State, Private Property and the Supreme Court

In an article published in the recently re launched
Frontline Magazine, I describe the history of the constitutionalisation,
amendment, and ultimately, abolition of the fundamental right to property in
the Indian Constitution. Articles 19(1)(f) and 31 together constituted the
fundamental right to property in the Constitution as adopted in 1950. Article 31 codified what is often described in
political and legal parlance as the “eminent domain” powers of the state. The
Land Acquisition Act, 1894 which is the subject of extensive current debate and
slated to be repealed and replaced by the Land Acquisition Rehabilitation and Resettlement
Bill is one of over a hundred laws enacted in exercise of the state’s power of
eminent domain. 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.
In the article, I review
the Supreme Court’s jurisprudence on the fundamental right to property
enshrined in Articles 19(1)(f) and 31 from the period 1950-1978, and on the
constitutional right to property enshrined in Article 300 A post the 44th
Constitutional Amendment that abolished Articles 19(1)(f) and 31. In light of
this historical review of the Court’s jurisprudence, I argue that
reinstatement of the fundamental right to property in the Constitution on its
own will do little to protect the interests of poor peasants and traditional
communities who are currently facing displacement through processes of large
scale acquisition of land for private industry and infrastructure projects.
I have previously
written about issues relating to land acquisition herehere and here. Other discussions about land acquisition on
this blog can be accessed here and here.

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