Transgressing The Boundaries: Implicitly Defeating Beneficial Legislation

There are two problematic findings/statements by the Hon’ble Judges in point (ix) of the conclusion. One is that, "it is only in the rarest of rare cases that the Government may consider floating any scheme for rehabilitation of the displaced persons over and above paying the compensation in terms of money". This might be true regarding acquisition of lands under the now repealed Act of 1894, but not after the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 came into force from January 1, 2014. Rehabilitation to all the affected and displaced persons was provided as a legal right by the Legislature, i.e. Parliament of India.

The backdrop to that Act and the wide range of consultations that were undertaken in enacting the said legislation are well known. The tone and tenor of the observation and advice, cautioning against Rehabilitation in every case, is completely against the provision of a validly enacted law (Act 30 of 2013). The said observation amounts to entering the domain of policy making of the legislature against the cardinal principle of separation of powers. The said observation seems to have been made because the relevant provisions of law prevailing as on today were not properly placed before the Hon’ble bench. The Courts often sternly disapprove the tendency to adjudicate issues which arise out of a statute, without appropriately taking note of the contents. In this case, the Court itself seems to have become the victim of non-articulation of the letter and spirit of the Act 30 of 2013, especially the schedules. It seems to have missed the attention of an otherwise alert Court.

The second statement in the same paragraph goes much further, i.e, "At times, the state government with a view to appease its subjects, float unnecessary schemes and ultimately land up in difficulties". This is nothing but belittling the powers as well as the wisdom of state and national legislatures. The Court does not provide any basis for literally ‘snuffing out’ the Act 30 of 2013 and to show that the legislature was wrong on this said policy aspect. This observation is completely against the well settled principle that Judicial review should be limited to checking legality, not the wisdom of a policy.

Another problematic observation can be found in point (x) at the 'Conclusion' part of the judgment. Point (x) provides that, "Ordinarily rehabilitation should only be meant for the persons who have been rendered destitute because of loss of residence or livelihood as a consequence of land acquisition. In other words, for people whose lives and livelihoods are intrinsically connect to the land". Ordinarily, there should not be any serious objection to this observation. But it goes against the prevailing law, i.e Central Act 30 of 2013, which provides Rehabilitation to every project affected family as a right, not only to destitute families. There is a clear difference between being affected and being rendered destitute. The latter indicates severe impact and provides for exclusion, whereas the former provides for just an experience of impact and indicates inclusivity. It is well known how the executive works at ground level when there are even slight chances of exclusion, with high levels of corruption and discretion. That is the reason the Act 30 of 2013 provides for a transparent and elaborate procedure under Sections 16, 17 and 18 in terms of door-to-door census, public hearing, etc, which the executive finds it convenient to completely bypass, in the absence of judicial scrutiny.

The Hon’ble Court contradict itself in the subsequent observation in point (xi) of the "Conclusion" part. While acknowledging that there is some space for Rehabilitation for the persons who lose their livelihood in the earlier observation, the Court make a contradictory statement that, "We have made ourselves very explicitly clear that in case of land acquisition the plea of deprivation of right to livelihood under Article 21 of the Constitution is unstainable". In a situation of acquisition of land, say of majority extent in a village, reducing the agriculture work opportunities to almost nullity, the livelihood opportunities of landless agriculture workers are highly reduced, and they are adversely affected. While the law provides for Rehabilitation for them, and if the executive denies the said entitlement, it is obviously a violation of their right under Article 21. They cannot be brought under Article 300A, as they have no personal property. Coming from the highest Court of the Country, such blanket and definitive statements only embolden the executive, while rendering the rights of lakhs of agriculture workers, artisans and marginal farmers who are dependent on agriculture as their principal source of livelihood, completely defenceless, vulnerable and rather destitute. It is further important to note that the provisions under Section 3 (c) read with Sections 16, 17, 18, 31 and the second schedule of Act 30 of 2013, mandate rehabilitation for every land owner losing their land, irrespective of the extent of loss of land and livelihood sources.

It is also intriguing why the Hon’ble Court in this case ordered to circulate the copy of the Judgement to all the High Courts. No doubt, they have the power to order such circulation and vast powers under Article 142. But the observations in the above judgment pose a danger to the powers of the Parliament, legislatures of the respective states in enacting laws and laying down policies. Often, we see the Constitutional Courts refraining from interfering in policy decisions, particularly when affected persons challenge the public purpose proposed for acquisition of their lands and properties. But for the reasons best known to the Court itself, in this case, the Supreme Court is very much willing to walk that extra mile, apart from making adverse comments on the wisdom of the States, implicitly.

The Judgment, on one hand discusses at length, various precedents and tests about ratio decidendi and the binding or non-binding nature of precedents and particularly obiter dicta, but Court ended the Judgment making general observations in the form of obiter dicta, regarding rehabilitation rights of the affected persons, without the backing of any well settled principles or of any sound interpretation of provisions of any law. This makes the present Judgment ineffective as a precedent, as it fails to meet the test laid out by a five Judge Bench of the Supreme Court in State of Orissa Vs. Sudhansu Sekhar Misra and others (AIR 1968 SC 647, Para 12), i.e., "The enunciation of the reason or principle, on which a question before a court has been decided is alone binding as a precedent".

Usually, far reaching comments and rather well-intentioned remarks by Courts, especially the Apex Court, without ground level data and extensive analysis of statutory provisions, lead to difficult situations. When such directions were given regarding the SC ST (Prevention of Atrocities) Act and Forest Rights Act, the consequences of the same are well known. It is also not out of place to mention that, by making such observations, the bench is only undermining numerous Judgments of the Supreme Court itself, including a landmark judgment by a three Judges Bench of the Supreme Court in Bondu Ramaswamy case (2010 7 SCC 129), without dealing with them. In the said case, noting the years of hardships faced by the land and livelihood losers, on the name of land acquisition for development, because of arbitrariness of authorities and limitation in the Colonial law, the Hon’ble Supreme Court had recommended for a revisit of the Land Acquisition Act 1894, by the Law Commission and Parliament. As a result of the said Judgment, the process of revisiting land acquisition had speeded up and resulted in the enactment of The Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement, 2013, which, for the first time made Rehabilitation an integral part of any acquisition in the name of public purpose. The restatement of the reminder made by the Hon’ble Supreme Court in the said case seems to be a necessity now, ‘that the development authorities exist to serve the people and not vice versa.’ The Court ought to have noted that the same applies to the Legislature as well as the Judiciary.