Don’t tart it up

Written by  //  September 19, 2010  //  Law & The Judiciary  //  3 Comments

The Supreme Court’s recent decision on land acquisition for the Yamuna expressway was praised as a ‘landmark moment’ in an editorial in the Indian Express.  Entitled ‘Right on rights’, the editorial argued:

The court said that “the scales of justice must tilt towards the right to development of the millions who will be benefited from the road… as against the human rights of 35 petitioners herein.”  This does not mean, of course, that a concrete “right to development” now exists.  But that it has been framed in these terms by the country’s highest court is nevertheless an important step – and one that places a focus on development firmly in the mainsteam of how India’s judiciary has tackled its responsibility towards issues of governance in this country.  (The initial few words are themselves memorable , oddly reminiscent of the famous Martin Luther King quote, Barack Obama’s favourite, that “the arc of the moral universe is long, but it bends towards justice.”)

Heady stuff.  Pity, for one thing, that it praised the wrong court.  The ‘scales of justice’ quote is part of a section in which the Supreme Court summarised rather than necessarily endorsed the judgment in the High Court.

The Supreme Court’s own observations on whether the Yamuna acquisition is for a ‘public purpose’ are rather more prosaic (and not at all reminiscent of Dr King):

The Expressway is a work of immense public importance.  The State gains advantages from the construction of an Expressway and so does the general public.  Creation of a corridor for fast moving traffic resulting into curtailing the travelling time, as also the transport of the goods, would be some factors that speak in favour of the Project being for the public purpose.

Hardly a landmark, the Supreme Court decision is a standard example of the courts’ approach in cases of land acquisition for companies.  In these cases, the question of ‘public purpose’ is a simple cost-benefit calculation stacked almost inevitably against landowners.  For decades now, with very few exceptions, courts have green-lighted land acquisitions for companies because of benefits to the public that are claimed will arise, such as industrialisation, job-creation, and technology transfer.  The courts do not ask for these benefits to be measured, guaranteed, or assessed in proportion to the hardships imposed on landowners, nor indeed do they question the developmental model in which, say, industrialisation is necessarily a benefit to the public.  Reasonable people will disagree on the soundness and fairness of this approach, but let it be seen for what is rather than as tarted up in the language of justice and rights.

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In any event, in this case and in others in recent years – notably in Singur – the legal battle is something of a side-show to the real theatre of conflict.  A few days before the release of the Yamuna decision, in response to protests at Aligarh and elsewhere the Mayawati government announced a ban on the forcible acquisition of agricultural land.  The ban expressly extends to the acquisitions for the townships adjoining the Yamuna expressway which the subject of the Supreme Court challenge.  The government also announced a substantial hike in compensation for land given up consensually for development projects, including the introduction of a thirty-three year annuity of Rs. 20,000 per acre per annum.  This annuity, it should be noted, will be paid over and above compensation for the land itself.

The generosity of these promises reflect the electoral liability that land acquisition has become in recent years.  The ramping up of compensation may help to quell some or most of the opposition to land acquisition, but what is to be done when, as in the Niyamgiri Hills episode, landowners refuse to be bought off?  Manmohan Singh has promised that the proposed reforms to the Land Acquisition Act, which would limit acquisitions for companies to 30% of the land required for a project, will be tabled in the winter session of Parliament.  But with Mamata Banerjee reportedly still opposed to the 70:30 rule, or indeed any role for government in acquiring land for companies, the Bill’s chances of passing seem slight – at least, perhaps, until after the 2011 Bengal state assembly elections.

3 Comments on "Don’t tart it up"

  1. Arghya September 19, 2010 at 2:43 pm ·

    Great post Eesvan. I feel it is a fitting representation of a larger point regarding the media today and it’s general lack of legal research before publishing/ telecasting. Of course there are notable exceptions to this rule, but generally the amount of legal research on significant issues of public interest leaves a lot to be desired.

  2. Sumeet September 20, 2010 at 9:44 am ·

    Good post! Informative about the problem at hand and the slew of issues that surround it.

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