Wednesday, December 21, 2011

Unrest over land acquisition

Nationwide protests over land acquisition have prompted the government to introduce a new Bill that combines land acquisition with rehabilitation of the displaced. Here is an assessment of the problem and how the new Bill proposes to deal with it.

On September 5, 2011, the Land Acquisition and Rehabilitation & Resettlement Bill, 2011 (LARR Bill 2011), which is meant to replace the age-old Land Acquisition Act, 1894, received the approval of the Union Cabinet.
The LARR Bill 2011 has since been introduced in the Lok Sabha and is being considered by departmentally related parliamentary standing committee on rural development. It is the latest version of a legislation that deals with the power of the government to expropriate private land for a “public purpose”.
It also is the first central-level legislative proposal that deals with rehabilitation and resettlement of the people affected by development projects across the country. Hitherto, rehabilitation and resettlement (R&R) has been the responsibility of the state governments.
The Land Acquisition Act, 1894, which is currently in force, does not address the issue of R&R of the people displaced by development projects.
“As land acquisition and rehabilitation and resettlement need to be seen as two sides of the same coin, a single integrated law to deal with the issues of land acquisition and R&R has become necessary,” says Jairam Ramesh, the Union Minister for Rural Development, whose ministry has drafted the LARR Bill 2011, in the ‘statement of objects and reasons’ of the legislation.
It is notable that ‘land’ being in the State List of the Constitution, the implementation of the Land Acquisition Act is in the jurisdiction of the states even though the law was enacted by the central government. The state governments, however, have the power to make certain amendments that are not inconsistent with the provisions of the law.
Thus, while the Land Acquisition Act prescribes the procedure for acquiring property at each stage across the country, there are inter-state variations with regard to matters, such as the authority that will set in motion the acquisition proceedings, the manner in which notices must be publicized, and persons on whom notices must be served.

Acquisition for public purpose
To make things clearer, the term ‘land acquisition’ (as used in the existing Act and the LARR Bill 2011) refers to the action of the government to compulsorily acquire a citizen's private property with monetary compensation, i.e. without the owner's consent.  It is very different from a market transaction in which a buyer and a seller both agree voluntarily to deal in a piece of land.
The provisions of the LARR Bill 2011 relating to land acquisition, rehabilitation and resettlement are applicable in cases when the central or state government acquires land (a) for its own use and control, (b) to transfer it for the use of private companies for public purpose, and (c) on the request of private companies for immediate use for public purpose.
The Bill applies the principle of ‘public purpose’ to any requirement of land that the government and its various agencies may have for national security, infrastructure (roads, railways, ports, airports, etc),  planned development, residential purposes for the poor and landless, or any other project that is supposed to benefit the public.
The term ‘public purpose’ has also been applied to provision of goods and services by private companies or public-private partnerships (PPPs), in which case the private company or companies needing land will have to obtain the consent of 80 per cent of project-affected people.  The affected families include owners of land as well those who don’t own land but whose livelihood may be affected due to the acquisition.

Compensation and R&R
The LARR Bill 2011 deals in both ‘compensation’, which primarily refers to money to be paid to those losing their land or related rights, and ‘rehabilitation and resettlement,’ which refer to the requirement to re-locate project-affected people to alternative places where they can re-establish their homes and livelihoods.
The provision for R&R kicks in if private companies purchase land, through direct negotiations with the owners, equal to or more than 100 acres in rural areas and 50 acres in urban areas.  If such companies request the appropriate government to acquire part of an area for a project, they will be liable for R&R of the affected persons for the entire area – i.e. the part acquired by the government plus the part they purchased themselves.
Also, where private companies are involved in projects for which land is being acquired, the consent of at least eighty per cent of the project affected people will have to be obtained through a process to be prescribed by the government.
A maximum of five per cent of irrigated multi-cropped land – which is highly valued agricultural land -- may be acquired in a district, with certain conditions.
Every acquisition requires a Social Impact Assessment (SIA) by an independent body followed by a preliminary notification and a final award by the District Collector.
Like the existing law, the LARR Bill 2011 has an ‘urgency’ clause which allows the appropriate government to take a short-cut by acquiring the land after 30 days from the date of the issue of the notification without the SIA.  This clause may be used only for defence, national security, and conditions arising out of a national calamity.
The Bill proposes that the compensation in rural areas will not be less than four times the original market value of the land being acquired. In urban areas, the compensation will be twice that of the market value determined.
There are provisions in the Bill to set up Administrator (R&R), Commissioner for R&R, Rehabilitation and Resettlement Committee (for acquisition of 100 acres or more of land), National Monitoring Committee for R&R, and Land Acquisition, Rehabilitation and Resettlement Authority, which will adjudicate all disputes, with appeal to the High Court.
An acquired land, which is transferred to a person for a consideration and is left unutilised for a period of 10 years from the date it was acquired, will have to be returned to the appropriate government.
In cases where an acquired land is sold to any person, without any development made, 20 per cent of the profit made will have to be shared among all the persons from whom the land was acquired.
The provisions of the LARR Bill 2011 do not apply to 16 other existing legislations that also provide for land acquisition for specific purposes, including The Atomic Energy Act, 1962, The National Highways Act, 1956, SEZ Act, 2005, Land Acquisition (Mines) Act, 1885, The Railways Act, 1989.

A stormy background
Through the LARR Bill 2011, the government has candidly acknowledged the troubled history of land acquisition in the country and the suffering it has caused to the displaced people over the years.
“Provision of public facilities or infrastructure often requires the exercise of powers by the State for acquisition of private property leading to displacement of people, depriving them of their land, livelihood and shelter, restricting their access to traditional resource base and uprooting them from their socio-cultural environment. These have traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, particularly in case of the weaker sections of the society including members of the Scheduled Castes, the Scheduled Tribes, marginal farmers and their families,” says the ‘statement of objects and reasons’ of the Bill.
Although no official estimate of the number of people displaced by projects in India is available, some unofficial studies, particularly by Dr. Walter Fernandes, peg the number at around six crore for the period from 1947 to 2004, according to an expert group on ‘Development challenges in extremist-affected areas.’ which submitted its report to the Planning Commission in 2008.
This displacement caused alienation of a total of 250 lakh hectares of land, which includes 70 lakh hectares of forest and 60 lakh hectares of other ‘common property resources’.
“Whereas the tribals constitute 8.08 per cent of country’s population, they are 40 per cent of the total displaced/affected persons by the projects. At least 20 per cent of the displaced /affected are Dalits and another 20 per cent are OBCs. The resettlement record is also very dismal. Only a third of the displaced persons of planned development have been resettled,” adds the expert group.

Popular resistance
As industrial capital – originating within the country and flowing in from abroad -- and urbanization make increasingly pressing demands on land and natural resources, large sections of the population fear that their livelihood and economic security is in grave danger. 
Protests and people’s movements against land acquisition and displacement seem to have been springing up everywhere in India.
West Bengal, which had led other states in redistributing land to the landless, saw violence in March 2007 when about 3000 armed police personnel stormed the Nandigram area in East Midnapore district to crush protests against the state government’s plans to expropriate 10,000 acres of land for a Special Economic Zone (SEZ) to be developed by the Indonesian-based Salim Group. The operation killed at least 14 people and wounded another 70.
There were fresh incidents of violence in Nandigram in November 2007 and May 2008. Anger against the state government saw the Left Front losing to the opposition parties the 2008 Panchayat elections in the places affected by violence.
Since 2007, West Bengal has also been the scene of the prolonged controversy over land acquisition for a car manufacturing facility of the Tata Group. It started with the farmers protesting against the then state government’s move to take over 997 acres of farmland in Singur (Hooghly district) to situate the car factory. After the opposition and other activists like Medha Patkar joined the agitation, the Tatas abandoned the Singur site and moved over to Gujarat.
The controversy fuelled the debate over whether the government acquiring land and passing it on to private industry at nominal prices should be deemed as serving a ‘public purpose’. 
Nandigram and Singur have played their part in bringing to an end 34 years of rule of the Left Front in the state earlier this year.
Resistance against the proposed Posco steel plant in Orissa has stemmed from similar fears of displacement and has an added dimension of the state government’s alleged violation of the forest rights of the tribal groups. Six years after South Korean company Posco and the state government agreed to build it, the project has yet to take off.
In Maharashtra’s Raigad district, a series of protests by the local people greeted a plan by the state government to start the process of acquiring in May 2006 about 10,000 hectares -- an area large enough to build a small city -- for Mumbai Special Economic Zone project promoted by Reliance Industries. 
The resistance to land acquisition led the Maharashtra government to conduct, for the first time, a ‘referendum’ to gauge the extent of public support, or the lack of it, for the project. A majority of people voted against the SEZ in the referendum held in September 2008.
The process of acquiring land (about 2000 hectares of which had been notified for acquisition) lapsed in December 2009 as the Act prescribes a certain timeframe in which it must be completed. Subsequently, the state government de-notified the land, handing a victory to the local population.
The Raigad experience exemplifies a larger phenomenon. Across the country hundreds of SEZ projects, which have received government approvals, are stuck at the stage of land acquisition because of stiff opposition from farmers unwilling to part with their land.
The SEZ concept has been criticized not only because of their potential to cause widespread displacement of communities, but also because such zones create private enclaves whose operators enjoy tax exemptions worth hundreds of crores of rupees.

Recent unrest
Uttar Pradesh has seen farmers’ protests against Yamuna Expressway and Ganga Expressway, both of which required acquisition of large parcels of land for housing and commercial projects in addition to the proposed roads.
This year, protests against land acquisition in UP have been centred in Noida and Greater Noida, most notably the village of Bhatta Parsaul (Greater Noida) that witnessed pitched battles between farmers and the police.
The year 2011 has also brought a string of judicial victories for the protesting farmers of Uttar Pradesh. For instance, in July this year, the Supreme Court upheld an Allahabad High Court judgment cancelling the acquisition of 156 hectares of land in Shahberi village (Greater Noida) for building flats.
“My family lost 60 bighas of our land three years ago. We were being offered around Rs seven lakh per bigha, but we refused to take the money and continued our protests. Later, the same land was given to builders at Rs two crore per bigha,” The Tribune quoted Sajid Hussain, a farmer of Shahberi, as saying after the Supreme Court order.
The apex court berated the state government for invoking the urgency clause in the Land Acquisition Act, which bars farmers from raising objections, and favouring “one section of society only,” saying it would step in to prevent “more Nandigrams”.
On October 21, Allahabad High Court quashed the acquisition of land in three villages of Noida and Greater Noida and directed the state government to pay to the land losers in 60 other villages a higher compensation, including a part of the acquired land after development.
In a judgement delivered on November 23, a bench of the Supreme Court said, “It is difficult, if not impossible, to appreciate as to why the state and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute (Land Acquisition Act).”
The bench of Justices G.S. Singhvi and S.J. Mukhopadhaya also expressed serious concern over the prospect that “the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future”.

Political repercussions
As evident as the growing unrest in society is the political fallout of the way governments have been using and abusing their powers to acquire land in the name of ‘public purpose’.
The increasingly violent conflicts over land in UP, with the farmers on one side and the government and builders on the other, compelled the state government to announce a new R&R policy in 2010 and then, in June 2011, a more liberal policy of compensating those whose land will be the subject of land acquisition. The policy favours direct negotiations and agreement between the land owners and buyers, including those in the public sector, for deciding compensation, which includes the former having the option of receiving 16 per cent of their land in developed form, exempt from certain taxes, and with the right to transfer it. That will be in addition to a host of other benefits land losers will receive like payment of an annuity for 33 years of Rs. 23,000 per acre plus an increase of Rs. 800 per acre every year or an upfront payment of Rs 2,76,000 per acre.
By introducing a policy of liberally compensating the land losers, the UP government has underlined the one-upmanship between political parties ahead of the assembly elections next year. The rivalries between parties preparing for the polls seem to have had the spin-off effect of hastening the introduction of reforms in land acquisition. Congress, which is challenging the ruling BSP in Uttar Pradesh, has on its part expedited the drafting and introduction of the LARR Bill 2011, which will replace the old Act, apparently to curry favour with the embattled farmers of Uttar Pradesh.
Given the strong sentiment against the way land acquisition powers have been used by the governments in India, it’s clear, however, that no political party can now afford to escape responsibility for not facilitating reforms in this area, even in the states that are not going to elections.

The new regime
The reform of the land acquisition regime, proposed in the LARR Bill 2011, has received mixed reactions from the public. The representatives of the big industry have predictably panned the proposal that requires the consent of 80 per cent of the project-affected people for land acquisition to proceed in cases where private companies are involved; they have also criticized higher compensation and the requirement for R&R.
The grassroots activists, who have been spearheading protests against forcible displacement, have generally welcomed the move to reform the land acquisition regime, but have also expressed strong disappointment over what they believe is the government’s intention to continue with the framework of the old Act in the proposed LARR Bill 2011.
“The intent of the new Bill is the same as that of the existing law. The government wants to continue to facilitate acquisition of land for private corporations and treat land merely as a commodity rather than as a system that provides life and livelihoods to human communities and non-human species,” says Ulka Mahajan, who works for Sarvhara Jan Andolan, Maharashtra, and is a national convener of National Alliance of People’s Movements (NAPM), which is arguably the largest grouping of organizations and movements against land acquisition in the country.
Mahajan says the LARR Bill 2011 is framed in the belief that agriculture must continue to make way for industry irrespective of whether the rural population is inclined and ready to give up their existing livelihoods and social relations in favour of a different economy and life style.
The new regime will continue to threaten the livelihoods that are dependent on land and natural resources, including those of the landless farm labour and artisans, and also endanger food security, she says.
As the government comes up with projects like SEZ, National Manufacturing Investments Zones, Petroleum, Chemicals and Petrochemical Investments Regions (PCPIRs) and Delhi-Mumbai Industrial Corridor, hunger for farmland has acquired gargantuan proportions.
“PCPIR, for example, will require 250 square kilometres of land which will wipe out wide swathes of rural areas and lakhs of rural communities. Shouldn’t the government draw a line somewhere as to the amount of land needed to be acquired for the industry?”

Great expectations
NAPM has been demanding that the replacement for the Land Acquisition Act, 1894, should be a comprehensive “National Development Planning Act” which would lay down “our development goals (as a reference) for defining public interest” and “the planning process including options, assessments and criteria for choice”.
“There should be an emphasis on the resources belonging to people, not on the principle of ‘eminent domain’ (The right of a government to seize private property for public use, in exchange for payment of market value.)”
NAPM has also called for the unit of planning a project to be the smaller social unit  -- Gram Sabha in rural areas and an Area or Basti Sabha with no more than 1000 families in an urban area -- so that the people have a direct say in decision making.
Mahajan says the provision for obtaining the consent of 80 per cent of the project-affected people should also apply to public-sector projects and the provisions of the LARR Bill 2011 must also apply to all other laws (cited in the 4th schedule of the Bill) that provide for land acquisition, such as the Special Economic Zones Act, 2005, and the Coal Bearing Areas (Acquisition & Development) Act, 1957.
She says the rights of the tribal communities as protected by Forest Rights Act, 2006, such as the right to protect minor forest produce (MFP), should also be protected under the LARR Bill 2011.
NAPM has also suggested that the government should introduce a system of leasing out the land of farmers instead of outright purchase.
“Currently, the government expropriates the land of the farmers and hands it over to say a SEZ developer who then leases parts of that land to several businesses. Why the government cannot directly leases the land from the farmers instead of imposing compulsory land acquisition,” argues Mahajan.
NAPM has, however, welcomed the move to combine R&R with land acquisition and the provision in the LARR Bill 2011 that also compensates the landless people who are dependent on the land being acquired.
It seems the struggle over land acquisition and displacement will continue, but the country might just have begun to move in the right direction.

The current regime of land acquisition
The Land Acquisition Act, 1894, seeks to set out the circumstances and the purposes for which private land can be acquired by the central/state governments. The procedure to be followed in making an acquisition under the Act is briefly as follows.

Stage one
*Publication of a preliminary notification by the Government that !and in a particular locality is needed or may be needed for a public purpose or for a company.
*Entry of authorised officers on such land for the purpose of survey and ascertaining whether it is suitable for the purpose in view
*Filing of objections to the acquisition by persons interested and enquiry by Collector.

Stage two
*Declaration of intended acquisition by Government.
*Publication of declaration as required by the Act.
*Collector to take order from the Government for acquisition and land to be marked out, measured and planned.

Stage three
*Public notice and individual notices to persons interested to file their claims for compensation. S. 9.
*Enquiry into claims by Collector.
*Award of Collector.
*Reference to Court.

Stage four
*Taking of possession of the land by the Collector.
*Payment of Compensation.

(This article was first published in Competition360 magazine.)

Thursday, October 27, 2011

Corruption vs Democracy

As loot of public resources threatens the very foundations of Indian democracy, there is a need for a series of reforms.

At the peak of Anna Hazare-led Jan Lokpal Movement in August 2011, acclaimed actor Om Puri was caught saying something in public and on camera that represents one of the many ways in which people tend to talk about ‘corruption’.
Yeh anpadh hain. Inka kya background hai? (They are uneducated. What’s their background?),” Puri said of the MPs to a rally in support of the enactment of Jan Lokpal Bill at Delhi’s Ramlila Maidan, even as the TV cameras beamed the pictures live to national and international audiences.
What’s interesting about Puri’s comments was they were made while he participated in a nationwide demonstration against corruption. His address was supposed to express general frustration over rampant corruption and loot of public funds.
And yet he managed to say something that sounded like an attack on members of parliament in particular and the political class in general.
‘Isn’t there a direct relationship between the competence and moral standards of the political class and growing corruption?’ Some people might argue.
‘But what’s the relationship between being uneducated and corruption? Aren’t the well educated people behind most of the big-ticket scams?’ Others might counter. And the debate would continue.
Let’s consider some more scenarios of the way people typically talk about ‘corruption,’ especially in public.
(a) ‘How can you not have corruption when reservations in education and employment have been stifling meritocracy?’ someone might thunder.
(b) ‘A society that has tolerated centuries of caste-based oppression of certain communities can’t be anything but thoroughly corrupt,’ someone else might insist.
(c) ‘Don’t we indulge in corruption when we submit inflated medical bills to our employers?’ yet another might suggest.
(d) ‘What we badly need is a spiritual movement which will revive our age-old values and build character,’ another voice might add.

Going off at a tangent?
The scenarios cited above exemplify the mind boggling variety of ways in which people tend to think and talk about corruption, often seeming to go off at a tangent.
What explains this great variety? Why do people tend to link ‘corruption’ with a wide range of actions, ideas, concerns, phenomena and situations that often seem to be totally unrelated to the general understanding of ‘corruption’?
The answer lies perhaps in the term ‘corruption’ itself.
Of the eight different meanings of noun ‘corruption’ that the Shorter Oxford English Dictionary (fifth edition) lists, the two are (a) Moral deterioration; depravity; an instance or manifestation of this (b) Perversion of a person’s integrity in the performance of (especially official or public) duty or work by bribery, etc.
While (a) represents a very broad-brush definition of corruption, (b) is more specific and nearer to how the law defines ‘corruption.’
It’s clear from these definitions of ‘corruption’ that the term largely denotes a moral phenomenon and the first meaning is often thought to subsume the second.
This broad-brush meaning of ‘corruption,’ in turn, explains why people seem to apply an incredibly wide range of moral standards to an equally wide range of actions, phenomena and situations when they think and talk about corruption.
In simpler words, ‘corruption’, in an individual’s estimation, can be any instance of deviation from the moral standards that he or she has in mind in respect of any conceivable action, phenomenon or situation.
That should explain not only why people can have widely divergent views on corruption, but also why they often talk about a variety of things – Om Puri’s exasperation over MPs’ qualifications, for instance – which may sound to their listeners quite unrelated to the idea of ‘corruption.’
Then we also have very specific ways in which the law views ‘corruption’. Various versions of Lokpal Bill, for example, are essentially about various forms of corruption as defined in the Prevention of Corruption Act, 1988, even though the Anna Hazare-led campaign triggered endless discussions on ‘corruption’ in senses that its broad-brush definition allows.
Interestingly, even the Prevention of Corruption Act, 1988, refrains from defining ‘corruption,’ laying down instead offences like “Public servant taking gratification other than legal remuneration in respect of an official act”, “Taking gratification by corrupt or illegal means in order to influence public servant” and “Taking gratification for exercise of personal influence with public servant.”

Inadequacy of the law
Clearly, the Prevention of Corruption Act, 1988, largely views ‘corruption’ in the restrictive sense of bribery or pecuniary advantage. This restrictive legal sense explains why people tend to think of governmental corruption mostly in terms of giving and taking of bribes.
“However, experience of the past decades shows that such an indirect definition of corrupt practices is paradoxically restrictive and a whole range of official conduct, detrimental to public interest, is not covered by strong penal provisions,” says the Second Administrative Reforms Commission (ARC) about the way the Act defines corruption.
The ARC recommends bringing the following under the Act.
1. Gross perversion of the Constitution and democratic institutions amounting to wilful violation of oath of office.
2. Abuse of authority unduly favouring or harming someone.
3. Obstruction of justice.
4. Squandering public money.
Besides, the ARC also recommends bringing under the Act what it terms ‘collusive bribery,’ with double the punishment for ordinary cases of bribery.
Collusive bribery has been described as “cases where the bribe-giver and bribe-taker together fleece society and the bribe-giver is as guilty or even more guilty than the bribe-taker”
“These are cases of execution of substandard works, distortion of competition, robbing the public exchequer, commissions in public procurement, tax evasion by collusion, and causing direct harm to people by spurious drugs and violation of safety norms,” says the ARC.

Loot in public procurement
Public procurement, which means the government spending taxpayers’ money to buy various goods (from stationery to submarines) and services (from catering to airport construction), has long been a happy hunting ground for the corrupt.
Bofors, one of the most notorious cases of high-level, big-ticket corruption to have happened in India, was nothing but a public procurement scam. The string of scams in procuring goods and services by the organizers of Commonwealth Games 2010 is a more recent example.
A 26 June 2010 report in The Statesman says, “Railway supplier cartels have fleeced the public exchequer by about Rs 50,000 crore in the past decade. Indian Railways have been happy to play accomplice -- currently the Railways spends about Rs 16,400 crore annually via uncompetitive bidding.”
Citing a document written by a senior railway official, the report adds: “Out of Rs 20,500 crore of annual procurement, 80 per cent is completed in restricted competition. This virtual licence-raj of approving suppliers favours select firms over others, resulting in the creation of cartels that quote prices unrelated to market conditions and jack up prices of goods by a minimum of 30 per cent or Rs 4,920 crore annually.”
A 27 June 2011 report in the same newspaper estimates that total public procurement in India in the year 2009 – by all central, state and local government authorities – was about 30 per cent of the GDP, amounting to Rs 24 lakh crore, out of which at least Rs eight lakh crore was lost in corruption.
The loot in public procurement has reached such proportions that the Centre -- which purchases goods and services worth about Rs 11 lakh crore per annum – has been considering a series of reforms, including a draft public procurement law, suggested by an 11-member committee headed by Vinod Dhall.
The committee has also recommended that the Centre set up an independent public procurement department and an e-procurement portal, and formulate separate rules covering procurement of goods, works, and services, as well as rules for Public-Private Partnerships (PPPs), which are a new form of public procurement.
The PPPs, through which the government allow the private contractors to play a much bigger role in provision of public goods and services over a much lengthier time-frame (up to 20-30 years), do not seem to have been performing well in terms of value for public money and accountability to the citizens.
A July 2010 report in Business Standard, for instance, says that National Highways Authority of India (NHAI), the central government agency that has been spending thousands of crores of rupees on building roads through the PPP mode, is headed for bankruptcy.
The NHAI has been following a “flawed bidding process” causing the bids received for PPP projects to be far in excess of the estimates approved by the government authorities, says the report, citing an ‘issues paper’ on the subject leaking out of the Planning Commission.
The public-sector banks have been lending money to the NHAI’s PPP projects far in excess of the approved total project costs (TPC), thus enriching the private contractors at the cost of the public, says the ‘issues paper’.
It needs to be pointed out here that NHAI and its officials have frequently been found to be involved in corruption scandals.

Gifting away public wealth
Published in July 2011, a Lokayukta report on illegal mining in Karnataka said that the public exchequer lost Rs 16,085 crore in revenue on account of illegal mining, transport and export of iron ore between 2006 and 2010. The loss over a single year, i.e. 2009-10, was Rs 1800 crore, says the report.
The report indicts six ministers, including Karnataka Chief Minister BS Yeddyurappa (who was thus compelled to resign), Reddy brothers from Bellary district, health minister B Sriramulu, 784 bureaucrats, former chief minister HD Kumaraswamy, and over 100 private companies.
In June 2011, the Comptroller and Auditor General (CAG) blamed the government for favouring Reliance Industries Ltd (RIL) and other oil companies at a “huge” cost to the public exchequer. The charges include allowing RIL to inflate its capital expenditure for production at the Krishna-Godavari basin by 117 per cent between 2004 and 2006. The Central Bureau of Investigation (CBI) has filed three separate preliminary enquiries based on CAG’s findings.
Since the second ARC makes a mention of “tax evasion by collusion,” let’s get an idea of government generosity that Big Business enjoys.
“In six years from 2005-06, the government wrote off corporate income tax worth Rs 3, 74,937 crore — more than twice the 2G spectrum fraud — in successive budgets. The figure has grown every single year for which data are available,” reports The Hindu in March 2011.
“Corporate income tax written off in 2005-06 was Rs 34,618 crore. In the current budget (2011-12), it is Rs 88,263 crore, an increase of 155 per cent. That is, the nation presently writes-off over Rs 240 crore a day on average in corporate income tax. Oddly, that is also the daily average of illicit fund flows from India to foreign banks, according to a report of the Washington-based think tank, Global Financial Integrity.”
The Union budget for 2011-12 also gave away Rs 1, 74,418 crores in customs duties forgone, including “crores of rupees of sophisticated medical equipment imported by large corporate hospitals with almost no duty levied on it”. 
They are the same hospitals that flatly refuse to honour their obligation of providing 30 per cent of their beds free of charge to the poor in return for the government aid that they receive.

Stashing the wealth away
Global Financial Integrity (GFI) says that India lost a total of US $462 billion (Rs 20.92 lakh crore) in illegal capital flight from 1948 through 2008. These illicit financial flows were generally the product of tax evasion, corruption, bribery and kickbacks, and criminal activities.
From 2004 to 2008, India lost assets at a rate of US $19 billion (Rs 85,500 crore) per year. Total capital flight out of India make up 36 per cent of 2008 GDP and are more than twice the current external debt of US $230 billion. Illegal capital flight was primarily driven by High Net-Worth Individuals (HNWIs) and private companies, adds GFI.
According to reports published in April 2011, quoting Julian Assange, the founder of whistleblower site WikiLeaks, there is more Indian money in Swiss banks than any other nationality.
Unchecked corruption is usually reflected – as it does in India - not only in the stealing of national wealth, usually with impunity, but also in poor or absent public services, worsening standard of living of the ordinary citizens, growing poverty and disparities in income and wealth, rising crime graph, and several other social and economic parameters. 
Corruption also erodes the rule of law, democratic accountability, and the legitimacy of the State in the eyes of the citizens.

Weakening of institutions
The massive scale of corruption in the country, particularly in polity, has strengthened the belief that corrupt practices increasingly originate at the top and trickle down to the bottom.
In his book, ‘India’s Politics: A View from the Backbench’, first published in 2007, Bimal Jalan, former Governor of the Reserve Bank of India, who has also served as a member of the Rajya Sabha, writes: “The power to allocate scarce resources lies with the political leaders in power, who tend to cater to their own party interests and other special interests that are in a position to help them during and after elections.”
“Another important cause of political corruption is the high cost of contesting elections… The need to raise large funds for financing elections has made political corruption widely acceptable and unavoidable in most constituencies across the country,” Jalan adds.
Jalan’s observations provide arguably the most credible explanation of rampant corruption in all levels of government in India. To make sense of it, one just has to follow the money trail, like in the outline given below.

Parties and politicians receiving large funds, including black and ill-gotten money, from special interests groups or individuals to contest elections ------------------- After winning elections, angling for the most ‘lucrative’ ministerial portfolios ---------------------  Parties and politicians in power paying back to the groups or individuals who funded them by siphoning off public funds ------------------- the need to steal increasingly larger amounts of public money on account of the competitive nature of electoral politics and quid pro quo arrangements with private corporations and other ‘beneficiaries’ --------------------- ‘General acceptance’ or sufferance of this state of affairs by all political parties and politicians, including those who are not corrupt.

If elections are being won primarily on the strength of money, a candidate’s character and record of public service become irrelevant and immaterial. Thus, people, who have either no record of public service or a very dubious record, are able to ‘buy’ nomination of a political party to contest elections.
Interestingly, out of 543 members of the current Lok Sabha, whose records are available, as many as 314 are “crorepatis” with assets of Rs 10 million or more and 162 (or 29.83 per cent) have criminal charges pending against them, shows the data compiled by Association for Democratic Reforms (ADR), an NGO.

Anti-corruption agencies
An examination of our current systems of preventing and fighting corruption reveal why they have let us down.
The anti-corruption system at the central level consists of four agencies: the Central Vigilance Commission (CVC), the departmental vigilance, the CBI, and the police. 
While the CVC and the departmental vigilance deal with the “vigilance” aspects of an alleged case of corruption which usually translates into disciplinary proceedings against a public servant, the CBI and the police deal with criminal aspects.
Another categorization of these four agencies can be done on the basis of the hierarchical level at which corruption is reported. While the CVC and CBI deal with corruption at higher levels of the government, departmental vigilance and the police usually check corruption at lower levels.

Central Vigilance Commission
The CVC enquires into a complaint of corruption either directly or through the vigilance wings of various departments, but is constrained by the fact it is merely an advisory body. Government departments seek CVC’s advice on cases of corruption, but are free to accept or reject such an advice. 
Thus, an advice of the CVC to initiate prosecution of an accused may not be accepted and the recommendation for a major penalty may be turned into a minor penalty. Except for examining civil works of the government agencies, the CVC has no investigative power of its own and no power to register a criminal case. 
The CVC has no power over politicians or the elected public servants; it can at best bring a case involving a politician to the notice of the government.
Though the Central Vigilance Commission Act, 2003, gives the CVC supervisory powers over the CBI, the former can neither direct the latter to proceed in a case in a particular manner or to ask for a case file. 
The CVC has no control over officials in the vigilance wings of various departments to which it forwards a large number of complaints. The government merely consults the CVC in making appointments of the chief vigilance officers (CVOs) of various departments.
The ruling party or coalition is in full control of the selection of central vigilance commissioners because it is represented by two (the prime minister and the home minister) of the three members that make up the selection committee.

Central Bureau of Investigation
Though the CBI has the power to investigate any case related to a central government department or the one referred to it by a state government or a court, it has very little independence. 
It is directly under the administrative control of the department of personnel and training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions. Being under direct control of the central government compromises CBI’s ability to conduct a fair investigation into complaints against a minister or politician who is part of the ruling party/coalition or a bureaucrat who enjoys the protection of such a minister or politician. 
Such investigations are widely expected to be scuttled in their initial stages or midway unless they are pursued under the supervision of the Supreme Court a la the 2G spectrum scam case.
The CBI has also been accused of being used by the ruling parties or coalitions to settle a score with their political foes.
The rate of conviction achieved by the CBI in the year 2009 was 62 per cent (meaning 38 of the 100 public servants booked for corruption were acquitted) --- not a reassuring number since the agency is hardly ever able to book, let alone prosecute, corrupt ministers and their favoured bureaucrats.

Departmental vigilance
Each department has a vigilance wing, which is usually staffed by officials from the same department, even though an outsider can be appointed as the chief vigilance officer (CVO) in a few cases. 
Since the staff of a vigilance wing is drawn from the department that it supervises and can be assigned any post in the same department, it is very difficult for them to act independently (even if they muster up the courage) on complaints against their own colleagues. 
Departmental vigilance does not investigate into criminal aspects of any case. It does not have the powers to register an FIR. Needless to say, the departmental vigilance officials are totally helpless in cases where politicians are the main culprits.

The police
The police have also not been successful in fighting corruption. Most people do not even know that they can take their complaint against corruption to the police. 
Those who do and have the courage to go to the police face problems in getting their FIR registered. In most cases, the corrupt are in a position to use their contacts to scare the police into submission. For example, if a local MP or MLA has been named in a complaint, the police are not likely to be very helpful.

Measures against corruption
The failure of the four agencies described above to curb corruption in an effective manner, severally and jointly, has strengthened the demand for a Lokpal. 
Anti corruption activist, Anna Hazare-led campaign, for example, advocates the enactment of Jan Lokpal Bill to create a commission that will be fully independent of the government and be able to do both investigation of complaints and prosecution without seeking anybody’s approval.
What is also needed is a forum for the ordinary citizens to register their complaints against any instance of corruption that affects their day-to-day lives and special protection for whistle-blowers and potential witnesses.
Notably, the Parliament recently passed a resolution accepting Anna Hazare’s three demands, (a) every government department adopt a citizens’ charter which will ensure time-bound rendering of public services (b) Lokayukatas be set up in states on the lines of Lokpal (c) the lower bureaucracy be made accountable to the citizens through Lokpal or any other mechanism.
Long-term solutions must include a series of electoral, police and judicial reforms, including curtailing the use of money in elections, promoting internal democracy in political parties, promoting transparency and accountability.
Also important is to reverse the weakening of Parliamentary oversight of the executive, especially in financial matters. It’s important that the Parliament, state assemblies, and their committees be ever vigilant in holding the executive responsible for its acts of omission and commission.
Since ‘eternal vigilance is the price of liberty’, strengthening grassroots democracy through Gram Sabhas is indispensable. Only an organized citizenry has the strengths and the resources to hold the government to account.
(This article was first published in Competition360 magazine.)

Thursday, October 13, 2011

An industry mogul or a con artist?

In today's India, a very successful industry mogul can be a crony capitalist without raising an eyebrow. He can also behave like a con artist without raising an eyebrow.

1.While blaming coaching classes for the decline in the scholarly quality of IIT entrants at PanIIT summit,  N.R. Narayana Murthy (of Infosys) omitted to tell his audience that he himself has substantial private investment in the lucrative IIT test preparation business.
Catamaran, Narayana Murthy's private equity firm, has invested Rs 25 million in ACE, a Bangalore–based test preparation firm that offers training for the IITJEE, AIEEE, PMPD, CBSE-11 & 12, CET, Foundation IIT and NTSE.

2. Catamaran, Narayana Murthy's private equity firm, has pumped a couple of billion of rupees into Manipal Universal Learning without the media telling the public (and some court of law taking suo motu notice) that all PE investments in education are illegal.
They amount to a backdoor entry into educational institutions that by law can only be run by non-profit trusts and societies.
The 'two tier' system that PE investors' employ by setting up a private company, which extracts private profits from the trust/society running an educational institution, is nothing but a fraud.
It invariably results in breaking of laws governing non-profit trusts/societies, income tax, and regulations governing educational institutions, which is what Narayana Murthy has been doing with impunity.

3. Catamaran has invested in Wellspring, a private healthcare provider, and yet Narayana Murthy has assumed the chairmanship of Public Health Foundation of India (PHFI), a fraud organization that influences, deeply and unabashedly, the government policy on healthcare and medical education.
Narayana Murthy's only claim to competence in public health is his wealth and supposedly 'clean image'. Describing itself as a public-private partnership (PPP), which itself is a fraud, PHFI has been receiving billions of rupees of taxpayers' money in the form of grants and parcels of free land for its public health schools from central and state governments with zero accountability. This fraud organization has remained non-compliant with the Right to Information Act 2005 for most of its existence and has been kept outside the scrutiny of Parliament and the Comptroller and Auditor General.
PHFI's public health schools are unrecognised and unaccredited by any statutory regulator. Government employees are being made to study PHFI's unrecognised and unaccredited courses for which PHFI charges the government a cool Rs 250,000 per candidate.
K. Srinath Reddy, PHFI's chief executive, who has long acted as a sidekick of Rajat Gupta, a convicted fraudster, has been engaged in fraud and forgery, as two articles posted elsewhere on this blog-site explain.
'PHFI' must indeed stand for 'Public Health Fraud of India'.

4. Clearly, Narayana Murthy has been using the carefully crafted image of "an ordinary middle class man turned successful and principled IT entrepreneur" to advance his illegal private investments in education and other dubious interests.

5. In the matter of PHFI, Narayana Murthy does not look very different from his predecessor, Rajat Gupta, a convicted fraudster who had to resign his chairmanship in March 2011 after being charged by US prosecutors with being involved in the Galleon insider trading ring.
(On October 27, 2011, Rajat Gupta, the former managing director of McKinsey, was arrested by the FBI, produced in a New York court, and charged by federal prosecutors with five counts of securities fraud and one count of conspiracy to commit securities fraud.
The 62-year-old Gupta faces over 100 years in prison and a $25 million fine if found guilty. He is accused of leaking information to Raj Rajaratnam, his Sri Lankan-born old friend, who managed Galleon hedge fund and turned a massive profit on the news. Gupta has since been convicted and sentenced to two years in prison.
Rajaratnam has been serving an 11-year jail term for the massive fraud.)

Rajat Gupta helped corner public resources in starting PHFI’s unregulated educational enterprises while also looking for lucrative opportunities in education for his private equity businesses.
Narayana Murthy has been doing the same.
Both Gupta and Narayana Murthy have no scruples about making PE investments in education in India, which are prohibited by the law of the land.
Notably, the law is circumvented by getting the non-profit managements of the educational institutions to outsource most of their work to the profit-making companies owned by PE investors.
Such a ‘two-tier arrangement’ results invariably in violations of laws governing public trusts/societies and the Income Tax Act, which mostly go unpunished due to the connivance of the regulatory authorities.
Will a person engaging in such shenanigans on a scale of millions of dollars know where to draw the line in commercializing education?


Poor quality of students entering IITs: Narayana Murthy
PTI | Oct 3, 2011
NEW YORK: Voicing his displeasure over the quality of engineers that pass out of the IITs, Infosys chairman emeritus N R Narayana Murthy has said there is a need to overhaul the selection criteria for students seeking admission to the prestigious technology institutions.
Addressing a gathering of hundreds of former IITians at a 'Pan IIT' summit here, Murthy said the quality of students entering Indian Institutes of Technology (IITs) has deteriorated over the years due to the coaching classes that prepare engineering aspirants.
He said the majority of the students fare poorly at jobs and global institutions of higher education.
"Thanks to the coaching classes today, the quality of students entering IITs has gone lower and lower," Murthy said, receiving a thundering applause from his audience.
He said apart from the top 20% of students who crack the tough IIT entrance examination and can "stand among the best anywhere in the world," quality of the remaining 80 per cent of students leave much to be desired.
Coaching classes teach aspirants limited sets of problems, out of which a few are asked in the examinations.
"They somehow get through the joint entrance examination. But their performance in IITs, at jobs or when they come for higher education in institutes in the US is not as good as it used to be.
"This has to be corrected. A new method of selection of students to IITs has to be arrived at."


Catamaran, Accel Investing Rs 5Cr In Test Prep Firm Ace Learning
16 November, 2010
N R Narayana Murthy's Catamaran Ventures, which struck its investing debut with SKS Microfinance (India's first microfinance firm to go public), is making its second investment in Bangalore-based Ace Creative Learning Pvt Ltd, which provides educational support services to schools and colleges.
Accel Partners is the co-investor in the early stage investment round which will see both venture firms contributing Rs 2.5 crore each in Ace. This will be Accel's fourth investment in 2010.
When contacted, Accel India’s partner, Prashant Prakash confirmed the deal, but declined to divulge the transaction details. “We have decided to invest Rs 2.5 crore in Ace,” Prakash told VCCircle, adding that he can’t comment on the stake holding and other details.
Catamaran’s Managing Director Arjun Narayan also confirmed the investment in an email to VCCircle.
Banglore–based, Academic Center for Excellence or Ace, founded in 1998 by Dr. Ganapathy Sridhar, offers comprehensive training for the IITJEE, AIEEE, PMPD, CBSE-11 & 12, CET, Foundation IIT and NTSE, according to its website.

Friday, July 1, 2011

An Ode to Kapil Sibal

By a constituent who deeply regrets having voted for Sibal in the last Lok Sabha election because the wily lawyer-turned-politician has consistently displayed behaviour that represents not only a threat to constitutional bodies like CAG, but also to any effort to aid the process of deepening of democracy.

Having won many a lawsuit
That had little do with grass root,
Drawing great wealth and fame
From worthies beyond blame,
He eased himself into politics,
To continue to earn goldbricks,
Using chicanery to greater effect
In his lifelong project,
To serve the elite with aplomb,
And scammers of the telecom,
Seeing scarcely any fraud,
Committed in daylight broad,
Attacking instead the Auditor,
Like a debtor browbeating the creditor,
Trampling what is Constitutional,
Pettifogging to the last decimal,
He looks and sounds very wise,
Like a wolf in sheep’s guise,
Crying where there is no need,
But to hide corruption and greed,
He was deemed the right person
To deal with Ramdev’s anshan,
And to ensnare the mighty Baba,
In a five-star hotel, not a dhaba
Ensnare he did with crafty brilliance,
A sly deal and then a press conference,
He displayed, thus, the right qualification,
To thwart the Jan Lokpal legislation,
Undermining the work of civil society,
Feigning concern for Constitutional propriety
Inventing reasons for keeping the PM out,
Judiciary and the lower bureaucracy out,
He misleads the public with great élan
Manipulating the media according to plan
Pretending to be a reformer of public policy,
Despising the people, serving aristocracy
Now you know why lawyers are required,
To keep the elite happy, democracy bemired
Don’t you go by their logic and eloquence,
It’s only to fool you and continue the pretense.

Tuesday, June 28, 2011

Land acquisition: judiciary’s changing interpretations of citizen's rights

Posco and Singur are back in news. And on June 27, the Supreme Court seems to have taken the side of the poor in a case involving land acquisition in Greater Noida (Uttar Pradesh). The judiciary, however, has been disturbingly inconsistent in protecting the week.

In September 2008, the editor of the business magazine I was working for asked me to speak with Supreme Court advocate Prashant Bhushan on how the Constitution views land acquisition and displacement.
The interview, which the editor did not allow to be published, was remarkable in its coverage of fundamental issues, including how the law-courts have been interpreting the constitutional right to life in the context of land acquisition and displacement.
That is why I am reproducing the interview here in Bhushan’s own words.
Read it to get a perspective on the 'compassionate' position that the Supreme Court took on June 27, Posco, Singur… indeed the entire issue of land acquisition and displacement.
Notice the continued relevance of the issues and how the government has left the problem unaddressed in nearly three years since September 2008.

Large-scale land acquisition that’s currently going on, whether for SEZs or mining or real estate development, was previously the domain of the government or the public sector; it is now being sought to be turned into the domain of private sector in the guise of ‘public purpose’.
SEZs, in most cases, are also essentially real estate development projects because as much land for residential complexes, shopping malls and hotels, etc is being acquired, as for industrial production.
Even in the highway projects, large-scale land acquisition is being made for purely commercial reasons rather than any public purpose. That’s nothing short of a scam. For example, in the Taj Expressway project, five times as much land is being acquired for commercial purposes as for road building. This land for commercial development is being given to the same private developer who is going to build the highway — Jaypee Group.
So Land Acquisition Act has now become a tool for shifting property rights from communities that are the rightful owners of the land in question to large commercial interests.
This law is being used to compulsorily acquire land from people for a pittance, which is nowhere near the market value of that land, and transfer its ownership or control to private interests for their private profits. Huge kickbacks are an important feature of all these deals.
The original purpose of the Land Acquisition Act was to acquire land only for ‘public purpose’. Today all kinds of land acquisition, all industries and all kinds of development are being described as the one that serves ‘public purpose’. Even residential and commercial development is being described as being for ‘public purpose’.
If a project is that essential for a public purpose, then why should it be given to a private developer in terms of legal ownership? If it’s being given to a private developer, then it’s clearly not of such public interest as would warrant compulsory land acquisition under the Land Acquisition Act.
In fact, it is absurd to give the control of airports and highways, which by their very nature are monopolistic undertakings, to private parties and thereby create private monopolies. The private company controlling the Hyderabad airport charges, firstly, Rs 1000 as ‘landing charge’ through the airlines and then it also has every passenger being stopped at the security and told to show the receipt for ‘airport charge’ of Rs 400 to be paid to it.
Having been turned into monopolies, these private companies can charge users anything they like and, in many cases, also enjoy the rights for commercial development on large parcels of land adjoining the land for the main project.
In the face of this manner of compulsory land acquisition, which is actually a scam, there’s naturally going to be resistance from the people, which we are witnessing in the form of peoples’ movement in various part of the country.

(On the apparent shift in governments’ approach from enforcing land acquisition for projects involving private interests towards allowing private parties to deal directly with farmers.)

Government’s shift towards ‘let-the-private-parties-themselves-acquire-land’ position is in response to the growing opposition of the people to land acquisition and their resorting to direct action to stop their forcible displacement.
The government understands that even if it completes the process of land acquisition on paper, in actual fact it cannot remove people from their land except by using brute force. So there is the realization in the government that it will do no good to just acquire land unless it can get people to move out.
That’s difficult because people are increasingly refusing to do so and are also organizing themselves in grassroots movements.
Encouraging companies to buy land on their own as far as possible without resorting to compulsory acquisition is one of the tactics used by the government to reduce the intensity of peoples’ opposition and resistance.
Obviously, voluntary acquisition will reduce the intensity of opposition, but simultaneously the government is helping the companies by telling people, ‘You sell your land to the private parties or else we’ll acquire it under the Land Acquisition Act. You’ll be paid a better price by the private parties. So you might as well sell it to them’.
Another tactic that the government has tried is the new rehabilitation policy, which is being used as a carrot to reduce the intensity of opposition to land acquisition. But the new rehabilitation policy has, firstly, many defects and, secondly, it has not been brought into force. So the people are not swallowing this bait.
The so called public-private partnerships (PPPs) have also been a scam in that they disguise private interests as public purpose. The PPPs involve setting up a special purpose vehicle (SPV) or joint venture, in which the government takes a small stake and the private party takes the majority stake in order to mask a private interest as a public sector enterprise that will then acquire land. Vedanta’s project in Orissa is a case in point.
All kinds of subterfuges are being invented to disguise the fact that most of the land acquisition is in fact for the benefit of private companies.
We have suggested that the following amendments must be made to the Land Acquisition Act.

1. Compulsory land acquisition should only be made for the public sector, not any private company.

2. Before any compulsory land acquisition is allowed, some independent body should examine whether or not the project is really in public interest or not, which means assessing whether or not the benefits outweigh the costs.
For example, if you are acquiring the land of 10,000 small farmers in order to provide irrigation to 1000 large farmers, it can hardly be called ‘public interest’.
The independent body should also examine whether there’s any viable alternative available, which is less displacing, for setting up the same project.
For example, there was no need to acquire the fertile farmland in Singur for Tatas’ car factory.
The state government could easily have given them fallow land in the interior. But the Tatas were not willing to move into interior; they wanted to be nearer to Calcutta.

3. If you acquire land compulsorily, you provide land for land so that the people who have for generations been dependent on land for their livelihoods are not economically devastated.
You also need to separately compensate the people for any loss to their community life or access to natural resources, etc.

4. Land ceiling must be implemented in all industrial and commercial projects.
You can’t allow a single company like Reliance Industries to acquire 25,000 acres or 50,000 acres in a country that has such a high population density and millions of landless people and tiny landholders. That would be totally inequitable.

5. All land acquisition proposals must be put before the Gram Sabha, which is the Constitutional body consisting of all the adult residents of a village.

The way large parcels of land are being acquired currently is illegal in that land acquisition for a private company cannot be justified as serving a public purpose.
But the way our law-courts have been functioning these days, it has been shown time and again that the thinking and the worldview of our judges are the same as that of the government, according to which everything must be left to the market forces and it’s perfectly OK to have a few companies control huge resources.
The court pronouncements are going in favour of corporate interests and people are increasingly losing their confidence in the judiciary.
That’s also the reason for the existence of the grassroots movements like the ones going on in Singur, Kalinga Nagar, etc.
If people had the confidence in law-courts, they would seek the legal remedies rather than suffer the hardships of fighting the might of the government and corporate interests.
The Constitution does protect people from being compulsorily displaced.
The Supreme Court has said this time and again that every citizen has the Constitutional right to life, which includes the right to lead a life of dignity and therefore all the things that will allow a person a dignified life.
These rights are being violated today. For instance, people earning their livelihoods from land are being deprived of their livelihoods by the government forcibly taking away their land.
The same law-courts that had earlier said that every citizen had the right to shelter have ordered the demolition of jhuggis of thousands of people in Mumbai and Delhi without giving them any alternative shelter.
For example, 40,000 jhuggis at Yamuna Pushta in Delhi were demolished on the orders of Delhi high court, rendering homeless the residents of that area. One of the grounds for the order was encroachment of the Yamuna river-bed area.
The same Yamuna river-bed area has been used for building shopping malls, residential complexes, and hotels in the guise of the Commonwealth Games.
Here, the Delhi high court has ordered the abridgement of the peoples’ right to life under Article 21 (‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’).
The same high court had earlier declared that shelter -- of even a kind that was demolished in Yamuna Pushta -- was the fundamental right of a citizen and evicting them from there homes without giving them even a notice was a gross violation of the principles of natural justice.
If the law-courts were to act on the correct interpretation of the Constitution, which they themselves had made 20 or 30 years ago, they would not have done many of the things they have done actively to deprive people of their homes.
In these cases, the law-courts have been acting in complete and gross violation of the Constitution, interpreting the Constitution according to their whims and fancies.
Today they seem to be interpreting the Constitution the way large companies want them to be interpreted.
In the context of Article 21, compulsory land acquisition under the Land Acquisition Act and the Act itself become unconstitutional on the ground that they deprive a person of his/her right to life.
In clearing projects like Posco’s and Vedanta’s, the Supreme Court has gone contrary to the advice of its own central empowered committee (CEC), which had said that the land in question should not be acquired on the grounds that such acquisition would have serious impact on the environment and the rights of forest dwellers.

(On August 09, 2008, a special bench of the Supreme Court had cleared the forest diversion proposal of the Rs 51,000-crore steel project of Posco India, which would facilitate handing over of at least 2958 acres of government-owned forest land to the company. The same day, the bench allowed Sterlite, of Vedanta Group, to go ahead with bauxite mining on forest land.
The Supreme Court had set up the CEC in May 2002 in order to be forewarned and advised on the threat of destruction of forests and wildlife.)

The entire deal is inequitable and unconscionable and yet the Supreme Court overrode their own committee and ordered the land to be given for those two projects.
The protections of the rights of the people provided in the Constitution are dependent on the actions of the law-courts.
Every time you want protection of your rights, you need to go to the court, and every time the court comes up with different rationalizations and different interpretations, which are loaded currently in favour of large companies. Little wonder people are losing faith in law-courts.

(Would it be possible for the central government to come up with a nationally enforceable policy on rehabilitation given the fact that land is a State subject in the Constitution?)

Yes. It won’t be just a policy; it will have to be a law, a parliamentary Act. It’d be like the Right to Information Act.
The Centre can say that the legislation deals with a subject that’s in residual list and is meant to ensure the Constitutional rights of people.
So the Parliament will enact the law, which should say that wherever land is acquired rehabilitation should be compulsory, in order that it becomes enforceable throughout the country.
We need either drastic amendments in the Land Acquisition Act or a new Act, which should incorporate a national rehabilitation policy.

(How should the price of land be determined?)

If you can carry the entire village or at least the majority with you by taking the Gram Sabha into confidence, you could say that the price you are offering is fair.
Also recent voluntary sales of land -- for example, at a price at which 50 per cent people are willing to sell their land voluntarily -- can also give an idea about the so called market price.
Currently, they are taking the price in some past, unrelated transactions that mostly tend to be based on land that was shown undervalued in order to save stamp duties.

(What becomes of people who have no recognizable land titles?)

The government should start a process of recognizing the rights of people living on certain land for a long time, like its happening in the case of Forest Rights Bill which lays down the due process of recognizing the rights of land of the forest dwellers.
There are, in fact, many laws that recognize the rights of people like tenants, sharecroppers, etc, living long on a certain land without a legal title.

Thursday, June 23, 2011

Jan Lokpal Movement: dependence on urban middle class and mass media

Some commentators have described movements like Jan Lokpal as overly dependent for support on the urban middle class and the mass media. The apparent dependence is both explicable and to some extent justifiable in terms of distribution of political power.

I received an email today from a gentleman who supports Jan Lokpal Movement. He echoed the well known view that the Movement has been missing the support of the “large population in villages, unorganized workers and people below the line of poverty”.
“This is really a massive force which is the real sufferer of corruption directly or indirectly. How to reach this class and involve them in this movement is a real challenge,” he wrote.
The gentleman has been “doubtful about our constant appeal to city population, middle class, people accessible through media to support anti-corruption movement”.
“By and large this class is connected with corruption and in some cases they are beneficiaries too,” he wrote.
I do not think this impression is entirely true because I believe that the Jan Lokpal Movement does have active and passive supporters in small towns and rural areas.
I do believe, however, that most of the visible support base of the Movement is present in urban areas.
In my reply to the gentleman, reproduced below, I have given some thought to the larger question of urban bias in movements such as Jan Lokpal.

    1. Politics – most of the power politics (Rajneeti) as well as a significant measure of the grassroots politics involving public causes (Lokneeti) – has been becoming increasingly urban-centric and is mostly conducted through the corporate-controlled media.
(Rajneeti, of course, gets the lion's share of media coverage and Lokneeti struggles for what is left.)
    Thus, politics is both the cause and the effect of the distribution of power in society, which has made the rural areas something resembling the colonies of the urban power centres.
    The colonisers do not usually feel the need to seek the views of the colonised.
    Seeking the views of the rural populace and engaging them in movements is also very hard and time consuming work; even the committed people are tempted to take the easy route.
    That's where the corporate-controlled media comes in.
    Long-standing, all pervasive problems of the people become "issues" only when the media decides to talk about them for reasons that have nothing to do with public interest.
    The political executive then uses the media to make a pretense of attending to those "issues" without doing anything meaningful.
    So the problems continue to fester even as the media flits from "issue" to "issue" deemed worthy by its owners and their political associates.
    (Media's "issue manufacturing" skills are particularly useful in election time, as also Rs multi-billion "media management" business of the political parties.)

    2. You are right in pointing out that large parts of the urban middle class are involved in corruption.
    I believe most of the urban middle class – people like us – are increasingly compelled to work in corrupt and undemocratic institutions, public or private. So it's an institutional compulsion for us to gradually become corrupt and undemocratic in behaviour.
    It's impossible, however, for some members of the urban middle class not to become aware of their own corruption and start thinking of reforming themselves and the larger society.
    Such people and the movements started by them need to be supported.
    So, the urban middle class-centric nature of people's movements like Jan Lokpal reflects the objective reality – the lop-sided distribution of political power, wealth, modern means of communication, and access to modern knowledge in favour of urban areas.
    It may not be an altogether desirable development, but it can be justified on the following two grounds.
    (a) It is very difficult for people's movements to fight centralised power and not get centralised themselves to some extent. Decentralisation demands not only a great commitment to democracy and large reserves of patience, but also material resources.

    (b) Those who are the primary beneficiaries of corrupt systems are morally obligated – more than others – to take the responsibility of reforms. They carry the heavier burden of guilt of being involved in corrupt systems. They also are better placed in terms of resources to start reform movements.
    Most of the rural population, the poor and the workers of the unorganised sector lack the resources to fight centralised power. The energies of the poor, in particular, are mostly used up in the battle of survival.

    3. I believe the sensitized city dwellers also have the responsibility to start highlighting and undoing the injustice done to the rural population, the poor, and the workers of the unorganised sector.
    I strongly believe that movements like Jan Lokpal will help bring the urban and rural people together and create a degree of common consciousness and feeling of solidarity.  
    That is because Jan Lokpal Movement represents a cause where the aspirations of the urban and rural Indians converge perfectly -- the need to lance the boil of corruption and bring about more democratic governance. Both need more democracy and participation in formulation of public policy.

Media often invokes "moral police" while acting itself as the most hypocritical "moral police" all the time!

If I take this Lallantop video at face value, then it seems that browbeating, verbal abuse, threats, and physical violence that the young ma...