In the last few days I have got many emails asking for my non expert opinion on Eminent Domain, I thought its time I posted on it. This post is to track the shameful history of abrogation of the right to private property in India.
Eminent domain is quite simply the power of the state to take private property for public use upon compensation to the owner.
For most people (especially the left liberal morcha) the buzz word in the above sentence is compensation. However the main issues for eminent domain are:
- Private property
- Public use
On the first issue of private property, the issue so much is not what private property means but what kind of rights it is backed by. Do we have a right to private property in India? If so what kind of right is it? Is it a fundamental right? A statutory right? Traditonal, customary right?
The second is on the interpretation of public use, and public interest. Does it mean only public goods or any good for the benefits of the public? The latter is clearly a lot wider than the former.
Though originally the Indian Constitution contained adequate provisions to protect private property, this right has virtually ceased to exist in India.
1. The government undertook to reconstruct the agrarian economy and tried to redistribute land, fixed ceilings on holdings, abolition of zamindars etc
2. In urban property government has regulated with rent control, clearance of slum and urban land ceiling legislation
3. Government regulated private enterprise through its nationalisation policy.
Originally Article 19(1)(f) guaranteed to all Indian citizens the right to acquire, hold, dispose of property, with Article 19(5) permitting state to impose reasonable restrictions in general interest of the public. The power of eminent domain is found in Entry 42, List III, which says “Acquisitioning or Requisition of property”.
Article 31(1) lay down that no person could be deprived of property without due process of law. Article 31(2) in its original version said “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…….”
I think we were doomed on the question of property rights from the beginning because of the language of 19(5) was so much wider than the eminent domain clauses in other constitutions though the original article 31(2) tried to incorporate the takings clause as in the US constitution.
The Takings Clause in the Fifth Amendment of the US Constitution also protects private property. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis Added)
The reason for Kelo was because SCOTUS decided to interpret public use (which meant provisioning of public goods like roads, railways, bridges, damns etc) as inclusive of public interest and allowed the government to acquire land for a private developer as it would increase employment and growth in the City of New London. Sandra o Conners in her dissent hit the nail on the head when she said this interpretation was dangerous as, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
So since the very beginning the Indian Constitution, though recognised the right to private property, allowed acquisition in “public interest”. The Singur situation and the POSCO deal in Orissa etc can be defended on utilitarian grounds of increasing employment and growth in the are through the SEZ’s. Article 31(2) and its requirement of public purpose may have saved rights of property holders is the courts stictly interpreted “public purpose” but with this fundamental right abolished there is no hope.
Somewhere between the fabian socialist and his totalitarian daughter private property got the death knell.
1. The first blow was in 1951 itself with the First Amendment. The fundamental right to property guaranteed by Atricle 31 was curtailed t implement agrarian reforms. The Amendment also added Article 31A and 31B and, worse, the Ninth Schedule to make put laws outside the purview of judicial review.
2. In 1955 with the Fourth Amendment where Article 31(2) was modified and Article 31(2)(A) was added to clearly outline the power of the government to acquisition and requisition.
3. With the Seventeenth Amendment in 1964, Article 31 was further curtailed by expanding the meaning of “estate” and also expanding the Ninth Schedule to include more land reform legislation.
4. The Twenty Fifth Amendment in 1971 further changed Article 31 to substitute “compensation” with “amount”. This was a result of the judgement in the Bank Nationalisation Case.
5. In 1972 in the Twenty Ninth Amendment, two more land reform legislations in Kerela were included in the Ninth Schedule receiving protection under Article 31B.
6. In 1974 with the Thirty Fourth Amendment, twenty more state acts on land ceiling and reforms were included in Ninth Schedule giving them protection under 31B.
7. The Forty Second Amendment did what no person in the Constituent Assembly would have imagined. According to this amendment primacy was to be given to al Directive Principles over Fundamental rights in Article 14,19 and 31 (there goes equality, free speech and right to private property). This meant no law giving effect to the Directive Principles could be held void due to inconsistency with fundamental rights!
8. Final blow came with the shameful Forty Fourth Amendment in 1978. To save the Parliament the trouble of constantly amending the fundamental right to property, the fundamental right was removed altogether and made a legal right.
More on the consequences of these amendments and the case law later.
