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State governments continue to dilute the Land acquisition legislation

Land is a state subject, but the acquisition of property, besides rehabilitation and resettlement of people, falls in the concurrent list of the Constitution
In the second of a three-part series on the Land Acquisition, Rehabilitation and Resettlement Act, 2013, Business Standard reports the changes states have continued to make to the law — some as recently as in March 2019

Within a month of his party winning the Assembly elections in Rajasthan, Madhya Pradesh and Chhattisgarh, Indian National Congress President Rahul Gandhi wrote on January 7 to the newly elected chief ministers in these three states, and asked them to undo the changes that the previous Bharatiya Janata Party (BJP) state governments had made to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

“In a sleight of hand, the BJP government urged the states where it was in power to dilute the law through state laws, rules and practices... The previous government issued notifications, rules, guidelines and policy designed to dilute the rights conferred under the UPA’s (United Progressive Alliance) Land Acquisition Act, 2013. I hope you would take steps for withdrawal of all such instruments,” he wrote in separate but similarly worded letters to the three chief ministers.

The Congress president was putting to practice what he had so far had only to preach. After all, the party had played from front to block the radical dilutions the BJP government had sought to the Act, first through an ordinance and then through Parliament in 2015. The ordinance lapsed and owing to the Congress’ and others’ opposition, the amendment Bill got referred to a joint parliamentary committee, which never finalised its report.

On Gandhi’s instructions, the three states did initiate a review of the changes in the law made by the previous BJP governments. But Karnataka, where Congress is in power in alliance with the Janata Dal (Secular), took a contrary route. It passed an amendment to the LARR Act, bringing into effect several provisions that the BJP-led National Democratic Alliance (NDA) government at the Centre had once sought and failed to secure through an amendment in 2014-15.

On February 13, the Karnataka government passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Karnataka Amendment Bill, 2019. The Bill exempts a large category of projects — defence, infrastructure, irrigation and highways, among others — from the provisions of the central law. This means the state will not have to conduct a social impact assessment and will not require consent of land owners before taking land for such projects. The state government can even exempt any other project from these requirements at the time of acquisition, even if it is not already listed among the existing exempted categories.

Karnataka changed another key provision in the central law, which mandated that all land acquisition initiated under the 1894 Act before September 2008 should lapse with the enactment of the 2013 law in case the government had not taken the possession of the acquired land or had not deposited the compensation in land owners’ accounts. In all such cases, the central law requires the acquisition to be initiated afresh under its provisions.

The Karnataka Bill now allows the state to continue to acquire land in such cases under the 1894 law if it can prove that the physical possession of the land was held up due to a legal challenge or when the government authorities had already deposited the compensation amount in any account designated by the government for the purpose, instead of the land owners’ accounts.

The state has also replaced the requirement of resettlement and rehabilitation of displaced families with paying of a lump-sum amount for the purpose.

“The state of Karnataka aims to grow at a very fast rate. For this purpose, with the help of the Government of India, various mega projects in the sectors of infrastructure, communications, construction of national highways, new railway lines and drinking water projects, etc, have been sanctioned. All these projects require that land be made available immediately, otherwise there will be high escalation in costs and also the benefit of development will be delayed, considerably harming the interest of general public,” said the Statement of Objectives and Reasons in the Bill.

“The state... is facing difficulties in acquiring land under the provisions of the principal Act. Therefore, in order to facilitate land acquisition for various development projects of Karnataka in the public interest, considered necessary to amend the... Central Act,” the Bill added.

The contradictions in approach within the Congress-led governments — even as the main Opposition party at the Centre is looking to seal its pro-farmer image before the general elections — is the reflection of the discomfiture almost all states have had in implementing the Land Acquisition Act, 2013, since its inception.

The list of states — led by the BJP-ruled and followed by those run by the Congress and regional parties — which have come up with ways to bypass the central law in the past five years is long. This, in effect, has made sure that little land is acquired under the original provisions of the 2013 law. A petition in the Supreme Court has now challenged the constitutional validity of these legal and policy changes brought in by the states.

BJP vs Congress

The 1894 land acquisition Act was heavily tilted against the interests of land owners. It gave sweeping powers to the government to forcefully acquire any land in the name of public purpose by paying meagre compensation.

The UPA’s 2013 law tried to correct this. It mandated the consent of 70 per cent of the people affected by land acquisition in public-private-partnership projects and from 80 per cent people in private projects. It enhanced the compensation to four times the market value of land in rural areas and twice in the urban areas. It also made it mandatory to conduct social impact assessment (SIA) and to resettle and rehabilitate land owners and livelihood losers.

But, about five months after it was enacted on January 1, 2014, the BJP-led National Democratic Alliance government came to the power at the Centre. Within the next few months, it tried to amend the law through an ordinance. It said the law was cumbersome, time-consuming and cost-escalating for projects. The ordinance exempted large categories of projects from the requirement of consent and the SIA and kept out livelihood losers from receiving any rehabilitation or compensation. It then passed a Bill to amend the law with similar provisions in the Lok Sabha in 2015 but could not pass it in the Rajya Sabha, where it did not have a majority.

After it failed to amend the law through Parliament, the central government encouraged states to bring their own amendments or to pass rules and regulations under the law to suit their needs.

How states changed the law

Land is a state subject, but the acquisition of property, besides rehabilitation and resettlement of people, falls in the concurrent list of the Constitution. This means both the Centre and states can frame laws related to land acquisition. Section 107 of the land acquisition Act allows states to frame new laws that provide higher compensation to the affected families or provide their “more beneficial” rehabilitation and resettlement.

Using this provision, states have come up with their own laws to amend the central Act. Tamil Nadu brought in an ordinance in 2015 to amend the LARRA through which it exempted all “industrial projects” from the requirement of the SIA and the consent. Gujarat and Telangana brought in the state land acquisition Acts in 2016 exempting large categories of infrastructure projects from the 2013 laws’ provisions. Jharkhand did the same in 2017 and Andhra Pradesh in May last year.

Other states have diluted the consent and the SIA process through rules. To make sure that the SIA is insulated from the influence of the authorities and the project proponents, the 2013 law mandates setting up of independent expert groups and SIA units in states. But, according to a study by the CSE, Uttarakhand, Rajasthan, Andhra Pradesh, Chhattisgarh, Jharkhand and Kerala have included made government officials engaged in the land acquisition process in such bodies.

To add to this, Madhya Pradesh, Chhattisgarh, Uttar Pradesh, West Bengal, Odisha and Maharashtra have come up with ‘Consent Land Purchase’ policies. The policies allow the government agencies to directly buy land from farmers at an agreed price. The SIA and the resettlement and rehabilitation clauses in the central law are bypassed. Gujarat, Andhra Pradesh, Rajasthan, Punjab, Haryana and Delhi government are also acquiring land under ‘land pooling’ schemes. Instead of compensation, the land owners in these schemes get a share of the developed land.

In December 2018, the Supreme Court, following a petition by Medha Patkar of National Alliance of People’s Movements and other land rights activists, issued notices to the five states that had amended the LARR Act. The petitioners had demanded that since the state laws were contradicting the basic nature of the central law by diluting its provisions, they should be quashed. The case is still being heard in the court.

This is not the only case that promises to test, affirm or reject, the fundamental pillars on which the Congress originally based its LARR and the BJP failed to dilute. A complex legal battle ensues over another provision of the law. It has now reached before a Constitutional Bench.

The third and concluding part of this series will unravel how the legacy of colonial-era land acquisition haunts the LARR 

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