Eminent domain is the
power of the state to take the private property of an individual for
public use upon compensation to the owner
New Delhi: Next week, the Supreme Court will begin hearing a petition
seeking restoration of the constitutional right to property, three
decades after it was abolished. If India’s apex court rules that the
right be restored, citizens across the country will be able to
challenge state acquisition of land for setting up industrial projects
or even the so-called special economic zones, or SEZs.
Land
Legislation (Graphic)
Currently, if the state acquires land on the grounds of “public
interest”, aggrieved parties have no legal recourse. Indeed, several
such challenges have already been dismissed by the courts, including
one filed in 2006 challenging the acquisition of land for building
technology parks, tourism and trade centres and townships under an
industrial development plan, and another in 1999 questioning the
acquisition of land to develop markets in Agra.
“If the right to property is restored, the amendments made to the
definition of ‘public purpose’ in the Land Acquisition Act in 1984 and
the SEZ Act will not withstand the challenge of the fundamental right
to property. In addition, every enactment after the removal of the
right in 1978 will have an extra weapon to challenge it and all
litigation after 1978 will be affected,” explained a Supreme Court
advocate who did not wish to be identified.
Changes effected to the Constitution in 1978 by the then ruling Janata
Party merely marked the culmination of a gradual process of dilution of
the fundamental right to property, initially accorded to every citizen
in Article 31 of the Constitution.
The Article said: “No person could be deprived of property without due
process of law” and “no property...shall be taken possession of or
acquired for public purposes under any law authorizing the taking of
such possession or such acquisition, unless the law provides for
compensation...”
Justifying the 1978 decision, the then law minister, Shanti Bhushan,
said it was done partly to resolve a long-standing tussle between the
legislature and judiciary.
Since 1980, the government of the day has used the changed Article to
good effect, acquiring land for industrial projects and, more recently,
for SEZs.
In recent years, this has resulted in protests by people whose land is
being acquired. Last year, protests turned violent in Singur in West
Bengal, over the acquisition of land by the government for a Tata
Motors Ltd factory and in Nandigram, also in West Bengal, over
acquisition of land for an SEZ.
Analysts say the core of these disputes has to do with the “right to
property”.
In July 2007, Sanjiv Kumar Agarwal, a businessman and founder of Good
Governance India Foundation, a non-profit organization, filed a
petition to this effect in the Supreme Court. Its central argument is
that since the judgement of the Supreme Court in the Kesavananda Bharti
case in 1973, which held that fundamental rights are part of the basic
structure of the Constitution, the amendment that abolished the right
to property was not valid.
The “relegation” of the right to property has given the government a
carte blanche to “abuse its power of eminent domain” and take private
property meant for public use to further private interests such as
“private industry, housing, cooperative societies, recreational
projects” among others, contends the petition.
Eminent domain is the power of the state to take the private property
of an individual for public use upon compensation to the owner.
Analysts say that if the case were decided in favour of the litigant,
it would mean revisiting the various instances when the government has
invoked its power of eminent domain.
malathi.n@livemint.com
http://www.livemint.com/2008/04/07005203/SC8217s-ruling-on-right-to.html
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