Concerns Over State Laws for Land Acquisition: Impact on Public Interest and Legality
The Centre has encouraged states to draft and pass their own laws for land acquisition and get them approved by the Centre. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 was introduced in the Lok Sabha in February 2015 and amends the Land Acquisition, Rehabilitation and Resettlement (LARR) Act 2013. However, it was only passed in the Lok Sabha and not in the Rajya Sabha. This has led to the Finance Minister encouraging states to draft and pass their own laws for land acquisition and get them approved by the Centre.
Following this, Tamil Nadu, Gujarat, Rajasthan have moved ahead with their amendments, and Telangana is working on its version. However, there are concerns about the legality of this move, as well as the impact it could have on the larger public interest.
Legality of State Laws
Though land is a state subject, the acquisition and requisitioning of property is in the concurrent list. According to Article 254(1) of the Indian Constitution, if there exists a central law on a concurrent subject, then a state law cannot override it. However, Article 254(2) provides that if a state law receives presidential assent after due consideration, then it can apply in contravention to the central law in that particular state.
The laws now passed by states allow for the acquisition of land in the states without having to satisfy any of the crucial safeguards built into the 2013 central law, such as the right to consent, social impact assessment, and, in the case of Tamil Nadu, even rehabilitation and resettlement. Apart from the obvious setback in provisions, there are also grave jurisprudential concerns.
Parliament passed the law in the exercise of its sovereign power bestowed on it by the Constitution. A hard-fought consensus was achieved that was widely held to be in the larger public interest. It cannot be diluted by misuse of a constitutional provision and cannot and should not go unchecked.
Wherever a central government lacks the numbers to pass a law (on a concurrent subject) in Parliament or is faced with public opposition, it will concede the authority to states to pass the laws as they see fit and get the President to approve them.
Article 254(2) was never intended, even in its broadest interpretation, to weaken central laws merely because they were found to be inconvenient. It was intended to bring in changes to central laws if there was a genuine hurdle in implementing them in a particular state due to challenges peculiar to that region.
The move to amend LARR Act 2013 was followed by a massive nationwide backlash which unified opposition parties across the ideological spectrum and the Supreme Court refused to entertain challenges to various provisions of the 2013 law. Thus, it clearly suggests that the law was constitutionally sound and the public mandate was overwhelmingly against such amendments.
The Supreme Court of India had earlier struck down the attempts of the government to pass off what is known as ï¿½colourable legislationï¿½ i.e laws the government is not qualified to pass, that is disguised as other laws. It clearly states that what the government cannot do directly, it cannot do indirectly. Therefore, an attempt to weaken a state law against the larger public interest is nothing short of such an abuse.
The Supreme Court in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation (2002) held that the words ï¿½reserved for considerationï¿½ in Article 254(2) would ï¿½definitely indicate that there should be the active application of mind by the President to the repugnancyï¿½ and the necessity of having such a law, in facts and circumstances of the matterï¿½ The word assent is used purposefully indicating the affirmative action of the proposal made by the State for having law repugnant to the earlier law made by the Parliament. This cannot be done without consideration of the relevant material.ï¿½
Therefore, it is clear that the President must act deliberately and consciously and not merely on the basis of the state government's proposal. This means that the President must carefully consider the repugnancy of the state law with the central law, as well as the necessity of such a law in the facts and circumstances of the matter.
The Centre's encouragement of states to draft and pass their own laws for land acquisition raises concerns about the legality and impact on the larger public interest. The laws passed by states now allow for the acquisition of land without satisfying crucial safeguards built into the 2013 central law. This undermines the parliament, sets a wrong precedent, misinterprets the constitutional provision, and could be considered as colourable legislation. The president's assent also needs to be given after due consideration and not merely on the state government's proposal. It is important for the government to ensure that any changes to laws related to land acquisition are in the larger public interest and are in compliance with the Constitution.
Written by Ipshita