Govt's land law revives lost order of sarkar raj
The ordinance does nullify, as has been widely reported, the need for consent and social impact assessment that was provided for in the 2013 legislation
Jan 07, 2015
Source : Business Standard


New Delhi: Even after the National Democratic Alliance's land ordinance, governments will still need the consent of tribal gram sabhas in all Schedule V and VI areas of the country before acquiring land for themselves or for public-private projects.

While the land ordinance has done away with the need for consent from most other groups for a vast array of projects, it has left specific provisions intact which make it mandatory for governments to seek approval of tribal village councils in areas designated as Schedule V and VI under the Constitution.

Schedule V and VI areas are those demarcated as predominantly populated by tribal communities and are meant to protect the rights of tribals over their lands and resources. Schedule VI areas are demarcated in some parts of northeast India and Schedule V applies to some of the tribal belts in other parts of the country.

The United Progressive Alliance's land acquisition law in 2013 made special provisions under Section 41 for governments to acquire land in these Scheduled areas. It laid out in section 41 (3) that "in the case of acquisition or alienation of any land in the Scheduled areas, the prior consent of the concerned gram sabha or the panchayats or the autonomous district councils at the appropriate level shall be obtained." Subsequent provisions demanded that such consent be sought even if the government plans to acquire the land in urgency.

The NDgovernment's land ordinance passed on the last day of 2014 does not repeal or counter these provisions. The ordinance, however, does nullify, as has been widely reported, the need for consent and social impact assessment that was provided for in the 2013 legislation. In effect, the government now will not require the consent of farmers and other communities in most cases except in the case of tribals living in Scheduled areas. In that case, the government will have to go to the village councils for their binding approval.

The best way to understand the consequences of NDA's land ordinance is to look at the list of projects that will neither require consent of landowners nor need a social impact assessment for acquisition in non-tribal areas. The list is so exhaustive that it leaves little to the imagination.

By two small provisions in the four-page ordinance, the NDA government has tried to do away with the principle that formed the bedrock of UPA's 2013 45-page law - the principle of prior informed consent.

The principle was operationalised by making it stand on two legal legs in the law - one requiring consent and the other mandating social impact assessment of projects be done and shared publicly.

The period of forceful acquisition lasting through different periods of the Indian economy has collectively displaced 60 million people so far, estimates a government committee conservatively. A disproportionately high percentage of those displaced have been the poorest - tribes and scheduled castes -, the report found through review of published research.

The antiquated law (formulated in 1897) gave powers and discretion largely in the hands of the bureaucrats and the political class. Of course, it never worked out as smoothly as democracy deepened and the demand for land intensified. Consequently, conflicts raged leading to protests and litigation at one end and failed acquisitions and increasing costs of projects at the other. In 2013-14 alone, one independent analysis shows, more than 250 cases of conflict were recorded by the media.

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