Thus far, Congress and other like minded opposition parties have leveraged the vulnerability of ruling BJP in Rajya Sabha [where the latter is in minority] to stall the land bill brought by Modi – government that seeks to amend the Land Acquisition Act [LAA] [2013] by exempting projects in 5 crucial areas of ‘strategic’ importance like defence or critical to development from “Consent” and “Social Impact Assessment [SIA]” clauses.
Faced with a stalemate, in a recent meeting of the NITI [National Institution of Transforming India] Aayog Governing Council [GC], chief ministers of the BJP ruled states proposed that the state governments may enact their own legislation suiting their requirements. The central government concurred this being a pragmatic approach as individual states can either use central law as benchmark whereas others may go for a different model.
While, opposition ruled states [especially Congress] who have taken an uncompromising stance against any changes in [LAA] [2013] may continue with it, others who perceive “Consent” and “SIA” clauses as a stumbling bloc in their agenda for development and building infrastructure would have freedom to delete these from their respective land bills. But, how do we deal with the attendant legal implications?
Acquisition and requisitioning of property” is on the “concurrent” list of the Constitution while Land itself [including land management and land record maintenance] is on the state list and can be legislated upon only by state governments. What happens when state legislation on land acquisition [which is on concurrent list] clashes with the law passed by the Union government? In such situations, Article 254 provides a way out.
According to Article 254, the law passed by state legislature could gain precedence if the President on advice of Union government, gave his consent. So, the concerned state government will have to send it to the President for approval. The legislation coming from a BJP ruled state being on the same lines as Modi’s land bill, it is obvious that Union government will make a positive recommendation and the President shall approve.
It will be a win-win for political parties on both sides of the fence. It will foster a spirit of cooperative federalism as every state will have the flexibility to try out what is in its best interest. This will also offer a good opportunity for comparison and in seeing which of the models would be beneficial to millions of farmers. Based on such assessment, they may change course if they so wish.
Unfortunately, such constructive and fruitful ideas which provide a good meeting ground and address concerns expressed by all sections are falling on deaf ears! Determined to embarrass Modi and deflate his development agenda, Congress is hunting for legal loopholes [even if there is none create one; that seems to be their over-arching philosophy] to frustrate even this highly conciliatory approach.
Thus, they are pointing to Section 107 of the LAA [2013] which says “Nothing in this Act shall prevent any state from enacting any law to enhance or add to the entitlements enumerated under this Act, which confers higher compensation than payable under this Act, or make provisions for rehabilitation and resettlement which is more beneficial than provided under this Act”. They argue that the section debar states from altering the provisions regarding “Consent” and “Social Impact Assessment [SIA]”. There is absolutely no connection between the two; while one deals with benefits, the other is on procedures and processes.
A careful reading of the section makes it clear that it deals only with “compensation” and “rehabilitation & resettlement [R&R]”. The intent is that states may give higher compensation or a more beneficial entitlement than what is provided for under the LAA [2013]. However, these benefits/entitlements will accrue to the owner only when the process of land transfer gets consummated. Unfortunately, that very process gets clogged by “Consent” and “SIA” clauses. So, the promised benefits will remain only on paper.
These very clauses about which they are trumpeting so much as being in the interest of farmers are precisely the ones which will be seriously detrimental to the interest of all [including owner/farmers; in the absence of any land sale happening, how would they get compensation?] especially millions of landless workers and other poor. This is a classical case of many ingenious ways of Congress which gains politically via indulging in loud talk but doing little on ground to actually benefit the poor.
The present government is genuinely interested in ameliorating the lot of farmers, landless and millions of other poor. That is why it wants to remove the aforementioned stumbling blocs in the way of implementing projects in 5 critical areas even while retaining clauses on compensation and R&R. Indeed, that is the rationale for its bringing amendments to LAA [2013] and now going through alternate route of letting states pass their own legislation because Team Congress is not letting former pass.
Ironically, the grand old party is now contemplating [a more apt phrase is ‘dreaming’] to bloc even the alternate route. Thus, in the event of Union government giving a positive recommendation to the President on a legislation coming from states [that does not have the “Consent” and “SIA” clauses], it intends to challenge this on the ground that this would violate Section 107 of LAA [2013]. This is patently absurd.
How can a legislation [read LAA (2013)] passed by the parliament be above the Constitution itself? It is the Constitution which allows a state to enact a law on all matters relating to land [including subjects on concurrent list] and in case it is repugnant with central legislation, the former will have precedence [Article 254]. The stick of Section 107 is too weak to come in the way.
Irrespective of how many blockages [real or imaginary] the Congress or its like minded parties put up, Modi – government which is genuinely committed to an inclusive development agenda and has already demonstrated its good intentions through concrete action on ground will doubtless find a way out of the current logjam. In this regard, states passing their own laws are an idea that must be pursued vigorously.