Nitin Desai: Land for infrastructure

The recent confrontation between the Narmada Bachao Andolan and the government has demonstrated quite clearly that our system of decision making and land acquisition for major projects needs a thorough overhaul. Organised and persistent protests from many community and NGO groups, whenever a major project is taken up, and the frequent resort to judicial intervention in executive decision making are now virtually the rule. Clearly, something needs to be done to raise the level of public confidence in the decision-making process.

But first a word to those who see this largely as a law and order problem that stands in the way of rapid development. Many of them are also great believers in letting markets function. But the fact is that the system of land acquisition that we use is a major departure from market principles. The "oustees", as they are called, are not being asked to sell their land on mutually negotiated terms. Their lands are being acquired by state power without their explicit consent. Their compensation is fixed on an ex cathedra basis and not as a market transaction. They are seldom, if ever, given any equity stake, any share in the profit, which will accrue to the project for which their property is being acquired by compulsion. The record of resettlement and rehabilitation by official agencies is abysmally poor, partly because the responsibility for it often falls on jurisdictions different from the ones where the benefits will arise. Frankly, were it not for the NGOs and leaders like Medha Patkar, the situation would be even worse.

We cannot carry on like this. We are planning to implement a large number of massive infrastructure projects, all of which will displace people. The summary acquisition procedures that we have will be challenged in law courts and in agitations. Continuing to use these colonial procedures will not expedite but will delay implementation. The inequities built into the present system will not be tolerated. New procedures which reflect the reality of a vigorously democratic society will have to be put in place.

Our present procedures are essentially technocratic and based on a variety of guidelines on how projects should be formulated and appraised. The authority to take a decision rests essentially with the governmental machinery, even if the ultimate beneficiaries are private parties. The justification for the use of state power for land acquisition is the promotion of the public good, even if the principal benefit of the project is private profit.

The exercise of state power must be strictly restricted to the promotion of a truly public good like an open access highway or a flood control measure, for instance. Sophistries that dress private gain as public good must be resisted. Private gain is good but it must be realised in a framework of market exchange rather than compulsory acquisition.

Greater clarity in defining what is a public purpose will help, but will not be enough. The central change required is a decision-making process that engages all stakeholder groups in the entire process from assessment to implementation. Negotiated solutions rather than the exercise of state power must become the basis for decisions which will be in the nature of a contract between all stakeholders specifying rights and obligations.

Who are the relevant stakeholders? They will clearly include all whose livelihood or land is directly affected by the project. But when broader environmental and social effects are taken into account, this set will include many who are not necessarily residents of the project area itself.

Not all stakeholders can claim an equal right to involvement in the decision-making process. We need legislation to identify relevant stakeholders for different categories of projects broadly in terms of the following groups: those whose prior and informed consent is necessary; those whose views must be heard in public before a decision is taken; those who have a right to full information on the data and analysis which is the basis for decision.

The people whose land is needed for the project or whose livelihood is disrupted have to have a special place in decision making. Ideally, any acquisition or displacement should be negotiated with them so that they can question the demand made on them and get what they deem to be fair compensation. But what if a small minority holds out and refuses to sell? This is where one could have a rule which says, for instance, that if 80 per cent of the people in the area to be acquired agree to the terms the rest have to accept. But more than this, we must create a mechanism by which these people are given a stake in the potential returns from the project. One further thought""there may well be a case for separating the responsibility for resettlement and assigning it to an independent entity which can engage the community organisations of the persons displaced.

Who speaks for the project-affected people? Does an agreement have to be negotiated separately with each affected household? Can one specify the community organisations who can negotiate on their behalf? What is the role of activist NGOs? These appear to be difficult questions but are not very different from the type of questions that have been raised and answered in the case of collective bargaining between trade unions and employers, which may well provide a starting point for developing the new legislation referred to earlier.

The treatment of project-affected persons is a major reason for the loss of confidence in the decision-making process. But there are other concerns, mainly environmental and ecological, which concern many citizens outside the project area. They may involve matters like loss of bio-diversity, seismic risks, health hazards, estuarine impact, and so on. They have usually been articulated by activist NGOs and academics who may not have any formal contractual rights but whose expression of public interest has been recognised as relevant by many courts. The challenge here is to specify an efficient procedure for public hearing and clear rules on the right to information.

If Dr Manmohan Singh and his ministers do not want to be placed on the horns of a dilemma time and again as we implement an ambitious infrastructure plan, a radical revision of our decision-making procedures is unavoidable.