Events

Speaker:
Dr. Namita Wahi, Senior Fellow, CPR & Founding Director, Land Rights Initiative

Moderator:
Ms. Shahrukh Alam, Advocate, Supreme Court of India 

This is the sixth in a series of talks on “Legal History” as part of the Land Rights Initiative Speaker Series.  This series is part of the  Land Rights Initiative’s 10 year anniversary celebrations.  Land Rights Initiative turned 10 on November 11.  

This event will be held in hybrid mode at the CPR Conference Room and online over Zoom.  Please register below to attend either in person or via Zoom. Refreshments will be served.

About the talk:
Last week, in his penultimate judgment as the Fiftieth Chief Justice of India, Justice D Y Chandrachud presided over a nine-judge constitutional bench reference in Property Owners’ Association v. State of Maharashtra. In this landmark verdict, Justice Chandrachud writing on behalf of the majority of seven judges, upended fifty-year-old case law by a five-judge constitutional bench of the Court in Sanjeev Coke Manufacturing Co. vs. Bharat Coking Coal Ltd. At issue in this case was the interpretation of Articles 31 C and 39(b) and (c) of the Constitution. While Article 39 was part of the original constitutional text adopted in 1950, Article 31C was inserted in the text of the Constitution by the Twenty-Fifth constitutional amendment in 1971 by the Indira Gandhi-led Congress (I) government. Read together, these provisions established the supremacy of the Directive Principles of State Policy over Fundamental Rights guarantees, thereby reversing the original constitutional compromise embodied in the text of the Constitution, pursuant to which Fundamental Rights guarantees were enforceable and the Directive Principles though fundamental in the governance of the country were non-enforceable. According to the conventional political and scholarly narrative, this reversal of the original constitutional compromise was necessitated by the challenges posed to the state’s economic development and social redistribution agenda by fundamental rights, especially the fundamental right to property.

The deletion of the Fundamental Right to Property through the Forty Fourth constitutional amendment by the Janata Party government in 1978 was widely expected to quell these challenges to the state’s economic development and social redistribution agenda. However, in the 50 years since the right to property was abolished, while India has seen a remarkable reduction in poverty, displacement and landlessness have not reduced proportionally. Moreover, in a rebuke to the constitutional mandate contained in Article 39 whereby the state is “required to prevent concentration of wealth”, India has seen a sharp increase in inequalities in the distribution of income and wealth, with the share of the bottom 50% of the population in the country’s wealth having consistently declined post the abolition of the fundamental right to property while the wealth of the top 10% of the population doubled in the same period. (Piketty and Chancel: 2019). What explains this property paradox whereby the deletion of property rights did not reduce, but in fact increased inequality? And how do we square this development with neoliberal economic gospel from theorists like Hernando de Soto (2000), who have argued that secure property rights bring about economic development and can help push people out of poverty, or the work of the latest Economics Nobel prize winners AJR, who argue that historically, inclusive economic and political institutions with secure property rights have ensured economic growth? (Daren Acemoglu, Simon Johnson, and Jason Robinson: 2009)

In this talk, the Speaker will evaluate the recent Supreme Court judgment against the backdrop of the contentious trajectory of the fundamental right to property. In so doing, she will show that the relationship between property and economic development on the one hand, and property and democracy on the other is far more complex and context dependent than either theorists of economic development or conventional political and scholarly accounts of the circumstances that led to the abolition of the Fundamental Right to Property have tended to admit. Through a historical account of Supreme Court cases on the Fundamental Right to Property from 1950-1978, the Speaker will show that in the particular context of India, far from being an impediment either to democracy or development, the Supreme Court’s enforcement of the right to property may have helped protect democracy against majoritarianism/authoritarianism, without necessarily derailing the development agenda.

About the speaker: 
Dr. Namita Wahi is a Senior Fellow at the Centre for Policy Research, and Founding Director of the Land Rights Initiative. She is also a Global Fellow at the Centre for Law and Social Transformation, which is jointly hosted by the Chr. Michelsen Institute and the University of Bergen. Namita’s research interests are broadly in the areas of constitutional law, legal history, property rights, social and economic rights, and climate justice. She has written extensively on these issues in academic journals and newspaper opinion editorials, spoken about these issues on television, and taught courses in these areas, at Harvard University, European University Institute, University of Bergen, National Law School of India University, Bengaluru, National University of Juridical Sciences, Kolkata. Uniquely positioned at the intersection of academia, and policy, Dr. Wahi’s scholarship has informed her extensive policy engagements with the government, including with the National Commission on Scheduled Tribes, the Department of Land Resources at the Ministry of Rural Development, the NITI Aayog, and the State Government of Jharkhand.

Before entering academia, Dr. Wahi was a litigator with Davis Polk and Wardwell in New York City, where she practised primarily in the areas of bankruptcy, securities, criminal defence and asylum law. She holds a doctorate in juridical sciences (S.J.D.) degree from Harvard Law School, where she wrote her dissertation on The Right to Property and Economic Development in India. Dr. Wahi received the New India Fellowship and is currently completing her manuscript on the history of property rights in India.  She also holds an LL.M. from Harvard Law School where she was a Barack-Inlaks scholar. During her LL.M., her paper on Human Rights Accountability of the IMF and the World Bank, was awarded the Laylin Prize for the “Best Paper in International Law”. This paper was recognised for being on SSRN’s “All Time Top Ten Downloaded Papers in the area of Other Decision Making in Public Policy and the Social Good”. She also holds B.A. and LL.B. (Hons.) degrees from the National Law School of India University, Bengaluru, where she received several gold medals for her academic achievements.

About the moderator:
Ms. Shahrukh Alam is a constitutional lawyer, a human rights activist and an advocate at the Indian Supreme Court. She is also a scholar of sociology and works within the disciplinary field of Law and Society. Ms. Alam’s litigation practice defends Indian ‘prisoners of conscience’ or political prisoners who are arrested on unconstitutional charges. She has also spoken extensively on civil rights in India at national and international fora including the Internet Freedom Foundation and American Society of International Law Annual Conference 2023. She hold an LL.M. degree from the London School of Economics and Political Science (LSE) and B.A. LL.B. (Hons.) degrees from National Law School of India University, Bengaluru. Ms. Alam’s political commentary has appeared in The Wire, The Leaflet, LiveLaw and The Indian Express among others.