GS (M) Paper-3: “Land reforms in India.”
GS (M) Paper-2: “Separation of powers between various organs dispute redressal mechanisms and institutions.”
Land acquisition law: winking at the States
- The centre encouraged States to draft and pass their own laws for land acquisition and get them approved.
- The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 was introduced in the Lok Sabha February, 2015 amends LARR Act, 2013. It was passed only in Lok Sabha but not in Rajya Sabha.
- Therefore, Finance Minister, in an attempt to bypass Parliament, encouraged States to draft and pass their own laws for land acquisition and get them approved by the Centre.
- Following this, Tamil Nadu and Gujarat have moved ahead with their amendments, Rajasthan has a Bill ready and Telangana is working on its version.
What is its legality?
- Though land is a state subject, “acquisition and requisitioning of property” is in the concurrent list.
- Article 254(1) of the Constitution states that if there exists a Central law on a concurrent subject, then a State law cannot override it.
- However, Article 254(2) provides that if a State law receives presidential assent after due consideration, then it can apply in contravention to the Central law in that particular State.
These laws now passed by states allow for the acquisition of land in the States without having to satisfy any of the crucial safeguards built into the 2013 Central law, such as the right to consent, social impact assessment and, in the case of Tamil Nadu, even rehabilitation and resettlement. Apart from the obvious setback in provisions, there are also grave jurisprudential concerns.
- Undermining Parliament – Parliament passed the law in the exercise of its sovereign power bestowed on it by the Constitution. A hard-fought consensus was achieved that was widely held to be in the larger public interest. It cannot be diluted by misuse of a constitutional provision cannot and should not go unchecked.
- Wrong precedence – Wherever a Central government lacks the numbers to pass a law (on a concurrent subject) in Parliament or is faced with public opposition, it will concede the authority to States to pass the laws as they see fit and get the President to approve them.
- Wrong interpretation – Article 254(2) was never intended, even in its broadest interpretation, to weaken Central laws merely because they were found to be inconvenient. It was intended to bring in changes to Central laws if there was a genuine hurdle in implementing them in a particular State due to challenges peculiar to that region.
- The move to amend LARR Act 2013 was followed by a massive nationwide backlash which unified opposition parties across the ideological spectrum and the Supreme Court refused to entertain challenges to various provisions of the 2013 law. Thus it clearly suggests that the law was constitutionally sound and the public mandate was overwhelmingly against such amendments.
- Legality – Also Supreme Court of India had earlier struck down the attempts of the government to pass off what is known as “colourable legislation” e laws the government is not qualified to pass, that is disguised as other laws. It clearly states that what the government cannot do directly, it cannot do indirectly. Therefore an attempt to weaken a state law against the larger public interest is nothing short of such an abuse.
- President’s assent – The Supreme Court in Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation (2002) held that the words “reserved for consideration” in Article 254(2) would “definitely indicate that there should be active application of mind by the President to the repugnancy… and the necessity of having such a law, in facts and circumstances of the matter… The word assent is used purposefully indicating affirmative action of the proposal made by the State for having law repugnant to the earlier law made by the Parliament. This cannot be done without consideration of the relevant material.”
- Therefore it is clear that the President must act deliberately and consciously and not merely on the advice of the Council of Ministers. The newly enacted State laws on acquisition curtail and suspend the statutory right to give consent to acquisition and the need to carry out a social impact assessment. The President is required to examine if compelling reasons to sanction such a significant deviation exist.
- Also the Supreme Court in the Kaiser-i-Hind case held that granting of assent under Article 254(2) is not exercise of legislative power of President as under Article 123 (Ordinance Power) but is part of legislative procedure. Whether procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court.” Therefore if the procedure which requires thorough reflection and conscious application of mind by the President was observed is subjected to judicial review.
GS (M) Paper-2: “Important aspects of governance, transparency and accountability”
A pressing case for freedom
- According to a Freedom House report on press freedom in 2016, the safety of journalists is guaranteed in just 13% of the world’s population.
- About 41% of the world’s population has a partly free press and 46 percent live in a not-free media environment.
- The Committee to Protect Journalists (CPJ) recently claimed that Afghanistan, Pakistan, Bangladesh and India are among the 13 most dangerous countries for journalists. Other dangerous countries are Somalia, Iraq, Syria, the Philippines, South Sudan, Mexico, Brazil, Russia and Nigeria.
Threats to Press freedom:
- Rise of Extremism and Intolerance – Extremists forces, as in the case of Middle East countries (Ex. ISIS) resort to elimination of journalists reporting about the condition in extremist controlled areas. There is also a perception that, journalists provide vital intelligence information to security forces.
- In some countries, security agencies are trying to silence the voice of journalists, in the name of national interest. A recent case is Turkey, where a democratic regime is silencing the voice of the media in the name of “protecting democracy”.
- Influx of migrants – In Europe this has been used as a ground for silencing media – Ex. In Hungary media is restricted from reporting the condition of the migrants.
- Impunity and lack of conviction in crimes: According to the International Federation of Journalists 2016 report on impunity, only one out of 10 deaths in the media is investigated. This lack of conviction for crimes, gives free hand to criminals to perpetrate assault on Journalists.
- Lack of Political and Institutional will: Failure to take adequate preventive and punitive measures to curb assault on media and journalists.
Need for Press freedom:
- Freedom of expression plays a very crucial role in good governance, transparency and accountability.
- In the absence of an institution to raise fair questions against the Government actions, it is presumed that the Government is given a free hand to decide on policies without any accountability.
- Defamation and Sedition charges should be used more objectively. State has to restrain from slapping sedition charges, even for genuine criticism against its actions.
- The attitude of Government authorities has to change – From viewing press as opponents to viewing them as enablers of inclusive sustainable growth.
- The Government and its agencies should take necessary measures to ensure protection of journalists – Investigation and conviction in crimes against journalists has to be increased.
- Citizens at large and civil society in particular, have to take proactive initiatives to convince the Government to ensure security of Journalists.
- At the same time, press has to maintain its standards by avoiding false news reporting, sensationalisation of news, etc.