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The Right To Property In India

Indians still consider their property rights sacrosanct, even if it is not guaranteed as a fundamental right.

The Right To Property In India
The Right To Property In India

"Should 16 million Peruvians renounce the natural resources of a third quarter of their national territory so that seventy or eighty thousand Indians could go quietly on shooting at each other with bows and arrows? ...No, Mascarita, the country had to move forward."

"Do our cars, guns, planes and Coca-Colas give us the right to exterminate them because they don't have such things? And do you believe in 'civilising the savages', pal? How, by making soldiers of them? What's to be gained by that? We want to exploit them more easily, that is all..."

The above extracts are from El Hablador (The Storyteller), the Peruvian Nobel-laureate writer Mario Vargas Llosa's 1987 classic. It is, in part, a narrative of colonial conquest and westernisation seen from two sets of eyes. Taken in context of India in 2015, the State, its officials and industrialists fall in the category of the first speaker. They are the "development oriented" set. In the second category fall the farmer/landowner; sentimental sons of the soil.

Just last week the second category—landowners and farmers—won a small victory. They compelled the BJP to take back its December 2014 changes to the land bill. In particular, they ensured withdrawal of a decision to delete the "consent clause" from the bill via an Ordinance. Even people who did not expect immediate acquisition of their property were angry with this particular change. Obviously, they saw the withdrawal of the consent clause as a violation of their right to their land.

It is true that the Constitution does not recognise the right to property as a fundamental right. Yet, judging by the protests, Indians still consider their property rights sacrosanct, at least somewhat immune from coercive acquisition.

It is in this context that for nearly a decade India has tried to bring up-to-date a hundred and thirty year old law on land acquisition. The debate over land acquisition has been a debate of means versus ends: what are the ends and means of development enshrined in the Constitution and how far can the state go, using its powers to legislate, to meet the ends. 

There is, of course, no limit to such a wide debate but its genesis surely lies in the fact that the Constitution once recognised the right to property under Article 31, which it no longer does, after a series of amendments and additions during the 1950s, 1970s and 1980s. 

Some point out that like all other rights even the right to property was bundled with the duty to exercise it reasonably. This means that there were 'reasonable restrictions' that this right was subjected to, like any other fundamental right, and there was therefore no need to remove its fundamental status.

Also, some say that taking away this right was not within the state's powers, particularly after the Kesavananda Bharati judgement. This judgement held that there is a basic structure to the Constitution which cannot be changed. Does the basic structure include the fundamental right to property? No, it doesn't, going by a series of judicial verdicts that no legal arguments have been successful in replacing, so far.

In effect the state now has the right to confiscate anybody's property, and compensation is only offered as relief. This is the reason why the 1884 law is being amended. To put it simply, the right to property remains a legal right and all Indians can own property and dispose of it as they please but since it is not a Constitutionally-guaranteed right, the government only provides compensation when it acquires land.

One other reason why compensation is such a big issue in land acquisition is that since people have a legal right to their property, the government cannot take this right away, or destroy this right altogether. Compensation is also a way to give people whose land is taken away a chance at a new beginning.

Naturally, since compensation is so critical, it only makes sense that the British era "Land Acquisition Act" now stands renamed the "Right to Fair Compensation...." bill. Yet, people continue to refer to it as the "land acquisition" law. It is worth remembering that in the 1950s, even the right to compensation was not put in place by the legislature. It is through rulings like in the Bela Banerjee case that Courts recognised, slowly, the idea of a "fair" compensation in lieu of land acquired.

The terms of the public debates on land acquisition are set by this bill on "fair compensation", and therefore, all discussions around it focus on how compensation is to be calculated and paid. Usually, in different versions of the bill, this amount depends upon where the land is located. The bill, in its last few versions, has taken into account the difference between urban and rural land prices, and also the location within villages and cities of a particular plot of land and the impact that has on its compensation value. 

In this context, some lawyers and public spirited individuals have tried to take forward the debate on land acquisition to raise the question of a fundamental right to property. They say, among other things, that the right to property was taken away because the government was pursuing a socialist ideal, which is now past its sell by date. Should not then this right be restored to Indians, they argue, since India is no longer socialist?

Besides, there is another argument, within the socialist framework: Does not compulsory land acquisition by the State undo all the gains, such as they are, made during the socialist era, when land was distributed more equitably among the poor? The broader reality of a poor, deprived India versus a wealthy India persists.

Take, for instance, a man who owns only two acres of land, and nothing else. Take another two acre plot owned by say, a Mukesh Ambani. If the government decides to take away both plots of land, is the result of the equitable application of law not creating a greater gulf between the two? How would that square up with the equality principle enshrined in the Constitution? If property is the embodiment of all your physical and financial assets, and a means of sustenance, is it the same thing when the state takes it away from you or from an industrialist on the same terms?

When it comes to property rights, every two acre plot is clearly not the "same". Consider the news of the day, in which a group of farmers in western Uttar Pradesh have approached the President of India for permission to commit suicide on August 15 this year. Could a hypothetical sale of land help these peasants and farmers, and what would they do with the money that the State, its officials, and industrialists (the first category) would consider "sensible" on their part? Why, buy land, of course!

It is in this context that the debate over the removal of the so-called "consent clause" in the land bill has to be seen. 

So harsh was the Ordinance, it seems, that it no longer remained a matter of raising the larger issue of means versus ends. The protestors no longer even took into account who should give up land first: the government which is seen to hoard prime land or the people, most of whom who own less than 1 acre per family. They didn't also focus on whether the land they lose might be leading to benefits for another section of people. 

In short, they could not see any development logic behind removal of the consent clause. They do not consider themselves barriers to progress. Their protest wasn't any longer a moral issue of whether land should be acquired from some (mostly the rural poor) and given to others (the wealthy urban industrialist or housing developers). Instead, they stayed focussed on the issue of "consent", finding a wide array of support from the wealthier and poorer farmers and landowners.

This is proof, perhaps, of how Indians still consider their property rights sacrosanct, even if it is not guaranteed as a fundamental right.

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