Posted by: Vikram | June 30, 2011

The Constitution: Part 3 (Land Matters)

(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.

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Responses

  1. Interesting. Can the conclusion be drawn that the implementation of social justice at the expense of a guarantee of “fundamental” economic rights was, in retrospect, an error in judgment by our founding fathers?

    p.s. your post has been featured here –
    http://www.facebook.com/thecolloquium

  2. Anubhav, the challenge facing the Assembly was complex and land reform was essential. In hindsight though, the removal of property rights from the Constitution does seem to be an error in judgement. Simply because it seems to have made the same people vulnerable whom land reform intended to benefit.

    This can be fixed with proper legislation but there seem to no moves towards this.

  3. Vikram, I’m not really “well read” in this regard, but can’t it be argued that the fault runs deeper and is more generic than that?

    The constitution skewed the balance of power heavily in favor of the government. A layman’s admittedly biased study in this regard gives credence to the notion that our founding fathers and the first generation of our politicians had a blind faith, almost, in the benevolence and good-will of the government. The main problem with giving the government a lot of power and a lot of control is that in case the government turns out anything other than completely benevolent, then it’s extremely difficult to repeal the counter-productive, self-serving and possibly exploitative laws and legislation.

    It would be highly unlikely for the members of the government to repeal laws which grant them power, or from which they stand to gain, unless they are forced to do so, by emergencies (e.g. 1991) or by an electorate in which the majority considers such a liberalization as a key election issue…

    • Anubhav, from my readings so far, I would say that overall, although the Assembly had faith in the state, this faith wasnt blind. The extensive debates on due process and the inclusion of Article 32, indicates that the Assembly was committed to checks and balances.

      I personally dont think the current situation in Indian politics can be attributed to concentration of power in state hands. I personally think that the intellectual and political failure of India’s elite and middle classes is more responsible.

      If there is anything the Constitution makers had blind faith, it was the people of India. The granting of universal suffrage (when even the US did not have it) indicates this.

      • Hmm, I believe the middle class constituted around 5% of the population at the time of independence. However, I cannot argue that there wasn’t a political failure of India’s elite and middle class. Also I have to agree with your point that the constitution makers had a blind faith in the Indian people…

        However, my argument is with regards to the balance of power between individuals (not “the people”, but rather individuals) and the government. The pre-liberalization license raj and the property right laws mentioned in your post are examples of the powers vested in the government…

        Aren’t “blind faith in the people”, and “blind faith in the government”, 2 sides of the same coin? (a basic ideological belief in a big, pervasive and powerful government)

      • Anubhav, I agree that as written in the Constitution the balance of power in India is tilted towards the state as opposed to the individuals. However, I am not sure if the mechanics of the day to day interactions between the Indian state and citizens can be explained by this. I would say that structure of Indian society pervades the state (to a lessening extent with time ?) tilting the balance of power decisively in favor of the ‘state’.

        As for your second question, there indeed is a majoritarian bias in the Constitution. But I am not sure if the pervasive power the government has is due to this bias. During the debates of the Assembly, the extraordinary powers given (quite unwillingly) to the government were based more on considerations of security, not faith, and are subject to judicial review. In fact, I recall Dr. Ambedkar’s comments on the basic structure of the executive,
        “A democratic executive must satisfy three conditions:
        1. It must be a stable executive, and
        2. It must be a responsible executive.

        Unfortunately, it has not been possible so far to devise a system which can ensure both conditions in equal degree. ….. The daily assessment of responsibility, which is not available in the American system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the parliamentary system of Executive has preferred more responsibility to stability.”

  4. p.s. – I do agree that the issue faced by the Assembly was complex, but in retrospect, a clear distinction between the first wave of land reform and future property rights might have been a more sagacious approach…

    It might have been even wiser, if less politically correct, to avoid land reforms which run against the basic tenets of the property rights, and to concentrate instead on guaranteeing the rights of the employees (landless agricultural laborers) to humane work conditions, minimum wages, etc. as well as promotion of free adult education so as to facilitate alternate sources of employment…

    However, again, I must concur, that it’s far too easy to guess at what might have been wise in retrospect, and to critique the actual actions of those who did not have the benefit of knowing for certain the negative future implications of the same…

  5. I will be reading this book after some time. Meanwhile I read one book by DD Basu. Writer seemed pretty ‘hindu-rightist’ in his opinion and that by default made me skeptical about anything. Have heard a lot about this book. Also I want to read the debates of constitutional committee.

    Regarding land reforms only 2% of the whole land was redistributed and that includes the ‘bhoodan andolan’. Actually the whole process was deeply flawed as the big landholders only gave away the waste-lands and once the first generation of politicians passed away , the whole issue subsided.

    Also its interesting to note that the (so called) communist countries like Russia, China have R2Property as a fundamental right.

    • Pega, In his “India after Gandhi” Ram Guha summarized the initial land reforms in India as follows,

      “After independence, different states passed legislation abolishing the zamindari system, which under the British, had bestowed effective rights of ownership on absentee landlords. The abolition of zamindari freed large areas of land for redistribution, while also freeing tenants from taxes and rents previously exacted from them.

      After the end of zamindari, the state vested the rights of ownership in the tenants. These, typically came from the intermediate castes. Left unaffected were those at the bottom, such as low caste labourers and sharecroppers. Their well being would have required a second stage of land reforms, in which ceilings would be placed on land holdings and excess land holdings handed to the landless. This was a task the government was unwilling or unable to undertake.”

      So, the initial wave of land reforms transferred land from the high castes to the intermediate castes. Apart from West Bengal and Kerala, there was no further reform of any significant impact it seems.

  6. Well in that whole ‘India after Gandhi’ book there was not even a single reference to HDI ranking of India. I think its completely insane to write anything about India and not discuss the pathetic and scandalous HD figures more so after the rapid ‘growth’ rates for 15-17 years when the book was written.

  7. This is very interesting read. My 2 cents.

    1. Constitution and the Land Reforms made way back in 1947. Less population and much less area based economic growth.
    2. For today very true land reforms are flawed. But way higher population and much area concentrated economic growth.

    So will just changing the land reform change anything. If I understand correct we are talking about individuals and land. So where is the balance?

    If the individuals moved out and started settling on unused land areas shouldn’t this work. And not impractical at all, what is whole struggle about – food and shelter. There is plenty out there without the struggle, at least as of now 🙂

    Fantastic germ of thought though Vikram.

    Cheers

    • Thanks Anand. Even though land reform might not lead to economic growth, it will greatly increase the economic security of families.


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