Land acquisition, development and the constitution

Seminar, 1 February 2013

FOR the leaders of the Indian independence struggle, the adoption of a Constitution constituting a sovereign democratic republic was the first important step in marking a break from the past of colonial domination and subordination. However, in addition to the desire to control their destiny, the Indian independence movement was also driven by the desire to achieve a new social and economic order premised on rapid economic development and social redistribution.

The question before the Constituent Assembly was how to ensure the transition to a liberal democratic legal order which guaranteed rights to liberty, equality and property, while simultaneously embarking on a transformation of the economic and social order considered by Nehru as imperative to prevent a revolution. This transformation was pegged on a development strategy involving a move from a feudal agrarian to a capital intensive industrial society. A major component of this transformative agenda was land reform, involvingzamindari abolition and redistribution of land amongst the peasants. Equally important, however, was state planned industrial growth and encouragement of growth of private industry.

Charged with the task of balancing the interests of the individual with those of the community, the Constituent Assembly debated both the inclusion and content of a fundamental right to property for two and a half years before adopting Articles 19(1)(f) and 31. Article 19(1)(f) guaranteed to all citizens the fundamental right to ‘acquire, hold and dispose of property.’ Article 19(6) made the right subject to ‘reasonable restrictions in the public interest’ by the federal and state legislatures. Moreover, Article 31 of the Constitution provided that any state acquisition of property must only be upon enactment of a valid law, for a public purpose and upon payment of compensation. This provision was taken almost verbatim from Section 299 of the Government of India Act, 1935 with exceptions for certain zamindari abolition laws. The paradox implicit in guaranteeing a fundamental right to property, while simultaneously embarking on a socialist developmental project of land reform and state planned industrial growth, predictably resulted in tensions between the legislature and the executive on the one hand, that sought to implement this development agenda, and the judiciary on the other, which enforced the fundamental right to property of those affected.

Article 31 codified what is often described in political and legal parlance as the ‘eminent domain’ power of the state. 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. ‘Acquisition and requisitioning of property’ was included as a subject in the Concurrent List enabling both Parliament and the state legislatures to enact laws on the subject.