The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 is business as usual; a legislation for land reform amended through Article 123 of the Indian Constitution you would say. But the undertones of the process and the legislation itself speak volumes about the future that this nation arriving at. The ordinance route for legislations is taken up when there is certain urgency. The ordinance power of the Union requires that the President (which means as advised by the cabinet) can only issue it if (a) “circumstances exist which render if necessary for him to take immediate action” and (b) both Houses of Parliament are not in session. The ordinance will have to be ratified by both Houses within six weeks of the Houses being reassembled (Article 123 of Indian Constitution).
The most bothersome aspect of the new amendment is that it ignores ‘consent’ justifying the ‘public purpose’ served by private projects i.e. land can be acquired on the pretext of housing to the poor, highways and infrastructure etc.
Apparently in this case the urgency was due to the fact that because under Section 108 of the Land Acquisition Act, clarity was needed to bring the rehabilitation and resettlement and compensation provisions of 13 pieces of legislation at par with those in the new Land Acquisition Act. The Right to Fair Compensation and Transparency in Rehabilitation and Resettlement Act, 2013, which came into force on January 1, 2014, had specifically said that the 13 existing central pieces of legislation including the Coal Bearing Areas Acquisition and Development Act, 1957, the National Highways Act, 1956, and the Land Acquisition (Mines) Act, 1885 had to be amended within a year to bring them on par with provisions of the new legislation. All said and done however it is undeniably true that such hurried legislations without proper representation and opinion of every stakeholder are bound to hurt the cause of farmers and land holders. It is beyond doubt that ordinances were passed even in the past, but this particular one, which affects the lives of millions and debated over decades ought to have been debated thoroughly before enactment.
So why land reform legislations are distinctly different, apart from being a state subject under entry 18 of the State List in the VII Schedule of the Constitution the glaring speciality of these legislations is that these are part of the IX Schedule of the Constitution which are beyond judicial review or in other words cannot be challenged in the court of law.
| The IX Schedule was included in the Indian Constitution by the Constitution (First Amendment) Act, 1951, along with Article 31B. The objective of the schedule is to immunise certain acts and regulations from a challenge on the ground of violation of fundamental rights under Articles 14 and 19 of the Constitution. Thus, its purpose was to deprive the courts of the power to challenge the validity of the acts passed by the legislature. Article 31B, which gives blanket protection to all items in the IX Schedule, is also retrospective in nature. So, even if a statute which has already been declared unconstitutional by a court of law is included within the schedule, it is deemed to be court of law is included within the schedule, it is deemed to be constitutional from the date of inception. |
The fact that these are almost absolute it gives unfettered power to legislature to tune the law as they wish. Not less than 16 central acts and about 100 state level acts are in action, forcibly acquiring people’s property. Since the 1960s and especially after 1980, Indian governments have invoked these acts for transfer of people’s resources to private companies and corporations. This particular legislation when debated brings out that it will open doors once again to forcible acquisition of land and also allow for easy acquisition of multi-crop land. The objective has been to do away with certain provisions of the Land Acquistion Act such as the required social impact assessment and the taking of consent of 80 per cent of the farmers which would have restricted industrial growth. These have been done away with. This is worrisome and indicates the ruling party’s obsession of corporatizing on one hand every aspect of economy and ignoring agrarian interests.
The most bothersome aspect of the new amendment is that it ignores ‘consent’ justifying the ‘public purpose’ served by private projects i.e. land can be acquired on the pretext of housing to the poor, highways and infrastructure etc. In fact, the Act would permit acquisition by the State for private entities and not just private companies. This will open a Pandora’s Box for land pulling and pooling by private bodies in various sectors, may it be a private trust or society. Moreover the risk of land mafias growing stronger becomes eminent. Although it is argued none of the clauses relating to compensation, relief, rehabilitation and resettlement have been removed and farmers’ interest have been priority nothing can be further from the truth. The 2013 and 2014 (Amended) Act no doubt offers more cash for the property, but the real market value would still escape the offer. Much drum-beating on ‘multiplied compensation’, publicly announced to be four times, is still to be finalized by the state governments. Democratic tools of prior consent and social impact assessment have been done away with bound to cause enormous impact on farmers and other economically-disadvantaged groups.
