ASHA sent its submission to the Joint Committee of the Parliament on the second amendment bill related to the land acquisition statute in India.
June 5, 2015
The Chairperson and Members,
Joint (Parliamentary) Committee on the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (2nd Amendment) Bill 2015,
C/o Joint Secretary (SL),
Lok Sabha Secretariat, Room No 336,
Third Floor, Parliament House Annexe,
New Delhi 110 001
Fax: 011-23092092; Email: email@example.com
Respected Chairperson and Members,
Sub: Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Second Amendment) Bill 2015 – reg.
Ref: The advertisement of the Joint Committee seeking views and suggestions from public, dated 27/5/2015
Alliance for Sustainable and Holistic Agriculture (ASHA) is a nationwide platform with which more than 400 organisations, including leading farmers’ organisations of India, are associated. ASHA works to promote income security and environmental sustainability in agriculture, so that farmers’ livelihoods in India can be improved and lent dignity. In the Kisan Swaraj Neeti policy framework advocated by ASHA, control over resources like Land, Seed and Forests in the hands of farming communities is an important and essential element for securing and improving farm livelihoods.
At the outset, we oppose the hurried and undemocratic attempts to amend the Act passed by the Parliament in September 2013, called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (RFCTLARR Act 2013) since it was a legislation that was evolved after widespread consultations and debate.
Amendments that are being proposed now will take away from the very objective of RFCTLARR Act 2013. It was a statute notified as “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 for industrialization, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that cumulative outcome of compulsory acquisition should be that affected persons become partners in development, leading to an improvement in their post-acquisition social and economic status, and for matters connected therewith or incidental thereto”.
As is clear, the emphasis is on humane, participative, informed and transparent processes of land acquisition, apart from upholding basic justice to the affected, after acquisition.
The 2013 Act itself was considered inadequate by many farmer organizations and people’s movements including ASHA because it did not place enough emphasis on minimizing land acquisition as its objective, but only sought to improve processes around such acquisition. Further, it did not put into place prior informed consent for all land acquisition processes but laid it down only for land acquisition for private companies and for public private partnership projects. No land acquisition should take place by any entity including the government without the prior informed consent of the affected people. No land acquisition should happen without full compensation, resettlement and rehabilitation clauses applying in all cases. To that extent, the 2013 Act itself was flawed in protecting the interests of the common people.
Be that as it may, the current proposals in the Second Amendment Bill 2015 as well as what was introduced in the earlier Amendments Bill in February 2015 seek to dilute the very objective of the 2013 Act. We believe that the amendments are untenable just on these grounds that a few Amendments in a law cannot end up diluting the very purpose and objective of an Act.
On the specific clauses that are to be amended in the 2013 Act, through this Second Amendments Bill (May 2015):
- AMENDMENT TO SECTION 2 AND INSERTION OF A NEW CHAPTER IIIA FOR Exemption of five types of projects from certain provisions (Insertion of Chapter IIIA, Section 10A, ‘Power of appropriate Government to exempt certain projects’, whereby provisions of Section 2, Chapter II and III of the 2013 Act will not apply – Section 2 is about prior informed consent; Chapter II is Determination of Social Impact and Public Purpose; Chapter III is Special Provision to Safeguard Food Security): Using this amendment, the government seeks to exempt (i) defence including defence production, (ii) rural infrastructure including electrification, (iii) affordable housing and housing for rural poor, (iv) industrial corridors set up by the appropriate Government and its undertakings, in which case land shall be acquired up to one kilometer on both sides of designated railway line or roads for such industrial corridor, and (v) infrastructure projects including projects under public private partnership where the ownership of land continues to vest with the Government. The exemption is from provisions related to (b) conducting a Social Impact Assessment which also includes a public hearing, publication of the study, appraisal of the SIA report by an Expert Group etc., and also to (b) setting limits on acquiring agricultural and multi-cropped land.
Two qualifiers have been added to this proposed amendment: that the extent of land to be acquired will be ensured at the bare minimum land required for such a project; that the appropriate government shall undertake a survey of its wasteland including arid land and maintain a record of such land.
These amendments are not acceptable to us for the following reasons:
(a) In the guise of saying that only five categories are exempt, most of the projects involving large acquisitions will be exempted. For instance, the category “nfrastructure projects”, as per Section 2(b) of the principal act of 2013 and the Dept of Economic Affairs’ notification of infrastructure, includes “sub-sectors within transport/energy/water & sanitation/communication/social and commercial infrastructure, industrial corridors, mining activities, manufacturing zones, water harvesting structures, educational and research schemes and institutions, sports, healthcare, tourism, transportation programmes as well any other infrastructure facility that may be notified under this Act”. Similarly, the “industrial corridors” involving one kilometer on either side of highways or railway lines would mean lakhs of acres. For example, the Delhi Mumbai Industrial Corridor targets 3,90,000 hectares or nearly 10 lakh acres in Phase I alone. Even the category “defence” is misleading because it includes “defence production” which includes a wide range of manufacturing projects most of which are going to be private projects including by multinational companies. The Government’s website lists the target of Rs.25000 crores worth of defence manufacturing projects by MNCs as part of its Make in India initiative.
(b) The government is misleading the public saying that not an acre of land will go into private hands. As mentioned above, under “infrastructure projects”, “industrial corridors” and “defence production, huge private and PPP projects will be allowed. The phrase “ownership continues to vest with the government” in case of PPP projects is an eyewash because the dominant practice has been to give thousands of acres of land to a private company on lease for throwaway rates such as a few rupees per acre.
(c) Section 2 and Chapter II are the prime protective section of the 2013 Act that safeguard the interests of the affected people including land-owners, and it is not acceptable to keep any projects out of its purview. That would defeat the very purpose of the 2013 Act. Social Impact Assessment (SIA), Consent Clauses and Determination of Public Purpose are an absolute must to ensure that land is not grabbed for wrong reasons under the guise of public purpose, that only the minimum required land is sought for acquisition, and that all the effects of the acquisition and the categories of affected people are properly identified. In many projects, the tenant farmers, women, landless agricultural workers and people employed in many informal sector occupations are heavily impacted and lose their livelihoods, but most of these are not even identified as project-affected. SIA process is most important for identifying all the project-affected including livelihood losers.
Moreover, this is the section which provides for public participation through public hearings, and most importantly the consent clauses requiring 70% consent for PPP projects and 80% consent for Private projects. Our demand all along has been that the consent clauses should be extended to all projects including government projects – instead these Amendments are exempting very large categories of projects.
(d) Chapter III is crucial to ensuring food security of the nation. The biggest challenge in keeping up the food production is the fact that almost 10% of cultivated land has gone away for non-agricultural purposes in the past two decades, and this process is accelerating. There is no reason to exempt any project from this requirement – and if projects of such huge acquisition are exempted in these five categories, this clause becomes meaningless.
In a country where the average land ownership per agricultural household is only 0.6 hectares, each hectare of dispossession through land acquisition counts because more than one average-sized family’s lives are involved in such acquisition of even one hectare of land. The 70th Round NSSO data revealed that between 2002-03 and 2012-13, rural land ownership declined by 14.86 million hectares, for instance – this obviously has implications for crores of households. Without establishing ‘Public Purpose’ in each of these projects, or assessing social impact, as laid down in the 2013 Act, these proposed amendments deny justice to land owners within a statutory framework that talks about humane processes of acquisition! In fact, even pragmatically speaking, without such an SIA, implementing other provisions of the Act related to compensation, resettlement and rehabilitation is not going to be possible.
NO PROJECT, INCLUDING GOVERNMENT PROJECT (NOT JUST PRIVATE OR PPP) SHOULD BE EXEMPT FROM ANY CLAUSE RELATED TO PRIOR INFORMED CONSENT, SOCIAL IMPACT ASSESSMENT PROCESSES THAT ALSO PROVE ‘PUBLIC PURPOSE’, ADEQUATE COMPENSATION (WHICH IS STILL AN UNRESOLVED MATTER IN THE 2013 ACT TOO), RESETTLEMENT AND REHABILITATION.
2. AMENDMENT OF SECTION 24: Section 24 of the 2013 Act has a provision for land acquisition processes under the 1894 Act to be deemed to have lapsed in certain cases. The May 2015 Amendments Bill seeks to insert a new proviso under this Section 24 of the 2013 Act, wherein certain projects will be excluded from such a clause related to “lapsing of land acquisition process”. While a time bar of five years was built into the 2013 Act, the proposal to amend it says that any period during which the proceedings for acquisition – in terms of possession of land – were held up due to legal processes/orders even as compensation remains deposited in a designated account should not be computed into this time period of five years (2013 Act makes a mention of five years or more where physical possession of land has not been taken or the compensation has not been paid, in which case, the land acquisition proceedings shall be deemed to have lapsed).
This again introduces an element of injustice towards the affected persons, who would suffer during the period when land is taken possession of, but compensation not paid. We believe that the restrospective application built into the 2013 Act should be kept in tact to ensure that procedures are followed in a time bound fashion, where acquisition becomes necessary with all other just principles adopted.
3. AMENDMENT OF SECTION 31: In the 2013 Act, Section 31 under Chapter V Rehabilitation and Resettlement Award deals with rehabilitation and resettlement for affected families. The Award to be passed by the Collector shall include, 31(2)(h) details of mandatory employment to be provided to the members of the affected families. The May 2015 Amendments Bill seeks to insert the additional sentence into this clause – “Including compulsory employment to at least one member of such affected family of a farm labourer”. This is fine, and in any case, “Affected Family” as defined in the 2013 Act includes a family which does not own any land, but a member or members of such a family may be agricultural labourers, tenants, share croppers or artisans or others whose primary source of livelihood stands affected by the acquisition of land”. In that sense, this proposed amendment only seeks to reiterate what is already contained in the Act.
4. AMENDMENTS OF SECTION 46 related to Rehabilitation and Resettlement: The amendment proposed apparently seeks to exempt “specified persons” ie., all government entities, including associations/trusts/societies wholly or partially aided by government or controlled by the appropriate government from having to take up compulsory resettlement and rehabilitation as per Chapter V and VI. This is not acceptable. Resettlement and rehabilitation should apply to all projects of acquisition. In fact, for genuine public purposes as defined by the affected people also, if land is to be acquired, that should only be for the government by the government, and that should inevitably be accompanied by rehabilitation and resettlement. There should be no dilution here, and this clause only requires further strengthening.
5. AMENDMENT OF SECTION 87, with regard to offences by Government officials: The May 2015 Amendments Bill seeks to dilute the penal clauses on offences by Government departments and officials by requiring prior sanction of the government before prosecuting a public servant. This is absolutely unnecessary since the Principal Act 2013 already has sufficient safeguards for exempting those departments and officials which/who did not act with malafide intent or negligence. Therefore, this proposed amendment is not acceptable.
6. AMENDMENT OF SECTION 101 regarding “return of unutilized land”: The protective clause in the Principal Act is once again sought to be diluted with the proposed amendment which seeks to bring in a ‘period specified for setting up of any project, or for five years, whichever is later’. The projects can always take recourse to laying down enormously long periods for setting up of a project and can also be sure that the unutilized land need not be returned. Examples galore of this kind in reality where promised projects have never taken off. This is not acceptable.
7. AMENDMENT OF SECTION 105 IN 2013 ACT, which exempted Fourth Schedule enactments related to land acquisition from the provisions of the 2013 Act. Sub section 3 in any case laid down a one year time period to bring in other laws in consonance with this law, and the proposed amendment in the May 2015 Bill is in line with the same, and is acceptable.
8. AMENDMENT OF SECTION 113 RELATED TO ‘POWER TO REMOVE DIFFICULTIES’: The May 2015 Amendments Bill seeks to extend the power given to the Central Government in the 2013 Act from two years to five years, and expand such a power to the entire Act, and not just that Part of the Act which the 2013 Act refers to (Miscellaneous). This is not acceptable.
All in all, there is a need to strengthen the 2013 Act in various ways to further protect the interests of the landowners and other affected people, and not dilute the existing law in any manner. In fact, it is not too late to re-visit the discourse that BJP has brought in, while it was in the Opposition, for this country to have only land lease and not land acquisition, in cases where there is a genuine, people-determined need for land possession for “development”. Such a land lease arrangement from the original land owners, with rent payment for landowners and other affected parties in a market-determined system, as determined in the Gram Sabhas and local self government bodies, should be the way forward, with proper checks and balances evolved over land use of such leased land. There should be no land acquisition in such an approach, with ownership continuing to vest with the current land owners. Further, where private and PPP entities need land, they can always resort to market transactions and the government need not broker on their behalf to acquire land for any purpose. This is the only way that historical wrongs can be corrected, and that land can be protected for rural prosperity and food and livelihood security. This recommendation is based on the empirical evidence of lack of participation as well as justice for the affected in land acquisition cases so far in India, no resettlement and rehabilitation to the tune required or proportionate to the acquisition and impact on the lives and livelihoods of millions (in fact, planners do not fully understand the interconnected social fabric of rural communities which makes proper rehabilitation a great challenge), no usage against, or delivery on promises made when land is acquired and no commensurate benefits accruing to the affected.