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‘The Right to Property and Economic Development in India’, 10th February, 2015 .

on

‘The Right to Property and Economic Development in India’

by

Dr. Namita Wahi,
Centre for Policy Research,
New Delhi.

Abstract:

This talk presents an overview of the speaker’s doctoral dissertation titled, “The Right to Property and Economic Development in India”. The dissertation examines the historical evolution of the right to property in the Indian Constitution. This story has been told and retold before, but there exists a fairly strong conventional political and scholarly narrative. According to the conventional narrative, the Indian Constitution when it was adopted in 1950, guaranteed a fundamental right to property in Articles 19(1) (f) and 31. Over the next three decades, these provisions were enforced by a reactionary and “pro property” rights Supreme Court to protect the rights of rich property owners, particularly zamindars, or large landowners. The Court’s decisions impeded Parliament’s progressive land reform agenda, which was important both for bringing about economic development and for social redistribution, that in turn were necessary for uplift of the poor in India. Consequently, these provisions were amended several times by Parliament from 1950-1978 and were ultimately abolished by the Forty Fourth constitutional amendment in 1978.
In the last two decades however, both neoliberal and left discourses in India have considerably diverged from this conventional narrative. Since the late 1990s, neoliberal economists like Hernando de Soto have argued that strong formal property rights are a necessary precondition for economic growth, which is in turn essential for eliminating poverty in developing countries. In line with these prescriptions, the Indian government drafted the Land Titling Bill, 2010, which seeks to provide for the establishment and administration of a system of conclusive property titles through registration of immovable properties. Supporters of the bill argue that the absence of conclusive property titles prevents poor peasants from accessing loan facilities and also prevents urban development, which marginalises the poor further.
Simultaneously, widespread state acquisition of land for infrastructure and industry during this period has resulted in the massive displacement and dispossession of poor peasants and traditional communities. This has led some on the left to argue 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 2009, a writ petition was filed before the Supreme Court, which sought to invalidate the Forty Fourth constitutional amendment with a view to reinstating a justiciable constitutional right to property. In 2010, the Supreme Court dismissed the petition but not on its merits.
The speaker disagrees with all three narratives. She describes why the fundamental right to property has had such a chequered history by tracing the intellectual currents and the social and political factors that influenced the adoption of the fundamental right to property in the Constitution to the colonial period, starting with the introduction of the Permanent Settlement of land revenue by the British East India Company in the late eighteenth century.
Moreover, the narratives about the colonial period exist in isolation from narratives about the drafting of the constitutional property clause, as well as the Court-Parliament conflict on the interpretation of the fundamental right to property. Therefore, apart from presenting a revisionist account of this period, my contribution is also to connect the colonial and post-colonial periods and to show that the British East India Company and the British Crown, the Constituent Assembly, the Parliament and the Supreme Court were constantly redefining property rights to serve particular goals.
The intellectual goal in telling this story is to understand how the idea of property and its constitutional protection plays out within a concrete legal culture, with a specific social and political history and a set of historical agents. The dissertation is therefore, an attempt at writing a history of legal arguments about property in the context of the intellectual history of the right and its social and political background. But the dissertation also has an important political goal. It aims to provide insights for and engage in current debates regarding the reinstatement of the fundamental right to property in the Indian Constitution, and the repeal and replacement of the colonial Land Acquisition Act, 1894, by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as amended recently by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014.

Speaker:

Dr. Namita Wahi is a Fellow at the Centre for Policy Research and Director of the Land Rights Initiative. Dr. Wahi holds S.J.D. and LL.M. degrees from Harvard Law School and B.A. LL.B. (Hons.) degrees from the National Law School of India University, Bangalore. Her research interests are broadly in the areas of property rights, social and economic rights, and eminent domain law. She has published articles on these issues in academic journals and edited volumes, as well as newspapers and magazines.

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