Thursday, October 16, 2008

Book Review: Smoke and Mirrors - Pallavi Aiyar

China holds a deep fascination for India's urban elite. This is the China of double digit growth and unending capital inflows, of shining new cities, six lane expressways and spanking clean airports. This is also what India's elite aspire for.

The inevitable comparison with China is ever present in the Indian media - why is our Gurgoan not like Pudong or why is India able to attract only a fraction of the investment that is flowing into China? So is the desire to match China in different spheres - in the splendour of the just staged Olympic Games, in the recent flawless demonstration of prowess in space technology.

While China's development story is common knowledge, what is less well understood is what it is that really makes China tick. From where does the government derive its legitimacy? What is the relationship between the citizens and the government? Are there stresses and strains in this relationship? How do the subjects view the changes being brought about in their lives? Is the development in China sustainable?Read full review..

Friday, September 26, 2008

Land acquisition - colonial times to the present

This story traces the evolution of this phenomenon of eviction and land acquisition by the state under various pretexts starting with colonial India.

Land Acquisition from colonial times to the present

A report published by Oxford titled "INDIA INFRASTRUCTURE REPORT 2009 Land—A Critical Resource for Infrastructure" extensively reproduces parts of this article and can be seen here

Thursday, September 25, 2008

The Commonwealth games village and the Yamuna riverbed


In the name of housing Commonwealth Games participants for a mere 10 days, an exclusive gated community is being established on the Yamuna banks, in areas previously protected as green spaces in the heart of Delhi.

A run on the Yamuna Banks

Treehugger has reproduced the article here

Tuesday, August 12, 2008

Edible oil policy

The edible oil policy that reportedly favoured Indian consumers at the cost of farmers has come back to bite the consumers with a vengeance. And with the US and Europe embracing biofuels, things could get much worse.

Edible oil on the boil

Mercury poisoning of HUL workers in Kodaikanal

Down to Earth has not responded with either a yes or a no to my article "Corporate irresponsibility and Government indifference" after writing to say that it was under consideration.

Well, I must have my say, so here goes:


The shocking public revelation by Kodaikanal citizens that mercury contaminated waste from the Hindustan Lever Ltd. (HLL) thermometer factory was being dumped at a local scrap yard served as the trigger for Government and corporate action to close the factory in 2001. The factory had been relocated from the US 18 years earlier, with the Government permitting its location at the edge of the ecologically sensitive Pambar Shola, the watershed for the Pambarai River, as a ‘non-polluting’ entity.

Kodaikanal citizens had become aware of the extreme hazards posed by mercury to health and environment through the work of Greenpeace and the Palani Hills Conservation Council.

Coastal area regulation - the law and practice

Plans are on to develop low-cost housing on 2,167 hectares of saltpans in Mumbai that are presently under the control of the salt department, a wing of the central government.

At a recent meeting of a high-powered group of ministers, it was decided that “efforts of various central and state agencies be coordinated and urgent measures evolved for using these lands for rehabilitation of slumdwellers” (Financial Express, May 29, 2008). The land freed from the existing slums would be divided up for private real estate and public infrastructure projects.

One of the ‘urgent measures’ needed to make this possible is a change in the environment protection regulations governing coastal land use -- these regulations, as applied to Mumbai, prohibit development in all but 240 hectares of the saltpan lands in question.

The change is already underway. The Ministry of Environment and Forests (MoEF) made public a draft Coastal Management Zone notification in May 2008 that will replace the current coastal regulations with a far more permissive regime allowing changes in coastal land use such as that planned for Mumbai’s saltpans.Read the complete article here

Horse trading and the law

There is wide-spread agreement that horse trading in the political arena is immoral and undesirable, and should be illegal. But what is the actual position of law on this? A look at the legal treatment of an incident from the past throws up some surprises.Read complete article

Case backlog and government litigation

The individual pitted against the state

“At his own expense, he must challenge the vast panoply of state power, with all its resources in personnel, money and legal talent ….”

A clerk of the Central Public Works Department is fatally injured in a road accident by an Army vehicle used by the Chief of Army Staff in 1994. Rajwati, his wife, has to file a suit against Army Head Quarters and the Defence Ministry for compensation, which she is awarded 14 years later, in March 2008. more..

This article is cited as a reference in the globalintegrity.org report for 2009 while answering the question - "In practice, are judicial decisions enforced by the state?"

Whose land is 'wasteland'?

Republican India has not broken with colonial law and policy even in the 21st century, continuing with the policy of considering as public land all land not assessed for revenue and taking over such land after declaring it ‘forest’ or ‘wasteland’ irrespective of the history of occupation and use.

Infochange Agenda article

The politics of land acquisition

( Link to original article in Seminar)

                    Of public purpose and private profit


LAND in a single piece, capable of being fenced off so that it can be treated as a ‘foreign territory’, is the fundamental precondition of the ‘Special Economic Zone’. The SEZ policy (currently) calls for very large parcels of land, with a minimum area of 10 sq km and extending up to 50 sq km for the so called multi-product zones. It is to acquire such large tracts of land that private industry, of necessity, needs the help of the state. State governments, vying with one another to attract large business houses, are more than willing to oblige.
Coercive land acquisition by the state in recent times has generated strong opposition and extreme bitterness. In Nandigram, people have fought at great personal cost to retain their lands and homes. In Maharashtra, farmers have stalled (at least temporarily) land acquisition for the Maha-Mumbai and Navi Mumbai SEZs; in Orissa, villagers continue to offer unyielding resistance to the POSCO SEZ.
Sensing the widespread nature of the opposition and keen to move ahead with its SEZ policy, the government has proposed major amendments to the acquisition framework with the Land Acquisition (Amendment) Bill, 2007 and the companion Rehabilitation and Resettlement Bill, 2007 both tabled in Parliament this December. The government claims that the new laws ‘will go a long way in striking a balance between the need for land for development and other public purposes and protecting the interests of the persons whose lands are statutorily acquired.’1
The land acquisition framework in India is over a hundred years old. To appreciate the problems inherent in it and to be able to evaluate the governments claims, it is necessary to recapture the colonial compulsions that went into its construction and the experience of its use in 59 years of the republic.
The principle of eminent domain – that all land within its territory ultimately belongs to the state – was used by the British colonial state in the 19th century to progressively claim as state property all land without identified private ownership. The colonial administration itself assigned private ownership titles in cultivated land through elaborate survey and settlement operations. The land claimed by the state included ‘waste’ lands – village commons that were not cultivated and other uncultivated or uncultivable land farther from the villages – as well as all the forests.
The same principle was invoked to justify the right of the state to expropriate land, even if it was in private ownership, when it was needed for some ‘larger public good’. Early regulations on land acquisition were made by the East India Company to acquire land for roads, canals and other public works. With the establishment of the railway networks, railways were also declared to be public works.
In 1870, the colonial lawmakers took steps to prettify the law. What was earlier called the ‘Indian Expropriation Act’ was renamed the ‘Land Acquisition Act’. The procedure for acquiring land and steps for determining monetary compensation were described. The judiciary was accorded the role of arbitrator in case of dispute over the compensation. The law continued to be fine-tuned and took the consolidated form of the Land Acquisition Act, 1894.

What were the considerations of the colonial legislators while framing the law to make it more acceptable?2 Firstly, the law had to be seen as moral. Privately held land could be expropriated by the state, but only to serve some ‘public purpose’, for performing some public good or for satisfying a public need. However, what constituted ‘public purpose’ was not defined in the law, but left as a prerogative of the government to decide. The acquisition itself could not be questioned as the state was exercising its right of eminent domain.
Secondly, the acquisition had to follow due process. The process provided opportunity to people to prove their interest in a specific acquisition, to appeal against the acquisition with the administration and to seek court arbitration if they were dissatisfied with the compensation.
Thirdly, the forcible acquisition had to be seen as a sale, with all persons with rights in the acquired property seen to be fairly compensated. The monetary compensation was determined on the ‘market value’ of the property. An additional monetary compensation was offered to compensate for the involuntary nature of the transaction and the hardship imposed.
The colonial legislators were very clear that only the loss of individual property rights was to be compensated. Rights of people dependent on, but not owning, acquired land were outside the consideration of the law.
After the end of colonial rule, the republican Constitution of India, by article 372, allowed all colonial laws to remain in force until they were repealed by Parliament. The Land Acquisition Act of 1894, in an essentially unchanged form, continues to be used by the state, with unfailing regularity for the innumerable land requirements of the state, public sector enterprise and private enterprise. The practice of the last 60 years has thrown up many issues with the legislation that have a severe negative impact on the life of the people affected by an acquisition and these are discussed below.

In the early years of the republic, the Law Commission set up by the Government of India was asked to review the land acquisition act. The commission reported that a large number of suggestions were received urging that the term ‘public purpose’ be clearly and exhaustively defined by the act. It however, argued in its 10th report in 1958 that it was ‘neither possible nor expedient to attempt an exhaustive definition of public purposes’ and further that all that could be attempted in the law was ‘to provide an inclusive definition so as to endow it with sufficient elasticity to enable the courts to interpret the meaning of the expression ‘public purpose’ according to the needs of the situation.’3
The definition of the term ‘public purpose’ was kept sufficiently elastic in all subsequent amendments of the law.

The Nehru government not only saw large-scale state land acquisition for public infrastructure and public sector industry but also acquisition for private industry. The law allowed acquisition for private companies only if they met certain restrictive conditions. In a specific case of land acquisition for a textile manufacturing company, the Supreme Court ruled (R.L. Arora vs State of U.P., 1962)4 that the acquisition did not meet the provisions of the law. Justifying its ruling, it stated that ‘it could not be the intention of the legislature that the government should be made a general agent for companies to acquire lands for them in order that the owners of companies may be able to carry on their activities for private profit.’
The government responded by amending the law in 1962 to relax the conditions and allow land to be acquired for a private company ‘which is engaged or is taking steps for engaging itself in any industry or work for a public purpose.’5 Once again, the elasticity of the term ‘public purpose’ was used to enlarge the powers of government to acquire land for private enterprises. 
Over the years, the courts held land acquisition by the state for a variety of projects of private enterprise for diverse purposes – construction of a students home, houses for members of a cooperative society, manufacture of alumina bricks, an electrochemical factory, a sugar factory, etc – to promote ‘public purpose’.6 It became clear that government’s declaration of ‘public purpose’ could not really be challenged.
The unbridled power for coercive acquisition available with governments has been used to support the development model that is in fashion at a certain point in time. In recent years this has meant, increasingly, acquisition of land for large corporations, like for a Tata Motors plant in Singur, and a 100 sq km extant Reliance SEZ in Haryana. Questions are now being commonly asked as to how the government can justify land acquisition for extremely profitable large corporations as a ‘public purpose’ and why the government has to become a land-acquiring agent for these corporations.
Clearly, there is a strong case for the law to be reformed to limit the powers of government under eminent domain by clearly defining the ‘public purpose’ for which it can resort to coercive acquisition.

The acquisition process continues to follow the methods developed by an authoritarian colonial administration, bringing years of uncertainty and fear into the lives of those affected. Once the state decides to acquire land, it tends to avoids development work in that area. Getting the best compensation possible often involves going to the courts; only those with the ability to understand the nuances of the law, engage lawyers and work the system are able to get the benefits while others, usually the poor and uneducated, are shortchanged.
The monetary compensation offered to landowning farmers is also a major cause of dissatisfaction. The compensation is linked to ‘market value’ as determined by recent, recorded transactions in land, though it is common knowledge that these are always undervalued. Land prices also shoot up after permitted land use in an area is changed by the government from agricultural to industrial or residential. The original owners however are denied the benefit of the revaluation of land.

The typical Indian village consists of many categories of persons other than landowning peasants and tenant farmers – agricultural labourers, artisans and others servicing the farmers’ needs. They are not entitled by the law to any compensation, though their livelihoods may be affected by acquisition. When land acquisition covers common property resources of villages such as village grazing lands and village forests, the loss of use rights is not compensated; the people most affected are the poorest who depend on these for their livelihood needs. The same is true of tribal and forest communities, their rights over land not being recognized in the absence of paper documents.
Large scale acquisition, such as for dams and large SEZs, often includes homestead land and causes physical displacement of the population of entire villages in addition to the loss of land and livelihood. The colonial acquisition law does not engage itself with issues such as resettlement or rehabilitation of the displaced.
In the past, even while displacement on an enormous scale occurred due to large infrastructure projects of the state, resettlement was left to the mercy of the administrators of the very projects responsible for the displacement. The first draft of a national rehabilitation policy appeared only in 1993, timed with the adoption of the new economic policy, and, since then, has been reformulated several times. However, the experience over the years has shown that existence of a policy is no guarantee that actual rehabilitation will occur on the ground. The people displaced by the Sardar Sarovar dam on the Narmada, among many others, stand testimony to the low importance attached to policy.
There is then a need for the law to be reformed to ensure that when powers of eminent domain are exercised, it looks at the entirety of loss of rights of all the affected people, not just of those owning or occupying property. Further, the loss of rights because of an acquisition needs to be compensated by the granting of new rights through resettlement and rehabilitation, not just by monetary compensation.

How does the new framework proposed by the government treat the issue of ‘public purpose’ and acquisition for private companies, an issue central to the current controversy?7, 8
An amendment to the acquisition law makes it explicit that requirements of a private company for land for a ‘purpose useful to the general public’, can be considered a ‘public purpose’ (with the limitation that government will acquire a maximum of 30% of the land needed). The phrase ‘purpose useful to the general public’ has sufficient elasticity to encompass almost any land use. This change makes it easier for government to acquire land for companies without fear of legal challenge – the government certifies the total land requirement, declares its purpose to be ‘useful to the public’ and uses its rights of eminent domain.

Further, contrary to claims, the government does not limit its powers to acquire land for companies with this amendment. An inclusive definition of ‘public purpose’ (with differently worded inclusions) has been retained in the law, where an exhaustive and limiting definition was called for. The door is left open for the government to acquire any extent of land for any purpose it sees fit, if past experience is reckoned.
The new framework gives little away on compensation issues. It recognizes that land value increases with change of land use after acquisition, but leaves it to the collector to ‘take into account’ such change while determining the compensation. Thus it is a government decision as to what part of the likely increase in value on change of land use after acquisition is to be passed on to the landowner.
Finally, how does the new framework fare on recognizing rights of people affected by an acquisition and making good the loss of rights?
The distinction between property rights on the one hand and other rights – such as the right to livelihood – on the other, is clearly made. The loss of property rights is addressed by the land acquisition law, while the loss of other rights is sought to be addressed by the resettlement and rehabilitation policy, now presented in the form of a law.
The benefits promised by the Resettlement and Rehabilitation Law come with strong conditionality. Most benefits are not available to non-property owners – such as agricultural workers, artisans etc – who are usually the poorest sections, unless a large number of families are simultaneously affected by an acquisition.
Land and employment are both offered only if available. People cannot seek redress with the judiciary but can only appeal to levels of the special resettlement and rehabilitation bureaucracy. Thus government can forcibly acquire land but cannot be held accountable to provide other land as a replacement; government can render a person unemployed but cannot be held accountable to provide alternate employment.

The proposed amendments to the land acquisition law appear to be a hasty effort by the government to sidestep the issues and allow it to proceed with its plans for setting up giant SEZs. The law does not limit the powers of government to acquire land for what can be seen to be purposes of private profit. The law does not guarantee that all those who lose their dwellings and livelihood due to such acquisition will be compensated with alternate dwellings and livelihoods. It remains to be seen if this will be acceptable to the people targeted for displacement.

Footnotes:
1. From the statement of Objects and Reasons provided with The Land Acquisition (Amendment) Bill, 2007. Available at the URL: http://www.prsindia.org/docs/bills/1197003951/1197003952_Land_20Acq.pdf
2. The following discussion on the notions of ‘morality’, ‘fair play’, etc in colonial law draws on the paper by Ramanathan (1996).
3. Law Commission of India, 10th report, p. 18. Available at the URL: http://lawcommissionofindia.nic.in/1-50/Report10.pdf
4. R.L. Arora vs State of U.P., AIR 1962 SC 764.
5. See Sec. 40 (1) (aa) of the Land Acquisition Act.
6. P.K. Sarkar, Law of Acquisition of Land in India, 2nd edition, Eastern Law House, New Delhi, 2007, pp. 1184-1188.
7. The Land Acquisition (Amendment) Bill, 2007. Available at the URL:http://www. prsindia.org/docs/bills/1197003951/1197003952_Land_20Acq.pdf
8. The Resettlement and Rehabilitation Bill, 2007. Available at the URL: http://www.prsindia.org/docs/bills/1197003987/1197003987_Rehab_20and_20settlement.pdf

References:
Usha Ramanathan, ‘Displacement and the Law’, Economic and Political Weekly, Vol 31, 1996.
Ravi Hemadri, Harsh Mander and Vijay Nagraj, ‘Dams, Displacement, Policy and Law in India’, contributing paper to the World Commission on Dams, 1999. Available at the URL: http://www.dams.org/docs/kbase/contrib/soc213.pdf

Links:
National Council for Teacher Education Syllabus: Diploma in Elementary Education

Forced displacement without rehabilitation

Acquiring land for a 'public purpose' is claimed as a right by the state under its powers of eminent domain, but it accepts no duty to resettle and rehabilitate all the affected citizens. Instead, rehabilitation is presented as an act of benevolence Read complete article

This piece has been used extensively in a critique of the R&R bill by the NGO Equations


Also extensively quoted in Draft report of Committee on State Agrarian Relations and unfinished task of land reforms. Reproduced below.




Right to displace, but no duty to rehabilitate


Shortly before the winter session of Parliament ended, the government tabled the Rehabilitation and Resettlement Bill, 2007. The bill seeks to "provide for the rehabilitation and resettlement of persons affected by the acquisition of land for projects of public purpose or involuntary displacement due to any other reason". The bill comes at a time when concerted efforts are being made by both the central and state governments to increase economic activity through the deployment of domestic and foreign private capital on a gigantic scale in new infrastructure and industry.
Land as an incentive
Various models of engagement have been proposed by Governments to attract large investors including the 'Special Economic Zones', 'Private-Public partnerships' and 'Build-Operate-and-Transfer'. These models provide incentives that may include tax and duty concessions, simplified regulations and provisions for infrastructure facilities, but most importantly, land made available by the state at desirable locations and low prices. To make the proposition more attractive, land is promised not just for the requirements of the planned economic activity, but also for other uses such as developing residential townships, business districts or entertainment hubs. Examples of such projects are the Bangalore Mysore Infrastructure Corridor, the proposed Reliance Haryana Special Economic Zone and the recently announced Ganga Expressway.
The process of acquisition of large tracts of land in different parts of the country has brought hundreds of village communities face to face with the threat of imminent displacement and loss of livelihood. The past history of the treatment meted out to displaced people does not inspire any confidence among the targeted communities. There is widespread and determined resistance to land acquisition and it is in this context that the Government has come out with the R&R bill along with a companion bill to amend the Land Acquisition Act.

Displacement and the land acquisition law
The history of large scale land acquisition and consequent displacement goes back to the 1950s, when the newly independent republic embarked on large state owned projects for irrigation, power, steel and heavy engineering that were meant to occupy the 'towering heights of the economy'. As an illustration of the scale of displacement, just the reservoir of the Hirakud dam, India's first major river valley project, whose foundation stone was laid by Jawaharlal Nehru in 1948 and which was completed in 1957, occupied an area of 727 sq km.
Land for even such gigantic projects was (and continues to be) acquired using the coercive powers provided by the colonial Land Acquisition Act. It narrowly defined persons affected by an acquisition to be either land owners or occupiers (tenants), and limited compensation to purely monetary terms. However, large scale acquisition covered entire villages and their common property resources - tanks, grazing lands and village forests. The typical Indian village consists of many categories of persons other than landowning peasants and tenant farmers - agricultural labourers, artisans and others servicing the farmers' needs - who, even while not owning land, depend on it directly or indirectly. The law did not recognize their rights as affected parties.
Nor did it recognize or compensate for the expropriation of common property resources that played a major role in supporting the livelihood of the villagers, specially the poorer ones. Returning to the example of Hirakud, official figures that counted only land title holders put the number of people displaced at 110,000; figures from academics, that also accounted for people providing services and those who lived off common property resources, put the number at 180,000.
The Land Acquisition Act, when applied to large scale acquisitions resulted in displacement and deprivation of means of livelihood for the affected people, but did not give them the right to resettlement or rehabilitation. Even those who were compensated monetarily were hard put to replace their lost land assets and regain their means of livelihood. In the absence of any rehabilitation plan, people displaced by Hirakud occupied whatever open lands they could locate. These lands were not legally theirs, making them vulnerable to constant harassment by officials.
Limitations of policy
While Hirakud illustrates the situation that prevailed in the 1950s, the Narmada Sardar Sarovar project is illustrative of how things have changed over the last five decades. The project, when completed, is expected to create a reservoir over 400 sq km submerging 245 villages. The government's estimate of the number of families affected by the project has continuously changed with time - from around 12,000 in 1988 when the Planning Commission looked at the investment for the project, to over 40,000 by 1994. The Narmada Bachao Andolan (NBA) estimates that the figure is higher and points to the non inclusion of petty traders, village shop-keepers and fishing families as well as families affected by canals and other subsidiary works in the Government figures.
The Narmada Tribunal, in its award, decided the sharing of waters between states also specified a rehabilitation policy. Construction work on the Sardar Sarovar Project on the Narmada started in 1987. The Narmada Control Authority (NCA), with representation from central and state Governments, was charged with overseeing the rehabilitation and resettlement of project affected people. The project itself was given conditional clearance by the Government, one of the conditions being that construction of the dam would keep pace with rehabilitation and resettlement.
Despite the existence of R&R policies and packages and a machinery for ensuring its implementation, rehabilitation measures were inadequate. After protests by the affected people gained international attention, the World Bank, which had planned to finance the project, appointed an expert committee - the Morse committee - to provide an independent assessment of the project. After extensive investigations, the committee stated in its report in 1992: "We think that the Sardar Sarovar Projects as they stand are flawed, that resettlement and rehabilitation of all those displaced by the projects is not possible under the prevailing circumstances ...". The World Bank subsequently withdrew from the project. Meanwhile, the construction of the dam continued with scant regard to rehabilitation issues.

After exhausting avenues of working with the authorities, the NBA went to the Supreme Court with a Public Interest Litigation in 1994 asking for a suspension of construction pending a comprehensive review of the project on various grounds including serious failures in rehabilitation and consequent hardship and suffering of project affected people.
The Supreme Court granted an interim stay on construction in 1995, but in its eventual judgement of October 2000, coming after 6 years, rejected the NBA petition and allowed the construction to proceed. The Court expressed satisfaction with the machinery of the Government for rehabilitation and saw no reason to doubt the independence of this machinery. It also held the view that the machinery was to be presumed to be working: "there is no reason now to assume that these authorities will not function properly. In our opinion the Court should have no role to play." It reiterated that construction should keep pace with implementation of the relief and rehabilitation and take place only on the clearance from the NCA.
The above judgement and subsequent orders of the Supreme Court relating to this dispute seem to derive from the understanding that policy implementation is the prerogative of the executive, with the courts having no role to play.
The Narmada Bachao Andolan continues to hold that R&R lags behind construction and does not conform to even the declared policy, and this view is supported by many writers, academics, former civil servants and others.
The experience of the Sardar Sarovar and many other projects over the last 60 years reveals the inadequacy of policy - at the project, company, state or even national level - to address the legal neglect of displacement and the rights of the affected people, particularly those without land or tenancy. Policy is not enforceable. Will the courts provide relief when the promises contained in a policy are not adhered to? Explaining how courts look at policy as opposed to statute law, Usha Ramanathan writes: "Statute law where it defines (or denies) rights is binding. Policy on the other hand, has at best a persuasive value. Courts are bound by statements in the law, but are free to be guided by policy or to ignore it."
There has been general recognition among those concerned with displacement that the law must look at the entirety of loss of rights of the affected, not just the loss of ownership and tenancy rights and that resettlement and rehabilitation should be as much the consideration of law as the land acquisition that necessitates them.
The proposed R&R legislation
These are, then, some of the issues under debate as the Rehabilitation and Resettlement bill 2007 is being introduced.
The bill seeks to establish an R&R administration at the central and state levels. This administration will be responsible for planning for and implementing R&R. The bill describes the process to be followed while planning and implementing R&R and prescribes how 'affected areas' and 'affected families' are to be identified and the quantum of benefits for different categories of the latter.
Civil courts are barred by the bill from entertaining suits on matters that are the responsibility of the R&R administration. Identification of 'affected families', the resettlement plan including land and amenities to be provided, and the implementation of the plan are under the R&R administration. What happens if benefits described in the bill are not forthcoming? Grievances may not be taken to courts but only to an ombudsman appointed by the government. In this respect, the situation will be no different from what prevails today - beneficiaries and benefits of R&R will be determined solely by the Government.

Perhaps the only recourse to courts allowed by the bill is in case of violation of the R&R process that it specifies.
Conditional benefits
The bill prescribes conditions for project affected families to qualify as beneficiaries and makes the benefits themselves conditional on external circumstances.
An area will be notified as an 'affected area' "where the appropriate Government is of the opinion that there is likely to be involuntary displacement of four hundred or more families en masse in plain areas" (the number is less for hilly and tribal areas). R&R planning is mandated by the bill only for families living in such 'affected areas'. A family that neither owns nor occupies (tenants) land such as that of an agricultural labourer, artisan, small shop keeper, etc will be considered to be an 'affected family' and entitled to any R&R benefits only if it is displaced from a notified 'affected area'.
Thus the opinion of the Government on the scale of the displacement will decide if there will be planned R&R of the displaced. The scale of displacement will determine if families who neither own nor occupy land (who are the poorest) will be entitled to any benefits at all - unconscionable from the standpoint of justice. Other conditions also apply to these families in particular, such as the need to prove residence for 5 years in the affected area in order to claim benefits, revealing the distrust of the Government towards this section of society.
There are many other conditions attached to the benefits. Land will be allotted to 'affected families' whose agricultural land has been acquired "if Government land is available in the resettlement area". Preference will be given in jobs to 'affected families', "subject to the availability of vacancies and suitability of the affected person for the employment".
The bill also talks about a 'social impact assessment' that will be required when there is large scale displacement, an idea similar to the 'environment impact assessment' that is now mandatory for projects. The details of how this will work are not clear from the bill and it is early to comment if and how this will benefit people affected by a project.
Conclusion
While acquiring land for a 'public purpose', with its attendant displacement and denial of livelihood, is claimed as a right of the state under its powers of eminent domain, the R&R bill does not accept that it is the unconditional duty of the state to resettle and rehabilitate all the affected citizens so that they are able to maintain, if not improve, their current standard of living. Instead, rehabilitation is presented as an act of benevolence of the state, a measure to mitigate the suffering of the affected citizens to the extent permitted by the external circumstances and subject to various conditions.
By this stance, involuntary displacement caused by the planned exercise of the coercive powers of the state is equated with displacement caused by chance natural calamity, both deserving of the same response from the state. Also, the discretionary powers vested in the Government, the numerous conditions associated with rehabilitation and resettlement and the un-enforceability of various provisions all reduce the proposed legislation to little more than a statement of policy.

04 January 2008

"Criminal Tribes"

I have been struggling to find a home for this baby since 25 Sept 2007. Sent the piece to several magazines without getting a reply. Each time, I edit the piece before sending it to a new address. It looks good to me. Finally a piece of good fortune. InfoChange India publishes this piece on 26th October 2007

Presumed guilty: India's denotified tribes


In September, a mob in Bihar lynched 10 members of a denotified tribe, taking them for thieves. A probe later revealed that they were not thieves. Sixty million people in India belonging to denotified and nomadic tribes continue to suffer such discrimination
A September 13, 2007 PTI report that was carried in a number of newspapers and periodicals stated: "Exacting savage retribution for thefts in their area, a mob in Bihar's Vaishali district today lynched 10 thieves and critically wounded another, allegedly in the presence of the police, in yet another case of people taking the law into their own hands."
The story continued to unfold in the media in the days that followed. The victims were identified as Kureris, a semi-nomadic community belonging to Tajpur Banjara village in Samastipur district. There was brief national outrage when television channels beamed images of several half-burnt bodies, washed onto the banks of the Ganga, being eaten by dogs. It was later established that these were the bodies of victims of the lynching. The priest appointed to preside over the state-organised cremations of the victims revealed that police and administration officials had just dumped the bodies into the river. A high-level probe by the state police later found that the men were not thieves; they were just passing through the village when they were attacked by a mob.
The National Commission for Denotified, Nomadic and Semi-Nomadic Tribes sent a team to investigate the incident. The team found that there was no evidence to suggest that the people lynched had committed a robbery or were thieves. The commission was not surprised to find that the local police had extorted a 'confession' from the traumatised lone survivor of the lynching, to quickly 'solve' the case. It said in its report: "In the commission's view this is a very common occurrence among nomadic communities. Whenever a burglary or a murder takes place, the police raids the habitations of nomadic (and denotified) communities and their members are arbitrarily picked up by the police to show immediate 'results'." The commission, however, found it shocking that not just the police but the media too initially reported that the victims of the lynching were thieves.
This gruesome incident raises several questions. Who are these communities of nomads and semi-nomads? How do they survive? What lies beneath the apparently deep-rooted prejudice against these people that seems to pervade villagers, police and the administration? One must turn to history for some clues.
According to some estimates India has over 200 tribes and communities, comprising at least 60 million people who fall under the government-assigned category 'denotified and nomadic tribes' (some figures put the number as high as 120 million; there has as yet been no census of India's nomadic population). While some of these communities are also classified as scheduled tribes, scheduled castes and other backward classes (OBCs), others are left entirely out of these categories (the Kureri nomadic community is also classified as a scheduled caste in Bihar).
In pre-colonial times, nomadic communities sustained themselves through a number of livelihood options including cattle-rearing, itinerant trade, and crafts. Carrying items for barter -- spices, salt, honey, herbs, trinkets crafted out of silver, earthenware, mats, etc -- on the backs of their cattle, they traded with whoever they came across on their travels. (The traditional occupation of the Kureris is reported to be catching birds and collecting honey.)
The nomads had a good relationship with most villagers. Dr Meena Radhakrishna, an anthropologist who has researched nomadic tribes, writes in The Hindu (July 16, 2000) that "the nomadic communities were not just useful to the villagers on a day-to-day basis, they were also acknowledged for averting frequent grain shortages and famine-like conditions in villages where the crop had failed. In addition, among them were musicians, acrobats, dancers, tightrope walkers, jugglers and fortune tellers. On the whole, they were considered a welcome and colourful change in routine whenever they visited or camped near a village."
Colonial rule had a disastrous effect on India's nomadic communities. Their trading activities were badly affected by the introduction of the railways and the expansion of both the road and rail network by the British, in the 1850s. In the 1860s, the British began taking control of the forests and common pastures, armed with the Indian Forest Act of 1865. With this, nomadic communities lost access to grazing lands as well as minor forest produce needed for their sustenance and their craft.
The British colonial state looked with extreme suspicion at tribal communities that did not participate in settled commodity production. The resistance of some forest-based tribal communities to occupation of their forests also made them enemies of the state. In 1871, the colonial state passed the notorious Criminal Tribes Act to deal with these 'suspect' communities -- nomadic or forest-based -- and prepared a list of communities that were 'notified' under the Act as being 'criminal'. Members of these communities were seen to be "addicted to the systematic commission of non-bailable offences". The Act provided for registration of members, restrictions on their place of residence, and their 'reform' by confinement in special camps where low-paid work could be extracted from them. By 1921, the Criminal Tribes Act was extended to all parts of India and new communities were continuously added to the list of 'criminal tribes'.
After Independence, the government, realising that the Criminal Tribes Act was a shameful colonial legacy, repealed the Act in 1952. Tribes that were 'notified' became 'denotified'. However, the government did not simultaneously take any steps towards finding a livelihood for members of de-notified and nomadic tribes. They were left to their own devices.
In a retrograde step, in 1959, new laws in the form of the Habitual Offenders Act were introduced in various states. Even whilst eschewing branding people of certain communities 'born criminals', these Acts retained many of the provisions of the Criminal Tribes Act such as registration, restrictions on movement, and incarceration in 'corrective settlements' earmarked for 'habitual offenders'. The bias against nomads lingered, as is apparent in the way the Acts enjoined the government to look at whether a person's occupation was "conducive to an honest and settled way of life... not merely a pretence for the purpose of facilitating commission of offences," while exercising its power to restrict the movement of the person. The police routinely used the Habitual Offenders Act against members of nomadic and denotified communities.
In February 2000, the National Human Rights Commission recommended that the Habitual Offenders Act be repealed. More recently, in March 2007, the United Nations Committee on the Elimination of Racial Discrimination stated: "The Committee is concerned that the so-called denotified and nomadic tribes, which were listed for their alleged 'criminal tendencies' under the former Criminal Tribes Act (1871), continue to be stigmatised under the Habitual Offenders Act... The Committee recommends that the State party repeal the Habitual Offenders Act and effectively rehabilitate the denotified and nomadic tribes concerned." The offensive Act has not been repealed till date.
Their being branded as 'criminals' during the long period of British rule, and the absence of rehabilitation following Independence, has left a mark on the way most Indians continue to view nomadic communities. They live as outcasts, outside villages; their children are not allowed into schools; they are denied steady jobs. Villagers and even administration officials consider them criminals, and they remain easy targets for the police.
This then is the backdrop to incidents such as the lynching of the 10 Kureri youth. The government will no doubt fix the blame and 'punish' local police officials through transfers. Perhaps a few individuals from the 'mob' will also be punished. But what is needed is action and redress at a much deeper level by the State to end the prejudice, discrimination and abuse of nomadic communities, including repealing ancient colonial laws. More importantly, these communities must be afforded proper economic rehabilitation as a pre-condition for their social rehabilitation. Can we afford to let 60 million of our compatriots remain "the suffering spectators of the India travelling towards the 21st century," as writer Mahasweta Devi puts it?

SEZ's and the land acquisition law

My India Together article on this subject can be seen here. Reproduced below


SEZs: A history of injustice and abuse



The current government overdrive on Special Economic Zones has once again brought to the fore the question of where the line is to be drawn between public good and private profit. Whereas the law allows Central and State governments, as well as private developers, to set up SEZs, in practice it is the latter group that has proposed the majority of these zones. That being the case, a number of questions have come up, that point to the divergence between the role that governments are supposed to play in promoting public good, and their actual conduct in facilitating the establishment of SEZs.
Some of these questions are now centre-stage in the debate. Is it right for state governments to expropriate land from farmers or should land acquisition be the responsibility of private developers and subject to market forces? Who does the state bear greater responsibility towards - the farmers and other villagers who will lose their livelihoods as a result of establishment of these zones, or the private developers of these zones?
Two principal questions
Acquiring the land is the biggest incentive held out to private SEZ developers by the state governments. The state involvement becomes more apparent in the larger zones that are in the land acquisition phase. Nandigram is by now famous as an example of a failed forced acquisition. However, this has not deterred the West Bengal government from looking at other areas in the state for the same SEZ and for acquisition for the Haldia SEZ. In Maharashtra, the state government has transferred lands acquired by CIDCO to the Navi-Mumbai SEZ, while it has been actively acquiring land for Reliance for the Maha-Mumbai SEZ. And in the north, there is the example of the Reliance Haryana SEZ where the state government and Reliance together have signed agreement for developing what is billed as the largest SEZ in India.
All the above cases reinforce the idea that large sized SEZs implicitly depend on the state to provide land. Governments, increasingly challenged over their roles in acquiring land for private development, argue that SEZs are needed for the 'development' of their states, and that they need to do everything possible to attract the promoters of these zones to their own state. Whether SEZs will bring in the promised benefits is an entirely different discussion. What is examined here is the injustice of using the colonial land acquisition law that has become such a favourite instrument in the hands of state governments.
A second pertinent question relates to the economic philosophy behind SEZs. In the last two decades, we have witnessed a profusion of support for 'free markets'. The Prime Minister is hailed routinely as the primary architect of pro-market 'reforms' during this period. But SEZs challenge that reading of recent history, and prompts us to ask whether 'pro-business' - rather than 'pro-market' - is a more accurate description of attidues to the economy within government since the early 90s. In the case of SEZs, governments are practically over-ruling market forces in determing the price of land being acquired. The additional irony is that the private industry that is usually vocal against the 'licence and permit raj' desires, nay, needs, the state governments to acquire land.
Eminent domain
The origins of the land acquisition act can be traced to 1824, when the British colonial power felt the need to codify in law what was earlier undisguised forcible seizure of land. The Bengal Regulation I of 1824 was based on the principle of 'eminent domain' - the power of the state to take any private property for public use - and enabled land to be acquired for roads, canals and other public works. This was extended to cover land acquisition for the railways in 1850. Separate laws that had evolved in the territories around Calcutta, Bombay and Madras were consolidated into a single law applicable to all the territories of British India by 1857.
In 1870, the rules for determination of compensation for the land acquired based on 'market value' were defined, a 'solatium' (additional compensation over market value in view of the involuntary nature of parting with the land) introduced, and the right of appeal to civil court in case of dispute over compensation provided. This law evolved over a period of time under British rule and took the consolidated form of the 'Land Acquisition Act 1894', which has remained almost unchanged to this day.

What were the key concerns of the colonial legislators? The state had to be able to acquire land for a 'public purpose' quickly and easily; excessive compensation, seen as wastage of government resources, was to be avoided. The law was framed with exactly the above concerns in view. The imperial stance was evident in one simple fact - 'public purpose' was neither defined nor elaborated by the law; it was sufficient for the state to declare it to be so. Further, elaborate rules were framed for determining compensation and ensuring that payouts deemed to be 'excessive' did not happen.
The end of colonial rule in 1947 and the republican constitution of 1950 did not bring about any significant change in the land acquisition law. The Constitution of India, by article 372, allowed all colonial laws to remain in force unless they were explicitly repealed. There was an enormous increase in infrastructure building and industrial activities by the state as compared to the colonial period. Numerous large dams, power plants, mines, steel and heavy engineering plants came up over land acquired using the 1894 law, causing a massive displacement of small farmers, agricultural labour, landless village workers and artisans and forest dwellers. The number of people displaced by projects and those whose livelihood was affected between 1951 and 1995 has been estimated at 50 million by some social scientists based on detailed studies.
Rehabilitation, inadequate in the best of cases, was mostly absent. Compensation followed the requirements of the colonial land law and was available to only those who could show ownership of land. Compensation was pegged to 'market' value; however, given that the land market in India was not developed for a number of reasons, and given that recorded transactions invariably undervalued real market rates - and do so to this day - this did not address the issue of fair compensation. With the result that the acquirer of land continued to be privileged under the law, as in colonial times.
'Public purpose' and private industry
Public sector and government projects were not the only purposes for which land was forcibly acquired by the state. Even in the Nehruvian period, land was being acquired for private industry by state governments. A landmark judgement (R.L Aurora vs. State of U.P, 1962) of the Supreme Court held that the government could not justify acquiring land for a textile machinery manufacturer as a 'public purpose'. It further declared that "the Land Acquisition Act did not contemplate that the Government should be made a general agent for companies to acquire lands for them for their private profit".
That might have been an opportunity to revise the injustices of the Act, but in the event, the Nehru government chose to do the opposite. The immediate response of the government was to amend the law through the Land Acquisition (Amendment) Act 1962 to allow land to be acquired for a company "which is engaged in or is taking steps for engaging in any industry or work for a public purpose" . This was applied with retrospective effect and superseded the earlier Supreme Court judgement. Thus the Nehruvian era state succeeded in preserving its authority for acquiring land for private industry. Subsequently, in the courts, a variety of projects of private enterprise for diverse purposes - houses for members of a co-operative society, manufacture of alumina bricks, construction of a students home, an electro-chemical factory, a sugar factory, etc. - were all held to promote 'public purpose', and the land acquisition by the state for these enterprises upheld.
Further modifications were made to the law during the Indira Gandhi regime by the Land Acquisition (Amendment) Act 1984. This provided some minor relief for persons whose land was to be acquired in the form of an improved solatium, and some time limits on the acquisition process. However, the major demand heard over the years, that 'public purpose' be clearly and unambiguously defined and limited in the law, was not addressed. Instead, the inclusive definition of 'public purpose' was widened to include acquisition of land for 'planned development' and subsequent sale to private enterprise. With this, the death knell for original possessors of land was completely rung; once the government set eyes on someone's land and intended to acquire it, it mattered very little what the purpose was.
This enormous power available to governments led to many blatant abuses. For example, the West Bengal Government acquired level fertile agricultural land in West Medinipur for Tata Metaliks in 1992, leading to dispossessing small and marginal farmers, in preference to undulating wasteland that was available nearby. In the case of the Century Textiles Pig Iron Plant in the same area, the state government acquired about 525 acres of land for a proposed plant in 1996. However, till 2003 the factory had not come up and neither had all the original land owners been fully compensated; the company had decided that pig iron production was no longer profitable and refused to pay the compensation and take over the land .
Singur is another example of the same government acquiring prime agricultural land for a car factory, in this case, for Tata Motors. State governments have not hesitated to acquire land even (mis)using draconian emergency powers available in the Land Acquisition Act. A case in point is the Tamilnadu government's acquisition of land near Pulicat Lake north of Chennai for a petro-chemical complex.


01 October 2007

Political parties - policies and programs?

My first attempt to publish a piece (25th July 2007) is unceremoniously rejected by The Hindu in double quick time - I get a rejection mail within an hour of sending the writeup. Not sure why they did not like it - it was meant for the Sunday 'opinions' page. Anyway, here it is:

What Quality Indian Democracy?
Every school child is taught to take pride in India being ‘the world’s largest democracy’. What is commonly understood of our democracy is that it is a representational democracy, that is, citizens elect representatives who have the responsibility to act in the people’s interest. Representatives typically belong to Political Parties. Political Parties provide a basis for the electorate to exercise their choice by presenting a set of policies and programs that they commit to. The ‘choice’ offered to the citizen therefore is not only the personal characteristics of the candidate (his personality, caste, religion, connections, record of social service, etc) but most importantly the policies and programs that his party commits to. At least, that is how it is supposed to work.While the major political parties in India may commit to populist programs and sometimes even implement them when in power, it is at the level of policy debate that one sees a real vacuum. Our political parties shy away from discussion and debate on issues of public policy that have far reaching consequences for the country - either because they do not have a defined view, do not care to make public their views or are simply not bothered by these issues as they do not have a direct bearing on their ability to come to or stay in power. Instead, they do their best to fill the public mind space with sterile discussion. Witness the level of political discussion over the last month on candidates for the post of president and vice president, the energies spent by the nations leading politicians and the parties they represent crying hoarse in favour of or against some candidate. Now that the dust of the ‘battle’ has subsided, can someone explain how the choice of the president will make a difference to the woman or man on the street?What are some of the burning policy issues of the day on which there should be more discussion? If we open our morning paper or weekly magazine we can’t miss the issues starting at your face. Indian agriculture is in a deep crisis. Everyone knows about the farmers suicides, but what policies (of the past) have brought on this situation and what policies need to be set in place to prevent these in future? We would like to hear the Congress, the BJP and others spell out their positions on this. And the farmers suicides is just a portent of much worse things to come. Food grain production has reached a plateau over the last few years. How is India to be fed in 2020 when an estimated 400 million tons of food grains will be required which represents a 100% increase over current production levels? Again what policies do we need to ensure food security in the future? Yes, food security is not just an issue of the past as some would like to have it. And yes, we would like to hear our national political parties debate and come up with their positions.Leaving agriculture for the moment, let us look at one major problem common to all urban areas in India, even the most richly endowed metropolises – water supply and sanitation. How are the water needs of our cities to be met? We are just beginning to understand how precious water resources are. What do we need to do to safeguard our water resources? Can we continue to use water the same way in future as we have done in the past? Can our political parties state their positions and engage in a debate so that the Indian people become aware of the options?Today, public policy that needs to be widely debated is being left to the wisdom and judgement of a few bureaucrats to formulate. But for some committed members of civil society and the press who take the initiative to question and cross swords with the bureaucracy, there would be no ‘second opinion’. Much as we expect the quality of goods and services to improve, can we not expect a higher quality of informed opinion and debate from Indian political parties on issues that matter for India?