Property under socialism

The Indian Constitution and Social Revolution — Right to Property since Independence; V. Krishna Ananth, Sage Series in Modern Indian History  

Tensions over the right to property and distribution of land have resulted in a large number of legislations and judgments. But historical analyses of their impact on law and society are few and far between.

The book examines the development of the legislative and juridical process by which the idea of socialism came to be located in the Constitutional scheme where the idea of nationalism was not just a sentiment against foreign domination but also an anti-colonial and anti-imperial struggle. Providing an incisive analysis — from the Constitutional Assembly debates to various judgments of the Supreme Court — the author argues that even though the Constitution did not use the word ‘socialism’ in the Preamble prior to the 42nd Amendment, the idea of socialism was prominent among the Constitution-makers who apprehended that the judiciary may throw a spanner in their work.   

The debates in the Constituent Assembly on Zamindari abolition and judgments of the apex court upholding different legislations for compulsory acquisition of land and other property, the author contends, pointed to a clear sense of purpose: to ensure that the ownership and control of the material resources of the community was distributed to serve the common good. Ironically, the legislations of the 1950s to the 1970s, enacted to facilitate the transfer of resources from the rich to the poor, are today being invoked by governments to transfer land from the poor to the rich. The concept of redistribution of resources in an egalitarian sense now stands for dispossessing the small and the medium farmer, and transferring property to private actors and multinationals in the neo-liberal state.

The author provides a critical analysis of the judgments of the Supreme Court from Golaknath to Keshavnanda Bharati. It was in the latter that the basic structure doctrine evolved, where Justice Chandrachud observed: “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage, therefore you cannot destroy its identity.”

The author points out that while illustrating what the basic structure was, the court refused to spell out the same in an exhaustive manner, giving itself the right of judicial review of constitutional amendments. Revisiting the 11 separate judgments of the 13-member Bench, he brings out the nuanced definition of the law and the Constitution and points out that this judgment was not written from within the four corners of the Constitution but strayed into philosophical debates and concepts of political theory.

In Olga Tellis vs State of Maharashtra and other judgments of the 80s and 90s, the Supreme Court developed socio-economic rights as a fundamental right, widening the right to life into the right to livelihood and other rights. The author details the justiciability of the Directive Principles woven into Article 21 in various judgments relating to land. In Samatha vs Andhra Pradesh, which related to land in Scheduled areas being transferred to non-tribals for mining, the court dwelt at length on the legislative history involving the rights of tribals, Constitutional Assembly debates and international human rights conventions and held that the agenda of egalitarianism was fundamental to the interpretation of a statute.  

But there was a transition in the approach of the Supreme Court towards socio-economic rights after liberalisation. Nowhere was it more elaborate than in the Balco case where the court upheld the proposal of the disinvestment of Balco, the central PSU, to Sterlite. But while the court ruled that the judiciary should not hold a view on whether a policy is correct or not, it did take a position by observing: “The policies of the Government ought not to be static. With the change in economic climate, the wisdom and manner for the Government to run commercial ventures may require reconsideration.” Thus in this judgment, as in the Narmada Bachao Andolan case, a contra view from Samatha emerged. The author provides an analysis of this shift and sees this as the court moving away from the constitutional commitment to socialism as it did earlier in Golaknath, Bank Nationalisation and the Privy Purses Cases. But there was again a turnaround in Dev Sharan, where the court set aside land acquisition proceedings and also put in the dock the abuse of the notion of public purpose in acquiring land and using the emergency provisions in the law to deny farmers their right to object to acquisition.  

The author concludes that socialism as perceived and understood by the makers of the Constitution 65 years ago can today be understood as involving the ownership of the means to production as well as the concept of eminent domain.

Even though the book does not cover the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, the author indicates that with this statute, the idea that was rejected by the Constitution makers has crept in, defying all the ground covered in 60 years and is likely to put the clock back.

The five appendices include the resolution of the Indian National Congress in the Karachi session, and Nehru’s speech to the Constitutional Assembly on the draft Constitution and provides the Nehruvian imprint to crucial issues that the founding fathers were concerned about in building an egalitarian society. While the book does not deal with the struggle for land reforms, it provides a valuable understanding of the development of the right to property and will be of relevance to historians, lawyers and others interested in the intersection of this right with constitutional guarantees.

The Indian Constitution and Social Revolution — Right to Property since Independence; V. Krishna Ananth, Sage Series in Modern Indian History, Rs.1,395.

The writer is an advocate practising in the Madras High Court.

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Printable version | Oct 19, 2021 1:45:07 AM |

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