Indian State : How Liberal and Democratic?

Over the past two years or so the normally un-newsworthy rural poor in India have time and again made the headlines with their vehement opposition to the forced acquisition of their lands by the state on behalf of the industrialists at prices much lower than their market value. The role of the state has thus been seen by the people affected by this involuntary displacement as favouring the industrialists at their expense. This has brought the spotlight to bear on the role of the state in the prevailing frameworks of governance and development in this country that are liberal democratic and capitalist in nature respectively. What will be attempted here is a review of the existing laws in India regarding land acquisition and rehabilitation in the light of the basic philosophical tenets of liberal democracy to see how far they conform to them.
Classical Marxist theory asserts that the state in a capitalist society is a handmaiden of the ruling classes and the democracy that is practised is a sham. That is why Marxists advocate an overthrow of the liberal democratic capitalist state, if necessary through an armed struggle. Consequently there are a section of people in this country who are pursuing precisely such a course of action. However the vast majority of the citizens of this country still believe in the frameworks of liberal democratic governance and overall capitalist development of the economy and so the remedies to the problems arising from involuntary displacement have to be currently sought within these frameworks. In addition to this the legally operative parts of the Indian Constitution adopted in 1947 were largely based on a classical western form of liberalism with the anarchist, anti-industrial and anti-colonial Indian prescriptions of Gandhi being relegated to the non-justiciable Directive Principles of State Policy and so the anarchist Gandhian option of decentralised village development too has been foregone by our leaders and planners . Thus the “law” by which we are “ruled” in this country is very much steeped in western liberalism and that is why it will be necessary to delve into the philosophical roots of western liberalism by whose practical tenets the Indian state is supposed to rule if we are to find viable solutions to the problems arising out of involuntary displacement.
Liberal democrat philosophers have asserted that while the liberal democratic state has the monopoly of the use of force to subordinate the individual to the common good nevertheless it is possible to ensure that the state’s use of force is curtailed through the rule of law. That is, the enactment of just laws and their strict implementation can ensure that maximum good for the maximum number arises from the use of force by the state. The first person to grapple with this problem of legitimising the liberal democratic state was the English political philosopher John Locke. He showed how a regulatory state would necessarily develop from an anarchistic “state of nature” situation given the need for ensuring individual freedom of all citizens. Many philosophers have followed this up and enhanced this line of argument. The most cogent exposition about how a state is bound to evolve so as to maintain the maximum amount of freedom and equality is the one put forward by the American libertarian philosopher Robert Nozick. In perhaps the most seminal libertarian text of all times - “Anarchy, State and Utopia”, he argues that the liberal democratic state is there to ensure freedom and equality for all its citizens. It has to intervene if this freedom and equality are jeopardised and if necessary use force against the “culprits”.
This use of force by the state is, however, governed by laws that the state cannot bypass by unleashing its armed forces or police on its citizens if they decide to protest against what they perceive to be an infringement of their rights or the implementation of an unjust law. Thus apart from ensuring freedom and equality among citizens, another important function of the liberal democratic state is to uphold justice for all its citizens. Here too there has been a lot of debate regarding the definition of justice and once again the most powerful exposition of justice to date is by another American philosopher John Rawls in his seminal book called “A Theory of Justice”. According to him, justice within a liberal democratic state envisages that social and economic inequalities are so arranged that they are both to the greatest benefit of the least advantaged and attached to offices and positions of governance open to all under conditions of fair equality of opportunity. This implies that the state should so operate that its most disadvantaged citizens, in this case the rural poor of this country, are benefited by its actions.
This is where in India the colonial Land Acquisition Act 1894 (LAA) as it stands today comes under the liberal democratic scanner for being both unequal and unjust. The Act which is brought into play to displace people from their lands for a project that is purportedly in “public interest” is distinctly undemocratic in many ways. Under the Act public interest is not defined and it is assumed that the state has the 'eminent domain' to acquire private land and property and is the best arbiter of public interest, the state can acquire land for private companies, the prescription for calculating the value of the land to be acquired is distinctly against the interests of people living in remote rural areas like the adivasis, there is no provision for rehabilitation and resettlement of the affected persons and most importantly the procedure for objections to the possible arbitrariness of the state in determining public interest and in awarding compensation is so complicated that it is near impossible for the rural poor and especially the adivasis to take advantage of them.
Every citizen has the right to a due process of law and should under a truly liberal democratic dispensation be able to easily contest whether a project is really in “public interest” or not and whether the compensation provided and the rehabilitation and resettlement provisions made are favourable to them or not. This understanding forms the basis of the recent criticism of the Indian state by mass people's movements. They accuse it of stepping in either for its own projects or on behalf of the industrialists to acquire land for a song from poor people. It is a tribute to the wisdom of even illiterate people that they have learnt the basics of this 'rule of law' the hard way in the course of repeated displacements as well as their participation in the formal democratic processes over the past sixty years since independence. They rightly feel that in reality some people in this ostensibly democratic dispensation of ours are more equal than others and that the state - contrary to the role ordained by the constitution - is illegally upholding this inequality and violating the rule of law.
If anything the rural poor in this country have not only not benefited from the actions of the Indian state but on the contrary have continuously been sacrificed to the illegality of its actions. Millions of people have been displaced through direct and indirect means since independence with the help of the black LAA without rehabilitation and resettlement and this mountain of injustice has now begun breaking down on the state and those well heeled industrialists who have consistently used its monopoly over the use of force to subvert the rule of law. What is of prime concern today from the classical liberal democratic perspective is that even the judiciary condones the illegal actions of the state as it has done in the Singur case by saying that the acquisition of land by the West Bengal Government for the Tata car plant was legally valid. Also in the long drawn out legal battle over the construction of the Sardar Sarovar dam on the Narmada river the Supreme Court has elided over many lapses on the part of the state in protecting the rights of the oustees.
For instance Chelar Singh of Bhitara village in Alirajpur district in the picture below is seen in front of the maize crop that he used to raise on the banks of the River Narmada in winter on the silt deposited during the monsoon floods. While Chelar has been provided some land in lieu of the land he had in his name in the village proper which was submerged due to the Sardar Sarovar dam, he has not received any recompense for this extra winter crop of maize that he used to take.

Nevertheless, today a major line of hope that remains within the liberal democratic setup for the establishment of the rule of law is still the judiciary. Even with all its deficiencies it does provide some relief sometimes. One of the greatest judgments of the Supreme Court is undoubtedly the one delivered in the Samatha Case (Samatha vs State of Andhra Pradesh, 1997 8 SCC 191) against the granting of mining leases by the Andhra Pradesh government to a private non-Adivasi company in an area that had been notified as a scheduled tribal area under the provisions of the Fifth Schedule of the Constitution. The state contended that the provisions of the Fifth Schedule regarding the non-transfer of adivasi land or government land in a scheduled tribal area to non-adivasis is not binding because the operative word in the constitution is that the governor of a state “may” advise the government to enact such affirmative laws for the adivasis but it was not mandatory for the state to do so or having done so not to repeal them. In a fascinating majority judgment quoting extensively legal luminaries from across the world and from the debates in the constituent assembly the supreme court laid down that even though the operative word is “may” the intention of the framers of the constitution was that it should be “shall” and that the provisions are binding on the state to protect the adivasis’ entitlements!
Similarly even if the Supreme Court did not acquiesce with the Narmada Bachao Andolan's demand for scrapping the Sardar Sarovar Dam altogether it upheld the fairly just provisions of the Narmada Water Disputes Tribunal with regard to rehabilitation and resettlement and the NBA has consistently used this to intervene on behalf of the oustees of not only the Sardar Sarovar dam but also of other dams upstream on the Narmada and its tributaries.
We need more such judgments to further deepen liberal democratic principles in the country as more and more mass protests are gathering strength against illegal laws of colonial vintage and the violation of the rule of law by the state in favour of industrialists. The post independence struggles of the peasantry and the working class in general and the intensive mass struggles against displacement since the 1980s have in many ways been able to democratise the functioning of the Indian state but what is surely evident is that not enough has been done. In fact with the enactment of the Special Economic Zones Act 2005 the Indian state took a major retrogressive step towards negating all liberal democratic rights within these spcial zones which were to effectively become foreign enclaves on Indian soil.
The most glaring feature of both the SEZ Act and the LAA is that the right to property is being unequally administered under their provisions. While the right to property of the rich is religiously protected by the state by various means that of the poor is disdainfully disregarded. For instance one major positive legal development in the post independence period has been the 73rd amendment to the Constitution making Panchayati Raj a mandatory third tier of governance in rural areas. According to this and also according to the provisions of the Environment Impact Assessment guidelines of the Ministry of Environment and Forests it is mandatory to take the permission of the Gram Sabha before implementing a project in its area. However, this provision is routinely neglected or worked around through various underhand means. In many cases the Gram Sabhas have become "Gun Sabhas" where the state has used the force of the police or the armed forces to coerce the members of the Gram Sabhas to sign away their rights. The basic flaw here within a capitalist framework is that market forces are not being allowed to operate freely. Given the tremendous shortage of land any person or company wishing to acquire land would have to pay a premium to do so. However, this market logic is suppressed by the government through the use of the LAA and people are forced to sell their land at much lower prices.
These contradictions arise because the most important need of capitalist development is the extraction and centralised processing of natural resources which comes into conflict with true decentralisation and participatory democracy. This is the problem that has to be addressed for development that is just and sustainable in every respect in this country. In theory at the level of the constitution the law and the rules for its implementaion do not discriminate between the rich and the poor but in reality some of the colonial laws and the socio-economic situation prevailing do tend to favour the rich. As the French Nobel Laureate Anatole France has said sarcastically about the pride of being a citizen in a democracy in his novel “Red Lily” - “Another reason for pride, that of being a citizen! For the poor citizenship consists of supporting and sustaining the power and idleness of the rich. They must work for those goals before the majestic equality of the laws, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.” It is quite evident that the displaced poor have had enough of sleeping under bridges, begging in the streets and stealing bread and so have mounted tremendous pressure on the state to amend unjust laws that favour the rich.
Given that capitalist development will invariably involve involuntary displacement we must have good laws in place to ensure justice to those affected. The crux of reconciling displacement and rehabilitation with the basic liberal democratic principles of equality and justice is the participation of the affected people in the evaluation of the necessity and viability of a development project and in the planning and execution of the rehabilitation programme. An important aspect of this is to let the market for land operate freely instead of distorting it in favour of industrialists through legislative intervention. This is even more pertinent in the Indian context where in most cases the affected people have neither the knowledge nor the financial wherewithal to approach the courts to seek justice in case of such governmental heavy-handedness. Many other laws too apart from the patently black LAA and SEZA at present fall critically short of classical liberal democratic norms and so are not 'just' laws in accordance with the principles of classical liberal democracy and neither do they conform to the principles of free market economics that are the mainstay of neo-classical capitalism. Moreover the state hand in glove with the capitalists continually flouts its own laws to subvert the rights of the poor and so their mobilisation is fraught with innumerable dangers.
This is what has led anarchists like myself who are disenchanted with centralised statist approaches whether of the liberal democratic or the marxist variety to denounce both approaches as being fundamentally flawed. Thus it is important to think beyond centralised models of development and explore ways in which communitarian development can once again be brought into focus.