Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 1)
Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020
In 2020, The Government of Gujarat passed the Gujarat Land Grabbing (Prohibition) Act to “ensure that no criminals and land mafia usurp land of farmers”. 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. Similar land Grabbing laws have been introduced in the States of Assam (2010), Odisha (2015 ordinance), Andhra Pradesh (1982), and Karnataka (2016). Earlier some people were making false claims on the title of land parcels and then extorting money from lawful owners to let go their “claim”. So the government has brought up this stringent law.
This article discusses an attempt to discuss 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 Gujarat law. We couldn’t find anything from Odisha or Assam. Thus, whatever is argued here is based on an assumption that the issues of constitutional validity have not directly come up before any High Court or Supreme Court yet. If they have, please share the judgment!
WHAT IS “LAND GRABBING”? HOW SERIOUS IS IT?
Land Grabber [defined under Section 2(d) of the Act] is a person who commits land grabbing, or abets others in doing so. Land here means land belonging to government, essentially [Section 2(c)]. As defined under Section 2(e), “Land Grabbing” means:
… every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal tenancies or lease or licence, agreements or transfer or sale or by constructing unauthorized 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 10 year and potentially up to 14 years in prison, along with a fine which could go up to Jantri Value of such grabbed land[Sections 4, 5]. If that doesn’t sound serious enough, 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 ten 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.
In Act of Andhra Pradesh, it states specifically under section 5 that “the Special Tribunal shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his representation or of adducing evidence, if any, in this regard and consider every such representation and evidence” and also section 8(1-A) states that “the Special Court shall not take cognizance of any such case without hearing the petitioner” but there are no such specific provisions in Act of Gujarat.
Proving “Land Grabbing” in Court – More Reverse Burdens
Section 11 of the Karnataka, Section 10 of the Andhra Pradesh Act and Section 11 of the Gujarat act, all three acts provide 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 he 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.
There are some relevant facts about the Burden of Proof in the Case of Noor Aga vs. State of Punjab and Ors., it states that presumption of burden of proof would operate in the trial of accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift to an accused.
So the question is. “ under what circumstances, it is said that prima facie it is proven about the burden of innocence?” it is not clearly mentioned in this act. So there should any justification regarding the burden of proof where it reverses.
FURTHER DOUBTS AS TO THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE ACT:
- Violation of Article 20- Section 9 of the act provides taking an action by the Special Court in respect of the land grabbed whether before or after the commencement of the Act. Thus, the Act has retrospective applicability and it makes the past innocent person as a criminal by post facto law which violates the fundamental rights of a citizen.
- Violation of Article 21- The Section 4,9 and 11 of the act infringe the fundamental right of the person which are concerned under Article 21. The act also does not provide any summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent authority. The fair and reasonable procedure is not contemplated under the Act and hence it would violate the fundamental rights of the person concerned under Article 21 of the Constitution of India.
- Conflicts with Limitation Act 1963: The Section 27, 65, 111 and 112 of the Limitation Act 1963 provides a statutory period of limitation that is allowed for possession of immovable property or any interest is 12 years in the case of private property and 30 years for public prop property, from the date the trespasser occupies the property. Section 27 read with Article 65 of the Limitation Act extinguishes the right of a lawful owner in respect of land or immovable property if within the time stipulated therein the owner fails to assert his right to have possession. The provisions of the Act are repugnant to and in conflict with the above provisions because the act does not provide any remedy to the occupier which exceeded the tenure of 30 years instead, it declares the person guilty who have occupied the land before the commencement of this act.
- Eviction of unauthorized person– The section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972. provide for a summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent officer and providing an appeal against the order of the competent authority. But the provisions of Gujarat land grabbing act do not have such fair and reasonable procedure, hence it also conflicts with the above two acts.
- Creates contradiction with Code of criminal procedure – The section 167 (2) (a) of CRPC provides for 60 or days 90 days for submitting final report after the registration of the FIR and arrest but In Gujarat land grabbing act, the Rule 5 (10) provides for submission of the final report by Police within 30 days of the registration of the FIR which is absolutely unreasonable as the property and land disputes involve many complex legal and factual issues, which takes lot of time and understanding.
- Contradiction the doctrine of proportionality- The doctrine of proportionality means the administrative action should not be more drastic than it ought to be for obtaining the desired result. The section 4 of the land grabbing and prohibition Act which states that the convicted person should be punished with imprisonment for a term which shall not be less than ten years but which may extend to fourteen years and with fine which may extend to Jantri value of such properties violates the doctrine of proportionality which has been used by apex court since 1950..
- Contradiction with Section 202 of the Gujarat Land Revenue Code, 1879- The Section 202 of the Gujarat Land Revenue Code,1879 provides a detailed procedure on how to evict an unauthorized occupant by serving him a notice and a reasonable time to vacate the land but Gujarat Land Grabbing (Prohibition) Act, 2020 does not provide any such fair and reasonable time or any detail procedure, hence it conflicts with the Gujarat Land Revenue Code, 1879.
- Conflicts with section 101 and 102 of the Evidence Act, 1872- The section 101 states that whoever desire any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The section 102 of the Evidence Act, 1872 states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. But According to section 11 of the Gujarat Land Grabbing (Prohibition) Act, 2020, the special court is bound to presume that the person who is alleged to have grabbed land is a land grabber. The burden of proof that the land has not been grabbed by him, shall be on such a person. The section 11 of the Gujarat Land Grabbing (Prohibition) Act, 2020 doesn’t deem to be fit and the interest of justice equity and good conscience.
- Limit the scope of interference of Higher Court- In the Karnataka Land Grabbing (Prohibition) Act, 2011, the court can proceed to rehear the case in manner provided by the Code of Criminal Procedure, 1973 but in Gujarat Land Grabbing (Prohibition) Act, 2020 in section 9(2), it states that in respect of alleged act of land grabbing determination of question of title and ownership to, or lawful possession of any land grabbed under this act, shall, subject to the provision of Gujarat Land Grabbing(Prohibition) Act, 2020. The decision of the special court will be final. There is no option to appeal, a revision or a review. The only option he has is the writ of certiorari.
- Burden of proof on victim- The provisions of Sections 11 of the Gujarat Land Grabbing Act being draconian in nature imposing reverse burden on an accused and, thus, being contrary to Article 14(2) of the International Covenant on Civil and Political Rights providing for ‘an accused to be innocent until proven guilty’ must be held to be ultra vires Articles 14 and 21 of the Constitution of India. The Act contains draconian provisions. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional. The approach of the Common Law is that it is the duty of the prosecution to prove a person guilty. Indisputably this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that the Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the Court, where the legal burden is on the accused. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. Fairness and reasonableness of trial as also maintenance of the individual dignity of the accused must be uppermost in the court’s mind.
- Demolition under BPMC Act, 1949- BPMC Act, 1949 clearly states the provision regarding the demolition over any illegal possession of the property. Here the Gujarat Land Grabbing (Prohibiton) Act, 2020 overrules the BPMC Act and provides provisions a not in interest of justice, equity and good conscience.
- THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT,2014- The Gujarat Land Grabbing (Prohibition) Act, 2020 has failed to check the ground reality of the state. There are many street vendors who do occupy the land and vacate after the particular time. There is a special act called THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT,2014 which describes rules, provisions, punishment for street vendors but there are no provision in The Gujarat Land Grabbing (prohibition) Act, 2020 for the street vendors. This act is not in interest of justice or equity for the Street Vendors. Further that this act can create a threat to the Street Vendors who occupy land for sometime for their livelihood.