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Session #7: Thursday, 30 December, 9.00 - 10.45 am (Tagore 4)
Panel coordinator(s): * (*)
Chair/discussant: Usha Ramanathan (*)
Panel description
Panelists, paper titles, and abstracts
The legal history of the rise and fall of property rights in India is well documented. The Parliament and the Supreme Court of India after decades long tussle over the power of eminent domain, ended in diluting the fundamental right to property. The 44th Constitutional amendment, in other words, expanded the power of the Indian State to expropriate private property. The then Indian social and political context justified such arbitrary expropriation. Since the early 1990’s India embarked on the path of liberalization and globalization. As part of its effort to promoted trade and foreign investments, India committed itself to strengthen its legal environment. Large scale efforts were made in particular to strengthen domestic legal regime pertaining to the protection of foreign investment and intellectual property. India’s obligation under the TRIPS Agreement and BITs guaranteed safety and protection for alien private property in India. In other words, since the 1990’s India assumed obligations which afforded higher protection of alien property. The policy shift presents a serious anomaly. India seems to progressively and selectively modify its legal regime on property rights in favour of alien property rights as against the property rights enjoyed by the Indian citizens under the Constitution. To the extent that international expropriation rules provide foreign investors and IPR holders with greater rights than the Constitution of India, they are also likely to provide them with greater property rights. In other words, the scenario beseeches the question whether Indian laws and international obligations provide foreign investors and IPRs with greater property rights than those available for the Indian citizens. The question assumes great relevance in the context of the Governments approach towards land acquisition for ‘developmental’ purpose.
In this context, this paper is an attempt to revisit the debate on private property rights in India in the changing global context. The paper examines the changing law and the role of State in the context of the post liberalization effect of additional protection for alien private property. It also examines the evolving trend and growing concern about the manner in which the State is exercising the power of eminent domain. The paper argues for revisiting the constitutional status of private property rights, particularly from individual private owners whose identity and livelihood are attached to the property.
The constitutional property clause was perhaps one of the most extensively debated provisions in the Constitution and following its enactment, the most contentious. The decades after independence saw significant clashes between the legislature and the judiciary in constitutional takings cases with the Supreme Court striking down acquisition laws on constitutional grounds and the legislature responding with amendments to the Constitution which redefined property rights. These include the 4th amendment (1955) which ousted judicial review of the adequacy of compensation, the 17th amendment (1964) which amended the definition of “estate” in Article 31A to include ryotwari settlements, the 25th amendment (1972) which replaced the word “compensation” in Article 31(2) with the word “amount” and finally the 44th amendment (1977) which ultimately abolished the constitutional right to property. Despite this contentious history, there has been no systematic study of the Court’s property rights jurisprudence over the period since India’s independence.
In this paper, I analyse the historical and political circumstances within which the constitutional property clauses were drafted to refute the popular notion that (a) the constitutional rights provisions were transformative and (b) that the subsequent clashes between the legislature and the judiciary in constitutional takings cases during the period 1950-1980, stemmed from ideological differences between a progressive legislature and a conservative judiciary.
Using evidence from the Constituent Assembly debates and Supreme Court judgments in constitutional takings cases, I argue instead that the lens used by both the drafters of the Constitution/subsequent legislators and the Court to view this issue were conditioned by the facts of modernity, i.e. modern forms of property, like industrial property were considered desirable even as traditional forms of property like zamindari property were sought to be eliminated. Moreover, the Court’s disagreement with the legislature stemmed more from considerations of securing judicial autonomy and expanding judicial power than from disagreement about the underlying substantive issues. I also argue that the court’s decisions during this period were determined less as a reaction to historico political events and more by factors like the common law culture, education and training of lawyers and judges and the reception of comparative jurisprudence.
Since 1863, Indian law has permitted local government to compulsorily acquire land on behalf of a privately-owned company if the acquisition is regarded by government as being for a ‘public purpose’. The use of coercive public power on behalf of private entities seems always to have been the subject of some controversy. In a nod to qualms about acquisitions for companies, the mover of what became the Land Acquisition Act 1894 made an assurance that ‘the Act will not be use in furtherance of private speculations ... in which the public have no direct interest’. This assurance, whatever its precise meaning, may or may not have been kept: little is known about the practice of acquisitions for companies in the ensuing years. There were, indeed, several instances in which the legal status quo was challenged in the fledgling Legislative Assembly. The most notable of these occurred in 1927 when N.C. Kelkar, a protégé of Tilak and a figure of some importance in the Home Rule movement in Bombay, introduced a private members Bill which would have substantially overhauled the 1894 Act in favour of landowners. The Bill makes for remarkable reading; among other proposals, it would have permitted land to be acquired only for Indian companies; that is, companies that held rupee (as opposed to sterling) capital and had a majority of Indian directors or shareholders. It is no surprise that the reaction of officials to the Kelkar Bill was extremely negative. Kelkar was accused, among other things, of being motivated by ‘racial feeling’ and of being willing to risk India’s economic development for political gain; the Bill was, predictably, never enacted. The story of the Kelkar Bill is worth telling for its own sake, as a forgotten chapter in the history of land acquisition and the history of the Home Rule movement. It is also worth telling for insights into attitudes of the era about the contribution of private enterprise to the public good and, more broadly, about the ‘public’ in ‘public purpose’. The question naturally arises: what has persisted, what has changed?
In my paper, I look at how, a people’s collective, or sangathan engages with the state in asserting claims to land and livelihood. Importantly for this conference, I explore how these assertions are critically centred on legality within an often fraught landscape of contestation. I draw on work such as that of Alan Hunt (1992) where he states, “…law constitutes or participates in the constitution of a ...field within which social relations are generated, reproduced, disputed and struggled over, the most important implication being that within such a field, … legal discourses in play both place limits of possibility on social action and impose specific forms of discursive possibility...”
The incidents/events discussed in the paper are centred on a proposed mining site in a village. A mining lease is granted for a plot of land without the knowhow of the land owner but with the support of the ‘local state’. The landowners opposition to this draws on membership of a ‘people’s collective’. This opposition and challenge to the authority of the ‘local state’ is met with hostility, and assertions, by the local state, of illegitimacy of ‘the collective’ itself. The activities of the collective are labelled ‘Maoist’, and a sit-in in opposition to mining results in arrests and legal cases filed against some members of the collective. Drawing on textuality and legal frames emerge as critical tools for the collective to assert its own legitimacy. Legality and legal frames further, emerge as critical to assert claims to land and livelihood, and to challenge a ‘preordained script’ where the state dominates.
Through the medium of these incidents, events, and moments, I look at the manner in which the idea of citizenship is encountered by a predominantly adivasi community in south west Madhya Pradesh.
Events described in this paper took place in Badwani district, in Madhya Pradesh, central India between 2002 and 2006. This paper draws largely on archival material and secondary sources of information. One specific case forms the empirical basis of this paper, and claims to generalisation are not being made. However, on the basis of this case, some comments can be made related to the varied forms that the state takes. This in turn has an impact on the manner in which the idea of citizenship is encountered.