The entire blame game over the land acquisition in Singur has become almost too confusing to track. Some attribute the problem to the hypocrisy of the Left in West Bengal. Some blame Tata Motors, as the giant car factory will ruin the environment along with lives of farmers. Others blame Mamata Banerjee for her hunger strike and political antics and, still others, Medha Patkar for creating hurdles in the way of industrial development. It doesn’t help gain clarity when the Left begins to support large companies and the Right supports Left-wing activists to save farmers. Who is really to blame for the plight of these farmers? And how is one to protect them from the government’s reverse land reform?
The real blame lies with every socialist government that amended the Constitution, infringing on property rights. And the answer lies in reinstating an individual’s fundamental right to private property—which was abolished in 1978—and restraining the government’s power of eminent domain. The power of eminent domain is at the root of the land controversy. Eminent domain is the power of the state to take the private property of an individual for public use upon compensation to the owner. This power is found in Entry 42, List III, which allows the government to make laws for “acquisitioning or requisition of property”.
The rationale for such wide power is largely utilitarian. Acquisition was meant for public purpose—to construct roads, bridges, dams or public utilities. Requisitioning was more a wartime precaution. The protection afforded to property from the government was in Article 31, which originally read: “No person could be deprived of property without due process of law” and “no property... shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation...”. This was an attempt to incorporate the ‘Takings Clause’ of the Fifth Amendment in the American Constitution: “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. This restrained the government’s power to implement agrarian reforms. Jawaharlal Nehru amended the Constitution and added Article 31A and 31B, which allowed acquisition of any property through legislation even if it infringed on our fundamental rights. The Ninth Schedule was primarily included to protect land acquisition and agrarian reform legislations from the purview of judicial review. Article 31C added under the 25th Amendment completed the trilogy by making any law attempting to increase distributive justice valid even if it infringed on fundamental rights.
The result of all these constitutional provisions and amendments has been disastrous. The government has the authority to acquire any individual’s land under the garb of public interest, against his will and without just compensation. It is ironic that while these provisions were enacted to give “land to the tiller”; they are now being used for “growth and development” by industrialists.
What we see today is a new kind of land reform. The government is taking land from the farmer, essentially telling him that he does not have the potential to contribute to GDP as much as some other individuals; and then transferring that land to someone who will use it for “growth”. There is no public use involved in this change of ownership. It is an entirely private affair with the government using its sovereign sanction to intervene as a real-estate dealer to transfer land from one private person to another on utilitarian grounds.
The special economic zones (SEZs) as conceptualized by the government and the various private stakeholders have been portrayed as the beacon of capitalism. The irony is that the foundation for these so-called ‘beacons of capitalism’ has been laid by trampling on the two most important elements of capitalism: right to private property and the freedom to contract. And it is not the rich capitalists trampling over poor farmers’ rights. Nehru, with his peep-hole vision, decided to amend the Constitution to implement land reforms and undermined the property rights of every individual; he sold the rights of farmers in Singur decades ago in exchange for votes.
The sad part? Singur is not an isolated event. The government of Orissa struck a deal with POSCO for 4,000 acres for another SEZ. The recent violence in Nandigram, Haldia is just another example of farmer-outrage over SEZs. More such cases will follow as the government has already approved 212 of the 400 applications for setting up SEZs. This trend will spread across all 400 pockets because no constitutional protection is afforded to farmers, small entrepreneurs or home owners who don’t have long-term growth potential.
The prescription to prevent further Singurs is straightforward, but not simple. First, reinstate the right to private property as in the original Constitution; it protects the poor farmer as much as the rich capitalist. Delete Article 31A, 31B and 31C, which provide the government enormous power to acquire property in the garb of distributive justice. Finally, reinstate Article 31 in its original form as inspired by the ‘Takings Clause’ in the American Constitution. While this may sound simplistic, nothing other than a constitutional guarantee to protect an individual’s property from the state is required. We don’t need protection from individuals.
Shruti Rajagopalan is a former research associate of the Public Interest Legal Support and Research Centre. We welcome our readers’ comments at firstname.lastname@example.org