Blog: Making sense of the land ordinance imbroglio

Written By kom nampultig on Senin, 23 Februari 2015 | 07.20

The recently promulgated Land Acquisition Ordinance will be up for Parliamentary ratification in the forthcoming Budget session. With the Opposition parties taking strong and principled stance against the proposed amendments, we can expect heated debates on the subject within Parliament. In the wake of Anna Hazare's call for a dharna on the same issue at the Jantar Mantar, the national capital is likely to witness a lot of posturing in the ensuing weeks.

The opponents' case is based on their apprehension that significant dilution of the mandatory Social Impact Assessment (SIA) and Consent clauses is an attempt at strangulating the very soul of the Right to Fair Compensation and Transparency in Land Acquisition and Resettlement & Rehabilitation Act, 2013 ( LARR Act). In their view, this Ordinance seeks to muzzle the vox populi through a coercive exercise of state power thereby severely curtailing the rights provided to the affected families in the original legislation. It is therefore being labelled as being anti- farmer and pro-corporate pro land grab measure.

The proponents, on the other hand, argue that the Ordinance does not reduce any of the entitlements to the land losers in terms of compensation or Resettlement & Rehabilitation(R&R) awards. It merely seeks to enable/ empower the State Government to waive off the SIA and Consent requirements in the context of specific projects to expedite the land acquisition process. Hence they present it as being pro-development, pro- growth and by extension pro-poor.

So how does an ordinary lay person make sense of this conundrum? It is extremely important that the issues are framed and understood in the right perspective so that the contours of the debate are in the bounds of rationality rather than venturing into the domain of emotional where nuances are swept under the epithets of anti-business or anti-farmer.

In my view, SIA may be important in itself but it is also of essence to analyze the economic consequences of following such a course of action rather than viewing it from a social lens alone. Mandatory SIA for all developmental projects will merely end up spawning a SIA bureaucracy that would add to the considerable red tape faced by project developers. In the absence of any objective criterion for assessing the likely future impact, it may end up as another rent seeking body. This would impose additional costs by impeding job creating investments without yielding commensurate benefits of protecting the affected families from debilitating consequences of losing their sources of livelihoods.

It is tragic that we are unwilling to trust the existing institutions that constitute our vibrant and open democracy – an elected executive accountable to the Legislature, an independent Judiciary, a vigilant Media and a pro-active civil society; but are willing to repose our faith on few members comprising the Expert Group to prevent abuse of the provisions of the LARR Act. Where is the guarantee that the agency conducting the SIA and the members of of the Expert Group will be immune to capture from the very same political executive? If there are shortcomings in our existing institutions, the solution is to work on reforming them and making them more accountable rather than creating newer institutions only to be disillusioned with them after a short time.

So far as the consent clause for PPP/ Private Projects is concerned, the differential yard sticks for public and private provisioning of services seems to be quite disconcerting. So if land is acquired for construction of a road by the State Public Works Department, consent of affected families is not required. However for the same road, consent becomes mandatory merely because the road is being constructed for the Government by a Private entity on a PPP basis. This divergence seems particularly incongruous as it presupposes a legislative pre-disposition in favour of the state provisioning of services. Also the criterion of consent from over 70% of the affected families implies that we are giving minority a veto over the development rights of the majority which runs counter to the democratic principles.

I have one other fear regarding the LARR Act. Complex and time consuming acquisition process is akin to an invitation to middlemen to intermediate between the entrepreneur and the farmer. Since legitimate land acquisition process through state intervention is going to be costly as well as time consuming with little or no restrictions on private purchase of land, we are going to see over time the emergence of a class of well connected land agglomerators with political patronage as well as financial clout. These middle-men would purchase land from the farmers using all kinds of dubious tactics. The land so purchased would be sold off to the entrepreneurs at a high price with the intermediaries making a killing. Such a scenario can hardly sub-serve the interests of the farmers while making development hostage to these intermediaries.

So what is the way forward? Given significant misgivings relating to the Ordinance it would be wise for the Government to try and evolve a common ground that can allow smooth acquisition proceedings while at the same time allaying fears of abuse of the proposed amendments. Critical elements of such an approach would be as follows:-

* Rather than a sledge hammer approach of making SIA mandatory for all projects or doing away with it in toto, a more nuanced approach would be  drawing up a negative list of projects for which SIA could be made mandatory (e.g. Multipurpose Dams, Nuclear Power Projects, Large Townships etc.). Smaller projects involving limited displacements and dislocations such as Roads, Schools, Health facilities, Power Stations and such other public utilities may be exempted from mandatory SIA.

* As regards consent clause, instead of making it private sector specific it would be useful to make it project specific. So projects such as roads, schools, hospitals, utilities – whether implemented by public or private sector- should not require consent where as projects such as commercial townships, nuclear plants etc. should have mandatory consent requirement irrespective of the fact of who is constructing it. Moreover the consent threshold should be reduced to over 50% of the affected families.

 

DISCLAIMER : Views expressed above are the author's own.


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