Category Archives: Understanding India Land Rights and GM Legislation

Dirty white gold – Opinion – Al Jazeera English

Dirty white gold – Opinion – Al Jazeera English.

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Understanding India and its Acts Part II: Land Acquisition a Tool for Development

 

P R E AM B L E

 WE, THE PEOPLE OF INDIA, having solemnly resolved to

constitute India into a

SOVEREIGN

SOCIALIST

SECULAR

DEMOCRATIC

REPUBLIC

and to secure to all its citizens :

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship ;

EQUALITY of status and opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and dignity of the nation;

 IN OUR CONSTITUENT ASSEMBLY this twenty six day of

November, 1 9 4 9 , d o HEREBY ADOPT, ENACT AND G IVE TO

OURSELVES THIS CONSTITUTION.

 Introduction

 Land is necessary for everything that we do in life, from parking a car to growing food. Modern industrial man views land in terms of real estate and development value, and how much is produced from it. First world Peoples, forest dwelling tribes, pastoral and farming livelihoods have a necessary and direct relationship to land for survival.

 Complex industrial, beurocratic and capitalistic relationships exchange a direct and reciprocal relationship to land for one of distance. It is in this distance, where, divested intentions, greed and corruption can grow. It is also in this distance where we lose something precious to our sanity. As more and more we drive to a grocery outlet to buy branded and packaged foods, we leave behind the knowledge of how to feed ourselves, and in one or two generations flow on an autopilot of reliance with only a whispering from time to time in an old photo or a glimpse of an empty field that something wild once existed in our past.

It is not a question of can we survive with multinationals involved and controlling every aspect of the food chain from seeds, farms, and weather modification, to what foods are popular verses which are the most nutritious, and how inflation ceaselessly drives up prices. Ultimately some of us will survive through the repercussions – cancer, auto immune disorders, multi-resistant staff bacteria (MRSB), loss of psychological health and so on. Rather, it is a matter of what we are losing – the biodiversity of human and environment and our independence that creates a troublesome picture of the future.

 I shy away from suggesting that we all can return to some utopian agrarian lifestyle as our material social existence has left  complex consequences, on such a vast scale, the likes of which agrarian life has no answers for because it never had to deal with such things. Take for instance water polluted with pcbs and dioxins, prior to the chemical revolution these things did not exist. So when the fish are dead and the generations of downstream people are mutating from drinking poisoned water and spraying it on their crops, it would be a mistake to suggest that we can solve all our problems with one solution; but I’m bold enough to say we can stop creating new problems by reshaping our values to include ideals that could not create or propagate those same problems again.

A quick survey of the problems in the 20th and now 21st century shows me that this would mean placing nature at the center of our existence instead of money.

 Instead of developing into extinction and homogenizing those cultures who already center around nature, we should learn from them and extend every legal protection we can. Those who have not been assigned a number in the system, or had their livelihood co-opted by disposable culture, who still retain native diets and native knowledge, are a valuable link to our freedom from corporations . We need successful, peaceful examples that shows us a thriving life is still possible when we live in relationship to nature and thus we don’t need corporations to use their methods of exploitation to deliver our meal and market us happiness. These people show us by example that it can be done. And we need the farming lands, now being displaced by  mines, roads, chemical plants, and car factories (etc.), so when we finally wake out of our infantile obsession with the market place, there will be good earth to grow the food for a burgeoning worldwide population.

Because change moves slowly in a complex system, we can personally try to regain the commonwealth of our food supply through a. urban, backyard and community gardening, b. remediation of arable sites including parking lots, rooftops, etc., c. migrating displaced farmers back to their lands, d. honoring the vocation of farming as we do engineering through a shift of focus in vocational and secondary education and e. supporting changes in legislation to protect our remaining farmland from development and at the very lease supporting the rights and stabilization of first Peoples and farmers who are still connected in to the nature matrix.

 If we do not rally in support of our farmers and first Peoples, they will continue to be bulldozed over (accidentally or intentionally) by those who value economic development over these peoples ways and knowledge. Their land is easily put up on the auction block for powerful interests and governments, including India,who use certain acts to provide legal framework for acquiring land for public purposes. And those purposes as we shall see are undefined and easily manipulated when the people whose land is acquired, are poor  with less sociopolitical power.

 So lets look at the Acts … The Land Acquisition Act 1894.

The root of this act lies in the British Empire, created while Britain still colonized India. Regulation 1 of the Land Acquisition Act was set up in 1824, and gave Britain a type of eminent domain to set up public projects like roads and canals on lands purchased from their inhabitants at a “fair price” in the provinces of West Bengal. It was later expanded to Calcutta in 1850, then to Bombay and Madras, and finally to all of British India in 1857. In 1947 after Indian “idenpendence” the Land Acquisition Act was adopted as a tool to acquire privately held land for public purposes. Once a land has been identified as needed for public purpose a process of notification to said parties on said land begins.

 It is logical to suspect that something written in 1894 must have gone through some changes. First, the original act had no definition for what public purpose was. This created alot of confusion and corruption, and several attempts including one in 1984, and then in 2007 were made to hone in a definition.

Other changes have set the climate for the Land Acquisition Acts interpretation. The primary one is whether or not property is a fundamental, protectable right.

“The original constitution before the 44th Amendment of 1978 maintained that the right to own property was a fundamental right. Articles 31 & 19 (1)(f). The consitution also provided that in case of any breach or an attempt thereof of any fundamental right, the aggrieved person can approach the Supreme court for redressal. This was viewed as a hurdle by the Government that could impede its ambitious plan of acquiring land for public purpose or for a company.”

 “Thus, ever since 1951, the Govt. started, through the 1st & 4th amendment, to incorporate various land reform acts. This it did by incorporating schedule 9 of the Constitution. Time and again, the government felt that the right to property was a roadblock for it. It therefore sought to amend the constitution and aimed at abolishing the right to property. It did so in the year 1978 by the 44th amendment to the Constitution of India.”

 The road to this amendment was not very easy through. The Supreme Court had constantly held that the legislature did not have the power to amend the constitution thereby altering its basic structure. This could be seen in the case of:- Shankari Prasad V/S Union of India- Where the Court held that the legislature had ultimate power to amend the constitution even the fundamental rights. The decision was upheld in the case of Sajjan Singh v/s State of Rajasthan.Then, in Golak Nath v/s State of Punjab, the Supreme Court held that the Parliament did not have any power to amend the constitution and that article 368 of the Constitution only provided the procedure for amendment.”

“This was then finally overruled in the Keshavanandi Bharati case where it was held that the Parliament has power to amend the Constitution but not doing so to the basic structure of the constitution…….”

 “Thus as mentioned above, the 44th Constitution Amendment Act, abolished the right to own property as a fundamental right but it declared that it would remain to be ‘legal right’. Thus it could have been now possible for the Government to acquire land without apprehending any litigation challenging its act of acquisition in the Supreme Court under Article 32 of the Constitution of India.”

Quoted from an article written for online site www.legalservicesindia.com called Constitutional Validity of the Land Acquisition Act 1984. “

As more  blending of Government and Corporate interests have utilized the system of Land Acquisition in an “expanded way”, associations of displaced farmers and tribal Peoples have filed petitions for clarification as to what “public use” means and to challenge the 44th Constitutional Amendment which took away the right to own property as a fundamental right. An article in The Hindu Dated 19/10/2010 outlines the latest attempt by the people to restore property rights as a method of avoiding schemes of acquisition.

Court rejects plea to make property a fundamental right

J. Venkatesan

“New Delhi: The Supreme Court has dismissed a public interest litigation petition seeking a direction to make ‘right to property’ a fundamental right under the Constitution.”

“Though the ‘right to property’ was deleted by the 44 {+t} {+h} Constitution Amendment in 1978, it was challenged only in 2007 in the context of acquisition of large extents of land for Special Economic Zones, and the court issued notice to the Centre.”

“It was contended in the PIL petition that nowadays, further inroads into the right to property were evident in the newly formed policy on SEZs, “which has as its goal the taking over of the property of individuals, small peasants and farmers under the Land Acquisition Act without reference to their reasonableness.”

“On Monday, a Bench of Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Justice Swatanter Kumar, however, rejected the petition filed by Sanjiv Kumar Agarwal, founder of the Kolkata-based Good Governance India Foundation. Its dismissal is likely to have a bearing on land acquisition for SEZs.”

“When counsel Gopal Sankaranarayanan said the right to property was deleted by the 44 {+t} {+h} Amendment, the Bench said, “It has to be read along with the 42 {+n} {+d} Amendment by which the word ‘socialist’ was inserted in the Preamble to the Constitution. The CJI said: “If your contention is to be accepted, then we will have to reverse earlier judgments on property rights. Recently we dismissed the Gudalur Janmam petition seeking similar relief. We can’t reopen the issue.”

44th Amendment

“The petition challenged the deletion of Article 19 (1) (f) from the Fundamental Rights chapter of the Constitution by the 44th Amendment. According to the object of this Amendment, “In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Article 19 and Article 31 [compulsory acquisition of property] is being deleted.”

“The petitioner contended that over the years the importance of the right of individuals to private property was limited in scope and size and was constantly invaded by schemes of acquisition without any safeguard as to the reasonableness of the law or their ultimate purpose.”

“The right to property, which existed as a fundamental right on April 24, 1973 when the court decision in the Kesavananda Bharati case was pronounced, was part of the basic structure and could not have been amended, leave alone deleted.”

“The petitioner said Article 19 (1) (f) was inextricably linked to Articles 19 (1) (d), (e) and (g), viz. the right to move, the right to reside and settle in any part of the country and the right to occupation, which together formed the fabric of unity and integrity of the nation. And without the right to acquire, hold and dispose of property, these other rights would become ephemeral and meaningless.”

“The petitioner, therefore, sought a direction to strike down the 44th Amendment as being violative of the basic structure of the Constitution.” URL:http://www.thehindu.com/2010/10/19/stories/2010101962311300.htm ) outlines

An explanation from the Economic Times

“Generally, acquisitions for companies have been undertaken under Part II of the Act. This part concerns acquisitions by government entities for public purpose. It does not impose the above restrictions on acquisition for companies, but requires the compensation to be paid out of public funds. In order to justify acquisition for companies under this part, states have been contributing nominal amounts toward the cost of acquisition. Some governments have gone to the extent of contributing just. 100!….”

“Companies clearly find it profitable to use the state machinery to acquire land at subsidised rates; direct purchases from the owners, in contrast, are costlier and time consuming. Indeed, the acquisition process stands captured by private interests of companies and the decision-makers.”  18 Nov, 2010, 05.33AM IST, Ram Singh

As an example of  the acquisition process being captured by private interests of companies and the decision-makers, Tata Motors started constructing a factory in Singur, West Bengal to manufacture a small car called Nano. The State government of West Bengal used the 1894 Land Acquisition Act to conduct an eminent domain, forcible takeover of 997 acres of multi crop farmland to build the Tata factory.

 Critics, including myself point out that the state is not taking over privately held land for public purposes but rather for development by private business.

Ultimately Tata pulled out  in the face of direct activism and villager protests, though they still hold the lease on the land. Leaders of the ruling party of West Bengal the CPI-M (Communist Party of India – Marxist ) who is responsible for attracting Tata in the first place, verbally attacked protestors. Then on December 18, 2006. Supporters of the CPI-M brutally gang raped a 16 year old village girl  Tapasi Malik who had rallied farmers against land acquisition for Tata Motors’s Nano project. They then set her on fire alive and threw her in a pit saying that she had committed suicide. The police forced the father to sign a petition that said his daughter had committed suicide. Later after more protesting and media coverage the CPM was found guilt of involvement in her murder. The  party heavyweight from Singur Suhrid Dutta and supporter Debu Malik were  sentenced to life imprisonment.

Though Tata has pulled out of the project, the fertile land still remains gated and unused for food production, waiting for the next vulture. The CPI-M really want Tata to come back. Anil Basu, the secretary of the CPI-M’s farmers’ wing in Hooghly district, told a huge rally here attended by people mostly from that area. That “there was no force on earth which could prevent the project from taking shape again if the Tatas decided in its favour.” Judging by the brutality toward Tapasi Malik, these statements should be regarded as premeditated murder toward more opposition to come. 

In an attempt to define what Public Purpose means the Land Acquisition (Amendement) Bill of 2007  was put forth, and then tabled in Parliament and as of 2010 still had not been passed. Here is a quick overview of what the Act attempts to address:

  • The principal Act permits land acquisition if the land is to be used for a ‘public purpose’ project. ‘Acquisition’ refers to forcibly obtaining land without consent of the land owner. ‘Public purpose’ includes land needed for village-sites, town or rural planning, land for residential purposes for poor or displaced due to natural calamities, land for planned development (including education, housing, health and slum clearance), or land needed by a state corporation. The Bill changes ‘public purpose’ to allow land acquisition only for (i) strategic naval, military, or air force purposes, (ii) public infrastructure projects, or (iii) for any purpose useful to the general public where 70% of the land has already been purchased from willing sellers through the free market.
  • The Bill defines ‘infrastructure’ as any project relating to electricity, construction of roads, highways, bridges, airports, rail, mining activities, water supply, sanitation and sewerage, and any other notified public facility. (Not sure why mining is a public infrastructure -KV)
  • Currently, private land may be acquired on behalf of a company for a ‘public purpose’ project. The Bill prohibits land acquisition for companies unless they have already purchased 70% of the land needed.

One disturbing aspect of the bill is that it  “bars the jurisdiction of civil courts on all matters related to land acquisition. It is unclear whether there is a mechanism by which a person may challenge the qualification of a project as ‘public purpose.”

Excerpt from RPS Legislative Brief.  By Priya Parker and Sarita Vanka who are researchers with PRS Legislative Research, a unit of the Center for Policy Research in New Delhi. PRS is an independent initiative to make the process of law-making in India more transparent, better informed and participatory.

In upcoming posts I will present the Special Economic Zones Act and how this in conjunction with the Land Acquisition Act are laying the legal take over of  privately held farmland for development by private business .

Understanding the Indian Government and Its Acts

The Indian constitution is an incredible document in the fact that it is the longest written constitution of any sovereign country and written at a time when competing interests involved with dividing Hindustan into India and Pakistan were in violent aggrevation. The framing of India’s sovereign government was influenced by the British model of parliamentary democracy and adopted a number of principles from the United States Constitution including the separation of powers among the major branches of government, and the establishment of a Supreme Court.

There is a full pdf copy of the  Indian Constitution in the sidebar of this blog. Reading any constitution is a dry process, however, the value in it is that you know the stated rules of how the government “should” operate . With a little study of how it has changed from its original inception to now, you can  see how external influences such as changes in technology or demographic shifts have influenced its amendments and acts.

This article will attempt to outline legislation that has opened up opportunities for exploiting and shifting India’s vast natural wealth away from her people and into the hands of foreign multinationals and corrupt business ventures. With the coming of this new trend, transgenic crops are now considered for patenting, and tribal lands are on the chopping block for anything and everything ranging from dams to mining projects pushed by foreign multinationals.

Over the next four posts I will cover:

Plant Varieties and Farmers Rights Act 2001
Indian Seed Patent Act/Seeds Bill 2004
The Land acquisition Resettlement and Rehabilitation Act 1894
Forest Rights Act and
Special Economic Zones Act or SEC

But first, lets take a look at  the Indian governments structure:

India has a bicameral parliamentary system. The government comprises of three branches:

1. Executive branch, which is headed by the president (Who exercises his or her power directly through officers subordinate to him/her).
2. Legislative branch consists of both houses of parliament as well as the president.
3. Judicial branch which has the Surpeme Court, 21 High Courts and district, civil, criminal and family courts.

Parliament consists of the President and the two houses; Lok Sabha (Lower House) and Rajya Sabha (Upper House) also known as the House of people and council of states respectively. The Lok Sabha has up to 552 directly elected members from all parts of India. (2 are selected by the President) The Rajya Sabha has 238 members elected by the legislative bodies of the states and territories. Lok Sabha is the House to which the Council of Ministers is responsible under the Constitution.

The Council of Ministers also called the cabinet. This cabinet is the governments“collective decision making body”. It is composed of the Prime Minister and 33 senior government ministers.

Unlike the American Presidential system, the parliamentary system contains a President and a Prime Minster. (From Wikipedia: “The President is elected, from a group of nominees, by the elected members of the Parliament of India both the Lok Sabha and Rajya Sabha as well as of the state legislatures (Vidhan Sabhas), and serves for a term of five years.”)

 President of India is the head of state ( and the supreme commander of the Indian Armed forces. All the resolutions passed in the Lok Sabha and Rajya Sabha are sent to him  her for final approval. The President of India, acting more in a ceremonial position, appoints the leader of the party or alliance that enjoys majority support in the Lok Sabha as Prime Minister. The Prime Minister  oversees the daily functioning of the government.

Browsing the news you may read about a Standing Committee on x y and z affairs. Committees are common in all types of government. Parliament relies on committees to help process its work. There are two types of committees, Standing and Ad Hoc.

 (Wikipedia: “Standing committees are “permanent and regular committees which are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Parliament. The work of these Committees is of continuous nature”) and Adhoc committees are only appointed for specific purposes. Once their task is over, the Ad-hoc committee dissolves.

Bills, Acts and Amendments to the Constitution

Legislative proposals are brought before either house of Parliament in the form of a bill.  A bill starts in the Lok Sabha, then if approved, travels to the Rajya Sabha.If the bill passed by one house is amended by the other house, it goes back to the originating house. If the originating house does not agree with the amendments, it shall be that the two houses have disagreed.If the bill is passed by both houses of Parliament it becomes an Act of Parliament. There are many Acts listed on the side bar of this blog such as the Pesa Act of 1996 or SEC Act. 

 The Indian Constitution has been around for 60 years and has had 94 Amendments! The constitution of India provides for amendments by way of Amendment Acts as stated in article 268.

Simple Majority: An article can be amended  with a simple majority. The amendment contemplated under Articles 5-11 (Citizenship), 169 (Abolition or creation of Legislative Councils in States) and 239-A (Creation of local Legislatures or Council of Ministers or both for certain Union Territories) of the Indian Constitution can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed under Article 368.

Special Majority: Article 368 lays down which articles can be amended by a special majority or total membership of each House of Parliament as well as 2/3 of the members present and voting.

Amendment by Special Majority and Ratification by States:
Proviso to Article 368 states that amendments for certain Articles requires special majority as well as ratification by states. Ratification by states means that there has to be a resolution to that effect by one-half of the state legislatures. These articles include Article 54 (Election of President), 55 (Manner of election of President), 73 (Extent of executive power of the Union), 162 (Extent of executive power of State), 124-147 (The Union Judiciary), 214-231 (The High Courts in the States), 241 (High Courts for Union Territories), 245-255 (Distribution of Legislative powers) and Article 368 (power of the Parliament to amend the Constitution and procedure therefor) itself.

(Italic sections are copied from Amendability of Indian Constitution, www.legalservicesindia.com. For further information about amendments see their article here.

I believe this is a good place to stop. In the next post I will introduce the various political parties in India, and start dissecting the five acts mentioned at the beginning of this article.

Peace,

KV