Lessons from the Narmada struggle

Governance Now, Oct 16-31

The state sets out to replace a British era law for land compensation – with even more anti-people laws

I n the third week of October, people of the Narmada valley will observe the 25th anniversary of their struggle against large-scale displacement in the name of development and their right to be resettled and rehabilitated – something that was unheard of until then though development projects, especially big dams like Bhakra, Hirakud, Tungabhadra and Rihand had displaced thousands before that and in spite of the fact that our constitution had, in 1950, declared that ours was a ‘welfare state’.

So this might be a fit occasion to take stock of another “struggle” – the struggle of our supposedly welfare state to resettle and rehabilitate people affected by the supposedly development projects.

The magnitude of the problem can be gauged from the simple fact that six crore people have been displaced by development projects between 1947 and 2004, involving 25 million hectare of land (40 percent of which is tribal land), according to a rural development ministry report of 2009. N C Saxena, a retired bureaucrat and member of the National Advisory Council (NAC), circulated a note to the fellow council members last month which said: “Studies have shown that in the past only 20 to 25 percent people benefited after displacement, the rest were left worse-off.” This sort of displacment happens to be one of the major reasons why the Maoists have come to virtually rule one-third of our country.

The rural development ministry, several state governments and various central government departments which acquire land for development projects have, since then, adopted various resettlement and rehabilitation policies and even laws. But these policies and laws have failed to address the problem because the fundamental issues remain unaddressed.

The central government stepped in for the first time during the NDA regime but all it has done so far is to produce two bills – Land Acquisition (Amendment) Bill of 2007 (LA Bill) and Resettlement and Rehabilitation Bill of 2007 (RR Bill) – which were introduced in the last Lok Sabha and lapsed with it.

Thanks to Congress general secretary Rahul Gandhi’s interest in the farmers’ protest against land acquisition for the Yamuna Expressway in Uttar Pradesh that the prime minister woke up and promised a couple of months ago that these bills will be taken up for passage in the winter session of the parliament.
As we will see, the two bills, which are inter-linked and should have actually been part of one piece of legislation, too will fail to make any material difference to the ground realities because no lessons have been learnt from the Narmada struggle, or from any other such struggle going on in several states across the country.

Right to land
The key to the problem, it was realised, lies in the antiquated Land Acquisition Act of 1894 that embodies the doctrine of ‘eminent domain’, which means the government can acquire any private land for ‘public purpose’ with or without the permission of the owner. It does provide for ‘compensation’ for land, standing crop, house etc but not for resettlement and rehabilitation because the context then, 116 years ago, was different.

There has been a paradigm shift in our policies in recent years. The Panchayats (Extension to Scheduled Areas) Act of 1996 (PESA) and the Forest Rights Act of 2006 (FRA) have dented the ‘eminent domain’ doctrine and provide for mandatory ‘prior consent’ before any land can be acquired, primarily in the tribal areas, by recognising both people’s right and the community’s right over their land and forests.

The NAC, which took up the resettlement and rehabilitation issue in 2006, argued that this legal right should extend beyond the tribal areas. It had proposed that the “law should primarily defend the fundamental and other legal rights of the citizens, rather than facilitate the exercise of the eminent domain of the state”.
Recognition of this right over land and forests is also essential to make the RR Bill meaningful and effective.

The purpose of the RR Bill, as its ‘statement of objects and reasons’ acknowledges, is to recognise that land acquisition leads to “displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment” and that these have “traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, in particular of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families.”

While it remains a mere ‘statement’ in the RR Bill, the LA Bill doesn’t even acknowledge that or factor in people’s right over land and forests as granted by the PESA and the FRA while going for acquisition.

Further, the LA Bill retains clause 17 of the 1894 Act, which provides “special powers in case of urgency” to acquire land. Demands that this clause should be qualified so as to be used “rarely”, as the NAC and social activists have been proposing, and with “prior informed consent” of the affected people have also been ignored.

Right to livelihood
On the contrary, the LA Bill says ‘public purpose’ for which land can be acquired are three: (i) strategic purposes relating to defence forces or any other work vital to the state, (ii) infrastructure projects and (iii) “for any purpose useful to the general public for which land has been purchased by a person under lawful contract to the extent of 70 percent but the remaining 30 percent of the total area of land required for the project as yet to be required.”

Purpose number (iii) makes a dangerous proposition, that a private entity can acquire 70 percent of land, before the state steps in to acquire the rest on its behalf for a project. Advocate Sanjay Parikh, who has been dealing with the issue, warns that this provision will unleash moneybags, land sharks and their musclemen who can cause havoc in tribal and other vulnerable areas, besides being violative of the ‘welfare state’ concept enshrined in the Directive Principle of State Policy.

This has other serious consequences too. The government’s RR schemes and plans under the RR Bill will actually apply to the 30 percent area that the government acquires, not the 70 percent that the private entity does (clause 2) – that being the private entity’s responsibility.

Further, clause 20 (1) of the RR Bill says the proposed law is meant for “involuntary displacement of 400 or more families en masse in plain areas, or 200 or more families en masse in tribal or hilly areas.” Which means, even if 399 families (about 2,000 people) lose their land and are displaced in the plains and 199 families (about 1,000 people) do so in the hills, they will not be covered by the law.

Clauses 6(1) and 34 of the RR Bill rub more salt by saying that the environment impact assessment and social impact assessment studies will also be restricted to the 30 percent area.

Read together, all these provisions defeat the very purpose of both the LA Bill and the RR Bill.

But these are not all. The RR Bill further dilutes resettlement and rehabilitation schemes and plans through several other provisions.

Clause 36(1) says land will be given to the displaced “if government land is available”.
Clause 41 says jobs will be given “subject to the availability of vacancies and suitability of the affected person for the employment”.
Clause 35 says only the BPL families will get house for losing theirs, the rest will get land.
Clause 30 (3) says the government will decide what infrastructure facilities and amenities be given at the resettlement colony, without specifying anything.
By now it is clear that the RR Bill goes on to systematically defeat its very raison d’être.

Medha Patkar, the torch bearer of the Narmada struggle, has been insisting on a framework that should govern the policy of land acquisition and RR. She advocates: (i) recognition of the displaced as ‘investors’ in the project as their land, forest and natural resources are used for development, (ii) recognition of rights of people over their land and natural resources, like forest rights etc, (iii) protection of constitutional rights of everyone, including the displaced and (iv) recognition of decision making power of the affected people.

Concerns of the Narmada struggle that found an outlet through NAC’s formulation on the RR policy in 2006 had spelt out what the objective of the RR law should be: (i) displaced families to have a standard of living superior to what they had, (ii) they should have sustainable income above the poverty line and (iii) gains to the displaced be proportionate to the gains to the project beneficiaries. There is no sign of any of these being considered while drafting the two bills.

Private purpose
Revisit the definition of ‘public purpose’ in the LA Bill (clause 5) mentioned earlier. A parliamentary committee that examined the bill and submitted its report in 2008 was so disappointed that it actually said “unanimously” that this definition should be scrapped and replaced with, irony of ironies, the one in the British era law of 1894!

The Raj law had defined public purpose to include land for village, planned development or improvement of existing village, town and rural planning, housing for the poor or landless, educational, housing, health facilities etc. But the bill is silent on these aspects.

Para 4.38 of the parliamentary panel report says: “Further, the Committee feels that the definition of public purpose as given in Section 3 (f) of the Principal Act (of 1894) was much better. Besides, Part VII of the Principal Act which the amending legislation proposes to delete further tightened the definition of public purpose by putting some of the conditionalities. In view of this, the Committee unanimously decided not to agree to the proposed definition of public purpose as per Clause 5 of the amending legislation. The Committee after deliberations unanimously decided that the definition of public purpose as given in the Principal Act of 1894 along with Part VII of the Principal Act should be retained.”

Land to the tiller
Singur and Nandigram happened because the government acquired fertile, multi-crop agriculture land which was the only source of livelihood for thousands of farmers. At a time when food security and falling productivity of land are a cause of concern and the government records show how the cultivable land has shrunk from 18.50 crore hectares in 1980-81 to 18.25 crore hectares in 2005-06, the LA Bill is silent on protecting such land. UPA chairperson Sonia Gandhi had joined issue with the prime minister Manmohan Singh in early September by asserting that development or industrialisation shouldn’t be at the cost of fertile land.

Acquiring land in excess of need is another cause of concern. So is the absence of any legal provision to return the acquired land, excess or unused when the project fails to take off within a time frame, back to the people. K B Saxena, former bureaucrat associated with the Council for Social Development, has been advocating a policy to return land to the people, and not vest it with the government when a projects fails to take off in five years or excess land is detected, on the ground that this would act as an effective deterrent. The bill ignores this aspect too.

Stake in development
In the mid 1990s, the Dilip Singh Bhuria Committee made a dramatic suggestion to resolve the growing conflict between the tribals and the development projects in their area. He proposed an ownership pattern in all such projects in which community will have 50 percent stake, the displaced 24 percent and the investor the rest, 26 percent.

More recently, the ministry of mines circulated a draft Mines and Minerals (Development and Regulation) Bill, 2010, proposing 26 percent stake for tribals in the mining companies.

Needless to say, Bhuria’s suggestion was never considered. That of the mines ministry is strongly opposed by the private companies.
In the meanwhile, Haryana devised a vastly attractive RR policy in 2007 which, apart from various compensations, provides for an annuity of Rs 15,000 a year for every acre of land acquired for next 33 years. UP chief minister Mayawati made an improvement to this recently by announcing an annuity of Rs 20,000. Many, including NAC member Saxena, have suggested that the compensation package should also take into consideration future value of the land.

All these, however, are a matter of details. So long as the constitutional rights to land and livelihood are honoured, the issues will be addressed adequately. If not, the proposed legislations will benefit only a handful.
prasanna@governancenow.c