Chitrangada Choudhury & Aniket Aga - Why the secrecy about government deliberations on the Land Ordinance?

“The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing": Justice K K Mathew, former Judge, Supreme Court of India, (1975)

"“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)

On 31 December 2014, the government issued an ordinance, amending the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (LARR). The ordinance brought in several changes, of which the following was the most far-reaching: an amendment to Section 10(A) that exempted land acquisition for sectors such as defence, infrastructure—including public-private partnership projects—industrial corridors, private health and educational institutions and affordable housing, from the requirement of conducting public hearings, assessing social impact, and securing the consent of citizens who lived and worked on the lands. In effect, the ordinance significantly expanded the powers of the state and the project proponent, and erased the participation of citizens in decisions that could profoundly alter their lives and means of livelihood.

This aspect of the ordinance evoked the greatest political and public criticism. There was apprehension over why the ordinance was reviving, in some measure, the ‘eminent domain’ thrust—the right of a government or its agent to expropriate private property citing public good, with compensation—of the 1894 Land Acquisition Act, which had caused the damaging and forced displacement of thousands of rural citizens.  The LARR was enacted with unanimous political support in Parliament in 2013, and had not even been operational for a year, so why were major changes sought so soon? Above all, what demonstrated the need to amend this act with such urgency?

This last question is shrouded in mystery, and going by the Lok Sabha debate on 8 March 2015 on the LARR amendment bill, even our honourable Members of Parliament don’t know. For example, the Nationalist Congress Party’s Supriya Sule asked, “What is the need for this ordinance? Who is asking for this change?” The Telangana Rashtra Samithi’s Vinod Kumar Boinapalli echoed Sule’s question: “For what reason is this bill being introduced?” While, the Indian National Congress’ Gaurav Gogoi reiterated, “Had farmers come to the government’s doorstep saying, please remove Social Impact Assessment, please remove consent?” Several members of Parliament said that the government was presenting no specific evidence for its assertion that the LARR Act in its current form was holding up development.

On 17 January 2015, we filed a Right to Information (RTI) request with the Department of Land Resources in the Ministry of Rural Development, the nodal ministry for the LARR act, asking for photocopies of documents, file notings and all correspondence between the MoRD and other government and non-government authorities relating to:

a) any proposed amendments to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

b) the ordinance of 31 December 2014, bringing changes to this act.

The ninety-days-and-counting journey of the RTI request is a stark reminder of the ambiguity within which this ordinance was born. As an aside, it compels citizens to take a hard look at what the RTI has achieved in the official culture of secrecy and fiat, ten years into its existence.

There was no reply to our RTI request within the mandated thirty-day period. Subsequently, in multiple phone conversations, the Public Information Officer (PIO), Amit Sahu, sought more time on two grounds. One, he was unfamiliar with the RTI and LARR acts. Two, even though Section 5 of the RTI Act vests the authority to provide information with the PIO,  he claimed that  he could not release information without first showing it to his senior, Sarita Kumari, the Deputy Advisor (Land Reforms), who is, incidentally, also the Appellate Authority (AA) under the RTI.

On 16 March, we received a batch of documents. None of them corresponded to the RTI request. For example, the PIO sent us copies of letters written in 2013 by Jairam Ramesh, the then minister for rural development, to his colleagues about bringing rehabilitation and compensation provisions of acts under which their ministries acquired land in line with LARR norms. The PIO supplied no reason for withholding relevant information. Effectively, his delayed response shed no light on the process of how the ordinance came about.

When we called both the PIO and the AA, on 16 March, they told us that cabinet notes could not be disclosed. They repeated this assertion during an in-person meeting in the ministry on 8 April, with the first columnist who had filed the RTI request. This, a fortnight after had we sent them two among several prior Central Information Commission (CIC) orders, which have ruled on how cabinet notes and related material should be in the public domain when decisions on them are taken—in this case, the cabinet note had resulted in the decision to issue the ordinance of 31 December 2014—and elaborated on suo moto disclosure measures for such documents.

Equally disturbing was their refusal to provide us with material related to the specific process of drafting and issuing the ordinance. Instead, in the meeting that we had on 8 April, the AA repeatedly asked, “What exactly do you want?” In a bizarre twist to the RTI, citizens are expected to know the contents of a file even before they access it. She added, “The cabinet meeting was held and the ordinance issued on December 31. In seven-eight days, what documents do you expect to be there?”

Leaving aside what citizens might have “expected to be there,” the Cabinet Secretariat, through its handbook on drafting cabinet notes, requires a record of consultations with all concerned ministries and departments, a record of comments received and actions taken in response, and efforts to promote public awareness and participation.

A proposal to amend laws contains multiple drafts with comments from the joint secretary, additional secretary, secretary, and the minister before it is circulated to the cabinet. Moreover, the Pre-Legislative Consultation Policy of 2014, formulated by the Committee of all Secretaries to the Government of India, requires all departments to place drafts of legislative proposals before the public, especially for those citizens who might be affected by the change in policy, explain key provisions in simple language, and place a summary of the feedback to the concerned decision in the public domain.

To our argument on 8 April, that the state should follow maximum transparency on how it legislates on land acquisition, because policies impact scores of rural citizens in far-reaching ways, the PIO countered, “We’ve put the act on the website.”

The only records the officers eventually disclosed to us that day were two files containing representations from numerous quarters on the act over the past ten months. These included a report on the State Revenue Ministers conference of June 2014 and letters from the Madhya Pradesh and Gujarat state governments; farmer and adivasi groups, including the Bharatiya Kisan Union, the Sangh Parivar’s Bharatiya Kisan Sangh and the Vanvasi Kalyan Ashram; rural citizens whose lands were being acquired; industry groups like ASSOCHAM (The Associated Chambers of Commerce and Industry of India); and the public sector undertaking OIL India.

A reading of the disclosed representations revealed that these vastly differed on whether the Act should be amended and how.  Some state governments—especially those ruled by the Bharatiya Janata Party—wanted more powers to forcibly acquire land, while rural citizens and farmers groups wanted the scope of forced acquisitions to not be expanded.

For instance, Ram Pal Singh, the revenue minister of Madhya Pradesh, had stated that “the condition of seeking prior consent of the landowners for PPP project be dispensed with altogether, or be relaxed, so that development work may be expedited.” Prem Prakash Pandey, the Chhattisgarh revenue minister said, “Land acquisition for government purposes should be kept free from SIAs,” 

While Adoor Prakash, the Kerala revenue minister said, “SIA studies can be made applicable in large projects and projects exceeding the threshold to be fixed by the Government.”

On the other hand, farmers groups urged the government against such changes. The Bharatiya Kisan Sangh, in a letter to Nitin Gadkari, Union transport minister, dated 30 July 2014, argued that the provisions for consent should not be diluted, adding, “Consent has many advantages: it will reduce litigation, it will reduce law and order problems, so it will expedite the process of execution of the project.”

Some of the representations disclosed to us, contained comments on the lack of transparency surrounding the government’s reported move to amend the act. For example, a representation from a non-governmental organisation called Delhi Grameen Samaj, to Chaudhary Birender  Singh, the rural development minister, on 26 November 2014, said, “It is quite strange that the major stake holder i.e. the poor farmers and various farmer organisations are not being consulted/involved in the deliberations on the proposed amendments...this is against the tenets of natural justice...it will only be just to make the suggested amendments public and invite any suggestions/objections from all the stakeholders.”

How the government reconciled the contending views before it to fashion the specific amendments laid out in the 31 December ordinance is a process of paramount public interest. It remains cloaked in secrecy. From the documents made available to us, it seems there have been serious lapses in the way the ordinance was created and pushed by the government. It leads us to wonder whether the nodal ministry drafted the ordinance at all and if it followed due processes by seeking comments from other concerned ministries and departments on the proposed amendments. If yes, why is the paper trail a state secret? If no, how was the ordinance drafted and issued? This case also indicates one of the frailties of the RTI Act—if governments choose to junk due process, the law in the best of circumstances, can only reveal what wasn’t done, not what actually happened.

Recently, the Ministry of Rural Development in a response to an RTI request filed by Venkatesh Nayak, from the Commonwealth Human Rights Initiative, told him that it has no information regarding the urgency cited by the government before the President for the promulgation of the land ordinance. Perhaps, the exigency it claimed did not exist at all. It appears however, that the entire exercise of amending the LARR Act is marked by a breakdown of due process, transparency and accountability.

On 15 April 2015, we received letters from the Public Information Officer and the Appellate Authority stating that “part information related to file notings and correspondence relating to the LARR (Amendment) ordinance are [sic] exempted from disclosure under Section 8.1.” Section 8(1) lists various grounds under which information is exempted from disclosure to citizens.

This is a deeply flawed deployment of Section 8(1). Firstly, transparency about the process that leads up to the amendment of a major legislation is in the public interest, and hence mandates disclosure under the Act, as specified in Section 8(2). Furthermore, neither officer told us which of the ten exemption clauses listed in Section 8(1) applies to the information we had sought. They did not state what kind of information was being withheld: a cabinet note, a legal opinion, a record of inter-ministerial consultation or something else? They also made no mention of the CIC rulings which run contrary to their decision. Finally, they provided no reasoning for the secrecy.

We are preparing to move the CIC, asking for a release of the ordinance-related material. Going by the over 30,000 citizen appeals already waiting at CIC’s doors, we would be heard in late 2016 or early 2017. Since the government has said the act needs to be urgently amended, we are planning to request the commission for an early hearing.

http://www.caravanmagazine.in/vantage/government-deliberations-land-ordinance-secret