Unconstitutional exercise of power

March 06, 2015 12:00 am | Updated 05:50 am IST

In his celebrated treatise on constitutional law, H.M. Seervai began a discussion on the right to property by quoting from Book II of Thucydides’ History of the Peloponnesian War : “We decide or debate carefully and in person, all matters of policy, holding, not that words and deeds go ill together, but that acts are foredoomed to failure when undertaken undiscussed.” These words, spoken by the great political leader, Pericles, in his funeral oration, wrote Seervai, ought to occupy our thoughts when we consider the 44th Constitutional Amendment, which removed the status accorded to the right to property as a fundamental right without eliciting any public opinion. Today, we stand on the cusp of something similar. The Central government, having introduced an ordinance to ease the process of land acquisition by curtailing many of the safeguards introduced by a new law that was brought into force only last year, now seeks to have the ordinance confirmed in Parliament. Ought we not to heed to Pericles’s cautionary tale?

Prior consent

In short, the proposed amendment bill to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 (LARR Act), which replaced the colonial-era Land Acquisition Act of 1894, aims to do the following. One, it removes a previous bar on acquisitions by the state for the purposes of establishing private hospitals and educational institutions. Two, it removes a requirement established under the LARR Act that necessitated the prior consent of at least 80 per cent of affected families when acquiring land for private companies. And three, it removes a necessity for a detailed social impact assessment (SIA) mandated by the LARR Act for land acquired for a special category of purposes, such as projects vital to national security and the defence of India, “industrial corridors,” and “infrastructure” projects. As Yogendra Yadav argued in The Hindu, these amendments exemplify an exercise of state power sans reason, and are based on nauseatingly vague assertions of a need for development. But what’s equally disturbing about the bill is that at least some of the changes that the amendments propose, if passed, would also be patently unconstitutional.

“Eminent domain,” generally understood, inheres in a sovereign. It grants a state the authority to take private property without the owner’s consent. The term is often traced back to the 17th century jurist, Hugo Grotius. In fact, Justice M.C. Mahajan in an early Supreme Court opinion on land acquisition laws — the State of Bihar v. Kameshwar Singh — quoted Grotius and held that the meaning of eminent domain in its irreducible terms is “(a) power to take (b) without the owner’s consent, (c) for the public use,” after payment of compensation.

In its original form, the Constitution not only guaranteed to all citizens a freedom to acquire, hold, and dispose of property, but also provided that no person shall be deprived of his or her property except by authority of law. And where property was acquired for a public purpose, the taker was also required to compensate the landowner. Immediately after the Constitution came into force, however, the state found its social reform programme thwarted by an inability to reimburse zamindars for lands expropriated from them. Consequently, a plethora of constitutional amendments were introduced, and a number of pieces of legislation aimed at land reforms were placed beyond the scope of judicial review. Ultimately, in 1978, the Janata Party, which had come into power following the Indira Gandhi-enforced Emergency, removed the guarantee of the right to property as a fundamental right. Article 19(1)(f), which gave citizens the freedom to acquire, hold, and dispose of property, and Article 31, which limited the state’s ability to expropriate property, were both obliterated; the right to property was now reduced to the non-fundamental status of a legal right. These amendments, as Seervai argued, failed to grasp that Articles 19(1)(f) and 31 “were so closely interwoven with the whole fabric of our Constitution that those rights cannot be torn out without leaving a jagged hole...”

Towards greater inequities

The removal of the right to property from its status as a fundamental right might have even helped, in the short run, in bringing forth greater parity in land ownership. But, in today’s neo-liberal atmosphere, this has only contributed towards greater inequities. After the constitutional amendment, through the archaic Land Acquisition Act of 1894, different governments oversaw arbitrary expropriation of land, particularly from farmers, by expanding the definition of “public purpose” to absurd lengths. The LARR Act sought to cure this imbalance. And to the extent that it provided for an enhanced, and a more just compensation, for a social and environmental impact assessment, and for a voice to landowners, the new legislation was a success.

But the realignment of the right to property in 1978 continues to hold force. Therefore, the state can, today, very plausibly argue in favour of the present amendment bill as follows. One, consent of landowners is not required as a matter of constitutional guarantee (and that it was not required even under traditional notions of eminent domain). Two, the conduct of an SIA prior to land acquisition is similarly not constitutionally mandated. And three, the Constitution no longer proscribes acquisition for purposes that are not public, and acquisition of land for private educational institutions and private hospitals is hence wholly permissible.

Counter to equality

Each of these arguments however suffers from innate flaws. The conventional notion of eminent domain, which establishes specific constraints on land acquisition, might no longer apply. But that every one of us ought to be treated as equal citizens, with equal care and concern, remains a fundamental guarantee. In removing the necessity for an SIA and for the securing of consent of landowners from acquisitions for certain purposes in contradistinction with acquisitions for other purposes, the government effectively wants to treat one batch of landowners differently from other batches of landowners. To justify such classification, the state will have to show us not only that the distinction between acquisitions for rural infrastructure or industrial corridors — which are grouped specially — and acquisitions, say, for wildlife protection is an intelligible one, but also that this distinction bears some rational relation to the object of the former acquisitions. As the Supreme Court held in Vajravelu Mudaliar ’s case (1965), to argue thus would be to put the cart before the horse. “It is one thing to say that the existing differences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences,” wrote Justice Subba Rao. “Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or in the lands on the basis of the object.” The creation of a separate category of purposes, therefore, militates against principles of equality contained in Article 14. Neither the land that is being acquired nor the people from whom the land is being acquired stand on any special footing that justifies the present amendment.

The other limb of the state’s case is that eminent domain, which inheres in a sovereign, does not necessitate consent of landowners, and also does not mandate an SIA. Such arguments, however, ignore a further precondition for the exercise of powers of compulsory acquisition: the existence of a public purpose. In Kameshwar Singh ’s case, Justice Mahajan found that even if the Constitution did not expressly provide that a public purpose was required for employing eminent domain, such a condition was implied.

Now, we might want to ask ourselves this: if no SIA is conducted, can the state confidently argue that a proposed acquisition furthers public interest? Would it not defeat logic to contend that the establishment of a new industry, in and by itself, is for a public purpose, when the state is in no position to comment on the impact that an expropriation might have on landowners? The necessity for an SIA, therefore, is intrinsic to eminent domain. The LARR Act merely formalised this requirement, by establishing a procedure for SIA. It was in similar vein that consent of landowners was mandated when acquisition was made for the benefit of private companies. If the legislature were to do away with these requirements altogether, there would be no legitimate way for government to justify any acquisition as fulfilling a public purpose. When the ruling party argues in favour of the proposed amendments, in Parliament, therefore, it ought to also show us how these provisions will fulfil the conditions of equality under the Constitution.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)

The removal of the right to property as a fundamental right might have even helped in bringing forth greater parity in land ownership. But, in today’s neo-liberal environment, this has only contributed towards greater inequities.

The proposed amendment bill to the Land Act has amendments that are an exercise of state power without reason, with the basis for these changes on assertions of a vague agenda of development. What is equally disturbing is that at least some of the changes that these amendments propose, if passed, would also be patently unconstitutional

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