Article 300A of the Constitution provides that ?no person shall be deprived of his property save by authority of law?. The law, which has enabled the state to acquire private property, is the antiquated Land Acquisition Act, 1894, which the Land Acquisition, Rehabilitation and Resettlement Bill, 2011, is seeking to replace (referred to, hereafter, as the Bill 2011).

The power of the state to acquire private land stems from the concept of ?eminent domain?, a major element of which is that land must be taken only for a public purpose and should not merely involve the transfer of private property from one individual owner to another. In the existing Act, no procedure has been prescribed by which the government, which is the deciding authority, arrives at the conclusion that land is indeed being acquired for a ?public purpose?.

The Bill 2011 attempts to remedy this lacuna by providing for pre-notification examination of the purported public purpose. For larger acquisitions, the first examination would be done through a social impact assessment (SIA) study and after that by an independent expert group that would examine SIA. A committee set up under the chief secretary would examine all acquisition proposals. The findings of SIA, and of the chief secretary?s committee, would be placed electronically in the public domain and would thus be available for public scrutiny prior to the issue of any notification.

Defining ?public purpose?, although very crucial, is extremely difficult because of the sheer vastness of its scope, the varying needs of differently evolved economies across the country, and because the concept is a dynamic one, changing with the needs of a changing society. It is critical because it is the starting point of all land acquisitions; a justified public purpose legitimises land acquisition as the benevolent exercise of eminent domain. The Supreme Court has interpreted public purpose to mean the general interest of the community as opposed to the interest of an individual. The use to which acquired property is put should, thus, benefit a large segment of society. The existing Act includes multiple activities and entities within the ambit of ?public purpose?, large segments of which are outdated.

The Bill 2011 has made the acquisition law applicable to the acquisition of land for private companies and acquisition of land with ultimate intent to transfer to companies, which are engaged in a public purpose. Such an inclusion acknowledges that such acquisitions have become an integral part of the developmental process, as more and more private sector funding is taking place for public projects.

The rub lies in the profit motive of the private sector, acquisitions for which, to displaced landowners, appears to be a breach of the fundamental principle of eminent domain, i.e., transferring private property from one individual to another for private gain. To off-set the unacceptability of such transfers and acquisitions, the Bill 2011 has added the rider that, in such cases, at least 80% of the ?affected? families must give their consent to the proposed acquisition.

Although reservations have been expressed on the practicality of the rider, it is worthwhile to try it out, as the studies of some of the most successful land acquisitions for large private sector companies have shown that social consent to such acquisitions is not only achievable but is also pivotal for the successful operation of the private project. In fact, the provision will ensure that there is indeed some ?public? content in the private project to merit land acquisition. After all, if the local community gets a win-win package, it would, in all likelihood, welcome such a project. This provision will herald the era of ?consensual? exercise of eminent domain.

The applicability clause also has the provision that the government can acquire land for its ?own use, to hold and to control?. The government should not exempt itself from acquiring land for public purpose only. This will open the way for misuse by governments.

The Bill 2011 has attempted to narrow down the description of ?public purpose? but, in the process, has opened up its own can of worms. It has included the acquisition of land for ?infrastructure, industrialisation and urbanisation projects? without defining the nature of the two latter terms. This will leave a vast canvas for interpretation of ?public purpose? available to acquisition-happy governments.

One of the most abused provisions in the existing Act is the section on ?urgency? acquisitions, which empowers the government to bypass the hearing of objections to the acquisition and to take possession of the land almost immediately after the issue of the declaration. Nearly all the land acquisitions taking place today are under this draconian provision. The Bill 2011 proposes restricting the powers of the government to use the ?urgency? clause only for the defence of India, national security and for emergencies arising out of natural calamities, that too in the rarest of cases.

Governments have also been known to bypass the ?public purpose? requirement of acquisition by changing the land use after acquiring the land. The Bill 2011 seeks to cap this loophole by not permitting a change in the declared public purpose, at least reportedly for some length of time. However, even in the subsequent disposal of such land, the restriction of ?public purpose? should apply.

Overall, the Bill 2011 is a giant leap in the right direction. But, ultimately, it is the way statutes are executed that determine their successes and failures.

The author is former secretary, department of land resources, ministry of rural development