Press Note: Joint Statement Calls for Rejecting 2011 Land Acquisition Bill

November 17, 2011

The 2011 Land Acquisition, Resettlement and Rehabilitation Bill is a dangerous exercise in doublespeak that will worsen the injustice and devastation caused by the present law. Below is a joint statement on this legislation from a number of organisations and individuals, calling for the rejection of the new Bill and raising the basic issues that need to be addressed by any legal framework.
The statement points out that:

* Despite making gestures and pious statements, the Bill contains so many loopholes that all its provisions for public accountability and consultation will be meaningless in practice. Bureaucrats will remain extremely powerful. In particular, most projects (private or public) will be able to escape without either taking the consent of the affected people or responding to their objections.
* The “integration” between acquisition and rehabilitation that the law’s title implies simply is not provided for in its actual clauses. Instead, those affected will face innumerable obstacles in obtaining even the little that the law promises them.
* The law will facilitate continued profiteering and land grabbing by private parties, even after the spate of recent scams that have been exposed. Resource grabbing, which is impoverishing the oppressed classes while failing to produce “development” in any sense, will be encouraged by this law.
* The law grossly violates the Constitutional and legal scheme for tribals and forest dwellers.
* The law provides no effective way for affected people to enforce their rights, and instead bars any court from granting a stay, thereby basically providing a license for abuse and illegality.

JOINT STATEMENT

Reject Land Acquisition and Resettlement and Rehabilitation Bill 2011: Not a Just, Democratic and Effective Framework

Today, people are protesting against illegal and unjust land grabbing across the country, and it is clear for all to see that the process of land acquisition is unjust and driven by private interests. At this time, the UPA government is introducing a Bill that will supposedly address these issues. The government claims that the main problem is ensuring “fair” compensation for land losers, though, ironically, its Bill will not even achieve this. However, the problem is far deeper, and affects far more people than land owners alone.

THE HEART OF THE PROBLEM

At the heart of the problem lies the extraordinary power in the hands of the bureaucracy over all types of land and land use, encompassing private land, common and forest land, water bodies, underground minerals, etc. The state supposedly holds these resources “in trust for the public”, to be used for the “public interest”; but the people have no role in taking these decisions. Even where people’s right to control these resources has been wrested after prolonged struggles, as in Fifth and Sixth Schedule Areas or in forest areas, the bureaucracy rides roughshod over the law itself in order to maintain its power. This undemocratic system is geared to serve private interests, which are dressed up as “development”, be it in NOIDA or Jashpur or POSCO or Adarsh.

The devastation caused by this mechanism is not limited to forcible acquisition of land. Large scale private purchase of lands, diversion of forest land, arbitrary clearance for mega projects and resulting land use change, surreptitious transfer of government lands, sale of land owned by public sector companies at throwaway prices, and so on all have the same effect. Many lose their lands, livelihoods, resources and homes as a result.

The reality is that land is a social resource, not merely either private property or state property. In both urban and rural areas control over land is central to the whole of social and economic relations. It cannot be dealt with at the whims of the executive, with all the consequences for displaced people, the environment and surrounding communities deemed “externalities” which can be dealt with later.

The mass destitution and environmental devastation caused by this model of “development” is often met with resistance from the masses, who are crushed with the full might of the police and paramilitary forces. The profits generated by this kind of resource grabbing in turn feed corruption and distort the country’s economy. This is one of the central problems confronting India today The country needs a system of democratic control over land and land use if this cycle is to be broken.
This statement sets out a critique of the current situation and the Bill below, followed by a set of principles that should form the basis of any solution to this issue.

THE 2011 BILL – ACCEPTS THE PROBLEMS, AVOIDS ANY SOLUTIONS

The 2011 Bill indulges in doublespeak. It acknowledges the key demands and then proceeds to negate every single one. Contrary to government claims, this Bill in fact promotes further unregulated land takeover by corporates, while assuring them government assistance in dealing with recalcitrant landowners. The bureaucracy also continues to wield enormous discretionary powers.

No Attention to Land Use Planning and Minimizing Displacement

Current Practice: All decisions are taken by the bureaucracy in an ad hoc manner. There is no prioritization or planning of land use in accordance with food and livelihood security, extent of displacement or environmental protection.

2011 Bill: (1) Does nothing at all to plan or regulate land use. Instead, it gives an arbitrary license to acquire up to 5% of multi crop irrigated land without assessing projects in terms of their impact on food security. (2) The earlier draft required that projects be the “least displacing” option; this has also been removed. (3) The Constitutional powers of municipalities and panchayats over planning are simply ignored.

Bureaucratic Diktat Without Public Scrutiny of Public Purpose for Acquisition

Current Practice: Whether land acquisition serves a public purpose or not is exclusively decided by the bureaucracy; courts have widened their powers further.

2011 Bill: A “state level committee” consisting almost entirely of bureaucrats makes all decisions. A “social impact assessment” is to be done, but who will do it, and how, is unclear. In fact, the SIA is a mirror image of the discredited environment impact assessment process, which Shri Jairam Ramesh himself described as a farce. The SIA will neither consider the rehabilitation plan, nor whether the project is the “least displacing” alternative, nor the question of public purpose – yet the State level committee is supposed to decide all this based on its report. Various public hearings and gram sabha consultations are suggested, but these are a mere formality; the views raised in them are not given any importance subsequently.

Moreover, the Bill has a series of loopholes that allow the government and companies to bypass whatever “safeguards” are provided. One of these is “partial” acquisition for private companies, which will not require consent of 80% of the people (see next point). Another is in section 76, whereby land that is “temporarily” occupied for some “temporary” use can then be acquired if “permanently damaged.” This would then bypass the entire procedure of social impact assessment, public consultation, consent, etc.

Farcical Prior Informed Consent – The Bill Does Not Require Consultation With People

Current Practice: Consent or even consultation with those affected is not required, even where the law requires it (as in Fifth Schedule and forest areas). .

2011 Bill: The Bill says that “consent of 80% of the affected families” will be required for some types of acquisition. But it provides no procedure for taking this consent, for determining if it is given freely, for deciding what happens if consent cannot be obtained, and for deciding whose consent is to be taken. The Bill provides no sound way for deciding who is affected and who is not; indeed no listing of affected people is even made until much later. Asking for consent in this manner is an open invitation for forgery and manipulation. And when will consent be sought? Besides, those being asked for their consent cannot be told about rehabilitation as the package is not even drafted till much later.

Besides, to get around this, all that private companies need to do is purchase a little land and ask the government to engage in “partial acquisition” for the rest, which could even be 99% of the total area (clause 8 proviso read with clause 2(2)).

Definition of Public Purpose

Current Practice: Public purpose is defined very broadly, allowing for all kinds of projects to be included.

2011 Bill: In the 2011 Bill, the definition of public purpose has been widened even further. All types of real estate are deemed a public purpose and are exempt from 80% consent (Cl. 3(za)(iv)).

Besides, projects that are in “public interest” (which is not defined) or that “produce goods or services for the public” become public purpose (Cl. 3(za)(vi) and (vii)). Is there any economic activity which does not satisfy these requirements? Thus land acquisition for practically any project, private or public, will be possible, only subject sometimes to the dubious “80% consent” requirement. Instead of making the process more rational, the Bill is opening acquisition to a free for all, giving private companies access to the state machinery for purposes identified by them. The Bill contradicts itself by first declaring that no change of purpose will be permitted (Cl. 93); and then reverting unutilised land to the government “land bank” (Cl. 95). What is this if not a change of purpose? This is an incentive to acquire large tracts of land on plausible grounds and hold them for later use.

Regulation Of Private Purchase And Projects

Current Practice: There is no regulation over private projects where land is purchased. Acquisition is held as a threat over the heads of land owners to force them to sell “voluntarily.” The Act at present, despite its weaknesses, puts the onus of establishing public interest and purpose on the requiring body under Part VII where it deals with land acquisition for private companies.

2011 Bill: Lack of regulation will continue unabated. Private purchase of more than 50 acres in urban areas and 100 acres in rural areas – which is far above the land ceiling, and therefore illegal – will supposedly require R&R. Clause 42 which covers this permits land use change for such projects without any regulation at all and without even setting a minimum floor price! How can there be a “voluntary negotiation” and a “market price” for those selling, when they will basically be told to sell at whatever price is being offered or face forcible acquisition? In any case, any project can be broken into smaller blocks to get around this.

Furthermore, with no comparable provisions, the private companies no longer have to establish public purpose and public interest when land acquisition is done for them.

Low Compensation to Land Losers

Current Practice: Prices are decided by the procurer (the government). The system neither takes into account the cost to the land loser of purchasing similar land elsewhere, nor the increase in value on change of land use. Courts eventually directed that at least the highest recent sale, not the average price, should be taken.

2011 Bill: This too will worsen. Compensation is linked to average ‘market’ value based on recorded transactions and officially specified minimum land values. These are invariably far below real market rates. The four times’ increase in rural areas is still far less than what the procurer gains from the change in land use classification (which often increases the value by more than twenty times). The owner will receive only 20% of the increase in value on any subsequent transfer, and that too only if no development is done on the land at all. There is no reference to enabling the affected person to replace what they have lost. In the case of “temporary occupation”, this will be settled through a process of “negotiation” – without even any floor value specified – and then the land can be permanently acquired if it is not fit for its “original use.” (s. 76(2)).

Temporary Occupation and Urgency

 Current Practice: Part VI allows the temporary occupation and use of any waste or arable land for any public purpose, or for a Company, for up to three years. Under ‘Urgency’ (cl 17), land can be acquired lot of land has been acquired for real estate, mining and infrastructure projects using this extraordinary power.
2011 Bill: On the one hand the Bill says acquisition only after compensation/ rehabilitation and then it allows for “temporary acquisition” in chapter 11. Any kind of land can be “occupied” temporarily for any “public” purpose, including for private companies, without being subject to any conditions apart from the subjective satisfaction of the Collector. As noted above, section 76 also allows this to be abused as a backdoor route to acquire land; just occupy it “temporarily”, damage the land, and then say it cannot be restored to the original use and hence is being acquired. Similarly, the misuse of “urgency” will continue unabated (Cll 38) since there is no procedure by which the restirctions in this can actually be enforced. Such cases will not require SIA or allow Objections, and the constraint in the draft Bill that this be done in the rarest of rare cases has been dropped in the final Bill.

Ad hoc and Discretionary Resettlement and Rehabilitation, Not Integrated with Acquisition

Current Practice: R&R totally ad hoc and dependent on the administration.

2011 Bill: In the name of integration, what the Bill actually creates is a mishmash of unrelated processes and contradictory provisions. The most basic fact – the number of affected people – is counted in the SIA (Cl. 4(2)(a)), separately counted in a census (Cl. 17(1)(a)), and finally counted again by asking people to file claims (Cl. 21(2). Discrepancies will be ignored. The R&R plan is drafted long after the project has been approved as a public purpose; by which time people have no chance to object to the project itself. . Two separate groups – “affected people” and “interested persons” – are defined and given different rights and responsibilities; but a close reading shows that these definitions cover the same people. The annexed Schedules, especially the Third, offer the officials the option of not doing anything and writing an explanation in the fourth column. The net result of all this will be total administrative confusion and plenty of space for manipulation.

Moreover, while it claims to cover forest dwellers, hunter gatherers, fishworkers, etc. the Bill says nothing about protecting those affected by the project – only those “affected by the acquisition”, meaning those who are practicing these livelihood activities on private land. Those affected by transfer of government or common property or forest land for any project will not be covered by this law and will receive no R&R. Even the 2007 R&R Bill was better than this.

The Central government can amend the Schedules at any time with just a notification. Finally, those who received R&R can also have it taken back later, if they are accused of having done so on “false information.” No procedure is specified for this; there would be no need for a trial, since it is an administrative action.

Urban Land Rights

Current practice: In urban areas, large tracts of public land are held by the Government, especially by the Defence, Railways and public sector companies and public corporations. Increasingly, this land is being sought by real estate developers and builders. Furthermore, large sections of the urban poor and working class live as “encroachers” in slums, tenements, pavements, and the like and their occupational rights as squatters are always under threat from imminent eviction. The majority of urban residents in India today exist in various states of illegality. There is absolutely no protection for the rights of the urban poor and their land and livelihoods are constantly sacrificed to benefit powerful private interests.

2011 Bill: The bill essentially exempts all private activity in urban areas from R&R by setting an absurd minimum limit of 50 acres (which would exclude practically every urban project in the country). Insofar as public acquisition is concerned, the Bill makes no reference to slums or urban dwellers and their rights.

No Route for Affected People to Enforce Their Rights if Violated

Current Practice: Those affected have no recourse except to go to the High Court or Supreme Court.

2011 Bill: Those affected cannot approach local courts – they have to go only to a government appointed State or Central authority, thus undermining the separation of executive and judicial functions. This body can only award increased compensation, and can only be approached through the Collector (Cl. 58); then any appeal to the High Court is permanently barred after 120 days (s. 68). Further, even if the law is violated, the acquisition will always go ahead, as Clause 57 bars any court from issuing a stay order (incidentally this clause is unconstitutional, as it seeks to bar even the jurisdiction of the High Courts and the Supreme Court). So if R&R is not provided, people will be displaced anyway, and can spend the rest of their lives chasing their rights in the Authority or courts (if they have the resources to do so).

Violating Rights of Scheduled Tribes and Forest Dwellers

Current Practice: Legal protections for tribals and forest dwellers are completely ignored.

2011 Bill: After decades of struggle, PESA and the Forest Rights Act empowered tribals and forest dwellers to protect, manage and safeguard their resources. The Bill reduces these provisions for consent and consultation to formalities (when done at all), in exchange for increased compensation and advance payment.
The last straw comes at the very end – Clause 98 and the accompanying Fourth Schedule. After grandly stating that this law will create a new, just process of acquisition, these clauses exempt a whole range of activities – SEZs, coal mines, highways, uranium mines, railways etc. – from this law entirely. This is at a time when SEZs and mines have been sites of bloody, violent conflict across the country.

OUR DEMANDS

In light of all of the above, the central feature of the system of land control in this country has to be democratic land use planning. This should take place from the village level upwards, with village plans being amalgamated and coordinated in a democratic process with approval by democratic bodies at each level (starting from the gram sabha in rural areas and the basti sabha in urban areas). This should culminate in a State level land use plan with the goal of ensuring a high standard and quality of life for all. The priorities should be food security, livelihood security, access to common property, and a focus on production of goods of mass consumption.

Subsequent to this, all major land use changes, including from private purchase and transfer of government land besides land acquisition, should be in accordance with the land use plan and fulfill a public purpose. Any change of existing (not recorded) land use over an area larger than the agricultural land ceiling (in rural areas) and an appropriate small area in urban areas should be considered a major land use change. Acquisition of individual property, if any, should follow on this decision and be a part of the process of deciding on the land use change. But R&R entitlements should apply to anyone whose livelihood dependence on or occupation of land is affected.

The minimum requirements of the process for deciding on land use changes should then be:

* In cases of land use change for private companies, the onus for establishing public purpose should be on them.
* Public purpose should be defined in terms of the goals set for the land use plan and those in Part IV of the Constitution (in particular, Article 39). Change of land use should either not result in displacement or in minimal displacement. Government ownership and full public funding should be the preferred institutional and financial norms.
* Public purpose and the R&R package have to be fully elucidated to the project affected people through written materials and a series of public consultations, in clearly prescribed formats. The R&R package should be decided througha process of negotiation, subject to minimum entitlements as discussed below. No land use change or acquisition should be permitted without prior informed consent of the affected gram sabhas (or ward/basti sabhas) and a separate, explicit consent to the R&R package. The final decision should be open to public scrutiny and to challenge in all courts. A decision by the executive or the bureaucracy alone should never be sufficient for a project to be deemed a public purpose.
* All people who suffer any loss of livelihood, irrespective of their legal status, due to loss of access to private, common or forest resources should be treated as persons interested and affected, without any cutoff date, requirement of residential status or for establishing loss of primary livelihood. The loss of common property resources should also be compensated. In urban areas, there should be explicit provisions barring any insistence on cutoff dates and legality of residence and use of land.
* Effective, accessible and democratic institutions should be provided from the project level upwards for enforcement of people’s rights during the process of takeover of private land / transfer of government land and rehabilitation and resettlement. Violation of any right should mandatorily render the entire process null and void. The state should be responsible for timely provision of information. People’s rights should not be deemed to have been waived under any circumstances.
* Complete resettlement and rehabilitation should precede change of land use or dispossession by at least six months.
* Compensation and price for take over of individual lands should be based on the future and not on present land use. It should be calculated based on the highest sale for similar lands in adjacent areas, multiplied by a factor of ten in rural areas and six in urban areas. This should be fixed as the floor price for private purchase of any area larger than the land ceiling.
* Temporary takeover of land should not be done without fully meeting all R&R requirements and subject to the same process of decision making as full change of land use “Urgency” clauses should be considered a form of temporary takeover – there is no need for the government to acquire ownership to land that is needed in an emergency. Such clauses should be restricted to imminent danger to life or limb and compensation should be negotiated in the form of a lease, with a floor level of land values that are four times more than those decided for non-urgent cases.
* All land not utilised within 5 years should revert to original occupiers, without requiring return of compensation.
* Common property in both rural and urban areas (including slums and common areas used by them) should be under local and democratic management systems.
* Resettlement and rehabilitation should ensure a higher standard of living after resettlement. This should include a minimum of five acres in rural areas for land-dependent people, irrespective of their status as landholders or landless (with full land for land for STs and forest dwellers if they have larger holdings), and improved housing in urban areas. Mandatory employment and shares in the project, in the case of revenue earning projects, should be provided over and above this. Infrastructure and basic public services must always be provided.

Until this new framework of land use planning and democratic control is in place, there should be a moratorium on all land acquisition (excepting small projects serving immediate welfare requirements such as drinking water, primary schools, etc.). Further there must be a system of compensating and securing justice for those already displaced.
We the undersigned therefore call for the withdrawal of the 2011 Bill and its replacement with a just, democratic and effective legislation that addresses the issues raised above.

Organisations

1. Adivasi Mukti Sanghatan
2. All India Kisan Mahasabha
3. All India Agricultural Labourers’ Association
4. Campaign for Survival and Dignity
5. Chhattisgarh Mukti Morcha (Mazdoor Karyakarta Committee)
6. Indian Social Action Forum (INSAF)
7. Kashtakari Sanghatna
8. National Forum of Forest People and Forest Workers
9. Sanhati

Individuals

1. Amit Bhaduri, Professor(retired), Jawaharlal Nehru University, New Delhi
2. Anurag Modi, Shramik Sanghu, Betul, Madhya Pradesh
3. Arundhati Dhuru, National Alliance of People’s Movements and ASHA Parivar
4. Ashish Kothari, Kalpavriksh, Pune
5. C.P. Chandrasekhar, Professor, Jawaharlal Nehru University, New Delhi
6. Chittaroopa Palit, Narmada Bachao Andolan
7. E. Deenadayalan, General Secretary,The Other Media
8. Himanshu Thakkar, SANDRP, New Delhi
9. Jai Sen, CACIM
10. Jayati Ghosh, Professor, Jawaharlal Nehru University, New Delhi
11. Kavita Shrivastava, PUCL
12. KB Saxena, Council for Social Development, New Delhi
13. Meena Menon, Focus on Global South
14. Nirmal Kumar Chandra, Professor (retired, Indian Institute of Management, Kolkata)
15. Praveen Jha, Reader, Jawaharlal Nehru University, New Delhi
16. Pushkar Raj, General Secretary, PUCL
17. Rishu Garg, ARAVALI, Ajmer
18. Sandeep Pandey, National Alliance of People’s Movements and ASHA Parivar
19. Shamim Modi, Asst. Professor, Tata Institute of Social Sciences, Mumbai
20. Smita Gupta, Institute for Human Development
21. Sudha Bharadwaj, Chhattisgarh Mukti Morcha (Mazdoor Karyakarta Committee)
22. Sudhir Patnaik, Bhubaneshwar, Orissa
23. Trilochan Shastry, Professor, IIM, Bangalore