The game of ends and means

Special Economic zones have stirred the nation, not by the ends they intend to seek but
by the means they have adopted. Employment generation, export oriented manufacturing-
let alone the ends, the means so far have not been benign. Land is of primary importance
to Special Economic Zones and has been the most contentious issues so far.
Any land acquisition in India is dealt by the Land Acquisition Act (1894). Ironically, the
acquisitions for SEZ is also governed by the same. The principle of eminent domain,
which underlies this Act, empowers the state to acquire property for a “public use” after
offering a just compensation.
The irony becomes evident when “public purpose” is highlighted. “Public purpose” vis-à-
vis eminent domain has never been satisfactorily defined, not even in the constitution of
India. After Independence, as the government stepped into commercial activities, the
scope for land acquisition also increased. With an unquestionable authority enshrined in
the Act, government expanded the purview of “public purpose” to include almost
anything – economic as well as non-economic activities. With the amendments in the
government can acquire for the companies and is not even bound to pay the market value.
The worst of all – in India “public purpose” cannot be challenged, but only the
incongruency between the stated purpose and actual use of land.
The recent acquisitions of land have been made under the same, almost unconstrained
powers of the state. The intentions of creating special economic zones with its entire
scheme, can in no way justify “public purpose” the acquired land , after being transferred
to a private developer shall be used for two primary purposes, one for manufacturing and
processing and rest for real estate activities like housing, hospitality, entertainment etc.
The SEZ Act clearly states the above and profit motive is what it resonates. How is then,
“public purpose” justified? The situation has been worsened by the reduction in the
duration between the declaration of intent and actual acquisition. Specificity of land for a
particular use is another aspect of the power of eminent domain that needs justification,
has been discussed in following chapters. Evidently , so far, the entire acquisition has
taken place on agricultural land. The poor farmers have no choice but to surrender to the
whims of the state.
Land acquisition for SEZ’s has been oppressive in many other aspects. Although the
power of eminent domain says that no compensation is just if the owner is unwilling to
sell, but for a government that is bent on acquisition, its whims know no logic. Te power
of eminent domain then asks for just compensation, but it has not yet been put to practice.
Government in this case, acts as the sole authority to decide how ‘fair’ the ‘fair
compensation’ would be but alongside it is not compelled to pay the market value. The
developers, too, have taken a circuitous route to grab land by asking the governments at
the center and states to do so for them, well then it is not difficult to read between the
lines. If the land is not freely available for sale, then it is very unlikely that the owner
shall get a fair value of the land after acquisition. An appropriate valuation of land
includes the loss of livelihood, loss of goodwill etc besides the market value of the land.
Had the government been considerate enough, incidents like those that happened in
Nandigram and Singur would not have happened.
The undervaluation of land was designed to be surreptitiously beneficial to the
government. By providing cheap land to the developers, there would b a drastic reduction
in the cost of infrastructure that would be developed. This would have been in perfect
sync with the ideology of establishing the SEZ but the euphoria vanishes as soon as one
realizes that undervaluation of land tantamount to “bloated’ net profits, hiding the real
profits of the project. Let’s flip the coin to bring government in the focus. Since, the
government was acquiring land for developers it had only two alternatives – to pay the
just compensation or not to pay it. The type of land which was acquired demanded huge
compensation, which the government could afford through fiscal measures. For the
precise reason that fiscal strictness would bring more political infamy than forcible
acquisition, the best alternative was to under value the land and do away with the deals.
The power of eminent domain, although legal, is not welcome whenever exercised, but
has to be justified on the grounds of public purpose and net gain. However, the recent
land acquisitions steered themselves clear of the nominal constraint.

Well, after a fusillade of criticism one would be compelled to think that if land
acquisition under the power of eminent domain was all that bad who let it happen, how
was it not opposed at the very beginning, was the obvious so oblivious? Our’s is the
largest democracy and there have been appreciable efforts to bring democracy at the
grass root level with the empowerment of the local self governments and the panchayats.
Any issue within the purview of these bodies needs them to be consulted. This, however,
has not been the procedure for the land acquisition process. The SEZ Act was passed
without any public debate, without any word from the local bodies. This, surely, is not
the way democracy works, especially when the decisions are socially sensitive, large
scale and “perverse”. The government is not to be blamed for all this; it had the legal
power to do so (or not to do so – public debate). The power of eminent domain in the
Land Acquisition Act (1894) has an overriding effect on the 73rd and 74th amendment,
removing almost all legal barriers for the acquisition to take place. The SEZ Act, with all
its paraphernalia, could barely manage to talk about the acquisitive rights and purposes of
developers without any mention of the rights of owners. Moreover, in a densely
populated country like India where labor is surplus and land is limited, any land
acquisition will evict large number of people supported by that land. In such a scenario a
well formulated Rehabilitation and Resettlement policy is imminent. With large scale
acquisition on the agenda, R & R policy should have been an integral part of the Act, but
to our disappointment it has not been formulated even after a year and a half of passing of
the Act.
Clearly, the Act has brought out the conflict between the interests of the corporate and the
masses. And, it is difficult to reconcile the interests of both the groups. But in a
democracy, the role of the government is to strike a balance by supporting the interests of
the weak. Therefore, who should the government defend? Even if the power of eminent
domain is supreme to individual rights, does it mean that it has to prevail over the
individual rights, especially when the powers of the state are oppressive and
undemocratic? The government certainly needs to get its means rectified, the means are
as important as the end.