Singur: An Act of legislative deviance

by Arun The West Bengal legislative assembly turned an astonishing page in Indias democratic history today, when it passed legislation with the sole aim of returning land to farmers from whom it was acquired in Singur. If experts are crying hoarse about civil societys law-making schemes, then they surely ought to sit up and notice this legislative process of the elected, for there much to it than meets the eye. The Singur Land Rehabilitation and Development Act, 2011 will endeavour to return land to those who had been displaced after the Left Front struck a deal with Tata Motors in 2008 to set up a manufacturing plant in the area. A noble purpose, no doubt, but enacting legislation? All for this singular purpose? To be sure, the passage of this law is riddled with legal and political landmines. For the governments part, it was argued that land once acquired cannot be returned since it is impermissible in law except by public auction. So said the Supreme Court, apparently. Land to develop the Nano plant at Singur was acquired by the principle of eminent domain under the Land Acquisition Act, 1894. However, the government acquired it under Central legislation, and not the States version, for the West Bengal Land Acquisition Act had lapsed as early as 1993. Moreover, the Calcutta High Court upheld the validity of the acquisition, and the matter is currently pending before the SC. The Supreme Court refused to stay the Cal HC order, but (rather confusingly) said the issue of notice did not also mean status quo was maintained. Basically, the sort of dilly-dallying that weve been accustomed to, that lets the government arrive at a political solution. But the folks at Trinamool Congress went a step further. The present Government has concocted an entire legislation to return the land so acquired. If youre imagining a holy tome of avant-garde legalese, then think again. The law is 280 pages, with 5 of the text and the remaining 275 containing a list of farmers whose land has to be returned. Clearly, the attempt to create this law that will cut through the red tape of legislative process is a sham. But more about the devious legislative intent later. The bogeyman here is a Supreme Court judgment that has reportedly prohibited a return of acquired land, except by auction. The judgment in question is State of Kerala & Ors v. M. Bhaskaran Pillai & Anr, a simple look at which will bust any myth about the matter. The operative part of the judgment, cited as the Damocles sword hanging over the government, runs thus: The question emerges: whether the Government can assign the land to the erstwhile owners? It is settled law that land is acquired for a public purpose was achieved, the rest of the land could be used for any other purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount Fetched in the public

auction can be better utilised for the public purpose envisaged in the Directive Principles of Constitution.

The Supreme Court verdict prohibits a return of land only when there is balance or surplus remaining after the public purpose was achieved. In an instance where the remaining land is no longer of use to the public, auction is the preferred mode of disposal. Indeed, the facts related to a case where the construction of a National Highway was complete and an executive order was passed to return the rest to erstwhile owners which the SC prevented. But in Singurs case, there was nothing but a ceremonial bhoomi pooja and breaking of ground to commence construction of the plant. Hardly a case of public purpose being achieved, one would think. The Supreme Court verdict in Bhaskaran Pillai does not apply to the issue at hand, not by the most elastic of imagination. All that is required on the governments part is an executive order that would finish the job and return land to the displaced. This is where the West Bengal government is on a sticky wicket. If it passes the order to return land, that will be seen as an administrative action, with all responsibility laid at the feet of the TMC. On the other hand, enacting legislation makes the process look bipartisan, at least superficially and the Government can always, for posteritys sake, say that it was not hindering industrialization unilaterally. Using its new-found majority in Assembly for birthing a law effectively washes any prospective trouble off the TMCs hands. Seen in this light, the Left Front was wise to boycott todays session during the passing of the bill. Even if one were to assume that an executive government order is not the corrective to Singurs problem, drafting a new legislation hardly is. If the acquisition was made under a Central legislation, then the remedy must be through an amendment of the same. This process requires Presidential assent, but there is no substitute to healthy democratic procedure. And as it turns out, no alternative either. Land acquisition is a matter under the Concurrent list of the Constitution. By drafting a new law that is effectively annulling an action taken under a Central legislation, the States version becomes in conflict in the former. To use a constitutional term, repugnant. And the law of repugnancy, as enumerated under Art. 254 of the Constitution mandates that the conflicting State law must receive the assent of the President before it can prevail even within the States borders. A lesson, for the legal smarty pants of the TMC, that the long arm of the law is really long. However, this is not even a topic of mainstream debate on the issue, therefore the new legislation creates complications in multiple ways. Passing a new State legislation, on the other hand, sets a dangerous trend that could destroy the very fabric of federalism. If this law does not meet, or worse, survives a challenge in the Courts, then States across the

country may be encouraged to take action that at odds with the decision of the Centre, often without consultation. A grave consequence, that. Perhaps, a picture of warring State and Central governments may be exaggeration, but there is little doubt that the legislative scheme behind the Singur Rehabilitation Act is a matter of immense concern to the polity.