LAW RESOURCE INDIA

These contested acres

Posted in CONSTITUTION, GOVERNANCE, Land Acqusitions by NNLRJ INDIA on July 25, 2011

Supreme Court of India

Jaitirth Rao  In The Indian Express

The Supreme Court’s judgment in the Noida land acquisition case has raised concerns because some have interpreted it as being against the spirit of economic reform. It is this columnist’s contention that far from being anti-market, this judgment is pro-freedom, pro-market, pro-citizens and against the machinations of an emerging tyrant state in India.

In 1978, the short-lived Janata government was at the forefront in amending our Constitution to remove the right to property as a fundamental right of Indian citizens. B.R. Ambedkar, Benegal Rau, K.M. Munshi, Alladi Krishnaswami Aiyar and Rajendra Prasad had correctly included property as a fundamental right knowing full well that if tyrant kings (the executive branch of government in modern times) are allowed to arbitrarily seize property, then free citizens will inexorably be turned into servile subjects. The prevalent mood in the 1970s was tragically of the socialist persuasion. The judiciary was accused of ruling in favour of rich mahants and zamindars like Golak Nath. It was assumed that the fundamental right to property was a privilege of the rich. Ironically, when this right was removed as a fundamental right, the sufferers have not been rich individuals or corporations. Instead, in state after state, the government has used its sovereign right of eminent domain to acquire land from the poor, re-zone the land and sell/ lease it to rich capitalists and corporations at subsidised prices. Those who had warned in 1978 that the constitutional amendment was dangerous and anti-people have been proved to be prescient. Whenever rights of citizens are abridged by the state claiming to act on behalf of the poor, as night follows day it must follow that this abridgement will sooner or later be used to oppress the poor and the weak.

The state’s sovereign right of eminent domain is supposed to be exercised to acquire land for “public purposes”. Public purposes have always implied the creation of public goods like roads, railway tracks, canals, reservoirs, sewage farms, etc. To argue that factories (that primarily benefit their owners), flats (that benefit builders and new home-buyers), shopping malls (that benefit builders) and so on are “public goods” is an insult to the language and vocabulary of just laws. And yet, this is how the Government of West Bengal argued in Singur and Nandigram and the Government of UP has argued in Noida. In Bengal, the tribunal of the people rejected this. (A cynic would argue that this is in keeping with the hoary Bengali leftist tradition of deciding disputes in the streets and not in courts.) In UP, our courts have come to the rescue of property owners (in this case poor farmers). Our Supreme Court’s judgment is entirely in keeping with the spirit of the dissenting judgments of Justice Sandra Day O’Connor (and two others) and a separate dissenting judgment of Justice Clarence Thomas of the US Supreme Court in the case of Kelo vs City of New London.

Justice Thomas was quite clear that the right of eminent domain can be used only for public goods — not “to take from Peter to give to Paul”, or in Indian terms to take from farmers and give to factory owners or real estate developers. In Kelo vs City of New London, the wealthy “Paul” was the well-known pharmaceutical giant Pfizer Corporation. The poor “Peter” was a humble American citizen named Kelo who owned a plot of land and a home in the city of New London. The political leaders of New London were tempted by Pfizer’s grandiose plans to “develop” a so-called depressed neighbourhood. Pfizer promised to create 3,169 new jobs and increase municipal revenues by $1.2 million per year. The fact of the matter is that while hapless Citizen Kelo’s house has been seized by the politicos of the City of New London, Pfizer has merrily walked away from its commitments. Ergo: no jobs, no tax revenues for the city. The parallel with the seizures of enormous parcels of land from Kelo’s brethren in India to create shining new SEZs which are yet to come into being is obvious.

Criticising the majority judgment in the US case, Justice O’Connor said: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Justice Thomas went one step further when he wrote as follows: “Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.” Even though these learned justices may never have visited India, it is indeed quite uncanny as to how they have anticipated the behaviour of the Indian state. Claiming that factories, apartment blocks and shopping malls are “economically beneficial”, property is being transferred from the poor to the rich. The justices referred to this as the “reverse Robin Hood” phenomenon.

There is no point in hiding behind the usual smokescreen of blaming colonial laws. The issue in India rests with the illegitimate definition of public purpose and the Machiavellian manner in which re-zoning (which drives up land prices) is done after the land has been acquired from powerless citizens at absurdly low rates. The proposed new law with endless arguments about whether forcible acquisition for a factory or a mall is in order after 70 or 80 per cent of the land has been acquired by the powerful corporation/ developer is a deliberate attempt to confuse the issue in order to continue to support crony capitalist behaviour. The only fair solution is to have an extremely narrow definition of public purpose and to re-zone land usage before so-called development activities are started, not afterwards. Better still, restore property as a fundamental right so that citizens can go to courts to fight an executive branch which is hand-in-glove with “citizens with disproportionate influence”.

The writer is an entrepreneur based in Mumbai
jerry.rao@expressindia.com

http://www.indianexpress.com/news/these-contested-acres/821699/0

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