Mainstream, VOL LI, No 39, September 14, 2013
Correcting Historical Injustice
Sunday 15 September 2013, by#socialtags
The landmark Bill on the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement 2013 brings an end to the era of forced land acquisition. It has replaced the 120-year-old unjust Land Acquisition Act 1894. Integrating land acquisition with rehabilitation and resettle-ment (R & R) and bringing transparency in the process of acquisition, compensation, and rehabilitation as a matter of right is a historic step. It was important to have a law to prevent forcible land acquisitions which have increased during the last few decades due to big industrial and development projects. Providing fair compensation and R & R to the farmers, land- owners and livelihood losers in all acquisitions becomes critical in the context of increasing alienation, displacement, deprivation, and disentitlement to the resources of livelihood.
The new mantra of the Developmental State to ensure development by handing over the productive resources to the national, trans-national and multinational corporations is based on the underlying philosophy of economic liberalisation and globalisation of trade. (Ray, 2010: 27) Vast areas of natural resources such as mining, fertile land, water and forest reserves are handed over to the corporate sector and the international finance capital to secure industrial and economic growth. The increasing race by the corporate world to tap resources for an increased production has resulted in increasing disparities between regions, class, caste, social groups, and communities. Industries, mining, dams, Special Economic Zones (SEZs) have displaced large masses of people who have lost access to resources of livelihood such as perennial streams, waterfalls, forestlands, and agricultural lands. More than a thousand SEZs have been approved across the country under the SEZ Act 2005 leading to forcible land acquisitions which have caused widespread displacement, loss of livelihood and exclusion in these zones.
We also find that the Panchayat Extension to the Schedule Areas (PESA) Act, 1996 to safeguard and preserve the traditional rights over community resources (such as land, water and forest) and customs of the people living in the Fifth Schedule areas, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which aims at doing away with the injustice done to the tribals and forest dwellers, are often violated by the state in nexus with the corporate sector. Despite the Acts to protect the rights of the tribals, around 40 per cent of the total acquired land is tribal land. And “the record of PSUs (Public Sector Units) in displacements is worse than the records of private sector…more displacement has been caused by the government and public sector projects than private sector projects… particularly in Naxal areas…and this is why Naxalism has grown in these areas”. (Jairam Ramesh, Minister for Rural Development, cited in Shivakumar, 2013: 13) The principle of ‘eminent domain’ which empowers the state to use common property for the benefit of larger society and public interest/public purpose has, in practice, enabled the state to protect the interest of the dominant class that create conditions of deprivation and impoverishment for the large majority who remain disadvantaged and disempowered.
Therefore, the new law becomes relevant as it ensures that no land can be acquired without the consent of the landowners and farmers. Protecting the rights of landowners as well as non-landowning individuals who lose their livelihood is important in the Bill. It has the provision for Social Impact Assessment (SIA)— survey, preliminary notification stating the intent of acquisition, a declaration of the acquisition, compensation by a certain time—and proposes a wide range of R & R entitlement. The new law will apply to all Special Economic Zones (SEZs) to be set up from now onwards (SEZs were exempted earlier). By excluding the Wakf land it protects the interests of the Muslim community. However, what is disappointing and has come for severe criticism are the grey areas which need clarification and a few amendments in order to protect the rights of the marginalised, deprived and displaced to a larger extent.
An important provision of the Bill is requiring 70 per cent consent of the landowner for acquiring land for public private partnership and 80 per cent consent for the private companies. Since the Bill is under the concurrent law, States can bring their own law without derogating from the Central law. States are free to extend consent up to 100 per cent. No land can be acquired in the Scheduled Areas without the consent of the Gram Sabhas. This will further strengthen the implementation of the PESA Act 1996, and the FRA 2006.
However, legitimising land acquisition by the government for private companies violates the recommendations of the Supreme Court and parliamentary Standing Committee. While the government argues that as an arbitrator it aims at protecting the marginalised, small farmers and other marginalised groups who lack the bargaining power and are exploited by unfair agreements by corporations and private com-panies, our past experience reveals otherwise. Land has been acquired on a large scale for SEZs during the last few years and the farmers have been in no position to counter land acquisitions as the state has worked as a facilitator giving an easy passage to such acquisitions. (Also see Ulka Mahajan 2013) The state in nexus with the corporate sector has always played a vital role in manufacturing consent. Making the government a mandatory broker (Vardharajan, 2013: 10) will not change the asymmetry of power between those who want to acquire land and those whose lands are being acquired. While the R & R provisions are extended to the private negotiated purchases of land it provides no safeguard against unfair negotiation. (Iyer, 2011: 10)
It is important to note that there has been no dilution of ‘eminent domain’ as the condition of consent by the landowners applies only to land acquisition by the government for private companies including the public private partnership cases and not to the government’s acquisition for itself. The government controls the land directly for public purpose and the consent of the landowner shall not be required in the new Bill. In the past governments have transferred land to private agencies after acquiring it.
A critical issue debated over the last decade is to clarify the definition of ‘public purpose’. Despite the recommendation of the Standing Committee to tighten the definition, it has been defined broadly2 and leaves it to the decision of the State in each case. Public purpose in the new law is not much different from the archaic Land Acquisition Act 1894. The clause in section 40 (b) of 1984 Act enables land acquisition for companies for the purpose of “construction of some work and that such work is likely to prove useful to the public” and in the new law under section 3. Za (vii) “acquiring land for private companies for the production of goods for the public or provision of public services” would constitute legitimate public use. (Sriva-thsan, 2012: 13) Thus, the Bill fails to adequately define public purpose and the current definition can be interpreted vaguely. It is the most contentious issue and needs clarity. It must be noted that the legitimacy of what constitutes public interest and common good is never open to discussion and debate, and certain sections of society are consciously excluded from participating in such discussions.
Therefore, the recent order of the Supreme Court which made the consent of the Gram Sabha/Village Council mandatory to acquire land in the Scheduled Areas is an important step that respects the customary rights of the tribals over the natural resources. For the first time an environmental referendum was conducted on the directive of the Supreme Court to find out whether mining in the Niyamgiri hills will tantamount to an infringement of the religious, customary, community and individual rights of the tribals and forest-dwellers. Niyamgiri hills is home to primitive tribal groups (over 8000 Dongria Kondhs, a few hundred Kutia Kondhs and other forest dwellers) who consider the hill as sacred as it is the abode of Niyamraja/ King of Mountains, their presiding diety. The Palli Sabha/ Village Council unanimously passed a resolution opposing the proposed $ 1.7 billion mining project by Vedanta Aluminium Limited (VAL) and Orissa Mining Corporation as it is in violation of the rights of the tribes under the FRA, 2006. The verdict of the Gram Sabha will certainly influence the decision of the Central Government to grant forest clearance for mining lease.
Thus the Supreme Court’s judgement affirms the decision-making powers of the smaller units of local governance /Village Councils. (Jebaraj, 2013: 12) It also clarified that the FRA “protects a wide range of rights of forest dwellers and STs including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation”. (Shankar Gopalakrishnan from the Campaign of Survival and Dignity)
Monetary compensation up to four times the price of market value in rural areas and two times in urban areas will be paid. No income tax or stamp duty will be levied on the accrues due to the new law. In case of land being sold to the third party, 40 per cent of the appreciated land value (profit) will be given to the owner. The ‘urgency clause’ in the bill will be used only for natural calamities and national security and cannot be invoked for land acquisition for private companies. An additional 75 per cent of the market value of the land shall be given to the landowners whose land is acquired under the urgency provisions. The R & R package will be applicable when private parties acquire 100 or more acres of land in rural areas and 50 acres in urban areas. For SCs and STs losing land, compensation of land equivalent to land acquired will be provided or up to two and a half acres whichever is lowest. If SCs and STs are relocated outside the district then an additional 25 per cent R & R benefits in monetary terms will be provided along with Rs 50,000, as a one-time entitlement. A National Monitoring Committee, appointed at the Central level, will oversee the implementation of the R & R scheme for all projects.
The provision to safeguard the rights of livelihood losers due to land acquisition of others is noteworthy. In addition, the Bill proposes a wide range of R & R entitlement to the land owners and livelihood losers from the land acquirer. The resettled area should be provided with certain infrastructural facilities. The Bill mandates guaranteeing a series of entitlements to rural households. Additional benefits may apply if the land is resold without development, used for urbanisation, or if the landowner belongs to SC/ST or other protected groups as per rules of the Government of India. The transfer of land is only with the approval of the state government, and if the transfer is without the development of land, the farmers have to be paid 20 per cent of the appreciated value.
The important amendments made include leasing of land to the developers instead of acquisition so that the ownership remains with the farmers who can have regular income; 50 per cent compensation to the original owners whose lands were acquired after the Land Acquisition, Rehabilitation and Resettlement (LARR) Bill was introduced in September 2011; application of the Bill retrospectively to cases other than the irrigation projects (either compensation or R & R will be given to farmers whose land has been acquired for irrigation projects and both compensation and R & R will be given for other projects); and no one shall be displaced until and unless all payments are made and alternative sites for R&R have been prepared.
Though monetary compensation has been pegged at a multiple of market value, however it is not clear how the value of rural land located close to designated urban areas will be realistically determined. (Varadharajan, 2013: 10) While the provision for leasing of land for development purposes opens the possibility of reverting the acquired land to the original owner later, the Bill is silent on the sharing of benefits of higher future land values with those whose land is acquired. (Ibid.) In case of non-utilisation of land for five years, land will be handed over either to the owner or the state land bank. However, the past experience shows that land transfers to the banks after acquisition has empowered the government in Karnataka and Tamil Nadu to earn crores by simply selling it to anyone for any purpose, and it has also happened in the SEZs in Mumbai. (Mahajan, 2013)
The Bill does not rule out acquisition of all agricultural land. While the acquisition should not exceed more than five per cent of the multi-cropped irrigated area and 10 per cent of single-crop net sown area in any district in any state (if the net sown area was less than 50 per cent of the total area of the district), these limits do not apply to linear projects such as railways, highways, major district roads, power lines, and irrigation canals. Though the States can impose limits on the areas under agricultural cultivation that can be acquired, the transfer of agricultural land to non-agricultural use has implications for food security. Prime land must be conserved for agriculture and should not be diverted for non-agricultural purposes (National Commission on Farmers and People’s Rights Movements’ also protest such diversions). (Venkatesan 2011: 1) While the Bill provides that wherever multi-crop irrigated land is acquired, an equivalent area of culturable waste-land shall be developed by the state for agricultural purposes, the definition of irrigated multi-cropped land is unclear. (Also see Ram 2011: 8)
The SIA and its review by an expert committee to assess social and environmental impact, consider less displacing alternative, and hold public hearings is important, but the Bill leaves the assessment to be prepared by the government and not by the review body. It does not cover the disappearance of a whole way of life, the dispersal of close-knit communities, the loss of centuries-old relationship with nature, the loss of ones roots, and so on and so forth. (Iyer 2011:10) The understanding of minimum displacement, minimum disturbance to infrastructure ecology, and minimum adverse impact on individuals affected, is highly subjective and left open-ended. Without defining minimum displacement in the forests, for instance, or damage to rivers, the Bill has not taken into consideration all the past injustices nor does it have any clause to correct them. (Also see Maheshwari 2011: 8) Thus despite all its merits the Bill needs a few revisions to rectify the historic injustices.
Rehabilitation and Resettlement
Several studies on displacement due to large- scale industrialisation and big development projects find that it has led to dismantling of the traditional production systems, disintegration of the livelihood systems, scattering of the kinship groups, and alienation from agricultural land, Common Property Resources (CPRs), and the socio-cultural system due to undesirable cultural infiltration. (Vidyarthi, 1970) It is significant to note that compensation, often calculated according to the market principles, can never do justice to the people who lose their entire livelihood and not just individual assets. (Ibid.)
While rehabilitation means re-establishing the livelihood, physical relocation without socio-economic and cultural dimensions, in reality is only resettlement and not rehabilitation. (Fernandes and Raj 1992, 2006) The adverse consequences of resettlement have been documented by several field studies by sociologists and anthropologists which reveal that the short term and long-term consequences include loss of productive assets and increasing landlessness, dismantling of social networks and alienation, destruction of ancestral properties and homelessness, creating high risk of chronic impoverishment, increasing food insecurity, morbidity and mortality rates in some circumstances. (Thukral 1996: 1500)
We see that the development projects affect most the vulnerable groups particularly the tribals and Dalits, and the women and children amongst them are the worst affected due to the intra-household inequalities. (Ibid.) Studies on development-induced displacement reveal that the burden of displacement affects women disproportionately. (Agnihotri 1996, 1998; Pandey 1998a, 1998b, 2000; Parasuraman 1993; R. Ray 1998; Thukral 1996). Since women have the responsibility of collecting fuel, wood, fodder, minor forest produce and water for their family, loss of entitlement to the CPRs which support subsistence livelihoods affects women the most. The marginalisation of women is greater after displacement because the land and forests they lose are sources of their food and productive employment. The absence of such resources in the resettlement area further deprives women. (Parasuraman 1993; Fernandes 1996a, 1996b; Pandey 1998a, 1998b, 2000) Due to the loss of access to traditional sources of livelihood and the inability of the household to replace these sources, women are forced to work in the most exploitative sectors. They end up working as construction workers, mining and stone workers, domestic servants, and agricultural labours. Industries, irrigation and power projects have failed to assist women with skill training and facilitate their entry into self-employment activities. (Parasuraman 1993) Though the major industrial projects have all adopted their own R & R policies, none of them address the gender dimension of displacement. (Agnihotri 1998) Discrimination against women cuts across class, caste and tribe.
Therefore the Women Farmer’s Entitlement Bill 2011 to protect the gender-specific needs of women farmers is an important step. The Draft National Land Reform Policy 2013 alongside land use plan for every village addresses the issue of land rights of women. It focuses on ensuring effective distribution of land to the landless poor and protecting them from losing land, restoring of alienation of lands, effective safeguards for lands of the SCs and STs, homestead rights, tenancy rights, land rights for the women, and effective use of CPRs. The draft policy has recommended future allotment of rights in the name of women, joint holding of land by women groups that would help them access financial assistance. (Varadharajan, 2013: 12) It has directed all the States to delineate tribal habitation areas within a year and statutorily protect them. (Ibid.) It reaffirms the role of the Gram Sabha and assigns it the role of a competent authority. No project can be undertaken or land acquired without the consent of the Gram Sabha. Even after consent for mining, land ownership would be retained by the Gram Sabha, which would receive 50 per cent of royalty or revenue. (Ibid.) Thus, the policy proposes to create funds to help the vulnerable poor who tend to sell land when in distress. Land tenure is key to protecting land rights and the central and state governments should have accessible systems for registering, tracking and protecting land rights including customary rights and CPRs. (Swaminathan 2011: 14)
It is therefore important to move away from the principle of ‘eminent domain’ that takes all the CPRs as the state’s property. The loss of productive resources, right to livelihood and the ecological threats have brought people directly in confrontation with the state. We see protests and movements by the small and marginal farmers, landless, tribals and dalits to protect the fertile land, water, forest reserves and mineral resources against unprecedented land grabs and land acquisitions, which are taking place in the name of development across the country. Persistent clash between the people’s interest at the local level as well as the national interest on the issue of exploitation of natural resources (also see Sachchidananda 1989: 297) has seen the history of social movements. (Ray, 2010: 27) The protests by the marginal and small farmers, landless, Dalits and tribals, pastoralists, fisherfolks and diary workers against the SEZs and big industrial companies/corporate sector to protect right to livelihood and prevent ecological degradation across rural India have raised vital issues which need to be debated further in the development agenda.
The last decade has also seen the Maoist/Naxal rebels gradually expanding their influence forming a ‘red corridor’ and today they hold sway over vast tracts of the countryside in the east, south and centre. (Ibid.) The ongoing violence and counter-violence has further increased insecurity of life of the innocent citizens who are victims of violence either by the Maoists or by the State. However, the United Progressive Alliance (UPA) Government is optimistic that “proper implementation of the new law would end the ‘inhumane’ displacement of the tribals from forests for various public and private sector projects in mineral-rich states like Jharkhand, Odisha and Chhattisgarh”…and “will defeat Naxalism”. (Jairam Ramesh, Minister for Rural Development, cited in Shivakumar, 2013:13)
While land defines social status, for most people in an agrarian economy it is the only means to survive. Land rights are not only important for economic empowerment but also to challenge the social and political inequalities and disparities. Therefore in addition to control or regulation over land transactions, it is pertinent to have policies to protect land rights and prevent acquisition of cultivatable land. Strategies need to be worked out to strengthen the implementation PESA Act 1996, and FRA 2006 to protect customary rights and CPRs.
Thus the proposal by the Ministry of Rural Development and Department of Land Resources to decide all issues related to tribal land at the Gram Sabha to make land acquisition in forest areas and tribal habitation more difficult is critical. It has proposed that the Gram Sabha should be consulted for sale or lease of the tribal land and for maintaining land records; withdrawal of cases relating to encroachment and minor forest offences; launching a scheme for homestead rights to provide land for each homeless rural poor; setting up land tribunals or fast track courts for expeditious disposal of appeal cases; surveys to be conducted for better understanding of the status of Bhoodan Land, CPRs in villages, and settlement operations in tribal sub-plan areas; monitoring evasion of ceiling laws through fraudulent transactions by amending the Benami Transactions (Prohibitions of the Right to Recover Property) Act, 1989; and the need to amend the SEZ Act, 2005. (The Hindu, 2012: 20)
Therefore besides preventing forcible land grabs and paying monetary compensation, it is important to focus on the cultural, social, ecological, and human aspects of rehabilitation and resettlement. The compensation should have reference not to the nature of the development projects but to the nature of the impact (Maheshwari, 2011: 8), and the compensation payable must be proportionate to the degree of public interest. (Srivathsan, 2012: 13) Development should include creating conditions so that the basic rights to livelihood are ensured to the least advantaged sections of society. This is possible when access and control over land, forest, water and other productive resources, control over labour power and its produce, access to education, health, social security and safety, and participation in the policy making process, is ensured to the marginalised, deprived and excluded.
The historic injustices, which are not a given but are created, can be corrected if alongside ensuring the right to fair compensation and trans-parency in land acquisition, rehabilitation and resettlement, the underlying causes of the processes of deprivation, displacement, alienation, exclusion, exploitation, oppression, impoverishment, and underdevelopment, that are systemic and structural, are addressed.
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1. The livelihood losers include any family whose livelihood, over most recent three years, was primarily dependent on the land being acquired, including agriculture labourers, tenants or sharecroppers, any family whose livelihood, over most recent three years, was primarily dependent on forests or water bodies being acquired; including forest gatherers, hunters, fisher folk and boatmen, any family whose livelihood, over most recent three years, was depen-dent primarily on the land being acquired in the urban areas, any family who was residing on the land being acquired in the urban areas.
2. Public purpose defined in the Bill includes acquisition of land for purposes relating to the armed forces of India, national security or defence, police, safety of the people, manufacturing zones (mining), infra-structure (railways, highways, roads, ports, power and irrigation purposes), for use by government or by government controlled corporations (also known as public sector companies); for planned development or improvement of village or urban sites or for residential purpose to weaker sections of society in rural or urban areas, for government administered educational, agricultural, health and research schemes or institutions, acquisition of land for persons residing in areas affected by natural calamities, acquisition of land for resettlement of project affected people for any of the above government projects, acquisition of land by the government for public-private-partnership projects for the production of public goods or the provision of public services, acquisition of land for private companies for the production of public goods or provision of public services.
Suranjita Ray teaches Political Science in Daulat Ram College, University of Delhi. She can be contacted at e-mail: email@example.com