Money doesn’t make the landowner fonder -EAS Sharma on Land Acquisition Bill

The country’s first legislation on land acquisition, rehabilitation and resettlement is out as a first draft. Here is a sharp critique of the bill

THE GOVERNMENT has made public the new Draft National Land Acquisition and Rehabilitation & Resettlement Bill, 2011, which FWhas run in these columns over three days. This is what I think of it. In terms of the definition of public purpose, the Bill is more colonial and draconian than its older counterpart. The sops provided in the new Bill for Scheduled Tribes defeat the constitutional rights that the Fifth Schedule (Clause 5) has conferred on tribals in the notified areas. In principle, no land should be acquired in the Scheduled Areas. The Bill is regressive and should undergo major changes before it can be made people-friendly. In its present form, it provides enormous scope for rent-seeking among politicians and bureaucrats and leads to large-scale human rights violations.

The 1984 Land Acquisition Act is in itself a draconian law enacted by the colonial rulers at that time in the name of invoking the state’s Eminent Domain to forcibly acquire private lands in the name of public purpose. The compensation offered to the displaced persons under this Act is necessarily below the market price as the price is determined by the local officials on the basis of the sale and purchase prices obtained from land transactions that have taken place in the vicinity. The latter always represented gross undervaluation by the parties to the transaction to avoid paying the registration charges. In other words, the compensation amounts paid under the Act failed to capture the real value of the land. In most cases, the authorities routinely invoked the urgency clause to dispossess voiceless citizens but the process of payment of compensation remained tortuous and time-consuming.

We have a case in Visakhapatnam, Andhra Pradesh, where several farmers were dispossessed from their lands submerged under the waters of the Tandava Reservoir Project thirty years ago but they are yet to receive compensation. The Act unfortunately never stipulated that no land should be taken without payment of compensation. People have sentimental association with the land inherited by them from their forefathers. In the case of the Mangalore SEZ, Gregory Patrao, whom I had the benefit of meeting a couple of years ago, showed me his village and his ancestral house, explaining that his house was the weekly meeting place for his community for offering prayers till a church was built. The church itself was built hundreds of years ago. In other words, for Gregory Patrao, the sentimental value of the house was immeasurable, irrespective of whatever public purpose the government had cited to displace him and irrespective of the price tag attached to the land. He refused to accept it the cash packet the government dangled. He was forcibly evicted from the house, which was demolished to accommodate the SEZ.

Those that own and manage the SEZ will appropriate large chunks of the land acquired to locate their palatial residences and lead lives of such high quality that the displaced families could never aspire for. The so-called rehabilitation colony proposed for the displaced families near Mangalore is a sight that anyone with a sense of dignity would abhor. Do we want such incidents to happen in a civilised democracy? The Ministry of Rural Development (MRD), which is ensconced in air-conditioned rooms of Krishi Bhavan in New Delhi, is perhaps far too disconnected with the ground reality to appreciate the finer concerns of the citizens of this country, as far as land acquisition is concerned. The recent landmark order pronounced by Supreme Court on the need for the authorities to exercise self-restraint in depriving citizens of their land assets should force the MRD to rethink on this. There are a few fundamental issues that need to be addressed by the MRD before considering a new land acquisition law. These are as follows.

The Bill provides a highly distorted and warped view of development. It makes one believe that industrialisation is an end in itself and everything else is subsidiary to it. The Indian Constitution envisages a development process that springs out of what the people want in terms of what is good for them. The choices with regard to development projects should lie with the people, not the government. Once this basic premise is accepted, the question of someone at the top imposing a project on the local community against its will and forcibly acquiring land should not arise. Unfortunately, the Preamble to the Bill starts with this warped objective, rendering the remaining parts of it highly regressive.

Industrialisation cannot be an end in itself. Indiscriminate industrialisation cannot contribute to balanced development. For example, the Ministry of Environment and Forests (MOEF) has cleared more than 2,00,000 mw of base load power generation capacity as a part of the laissez fair approach of the government. Whereas the most optimistic electricity demand estimates of the Central Electricity Authority do not justify such a large incremental capacity nor is it good from the point of view of protecting the environment. Should the state invoke its Eminent Domain authority to dispossess people of their land by calling such unwanted projects infrastructure facilities for public purpose? This argument holds well in the case of mining projects, ports, SEZs and so on. In most cases, the developers expect the state to give many other concessions including hefty tax sops. This has become one of the most important factors promoting corruption and black money in India. Should the state’s Eminent Domain be invoked to promote corruption?

Private companies invest in projects to earn profits. They rarely do it to promote public welfare. Any industrial activity will incidentally provide goods for public use. Can the definition of public purpose be stretched to include all such activities that enable the developers to realise returns for their personal benefits? The Preamble to the Bill starts with the statement that it primarily aims to ‘balance the need for facilitating land acquisition for industrialisation, development of essential infrastructure facilities and urbanisation, while at the same time to meaningfully address the concerns of farmers and those whose livelihoods are dependent on the land being acquired’. Other than industrialisation, is there no development activity that the government should pursue? To take an extreme case, if the proportion of agricultural or forest land falls below a threshold limit, will it not become necessary for the state to invoke its Eminent Domain authority to acquire the land belonging to an industrial house to accommodate either agriculture or forestry? Should not the Bill, if it were to be equitable, provide for acquiring industrial land to accommodate traditional fishing communities and artisans?

CLAUSE 5 of the Fifth Schedule to the Constitution requires the Governor in each state to review all laws and adapt them to suit the interests of the Scheduled Tribes before extending their application to the notified Scheduled Areas. This implies special constitutional rights conferred on the tribals. Even though more than six decades have gone by after Independence, India has failed to carry out such a review. The land acquisition law should have been reviewed in accordance with this provision and an adapted version of it should have been kept ready. Those that have drafted this new Bill are perhaps unaware of this far-reaching constitutional requirement. By providing an innocuous clause (Clause 13) in Schedule II to the Bill, the drafters perhaps thought they had done all that was necessary to dole out charity to the tribals. They should know that the Constitution has provided a statutory entitlement and a price tag attached to rehabilitation can never be compensation for it.

A disturbing feature of land acquisition as revealed in the case the Outer Ring Road (ORR) in Hyderabad is that selective acquisition was resorted to and many influential persons were left out. The less influential received compensation fixed by the government and later, the more influential exploited the incremental value of their land adjacent to orr to realised enormous windfall benefits. Cash compensation for land acquired has been found by many research workers to have led to highly undesirable socioeconomic outcomes. Usually, an agricultural family that has lost its land as a result of acquisition is rarely in a position to buy alternate land elsewhere, because part of the cash compensation goes into artificially-boosted consumption and the purchase value of alternate land is far higher than the compensation amount itself. This usually leads to undesirable occupational displacement of the affected family.

Against the above background, I offer the following comments and suggestions. In the new Bill, invoking the Eminent Domain of the state should be a last resort, limited to a highly restricted definition of public purpose, after the state satisfies itself that the land requirement computed by the requisitioning agency conforms to stringent land use norms, both in terms of the area and the use. In order to translate this intention into a tangible legal provision, acquisition in excess of a few acres (say, 10 acres) in a rural area should have the legislature’s prior approval. No land should be acquired for a company that has been set up to earn profits. Even when limited land is acquired for, say, a government hospital or a school, the land so taken from the owner should be treated as on long lease with the rental indexed to the market value variation in the area, computed on the basis of its potential future value rather than on existing value.

The definition of public purpose in the Bill is open-ended. It is more draconian than its counterpart in the old Act. The relevant definition in the Bill will enable the state to include any profitable private land acquisition proposal within its ambit, rendering the concept of right to property contemplated in Article 300A dysfunctional. This right was a fundamental right (erstwhile Article 31) replaced in 1977 by Article 300A in the 44th Constitution Amendment. The amendment itself was regressive, as it was introduced to accommodate large psus with an insatiable appetite for land. Indiscriminate land acquisition was the outcome of this. Later, this has helped influential private players take advantage of the loophole provided. Politicians and bureaucrats in nexus with private players have exploited this provision on a large scale.

There should be a ban on acquisition of land belonging to tribals in all Scheduled Areas as it will deprive them of their rights. The decision to set up a development project in the Scheduled Areas should lie with the tribal Gram Sabhas, Panchayats and Tribal Advisory Councils. Even if such a project is to be set up, it should be owned and managed by the tribals. Thus, the question of land acquisition should not arise in Scheduled Areas. In the rest of the country, the choices about setting up projects should emerge from discussion and debate among the local communities. It may so happen that the local communities have more people-friendly approaches than what the Bill envisages.

A major sop in the new Bill is the rehabilitation and resettlement package, as though it would undo the trauma caused by forcible land acquisition and the human rights violations involved. Proposing a package without addressing the fundamental issues is not acceptable. The Bill in its present form is people-unfriendly and is, therefore, unacceptable. It should be revamped totally. Land acquisition involves deprivation of people’s right to property and consequent human rights violations. These are not choices that should be left entirely to democratic processes. They need to conform to the norms set out in the Constitution. The Bill fails the test.

EAS Sarma is currently convenor of the Forum for Better Visakha, also is the former finance secretary Government of India based in Visakhapatnam. 
eassarma@gmail.com

Should we encourage biopirates to expand their business in India?

An appeal for your URGENT support
Should we encourage biopirates to expand their business in India?
06 August 2011
Dear Friends,
As you are aware, the environmental release of the first ever Genetically Modified Food (Bt Brinjal – eggplant) in India, promoted by M/s Mahyco (an Indian subsidiary of US TNC Monsanto), was stayed by a February 2011 decision by then Indian Environment Minister Jairam Ramesh who ordered a moratorium on the product’s environmental and commercial release. This decision was the outcome of public opinion gathered in a series of nation-wide public consultations that he held and based also on a variety of scientific evidence and legal analysis. Fundamentally, Mr. Ramesh held that per the Precautionary Principle not enough was known of the environmental, public health, economic and social consequences of GMO foods. Therefore it was prudent to postpone the decision until there was absolute certainty that GMOs subserved the common good.
Moratorium decision on Bt Brinjal sidestepped biopiracy issue:
In addition to concerns over the public health and environmental implications of GMOs, Environment Support Group raised a serious concern that in promoting Bt Brinjal, Mahyco/Monsanto, along with it collaborators (University of Agricultural Sciences -Dharwad, Sathguru Consultants, Cornell University and Tamil Nadu Agricultural University; collaborators under the ABSP-II project funded by USAID) had fundamentally flouted laws protecting biodiversity in India. The specific charge made was that these agencies had accessed at least 9 local varieties of brinjal in developing the Bt Brinjal product and all this was done without any prior permission from the National Biodiversity Authority (NBA), State Biodiversity Board, Local Biodiversity Management Committees, as required per the Convention on Biological Diversity, 1992 and the Biological Diversity Act, 2002. Therefore, the action of bringing the Bt Brinjal product to a final decision of commercial release constituted an act of biopiracy: a very serious crime that is cognisable, non-bailable and additionally involves large fines. It was also submitted to the Minister that such actions seriously compromised and denied economic and social benefits to local communities under the Access and Benefit Sharing Regime.
Mr. Ramesh chose to sidestep this critical issue while ordergin moratorium on the release of Bt Brinjal.
ESG complaint against biopiracy:
Environment Support Group, however, pursued the case, and filed a complaint before the statutory Karnataka Biodiversity Board on 15 February 2011 (copy attached). The Board took cognisance of this complaint, proceeded to investigate it thoroughly, issued notices on all agencies involved in promoting Bt Brinjal and also held hearings. In their defence, Bt Brinjal promoters Mahyco/Monsanto have absolutely denied violation of biodiversity protection laws while others, such as University of Agricultural Sciences – Dharwar have claimed that these laws do not at all apply to them. Based on this evidence, the Board has repeatedly requested the National Biodiversity Authority (NBA) to take appropriate action in accordance with law. NBA, however, has dithered on taking a decision on this critical complaint – for over a year now.
Monsanto now wants India’s onions:
Perhaps encouraged by weak regulation by NBA, Monsanto Holdings has now applied for accessing a variety of onions grown in India for potential hybridisation, commodification and commercial release. A copy of the application made by Monsanto is enclosed. As we understand, NBA has forwarded Monsanto’s application to relevant State regulatory authorities and applicable Biodiversity Management Committees (at Panchayat/Nagarpalika levels) with the demand that the application be cleared no later than 27 August 2011.
It is a matter of very serious worry that NBA which has failed to demonstrate urgency in dealing with complaint of biopiracy against Mahyco/Monsanto, has wasted no time at all in processing Monsanto’s application to access onions.
It is imperative for NBA to enforce India’s biodiversity protection laws and also act in conformance with the Public Trust Doctrine, Precautionary Principle, Principle of Intergenerational Equity and the Polluter Pays Principle and other applicable laws. We fear that such lax behaviour on the part of a key regulatory agency encourages businesses to continue their business-as-usual approach, untrammelled by any fear of punitive action for violating India’s biodiversity protection laws and for compromising India’s sovereign control over its biological resources.
Demand decisions in NBA meeting on 9th August 2011:
With this in view, we wish to demand that NBA in its meeting scheduled on 9th August 2011 must take a categorical decision on the charge of biopiracy against those promoting Bt Brinjal product based on comprehensive investigation and reporting by the Karnataka Biodiversity BoardPending adjudication of this matter, no fresh application for accessing India’s biological resources must be entertained from any agency being investigated for biopiracy. Such a norm is critical to safeguard ongoing investigations and protecting biological wealth of India, and is an approach that is in consonance with various Supreme Court decisions, most recently evidenced by banning mining by all in light of widespread illegal mining in Bellary.
If you wish to support this demand, kindly sign on the petition (enclosed) by providing your name, full address, and organisational affiliation (if any), no later than 11 pm on 8th August 2011. Kindly leave the subject as is to help us to process your endorsement.
To further assist you in endorsing this petition we have also made it accessible online at:http://www.ipetitions.com/petition/monsanto_biopiracy/
We seek this support from you so that India’s biological resources are protected and conserved to ensure ecological, food, economic and social security of present and future generations.
Thank you for your cooperation and support.
Yours sincerely,
Leo F. Saldanha
Bhargavi S. Rao

Environment Support Group


[Environment, Social Justice and Governance Initiatives]
1572, 36th Cross,
Banashankari II Stage,
Bangalore 560070. INDIA
Tel: 91-80-26713559-61
Voice/Fax: 91-80-26713316
Email: esg@esgindia.org
Web: www.esgindia.org
Petition to National Biodiversity Authority:
Shri M.F.Farooqui, IAS.,
Chairman,
National Biodiversity Authority,
(Full Addl. Charge)
&
Additional Secretary,
Ministry of Environment and Forests,
Government of India,
5th Floor, TICEL Bio Park,
Taramani, Chennai – 600 113
Tel: 91-044-2254 1805
Fax: 91-044-2254 1073
8th August 2011
Dear Shri. Farooqui,
As you are aware, Environment Support Group has filed a complaint against M/s Mahyco/Monsanto and their collaborators in promoting Bt Brinjal in violation of India’s Biological Diversity Act, 2002 and Convention on Biological Diversity, 1992. This complaint has been pending adjudication by the National Biodiversity Authority for over a year now, notwithstanding comprehensive investigations that have been undertaken by Karnataka State Biodiversity Board.
The Authority which has not found the necessary time and resource to adjudicate the matter with due dispatch, has now proceeded to process an application from Monsanto Holdings to access onions in India for hybridisation and possible commercial release. Such double standards is not an healthy indicator that the Authority is independently and rigorously implementing Biological Diversity Act in order to protect our biological resources for the benefit of present and future generations.
When the Authority meets on 9th August 2011, it is imperative that it takes a decision on the pending complaint of biopiracy against M/s Mahyco/Monsanto and its collaborators. Such action is imperative on the part of the regulatory Authority and will build public confidence that it is not dithering in taking a correct decision due to extraneous pressures.
We also demand that pending adjudication of this matter, no application must be processed for accessing biological resources of India from any of the agencies being investigated on grounds of biopiracy. Such a policy is consistent with best practices employed by the Government of India and also with various Supreme Court decisions – most recently in banning mining by all as a measure of taking action against widespread illegal mining in Bellary district of Karnataka.
We hope that the Authority will take appropriate decisions with due dispatch to safeguard India’s biodiversity and the wider public interest.


Seed Bill concerns: Pls circulate as it would be tabled on 3rd August 2011 in Rajyasabha

Friends

Indian Government planned to introduce the Seed Bill in 2004 with controversial clauses including farmers not allowed to save/reuse seeds.  The bill faced with severe opposition from the farmers, farmers unions, civil society and political parties and was refered to Parliamentary Standing Committee.  in 2009 a revised version of the bill allowing farmers to save and reuse seed but prevent from selling seeds (particularly branded ones).  In the mean time, the Bt cotton experience showed that the IPRs on seed production technologies would be a serious issue as the royalties collected were huge.  For example, the Monsanto Mahyco Biotech (MMB) collected 50 lakhs as one time payment and Rs. 1200 as royalty on each packet of bt cotton seed which is 450 g sufficient for one acre.  After the AP government intervened in Monopoly and Restricted Trade Practices Commission, used the powers under Seed Control Order 1983 (powers drawn from Essential Commodities Act    1955 as cotton seed is listed as an essential commodity) the prices were reduced to 650 and later to Rs. 950 /packet this year.  The seed companies were powerful enough and got the cotton seed deleted from the Essential Commodity Act.  The Companies also made a kill by increasing seed rate per acre to two packets.

In addition when there was a massive crop failure in 2005 and confirmed that it was due to seed failure.  Company moved to court saying AP state has no power to ask for compensation as the Seed Bill 1966 do not give those powers.  Similarly, court cases were filed when AP government tried to regulate seed prices and royalties.

keeping in view all these we approached the  centre to introduce clauses which gives powers to state to regulate seed prices and royalties as the states (or centre) do not have the powers.  The Seed Control Order 1983 would be repealed now with this new bill.  Please find enclosed our letter to the Prime Minister and Agri Minister, Analysis of Seed bill and the Several State Governments responses

Representation on Seed Bill, 2010 to Prime Minister

AMENDMENTS PROPOSED BY AP STATE GOVT FOR THE SEED BILL 2004

SEED BILL 2010 an analytical view

Standing_Committee-Report-on-the-Seeds-Bill-2004

Seed bill 2010 concerns and amendments proposed hindi

Seed Bill 2010 with Amendments

seed bill 2010 final analysis by govt

MODEL BI LL FOR THE PROTECTI ON, CONSERVATI ON, MANAGEMENT AND REGULATI ON O F GROUNDWATER

Model Bill Groundwater 29.7.11 download

Water Initiatives Odisha (WIO) is actively participating in formulation of the Draft Model Ground Water Bill being facilitated by the Planning Commission.  We are enclosing herewith the Draft Bill that has been developed and modified in a discussion in a meeting that was held in the Commission yesterday(29th July 2011), in which WIO participated.  

This mail is to request you to please give in your comments and feedback on this Draft Bill so that we can compile all of those and send it to the Planning Commission. 

As you are all aware, this Bill will have a lot of bearing on the present and future of water availability and quality in the country and hence this needs serious attention. Please therefore consider this matter as utmost URGENT and kindly pass on to us your detailed comments within seven days.

Ranjan Panda
Convenor, WIO 

Water Initiatives Odisha: Fighting water woes, combating climate change… more than two decades now!
R-3/A-4, J. M. Colony, Budharaja
Sambalpur 768 004, Odisha, INDIA
Mobile: +919437050103
Email: ranjanpanda@gmail.comranjanpanda@yahoo.com