‘voluntarily’. The Act at present, despite its weaknesses, puts the onus of establishing public interest and purpose on the requiring body under Part VII where it deals with land acquisition for private companies.

2011 Bill: Lack of regulation will continue unabated. Private purchase of more than 50 acres in urban areas and 100 acres in rural areas—which is far above the land ceiling, and therefore illegal—will supposedly require rehabilitation and resettlement (R&R). Clause 42 which covers this permits land-use change for such projects without any regulation at all and without even setting a minimum floor price! How can there be a ‘voluntary negotiation’ and a ‘market price’ for those selling, when they will basically be told to sell at whatever price is being offered or face forcible acquisition? In any case, any project can be broken into smaller blocks to get around this.

Furthermore, with no comparable provisions, the private companies no longer have to establish public purpose and public interest when land acquisition is done for them.

Low Compensation to Land Losers

Current Practice: Prices are decided by the procurer (the government). The system neither takes into account the cost to the land loser of purchasing similar land elsewhere, nor the increase in value on change of land use. Courts eventually directed that at least the highest recent sale, not the average price, should be taken.

2011 Bill: This too will worsen. Compensation is linked to average ‘market’ value based on recorded transactions and officially specified minimum land values. These are invariably far below real market rates. The four times increase in rural areas is still far less than what the procurer gains from the change in land use classification (which often increases the value by more than twenty times). The owner will receive only 20 per cent of the increase in value on any sub-sequent transfer, and that too only if no development is done on the land at all. There is no reference to enabling the affected person to replace what they have lost. In the case of ‘temporary occupation’, this will be settled through a process of ‘negotiation’—without even any floor value specified—and then the land can be permanently acquired if it is not fit for its ‘original use’ (Section 76(2)).

Temporary Occupation and Urgency

Current Practice: Part VI allows the temporary occupation and use of any waste or arable land for any public purpose, or for a company, for up to three years. Under ‘urgency’ (Clause 17), land can be acquired; a lot of land has been acquired for real estate, mining and infrastructure projects using this extraordinary power.

2011 Bill: On the one hand, the Bill says acquisition only after compensation/rehabilitation and then, on the other hand, it allows for ‘temporary acquisition’ in Chapter 11. Any kind of land can be ‘occupied’ temporarily for any ‘public’ purpose, including for private companies, without being subject to any conditions apart from the subjective satisfaction of the collector. As noted earlier, Section 76 also allows this to be abused as a backdoor route to acquire land; just occupy it ‘temporarily’, damage the land, and then say it cannot be restored to the original use and hence is being acquired. Similarly, the misuse of ‘urgency’ will continue unabated (Clause 38), since there is no procedure by which the restrictions in this can actually be enforced. Such cases will not require SIA or allow objections, and the constraint in the draft Bill that this be done in the rarest of rare cases has been dropped in the final Bill.

Ad Hoc and Discretionary Resettlement and Rehabilitation, not Integrated with Acquisition

Current Practice: R&R is totally ad hoc and dependent on the administration.

2011 Bill: In the name of integration, what the Bill actually creates is a mishmash of unrelated processes and contradictory provisions. The most basic fact—the number of affected people—is counted in the SIA (Clause 4(2)(a)), separately counted in a census (Clause 17(1)(a)) and finally counted again by asking people to file claims (Clause 21(2). Discrepancies will be ignored. The R&R plan is drafted long after the project has been approved as a public purpose; by which time people have no chance to object to the project itself. Two separate groups—‘affected people’ and ‘interested persons’—are defined and given different rights and responsibilities; but a close reading shows that these definitions cover the same people. The annexed Schedules, especially the third, offer the officials the option of not doing anything and writing an explanation in the fourth column. The net result of all this will be total administrative confusion and plenty of space for manipulation.

Moreover, while it claims to cover forest dwellers, hunter gatherers, fish workers, etc., the Bill says nothing about protecting those ‘affected by the project’—only those ‘affected by the acquisition’, meaning those who are practicing these livelihood activities on private land. Those affected by transfer of government or common property or forest land for any project will not be covered by this law and will receive no R&R. Even the 2007 R&R Bill was better than this.

The central government can amend the Schedules at any time with just a notification. Finally, those who received R&R can also have it taken back later, if they are accused of having done so on ‘false information’. No procedure is specified for this; there would be no need for a trial, since it is an administrative action.

Urban Land Rights

Current Practice: In urban areas, large tracts of public land are held by the government, especially by the defence, railways and public sector companies and public corporations. Increasingly, this land is being sought by real estate developers and builders. Furthermore, large sections of the urban poor and working class live as ‘encroachers’ in slums, tenements, pavements and the like, and their occupational rights as squatters are always under threat from imminent eviction. The majority of urban residents in India today exist in various states of illegality. There is absolutely no protection for the rights of the urban poor and their land and livelihoods are constantly sacrificed to benefit powerful private interests.

2011 Bill: The Bill essentially exempts all private activity in urban areas from R&R by setting an absurd minimum limit of 50 acres (which would exclude practically every urban project in the country). Insofar as public acquisition is concerned, the Bill makes no reference to slums or urban dwellers and their rights.

No Route for Affected People to Enforce Their Rights if Violated

Current Practice: Those affected have no recourse except to go to the High Court or Supreme Court.

2011 Bill: Those affected cannot approach local courts—they have to go only to a government appointed state or central authority, thus undermining the separation of executive and judicial functions. This body can only award increased compensation, and can only be approached through the collector (Clause 58); then any appeal to the High Court is permanently barred after 120 days (Section 68). Further, even if the law is violated, the acquisition will always go ahead, as Clause 57 bars any court from issuing a stay order (incidentally this clause is unconstitutional, as it seeks to bar even the jurisdiction of the High Courts and the Supreme Court). So if R&R is not provided, people will be displaced anyway, and can spend the rest of their lives chasing their rights in the Authority or courts (if they have the resources to do so).

Violating Rights of Scheduled Tribes and Forest Dwellers

Current Practice: Legal protections for tribals and forest dwellers are completely ignored.

2011 Bill: After decades of struggle, PESA and the Forest Rights Act empowered tribals and forest dwellers to protect, manage and safeguard their resources. The Bill reduces these provisions for consent and consultation to formalities (when done at all), in exchange for increased compensation and advance payment.

The last straw comes at the very end—Clause 98 and the accompanying Fourth Schedule. After grandly stating that this law will create a new, just process of acquisition, these clauses exempt a whole range of activities—SEZs, coal mines, highways, uranium mines, railways etc.—from this law entirely. This is at a time when SEZs and mines have been sites of bloody, violent conflict across the country.