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Why the land acquisition bill is flawed

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Cropped from image of Jairam Ramesh the Indian...

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GOPAL KRISHNA IN REDIFF NEWS

The Land Acquisition Rehabilitation and Resettlement Bill 2011 argues for a perfect land market, unrestrained urbanisation and industrialization, says activist Gopal Krishna.

On September 7, Jairam Ramesh introduced the Land Acquisition Rehabilitation and Resettlement Bill 2011 in the Lok Sabha within six days of the end of the public comment period on the bill that is to replace a 116 year old colonial law. This bill argues for a perfect land market, unrestrained urbanisation and industrialisation.

It sounds strange that rural development ministry is working for urban development as if latter is unquestionably the pre-condition for the well being of rural people and their ecosystem. Will the prime minister reveal the role of urban development ministry if what rural development ministry is doing is indeed its mandate?

Will Ramesh explain as to whether what he said as secretary, economic affairs, Indian National Congress remains relevant or not? Ramesh, a representative “of a generation that was created by public investment” and as a key player in developing India‘s 1991 economic reforms said in 2001 that “in 1715 they (India) accounted for 25 percent of world industrial output, so it’s always been an industrial nation in that sense of the term.”

Caught in the time warp and frozen with the contested develop-mentality, corporate fund driven political parties and NGOs are out to decisively put the State and the natural resources on sale unmindful of its cognitive and ecological cost and intergenerational inequity that it promotes almost forever. Both ruling parties and most of the opposition parties are hand in glove in this regard.

These anti-citizen entities are acting as if present and future citizens, gram sabhas, panchayats and zilla parishads do not matter. Their responses to enactment of Special Economic Zone Act, 2005 and its implementation is a case in point.

The Special Economic Zones and land acquisition by companies are about generating financial wealth with naked political patronage at the cost of natural and human wealth. The Land Acquisition Act, 1894 has been useful for it. It is indeed “painfully evident that the basic law has become archaic”. It used to be said that company is an artifact of law, it now appears that law such as this is an artifact of companies. Every act of privatisation of the government through legislations like these is quite painful too.

If that is not the case why should State use its sovereign power to acquire land for companies either partially or fully in the name of industrial and urban development or legislate to facilitate the same? If ‘development’ wasn’t a notorious and negative word why has a benign and positive word ‘sustainable’ pre-fixed to it unmindful of this the bill cites developmental imperatives with the assumption of its innocence.

The argument of Cabinet Committee on Economic Affairs that acquisition of land for industrial and urban development is a necessity — is driven by corporate funding of ruling and opposition parties since 2003 when the ban on company donations was lifted. Clause 59 of the Land Acquisition Rehabilitation and Resettlement Bill, 2011 deals with the provision of ‘penalty for obstructing acquisition of land’ seems to be about punishing the protesters and dissenters.

It reads: “Whoever willfully obstructs any person in doing any of the acts authorised by section 9 or section 15, or willfully fills up, destroys, damages or displaces any trench or mark made under section 15, shall, on conviction before a magistrate, be liable to imprisonment for any term not exceeding one month, or to fine not exceeding five hundred rupees, or to both.” Ramesh argues that this is required because “Land markets in India are imperfect.”

Is it a coincidence that Ramesh who is also a member of the Cabinet Committee on Unique Identification Authority of India related issues has introduced UID provision in Section 10 and 36 of the Land Titling Bill, 2011?

Will CCEA and CCUIDAI reveal all the proposed legislations that are aimed at creating property based democracy?

Can parliament, all its standing committees, state governments and state’s legislative bodies ever exchange notes to unearth the legislative web being woven at the behest of transnational financial institutions before it is too late?

In the backdrop of such unanswered questions, the 70-page LARR Bill has 74 Sections and 3 schedules in its English version to deal with the grievance accumulated since 1894. Clause 69 of the bill deals with the ‘Return of Unutilised Land’.

It reads: “(1) The land acquired under this Act shall not be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the appropriate government, and any change in purpose made in violation of this provision shall be void and shall render such land and structures attached to it liable to be reverted to the land owner.

(2) When any land or part thereof, acquired under this act remains unutilised for a period of five years from the date of taking over the possession, the same shall return to the land owner by reversion;

(3) The appropriate government shall return the unutilised land or part thereof, as the case may be, to the original owner of the land from whom it was acquired subject to the refund of one fourth of the amount of compensation paid to him along with the interest on such amount at such rate, as may be specified by the appropriate government, from the date of payment of compensation to him till the refund of such amount; and

(4) The person to whom the land is returned being the owner of the land shall be entitled to all such title and rights in relation to such land from which he has been divested on the acquisition of such land.”

Dr Usha Ramanathan, a noted jurist, asks, “What happens when they (the displaced) are unable to buy it back” when the unutilised land is returned. This section permits the transfer of land for another public purpose. This particular clause is not acceptable and has to be removed from the draft bill. Unmindful of widespread concern in the academia and among citizens, the bill has been approved in a tearing hurry by the Union Cabinet which gives rise to valid questions about player behind the curtain in the backdrop of declaration of assets by billionaire ministers.

Schedule I of the bill deals with “compensation for land owners”, Schedule II deals with the “list of rehabilitation and resettlement entitlements for all the affected families (both land owners and the families whose livelihood is primarily dependent on land acquired) in addition to those provided in Schedule I and Schedule III deal with “provision of infrastructural amenities” for resettlement of populations “to minimise the trauma involved in displacement.”

Referring to schedule II, Ramaswamy R Iyer, former secretary, union water resources aptly concludes that “The principle of ‘land for land’ has been abandoned” because it is applied for irrigation projects alone that too with a provision that is inferior to the ones made for the displaced in the Sardar Sarovar Project. The Cabinet Committee on Economic Affairs appears to be under undue influence from the funders of ruling political parties both at the centre and the states to exclude projects for power, mining, flood management, SEZ, urban development and several other ‘multi-purpose’ projects that cause displacement. So far neither the ministry nor the CCEA has responded to it.

The bill fails to address the question of transfer of agricultural land to non-agricultural use and the implications for food security although it does refer to multi-cropped irrigated land but it is hardly sufficient. It seems to be pursuing the path of regressive Bihar Agriculture Land (Conversion for Non Agriculture Purposes) Act, 2010 which is facing bitter opposition especially in cases where widely acknowledged and awarded fertile lands are being acquired for hazardous asbestos factories amidst paid news journalism and studied silence of opposition parties in the state.

If this is the fate of a state government whose head keeps referring to Ram Manohar Lohia’s four tier governance, it is understandable why most of the socialist experiments become an exercise in sophistry. Instead of ensuring that private purchases of agricultural land be subject of state regulation from the point of view of land-use, water-use, soil health and food security, such legislations are indulging in a myopic exercise of according priority to creation of financial wealth at any non-financial cost and risks.

Section 2 of the LARR Bill deal with the definition of the expression “public purpose” includes- (i) the provision of land for strategic purposes relating to naval, military, air force and armed forces of the Union or any work vital to national security or defence of India or state police, safety of the people; (ii) the provision of land for infrastructure, industrialisation and urbanisation projects of the appropriate government, where the benefits largely accrue to the general public; (iii) the provision of village or urban sites, acquisition of land for the project affected people, planned development or improvement of village sites, provision of land for residential purpose to the poor, government administered educational and health schemes, (iv) the provision of land for any other purpose useful to the general public, including land for companies, for which at least 80 per cent of the project affected people have given their consent through a prior informed process; provided that where a private company after having purchased part of the land needed for a project, for public purpose, seeks the intervention of the appropriate government to acquire the balance of the land it shall be bound by rehabilitation and resettlement provisions of this Act for the land already acquired through private negotiations and it shall be bound by all provisions of this Act for the balance area sought to be acquired. (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State”. This definition of “public purpose” or common good to destroys “the distinction between private use and public use”.

In a text “Some notes on the Draft Land Acquisition and Rehabilitation Bill 2011”, Ramanathan states that “The eminent domain power in India is not, and in any event should not be, so wide” wherein an inverted Robin Hood is created which takes from the poor to give to the rich.

The draconian black law of 1894 which is proposed to be replaced in the backdrop of massive bitter opposition to Special Economic Zones and environmentally damaging projects in Jaitapur, Haripur, Ghaziabad, Andhra Pradesh, Tamil Nadu, Karnataka, Bihar and Goa where lessons have not been learnt from the bloodshed and violence in Nandigram and Singur.

The proposal to amend the Atomic Energy Act, 1962 in the aftermath of West Bengal’s denunciation of Haripur nuclear power project in the aftermath of Fukushima and abandonment of nuclear power projects in Germany, Japan and other countries is uncalled for. But strangely, the Nuclear Safety Regulatory Authority Bill, 2011 was introduced on September 7 itself without any public comments on the Bill. Both these Bills should be deferred till it provides for moratorium on acquisition of land for nuclear power projects.

Unlike in US, the Supreme Court of India observed, “The Act, which was enacted more than 116 years ago for facilitating the acquisition of land. However, in the recent years, the country has witnessed a new phenomena. Large tracts of land have been acquired in rural parts of the country in the name of development and transferred to private entrepreneurs, who have utilised the same for construction of multi-storied complexes, commercial centers and for setting up industrial units. Similarly, large scale acquisitions have been made on behalf of the companies by invoking the provisions contained in Part VII of the Act. The resultant effect of these acquisitions is that the land owners, who were doing agricultural operations and other ancillary activities in rural areas, have been deprived of the only source of their livelihood. Majority of them do not have any idea about their constitutional and legal rights, which can be enforced by availing the constitutional remedies under Articles 32 and 226 of the Constitution.”

If the bills are not sensitive to these observations in a context of corporate funding to political parties even if passed by the Parliament, they can be struck down by the apex court as contrary to the Preamble of our Constitution.

Admittedly, there is “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired” but the role of futures markets in land within India and the land being acquired in African countries does not find any mention. Also “asymmetry of power and information” is acknowledged only to be ignored as if it’s a merely an exercise in lip-service. The bill ignores how acquisition of land affects acquisition of water as well. The ministry has failed to provide a white paper on the impact of 1894 Act since its enactment before independence and after independence. A compensation and rehabilitation regime is needed with “reference not to the nature of the project but to the nature of the impact.”

The parliamentary standing committee on rural development must ask for the status of the total land acquired and the total number of internally displaced persons till the introduction of the Bill in Parliament. Without such a paper and data, the ministry’s rush to get the bill passed is an act in haste which generations to come will repent and it will be considered a monumental failure of Ramesh if he does not undertake rigorous outreach before arriving at a research based decision.

Has his ministry bothered to send this bill to all the sarpanchs and mukhiyas of the country in their language to ascertain its implications and provide suggestions? The passage of the bill in its current shape must be deferred till this is done. The minister can check with his ministry, there is a precedent in this regard, a rural development minister had written such letters to sarpanchs.

This author was shown one such letter in a panchayat at a gram sabha meeting of Mendha Lekha, Dhanora tehsil in Gadchiroli district in July-August 2001. It would indeed be a sad commentary on the ministry and the standing committee headed by Sumitra Mahajan of Bhartiya Janata Party if they fail to genuinely reach out to villages before finalising the bill. The bill must factor in the provisions of Article 243 (G) of the Indian Constitution and Panchayat Extension to the Scheduled Areas (PESA) Act, 1996. It must desist from “forced industrialisation” and forced urbanisation.

This is required to deal with an uncertain future being manufactured by real estate, food and water companies to safeguard agricultural land from being grabbed by powerful national and transnational companies that can undermine parliament, state assemblies, gram sabhas, panchayats, zilla parishads and the government for good by depriving us of our food sovereignty. If our legislature can legislate on land use, water use, land acquisition, rehabilitation, resettlement and land titling with the memory of country’s past share in world trade, it will be acting to restore the sovereignty of our Parliament and ensure that companies of all ilk remain subservient to its legislative will.

ORIGIN: http://www.rediff.com/news/column/why-the-land-acquisition-bill-is-flawed/20110913.htm

 


 

Constitution versus Reality in India

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PREAMBLE OF INDIAN CONSTITUTION

India has been surpassing or probably under-passing the vast public upsurge and constitutional multi-interpretations these days.

Our preamble of the constitution says “we the people of India adopt enact and give to ourselves this constitution” and at the same time it’s also said that “the parliament is supreme”. Now the crisis arises, who is supreme? “We the people” or “the parliament (which is elected by we the people)”?
But again, another question arises, who constitutes “we the people”. I? you? They?, who??
Did the crowd of people gathered in Ramlila grounds few days back, or the crowds in various other cities of the country, or the total of them combined, qualify to be called themselves as “we the people”?
May be “yes” may be “no”.
But let’s think again, who was supposed to be “we the people” during the time when this constitution was enacted in India? It will be quite indigestible to accept that the millions of illiterate, poor and starving population, who constituted almost 90 percent of Indian population during the time of enactment of this constitution, were aware of the literatures inside it. The constitution had the sanctity of “we the people” not on it’s technical provisions, but on its moral grounds, of it being designed and compiled by “our government” and not “the British”. Moral beliefs, that this constitution being made by “our” parliamentarians is “ours” and hence will work for our upliftment and empowerment; that this constitution will never defy our rights of living a happy life as the British did.
An extraordinary interpretation of the constitution by the Supreme Court of India said, “The basic structure” of the constitution can not be changed. So a new group of words “basic structure”! What is it? Basic structure refers not to the technical grounds of the write-ups in our constitution, but to the moral grounds of it; and the moral grounds of our constitution refers to the same degree of belief that “we the people” had during the time of its enactment.
The Anna hazare blow, which spread like a jungle fire in India, a few days back, made it very much clear that there is a widespread trust deficit regarding the holiness of our parliamentarians. The declination of the politician’s status has not been sudden, rather episodic. It has not only been the recent exposure of scams that fuelled the masses but also the irregularities prevailing in the government offices since the time our government took over from British.
They called it “the second fight for independence”. Was it?
This mass eruption of public anguish was, in a way, designed and planned by our constitution; after all it was not indigenous, it is a blend of copies of the constitution prevailing in western world, largely USA and UK. Not doubting of the great work of Baba Bhimrao Ambedkar, because it was the only option available with us after the British sucked off the majority of our physical and intellectual resources to the level of starvation. The constitution we adopted was no doubtably a good base for us to start with, but we missed “Indianizing” it sufficiently.
Even though we added directive principles of states policy in our constitution, we have been sluggish in implementing it. Didn’t we miss the level of accountability and cross-interaction of people with governance as it was during The great emperor Ashoka’s reign? Didn’t we miss out the mechanisms to judge the morality, holiness and capabilities of a “mantri”(minister) before assigning him the seat as was mentioned in kautilya’s Arthashashtra? Didn’t we miss the mechanisms adopted by The great Guptas, who almost proved their reign to be in comparison with the reign of The great Lord Ram?
India’s glorious history has not been only gold and diamonds, but much more than it, we told the world how to administer such a large area of land with the highest degree of happiness, faith and trust; and it’s a strange irony today that we ourselves have lost a grip on it.
The British with about 200 years of colonial exploitation tried to flush out all our glorious legacies including gold and diamonds, and embedded a new terminology in our dictionary called “British legacy”. I call it a “British interference”. It’s the result of the same “British interference” which made us loose our links with our glorious legacy of administration.
In my school exam, I once copied an answer from my neighbor’s sheet, the teacher while checking the papers asked me to stand up, gave me my answer sheet and told me to explain the meaning of that answer. Reluctantly i tried to explain it in my words, but was constantly looking here and there in panic and was praying for no cross questions. I am sure I was neither able to understand nor explain completely what I had written.
Is the situation same here? Here in the parliament?
Justice Saumitra sen, being in the middle of the way of his removal through the parliamentary procedures, offers his resignation, leading again to a debate whether to his removal proceedings should still be processed or it should be suspended out? Who knows the answers?
We the people? The parliamentarians? Or the mentors of the original constitution?
Or if no one knows, let’s give it to the Supreme Court to think about what our basic structure of constitution says.
There are laws prevailing in our country which still insist on payment of penalties of some 10 rupees for certain crimes. Who will give an explanation to it? The Supreme Court?

I am afraid it may not.

Is it high time we make a substantial change in our constitutional books and encrypt the basic structure of governance as it was in our legacy?
India is not merely a head count of 1.2 billion people, neither it’s only some thick books of history, nor is it only the 7thlargest landscape in the world. India is in blood of its people, and that blood runs from the great lord ram to Guptas, Marathas, cholas, chalukyas and Mauryas; and Indians will not accept any other form of governance except what they have been offered in the ancient past. The recent mass Indian upsurge with its active interference in parliamentary affairs has yet been an example for it.
Calling it the second war of independence?
It is said, defeating “your enemies” will give you physical independence but defeating the “enemies in you” gives you total independence. So calling it the first war of independence, too holds a strong justification.
But the question still persists, was this rise for a war of independence, or rather a yet another stronger demonstration of the episodic resentment? Will the “British interference” still cast its shadows on our constitutional provisions? Or the gestation period “Indianization” is over?
India will surely and compulsively modify its long hailed constitution to offer the basic structures of it in genuine reality. The time seems close. But may not be close too.
COURTESY: OYE TIMES

Politicians’ wealth

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A.G.Noorani in DAWN

THE people have every right to know the financial resources of persons in public life and how they came to acquire their wealth. India’s Prevention of Corruption Act 1988 makes it a criminal offence for a “public servant” to be in possession of “pecuniary resources or property disproportionate to his known sources of income”.

Once this fact is established, the onus shifts on the suspect to “satisfactorily account” for his wealth. The Act applies not only to ministers, civil servants, judges and persons in state-funded institutions, but also to “any person who holds an office by virtue of which he is authorised or required to perform any public duty”. That includes MPs and MLAs. The minimum sentence for the offence, called “criminal misconduct”, is one year; the maximum is seven years. No limit is prescribed for the fine that may be imposed. It can run up to crores. The Act, unfortunately, does not provide for confiscation of property.

In the 1960s, C. Rajagopalachari, India’s first Indian governor-general, dubbed politicians as gentlemen without any ostensible means of livelihood who are liable to be rounded up by any magistrate on a charge of vagrancy. Right now, the Indian politician’s standing in public esteem is pretty low.

On July 12, in Hyderabad, the Andhra Pradesh High Court ordered the Central Bureau of Investigation to conduct a preliminary inquiry into allegations of possession of “disproportionate assets” — the media’s shorthand for the definition in the Act — and dubious business deals against India’s richest MP, Jagan Mohan Reddy. He is son of Y.S.R. Reddy, the state’s powerful chief minister, who died in a helicopter crash. He did not enjoy an enviable reputation.

The case was initiated through a mere letter to the high court by a state minister. He alleged that the MP had amassed enormous wealth by misuse of power when his father was chief minister during 2004-9. The 38-year-old Jagan Mohan has declared assets worth Rs365.68 crores.

A former chief minister of Haryana, Om Prakash Chautala, is facing prosecution in a “disproportionate assets” case, in company with two sons, both MLAs. So is the present chief minister of Tamil Nadu, J. Jayalalithaa.

All MPs and MLAs are required by law to disclose, by affidavit on oath, at the time of filing their nomination papers for elections, information on four points; namely, their educational qualifications, past convictions or acquittals in a criminal case, any pending case in which the court has taken cognisance and his assets and liabilities as well of those of the spouse.

This requirement was imposed on May 2, 2002 by the Supreme Court of India on a petition filed by an Association for Democratic Reforms. There has been no comprehensive reform of election law since 1966. Shamed by the court order, parliament amended the law to give legislative sanction to those requirements imposed by the Supreme Court.

Legislation is necessary but no law can cure political malaise. In 2004, the electorate voted to the Lok Sabha (lower House of Parliament) of 542 members as many as 100 MPs who had been charge-sheeted in criminal cases. Some had been charged with rape, murder and dacoity. Last May, 825 MLAs were elected to the legislative assemblies of four states which went to the polls. The total self-declared value of their assets was Rs2,128 crore — 231 of them were into their second term. They had increased their assets by 169 per cent, on an average, between 2006 and 2011. Whether the increase was due to business acumen of sheer genius or less worthy skills is something they alone can explain. But no one has demanded that they all be asked to explain.

Two questions arise. Of what avail the disclosures, if the people voted for known criminals or the notoriously corrupt?

Secondly, must not the law follow up on the disclosures? The framing of charges against a person must itself be made a disqualification. As for the corrupt, surely a “disproportionate assets” case can be slapped on every legislator who, on his own disclosures, amassed wealth after his election. The onus of proving innocence then shifts on him.

This proves the wisdom of Dr B.R. Ambedkar’s words in the constituent assembly on Dec 31, 1948. As chairman of the drafting committee, he replied to a suggestion that disclosure of assets be made a constitutional obligation. He pointed out that there must be provision for a prosecution after the second disclosure arouses suspicion. That was done in 2002. But the situation has not improved, since the law enforcement is pathetic.

Evidently political parties need the corrupt to provide the moneys and criminals for use as strong men. The only effective check is exposure by the media; relentless and documented.

We need books of the like of The Triumph of the Political Class by Peter Oborne. He describes how “the political class” cutting across the parties, unites to enrich itself, pillage the state and claim special privileges. “MPs seem to think that their status demands special treatment at airports upgrades on flights, advantageous treatment, from commercial firms, while allowing them to display uncalled for rudeness to ordinary people.”

Financial disclosures only reveal the tip of the hideous iceberg; but enough to warn that the polity suffers from a malaise and the special privileges of the ‘political class’ must be removed.

Laws and courts can help only up to a point. The only effective cure is popular awareness and — self-assertion. It is an awesome responsibility on the media.