There is no right to Property?

You have lived in a property for centuries through your lineage. Consider your house, full of your kith and kin, where you were born, where you brought your bride, where the first son was born, your sisters were married off, where you lived through, in your twilight years, is being taken over for ‘Development’. The seedlings you got from Haridwar, Nanital, Amroha, and many other places, the lush Alphanso mango tree which was planted by your grandmother 60 years ago, are all going to bite dust. You are going to be uprooted from your own house, from your moorings. Your neighbourhood held many of your friends, relatives, and your favourite sojourn in the evening where your idle pastime was gossip about people who were long dead and who’s some famous gestures were imprinted on your mind, etc. The Government authorities are trapped in a web of complexities, seeking solutions here and there, without doing arithmetic or planning to foster development. They do not understand your pain. Your anguish. Instead of reducing a lot of grief and gripe, they are adding misery to the old and uncared citizen of India in the name of Developmental Planning.

Right to Property was a fundamental right appearing in Chapter III of the Indian Constitution under 3.17 when the Constitution was adopted. In the same Chapter, under Serial Nos 25 to 36 appear Directive principles. The founding fathers remarked that the ‘aspirations of renascent India were secure in the justicable Fundamental Rights and non- justicable Directive principles’. But by bringing in the 44th amendment, “Right to Property” ceased to be a fundamental right. The reason for introduction of 44th Amendment was due to the fact that though Article 31 B and 9th Schedule [to keep them secure from attack on the ground that such enactment or a provision thereof is inconsistent with any provision of Part III of the Constitution] gave protection to Government against judicial intervention. However, time and again, the Supreme Court in various cases brought in synthesis of Fundamental rights with Directive principles. They held that Directive Principles effectuate Fundamental Rights. The ‘theory that Parliament had no right to change the basic structure of the Constitution’ was enunciated by the Supreme Court in the Keshavananda Bharati Vs state of Kerala. But the judgment did not clarify what the ‘basic structure was’. However, Supreme Court clarified that the ‘scope of certain fundamental rights could be adjudged reading into them or reading them not only in the light of Directive Principles of State Policy but also international covenants or covenants which were harmony with the Fundamental rights.” Supreme Court conferred itself the Right of Judicial Review. Government’s contention was that Directive principles in Art 39(b) and 39(i) had edge over Fundamental rights, in pith and substance, as the welfare state can be created only through the sphinx of development.

Under Article 300 A, Right to property is a Constitutional Right, but not a Fundamental right. Government is of the strong opinion that ‘Directive Principles’ were conscience and core of the Constitution, even though the Constitution makers were of the firm view that ‘Fundamental rights’ gave meaningful and efficacious value to Liberty, Equality and Fraternity.

Recently, in a case involving acquisition for a lay-out, Supreme Court was aghast that there was no proper or adequate survey and meticulous planning undertaken before embarking on discriminate acquisition using emergency provision of notification of areas; it wondered the nature of public cause espoused by the acquisition and why it was done, what is the area needed for the lay-out, and why after notification some areas were deleted?; why payment of compensation was low, and parameters on which it was arrived,etc. The Court queried on the rehabilitation programme of the evictees and time-frame to complete the process. It wanted to know whether the lay-out benefited the Society or benefited an individual. Supreme Court drew a parallel between Public and Private Cause and wondered in the case of private parties, the land losers would be feeling that precious land was taken away for exploitation by somebody when they were deprived of livelihood opportunities. Is this development or empowerment? The losers of land should be made beneficiaries of the acquisitions, opined Supreme Court. It also suggested that the Law Commission update the century old Land Acquisition Act 1894.

India unfortunately has no Rehabilitation and Resettlement Policy, even though a Bill piloted by the Rural Development Ministry was introduced in the Lok Sabha on Feb 24, 2009 and lapsed. No body is overly concerned about brushing off the indigent, on whose way of life, culture and livelihood, the land grab mafia wants to trample. In the name of planned development, involuntary dislodgment must have displaced around 50 million persons and even 1/4th of them have not been properly settled. Commercial calculations about the land acquired should be based on actual / notional loss and not arbitrary. The Navy acquired around 20,000 acres of land across the Arabian Sea at Karwar, and no compensation was even considered for small sized fisherman who fished on the periphery of the Arabian Sea. As Sardine and Mackerels bred at this coast during monsoons, this was a vulnerable area for catch of Sardines and Mackerels. All that fishermen got was a ban near to the coast, as naval operations were confined to this area. No protective umbrella for rehabilitated families. They are up-rooted and put in a place often where the land is follow or barren. Adequate cost-to-cost compensation is not arrived at. Their socio-economic and cultural infrastructure and quality of life are no more the same. There must be a percentage of expenses in the R&R included in the Project Cost.

International Covenant on Economic Social and Cultural Rights, 1966(ICESCR) has formed a set of Rights regarding taking over of land. “Where the resources of the nation are involved, a question of priority arises, the remedy cannot be judicial. Concept here is not justifiability at the instance of individuals in Courts of Law, but the concept is one of enforceability which means State must make justifiable and equitable legislation. (Para 10, General Comment No 3 of 1990 of the US Committee on Economic, Social and Cultural Rights)”

It is in this context, the attachment of many of our ancestral houses for ‘Development’ has to be looked at. When I am displaced, I should be given the facilities equal to or in lieu of what I have enjoyed and in similar surroundings. Otherwise, the private lands must not be taken over, but public, follow and Government lands can be used for acquisition. Don’t torture me in my old days!