Posted in UNCATEGORIZED by NNLRJ INDIA on March 9, 2009

Should the right to property be restored to the status of a fundamental right so that citizens are able to challenge state acquisition of land? This has been the subject of a long-standing debate. The right to property was a fundamental right till 1978 when it was repealed through the Constitution Amendment Act. Thereafter, the acquisition of private property by the government could not be challenged in the courts on the basis of constitutional law.

On February 27, 2009, the Supreme Court of India, reacting to a petition, asked the government why the right to property should not be allowed as a fundamental right. As a result, the issue whether governments should have the right to acquire private property has once again come to the fore. The government is already facing a number of PILs on land acquisition, including one on the SEZ policy.In this case, Sanjiv Agarwal, founder of a Kolkata-based NGO, has stated in his petition that the downgrading of the right to property has granted the government the licence to abuse its power of eminent domain by taking over private property for purported public use.

Eminent domain is a provision used by governments to acquire land from private citizens for public utilities, highways, rail roads and other infrastructure development and public works. Agarwal says in his petition that over the last decade various governments have been misusing their power to spread private industry, private housing, private cooperative societies, private recreational projects, private residential development and even golf courses. Most of these projects, he says, cater to private and vested interests, who are sometimes the decision-makers themselves. “At stake in each of these instances is the fundamental right to property of the owners of these lands,” he says.

Agarwal has cited in his petition that such acquisitions have given rise to controversies like Singur and Nandigram in West Bengal. “The government’s formation of SEZ (special economic zones) is an instance where properties of individuals are acquired under the Land Acquisition Act to serve the new-founded idea that public purpose is best served by private interests.” Agarwal says that acquisitions have also been carried out to serve the interests of foreign companies, as in the case of projects by Indonesia’s Salim Group in West Bengal, South Korea’s Posco in Orissa, and the Samsung group in Tamil Nadu.

Agarwal has submitted that such measures violate the unity and integrity of the nation. “The right to property under Article 19(1)(f) used to be available to every citizen. But now Article 300A offers a much diluted right to every person, thereby allowing foreign entities an equal right to Indian property.” The petition has challenged Section 2(a)(ii) of the Constitution (44th Amendment) Act, which had deleted the fundamental right to property by omitting Article 19(1)(f) and repealing Article 31 of the constitution, which provided for compensation in instances of compulsory acquisitions.

Anurag Singh, an advocate at the Supreme Court, says that the amendment was done without eliciting public opinion and without submitting the changes to the scrutiny of a select committee followed by a debate in both the Houses on its report. “It is imperative to understand that the amendment was carried out without appreciation of the correlation of fundamental rights as a whole with the right to property propounded by the constitution framers,” he says.

After the amendment there is no express provision in the constitution outside the two cases specified in Article 30(1A) and Second Proviso to Article 31 A(1)requiring the state to pay to the expropriated owner. “The objective of the 44th Amendment was to take away the right of compensation on the alleged violation of which a law of acquisition could be nullified by the court. The fact remains that the legislature did not leave scope for property owners to get compensation. Though not the primary aim of any property holder, it certainly was a consolation. That was undone by the 44th amendment,” says Singh.

The state’s right to land acquisition was put in place to ensure that proper town planning and infrastructure development can take place in a developing economy. Sanjay Dutt, CEO-Business, Jones Lang LaSalle Meghraj, says that in all democracies the state retains the right to take over private property in public interest. “All over the world, the state retains the right to acquire land for its own purposes. It must be understood that the government is not interested in land-banking, and that Indian citizens have the constitutional right to property ownership.” He adds that even as things stand today, property owners can challenge a notification for acquisition of their property by the government, and the government is legally bound to prove that the property is indeed required for purposes related to national interest.

Asserting that the government took the right decision in 1978, Navin M Raheja, MD, Raheja Developers, says, “If the government turns the right to property into a fundamental right, the country will come to a standstill. There will be no planned and organised infrastructure development. People will defend their land and will make acquisition very difficult. Instead the government should think pragmatically and take the necessary steps to rehabilitate and compensate people so that the benefits of economic development are shared by stakeholders as well as by those whose land has been acquired.”

However, Lakshmi Narayan, CEO of Real Estate Bank of India, a real-estate solution provider, believes that the recent move by the judiciary is very encouraging and was long overdue: “Though this right has since then been available as a statutory right, it has a different hue from a fundamental right. We now need to see how quickly the government responds to this notice.” He says, “Even China has made it a fundamental right in its constitution. A democratic country like ours should address this anomaly without further delay.”

In his petition Agarwal has cited that the deletion of Articles 19(1)(f) and 31 of the Constitution by the 44th Amendment amounts to a complete repeal of two very vital fundamental rights guaranteed by the Constitution. He states that by allowing the government of the day to decide on its own which properties ought to be acquired for any purported ‘public purpose,’ without having to assuredly award any compensation, affects the equality code. The arbitrary selection of individuals whose properties are acquired amounts to an illogical implementation of legislative power which can stay almost uncontested. He appeals that the time has come for the Constitution of India to be given a fair trial, and that the right to property should be reinstated.

As the matter is sub-judice and the Centre is yet to file its response, the issue remains unresolved. But the Supreme Court’s notice has certainly given rise to the hope that the common man’s concerns will be given greater consideration while formulating the law of the land.


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