EXTENT OF STATE INTERVENTION IN PROPERTY MATTERS
The State is defined in Article 12 of the Constitution of India as follows:
“In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”
The Indian Constitution does not recognize property right as a fundamental right. In the year 1978, the 44th amendment eliminated the right to “acquire, hold and dispose of property” as a fundamental right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that “no person shall be deprived of his property save by authority of law”. The result is that the right to property as a fundamental right is now substituted as a statutory right. The amendment expanded the power of the state to appropriate property for “social welfare purposes”.
In other words, the amendment bestowed upon the Indian socialist state a
license to indulge in what Fredric Bastiat termed “legal plunder”.
The First Amendment
The first amendment was brought about by Pt. Jawaharlal Nehru, on 10th May 1951 to address judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The purpose behind the first amendment was to pursue nationalization, take away lands from the zamindars and redistribute them and make special provisions for the socially and economically backward people.
It was the First Amendment that brought in Articles 31A and 31B conferring upon the state the right to make laws to acquire private property and to then deem such laws as not being discriminatory and to further protect all such laws from any judicial review by creating the Ninth Schedule. It is interesting to note that the origins of the Ninth Schedule lie in land acquisition by the state. The scope of the Ninth Schedule expanded with each passing year. Since its initiation in 1951, the Ninth Schedule has been unrelentingly expanded and from a mere and selective 13 laws, to as many as 284 Acts now. The alarming expansion of the Ninth Schedule virtually meant corrosion in the power of the judiciary to interpret the constitutionality or otherwise of the laws passed by Central and State Legislatures once these were placed under the Ninth Schedule. The power of judicial review over legislative action vested in the apex courts is an integral and essential feature of the Constitution.
The Supreme Court Judgement
It is the 1967-verdict in Golaknath case and the 1973-verdict in Keshvananda Bharati case which set the tone for the functioning of the largest functioning democracy of the world and the Supreme Court verdict in the Coelho case reiterates what had been said four decades ago. The 250 laws lying insulated in the Ninth Schedule became void since April 24, 1974 itself.
The Supreme Court Judgement in I R Coehlo case acknowledged the supremacy of the court to examine the validity of inclusion of a law in the Ninth Schedule. And it was also held that there could be no blanket immunity from judicial review.
In India, the principal of eminent domain, which has colonial origins, continues to hold the field with respect to land rights. The State is regarded to have an inherent right to take private property for public use. The property may be taken irrespective of the wish of the owner. An incident of this power, however, is that the property shall not be taken for public use without just compensation. The relevant statue in this regard is the Land Acquisition Act, 1894. Vested with broad powers, the acquisition of land by the government is susceptible to arbitrariness. The term public purpose has been given a very wide interpretation. Public purpose has been the vehicle used to recklessly transport the government in its quest for utilitarian development without care or regard for the persons displaced. India has been unsuccessful in developing any sort of binding legal regime for dealing with the resettlement and rehabilitation of internally displaced persons (IDPs).
If the right to own and dispose property was still a fundamental right, the state government would not have dared to forcibly acquire the property of these small farmers except with their consent. The status quo ante would have required Tata Motors and the Indonesia-based Salem Group (for whose use the West Bengal government is acquiring farm land), to directly negotiate prices and terms of transfer and pay agitating farmers several multiples of market price to persuade them to sell.
Land is looked upon as a mere property.
The place where we live refers not merely to the four walls and floor within which we may dwell, but to the deeper existential relations of dwelling and to its wider social and cosmological sense; it refers to the act of 'settling and residing' somewhere, of in-habiting it, and of making it one's home; and ultimately, to struggling for and building 'one's place in the world'. Indeed, it is a fundamental part of the act of building our world itself, and through this, of gaining some control over our lives.
The place where we live contributes strongly to our cultural and social identity, and in a very real sense, all our social, economic, and other relations are constructed around and from this 'place'. Our home is also the place from which we claim two of our most basic political rights and freedoms: Our right to vote (and thereby to participate in institutional governance), and in many senses even more fundamentally, our freedom to build community and so to exercise governance over our individual and collective lives. Many of our Constitutional and statutory rights are linked to where we dwell. And it is precisely all of this that is extinguished, that is obliterated, when people are forcibly evicted from their homes and 'resettled'. Those who are displaced, and even if resettled, are in fact victims of these processes, and not their beneficiaries, as is commonly made out.
The land is seen simply as property and the people as potentially inconvenient statistics. In legal terms, the particular power that is invoked at these times is that of 'eminent domain'. This is an artifice which is premised on the proposition that the state always, by definition, acts in the public interest and that it can therefore claim eminent domain over all other social entities; and conversely, that people so-called 'citizens' must equally by definition submit to it. The particular piece of legislation which is most commonly used in these situations is the Land Acquisition Act, a relic of colonial rule that is much treasured by our post-colonial rulers. With this concept in any case being derived from feudal times, with the instrument a left-over from colonial times, and given the manner in which a supposedly democratic state has used this power, it is this regime above all which needs to be most severely interrogated today. It needs to be radically revised, and delimited. The Act itself has been a subject of much controversy for many years now, and there have been several proposals for its revision, primarily by civil groups but also by more progressive civil servants.
The problem at Nandigram began with eminent domain.
The West Bengal government then carried out a programme of land reforms known as Operation Barga. But instead of transferring property rights from landowners to tillers, itself a dubious act, it left the property title with the landowner, and gave the tillers permanent tenancy rights and a revenue share of the proceeds from the land, as well as first right of refusal if the landowner wished to sell. Some did deals with landowners, getting ownership over a portion of the land in return for their tenancy rights over the rest. Others remained bargadars, as they are called.
Cut to the 21st century. The government decided to set up special economic zones (SEZs) across India, where companies would get benefits that would attract investment, such as exemption from some of the restrictions on business that exist in the rest of the country. That sounds worthy, but the governments involved set about acquiring this land through eminent domain laws. The origins of today's law for land acquisition for SEZs act can be traced to 1824, when the British colonial power felt the need to codify the undisguised forcible seizure of land. While colonial rule has long gone, the unjust application of the principle of eminent domain remains.
SEZs are for rich private corporations. Many of the affected farmers in Nandigram and Singur, the sites of two such proposed SEZs, were bargadars, who were facing a breach of contract by the government on the promises made to them.
The current government overdrive on Special Economic Zones has once again brought to the fore the question of where the line is to be drawn between public good and private profit.
The farmers not allowed to sell their land for non-agricultural purposes, which has prevented industrial development in rural areas. (The companies operating in these SEZs could then have negotiated for the land on their own.) The restrictions placed on private enterprise have prevented the manufacturing boom that would have given our farmers more choices. They are trapped in their profession-60% of India lives off the agriculture sector, compared with around 5% for developed countries. This is unsustainable, as farmer suicides across India demonstrate.
With Nandigram, things have gone too far. For 60 years we have denied our farmers alternative sources of employment. Now, we have tried to take their farms away. When they have protested, we have reacted with brutality.
The two questions are centre stage in the debate.
· Is it right for state governments to expropriate land from farmers or should land acquisition be the responsibility of private developers and subject to market forces?
· Who does the state bear greater responsibility towards - the farmers and other villagers who will lose their livelihoods as a result of establishment of these zones, or the private developers of these zones?
The large-sized SEZs implicitly depend on the state to provide land. Governments, increasingly challenged over their roles in acquiring land for private development, argue that SEZs are needed for the 'development' of their states, and that they need to do everything possible to attract the promoters of these zones to their own state. Whether SEZs will bring in the promised benefits is an entirely different discussion. What is examined here is the injustice of using the colonial land acquisition law that has become such a favourite instrument in the hands of state governments.
The number of people displaced by projects and those whose livelihood was affected between 1951 and 1995 has been estimated at 50 million by some social scientists based on detailed studies.
Land Acquisition-A Perturbing Quandary for Sez Programme
The problem that has now put the SEZ program in limbo is related to land acquisition. There are a bunch of criticisms claiming anything from the loss of arable land will affect food output to the jobs actually created will be less than those lost, which range largely from baseless to worst case scenarios. But the real problem, and the one that forced the government to step in relates to rehabilitating the dispossessed. It is very important to ensure that the people losing land and livelihoods are taken care of, and do not head into destitution. This makes even more sense from an economic perspective.
Effective rehabilitation should involve a more holistic solution that leads to the farmers getting established with new livelihoods. Though a challenge this is also an opportunity for the government to lift some of its citizens from a mere near-subsistence level to living and working in a clean environment with all basic amenities.
The Recent Debated Issues
Amendment to the Sez Act, 2005
While approving 83 SEZ projects beyond the already notified 63 projects, the EGoM has declared few changed and conditions. A cap of 5000 hectares, reserving 50% of the land for the approved project only, land to be purchased directly from farmers by private developers and provision of job security to at least one person of the displaced families. It is clear that the massacre of Nandigram and the ongoing struggles, whether in Andhra Pradesh or in Punjab, has led to bowing of the corporates and the State. Still, instead of ensuring security and justice to farmers-labourers, the State is ensuring the profiteering of corporates-builders. This is going to facilitate and push the lot of natural resources in the name of industrialization and approved construction of hotels, parks, swimming pools, parking lots, clubs, shopping malls, entertainment zones for the corporate houses and their employees. Agriculture and the agriculturists will be ruined due to corporatisation, privatization and industrialization.
The SEZ Act has no mention of the Rehabilitation and Resettlement and how the new promise of employing at least one person per displaced family will be implemented . We have witnessed the tactics of Reliance and the approach of the West Bengal government. The debt ridden farmers, a result of misplaced economic policies, will now be forced out of their rural habitats and farm lands and their resources will be grabbed by the corporate mafia.
Politics - Affecting Better Implementation of Act
The role that the governments have assigned to themselves both at the central and at the state level is that of a promoter an agent of private corporations, not one of a regulator between big business and poor people. In this context we are repeatedly reminded that industrialization has its costs, but it is conveniently left unsaid that the cost must be borne by those who are least capable of bearing it, the poor and the most marginalised sections of the population. The rich corporations on the other hand are subsidized handsomely by the governments in various ways, e g, in CPM-ruled West Bengal, for the Singur car project, the estimated subsidy to the Tatas is over Rs 850 crore for an investment of Rs 1,000 crore. Similar deals were said to have been made with the Ambanis, for one brother in Dadri, Uttar Pradesh and for the other in the special economic zone (SEZ) in Raigad, Maharashtra respectively.
Foreign Direct Investment and Land Acquisition
The $12 billion POSCO project in Orissa is the largest foreign investment project ever in India. POSCO plans to take over 8,000 acres of fertile farmland to build a massive steel, automobile and ship-building complex, complete with its own power plant and port, displacing over 30,000 people. The POSCO project is the largest in the history of South Korea's overseas investment.
The Orissa state government claims that it has already acquired 1,100 acres from their owners. Their government's environmental impact assessment claims that "89 percent" of the land is government-owned and only 11 percent is occupied. But that claim is visibly and historically false. Decades ago, villagers purchased land ownership rights from their king. Today, their descendants, mostly tribal farmers, have made their homes and livelihoods in the rich soil near the coast, growing betel nut and cashew crops. A 1956 law strongly restricts the sale of tribal lands to non-tribals. In a bid to open up Orissa's vast mineral wealth to foreign investors, the state government is trying both to undo that law and dispute the ownership rights that date back decades.
The recent episode of the vision of SEZ guidelines is an obvious case in point. It is becoming increasingly clear that it is not a democratic government which works for the people; it works for the corporations in the name of industrialisation unless people are able to resist it. Since land is a state subject according to the Constitution of India, acquiring or not acquiring land is the prerogative of the state government. And yet, irrespective of their political labels, land is being acquired by various state governments in a competitive race to the bottom in servitude to win the favour of the corporations. This has the full legal and moral support of the central government, but the state has full constitutional power not to oblige. Land is being acquired in different guises, for mining, for the location of industries, for large estates and information technology parks and finally for SEZ under the “eminent domain” clause which allows the state to override private property right in land in “public interest”. Land being the largest, primary source of livelihood in the agrarian economy becomes the most obvious case of forcible transfer of resources from ordinary people to private corporations, destroying livelihoods, and displacing people. In this process, invariably the gainers are the corporations and losers are the ordinary people connected to land in many ways, the peasants and tenants, agricultural workers and artisans, tribals and fishermen.
Livelihoods of both urban and rural communities have to be destroyed for expanding and modernising the cities. In the process the modes of transports we are creating with more flyovers for cars, bigger airports, the shopping and housing complex we are promoting become increasingly energy intensive, and the majority of our ordinary citizens who do not consume them also have to pay directly or indirectly for this pattern of consumption.
This is why farmers get less water for cultivation, are starved of electricity in critical periods, clean drinking water or proper sanitation is a luxury in villages.
Thus, the state should function properly by creating a nexus between developmental work and sustainable development, looking after the basic needs of the poor slum dwellers by providing them adequate rehabilitation and Judiciary should safeguard the legal and Fundamental Rights of the citizens.
Note : Article published in Gujarat Law Heraled Journal - Sponsored by Bar Council of Gujarat. Regent Computronics Pvt. Ltd. Authorised to Published GLH Electronic Version GLHEL-THELAWS for the same. Article written by: Aditya Bijan Brahmbhatt, Shubham Saket & Prutha Pandya (Students, Gujarat National Law University)