On June 29, 2020; the Minister of Industries and Commerce of Assam released a series of tweets announcing that the Council of Ministers had approved an ordinance by which industries could be set up in Assam by just “one self-declaration” and land would be deemed converted for industrial purpose. The Ordinance presently awaits the approval of the Governor of Assam.
In law, land as a natural resource is considered to be held in public trust by the State. The State holds land for the enjoyment by the citizen at large. This essentially means that there is an embargo on the State transferring public properties such as Government held land to private parties if such transfers affect the public interest. This principle also implies that there is a burden on the Government to ensure affirmative action for effective management of land resources. This principle had been first formulated authoritatively by one of the pioneers of environmental law, Professor Joseph L. Sax in an article called “The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention” (1970). Over the years, this principle has been brought into Indian law by several judgements of the Supreme Court of India.
Land in Assam has had a contentious history. It has remained a permanent fixture in the political discourse of the State over the years and much blood and ink have been spilt over it. Like other natural resources, land is intrinsic to the identity of a community and it is not surprising therefore, that the land question in Assam has always come intertwined with the fierce identity related contestations that the State has witnessed through its history. Strenuous claims by communities over title to their land exist till this day.
What is seriously disturbing about this proposed Ordinance is that it runs contrary to the unanimity seen concerning alienation of agricultural land in Assam arrived at historically through informed, transparent and in-depth debate and discussion. Community organisations representing indigenous communities, expert committees and the average citizen have all been unanimous that any provision for alienation of agricultural land belonging to the indigenous people of Assam will need adequate safeguards. The concept of deemed conversion of agricultural land is alien to this total unanimity across the entire spectrum.
The legal history of the land law regime bears testimony to this unanimity. The principle that agricultural land cannot be converted for a non-agricultural purpose without adequate safeguards has always held true. A hundred years earlier, an Executive Instruction issued on 27.09.1919 by the Government of Assam under the British authorities had enshrined this principle. The said Executive Instruction still holds the field. Subsequently, noting that issues such as continued encroachment of community/government lands had further complicated protection of land rights of the indigenous people, the Government of Assam constituted a Seven Member Committee headed Mr. Hari Shankar Brahma, former Chief Election Commissioner of India to examine various aspects of administration of land including the protection of land rights of the indigenous people of Assam on February 6, 2017.
The Committee for Protection of Land Rights of Indigenous People of Assam headed by Mr. Hari Shankar Brahma provided several wide-ranging recommendations but also recommended that the principle that agricultural land cannot be converted for a non-agricultural purpose without adequate safeguards should be made part of the new Land Policy and the amended Assam Land and Revenue Regulation, 1886. To address this question of alienation of agricultural land, the Assam Agricultural Land (Regulation of Reclassification and Transfer for Non-Agricultural Purpose) Act, 2015 had earlier been brought into effect with one of the stated objectives being to “enable judicious growth and simultaneous preservation and furtherance of agricultural sector for overall economic development in the State”. Inspite of this legislation, the contestation concerning alienation of agricultural land remain unaddressed in its true effect. In fact, the 2015 Act received severe criticism, so much so, that the Brahma Committee provided a recommendation for its repeal as it allowed reclassification of agricultural land as non-agricultural land either on the ground that it had not been cultivated for the past ten years or because it had become unfit for agriculture. According to the Brahma Committee, the decision in this regard had been left to the Deputy Commissioner of the district which was arbitrary and non-transparent. Among other factors, it had the potential to reduce indigenous cultivators into a class of landless people.
The Land Policy, 2019 of the Government of Assam which claimed to bring into effect some of the recommendations of the Brahma Committee also contained portions dealing with “allotment/settlement of land for other non-agricultural purposes like industries, public institutions, hospitals, dispensaries etc.” Paragraph 7.1 of the Land Policy, 2019 is quite relevant in this regard:
“7.1 No agricultural land will ordinarily be allotted or settled for establishment of industry, construction of public institution/offices, hospital, dispensary etc. The Land Advisory Committee may examine the land unsuitable for agricultural purposes identified by district/sub-division authority placed before it and may recommend to Government for establishment of public institution, industry, hospital etc. Considering the scarcity of land, minimum requirement may be allotted/settled on rational basis.
Endeavour shall be made to have a survey and mapping of land in the Districts not suitable for agricultural purpose in order to prepare special zone for industrial and other institutional infrastructure development in the State.”
Apart from this clearly stated policy of the Government itself, the Report of the Committee on Implementation of Clause 6 of the Assam Accord constituted by the Government of India, headed by Justice Biplab Kumar Sharma, Former Judge, Gauhati High Court also made several unanimous recommendations concerning alienation of land for industrial purposes. The Committee had received several representations from community and student organisations which had claimed that land in the Tribal Belts and Blocks under Chapter X of the Assam Land and Revenue Regulation, 1886 had been alienated to non-indigenous people by exploiting loopholes in the law. It had also been pointed out that several communities such as the Koch Rajbongshi had been forced by economic compulsions to sell off their land.
As a result, one of the recommendations of the Committee concerned Section 8 of the Assam Agricultural Land (Regulation of Reclassification and Transfer for Non-Agricultural Purpose) Act, 2015 which dilutes the provisions in Section 3 and 4 of the same Act and allows conversion of agricultural land for non-agricultural purposes without following provisions of the same Act. The Committee while categorically rejecting any deemed conversion of agricultural land recommended that this specific provision of the Act be repealed and that the opinion of the local Gram Sabha be sought whenever re-classification of agricultural land is deemed necessary. It had also recommended that land which was deemed unfit for agricultural purposes will have to be initially identified by a land survey within a specified period and only thereafter may be declared as industrial area. It was around this time that the Council of Ministers of the State Government had announced publicly in December, 2019; that a Cabinet decision had been taken to the effect that a legislation ensuring that land rights are reserved exclusively for the indigenous people by giving them the sole right to buy or sell land in Assam would be enacted.
It is in the light of these policy developments, that the proposed Ordinance announced on June 29, 2020 seems perplexing and is a complete U-turn on the Government’s own public declarations as late as in December, 2019. It is evident that there is a clear hidden agenda behind the move and it is not the product of the policy paralysis which has plagued the land question in Assam over the last few years. Leaving aside the unconscionability of such a decision, it also violates the legal principle that land which is held in public trust by the Government cannot be transferred against the public interest. It is also noteworthy that the Government of India and the Government of Assam have not clarified its stand on the Report of the Committee on Implementation of Clause 6 of the Assam Accord which it had promised to implement in letter and spirit during the peak of the CAA, 2019 agitation. While the proposed Ordinance is quite clearly a betrayal of the public trust vested in a democratically elected government, it also flies in the face of the law apart from endangering the land rights of the indigenous farmers who have traditionally borne the brunt of the land question.