M J Antony: Landholding as a human right

OUT OF COURT

A recent Supreme Court decision elevates the right to property to the level of an individual's right to health, livelihood, shelter and employment.

The right to property has long ceased to be a fundamental right following a 1978 amendment to the Constitution, though there are petitions pending before the Supreme Court seeking a second look at this right. As of now the right to property is only a legal right, and the Constitution says that no person shall be deprived of his property save in accordance with law. One result of this is that those who are deprived of their land through state acquisition have to agitate and face the police these days.

However, a recent judgement of the Supreme Court has given a new angle to this precious right by elevating it to the realm of human rights. It is difficult to say whether the judges had Nandigram and other hotspots in their mind, but a section in the judgement in Chairman, Indore Vikas Pradhikaran vs M/s Pure Industrial Coke emphasised: "The right to property is now considered to be not only a constitutional right but a human right. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right." Pressing the point further, the judges cited the Declaration of Human Rights and the UN General Assembly Resolution. The latter stated that everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property.

The judgement goes on to say: "Earlier, human rights referred to the claim of an individual's right to health, right to livelihood, right to shelter and employment, but now human rights have started gaining a multi-faceted approach. Now property rights are also incorporated within the definition of human rights. Even a claim of adverse possession has to be read in consonance with human rights."

The judges approvingly quoted John Adams who said that "the moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."

How far these observations will have a binding influence on specific cases before the courts is a debatable issue, but it is a fact that a number of recent judgements of the Supreme Court have dealt with the 'public purpose' test in land acquisitions. In the Indore decision above, the court explained that there are two competing interests; one, the interest of the state vis-à-vis the general public and two, to have better living conditions and the right to property. The laws should be considered "in such a manner that greater hardship is not caused to the citizens than actually contemplated. Whereas an attempt should be made to prevent unplanned and haphazard development, but the same would not mean that the court would close its eyes to the blatant illegalities committed by the state and the statutory authorities." The court ultimately dismissed the appeal of the Indore Development authorities.

Another significant judgement on land acquisitions was delivered last week, namely, New Town Planning & Development Authority vs Sebi. The issue was the take-over of 9,354 acres spread over 29 villages in Ropar district to raise a new town called Anandgarh. The high court struck down the notifications issued under the Land Acquisition Act, observing, "Man cannot continue to pick nature's pocket; he cannot raise multi-storeyed monsters of steel and cement at every place. All places cannot be suitable for a new city."

In this case, the Punjab government ignored the procedure for acquiring land, especially the provision for hearing objections from the public. The government appealed to the Supreme Court without success. Reiterating the high court view, the final judgement said that the "public purpose stated in the notifications was non-existent in view of the fact that there was no planning area validly declared by the competent authority for the development of the land."

Yet another recent decision related to the dispute over land acquisition to expand the Delhi airport. Rejecting the opposition of the land owners, the Supreme Court said, in Ravi Khullar vs Union of India, that the take-over was for a public purpose. It went on to emphasise, with precedents, that "even if the land is not used for the purpose for which it is acquired, the land owner does not get any right to ask for restoration of possession." In another judgement delivered last week (Ram Krishan vs Union Territory of Chandigarh), the Supreme Court held that the acquisition of land for building a multi-specialty hospital was a legitimate public purpose. All these decisions indicate that the time has come for a revision of the Land Acquisition Act of 1894 to meet the needs of the new century.