Shortly before the winter session of Parliament ended, the government tabled the Rehabilitation and Resettlement Bill, 2007. The bill seeks to "provide for the rehabilitation and resettlement of persons affected by the acquisition of land for projects of public purpose or involuntary displacement due to any other reason". The bill comes at a time when concerted efforts are being made by both the central and state governments to increase economic activity through the deployment of domestic and foreign private capital on a gigantic scale in new infrastructure and industry.
Land as an incentive
Various models of engagement have been proposed by Governments to attract large investors including the 'Special Economic Zones', 'Private-Public partnerships' and 'Build-Operate-and-Transfer'. These models provide incentives that may include tax and duty concessions, simplified regulations and provisions for infrastructure facilities, but most importantly, land made available by the state at desirable locations and low prices. To make the proposition more attractive, land is promised not just for the requirements of the planned economic activity, but also for other uses such as developing residential townships, business districts or entertainment hubs. Examples of such projects are the Bangalore Mysore Infrastructure Corridor, the proposed Reliance Haryana Special Economic Zone and the recently announced Ganga Expressway.
Displacement and the land acquisition law
The history of large scale land acquisition and consequent displacement goes back to the 1950s, when the newly independent republic embarked on large state owned projects for irrigation, power, steel and heavy engineering that were meant to occupy the 'towering heights of the economy'. As an illustration of the scale of displacement, just the reservoir of the Hirakud dam, India's first major river valley project, whose foundation stone was laid by Jawaharlal Nehru in 1948 and which was completed in 1957, occupied an area of 727 sq km.
Land for even such gigantic projects was (and continues to be) acquired using the coercive powers provided by the colonial Land Acquisition Act. It narrowly defined persons affected by an acquisition to be either land owners or occupiers (tenants), and limited compensation to purely monetary terms. However, large scale acquisition covered entire villages and their common property resources - tanks, grazing lands and village forests. The typical Indian village consists of many categories of persons other than landowning peasants and tenant farmers - agricultural labourers, artisans and others servicing the farmers' needs - who, even while not owning land, depend on it directly or indirectly. The law did not recognize their rights as affected parties.
Nor did it recognize or compensate for the expropriation of common property resources that played a major role in supporting the livelihood of the villagers, specially the poorer ones. Returning to the example of Hirakud, official figures that counted only land title holders put the number of people displaced at 110,000; figures from academics, that also accounted for people providing services and those who lived off common property resources, put the number at 180,000.
The Land Acquisition Act, when applied to large scale acquisitions resulted in displacement and deprivation of means of livelihood for the affected people, but did not give them the right to resettlement or rehabilitation. Even those who were compensated monetarily were hard put to replace their lost land assets and regain their means of livelihood. In the absence of any rehabilitation plan, people displaced by Hirakud occupied whatever open lands they could locate. These lands were not legally theirs, making them vulnerable to constant harassment by officials.
Limitations of policy
While Hirakud illustrates the situation that prevailed in the 1950s, the Narmada Sardar Sarovar project is illustrative of how things have changed over the last five decades. The project, when completed, is expected to create a reservoir over 400 sq km submerging 245 villages. The government's estimate of the number of families affected by the project has continuously changed with time - from around 12,000 in 1988 when the Planning Commission looked at the investment for the project, to over 40,000 by 1994. The Narmada Bachao Andolan (NBA) estimates that the figure is higher and points to the non inclusion of petty traders, village shop-keepers and fishing families as well as families affected by canals and other subsidiary works in the Government figures.
The Narmada Tribunal, in its award, decided the sharing of waters between states also specified a rehabilitation policy. Construction work on the Sardar Sarovar Project on the Narmada started in 1987. The Narmada Control Authority (NCA), with representation from central and state Governments, was charged with overseeing the rehabilitation and resettlement of project affected people. The project itself was given conditional clearance by the Government, one of the conditions being that construction of the dam would keep pace with rehabilitation and resettlement.
After exhausting avenues of working with the authorities, the NBA went to the Supreme Court with a Public Interest Litigation in 1994 asking for a suspension of construction pending a comprehensive review of the project on various grounds including serious failures in rehabilitation and consequent hardship and suffering of project affected people.
The Supreme Court granted an interim stay on construction in 1995, but in its eventual judgement of October 2000, coming after 6 years, rejected the NBA petition and allowed the construction to proceed. The Court expressed satisfaction with the machinery of the Government for rehabilitation and saw no reason to doubt the independence of this machinery. It also held the view that the machinery was to be presumed to be working: "there is no reason now to assume that these authorities will not function properly. In our opinion the Court should have no role to play." It reiterated that construction should keep pace with implementation of the relief and rehabilitation and take place only on the clearance from the NCA.
The above judgement and subsequent orders of the Supreme Court relating to this dispute seem to derive from the understanding that policy implementation is the prerogative of the executive, with the courts having no role to play.
The Narmada Bachao Andolan continues to hold that R&R lags behind construction and does not conform to even the declared policy, and this view is supported by many writers, academics, former civil servants and others.
The experience of the Sardar Sarovar and many other projects over the last 60 years reveals the inadequacy of policy - at the project, company, state or even national level - to address the legal neglect of displacement and the rights of the affected people, particularly those without land or tenancy. Policy is not enforceable. Will the courts provide relief when the promises contained in a policy are not adhered to? Explaining how courts look at policy as opposed to statute law, Usha Ramanathan writes: "Statute law where it defines (or denies) rights is binding. Policy on the other hand, has at best a persuasive value. Courts are bound by statements in the law, but are free to be guided by policy or to ignore it."
There has been general recognition among those concerned with displacement that the law must look at the entirety of loss of rights of the affected, not just the loss of ownership and tenancy rights and that resettlement and rehabilitation should be as much the consideration of law as the land acquisition that necessitates them.
The proposed R&R legislation
These are, then, some of the issues under debate as the Rehabilitation and Resettlement bill 2007 is being introduced.
The bill seeks to establish an R&R administration at the central and state levels. This administration will be responsible for planning for and implementing R&R. The bill describes the process to be followed while planning and implementing R&R and prescribes how 'affected areas' and 'affected families' are to be identified and the quantum of benefits for different categories of the latter.
Perhaps the only recourse to courts allowed by the bill is in case of violation of the R&R process that it specifies.
The bill prescribes conditions for project affected families to qualify as beneficiaries and makes the benefits themselves conditional on external circumstances.
An area will be notified as an 'affected area' "where the appropriate Government is of the opinion that there is likely to be involuntary displacement of four hundred or more families en masse in plain areas" (the number is less for hilly and tribal areas). R&R planning is mandated by the bill only for families living in such 'affected areas'. A family that neither owns nor occupies (tenants) land such as that of an agricultural labourer, artisan, small shop keeper, etc will be considered to be an 'affected family' and entitled to any R&R benefits only if it is displaced from a notified 'affected area'.
Thus the opinion of the Government on the scale of the displacement will decide if there will be planned R&R of the displaced. The scale of displacement will determine if families who neither own nor occupy land (who are the poorest) will be entitled to any benefits at all - unconscionable from the standpoint of justice. Other conditions also apply to these families in particular, such as the need to prove residence for 5 years in the affected area in order to claim benefits, revealing the distrust of the Government towards this section of society.
There are many other conditions attached to the benefits. Land will be allotted to 'affected families' whose agricultural land has been acquired "if Government land is available in the resettlement area". Preference will be given in jobs to 'affected families', "subject to the availability of vacancies and suitability of the affected person for the employment".
The bill also talks about a 'social impact assessment' that will be required when there is large scale displacement, an idea similar to the 'environment impact assessment' that is now mandatory for projects. The details of how this will work are not clear from the bill and it is early to comment if and how this will benefit people affected by a project.
While acquiring land for a 'public purpose', with its attendant displacement and denial of livelihood, is claimed as a right of the state under its powers of eminent domain, the R&R bill does not accept that it is the unconditional duty of the state to resettle and rehabilitate all the affected citizens so that they are able to maintain, if not improve, their current standard of living. Instead, rehabilitation is presented as an act of benevolence of the state, a measure to mitigate the suffering of the affected citizens to the extent permitted by the external circumstances and subject to various conditions.
By this stance, involuntary displacement caused by the planned exercise of the coercive powers of the state is equated with displacement caused by chance natural calamity, both deserving of the same response from the state. Also, the discretionary powers vested in the Government, the numerous conditions associated with rehabilitation and resettlement and the un-enforceability of various provisions all reduce the proposed legislation to little more than a statement of policy.