Synthesis Essay on Eminent Domain Cornell

Land acquisition has been a contentious issue in India with recurring reports of agitations or incidences of violence over land acquisition. All major development projects, whether it is the mining industry, dams, nuclear power plants, steel and iron refineries, etc. are being held up by one or another problem related to land acquisition. Land acquisition is a process by which the state forcibly acquires private property for a public purpose without the consent of the landowner. The law of land acquisition derives its legitimacy from the power of the Eminent Domain of the State - a power by which the state enjoys supreme control over all property in a state, with the right of expropriation. Eminent domain embodied in the Land Acquisition Act 1894, confers upon the central and state governments to acquire land for public purposes. The principle of eminent domain was used by the state to usher a path of progress based on industrial development; this industrial development was perceived to be much needed for the country which had just traversed from colonial rule to an independent country. The state forcefully evicted people out of their lands without any concerns for those being displaced and neither the administrative machinery foresaw the displacement or planned rehabilitation of the project-affected people. It was justified in the name of national interest. Displacement of people arising due to development projects is majorly centered on land acquisition. Displacement of people is the immediate result of all development projects forcefully removing people from lands and areas controlled by them. They become the involuntary victims of their habitat, society, and culture. It not only leads to loss of economic assets, habitat, and livelihood but also disrupts communities, social relationships, and cultural identities, pushing them towards impoverishment. Displacement by development projects with the use of force and coercion is not new in India. It was an issue in the colonial age, intensified after independence, and is now a contentious issue in the context of the neoliberal era. Soon after India’s independence in 1947, the state took a path of industrial development largely depending on imperialist capital and technology. In this path of development and industrialization industries, mines, power projects, dams, infrastructural, etc. had been set up. Newly formed industries needed raw materials like minerals, hence, mines were dug up. Mines & industries needed a power supply, so power projects were developed for these mining & industrial activities. Mines & industries require a huge amount of water. Hence dams were set up blocking or diverting the natural course of the rivers inundating large tracts of lands inhabited by indigenous people. Moreover, this ‘development’ had been done with little respect for the ecological balances of the hills, forests, and habitats. Since the 1990s this process was accelerated with further liberalisation of the economy. New economic policies along with a new industrial policy were introduced in 1991 clearing much of the obstacles for foreign corporates to extract the natural resources. Hence the foreign exploitation of the resources increased greatly. The erstwhile reserved sectors in the mining for the public enterprises were now opened up for the foreign and private monopolies. Public sector mining and mines-related industrial companies became privatized. With these processes of opening up, the rules for setting up mine-based smelting plants, sponge iron plants, power plants, dams, infrastructural utilities, etc. have been liberalized. In the name of economic growth, the state has witnessed rapid industrialization which has been marked by massive resistance by the local indigenous people who have been deprived of their lands and livelihoods through the forceful and illegal transfer of land. One issue that has been so extensively researched and debated in recent years is ‘involuntary displacement and resettlement. The outcome of involuntary displacement is described by Cernia (2000) in terms of ‘major impoverishment risks’ in terms of landlessness, joblessness, homelessness, marginalization, food insecurity, increased morbidity and mortality, loss of access to common property resources, social disarticulation, differential risk identities and risks to the host population. The emerging vast literature on forced displacement and its consequences on the affected people amply brings out their sufferings leading to marginalization, deprivation, and exclusion. Development projects lay much emphasis and focus on dispossessing people. People relocated to new conditions and their avenues for improvement were a major concern. Displacement creates confusion and commotion where people do not know what to do and from whom to expect. Thus, pushing them towards marginalization and impoverishment. Resettlement and the risks associated with displacement have remained a neglected issue. The first national resettlement and rehabilitation (R&R) policy was brought out in the year 2004 followed by improvements resulting in another policy in 2007. Until then, laws dealt primarily with the acquisition of land justified in the name of public purpose. The project affected peoples’ entitlement to resettlement and rehabilitation was disregarded. Compensation was paid only to the landowners for the loss of lands and it was very less. The new policy was a paradigm shift towards alleviating the miseries and risks people incurred post-displacement. Now the focus was on improving the standards of living and restoring them back to pre-displacement levels. However, displacement based on eminent domain continued to be indispensable without any effort to reduce it. The R&R has not been properly implemented due to a lack of guarantee from the state. Moreover, the decisions are made at the top level without considering the perspectives and participation of the people affected. Far from ensuring proper resettlement, the state has remained non-committed to the rehabilitation as a claim (Mathur, 2011). In 2013, the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement Act (RFCTLARR) was constituted, considered to be a significant step towards a humane and participative land acquisition. The key provisions of the act are consent, social impact assessment, and establishing a fair and transparent process of land acquisition. Since 2004, there has been an evolution of resettlement policies by the state moving from mere compensation of the project affected to the actual resettlement and rehabilitation. These policies were enacted to address the recurrent issues of displacement and relocation. It was long overdue. Development projects are not new phenomena. However, the issues of involuntary displacement associated with those projects keep emerging in newer dimensions. It is estimated that 60 million people have been displaced from their land for development projects since independence in 1947 and the rate of dispossession increased after liberalization in the early 1990s (Fernandes,2008). Development has led some to develop and others are left out. In fact, the term development is seen to be a process benefitting society as a whole. On the contrary, the people affected have borne the cost of development with a series of changes becoming obstacles to their progress. Gilbert (2005) observed that the overall result of land policy towards Adivasis in India remains poor and the Indian legislation has so far failed to provide enough recognition of indigenous peoples’ traditional forms of land tenure systems. The state policies of the state, Chemmencheri (2015) states, work towards the subject-making of subaltern citizens. The people through their struggles have employed their agency in wresting social policies from the state and in the process become subjects of the state. The existing literature on involuntary displacement and resettlement has primarily dealt with issues resulting immediately from displacement. Besides, studies have also highlighted critical assessments about the resettlement and the programs being a failure. The Hirakud Dam was one of the first multipurpose river valley projects of Independent India that was aimed at flood control, irrigation, and hydropower generation. The very purpose of setting up this project was to accelerate the process of economic development in a very backward and poverty-stricken state, Orissa. It may be noted that the dam project caused the direct displacement of 101,000 people and 22,000 families fifty years ago. The dispossession resulting from displacement took various forms such as economic and social, cultural and political, psychological and environmental. One of the most obvious and visible unwarranted outcomes of dam projects is the displacement of people from their habitat. This means that not only are persons living in and around dam sites asked to vacate their homes and settle in other places but also that they are expected to give up their land, their homes that they have nurtured all their lives and surroundings they have been familiar with so that the dam could be built for the anonymous beneficiaries. It is difficult for the ousted to comprehend the benefits of dams, as to how they can possibly bring prosperity and well-being. Large numbers migrate to the already overcrowded and overburdened towns and cities in search of work and live in dismal urban conditions. Among all such oustee families, the majority were of tribal origin. Given the rate of population growth in India and the limited success of the past resettlement and rehabilitation process, which is about 40 percent of the total displacement cases, it is not unfair to say that about 200,000 people or 40,000 families of the original Hirakud oustees might have been subjected to a state of impoverishment to the present day. Thus, the principle of eminent domain is always pitted against the projectaffected people as Daniel Magraw put forward, “the doctrine of eminent domain clashes with local communities, particularly to indigenous people’s right to their property, to be free from forced displacement and to be treated fairly in their ancestral domains. Therefore, there is always a tension between eminent domain, on one hand, where governments will seize property and take property rights, and with individual and community rights, on the other.” Admittedly, coercion and surrender of individual autonomy are inherent to the theory of eminent domain in general. Medha Patkar asserts that development is a magic word securing maximized extraction of natural resources, and with consumerism and modernism as the basic paradigms proposed and imposed on the majority, the eviction of rural communities has reached an unprecedented scale. The old theories of sacrifice and trickle-down are no longer acceptable for justifying displacement. These processes have led to destroying livelihoods and human socio-cultural relations as well as land, water, and forest resources. The expansion and acceleration of displacement have caused much of human distress, and destruction. The exploitation and expansion take place without the concerns of the oustees who are only to be seen as project-affected people. The compensation provided to them does not replace their livelihoods, forests, and common-pool resources. Worse the benefits of a project such as employment or profit are rarely shared equitably with the oustees. The government has always remained apathetic to the plight of the poor, while the tribals continue to bear the brunt of rapid industrial growth by losing their land and means of livelihood and remain aloof from the so-called exclusive growth. According to Smitu Kothari, the issue of displacement and resettlement has to be viewed within the broad question of distribution of power. She states that despite constitutional mandates and an emphasis on favoring the underprivileged, in an overwhelming number of cases, national and regional (and increasingly global) interests -the primary beneficiaries of the developmental process -transgress from or violate the interests of politically and economically weaker groups and individuals. In decisions on who should be displaced and what should be the treatment meted out to them, the more powerful interests have continued to prevail, especially when they have encountered poor and politically weak populations. Consequently, she raises the question essentially linked to democratizing the planning process and integrally involving the historically underprivileged and disempowered in decisions that so crucially affect their lives, livelihoods, and lifestyles. For the tribals, geographical space and an evolved relationship with it have contributed to their cultural identity and their complex patterns of subsistence which primarily depend on the land, forests, water bodies, and animal and plant life.