Social Science Research Network
September 5, 2021
The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Indian Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished. The debate over property rights began early in the Constituent Assembly even while the terms of independence were being worked out and the controversy was more prolonged and acute than that over any subject, except that of official languages. In this paper, I outline key debates on the inclusion, content, and judicial enforcement of the right to property within the Assembly. My aim is to present a snapshot of the deliberative process that transmuted abstract policy goals of the founders into guaranteed fundamental rights of Indians, especially pertaining to the right to property. I show that there were two broad discourses underpinning the debates on the right to property. The first was the “rights” discourse, with its sub-discourses on “civil and political rights” and “social and economic rights”. The second was the “development” discourse with its concomitant focus on “land reform” and “industrialisation and capital formation”. Both were enabling discourses, but grounded in different premises. While the “development” discourse was a utilitarian discourse premised on the philosophy of the “greatest good of the greatest number”, the “rights” discourse was a dignitarian discourse, premised on the dignity of individuals and their right to realise their full potential as human beings and equal citizens of newly independent India. The contention over the inclusion of the right to property in the Constitution was a contention between the “rights” discourse that sought to empower the disempowered and respect individual rights, and the “development” discourse which sought to give the state, as representatives of the people, power to take measures to bring about development according to a utilitarian calculus that fundamentally contradicted rights of individual citizens, including, but not limited to, the right to property.
Existing scholarly literature has described the history of the fundamental right to property as a tussle between progressive legislatures, that were trying to bring about much needed land reform in India, and reactionary courts, that impeded such reform efforts by protecting the property rights of rich zamindars. I have argued elsewhere that this narrative is simplistic, and therefore somewhat misleading both as to the real issues at stake in the contentious history of the right to property, but also the learnings we can take from that history for political and constitutional reform in India and other constitutional democracies that are also developing countries. Through this paper, I hope to reveal that the final unwieldy draft of the provisions relating to constitutional property adopted by the Constituent Assembly reflected an uneasy compromise between competing interests represented within the Assembly. But this compromise failed to please any of the constituencies entirely and resolved nothing. At best, it postponed the resolution of these issues to a future time and foreshadowed the conflicts that emerged in the courts. It is clear that the Constituent Assembly expected resistance from traditional elites on the abolition of the zamindari system, but it seems to have either wilfully ignored or underestimated the extent of resistance it would face on the issue to reach a resolution that would enable the Assembly to have a fundamental rights chapter, or perhaps to even have a Constitution in the first place.Publisher Page>