With all the law’s faults it had one great virtue. It was there”- Arthur Hailey. The Centre’s attempt to build political consensus on the Land Acquisition Ordinance in its original form is bound to fail. Though Prime Minister Narednra Modi has expressed the government’s willingness to remove the “flaws and infirmities in the law”, the text of the Amendment Bill remains the same. It is more or less a replica of the Land Ordinance.
The earlier winter session of the parliament ended only on December 23, 2014. Without going for a legislative recourse, the Centre came out with the Ordinance on December 29. Thus, the government clearly short-circuited the process of legislative democracy. There were no deliberations on the issue either within or outside parliament.
The timing of the Ordinance really exposed its intent and content. Under Article 123 of the Constitution, for promulgating an Ordinance during recess of parliament, the President should be satisfied about the need for an ‘immediate action’ which cannot even wait for regular legislative exercise.
In R C Cooper (1970), the Supreme Court clearly said that the President’s power to promulgate an Ordinance is conditioned and it could be exercised only when immediate action is warranted in a given exigency. In the landmark decision in D S Wadhwa (1986), the Supreme Court reiterated the same principle. Therefore, an Ordinance issued to avoid legislative debates is deceptive.
The 2013 Act was an instance of radical lawmaking that reflected State’s parental response to the people’s movements from Narmada to Singur. The unilateral invocation of state power in the context of land acquisition had tremendous political and economic impact. The growing dissatisfaction among the tribals who were robbed of the land rights even led to the growth of terrorism under the label of Maoism.
The adverse impact of the erstwhile colonial Land Acquisition Act (1894) was highlighted by the Supreme Court on several occasions. In Dev Sharan (2011), the Court held that the concept of public purpose in land acquisition should be consistent with the concept of a welfare state. In Bondu Ramaswamy (2010), the Court held that acquisition cannot and should not be a matter of routine. Even earlier, Justice P N Bhagwati expressed a constitutional hope in the celebrated decision in Kharjan Jalasa Yojana (1986) that “the person dispossessed should not be without roof over his head even for a single day”.
Negation of democracy
The Ordinance has, however, dealt with the then UPA government’s legislation in a casual and mechanical manner by discarding the socio-political and historical value of the enactment. So is the case with the present Bill. A cardinal feature of the 2013 Act is the emphasis given to the public opinion. The Social Impact Assessment (SIA) indicated in Section 4 is a participative process that accommodates public opinion, expert views and the victims’ objection. Section 5 of the Act makes public hearing mandatory “wherever a social impact assessment is required to be prepared”. Section 6 tells about the publication of the study report which also is mandatory.
An appraisal of the report by the expert group is stipulated in Section 7. Section 15 of the Act reflects better level of democratic participation by ensuring hearing of objections regarding all facets of the acquisition in question. Section 41 contains special provisions for Scheduled Castes and Scheduled Tribes. Settlement is institutionally guaranteed vide Sections 43 to 57 of the Act. Thus, despite the provisions for executive prerogative to dispense with SIA in certain exceptional situations, by and large, a participative role for the affected persons is legally ensured. This makes the process of acquisition inherently democratic and dialogic.
The consequences of the proposed amendment would be drastic. As per the Ordinance, no SIA or prior consent of afected families is required when the land acquisition pertains to activities related to defence, rural infrastructure , housing projects , industrial corridors and social infrastructure projects with a public private partnership (PPP) content if the “formal ownership” vests with the government.
Thus, the exceptions outweigh the law and practically nullify the very object of a revolutionary statute. Even the categories referred in the Ordinance and the resultant Bill are so abstract that they could be subjected to elastic interpretation so that anything done by the government or private persons under the label of PPP would be brought within the ambit of the Ordinance. No rehabilitation, no hearing.
The Centre clearly wants to fence the people out. The proposed amendment is clearly in reverse gear. It makes the citizen unsafe and his freedom uncertain. It therefore, calls for an organic opposition at the national level. In the words of Albert Camus, “the only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.”
(The writer is a lawyer practising in the Supreme Court and the Kerala High Court.)
