On March 10, Lok Sabha passed a Bill to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Bill is now pending in Rajya Sabha. This blog briefly outlines the context and the major legislative changes to the land acquisition law. I. Context Land acquisition, unlike the purchase of land, is the forcible take-over of privately owned land by the government. Land is acquired for projects which serve a ‘public purpose’. These include government projects, public-private partnership projects, and private projects. Currently, what qualifies as ‘public purpose’ has been defined to include defence projects, infrastructure projects, and projects related to housing for the poor, among others. Till 2014, the Land Acquisition Act, 1894 regulated the process of land acquisition. While the 1894 Act provided compensation to land owners, it did not provide for rehabilitation and resettlement (R&R) to displaced families. These were some of the reasons provided by the government to justify the need for a new legislation to regulate the process of land acquisition. Additionally, the Supreme Court had also pointed out issues with determination of fair compensation, and what constitutes public purpose, etc., in the 1894 Act. To this end, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was passed by Parliament, in 2013. II. Current legislative framework for land acquisition The 2013 Act brought in several changes to the process of land acquisition in the country. Firstly, it increased the compensation provided to land owners, from 1.3 times the price of land to 2 times the price of land in urban areas, and 2-4 times the price of land in rural areas. Secondly, unlike the earlier Act which did not provide rehabilitation and resettlement, the 2013 Act provided R&R to land owners as well as those families which did not own land, but were dependent on the land for their livelihood. The Act permits states to provide higher compensation and R&R. Thirdly, unlike the previous Act, it mandated that a Social Impact Assessment be conducted for all projects, except those for which land was required urgently. An SIA assesses certain aspects of the acquisition such as whether the project serves a public purpose, whether the minimum area that is required is being acquired, and the social impact of the acquisition. Fourthly, it also mandated that the consent of 80% of land owners be obtained for private projects, and the consent of 70% of land owners be obtained for public-private partnership projects. However, consent of land owners is not required for government projects. The 2013 Act also made certain other changes to the process of land acquisition, including prohibiting the acquisition of irrigated multi-cropped land, except in certain cases where the limit may be specified by the government. III. Promulgation of an Ordinance to amend the 2013 Act In addition to the 2013 Act, there are certain other laws which govern land acquisition in particular sectors, such as the National Highways Act, 1956 and the Railways Act, 1989. The 2013 Act required that the compensation and R&R provisions of 13 such laws be brought in consonance with it, within a year of its enactment, (that is, by January 1, 2015) through a notification. Since this was not done by the required date, the government issued an Ordinance (as Parliament was not in session) to extend the compensation and R&R provisions of the 2013 Act to these 13 laws. However, the Ordinance also made other changes to the 2013 Act. The Ordinance was promulgated on December 31, 2014 and will lapse on April 5, 2015 if not passed as a law by Parliament. Thus, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 has been introduced in Parliament to replace the Ordinance. The Bill has been passed by Lok Sabha, with certain changes, and is pending in Rajya Sabha. The next section outlines the major changes the Bill (as passed by Lok Sabha) proposes to make to 2013 Act. IV. Changes proposed by the 2015 Bill to the 2013 Act Some of the major changes proposed by the 2015 Bill (as passed by Lok Sabha) relate to provisions such as obtaining the consent of land owners; conducting an SIA; return of unutilised land; inclusion of private entities; and commission of offences by the government. Certain exemptions for five categories of projects: As mentioned above, the 2013 Act requires that the consent of 80% of land owners is obtained when land is acquired for private projects, and the consent of 70% of land owners is obtained when land is acquired for public-private partnership projects. The Bill exempts five categories of projects from this provision of the 2013 Act. These five categories are: (i) defence, (ii) rural infrastructure, (iii) affordable housing, (iv) industrial corridors (set up by the government/government undertakings, up to 1 km on either side of the road/railway), and (v) infrastructure projects. The Bill also allows the government to exempt these five categories of projects from: (i) the requirement of a Social Impact Assessment, and (ii) the limits that apply for acquisition of irrigated multi-cropped land, through issuing a notification. Before issuing this notification, the government must ensure that the extent of land being acquired is in keeping with the minimum land required for such a project. The government has stated that these exemptions are being made in order to expedite the process of land acquisition in these specific areas. However, the opponents of the Bill have pointed out that these five exempted categories could cover a majority of projects for which land can be acquired, and consent and SIA will not apply for these projects. Return of unutilised land: Secondly, the Bill changes the time period after which unutilised, acquired land must be returned. The 2013 Act states that if land acquired under it remains unutilised for five years, it must be returned to the original owners or the land bank. The Bill changes this to state that the period after which unutilised land will need to be returned will be the later of: (i) five years, or (ii) any period specified at the time of setting up the project. Acquisition of land for private entities: Under the 2013 Act, as mentioned above, land can be acquired for the government, a public-private partnership, or a private company, if the acquisition serves a public purpose. The third major change the Bill seeks to make is that it changes the term ‘private company’ to ‘private entity’. This implies that land may now be acquired for a proprietorship, partnership, corporation, non-profit organisation, or other entity, in addition to a private company, if the project serves a public purpose. Offences by the government: Fourthly, under the 2013 Act, if an offence is committed by a government department, the head of the department will be held guilty unless he can show that he had exercised due diligence to prevent the commission of the offence. The Bill removes this section. It adds a provision to state that if an offence is committed by a government employee, he can be prosecuted only with the prior sanction of the government. Acquisition of land for private hospitals and educational institutions: While the 2013 Act excluded acquisition of land for private hospitals and private educational institutions, the Bill sought to include these two within its scope. However, the Lok Sabha removed this provision of the Bill. Thus, in its present form, the Bill does not include the acquisition of land for private hospitals and private educational institutions. Other changes proposed in Lok Sabha: In addition to removing social infrastructure from one of the five exempted categories of projects, clarifying the definition of industrial corridors, and removing the provision related to acquisition for private hospitals and private educational institutions, the Lok Sabha made a few other changes to the Bill, prior to passing it. These include: (i) employment must be provided to ‘one member of an affected family of farm labour’ as a part of the R&R award, in addition to the current provision which specifies that one member of an affected family must be provided employment as a part of R&R; (ii) hearings of the Land Acquisition, Rehabilitation and Resettlement Authority to address grievances related to compensation be held in the district where land is being acquired; and (iii) a survey of wasteland must be conducted and records of these land must be maintained. For more details on the 2015 Bill, see the PRS Bill page, here. A version of this blog appeared on rediff.com on February 27, 2015.
India has been in lockdown since March 25, 2020. During this time, activities not contributing to the production and supply of essential goods and services were completely or partially suspended. Passenger trains and flights were halted. The lockdown has severely impacted migrants, several of whom lost their jobs due to shutting of industries and were stranded outside their native places wanting to get back. Since then, the government has announced relief measures for migrants, and made arrangements for migrants to return to their native place. The Supreme Court of India, recognising the problems faced by migrants stranded in different parts of the country, reviewed transportation and relief arrangements made by the government. On June 9, the Court directed central and state governments to complete transportation of remaining stranded migrants and expand focus of relief measures to facilitate employment for returning migrants. In this blog, we highlight some facts about migration in India, summarise key relief measures announced by the government and directives issued by the Supreme Court for the migrant population in relation to the lockdown.
Overview of Migration
Migration is the movement of people away from their usual place of residence, across either internal (within country) or international (across countries) borders. The latest government data on migration comes from the 2011 Census. As per the Census, India had 45.6 crore migrants in 2011 (38% of the population) compared to 31.5 crore migrants in 2001 (31% of the population). Between 2001 and 2011, while population grew by 18%, the number of migrants increased by 45%. In 2011, 99% of total migration was internal and immigrants (international migrants) comprised 1%.[1]
Patterns of migration
Internal migrant flows can be classified on the basis of origin and destination. One kind of classification is: i) rural-rural, ii) rural-urban, iii) urban-rural and iv) urban-urban. As per the 2011 census, there were 21 crore rural-rural migrants which formed 54% of classifiable internal migration (the Census did not classify 5.3 crore people as originating from either rural or urban areas). Rural-urban and urban-urban movement accounted for around 8 crore migrants each. There were around 3 crore urban-rural migrants (7% of classifiable internal migration).
Another way to classify migration is: (i) intra-state, and (ii) inter-state. In 2011, intra-state movement accounted for almost 88% of all internal migration (39.6 crore persons).1
There is variation across states in terms of inter-state migration flows. According to the 2011 Census, there were 5.4 crore inter-state migrants. As of 2011, Uttar Pradesh and Bihar were the largest source of inter-state migrants while Maharashtra and Delhi were the largest receiver states. Around 83 lakh residents of Uttar Pradesh and 63 lakh residents of Bihar had moved either temporarily or permanently to other states. Around 60 lakh people from across India had migrated to Maharashtra by 2011.
Figure 1: Inter-state Migration (in lakh)
Note: A net out-migrant state is one where more people migrate out of the state than those that migrate into the state. Net in-migration is the excess of incoming migrants over out-going migrants.
Sources: Census 2011; PRS.
Reasons for internal migration and size of migrant labour force
As of 2011, majority (70%) of intra-state migration was due to reasons of marriage and family with variation between male and female migrants. While 83% of females moved for marriage and family, the corresponding figure for males was 39%. Overall, 8% of people moved within a state for work (21% of male migrants and 2% of female migrants).
Movement for work was higher among inter-state migrants- 50% of male and 5% of female inter-state migrants. As per the Census, there were 4.5 crore migrant workers in 2011. However, according to the Working Group Report on Migration, the Census underestimates the migrant worker population. Female migration is recorded as movement due to family since that is the primary reason. However, many women take up employment after migrating which is not reflected in the number of women moving for work-related reasons. [2]
According to the Economic Survey, 2016-17, Census data also underestimates temporary migrant labour movement. In 2007-08, the NSSO estimated the size of India’s migrant labour at seven crore (29% of the workforce). The Economic Survey, 2016-17, estimated six crore inter-state labour migrants between 2001-2011. The Economic Survey also estimated that in each year between 2011-2016, on average 90 lakh people travelled for work.
Figure 2: Reasons for intra-state migration
Sources: Census 2011; PRS.
Figure 3:Reasons for inter-state migration
Sources: Census 2011; PRS.
Issues faced by migrant labour
Article 19(1)(e) of the Constitution, guarantees all Indian citizens the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interest of the general public or protection of any scheduled tribe. However, people migrating for work face key challenges including: i) lack of social security and health benefits and poor implementation of minimum safety standards law, ii) lack of portability of state-provided benefits especially food provided through the public distribution system (PDS) and iii) lack of access to affordable housing and basic amenities in urban areas. 2
Poor implementation of protections under the Inter-State Migrant Workmen Act, 1979 (ISMW Act)
The ISMW Act provides certain protections for inter-state migrant workers. Labour contractors recruiting migrants are required to: (i) be licensed, (ii) register migrant workers with the government authorities, and (iii) arrange for the worker to be issued a passbook recording their identity. Guidelines regarding wages and protections (including accommodation, free medical facilities, protective clothing) to be provided by the contractor are also outlined in the law.
In December 2011, a report by the Standing Committee on Labour observed that registration of workers under the ISMW Act was low and implementation of protections outlined in the Act was poor. The report concluded that the Central government had not made any concrete and fruitful efforts to ensure that contractors and employers mandatorily register the workers employed with them enabling access to benefits under the Act.
Lack of portability of benefits
Migrants registered to claim access to benefits at one location lose access upon migration to a different location. This is especially true of access to entitlements under the PDS. Ration card required to access benefits under the PDS is issued by state governments and is not portable across states. This system excludes inter-state migrants from the PDS unless they surrender their card from the home state and get a new one from the host state.
Lack of affordable housing and basic amenities in urban areas
The proportion of migrants in urban population is 47%.1 In 2015, the Ministry of Housing and Urban Affairs identified migrants in urban areas as the largest population needing housing in cities. There is inadequate supply of low-income ownership and rental housing options. This leads to the spread of informal settlements and slums. The Prime Minister Awaas Yojana (PMAY) is a central government scheme to help the economically weaker section and low-income group access housing. Assistance under the scheme includes: i) slum rehabilitation, ii) subsidised credit for home loans, iii) subsidies up to Rs 1.5 lakh to either construct a new house or enhance existing houses on their own and iv) increasing availability of affordable housing units in partnership with the private sector. Since housing is a state subject, there is variation in approach of States towards affordable housing.2
Steps taken by the government with regard to migrant labour during the lockdown
During the lockdown, several inter-state migrant workers tried to return to their home state. Due to the suspension public transport facilities, migrants started walking towards their home state on foot. Subsequently, buses and Shramik special trains were permitted by the central government subject to coordination between states.[3],[4] Between May 1 and June 3, more than 58 lakh migrants were transported through specially operated trains and 41 lakh were transported by road. Measures taken by the government to aid migrants include-
Transport: On March 28, the central government authorised states to use the State Disaster Response Fund to provide accommodation to traveling migrants. States were advised to set up relief camps along highways with medical facilities to ensure people stay in these camps while the lockdown is in place.
In an order issued on April 29, the Ministry of Home Affairs allowed states to co-ordinate individually to transport migrants using buses. On May 1, the Indian Railways resumed passenger movement (for the first time since March 22) with Shramik Special trains to facilitate movement of migrants stranded outside their home state. Between May 1 and June 3, Indian Railways operated 4,197 Shramik trains transporting more than 58 lakh migrants. Top states from where Shramik trains originated are Gujarat and Maharashtra and states where the trains terminated are Uttar Pradesh and Bihar.[5] Note that these trends largely correspond to the migration patterns seen in the 2011 census data.
Food distribution: On April 1, the Ministry of Health and Family Affairs directed state governments to operate relief camps for migrant workers with arrangements for food, sanitation and medical services. On May 14, under the second tranche of the Aatma Nirbhar Bharat Abhiyaan, the Finance Minister announced that free food grains would be provided to migrant workers who do not have a ration card for two months. The measure is expected to benefit eight crore migrant workers and their families. The Finance Minister also announced that One Nation One Ration card will be implemented by March 2021, to provide portable benefits under the PDS. This will allow access to ration from any Fair Price Shop in India.
Housing: The Aatma Nirbhar Bharat Abhiyaan also launched a scheme for Affordable Rental Housing Complexes for Migrant Workers and Urban Poor to provide affordable rental housing units under PMAY. The scheme proposes to use existing housing stock under the Jawaharlal Nehru National Urban Housing Mission (JnNURM) as well as incentivise public and private agencies to construct new affordable units for rent. Further, additional funds have been allocated for the credit linked subsidy scheme under PMAY for middle income group.
Financial aid: Some state governments (like Bihar, Rajasthan and Madhya Pradesh) announced one-time cash transfers for returning migrant workers. UP government announced the provision of maintenance allowance of Rs 1,000 for returning migrants who are required to quarantine.
Directions by the Supreme Court
The Supreme Court reviewed the situation of migrant labourers stranded in different parts of the country, noting inadequacies and lapses in government response to the situation.
[1] Census, 2011, Office of the Registrar General & Census Commissioner, Ministry of Home Affairs.
[2] Report of Working Group on Migration, Ministry of Housing and Urban Poverty Alleviation, January 2017, http://mohua.gov.in/upload/uploadfiles/files/1566.pdf.
[3] Order No. 40-3/2020-DM-I (A), Ministry of Home Affairs, April 29, 2020, https://prsindia.org/files/covid19/notifications/4233.IND_Movement_of_Persons_April_29.pdf.
[4] Order No. 40-3/2020-DM-I (A), Ministry of Home Affairs, May 1, 2020, https://prsindia.org/files/covid19/notifications/IND_Special_Trains_May_1.jpeg.
[5] “Indian Railways operationalizes 4197 “Shramik Special” trains till 3rd June, 2020 (0900hrs) across the country and transports more than 58 lacs passengers to their home states through “Shramik Special” trains since May 1”, Press Information Bureau, Ministry of Railways, June 3, 2020, https://pib.gov.in/PressReleseDetail.aspx?PRID=1629043.
