You are on page 1of 7

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

This is an overarching expediency. insidiously but definitely. as a measure this approach. It also is the context from vintage. 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.2 A representation principle of processual justice. statute is the Land Acquisition Act 1894 unabashedly used the displacement caused when a court finds that 'preferential' [LAA].not only the law directly effecting Act lays down a procedure by which the land displacement.whetherof procedure. A study of the law reveals that it The Statutes a law that does not acknowledge displacement and its traumatic overtones. Yet. 18 Mar 2016 09:53:07 UTC All use subject to JSTOR Terms and Conditions . For calculation of cost-benefit externalises these costs. endorses. This is the which is denied to the large-scale. and so over the lives of dramatic effects that displacement has on the acquisition of rights over land from the people. The LAA is not isolated in its relevance to displacement. not exhaustive. challenge. In it is a recognition character of justicing. 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 inadequacy of this law to deal with the problems thrown up by large-scale traumatic. and compensation is the limited replacement the morality. but also laws of labour. The law is ill-equipped to value connotation. 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. in the definition of public purpose in the act is established user and an intricate mesh of context of displacement would then be. the continuance of the rights justiciability. The power of the of arbitrary state action. It is to this that the which continues to this day. The statute. acquisition provides the process. 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. however. the implications it has for displaced the lives of communities into a cost.162 on Fri. rights. For it does not accommodate been invoked to lend respectability to making to take the edge off dislocation follo lilt. an unavoidable event. The utilitarian principle of maximum purpose is a definitive statement of alignment the inadequacy. callousness or arrogance. The law is ill-equipped to counter this attitude and in fact abets it by lending the force of state power. the nature of legal imagination. only to that displaceieniit. an unavoidable as performers for carrying out the public dislocated person: experience has revealed event. Judicial to exercise choice as to whether to part with an interest. displacement that it entails. 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. This person -often in the form of money principle that was held out as the antithesis compensation . and often focus of this essay.is derived.212. something no rights in the displaced persons to constitutional mandates. which Constitution . The the Forest Act was aware that long. and the related concerns of a relationship between law and justice.even while accepting the vests the statewith ultimate control over land poverty of the displaced. These conservative of the rights of the displaced person. are not There is an inevitability about the for payment of compensation. The relevant concerns. the the rights and lives of the displaced person.199.acquired alegitimacy communities. 1996 This content downloaded from 210. 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. and inequity. and is which the relationship between a community is the Land Acquisition Act 1894.) Compensation. There is the Forest Act of 1927 which anticipated the displacement of 1486 Economic and Political Weekly June 15. lives of those uprooted. and the development categories. and justice and compensable. even as some significance that the act is of colonial rehabilitation. within its territory. Further. what can be seen in its rooted it redefines rights. (The inclusion of companies the acknowledgement of the individual even whole communities. in the compulsory acquisition. 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. it lack of empathy may partially be attributed. communities. constitutionality. 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. The prescription contained in a or affected' by projects: which yet continued of the problem of displacement.' Expediency. and reinforces. against the equality promised in the state's power of eminent domain. and the 1984 dependency characterised the rights it would amendment which was an attempt to update dislodge. even whole communities. And such a rehabilitation through state intervention. the statutory respons- displacement. of is to be acquired: an endorsement of the the doctrine of eminent domain gives to the crime and of illegal living. acquire the land: the act therefore provides of rehabilitation and resettlement. The displacement has not affected the thoughtless regularity with which the law is invoked. power to the state beyond legitimated is avowedly for a public purpose. however. And even while it recognised determines judicial interpretation of which was not easy to dislodge. and in circumstances of mass public interest. notions of individual ownership and state 'Public purpose' emerges as thejustification. rights orof sanctions . this position. 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 law has been constructed on ibility of the state ceasing upon such payment. statute . and calls into question individuals who have legally recognised. The that seems to evade the law. of substantive to ignore the existence of displaced it will be seen. The state is.Displacement and the Law Usha Ramanathan The paradigm of development that has found favour with planners makes displacement of large numbers of people. Statute law determines the process by The legislation at the centre of the debate does not mention resettlement. inherent in happiness for the maximum number has and priority. again. It denies to the person proferred as an argument by the state. And. The statute was one statute. state an enormity of control over land and of this impoverishment demonstrates the related resources. retains its market communities. It is of unwilling to take the responsibility of and its resources may be affected. inclusive. law . essay will attempt an understanding of these concepts as they exist within the law. 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.

Utilitarianism is a pragmatic philosophy. to reassess the meaning of undertaken by government. and to 'regularise' the procedure authority. Instead.212. it is government property that is involved: resting with the state to determine what And the rights.and mass displacement is an residential purposes. that the of its functions under this act' is 'deemed' way for the ritual of the inauguration in the Manoeuvres. is neither in the statement of the happiness of the greatest number.. The language of be found extensive powers enabling state of empirical knowledge. 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. Differently from of the system. have not good'. If. and displacement is an unstated grudgingly transported displacement into dislocation for the period that the army needs incident in this process. altering or repairing and using the railway' . Public purpose works to similar protector of the tree. these transactions are demonstrated its utilitarian potential. the dam affected. generally. on popular acceptance. maintaining. With is an ill-kept legal secret that the original this one exception. those displaced for the township. The exercise of ment ethic. they are placed in an adversarial of displacement was acknowledged . If there would have it 'do all.from those who made by 'putting it on a legal basis'. could be the administration can then act only with the constitutes public purpose.the Of the public purpose.162 on Fri. including in their number ensure more total 'exclusion or removal of an irrebuttable superior order. It is this reluctance to propositions. while it limited its payment of compensation. deserve a further invoking of the acquisition as absent in its essence from this legislation. hills. 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. 18 Mar 2016 09:53:07 UTC All use subject to JSTOR Terms and Conditions . It is in the for the power of compulsory acquisition of generates. for legal recognition.. in the its legitimacy. roads. and laws all utilitarianism. Even as the statement. Displacement. while advocating the seeking of the greatest has hardly changed. It does not language of the law. the grinding wheels of the law The displacement is. the reason Economic and Political Weekly June 15. As for the displaced immensity and immediacy of the problems effect. development. and the LAA is Practice Act 1938 was avowedly enacted. or any streets. pursuing state understanding open spaces be available to the army for its too often are reproduced in their own image. to redefine the implementation of any scheme involved that makes the law suspect. Interestingly. those to be dislodged as the Field firing and artillery practice needing to presumption that public purpose is a priority canal progresses.. any harm is sustained by person or patent injustices that have resulted from definition of public purpose. 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. under the LAA.and the popular of displacemienit. What is public purpose for a category people. to relocate expediency. and the displacement is posited on the 'larger public difficulty in resolving it equitably. For the purposes of II constructing or maintaining a railway. 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. There is. where recognised. or to device a procedure in the Railways Act of 1989. nor is it its apparent concern. The extent of have to act to protect. the process. the displacement of persons.ite power is governed by the identification good which is invoked tojustify displacement of the government. While development is the larger ing the attention of at least six departments st. acts necessary for making. as of use of the law to further one public purpose severance of the relationship between a communities. In the company of the "poor the state. Field Firing and Artillery to be for a public purpose. political will and the induction controlled by the state". 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. involuntarily replaced by compensation. yet it is implicit in its very a reiterative quality to the law. among others . under or over any lands. which will require the state to consider the the powers is vivid in the clause which the interests of the people. The expedient authorities to take over control of land and of limiting public purpose to restoring some related resources. it may result in creating conditions which may person and his property which may be seen has not reckoned with displacement. vulnerability is unmissable. invoked to effect the acquisition. across. In common with situations for which it could never have been concern to making land available for other legislations which facilitate intended . It reasons that the state will public purpose. The land required 'for the discharge across the Narmada . in reality. of public purpose may cause relatively more field firing and artillery practice.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 habits of law-making introduce on the affected population.' "as it thinks proper".199. the These are but instances of a statutory order There are incompatibles that continue which is so constructed as to legitimate.of the people depended on individual limitation on this power omnibus is when deliberately open.. in 1994. valleys. the one impracticability about detailing every circumstance which may need state action under these laws. The LAA was amended it: it may be re-habited thereafter. this act a public purpose is conclusive. Law depends. 1996 1487 This content downloaded from 210. and advance. Again. railway. 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. In 1984. and unresolved in the law of public purpose.illustrates of persons or domestic animals'. did admit to the reality displacement.. There is an totality of the public good involved. without the constraint for projects. have or landless or . with the poweressentially determinations made by a state functionary. with but a passing thought to what condemnation that has followed. The to bring displacement into the inclusive process. The large scale of displacement land that has been prescribed for the statutory accompanying the progress of the projects be harmed. The law within the LAA. The facilitate. 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. 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. It consent of the concerned government. Yet-even as the inex itable. a permanence in the 1 960s. a mere process. To get the law to revise its "persons displaced or affected by reason of acknowledge the extent of the responsibility priorities. this act concentrates power in outstanding example. tramways. there is statutory provision for the employing the extant statutory regime to provision of the law. a Public Purpose railway administration may construct 'in or upon. Yet the nature of The morality of the law which effects the problem of displacement. it has attributed a cost to the acquisition law. 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 .. In its ordering of priorities. this possibility. Here is This perhaps is at least a partial explanation distress in real terms than the benefits it cause again for displacement. The express property. the power law. It is couched in the language of caused the law to re-work the meaning of 'public purpose'.

The doctrine of eminent domain asserts scribing powers. Any that the state cannot be required to acquire. in the case is obvious: for it would amount to a whittling down of state power. permits owner or occupier of the land is. to of land which sunders the relationship in the nature of this power.' 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.an unlikely and Minerals Pipelines (Acquisition of Right of User in Land) act 1962 is a case in point. would not restore to the displaced contradictory. it would impel acquisition. It becomes apparent holders of rights. read the statement of of participation to the individual. the incentive to are reluctant to make acquisition dependent minimise the take over of rights is lacking. temporary or partial acquisition.land is not necessary. is considerably eroded. nor to question the changed in areas which are removed from what may priority. harm and injury sustained. is founded on would then ignore all that falls outside this resources within its territory. The nature caused.. objects and reasons that accompanied the opportunities . The situations which may prompt the state scapegoats.' compensation inexpedient. partial acquisition represents a lesser loss than to compensation. to be invoked to further the need. being a percentage (now fixed at laid undergroundl. to establish a which. has a wide. sometimes exercised. Therefore. the moral high for the purpose for which the power is ground of acquisition. rights of the person who has lost his land through law that mass displacement has to the acquisition. for a period. Yet. sufficient to deter the state. 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".to protest the acquisition. It is an attribute of eminent permanent. the state may decide to restrict for the furthering of 'public interest'. and of the rights them- the intervention of the state. Acquisition effects the transfer of rights It is interesting that this act was conceived from a person to the state. Breakdown of "Although land can be acquired outright for communities and mass displacement are not laying down pipelines under the LAA 1894. Statute law has a binding effect which has outright acquisition. "Since the petroleum pipelines will be the extent of the acquisition.212. however. outright acquisition of claim to interest in the rights under thirty percent) of the compensation amount. It is not the limited extent of recognition.162 on Fri. right to use the land in the government. The public good. as it has evolved.. the over- to the state access to all land and related acquisition of land. and of rights of collectives. Public purpose. The process of impoverishment is over land. domain that the consent of the dislocated reduce the trauma of displacement where it person is irrelevant to the process. 1996 This content downloaded from 210. The law is because of the resistance that invariably concerned with the individuals whose rights attended acquisition under the LAA. acknowledging the impoverishment of acquisition will have no effect on the the state. the procedure for such acquisition is long- within this recognition. 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. inevitably set in motion. to the law. This partial acquisition vests the numbers. from the conservation of wildlife a conscience. or to dissent that where the costs of acquisition are selves. What is not within the law's as a necessary right. providing an understanding of occur after the completion of the transaction the invasion of rights is the prerogative of poverty. IV Compensation of dams to the resettlement of displaced If the law of acquisition were to possess people. assumption of control is prescribed by statute. Where the purpose for exercise of the sesses carries a provision for compensation which is intended to soften the blow. to contest the quantum of of these pipelines it is considered sufficient compensation . are to be acquired. The notion of total compensation being unknown have to remedy this attitude to displacement. Illustratively. Field firing and artillery practice is facilitated by a law which provides for the exclusion of persons.". the totality of the rights: knowledge. III Eminent Domain damage. It does not account for the drawn and costly". the individuals as part of a collective. would require drawing upon empirical change in the status of the land which may and compensate. 'rhe compensation is then purpose. but the experience of costs and ken cannot be addressed by the law. from land on which they may live and work. it may not be an to acquire private rights may result in unmixed blessing. The Petroleum ACQUISITION the system to their advantage .are provided in the law. The a redefinition of priorities. Perceiving the effect of from industrial growth to slum clearance. In consequence. 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. reach: from the construction person any right to the land. Every law that dispos- demonstrable loss. for instance. Procedural part that coercion plays in the law. into this transaction. 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. Bill. loss or injury that may result is Statute law. It the right of the state over land and related more than the purpose needs. It is also occurs and to introduce justice and fairness The LAA. the mainstream. except in cases where the displaced persons are able to use the nature of its acquisition. or Compulsion is tempered by a solatium. externalises mass displacement. the limited understanding of compensation has eroded its moral base. 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. eminent domain as "exacting greater sacri- There is little answerability in the law of of the activity which provokes temporary acquisition. This treats the displaced person as a willing seller.199. The acquisition process provides a degree event where poverty or powerlessness characterises the population. envisions acquisition to be enlisted to minimise displacement. A revised rendering of the law would be called. in defining rights and pre- compensated under the law. reduces the recognition of The wisdom of the law in not acquiring a problem to manageable proportions. The process of and the obstacles to the process are not displacement and speak of rehabilitation. or the notional value in the market. Yet. in excess of that needed resources. The meaning given to compensation has been dominated by its equation with the market value. 18 Mar 2016 09:53:07 UTC All use subject to JSTOR Terms and Conditions . The of individuals as individuals. The content of the law between the private holder and the land. the state to neglect all but the defined rights entitled to continued use of the land. it may be found in its provision and forests to the promotion of tourism. it is ill-equipped to internalise The perception of displacement as a tragic eminent domain power could be served as choice. State from the state's perceptions of public good effectively contained with the law's help. It is perceived expediency. 1 488 Economic and Political Weekly June 15. and recognising the inequity of The doctrine cf eminent domain ensures powerlessness. of compensation. or of have influenced the course of the law. Aiso. 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.

The difficulties in attributing a implementation of projects. interpretation of a statute. breakdown of support structures. yet humanity.8 The With its defective vision distorting iand. economic imperatives statutory force' . Policy is not The life of a statute begins on the date token changes to the LAA. Statute law. increased susceptibility to exploitation where of rehabilitation legislations by some states.it cannot therefore be made in the law for computing compensation. mass legally recognised cost.162 on Fri. or is struck down by a court for being The trauma involved in displacement. which explains the in contradiction. and rehabilitation is community. or rights. effect mass displacement in the cause of the pledge of the policy. This is reflected in the alone. lost. but are have been artificially.Yet.that the policy 'has no displacement. changes The neglect of displacement in the law of regaining the economic base.has not excited the compassion characterised by a desire for continuity and certainty. of the law and the stated intent of policy. need for changes in the law. the law which enables displace- is intended to temper the patent injustice of ment neither recognises displacement as asking populations who have little. when the displacing entity is a mere mention in the law. statute. it will take unrelenting determination to displacement . including land for gradual. none and in the mushrooming of policies of and a policy. a binding obligation of the state. employment and self- employment opportunities. Particularly where they lend it enforceability. lives are not constructed around formal legal displacement of whole communities and rights. been addressed by the law: they have merely the awareness that priorities identified by has at best a persuasive value.199. it cannot be entertained providing for the replacement value of the compensation. displacement. the latter yields to the statute. or be replaced by a later indigence of displaced populations. it is not unknown for law's and to the public purpose involved in speak to concerns beyond income replace- providing for them. expeditiously. displacement is There may be a difference between the effect is of significance that. and unjustly. the reconsider its options. compensation and the impossibility of displaced prescribed by Parliament. house sites. takes sketched by policy. having spoken to the itself not questioned. project brings. Recognising the characteristics of the may be generous. Policy. Rehabilitation recognition of displacement into the law. Where displacement of the law. then. is modified by a later communities. or even just be discarded. A policy may go and executive understanding. For another. 1996 1489 This content downloaded from 210. Multiple displacement . in the law are a response to pressures that acquisition. policy may assist in the has been prescribed. training.6 Where there is a conflict between a statute Again. 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. and acknowledging the involuntary implications of eminent domain. relocation and compensation community services for schooling and health. protected populations are dislocated. displacement has not been a as a basis for determining rights. value to the costs of displacement have not Statute law is enactedby parliament. it may say.these are instances of the and assistance to start a new life in terms build the gravity of displacement into the law. and effect. nor engendered a sense of rehabilitate the displaced in consonance with is enabled by law. the inequality in the two theirprevious standardof living. The focus of the acquisition inadequate remedies provided by the law. acquisition. have it is either repealed. the introduction of the displacement dialect in or become outdated. while the right has to inhabit the responsibility. consideration shown to them by the policy. the right to return to lands acquired but not used as proposed. where it defines (or denies) rights. there are significant absences the national interest. it may counter with development. cash and other forms. safeguards which may work to minimise losses in terms of land. of large-scale displacement. relocation or something like this:7 construction of statute law being rehabilitation. as in the so constrained: it may subside into non-use. or of large numbers of people. and the containing of costs perceives between the rights of an owner or occupier and others affected by the traditional social system.and The projects involved. it may commiserate with the forced eviction. in any inexorably. or to ignore it. It is witnessed in in violation of the Constitution. fragmentation of communities. making market value an irrelevant hosts of villages as an invariable part of criterion. the law being essentially conservative. credit and resettlement.. To the extent that it is not compensation but a discretion to care that displaced population. where policy Decades of experience with the acquisition legislation. it may promise to resettle and in any fundamental way. process being the individual. able cost . nor does it use the for the public good. even if reluctant. suppressed. it may displace people. The costs of displacement the state threaten further and increasing bound by the statement in the law. possible poverty of displaced populations. in the enactment policy. 18 Mar 2016 09:53:07 UTC All use subject to JSTOR Terms and Conditions . is binding. The advantage of Economic and Political Weekly June 15. cannot be righted by policy A listing of entitlements of the displacement cannot be ignored. the law has been activated to challenged in a court for not conforming to event. This replace the statute. it does not take responsibility for restricted meaning imported into being under revision. Neither the decision to acquire. to pay laws has determined the contours of judicial creating altered rights. It may place a priority on reorder hierarchies of legal concern. it cannot however they prescribe norms of replacement. The difference that the law ation. it would need a change in the law to replaced by changes in land use that the a non-concern. and the fundamental in computing compensation have conspired displacement has been softened by policy. For of the state and planned growth. Rehabilitation. the power nature of the transaction. It rehabilitation. it is not. With the the ground for action! Or that the policy one. The emerging dimensions of the problem. of opportunities. However. Judicial language of resettlement. on the other hand. changes where an agricultural economy is to relegate displacement to the position of Yet. 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. it is not a right to ment. the norm that they improve or at least regain nor the computing of compensation. and stretches till is not sensitive to the displacement of populations resurrecting their lives. the unimaginative and free to be guided by policy. the Policies of displacement and rehabilitation. what is compendiously termed a simple expedient . the loss of a of acquisition. Its concern has been to provide making a conscious effort to rehabilitate persons displaced by earlier projects. Courts are been externalised. Requiring large stretches of land. from improper resettlement and rehabilit- The presumptions of public purpose. Unintentionally perhaps. the influence of policy on the acquisition laws is not likely to affect them Where it does. it may go on. with this testament attesting to its is also dependent on the market value. the not possess.. policy is the creation of the executive. it may assert its intention to by the possibility. the defining public purpose. With the exception of the occasional state prescription to be restrictive. The protection against overpopulation may follow. together impelled the state to publicly statute. introduction of the land. policy may be employed to realise the potential of the law. The a process for the exercise of the emrinent option of compensating land for land merits domain power. of this inhabits the law of compensation.212. the nmeasures may include compensation for Yet. are located none can deny that it extracts an unconscion- in remote areas. The escalating crisis distinction between law and policy therefore displacement often affects populations whose of displacement has been aggravated by the acquires considerable significance.

indeed it is an indication of In considering the petition of a people law. to holding destinies of the affected populations. the LAA. would justify a LAA. with regularity. it said.' rehabilitation continued unaddressed. courts are reluctant depicted to determine the extent to which to adjudicate on the exigencies of policy the law is responsible for. of the path trodden by every victim of reiteratively reinforced by the judiciary. policy. The laws of acquisition and public purpose may be invoked.'4 Episodes from the courts carry their own lesson: The test firing range near Itarsi uprooted tribals. 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. less inconsonant with justice. from the vicissitudes of displacement. and this could power generation causing people to lose be put to purpose in providing the experiential their assets and their capacity for subsistence. 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. inviting. have had to resort to the assurances of standard of compliance of policy is more migrant workmen are instances. is a well entrenched state power. It is not intended as a demonstration hand. and Public Interest stay impoverished'. It is user friendly . Yet. rebuke or paternalistic concern. The laws of beggary which have been represented but marginally in the the individual but with the totality. those whom it affects on to the downward non-negotiable. in its myriad manifest- are rehabilitated in a manner that does not policy is no substitute. have. mere promises of executive largesse to sustain of the displaced. It considered. It claim for jobs of the adult population. displacement. Acquisition. and while collecting the spent. is a prescription to displace. 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. the punish.'5 Acquisition and displacement. and policy has no more than relaxed than it is for the rights derived from The process of impoverishment may be persuasive effect. it was found that the common dangers that confront those displaced by the Rourkela Steel Plant. The displaced. and preferential IMPOVERISHMENT exaggerates the inequality between the striking it as excessive. right grouping together of rights of persons and fair that some people may become or similarly situated. to assert a right to NTPC policy for rehabilitation. Policy may account only partially process have been complied with. whose rights to be enforceable. the court said. reservoirs. The fact which is relevant here is that the displaced in theirendeavourto find acceptability during population. of life (and livelihood and dignity) will have law of compensation which converts a reached the courts. Impoverishment through the law attributes variously. 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". the judicial process is trained to attitudes. and for infusing from the court on how displacement was to into the process of displacement a recognition be effected. for instance. and the experience with conformity to the process prescribed in the to prevent the recurrence of such deaths. for positive discrimination! The distance The compulsory exaction of land. this implementation. and policy deals not with denuding rights. which would 'assure efficacy 'Their land'. and acknowledge the ment does not constitute a rational basis has been used. Baxi's concept of the possibility of neutralising such inequality Mass displacement. even where eminent domain slide to poverty. the case of the tribals in Andhra Pradesh. 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.they provide relatively easy against Article 14". The existence of poverty. Therefore. The reasoning of the court is influenced There is a pragmatism that the court then permits. mass displacement. the court found the between 1972 and 1993. 'Even if the is 'a dynamic process of public decision- representative petitions. inevitably. 81 persons had lost their lives relationship between law. apart from It is possible that the court found the claims for total absorption in. firing ranges.199. 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. 18 Mar 2016 09:53:07 UTC All use subject to JSTOR Terms and Conditions . the challenge raised on violation in containing trespass'. their they were. implying that displace- in this sense that the word impoverishment access to courts. The provision in the law for the land acquired'. impoverishment of a fundamental right. to haltingproject work till the displaced amendments to the law. they were 1490 Economic and Political Weekly June 15. the indignation displaced and those exercising the authority of the court testifies to definite judicial meaning into rehabilitation. existence of a community of interest.212. industry and LAA. 1996 This content downloaded from 210. Also. They were paid compensation for it. The law. employment. shows an awareness of the possible treat them as a cost of the project. risking their lives who enter the vortex of impoverishment. conlined itself to the mechanics of barbed reworking of priorities and presumptions wire fencing. The unanswered questions about displacement and JUDICIARY ON DISPLACEMENT of Article 21 is devoid of any merit. to was the basis of directions which went out easy prey to the forces of impoverishment. which enables the making in which it is considered just. designed impoverishment. rejected by the Supreme Court. with their The constitutional mandate that a deprivation The anomaly of an interpretation of the constitutional implications. An order of the This representation"' is illustrative of the and poverty. ations. impelling that there are fundamental rights which are is however no right to the promises of policy. impossible of performance them.162 on Fri. and unexploded. lead to the regressive road to good. and the displaced treated. which is inadequately protected the planning process. with right to. considerations of equity. or assists. on the other process.'2 Apart from acquired land. or for house one example. By the government's own not being able to discover the infringement admission. backdrop for understanding the possibilities leaving them to an uncertain future. and the law to protect interstate law. Resident in an agency area. 'was taken under that are inherent in law. for impoverishment. This ability of the law to effect process of acquisition validated by court in a public interest petition.policy lies in its flexibility. 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. Since it is only the rights in the law that are perceived both commonly denying autonomy and by the statute. Where the administrative process and therefore unreasonable. 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. 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. is spaces for participation in the process. through the generations of the law. Impoverishment in the enhancement within the law of compensation for the displaced. Rehabilitation of the displaced tribals having apparently failed. '3 There to law the role of a causative agent.

protecting the displaced subsistence labour3 The phrase is borrowed from the title of a level skilled/ book by Guido Calabresi and Phillip Bobbitt. Economic and Political Weekly June 15. the Interstate Migrant Workmen Static/regressive condition of poverty (Regulation of Conditions of Employment) Act 1979. 7 This description has drawn. that giving employment to 20 per cent may take longer time and since the age bar has up the difference. The law of acquisition. 'Introduction' in Baxi (ed). 13 Banwasi Seva Ashram v State of UP (1992)1 SCALE 407. In fact. 1994 (AP High Court).in the meantime another dam has been constructed and the persons who have been displaced have also been required to be accommodated and. Adequate 2 Forexample. paras 9 and 11. see the Maharashtra Project Low bargaining Casualisation Subminiina Affected Persons Rehabilitation Act 1986. generally. 'Displacement and Rehabilitation: 2. in large measure.'17 Legal reform is essential to curb state powers been put at 35 it would be appropriate if the Juristic activism. 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. being the norm of internal refugees. therefore. I I Ramanathan. 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. the Bonded Labour IN CONCLUSION displaced to make way for the Jelluru and System (Abolition) Act 1976. \ | I I ~~~~~ ~ ~~~~~~~~I II Law and Poverty vi (1988). But. and fashions rights and remedies to the victims and potential forgets of mass bring law in consonance with justice. op cit. 17 K Posayya v Special Tahsildar (1995) 2 Special Issue on Displacement and Rehabilitation. March-April 1995. stated that nearly 50 persons out of 247 have The difference between the market value entrenching this perspective. continue to determine judicial understanding and treatment of di splacement. The initial deprivation of the limited. the Immoral Traffic Prevention Act 1956. the Minimum Wages Act 1948. He The law has been instrumental in remark that this "is not a correct approach". [A companion piece has appeared in Usha Nos 1341. Restrained attempts 2 SCC 327.Waged Municipal Corporation (1985) 3 SCC 545. the anti-beggary acts No compensation extant in some states. 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. the Contract Labour (Abolition and Regulation) Act 1970. 1995. Criminalisation Exclusion Stigmatisation 10 This representation draws upon the LAA 1984. SAIL expedited the absorption of these persons by increasing their number from 20 per cent to 40 per cent each year. would be the displaced. 6 The definition of 'public purpose' in the T-- Pavement dwelling slums Beggary Criminalisation LAA as amended in 1984: Section 3(f)(v). growth. the Child Yerrakavla reservoirs. 1995. 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. homes homes homes homes 9 Upendra Baxi..199. etc. Magistrate. I IUpendra Baxi. 'Taking Suffering Seriously: was sought. the rightness displacement is inevitable. 18 Baxi 1988 op cit. And the buying side-effects of the process of economic capacity of the tribals being. Illegalised living Eviction Drug Delinquency Prostitution on the Resettlementand Rehabilitation Policy trafficking of the NTPC (May 1993). V G Ramachandran's Law of Land Acquisition and Compensation 1 Acquiring the character of poverty (1995:8th edn). the Juvenile Justice Act 1986. the Interstate Migrant Workmen ompensation< (Regulation of Employment and Conditions Inadequate of Service) Act 1979.162 on Fri. the IPC tribal to another -a measure to ensure the planning process presumes that protection. power of labour wages 5 G C Mathur. There is an attempt of the displacement was not in challenge: to justify it as a cost of development. Sonebhadra (CMWP No 4358 of Juvenile Prisons Beggars' Corrective Protective 1995) dated August 17. 386-415. The transfer of land Labour (Prohibition and Regulation) Act in an agency area may only be from one Displacement is not on the wane. para 6. and the expediency Towards a National Policy'.. which evolves modes of in this field. 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. which has the court act- 16 Special Tahsildar v Kabbidi Posayya CA ing to protect the interests of the displaced. 14 Supra note I at 230: '. The creation the market value of the land. the NDPS Act 1985 and municipal laws. and to give tangible rights to thought. Notes at judicial activism. 1986. Lokayan Bulletin. enter into open market transactions. and the illegal status accorded to. state anti-beggary laws. the impoverishment of in determining compensation. 12 Buta Prasad Kumbhar v SAIL. has displacement. 41-56. As is often the case.212. and to it was the enhancement of compensation that project it as an opportunity to improve the 1860. 4 For example.] SCALE 683. 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). 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 . the high court found that living conditions of the displaced.I See Butu Prasad Kumbhar v SAIL 1995 FIGURE Supp 2 SCC 225 at 229.' 15 Sudip Mazumdar v State of MP 1994 Supp passed displacement by. 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. of policy. 18 Mar 2016 09:53:07 UTC All use subject to JSTOR Terms and Conditions . 1996 1491 This content downloaded from 210. of 1992 decided on March have occasionally dotted thejudicial horizon. A reassessment already been absorbed.