Essentially the Indian Constitution,” observed Sir Iver Jennings “is an individualist document. Its prophets are Burke, Mill and Dicey; yet some at least of the members of the Constituent Assembly thought in collectivist terms. The result is a curious dichotomy. On the one hand the individualism of the nineteenth century has sought to limit the powers of the government in the interest of liberty; on the other hand the collectivist trend of the century has sought to expand the powers of government in order that the state may regulate economic life and incidentally restrict liberty.”
And since Indian Independence, there has been a gradual but sustained effort to increase the powers of the executive at the expense of the courts. Indeed, Pandit Nehru had opposed the idea of the Supreme Court being the final arbiter of compensation on the plea that the Supreme Court ought not to make itself a “third House of Parliament”.
It is well known that the Due Process Clauses of the Fifth and Fourteenth amendments to the American Constitution constitute a source of reserved power for the judiciary to act as a restraining influence on legislative and executive bodies when they tend to limit the freedom of the individual. While there is no Due Process Clause as such in the Indian Constitution, the Indian judiciary became empowered to regulate property rights in India.
The ‘Right to Property’ was originally guaranteed by Article 31 of the Indian Constitution. In the document as drafted in 1950, Article 31(1) read: “No person shall be deprived of his property save by authority of law”. And Article 31(2) read: “No property, movable or immovable, including any interest in, or any company owing any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation or signifies the principles on which and the manner in which the compensation is to be determined and given.”
However, on 27 April 1955, an amendment was passed which substituted for Article 31 (2) the following clauses: 31(2) No Property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate.
31 (2-A) where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of its property”. The article, as amended, creates a situation of intense uncertainty since we do not have clauses similar to the Due Process Clauses in the American Constitution.
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Indeed as pointed out by Justice Douglas (in “We the Judges), it is clear that India has broken with one tradition of the law of eminent domain—the 1955 Amendment casts a shadow over every private factory, plant or other individual enterprise in India. The legislature may now appropriate at any price it desires, substantial or nominal.
There is no review of the reasonableness of the amount of compensation. The result can be just compensation or confiscation, dependent wholly on the mood of Parliament”. This new power of fixing the amount of compensation is theoretically vested in Parliament, but in actual practice will have to be delegated to the ruling party and finally administered by the executive officials. The situation is particularly gloomy if viewed in the light of the various measures which have followed in the wake of the ‘Socialistic Pattern of Society’—the Nagpur resolution on Cooperative Farming, Nationalisation of the Insurance, State Tradings, Ceilings on land holdings etc.
It is well to recall that several years ago, Lord Hewart, a distinguished jurist and former Lord Chief Justice of England, pointed to the dangers of what he termed “the new despotism” of those in authority who are allowed to dominate the private sector. This is even more true in a country like India where (as accurately summed up by N Raghunathan in his “Our New- Rulers”) “we have an illiterate public which plausible demagogues promising the millennium out of hand can sway with unpredictable results, a long tradition of docile submission to authority, and what is in reality a one-party State.”
In the final analysis, the right to own property is linked with individual freedom. As argued by the liberal historian Prof. Massimo Salvadori, Karl Marx was correct when he said that those who owned property were free and those who did not were unfree, but was wrong when he deduced illogically that greater freedom would be achieved through the abolition of private property.
Actually, it is this concept of individual freedom as explained by thinkers like Locke, Turgot and Jefferson which gives democracy its distinctive profile. The belief of our planners who are perpetually thinking in terms of constitutional encroachments into the domain of the individual can only find its scope in gigantomania by building colossal structures and voicing the usual slogan of production and more production at the expense of urgent consumer needs and dismissing informed criticism as “reactionary or lacking even a grain of intelligence”.
It is high time that we halted this remorseless process of divesting the people of their property rights, if we are to preserve the spirit of democracy as distinguished from its outer trappings.
This essay is part of a series from the Indian Liberals archive, a project of the Centre for Civil Society. This essay is excerpted from the journal “The Indian Libertarian”, published on 1 January 1962. The original version can be accessed on this link.