Constitutional obligation to protect Property Right
Inaugural Address at the Workshop on "Property Rights as Human Rights"
Dr K. Rosaiah,
Governor of Tamil Nadu, former Chief Minister ofAndhra Pradesh
August 13th, 2011, Hyderabad
Indian landscape historically is replete with enormous evidence of benevolent kings like Ashoka creating common properties like water tanks for the use of both irrigation and drinking water, and for distribution of property with usufructory rights and absolute rights depending on the citizens to whom such rights were passed on. But in a democracy, such sovereign right over property consisted of legacy rights and conferred rights.
There is a constitutional obligation on the part of the union and federal governments to confer and protect absolute rights on the property to both private individuals, various forms of business organisations and property that would still rest with the government for the larger benefit of society. But what happened in independent India is more misuse of such legatee rights and private property rights and common property rights.
The happenings in the Forests, Mining and industrial sectors are a sordid tale of indiscretion, impropriety and encroachments to the detriment of both government and private interests. Suffice it to say that at this juncture of the economic history of the nation, when the growth rates moved from the long-held Hindu growth rate of either 2-3 percent or 6 percent for intermittently long spells, to over 8 percent consistently even during recession, and when the societal inequities are also on the rise simultaneously, proving the contention that growth is necessary but not sufficient condition for the reduction of poverty, this conference would serve a very useful purpose in debating the issues that are listed on the Agenda these two days, just a day prior to our 65th independence day.
Let me now take you to Andhra Pradesh, which has pioneered certain initiatives: it has abolished the hegemony of the village karanams and decentralised the land administration; it has conferred right to property for the women equal to men as a hereditory right in a family;it has established the e-governance procedures long before any other State thought of and it has even recently recognised the right of tenant to be eligible for becoming an instrument for seeking credit for agriculture.
But all these steps, though appropriate independently viewed suffer from several inadequacies as could be seen in the spate of legal disputes over the properties occupying the largest attention of the judiciary in the State. In fact, with the abolition of zamabandi system when the mutations used to be confirmed by a higher level revenue administration with the joint collector of the district doing such operation, updating mutations has become a cropper.
Intentions behind such Acts of the State may be good. But actions arising there from hardly proved beneficial to the intended communities either because of the inadequate understanding among the administrators and citizens alike or because of wanton disconnect in communication. In an anxiety to establish a socialistic society we tried to create more inequities than equity.
This is sought to be protected through conferment of ownership right over land as asset. It is regrettable that several of such distributed lands were unfit for cultivation. But growing urbanisation has brought to such distributed lands new values in terms of their use. The elitist and the powerful, with politicians playing spoilsport, started depriving such long conferred rights. SEZs have become examples in such direction.
A private property right includes the right to delegate, rent, or sell any portion of the rights by exchange or gift at whatever price the owner determines (provided someone is willing to pay that price). If I am not allowed to buy some rights from you and you therefore are not allowed to sell rights to me, private property rights are reduced. Thus, the three basic elements of private property are (1) exclusivity of rights to choose the use of a resource, (2) exclusivity of rights to the services of a resource, and (3) rights to exchange the resource at mutually agreeable terms. This creates an interesting paradox: although property is called “private,” private decisions are based on public, or social, evaluation.
The fundamental purpose of property rights, and their fundamental accomplishment, is that they eliminate destructive competition for control of economic resources. Well-defined and well-protected property rights replace competition by violence with competition by peaceful means.
One of the more controversial and complex human rights is the right to property. The right is controversial because the very right which is seen by some as central to the human rights concept is considered by others to be an instrument for abuse, a right that protects the ‘haves’ against the ‘have-nots’. It is complex, because no other human right is subject to more qualifications and limitations: At the same time, it clearly has characteristics of social rights with significant implications for the distribution of social goods and wealth.
Over the past few years, land has emerged as a key issue on the social and political agenda of the country. Almost every section of society has been affected by the growing controversy and conflict over land rights. While the Land Acquisition Act of 1894, continues to be on the statue book, the acquisitions have become socially and politically increasingly contentious. In the case of Singur, or the Yamuna Expressway, the courts had held that the land acquisition was legally valid. Yet, the social and political cost of implementing the law has been rising.
The political fallout has been brought out in the recent assembly election in West Bengal. After 34 years uninterrupted rule, the Left Front lost the election, for the first time, primarily because of its mishandling of the land issue. A party that had rooted its political durability on the issue of land distribution and protecting the rights of share croppers, suddenly found themselves on the receiving end of the debate.
The farmers are agitated in different parts of the country, because of their dissatisfaction with the compensation being offered. Human rights activists are upset at what they see as loss of community life, local culture and livelihood, because of huge displacement of people. Civil society people are concerned that converting agricultural land for non-agricultural use may lead to food insecurity.
The government wants to pursue an industrialization policy to create jobs for the masses. But the industrialists are concerned that without land, many of their projects may not take off the ground.
There is a serious shortage of housing in the country. But real estate developers are facing uncertainty over the future of their projects in many states. Consumers who have booked or paid for developed pieces of land or apartments, are concerned that they may not be able to get their dream home.
With 93 million of people living in urban slums, across India, there is an urgent need to figure out ways of improving quality of life, and meeting the growing need for land for residential, commercial, urban development purposes.
Huge amount of investment, foreign and domestic, are blocked because of delays in getting land for mining. POSCO, the South Korean steel giant, is the single largest foreign investment project in India, at $12 billion. Yet, for 5 years, the project is hanging fire in Orissa. Likewise, Arcelor-Mittal Steel, the world’s largest steel maker, has been facing uncertainty over land in Chattisgarh. The environmental concerns and apparent violation of mining rules have led the Supreme Court to impose a blanket ban on mining in the Bellary district of Karnataka.
In part of the country, insurgents and left wing extremists have been fishing in troubled waters, trying to exploit the dissatisfaction of the local population on these kind of issues. Even the Prime Minister has pointed out that left wing extremist poses the biggest internal security threat to the country.
It is not that only private investments are affected. Even public projects, such as road, power projects and hospitals have been embroiled in controversy over land acquisition.
While land is a state subject, land acquisition is on the concurrent list of our Constitution. The Central government has been working on a number of land and property related legislations, to figure out a way to resolve the problems, and move forward.
Recently, the draft Land Acquisition, Relief and Rehabilitation Bill, 2011, has just been released for public consultation.
The revised draft Land Titling Bill, 2011, is also available for public comments. This is aimed at improving the land titling system, so that land related disputes could be minimized. It is estimated that 80% of cases in the lower judiciary is related to land and property.
The Property Rights to Slum Dwellers Bill 2011, has also been placed in the public domain. For the first time, the bill seeks to recognize the legitimate housing needs of people living in the slums.
An amendment to Mining & Mineral Development Act is in the pipeline. It is expected that the new law will give project affected people a much greater say, and ensure a larger share of the benefits from mining.
A precursor to this series of proposed legislation was the Forest Rights Act 2006. Under this law, tribal communities living in and around forest areas, can now claim personal agricultural land (up to a maximum of 4 hectare, for a husband and wife unit). The village common land, as well as access to forest resources such as firewood and MFPs, are also to be recognized and rights established.
This workshop on Property rights as human rights is being held at a very opportune time. This is a very innovative way to look at the relationship between land and property rights on the one hand, and the human rights on the other. The discussions could help in improving our understanding of the underlying issues. And perhaps a way might be found to resolve these conflicts over land. This may help ensure that rights of the people are protected, their economic developmental needs are met, and their social and environmental concerns are resolved in a win-win manner.
I would conclude by saying that there are very many issues relating to property rights which require a thorough debate and coherent understanding so that the policy maker is enabled to enable property rights conferment as integral to human rights.
The programme of the workshop on "Property Rights as Human Rights" is available here.
A summary report of the proceedings of the workshop on "Property Rights as Human Rights" is available here.