This piece was originally published in the Print, on 28 February 2020.
Land conflict, which fundamentally threatens the social contract that binds us together as a nation, is ubiquitous in India today. An estimated seven million Indians are affected by on-ground conflict over 2.5 million hectares of land, which threatens investments worth $200 billion. Land disputes clog all levels of courts in India, accounting for the largest set of cases in absolute numbers and judicial pendency.
The Centre for Policy Research-Land Rights Initiative (CPR-LRI) estimates that a quarter of the total number of cases decided by the Supreme Court over the past 70 years involved land disputes, of which a third pertained to land acquisition.
Scant references to land
A Constitution as ponderous as India’s is surprisingly sparse in its reference to land. Spread over 395 articles in 22 parts and eight schedules at the time of its formation, the original Indian Constitution mentioned “land” in only four parts.
First, in Part III, with reference to the now abolished fundamental right to property embodied in Articles 19(1)(f) and Article 31, which recognised the rights of all citizens to “acquire, hold, and dispose of property”, and provided constitutional safeguards against the exercise of the state’s power of eminent domain.
Second, in Part X, read with the Fifth and Sixth Schedules to the Constitution, while referring to geographically demarcated areas for Scheduled Tribes called “Scheduled Areas”. LRI estimates that 13 per cent of India’s geographical area falls within Scheduled Areas in 14 states today.
Third, in Part XI, read with the Seventh Schedule to the Constitution, with reference to the distribution of legislative powers between Parliament and state legislatures. “Land” was identified as a state subject, while many subjects pertaining to land, were included in the Concurrent List, on which both Parliament and state assemblies can legislate. LRI’s Mapping Indian Land Laws project has compiled over a thousand original and active central, and state laws pertaining to land.
Finally, in the “succession clause” embodied in Part XII of the Constitution, which provided for the Indian government’s succession to all obligations and entitlements of the British government with respect to contracts, property and assets, including land.
These sparse references to “land” in the original Constitution are surprising for two reasons.
First, at the time the Constitution was drafted, an estimated 80 per cent of all Indians were dependent on land for their livelihood, and more than half of India’s Gross Domestic Product (GDP) came from agriculture and allied rural occupations. Second, not only had land conflict punctuated two hundred years of British rule in India but “land” had also been central to the independence movement’s struggle to establish a new social and economic order premised on rapid economic development and social redistribution, even as Indians sought to control their political destiny.
Legitimising state’s power over people
Admittedly, the fundamental right to property was one of the most contentious provisions in the drafting of the Indian Constitution. The debate on Article 31 began early in the Constituent Assembly, even while the terms of independence were being worked out, culminating two-and-a-half years later in a cumbersome compromise clause. This clause legitimised the state’s power to forcibly acquire property, including land, pursuant to a validly enacted law, for a “public purpose”, and upon payment of “just compensation”.
Subsequent amendments to the Constitution eviscerated Article 31 of its content, until it was eventually abolished by the 44th constitutional amendment in 1978. The same amendment inserted Article 300A, which removed the constitutional safeguards of “public purpose” and “just compensation” from the exercise of the state’s power of eminent domain. Done ostensibly to aid the state’s redistributive agenda, the period since the abolition of the “fundamental right to property” has in fact seen a far greater increase in economic inequalities and “land grabs” than when the right was intact.
The Constituent Assembly debates on creation of “Scheduled Areas” were less contentious than the debate on the fundamental right to property. This was possibly because the voices of Scheduled Tribe representatives highlighting the special relationship Adivasis with land, and the need for their development according to their own genius, were effectively drowned by the dominant statist and integrationist discourse in the Assembly. Unsurprisingly then, despite being the only group in the Constitution with special land rights, STs constitute the group that has been most displaced since Independence.
Of course, discussions on the rights of other forest-dwelling communities, cattle grazers, and fisherfolk are conspicuous by their absence. Instead, the deceptively innocuous succession clause in Part XII of the Constitution constitutionalised the British state’s illegal appropriation of “people’s” lands by allowing the Indian state to take over all land and property claimed by the former. Moreover, less contentious was the debate on Article 19(1)(f), which gave hitherto disempowered groups such as women and Dalits the right to acquire or inherit property in land.
A flawed architecture for modern India
70 years since Independence, though the contributions of agriculture and allied rural occupations have shrunk to a quarter of India’s GDP, almost 60 per cent of the country’s population is still dependent upon land, primarily agriculture, for livelihood.
After many arduous struggles, laws like the Hindu Succession Act, 1956 and particularly its amendments post millennium; the Forest Rights Act, 2006; the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, have legally recognised the property rights of women, forest-dwellers, tenants, sharecroppers, fisherfolk, and cattle grazers. But these laws continue to be negated by a contrary legal regime of land alienation and inheritance laws, land acquisition, forests, and mining laws that after 1978 must no longer comply with fundamental property rights guarantees.
At a time when “erosion of civil liberties” has been cited as the reason for India’s steep slide down The Economist Intelligence Unit’s 2019 Democracy Index, the history of constitutional guarantees on land is a sobering reminder of how weighted the power of the postcolonial state was against the rights of “we the people” at the Constitution’s founding. This also calls attention to how the systematic evisceration of these limited constitutional protections have brought us to a situation where the wealth of top nine Indian billionaires is comparable to the wealth of the bottom 50 per cent of the Indian population.
The founders and architects of modern India had a robust vision for our “republic”, even as they endowed us with a flawed architecture for its realisation. As inequalities sharpen the divide between Indians, and land conflict continues to grow, in the immortal words of Benjamin Franklin, the odds are piling up against our ability to “keep it”.