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."

Cabinet Grants Approval to the Bill on Street Vendors

The Union Cabinet has given its nod of approval to the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill 2012. This Bill is aimed at protecting the rights of street vendors and regulating their activities in public places. 

According to this report by Muhammad Ali in The Hindu, the Bill proposes to abolish the much-criticized system of compulsory license for vendors and introduce a scheme for prior registration with Town Vending Committee on payment of an one-time fee. License-raj for street-vendors has been widely condemned for casting a web of illegality over a vast majority of street-hawkers in this country and exposing them to endemic harassment by police and municipal authorities. 

(See Law, Liberty and Livelihood by Parth Shah and Naveen Mandava; and Urban Informal Sector: The Need for a Bottom-Up Agenda for Economic Reforms - Case Studies of Cycle Rickshaws and Street-Vendors in Delhi by Madhu Kishwar published in the India Urban Poverty Report 2009 brought out by the Ministry of Housing and Urban Poverty Alleviation and UNDP)     

Enactment of a law in this regard has also been mandated by the Supreme Court of India in Gainda Ram v MCD (2010). In that case (available here), the Court had observed:

 "There is no denying the fact that hawking and street-vending should be regulated by law. Such a law is imminently   necessary in public interest...Most of the hawkers are very poor, a few of them may have a marginally better financial position. But by and large, they constitute an unorganized poor sector in our society. Therefore, structured regulation and legislation is urgently necessary to control and regulate fundamental right of hawking of these vendors and hawkers."

Indeed, the Supreme Court had directed that the appropriate government must legislate and bring out the law to regulate hawking and hawkers' fundamental right by June 30, 2011.