Last year, faced with its inability to amend the historic Right to Fair Compensation and Transparency in > Land Acquisition, Rehabilitation and Resettlement Act , 2013, the Bharatiya Janata Party (BJP)-led government at the Centre devised a constitutionally pernicious alternative. Finance Minister Arun Jaitley, speaking after the second meeting of the governing council of > NITI Aayog on July 15, 2015, encouraged States to draft and pass their own laws for land acquisition and get them approved by the Centre.
Following this unambiguous official sanction, Tamil Nadu and Gujarat have moved ahead with their amendments, Rajasthan has a Bill ready and Telangana is working on its version. These laws allow for the acquisition of land in the States without having to satisfy any of the crucial safeguards built into the 2013 Central law, such as the right to consent, social impact assessment and, in the case of Tamil Nadu, even rehabilitation and resettlement.
Spirit behind the exceptions
As per the doctrine of “occupied field” enshrined in Article 254(1) of the Constitution, if there exists a Central law on a concurrent subject, then a State law cannot override it. However, Article 254(2) provides that if a State law receives presidential assent after due consideration, then it can apply in contravention to the Central law in that particular State. This use of this provision to permit States to pass land acquisition laws in conflict with the 2013 Act gives rise to three grave jurisprudential concerns.
First, Article 254(2) was never intended, even in its broadest interpretation, to weaken Central laws merely because they were found to be inconvenient. It was intended to bring in changes to Central laws if there was a genuine hurdle in implementing them in a particular State due to challenges peculiar to that region.
Consider this. The 2013 law was sought to be amended by the BJP-led government as it felt that the Centre’s power of eminent domain had been curtailed. It argued that the 2013 law was making the acquisition of land harder by empowering those whose land was previously forcibly acquired. This move was followed by a massive nationwide backlash which unified opposition parties across the ideological spectrum. In 2014, the Supreme Court refused to entertain challenges to various provisions of the 2013 law. Thus, two things became clear: the law was constitutionally sound and the public mandate was overwhelmingly against such amendments.
It is a settled proposition that what the government cannot do directly, it cannot do indirectly. This oft-reiterated maxim has been used by the Supreme Court of India to strike down the attempts of the government to pass off what is known as “colourable legislation” (laws the government is not qualified to pass, disguised as other laws). A creative attempt to weaken a state law against the larger public interest is nothing short of such an abuse.
Presidential assent not a formality Second, it is pertinent to examine the nature of the presidential power envisaged under this Article. Is the President required to act mechanically on the advice of the Council of Ministers or is he to apply his own mind? The Supreme Court in a landmark Constitution Bench decision in Kaiser-I-Hind Pvt. Ltd. v. > National Textile Corporation (2002) held, in relation to Article 254(2), that the words “reserved for consideration” would “definitely indicate that there should be active application of mind by the President to the repugnancy… and the necessity of having such a law, in facts and circumstances of the matter… The word assent is used purposefully indicating affirmative action of the proposal made by the State for having law repugnant to the earlier law made by the Parliament. This cannot be done without consideration of the relevant material.”
Constitutional scholar Durga Das Basu in his seminal commentary on Constitutional Law reaffirms this interpretation. He further argues that the words “reserved for consideration” used in Article 254(2) “cannot be an idle formality but would require serious consideration on the material placed before the President”. Therefore it is clear that the President must act deliberately and consciously and not merely on the advice of the Council of Ministers. The newly enacted State laws on acquisition curtail and suspend the statutory right to give consent to acquisition and the need to carry out a social impact assessment. The President is required to examine if compelling reasons to sanction such a significant deviation exist.
But can the President’s exercise of his power under Article 254(2) be subject to judicial review? The Supreme Court in the Kaiser-i-Hind case, while relying on several precedents, held, “We further make it clear that granting of assent under Article 254(2) is not exercise of legislative power of President such as contemplated under Article 123 but is part of legislative procedure. Whether procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court.” In other words, the court may review whether the procedure which requires thorough reflection and conscious application of mind by the President was observed.
Undermining Parliament Third, in an alternative scenario, if one were to argue that presidential approval is merely a formality which can only be delayed, not denied, then it leads to the worrying conclusion that Central laws on any subject contained in List III of the Seventh Schedule of the Constitution (“Concurrent List”) like forests, electricity, family planning and education are, in effect, pointless. Wherever a Central government lacks the numbers to pass a law (on a concurrent subject) in Parliament or is faced with public opposition, it will concede the authority to States to pass the laws as they see fit and get the President to approve them. This is happening not just for land acquisition but also for labour laws, with Rajasthan having shown the way.
Here we must also make a distinction between Parliament and the Central government. The 2013 law is an Act of Parliament that occupies the field but the Centre wishes to dilute it. Instead of upholding its sanctity (as required by the Constitution) the government wishes to undermine the role of Parliament by actively encouraging States to bypass the law. Therefore it is breaching the provisions of Article 254(1) which give supremacy to laws made by Parliament unless States have a genuine necessity to deviate.
Such pernicious misuse of a constitutional provision cannot and should not go unchecked. Parliament passed a law in the exercise of its sovereign power bestowed on it by the Constitution. A hard-fought consensus was achieved that was widely held to be in the larger public interest. It cannot be diluted by creating half-smart loopholes and too-clever-by-half shortcuts which make a complete mockery of the very idea of a Concurrent List in the Constitution, which must be considered as an integral part of its basic structure.
Jairam Ramesh is a Member of Parliament, and Muhammad A. Khan is an advocate; they are the authors of “Legislating for Justice: Making of the 2013 Land Acquisition Law” (OUP, 2015).
