The Evolution of the Right to Property in India before the Drafting of the Constitution
The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Indian Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished. The debate over property rights began early in the Constituent Assembly even while the terms of independence were being worked out and the controversy was more prolonged and acute than that over any subject, except that of official languages. The contentious origins of the right to property in the Constitution had a tremendous impact not only on India’s socio-political and legal history, but also within the commonwealth.
Existing scholarly literature has described the history of the fundamental right to property as a tussle between progressive legislatures, that were trying to bring about much needed land reform in India, and reactionary courts, that impeded such reform efforts by protecting the property rights of rich zamindars. I have argued elsewhere that this narrative is simplistic, and therefore somewhat misleading both as to the real issues at stake in the contentious history of the right to property, but also the learnings we can take from that history for political and constitutional reform in India and other constitutional democracies that are also developing countries.
In this paper, I trace the intellectual currents, and political and social movements, that framed the contours of the contentious debates surrounding the adoption of the fundamental right to property and restrictions on this right, during the late 19th century and the first half of the 20th century. I show that there were two broad discourses underpinning the debates on the right to property. The first was the “rights” discourse, with its sub-discourses on “civil and political rights” and “social and economic rights”. The second was the “development” discourse with its concomitant focus on “land reform” and “industrialisation and capital formation”. Both were enabling discourses, but grounded in different premises. While the Development discourse was a utilitarian discourse premised on the philosophy of the “greatest good of the greatest number”, the Rights discourse was a dignitarian discourse, premised on the dignity of individuals and their right to realise their full potential as human beings and equal citizens of newly independent India. The contention over the inclusion of the right to property in the Constitution was a contention between the Rights discourse that sought to empower the disempowered and respect individual rights, and the Development discourse which sought to give the state, as representatives of the people, power to take measures to bring about development according to a utilitarian calculus that fundamentally contradicted rights of individual citizens, including, but not limited to, the right to property.