M J Antony: Legislate it!

The government is quick to promise new laws to tackle hot-button issues, but do they help?

Though several economic and social questions often turn themselves into legal issues, courts normally try to keep away from such thickets. After three decades of judicial activism, the new trend indicates that the government and the judiciary want the courts to retreat from territories that belong to the executive.

Therefore, the judgment of the Supreme Court delivered last week in the Mahanadi Coal Fields vs Mathias Oram case was noteworthy as it discussed the impact of globalisation, causes of insurgency and political extremism, and what happens to people displaced by mammoth projects.

The court called this case a “textbook example” as the government and the authorities had flouted their “most basic obligation under the law and even the fig leaf of legality was dispensed with”.

 

The appeal was moved by the government company which is part of the Navaratnas. Its main object was to defeat the claim of landowners in Sundergarh district of Orissa, whose assets were acquired some 23 years ago, and not a paisa was paid in compensation so far. The high court had ordered the company and the government to calculate the compensation and pay it within six months.

However, even the market value has not been assessed by the authorities all these years. Some 14 years after the takeover, the company and the central government differed on the need for acquiring so much land. The company felt that it did not want large parts of it; the government refused to de-notify them. Several landowners died while their cases slowly climbed the ladder of justice, pausing painfully at each stage, pending three years in the Supreme Court itself.

Some more appalling facts: While the central government strategically lay low, the coal company moved the Orissa High Court maintaining that it had no liability to pay compensation to the landowners as the land acquired by the central government was not required by it for mining. Moreover, acquisition proceedings were not complete (after two decades) because the market value of the land had not been assessed so far; so there was no question of paying compensation. Further, many pieces of land were still in the possession of their owners, an assertion strongly denied by them. The court remarked: “If this is not adding insult to injury, we do not know what else is!”

The judgment pointed out that this case came from one of the seven states where a particularly violent group of political extremists has been able to gain sufficient strength to pose a threat to constitutional governance of the state. This case, it said, was from Sundargarh where extremists looted 550 kg of explosives and once blew up the railway station.

This led the judges to make remarks on the development model followed by the country. “To millions of Indians, development is a dreadful and hateful word that is aimed at denying them even the source of their sustenance. It is cynically said that on the path of ‘maldevelopment’ almost every step that we take seems to give rise to insurgence and political extremism, which, along with terrorism, are supposed to be the three gravest threats to India’s integrity and sovereignty.”

The court also observed that the laws were not perfect or sympathetic towards the dispossessed. Various studies point out that even when laws relating to land acquisition and resettlement are implemented perfectly and comprehensively (“and that happens rarely!”), uncomfortable questions remain. “For a people whose lives and livelihoods are intrinsically connected to the land, economic and cultural shift to a market economy can be traumatic.” The judgment quotes B R Ambedkar who warned in 1949 that mere political equality without social and economic equality would put democracy in peril and “those who suffer from inequality will blow up the structure of political democracy”.

Amidst the recent debate on land acquisitions, the government has drafted a new Bill on the subject. If the implementation of a dozen existing laws is as critiqued by the Supreme Court as above, this old wine in new bottle will make little difference. Cosmetically, it has made some changes like dropping the word “company” from the old Act which read “for a public purpose or for a company”. But the government can still acquire land for a “person”, which could be a company. The catch-all “public purpose” also can be brought in through the backdoor.

Whenever there is a hot-button issue, the respective government instantly promises a new law to tackle it. Khap panchayat? Pass a central law. Shivaji book? A new state Bill to stop defamation of national heroes. Chopping a professor’s hand? Draft a law to monitor funding of radical organisations. If such laws are placed end to end, there would be no end.