In keeping with the goal of establishing a comprehensive, participative and meaningful process of land acquisition that the Land Acquisition Act, 2013 espouses, the Central Government issued the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 on 8th August. The rules have been designed to serve 3 principal objectives. First, they seek to put in place a robust framework for conducting a comprehensive analysis of the social impact of the proposed acquisition along with obtaining the consent of land owners. Second, they aim to put in place adequate safeguards as well as checks and balances to ensure that the social impact assessment is free and fair and that the consent is not acquired by any coercive method. Finally, they clearly delineate the time period within which the acquisition has to be completed in order to make the entire process more expeditious. Notably, they require the Appropriate Government to maintain a web-based work flow and information management system to track every step of the acquisition process. Against this backdrop, it would be apposite to succinctly analyze some salient features of the Rules.
Social Impact Assessment Unit
In order to lend credibility to the acquisition process, the Rules impose an obligation on the central or state government to appoint an independent organization as the Social Impact Assessment Unit that has to oversee the Social Impact Assessment. The Unit has to maintain a database of qualified independent practitioners and social activists, regularly conduct studies to add to its database and formulate strategies for improving the quality, efficacy and transparency of the assessment process. It must consistently strive to take capacity building measures to improve the quality of social impact assessment teams in particular and the entire process in general. It has to formulate the terms of reference of Social Impact Assessment for any acquisition proposal and determine the estimated cost of the assessment with a clear break-up of the amount required for every activity or item. Thereafter, the body requiring the land has to pay the assessment fee to the Unit which is to be used for conducting the assessment.
Social Impact Assessment Team
The Rules explicitly state that a new Social Impact Assessment Team (“the Team”) has to be constituted in order to conduct a thorough social impact assessment for every project. The criteria for the appointment of members to such a team has to be in accordance with the terms of reference that is prepared by the Unit which sets out the intricacies of the tasks that the Team has to perform. Ideally, the Team should include independent practitioners, qualified social activists, academics and technical experts and must necessarily include 1 female member. One team leader has to be appointed to act as a connecting link between the Unit and the Team. A bare perusal of these provisions brings to light 2 interesting features. First, the Rules repeatedly assert that the organization which wishes to acquire the land must not be involved in any way in the appointment of the Social Impact Assessment Team. In fact, every member is required to sign a written undertaking stating that they do not have any relationship with the body wishing to acquire the land and any conflict of interest shall result in immediate disqualification. Second, it is heartening to note that the Rules emphasize the importance of ensuring that only those who have a considerable amount of experience in the area of land acquisition are appointed to conduct the Social Impact Assessment. At a time when most quasi-judicial and administrative bodies are unable to fulfill their goals and perform their assignments due to excessive governmental interference and incompetent members, it is hoped that this framework will go a long way in increasing the public’s faith in the process of land acquisition.
Process of conducting Social Impact Assessment
The Rules impose an obligation on the Team to assiduously analyze the relevant quantitative and qualitative data, undertake frequent site visits and employ other strategies such as focused group discussions, detailed rural appraisals, informant interviews, etc to fully appreciate the nuances that would shape and influence the views of land owners whose land is sought to be acquired. Furthermore, the Team is obligated to scrutinize relevant land records and data, to conduct field verifications and to compare the proposed project with existing projects that are of a similar nature. All local authorities have been mandated to provide relevant information that would allow the Team to formulate a more informed view about the effect of acquisition within 10 days of receiving the request for such information. The investigation of the Team should focus on the following cardinal areas:
A. The areas that would be most adversely affected by the project, especially from an environmental and social standpoint;
B. The quantum of land that is sought for the project and whether it is more than what is necessary;
C. The feasibility of executing the project on other alternative sites;
D. In the case of scheduled areas, whether the acquiring body is able to prove that the land that they wish to acquire is a demonstrable last resort;
E. Whether any land has already been acquired and the utility of every plot of land that is sought to be acquired;
F. Whether any public unutilized or waste/barren land can be used for the project;
G. A detailed analysis of the type, structure and location of the land. In case of an agricultural land, the irrigation coverage and cropping pattern must be analyzed.
H. Whether the acquisition would be in accordance with food security laws or not; and
I. The ownership pattern, holding size and details of land owners, with special reference to change in ownership in the preceding three years.
In order to make the process more participative, the Rules impose an obligation on the Team to conduct a public hearing in all Gram Sabhas where members of such Gram Sabhas would be affected by the proposed acquisition. A public notification should be issued three weeks prior to the public hearing to inform all stakeholders about the meeting. All members should be given a copy of the draft Social Impact Assessment Report and Social Impact Assessment Plan before the hearing in order to allow them to contribute more meaningfully and substantively to the hearing. The proceedings of the hearing must be video recorded and the meeting must be conducted in the local language of the area in question. The entity intending to acquire the land must send its representatives to the hearing in order to assuage the unease of land owners about the acquisition and to address their legitimate concerns.
Social Impact Assessment Report
A Social Impact Assessment Report has to be prepared within six months of the commencement of the assessment process. The report should describe in detail the findings of the Team with regard to all the key areas of investigation mentioned earlier. More specifically, it must encompass details about the number of affected/displaced families, specific areas of concern raised by affected families and a socio-economic profile of the affected area. The report must indicate whether the advantages of the project would clearly outweigh its socially pernicious effects. It must examine the efficacy of the measures that would be undertaken for mitigating the rigours of acquisition from the perspective of affected families and grapple with ways of ensuring that affected families do not end up enduring more social and economic hardship than what they had to endure before the acquisition. The report must be in the local language so as to make it accessible to affected families and local authorities and must be clear and concise. It has to be submitted to an expert group which must scrupulously examine all its facets. The expert group has to give its report within a period of two months from the date of its constitution. The Appropriate Government has to assiduously analyze the report along with recommendations of the expert panel and formulate a strategy to minimize the ecological impact, harm to affected families and adverse consequences of the acquisition. The views of the appropriate government must be framed in the local language and must be widely disseminated among all stakeholders.
Social Impact Management Plan
The Team has to prepare a Social Impact Management Plan which should address, inter alia, the following 5 fundamental areas:
1. Strategies for avoiding, mitigating or compensating the adverse impact of the project;
2. Steps for rehabilitation and resettlement of affected families that the Act mandates;
3. A brief explanation of the measures that the body requiring the land intends to take for the benefit of affected families;
4. Additional claims made by the body requiring the land during the Social Impact Assessment Process; and
5. Details of key personnel responsible for overseeing every aspect of the mitigation measures along with timelines and expected costs.
In sum, the Social Impact Assessment Plan serves as a useful source of reference for developing the most efficacious strategies to reconcile the interests of land owners as well as the requiring body.
Provisions pertaining to consent
The second part of the Rules deals with the modalities for obtaining the consent of land owners whose land is sought to be acquired. At this juncture, it would be apposite to remember that the new law makes it mandatory to obtain the consent of at least 70% of land owners when the land is to be acquired for a project in the public-private partnership mode and 80% of land owners when the land is to be acquired for a private company. The Appropriate Government, via the District Collector, has been tasked with the responsibility of obtaining the consent of land owners. In order to make the consent process smoother, the Appropriate Government is required to maintain a record of all land owners, land rights and names of occupants at all times. The District Collector must notify the members of the Gram Sabha about the special Gram Sabha meeting for acquiring consent at least three weeks in advance. The quorum of the Gram Sabha must be at least 50% and one-third female members of the Gram Sabha must be present. The body requiring the land must also send its representatives who are competent to negotiate with members of the Gram Sabha and to address their concerns in the meeting. The proceedings of the meeting must be video recorded and made available in all local Panchayat offices and uploaded on the website of the Appropriate Government to make the entire process more transparent. If the members of the Gram Sabha are satisfied with the assurances given to them by the body requiring the land, then they must pass a majority resolution certifying their consent and containing the terms and conditions of rehabilitation, resettlement and other mitigation measures. Such a resolution must contain the signature of Gram Sabha members and representatives of requiring body and must be countersigned by the District Collector. Similarly, for acquiring the consent of the concerned land owners, a meeting of affected land owners must be held. The itinerary of such meetings shall closely mirror the itinerary of Gram Sabha meetings, but 3 features of the process of acquiring consent of land owners stand out. First, in addition to a copy of the draft Social Impact Assessment report and plan, they must explicitly be informed about their rights under all revenue laws, in particular the Forest Rights Act. Second, all land owners must be given a written declaration from the Collector stating that refusal to give consent shall not result in any adverse consequences. Land owners would be given contact details of officers whom they can contact in case they are coerced or intimidated to give consent. Finally, the consent of land owners has to be recorded in writing and details of the consent process have to be made available on the website of the Appropriate Government.
The emphasis of the Rules on e-governance, strict adherence to the prescribed timeline and making every aspect of the acquisition process accessible to the last man in the line are indeed commendable. If implemented correctly, these Rules could go a long way in righting the wrongs of the last 120 years and in bridging the wide chasm between the interests of land owners and private companies. It would not be unfair to assert that the Rules are in accordance with the central idea of minimum government, maximum government that undergirds most of the initiatives that the NDA Government has taken thus far. However, there is only so much that the Rules can do; it is essential to make substantive changes to the law to transform it from a charter of de-industrialization to a catalyst for ushering in transparency and efficiency in the process of land acquisition.