Some believe that by encouraging states to enact their own versions of the land acquisition law, the central government is diluting the law. In this article, Dhanmanjiri Sathe, Professor of Economics at Savitribai Phule Pune University, argues that states have much more experience and expertise in land acquisition. Given the diversity in development across states, it is only prudent that the law be customised to suit local requirements.

There have been arguments offered in the recent past claiming a dilution of the land acquisition law through misuse of constitutional provisions. Any criticism must take into account the spirit behind the exceptions.

The need for state-specificity

The Constitution allows for a State law to override the Central law in case of the Concurrent list¹ if the former gets presidential assent. This exception was made to provide for a ‘genuine hurdle’ in implementing (or genuine necessity to deviate from) the Central law due to challenges peculiar to a region. What this genuine hurdle is, is a point that can be debated.

For example, one could argue that due to the staggering differences in growth and development in various states in India such as, say, Bihar and Tamil Nadu, it seems natural that both states would need to have a different law with respect to land acquisition. One could even go further and see that even in a state like Uttar Pradesh (UP), within an overarching State law there could be a need for a different ‘Special Purpose Vehicle’ (SPV) in eastern UP and in western UP. Further, there is no reason to assume that the State’s law would be inherently inferior to the Central law per se. In fact, it has been found that the states have much more experience and expertise in land acquisition and have also given, at times, better compensation than stipulated by the Central law.

The second issue seems to be with respect to the particular Central law, that is, the Land Acquisition, Rehabilitation and Resettlement (LARR) Act, 2013. The charge is that the Social Impact Assessment (SIA)2 requirement and the Consent Clause3 in the Act have been diluted by various State laws. It needs to be mentioned that the LARR Act itself diluted the SIA requirement. Section 7(4):9 of the Act states that even if the SIA authority and the Expert Group4 reject a particular land acquisition, the government can proceed with the acquisition as long as “its reasons for doing so are recorded in writing”. It does not take much to imagine that this provision would have been regularly used. So, the edifice of SIA has been a facade right from the beginning. In case of the Consent Clause, the law does not make consent necessary for land acquired for government projects. Though many states have strict consent clauses, the LARR Act’s requirement is (usually) a higher percentage of the population accepting acquisition than what the State laws have stipulated. Eminent domain (that is, forcible acquisition of land/property for public good) is a right that most of the States have across the world; and one sees no reason to grudge it to the Indian State.

Because some people may not want to sell their land while others are willing, forcible acquisition is needed. What should be the relative percentage of ‘non-willing’ versus ‘willing’ could be stipulated by law but it is primarily a political issue. This is because even if the law is followed, the land-losers (say 15%) may still not want to sell the land. The political party in power would have to use sincere efforts and excellent communication skills along with an acceptable compensation package to see a project through. If this is not happening, it is the duty of the opposition party to raise a voice against injustice being committed. Admittedly, this is a somewhat rosy picture of democracy but a picture, nevertheless, towards which we should strive. Also, the ‘non-willing’ have a right to go to the courts and ask for redress under cases of forcible acquisitions.

The politics of presidential assent

The third issue is focussed on the President’s role. Presidential assent is not to be a formality as far as State laws under Article 254(2) are concerned. Based on a Supreme Court ruling, the President would need to engage in “active application of mind” before giving assent. This doesn’t necessarily imply that the President needs to reject the State laws, at least in this case.

The fact of the matter is that this is a peculiar case wherein the State legislatures and the Central government both want certain kinds of changes in the law. Besides, was this law passed in 2013 with an eye to the forthcoming elections? If it were so, then it is a very dangerous precedent.

Before the LARR Act was passed, the states had their own laws and the Land Acquisition Act, 1894, was hardly ever used. Even now, the states are free to pass their own laws and so the situation is back to square one. Needless to add, better-governed states will have less problems with respect to acquisitions and will stay the course on growth path. Other states will need to think hard.

This article first appeared in The Hindu: http://www.thehindu.com/opinion/op-ed/The-buck-stops-with-the-States/article16672068.ece

Notes:

1. Concurrent list in the Constitution of India has subjects in which both Parliament and state legislatures have jurisdiction. The Constitution provides primacy to Parliament on Concurrent list items: if there is a conflict, a Central law will override a state law.
2. SIA assesses certain aspects of the acquisition such as whether the project serves a public purpose, whether the minimum area that is required is being acquired, and the social impact of the acquisition.
3. The Act requires consent of 70% of landholders for PPP (public private partnership) projects, and 80% for private projects.
4. The appropriate government is mandated to ensure that the SIA report is evaluated by an independent multi-disciplinary Expert Group, as may be constituted by it.