Accessible Requires Authentication Published by De Gruyter February 8, 2017

Constitutional Right to Property in Changing Times: The Indian Experience

R. Rajesh Babu
From the journal ICL Journal

Abstract

The constitutional right to property has undergone a significant change since India's independence. In the past few decades, the guarantee of property for both alien and domestic right holders went for considerable dilution to sanction the unrestrained power of eminent domain. The arbitrary expropriation of property was justified in the then social and political context of a nascent state. However, since India embarked on the path of liberalization with the policy of promoting international trade and foreign investments, there appeared a progressive and selective modification if its legal regime on property rights to favour alien property and corporate interests. Part of the policy shift involved guarantee and strengthening of the legal environment for protection of foreign property and investment. India's international commitments under the WTO Agreements and several investment protection treaties guaranteed capital and IP exporting states safe and secure property rights in the host state - India, much beyond the existing protection for citizen's property. Remedies for breach and standard of compensation for expropriation, direct or indirect, were judged by international rules and practices, beyond the control of local courts. To the extent that international expropriation and compensation rules provide foreign investors and IPR holders with stronger rights than India’s laws, they are also likely to provide them with stiffer property rights. In addition, change was evident in the nature of ownership of expropriated property. Nationalization (state ownership), which was the primary character of expropriations, was replaced by ‘corporate’ ownership with no respect for public purpose or just compensation. The recent stints of compulsory acquisition of land for SEZ underline the ‘reverse-discrimination’ or double standards perpetrated by the Indian state. The paper attempts to highlight this paradox in India’s property rights regime in the changing global context. The paper argues for a constitutional rethinking on right to property, in the post liberalization context, considering the new social and political realities, particularly from the viewpoint of individual private owners whose identity and livelihood are attached to the property.

Published Online: 2017-2-8
Published in Print: 2012-6-1

© 2017 by Walter de Gruyter Berlin/Boston