Thursday, July 5, 2018

The Lawlessness of Land Grabbing Laws? - Part II

The previous post started a discussion on issues with the Karnataka Land Grabbing Act (based on an earlier 1982 Andhra Pradesh statute). It discussed how the Karnataka statute created a crime of “Land Grabbing” and argued that the definition was criminally vague, and its classification of this offence as cognizable and non-bailable invited abuse by law enforcement agencies who could arrest and detain persons without warrants. It flagged the use of a reverse onus clause in the statute as another problem, suggesting it was potentially unlawful. Unfortunately, it is uncommon for such arguments to find favour before a court. In this post, I turn my attention to the kinds of technical arguments that might resonate louder. Like the previous post, the framework for discussion is the Karnataka Land Grabbing (Prohibition) Act, which is being challenged before the Karnataka High Court.
The Special "Land Grabbing" Court: Judge, Jury, and Executioner 
The primary body responsible for enforcement of the Land Grabbing Act is a "Special Court" created under the statute [Section 7]. Although it is called a "Court", it shares many features with the various statutory tribunals which exist in India today. Its members are both former judges and members of the revenue services appointed for fixed terms by the Government [A three-year tenure in this case]. All pending cases, of both a civil and criminal nature, relating to issues under the Land Grabbing Act stand transferred to this Special Court for areas in which it is created [Section 20], and this body of persons then decides how the cases shall proceed [Section 9(4)]. It must try to finish any case within six months of it being instituted [Section 9(6)].

Only once we move beyond the Special Court taking up pending cases do we encounter a striking set of procedures that have been installed. In Land Grabbing laws, a Special Court has been empowered to act as judge, jury, and executioner: it has the power to start a case on its own, conduct the trial, and also initiate any other legal action against persons it concludes are violating the Land Grabbing Act, whom it can then send to prison as well [Section 9(1)]. The power conferred on the Special Court to initiate cases is limited, technically: for taking cognizance it can "consider the location, or extent or value of the land ... or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter." Considering these highlighted terms are broad enough to mean anything, the purported limits are pointless.

I label these procedures striking because of history. The combination of executive and judicial powers in one office was often noted as a hallmark of the oppressive legal process in colonial India, often campaigned against by leaders of India's nationalist struggle. This system meant that the same officer could prosecute persons and then condemn them, naturally resulting in this power being used to selectively persecute those raising their voice against the Crown. Separating executive and judicial functions was a big part of the "transformative" agenda that the nationalist leaders sought to introduce with the Indian Constitution, becoming part of the Directive Principles as Article 50. Alarmingly, the state governments have chosen to revisit the dark days of India's colonial past, seemingly oblivious to this critical history. The problem of obvious persecution that can arise by empowering the same authority to file criminal cases and judge them is worsened by the fact that the Karnataka statute presumes guilt, as was discussed in the last post.

The sense of doom is capped when we look at what happens after the Special Court gets done with trial and consider the sentencing and appeals process. Recall that the Karnataka Act provides for mandatory minimum prison terms. This statutory harshness is combined with an amazing permission on the Court to order eviction with force if necessary, where it finds that land grabbing was done forcefully [Section 9(5)(c)]. What can a person aggrieved with decisions of a Special Court do about her grievance? Worryingly little. All decisions of the Special Court are final and not subject to appeal [Section 9(3)], and so the only possible legal remedy is by way of writ petitions. In this regard, the Karnataka law is even harsher then the Andhra Pradesh statute on which it is modelled upon, as the latter creates a two-tier system allowing for appeals.

An Unfairly, Arbitrarily, and Unconstitutionally Harsher Process? 
Directive Principles are not enough grounds for rendering any law unconstitutional, but looking at Article 50 one does get to know that this combination of powers is a harsh process that is not usually prescribed for conducting any cases. Other features which make the procedure under the Act a harsh one were discussed previously. The question, then, is whether these deviations from the standard set of rules is constitutional. For this, the state must show exactly what makes the land grabbing problem so bad that it justifies re-introducing colonial legal principles that were removed after some serious bloodshed. Could anything really be that bad for the state to revert to the colonial system? If the state cannot satisfy this burden it possibly renders the statute contrary to both Article 14 (protecting against unfair and arbitrary discrimination) and Article 21 (protecting against unfair and arbitrary deprivation of the right to life).   

I suspect it is going to be difficult to justify the problem as being so bad that the government needs (i) the power to arrest without warrant and detain persons pending trial, (ii) to presume guilt, and conclude this by a truncated trial process (iii) to have mandatory minimum sentences, (iv) to have all of these powers bundled up together in one body whose decisions are not subject to appeal. This task is potentially made even more difficult if we consider the fact that the many state laws concerned with land grabbing coexist with a Federal law on a similar subject: the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 [Public Premises Act]. This allows for the removal of persons occupying lands owned by the Indian Government. Like the state laws, the Public Premises Act also creates offences and designates them as cognizable. But this is where the similarities end, for unlike the state laws, the Public Premises Act does not allow for arrests without complaints by specified public servants based on the kind of property concerned [Section 11-A]. The Public Premises Act only criminalises illegal occupation of land and does not criminalise illegal construction etc. [Section 11]. Moreover, this is a crime which it punishes by possible jail-time of up to six months, (repeat offence being punishable up to a year) and possible fine of up to five thousand Rupees. It gets worse. The Public Premises Act does not begin with a criminal court deciding the fact of illegal occupation / construction. That issue is determined in hearings before an Estate Officer, who issues a show cause notice to the concerned individuals. If, after this process, the Estate Officer concludes that occupation was illegal, this leads to an Order of Eviction. This need not call for immediate eviction, and allows for giving up to fifteen days for clearing out of the land [Sections 4-5]. Finally, unlike state law which does not allow any appeal against the orders of a Special Court, all orders made by Estate Officers can be appealed [Section 9].

ConclusionThe New Normals
There are more possible grounds on which one could challenge the Karnataka statute, but I thought the Special Court presented the most obvious source of legal trouble and so focused on it here. With the litigation in the Karnataka High Court pending, one hopes that the issues receive a proper hearing. This is important not only from a "legal" perspective. The problems that have been flagged in these two posts are not mere legal issues: they are windows into seeing how government in India is willing to create oppressive legal regimes to force policy agendas, and has been doing so for some time. This eagerness to achieve results is slowly eroding whatever supposed transformations India's Constitution sought to bring. It is the responsibility of the people of India to stop this trend through the political process. But this arduous task will continue to verge on the impossible if the the courts, custodians of the constitutional agenda, turn a blind eye and let status quo persist. 

[Disclaimer: This post was written with inputs from Ms. Nayanatara B.G., a practising advocate who is part of the legal team challenging the legality of the Karnataka Land Grabbing (Prohibition) Act before the High Court of Karnataka, at Bengaluru]

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