JOIN USThe right to property and its ironies
The 24th of April 1973 is a hallowed day in the history of the Indian Republic. On this day, a 13-judge bench of the Supreme Court delivered its mammoth judgement in Kesavananda Bharati vs Union of India holding, by a majority of 7 to 6, that there were parts of the Constitution that could not be amended out of existence, including Part III of the Constitution, which guarantees the fundamental rights of individuals.
The Kesavananda Bharati judgement’s length means that few have ever managed to read it in full, but the reason why a 13-judge bench had to sit and decide this important issue was one of the most controversial parts of the Constitution -- the right to property. Ironically, this particular fundamental right was not held to be part of the basic structure of the Constitution.
The right to property was one of the most contentious topics in the Constituent Assembly as well, sparking long debates over its place in the Constitution. It was included in two places in Part III -- in Article 19, as a freedom to hold and acquire property, and in Article 31, as a right to receive compensation from the government for loss of property. The controversy over it stemmed from the need to abolish the zamindari system and distribute land to the tiller -- a much-needed measure that had widespread support. However, the fear was that the Indian State would then end up paying massive amounts of compensation to the zamindars, resulting in a large-scale wealth transfer to them, defeating the very purpose of the ‘land to the tiller’ exercise.
While Jawaharlal Nehru and B R Ambedkar defended the clauses as they were drawn up, their hopes were belied by the High Courts in the first years after Independence. Sensing that the judiciary (composed of the Indian elite promoted by the British) was always going to take the side of the land-owners and zamindars, the Union government attempted to amend the Constitution to reduce the scope of judicial review by courts. What followed was an elaborate game of tug-of-war between the government and the judiciary over the right to property and the Constitution as “men with long purses” pursued endless litigation, prompting further amendments. This tale is well told in Granville Austin’s fantastic book, Working a Democratic Constitution – a must read for anyone interested in contemporary Indian history.
Eventually, the right to property itself was removed as a fundamental right in 1976 during the Emergency through the 42nd Amendment, a notorious attempt to reshape the Constitution. The Janata Party government that followed undid the worst of its provisions; and the courts, relying on the Kesavananda Bharati case, struck down some of the other provisions as unconstitutional.
However, the right to property was not restored as a fundamental right.
But the right to property has not been entirely erased from the Constitution. It sits now in Article 300A, far off from Part III, enjoying none of the attention or the protection of the Basic Structure doctrine that other rights do. The Supreme Court and High Courts have tried to expand its scope in a limited way, reading in a right to compensation for loss of land. While there are stray voices calling for a return of the right to property as a fundamental right, there is little political support for it.
Today, the impact of the removal of the right to property as a fundamental right is being felt not by zamindars, but by those on the opposite end of the social spectrum from them. It is being felt by the farmer who has lost her lands to the construction of a highway with little compensation. It is felt by the Adivasi who is asked to “prove” that she has been living in her ancestral forests to the government. It is felt by the street-food vendor whose livelihood was shattered by a municipality bulldozer.
In a country as beset with inequality as India, it may not be politically wise to call for a return of the right to property. But the reality of wealth in the 21st century is different. The richest do not earn their income through land but off shares in companies. It may make little or no difference to the top 1% of India whether there’s a constitutionally guaranteed right to property. Rather, if Peruvian economist Hernando de Soto is to be believed, the path out of poverty for those at the bottom of the pyramid may be through a fundamental right to property.
Alok Prasanna Kumar, co-founder, Vidhi Centre for Legal Policy, uses his legal training to make the case that Harry Potter is science fiction and Star Wars is fantasy