Update on the Rajiv Awas Yojana

Pranab Mukherjee, President of India, recently commented on the need to evolve solutions for the problem posed by the abject lack of housing in Indian urban spaces, specifically for persons belonging to the Economically Weaker Sections (EWS) of society. In this context, he invoked the Rajiv Awas Yojana (RAY) as an example of the steps being taken by the Government to address some aspects of this issue.

The Rajiv Awas Yojana, introduced in 2011, assures the States, Central funding for their Slum-Clearance schemes as long as they carry out certain mandatory policy and legislative reforms as specified in the Guidelines prepared by the Ministry for Housing and Urban Poverty Alleviation. Some of the salient such guidelines are the following, inter alia:

•  The States shall be required to pass legislation to the effect that slum-dwellers would be given the legal title to the land on which they reside. This title shall have to be given to either the woman of each individual house, or jointly to the man and the woman. This title shall have to be such as can be mortgaged, as well as inheritable, so as to enable access to formal credit mechanisms. 
• All new property developments in the State (both Private as well as Public) shall have to necessarily earmark or reserve 20-25% of the total area developed for the creation of housing for persons from the EWS. The idea here is to introduce cross-subsidisation of housing for such persons by those from the Middle and Higher Income groups. 
• The States shall be required to create detailed, individual Plans of Action for the purpose of slum-clearance, satisfying the criteria mentioned in the Guidelines, which extend to a number of subjects from mapping and surveying, to the assignment of property rights to slum-dwellers. 

In response to these, the National Advisory Council (NAC) had earlier prescribed some further reforms, dealing with subjects such as the eligibility barriers created by the current definitional structure, the provision of social amenities in the newly created slums, as well as the creation of transparent grievance redressal measures for slum dwellers.

Notwithstanding the reforms proposed by the NAC, the RAY Guidelines, as contained above seem to contain a fairly coherent description of a new paradigm with which to approach the subject of slum-clearance and development in the Country. Notable are the provisions relating to the grant of property rights to slum dwellers, and the mandatory reservation of space in new housing developments for persons from the EWS. These provisions mark an approach that is more aware of the right of the urban poor to decent living spaces, one which recognises the need for the various other population groups to ackowledge this right and conduct their affairs around it.

Subsequently, there have been reports of a large-scale rethink of the RAY Guidelines, on account of a poor response from the States. Particularly, there appears to be a strong adverse reaction among the States to the provision for mandatory handing over of legal title of the land to slum-dwellers, as well as with respect to the funding share of the Centre. However, there has been no new draft of the RAY Guidelines since that time, and there does not appear to be evidence of such a draft appearing in the near future.

More recently, the Minister for Housing and Urban Poverty Alleviation, Mr. Ajay Maken, has emphasised the role of private property developers in creating housing for the urban poor through the mandatory reservation of 35% of houses built by them, under the RAY. This has, not surprisingly, led to a rash of protests from these developers, who argue that such a reservation of houses for persons from the EWS shall only lead to an increase in the already high costs for the other buyers of houses.

One hopes that the give-and-take involving the Central Government, the State Governments and the private property developers does not result in a dilution of the bold initiatives described in the RAY Guidelines.

Is the Current Avatar of Aadhar Unconstitutional? - Supreme Court Issues Notice to Centre

In an earlier post, this blog had highlighted how the absence of statutory mandate for the Unique Identity Authority of India (UIDAI) makes the introduction of Aadhar and Direct Cash Transfer linked with it constitutionally suspect. 

It is significant therefore that the Supreme Court has admitted a Public Interest Litigation (PIL) against the implementation of Aadhar scheme and issued notice to the Union Government.

The Hindu reports that the petition filed by Retired Justice K. Puttaswamy, Former Judge, Karnataka High Court, alleges that the Union Government's decision to implement the Aadhar scheme while the Unique Identification Authority of India Bill is pending before the Parliament, is an attempt at circumventing parliamentary discussion and therefore mala fide.

The petition further alleges that the project impinges on the right to privacy given its collection of biometric information and that such invasion of privacy can be authorised only through a law of the Parliament.

Interestingly, the petition also claims an infringement of the Right to Equality under Article 14 on the ground that the Aadhar scheme is likely to extend to non-citizens, thus legitimising them and endangering national security. It appears from the aforementioned report by J. Venkatesan that the exorbitant cost has also been referred to as a ground for the Article 14 challenge. 

In another noteworthy development on the introduction of cash transfer, the Bharatiya Janata Party (BJP) has, as the Hindustan Times reports,  filed a complaint with the Election Commission claiming that the introduction of direct cash transfer is a corrupt poll practice in view of the impending Gujarat Assembly elections. 

Of Direct Cash Transfer and State Capacity

In response to the announcement of the introduction of cash transfer, Narender Pani has argued, in The Hindu, that the political imperatives of Congress Party have trumped legitimate worries over transaction costs of Aadhar enabled cash transfer.

Pratap Bhanu Mehta had earlier expressed his anxiety over the framing of the shift to cash transfer and the perils of looking for technocratic solutions as easy substitute for the hard grind of bureaucratic reforms and enhancing state capacity.      

Cash Transfer: A Game-changer for the Poor?

The Congress-led United Progressive Alliance (UPA) Government announced yesterday that 29 existing welfare schemes of the Union Government would be replaced by direct cash transfers in 51 districts across the country from January 1, 2013. Indicative of the political ramifications, these proposals were announced jointly by Mr. Jairam Ramesh, the Minister for Rural Development and Mr. P. Chidambaram, the Minister for Finance at the headquarters of the Congress Party.    

Mr. Chidambaram announced that cash transfers would initially be introduced in 51 districts from January 1 and that the Government hopes to complete the nation-wide transition to cash transfer by the end of the next year. The Finance Minister also clarified that introduction of cash transfer in lieu of public distribution services can commence only after further consultation and studies. It is significant in this context that the Minister of State (IC) for Consumer Affairs, Food & Public Distribution Prof. K.V.Thomas announced in the Lok Sabha yesterday that that Ministry proposes to introduce a pilot scheme of cash subsidy under the Targeted Public Distribution System in six Union Territories as a pilot project.

Jairam Ramesh hailed the introduction of cash transfer as a fulfillment of a promise made by UPA in its election manifesto in 2009. He termed the scheme, “Aap Ka Paisa Aap Ke Haath” thus evoking memories of the party’s election slogan of 2004. Similarly, Mr. Chidambaram also called the scheme a game-changer.

The mainstream media has, as illustrated in this editorial of The Economic Times, welcomed the measure as a tool for eliminating the losses arising out of leakage, pilferage and inefficiency in the administration of public welfare schemes.  At the same time, questions still hover around the scheme, its legality, its impact on employment and its exclusionary potential.

Legality of Aadhar-enabled cash transfer

The introduction of cash transfer is predicated around Aadhar cards. However, as several scholars and critics have pointed out, UID Project has not obtained any form of statutory recognition. As Sudhir Krishanswamy had noted at the time of commencement of the UID project, “UIDAI is an executive authority created by Executive Orders which functions as an independent agency under the auspices of the Planning Commission of India. It is noteworthy that the Planning Commission is itself constituted by a Cabinet Resolution and does not have a constitutional or statutory status.” This ambiguity about UIDAI’s legal status has not been resolved as yet and the Unique Identification Authority of India Bill is still pending before the Parliament.

Moreover, it is not clear whether the proposed introduction of cash transfer under the TPDS would be in compliance with the rigorous obligations spelled out by the Supreme Court of India in the Right to Food case [People’s Union for Civil Liberties v Union of India (Writ Petition [Civil] No. 196 of 2001].

Inadequate coverage under Aadhar and delays in cash transfer

Further, an excessive haste in introduction of cash transfer through Aadhar Card may end up excluding a vast swath of people, covered under the existing welfare scheme, but not yet registered under Aadhar. This apprehension is far too real to ignore since, by Government’s own admission, registration of persons under Aadhar have not been completed as yet. Strangely, the Finance Minister himself stated that the scheme would be initiated in the selected districts once 80 % coverage under Aadhar is achieved. It reflects poorly on the commitment of the Government to inclusive growth when a senior minister does not find anything amiss in conscious exclusion of 20% of beneficiaries from a welfare scheme at the point of its initiation.

It must also be noted that a pilot project on substitution of subsidised kerosense with cash transfer in Beelaheri, Rajasthan has been plagued by several teething problems of exclusion of beneficiaries, duplication and delay in cash-transfer. While such teething troubles are inevitable, they certainly make a case for some circumspection, patience and better groundwork on part of the Government before introducing cash benefits through Aadhar. 

Withdrawal of public services, supply-side contraction and impact on employment

One of the most serious dangers that the transition to direct cash transfer may bring along is the contraction of the gargantuan procurement, storage and distribution chains that have been built around welfare schemes. In large part of rural India, government welfare schemes are the only channel of supply of essential services. Replacing these services with cash transfer is unlikely to work unless accompanied by development of affordable substitute market-based supply chains. In absence of such well-developed market, beneficiaries of cash transfers may become hostage to predatory pricing practices.

Apart from the effects on supply of essential services, R. Jagannathan, in First Post, argues that the livelihood of more than 10 million persons who are currently employed in a vast range of government welfare schemes may be imperilled as result of their substitution with direct cash transfer.

There has also been a conspicuous lack of clarity on the nature of banking channels and safeguards that would be employed for cash transfer. In light of the limited reach of formal banking channels and the potential of abuse inherent in informal networks like banking correspondents, the Union Government owes to the people to come clean on this point.
   
Thus, many observers are anxious about the impact of introduction of cash transfer in India. To the credit of the Union Government, it has kept the more complex schemes likes TPDS outside the purview of cash transfer at this moment. Yet, even the limited experiment proposed for the 51 identified districts would end up disenfranchising the 'aam aadmi' unless the concerns over the ambiguous legal status and limited coverage are addressed.   

Further efforts of the Tamil Nadu Government to create housing for the urban poor

The Tamil Nadu Slum-Clearance Board is making strong progress in the creation of new tenements for slum dwellers in Chennai, with 14,000 such tenements scheduled to come up for allotment in March 2013 according to this recent news report . The effort now is to ensure that these tenements are possessed of all basic amenities such as electricity, water, sanitation, as well as commensurate transport facilities, ration shops, primary health centres, anganwadis, and schools.

This follows on from a problem faced by persons availing of similar accommodation constructed under the aegis of the previous DMK government, wherein a lack of basic infrastructural facilities such as adequate water supply and sanitation was noted, as reported here.

The role of slum-clearance boards is something that is deserving of closer scrutiny, and is also a fit case for comparative analysis, both quantitative as well as qualitative, of different States' performance. In the specific case of Tamil Nadu, this piece in the Economic and Political Weekly throws interesting light on the influence of political and other considerations, specifically the intervention of the World Bank, in the formation of policy for the Slum-Clearance Board.

One qualitative analysis of slum-resettlements carried out on the Yamuna bank in Delhi may be found in this piece, again in the Economic and Political Weekly. Clearly, some States and Governments have better records than others in dealing with this crucially important facet of Governance. Understanding the causalities and mechanisms that lead to such differing results is something that seems to beg a closer enquiry, and that is something we will hopefully be able to provide on this blog.

Access to Justice is Crucial for Tackling Poverty: Says the UN Special Rapporteur on Extreme Poverty and Human Rights

The United Nations Special Rapporteur on Extreme Poverty and Human Rights, Ms. Magdalena Sepulveda Carmona, has called for greater respect for the human right to access to justice for the poor. In her Annual Report, submitted to the General Assembly, she noted that “[A]ccess to justice is crucial for tackling the root causes of poverty, exclusion and vulnerability” and that “Persons living in poverty have a right to access justice without discrimination of any kind, and a right to due process, understood as the right to be treated fairly, efficiently and effectively throughout the justice chain.”

Indeed she noted that “[S]tates have assumed obligations in that regard, by committing themselves to respect, protect and fulfil several rights such as the right to an effective remedy.” She referred to Article 8 of the Universal Declaration of Human Rights, Article 2.3 of the International Covenant on Civil and Political Rights, Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination among a host of international treaty-provisions. She also clarified that access to justice “entails more than improving access to judicial and adjudicatory mechanisms. It also implies that remedies must be effective and legal, and that judicial outcomes must be just and equitable.”

The Report elaborates on this and posits that:

“States must also take positive measures to ensure laws and policies are substantively non-discriminatory, including measures to eliminate conditions which cause or help to perpetuate discrimination…To ensure that the poor have de facto enjoyment of the rights to an effective remedy, equality before the courts and a fair trial, States must take effective measures to remove any regulatory, social or economic obstacles that impede or hamper persons living in poverty from accessing remedies and securing a fair and equitable outcome in any judicial or adjudicatory process. This includes removing obstacles imposed by the unequal economic or social status of those seeking redress, taking into account the principles of equality before the courts and equality of arms, which are integral parts of due process.”

Judicial Review of Policies

One of the most critical aspects of this Report is the Special Rapporteur’s view on judicial review of administrative decisions and social policies that impinge on basic rights of persons living in poverty.

The Report states

“The lack of remedies for the negative impacts of social policy in the areas of health, housing, education and social security, or for administrative decisions relating to welfare benefits or asylum proceedings, often results in inability to seek redress in cases of violations of key human rights, such as the right to equality and non-discrimination and the right to social security… The lack of judicial review or complaints mechanisms for social policy, compounded by a lack of justiciability of economic, social and cultural rights at the domestic level, creates the perception that social policy is a charitable measure rather than part of an obligation to ensure the enjoyment of human rights.”  

Legal Identity and Access to Justice

The Report also draws attention to the lack of legal identity as a major disability for persons living in poverty. The Report acknowledges that “the right to be recognized as a person before the law is a fundamental human right (International Covenant on Civil and Political Rights, art. 16, and Convention on the Rights of the Child, art. 7), and is at the core of the right to access justice. Many persons living in poverty are de facto deprived of accessing courts and other public services as they lack legal identity…Without recognition, individuals are unable to access social services or to access courts to seek remedies for violations of their human rights.”

This reiterates the recommendations of the UN Commission on Legal Empowerment that had opined that the lack of formal legal identity is an important barrier against access to justice for poor.

The Report also referred to the adoption of Guiding Principles on Extreme Poverty and Human Rights by the UN Human Rights Council through Resolution 21/11 earlier on September 27. The Guiding Principles and the Human Rights Council Resolution is available here.  

Land Acquisition Bill Update

Observers worried about the gradual dilution of the Bill on Land Acquisition, now renamed the Right to Fair Compensation and Transparency in Land Acquisition Bill have found allies within the Council of Ministers.

First, the Defence Minister, A.K. Antony told the Group of Ministers constituted to revise the draft in order to evolve consensus within the Cabinet, that government should not ordinarily intervene on behalf of private projects to compulsorily acquire land. He cautioned that such acquisition for private projects would cause further resentment among people and advised that the government should intervene only where 90% of land owners give consent.

Later, the views of the Defence Minister were echoed by the Minister for Tribal Affairs, V.Kishore Chandra Deo who also opined that the state should not resort to compulsory acquisition for private projects. He further advocate the insertion of a retrospective clause in the Bill to cover all on going projects where payment of compensation and rehabilitation an resettlement have not been completed.

News Round-Up

Live Mint advocates that the Competition Commission should examine anti-competitive practices entrenched in the food grains procurement, marketing and distribution system in India. See here.

PRS Legislative Research has released a summary of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill 2012.

United Nations Special Rapporteur on Extreme Poverty and Human Rights has reacted to the Liikanen Report on banking reforms at the European level by reminding the EU authorities that reforms must be in conformity with the human rights obligations of states and that states have obligations to take steps to the maximum of their available resources to ensure the respect, protection and fulfilment of rights. See this press release. 

Talking about external debt, India has signed a Loan Agreement for US$ 500 million for the Rashtriya Madhyamik Siksha Abhiyan for investment in the field of secondary education.   

New Draft of The Right to Fair Compensation and Transparency in Land Acquisition Bill

Shankar Gopalakrishnan of the Campaign for Survival and Dignity has circulated a revised draft of the Right to Fair Compensation and Transparency in Land Acquisition Bill which, according to his sources, has been placed for approval before the Group of Ministers constituted  last month. 

This draft can be accessed here.

On a cursory reading, the most significant changes in this draft relate to:

a) Limiting the scope of the prior consent rule - As reported earlier, the new Draft requires consent only of those affected families whose land is acquired to be proposed in cases of acquisition for private companies or for PPPs. As a result, livelihood losers shall be excluded from any decision-making role. This rollback runs against the letter and the spirit of the preambular promise of 'participative' and 'consultative' process of acquisition. Moreover, it does not take into account the phenomenon where livelihood losers have been at the forefront of major anti-acquisition movements in the country. For example, a significant number of land-owners had consented to the proposed land acquisition in Singur; whereas most of the opposition emerged from the ranks of sharecroppers and agricultural labourers. (See Buddhadeb Ghosh, 'What made the 'Unwilling Farmers' Unwilling? A Note on Singur' EPW 11 August 2012)  

b) Abolition of Rescission of Preliminary Notification: Section 15 of the earlier draft had stipulated that a preliminary notification of acquisition would be deemed to have been rescinded where no declaration of resettlement area and summary of rehabilitation and resettlement is done within 12 months from the date of such notification. That provision has been deleted from the latest draft. 

But to its credit, this Draft partially addresses some of the criticisms at the Bill. First of all, it is more explicit on the processual aspects of the prior consent rule. Unlike the earlier draft which was silent on the mode of obtaining consent, Provisos to Section 2 specify that the consent "shall be obtained through a prior informed process" and that this process shall be carried out along with Social Impact Assessment. 

Secondly, it calls for constitution of Land Pricing Commission for determination of the cost of a land.

Finally, there is the enumeration of Public-Private Partnership projects (PPPs) as a separate entry under Section 2 (1). In the earlier draft, these projects had been subsumed within the category of acquisition "with the purpose to transfer it for the use of private companies." Separation of these projects from acquisition for private companies  clearly signal that PPPs have a public character and cannot be equated with private entities.  

Yet, the Group of Ministers must exercise caution in further diluting the Bill. The promises held out in this Bill are nothing but sina qua non of a constitutionally sound and rights-conforming process of land acquisition. Reneging on them would not only violate these elementary constitutional principles but also lead to more political opposition.      

Emasculation of the Land Acquisition Bill?

It has been reported by few select media news outlets that some of the key provisions of the Right to Fair Compensation and Transparency in Land Acquisition Bill have been weakened in the quest towards evolving a ministerial consensus on this draft.

Priscilla Jebaraj of The Hindu reports that the new Bill would not apply to on-going acquisitions and shall only have prospective effect. It also states that the ambit of the rule on requirement of consent for acquisition for private companies and public private partnerships has been curtailed. If true, this alteration would deal a body blow to the spirit of the Bill.

Section 3 (za) of the Bill (No. 77 of 2011) first introduced in the Lok Sabha on September 7, 2011, had stated that consent of at least 80% of all the affected people would be required for any acquisition for private companies under clause (vii), for public-private partnerships under clause (vi) (b) and for use by the appropriate government for purposes not covered under clauses (i) to (v) of Section 3 (za) “where the benefits largely accrue to the general public”. Importantly, affected people had been defined to include not only the land-owners but also those whose “primary source of livelihood stand affected by the acquisition.” The expanded definition of ‘affected person’ was being seen as a major breakthrough in view of the limited focus of the Land Acquisition Act, 1894 (LAA) on land-owners and those with ‘formal legal rights’ that had facilitated the non-recognition of large numbers as affected. As Usha Ramanathan had observed, “Conservative notions of individual ownership and state ownership have been stretched unrealistically to envelop the displacement of whole communities.” [Usha Ramanathan, Displacement and the Law, Economic and Political Weekly, June 15 1996, p. 1486].

The new draft, on the other hand, would purportedly require the consent of only land owners and not livelihood losers in cases of acquisition where such consent has been fixed as a prerequisite. The only saving grace, even if a significant one, is that livelihood losers shall eligible for compensation and rehabilitation.

This report from DNA suggests further that not only is the group from which consent has to be sought has been shrunk, but the threshold level of requisite content itself has been pegged down from earlier 80 % to the two-third.

It appears that the new draft reiterates that the states shall be free to provide a higher compensation and rehabilitation package, over and above the compensation specified by the Bill. The compensation formula stated in the Bill shall only act as a baseline below which no state can plummet.

Curiously, the two reports differ on the identity of the agency steering the new draft. The DNA report indicates that the Group of Ministers itself has floated the changes. The Hindu, in stark contrast, reports that the Ministry of Rural Development, having once-been caught on the wrong foot, is itself pushing for an amended and a more investor-friendly draft.

Even as the GoM tries to evolve a consensus, it would do well to realise that any statutory regime on land acquisition cannot give a short shrift to the basic constitutional imperative of a fair, just and transparent acquisition. 

News Round-Up

Fast Track Courts for Tribal Land Rights

Jairam Ramesh, the  Minister of Rural Development has called for setting up of Fast Track Courts for speedy settlement of the land rights of tribals. Addressing the Conference of State Revenue Ministers on Modernisation of Land Revenue Records, he also called for the use of para-legals to assist in resolution of these cases, as done in Andhra Pradesh.  

India - The Worst Performer on Child Nutrition

India ranks last in a Save the Children study titled, The Nutrition Barometer: Gauging National Responses to Undernutrition, on state response to malnutrition among children. According to this report in Deccan Herald The study looked at a basket of parameters including national governments' political, legal and financial promises. The entire report is available here.

Gender Discrimination and Poverty in Bangladesh

Many scholars and activists have argued for long that respect for civil-political rights, most notably the principle of non-discrimination, have a vital role in the battle against poverty. Aryeh Neier, the former Executive Director of Human Rights Watch and American Civil Liberties Union (ACLU) in this critique of socio-economic rights argues that it is important to recognise how important civil-political rights are in dealing with economic and social inequities.

Such critics would be enthused by the findings of recent study published by the Human Rights Watch which argues that discriminatory personal laws, including unequal rights over marital property, in Bangladesh act as a key instrument of impoverishment among Bangladeshi women. This press release issued by the Human Rights Watch summarises the main findings of the report. The full report, in English and Bengali, can be downloaded from this page.  

The Legality of DDA Drafting the Delhi Master Plan?

Delhi Development Authority (DDA), a statutory agency headed by the Lieutenant Governor of Delhi, has been at stewardship of the various Master Plans drafted for the National Capital Territory of Delhi. 

When the Delhi Government notified the Draft Master Plan - Delhi 2021 in 2005, DDA was entrusted with the responsibility of the drafting process yet again.

However, Romi Chopra, an adviser to the Delhi Urban Arts Commission believes that DDA lacks the constitutional authority to draft the Master Plan. She has points out under the 74th Amendment to the Constitution, "it is the local bodies, the municipalities that should draft the Master Plan after taking the necessary inputs from the people."

Indeed, Entry 1 of Twelfth Schedule to the Constitution, which lists the subjects within the jurisdiction of Municipal Bodies as per Article 243W of the Constitution, refers to "urban planning including town planning". 

Sheila Dikshit, the Chief Minister of Delhi who opposes the transfer of this responsibility to municipal bodies, believes that the multiplicity of urban bodies in Delhi would impede the development of a comprehensive and integrated plan. 

Chief Minister's apprehensions certainly cannot be dismissed lightly. Yet, one can argue that Article 243ZE seeks to address this exact concern by providing for the constitution of a Committee for Metropolitan Planning for preparing a 'draft development plan for the Metropolitan area as a whole' after having regard to plans prepared by the Municipalities in the Metropolitan area. 

Dikshit's support for DDA's stewardship of the Delhi Master Plan 2021 also raises a more fundamental question about the value of decentralisation of administrative and political power. Is devolution of power to Panchayats and Municipalities only instrumentally valuable, thus expendable when confronted with substantial practical hurdles? Or does it have an intrinsic value of enhancing the representative character of public decision-making, regardless of the consequential gains?  

Of Housing Rights and Wrongs

Even as the human right to adequate housing and shelter has acquired acceptance in international human rights norms and Indian constitutional law, this normative development has been parallelled by a systematic onslaught on the urban Indian poor. As a report, prepared by Miloon Kothari and published by the National Human Rights Commission of India in 2006, more than 100,000 families were forcibly evicted from their homes in Delhi between 2000 and 2006. 

The trauma of such forcible eviction has been exacerbated by the absence of resettlement provisions. Even where people were resettled, such programmes have been marred by absence of basic amenities like water, education, sanitation, health care facilities, etc. Smriti Kak Ramchandran has this report on the condition of resettlement colonies in Bawana, Balaswa and Badarpur Khadar areas of Delhi.  

Settlers in these colonies have also been for long denied ownership rights over their dwellings. The lack of formal legal title has prevented the use of these dwellings as collaterals for raising loans, thus limiting the entrepreneurial freedom of the settlers. To use Hernando De Soto’s coinage, these dwellings in various resettlement colonies were thus locked as ‘dead capital’. This background puts in perspective the historic significance of the decision of the Delhi Government to grant freehold and ownership rights to residents of 45 jhuggi jhopdi resettlement colonies in the National Capital Territory. Gaurav Vivek Bhatnagar has more on this.

Sedition Laws, Kudankulam and Criminalisation of Dissent

This report of The Hindu emphasises growing criminalisation of dissent, as illustrated by the use of the charge of sedition against protesters opposing the Kundankulam Nuclear Power Project. This is the latest episode in a long series of cases where the Indian state has resorted to use of criminal law to repress popular struggle against development projects, anti-corruption movement, human rights activists and numerous other forms of legitimate exercise of political freedom. Such characterisation of any opposition to government view as ‘anti-national’ is a dangerous portent for sustenance of the democratic space in this country.

   

We must also not lose sight of the fact that in many such cases, the very process of criminal law, as much as final conviction, which is used as a tool of intimidation. As V. Suresh, the National General Secretary of the Peoples’ Union for Civil Liberties (PUCL), states:  “At the national level, the conviction rate in sedition cases is less than five per cent, but the accused and their families undergo tremendous torture, financial distress and emotional trauma during the trial that takes years to conclude.”

One cannot help but also point out the hypocrisy of the middle class that resonates through its silence on the use of ‘sedition’ as a charge, especially just after the justifiably vehement protests against the arrest of Asheem Trivedi by Mumbai police on the same charge.

Reviewing the Constitutional Validity of Section 124-A

The endemic arbitrary use of sedition law has also reignited the debate on its constitutional status. It must be noted that while the Allahabad High Court had declared Section 124-A to be unconstitutional in Ram Nandan v State in 1958, it was overruled by the Supreme Court of India in 1962 in the case of Kedar Nath Singh v Union of India (AIR 1962 SC 955). While saving the constitutionality validity of the provision, the Court had read down its scope and asserted:

“the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

The Court was motivated by the well-established rule of construction that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction.” 

However, fifty years of practice has placed a question mark over this presumption of constitutionality. Clearly, the law enforcement agencies have not paid much heed to ‘interpretative incision’ done by the Supreme Court. Thus, it is time that the entire provision is struck down as violative of our fundamental freedoms for its existence in statute-books grants a license for arbitrary exercise of state power.

Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill Introduced in Lok Sabha

Ms. Kumari Selja, Minister of Housing and Urban Poverty Alleviation introduced the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill in the Lok Sabha earlier this month. 

It has been referred to the Parliamentary Standing Committee on Housing and Urban Poverty Alleviation which is expected to submit its report within 3 months. 

The text of the Bill and a Summary prepared by PRS Legislative Research is available here. 

Update on the New Land Acquisition Bill

The  Land Acquisition, Rehabilitation and Resettlement Bill 2011 has been renamed the Right to Fair Compensation, Resettlement, Rehabilitation and Transparency in Land Acquisition Bill 2012 after incorporation of some of recommendations of the Parliamentary Standing Committee on Rural Development.

Interestingly, the new draft met with opposition within the Union Cabinet and has been referred to a Group of Ministers for further deliberation.

The Economic Times has more on the opposition in the Cabinet to the Bill.

A combative Jairam Ramesh, however, denied that the Bill has been put into cold storage. The Minister also ruled out any change to the basic structure of the Bill.  

Earlier, in a response to Medha Patkar' attack on the Land Acquisition, Rehabilitation and Resettlement Bill 2011, the Minister for Rural Development and Drinking Water, Mr. Jairam Ramesh asserted that the state must have a role in acquisition in imperfect land markets like India. 

The Minister also argued that the new Bill, unlike any statute in the past, guarantees that no individual shall be dispossessed unless the alternatives enumerated in the Bill are provided for.   

Mihir Shah, Member of the Planning Commission, echoed Jairam Ramesh in this opinion-piece, pointing out that the Bill "seeks to provide strict time-lines within which the land acquisition as well as the R&R process, have to be completed. This includes a provision of six months for the SIA process and an overall limit of 35 months for the land acquisition process. Full payment of compensation will be made within six months from the date of the award. It has also been provided that in case of irrigation or hydro-power projects, R&R will be completed six months before submergence."