State power sans public reason

THE ARGUMENT CONTINUES:The debate on land acquisition involves a contest between the interest of builders-industry-corporates on the one hand and farmers on the other. Picture shows farmers staging a demonstration against the land Act ordinance in Cuddalore district in Tamil Nadu. —PHOTO: A.V. RAGUNATHAN

THE ARGUMENT CONTINUES:The debate on land acquisition involves a contest between the interest of builders-industry-corporates on the one hand and farmers on the other. Picture shows farmers staging a demonstration against the land Act ordinance in Cuddalore district in Tamil Nadu. —PHOTO: A.V. RAGUNATHAN  

The government’s reasoning that the land ordinance was meant to extend the benefit ofthe new law to various types of land acquisitions left uncovered so far is disingenuous

Democracy is an exercise in public reason. Democratically elected governments cannot simply throw around the weight of their majority. They have a responsibility to offer good reasons for their decisions. And they must do so publicly. That is why we follow the ritual of debating every law in the Parliament, though the outcome of the debate may be a foregone conclusion.

The debate on the Ordinance to amend the land acquisition Act of 2013 is so far an exercise in state power sans public reason. With the exception of a blog written by Finance Minister Arun Jaitley, we do not know what prompted the government to take the extraordinary step of amending a landmark law within a year of parliamentary consensus on a subject concerning the lives and livelihoods of crores of Indians — and that too from the backdoor, through an ordinance. Some supporters of the government and the Ordinance have been more forthright and can help us understand the government’s case at its best.

The government’s case

The most reasonable case in favour of this Ordinance seems to be the following: one, that it merely tweaks the existing law by introducing limited exemptions; two, that it is not against the farmer, for it does not affect the compensation, relief and rehabilitation; three, that these exemptions were necessary to save developmental projects from the cumbersome procedure for land acquisition set by the Act of 2013. These arguments deserve closer scrutiny.

First of all, is this mere tweaking? The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 (LARR 2013) replaced the colonial Land Acquisitions Act of 1894. The new law made acquisition conditional upon the consent of landowners, social impact assessment, and impact on environment and food security, besides providing for higher compensation and more humane rehabilitation and resettlement provisions.

The Ordinance does away with consent, social assessment and food security assessment in one swoop by creating five big exemptions. The first exemption, “Defence”, has been defined to include “project vital to national security” and “defence production”, which can include all kinds of infrastructural projects and privately owned projects. The second, “Industrial Corridors” is left undefined, and could include hundreds of acres of land. Third, “Affordable housing and housing for the poor people” means that any housing scheme ‘affordable’ for any section of society other than the poor is also covered here. The fourth and the fifth exemptions cover “Rural infrastructure” and “Infrastructure and social infrastructure” in PPP mode where the land is owned by the government. Together, the last two exemptions cover roads, railways, ports, airports, mines, electricity, oil and gas pipelines, telecom towers, dams, canals, sewage, hospitals, schools, colleges, markets, cold stores, agricultural facilities, tourism, hotels above three star hotels…

The issue is not what has been exempted but what is not covered by these exemptions. What would a greedy builder, politician or bureaucrat not be able to include under these five categories? In case they wish to do acquisition for private purposes, they have also been helped by extending acquisition to any ‘Private Entity’ that includes proprietorship, partnership, NGO etc., besides a private company. The ban on acquisition for private educational institutions and private hospitals has also been lifted.

The Act of 1894 at least provided the affected landowners the right to object and be heard. Since the Ordinance bypasses the entire procedural requirements, now the landowners would not enjoy even this minimal safeguard.

It is quite clear that the express purpose of the Ordinance is to dilute some of the pro-farmer provisions of LARR 2013. Mr. Jaitley’s reasoning — that the principal objective of this Ordinance was to extend the benefit of the new law to various types of land acquisitions that were left uncovered so far — is disingenuous. This objective could be achieved through a simple notification under Section 105 about two months ago.

What about compensation? The LARR had provided for compensation higher than the earlier colonial-era law, but much lower than the real value of the land post its land use. The Ordinance has not expressly reduced this package. But it has hurt the farmers indirectly. The removal of consent clause drastically reduces the bargaining power of landowners. The Ordinance has also dashed the hopes of those farmers whose acquisition was not completed by 2013 and who stood to receive compensation under the new Act. Besides, the exact compensation package will be determined by state rules that may take clue from the spirit of this ordinance. Haryana, for example, has already notified rules to reduce the quantum of compensation.

Need for due process

Finally, what about releasing developmental projects from cumbersome procedures? Many of these infrastructural and other developmental projects are much needed. The country needs more urban housing, more industries, schools, colleges and hospitals. The real issue is whether the land for these much-needed projects should be forcibly acquired from farmers, without following any due process. Strangely, we want due diligence to be observed for radio cab licenses, Know Your Customer (KYC) norms for banks and emission norms for auto manufacturers, but find it cumbersome when it comes to land acquisition. We oppose retrospective cancellation of contract but are willing to close our eyes to expropriation of the only asset farmers possess.

There can be two opinions about what is due process in this instance. It is possible that LARR may have gone overboard in some respects. We do not as yet know if the safeguards proposed in LARR will lead to unacceptable delays, for these have not been fully tested anywhere. Past experience shows that post acquisition delays in utilising the land are longer than the time taken to complete the acquisition process. These need to be debated. The viewpoint of the industry, PSUs and state governments opposed to LARR deserves a hearing. If necessary, some of these procedures can be modified in the light of experience. But there cannot possibly be a reasonable argument for doing away with a due process altogether. Besides, if the Bharatiya Janata Party (BJP) finds the process cumbersome, why did it not say so when this legislation was being drafted? At that time, BJP MPs like Rajnath Singh and Sushma Swaraj had argued for even more stringent procedures. The parliamentary committee headed by Sumitra Mahajan opposed the then government’s move to dilute the bill.

How come the BJP has discovered new reasons now? How come the Congress-led state governments are opposing the legislation their own party had enacted? How come everyone is keen to listen to industry, but not to farmers? How come strict adherents of due process of law are happy to junk it for land acquisition? How come diehard advocates of the right to property and enemies of nationalisation are the champions of state forcibly taking over the property of farmers? How come no one in the debate is talking about the elephant in the room — land as real estate?

When you ask these questions you realise that this debate is really about power. It involves a contest between the interest of builders-industry-corporates on the one hand and farmers on the other. No wonder public reason has been bent and twisted in this unequal contest of power.

Public reason cannot be restored unless this obscenely unequal power equation is challenged. This is the dharma of politics in our times.

(Yogendra Yadav is Chief Spokesperson of the Aam Aadmi Party, on leave from the Centre for the Study of Developing Societies, Delhi.)

If the BJP finds the process of land acquisition cumbersome, why did it not say so when the 2013 land acquisition law was being drafted?

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