Displacement and the Law

Author(s): Usha Ramanathan

Source: Economic and Political Weekly, Vol. 31, No. 24 (Jun. 15, 1996), pp. 1486-1491
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4404270
Accessed: 18-03-2016 09:53 UTC

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/
info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content
in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.
For more information about JSTOR, please contact support@jstor.org.

Economic and Political Weekly is collaborating with JSTOR to digitize, preserve and extend access to Economic and Political
Weekly.

http://www.jstor.org

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions

Displacement and the Law

Usha Ramanathan

The paradigm of development that has found favour with planners makes displacement of large numbers of people,

even whole communities, an unavoidable event. The utilitarian principle of maximum happiness for the maximum

numbers has been inv oked to lend respectability to making the lives of communities into a cost in the public interest.

The law is ill-equipped to counter this attitude and in fact abets it by lending the force of state power.

THIS is an essay on displacement as

the finality which is an integral part of the

the law only increased the inclusive

witnessed in the law. In it is a recognition

character of justicing, and the development

categories. The state is, however, only to

that displaceieniit, and the related concerns

of a relationship between law and justice.

acquire the land: the act therefore provides

of rehabilitation and resettlement, are not

There is an inevitability about the

for payment of compensation. And, again,

familiar to vast areas of the law which affect

regression into poverty that is seen in the

in the interests of justice and fair play, the

the rights and lives of the displaced person.

law - not only the law directly effecting

Act lays down a procedure by which the land

displacement, but also laws of labour, of

is to be acquired: an endorsement of the

the doctrine of eminent domain gives to the

crime and of illegal living.2 A representation

principle of processual justice.

state an enormity of control over land and

of this impoverishment demonstrates the

related resources, and so over the lives of

dramatic effects that displacement has on the

acquisition of rights over land from

the people; acquisition provides the process;

lives of those uprooted, and calls into question

individuals who have legally recognised,

and compensation is the limited replacement

the morality, constitutionality, and justice

and compensable, rights. These conservative

of the rights of the displaced person. The

that seems to evade the law.

notions of individual ownership and state

'Public purpose' emerges as thejustification;

essay will attempt an understanding of these

concepts as they exist within the law.

The act is essentially concerned with the

The paradigm of development that has

acquisition have been stretched unrealisti-

found favour with planners makes

cally to envelop the displacement of whole

displacement of large numbers of people,

communities. (The inclusion of companies

the acknowledgement of the individual

even whole communities, an unavoidable

as performers for carrying out the public

dislocated person: experience has revealed

event. The utilitarian principle of maximum

purpose is a definitive statement of alignment

the inadequacy, and inequity, inherent in

happiness for the maximum number has

and priority.) Compensation, as a measure

this approach. For it does not accommodate

been invoked to lend respectability to making

to take the edge off dislocation follo lilt,

the implications it has for displaced

the lives of communities into a cost, in the

compulsory acquisition, retains its market

communities, and in circumstances of mass

public interest. The law is ill-equipped to

value connotation, the statutory respons-

displacement. The presumptions of what

counter this attitude and in fact abets it by

constitutes it gives 'development' a priority

lending the force of state power. This is the

which is denied to the large-scale, and often

focus of this essay.

Further, the law has been constructed on

ibility of the state ceasing upon such payment.

The inadequacy of this law to deal with the

problems thrown up by large-scale

traumatic, displacement that it entails. The

displacement has not affected the thoughtless

regularity with which the law is invoked. For

calculation of cost-benefit externalises these

costs. A study of the law reveals that it

The Statutes

a law that does not acknowledge

displacement and its traumatic overtones,

endorses, and reinforces, this position.

Statute law determines the process by

The legislation at the centre of the debate

does not mention resettlement, and is

which the relationship between a community

is the Land Acquisition Act 1894. It is of

unwilling to take the responsibility of

and its resources may be affected, even as

some significance that the act is of colonial

rehabilitation, what can be seen in its rooted

it redefines rights. It also is the context from

vintage. What is also of the same vintage

presence in this field of human suffering is

which the substantive right of the affected

is the rule of law. This is an overarching

expediency, callousness or arrogance. This

person -often in the form of money

principle that was held out as the antithesis

compensation - is derived. The power of the

of arbitrary state action. The statute was one

statute, however, goes further: it has a

of the more definitive expressions of the rule

purpose in providing for 'persons displaced

profound influence onjudicial understanding

of law. The prescription contained in a

or affected' by projects: which yet continued

of the problem of displacement. The statute,

statute - whetherof procedure, of substantive

to ignore the existence of displaced

it will be seen, insidiously but definitely,

rights orof sanctions - acquired alegitimacy

communities. And even while it recognised

determines judicial interpretation of

which was not easy to dislodge, something

no rights in the displaced persons to

constitutional mandates. It is to this that the

which continues to this day. And such a

rehabilitation through state intervention, it

lack of empathy may partially be attributed,

statute is the Land Acquisition Act 1894

unabashedly used the displacement caused

when a court finds that 'preferential'

[LAA].

treatment of displaced families would be

view is only reinforced by a reading of the

1984 Amendment which recognised a public

as further justification for state power in

The LAA is a statutory statement of the

compulsory acquisition.

against the equality promised in the

state's power of eminent domain, which

Constitution - even while accepting the

vests the statewith ultimate control over land

poverty of the displaced.' Expediency,

within its territory. It denies to the person

proferred as an argument by the state, has

from whom the land is acquired the right

people from forests in which the state declared

struck a responsi ve chord in the court. Judicial

to exercise choice as to whether to part with

an interest. Quite unlike the LAA which was

hands-off on matters of policy has given

the land or not so long as the acquisition

premised on private ownership of property,

power to the state beyond legitimated

is avowedly for a public purpose. The

the Forest Act was aware that long,

challenge. The relevant concerns, in the

definition of public purpose in the act is

established user and an intricate mesh of

context of displacement would then be,

inclusive, not exhaustive; and the 1984

dependency characterised the rights it would

amendment which was an attempt to update

dislodge. Yet, the continuance of the rights

justiciability, the nature of legal imagination,

The LAA is not isolated in its relevance

to displacement. There is the Forest Act of

1927 which anticipated the displacement of

1486 Economic and Political Weekly June 15, 1996

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions

of the people depended on individual

limitation on this power omnibus is when

deliberately open, with the poweressentially

determinations made by a state functionary.

it is government property that is involved:

resting with the state to determine what

And the rights, where recognised, could be

the administration can then act only with the

constitutes public purpose.

involuntarily replaced by compensation. It

consent of the concerned government. With

is an ill-kept legal secret that the original

this one exception, these transactions are

demonstrated its utilitarian potential.

Utilitarianism is a pragmatic philosophy,

Experience with public purpose has

intent of the Forest Act was to serve the

treaited as acquisitions for a public purpose

commercial interests of the state. The law

within the LAA. Displacement, while

advocating the seeking of the greatest

has hardly changed. Yet-even as the

inex itable, is neither in the statement of the

happiness of the greatest number. It does not

language of the law, the process, the power

law, nor is it its apparent concern.

structures and the remedies remain

actually advocate the marginalisation of

The expedient of compulsory acquisition

those who get excluded from the benefits

unchanged - it is sought to be given a new-

is again in evidence in a legislative exercise

found morality: the state is projected as the

of even more recent origin. Even as the

statement. Public purpose works to similar

protector of the tree. As for the displaced

immensity and immediacy of the problems

effect. What is public purpose for a category

people, they are placed in an adversarial

of displacement was acknowledged - and

of persons may represent the trauma of

position with the conservation and environ-

the attempt at articulating apolicy was engag-

displacement for another. The exercise of

ment ethic. While development is the larger

ing the attention of at least six departments

st.ite power is governed by the identification

good which is invoked tojustify displacement

of the government, among others - the

Of the public purpose, without the constraint

for projects, the Forest Act rests its case on

Airports Authority of India Act was passed

of addressing the adverse impact it may have

conservation and the environment.

in 1994. The habits of law-making introduce

on the affected population. Differently from

of the system; yet it is implicit in its very

a reiterative quality to the law; and laws all

utilitarianism, pursuing state understanding

open spaces be available to the army for its

too often are reproduced in their own image.

of public purpose may cause relatively more

field firing and artillery practice. Here is

This perhaps is at least a partial explanation

distress in real terms than the benefits it

cause again for displacement. It is in the

for the power of compulsory acquisition of

generates. The large scale of displacement

land that has been prescribed for the statutory

accompanying the progress of the projects

be harmed, and to 'regularise' the procedure

authority. The land required 'for the discharge

across the Narmada - from those who made

by 'putting it on a legal basis', that the

of its functions under this act' is 'deemed'

way for the ritual of the inauguration in the

Manoeuvres, Field Firing and Artillery

to be for a public purpose; and the LAA is

Practice Act 1938 was avowedly enacted.

invoked to effect the acquisition. Again, the

dam affected, those to be dislodged as the

Field firing and artillery practice needing to

presumption that public purpose is a priority

canal progresses, including in their number

ensure more total 'exclusion or removal

of an irrebuttable superior order, and that

those recognised by the state as being related

from any place declared to he a danger zone

the statement by the state that a purpose is

to the project and those ignored - illustrates

of persons or domestic animals', this act

a public purpose is conclusive.

this possibility.

The security of the state demands that

'interests of safety' of the persons likely to

provides for the 'removal' and 'exclusion'

of persons from the danger zone. There is,

under the LAA, a permanence in the

1 960s, those displaced for the township, the

These are but instances of a statutory order

There are incompatibles that continue

which is so constructed as to legitimate, and

unresolved in the law of public purpose. The

facilitate, the displacement of persons, as of

use of the law to further one public purpose

severance of the relationship between a

communities. In its ordering of priorities, it

may result in creating conditions which may

person and his property which may be seen

has not reckoned with displacement. Instead,

deserve a further invoking of the acquisition

as absent in its essence from this legislation.

it has attributed a cost to the acquisition

law. In 1984. the grinding wheels of the law

The displacement is, in reality, a mere

process, and displacement is an unstated

grudgingly transported displacement into

dislocation for the period that the army needs

incident in this process. Law depends, for

legal recognition. The LAA was amended

it: it may be re-habited thereafter. If, in the

its legitimacy, on popular acceptance. The

to bring displacement into the inclusive

process, any harm is sustained by person or

patent injustices that have resulted from

definition of public purpose. The express

property, there is statutory provision for the

employing the extant statutory regime to

provision of the law, while it limited its

payment of compensation. In common with

situations for which it could never have been

concern to making land available for

other legislations which facilitate

intended - and mass displacement is an

residential purposes. did admit to the reality

displacement, this act concentrates power in

outstanding example- and the popular

of displacemienit. In the company of the "poor

the state, with but a passing thought to what

condemnation that has followed, have

or landless or ... persons residing in areas

effect it might have in the lives of the

cornered the law into rethinking its

affected by natural calamities" the law places

displaced people. It is this reluctance to

propositions. To get the law to revise its

"persons displaced or affected by reason of

acknowledge the extent of the responsibility

priorities, to relocate expediency, to redefine

the implementation of any scheme

involved that makes the law suspect.

development, to reassess the meaning of

undertaken by government, any local

Hidden in the folds of statutes which appear

costs requires a liberal dose of legal

authority or a corporation owned or

to have little relation with displacement can

imagination, political will and the induction

controlled by the state". The language of

be found extensive powers enabling state

of empirical knowledge.

vulnerability is unmissable. The expedient

authorities to take over control of land and

of limiting public purpose to restoring some

related resources. For the purposes of

II

constructing or maintaining a railway, a

Public Purpose

railway administration may construct 'in or

upon, across, under or over any lands, or any

streets, hills, valleys, roads, railway,

tramways...' "as it thinks proper". This

discretion to decide and to act is tucked away

manner of shelter is a commentary on the

state's admission of inability to commit itself

to greater responsibility. Yet the nature of

The morality of the law which effects

the problem of displacement, and the

displacement is posited on the 'larger public

difficulty in resolving it equitably, have not

good'. It is couched in the language of

caused the law to re-work the meaning of

'public purpose'. It reasons that the state will

public purpose, or to device a procedure

in the Railways Act of 1989. The extent of

have to act to protect, and advance, generally,

which will require the state to consider the

the powers is vivid in the clause which

the interests of the people. There is an

totality of the public good involved. If there

would have it 'do all... acts necessary for

making, maintaining, altering or repairing

and using the railway' . Interestingly, the one

impracticability about detailing every

circumstance which may need state action

under these laws; the field is then left

is a reluctance in the law to interpret state

power so as to account for its responsibility

where displacement may occur, the reason

Economic and Political Weekly June 15, 1996 1487

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions

land is not necessary. Therefore, in the case

is obvious: for it would amount to a whittling

down of state power. Aiso, it would impel

acquisition, to contest the quantum of

of these pipelines it is considered sufficient

compensation - are provided in the law. The

a redefinition of priorities, as it would call

to acquire the mere right of user in the

non-recognition of the displacement of large

for a reorientation of the presumptions that

land...". This partial acquisition vests the

numbers, and of rights of collectives, or of

have influenced the course of the law.

right to use the land in the government; the

individuals as part of a collective, permits

owner or occupier of the land is, however,

the state to neglect all but the defined rights

entitled to continued use of the land. The

of individuals as individuals.

III

Eminent Domain

damage, loss or injury that may result is

Statute law, in defining rights and pre-

compensated under the law.

The doctrine of eminent domain asserts

scribing powers, reduces the recognition of

The wisdom of the law in not acquiring

a problem to manageable proportions. It

the right of the state over land and related

more than the purpose needs, is founded on

would then ignore all that falls outside this

resources within its territory. It is perceived

expediency. It is not the limited extent of

recognition. What is not within the law's

as a necessary right, to be invoked to further

the need, but the experience of costs and

ken cannot be addressed by the law. The

public good. In consequence, the right of

delays involved in the pro_ess that has

process prescribed for the identification of

any person or community to refuse to permit

influenced the lawmaker. It becomes apparent

holders of rights, and of the rights them-

the intervention of the state, or to dissent

that where the costs of acquisition are

selves, externalises mass displacement. State

from the state's perceptions of public good

effectively contained with the law's help,

is considerably eroded. The process of

and the obstacles to the process are not

displacement and speak of rehabilitation,

assumption of control is prescribed by statute.

sufficient to deter the state, the incentive to

are reluctant to make acquisition dependent

minimise the take over of rights is lacking.

on the restoration of just standards which

The only concession to this power which

causes 'great legal injury' is the entitlement

laws4 which have acknowledged mass

will avoid using the displaced population as

In limiting the extent of dislocation, partial

acquisition represents a lesser loss than

to compensation.

The situations which may prompt the state

scapegoats.

Statute law has a binding effect which has

outright acquisition. Yet, it may not be an

to acquire private rights may result in

unmixed blessing. It is an attribute of eminent

permanent, temporary or partial acquisition.

domain that the consent of the dislocated

reduce the trauma of displacement where it

person is irrelevant to the process. It is also

occurs and to introduce justice and fairness

The LAA, for instance, envisions acquisition

to be enlisted to minimise displacement, to

of land which sunders the relationship

in the nature of this power, as it has evolved,

into this transaction. The content of the law

between the private holder and the land. Any

that the state cannot be required to acquire,

would require drawing upon empirical

change in the status of the land which may

and compensate, the totality of the rights:

knowledge, providing an understanding of

occur after the completion of the transaction

the invasion of rights is the prerogative of

poverty, acknowledging the impoverishment

of acquisition will have no effect on the

the state.

rights of the person who has lost his land

through law that mass displacement has

to the acquisition. Illustratively, the over-

to the state access to all land and related

acquisition of land, in excess of that needed

resources. Public purpose, the moral high

for the purpose for which the power is

ground of acquisition, has a wide, sometimes

exercised, would not restore to the displaced

contradictory, reach: from the construction

person any right to the land.

Field firing and artillery practice is

facilitated by a law which provides for the

exclusion of persons, for a period, from land

on which they may live and work. The nature

caused, and recognising the inequity of

The doctrine cf eminent domain ensures

powerlessness.

IV

Compensation

of dams to the resettlement of displaced

If the law of acquisition were to possess

people; from the conservation of wildlife

a conscience, it may be found in its provision

and forests to the promotion of tourism;

of compensation. Perceiving the effect of

from industrial growth to slum clearance.

eminent domain as "exacting greater sacri-

There is little answerability in the law of

of the activity which provokes temporary

acquisition, based as it is on the possibilities

fices for the purposes of the state from one

displacement may make outright acquisition

engendered by eminent domain and public

rather than from the other",' compensation

inexpedient. 'rhe compensation is then

purpose. The environmental priority of a

is seen as the means for reducing the injustice

computed on an understanding of the

sanctuary may give way before a revised

inherent in acquisition. Every law that dispos-

demonstrable loss, harm and injury sustained.

economic priority of tourism: the excluded

It is not without significance that this

people however are entitled neither to reenter

temporary displacement inevitably occurs

their land, nor to question the changed

in areas which are removed from what may

priority. A revised rendering of the law would

be called, the mainstream.

Where the purpose for exercise of the

sesses carries a provision for compensation

which is intended to soften the blow.

Yet, the limited understanding of

compensation has eroded its moral base. The

notion of total compensation being unknown

have to remedy this attitude to displacement.

to the law, it is ill-equipped to internalise

The perception of displacement as a tragic

eminent domain power could be served as

choice,' would have to replace the established

the immiseration which acquisition may

well by acquiring only partially the rights

status of displacement as a necessary ritual

entail. The process of impoverishment is

over land, the state may decide to restrict

for the furthering of 'public interest'.

inevitably set in motion, except in cases

where the displaced persons are able to use

the nature of its acquisition. The Petroleum

ACQUISITION

the system to their advantage - an unlikely

and Minerals Pipelines (Acquisition of Right

of User in Land) act 1962 is a case in point.

Acquisition effects the transfer of rights

It is interesting that this act was conceived

from a person to the state. The law is

because of the resistance that invariably

concerned with the individuals whose rights

attended acquisition under the LAA.

are to be acquired. Breakdown of

"Although land can be acquired outright for

communities and mass displacement are not

laying down pipelines under the LAA 1894,

the procedure for such acquisition is long-

within this recognition.

The acquisition process provides a degree

event where poverty or powerlessness

characterises the population.

The meaning given to compensation has

been dominated by its equation with the

market value, or the notional value in the

market. This treats the displaced person as

a willing seller. It does not account for the

drawn and costly". read the statement of

of participation to the individual. Procedural

part that coercion plays in the law.

objects and reasons that accompanied the

opportunities - to protest the acquisition, or

Compulsion is tempered by a solatium,

Bill. "Since the petroleum pipelines will be

the extent of the acquisition. to establish a

which, being a percentage (now fixed at

laid undergroundl, outright acquisition of

claim to interest in the rights under

thirty percent) of the compensation amount,

1 488 Economic and Political Weekly June 15. 1996

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions

Yet, with this testament attesting to its

is also dependent on the market value. The

a process for the exercise of the emrinent

option of compensating land for land merits

domain power. Unintentionally perhaps, yet

humanity, when the displacing entity is

a mere mention in the law; it is not, in any

inexorably, the law has been activated to

challenged in a court for not conforming to

event, a binding obligation of the state.

effect mass displacement in the cause of

the pledge of the policy, it may counter with

development, what is compendiously termed

a simple expedient - that the policy 'has no

displacement, there are significant absences

the national interest, economic imperatives

statutory force' - it cannot therefore be made

in the law for computing compensation. For

of the state and planned growth. With the

the ground for action! Or that the policy

one, it does not take responsibility for

restricted meaning imported into

being under revision, it cannot be entertained

providing for the replacement value of the

compensation, displacement has not been a

as a basis for determining rights.8 The

With its defective vision distorting

iand, or rights, lost. For another, mass

legally recognised cost. The escalating crisis

distinction between law and policy therefore

displacement often affects populations whose

of displacement has been aggravated by the

acquires considerable significance.

lives are not constructed around formal legal

displacement of whole communities and

rights, making market value an irrelevant

hosts of villages as an invariable part of

criterion. The difficulties in attributing a

implementation of projects.

The emerging dimensions of the problem,

value to the costs of displacement have not

Statute law is enactedby parliament; policy

is the creation of the executive.

Statute law, where it defines (or denies)

rights, is binding. Policy, on the other hand,

been addressed by the law: they have merely

the awareness that priorities identified by

has at best a persuasive value. Courts are

been externalised. The costs of displacement

the state threaten further and increasing

bound by the statement in the law, but are

have been artificially, and unjustly,

displacement, the unimaginative and

free to be guided by policy, or to ignore it.

suppressed. The focus of the acquisition

inadequate remedies provided by the law,

process being the individual, compensation

and the impossibility of displaced

prescribed by Parliament, and stretches till

is not sensitive to the displacement of

populations resurrecting their lives, have

it is either repealed, is modified by a later

communities, or of large numbers of people.

together impelled the state to publicly

statute, or is struck down by a court for being

The trauma involved in displacement, the

reconsider its options. It is witnessed in

in violation of the Constitution. Policy is not

The life of a statute begins on the date

token changes to the LAA, as in the

so constrained: it may subside into non-use,

breakdown of support structures, the

introduction of the displacement dialect in

or become outdated, or be replaced by a later

indigence of displaced populations, the

defining public purpose, in the enactment

policy, or even just be discarded.

increased susceptibility to exploitation where

of rehabilitation legislations by some states,

protected populations are dislocated... none

and in the mushrooming of policies of

and a policy, the latter yields to the statute.

of this inhabits the law of compensation. It

rehabilitation. However, displacement is

There may be a difference between the effect

is of significance that, having spoken to the

itself not questioned.

of the law and the stated intent of policy.

fragmentation of communities, the

Policies of displacement and rehabilitation,

possible poverty of displaced populations,6

Where there is a conflict between a statute

Again, it is not unknown for law's

and to the public purpose involved in

speak to concerns beyond income replace-

providing for them, it is not a right to

ment. Recognising the characteristics of the

may be generous. To the extent that it is not

compensation but a discretion to care that

displaced population, which explains the

in contradiction, policy may assist in the

has been prescribed.

consideration shown to them by the policy,

interpretation of a statute; it cannot however

they prescribe norms of replacement. This

replace the statute.

With the exception of the occasional state

prescription to be restrictive, where policy

Decades of experience with the acquisition

legislation, the law which enables displace-

is intended to temper the patent injustice of

ment neither recognises displacement as

asking populations who have little, to pay

laws has determined the contours of judicial

creating altered rights, nor does it use the

for the public good. A policy may go

and executive understanding. Judicial

language of resettlement, relocation or

something like this:7

construction of statute law being

rehabilitation. Multiple displacement - and

The projects involved, it may say, are located

none can deny that it extracts an unconscion-

in remote areas. Requiring large stretches

of land, it may go on, it may displace people.

able cost - has not excited the compassion

characterised by a desire for continuity and

certainty, the influence of policy on the

acquisition laws is not likely to affect them

Where it does, it may promise to resettle and

in any fundamental way. Where displacement

of the law, nor engendered a sense of

rehabilitate the displaced in consonance with

is enabled by law, and rehabilitation is

community. Neither the decision to acquire,

the norm that they improve or at least regain

nor the computing of compensation, takes

sketched by policy, the inequality in the two

theirprevious standardof living. Recognising

responsibility for this disproportionate

instruments gives the compulsion of

the discontent and alienation that may result

acquisition a status that rehabilitation does

burden on the displaced.

from improper resettlement and rehabilit-

The presumptions of public purpose, the

not possess. The difference that the law

ation, and acknowledging the involuntary

implications of eminent domain, the power

nature of the transaction, it may commiserate

with the forced eviction, the loss of a

of acquisition, and the containing of costs

perceives between the rights of an owner or

occupier and others affected by the

traditional social system, and the fundamental

in computing compensation have conspired

displacement has been softened by policy.

changes where an agricultural economy is

to relegate displacement to the position of

Yet, it would need a change in the law to

replaced by changes in land use that the

a non-concern. Particularly where they

lend it enforceability.

project brings. It may place a priority on

reorder hierarchies of legal concern, changes

The neglect of displacement in the law of

regaining the economic base, expeditiously.

in the law are a response to pressures that

acquisition, then, cannot be righted by policy

A listing of entitlements of the displacement

cannot be ignored. This is reflected in the

alone. The protection against overpopulation may follow, including land for

gradual, even if reluctant, introduction of the

land, house sites, employment and self-

employment opportunities. Rehabilitation

recognition of displacement into the law.

acquisition, the right to return to lands

acquired but not used as proposed, the

nmeasures may include compensation for

Yet, the law being essentially conservative,

safeguards which may work to minimise

losses in terms of land, cash and other forms,

it will take unrelenting determination to

displacement - these are instances of the

and assistance to start a new life in terms

build the gravity of displacement into the law.

need for changes in the law. Rehabilitation,

of opportunities, training, credit and

resettlement, relocation and compensation

community services for schooling and health.

LAW AND POLICY

have to be defined and made operative by

With its commitment to discharge social

The law' s attention has not been engaged

the law; while the right has to inhabit the

responsibility, it may assert its intention to

by the possibility, and effect, of large-scale

displacement. Its concern has been to provide

making a conscious effort to rehabilitate

persons displaced by earlier projects.

statute, policy may be employed to realise

the potential of the law. The advantage of

Economic and Political Weekly June 15, 1996 1489

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions

policy lies in its flexibility, and this could

power generation causing people to lose

be put to purpose in providing the experiential

their assets and their capacity for subsistence,

backdrop for understanding the possibilities

leaving them to an uncertain future, with

right to, employment, through the generations

of the law.

mere promises of executive largesse to sustain

of the displaced, impossible of performance

them. Where the administrative process

and therefore unreasonable, apart from

It is possible that the court found the

claims for total absorption in, and preferential

IMPOVERISHMENT

exaggerates the inequality between the

striking it as excessive. Yet, the indignation

displaced and those exercising the authority

of the court testifies to definite judicial

meaning into rehabilitation, is a prescription

to displace, the judicial process is trained to

attitudes.

for impoverishment. Baxi's concept of

the possibility of neutralising such inequality

Mass displacement, without infusing

The government has paid market value for

'impoverishment'9 distinguishes it from

in having the rights of the displaced

'passive words' as poverty and the poor. It

considered. The provision in the law for

the land acquired', it said. 'Even if the

is 'a dynamic process of public decision-

representative petitions, which enables the

making in which it is considered just, right

grouping together of rights of persons

and fair that some people may become or

similarly situated, and Public Interest

stay impoverished'. It is a feature of the

Litigation (or Social Action Litigation as it

government or the steel plant would not

have offered any employment to any person

it would not have resulted in violation of

any fundamental right.

The irate court went so far as to say that

process of impoverishment "that people are

is more appropriately termed)' i are relatively

not naturally poor but are made poor". It is

user friendly - they provide relatively easy

against Article 14", implying that displace-

in this sense that the word impoverishment

access to courts, and acknowledge the

ment does not constitute a rational basis

has been used.

existence of a community of interest.

for positive discrimination! The distance

The compulsory exaction of land, and the

The reliefs that the courts have been

"Acceptance of such a demand would be

between the perception of injustice of the

limited commitments of compensation which

petitioned to provide range from the

displaced population, and the statutorily

do not account for the problems that

scrapping of projects as they are based on

circumscribed understanding of the court

displacement brings to the displaced

a misconception of what is in the public

are testimony to the importance of initiating

population, lead to the regressive road to

good; to haltingproject work till the displaced

amendments to the law. The existence of

poverty. The law, in its myriad manifest-

are rehabilitated in a manner that does not

policy is no substitute.

ations, shows an awareness of the possible

treat them as a cost of the project; to holding

destinies of the affected populations. The

the project authorities to the promises made

relying upon policy to assist it in finding

There are instances of an empathetic court

answers to the problem of displacement. The

fact which is relevant here is that the displaced

in theirendeavourto find acceptability during

population, which is inadequately protected

the planning process; to assert a right to

NTPC policy for rehabilitation, for instance,

from the vicissitudes of displacement, is

spaces for participation in the process; to

was the basis of directions which went out

easy prey to the forces of impoverishment.

considerations of equity, and for infusing

from the court on how displacement was to

into the process of displacement a recognition

be effected, and the displaced treated. '3 There

to law the role of a causative agent, impelling

that there are fundamental rights which are

is however no right to the promises of policy.

those whom it affects on to the downward

non-negotiable, even where eminent domain

slide to poverty. The laws of acquisition

and public purpose may be invoked; or for

house one example. Impoverishment in the

enhancement within the law of compensation

for the displaced, or for only some of them -

law is the recognition of the events of poverty

which will make the compulsory exchange

so long as the requirements of the acquisition

as disparate and static conditions, inviting,

less inconsonant with justice.

Impoverishment through the law attributes

variously, rebuke or paternalistic concern,

The reasoning of the court is influenced

There is a pragmatism that the court then

permits. Policy may account only partially

process have been complied with. Since it

is only the rights in the law that are perceived

both commonly denying autonomy and

by the statute. The displaced, whose rights

to be enforceable, and policy deals not with

denuding rights. The laws of beggary which

have been represented but marginally in the

the individual but with the totality, the

punish, and the law to protect interstate

law, have had to resort to the assurances of

standard of compliance of policy is more

migrant workmen are instances.

policy; and policy has no more than

relaxed than it is for the rights derived from

The process of impoverishment may be

persuasive effect. Also, courts are reluctant

depicted to determine the extent to which

to adjudicate on the exigencies of policy

the law is responsible for, or assists, this

implementation. Acquisition, on the other

process. It is not intended as a demonstration

hand, is a well entrenched state power,

of the path trodden by every victim of

reiteratively reinforced by the judiciary.

displacement; indeed it is an indication of

In considering the petition of a people

law.'4

Episodes from the courts carry their own

lesson:

The test firing range near Itarsi uprooted

tribals. Rehabilitation of the displaced tribals

having apparently failed, it was found that

the common dangers that confront those

displaced by the Rourkela Steel Plant, their

they were, with regularity, risking their lives

who enter the vortex of impoverishment. It

claim for jobs of the adult population, and

while collecting the spent, and unexploded,

represents the law's latent statement of the

for a preferential right to employment was

ammunition from the prohibited areas in the

injustice of displacement.

rejected by the Supreme Court.'2 Apart from

acquired land. By the government's own

not being able to discover the infringement

admission, 81 persons had lost their lives

relationship between law, impoverishment

of a fundamental right, the court found the

between 1972 and 1993. An order of the

This representation"' is illustrative of the

and poverty. This ability of the law to effect

process of acquisition validated by

court in a public interest petition, designed

impoverishment, and the experience with

conformity to the process prescribed in the

to prevent the recurrence of such deaths,

mass displacement, would justify a

LAA.

conlined itself to the mechanics of barbed

reworking of priorities and presumptions

wire fencing, which would 'assure efficacy

'Their land', the court said, 'was taken under

that are inherent in law.

the LAA. They were paid compensation for

it. Therefore, the challenge raised on violation

in containing trespass'. The unanswered

questions about displacement and

JUDICIARY ON DISPLACEMENT
of Article 21 is devoid of any merit.'
rehabilitation continued unaddressed.'5

Acquisition and displacement, with their

The constitutional mandate that a deprivation

The anomaly of an interpretation of the

constitutional implications, have, inevitably,

of life (and livelihood and dignity) will have

law of compensation which converts a

reached the courts. The petitioners have

to be only by procedure established by law

protection into a disability was witnessed in

invariably been those affected by projects -

was believed to be fulfilled by applying the

dams, reservoirs, firing ranges, industry and

LAA.

the case of the tribals in Andhra Pradesh.

Resident in an agency area, they were

1490 Economic and Political Weekly June 15, 1996

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions

I See Butu Prasad Kumbhar v SAIL 1995

FIGURE

Supp 2 SCC 225 at 229, para 6.

Adequate
2 Forexample, the Interstate Migrant Workmen

ompensation<
(Regulation of Employment and Conditions

Inadequate
of Service) Act 1979, the anti-beggary acts

No compensation
extant in some states, and the illegal status

accorded to, pavement dwelling which has

Acquisition and Rehabilitation

got immortalised in the judgment of the

Displacement
Supreme Court in Olga Tellis v Bombay

Other support systems Migration Reduced - Waged

Municipal Corporation (1985) 3 SCC 545.

protecting the displaced subsistence labour3 The phrase is borrowed from the title of a

level skilled/
book by Guido Calabresi and Phillip Bobbitt,

unskilled
where the authors address the agony of the

choices that a society has to make in what

Unemployment Child Bonded Contract Interstate

they term the 'allocation of tragically scarce

labour labour labour migrant labour

resources': Tragic Choices (1978).

4 For example, see the Maharashtra Project

Low bargaining Casualisation Subminiina

Affected Persons Rehabilitation Act 1986.

power of labour wages

5 G C Mathur, V G Ramachandran's Law of

Land Acquisition and Compensation 1

Acquiring the character of poverty

(1995:8th edn).

6 The definition of 'public purpose' in the

T--

Pavement dwelling slums Beggary Criminalisation

LAA as amended in 1984: Section 3(f)(v).

7 This description has drawn, in large measure,

Illegalised living Eviction Drug Delinquency Prostitution

on the Resettlementand Rehabilitation Policy

trafficking
of the NTPC (May 1993).

8 Counter affidavit of NTPC filed in the

Further Institutionalisation
Allahabad High Court in the matter of Gramin

impoverishment
Kalyan Sangharsh Samiti v District

/I,
Magistrate, Sonebhadra (CMWP No 4358 of

Juvenile Prisons Beggars' Corrective Protective

1995) dated August 17, 1995, paras 9 and 11.

homes homes homes homes

9 Upendra Baxi, 'Introduction' in Baxi (ed),

\ | I I ~~~~~ ~ ~~~~~~~~I II
Law and Poverty vi (1988).

Criminalisation Exclusion Stigmatisation

10 This representation draws upon the LAA

1984, the Interstate Migrant Workmen

Static/regressive condition of poverty

(Regulation of Conditions of Employment)

Act 1979, the Minimum Wages Act 1948,

the Contract Labour (Abolition and

Regulation) Act 1970, the Bonded Labour

IN CONCLUSION

displaced to make way for the Jelluru and

System (Abolition) Act 1976, the Child

Yerrakavla reservoirs. The transfer of land

Labour (Prohibition and Regulation) Act

in an agency area may only be from one

Displacement is not on the wane. In fact,

1986, the Juvenile Justice Act 1986, the IPC

tribal to another -a measure to ensure

the planning process presumes that

protection. As is often the case, the rightness

displacement is inevitable. There is an attempt

of the displacement was not in challenge:

to justify it as a cost of development, and to

it was the enhancement of compensation that

project it as an opportunity to improve the

1860, the Immoral Traffic Prevention Act

1956, state anti-beggary laws, the NDPS Act

1985 and municipal laws.

I IUpendra Baxi, 'Taking Suffering Seriously:

was sought. But, the high court found that

living conditions of the displaced. The creation

the market value of the land, being the norm

of internal refugees, the impoverishment of

in determining compensation, would be

the displaced, the incapacity of the state to

affected by the incapacity of the tribal to

rehabilitate them and avoid making them the

Social Action Litigation in the Supreme Court

of India' in ibid, 386-415.

12 Buta Prasad Kumbhar v SAIL, 1995, op cit.

13 Banwasi Seva Ashram v State of UP (1992)1

SCALE 407.

enter into open market transactions. A tribal

sacrificial lambs of the development process -

in an agency area may only part with his

these are explained away as unfortunate

land to another tribal. And the buying

side-effects of the process of economic

capacity of the tribals being, generally,

growth. The initial deprivation of the

limited, the compensation would have to be

displaced has been conveniently used to

computed accordingly !16 The Supreme Court

suggest that development could only benefit

thought it fit to dismiss it merely with a

them.

14 Supra note I at 230: '...in the meantime

another dam has been constructed and the

persons who have been displaced have also

been required to be accommodated and,

therefore, a scheme has been framed in which

80 per cent displaced in consequence of

Mandira Dam and 20 per cent out of 247

are being given employment since 1993. He

The law has been instrumental in

remark that this "is not a correct approach".

stated that nearly 50 persons out of 247 have

The difference between the market value

entrenching this perspective. A reassessment

already been absorbed. We are of the opinion

and the reinstatement value was disposed of

of the human costs of development projects

on the understanding of solatium as making

is the first requirementof improved legislation.

that giving employment to 20 per cent may

take longer time and since the age bar has

up the difference.'17

Legal reform is essential to curb state powers

been put at 35 it would be appropriate if the

Juristic activism, which evolves modes of

in this field, and to give tangible rights to

thought, and fashions rights and remedies to

the victims and potential forgets of mass

bring law in consonance with justice, has

displacement.

SAIL expedited the absorption of these

persons by increasing their number from 20

per cent to 40 per cent each year.'

15 Sudip Mazumdar v State of MP 1994 Supp

passed displacement by. Restrained attempts

2 SCC 327.
Notes

at judicial activism, which has the court act-

16 Special Tahsildar v Kabbidi Posayya CA

ing to protect the interests of the displaced,

[A companion piece has appeared in Usha

Nos 1341, etc, of 1992 decided on March

have occasionally dotted thejudicial horizon. I I

Ramanathan, 'Displacement and Rehabilitation:

2, 1994 (AP High Court).

The law of acquisition, and the expediency

Towards a National Policy', Lokayan Bulletin,

of policy, continue to determine judicial

understanding and treatment of di splacement.

17 K Posayya v Special Tahsildar (1995) 2

Special Issue on Displacement and Rehabilitation,

March-April 1995, 41-56.]

SCALE 683.

18 Baxi 1988 op cit.

Economic and Political Weekly June 15, 1996 1491

This content downloaded from 210.212.199.162 on Fri, 18 Mar 2016 09:53:07 UTC
All use subject to JSTOR Terms and Conditions