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Tuesday Oct 10 2000
A Constitution based on property rights?
T C A Anant

THE YEAR 1977 was a landmark year for the Indian republic. The democratic tradition had proven its resilience by ending an experiment with autocracy.

This experience led us to realise the value of fundamental rights and sought to strengthen them through the 44th Amendment. It is ironic then that this amendment which sought to increase the rights of the individual against a predatory state should have on the other hand eliminated the right to property as a fundamental right.

The reason given was that "In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right." Why did this happen?

The reasons are tangled and reflect a number of distinct misconceptions. The first misconception is a very narrow perception on property as being merely a conflict between "the individual right to property and the community’s interest in that property or the community’s right."

In actuality property rights comprise a spectrum ranging from the individual to the state encompassing tribes, religious orders, community groups and so on.

All these other groups derive their right to property from the individuals right to property. Thus when right to property is weakened all intermediate groups lose as well.

This debate is not vacuous can be seen from the problems besetting us in the Narmada Valley, where the people expropriated are in fact entire communities. If Just and Equitable Compensation were in fact paid there would be no controversy.

The unwillingness of the legislature to examine the issue of just compensation and of subjecting its decision to wider appraisal has been the source of almost all our troubles in the realm of property rights (and the reason for all the amendments cited in the 44th amendment).

This issue has been subject to much verbal sophistry and double talk. The argument has been that if just compensation were to be paid it would hinder actions in the greater common good.

The fallacy can be seen from the fact that ostensibly the proposed action would lead to benefits, which outweigh the costs imposed. If this were the case it is only right that the beneficiaries share these gains with the losers to ensure that no one is made worse off.

Anything else would be exploitation and theft. The reason why this does not happen is that both the executive and the legislature know that these benefits are illusory.

Had the compensation been just the executive would be compelled to do and honest appraisal of the proposed action and its benefits. This would have two important benefits: ill conceived actions would not be taken and lower cost, and sometimes more effective alternatives would be taken seriously rather than being contemptuously dismissed as being of no account.

As we move towards liberalisation and reassessing the mistakes of our earlier statist solutions this recognition is fundamental to further development.

Finally the last misconception is that of a benevolent paternalistic state. The irony of the 44th Amendment is that the emergency established more clearly than ever before that this notion of a ideal state which seeks the best interests of the populace was not a matter of assumption but one to be established over a long period of time through a process of development.

The notion of fundamental rights that needed protection against the arbitrary and rapacious actions of state is one of the major achievements of human civilisation.

The ability to enjoy rights to life, liberty and equality rests in the ability to acquire and use property.

The right to property and protection from its arbitrary expropriation is thus fundamental in ensuring the protection of all these other rights.

(Associate Professor, Delhi School of Economics)

The Times of India

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