(This is the third in what should be an (alteast) four part series on the Indian Constitution. I am trying to understand how and why the Consti was written the way it was. I think I should be able to make good headway on this by reading certain chapters of Granville Austin’s book, The Indian Constitution: Cornerstone of a Nation. This post is basically a summary of the first part of chapter 4 of that book.)
It is perhaps a bit unusual to dedicate an entire post to how the issue of property and land was handled by the Constitution makers. But land is the pivotal axis of contact and conflict between metro India and Bharat today. And as we shall see, land was important (for vastly different reasons) even during the framing of the Constitution, with land related provisions being the focus of intense debate and deliberations.
A simple but contentious issue for the Constituent Assembly was that of land reform. Simple because there was enormous anger against the zamindars and large land holders, and land reform had great support. As I have discussed in previous posts, the Constitution was framed with the goal of social revolution, and land reform was certainly one of the keys to achieving this goal. The difficulty was reconciling land acquisition with the right to property. How was the Assembly to establish a legal framework that would allow the state to expropriate large tracts of land from certain citizens while still respecting their Fundamental Rights ?
The Assembly went through a series of deliberations to arrive at a final consensus decision. The first proposal was that the Constitution allow property to be acquired for public use on payment of ‘just’ compensation. But this seemingly sensible position was untenable. The word ‘just’ would imply that virtually every instance of land acquisition could be decided in the courts, “paralyzing the functioning of the governement”. In response, K.M. Pannikar and Sardar Patel proposed removing just from the clause. Not surprisingly, only two members in the Assembly opposed this view due to the prevailing anti-zamindari mood.
However, there were serious differences of opinion in the Drafting Committee, in particular K.M. Munshi and Dr. Ambedkar were hesitant to include such a clause. The right to property was guaranteed in Article 19 and the new clause pertaining to land acquisitions would present a contradiction. The two other questions that bothered the Assembly were,
What sort of compensation was economically feasible and morally just ? And to what degree could the Union Government interfere in provincial actions to expropriate property ?
The Assembly was faced with a most vexing choice between Constitutional guarantees and expedited social justice. It considered suggestions ranging from full due process for acquisitions to complete legislative control. Others proposed ‘equitable’, ‘fair’ or ‘reasonable’ compensation. Perhaps ironic from the modern context, some members of the Assembly desired a measure of due process to ensure that the land acquisition provisions would not scare away capital. Ultimately, due process in matters of land acquisition was made secondary to social justice. As Austin puts it,
in the nine years from 1947 to 1956 had the demands of the social revolution taken the right to property out of the courts and placed it in the hand of the legislatures.
In the 1970s, Parliament went even further and the 44th Amendment removed the right to property from the Constitution. The state could now acquire whatever land it deemed necessary by law, with the citizen’s having no recourse to the courts1.
Today, the same provisions that redistributed land from the zamindars and gave it to the farmers, are used to acquire land from farmers to be given to developers ! Sadly, successive Indian governments have shown no inclination to reinstitute the property rights originally included in the Constitution, while at the same time land reform has come to a virtual standstill. Provisions painfully justified to further social revolution are often used recklessly to expedite economic expansion. Ananya Roy provides a telling example in her essay on ‘why India cant plan its cities’,
One lawsuit holding up the expressway project concerns D.M. Dwarkanath, a retired executive of a state-owned company. He risks losing his small bungalow to make way for the route. A hospice for children with AIDS is also threatened. Such cases have sown deep resentment among many people here, who wonder: why do people have to make way for India’s frequent-flying classes, which are still relatively small? ‘It is only for the rich people’, Mr Dwarkanath said fuming. ‘They don’t have patience. They want to rush to the airplane. They want to sweep everyone out of the way. Why should we live? Sweep us into the sea!’
Needless to say, India needs a debate on the issue of the land. One which should draw a lot from the perspective of the Constitution makers, many of whom who regarded the right to property as fundamental.
1: Land is still a ‘constitutional right’ so citizens can still go to court claiming that their land was unfairly acquired but they cannot challenge the compensation given.