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Across the Aisle: Stand up and be counted -P Chidambaram
-The Indian Express

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act), was not passed in a hurry. It was passed 60 years too late, but nearly unanimously with the support of the BJP.

The main purpose of the LARR Act was to repeal the Land Acquisition Act, 1894 (the old Act). The old Act was an oppressive colonial law that gave unbridled powers to governments to acquire, through legal coercion, any land, from any person, at any time, for any "public purpose" (so-called). The only obligation under the old Act was to pay a one-time compensation to the land owner. The fundamental premise of the old Act was that acquisition for a public purpose was "good" and opposition to it was "bad".

Mercifully, our notions of good and bad are changing.

It is no longer considered good to acquire any land, especially if the land was multi-crop agricultural land, forest land or a tribal habitat; or to ignore the rights of the non-owners who depend on that land for their livelihood; or to acquire land for purely private gain; or to pay only a one-time compensation to the land owner.

THE MIDNIGHT ORDINANCE

Shockingly though, our notions of good and bad seem to have changed again within a year of passing the LARR Act. That can be the only explanation for the ordinance that was promulgated on December 31, 2014.

Let me begin by listing the positives in the ordinance. The LARR Act did not apply to acquisition of land under thirteen specified enactments subject, however, to an ambiguous provision to notify the application of certain provisions (Section 105). The ordinance unambiguously applies the first, second and third Schedules of the LARR Act to such acquisitions too. The ordinance corrects the excessive zeal of Section 87 of the LARR Act that deemed the head of the department to be guilty if an offence under the Act had been "committed by any department". The ordinance also corrects two drafting errors.

I have tried but failed to find any more positives in the eleven-clause ordinance. However, there are many negatives.

ASSAULT ON THE SOUL

The soul of the LARR Act is the Social Impact Assessment: does the project for which land will be acquired serve any public purpose and do the social costs and the adverse social impacts of the project outweigh the potential benefits? The LARR Act itself had dispensed with Social Impact Assessment in the case of irrigation projects (proviso to Section 6, Sub-section 2) and in cases where the Government decided to invoke the "urgency" provision (Section 40). Moreover, in a case of "urgency", everything may be dispensed with, including Social Impact Assessment, Rehabilitation and Resettlement, consultation with local bodies, enquiry, and consent of the affected families in cases of acquisition for private companies or public private partnership projects.

The ordinance goes further and launches an assault on the soul of the LARR Act. New Section 10A has been added. It lists the projects that will be entitled to special treatment and these are:
* Projects concerning national security, defence and defence production;
* Rural infrastructure including electrification;
* Housing for the poor; industrial corridors; and
* Infrastructure and social infrastructure projects including most public private partnership projects.

Social Impact Assessment may be excluded in the above cases. The consent of the affected families will not be required. Irrigated multicrop land may be acquired.

The fundamental premise of a land acquisition law is "public purpose". Absent a public purpose, there can be no compulsory acquisition of land. Section 10A has carved out an exception for projects intended to achieve certain public purposes. Can we visualise any project that falls outside the list contained in Section 10A? I dare say that every significant case of land acquisition can be brought within one of the categories in Section 10A and thus spared Social Impact Assessment. That is the terrible mischief wrought by the ordinance.

The ordinance inflicts more wounds. Private hospitals and private educational institutions, even if for-profit, will qualify as infrastructure projects. The LARR Act stipulated that acquisitions under the old Act, delayed by more than five years or where compensation had not been paid, shall lapse (Section 24, Sub-section 2). Thanks to the ordinance, few old cases will lapse. Further, the LARR Act required that the acquired land, if it remained unutilised for five years, shall be returned to the landowner (section 101). The ordinance enlarges the time to the "period specified for setting up" the project, leaving it vague and open-ended.

STAND UP, BE COUNTED

The ordinance tilts the LARR Act in favour of the promoter of the project and against the land owner, usually a farmer, thus annulling the very purpose of the law.

Every new law must be revisited after a year or two to deal with the practical problems faced during its implementation, and the LARR Act is no exception, but the method adopted (midnight ordinance) and its content (anti-land owner) deserve to be roundly condemned.

Are you for or against the ordinance? It is time to stand up and be counted.