Tell Me More: Talking Land Protection and Forest Rights With Kumar Sambhav
In The Swaddle’s interview series Tell Me More, we discuss crucial cultural topics with people whose work pushes societal boundaries.
Kumar Sambhav is the founding partner and project director of Land Conflict Watch, a data-research project that maps and analyses ongoing land conflicts in India. He is also an independent journalist reporting on issues at the intersection of environment, business, politics, and social justice. The Swaddle’s Aditi Murti spoke with Kumar about the nature of land conflicts in India, and the balance between furthering development and protecting community rights.
The Swaddle: The recent Supreme Court Case involving the Tamil Nadu government involves the state taking land from citizens without fair compensation, in direct violation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 (or LARR). Other states like Maharashtra and Karnataka have also used similar loopholes to take land without offering compensation. How do states manage to defy LARR to get access to land?
Kumar Sambhav: The constitution allows states to form laws which can contradict central laws, as long as the president of the country has given his assent. After the enactment of LARR, the states decided that this was too progressive — the LARR Act enhances compensation, introduces social impact assessment, and also pays compensation to those who depend on the land that’s being acquired. This law makes the process of land acquisition more expensive and cumbersome, as the social impact assessment tends to take a long time to complete. The law before LARR was a colonial land acquistion law enacted in 1894 which allowed governments to forcefully acquire land with arbitray compensation — the state governments prefer this law, but its implementation has actually led to several land conflicts across the country.
Now after the LARR Act was passed, some states, including Tamil Nadu, passed some state land acquisition laws stating that the LARR Act would not apply to certain land acquisition processes, and that these processes would obey the 1894 law. So using these state-specific laws, the state government can acquire land forcibly and provide no compensation. So states like Tamil Nadu and Maharashtra got the President’s approval, but their land acquisition was countered by original landowners who took the states to court. In Tamil Nadu, the Madras High Court repealed the state laws in favor of LARR, and the TN state government then took it to the Supreme Court. Now this case will finally decide if states can bypass the LARR Act by enacting state-specific laws, or if they have to adhere to LARR guidelines. So we’ll see how that goes.
TS: There’s an argument put forth in favor of swift government land acquisition — the development of India argument. Do you think this is a fair position to take, and if not, is there a more nuanced position available?
KS: Ostensibly yes, this is the reason why state governments, political parties and industry leaders utilize to take short-cuts — because development is necessary for the fast growth of infrastructure and industrial development of the country. The quick availability of land is imperative for such rapid development, and the 1894 colonial law did ensure this kind of availability. But, this rapid land acquisition was met with hundreds and thousands of land conflicts across the country and a huge amount of investments being stuck. This happened because people felt like they were forced to give away their land, and that their traditional rights over land or their sources of livelihood wasn’t respected. These conflicts are bound to happen either on ground or end up being litigated in courts.
Today, the highest number of pending cases in courts are because of land and property disputes — with a major number of cases revolving around land acquisition. So if governments think that they should have a way to bypass people’s consent and take shortcuts — it doesn’t really work out. Shortcuts that brush off human rights seem good on paper, but the eventual conflict both hurts worker’s employment and indefinitely blocks companies’ investments. So the slow approach — the process of doing a social impact assessment, the proces of taking consent, the process of deciding fair compensation and equitably negotiating with the community that owns the land — does not cause a hindrance in land acquisition. Thinking that way is a bit counterproductive. If you’ve done the process fairly according to LARR, its eventually a win-win. People would be happy with the fair compensation and the project would eventually have secure access to land.
TS: I recently came across this term called “land banks” — if I remember correctly, it’s states acquiring and holding large plots of land. What is the eventual purpose of these land banks?
KS: There’s quite a bit of competition with respect to which state attracts the most investments, as there’s a central government ranking of which states do so and a higher ranking is seen as a way to score political points. To attract investments, a lot of states are offering readily available land to industries, in order to completely bypass their process of land acquisition, clearances and other such processes. A lot of states are banking lots of land which is officially designated as a “wasteland” which, in revenue records, is land that’s not being cultivated or owned privately. But, a lot of these “wastelands” are common resources used by communities. “Wastelands” could be community grazing lands, could contain water bodies that people use or even become temporary homes for people who do not own land. The village decides that people without land can live and cultivate that common land.
As I said, none of this shows up in a government report, so the land is assigned to a land bank. Once there’s an industry willing to invest, they assign this land to that project, which leads to conflicts because people’s homes, livelihoods and traditional right to common land is not being recognized or fairly compensated. Land banks are a good approach to attract industries and development, but the way land is being acquired — it’s being done without acknowledging ground realities, which is very problematic. Plus, there are no standard rules or prodcedures of creating land banks — its being done arbitrarily, which will cause further problems.
TS: This idea of community land or the commons — I remember that the Forest Rights Act (2006) has protections that help indigenous communities retain ownership of traditional forest lands. Is there a similar law or protection put in place to protect non-forest community land?
KS: Actually, no. There’s a legal gap in terms of recognizing people’s right to the commons. There’s a couple of laws like the Forest Rights Act which recognize people’s rights over land cultivated by indigenous people or forested commons used by villagers. To some extent in Schedule V areas, the rights over commons are also covered by Panchayats (Extension to Scheduled Areas) Act 1996 or PESA. There are also state-specific laws, like for example — in Haryana, panchayats will receive ownership of the commons land, and there are a few Supreme Court judgment precedents but there’s no step-by-step guidelines, protection or central law that recognizes people’s access to common land. I think it’s important to raise this question and make more people, policymakers, administrators, etc. aware of it. People on the ground have a very clear sense of what their rights are. If their rights are taken away, they will protest, and that will stall progress.
TS: Caste is a huge determinant of land conflicts in India, with dominant caste individuals denying marginalized caste individuals access to land and resources. Have institutions like the Central or State Governments ever participated in casteist land acquistion practices?
KS: Governments acquire large sets of land for projects and this sweeps across a diverse group of people who live on these lands. What does become unjust is negotiations and deciding equitable compensations. When several different communities are involved in a land conflict, the dominant caste group get an upper hand in bargaining for compensation. Marginalized caste individuals are often not landowners; they’re laborers dependent upon the land for work. Social impact assessments often do not fairly assess these individuals, or turn in manipulated assessments, thus disadvantaging these individuals. Sometimes their compensation is not fairly assessed — for example if the rate of compensation for urban areas is two times, and rural areas is four times, the government will count the area on the periphery of the urban area as an urban area and reduce the compensation to the urban area amount. In another instance — so the market value of land is classified and determined by something called a circle rate. For example, if your land is next to a highway, your circle rate will be high. Now if people from marginalized castes occupy a piece of land, their circle rate will be manipulated to reduce their compensation amount. I’ve seen quite a few of these situations play out, and yes, in these cases, I do agree that the government plays a part in perpetuating caste injustice.
TS: News reports about land conflicts and even government documents about land acquisition have specific terminologies like “encroachment” or “infestation” to describe indigenous communities or people living in the commons. Does that perpetuate a certain bias in laypeople’s minds?
KS: It does, it does. I think to a large extent I would blame this on how the business of media operates. To be fair to reporters on ground, they have very little time to actually dig deeper. Indian journalists in specific, are poorly paid and have a lot of pressure upon them to do several stories in a day. With that kind of pressure, the easiest route a reporter can take is to talk to the administration on the phone, take their quote and use it verbatim. If the administration is your only source, the bias and violation of human rights wil be justified in your story. If there’s more support, handholding and training for young reporters, in order to get them to spend more time on understanding the subject or speaking to different kinds of voices or talking to more people on the ground or talking to academics and social scientists who have worked on the issue — then they would understand why communities are forced to ‘encroach’ upon land and be able to give background on why this particular community doesn’t own land.
Ideally, the purpose of land reforms was that there should be an equitable distribution of land by putting a cap on how much land people like zamindars can own — that was the understanding of our forefathers who drafted the constitution. But, that hasn’t happended — several Dalit/Bahujan caste individuals do not own land, and are forced to settle on community lands. Once the media calls them ‘encroachers,’ they are evicted from these areas and there’s no other mechanism or policy that can help them resettle elsewhere. This is why its important to report with context — to not just use terms, but to also add background to those terms.