Monday, August 13, 2012

17 August 2012: Should the Right to Property Return?

Namita Wahi
Harvard Law School and Center for Policy Research

The Indian Constitution adopted in 1950 guaranteed to all
citizens the fundamental right to “acquire, hold and dispose of
property” subject to reasonable restrictions in the public interest.
Moreover, Article 31 of the Constitution provided that any state
acquisition of property must only be upon enactment of a valid law,
for a public purpose and upon payment of compensation with exceptions
for certain zamindari abolition laws. The following decades saw
conflict between the legislature and the courts in cases of
acquisition of property (movable and immovable) with the Supreme Court
striking down acquisition laws (including but not limited to land
acquisition laws) on constitutional grounds and Parliament responding
with amendments to the Constitution which redefined property rights.
This culminated in the 44th amendment in 1978 which abolished the
fundamental right to property. However, a legal right to property was
retained in Article 300A of the Constitution.

Prior to 1978, the Supreme Court was vilified in political rhetoric
and scholarly discourse as being reactionary and anti poor. The
Court’s enforcement of property rights was criticised for defending
the rights of rich property owners and impeding the Parliament’s land
reform agenda. Recently however, widespread state acquisition of land
has received public attention due to dispossession of poor peasants
and traditional communities like forest dwellers, cattle grazers,
fishermen and indigenous tribal groups. Consequently, scholars have
renewed focus on property rights. It is now argued that the “weakening
of property rights” by Parliament in response to the Court’s
pro-property rights decisions in the first phase has “dispossessed the
poor” rather than the rich. In accordance with this view, in February
2009, a public interest petition was filed in the Supreme Court
seeking invalidation of the 44th amendment and restoration of the
fundamental right to property.

In my presentation, I will examine the chequered history of the
constitutional property rights provision in order to provide a revised
narrative of how state institutions in India, the Parliament and the
Supreme Court have, over the last sixty years, managed tensions
between the right to property and the state’s power to acquire
property for the purposes of redistribution and economic development.
I hope my presentation will contain useful insights for evaluating the
current discourses surrounding the new Land Acquisition,
Rehabilitation and Resettlement bill and the reinstatement of the
fundamental right to property in the Constitution.

Date: August 17, 2012
Time: 12:30 P.M.

Second Floor Conference Room
The World Bank,
70 Lodi Estate,
New Delhi-110003(INDIA)


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Please confirm your attendance by email to Jyoti Sriram at by Thursday, August 16th.

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