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 lae 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.

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

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

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

"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

SEZ's and the land acquisition law

My India Together article on this subject can be found here

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?