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Rehabilitation before displacement

By Priyanca Mathur Velath

Although the 2007 National Policy for Rehabilitation and Resettlement lays down the principle of 'minimising displacement' there have been no visible attempts to implement it. The policy fails to examine the process of displacement, which is taken for granted. The draft makes no attempt to question the need for displacement in the first place, or to seek out and actively promote non-displacing or least-displacing alternatives

On October 11, 2007, the central government announced the National Policy for Rehabilitation and Resettlement 2007 (NPRR 2007), replacing the National Policy on Resettlement and Rehabilitation for Project-Affected Families 2003. During the winter session of Parliament, two Bills, namely the Rehabilitation and Resettlement Bill and the Land Acquisition (Amendment) Bill were also introduced.

After decades of deliberation and two earlier draft policies of 2003 and 2006, Cabinet's announcement of a fresh policy -- ostensibly to live up to its promise of announcing a "just and humane" rehabilitation policy for those involuntarily displaced by development projects, including Special Economic Zones (SEZs) -- may be lauded. Information and Broadcasting Minister P R Dasmunshi was quick to point out that benefits under the new policy would be available to all affected persons and their families whose land, property or livelihood had been adversely affected by land acquisition or by involuntary displacement of a permanent nature for any other reason, such as a natural calamity; and that the policy would be applicable to all these cases, irrespective of their number (1).

However, the timing and true intention of the new policy along with its declaration to amend the outdated Land Acquisition Act of 1894 -- the existing legal framework within which land is acquired by the State -- are suspect.

As the announcement comes in the wake of nationwide protests against SEZs, critics of India's rehabilitation policy process have been quick to see this not merely as an attempt to deceive project-affected families (PAFs) into believing that their lost rights will be restored but also to quell the large-scale protests against forcible land acquisition that have erupted all over the country. Although the stated intention of "backing policy with law" may be praiseworthy, as activists have for years been demanding that a just rehabilitation process must be backed by law, a close hard look reveals that, once again, the new policy is riddled with loopholes.

Land acquisition and amendment of the Land Acquisition Act 1894

For the last 114 years, land acquisition in India has been conducted under the aegis of the colonial Land Acquisition Act of 1894 for whatever was deemed "public purpose", using the principle of "eminent domain". Last year, the Indian government announced its intention of amending this ancient Act by suitably defining the phrase "public purpose". This move to complement policy with legislation is commendable. But the attempt at redefining "public purpose" actually favours private interest and big companies over the poor and marginalised who, under the principle of "greater good" are still asked to bear the cost of development.

Under the 2007 policy it is now simpler for corporates as, along with land required for strategic and public infrastructure projects, "public purpose" has being redefined to allow the state government to acquire land for a private company, association or body of individuals, provided it is "useful for general public" (for example, employment-generation). Unfortunately, the state decides what is "useful for general public". This determination, however, is limited to those cases where the developers of SEZs/industrial projects have already purchased 70% of the land, and allows the state to buy the remaining 30% to give the developers "crucial contiguity". Activists like Harsh Mander have pointed out that there is a high probability of those owning/occupying/using the 30% of land not giving their "consent" in such cases, leading to forcible land acquisitions.

Enunciation of the "land for land" principle in the 2007 policy also suffers from similar ambiguity, as land is being offered as compensation but "to the extent that government land is available in resettlement areas". Conditional terms like "subject to availability" offer escape routes for policy implementers and corrupt bureaucrats, as past experiences of resettlement and rehabilitation in India have shown that availability of government land for resettlement is almost always low. Nonetheless, this policy makes an important announcement that land acquired by the government will revert to the government in case the proposed project does not take off within five years of the acquisition. Since land is often acquired in excess of what is needed, and later handed over to the developers for extraneous purposes like building hotels, parks and golf courses, this new clause is a positive one.

Another creditable clause in the new policy is that if the land is sold after the project has taken off, 80% of the net profit earned from the sale goes to the original landowner. In addition, the policy states that if land is acquired in an "emergency", its selling price will be higher (the solatium will be 75% of the market value, against 60% in routine cases). Also, that land acquired for "public purpose" cannot be changed to any other purpose.

There is an "order of magnitude" jump in "compensation" for land acquired by the government in NPRR 2007; it has been fixed at the average rate of 50% of the highest land sale deeds over the previous three years, or the market rate decided by the state government, whichever is higher. However, there is an inherent danger when/if landholders are given the option of being able to avail of either one-time monetary compensation or a mix of compensation and equity, as poor landholders are often tempted to opt for full cash compensation. Cash compensation tends to be used quickly, leaving families impoverished in the long run. This near-complete reliance on cash compensation sadly reveals that, yet again, the policy has "been silent on critical and long-standing problems... and (that) one of the most crucial demands of project-affected and displaced persons has been severely compromised" (2).

Then there is also the enlightened objective of making those entitled to compensation "stockholders in development" by allowing them to take up to 20% of the amount in the form of shares, if the acquiring entity is authorised to issue such instruments. How far this intention to make project-affected persons partners in the development process translates into reality is yet to be seen, although there has been a notable addition: for the first time tenants and dependents on the land are eligible for compensation.

Although the new policy lays down the principle of "minimising displacement" there have been no visible attempts to implement it. The policy fails to examine the process of displacement, which is taken for granted. The minister for rural development may laud the 2007 policy as one that puts rehabilitation before displacement, but in reality, the draft makes no attempt to question the need for displacement in the first place, or to seek out and actively promote non-displacing or least-displacing alternatives. Minimising displacement does not mean simply altering the size of the project; it implies questioning the choice of technology, whether the project is needed at all, and whether the subsequent displacement of people can be avoided. These questions must be seriously considered while the project is being conceived, not reserved for deliberation at a later stage.

But the severest critique of the policy has been an outright violation of the vital principle of "prior informed consent". The draft of the policy was made public only several days after it was announced. Why can't our policymakers ensure that PAFs and civil society groups participate in the formulation of policy and deliberations on project plans? Why are people who are going to be affected by projects not given their rightful place in the decision-making? The policy spells out a rehabilitation package but it provides PAFs with no legal guarantee to the "right to resettlement or rehabilitation". Resettlement rights must be guaranteed before any project begins and, in the event of faulty or inadequate resettlement, the project should be stopped from proceeding any further and the project developers held accountable. NPRR 2007 does not address any of these issues; nor does it give displaced persons "first rights" over the benefits of the project in question.

Employment and social impact assessment in the policy

The policy outlines a number of benefits such as scholarships for the education of eligible people from affected families; preference for groups of cooperatives of affected persons in the allotment of contracts and other economic opportunities in and around the project site; housing benefits to landless affected families in both rural and urban areas; and wage employment to willing affected persons in construction work on the project. But the "employment guarantee" to one person from each nuclear family is "subject to the availability of vacancies and suitability of the affected person". Such qualifying clauses as "if available" and "as far as possible" are widely used by project authorities and policymakers to shirk responsibility. One must note, however, that special provisions have been included in this draft for providing a lifetime monthly pension to vulnerable persons like the disabled, destitute, orphans, widows, unmarried girls, abandoned women, or people above 50 years of age who are not or cannot be provided alternative livelihoods.

Conducting a Social Impact Assessment (SIA) has been made mandatory in the policy, but only if more than 400 families have been displaced in the plains areas, and 200 in tribal, hilly and other scheduled areas. Why is the SIA mandatory only in projects above a certain size? Shouldn't every project that causes displacement be subject to assessment, irrespective of the number of families it displaces? Besides, SIAs should be conducted in such a manner that the process of rehabilitation is monitored over a longer period of time. In an attempt to push responsibility on to lower levels, provisions in the new R&R Bill are being changed to include panchayats in all consultations relating to land acquisitions prior to the issue of a notification under the Land Acquisition Bill (3). The new policy makes it mandatory to consult gram sabhas, but gives no corresponding powers to the gram sabha to ensure accountability.

There are provisions in the new 2007 policy to introduce a Land Acquisition Compensation Settlement Authority (at the local level, removed from normal civil courts, to assist quick disposal of cases involving compensation disputes), a standing relief and rehabilitation authority at the district level, an ombudsman at the state level (to monitor rehabilitation under any project), a national monitoring committee and national monitoring cell (for effective monitoring of implementation of resettlement plans, with which state governments will have to share information) and a national rehabilitation commission (which will be empowered to exercise independent oversight over the rehabilitation and resettlement of affected families). Aggrieved persons can appeal to the high court and above against settlements decided by the Land Acquisition Compensation Settlement Authority. But the policy does not answer the crucial question as to whether these committees and commissions are empowered to stop a project from proceeding if there are indeed any discrepancies or issues of inadequate resettlement.

The stated premise of the new rehabilitation and resettlement policy is to "strike a balance between the need for land for development activities, and protecting the interests of farmers, landowners, tenants, the landless and those dependent on it". In the long run, however, provisions in the policy lean more towards meeting the need for land for development purposes than protecting the interests of those who are being deprived of their lands and are dependent on those lands. The rights of those deprived of their lands cannot be restored unless the right to rehabilitation and resettlement is made a legally enforceable right. As activists like Harsh Mander suggested at a discussion on the policy at the Nehru Memorial Library in New Delhi in November 2007, affected people must have the right to challenge "public purpose" and check themselves whether any option is available to them. Aruna Roy, head of the Mazdoor Kisan Shakti Sangathan, commented that if the word "consent" were removed the policy would simply be a meek attempt at packaging rehabilitation and then there is no way displacement can be stopped.

The suggested amendments to the Land Acquisition Act appear dubious, to say the least. And activists and critics accuse the new draft of the National Rehabilitation and Resettlement Policy of being deceptive and pandering to private interests. So land rights issues remain trapped in the quagmire of political disruptions, in the process further impoverishing the displaced.

(Priyanca Mathur Velath works with the Centre for Development and Human Rights, New Delhi, and is a PhD candidate at the Centre for the Study of Law and Governance, JNU)

Endnotes

  1. 'Government approves policy on rehabilitation and resettlement', India Infoline News Service, Mumbai, October 11, 2007
  2. Manshi Asher and Manju Menon (2008), 'Land for the Landed', Tehelka, January 26, pp 50-51
  3. The Indian Express, October 31, 2007

InfoChange News & Features, July 2008