With Republic Day around the corner, here’s a look at a very important debate few of us have ever heard of.
72 years ago, this week, 284 elected members of independent India ceremonially signed a magisterial hand-written tome. They were putting the final touches – literally – on a document they hoped would define India’s destiny.
Today, we can barely imagine the sense of infinite possibilities that fueled the five years it took to frame that document.
No matter how radical, liberal, conservative or outright unbelievable an idea was, if the majority of an Assembly of just 299 voted for it – It could happen! So to a large part, who we are today is who they wanted us to be.
Join The Better India in this four-part series ‘Constituent’, as we explore a simple question – What did 1950 feel 2019 would be?
Part two of the series takes a look at one concept – Right to Property.
When the members of the Constituent Assembly of India were deliberating on the subject of Right to Property, a significant point of contention was whether granting it as a Fundamental Right would stall the abolition of the zamindari system.
The Constitution of India was devised as a document which would transform Indian society and curtail the devastating inequities and social hierarchies.
As argued in an earlier article, the constitutional project did not quite align with the liberal principle of drawing up laws that would curtail State power.
Although the Right to Property was first granted as a Fundamental Right under Article 19(1)(f) of the Indian Constitution which guaranteed to all citizens the right to acquire, hold and dispose of property, subsequent governments took it off the list of Fundamental Rights (44th Amendment, 1978).
This wasn’t a surprise because discussions in the Constituent Assembly also attempted to establish some balance between individual rights and social benefit.
However, what they didn’t factor was the degree of leeway the Constitution gave to the State.
Back in the 1940s, it was about abolishing the zamindari system. Today, the same State is seen forcibly acquiring the land.
Concept of Property, setting the tone
“[I] draw the attention of the House to the very conception of property which may seem to us an unchanging conception but which has changed throughout the times and changed very greatly and which is today undergoing a very rapid change. There was a period where there was property in human beings. The king owned everything—the land, the cattle, the human beings. Property used to be measured in terms of the cows and bullocks you possessed in old days. Property in land then became more important. Gradually the property in human beings ceased to exist. If you go back to the period where there were debates on slavery you will see how very much the same arguments were advanced in regard to the property in human beings as are sometimes advanced now with regard to the other property. Well, slavery ceased to exist,”-Jawaharlal Nehru, 10 September 1949.
For the sake of this article, the concept of property is restricted to land.
Following independence, KM Munshi, the Constituent Assembly member elected from the Bombay province, proposed a draft of what would eventually become Article 21 of the Indian Constitution guaranteeing the right to life and liberty.
His draft read, “No person shall be deprived of his life, liberty and property without due process of law.” Influenced by the US Bill of Rights, the draft almost read like a carbon copy of the 14th Amendment to the American Constitution.
However, BN Rau, the Constitutional Advisor, opposed this draft during a meeting of the Drafting Committee in January 1948.
Curiously enough, it was a meeting with the US Supreme Court judge Felix Frankfurter, which convinced Rau about the potential pitfalls of inserting the “without the due process of law” clause.
“In these meetings, Rau apparently was able to convince [Alladi Krishnaswamy] Ayyar, the crucial swing vote on the committee, of the potential pitfalls associated with the substantive interpretation of due process, which Frankfurter had discussed extensively with Rau. Ayyar, ultimately upholding the new position on the floor of the Assembly in December 1948, supported removing the due process clause on the grounds that substantive due process could ‘impede social legislation.’ With the switch in Ayyar’s vote, the Drafting Committee endorsed Rau’s new preferred language-replacing the due process clause with the phrase “according to the procedure established by law,” writes Manoj Mate, in a paper published in the Berkeley Journal of International Law.
One can substitute “impede social legislation” with the abolishment of the zamindari system, and that if they went with “due process of law,” the State’s attempt at acquiring land from its citizens would be mired in legal disputes in courts.
Rau’s position was supported by GB Pant and socialist KT Shah, who had in fact written a note demanding the abolishment of property rights.
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During the discussion in December 1948, KM Munshi stuck to his guns.
“What are the implications of this `due process?’ [It] is now confined to personal liberty. This clause would enable the courts to examine not only the procedural part, the jurisdiction of the court, the jurisdiction of the legislature, but also the substantive law. When a law has been passed which entitles Government to take away the personal liberty of an individual, the court will consider whether the law which has been passed is such as is required by the exigencies of the case, and, therefore, as I said, the balance will be struck between individual liberty and the social control. In the result, Governments will have to go to the court of law and justify why a particular measure infringing the personal liberty of the citizen has been imposed,” he said on December 6, 1948.
While Dr BR Ambedkar and Nehru sought to find some middle ground between protection of individual rights and the exertion of the State’s socialist policies, it was the Fabian socialist KM Pannikar, who eventually devised a solution.
The answer was separating the right to life provision from the clause on the property, which could resolve the contentions over the due process clause.
The right to life, he believed, was a sacred political right that no State could infringe on except under “reasonable restrictions,” while the right to property should be guaranteed only subject to legislation.
The consensus in the Constituent Assembly was that the right to property was a provision to protect the wealthy.
In March 1948, the Sub-Committee on Fundamental Rights drafted the clause which read:
“No property, movable or immovable, of any person or corporation, including any interest in commercial or industrial undertaking, shall be taken or acquired for public use unless the law provides for the payment of just compensation for the property taken or acquired and specifies the principles on which and the manner in which compensation is to be determined.”
This clause, inspired by Section 299 of the Government of India Act, 1935, would lay the basis for debates resulting in the formulation of Article 31, which said, “No person shall be deprived of his property save by authority of law.” It also provided that compensation would be paid to a person whose property has been taken for “public purposes.”
The only difference between Section 299 and the draft clause was that the phrase “public purposes” replaced “public use.” This is where debates on the government’s eminent domain powers (the doctrine which empowers the State to acquire private land for public use, provided the public nature of the usage can be demonstrated) come to the fore. Constituent Assembly members long deliberated on what entailed “public purposes” and “public use.”
“Govind Ballabh Pant was concerned that the phrase ‘public use’ was ambiguous, and it was unclear if it limited the government only for acquiring land for its own use; or could be extended for social purposes like dismantling zamindari. This is an important concern even in the current political landscape – can, and should the State be allowed to take land from one individual and give it to another for social and economic purposes?” writes scholar Shruti Rajagopalan for Think Pragati.
“Pant argued that if the government were to acquire property for its own use (to build roads, etc.), then its authority must be curtailed and require payment of compensation. However, when the government pursued socially beneficial legislation, such as zamindari abolition, then that power must not be limited, nor should there be a requirement to pay ‘just compensation.’ Further, that the question of compensation must be left to the legislature and not the courts,” she adds.
Munshi proposed a solution, advocating the strong protection of property rights from expropriation, with protection from the courts, while exempting the abolishment of zamindari from this property rights provision.
Nehru, however, disputed this position. He was for compensation, but established a difference between “petty acquisitions” (e.g. improvement of the town) and “large schemes of social reform.”
“If we have to take the property, if the State so wills, we have to see that fair and equitable compensation is given, because we proceed on the basis of fair and equitable compensation. But when we consider the equity of it, we have always to remember that the equity does not apply only to the individual but to the community. No individual can override ultimately the rights of the community at large. No community should injure and invade the rights of the individual unless it be, for the most urgent and important reasons,” he said on September 10, 1949.
Article 31 in its original version read: (1) “No person shall be deprived of his property save by the authority of law.” Article 31(2) in its original version read, “No property, movable or immovable, including any interest in, or any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.”
Clauses 3-6 provided important qualifications and exemption to allow for the abolishment of the zamindari system and other acts of social reform.
However, in 1951, the Provisional Parliament passed its First Amendment to the Constitution by diluting Article 31 with further exceptions added in the form of Article 31A and 31B.
As stated above, compensation for those whose lands had been acquired by the State stood as a critical facet of Article 31. While most members were in favour of paying compensation, they believed that this shouldn’t be applied to all properties, particularly the ones acquired by zamindars who used ‘unjust’ and ‘immoral’ systems to do so, resulting in gross inequality.
“The argument from the liberal perspective is that the zamindari system, due to its illiberal nature, does not merit any protection from rights emanating from liberal principles. And therefore, the question of compensation must be resolved based on the question of use, i.e. whether [the] property was taken to abolish zamindari or for other purposes,” writes Rajagopalan.
However, Syamanandan Sahaya, a member elected from Bihar, saw the pitfalls of such a vague conception and felt that such a proposition would hurt its intended beneficiaries.
Sahaya believed this position was in contravention of the clause clearly articulating that the State will not acquire a citizen’s property “unless the law provides for compensation for the property taken possession of or acquired and fixes the amount of compensation.”
Meanwhile, Ayyar was of the belief that compensation must come under the purview of the courts and not left at the mercy of the legislature. He argued that if compensation was left to the legislature, the Constituent Assembly might as well get rid of the Right to Property from its list of Fundamental Rights. This was a position which liberals like Munshi also adopted.
Ambedkar also supported the idea of judicial intervention but took the middle road in arguing that the legislature should determine the form of compensation.
A compromise which gave the legislature the authority to determine compensation but subject to judicial review to prevent abuse by the State.
Also Read: How Secular Should we be in 2019? Here’s How India of 1950 Answered That Question
Right to Property no longer a fundamental right
Since the First Amendment to the Indian Constitution, successive governments have chipped away at property rights often under the veil of establishing social equity.
Interestingly, the likes of Munshi and Rajagopalachari, broke away from the Indian National Congress to form the Swantantra Party at the cusp of the 1960s.
This was when the Nehru government sought to replace small farmers with collective farms controlled by the State—a gross violation of property rights by the State against the small farmer, who may not wish to part with his/her land.
In 1978, the Janata Party government tabled the 44th Amendment to the Constitution which de-listed the Right to Property from Fundamental Rights.
What came instead was Article 300-A, which allows the State to dispose a citizen of his land without compensation through a mere act of legislation.
Under the concept of ’eminent domain’ re-established by Article 300A, the government is the final owner of the land of the country. The aggrieved person shall have no right to move the court under Article 32.
With the advent of economic liberalisation, this provision has been turned on its head from a social justice standpoint to one where a small farmer is now suffering at the hands of governments giving away land to major corporations.
The fact is, no government seems keen on taking up the position of reinstating the Right to Property as a Fundamental Right because of its past association with the zamindari system and the exploitative means by which some private players acquire land today.
Therefore, it is clear that the social justice motive of the Constituent Assembly no longer holds true.
So yes, 1950 didn’t quite do this one right by 2019.
(Edited by Gayatri Mishra)