Tuesday, June 28, 2011

Land acquisition: judiciary’s changing interpretations of citizen's rights

Posco and Singur are back in news. And on June 27, the Supreme Court seems to have taken the side of the poor in a case involving land acquisition in Greater Noida (Uttar Pradesh). The judiciary, however, has been disturbingly inconsistent in protecting the week.

In September 2008, the editor of the business magazine I was working for asked me to speak with Supreme Court advocate Prashant Bhushan on how the Constitution views land acquisition and displacement.
The interview, which the editor did not allow to be published, was remarkable in its coverage of fundamental issues, including how the law-courts have been interpreting the constitutional right to life in the context of land acquisition and displacement.
That is why I am reproducing the interview here in Bhushan’s own words.
Read it to get a perspective on the 'compassionate' position that the Supreme Court took on June 27, Posco, Singur… indeed the entire issue of land acquisition and displacement.
Notice the continued relevance of the issues and how the government has left the problem unaddressed in nearly three years since September 2008.

Large-scale land acquisition that’s currently going on, whether for SEZs or mining or real estate development, was previously the domain of the government or the public sector; it is now being sought to be turned into the domain of private sector in the guise of ‘public purpose’.
SEZs, in most cases, are also essentially real estate development projects because as much land for residential complexes, shopping malls and hotels, etc is being acquired, as for industrial production.
Even in the highway projects, large-scale land acquisition is being made for purely commercial reasons rather than any public purpose. That’s nothing short of a scam. For example, in the Taj Expressway project, five times as much land is being acquired for commercial purposes as for road building. This land for commercial development is being given to the same private developer who is going to build the highway — Jaypee Group.
So Land Acquisition Act has now become a tool for shifting property rights from communities that are the rightful owners of the land in question to large commercial interests.
This law is being used to compulsorily acquire land from people for a pittance, which is nowhere near the market value of that land, and transfer its ownership or control to private interests for their private profits. Huge kickbacks are an important feature of all these deals.
The original purpose of the Land Acquisition Act was to acquire land only for ‘public purpose’. Today all kinds of land acquisition, all industries and all kinds of development are being described as the one that serves ‘public purpose’. Even residential and commercial development is being described as being for ‘public purpose’.
If a project is that essential for a public purpose, then why should it be given to a private developer in terms of legal ownership? If it’s being given to a private developer, then it’s clearly not of such public interest as would warrant compulsory land acquisition under the Land Acquisition Act.
In fact, it is absurd to give the control of airports and highways, which by their very nature are monopolistic undertakings, to private parties and thereby create private monopolies. The private company controlling the Hyderabad airport charges, firstly, Rs 1000 as ‘landing charge’ through the airlines and then it also has every passenger being stopped at the security and told to show the receipt for ‘airport charge’ of Rs 400 to be paid to it.
Having been turned into monopolies, these private companies can charge users anything they like and, in many cases, also enjoy the rights for commercial development on large parcels of land adjoining the land for the main project.
In the face of this manner of compulsory land acquisition, which is actually a scam, there’s naturally going to be resistance from the people, which we are witnessing in the form of peoples’ movement in various part of the country.

(On the apparent shift in governments’ approach from enforcing land acquisition for projects involving private interests towards allowing private parties to deal directly with farmers.)

Government’s shift towards ‘let-the-private-parties-themselves-acquire-land’ position is in response to the growing opposition of the people to land acquisition and their resorting to direct action to stop their forcible displacement.
The government understands that even if it completes the process of land acquisition on paper, in actual fact it cannot remove people from their land except by using brute force. So there is the realization in the government that it will do no good to just acquire land unless it can get people to move out.
That’s difficult because people are increasingly refusing to do so and are also organizing themselves in grassroots movements.
Encouraging companies to buy land on their own as far as possible without resorting to compulsory acquisition is one of the tactics used by the government to reduce the intensity of peoples’ opposition and resistance.
Obviously, voluntary acquisition will reduce the intensity of opposition, but simultaneously the government is helping the companies by telling people, ‘You sell your land to the private parties or else we’ll acquire it under the Land Acquisition Act. You’ll be paid a better price by the private parties. So you might as well sell it to them’.
Another tactic that the government has tried is the new rehabilitation policy, which is being used as a carrot to reduce the intensity of opposition to land acquisition. But the new rehabilitation policy has, firstly, many defects and, secondly, it has not been brought into force. So the people are not swallowing this bait.
The so called public-private partnerships (PPPs) have also been a scam in that they disguise private interests as public purpose. The PPPs involve setting up a special purpose vehicle (SPV) or joint venture, in which the government takes a small stake and the private party takes the majority stake in order to mask a private interest as a public sector enterprise that will then acquire land. Vedanta’s project in Orissa is a case in point.
All kinds of subterfuges are being invented to disguise the fact that most of the land acquisition is in fact for the benefit of private companies.
We have suggested that the following amendments must be made to the Land Acquisition Act.

1. Compulsory land acquisition should only be made for the public sector, not any private company.

2. Before any compulsory land acquisition is allowed, some independent body should examine whether or not the project is really in public interest or not, which means assessing whether or not the benefits outweigh the costs.
For example, if you are acquiring the land of 10,000 small farmers in order to provide irrigation to 1000 large farmers, it can hardly be called ‘public interest’.
The independent body should also examine whether there’s any viable alternative available, which is less displacing, for setting up the same project.
For example, there was no need to acquire the fertile farmland in Singur for Tatas’ car factory.
The state government could easily have given them fallow land in the interior. But the Tatas were not willing to move into interior; they wanted to be nearer to Calcutta.

3. If you acquire land compulsorily, you provide land for land so that the people who have for generations been dependent on land for their livelihoods are not economically devastated.
You also need to separately compensate the people for any loss to their community life or access to natural resources, etc.

4. Land ceiling must be implemented in all industrial and commercial projects.
You can’t allow a single company like Reliance Industries to acquire 25,000 acres or 50,000 acres in a country that has such a high population density and millions of landless people and tiny landholders. That would be totally inequitable.

5. All land acquisition proposals must be put before the Gram Sabha, which is the Constitutional body consisting of all the adult residents of a village.

The way large parcels of land are being acquired currently is illegal in that land acquisition for a private company cannot be justified as serving a public purpose.
But the way our law-courts have been functioning these days, it has been shown time and again that the thinking and the worldview of our judges are the same as that of the government, according to which everything must be left to the market forces and it’s perfectly OK to have a few companies control huge resources.
The court pronouncements are going in favour of corporate interests and people are increasingly losing their confidence in the judiciary.
That’s also the reason for the existence of the grassroots movements like the ones going on in Singur, Kalinga Nagar, etc.
If people had the confidence in law-courts, they would seek the legal remedies rather than suffer the hardships of fighting the might of the government and corporate interests.
The Constitution does protect people from being compulsorily displaced.
The Supreme Court has said this time and again that every citizen has the Constitutional right to life, which includes the right to lead a life of dignity and therefore all the things that will allow a person a dignified life.
These rights are being violated today. For instance, people earning their livelihoods from land are being deprived of their livelihoods by the government forcibly taking away their land.
The same law-courts that had earlier said that every citizen had the right to shelter have ordered the demolition of jhuggis of thousands of people in Mumbai and Delhi without giving them any alternative shelter.
For example, 40,000 jhuggis at Yamuna Pushta in Delhi were demolished on the orders of Delhi high court, rendering homeless the residents of that area. One of the grounds for the order was encroachment of the Yamuna river-bed area.
The same Yamuna river-bed area has been used for building shopping malls, residential complexes, and hotels in the guise of the Commonwealth Games.
Here, the Delhi high court has ordered the abridgement of the peoples’ right to life under Article 21 (‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’).
The same high court had earlier declared that shelter -- of even a kind that was demolished in Yamuna Pushta -- was the fundamental right of a citizen and evicting them from there homes without giving them even a notice was a gross violation of the principles of natural justice.
If the law-courts were to act on the correct interpretation of the Constitution, which they themselves had made 20 or 30 years ago, they would not have done many of the things they have done actively to deprive people of their homes.
In these cases, the law-courts have been acting in complete and gross violation of the Constitution, interpreting the Constitution according to their whims and fancies.
Today they seem to be interpreting the Constitution the way large companies want them to be interpreted.
In the context of Article 21, compulsory land acquisition under the Land Acquisition Act and the Act itself become unconstitutional on the ground that they deprive a person of his/her right to life.
In clearing projects like Posco’s and Vedanta’s, the Supreme Court has gone contrary to the advice of its own central empowered committee (CEC), which had said that the land in question should not be acquired on the grounds that such acquisition would have serious impact on the environment and the rights of forest dwellers.

(On August 09, 2008, a special bench of the Supreme Court had cleared the forest diversion proposal of the Rs 51,000-crore steel project of Posco India, which would facilitate handing over of at least 2958 acres of government-owned forest land to the company. The same day, the bench allowed Sterlite, of Vedanta Group, to go ahead with bauxite mining on forest land.
The Supreme Court had set up the CEC in May 2002 in order to be forewarned and advised on the threat of destruction of forests and wildlife.)

The entire deal is inequitable and unconscionable and yet the Supreme Court overrode their own committee and ordered the land to be given for those two projects.
The protections of the rights of the people provided in the Constitution are dependent on the actions of the law-courts.
Every time you want protection of your rights, you need to go to the court, and every time the court comes up with different rationalizations and different interpretations, which are loaded currently in favour of large companies. Little wonder people are losing faith in law-courts.

(Would it be possible for the central government to come up with a nationally enforceable policy on rehabilitation given the fact that land is a State subject in the Constitution?)

Yes. It won’t be just a policy; it will have to be a law, a parliamentary Act. It’d be like the Right to Information Act.
The Centre can say that the legislation deals with a subject that’s in residual list and is meant to ensure the Constitutional rights of people.
So the Parliament will enact the law, which should say that wherever land is acquired rehabilitation should be compulsory, in order that it becomes enforceable throughout the country.
We need either drastic amendments in the Land Acquisition Act or a new Act, which should incorporate a national rehabilitation policy.

(How should the price of land be determined?)

If you can carry the entire village or at least the majority with you by taking the Gram Sabha into confidence, you could say that the price you are offering is fair.
Also recent voluntary sales of land -- for example, at a price at which 50 per cent people are willing to sell their land voluntarily -- can also give an idea about the so called market price.
Currently, they are taking the price in some past, unrelated transactions that mostly tend to be based on land that was shown undervalued in order to save stamp duties.

(What becomes of people who have no recognizable land titles?)

The government should start a process of recognizing the rights of people living on certain land for a long time, like its happening in the case of Forest Rights Bill which lays down the due process of recognizing the rights of land of the forest dwellers.
There are, in fact, many laws that recognize the rights of people like tenants, sharecroppers, etc, living long on a certain land without a legal title.

Thursday, June 23, 2011

Jan Lokpal Movement: dependence on urban middle class and mass media

Some commentators have described movements like Jan Lokpal as overly dependent for support on the urban middle class and the mass media. The apparent dependence is both explicable and to some extent justifiable in terms of distribution of political power.

I received an email today from a gentleman who supports Jan Lokpal Movement. He echoed the well known view that the Movement has been missing the support of the “large population in villages, unorganized workers and people below the line of poverty”.
“This is really a massive force which is the real sufferer of corruption directly or indirectly. How to reach this class and involve them in this movement is a real challenge,” he wrote.
The gentleman has been “doubtful about our constant appeal to city population, middle class, people accessible through media to support anti-corruption movement”.
“By and large this class is connected with corruption and in some cases they are beneficiaries too,” he wrote.
I do not think this impression is entirely true because I believe that the Jan Lokpal Movement does have active and passive supporters in small towns and rural areas.
I do believe, however, that most of the visible support base of the Movement is present in urban areas.
In my reply to the gentleman, reproduced below, I have given some thought to the larger question of urban bias in movements such as Jan Lokpal.

    1. Politics – most of the power politics (Rajneeti) as well as a significant measure of the grassroots politics involving public causes (Lokneeti) – has been becoming increasingly urban-centric and is mostly conducted through the corporate-controlled media.
(Rajneeti, of course, gets the lion's share of media coverage and Lokneeti struggles for what is left.)
    Thus, politics is both the cause and the effect of the distribution of power in society, which has made the rural areas something resembling the colonies of the urban power centres.
    The colonisers do not usually feel the need to seek the views of the colonised.
    Seeking the views of the rural populace and engaging them in movements is also very hard and time consuming work; even the committed people are tempted to take the easy route.
    That's where the corporate-controlled media comes in.
    Long-standing, all pervasive problems of the people become "issues" only when the media decides to talk about them for reasons that have nothing to do with public interest.
    The political executive then uses the media to make a pretense of attending to those "issues" without doing anything meaningful.
    So the problems continue to fester even as the media flits from "issue" to "issue" deemed worthy by its owners and their political associates.
    (Media's "issue manufacturing" skills are particularly useful in election time, as also Rs multi-billion "media management" business of the political parties.)

    2. You are right in pointing out that large parts of the urban middle class are involved in corruption.
    I believe most of the urban middle class – people like us – are increasingly compelled to work in corrupt and undemocratic institutions, public or private. So it's an institutional compulsion for us to gradually become corrupt and undemocratic in behaviour.
    It's impossible, however, for some members of the urban middle class not to become aware of their own corruption and start thinking of reforming themselves and the larger society.
    Such people and the movements started by them need to be supported.
    So, the urban middle class-centric nature of people's movements like Jan Lokpal reflects the objective reality – the lop-sided distribution of political power, wealth, modern means of communication, and access to modern knowledge in favour of urban areas.
    It may not be an altogether desirable development, but it can be justified on the following two grounds.
    (a) It is very difficult for people's movements to fight centralised power and not get centralised themselves to some extent. Decentralisation demands not only a great commitment to democracy and large reserves of patience, but also material resources.

    (b) Those who are the primary beneficiaries of corrupt systems are morally obligated – more than others – to take the responsibility of reforms. They carry the heavier burden of guilt of being involved in corrupt systems. They also are better placed in terms of resources to start reform movements.
    Most of the rural population, the poor and the workers of the unorganised sector lack the resources to fight centralised power. The energies of the poor, in particular, are mostly used up in the battle of survival.

    3. I believe the sensitized city dwellers also have the responsibility to start highlighting and undoing the injustice done to the rural population, the poor, and the workers of the unorganised sector.
    I strongly believe that movements like Jan Lokpal will help bring the urban and rural people together and create a degree of common consciousness and feeling of solidarity.  
    That is because Jan Lokpal Movement represents a cause where the aspirations of the urban and rural Indians converge perfectly -- the need to lance the boil of corruption and bring about more democratic governance. Both need more democracy and participation in formulation of public policy.

Sunday, June 19, 2011

NDTV allows Kapil Sibal to spread canards about Jan Lokpal Bill

Here is how Union minister Kapil Sibal misleads the public and NDTV's Barkha Dutt plays the dumb game of not asking the obvious questions.
The Buck Stops Here, NDTV 24X7
Saturday, 18 June 2011, 7.30 pm


Barkha Dutt: Why should judiciary not be under Lokpal's ambit?

Kapil Sibal: Let us suppose judiciary is under Lokpal and the Lokpal brings a case against a judge to a magistrate's court for prosecution. Now that magistrate is under Lokpal. Suppose the magistrate does not agree with the Lokpal. How will the magistrate, who is under the Lokpal, go against the Lokpal?

What's wrong with Sibal's argument?: Neither Jan Lokpal Bill nor anyone from Anna's team has made the bizarre proposal that any magistrate or judge in the country be placed "under Lokpal" in the sense of a subordinate taking an order from a superior.
So Sibal's argument is patently wrong and is meant to mislead the public.
In this case, Lokpal will bring to a magistrate's court a case of alleged corruption against a judge (of the Supreme Court or a high court), and the magistrate will decide, based on evidence on record, whether or not the case is fit for prosecution.
That is, the magistrate can allow or disallow the prosecution.
Lokpal's powers of investigation and prosecution, as envisaged in the Jan Lokpal Bill, will have absolutely no bearing on how and which way a magistrate decides matters brought to him/her, including those brought by the Lokpal.
Sibal's use of the phrase "under Lokpal" is deliberately misleading.
Judiciary will NOT be "under Lokpal." It will only be "under Lokpal's ambit", which simply means that the Lokpal will have the power to investigate a complaint of corruption against a judge (of the Supreme Court or a high court) and, if sufficient evidence is available, bring the complaint to a law-court for prosecution. 
The decision to prosecute or not to prosecute will be the law-court's.
Sibal's argument is also wrong and misleading on another score: a magistrate's court will not be even "under Lokpal's ambit".
Jan Lokpal Bill envisages bringing only the higher judiciary (judges of the Supreme Court and high courts) under Lokpal's ambit, not the magistrates who belong to the lower judiciary.

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