By: Divya Khanwani and Suneel Kumar* |
Introduction:
The theory of bell jar, encapsulated by Fernand Braudel, likens the development of early modern capitalism to a process occurring inside a “bell jar:” insulated from the rest of the economy and unable to expand to the whole society. The monetary returns of the developmental schemes are accessible only to people who fall inside the limits of a bell jar. The rest of the population, who exist outside the bell jar, are deprived of any benefits generated from the implementation of such policies (the author, for the sake of convenience, characterises the people situated outside and inside the bell jar as ‘outsiders’ and ‘insiders’ respectively). It is asserted that an extant legal framework, involving the acquisition of tribal land for the development of SEZs, strengthens the bonds of the bell jar. The law, expressly and impliedly, validates and sustains ‘outsider’ status of a tribal [Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs)] during different stages of the acquisition process.
Stage One: A Tribal- A Pseudo Insider:
The first stage involves the acquisition of land for the development of an SEZ. This is the most crucial phase as it determines whether a particular land will be acquired. The law, at this step, seems to integrate the outsider inside the bell jar by introducing provisions like securing the consent of displaced families and conducting Social Impact Assessment. These sections aim at formulating an acquisition plan as per tribals’ convenience. However, a cognate reading of sections reveals that an attempt at integration is a sham at best. The tribal is, in fact, being actively removed from the discourse to benefit the insiders. The author substantiates the position with two prominent features of the amended 2013 act- consent of families and social impact assessment.
Consent requirement- S2(3) of the Act states that consent of eighty percent and seventy percent of affected families is required when the acquisition is for a private company and a public-private partnership project respectively. S3(c) defines the “affected family” very broadly and provides recognition to the tribals under sub-clause (iii). But for the purpose of securing consent for undertaking acquisition, s2(3) mentions that consent of only those affected families will be taken who are mentioned under sub-clause (i) and (v) of s3(c). Hence, sub-clause (iii), which specifically mentions tribals has been removed. Furthermore, tribals cannot be qualified under sub-clause (i) [families which have title to land or immovable property] and (v) [families which have obtained land under government schemes] of s3(c) because first, they do not adhere to the dominant culture of nuclear families and therefore, do not qualify as “family”, second, they often lack official title to lands, which is essential to prove “ownership” to land or immovable property, and third, the land in their possession is gained by a series of informal arrangements (not government schemes). Hence, in practice, the authorities are compelled to obtain the consent of only a few affluent families for the acquisition of predominantly tribal land. This fast-tracked the process by almost eliminating any counterclaims on the land, which resulted in exorbitant profits for the SEZ developers. Hence, the act embedded an inclusive clause to lift the bell jar but structured it in a manner that benefited the insiders to the exclusion of outsiders.
Social Impact Assessment (SIA): SIA is a preliminary survey, which seeks to gauge the social consequences, intended and unintended of planned interventions. The entire analysis is done without any representation from tribals. The provisions allowing for consultations, public hearings, expert evaluations, and presentation of objections are a sham. These resultant recommendations or complaints, as the case may be, do not bind the government in any way whatsoever. The designated authority has the final say in these proceedings and therefore, tribals lack any real voice. Effective suppression of any conflicting voice, once again, benefits the industrialists at the cost of a tribal. Hence, the act has successfully removed a tribal from the discourse involving acquisition of a land, which was owned, utilised and sustained by him till date. Therefore, it can be safely concluded that the ‘displacee friendly provisions’ of the amended act were a charade at best.
Stage Two: A Tribal- An Explicit Outsider:
The second stage includes the displacement of communities which deals with questions like which individual (or family) is entitled to how much compensation in terms of monetary awards, lands, livelihood opportunities, etc. Ironically, the biggest stakeholders, tribals, are unabashedly and expressly excluded from the decision-making process in this phase. The act even dropped the pretence and brazenly removed the voice of a tribal (an outsider) from the process.
Explicit exclusion is evident from the consistent top-down language used in the act. The act’s approach becomes starker when contrasted with another contemporary legislation, the SEZ Act, in the following aspects.
Representation:
SEZ Act: S8(2)(h) mandates a professor of the Indian Institute of Management in The Board of Approval. A professor is deemed to be aware of nuances of the requirements of developers. In addition, S8(4) allows the Board to co-opt any members which have practical experience in matters connected to SEZ. Hence, the act allows for the representation of developers in the highest authority (Board of Approval).
LAA: The act does not provide for any representation of tribals. The only exception is S45, which allows for a representative of a Scheduled Tribe in the Rehabilitation and Resettlement Committee. However, the committee lacks any real power to decide the distribution of resources among displaced families. It merely reviews the progress and conducts post-implementation social audits.
Benefits Accrued:
The SEZ act provides for numerous tax exemptions, concessions, or deductions to the developer and the entrepreneur. Hence, it permits the direct flow of benefits without any interference by intermediaries. LAA, on the other hand, does not provide for a direct flow of any benefits. It accords vast discretion to the collector (an intermediary) to decide on the eligibility of a family to receive compensation or rehabilitation benefits.
Accessibility and Guidance:
S11 of the SEZ Act provides for a Development Commissioner for SEZs. He is responsible for speedy development and for extending any suitable guidance to the entrepreneurs in terms of setting up units or coordinating with the government. However, the LAA does not provide for any guidance or help mechanism to the displaced. Generally, the law is not even concerned with the oustees once the land is acquired.
Dispute Resolution:
The SEZ Act, under S23, allows the jurisdiction of designated courts over offences committed in SEZ. Besides S42 provides for arbitration. Hence, proper dispute resolution mechanism is provided in the act. The LAA, on the other hand, expressly bars the jurisdiction of a civil court. In the absence of a proper adjudicatory body, the executive settles the conflicts. This goes against the separation of power and principles of natural justice (nemo judex in sua causa).
Procedural Clarity:
The SEZ Act mentions a clear procedure from the submission of a proposal to the Board of Approval to the establishment of the SEZ. Hence, the act eliminates any scope of uncertainty and ambiguity. The LAA, once again disappoints in this department by providing for open ended provisions with no explicit deadlines.
Hence, in the SEZ Act, the provisions revolve around the developer. However, in the land acquisition act, a tribal, a primary stakeholder in the displacement drive, is pushed to the sidelines. It is pertinent to note that the legislation deliberately ensures that minimal power is accorded to the tribal in a development project. It was not an accidental mishap because if the legislature can frame a ‘stakeholder friendly’ legislation in 2005, it can certainly do so in 2013. Hence, the law does not facilitate the amalgamation of the outsiders with insiders at any phase. Instead, it creates and perpetuates inequality by enabling wealth generation for the insider and aggravating indigence for the outsider.
Concluding Remarks:
The identity of a tribal varies at an insider’s convenience. At the stage of acquisition, he is a pseudo insider. The law creates an illusion of integrating an outsider within the bell jar, however, never really intends the amalgamation. It, however, drops the pretence altogether at the stage of displacement. Hence, the identity of a tribal is transformed from a pseudo insider to an explicit outsider. However, this alteration in the identity of a tribal is only from the perspective of the formal legal structure. In reality, a tribal has always been pushed aside and tossed around in a displacement drive undertaken for the setting up of an SEZ. The system is not designed to protect a tribal. It converts OTFDs from a self-sufficient community to marginalised wage labourers or unemployed. The law actively impoverishes a tribal thereby, compelling him to stay outside the bell jar.
To remedy the situation, a two-step process is a need of the hour. First, the legislation should have provisions that are sensitive to the requirements of the displacee. It can be done by adopting a bottom-top approach (inclusion of affected groups in the consultation) while enacting legislation. Second, implementation insufficiencies should be dealt with utmost priority on a case-to-case basis. One pill for all solutions approach is destined to fail. The suggestions proposed are not comprehensive or exhaustive, but rather an indication of broad genres under which specific guidelines can be prescribed.
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*The authors are students at National Law School of India University, Bengaluru.
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