Counting the Law

How many central statutes are there in all? Bibek Debroy estimates in this ET piece the number to be between 2500 and 3000. The oldest are the 'Bengal Districts Act' and 'Bengal Indigo Contracts Act' both dating to 1836! There are 140 laws that go back to the 19th century and another 200 that predate independence. No one has a count of state level statues. That means that there is no compendium of all the laws applicable at the state level.

So how do the law enforcement agencies keep track of this huge number? How many statues are actually enforced, even occasionally?

Public servants, corruption, and legal immunity

Plagued by numerous corruption scandals, the Government has constituted a group of ministers to look at administrative and legislative measures to tackle corruption, including a review of laws that provide immunity to public servants. Interestingly, the last two occasions that the Government moved to modify the anti-corruption laws was to strengthen the legal immunity offered to public servants.

The provision of legal immunities to public servants goes back to the formative years of the present Indian state structure. The Code of Criminal Procedure (CrPC) adopted in the early 1860’s required previous sanction of the government to prosecute judges and important public servants (those “not removable from office without the sanction of the government”) for offences committed in the discharge of their official duties. By 1898, the Code also contained a provision for special courts whereby the government could take control of all aspects of the trial by specifying the court, the judge, the manner of trial and the offences to be tried for.

Providing immunity to its officials was a matter of great importance for the colonial state. The Government of India Act, 1935, prohibited the legislature from even considering changes to the immunity provisions in the CrPC without the prior sanction of the Governor General. Further, sanctions for prosecution of immunized officials was taken away from lower officials and vested with the topmost officials of the colonial government - none other than the Governor General (for Federal officials) and Governor (for State officials). The legal immunities offered to public servants were understandable from the perspective that the colonial state wanted its functionaries to be accountable only to itself. The needs of maintaining control over a vast and hostile continent dictated this.

Immunity provisions for public servants have continued in the law after the advent of a republican constitution – more specifically, in sec. 197 of the CrPC as well as in the Prevention of Corruption Act (PCA), 1947 and its later replacement, PCA, 1988. According to details provided by CBI, as of December 2010, it was waiting for permission to prosecute 320 officers. The CBI does not reveal how many requests have been denied over the years.

Fear of vexatious prosecution?

The justifications for immunity provisions have evolved since independence. The Law Commission articulated arguments in support of the immunity provisions in these words in 1969:

“The ultimate justification for the protection conferred by sec. 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the government to determine from that point of view the question of the expediency of prosecuting any public servant”

On its recommendations, the CrPC was amended in 1973 to extend the immunity provisions to retired public servants as well. More recently, in late 2008, the UPA Government tried to amend the PCA, 1988 to provide immunity provisions to retired public servants in line with similar provisions in the CrPC providing as a justification the need to provide a “safeguard to a public servant from vexatious prosecution”. The amendments to the PCA were passed in the Lok Sabha but could not clear the 14^th Rajya Sabha in its dying days.

Fear of harassment of state functionaries by ‘private persons harbouring a grievance’ by starting prosecution variously described as ‘needless’, ‘false’, ‘frivolous’, ‘speculative’, ‘vexatious’ or ‘mala fide’ came to be the accepted justification for the previous sanction immunity provisions. However, this fear could not have been based on the actual experience of public servants as the immunity provisions had been there ever since the criminal codes were put in place in the 1860’s. If prosecution that could be characterized as above was indeed prevalent and used to harass ordinary citizens, would it not have been in order to take additional steps to discourage vexatious prosecution intended to harass not just public servants, but also the ordinary citizens?

These questions, it seems, were never opened up for public debate.

Greater protection for ‘decision makers’

Governments were not satisfied with even this level discretionary power. Corruption involving ‘decision making level’ government officials and members of the political executive usually in collusion with private companies (‘grand corruption’ in the words of the recent Central Vigilance Commission Draft National Anti-Corruption Strategy document) was an extremely sensitive matter and governments wanted discretionary powers to disallow even investigation of such cases. 

A Congress government in 1986 took the first step to introduce another layer of protection for ‘decision making level officers’ – officers of level Joint Secretary and above - through an executive order given to the Central Bureau of Investigation (CBI) known as the ‘Single Directive’. This infamous directive prohibited the CBI from even investigating such officers without prior permission from the government. The state governments also followed the Centres lead by requiring their investigating agencies to obtain permission prior to prosecuting senior officers.

Over a decade later, having witnessed the total frustration of investigations into ‘grand corruption’ scandals associated with the Narasimha Rao government, the Supreme Court quashed the ‘single directive’ observing that

“(t)he law does not classify offenders differently for treatment there under, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone”

Strongly feeling the necessity to intervene in what were administrative issues, the Supreme Court directed the Government to make the CBI and the Enforcement Directorate more autonomous and isolated from “extraneous influences” and even suggested ways to make that happen. A weak coalition government attempted to reintroduce the ‘single directive’ provision through an ordinance in 1998, but the Supreme Court negated this attempt.

It was left to a BJP lead NDA government to bring back the substance of the ‘single directive’, now in the form of law, through the CVC Act of 2003.

The saga of the ‘single directive’ is not over. A petition challenging the constitutional validity of a law requiring government approval for investigation of only senior officials is currently pending with the Supreme Court. The Congress lead UPA Government has opposed the petition.

Benefits of discretionary power

Clearly, major political parties across the spectrum have supported strengthening of immunity provisions at different times. The reasons for this support are not far to seek.

The immunity provisions put absolute and unaccountable discretionary powers in the hands of the political executive. Political parties in government routinely use this power in a partisan manner to secure a political advantage over parties who are their adversary. Discretionary power in the hands of the political executive also helps develop the nexus between the political executive and the corrupt or pliant bureaucrat, a necessary condition for “grand corruption”.

The reasons for getting rid or at least limiting the legal immunities provided to public servants will be clear. The Draft of the National Anti-Corruption Strategy also recommends this. However, having enjoyed the ‘benefits’ of these discretionary powers for decades, it is extremely unlikely that the major political parties will vote to give up these powers voluntarily.

This piece was published in the February 2011 issues of One India One People

The Law of contempt and freedom of speech

This piece has been recommended as a teaching and learning resource by the National Law University, Delhi

FREE SPEECH

Is 'contempt of court' blocking justice?

It is impermissible under the law to 'scandalise the courts'. But is this vague restraint contrary to the guarantees of liberty given to citizens in the Constitution? Kannan Kasturi examines the notion of 'contempt of court'.

 

12 December 2010 -

The law relating to contempt of courts is once again in focus. Supreme Court lawyer Prashant Bhushan is facing contempt proceedings in the apex court for making allegations of corruption against some Supreme Court judges in an interview in September 2009. Tarun Tejpal, Managing Editor of Tehelka is also facing charges for publishing this interview. In a recent development, former Union Law Minister Shanti Bhushan - Prashant's father - has also attempted to implead himself in the case by repeating the same allegations.

The law in question, The Contempt of Courts Act, 1971 defines 'contempt', allows for a summary trial, and prescribes the maximum punishment for those found guilty - imprisonment up to six months together with a fine. Disobeying court orders, interfering with judicial proceedings, or obstructing the administration of justice all amount to contempt of court. If those three are fairly easy to understand, there is a fourth provision which leaves great room for discretion - scandalising or lowering the authority of the court - and this has been the problem provision in many cases.

Courts need the power to see that their directives are implemented, that the functioning of the courts is not disrupted, that parties in a trial are not threatened, that witnesses or court officials are not offered inducements and so on; in short, the power is needed to ensure that the judicial process works. This is an objective of the law of contempt. However, Dr Rajeev Dhavan, an eminent lawyer who has written extensively on contempt and the press explains, "(t)he overall purpose of the law of contempt is not just to make the judicial process work, but to protect, sustain and enhance the majesty of courts and the justice system." The contempt of 'scandalising the court', it seems, has much to do with this purpose.

Pre-independence law

The Act of 1971 does not clarify what constitutes scandalising the court. Its predecessors, the Act of 1952 and the Act of 1926, did not even define contempt. However, courts in colonial India had adopted the idea of contempt even earlier from English common law and assumed powers for punishing it following the precedent of English courts. A couple of examples will illustrate the sensitivity of the colonial courts to any public criticism of judges and the judiciary.

The Bengalee published an article in 1883 after the conclusion of a case criticising thezubberdasti (high handedness) of a judge of the Calcutta High Court in ordering a sacred Hindu Saligram to be physically produced in court. The court found the article to be contemptuous and defamatory of the judge, and sentenced the editor of the newspaper, Surendra Nath Banerjee, to prison.

The Amrit Bazar Patrika reported a speech made in 1935 in the Legislative Council, which contained some general criticism of the judges of the Calcutta High Court. The following extract from the report came in for scrutiny by the Court:

"We are glad to find that in the Bengal Legislative Council yesterday there was a discussion about administration of the Calcutta High Court. Every word of Mr. N.K. Basu was true. It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence, which at one time attracted the admiration of the whole country. The old order of things has vanished away. We wish the Chief Justice and the Judges appreciate the sentiments of the public. The generation that has gone by should be an ideal to them."

While the Court could not take any action on the proceedings in the legislative council, it determined that the article in the Amrit Bazar Patrika was capable of "great public mischief" and sentenced the editor to prison for contempt of court.

The promise of the Constitution

Article 19 of the Constitution of India guaranteed the right to freedom of speech and expression, but also allowed restrictions on this right to be imposed by law, including any Law of Contempt, provided only that the restrictions were reasonable. Articles 129 and 215 of the Constitution explicitly spelt out the power of the Supreme Court and High Courts to punish someone for contempt.

The law, when it was ready - The Contempt of Courts Act, 1952 that replaced the Act of 1926 - did not define 'contempt'. This omission on the part of the legislature was apparently deliberate, and designed to maintain the elastic character of the law, to enable its application over a wide field by the courts. Clearly, the immediate concern of the legislature of that period was to preserve continuity in the powers of the judiciary.

An interesting contempt prosecution from this period is that of the Telugu weekly, Praja Rajyam, published at Nellore, for an article it carried under the caption: "Is the Sub-Magistrate, Kovvur, corrupt?" The article stated that the person in question was known in the locality as a bribe taker, cited instances where he had either taken bribes or put parties to undue harassment and concluded with the appeal: "Will the Collector enquire into the matter and allay the public of their fears?"

The Publisher and Managing Editor of the weekly appealed to the Supreme Court against a Madras High Court judgment finding him guilty of contempt. Dismissing the appeal (heard in 1952), a Constitution bench of the Supreme Court explained why the editor was indeed guilty of contempt:

"The article in question is a scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.

The Government acknowledged, under pressure of public opinion, that the law of contempt is "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens.

The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein. He admitted that the statement was based on hearsay. Rumours may have reached him from various sources, but before he published the article, it was incumbent upon him as a reasonable man to attempt to verify the information he received and ascertain, as far as he could whether the facts were true or mere concocted lies. He does not appear to have made any endeavor in this direction. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defense at all in a proceeding for contempt."

The judgment identified the issues that were important in the defense against contempt of scandalizing the court - 'public interest', 'truth', and 'good faith'.

It took a decade for the Government to acknowledge, under pressure of public opinion, that the law of contempt was "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens - the right to personal liberty and the right to freedom of expression. The Sanyal Committee was set up in 1961 to examine the law and suggest reforms. It took another decade for the recommendations of this committee to be implemented in the Contempt of Courts Act, 1971.

The Act of 1971 offered some guidelines for reporting and comment on judicial proceedings that would not attract contempt charges. For example, "fair and accurate report of a judicial proceeding" and "fair comment on the merits of any case which has been heard and finally decided" would not be contempt. The Act also provided that contempt would not be punishable unless it "substantially interferes, or tends substantially to interfere with the due course of justice". Notwithstanding these improvements, the definitions of contempt did not do away with the uncertainty. 'Scandalising the Court' was contempt, but what constituted 'scandalising the Court'?

Justice Krishna Iyer captured the problems inherent in the contempt law, in a 1974 judgment, in these colourful phrases: "A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process ofbrevi manu conviction, may unwittingly trench upon civil liberties ..."

These problems, he argued, imposed a special responsibility on the higher judiciary to be vigilant and protect free speech "even against judicial umbrage". The subsequent judgment of Justice Krishna Iyer in the Mulgaonkar case in 1978 (where contempt charges against the Indian Express were withdrawn) has been seen as the beginning of a liberal trend in the treatment of contempt by scandalizing the court. However, this is not the only or even dominant trend.

"Truth" as defense

The most recent attempts to reform the contempt law started with the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 to allow 'truth' as defense in matters of Contempt of Court. While making this recommendation, the Commission observed:

"Judicial decisions have been interpreted to mean that with the law as it now stands, even truth cannot be pleaded as a defense to a charge of contempt of court. This is not a satisfactory state of law. It would, indeed be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of Satyameva Jayate, in the High Courts and Yatho dharma statho jaya in the Supreme Court, the courts could rule out the defence of justification by truth."

The NCRCW recommendation was not particularly revolutionary. In the UK and Australia, truth as defense to a charge of contempt by scandalising had been available for several decades. The recommendation eventually resulted in a bill to amend the law related to contempt.

The Parliamentary Standing Committee on Personal, Public grievances, Law and Justice (Standing Committee) examined the Contempt of Courts (Amendment) Bill, 2004 and provided several interesting insights in its report. The Government had proposed to amend the 1971 Act by adding the clause: "The Court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defense is bona fide". However, the Standing Committee felt that the requirement that the 'truth' used as justification should be in public interest was an additional burden imposed on a person accused of contempt and would "virtually defeat the objective of the proposed legislation"; therefore, it recommended that the term 'in public interest' be deleted.

The law today

The Government however did not accept this demand and the contempt law was amended in 2006 in line with the above proposal. In the law as it now stands, while a person accused of contempt can seek his defense in "truth", he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide, that is, with reasonable care and caution.

Other countries have progressed to a more liberal regime. In UK, prosecuting a person for contempt for scandalising the court is considered virtually obsolescent and the Courts have rarely used this power for several decades. In the US, the offense of scandalizing the court is unknown and US Courts initiate action for contempt only when they determine that there is 'clear and present danger' to the administration of justice.

In our country, it is still too early to assess the impact of the recent changes in the law. However, what is clear is that only the judiciary, of its own accord, can make the move towards a more liberal interpretation of contempt that allows healthy criticism that can aid its own development as an institution. 

Kannan Kasturi
12 December 2010

Link to piece at India Together 

Mining vs Communities

The opposition to mines and mining across the mineral rich belt of India is not a blind opposition to modernization, or an opportunistic posturing for getting a better deal. It is based on the dreadful experience of people with past projects. People left without land or livelihood, broken job promises, polluted earth, air, and water – all of this is public knowledge in the mineral belt. It is this knowledge that is behind the resolve of the communities against letting in mining into their homelands.
Take Korba district of Chhattisgarh for example. Half the mineral related revenues of mineral rich Chattisgarh come from this tribal majority (51%) district. Over 11% of India’s coal is mined here, most of it by a subsidiary of CIL. Taking advantage of the proximity to the mines, there are four thermal power plants located here, generating 3650 MW of electricity. Korba gives a lot to the country.
What do the people of Korba get in return?

The Chhattisgarh Human Development Report (2005) records that less than 50% of the households in Korba district had electricity. 20% of the villages in the district complained of respiratory diseases caused by fly ash from the thermal power plants. Huge open fly ash ponds dot the Korba landscape. The wind blows ash particles from NTPC’s large pond, which is located at a height, into villages and fields lower down. The impact of mining ranges from coal dust from coal handling plants covering the agricultural fields and affecting the yield adversely, to pollution of surface water leading to negative effects on the health of people and agriculture as well as degradation of forests. Korba holds a mirror to the ugly face of mining in India. A Google satellite image of Korba shows up the fly ash ponds as white patches on the landscape.

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Take another example. NDMC, a public sector company, is India’s largest iron ore producer. Over 80% of its production is from the Bailadila hills (named so, as the hills resemble the hump of an ox) in Dantewada district of Chhattisgarh. 78% of the population of Dantewada is tribal. Here in Chhattisgarh’s tribal heartland, nature in all its forms - trees, waterfalls, and streams - is revered and venerated. The forests help sustain livelihoods as agriculture, where practical, is limited to a single crop. The mining has resulted in the destruction of the forests, and people report that one third of the forest area of Dantewada is degraded. The groundwater level has fallen. The Bailadila hills show up as an ugly brown gash amidst the green jungles in satellite images.



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For people who strongly depend on forest produce, natural streams, and ground water for their livelihood, the devastating impact on their quality of life can only be imagined.
If the new draft mining regulation is aimed at changing the attitude of communities towards mining, it may be missing the point entirely.Read the complete story here.

Coastal regulation zones

"The Government .... has allowed the 2008 draft Coastal Management Zone(CMZ) draft notification to lapse, as of July 2009. What happens to the Maharashtra government’s long-standing plan of relocating slum-dwellers to the saltpans so as to make available some of the world’s most expensive land in the heart of Mumbai for development? Has the Government taken back the CMZ draft merely because it was a shoddy job that did not please “even private developers”? Time will tell"

These are the concluding words of my historical review of coastal regulations carried in the April issue of Infochange Agenda ("On the waterfront"). The piece can be accessed  here.

The law on election expenses

Originally, laws limiting election expenses were framed with the view that curbing election expenses was essential to keep the process fair. Over the years, the laws have been changed to allow unbridled expenses and neither the UPA nor the NDA wants to disturb this comfortable arrangement. Read On..

Negative voting and the law

It is election summer, and the leaders of the major political parties are busy nominating candidates whose most important qualification will be the ability to take advantage of the local caste or community arithmetic in their respective constituencies. In these pre-election games, neither those who do the everyday work of parties nor those who vote them in and out of power have anything to do with selecting candidates. Naturally, then, one is led to ask - on Election Day, should the voter have the choice to reject all candidates - by selecting a 'None of the above' option on the electronic voting machines - if he finds them all unsuitable? Read On..

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

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

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

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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?