RESPONSE. 'Mr Jaitley's criticisms are disingenuous'

For some time now, the BJP — and particularly Mr Arun Jaitley — has been decrying the UPA’s version of the land acquisition law as “badly drafted”. Perhaps as a last resort to salvage some credibility, in light of the forced withdrawal of the BJP’s amendments to the 2013 law, the finance minister has chosen now, somewhat belatedly, to express this opinion (‘Land Ordinance — the obvious answers’, September 2). Unfortunately that is all it is, a statement of opinion unsupported by fact. Mr Jaitley argues that multiple clauses are contradictory and mired in ambiguity. There are three reasons why this criticism is disingenuous.

Phony criticism First, a detailed reading of the law demonstrates this is not the case. Every provision and sub-clause of the UPA’s law was scrutinised minutely while it was being drafted. It was made available to the public at large, at every stage. Drafts were even shared with leaders of the Opposition, including Mr Jaitley himself, on multiple occasions. Assuming there were errors which escaped his attention, the same were ironed out in the multiple reviews undertaken on a daily basis. The standing committee chaired by the present Speaker of the Lok Sabha examined it thoroughly for almost nine months.

Second, if there are multiple errors as claimed, then the BJP government had three opportunities to offer corrections or their versions of alternatives. In an Ordinance with almost 13 amendments, only two focussed on fixing errata. This begs the question of why, if the Act was rife with flaws, did the government chose to fixate almost exclusively on curtailing those sections which entitled farmers to safeguards.

Third, the Act has been applied by the Supreme Court and the various High Courts which have given life to the provisions of the law in a harmonious fashion. The law has repeatedly been described as piece of “beneficial legislation” by the apex judiciary of the land. Tens of thousands of individuals have benefitted since the law came into force. Yet again, these “errors” seem to have slipped past everyone’s radar save for the learned minister.

Incomplete reading In the one example he offers, the finance minister argues that consent is not required for a myriad number of projects and the same is the result of an oversight. This confusion results from an incomplete reading of the section.

Section 2(1) of the law delineates two distinct categories, one being where the land is acquired by the government for its “own use, hold and control”; no consent is required but all other safeguards are to be exhausted. In the other scenario, consent is added to the list of safeguards where land is acquired for any public purpose whether for a private company or a PPP project.

Given that one of the objectives of the 2013 law was to discourage wanton recourse to acquisition for private projects, the UPA government had been clear from the outset that consent was necessary for acquisitions carried out by the government where third (private) party are enriched (but not for projects exclusively held, used and controlled by the government).

Cherry-picking clauses and forcing them to fit a polemic view is more often the result of lazy research than evidence of shortcomings in a draft.

Elsewhere he states that the social impact assessment is time-bound with many processes being required to be performed “within” a certain time-frame and this, it is implied, is undesirable. The fixing of mandatory deadlines for administrative processes was, of course, deliberate and even necessary. On the one hand the BJP’s leaders argue that the processes prescribed in the 2013 Act will make acquisition a process ad nauseum . On the other, they claim that confining them to timelines is undesirable and some processes might even need to be “exempted”. There is evidently a lot of confusion, but most of it seems confined within this government.

Ironic position Mr Jaitley argues that many provisions would “prevent the development of the rural areas”. It is ironic that this government’s vision of rural development is predicated on forcible acquisition of land (albeit at slightly higher prices). This is in stark contrast to the 2013 law which strengthens land rights of poor farmers and encourages alternative modes of procuring land (including the option of lease). Farmers, the principal stakeholders of these rural areas, have made clear their feelings about this government’s version of development.

Another clause that he seems to take offence at, is the one that requires unutilised land to be returned within five years. How, he asks, can a township be completed in five years? The answer to that question lies in a complete reading of the section. First, the words used are “unutilised” and not “completed”. This means that the land should be used in some fashion, work should have commenced as opposed to simply lying vacant. Illustrations abound of cases where land is acquired but lies vacant for decades benefiting neither the state nor the land loser. Second, if land is not returned, i.e. it is lying vacant and unused, it must be returned to the State’s land bank (to be diverted to more productive use) or to the original owner.

On the question of whether States can bring amendments to the Central government, the learned minister answers in the affirmative. This is correct. There is a constitutional provision which makes such allowances to account for local conditions and challenges peculiar to the State. However, it is not intended to bypass and short circuit a beneficial law to benefit private third parties under the smokescreen of development. To specifically safeguard against such dilutions by overzealous State governments, the 2013 law prohibits any State amendment which reduces the entitlements and benefits contained therein. Ultimately, the judiciary, which has been at the forefront of implementing this law, will decide if State laws can exist ‘ ultra vires ’ the central law when there is a specific diktat to the contrary.

Attempting to spin a worthwhile withdrawal as something else does disservice to a lifetime of political service. Reading provisions in a deliberately incomplete fashion does a disservice to a lifetime of august advocacy. The Central government has withdrawn the Ordinance for no other reason than the overwhelming and unwavering criticism it faced across the country and across the political spectrum barring Mr Jaitley and Mr Gadkari. If States do not learn from this lesson, they will be doomed to repeat it.

The writer is a senior Congress leader and a former Union minister

Also read: Land Ordinance — the obvious answers

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