gfiles Magazine October Issue 2011

GOVERNANCE

draft land bill

They who sow the wind shall reap...

 Why the proposed legislation on ‘the most inelastic of resources’ is untenable and unsustainable

by MG DEVASAHAYAM

ACQUIRING land, whether for public or private purposes, is not easy. There are conflicts galore and the political climate is hot. Yet, if governments today are unable to acquire land even for core infrastructure and public projects, it is of their own making. In its greed, and egged on by carpetbaggers, the UPA government took two devastating policy decisions as soon as it came to power in 2004 – mindless promotion of Special Economic Zones (SEZ) and 100% FDI in real estate. This led to unabated land hunting for speculation, fancy townships and luxury development, resulting in sky-rocketing prices that terribly skewed the land market, triggered inflation and created a huge black economy. The Biblical adage, “they who sow the wind shall reap the whirlwind”, has come true in a short time.

It is intriguing how an economist Prime Minister abandoned the basic principle of economics, that land is the most finite and inelastic of all natural resources and should be managed with utmost prudence.

The Draft National Land Acquisition, Rehabilitation and Resettlement Bill, 2011, seeks to make amends by using bombastic words: “Infrastructure across the country must expand rapidly. Industrialization, especially based on manufacturing, has also to accelerate. Urbanization is inevitable. Land is an essential requirement for all these processes. Government also needs to acquire land for a variety of public purposes.” Then it becomes condescending: “In every case, land acquisition must take place in a manner that fully protects the interests of land-owners and also of those whose livelihoods depend on the land being acquired.”

The Preamble takes off from there and states that the Bill is to balance the need for facilitating land acquisition for industrialization, development of essential infrastructure facilities and urbanization, while at the same time meaningfully addressing the concerns of farmers and those whose livelihoods are dependent on the land being acquired. The “nobility” of the Bill is in ensuring that the cumulative outcome of compulsory acquisition be that affected persons become “partners in development”.

But “development” is not defined anywhere in the Bill and it is unclear what kind of development land will be compulsorily acquired for. Is it constructive or destructive development? As of now, most development projects are destructive in nature – denuding forests to promote mining, devastating farmland to build townships, destabilizing agriculture to form SEZs and destroying coasts to construct ports and power plants. The views of the National Alliance of People’s Movements on one such piece of “development” are pertinent: “SEZ is a system of apartheid, the return of the old system of zamindari. There will be a preferred group of people/industrialists in these ‘zamindari enclaves’ just because they happened to grab a piece of land approved as SEZ as opposed to those who are outside of the SEZ….”

The Indian model of the SEZ, which is a part of the ‘industrialization’ thrust, is nothing more than glorified real estate-based urbanization. 

The Indian model of the SEZ, which is a part of the “industrialization” thrust, is nothing more than glorified real estatebased urbanization. Interestingly, both these key expressions – “industrialization” and “urbanization” – find no definition in the Bill, making them amenable to discretionary interpretations. The applicability of the law extends to the Central and State governments acquiring land for their own use, to hold and to control with the ultimate intent of transferring it for the use of private companies for stated public purpose – including Public-Private-Partnership (PPP) projects– and for immediate and declared use by private companies for public purpose. The words “hold and to control” are ominous and likely to give unfettered power to government authorities to compulsorily acquire vast tracts of land, hold them for some time and then pass them on to “industrialists” and real estate developers for windfall gains and huge bribes. Some states, like Tamil Nadu, are already doing this by building up “land banks”.

IN the Land Acquisition Act, 1894, which is sought to be replaced, a direct nexus with public purpose is a prerequisite for acquiring land for companies. This has been dispensed with in the present Bill in which “public purpose” includes infrastructure, industrialization and urbanization projects implemented under the PPP mode. If the past is any lesson, this provision will be misused. Almost all land acquisition imperatives given in the draft Bill are project-oriented, both public and private. Unfortunately, the most primary violation in such projects takes place in the way they are planned and implemented. The fact is that living, sentient human beings with rights and freedoms in theory inhabit the specific parts of the land that the authorities, in their wisdom, consider suitable for other purposes/projects. For the planners and decision-makers, land is seen simply as property and those owning the land are mere aberrations.

This mindset flows from the legal fiction of Eminent domain which has been regarded as an inherent right of the state, an essential incident of its sovereignty, to take private property for public use. This power, a colonial legacy, depends on the superior domain of the state over all property within its boundaries. This is all right as long as land is acquired for bona fide public purpose and public use. But this proposed legislation provides for acquisition “with the ultimate intent to transfer it for the use of private companies for stated public purpose”. This is suspect, as would be seen from the massive misuse of acquired land for bribe and rent seeking by public authorities and the phenomenal profit-making by private players and real estate developers. Vague statements like “minimum displacement”, “minimum disturbance to infrastructure, ecology and minimum adverse impact on individuals affected” are highly subjective, left open-ended, and do not carry conviction. For instance, what is the “minimum” displacement in forests and how much is “minimum” damage to rivers?

The primary violation in land projects is that the planners and decision-makers view land simply as property and those owning the land as mere aberrations.

Then comes the larger question of sovereignty. In a democracy people are sovereign, not governments. The people’s sovereignty gives them the right and freedom to possess and retain a place to live in security and dignity. The government’s exercise of sovereignty is in direct proportion to the responsibility, accountability, and legitimacy of the state in the eyes of the people.

With “kleptocrats” ruling the roost, the legitimacy and credibility of governments are at their lowest ebb. Communities are struggling and the people’s battle against the “kleptocratic power” is raging. These struggles are mostly land-based and farmers, tribals, Dalits, the urban poor and the working class have sacrificed their lives at the altar of “destructive development” while trying to defend the piece of Mother Earth to which they belong and from which they eke out a livelihood. These struggles are not only to protect livelihood but are central to defending the basic tenets of our democracy. The overall struggle is for deepening of democracy in the country – to establish the rule of law, to ensure right to life and livelihood with dignity, and to ensure democratic control over the natural resources of land, water and forest. The proposed Bill rubs in the principle of Eminent domain and strikes at the very root of this democratic struggle. It is untenable and unsustainable. The answer is stringent land use-cum-management and not free-wheeling acquisition of this most scarce and inelastic of resources. g