Verdict Corner: Landing in trouble

Repromulgation of the land acquisition ordinance could become difficult for the govt if the Supreme Court takes a dim view of the acquisition regime it proposes.

With the Narendra Modi-led government unable to reach a consensus with the opposition on the land acquisition Bill, the bill is unlikely to be presented in Parliament during the ongoing monsoon session—which means the related ordinance may be promulgated for an unprecedented fourth time. Hostility from most political parties and farmer groups signal a difficult passage for the Bill.

While the Congress Party said that the original Act, passed by it in 2013, was meant to avoid abuses and provide just and fair rehabilitation to even the minimally-affected people, critics of the NDA government’s proposed changes are apprehensive that the new exemptions will be used to further private projects that are not really beneficial to the public. Opposition parties also feel that these trample upon the rights of the poor farmers.

But supporters say the revisions are a necessary step to industrialisation as it will make it easier for industries and infrastructure firms to acquire land for new projects, particularly in rural India and this will eventually help many farmers out of poverty.

While, so far, it has been the political parties between whom the debate has raged, the courts too have joined in by decrying mindless land acquisitions.

Recently, the Supreme Court, in the matter of Laxmi Devi vs State of Bihar, flayed the way the Land Acquisition Act, 1894, as amended from time to time, is being misused by state governments by invoking the ‘urgency’ clause for acquiring large tracts of lands and then leaving it idle for decades. In this case, the Bihar government had acquired huge tracts of land in Mouza Sansarpur and in Hardas Chak, and the land remained unutilised for three decades.

Criticising this attitude, the apex court said: “It is indeed ironical that what was, as far back as in 1987, perceived as an imperative, urgent and exigent necessity, justifying the steam-rolling of the rights of citizens, has proved substantially to be a fallow and ill-conceived requirement even after the passage of three decades; till date, tracts of the acquired land remain unutilised; the initially declared purpose of construction of residential quarters for state officials having novated to portions of the land being used as helipads for ‘state dignitaries’. We must not forget that even though ownership of property has ceased to be conceived of as a fundamental right, it continues to receive Constitutional protection.”

“Our opinion intends to insulate genuinely urgent projects from lapsing and not to annihilate the constitutional rights of the individual from the might of the state even though it transgresses the essence of the statute. It has become alarmingly commonplace for lands to be expropriated under the banner of urgency or even under the normal procedure, only to be followed by a withdrawal or retraction from this exercise enabling a favoured few to harvest the ill-begotten windfall.”

“With the enormous expansion of the state’s role in promoting public welfare and economic development since Independence, acquisition of land for public purposes, industrialisation, building of institutions, etc., has become far more numerous than ever before. While this is inevitable, promotion of public purpose has to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the state or for an enterprise under it. The individual and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for the larger interests of the community,” the apex court said, pointing out that the land-owners were denied just and fair compensation for their land.

The NDA government, thus, seems set for a tough time at the apex court, which is examining the constitutional validity of repromulgating of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015. Four farmer groups—Bharatiya Kisan Union (BKU), Delhi Grameen Samaj, Gram Sewa Samiti and Chogama Vikas Avam Kalyan Samiti—have alleged that the government is bypassing Parliament, trying to govern the country by ordinance raj. They have also contested the land ordinance as well as its first re-promulgation.

Senior advocate Indira Jaising questioned how the government could re-promulgate the ordinance when the matter was under judicial review as the SC had issued notice to the Centre on the earlier petition against the ordinance.

“The government, in complete contravention of the basic Constitutional ethos that lawmaking function is of Parliament, has proceeded to issue the impugned ordinance and seek to govern this country by ‘Ordinance Raj’. It is the third ordinance to be passed successively by the Central government in its attempt to thrust a land acquisition law in the country without sanction of Parliament,” the petition states, adding that the life and liberty of citizens could not be regulated by ordinances and the government could not arrogate to itself the law-making function of the legislature.

Lawyers argue the government can’t resort to ordinances because of “lack of political will or consensus or the fear of getting defeated on the floor of the House”. The ordinance was promulgated for the third time on May 31. An ordinance, which has a life span of six months has to be re-promulgated if it does not get the endorsement of Parliament within six weeks of the start of a session.

The government is yet to respond to the farmer groups’ allegations, but an adverse decision by the Supreme Court would hamper PM Modi’s ability to reissue the ordinance a fourth time. Not only this, if the government fails to transact any serious legislative business, it will seriously dent the government’s efforts on the policy front too.

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