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Economy Sep 5, 2013

Land Bill is placebo; real cure is restoring Right to Property

By R Jagannathan

The Rajya Sabha on Wednesday night passed the Land Acquisition Bill with amendments after a debate lasting five hours. Twenty-six members of the Rajya Sabha spoke on the bill. There were 131 votes for it and 10 votes against it during division.

Now that the Land Acquisition Bill is a done deal, it is worth doing a post-mortem on it.

That the Bill may do more harm than good in the short-run is apparent, since it arbitrarily seeks to price land at twice the market rate in urban areas and four times in rural areas. It also makes land acquisition difficult and time-consuming, since 70-80 percent consent of land owners will now be required, and there are elaborate provisions for rehabilitating and resettling the people affected by land sales.

However, even assuming industry is willing to fork out the money and wait three or four years to acquire land for infrastructure and other public purpose projects, the problem is that the Bill does not address the fundamental issue: the original sin relates to the Indian state's decision to delete the Right to Property from the list of fundamental rights every citizen is entitled to.

Reuters

The Land Acquisition Bill tries to make up for decades of land-grab from farmers and the poor by the state and its capitalist cronies but does not address the reason this became the norm. Reuters

Without iron-clad property rights, the state can simply dispossess you and effectively deny you your other fundamental rights. The Right to Property is the foundation on which all other rights are built. Without wealth, property, income and the means to livelihood (which is the broader definition of the word property), the other freedoms (equality, free speech, and religion) mean little.

The Land Acquisition Bill tries to make up for decades of land-grab from farmers and the poor by the state and its capitalist cronies but does not address the reason why this kind of arbitrary dispossession became the norm for decades: the abolition of the Right to Property as a Fundamental Right through the 44th Constitution Amendment Bill in 1978.

The 44th amendment deleted Article 19(f)(1) in Part III of the constitution which listed every citizen's fundamental rights, and also Article 31, which stipulated the conditions under which the state could coercively acquire property from private owners. Article 19(f)(1) gave citizens the fundamental right to "acquire, hold and dispose of property," while Article 31 specified that citizens had the "right not to be deprived of property save by authority of law" and also the "right to assert that property can be acquired or requisitioned by the state only for a public purpose" (Articles 31(1) and (2)).

The 44th amendment did not eliminate property rights altogether, but it reduced property to only a legal right. It was no longer fundamental. Property rights were pushed from the powerful protection available under Article 19 to Article 300A, and the limitations specified under article 31 were whittled down. Article 300A reduced the legal remedies available to citizens in case their properties were to be taken over. They could now approach only the high court under Article 226, and not the Supreme Court under Article 32 - which was faster and more effective, being a remedy for transgression of a "fundamental right." (For a good analysis on the Right to Property and its history, read here and here).

In BR Ambedkar's original constitution, the Right to Property was right up there along with freedom of speech, right to equality, freedom of religion, minority rights, and the right to constitutional remedies if any right was infringed upon.

But even before the ink had dried on the constitutional document, India's brown sahib rulers began recoiling against the idea that ordinary citizens could have untrammelled rights. In 1951, the very first amendment to the constitution circumscribed almost all fundamental rights, including the right to free speech (ostensibly to prevent abuse), equality (ostensibly to help the underprivileged) and property (to abolish zamindari).

In subsequent years, as socialism provided the right populist cover for whittling down the citizen's ambit of freedom, all these rights were further chipped away. The right to freedom was curtailed with laws that enabled detention without trial; the right to equality was rubbished by putting laws (like Tamil Nadu's decision to offer 69 percent reservation to the weaker sections despite Supreme Court judgments that forbade it), in the ninth schedule (which the courts can't question); and there were more laws to separate citizens and businesses from their lawfully acquired properties (bank nationalisation, for example, and land acquisition without proper compensation.)

But the only fundamental right that was completely removed from the constitution was the Right to Property - which was replaced in 1978 with a mere legal right.

The ostensible purpose of the Land Acquisition Bill, a.k.a. the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Bill, 2012, is to ensure that farmers, tribals and others whose lands are acquired for setting industry or infrastructure are not only given a fair price, but also various other protections to ensure they are not gypped. It is meant to compensate for the depredations that ensued with the abolition of the fundamental right to property.

But all this could have been more easily and strongly ensured by restoring the fundamental right under Article 19(f)(1) on the Right to Property. If this right had been there, there need not have been a Singur, a Nandigram or a Jaitapur. The farmers would have had stronger legal remedies. The Land Bill would merely have had to address the issue of fairness and rehab.

In India, the remedy for a wrong is to over-compensate and create a bigger wrong. Instead of giving everyone the fundamental Right to Property, the UPA has offered a high-cost placebo.

The reason is simple: giving citizens the Right to Property as a fundamental right is empowering; giving them higher compensation through an arbitrarily determined price for confiscation is a partial dole. It is supposed to purchase allegiance to a political party, not give citizens their rights.

The straight solution to a simple issue is never acceptable in India, it seems.

by R Jagannathan

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