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.

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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 to property as a fundamental right was precipitated by a weak rule of law regime and saw a corresponding rise in abuse of the eminent domain power. The justification for dilution of the right to property for a more equitable distribution of land by taking from the large landlords, gave way to acquisition of land from small and marginal farmers, for projects and activities that benefit the rich and powerful. This led to a growing sense of injustice and numerous public protests.

This paper will trace the evolution of the right to property in India under the Constitution of India since 1950 and through the substantial and often conflicting jurisprudence. The paper will look at the Executive’s role in the gradual dilution and eventual elimination of the right to property as a fundamental right through the play of politics of equity and distributive justice. Was the Supreme Court’s assertion of its supremacy over the Parliament’s powers to determine the extent of property right commensurate with the Court’s abdication of its review powers in the face of gross abuse of eminent domain?

The paper will examine the impact of the draconian Land Acquisition Act of 1894 and the shift in political response to property rights following a changing public mood against indiscriminate land acquisitions in violation of procedures and without just compensation. The first response to public protests that reflected in the enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) to grant land rights to tribal and forest dwelling communities; the upheaval in Singur and Nandigram, in West Bengal, as a turning point in the land acquisition debate, where popular sentiment forced the hand of the government despite the legal validity of land acquisitions, leading to the enactment of the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act 2013 (LARR Act) and more recent responses to the new law. Finally, the paper will take a critical look at these trends and offer suggestions for a road map to the restoration of the right to property rights in the spirit of the Constitution of India and the needs of a rapidly developing economy.

The property rights story in India is characterised by the dilution of the right to property in the first 30 years, driven by socialist ideology and a sense of distributive of justice, as much as populism, and the corresponding abuse of the land acquisition laws. The next 30 years illustrate how the wheel has turned as citizenship deepened. The poorest are at the forefront demanding protection of their property rights and reinforcing the criticality of rule of law.
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(1) Universal Declaration of Human Rights, Article 17, “(1) Everyone has the right to own property alone as well as in association with others; (2) No one shall be arbitrarily deprived of his property”. Read with other provisions of the UDHR, like right to adequate housing, it has been debated whether the right to property as a human right is a fundamental right or one that imposes an obligation on the State to fulfil.

(2) Definitional issues have ensured that right to property has not been included in the International Covenant on Civil and Political Rights and International Covenant of Economic, Social and Cultural Rights.

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CONTENTS

I.        Introduction 5
II.       Evolution Of Property Rights In India: Pre-Independence 7
III.     Indian Constitution And Property Rights 9
IV.     Individual right versus community rights: Constitution amendments 1951-1964 11
V.      Golak Nath, Bank Nationalisations And Princely Privileges: Constitution Amendments 1971-72 13
VI.    Fundamental Rights Case And The Forty Second Amendment 1977 16
VII.  Abolition Of Right To Property: The Forty-Fourth Constitution Amendment 1978 18
VIII. Legacy Of Kesavananda, Article 300A And The Right To Property 19
IX.    The Ninth Schedule: A Bottomless Pit 22
X.     Eminent Domain 24
XI.   Land Wars And A New Land Acquisition Law 28
XII.  Revival Of Judicial Scrutiny 32
XIII. Future Of Property Rights: An Outlook 34
XIV. Conclusion 40

Madhumita Datta Mitra is an Independent Legal Consultant and Research Fellow to Liberty Institute’s Right to Property Project. She has worked with the Indian government, advised corporate clients and consulted for non-governmental and international organisations. She is interested in transparency and anti-corruption, property rights, employment and business ethics, and public interest law. Madhumita has a Master’s degree in Law from the Washington College of Law, American University, USA, Bachelor’s Degree in Law from the Faculty of Law, University of Delhi and Master’s and Bachelor’s Degrees in English from the University of Madras.

** This paper is a research publication of the Liberty Institute under the Right to Property project supported by the Freidrich Naumann Stiftung for Freedom.

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