The Union government's proposal for states to have their own land acquisition laws that may pull down any or all the four pillars of the 2013 Land Acquisition Act could run in to an unprecedented legal hurdle.
The 2013 law the United Progressive Alliance government had passed hinges on four pillars - consent, social impact assessment, compensation and rehabilitation.
With the National Democratic Alliance (NDA) government unable to get the approval of its ordinance altering the 2013 law in Parliament, it's suggested that it might permit the states to pass their own laws. These laws, it hopes, at least in the Bharatiya Janata Party (BJP) or its ally-ruled states would ease the provisions regarding consent and social impact assessment - something the NDA wanted to achieve through the ordinance universally across the country. Not only the Congress and other opposition parties but several of BJP's allies too have opposed dilution of the consent and social impact assessment clauses. The opposition has also come from Rashtriya Swayamsevak Sangh-affiliated fronts.
Under ordinary circumstances in the case of a conflict between a centre's law and a state's law on a subject in the concurrent list, the state's law could gain precedence if the President, on the advice of the Union government, gave his consent. "Acquisition and requisitioning of property'is on the concurrent list of the Constitution, while Land itself (including land management and land record maintenance) is on the state list and can be legislated upon only by state governments.
Article 254 of the Constitution provides a way out in case state laws on a concurrent subject are 'repugnant' to the legislations passed by the Union government. "States can always bring necessary amendments to meet their needs. The only thing is they would have to send it to President in terms of Article 254. The state law passed by the state legislature would have to be approved by the President," says senior lawyer Mohan Parasaran.
"Geeta Luthra, Senior Supreme Court advocate, adds, "Presidential assent usually translates to central government approval - the exception provision enables a state law to override a Union law (only for that state) in cases where the central government is in agreement that it be so."
While the section does not specifically debar states from altering the provisions regarding consent and social impact assessment, Congress mandarins believe that the four pillars of the law are interlinked and cannot be tweaked.
Muhammad Khan, former officer on special duty to then rural development minister Jairam Ramesh and also a co-author of the law, says, "Section 107 is a catch-all safeguard against possible dilutions by states. It is not limited in operation only to the compensation and rehabilitation/resettlement entries. The legislative intention behind the words 'entitlements' and 'benefits' was to ensure the operation of the section extended to all the various checks and balances to which an affected individual is entitled."
The process of seeking consent from landowners and other affected families under the 2013 law is done against the compensation and rehabilitation package the legislation offers. At the same time, the social impact assessment process is essential for identification of the acquisition-affected people, as well as the level of compensation they should be paid.
Congress-affiliated legal experts contend the government would have to bring another amendment to the 2013 law that kicks out the section 107 from the law. This could land the NDA back to square one - requiring support from at least several allies, if not the Congress, to get such an amendment through the Rajya Sabha, where the BJP does not hold a majority.
Several reports, based on background briefings by NDA ministers, suggest the government could take back the current ordinance and bring another amendment Bill to rework the UPA law. These reports do not specifically mention if this new amendment would seek to specifically do away with section 107 of the UPA law - something the Congress, in the least, is bound to oppose.
Till date, the country has not passed any other law pertaining to a subject on the concurrent list in which such an explicit 'safeguard' provision has been provided to prevent dilution by states. Now, if the Centre (through the President), deploying powers given through Article 254 of the constitution, was to approve of a state law that contravenes the central law, it could still leave a window open to judicial challenge on the violation of section 107 of the 2013 land law.
While the courts have on various occasions struck down state laws that were in violation of central laws on the concurrent list, there is no precedence for judiciary taking a call in such a case.
If NDA wants to go ahead with its suggested plan permitting states to bring their own land acquisition laws, it might ignore this legal conundrum at the moment and seek presidential approval of state legislations. But politically it would have to face the challenge that Rajasthan did when it brought a law contrary to the 2013 Act. In a state where the Bharatiya Janata Party has absolute majority in the Assembly, the party found opposition from within - led by factions seen closer to the Rashtriya Swayamsevak Sangh. The state Bill did not get passed when, besides the opposition, these factions within the party also forced referring the Bill to the Assembly's standing committee.