State, Private Property and the Supreme Court

Abstract

In this article, I describe the history of the constitutionalisation, amendment, and ultimately, abolition of the fundamental right to property in the Indian Constitution. Articles 19(1)(f) and 31 together constituted the fundamental right to property in the Constitution as adopted in 1950. Article 31 codified what is often described in political and legal parlance as the “eminent domain” powers of the state. The Land Acquisition Act, 1894 which is the subject of extensive current debate and slated to be repealed and replaced by the Land Acquisition Rehabilitation and Resettlement Bill is one of over a hundred laws enacted in exercise of the state's power of eminent domain. This power inherent in the exercise of a state’s sovereignty allows the state to compulsorily acquire property belonging to private persons for a public purpose upon payment of just compensation. The twin requirements of public purpose and just compensation are based on the rationale that no individual should have to disproportionately bear the burden of supporting the public good.

In the article, I review the Supreme Court's jurisprudence on the fundamental right to property enshrined in Articles 19(1)(f) and 31 from the period 1950-1978, and on the constitutional right to property enshrined in Article 300 A post the 44th Constitutional Amendment that abolished Articles 19(1)(f) and 31. In light of this historical review of the Court’s jurisprudence, I argue that reinstatement of the fundamental right to property in the Constitution on its own will do little to protect the interests of poor peasants and traditional communities who are currently facing displacement through processes of large scale acquisition of land for private industry and infrastructure projects.

Keywords: land acquisition, property rights, right to property, expropriation, eminent domain, supreme court of India, economic development, industry, zamindari system, privatisation, special economic zones