Land, Law and Resistance

LAND ACQUISITION AND RESETTLEMENT BILL

and ethics – even when such articulations are made in a retroactive manner, in the event of dislocation. This concept of com munity broadens the normative under standing of citizenship from its affiliation to possessive individualism. The art of democratic policymaking recognises this

expanded notion of citizenship and aban dons the utilitarian bias, and creates a less repressive society. References Dalton, Clare (1985): “An Essay in the Deconstruction of Contract Doctrine”, Yale Law Journal, 94: 997-1113.

Land, Law and Resistance Kenneth Bo Nielsen

So far neither the law nor the courts have been of much use to the victims of forced expropriation of land. From the point of view of subaltern agency, the Land Acquisition Bill may well end up making only little, if any, difference. What has worked so far has been the skilful integration of a multiplicity of subaltern strategies into a broad repertoire of contention that has included agitation, confrontation, mediation, violence and, not least, party politics.

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oth the new Land Acquisition, Re habilitation and Resettlement Bill, 2011, and the discussion draft that preceded it, have been subject to criticism from activist and civil society groups, who see it as yet another instrument that will facilitate the transfer of resources to the private sector. While a reform of the law governing land acquisition in India was certainly long overdue, the present fetishi sation of the letter of the law among groups in civil society as the key instrument through which to protect the interests of subaltern groups ignores the multiplicity of sites in which subaltern resistance to displacement in fact takes place. In this regard it may be instructive to take a step back to examine the specific role and operations of the law and the courts in recent cases relating to forced land acquisition. Based on an analysis of two cases from West Bengal (Singur and Nandigram) this article argues that neither the law nor the courts have been of much use to the victims of forced expropriation in the first place; and from the point of view of subaltern agency, the new Bill may well end up making only little, if any, dif ference. What has worked so far has been the skilful integration of a multiplicity of subaltern strategies into a broad reper toire of contention that has included agita tion, confrontation, mediation, violence and, not least, party politics. Recourse to the courts has figured only marginally.

The (New) Law of the Land Kenneth Bo Nielsen ([email protected]) is at the Centre for Development and the Environment, University of Oslo, Norway.

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The new Land Acquisition, Rehabilitation and Resettlement Bill, 2011, which replac es the old colonial act from 1894, is pro moted as a solution to the twin problems

Marx, Karl (1976 (1867)): Capital Vol 1 (London: Penguin Books). The Land Acquisition, Rehabilitation and Resettlement Bill, 2011, introduced in Lok Sabha on 5 September 2011, downloaded on 10 September 2011 (from http://dolr.nic.in). Ramesh, Jairam (2011): “Foreword” (to The Draft National Land Acquisition and Rehabilitation & Resettlement Bill 2011), downloaded on 2 August (http://www.rural.nic.in/Final.pdf).

increasingly faced by many state govern ments over the last few years: how to at tract and facilitate private capital invest ments, while at the same time preventing discontent amongst an increasingly mar ginalised and angry peasantry from boiling over (Levien 2011: 69). Some of the specific solutions in the Bill are indeed innovative and deserve mention. The Bill integrates the question of dis placement with that of rehabilitation; it expands the definition of project-affected population considerably; it specifies in greater detail the controversial notions of public purpose and public interest; it restricts acquisition of irrigated multicropped land; and it increases the rate of compensation, and makes it mandatory for private companies to obtain the con sent of at least 80% of the project-affected families. Compared to the draconian nature of the 1894 Act, these improve ments are not insignificant. Yet as was also the case with the draft Bill that preceded it, the Bill in its present form has been subject to criticism from many activists, and civil society groups. It has been portrayed as making the process of acquiring land easier by retaining a relatively undiluted notion of eminent domain; and of facilitating rather than checking the transfer of resources to the private sector (Desai 2011) and/or the urban elite (Maheshwari 2011). Others have sug gested that the government’s hidden agenda has in fact all along been to reduce the capacity of the poor to resist (Levien 2011). Rather than being pro-poor, it is seen as a piece of legislation aimed solely at alleviat ing the worst effects of primitive accumu lation, which merely facilitates the continued and relatively peaceful rapid growth of corporate capital (cf Chatterjee 2008). The underlying point, it seems, is that the law should have gone much further in securing the rights and legal empower ment of the poor. While these are no doubt

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important points of criticism, they may well be regarded, from the point of view of the victims of forced expropriation, as largely semantic questions with little bearing on political practice and strategy. From the point of view of the many antiland acquisition movements that have sprung up across India, the letter of the law has so far been of relatively limited signi ficance. Generally, the courts have been unresponsive, or have adopted a handsoff attitude that has in fact ended up endorsing “all kinds of land acquisitions for private companies” (Desai 2011: 97), and it is not given that the new Bill will change this. Hence, from the point of view of subaltern agency, the courts have been neither the sole, nor indeed the most effective battleground, and the present tendency among civil society to fetishise the law as an important site of empower ment, may therefore resonate poorly with their lived experience of those actually fighting dispossession on the ground. In what follows I seek to substantiate my argument by revisiting the two cases of resistance to forced land acquisition that I know best, namely, Singur and Nandigram in West Bengal. Both were, incidentally, instrumental in bringing the troubled re lation between capitalist development and displacement to the attention of the larger public and policymakers.

Resistance without the Law The case of Singur, where approximately 1,000 acres of farmland were expropriated in 2006 to make way for a Tata small car factory, is well known. The movement in Singur drew into its ambit a number of urban-based civil society and activist groups, whose members were educated and well versed in the language of human rights and law. These groups were instrumental in framing the agenda of the movement in precisely this codified language. Several non-governmental organisations (NGOs) conducted people’s courts and tribunals, where the Left Front (LF) government stood accused of violating the rights of Singur’s small and marginal peasants. One such tribunal was convened to gather and present “evidence” in the presence of six “presiding judges” (retired high court or Supreme Court judges). The tribunal subsequently released a 34-page verdict in

which the LF was found guilty of violating international human rights; the funda mental constitutional rights of Indian citi zens; the 72nd and 73rd constitutional amendments on local governance; and much more (IMSE 2007). Yet this view of the world as populated by rights-bearing legal subjects, and the concomitant preoccupation with laws and international conventions, may well generate more enthusiasm and fascination among civil society groups than among the rural victims of dispossession. It is noteworthy that the unwilling farmers of Singur did not immediately take their grievance to Court when they learnt that their land was targeted for expropriation. Instead their first priority was to organise to resist. They formed a committee to coordinate the protest movement, and under its guidance a number of public demonstrations and meetings were held, and roads and railways were blocked. On several occasions the protestors adopted an aggressive and confrontational stance against visiting representatives of the LF and Tata Motors, and their agitation was met with police repression more than once. With the entry of Mamata Banerjee and her Trinamool Congress, the Singur protests were propelled to the level of state and nationwide politics. This generated consider able public pressure on the LF to withdraw from Singur. The land losers continued their protests throughout 2006, while the committee simultaneously sought a medi ated solution by dispatching a number of deputations bearing petitions, memoran da and letters of protest to the local block development officer and district magistrate. Yet in spite of this on-the-ground opposi tion the land in Singur was acquired and fenced in December 2006. Only after these other avenues of contention – petitions, pro tests, violence, and mediation – had been effectively closed off did the law courts be come an important arena for the unwilling farmers: tellingly, the majority of the peti tions (seven out of 11) were not filed until 2007, i e, after the de facto acquisition of the land. A number of these were filed as public interest litigation by civil society groups or activists (Nielsen 2009: 129-31). While Singur’s land losers were for a time intensely preoccupied with the

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progress of “their” case through the legal system, they pinned their hopes on the courts not because they expected a favour able verdict, but because they had no other avenues of contention left. Many of them had, in fact, during the course of the move ment, encountered the state’s law enforce ment agencies and the courts primarily as sites of harassment, intimidation or violence. Hundreds of farmers had been injured during clashes with the police, while others – including women and children – had been arrested, many on false charges (Nielsen 2009: 123). Moreover, the letter of the law and the practice of the courts at the time were very unlikely to favour the farmers (cf Guha 2007). As in many other similar cases, the Court’s interpretation of the notion of public purpose would prove decisive. More often than not, as Ram anathan (cited in Levien 2011: 68) has noted, the courts have, during the last two decades when the states have directly or indirectly acquired land for private com panies, refused to entertain petitions that questioned whether the setting up of private industries qualified as a public purpose. So too in the case of Singur. The Calcutta High Court summarily, in 2008, dismissed the Singur farmers’ petitions and ruled that: The materials placed before us do not lead to the necessary or even reasonable conclusion that the government machinery identified itself with the private interests of the company, forsaking public interest. Public purpose does not cease to be so merely because the acqui sition facilitates the setting up of industry by a private enterprise and benefits it to that extent … On the face of it, therefore, bring ing into existence a factory of this kind would be a purpose beneficial to the public even though it is a private venture (Calcutta High Court 2008: 10-11).

In light of a ruling like this, it is hard to see how the 2011 Bill could contribute to further easing the exercise of eminent domain by the State. The efforts of both the bureaucracy and the courts at crucially diluting the notion of public purpose have long ago removed most legal hurdles, from the point of view of state governments (Desai 2011: 97). The verdict was appealed to the Supreme Court, but Singur’s peasants have long since lost interest in the case. The anti-LF wave that swept across West Bengal,

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generated in no small measure by the con troversies over land acquisition in Singur and Nandigram, eventually culminated in the 2011 state elections, which brought Mamata Banerjee to power. Both Singur and Nandigram figured prominently in her election campaign, during which she vowed to return 400 acres from within Tata’s now abandoned factory to its origi nal owners. After the elections, Mamata Banerjee’s first cabinet decision as chief minister was to return the said 400 acres to the unwilling farmers by enacting the Singur Land Rehabilitation and Develop ment Bill, 2011. Evidently, from the point of view of subaltern agency and resistance, the legal system was never of much use in the struggle over land. Public agitation and linking up with the party political system provided swifter and more efficient ways to justice. The events that transpired in Nandigram in 2007 to an even greater extent illustrate the relative lack of importance that people who seek to oppose land acquisitions attach to the legal system. In Nandigram a whop ping 14,500 acres of land were all set to be acquired for a chemical hub and special economic zone, but as rumours of the acquisition began to circulate locally, angry villagers staged protests. They drove out the police and damaged roads and bridges, dug trenches, and blocked yet other roads with boulders and tree trunks. Soon vil lagers clashed with CPI(M) supporters and engaged in gun battle. Two months later, large contingents of police moved into Nandigram to “restore normalcy”. They were joined by armed gangs of CPI(M) sup porters seeking revenge. Fourteen villagers were killed, and upwards of a hundred injured, while several women were report edly raped. The atrocities in Nandigram soon forced the chief minister to relent. The LF decided to abandon its plans for acquiring land in Nandigram, and to relo cate the chemical hub elsewhere. In addi tion the LF offered, perhaps to make amends, generous sops for Nandigram: in 2007 and 2008 the LF conducted several rounds of patta distribution among Nandigram’s rural poor, and it increased the funds under rural infrastructure development to Rs 1,500 crore, up from Rs 600 crore the previous year. It also identified rural roads, irriga tion and agriculture as priority areas under

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the new budget, areas which are a prime concern for Nandigram’s rural population (Nielsen 2010: 212-13). During a visit to Nandigram in 2007 I enquired among movement supporters to what extent they had drawn inspiration from the resistance in Singur. Many said that Singur had shown them that it was in fact possible to challenge the LF’s land acquisition policy through coordinated, sustained and confrontational political action. But many added that the farmers of Singur had committed a tactical blunder by just organising rallies, and by liaising and negotiating with government officials. Because of this, Singur’s farmers had not only lost their land, but had also been bogged down in a court case that could potentially take years to resolve. Clearly, the Court was not where one wanted to be. In Nandigram they had therefore chosen a much more confrontational and violent course of action, believing that only spec tacular public shows of force, will and strength could force the LF to back down. This did indeed work, although the extent and nature of the violence unleashed by the police and CPI(M) cadre had shocked many.

Conclusions Admittedly, the two cases presented above are neither paradigmatic nor are they entirely representative of the all-India picture. While the courts have in many cases provided little assistance to the struggles of the poor against expropriation, there are examples of judgments espous ing a more pro-poor stance on these issues (Desai 2011: 97). To wit, the high courts of Orissa and the Punjab and Haryana have ruled against state governments in land acquisition cases, and have thereby con siderably aided the struggles of land losing communities. The cases presented here do, however, tell us something about the complex rela tionship between popular politics, law and subaltern resistance. While policymakers, activists and civil society may privilege the law as a particularly important site in which to work for the rights and empowerment of the poor, there is in fact no shortage of legislation which looks good on paper, but which nonetheless fails to make any impact in real life. What seems to matter most, from the point of view of subaltern

agency, is whether legal practice is actually efficient in challenging the State. And because this has historically often not been the case, going to court figures at best as one among many avenues through which the victims of expropriation seek justice. And it is often neither the pre ferred route, nor is it by any means the most efficient. As the cases from Singur and Nandigram show, it has been sustained engagement in both popular movements and party politics in what Chatterjee (2004) calls political society that has generated the most effective forms of resistance. The proposed new legislator is unlikely to alter that fact in the foreseeable future – for better or worse. References Calcutta High Court (2008): Ordering Portion of the Judgment Dated 18th January 2008 (Kolkata: Calcutta High Court). Chatterjee, Partha (2004): The Politics of the Governed: Reflections on Popular Politics in Most of the World (Delhi: Permanent Black). – (2008): “Democracy and Economic Transformation in India”, Economic & Political Weekly, 43 (16): 53-62. Desai, Mihir (2011): “Land Acquisition Law and the Proposed Changes”, Economic & Political Weekly, 46 (26 & 27): 95-100. Guha, Abhijit (2007): Land, Law and the Left: The Saga of Disempowerment of the Peasantry in the Era of Globalisation (New Delhi: Concept Publishing Company). IMSE (2007): International Peoples’ Tribunal Report: Eviction of Peasants, Violation of Human Rights in Singur, Nandigram and Other Areas in West Bengal, India (Kolkata: IMSE). Levien, Michael (2011): “Rationalising Dispossession: The Land Acquisition and Resettlement Bills”, Economic & Political Weekly, 46 (11): 66-71. Maheshwari, R Uma (2011): “A Bill That Facilitates Displacement?”, The Hindu, 12 September. Nielsen, Kenneth Bo (2008): “ ‘Not on our land!’ Peasants’ Struggle against Forced Land Acquisi tion in India’s West Bengal” in Dan Banik (ed.), Rights and Legal Empowerment in Eradicating Poverty (London: Ashgate), 217-46. – (2009): “Farmers’ Use of the Courts in an AntiLand Acquisition Movement in India’s West Bengal”, Journal of Legal Pluralism and Unofficial Law, 59: 121-44. – (2010): “Civil and Not-So-Civil Forms of Protest in West Bengal” in Heidi Moksnes and Mia Melin (ed.), Power to the People? (Con-)Tested Civil Society in Search of Democracy (Uppsala: Uppsala Centre for Sustainable Development), 210-13.

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