Table Of ContentLegislating for Justice
Legislating for Justice
The Making of the 2013 Land Acquisition Law
Jairam Ramesh
Muhammad Ali Khan
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Preface
This book is about why and how a truly landmark law that enshrined
a new and radically different approach to acquiring land and com-
pensating those affected came into being. In September 2013,
Parliament gave its thumping approval, after almost 15 hours of
debate in both Houses in which over 60 members took part, to the
repeal of the colonial-era Land Acquisition Act, 1894 and bring in
its place the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013. The very
name of the new law signified the momentous change. The repeal
followed two years of public debate and extensive consultations with
all stakeholders after the introduction of the Bill in the Lok Sabha on
7 September 2011.
T here was high drama in the run-up to the passage of the law. Two
all-party meetings were held to get all political parties on board and
address their concerns. Meetings were held with each of these eleven
parties individually as well. The Bill came up in the Lok Sabha on 29
August 2013. Those were the times when Parliament used to meet
only to get disrupted. But after some hectic negotiations the Bill
was taken up and passed that very night. Six days later it was taken
up in the Rajya Sabha again after much uncertainty and last-minute
negotiations. The Bill passed but with some amendments suggested
by the then principal opposition party. This meant that it had to go
back to the Lok Sabha and there was just a day left for the session
to get over. Fortunately, the amended Bill passed without any hitch
on 5 September 2013. The passage of this law must surely rank
as one of the highpoints and major achievements of the Fifteenth
Lok Sabha and the 229th Session of the Rajya Sabha. Excerpts from
the debates have been included in the book to give the reader a
flavour of the thinking across the political spectrum on the new land
acquisition law.
viii PREFACE
T he new law evoked different reactions. Civil society groups and
social activists felt that it was not progressive enough and retained
powers of the government to expropriate land in the name of ‘pub-
lic purpose’. Industry felt that it would make land acquisition for
manufacturing, infrastructure, and housing projects expensive and
time-consuming. The law was both hailed and criticized but within
Parliament there was an overwhelming consensus that it was a huge
step forward to ensure justice to land owners and others who are
impacted when their lands are being acquired. There was widespread
agreement that the new legislation would end the era of protests,
agitations, and conflicts that had become ubiquitous because of both
the nature of the 1894 law and the manner of its implementation.
The book explains the important provisions of the new law in
some detail. It provides the rationale for not only the broad approach
adopted but also for the specific formulations incorporated. As the
manuscript was in the press, the Government of India issued an
Ordinance on 29 December 2014 amending the law in substantial
measure. To make the book up-to-date, a chapter has been included
analysing these amendments and how they impact on the ‘basic
structure’ of the 2013 law.
Acknowledgements
This book would not have been possible without the support and
encouragement of a very large number of people.
Mr Prabhu Dayal Meena and Mr Charanjeet Mann, both offi-
cers of the Ministry of Rural Development were instrumental in the
drafting of the law along with Mr K. Raju, then a Joint Secretary in
the Government of India.
Mr Salman Khurshid, as the then Minister for Law and Justice,
along with Mr V.K. Bhasin, then Secretary of the same Ministry both
of whom took a passionate interest in the drafting and helped us out
with making the law achieve its final form. Mr Mihir Shah, whose
invaluable inputs helped us refine our understanding of acquisition
in India.
Our colleagues who encouraged and proofread the drafts with a
keen eye—Neelakshi Mann and Jeh Tirodhkar both of whom were
there at every step with a kind word and a helping hand.
A word of gratitude also to our young team of advocates and law
students who helped in our research on the background—Dhruv
Banerji, Divya, and Sparsh.
Thank you all.
CHAPTER ONE
Overview
Statutes on Land Acquisition are an expression of how a nation views the
exercise of the sovereign right of eminent domain. This chapter introduces
the concept and its evolution in an attempt to explain how it is understood
and expressed under the new law.
UNDERSTANDING ‘EMINENT DOMAIN’
Before embarking upon any legislative revisit, especially one of grand
ambition, it is a good idea to acquaint oneself with the first principles
upon which the law is to be predicated. Acquisition of property is
founded upon the universally recognized principle of ‘Eminent
Domain’.
All countries enjoy, as a fundamental aspect of their sovereignty,
a power over their land resources referred to as Eminent Domain.
Eminent domain is the power of the Government, or other body
through which the Executive will is expressed, to take over resources
for the greater national good. At its most basic Eminent Domain
refers to the inherent authority of the Government to acquire private
property on the payment of fair compensation for a use that benefits
the public at large.
Countries, such as Australia or Hong Kong, also refer to this as
‘resumption’—a term founded on the idea that all land belongs to
the Government in perpetuity and it is only ‘resuming’ such owner-
ship when taking over land for a public purpose. The concept enjoys
recognition under international law with the caveat that the entities,
Legislating for Justice. Jairam Ramesh.
© Oxford University Press 2015. Published 2015 by Oxford University Press.
2 LEGISLATING FOR JUSTICE
including citizens of other nations, whose land or property is being
acquired, must be justly compensated.1
Different nations exercise this power in different ways depending
upon how property rights are defined in that nation. In the course of
our work on a new law, we found that countries with more evolved
legal regimes with a greater emphasis on civil rights provide the
greater safeguards.
Most countries see mention of the concept in their Constitutions
itself 2 while others have statutes on the subject defining and
explaining the use of this power. An illustration can be found in the
Constitution of the United States of America where the power of
eminent domain is circumscribed by the requirement of due pro-
cess. The Fifth Amendment to their Constitution states No person
shall… be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
compensation. This is read with the Fourteenth Amendment which
states …No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws. 3
In the United Kingdom, which does not have a written
Constitution, compensation for ‘compulsory purchase’ is calculated
1 See pages 191–192, Malcolm N. Shaw on International Law (Sixth
Edition, 2008) Cambridge University Press , particularly the observations in
Williams & Humbert Ltd vs W & H Trade Marks (Jersey) Ltd [1986] 1 All ER
129; 75 ILR, p. 312, where the British House of Lords held that ‘an English
court would recognise a foreign law effecting compulsory acquisition
and any change of title to property which came under the control of the
foreign state as a result and would accept and enforce the consequences
of that compulsory acquisition without considering its merits’. This is an
acknowledgment of eminent domain as an element of a nation’s sovereignty.
2 Chile and the United States of America. Article 31 (now repealed) and
Article 31A of the Constitution of India. Section 51(xxxi) of the Australian
Constitution.
3 For the background to this interpretation see the decision of the
United States Supreme Court in C hicago, Burlington & Quincy Railroad Co.
vs Chicago [166 U.S. 226 (1897)].
