Introduction

• The impoverished farmers who won a million hearts in Mumbai with their quiet dignity are now on their way to New Delhi to make their voice heard outside national Parliament.
• The list of demands is a long one, which is not surprising given the intensity of rural distress.
• However, one of their demands shows why it is now time to reinstate the right to property as a fundamental constitutional right.

Demand of right over land

• The farmers from Nashik district of Maharashtra have been demanding that the government should recognize their legal rights over the land they till.
• Many of the protesters are tribals who have been cultivating land controlled by the forest department.
• The Forest Rights Act of 2006 seeks to correct a historical wrong cemented during the colonial era.
• The lack of land rights has ensured that generations of tribal cultivators have got a raw deal from governments as well as banks. Hence the demand for property rights from the marching farmers.

Right to property in Indian constitution

• It is well known that the Indian Constitution originally recognized the right to property as a fundamental right.
• That right came under attack beginning with the first amendment in 1951.
• Many of the subsequent laws that undermined property rights were hidden away from judicial scrutiny in the Ninth Schedule.
• Another big blow came during the epic legal battles after the nationalization of banks in 1969.
• The Morarji Desai government eventually scrapped the fundamental right to property with the forty-fourth amendment in 1978.
• In its place came Article 300-A that makes it possible for a citizen to be dispossessed without compensation through an act of legislation.

Why right to property was scrapped from fundamental rights?

• Successive governments chipped away at the right to property by arguing that it was an obstacle in the way of pursuing the social justice agenda embedded in the directive principles of state policy.
• Consider the issue of farm land. It was very unequally divided when India became an independent country because of the colonial institution of zamindari.
• The estates kept growing in size as indebted peasants were dispossessed after loan defaults.
• Think of Do Bigha Zameen, the heart-wrenching 1953 movie directed by Bimal Roy. Even liberals saw the value in land reforms.
• The implicit assumption all the way till the right to property was removed from the list of fundamental rights was that it was essentially a concern of the rich.
• The poor had little stake in property rights; in fact, property rights were an obstacle in the battle against mass poverty.

Need to reinstate right to property

• The poor have neither the legal resources nor the political heft to fight laws or administrative orders that allow governments take over their land.
• The poor do not have enough opportunities to make a living in formal jobs in case they are forcibly separated from their property.
• There is now a lot of research that shows how property rights help the poor.
• The security of property provides incentives for a small farmer to invest in his land or a slum dweller to spend on basic infrastructure.
• The Peruvian economist Hernando De Soto has also shown how secure property rights allow the poor to raise capital by offering the property as collateral to formal lenders.
• The Odisha state government has recently begun offering formal property rights to slum dwellers.

Conclusion

• Indian political parties have mostly steered clear of making any commitment to a reinstated fundamental right to property, perhaps because of the belief that they would be seen to represent the interests of the rich rather than the poor.
• It is time to break this misconception. The poor also have a stake in better property rights—from land titling to legal safeguards.
• Women also need to be equal partners in property. Property rights today are a tool of inclusion rather than exclusion.