s22, 10:54 Pat THE LEAFLET AUGUST 8, 2022 RIGHTS ¥ Equality Freedom Religion Life & Liberty Health Education Women and Children LGBTal Affirmative Action Labour Law Environment/Animal Rights Digital Rights Privacy 1p Know Your Rights Citizenship RULE OF LAW ¥ COURT ROOM ¥ Civil Justice Supreme Court Criminal Justice High Courts Commercial Law District Courts/Special Courts Due Process Tribunals Federalism Governance and Policy Information and Transparency Judicial Accountability International Law & World Affairs IN FOCUS ¥ Bhima Koregaon Sedition & UAPA Press Freedom coviD-19 Kashmir Hijab Row Russian war on Ukraine Hate Speech MORE ¥ The Leaflet Insight The Leaflet Briefs Special Issues ¥ hitpstelesletinleminent-domain-doctrne-in-indi-and:ihe-lackot-ve-pracess! Eminent domain doctrine in India and the lack of due process — The Leatet CaN © QSEARCH = wtseiz2, 1054 PM Eminent domain doctrine in India and the lack of due process ~The Lea Special Issue: Emergency Independence Day v f Independence Day Week Specials Lawyers Who Made Us Proud in 2020 Republic Day Special on Citizenship The legacy of Ruth Ginsburg Two years since Navtej Johar case International Women’s Day 2022 Ambedkar Jayanti 2022 May Day 2022 World Environment Day 2022 International Day for Countering Hate Speech 2022 Forty seven years since declaration of Emergency Investigation Book Review History Interviews Videos Podcasts Humour Adaalat Antics Miscellaneous Eminent domain doctrine in Indiajand the lack df due process ANE Ree eo The practise of the eminent domain doctrine in India is in abrogation of due process because there is no clarity over what constitutes legitimate public purpose for which someone’ private property can be taken away, and courts have no power to determine whether the compensation offered by the State is fair and Just, writes DIVYANSHU DEMBI. htpsthelealetinfrinent-domain-doctine-in-india-and:ihe ofdue-process! atsre, 1054 Pa Eminent domain docine in Ina an the ack of Gus process The Lest M. Hakeem had approached the Supreme Court with high hopes for increased and ‘just’ compensation against the acquisition of his land under theNational Highway Authority of India Act, 1956(NHAI Act) by v f appointed to set a new compensation. The only twist being that the arbitrator in this case could only be appointed by the central government, who unsurprisingly, is another government official. He again set a compensation far below market value. Frustrated, Hakeem approached the Supreme Court. The court, in its judgment in the case of Project Director, NHAL vs, compensation under the Act, which is that the court had no competence to enhance the compensation Hakeem (2021) unflinchingly reiterated the settled position when it comes to and could only either set the award aside, or remit it back to the arbitrator. In other words, somehow, when it comes to land acquisition and compensation, the central tenet of a strong judiciary i. judicial review, disappears Hakeem, like many others, was left with whatever measly amount the government bothered to give him for his land, and no recourse. However, the inability of courts to adjudicate on compensation of land acquisition is nothing new and such injustice is unsurprising when we consider the history of eminent domain doctrine in India. Also read: Farmers relieved as J&K High Court halts forcible land acquisition in parts of state Setting the stage Even though some jurists argue that defining private property is impossible, we all have an idea of what the term means in common parlance ~ any property that is privately owned and not meant for public use, ‘To understand why property rights enjoy a central position in the constitutional history of nations, we need to understand three main arguments: First, that a robust right to property is a pre-condition for establishing a liberal and progressive society. It is based on the idea that all human rights essentially boil down to property rights. Second, because property rights essentially answer the question ‘what is the best use of this resource’ ~ only that person who owns it, or who comes to own it through a system of voluntary exchange, should have the right to make this decision. No one else, not even the State, should make the decision for him. Third, the Lockean idea of constitutional protection of private property is based on the notion that rights are not created by the constitution, but are only protected by it. Such an understanding implies that the constitution and the sovereign cannot take away property involuntarily. Ithas been widely recognised both in courts and scholarship that strong property rights are a sine qua non to economic prosperity. In Delhi Airtech Services Pvt Ltd v. State of U.P (2011), the Supreme Court opined that “ijt is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government”. Eminent domain, simply put, is the State's power to acquire private property against the consent of the owner for a ‘public purpose’. There are three commonly accepted elements to it. First, the taking should be under a valid law. Second, the land owner must be paid just compensation. Third, the acquisition of the property should only be for public purposes. htpsthelealetinfrinent-domain-doctine-in-india-and:ihe ofdue-process! antseiz2, 1054 PM Eminent domain doctrine in India and the lack of due process ~The Lea ‘To understand why even now, countless people like Hakeem are cheated out of the value of their land with the courts being reduced to meck spectators ~ we need to go back to our founding v f A very old problem Article 31 has the distinction of being one of the most debated and the most amended provision of the Constitution, The constituent assembly under Jawaharlal Nehru was clear about the fact that India would be formed as a socialist State. However, at the time around 40-60% of the land in India was owned by wealthy landlords, or zamindaars~ and such concentration of economic and social power went against the socialist logic. ‘The State wanted to bring large scale agrarian reforms and land redistribution, but this meant that under the then constitutional regime that protected against arbitrary taking of private property, all such zamindaars would have to be paid compensation for their lands. Thus, they were in a conundrum. If they compensated these wealthy zamindaars, it would lead to the same inequality that the reforms aimed to deconstruct. With one side arguing for giving no compensation against acquiring zamjndaari land and the other side arguing for robust property rights and just compensation, the debates were mainly centred on how to solve the zamindaari inent domain power for the State. As I will show now, the assembly issue without creating unchecked e1 failed to do either. Out of this tension, article 31 was born. Article 31(2) mentioned only ‘compensation’ instead of just’ compensation, and article 31(4) and 31(6) stated that if the parliament passes any law that contravenes this article, it could not be invalidated by any court. The assembly feared that if they used the term ‘just’ compensation, the courts would step into their agrarian reform agenda and thwart it, either by setting an adequate compensation or invalidating the law itself on grounds of violation of fundamental rights. So, they bypassed the issues by structurally depriving the courts of their power of judicial review, thereby driving a coach and horses through due process of law. The original sin of the framers was that they took themselves to be fortune tellers when they were not. ‘They believed that the inequality consolidated in colonial India would simply be replicated in a free India without their central planning, They failed to understand that this inequality was a product of colonialism - where neither man, nor commerce was free. And, in free India where both were free, the same inequalities would break down with time. A short history of the legal and political battle that the government fought with the judiciary aiming to establish a command and control economy is reproduced below and also available here. htpsthelealetinferinent-domain-doctrne-in-india-andhe ofelue-process! ant118/22, 1054 PM v Eminent domain doctrine in India and the lack of due process — The Leatet EMINENT THE LEAFLET CONSTITUTION FIRST 1950: PATNA HC INVALIDATES BIHAR LAND REFORMS ACT The government faced multiple legal challenges to their land reform ogerda under crtiele 3 Aiterthe Potna HC decision, the state wanted to protects agenda through otter means 1954: BELA BANERJEE CASE The court reads just compensation’ inte article 3] 1964: P. VAJRAVELU CASE The court again interpreted that i can decide on camparsarion inland acquisition cates whan the compensation soomed ‘ison 1964: SAJJAN SINGH CASE The conettutional validity of Th amandment The Court held the amendment 10 be valid wor challenged, ‘THE HISTORY OF EMINENT DOMAIN IN INDIA IS DEFINED BY THE POWER STRUGGLE BETWEEN THE PARLIAMENT AND THE JUDICIARY, ULTIMATELY RESULTING IN DELETION OF ‘ARTICLE 31 OF THE CONSTITUTION 1951: FIRST AMENDMENT 31A gave eminent domain legislations mmurity against articles 14 and 19 challenges. 31B introduced the Infamous ninth schedule that geve camplate immunity egninet judicial revew to any lew passed by pariament 1955: FOURTH AMENDMENT ‘Amended 31(2) to include ‘and no such low shal be called in question in any court on the ground that the compensation provided by that law is not edequate' to remove courts ability to adjudicate on compensation. 1964: 17TH AMENDMENT Parliamont added oll fand raform laws te nicth schedule to bypass jocliial review. 1967: GOLAK NATHCASE Overtumed Sojan Singh and stated that parlamont could not pass any law (includng lond reform legislation) that abridged hitpsteleeletinleminent-domain-doctrne-in-indi-and:ihe-lackot-ve-pracess!18/22, 1054 PM Eminent domain doctrine in India and the lack of due process — The Leatet fundamental ight 1969: BANK NATIONALISATION 4 y f f 1970: RC COOPER CASE Eloven judge bench strusk down the ordinance on various grounds, inter alia, that it does nat provide far compersaton underrelevant principles hitpsitelesletinleminent-domain-doctrne-in-india-and-ihe-lackot-ve-process! ent118/22, 1054 PM 1973: KESAVNANDA B. CASE ‘Questioned the Kerala Land reforms act, and! also 24th, 25th and 29th amendment. I judge bench gove bith to basic structure’ doctine. Did not held right to property as part of the basic shucture 1975: EMERGENCY DECLARED 1977: 44TH AMENDMENT Altor emergency ended, the newly elected JP government undicl most of 42rd amendment but olko deleted article 31, along with I9(IKf), They rentroduced it as article 300A of the constitution, no longer a furdamenta right 2009: SANJIV AGGARWAL WR. Wht petition osted the Supreme Cout to invalidate the Forty Fourth Amendmont and renstate the Right fo Property 03 a fundarnenval ‘ight justotable under Article 32, Discarded ond ‘ot heard on meri, Eminent domain doctrine in India and the lack of due process — The Leatet 1971: 24TH AND 25TH AMENDMENTS 24th amendment was meant fo counter decision in Golah Nath ond gave the pariament obsolute discretion te ‘omend the constitution. 25th omendmeat replaced the word ‘compensation wih amount’ 1975: 39TH AMENDMENT Added more land reform and netionalizing legislation to the ninth schedule. 1976: 42ND AMENDMENT Gove primacy to directive panciples over furdemental nights. Declared supromacy of porlioment over censttution and cours, 1977: ARTICLE 300A Right fo property row only a lege right, The text roads ‘no poxen shall be deprived of his property save by the outhorty of law! 2011: KT PLANTATION CASE The court reads in public purpose ond compensation os requrement jor exercising ‘eminent domain under 300A, htpsthelealetinferinent-domain-doctine-i-india-and-he-ackotue-process! mm18/22, 1054 PM Eminent domain doctrine in India and the lack of due process — The Leatet Also read: At the Heart of Lakshadweep ‘Shock Therapy’ Lies a Policy to Grab Land The ghosts of yesterday The questionable history (and thus present) of eminent domain practice in India betrays due process in two ways. Procedurally - by wholly depriving the courts on adjudicating on the quantum of compensation itself, as seen in M, Hakeem and, substantially ~ by depriving the courts of adjudicating on whether the taking constitutes a valid use of eminent domain doctrine or not. This is sinister yet unsurprising because the constituent assembly itself never intended to observe due process of law. And the ball that they set rolling is still bulldozing the property rights of countless. individuals. It is also important to notice how the assembly, in their obsession with the zamindaari problem, myopically drafted the taking clause which talks about property generally, as if it was only to be used for agrarian reforms. Because the assembly wanted to take away land for agrarian reform without paying the compensation, instead of creating an exception for the same, they included this lack of due process in the clause itself, which meant that the government could choose to not pay just compensation for taking away any property and not just property for agrarian reform. This is precisely what happened. Drafting a clause with the intention to be misused specifically, will with time, be misused generally. The culmination of this history is twofold: First, is that we still do not have a clear and defined idea of precisely when (beyond the vague public purpose test) is it legitimate for the government to take away land, and thus as a result lack substantive restrictions upon that power. This is why numerous people like Hakeem can have their lands taken away from them because the government simply states that their land is required for ‘public purpose’ without the courts going into the merits of the claim. Second, even when such power is exercised legitimately, the consistent practice of depriving the courts from adjudicating upon the justness of the compensation continues to constitute a fraud on the judicial power of the court and constitution, and continues to constitute an unjust exercise of State power. Which is why people like Hakeem, even when their land is legitimately needed for public purposes, are never paid just compensation. hitpstelealetinleminent-domain-doctrine-in-indi-and:ihe-lackot-ve-pracess! ants22, 10:54 Pat Eminent domain doctrine in India and the lack of due process — The Leatet Also read: The mask of ‘adla badli’: How Chhattisgarh government steals adivasi land on behalf of Bhilai Steel Plant v f wnere are we now: The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement ‘Act, 2013 (LARR) - the generic takings legislation in India does define public purpose, but the net it spins for what constitutes public purpose is as wide as imaginable and thus offers no real change from its previous act ~ the Land Acquisition Act, 1894, which did not define public purpose at all. te Even though LARR provides for challenging the compensation by approaching the high court, most individuals whose lands are taken away are poor and cannot bear the cost of litigation. A study of 1660 judgements from the Punjab and Haryana High court showed that the average compensation is only about one fourth of the market value of the land. Given that the default in land acquisition cases is measly compensation, the NHAI Act is even more notorious in so far as it does not even provide for effectively challenging the compensation set by the government at all, with the arbitrator being a government employee himself and the court not being competent fo enhance the arbitral award. Since land is on the Concurrent list of the Constitution's Seventh Schedule, many states have either severely diluted the LARR to skip basic requirements, or have completely bypassed the Act by invoking outdated legislations through their power under Article 254(2). Many states also use these outdated laws to acquire land for purposes that may not come strictly under the public purpose definition - such as constructing an oil refinery, building a factory, and opening a burial ground, among, other things. Given that these are not strict public goods, what legitimacy does the State have to exercise its eminent domain powers in these cases? This is exactly where the lack of a strong eminent domain doctrine hurts us. ‘Thus we currently need two things. First, is to grant courts the ability to decide on compensation in order to ensure that people get just compensation. And secondly, to develop a robust doctrine of eminent domain use itself through legislative codification and judicial decisions. (Divyanshu Dembi is a second year L.L.B student at Jindal Global Law School, Jindal Global University. The views expressed are personal.) htpsthelealetinfrinent-domain-doctine-in-india-and:ihe ofdue-process! ontsa, 10:54 Pat Eminent domain doctrine in India and the lack of due process — The Leatet Divyanshu Dembi Divyanshu Dembi is a second year L.L.B student at Jindal Global Law School, Jindal Global University. Related Kerala writer, accused of sexual harassment, gets anticipatory bail on the basis of ‘regressive’ reasoning hitpseleeletinleminent-domain-doctrne-in-indi-and:-ihe-lackot-ve-pracess! son118/22, 1054 PM Eminent domain doctrine in India and the lack of due process — The Lat y f As courts look for light from foreign jurisprudence, they can refuse to be blown off by it Revisiting Shreya Singhal versus Union of India: A not so bright spot in the free speech jurisprudence of The nature of judging Asour LINKS: contact Advisory Board Privacy Policy, Grievance Redressal Mechanism Editorial Board Terms and Conditions Write For Us The Leaflet Team Careers © 2022 The Leaflet fv 8 @ @ tact htpsthelealetinferinent-domain-doctine-in-india-and-he-lack-otue-process! ant