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].

Conclusion: The 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]

The Lawlessness of Land Grabbing Laws? - Part I

In 1982, the government of what was then undivided Andhra Pradesh passed the A.P. Land Grabbing (Prohibition) Act to "curb the unlawful activity of grabbing Government land, a local authority, a religious or Charitable Institution or Endowment including Wakf or any other private property". A central means of achieving this was to create a new offence of "land grabbing" and to create "Special Courts" for dealing with land grabbing cases that would finish them within six months. Inspired by the A.P. model, similar Land Grabbing laws have been introduced in the states of Assam (2010), Odisha (2015 ordinance), and Karnataka (2016). In 2011, in a much-politicised incident the Madras government relied on similar ideas for "better" enforcement of existing laws but chose not bring a new legislation into effect.

This two-part series discusses some problems with the Karnataka version of the Land Grabbing Act. The problems are not restricted to issues with the constitutional validity of the law, but cover more ground that touches broader policy issues. Before proceeding further though, a caveat. Surprisingly, it seems that the constitutional validity of these statutes has rarely come up for scrutiny before the state High Courts. Searching for cases, I only came across constitutional challenges to how the Special Court is constituted under the A.P. law. I couldn't find anything from Odisha or Assam. Thus, whatever I argue here is based on an assumption that the issues have not directly come up before a court yet. If they have, please share the judgment! 

What is "Land Grabbing"? How Serious is it?

Land Grabbers [defined under Section 2(e) of the Act] are persons who engage in Land Grabbing, or abets others in doing so. Land here means land belonging to the government, essentially [Section 2(d)]. As defined under Section 2(f), "Land Grabbing" means:

... every activity of grabbing of any land, without lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements, construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures ... 

The definition is not very helpful. It contains a clear "physical conduct" requirement: there must be "grabbing of any land without lawful entitlement". But there must be an associated mental state with this conduct that makes it criminal. Here, this is grabbing land to which you have no title, with a view to (i) take illegal possession, (ii) create illegal tenancies / lease / license deals, (iii) build structures for sale / hire, (iv) hand over the land to someone else to do all of these things. Since you would rarely end up "grabbing" any land which you don't own without wanting to take illegal possession over it, one would think that it isn't too difficult to prove this crime. But more on that later.

This is not the only offence under the statute. Section 5 lists "Penalty for other offences in connection with land grabbing" and criminalises other acts, such as (i) selling grabbed land / advertising about it, (ii) instigating or inciting someone to grab land, (iii) uses grabbed land for any purpose, or knowingly permits it to be used, (iv) enters into deals about constructing on grabbed land, (v) "causes or procures or attempts to procure any person" to do any of the above. Again, one wonders why this was needed given the massive overlap between the two provisions.  

Land Grabbing and all other offences in connection with it, are punishable with at least 1 year and potentially up to 3 years in prison, along with a fine which could go up to Rs. 25,000 [Sections 4, 5]. If that doesn't sound serious enough, note that all offences are cognizable [Section 13]: which means that law enforcement can arrest persons without warrant on suspicion that an offence was committed.  Moreover, since the statute does not provide whether the offence is bailable or not, the Cr.P.C. makes it non-bailable by virtue of it being punishable up to three years in prison. Why would such broad powers be given to states? The definition of "Land Grabber" gives a hint. It is not only talking about persons who take illegal possession. Rather, it focuses on the idea of organised activity geared towards land grabbing. It speaks of "a group of persons or a society" engaging in this, or giving "financial aid" to another for grabbing land or illegally constructing upon it. The definition even speaks of persons "collecting or attempting to collect" money from occupiers of grabbed land by "criminal intimidation", again hinting at organised crime.* It is quite common for organised crime to not be limited to just one activity, which is why allowing police powers of arrest for these things may help them get dangerous persons off the streets. 

That is the logic behind having these powers, but as we know, it is quite common for such powers to be misused. That is a serious concern given how loosely the definition is crafted, and how widely the net is cast. Take a hypothetical: someone tells the police that X is illegally occupying some land. Since illegal occupation would rarely mean that it is not done with a view toward illegal possession, that is enough for police to arrest. Someone needn't even tell the police that actually, as they can do it themselves. The problem goes further: the act penalises a person who "causes or procures or attempts to procure" anyone to engage in land grabbing. This is not a regular law that penalises attempting to commit a crime. It penalises attempting to get someone to attempt the crime - "attempts to procure any person to do any of the above". That theoretically means anyone can be arrested and sent to jail, and practically means that the police have a tool to arrest and jail persons on the pretext of allegedly committing this offence. [See here, and here, for earlier posts that discuss this issue].       

Proving "Land Grabbing" in Court - More Reverse Burdens

Section 11 of the Karnataka Act provides that in any proceedings under the Act, if the government can prima facie prove that the land in question was government owned, then the Special Court shall presume that the person is a Land Grabber, and the burden to prove she is not guilty of the crime lies on the person accused. Using reverse onus clauses - where the state does not have to prove guilt - to make it easy for the government to get convictions is now very common. It is a practice blessed by the Supreme Court, which has held them legal as long as the government proves initial facts to shift the burden on to the accused. Here, the government is asked to prove something: that the land was government owned. Does this justify the shifting of burdens? I am not so sure.       

First, the provision here applies to all proceedings under the Act: which means that at every stage such as bail, initial remand, and the start of the trial, the accused will be contesting innocence. This, at the stage of bail where the accused may not yet have the means to assemble a defence, make the bargain particularly unfair. Second, the state needs to prima facie prove something. But what does it mean to prima facie "prove" anything? The Evidence Act in Section 113-B asks the state to "show" facts, and usually the law asks it to "prove" facts. But prima facie proof suggests a lower standard. If the state already doesn't need to prove guilt, is it legal for the burden to prove initial facts to be even lower than proper proof beyond reasonable doubt? Third, Section 11 asks the government to prima facie prove that the land in question was government owned. Is this enough? Logically, one imagines that the state will also need to prove that the land was being occupied by the accused. Assuming this condition is incorporated into the provision, we come to the remainder of the offence-requirement. The accused would then have to prove that her occupation of the land was not illegal. That seems fine - property documents etc. should be with the accused and this would simply require her to bring them to court. But poor persons often don't have property documents, despite paying good money for being able to live on land which may not even be government land. Eventually then, they are the ones who stand to suffer.      

Summing Up and Next Post 

This post took up two issues with the Karnataka Land Grabbing Act - how it defines the crime of "Land Grabbing" and how it provides for enforcement of the law by the police and by judges. A common theme that emerged was that while the purely legal objections to the statute might be easy to deal with, the real-world problems that the law brings remain unaddressed. Since there is no legal basis to challenge the classification of offences as cognizable and bailable, it means courts cannot act as a check on police powers of arrest and detention. When the legislature confers these powers on the police for the enforcement of vague crimes, which cover not only attempts to commit the crime but attempts to attempt, it invites rather than merely allows misuse. Similarly, reverse burden clauses are now something we can justify as fair when it seems that the accused is not being asked to prove too much. But in imagining this idea of what is "too much", we are assuming a kind of accused person who might be prosecuted: someone who can offer that proof. In context of land grabbing, and many other offences that rely on documentation, the truth is that several people cannot offer those papers. Not because they are violating the law, but because they are poor and vulnerable to oppression by the state machinery which denies them their rights. Does this render a law bad? Unfortunately not.            

The next post will take up issues with the "Special Court" created under the Land Grabbing Act and how it prosecutes and tries offences.

*The definition of Land Grabber is curious. It speaks of collecting rent by "criminal intimidation" as a problem, but does that mean collecting rent without this is not a problem? Going by the definition of Land Grabbing, and associated offences under Section 5, one suspects that the statute is not going to be limited this way.

[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]