Dear Venkat,
While campaigning against the LARR Amendment Ordinance 2015 (2nd Ordinance in a row) we need to raise a fundamental question regarding the legal validity of the very act of President's promulgation of the first Ordinance on 31st Dec 2014 aiming at amending the LARR Act 2013. On a close scrutiny of the whole matter, it would transpire that the very Ordinance route is ultra vires the parent Act ab initio.
Minister's confusion – the starting point
Spelling out the prime compulsion under which the Ordinance had to be promulgated, Mr. Birender Singh Minister of Rural Development in his Statement of Objects and Reasons appended to the LARR Amendment Bill 2015, observed inter alia in Para 2 as follows- "As the Parliament was not in session and immediate action was required to be taken by the Central Government to make applicable the provisions relating to compensation, rehabilitation and resettlement of Fair Compensation in Land Acquisition Act to the thirteen Acts mentioned in the Fourth Schedule . . . an Ordinance, namely, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 (Ord. 9 of 2014) was promulgated on 31st December, 2014".
Thus, the prime concern of the Ordinance, as per the above statement, was how to apply 'the provisions relating to compensation, rehabilitation and resettlement of Fair Compensation in Land Acquisition Act to the thirteen Acts mentioned in the Fourth Schedule'. But, the moot question arises, did the parent Act i.e. LARR Act 2013 contain any enabling provision for promulgation of an Ordinance to address the above concern?
Mandate for Notification, not an Ordinance or a Bill
In fact, Section 105 of the LARR Act (Provisions of this Act not to apply in certain cases or to apply with certain modifications), quoted by the Minister himself in the Extracts appended to the Bill, read in its subsection (3), "The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be". Then subsection (4), which is also quoted in the above referred extracts, provided for laying of each such notification in both houses of Parliament for annulment or modification, if necessary, by the latter.
Notification –its differentia specifica vis-a-vis an Ordinance or a Bill
Thus, as per the Minister's statement itself the parent Act mandated the notification route for extension of the concerned provisions of this Act to the 13 Acts mentioned in the Fourth Schedule within one year of the commencement of the Act. Now the question arises, what is 'notification' in legal lexicon? The General Clauses Act 1997, which is so to say the lexicon of law in our country, provides for a detailed meaning and interpretation of the term 'notification' in its Section 20 (Constructions of Notifications, etc. issued under Enactments). On a perusal of this Section, it would be absolutely clear that any 'notification' like an order, scheme, rule, form, or bye-law' is a piece of subordination legislation, which is issued under or consequent upon the enactment of an Act or Regulation, and can't be equated to an Ordinance, which is a temporary Act, or to a Bill, which is intended to be made into an Act. Needless to say, the definition of 'Ordinance' as an instrument 'having same force and effect as an Act of Parliament' is given in Article 123 of Constitution, also referred to in the Preamble to the Ordinance dated 31st Dec 2014. The definition of a 'Bill' as an instrument intended to be made into Act by the Parliament, in other words, an Act in the making, is given in Article 107 of the Constitution. There is also a fundamental difference between a Notification and an Ordinance from the standpoint of their respective executants. The executants of the Notification is Central Government (which is also mentioned in Section 105-3 of LARR Act 2013) while that of a successful Ordinance is President-cum-Parliament. The executants of the Bill are both Houses of Parliament itself.
Central Govt and President- both violated the law
Thus, going by the mandate of Section 105(3) of LARR Act 2013, the Central Government i.e. the concerned Ministry of Govt of India, namely Ministry of Rural Development ought to have brought one or several notifications, within one year of commencement of the Act i.e. by 31st Dec 2014, providing for the application of provisions of LARR Act to 13 Acts mentioned in the Fourth Schedule. Instead, the President promulgated an Ordinance on 31st Dec 2014 to that effect. Thus the parent Act has been doubly violated, (1) failure of the Central Government in making the timely notifications as required under Section 105, and (2) President instead of prevailing upon the Central Government as required under Article 53(1) of Constitution for compliance to the above mandate of parent Act, has himself, by way of promulgating the Ordinance, committed an act ultra vires the Section 105 of the parent Act.
Way out from the present tangle -
- The President in order to make amends to his act ultra vires the Section 105(3) of LARR Act 2013 ought to immediately withdraw the present Ordinance promulgated w.e.f. 3rd April 2015, for which he is empowered under Article 123(2-b) of Constitution.
- The Central Government ought to desist from any effort to amend the LARR Act 2013 by way of getting the concerned Bill passed in Parliament, on the pretext of applying the provisions of LARR Act to the 13 Acts mentioned in Fourth Schedule.
- The Central Government in the Ministry of Rural Development, though already late, ought to make one or several notifications at the earliest in compliance to Section 105 of LARR Act, by exercising the power conferred on it by Section 113 of the Act (Power to remove difficulties).
As a matter of fact, we a few land rights activists had gathered in a brainstorming session on LARR Ordinance at Bhubaneswar in the afternoon of 27th April last, where we made a clause-wise reading of second LARR Ordinance dated 3rd April and discussed inter alia the above matter in detail. The present posting is an outcome of that collective exercise.
Chitta Behera, Cuttack,
2nd May 2015, Mobile 09437577546
On Friday, 1 May 2015 8:55 PM, "Venkatesh Nayak venkatesh@humanrightsinitiative.org [HumJanenge]" <HumJanenge@yahoogroups.co.in> wrote:
Dear all,
The Government of India (GoI) officially announced in the Lok Sabha yesterday (30 April, 2015) that it will table The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 (Land Bill) next week to replace the Ordinance that was promulgated for the second time on 03 April, 2015. Please see page 28 of the uncorrected verbatim report of the statement made by the Union Minister for Parliamentary Affairs available on the Lok Sabha website at: http://164.100.47.132/newdebate/16/4/30042015/12To1pm.pdf I am not attaching a copy of this document to this email because the Lok Sabha Rules prohibit publication of uncorrected verbatim report of the debates. However I hope I will not be breaking any law or rule by sharing this weblink publicly.
This Land Ordinance is already operational and the Bill seeks to replace the Ordinance which amends the Land Acquisition Act (LARR Act) passed by Parliament in 2013 in many crucial areas. Readers may look up the web for a wealth of information either supporting or criticising the amendment proposals. There are only three days left for the Lok Sabha to conclude its business next week starting 5th May.
No formal public consultation yet on the amendment proposals
As far as I can tell, neither the Department of Land Resources which has the responsibility for all matters relating to land acquisition law under the Allocation of Business Rules, 1961 nor any other department of GoI has sought people's views on the proposals to amend LARR Act. This is a violation of GoI's own Pre-Legislative Consultation Policy (PLCP) adopted in January 2014 (to read the policy click: http://lawmin.nic.in/ld/plcp.pdf).
The PLCP makes it mandatory for every department to:
"2... publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned.
3. Where such legislation affect specific group of people, it may be documented and disclosed through print or electronic media or in such other manner, as may be considered necessary to give wider publicity to reach the affected people....
6. The summary of feedback/comments received from the public/other stakeholders should also be placed on the website of the Department/Ministry concerned....
10. The summary of pre-legislative process should also be placed before the Department Related Parliamentary Standing Committee by the Department/Ministry concerned when the proposed legislation is brought to the Parliament and is referred to the Standing Committee.
11. If the Department/Ministry concerned is of the view that it is not feasible or desirable to hold pre-legislative consultation as detailed above, it may record the reasons in the note for the Cabinet." [emphasis supplied]
So the requirement under PCLP is to place all details of the likely impact of the amendment proposals and seek people's views. To the best of my knowledge no formal effort has been made in this regard. Further there is no call for discussing the amendment proposals on the much touted public consultation platform- https://mygov.in. Instead one interesting topic mooted for discussion on this platform amongst several is- "Share your views for promotion of fabrics for fashion industry". If readers know of any formal effort to seek people's comments on the Land Bill, please enlighten me.
Apart from not complying with the requirements of PLCP, the Department of Land Resources has also refused to disclose the Cabinet Note relating to the Land Ordinance despite many of us asking for it under the RTI Act.
What can citizens do to demand formal public consultation on the Land Bill?
While there are many critics of the proposed changes to the land acquisition law, there are several others who support it. Parliament must have the benefit of all views and opinions on the subject before it makes an informed decision on the amendment proposals - whether to approve, further amend or reject.
Parliament has also created a mechanism for seeking people's views on fresh Bills or proposals to amend existing laws- namely, referral to the Department-related Standing Committee. In this case the appropriate mechanism is the Department-related Parliamentary Standing Committee on Rural Development chaired by Shri Hukum Dev Narayan, MP (BJP). This committee has 21 members from the Lok Sabha and 10 members from the Rajya Sabha belonging to all major political parties. For more information about this committee please visit: http://164.100.47.134/committee/commitee_main.aspx
As citizen taxpayers who are likely to be affected directly or indirectly by the proposals to amend the land acquisition law, everybody in India has the right to demand that the Land Bill be referred to the Standing Committee on Rural Development. The Speaker of the Lok Sabha has the power to refer the amendment Bill to this Committee if there is enough demand from the MPs and concurrence from the GoI.
Here are several things you can do:
1) Tweet the message below from your Twitter account NOW:
"Land Bill must be sent to the Rural Development Parliamentary Committee" (70 characters)
2) Email the message below to the Lok Sabha Speaker's Office at this address: speakerloksabha@sansad.nic.in and cc to s_mahajan@nic.in NOW
"Madam Speaker,
WE, THE PEOPLE OF INDIA, have not been consulted on the land acquisition amendment Bill. So, we urge you to send this Bill to the Department-related Parliamentary Standing Committee on Rural Development for deeper discussion and wider public consultation.
(Your name)"
Please feel free to translate this message into your language before emailing it.
3) Fax this message to the Lok Sabha Speaker's Office at: 011-23792927, NOW
"Madam Speaker,
WE, THE PEOPLE OF INDIA, have not been consulted on the land acquisition amendment Bill. So, we urge you to send this Bill to the Department-related Parliamentary Standing Committee on Rural Development for deeper discussion and wider public consultation.
(Your name and signature)"
Please feel free to translate this message into your language before faxing it.
4) SMS this message to your Lok Sabha MP, NOW:
"Please urge the Lok Sabha Speaker to send the Land Acquisition Bill to the Parliamentary Standing on Rural Development for wider consultation." (141 characters)
Please feel free to translate this message into your language before smsing it.
5) Those of you who are registered on the Prime Minister's website (pmindia.gov.in) please send the following message, NOW:
"WE, THE PEOPLE OF INDIA, urge you to recommend to the Lok Sabha Speaker to send the Land Acquisition Bill to the Parliamentary Standing Committee on Rural Development for widespread public consultation."
Please circulate this email widely. You have three days to get maximum impact.
Thanks
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
#55 A, 3rd Floor, Siddharth Chambers-1
Kalu Sarai
New Delhi- 110 016
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+91-11-43180201/ 43180215
Fax: +91-11-26864688
Skype: venkatesh.nayak@skype.com
Website: www.humanrightsinitiative.org
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""Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing": Justice P N Bhagwati, former Chief Justice, Supreme Court of India, (1981)
"Information is the currency that every citizen requires to participate in the life and governance of society": Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)
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Posted by: Chitta Behera <chittabehera1@yahoo.co.in>
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