A Critical reflection on the legal framework around land acquisition and rehabilitation and resettlement in India.

Submitted by: Tanaya Hazarika

Introduction

Land struggles in India have increasingly been centred around a new type of activism, termed as ‘law struggles’ that includes collective action aimed towards achieving the introduction of laws that safeguard the rights of the dispossessed and subaltern groups (Nielsen and Nilsen, 2017). And oftentimes it is observed that the dialectic between law struggles and lawmaking culminates in establishing a ‘compromise equilibrium’ between the dominant and subaltern groups (Nielsen and Nilsen, 2017). The state, through the use of lawmaking, provides some concessions to the demands of social movements but ultimately achieves the advancement of neoliberal goals. It does away with the hindrances put forward by social movements by turning them into bargainers of basic rights, that gets settled through lawmaking.

Moreover, at the heart of the legal framework and state policies around land acquisition are two very central concepts, which is the idea of ‘public purpose’ and ‘eminent domain’. ‘Public purpose’ entails the ideas of the common good, or improvement, or development, which are of national interests, and it is this idea that forms the primary source of legitimacy when land is acquired by the state. Further, Usha Ramanathan defines ‘eminent domain’ as ‘the power that the state may exercise overall land within its territory’ (Ramanathan, 2009). The two restraints placed on the principle of eminent domain are that it can only be invoked for a ‘public purpose’ and fair compensation must be paid. However, what constitutes a public purpose and what renders a project a public purpose project, remains highly elusive. The principle of eminent domain coupled with the former, colonial Land Acquisition Act of 1894 (in effect until January 1, 2014), empowered the state to determine the nature of a public purpose, thereby making it non-justiciable (Ramanathan, 2009).

History of Land Acquisition

The colonial government used the Land Acquisition Act of 1894 for smooth land acquisition for railways, irrigation, etc. The continued use of it by the Independent Indian government received justification on the ground that a large amount of land is required for public sector projects. However, over the years the state has increasingly used the principle of eminent domain and the legitimacy provided by the idea of ‘public purpose’ to acquire land on behalf of the private sector, which saw an intensification post-1991 liberalization period (Pal, 2017).

Legitimacy of the previous law

The problem arises because inherent within the principle of eminent domain is the fact that consent is not required to take the land because the state has the right over their land, dominant ownership which it derives from the notion of sovereignty of the state. Therefore, three elements are key to the principle of eminent domain, which are (a) the power to take away land (b) without the owner’s consent, and (c) for public purposes (Ramanathan, 2009). Therefore, even though the state is bound to make compensation while exercising the power of eminent domain along with the 1894 Act, many are left displaced and dispossessed because the state is required to make compensation only to the owner of the land, thereby excluding a large number of landless labourers, artisans, women, etc. whose livelihoods are linked to the use rights of the land but not necessarily to its ownership rights (Ramanathan, 2009).  Moreover, eminent domain is invoked only when the state has to alienate the sanctity of private property, which also works on the presumption of the existence of private property inland. That is, one does not exist without the other. However then, land other than private property, or common lands, then get acquired without due process and compensation to the users of such lands (Ramanathan, 2009). Thus, the principle of eminent domain places absolute power in the hands of the state overall land within its territory.

The compulsory acquisition through the use and misuse of the 1894 Act and the principle of eminent domain saw mass evictions of people without rehabilitation and subsequently became the reason for widespread discontentment among the masses.  The most prominent manifestation of this was the case of Singur1 in West Bengal in 2006. This was termed as a watershed law struggle in India that challenged the existing legal framework around land acquisition and provided a huge impetus to the years of struggle against the 1894 Act (Nielsen and Nilsen, 2017).

The New Land Acquisition Act

The New Land Act or Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into being as a result, which was claimed progressive, participative and widely different from the previous law. This law was seen as a breakthrough as it explicitly linked land acquisition to rehabilitation and resettlement, which was absent in the previous law (Nielsen and Nilsen, 2017). It contained legally enforceable rights to rehabilitation, has an inclusive definition of project-affected people, compulsory conduction of social impact assessment to check a project’s public utility, incorporation of consent (albeit problematically), amongst various other improvements. 

Take from Civil society and industrial sector

However, it was widely criticized by both civil society and the industrial sector and a closer analysis of the law reveals the success of the state in achieving the compromise equilibrium (Nielsen and Nilsen, 2017). For example, social impact assessment is done away with when land is acquired under its urgency clause, such as for national defence, etc. Most importantly, the definition of public purpose was broadened and further diluted (Nielsen and Nilsen, 2017). Therefore, the state seemed to have acted as a facilitator by making the process of acquiring land for the private sector easier, by providing seemingly generous provisions but not truly safeguarding the rights of the vulnerable groups, and thus, further contributing towards legitimizing the inevitability of land acquisition for neoliberal gains. An even larger facilitating role of the state was revealed when the current government attempted (but failed) to amend key provisions of the Act in December 2014.

Take from Judiciary

Further, the judiciary remains the only recourse to remedy for the aggrieved section, however, it is noticed that courts most often fail to act as the guardian of the rights of people by often failing to define a truly public purpose acquisition or regarding fair and just compensation (Pal, 2017). This shows the arbitrariness of the state and its laws. Thus, laws, it seems, at the end is there to facilitate land acquisition, blunt resistance, and further the goals of neo-liberalization. Hence, as the area of eminent domain remains largely unscathed, and as the concept of consent continues to be incorporated into the laws in a rather problematic manner, land acquisition in India is likely to face renewed struggles over land and law in the future.

References

  • Nielsen, K. B. and Nilsen, A. G. (2017). ‘Law Struggles, Lawmaking, and the Politics of Hegemony in Neoliberal India: Toward a Critical Perspective on the 2013 Land Acquisition Act.’ The Land Question in India, pp. 129-150.
  • Pal, M. (2017). ‘Land Acquisition and ‘Fair Compensation’ of the ‘Project Affected’:  Scrutiny of the Law and Its Interpretation.’ The Land Question in India, pp. 151-175.
  • Ramanathan, U. (2009). A word on eminent domain. Displaced by development:  Confronting marginalization and gender injustice, pp. 133-145.

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