Property Laws and Property Practices in India

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Land and property has been governed by the Indian state in rather conflicting ways in the past. While the first amendments to the Indian Constitution were purportedly to enable the State to redistribute land more equitably, this was followed by land acquisition that displaced Adivasis, Dalits and other vulnerable groups for developmental projects. Recently, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Rehabilitation Act, 2013 was enacted to restrain this power of eminent domain.However, this law has been amended and subverted as land acquisitions continue unabated. In stark contrast to this image of the powerful State, that can take away its citizens’ rights to property through acquisition, are the routine contraventions of property laws, that has resulted in the chaotic Indian city, replete with unauthorized constructions and occupations that some propose is due to the failure of urban planning. If the State is as powerful as it appears to be, how do we explain these everyday contraventions of property laws? This paper examines these two sets of evidence available in the vast literature on property rights, acquisition and urban planning, to decrypt the stance of the Indian State vis-a-vis land and property within its territory.

Our quest is to understand how the State postures itself with respect to the property rights of its citizens, by examining the property laws and practices of the Indian State as well as the practices of Indian citizens, that shape laws and their implementation. The first part of this paper engages with the literature and case law on the State’s power of eminent domain under land reform laws, general land acquisition laws and laws pertaining to common property resources. The second part of this paper looks at evidence on the implementation of property laws in urban governance, widening the debate on property rights from the narrow confines of eminent domain, land acquisition, displacement and resettlement. In this part we examine the everyday subversion of municipal laws on building and construction and planning laws that govern land use, by citizens and the State’s response to these subversions. We propose that a closer look at the State’s own practices in both these fields of praxis—eminent domain and urban governance, reveals a complex terrain of land and property governance in India, with the State positioning itself as a patron, thus relegating property rights to a field of negotiations.