Research Paper: Evolution of Property Rights in India

EVOLUTION OF PROPERTY RIGHTS IN INDIA:  Lessons from the past, possibilities for the future by Madhumita Datta Mitra* Right to property is framed as a human right under the Universal Declaration of Human Rights and is recognized as a fundamental right in most democracies. It is one of the most controversial of rights, always in need of an appropriate definition suited to a nation’s political, social and economic conditions. While all liberal constitutions allow for certain reasonable restrictions on an absolute right to property for some public good, the challenge facing every country is where to draw the line against state interference into a person’s right to own and enjoy property. Download [PDF] I. Introduction In 1950, independent India drafted into its new Constitution a set of fundamental rights for its citizens to free speech, peaceful assembly, association, to move freely throughout the territory, to reside and settle in any part of the country, “to acquire, hold and dispose of property”, and to practice any profession, or carry on any occupation, trade or business. The Constitution also gave the nation an independent judiciary. Of all the fundamental rights enshrined in the Indian Constitution, the right to property has been persistently under attack from the Executive. Political philosophies of the day claimed a need to set right historical wrongs. Whittling down property rights through repeated subversion of the Constitution was the chosen path. This pitted the Executive against the Judiciary, while the former claimed mandate from the people, the latter saw itself to be the final arbiter on the Constitution as framed by the founding fathers. Undermining of the right...

Govt. to SC: Won’t promulgate the land acquisition ordinance again

Land acquisition ordinance not to be promulgated again: govt The ordinance, that has been re-promulgated thrice, will be allowed to lapse as due on 30 August, says an official Mint, Saturday, Aug 22 2015New Delhi: The government told the Supreme Court on Friday that the ordinance on land acquisition that is to lapse on 30 August will not be promulgated afresh. The court was hearing a challenge against the 30 May re-promulgation of the ordinance by petitioners Bhartiya Kisan Union, Delhi Grameen Samaj, Gram Sewa Samiti and Chogama Vikas Avam Kalyan Samiti. The court had issued notice to the Centre on their earlier petition against the ordinance on 14 April. Separately, a government official confirmed that the ordinance would not be promulgated again and would be allowed to lapse. The National Democratic Alliance (NDA) government had issued the ordinance on 29 December to introduce changes to some of the provisions of a 2013 land acquisition Act that was shepherded by the former Congress-led United Progressive Alliance government. The 2013 law, which replaced a law dating back to 1894, stipulated that consent of 70% farmers is required if land is being acquired for projects where the government is in partnership with private firms. For private projects, the consent of 80% of farmers is required before the land can be acquired. The 2013 law also made a social impact assessment mandatory before the land is acquired. These provisions were seen as prohibitive by industry and blamed for the slowing growth of the economy. With the NDA outlining plans to boost manufacturing and economic growth through its programmes like Make in India,...

Tribal Affairs Ministry’s Directive: Don’t rush forest rights, Centre tells states

Tribal Affairs Ministry’s Directive: Don’t rush forest rights, Centre tells states On April 28, the then MoTA secretary wrote to the states expressing hope that the process would be “completed within the current year”. by Jay Mazoomdaar, Indian Express, New Delhi, August 13, 2015 In “campaign mode” since April this year, when the Prime Minister set a December deadline for settling claims under the Forest Rights Act, the Tribal Affairs Ministry has now warned state governments against riding roughshod in their hurry to meet the target. “It is emphasised that the (earlier) request of the ministry that the states implement the Forest Rights Act in a proactive and time-bound manner should not be interpreted to mean bypassing the requirements of the said Act and Rules in any manner,” the ministry wrote in a directive issued on August 10. [MoTA’s letter dated Aug 10, 2015, is available here. http://tribal.nic.in/WriteReadData/CMS/Documents/201508121054481498449FRA.pdf] It went on to caution that “the Forest Rights Act implemented in haste may lead to perpetuation of the historical injustice against forest dwelling Scheduled Tribes and other traditional forest dwellers which the Act seeks to correct”. At the second PRAGATI (Pro-Active Governance And Timely Implementation) meeting on April 22, PM Narendra Modi had said that “vesting of forest rights on tribals and traditional dwellers is a critical step for empowerment and progress” and the “ministry and state governments need to work in campaign mode to cover those still deprived of their rights”. On April 28, the then MoTA secretary wrote to the states expressing hope that the process would be “completed within the current year”. Under the FRA, three types of...

MoTA issues guidelines on the use of GIS to assess claims under FRA

Ministry of tribal affairs has issued “Guidelines with regard to the use of Geo referencing for assessment of potential areas and re-examination of rejected claims under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)”, on July 27 2015. Following are a few extracts from the letter addressed to Chief Secretaries of all the state governments. … … … 3. The Ministry had received reports which suggest that large number of claims have been rejected due to lack of evidence or incomplete evidence. It may be noted that as per Rule 6(b) of Forest Rights Rules, district administration in general and the SDLC in particular are expected to assist the Gram Sabhas and the FRCs by providing forest and revenue maps. In this context geo-referenced maps may be generated and be provided to Gram Sabhas, and FRCs. Accordingly claims rejected on the grounds of insufficient evidences or which prima-facie requires additional examination may be re-examined. 4. It is being reiterated that the use of any technology, such as, satellite imagery, should be used to supplement evidence tendered by a claimant for consideration of the claim and not to replace other evidences submitted by him in support of his claims as the only form of evidence. If rights have already been recognised in favour of a claimant, the same may not be reopened. 5. Through Geographical Information System (GIS), maps can be prepared for implementing agencies, regarding the eligible areas for the implementation of FRA where maps can be drawn at different administrative levels like nation, state, district, block and village. With the use...

New Study: Forest Dwelling Communities could have rights over half of India’s forests under FRA

New Study: Tribals and Forest Dwelling Communities could have rights over half of India’s Forests Empowering Millions and Opening Door to Largest Land Reform in Country’s History Rights and Resources Institute (RRI), July 21, 2015 http://tinyurl.com/pn6ecuj Realizing full potential of Forest Rights Act will transform land ownership, forest governance, and rural livelihoods for tens of millions of forest-dwellers on at least 40 million hectares of land NEW DELHI, INDIA (22 July 2015)—A new study has revealed that India’s 2006 Forest Rights Act (FRA) has the potential to recognize the rights of approximately 150 million forest dwellers on at least 40 million hectares of forested land. The complete report can be downloaded from here. http://www.rightsandresources.org/wp-content/uploads/CommunityForest_July-20.pdf Conducted by Vasundhara, NRMC India, and the Rights and Resources Initiative (RRI), the study finds that if the FRA is properly implemented, it would initiate the largest ever land reform in India, shifting forest governance from an undemocratic, colonial system to a decentralized, democratic one where Gram Sabhas are decision-makers. Such a process would also conform to the Indian State’s constitutional obligations towards its tribal citizens. Utilizing government data, the study followed a two-step process to assess forest areas that under the FRA are vested with forest-dwelling communities. The study examined the Forest Survey of India and census data to assess forests that are already listed as a land-use category within revenue village boundaries. The second step added customary forest areas of the North Eastern states which were not covered by FSI. The study then suggested additional work to assess forest area customarily used by forest-dwellers outside of revenue village boundaries and thus eligible under...