THE LAND ACQUISITION ACT OF 2013 was one of the most thoroughly scrutinised and debated pieces of legislation to ever have been passed by the Indian parliament. From 2011, when it was first presented before the legislature, to 2013, when it acquired its final shape, the bill was discussed at length, not just in the legislature but also in the media and among civil society groups. Objections were taken on board from various industry and farm bodies, NGOs, and political parties, and changes were made to accommodate a wide range of views. The final legislation enjoyed bipartisan support in both houses of parliament.
But this hard-won consensus has largely been undone by executive fiat, through an ordinance amending the 2013 law, passed by the Narendra Modi administration at the end of December. The new government’s move is well within the letter of the country’s law, but strays very far from the democratic spirit behind the 2013 act.
Before the 2013 law, land acquisition in India was mostly governed by a colonial law dating back to 1894 that allowed for little legal or financial relief to the people affected. There was no clear right of appeal, the stipulated compensation was meagre, and there were no relief or rehabilitation measures in force. It was only in 2007, under the first United Progressive Alliance, that the government tried to address these flaws—through two new laws presented before parliament, one for land acquisitions and another for the relief and rehabilitation of those dispossessed. These bills lapsed, but, in 2011, with the UPA reelected to power, they were clubbed together on the recommendation of the National Advisory Council and reintroduced in the Lok Sabha. The new bill was referred to a standing committee headed by the Bharatiya Janata Party leader Sumitra Mahajan, who is now the speaker of that house. The committee submitted a report in May 2012, after a wide-ranging consultative process.
The bill was passed by both houses in September 2013, incorporating suggestions by several political parties, including the BJP. The party was represented in this matter by Sushma Swaraj, then the leader of the opposition in the Lok Sabha. Some of the suggestions and criticisms Swaraj made on behalf of it at that point make for interesting reading now, standing as they do in sharp contrast to the recent ordinance, which focuses on easing land acquisition for corporations. She had insisted on proper categorisation of the purposes for which land was to be acquired, so that the process could not be manipulated to allow corporations to expand their profits. The recent ordinance, however, removes some of those restrictions.
The 2013 law clearly excluded from its ambit the acquisition of land by the government for private enterprises, including hospitals, educational institutions or private hotels. The new ordinance undoes this provision in cases involving hospitals or educational institutions. The architect of the ordinance was the finance minister, Arun Jaitley, who was also part of the all-party consultations for the 2013 law. In the first week of January, Jaitley argued for the change in a Facebook post that remains the government’s only explanation for the new ordinance so far. “The draft provisions of the 2013 Act enthusiastically provide that no part of an acquired land could be used for a private educational institution or a hospital,” Jaitley wrote. “How will new smart cities and townships come up? Will they only have a civil hospital and a Government school/ college and no other healthcare and educational institutions will be allowed to be established there? The ordinance permits hospitals and educational institutions to be established on an acquired land. That is the purpose of acquisition for townships. A township without a social infrastructure would be inherently incomplete.”
Given the weight of the issue at hand, this is at best a facetious argument, and one that does not stand up to scrutiny. This government hasn’t yet even clarified what “smart cities” are, leave alone drafted any policies for them. If it is indeed considering large-scale land acquisition for smart cities, then the administration must first frame policies specifying what infrastructure will come up, and how. Without such rules in place, these processes will remain vulnerable to the same administrative whims that currently prejudice transparent urban development. For example, private hotels are important for a modern city, but the process of securing land for them is not covered by the ordinance. If, by implication, there will be a separate framework for creating private hotels in such cities without the government granting them land, why should the same framework not apply to private educational institutions and private hospitals (which, as this month’s cover story shows, are just as driven by commercial motives as hotels)?
Enough anecdotal evidence has accumulated from across the country that the greater the scope for government acquisition of land, especially for private purposes, the greater the scope for corruption. Bureaucrats, politicians and private developers work in close coordination, either to buy land up cheaply before government acquisition begins, and so gain from enhanced compensation, or to ensure acquisition at low rates through government intervention, and so expand future profit margins. If the government plans to develop basic infrastructure such as road, water and power links before parcelling land off to chosen developers for the kinds of projects Jaitley so enthusiastically defends, it is not public interest but private profit—both licit and illicit—that is most likely to motivate the acquisition process.
Even more telling is the BJP’s revised stance on one of the central provisions of the 2013 law, which provides for social impact assessments, or SIAs, before acquisition. These assessments were to occur in consultation with the gram sabhas presiding over the areas under consideration, and to then be evaluated by an expert committee. The only exemption came under an urgency clause to be invoked in matters of defence and national security, or in cases of natural calamity. Again, Swaraj had argued for strengthening this provision by including more local representatives, such as MLAs and NGOs, in this process. The ordinance, however, does away with SIAs for a large number of acquisitions, including those for electrification and industrial corridors.
In other ways, too, the ordinance privileges those who seek to acquire land over those to whom the land belongs. The earlier law allowed any acquisition proceedings that had not been completed within five years to be cancelled. But the ordinance states that in applying this deadline, “any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court … shall be excluded.” In effect, the ordinance suggests that court interventions are whimsical, and are not sufficiently grounded in legal argument and procedure to have merit. Even worse, it seems to believe that any litigation which ties up land for long periods harms only the government and not farmers, who may in some circumstances have lost possession of the property without receiving compensation. Thus, almost all the changes introduced by the ordinance are tilted in favour of the government and the private sector at the expense of farmers, which is in complete contrast to the BJP’s stance before the elections, when it had argued for changes to strengthen farmers’ hand.
Politically, it is convenient to dismiss these contradictions as representing differing views within the party. It is no secret that Swaraj and Rajnath Singh, now the minister of home affairs, do not see eye to eye with the Narendra Modi–Arun Jaitley regime on a host of issues, and that a significant section of the Rashtriya Swayamsevak Sangh backs the views Swaraj had earlier presented on behalf of the BJP. This rift is visible in the opposition to the ordinance by the RSS farmers’ wing, the Bhartiya Kisan Sangh, or BKS, and the Swadeshi Jagran Manch, another branch of the Sangh Parivar.
But whatever the merits of such an explanation, it cannot justify the change in stance that has brought about the new ordinance. The 2013 law had widespread support—no major party opposed it, and, in fact, most even argued for stronger provisions to ensure that landowners received a fair price through a fair process. A look through the BJP’s 2014 election manifesto makes it clear that none of the recent changes were even hinted at through the campaign. All the manifesto stated was that the “BJP will adopt a ‘National Land Use Policy’, which will look at the scientific acquisition of non-cultivable land, and its development; protect the interest of farmers and keep in mind the food production goals and economic goals of the country.”
Arun Jaitley now claims that “The amendment ordinance is based on extensive consultations where State Government of most political parties supported these changes. Those who are opposed to it can certainly mandate their party’s State Governments not to use the provisions of the ordinance.” Again, Jaitley reveals more than he means to by admitting that these “extensive consultations” took place within the government. No farmers’ bodies were part of the deliberations, and the consultative process Jaitley has formulated completely excludes their consideration. It is as if he considers this an issue to be settled primarily between the implementing authorities—that is, the state and central governments—in which those affected should have no say. Thus, while this government does have a mandate to issue the ordinance, it lacks any direct popular support for the changes to the law.
The land acquisition ordinance, perhaps more than any other policy announced by this government so far, also illustrates problems with its decision-making mechanisms. This was a decision largely taken between Modi and Jaitley, with the latter given a free hand to determine the details of the draft. Such centralisation, which precludes dissent even from within their party, suggests that all differing views are off the table once Modi indicates what he wants.
Much the same disdain for divergent views is likely to prevail again when the ordinance comes up for legislative approval over the next six months. The Rajya Sabha has been the main battleground for this government, since its clear majority in the Lok Sabha minimises opposition there, and this is where the ordinance will face its real challenge. The government now seems likely to consider a joint sitting of both houses of parliament to ensure the ordinance passes into law. Given the numbers, this should be a feasible strategy for the BJP, but it may not yield the last word on the matter.
For the country’s scattered anti-Modi opposition, the ordinance represents a potent point of mobilisation, and a number of farmers’ bodies, including the BKS, and political groupings such as the Congress and the Left, have already indicated that they will make the most of this opportunity. In the long run, this broad solidarity might prove more of a challenge to Modi than any opposition that the ordinance may face from within the legislature.