On 10th December 2018, the Supreme Court issued notices to the governments of Gujarat, Andhra Pradesh, Telangana, Jharkhand and Tamil Nadu to respond to public interest litigation (PIL) filed by a group of activists led by Medha Patekar challenging the wide-ranging amendments made to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013.
The petitioners contend that the exclusion of a broad category of projects from the purview of social impact assessment, consent provision and participation of local representative bodies is contrary to the 'basic structure' of the Central Act and "adversely affected the rights of livelihood of landowners and farmers".
A brief history of legislative action on The RFCTLARR Act, 2013 by states under Article 254(2) of the Constitution is illuminative. Tamil Nadu was the first state to circumscribe the scope of social impact assessment by enacting The RFCTLARR (Tamil Nadu Amendment) Act, 2014 stipulating that the central law is not applicable when land is acquired under three state laws, except for the purpose of compensation. These Acts are, The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, The Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and The Tamil Nadu Highways Act, 2001. Since four- fifth of land acquisition in Tamil Nadu is carried out under the ambit of these Acts, social impact assessment is effectively precluded from the land acquisition process in a vast majority of cases.
The RFCTLARR (Gujarat Amendment) Act, 2016 and The RFCTLARR (Telangana Amendment) Act, 2017 have empowered state governments to exempt projects related to national security and defence, rural infrastructure including electrification, affordable housing and housing for the poor, industrial corridors, infrastructure projects including those in public-private-partnerships from the conduct of social impact assessment. The RFCTLARR (Andhra Pradesh Amendment) Bill, 2017 that has received the Presidential assent in May 2018 has SIA-exclusionary provisions for similar category of projects as Gujarat and Telangana. The RFCTLARR (Maharashtra Amendment) Act, 2018 has further added irrigation projects and industrial area or industrial estates developed by state government to the aforementioned list of SIA- exempt projects.
The RFCTLARR (Jharkhand Amendment) Act, 2018 has granted the power to state government to exempt, in public interest, infrastructure projects, including schools, colleges, universities, hospitals, panchayat buildings, anganwadi centres, rail, road, waterways, electrification projects, irrigation projects, housing for the economically weaker sections, water supply pipelines, transmission and other government buildings from the requirement of social impact assessment.
The Land Acquisition Act, 1894 permitted unfettered use of State power for expropriation of private land for public purpose, with land owners receiving paltry compensation, often, after protracted legal battles. The lack of adequate measures for the rehabilitation and resettlement of involuntarily-displaced people, coupled with instances of profiteering from acquired land by government bodies and project proponents, created a groundswell of unrest among farmers, tenants, peasants and land owners. The passage of The RFCTLARR Act, 2013 marked the culmination of decades of discussions and deliberations in various quarters - judiciary, civil society, political establishment and policy arena - about the contours of a new land acquisition law. The central law has been widely hailed as a milestone in the country's march towards a humane and participative land acquisition regime that seeks a more equitable distribution of the costs and benefits of development, through the provisions of social impact assessment, consent, market-linked cash compensation for land and rehabilitation and resettlement of Project-Affected-Families.
Section 4 of The RFCTLARR Act, 2013 mandates the conduct of Social Impact Assessment (SIA), as a precursor to land acquisition. To be conducted by an independent agency, in consultation with the potentially affected communities and representatives of local bodies, the study shall identify the nature and extent of likely adverse social impacts during the project life cycle, estimate the affected families and those likely to be displaced, the impact of land loss on livelihood, infrastructural assets and public utilities. The SIA report shall also give a finding on whether the project serves public purpose, the extent of land required is the bare minimum and the present location has been identified after due consideration of alternative sites and, further, comment on the effect of the cumulative cost of mitigating adverse social impacts on the total project cost vis-a-vis the benefits of the project. At the conclusion of the study, a public hearing shall be organized to share the draft SIA report and Social Impact mitigation Plan (SIMP) in the Gram Sabha of affected villages and ascertain the views of affected families, to be incorporated in the final report submitted to the appropriate government. Importantly, the 'Free, Prior, Informed Consent' (FPIC) of landowners, for projects in PPP mode and those by private entities, must be obtained as part of the SIA process.
A frequent complaint against social impact assessment is that it is time consuming and cumbersome, attributable, in part, to the number of public hearings, particularly when land parcel spread across numerous villages have to be acquired. The capacity-deficit of SIA state Units, agencies and district administration and the time lag between the final report submission and the constitution of SIA Expert Group and its appraisal report have also been identified as factors causing delay in acquiring land. Additionally, concerns have been expressed about the land price escalation engineered by unscrupulous property dealers in the interim period between the initiation of SIA study and the issue of preliminary notification under Section 11 of The RFCTLARR Act, 2013 that sets the land acquisition process in motion.
Undoubtedly, the challenges faced by a newly enacted legislation need to be addressed, through policy interventions and procedural formulations, for clearer enunciation. Since the enactment of The RFCTLARR Act, 2013, the Department of Land Resources, Ministry of Rural Development has framed The RFCTLARR (Social Impact Assessment and Consent) Rules, 2014 and The RFCTLARR (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015 and has issued Notifications from time to time. Several educational and research institutions across the country have launched short term training programmes for capacity building of SIA agencies, practitioners and functionaries of land acquiring bodies under the Act. The preparation of broad Terms of References for social impact assessment in different sectors, while leaving room for the demographic and geographical specificity of each project site, would certainly facilitate standardized reporting.
An evaluation of the experience of implementation of SIA and the related provisions, since 1st January 2014, when the Act came into effect, brings out its chequered history. The curtailment of the scope of social impact assessment through an Ordinance promulgated on 31st December 2014, within a year of the implementation of the RFCTLARR Act, 2013, raises questions about the open-mindedness of the executive to give a fair trial to the provision before pronouncing on its efficacy. The RFCTLARR (Amendment) Bill, 2015, pending in Parliament, since February 2015, seeks to incorporate the limitations imposed on SIA by the Ordinance into the Statute. The contention that SIA delays the land acquisition process has not been corroborated by evidentiary literature.
Furthermore, Section 6(1) read with Section 3(e) of The RFCTLARR Act, 2013 makes it incumbent on the states, Union Territories and the Central Government to upload the Social Impact Assessment report and Social Impact Management Plan on their websites, in respect of projects for which they are the 'appropriate government'. However, there is considerable variability as to the nature and degree of compliance by Governments. Similarly, the requirement of a dedicated website, to be managed by state SIA Units, for hosting the entire work flow of each case of land acquisition, as per Section 13 of The RFCTLARR (Social Impact Assessment and Consent) Rules, 2014, has been honoured more in breach than in observance.
The moot point is whether the opposition to social impact assessment by Governments and industry is due to the proven inoperability of the provisions or inertia or a deliberate effort at maintaining the opacity of the land acquisition process.
On its part, social impact assessment is integral to the fulfilment of one of the underlying objectives of the new land acquisition regime - addressing the power asymmetry between the land owners, on the one hand, and project proponents and land acquiring bodies on the other. As a methodological tool, social impact assessment study performs three important functions – firstly, it ensures that due diligence is exercised by project developers and land acquisition authorities, as to the public purpose of the project, quantum of land required and site selection. Secondly, it acts as a barometer of the community's willingness to part with their land, thus, allowing for informed decision-making regarding the advisability of project initiation and, thirdly, it is indicative of the viability of a project by factoring the cost of land acquisition and social impact mitigation into the aggregate project cost.
Essentially, the mandate for social impact assessment signifies a paradigm shift in the domain of land appropriation for public purpose, through the recognition of the landowners' 'Right to be Informed' and the 'Right to be Heard'. The consultative approach with negotiated settlement of benefits to landowners and livelihood-dependent people, as part of the SIA process, is a well thought out mechanism to abandon the path of confrontation in favour of conciliation. The undermining of the salient features of The RFCTLARR Act, 2013 has the potential to revive land conflicts that have, in the past, proven to be detrimental to the industrial and infrastructure development of the country.