Cloud over Land Acquisition Act

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘the 2013 Act’) was passed by Parliament by repealing the archaic Land Acquisition Act, 1894. The 1894 Act was a remnant of the British Raj where the landowner had abysmal rights against the mighty power of the eminent domain of the State. The 2013 Act attempted to hedge the power of eminent domain by providing a mechanism for social impact assessment before acquisition, and mandated consent of 70 per cent of the landowners for PPP projects and 80 per cent for the private entities. These measures were intended to safeguard landowners from excessive and easy invocation of provisions of the land acquisition law by the State on the pretext of ‘public purpose’.

In 2014, the Central government introduced amendments to the 2013 Act diluting the stringent provisions of social impact assessment and consent clauses in the 2013 Act by the promulgation of the Land Acquisition Ordinance under Article 123 on the last day of December 2014. The provisions of the ordinance were sought to be kept alive by repeated promulgation on April 3 and May 30 of 2015.

The repeated promulgation of Ordinances by the Central government is in the face of a catena of judgments of the Supreme Court. In Krishna Kumar Singh vs State of Bihar (2017), a Constitution Bench of 7 judges held that repeated re-promulgation of Ordinances was a fraud on the Constitution. This was the first saga of the ex-facie unconstitutional amendments to the 2013 Act.

The Central Ordinance eventually lapsed on August 31, 2015. The stage then shifted to the states. Several states ruled by or allied with the current political dispensation at the Centre then sought to implement the content of the Ordinance by routing it through their respective state legislatures. In particular, the states of Gujarat, Tamil Nadu, Maharashtra and Telangana incorporated the provisions of the Central Ordinance by State Amendments to the 2013 Act. A case in point is Gujarat which has verbatim incorporated all the provisions of the Central Ordinance.

The merits of the state amendments are a matter of political and social debate, but the manner in which the states have carried out amendments raises serious issues about the constitutionality of such measures. Under Article 254 of the Constitution, if any provision of a state law is inconsistent with the Central law in respect of any matters falling in the Concurrent List, then the state law is void to the extent of the repugnancy. However, the state law would prevail if the assent is obtained from the President under Article 254(2).  

The amendments have been passed by the state legislatures relying upon Entry 42 of the Concurrent List. Once the Parliament had enacted a right under the 2013 Act, the states could amend such law and make it applicable in the state only if the state law was reserved for the consideration of the President and assent accorded under Article 254(2).  

It is beyond any pale of controversy that the state amendments and the Gujarat Act, in particular, contains provisions antithetical to the 2013 Act. The Gujarat Act received a general assent by the President on August 8, 2016. However, there is nothing in the public domain or in the state amendment which indicates that the strict requirements of Article 254(2) have been complied with.

A Constitution Bench of Supreme Court (5 Judges) in Kaiser-I-Hind vs National Textile Corporation in 2002 categorically laid down three principles for a valid assent Article 254(2) namely; (i) That the State has to bring to the attention of the President, the repugnancy of the provisions of the earlier law made by the Parliament and the state law; (ii) The reasons for giving primacy to the state law over the central law outlining the social, economic and other consideration warranting the overriding of the central law by the state law; and (iii) The state law has to be reserved for consideration of the President on the above aspects, and the assent has to be accorded to the matters pointed hereinabove.

The states appear to have followed the aforesaid principles in breach. A plain reading of the state amendments does not indicate that the attention of the President was invited to the repugnancy between the Central and the state laws. The reasons for primacy to be accorded for the state law are also conspicuous by their absence. Further, there is nothing in public domain that the matter was reserved for consideration by the President on the aspect of repugnancy.  In the absence of a specific assent by the President on the repugnancy as mandated by the Supreme Court under Article 254(2), the general assent purported to be given by the President to the State Amendments appear to be unconstitutional and against the law laid down by the Apex Court.

The author is Additional Advocate General, Karnataka, and a practicing advocate in the Supreme Court. Views are personal.