Property rights and wrongs

Nothing, it turns out, that hasn’t been going on already for 50 years. West Bengal, where the communist parties have perhaps their largest presence in India, is rather famous for its commitment to land reform. This is the state where the maximum amount of land has been redistributed to farmers and peasants since independence to demolish the oppressive Indian feudal system, partly perpetrated by the former colonial government.

To be fair, only so much of the blame can be apportioned to the West Bengal government. It is only doing what the Indian government, both state and federal, does best—taking land from A and giving it to B. Most of the fault lies with India’s socialist founding fathers.

Ironically, Indians had greater protection from private land “takings" under the British. Section 299 of the 1935 Government of India Act clearly stated that no person was to be deprived of his property save for public purposes and with compensation. But from that high Madisonian note, the socialist leanings of successive leaders slowly eroded those rights.

After declaring independence in 1947, the members of the Indian Constituent Assembly, influenced by the American Constitution, tried to imitate the US Bill of Rights both in content and intent. The newly-minted Takings Clause, which set out the rules for eminent domain, required that any land seizure should be for a public use (meaning infrastructure) and should be justly compensated. The first draft of this provision, proposed by K.M. Munshi, read almost exactly like America’s Fifth Amendment.

Socialist members such as Jawaharlal Nehru, B.R. Ambedkar, Sir Benegal Narsingh Rau and Govind Ballabh Pant worried that such a strict limit on governmental power would prevent “beneficial social legislation." These leaders of the Indian National Congress party had promised to reconstruct an egalitarian agrarian economy and abolish the zamindari system and transfer land to the tiller. A strict anti-takings clause would have foiled these plans. Unfortunately, the socialists managed to outshout the Madisonians. “Public use" became “public purpose" and “just compensation" just became “compensation."

Even then, this wasn’t the happy ending the Congress party had hoped for because they had to pay vast sums of compensation for acquisitions. This paralysed their land reform agenda. So, they set about amending the Constitution to eclipse even this little protection. Within a year, the clause was amended and land reform legislation was ousted from the jurisdiction of the courts through its inclusion in the so-called Ninth Schedule, a list of laws immune from any kind of judicial review. These amendments effectively gave the government carte blanche to acquire any property it wanted.

The final blow to private property came in 1978, with the 44th amendment to the Constitution. The fundamental right to private property was abolished and was relegated to the position of a legal right. The eminent domain clause was deleted from the Constitution, allowing the government to acquire any land for any purpose without compensation.

As a result, in today’s India, there is no real right to private property and no protection against government land acquisitions. The rich feudal lords, whose land was stripped in the 1950s, and the poor peasants in Nandigram today suffer the same fate—a complete demolition of their private property rights.

The bitter irony, however, is that SEZs, meant to be at the vanguard of a newly capitalist economy, are being erected by trampling on the most fundamental tenet of capitalism—the right to private property. It is even more ironic that the constitutional amendments passed to protect the farmers through land reforms are being used today to evict farmers with the same principle—government-directed land redistribution.

Luckily, India is still a vibrant democracy that protests such infringements. The West Bengal government had no choice but to bring its acquisition efforts to a halt after violent protests in Nandigram. Recently, the central government announced that “no state can compulsorily acquire land from farmers through the Land Acquisition Act," and that private parties setting up SEZs shall negotiate the purchase of land.

But can Indians prematurely do the victory dance when no formal constitutional guarantees exist to restrain takings and protect private property?

Shruti Rajagopalan is a New Delhi-based law student and writer. Comments are welcome at theirview@livemint.com