Legislating for Justice: The Making of the 2013 Land Acquisition Law PDF
Preview Legislating for Justice: The Making of the 2013 Land Acquisition Law
Legislating for Justice Legislating for Justice The Making of the 2013 Land Acquisition Law Jairam Ramesh Muhammad Ali Khan 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries Published in India by Oxford University Press YMCA Library Building, 1 Jai Singh Road, New Delhi 110 001, India © Oxford University Press 2015 The moral rights of the authors have been asserted First Edition published in 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer ISBN-13: 978-0-19-945899-8 ISBN-10: 0-19-945899-5 Typeset in Adobe Garamond Pro 11/13 by The Graphics Solution, New Delhi 110 092 Printed in India by Rakmo Press, New Delhi 110 020 Preface This book is about why and how a truly landmark law that enshrined a new and radically different approach to acquiring land and com- pensating those affected came into being. In September 2013, Parliament gave its thumping approval, after almost 15 hours of debate in both Houses in which over 60 members took part, to the repeal of the colonial-era Land Acquisition Act, 1894 and bring in its place the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The very name of the new law signified the momentous change. The repeal followed two years of public debate and extensive consultations with all stakeholders after the introduction of the Bill in the Lok Sabha on 7 September 2011. T here was high drama in the run-up to the passage of the law. Two all-party meetings were held to get all political parties on board and address their concerns. Meetings were held with each of these eleven parties individually as well. The Bill came up in the Lok Sabha on 29 August 2013. Those were the times when Parliament used to meet only to get disrupted. But after some hectic negotiations the Bill was taken up and passed that very night. Six days later it was taken up in the Rajya Sabha again after much uncertainty and last-minute negotiations. The Bill passed but with some amendments suggested by the then principal opposition party. This meant that it had to go back to the Lok Sabha and there was just a day left for the session to get over. Fortunately, the amended Bill passed without any hitch on 5 September 2013. The passage of this law must surely rank as one of the highpoints and major achievements of the Fifteenth Lok Sabha and the 229th Session of the Rajya Sabha. Excerpts from the debates have been included in the book to give the reader a flavour of the thinking across the political spectrum on the new land acquisition law. viii PREFACE T he new law evoked different reactions. Civil society groups and social activists felt that it was not progressive enough and retained powers of the government to expropriate land in the name of ‘pub- lic purpose’. Industry felt that it would make land acquisition for manufacturing, infrastructure, and housing projects expensive and time-consuming. The law was both hailed and criticized but within Parliament there was an overwhelming consensus that it was a huge step forward to ensure justice to land owners and others who are impacted when their lands are being acquired. There was widespread agreement that the new legislation would end the era of protests, agitations, and conflicts that had become ubiquitous because of both the nature of the 1894 law and the manner of its implementation. The book explains the important provisions of the new law in some detail. It provides the rationale for not only the broad approach adopted but also for the specific formulations incorporated. As the manuscript was in the press, the Government of India issued an Ordinance on 29 December 2014 amending the law in substantial measure. To make the book up-to-date, a chapter has been included analysing these amendments and how they impact on the ‘basic structure’ of the 2013 law. Acknowledgements This book would not have been possible without the support and encouragement of a very large number of people. Mr Prabhu Dayal Meena and Mr Charanjeet Mann, both offi- cers of the Ministry of Rural Development were instrumental in the drafting of the law along with Mr K. Raju, then a Joint Secretary in the Government of India. Mr Salman Khurshid, as the then Minister for Law and Justice, along with Mr V.K. Bhasin, then Secretary of the same Ministry both of whom took a passionate interest in the drafting and helped us out with making the law achieve its final form. Mr Mihir Shah, whose invaluable inputs helped us refine our understanding of acquisition in India. Our colleagues who encouraged and proofread the drafts with a keen eye—Neelakshi Mann and Jeh Tirodhkar both of whom were there at every step with a kind word and a helping hand. A word of gratitude also to our young team of advocates and law students who helped in our research on the background—Dhruv Banerji, Divya, and Sparsh. Thank you all. CHAPTER ONE Overview Statutes on Land Acquisition are an expression of how a nation views the exercise of the sovereign right of eminent domain. This chapter introduces the concept and its evolution in an attempt to explain how it is understood and expressed under the new law. UNDERSTANDING ‘EMINENT DOMAIN’ Before embarking upon any legislative revisit, especially one of grand ambition, it is a good idea to acquaint oneself with the first principles upon which the law is to be predicated. Acquisition of property is founded upon the universally recognized principle of ‘Eminent Domain’. All countries enjoy, as a fundamental aspect of their sovereignty, a power over their land resources referred to as Eminent Domain. Eminent domain is the power of the Government, or other body through which the Executive will is expressed, to take over resources for the greater national good. At its most basic Eminent Domain refers to the inherent authority of the Government to acquire private property on the payment of fair compensation for a use that benefits the public at large. Countries, such as Australia or Hong Kong, also refer to this as ‘resumption’—a term founded on the idea that all land belongs to the Government in perpetuity and it is only ‘resuming’ such owner- ship when taking over land for a public purpose. The concept enjoys recognition under international law with the caveat that the entities, Legislating for Justice. Jairam Ramesh. © Oxford University Press 2015. Published 2015 by Oxford University Press. 2 LEGISLATING FOR JUSTICE including citizens of other nations, whose land or property is being acquired, must be justly compensated.1 Different nations exercise this power in different ways depending upon how property rights are defined in that nation. In the course of our work on a new law, we found that countries with more evolved legal regimes with a greater emphasis on civil rights provide the greater safeguards. Most countries see mention of the concept in their Constitutions itself 2 while others have statutes on the subject defining and explaining the use of this power. An illustration can be found in the Constitution of the United States of America where the power of eminent domain is circumscribed by the requirement of due pro- cess. The Fifth Amendment to their Constitution states No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. This is read with the Fourteenth Amendment which states …No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 3 In the United Kingdom, which does not have a written Constitution, compensation for ‘compulsory purchase’ is calculated 1 See pages 191–192, Malcolm N. Shaw on International Law (Sixth Edition, 2008) Cambridge University Press , particularly the observations in Williams & Humbert Ltd vs W & H Trade Marks (Jersey) Ltd [1986] 1 All ER 129; 75 ILR, p. 312, where the British House of Lords held that ‘an English court would recognise a foreign law effecting compulsory acquisition and any change of title to property which came under the control of the foreign state as a result and would accept and enforce the consequences of that compulsory acquisition without considering its merits’. This is an acknowledgment of eminent domain as an element of a nation’s sovereignty. 2 Chile and the United States of America. Article 31 (now repealed) and Article 31A of the Constitution of India. Section 51(xxxi) of the Australian Constitution. 3 For the background to this interpretation see the decision of the United States Supreme Court in C hicago, Burlington & Quincy Railroad Co. vs Chicago [166 U.S. 226 (1897)].
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