Saxena, 2019, Ch1-Right To Property Land (Land Law in India-Routledge)

1
The construction of an Indian

right to property in land
Objectives
With this book, I seek to achieve a range of distinct but connected objec-
tives. The first, and probably the widest, is to read, assess, and analyze the
law of land in India. Our analysis will be predominantly legal with a specific
reference to agrarian land. Instead of narrowing the line of enquiry to a
group of land laws or to laws belonging to one state, we shall tour the land
laws of (almost) all states in the country and attempt to ascertain the nature
of Indian land law, if the subject may be called so. Through the scheme of
the following eight chapters, we would seek to understand the manner in
which land is regulated by law and the consequences that follow such regu-
lation. Secondly, and hopefully, I would attempt to make land laws seem less
boring. Especially in a society like India, land, its relations, and its law have
shaped a tremendous amount of the societal–political–economical dynam-
ics. Land law is usually read severed from such realities and, therefore, is
rather unpopular among law students. Moreover, the use of vernacular ter-
minology in the drafting of these legislations does not aid them to gain any
nationwide popularity. I would also attempt to undo some of the common
confusions and misconceptions in Indian land law: that land and property
are almost the same thing, that as a legal system it is bogus (and not really
important), and that land acquisition is the only form of land law that exists
in our country.
The third objective, which would also be one of the central themes of the
following discussion, is to present land as a dynamic, humane entity that is
intricately associated with the lives of people, instead of limiting it to the
legal idea of property. I would argue that in an agrarian economy, land tends
to possess a certain character to its existence. Even when it is to be regulated
within the realm of property rights, it fits the bill with great difficulty and
not without dire consequences. The law of land, therefore, has the exces-
sively complex task of understanding the sociology of land, if it seeks to
regulate it in any effective (and not counterproductive) manner. The legisla-
tions that are regulating land need to incorporate the people who build their
lives and relationships around that piece of land. They need to be careful
4 A general introduction to the law of land
about keeping land close to its people, where it belongs. As we go through
the following eight chapters, we would assess the manner in which law per-
ceives and regulates this relationship between land and people. Land’s close
association with socially, economically, and politically relevant facts neces-
sitates such an outlook.
The fourth, and the most significant objective of this work, is to make
a case for redistribution. I would argue that the construction of an Indian
right to property in land cannot remain restricted to liberal notions of indi-
vidualism and security against the state. The nature of land demands that the
principles of equality and fairness are built into its distribution and access.
Land is a socio-economic entity and, therefore, the right emerging from
it would also necessarily consist of similar characteristics. The agenda of
redistribution that the law undertook and then demolished from the 1940s
to the 1960s must receive serious reconsideration.
I probably seem quite ambitious in my anticipated achievements through
this book; but the recent political climate has necessitated an urgent need
for the legal community to re-examine its resource allocation systems. Capi-
talistic tendencies have been infiltrating our economy more than ever, and
land is a resource that they all desire to possess. It is not that land was, at
any point of time in history, not a subject of contestation between different
classes of people, but recent economic developments have widened the class
gaps to such an extent that no fair competition is possible. The traditional
social structures that were built on a foundation of oppression and con-
structed around the right to possess land, are now flourishing in contempo-
rary forms with monetary infestations. Especially where land is a source of
sustenance, the need for a reassessment of the law is pressing.
The distinction between land and property

The land–property dimension, with which I begin here, is a rather slip-
pery slope. The property regime consists of multiple terms, the distinctions
between which are mostly unclear: for example, ownership, possession,
titling, estate, public land, real property, right to land, eminent domain and
sovereignty; land and property are often used interchangeably; it is uncer-
tain whether land rights are distinct and different from property rights, and
relationships that people construct around land (which we could call land
relationships) are regularly construed as those that are based on property
rights (which I would argue to be a problematic legal perspective). It is
astonishing to observe how a complicated entity such as land is wrapped
within a legally constructed concept of property, which in itself is founded
on no consistent ideology.1 Property is claimed to be a multifaceted, some-
times self-contradictory, and internally irreconcilable notion which is mani-
fested in plural and yet inseparable cultural discourses.2 When such a legal
concept strikes chords that do not quite resonate with land and its multifari-
ous dimensions, there is inevitably a lot of noise.
Indian right to property in land 5
It is a fundamental characteristic of land that it can both provide food
and give space for a home. Besides of course, all the other communitarian
and private needs that it caters to.3 Relations around land are, therefore,
also most fundamental in their nature. They determine who would have the
power to make use of land and how others would be placed with respect to
that parcel of land. If everyone requires food and a home, then essentially,
land relations would determine the distribution of basic resources in a soci-
ety. Owing to this fundamental quality, land represents a manifestation of
power in a society4 – the person who gets to use it the most or dictate how
others would use it, acquires, in essence, a socio-political power that is also
one of the main factors regulating the flow of the economy. All land rela-
tions in India are, thereby, heavily associated with the class–caste dynamics
of a particular region. Distribution of land, then, would be a dominant fea-
ture of the nature of these relationships; the more unequal the distribution
of land, the more unequal would be the relations surrounding it.
Relationships built around the idea of property, on the other hand, are a
person’s relationship with another with respect to anything5 that is capable
of being owned – and the capacity to own a thing is bestowed on a person
by law. The legal system of property rights is constructed to create a system
of relational aspirations – with a notion of private ownership at the core
of its functioning. A person owning a particular thing has, in her bundle of
rights, the particular right to exclude all others from interfering in her enjoy-
ment of that thing. This allows her to remain secured from any intervention,
either from the state or any other individual, and her individual liberty is
ensured. The difficulty arises in this system where her ownership is to be
interfered with: where the state claims eminence in its domain over the use
of that thing or where any other individual claims a better title to her object
of property. Property relations, therefore, revolve around the dynamics of
the right of ownership over a thing – the thing is a commodity which is
capable of being bought and sold, and the relations around that commodity
are dominantly economic.
When land relations are construed as property in law, much is lost in
translation. Notions of private ownership, exclusive control, and individ-
ual liberty form the core of all land relationships, and any other social or
cultural associations are pushed to the periphery. Neither do such prop-
erty relations even consider the impossibility of actually owning lands
at individuated levels,6 nor do they understand the basic need for equity
in their interactions.7 Ownership in land, especially private, cannot be
construed as a single unique relationship between a person and a mate-
rial resource, but is, in fact, an open-textured relationship many aspects
of which need to be politically and consistently determined.8 When land
relations are property, the distribution of basic food and shelter is entirely
market driven, and any welfare actions of the state are also ultimately
dictated by such market tendencies. Land becomes an exclusive commod-
ity which is a bountiful, perpetually profit-making resource, instead of a
multifarious resource that perpetually secures livelihoods and therefore
also centres on the culture of humanity and its sustainability. From the
multifarious senses in which land is perceived and utilized in reality, the
legal concept of property is able to meagrely acquire only one or a maxi-
mum of two meanings.
When I say that land is social and is deeply associated with people,
I imply a variety of things. First and foremost, I mean to state that people
build relationships around land that are not merely economic and social
but also ancestral and emotional. As against the popular notions of own-
ership, whether private or common, the idea of belongingness to lands is
prevalent among indigenous populations.9 Land is not merely the source of
their livelihood but also of their knowledge and life. Secondly, I mean to
suggest that since the relationships are both social and economic, there are
multiple ways in which these relationships overlap with one another and
for law to engage with such overlapping is a difficult endeavour, especially
when its perceptions are limited to thinking in the paradigm of property.
These relationships often overlap with one another without being neces-
sarily conflicting, until they fall within the realm of property law. Thirdly,
I also mean to press the distinction between speaking in terms of land on
one hand and land relationships on the other. When we perceive land sin-
gularly and merely as a resource towards development, not only do we
undermine the people that have formed relationships around it but we also
undermine the conception of rights that are built into land. Those rights
are always secondary to the notion of eminent domain and are, thereby,
customized to suit the bill. The moment we severe people from land, it is
easier to unilaterally argue the ultimate power of the state to decide on the
best use of land.10 The strength of a right to land lies in the inclusion of
the right holder along with her political and social identity into the legal
perceptions. Fourthly, and most importantly, I press on this association for
the fact that it requires the law to perceive land differently from any other
form of property, for otherwise the legal reality generated from the process
is far from its social reality and often only multiplies the already existing
confusion in land matters rather than effectively regulating it.
Further, construing land as property is an archaic perception of legal phi-
losophy.11 Land has been, in fact, one of the classic examples used in any
study of property law and hence the synonymy. However, if, for the moment,
we do not press the distinction any further and assume that the legal regime
of property rights can be exercised to regulate land relations, then, we may
be able to at the least construct a distinct area for land within the property
dimensions. I am speaking here of a conceptual space within the ideology of
property rights that does not hold on to a flattened understanding of land
as property; instead, it dares to undertake the task of keeping the law as
close to social realities as possible. This could be premised on a sustainable
understanding of land, one that humanizes the resource instead of separat-
ing people from their land.
The idea of property has been strongly propagated on the grounds that
its secured existence can lead to the ethical development of a person.12 The
existence of property for a person is considered to probe elements of self-
assertion and prudence;13 a legal construct for persons to have the oppor-
tunity to lead a dignified existence in society. Property is associated with
ideas of liberty – liberty for people to realize their full potential and achieve
self-fulfilment.14 In a scenario where such a relationship between person and
property is established, it has been asserted by the Hegelian approach15 that
this necessarily introduces a distributive element in the idea of property. One
cannot argue on one hand that property owning is necessary for the ethical
development of individuals and then, on the other, affect unconcern about
the moral and material plight of those who have none. Inequality in prop-
erty relations would immediately infuse a disparity of liberty in the society;
property owners would have the capacity to claim the rights of liberty and
non-owners would necessarily remain without any such rights. And there-
fore, we need to infuse a concept of substantive equality in the ownership
and development of land, even if we are to continue within the paradigm
of property.
If this argument was to be used for the right to property in land, it would
immediately meet a contradiction of legitimacy – a distribution of property
rights would essentially mean limitation of the rights of existing landown-
ers, the ones who legitimately claim ownership of land under the existing
legal system. The moment this interference is attempted, it is vehemently
argued that it would undermine the very idea of private property, which is
grounded on the principle of granting freedom to the owner to do as she
pleases with the object of her property. However, this argument is far from
being central to the pragmatic concerns of a society. All rights, especially
those relating to property, while interacting within the dynamics of relation-
ships, are subject to one limitation or another. Such limitations are generally
founded on the ideas of equality and fairness. The rights of property own-
ers, under any equitable legal philosophy, cannot be allowed to feed on the
lives of non-owners. By implication, the right to property in land would
necessarily be read against the background of a general right to subsist-
ence16 – a right that cannot be restricted by constructed notions of owner-
ship of property and should rather dictate such ownership patterns. Land is
a fundamental, sustainable environmental source of subsistence; it is closely
integrated with the life and livelihood of people and therefore, demands
equality in its distribution.
The claim of legitimacy of landownership can only go as far as the law is
framed to protect it: if the law is dominantly framed by landowners, then
the claim stands to lose even that ground for lack of representation. The
politics of representation has historically restricted the process of legislative
drafting to owners of property17 and therefore, it is no surprise that laws are
drafted so as to recognize only a single dimension of the right to property,
viz. one that provides security against external intervention. Among all the
possible understandings of property relations, the one that has been popu-
larly chosen is the one that protects existing property owners while proac-
tively resisting any claims of redistribution.
The Indian interpretation of property

The status of private property rights,18 especially with relation to land, is
one of bewilderment – a property owner does not know for sure if her right
of ownership19 is conclusive and legally durable. One is also unsure if one
owns land in the real sense of the term, for the state can at any time legiti-
mately exercise its powers of eminent domain20 and make a superior claim
over one’s land. The amount of compensation (which seems to be the only
substantive content of constitutional property rights) is a dubious figure
as it lies mostly within the discretion of the administration21 and within a
redistributive regime,22 the nature of relationship that one would have with
a non-owner is continually fluctuating. The ideas of freedom and liberty
have been associated with the concept of property rights23 but in the absence
of any equity in distribution patterns of land, such association seems pre-
carious.24 Property rights in land in an agrarian economy have conveyed a
sense of self-fulfilment25 in the minds of property owners and a democratic
welfare state generally seeks to maintain equilibrium in the distribution of
this sense of fulfilment amongst its people, for it claims to undertake the
affiliation of economic and political equality very seriously.26 A property-
owning democracy can function in no manner but one based on the equality
principle.
The regime of private property rights cultivates the dynamics of power
structures within a polity.27 In India, it is land and land relations that have
governed this power structure for centuries now. The owners of land often
have had both money and power to regulate the life and livelihoods of oth-
ers, and the political–legal system is constructed to make the state an insti-
tution that protects the will and purpose of those owners.28 The state also
decides who would be entitled to such ownership. While securing the status
of land and property owners, the state simultaneously attempts to provide
the security of a source of livelihood to the non-owners, and since land is a
limited resource, the only manner of achieving a fine balance between these
two functions is the redistribution of land that will ensure access of land to
its cultivators.
The present chapter is further meant to provide a constitutional back-
ground to the legal regime involving the interaction of property rights and
land legislations. It would address the issues that concern interpretation of
private property rights within a legal system that was initiated with the
idea of equality in access to land, land reform and redistribution. A strict
understanding of the concept of private property rights can be favourable
only to the landowning class – an approach that the new Indian state could
not afford to take29 and therefore, the concept of property rights needed
to be adapted to the Indian scenario. The distorted pattern of landowner-
ship,30 its direct association with the social hierarchy in Indian society,31 a
large class of landless cultivators with no legal rights or entitlements in land,
and a minuscule population of landowners that dictated terms of living for
the entire society could not have been regulated by a system of laws that
does not recognize these realities. In essence, this chapter would attempt to
understand the Indian right to property in land as having two corollary ele-
ments: the right of landowners to remain secured against unscrupulous state
intervention and the right of the landless to gain access to land in order to
secure their source of livelihood. Since land is a limited resource, a harmo-
nious reading of the two elements would introduce both equality and the
redistributive component within the right to property.
Property rights and land laws – a distorted debate

As has been mentioned, with specific reference to land, the Indian constitu-
tional provisions relating to property32 have presented two concurrent, yet
apparently paradoxical, aspects of rights related to property – the right of
a landowner to remain secured against state interventions and the state’s
directive of reforming land tenure to create an equitable agrarian society that
provides the tiller of soil33 with the right to ownership in land. Both these
aspects have created one of the longest standing debates in the Indian legal
discourse, for their interaction was considered disastrous to one another.
The right of a person to receive adequate compensation in the event of dep-
rivation of his property was advocated as one of the biggest hindrances in
the implementation of land reform measures which the newly built Indian
state had promised to its mass of peasantry. The idea of reforming the agrar-
ian structure by redistributing rights in land was a declared socialist objec-
tive of the state34 and was incorporated in Part IV of the Constitution. This
was directly contrasted against the liberal construction of a democratic state
that seeks to provide security from state intervention to all persons in their
fundamental right to own and possess property. Therefore, for successful
implementation of one, the removal of the other aspect was considered an
absolute necessity and this was achieved by the Forty-fourth Amendment35
to the Indian Constitution. What must be realized, however, is that the dele-
tion of one aspect did not lead to the triumphant operation of the other: the
removal of the right to property from the list of fundamental rights to make
it a mere constitutional right with fairly similar substantive content did not
affect the operation of land reform in any concrete manner. Even today, the
statutes and related executive attempts are considered unfinished business.36
The composition of a constitutional right to property

The right to property has, at all times, been a compound of various ele-
ments, but its composition has differed at different periods of time.37 The
process of interpretation of the right has produced some of the most glar-
ing controversies in the constitutional discourse, but strangely this did not
relate to the composition of the provisions. The issues raised were limited:
the courts were either assessing the adequacy of the amount of compensa-
tion that was being paid to the property owners or it was deciding on the
extent of the power of the legislature to amend the Constitution. Among
these two pressing concerns that were defining the polity of a new India, in
neither was land considered a distinct form of property, nor was land redis-
tribution considered a state policy to create economic equality within the
agrarian structure. The entire debate relating to interpretation of the right to
property commenced from Sir Kameshwar Prasad38 in 1952 and culminated
in the landmark case of Kesavananda Bharti39 in 1975. Both of these cases,
which initiated and closed the debate, were filed by landowners impugning
the land reform legislations and the related constitutional amendments, but
the entire chronology of case laws falling between the two was not restricted
to reform statutes;40 acquisition and appropriation of all forms of property
by the state formed a part of the cases establishing the right to and law of
property.
The entire jurisprudence of private property rights is directed to protect
a person’s property from intervention by the state or any non-state entity.
It defines the various kinds of rights, called the bundle of rights,41 that a
person is entitled to exercise with respect to her property, which necessarily
negates the jurisdiction of any other person or entity to interfere with its
usage. Independent claims of ownership and possession form the focus of
the subject. The concept of property was introduced in India by the series
of Permanent Settlement Regulations, enacted by the colonial government.
It was alien to Indians until the British introduced it in 1793 in order to
regulate the revenue collection system. Actors akin to intermediaries and
zamindars, who were revenue collectors, were present even in the Mughal
times, but these intermediaries were not considered owners of the land,
which was assessed under the revenue scheme. Ownership was bestowed on
them only after 1793 when the British were attempting to locate an actor
similar to an owner of land, as was familiar to them, from whom they could
collect land revenue. The traditional intermediaries were not farmers; they
were responsible for revenue collection from the farmers on the land. The
Indian land tenure system was complex and it did not identify one owner
of the land at all, the rights were often distributed among various people
having variant interests in the property.42 Land was not merely an economic
entity to traditional Indians; it was an entity intricately woven into their
social and cultural life.43
Therefore, an Indian private property in land, when introduced in the
Constitution, was a naïve concept where the owners of land were consid-
ered remains of the colonial presence. Until the 1950s,44 the land system was
regulated by colonial legislations and the distribution of landownership in
the country was appallingly uneven.45 The (then) existing landowners were
mostly intermediaries who were declared owners under the settlement regu-
lations. Thereby, when the right to private property was incorporated into
the Constitution as a fundamental right to protect liberty and freedom of
individuals from state interventions, the right was, in reality, attempting to
secure land for the ex-intermediaries, zamindars, and other classes of land-
owners. The sanctity of right to property to protect one’s liberty, if inter-
preted plainly, had the ability to destroy expectations and opportunities of
millions to gain ownership in land. It is true that the origins of the right were
tainted by influences of the intermediary landowning class;46 but, the sub-
stantive content of the property provisions after the First and Seventeenth
constitutional Amendments (read with the directive principles of Article 39)
were directed towards creating a constitutional space for land redistribution
laws. The problem, however, was in constructing the provisions together
to identify that space and make them immune to possible incursions from
other constitutional quarters. The judiciary was able to arrive at a position
where harmonious construction of fundamental rights and directive princi-
ples was a possible way to achieve social welfare goals47 after many years of
deliberation and litigation, but the land reform agenda was already a lost
cause by then.48
A combined reading of the constitutional right to property

and the legal regime constructed to reform land
The present chapter will attempt to read the constitutional provisions relat-
ing to property in land in consonance with the statutory regime constructed
to reform and regulate the land structure in the country. The jurisprudence
produced on the right to property is immense in size and complexity. The
short discussion that we had before we began with the Indian scenario would
form the conceptual ground for the following discussion. Especially in India,
land is a principal form of property that needs to be distinguished from the
general discourse on property rights. An absence of this distinction has led
to confusion in interpreting the constitutional provisions within the princi-
ples of equity and fairness and in consonance with the statutory regime of
land reform. The present chapter would attempt to establish a link between
the constitutional mandates on the process of taking of landed property
and land laws attempting to regulate the tenure. It will be contended that
the issues scrutinized during the property rights litigations scarcely related
to the substantive content of the land legislations and, therefore, the entire
length of case law provides only a limited insight into the subject of land
law; other than the questions relating to compensation, in litigations chal-
lenging land or property regulating statutes, the courts were mostly entan-
gled in establishing their jurisdiction to assess Parliament’s power to amend
the Constitution.
One other, and probably the most central, concern of linking the constitu-
tional provisions and statutory regime of land is the interaction between the
Fundamental Rights and Directive Principles of State Policy. The courts took
a while to arrive at a conclusion in the case of Minerva Mills,49 where nei-
ther was considered superior to another and a harmonious construction of
both was proposed. The alleged paradox, spoken about previously, between
the two aspects of property rights in land is based on this interaction of
Parts III and IV of the Constitution. Land reform laws were enacted at a
period in time where the courts were attempting to establish the supremacy
of one part over the other and where one could not exist in the presence of
another. Seemingly, the fundamental rights were marked as being superior
to the directive principles and therefore, the right of a person to protect
her property from state intervention was considered to be anti-socialist and
against land reforms. This ideology led to the deletion of the right from the
list of fundamental rights, which was supposed to quieten the debate. The
present chapter would discuss what exactly this ideology did to the property
rights discourse which would also form a background to the discussion on
land laws conducted in Parts II and III of this work.
A five-point argument
The present chapter sets up its argument at multiple levels. Given the length
of discourse and the multiplicity of issues involved, it would become almost
impossible to conduct a sensible study if all the elements are not specifically
marked, placed at their respective locations and connected with each other.
Therefore, in order to conduct a systematic scrutiny, the following analysis
would be conducted within the framework of a five-point argument:
At first, it would be contended that it is absolutely necessary to distin-
guish land from other forms of property (something that I have been con-
sistently stating); laws and litigations related to land had, at one point in
time, become the pathology of the Indian Legal System50 and therefore, mix-
ing land with other forms of property would only intensify the pathology.
Secondly, a space was created for property rights and land reform laws to
co-exist in the Constitution within Articles 19(1)(f), 31A, 31B, 31C, and 39
after the first and fourth amendments (this space did not exist in the original
Constitution). The provisions of the original Constitution relating to prop-
erty rights were influenced by certain Indian utterances51 which led to the
incorporation of the concept of private property in the constitutional docu-
ment. These Indian utterances were mostly from the landowning quarters of
the society that displayed the class character of land structure in the country
and therefore, the act of incorporating private property rights in the Con-
stitution was itself directed towards impeding prospective attempts of land
reform. The debate exhibited a classic case of conflict of interests between
the landowning classes and the peasantry which, however, was carefully
converted into technical issues relating to interpretation of the Constitution.
This will introduce the third and fourth points in the argument – the
substantive content of property rights related to land in the Constitution
created the possibility of a harmonious interpretation, but the series of liti-
gations filed in the courts disoriented the debate towards technical issues
related to amendment of the constitutional document (third point). The
multiple amendments made to the Constitution preceded and followed by
decisions of the apex court validating, voiding or negating the effects of
the amendment have created a state of utter confusion and anarchy in the
property rights discourse. The case for harmoniously constructing a space
for conflicting interests in land was lost. It would be further argued, as a
fourth point, that the controversy between Supreme Court and the Parlia-
ment relating to the content of property rights was actually a quarrel over
superior jurisdiction in the meaning and interpretation of the Constitution.
Fifthly, a combined and harmonious reading of the fundamental rights and
directive principles relating to property rights in land can clear the alleged
paradox between the two aspects of property rights. It would be argued
that the ideals of equality embedded in land reform and redistribution were
as significant in a socialist democratic state as were the ideals of freedom
and liberty embedded in the right to property. As a result, the Indian right
to private property in land was required to be constructed to achieve a fine
balance between the seemingly conflicting aspects of the right within a con-
stitutional framework that could be achieved via the concept of substantive
equality.
Land, the law, and a distinction from general property

In agrarian India, land has never been a regular form of property – it is lim-
ited as a resource, interwoven into the lives of people with co-existing mul-
tifarious interests and claims,52 complex in its legal nature having variant
social and economic dimensions, nearly incapable of regular adjudicative
control,53 and also regulated by muscle power within the social structure.54
Consequently, the law formulated to regulate land has gained a peculiar
character. The law attempts to administer land relations which are gener-
ally found to be overlapping and conflicting. Although the legal framework
allows multiple rights and claims to exist simultaneously with respect to a
patch of land, it has failed to impart any conclusiveness to them, creating a
situation of recurring disputes that dismantle the entire land administration
system.55
The idea of having a property in land or the ability to exercise control
over a patch of land has represented livelihood, power, and status in an
Indian agrarian society. The traditional land structure in the peasantry was
composed of multiple layers of imprecise, fluid relations between three main
actors – the cultivators of land, controllers of cultivators (generally known
as intermediaries or zamindars), and different levels of state authorities.56
Moreover, the class of cultivators was constitutive of a variety of differ-
ent types of farmers and peasants, some of whom were primarily respon-
sible for cultivation and others who were agricultural labourers. Not only
did this constitution differed with land, but also with time, for different
people acquired different jobs in different seasons. The agrarian situation
was imprecise and legally ambiguous where land was shared between these
actors in a bewildering57 variety of ways and therefore, the concepts of single
ownership or proprietorship in agrarian land was largely unknown. Such a
land tenure system in practice allowed all the three classes of people to have
variant interests in one single plot of land, with no one person exercising
their sole ownership claims over another. These relations were customar-
ily regulated and guided by the local realities of society.58 Land has always
been very dear to Indians; it has defined their social status, economic capac-
ity, and political voice. It was obvious, therefore, that in a peasant society,
land would be intricately woven into the lives and livelihood of the people.
Absence of the concept of ownership and precise relationships in land was
peculiar to the Indian agrarian society and an introduction of these concepts
infused law into the social structure.
When legal provisions were utilized to regulate rights in land, they
attempted to convert land into a singular economic entity as opposed to
its traditional multidimensional existence. The fact that land produced
immense amounts of revenue for the state gave sufficient reasons to the
colonial rulers to take a special interest in its operation. In order to ensure
that there was a concrete revenue system in operation, the British felt the
need to identify one owner of land from whom collection could be made.
Since they could locate no one, legislations were enacted to confer rights of
ownership to a certain class of people and once an owner was identified,
his relations with other actors on the land were also regularized. Therefore,
land was heavily legislated upon and the legislations pertained to regulating
rights and claims related to land. These attempts to vigorously regulate only
land, marking out the definitive claims and establishing superior and infe-
rior interests pertaining to a plot of land, singled out land relations from all
other social relations.59 Previous claims to land which were based on labour,
caste, family status, marriage, and other social factors were all deleted: the
law commanded all rights and transactions of land and in this command,
the influences of all these social factors were ignored. In a peasant society,
land had to become a litigious entity on which people could ascertain their
superior claims over others and satisfy their greed; land disputes entered the
courts and overwhelmingly occupied them. Even today, litigations relating
to land form the bulk of cases filed in the courts.
In an attempt to govern land relations with greater control and to reduce
the amount of competing claims, the British continued legislating on the
subject.60 The colonial government made repeated legal attempts to con-
trol land tenure and maintain a functional revenue collection system. The
independent government again legislated upon land in order to undo the
colonial structure and insert new frameworks in its place. Land, therefore,
has been one of the favourite subjects of the legislators; their love for the
subject has produced around 1,100 co-existing legislations and regulations
relating to land.61 However, these innumerable attempts have failed to
exercise any concrete control over land relations and transactions. The
law has been unable to control the fluidity of relations, leading to compli-
cated and overlapping claims.62 The traditional association of land with
the social, economic, and political aspects of a person’s life, although lost
in land law, still exists and influences its functionality. Consequently, land
and land law have had two distinct realities: land has endured multiple
and overlapping transactions and claims over the decades and land law
has existed parallel to these transactions, attempting, but grossly failing,
to regulate them.
A single or private ownership in land is, therefore, a heavily convoluted
concept which distinguishes it from other forms of property. The need for
distinguishing land from other forms of property can be attributed to a dual
rationale – the peculiarity of its nature and the complexity of its legal regula-
tion. Land has never been any regular form of property; its peculiarity and
significance are well admitted.63 A flattened understanding of ownership in
land or simply equating land with property can be a problematic route to
take, for such an approach would be unable to discern the characteristics
and realities of land or real property, as it is termed. In fact, programmes
proposing land reform are advocated as a means to reduce poverty and
impart social and economic equality in society.64 Legal regulation of land
has definitely remained a complicated discourse into which are factored ele-
ments of regionalism and multifarious claims.
This distinction, however, has been largely ignored in the property rights
discourse and its absence has prevented land law from receiving the specific
attention it deserved. The taking of property by the state is ruled by a set of
principles such as eminent domain and just compensation and understand-
ing land as a generic form of property has led to a plain application of these
principles to the seizing of land and abolition of landowning titles, without
understanding the nature of the purpose for which the land was taken. Espe-
cially in cases of statutes providing for redistribution of land which were
premised on the ideology of redistribution of wealth within the agrarian
community, a monetary compensation equivalent to the value and produc-
tivity of land (which is the general rule in cases of acquisition of property)
would defeat the fundamental theme of the programme.65
Furthermore, land legislations regulate land in diverse ways and for
distinct purposes. Acquisition of land from a tribal community for estab-
lishment of a private factory cannot be equated, in principle, with ceiling
statutes providing for redistribution. Land legislations interact with diverse
groups of people across the power spectrum and therefore, on ethical con-
siderations, the applicable legal principles must be adapted accordingly.
Since land-related statutes often condition the structure of the agrarian soci-
ety which has formed the basis of the country’s economy, the nature of their
purpose becomes a significant factor in application of legal principles. This
is the first point in the argument.
The First Amendment and a constitutional space
for land reform laws
While the new Indian state was forming, the prospective structure of land
and its ownership pattern was one of the greatest concerns of the landown-
ing elite who were the likely targets of the government policies. The inclusion
of the fundamental right to property in the Constitution can be asserted as
the result of these concerns; the right was likely to obstruct the redistribution
agenda of the state and at least in popular opinion, it did so. The practi-
cal failure of land reform, however, cannot be attributed to the presence of
private property rights, for that was a structural impediment of the law.66
Nevertheless, the litigation battles against land reform statutes which alleg-
edly infringed upon the property rights of the landowners deeply impaired
the general opinion about the ideology. It made the administration disbelieve
in the entire effort as land reform was a serious infringement of the property
rights of individual holders, which was to be a foundation for the country’s
economic development, and also an impossible endeavour that the then gov-
ernment had undertaken.67
The concerns of the landowning class were certainly not unfounded; all
popular political declarations during the time, although different in their
substantive content, sought to alter the colonial land structure: an attempt to
mark democratic rule in the country.68 This alteration of land structure was
proposed so that the decades of systematic oppression of the peasant were
ended and the power balance shifted in favour of the cultivator. With the slo-
gan of Land to the Tiller69 the political declarations seemed to be favouring a
radical social revolution that essentially required the landowning class to be
stripped of its power and status to accord land and power to the cultivator or
the tiller of the soil.70 Therefore, the political–legal controversy about prop-
erty rights became, in essence, a class war71 between the landowning classes
on one side and the bundles of landless classes on the other. When read
thus, the debate reflects the sensitivities of the various classes, their relations
and attachments to land and also, the unevenness of the power spectrum.
An attempt to even the spectrum by abolishing centres of concentration of
power was certainly going to meet vehement resistance, and so it did. The
landowning class repeatedly lobbied with the British and the Indian govern-
ments to ensure that their interests were protected and when, by the dawn
of independence, abolition of their titles seemed inevitable, they demanded a
fair compensation that could redeem their crucial loss.72
The second point argues that an explicit space for land legislations was
created within the Constitution only after the First and Fourth Amendments.
The original constitutional document had a general right to property that
offered protection to property owners from state intervention, a provision
that had been borrowed from the Government of India Act, 1935.
The compound of property provisions in the original Constitution con-
sisted of two basic elements – a fundamental right to property which allowed
a person the freedom to acquire, hold, and dispose of property at one’s own
will under Article 19(1)(f)73 and a protection against compulsory acquisi-
tion of property under Article 31.74 Property could be acquired by the state
only by a law to the effect, for a public purpose and against an amount of
compensation. The law acquiring land was required to set the amount of
compensation or lay down the principles for its calculation. Together, both
the provisions created the basis of the law of property but neither of the
provisions recognized land and land reform as a distinct subject of consid-
eration. The popular and prospective land reform agenda which necessarily
required the state to strictly regulate private property in land was expected
to fit within this constitutional structure of property rights. The political
leadership at the time stated that the articles were carefully inserted into the
Constitution and they were not expected to be understood as being against
the social revolution that they were proposing to achieve through a reform
of land structure.75 This expectation, however, grossly miscarried.
The idea of including the right to private property as a part of the fun-
damental right to freedom actually spurted out of a few Indian utterances76
that were doubtful of the prospective programmes of the new state. The
Congress had gained its mass political support by promising a social revolu-
tion which was to start by abolition of the intermediary landowning class.77
The intermediaries symbolized years of peasant oppression and were con-
sidered the residual faces of the colonial government.78 An abolition of the
class and loosening of their hold over the land structure of the country was
a marker of freedom to the millions of peasant cultivators.79 Obviously,
the only section of society which could raise doubts against such intentions
of the new government was the landowning intermediary class and their
utterances were eventually converted into the Right to Private Property.80
Together, the English constitutional experts and the landowning class that
constituted the membership of the Joint Committee on Indian Constitu-
tional Reform, 1934,81 which was the prequel to the Government of India
Act, 1935, reasoned the need for inclusion of private property rights. It
is also interesting to note that those who played a dominant role in the
framing of the Government of India Act, were not friendly to the notion of
guaranteed fundamental rights in a written Constitution, which they feared
would be so abstract in nature that they would have no legal effect, or if
tightly enough drafted to provide legal protection, they would unduly hin-
der the legislature.82 They were, however, prepared to swallow their objec-
tions where property rights were concerned.83
Para 369: “We think that some general provision should be inserted
in the Constitution Act safeguarding private property against expro-
priation, in order to quiet doubts which have been aroused property
in recent years by certain Indian utterances. It is obviously difficult to
frame any general provision with this object without unduly restricting
the powers of the Legislature in relation particularly to taxation; in fact,
much the same difficulties would be presented as those which we have
discussed above in relation to fundamental rights.”
It can be asserted that such a conclusion is not really obvious – unless the
identity of the membership of the committee is analyzed in detail, a conclu-
sion to the effect that there could be only particular classes pressing for pri-
vate property rights, can be at best, an assumption. Private property rights,
after all, were a well-accepted concept in the West and a proposal for their
inclusion cannot outright be termed tainted only because they seemed to be
benefitting a certain set of classes. All these doubts are, however, removed
on a further reading of the committee report – it expressly states that it
was natural for the holders of privilege under the British government to be
apprehensive of the changes that may be brought about by the new govern-
ment and, therefore, certain interests vested by the British government must
receive protection from any anticipated danger. It was doubted that the
forthcoming government would responsible enough to honour the promises
made by its predecessor. These vested interests were titles and lands granted
to certain individuals for their service to the British Raj.
Para 370: “But there is a form of private property (perhaps more accu-
rately described as ‘vested interest’ in India), which we think requires
more specific protection. We refer to grants of land or of tenure of land
free of land revenue, or subject to partial tenure of remissions of land
revenue, held under various names (of which Taluk, land free Inam,
Watan, Jagir and Muafi are examples) throughout British of land India
by various individuals or classes of individuals.”
Para 371: “It is not unnatural that the holders of privileges such as we
have described should be apprehensive lest the grant of responsible gov-
ernment, and the consequent handing over to the control of Ministers
and Legislatures of all matters connected with land revenue administra-
tion, should result in a failure to observe the promises which have been
extended by Governments in the past to themselves or their predeces-
sors in interest.”
It was then considered whether the same protection should be extended

to zamindars and others who were the successors in interest of the Per-
manent Settlement. Admittedly, the position of zamindars was markedly
different from that of individual title holders of land, but it was not consid-
ered appropriate that by a stroke of pen all their rights and privileges were
crossed out. The permanence of the settlement made by them must not be
left susceptible to such meek changes and it was necessary to accord the
zamindars due protection.
Para 372: “We have considered whether similar provision should be made
to protect the rights of Zamindars and others who are the successors in
interest of those in whose favour the Permanent Settlement of Bengal,
Bihar and Orissa and parts of the United Provinces and Madras was
made at the end of the 18th century. Briefly, the effect of this Settlement
was to give a proprietary right in land to the class described as Zamind-
ars, on the understanding that they collected and paid to Government
the revenue assessed on that land, which was fixed at rates declared at
the time to be intended to stand unaltered in perpetuity. It is apparent
that the position of Zamindars under the Permanent Settlement is very
different from that of the individual holders of grants or privileges of the
kind we have just described; for, while the privileges of the latter might,
but for a protection such as we suggest, be swept away by a stroke of
the pen with little or no injury to any but the holder of the vested inter-
est himself, the alteration of the character of the land revenue settlement
in Bengal, for instance, would involve directly or indirectly the interests
of vast numbers of the population, in addition to those of the compara-
tively small number of Zamindars proper, and might indeed produce an
economic revolution of a most far- reaching character.”
The right of property was then included in the Government of India Act
1935 under Article 29984 that formed the basis of the Indian Constitution.
The right was highly debated in the constitutional assembly but the com-
position of the provisions adopted was not very different from the property
provisions of the 1935 Act: Article 299(1) and (2) of the Government of
India Act, 1935, and Article 31(1) and (2) of the Constitution of India, 1950
had the exact same composition.
(1) No person shall be deprived of his property in British India save by

authority of law.
(2) Neither the Federal nor the Provincial Legislature shall have the
power to make any law authorising the compulsory acquisition for pub-
lic purposes of any land or any commercial or industrial undertaking or
any interest in, or any company owning, any commercial or industrial
undertaking, unless the law provides for payment of compensation for
the property acquired and either fixes the amount of compensation or
specifies the principles on which and the manner in which it is to be
determined.
All authors on the subject have noted that multiple and glaringly conflict-
ing opinions were expressed with regard to the inclusion and text of the
right to property,85 but almost the same provisions went into the Constitu-
tion, effectively scuttling the debate. In fact, the second clause of Article 31
was considered as a compromise86 between the members of the constitu-
tional assembly on the question of the amount of compensation to be paid
in cases of acquisition of land; as it appears, the compromise had already
been reached even before the constitutional assembly considered the matter.
The popular success, in fact, was that of the landowning class who had laid
a base for itself to fight the further battle.
The compound of property provisions that went into the Constitution –
Articles 19(1)(f), 31, and 39 – not only included prohibitions on the powers
of the government, but also principles of equality that the government had to
strive towards, and property relations offered the most difficult problem.87
Within a political climate that seemed glaringly in favour of a social revolu-
tion that represented a class war,88 the constitutional assembly decided to
arrive at a compromise about the amount of compensation to smoothen
the frictional edges in the form of Article 31. This compromise was, in real-
ity, a delay or a transfer of responsibility by the constitutional assembly to
the central and state legislatures to determine the amount of compensa-
tion. Article 31 stated that the law providing for acquisition of land must
determine the requisite amount of compensation or lay down the principles
for its fixation. Therefore, the zamindars changed their battleground and
moved their lobbying efforts to the ministries of state, specifically in Patna,
Lucknow, and New Delhi. They wrote to the political elite that they hoped
that the wailing of zamindars in their distress would touch their hearts89 and
they would ensure that the government protects their interests.
But the framework of the reform law in Bihar that provided for abolition
of all forms of intermediaries and vested their land in the government did
not satisfy the expectations of the zamindars; the Maharaja of Darbhanga
and others challenged the constitutionality of the Bihar Land Reforms Act,
1948, on the grounds of Articles 19 and 14.90 The Act provided for the tak-
ing over of zamindar estates. The Patna High Court agreed with the zamind-
ars in their argument that the law was affording them unequal treatment
which was causing them extreme distress. The impugned Act was accord-
ingly declared unconstitutional on the ground of Article 14 as it discrimi-
nated between the zamindars in the matter of awarding compensation.91
This interpretation of equality being applied to the right to property readily
discouraged the attempts towards redistribution. The decision completely
disregarded the socio-economic inequalities between the sufferers and the
beneficiaries of reform legislations.
A legislation that was attempting to infuse economic and political equal-
ity into the agrarian society was invalidated on another version of equality
that opposed arbitrariness in state action. This version of equality, applied
in the conditions as existed, was oblivious of the realities of the land struc-
ture, was confined within the facades of the landowning classes, and, there-
fore, only made the existing inequities before the law even more rigid.92
A possible harmonious interpretation for property rights

and land reform
These jurisprudential concepts of freedom and equality were being juggled
in the new polity. A deeply casteist and economically unequal society was
confronted with principles of social and economic justice and it was reluc-
tant to accept them without putting up a strong fight. Judgments similar to
Kameshwar Prasad93 were delivered by the Supreme Court where affirmative
action taken by the government was shot down on one ground or another.
These judgments created a general atmosphere of confusion regarding the
understanding of the constitutional theme which appeared to be favouring
contradictory concepts. Within this general confusion, the formation and
interaction of land relations offered one of the most vigorous challenges.
The landowners were exerting political pressure and cultivating a popular
opinion to support their stand, but the government was expecting against
all odds that it would be able to keep its promises of land reorganization
without a hint of legal resistance. The then Prime Minister himself declared
that even though a right to private property was incorporated, on a proper
construction of the constitutional clauses, the state’s land reform agenda
was well protected.94 This expected construction, however, did not appear
proper to the judiciary.
Therefore, the government took into its own hands the power to act
righteously and enacted the Constitution (First Amendment) Act, 1951.95
The Act, among other things, inserted Articles 31A and B and the Ninth
Schedule, which were to create a space for the land reform statutes in the
Constitution. These two provisions were to co-exist along with the right to
private property under Article 19(1)(f) and the right to be protected from
state intervention under Article 31. Article 31A saved laws that provided
for acquisition of estates96 from possible accusations of infringements of
any fundamental rights, and Article 31B validated all statutes that were
placed in the Ninth Schedule and declared that their provisions would
never be deemed void on the grounds of infringement of any fundamental
right. The term estate was to have a construction similar to land tenure
based on the local area to which the law belonged. The language of the
amendment seemed desperate; inclusion of two different articles declar-
ing almost the same thing and use of recurring phrases like ever to have
become void97 or shall be deemed always to have been inserted98 made
it seem like the government wanted the law on the issue to be settled
without any further opposition. The amendment retrospectively saved the
Bihar Land Reforms Act and made way for the subsequent reform legisla-
tions. When the impugned Act was retrospectively validated by the First
Amendment, the case of Kameshwar Prasad reached the Supreme Court
where the respondent zamindars challenged the validity of the amendment
itself. Three of the five judges (Mahajan, Mukerjee, and Aiyer JJ.) upheld
the amendment but declared two provisions of the Act invalid despite the
amendment. It was recognized that Article 31(4) precluded any challenge
to the provision based on adequacy or extent of compensation but upheld
the contention of the zamindars. The majority held that impugned provi-
sions were only a colourable exercise of power to reduce gross assets since
it had no relation to the actual expenses of the zamindars; the law did not
come under Entry 42 of List III99 because no principles of compensation
were laid down in pith and substance.
Thirdly, I argue that if taken in their substantive sense after the First
Amendment and read along with Article 39(b) and (c), the various ele-
ments of property provisions could be harmonized. Articles 19(1)(f) and 31
declared a general law that protected all property holders from unscrupu-
lous state interventions in their usage of property, and Articles 31A and 31B
identified land as a distinct form of property and land reform as a principal
social reform measure that required proper legal attention. The exclusive
treatment granted to land reform laws was validated by the directives of
Article 39(b) and (c); the state was directed to make efforts towards rup-
turing the concentration of wealth, and its redistribution and land reform
statutes were an essential striving towards those objectives.
The First Amendment attempted to understand certain realities that the
original constitutional document missed – a plain application of the right
to private property in land, as was understood in the West, to the peculiarly
disorganized Indian society could only maintain the status quo: concentra-
tion of land in the ownership of 11.85 per cent of the total population.100 It
admitted the need for a distinct recognition of land within the constitutional
space and asserted that land-related statutes needed to be categorically
understood as having reformative qualities.101 A proper legal regulation of
land could build a culture of equality in society, to meet both agrarian and
industrial ends. Since the fundamental rights of individuals seemed to be
causing difficulties for the greater good of the community, the text of the
amendment protected land reform statutes from their invasion. It was the
state that was acting as the mediator of a social revolution involving radi-
cal land restructuring which necessarily required the stringent exercise of
power, and therefore, the state activities included arbitrariness and excessive
intrusion in individual liberties in their function. Such arbitrariness was,
however, not well received, either by the landowning classes or the judiciary.
Land reform going astray with the subsequent

interpretations
Although the First Amendment meant well, it established the precedent of
amending the Constitution in order to override judgments of the Supreme
Court which impeded the government’s perceived responsibilities.102 It laid
down the foundations of a mutual disrespect between the legislature and
the judiciary that would subsequently clobber the entire programme of land
reform. Land-related concerns had only just begun troubling the legal com-
munity and the Constitution had to be amended even before it had time
to organically evolve. This made the constitutional document appear meek
and the legislative powers immense, which the judiciary was reluctant to
accept as it was considered the protector of the Constitution. Moreover,
this precedent of loathed judicial decisions and consequent constitutional
amendments was followed often enough to disorient the fundamental con-
cerns that had raised the debate at the first instance. The landowners con-
tinued to attack reform statutes in the courts, along with all other forms of
state intrusions in the business sector, and since no distinction was acknowl-
edged between these two, the property rights discourse was further confused
with recurring questions of compensation. No one challenged the purpose
of the reform legislation for that was a noble cause, but any judicial or
policy discussion about the noble cause was practically destroyed because
payment of adequate compensation to the ex-landowners was beyond the
financial capacities of the state.103 Accordingly, the agenda of land reform,
despite being an express part of the Constitution, was lost in the technicali-
ties of amendment procedures.
The case of State of West Bengal v. Bela Banerjee was another Supreme
Court judgment that followed the First Amendment and led to the Fourth
Amendment.104 This decision was accompanied by two other cases, State of
West Bengal v. Subodh Gopal Bose105 and Dwarkadas Shrinivas v. Sholapur
Spinning & Weaving Co. Ltd.106 All three cases are generally cited as a rea-
son for the Fourth Amendment but only one case among the three related to
a land redistribution law. The Sholapur Mills Case challenged an ordinance
promulgated to take over the management of the Sholapur Spinning. &
Weaving. Co. Ltd. and Subodh Gopal’s Case impugned a tenancy reform
legislation that regulated the relation of landlord and tenant, involving
no acquisition or requisition of property. It was Bela Banerjee’s Case that
concerned a specific form of land redistribution statute – the West Ben-
gal (Development and Planning) Act, 1948 – which sought to acquire land
from landowners for the rehabilitation of East Pakistani refugees. Although
belonging to larger class of land legislations, the nature and purpose of the
three impugned legislations was different and, yet, the principles relating to
property were equally applied in all three litigations.
The Bela Banerjee judgment was crisp and clear: “while it is true that the
legislature is given the discretionary power of laying down the principles
which should govern the determination of the amount to be given to the
owner for the property appropriated, such principles must ensure that what
is determined as payable must be compensation, that is, a just equivalent
of what the owner has been deprived of.”107 The purpose for which land
was needed to be acquired was neither relevant for such determination nor
could it affect the constitutionality of the legislation and therefore was not
considered in the judgment. At a period in time when partition had caused
thousands of people to take refuge near the borders of India, the judici-
ary decided against a legislation which attempted to provide a few plots of
lands for the rehabilitation of those refugees on the basis of the fairness of
compensation that was to be paid to the ex-landowners, especially when
the new Indian state was in no monetary position to pay such high amounts
in recompense. The proviso to section 8 of the impugned legislation was
declared to be arbitrary and against the letter and spirit of Article 31(2) as
“fixation of an anterior date which has no relation to the value of land when
it is acquired, many years later, cannot but be arbitrary.”108 M. Patanjali
Shastri, the then CJ, who wrote the majority opinion, stated that many years
later, the landowners would be deprived of the increment in the value of
their land and therefore, the immediate need for land was irrelevant. True,
the legislation provided for acquisitions for all sorts of public purposes,109
but that fact could not undermine the immediate need of rehabilitation that
stood before the state.110
It cannot be denied that the judges in the Bela decision had a genuine
concern for the small holders who may also lose their lands against a com-
pensation that was set at an archaic date by the functioning of the Act. But
the legislature, thereafter, reacted with the Constitution (Fourth Amend-
ment) Act, 1955, which intended to prevent the judiciary from making any
more decisions regarding the amount of compensation. These events had
ignited radical anti-judicial sentiments in the members of legislature and the
executive. It is with the Fourth Amendment that the real quarrel between
the two began: the legislature believed that the only way in which it could
carry out its function was to keep the judiciary out of its way.111 Therefore,
in order to prevent the judiciary from making any more troubled judgments,
it amended Article 31(2) to the effect that no law could be called into ques-
tion in any court on the ground that the compensation amount was inad-
equate.112 It also amended Article 31A to protect the laws acquiring estates
and certain others113 from attacks based on fundamental rights.
In the attempt to establish its superiority, the legislature started to use
the Ninth Schedule as its own area of constitutional immunity. The sched-
ule that was created to protect land reform legislations was used by the
Fourth Amendment to preserve all sorts of legislative efforts. Section 5 of
the Fourth Amendment Act added legislations like Insurance (Amendment)
Act 1950, Railway Companies (Emergency Provisions) Act 1951, Industries
Development and Regulation Act 1951, and others into the Ninth Schedule.
The legislature, in its self-righteousness, advocated its socialist objectives
in all sectors of the economy and made rigorous efforts to create a state
monopoly.114 However, as would be observed in Part II, the same righteous
zeal and devotion was completely absent when the stage came to actually
writing the reform statutes.
The Fourth Amendment, therefore, was also the point at which the debate
over provisions and implementation of land relations restructuring and land
redistribution was lost in the technicalities of constitutional interpretation
and amendment. In deliberating over the framework of a strong reform
law, the recurring concerns over the appropriate composition of property
provisions in the Constitution made the statutory framework appear less
significant and unworthy of any attention. The following constitutional
amendments and judicial declarations play with these questions for a long
time, completely unmindful of the substantive content of the legislations
involved, and this is what the fourth point contends.
A similar pattern of events was repeated during the Constitution (Seven-
teenth Amendment) Act, 1964 when the land reform agenda had struggled
to reach its next level – imposition of ceilings on landholdings. The Seven-
teenth Amendment was also the result of another decision of the Supreme
Court. Only this time, since judicial scrutiny under Article 31 was prevented
(as per the Fourth Amendment), the Supreme Court had found a defini-
tional problem with the provision. The acquisition of land under Kerala
Land Reforms Act, 1961, was declared invalid in the case of Karimbil Kun-
hikonam v. the State of Kerala115 because the lands under concern of the
impugned legislation were not estates and hence not protected under Article
31A. In addition, the court again applied Article 14 in the same manner
as it was applied in the case of Kameshwar Prasad and declared the Act
unconstitutional. It disagreed with the slab system that the impugned Act
utilized for deciding the amounts of compensation and found its provisions
weak on grounds of equality. The Seventeenth Amendment sought to clarify
the definition of estate by amending Article 31A and also added a proviso
that stated that any legal acquisition of land beyond the ceiling limit appli-
cable to the person would have to pay compensation in accordance with
the prevalent market rate. There was thus, a clear distinction made between
acquisition within and beyond ceiling limit.
Moving on from the Seventeenth Amendment, it seems that the concerns
related to compensation were exhausted and so the nature of litigations
filed in the courts against reform statutes altered to pure issues of the valid-
ity of constitutional amendments. Sajjan Singh v. the State of Rajasthan116
interpreted Article 13(2) of the Constitution to make a distinction between
ordinary law and a constitutional amendment and upheld the Seventeenth
Amendment. The judgment clubbed six writ petitions all of which chal-
lenged the Seventeenth Amendment as they were affected by one law or the
other that the amendment added to the Ninth Schedule. In fact, this time, all
the legislations added by the impugned amendment were related to agrar-
ian reform.117 Three years later, the court via an 11-judge bench altered its
position on the matter in I.C. Golakhnath & Ors. v. The State of Punjab &
Ors118 which challenged the validity of two other reform statutes and their
inclusion in the Ninth Schedule: Punjab Security of Land Tenures Act, 1953
and Mysore Land Reforms Act, 1962. The basis of contention was that the
Parliament had no right to amend the Fundamental Rights in Part III of the
Constitution.
The court, feeling itself to be the sole protector of the fundamental rights
of individuals, reversed its previous position via a slim majority of 5:6, and
stated that the Parliament could not tamper with Part III of the Constitu-
tion. A constitutional amendment was held to be law under Article 13(2)
and, therefore, subject to judicial review. This gave a new way for the liti-
gants to challenge the validity of reform and other statutes and they utilized
it with great rigour. The court felt that finality on the question of consti-
tutional amendment was yet to be achieved and, therefore, a 13-member
bench in the case of His Holiness Kesavananda Bharti Sripadagalvaru &
Ors. v. the State of Kerala & Ors119 was formed that heard a cumulative of
six writ petitions challenging the validity of the Twenty-fourth,120 Twenty-
fifth,121 and Twenty-ninth122 Amendments. Among these three amendments,
two were related to land reform law: the Twenty-fifth Amendment related to
Article 31(2) where the word “compensation” was substituted for the word
“amount” and Article 31C was added, and the Twenty-ninth Amendment
included a couple of amendments to the Kerala Land Reform Act, 1963 in
the Ninth Schedule. The single question before the court was the extent of
Parliamentary powers to amend the Constitution. The content of reform or
any other legislation was not a source of concern. It was their inclusion in
the Ninth Schedule through repeated constitutional amendments that both-
ered the court.
Other than the problem with the amount of compensation in land reform
statutes, their substantive content was never a point of any disagreement
between the legislature and judiciary. With this one exception, there existed
a sharp gap between the provisions that were being implemented on the
ground and the ones which were being challenged in the courts. Conse-
quently, the confusion over interpretation of property rights cannot be
attributed to the failure of reform statutes and so, the removing of the right
to property from the list of fundamental rights did nothing,123 except make
the claim of compensation weaker for all persons alike, whether affected by
reform or acquisition statutes and by then, reform statutes were practically
dead. The very first attempt made by the legislature in the form of the Ninth
Schedule to immunize reform statutes from judicial challenges shifted the
debate from the substantive content of the statutes to the validity of consti-
tutional amendments and later to the construction of basic structure which
was disputed until as late as 2007.124 The legal presumption with which the
Indian polity started its functions that demarcated fundamental rights and
directive principles and made them stand in opposition to one another was
broken only when the state had lost its political will to conduct any more
land reforms. Therefore, the agenda of land reform within the property
rights discourse went astray and could not be retrieved again.
Reading together the constitutional right to property and

the directive principle of redistribution of land
The fifth and concluding point of the argument is to ascertain a new charac-
ter to the constitutional model of property. As it was earlier understood, the
right to property revealed a single meaning – one of liberal property which
was negative in character as it was solely concerned with protecting an area
of individual control and autonomy from the state. When read along with
Article 14, which was to provide protection from arbitrary interference
from the state, this provision sought to serve limited purposes. This is true
for both Article 31 as it existed before and the present 300A, which were
only directed towards providing security to property owners against state
intrusion. But the other provisions, Articles 31A, B, and C and the erstwhile
Article 19(1)(f) read with Article 39(b) and (c), were doing much more than
just limiting the state’s powers of regulation. They were attempting to create
a segment of legal functions that work towards affirmative action in dis-
tributing the material resource125 of land while basing their premise on the
idea of substantive equality.126 If ownership and control of landed property
connoted the ideas of liberty and freedom of individuals, then it would be
unfair if the legal system was constructed to provide these rights only to
that section of the community who could afford to buy land. In order to
actualize the ideals of social and economic justice, it was essential that the
legal system recognized not only what it was expressing but also what was
silencing in the process, for the apparent fact that it was avoiding explicit
recognition of certain features of social life which were familiar from expe-
rience.127 As the constitutional right to property recognized freedom and
liberty of property owners, it was simultaneously silencing these rights for
the non-owners.
The concept of property as was affirmed while the right existed as a fun-
damental feature of the constitution, banished a dominant feature of life in a
society of material inequalities – that of private power. The legal doctrine of
property assumed its foundations on the principles of neutrality and formal
equality where people appeared as equal subjects before the law. However,
what was blinded behind these legal principles were the social realities of
gross inequality in power and capacities. The concept of property made
it possible for law to accommodate and guarantee these inequalities while
always maintaining an ideology of equality.128 It allowed the law to draw a
separation between a person and property, where equality was afforded no
matter how much property could be (socially and economically) attributed
by that person. Therefore, even if we were to remain within the property
paradigm, the legal interpretation needed to move beyond the idea of formal
equality towards one that recognized these substantive elements as a part of
the legal doctrine itself. It is yet to be ascertained whether property theory is
accommodative of the principles of substantive equality.
The substantive conception of equality challenges some of the founda-
tional assumptions of the principle of equality. First and foremost, it accom-
modates the existence of inequality and disadvantage within its framework.
Rather than constructing a rule of law that distantly hovers over social reali-
ties, this concept requires the law to engage with those inequalities in a man-
ner that reveals the nature of exclusions faced by the disadvantaged. Second,
most of the formalized conceptions assume their basis in the twin concepts
of abstract individualism and legal neutrality – masking complex reality of
inequality where people have unequal access to resources and may not have
sufficient power to control or value their own lives.129 Substantive equality
provides the conceptual space required to question these basic assumptions
of law. It reveals the dangers inherent in a law assuming a neutral role in
social transformation. Third (and a consequence of the former), it prob-
lematizes any concept of equality which assumes that same treatment is
appropriate for everybody. Fourth, instead of believing that the object of
equality is to make the differences disappear, it questions the manner in
which relations of equality may be structured among people with many
different and concrete inequalities. So if the right to property is to be read
substantively, it must first recognize the rights of those who had no property
to begin with, rather than keeping protection to property owners as its point
of departure. Property rights could not be mere private rights, they needed
to be ascertained publicly.130 A landowner attributed her property right not
only to the state but also to those who had a share in that land through
means other than formal property rights.
In the context of land reform, this would mean that the law could not
restrict its ideals of property to the liberal notions, instead it needed to rec-
ognize the inherent redistributive element in the constitutional provisions.
The alleged contradiction between the fundamental rights and directive
principles, at least with respect to the right to property in land, as has also
been seen in the third point, could have been resolved if it was understood
that the right inherently included a redistributive aspect in its construction.
A fine balance between the erstwhile Article 19(1)(f) read with Article 31A,
B, and C and Article 39(b) and (c) could have been struck to interpret the
right to property in land and give it its complete meaning. Along (and as a
prerequisite) with the right of claiming protection against outside interfer-
ence, the right to property could include the right receive land in redistribu-
tion. The Supreme Court, in its later judgments,131 agreed that the two parts
of the Constitution were an indivisible whole: the fundamental rights were
to become the means to achieve the ends enunciated in the directive prin-
ciples;132 for the right to property in land, both security of ownership and
redistribution were the means, and equality of access and ownership within
the land structure was the end.
Notes
1 Property is a complex concept that has had multiple and variant interpretations.
Property has manifested itself in very many ways and it is difficult to define
it in any concrete manner. Margaret Davies proposes to introduce the concept
in the following manner, which I think captures the essence of the point being
made here: “Rather, I will present property as a multi-faceted, sometimes self-
contradictory and internally irreconcilable notion which is variously manifested
in plural (though inseparable) cultural discourtesies economic, ethical, legal,
popular, religious, and so forth.” Margaret Davies, Property: Meanings, His-
tories, Theories (London: Routledge-Cavendish, 2007), 3. Hereinafter, Davies,
Property. Also, the following statement about the idea of property in land is rel-
evant here: “Few concepts are quite so fragile, so elusive and so often misused as
the idea of property. Most everyday references to property are unreflective, naive
and relatively meaningless.” Kevin Grey and Susan Francis Grey, “The Idea of
Property in Land,” in Land Law: Themes and Perspectives, ed. Susan Bright and
John K Dewar (Oxford: Oxford University Press, 1998), 15–51, accessed Janu-
ary 29, 2019, https://trinhosts.trin.cam.ac.uk/fellows/kevingray/870.pdf.
2 Davies, Property at p 3.
3 The uses of land are innumerable and different communities have different manners
in which they utilize the resource. My statement here is merely to re-emphasize for
the purpose of the narrative the foundational significance of land and not to reduce
its identity to it. The countless manners in which lives are associate with land are
difficult to iterate at once – the list ranges from functional to religious via aestheti-
cal significance. In fact, land constitutes a substantial portion of our perceptions
of space – other than the economic identity that is popularly attached to land, it
also constitutes a sense of space that is usually defined by collective or individual
experiences and values. For example, ceremonial grounds of indigenous people,
battlefields, burial grounds, etc. For a detailed discussion on land and space percep-
tions, see Rutherford H. Platt, Land Use and Society, Revised Edition: Geography,
Law, and Public Policy, Revised Edition (Washington, Covelo, London: Island
Press, 2004), accessed January 20, 2019, https://books.google.co.in/books?hl=en
&lr=&id=QhG8BwAAQBAJ&oi=fnd&pg=PT5&dq=land+use+and+society&ots
=2LP9F33def&sig=Z3jT0orGjfngdXKhzbbxAYGpF5Y#v=onepage&q=land%20
use%20and%20society&f=false.
4 As a concept, property has never merely been about holding a right or power
over an object, but, it is fundamentally about our ability to exclude others from
a resource. See Morris R. Cohen, “Property and Sovereignty,” Cornell LQ 13
(1927): 8.
5 The modern idea of the objects of property is relatively clearer than its tra-
ditional counterpart, where the distinction between person and property was
ambiguous (especially in the times where slavery was deemed legal). It is how-
ever, complicated by notions of stewardship which challenge the subject-object
and person-property distinctions or others that claim property to be construc-
tion of relationships between people. The liberal notions of property also sug-
gest that a person is subject and object of her own property and she exists as a
self-relation which is divided and yet a whole. See Margaret Davies and Ngaire
Naffine, Are Persons Property? Legal Debates about Property and Personality
(Aldershot: Ashgate Publishing Limited, 2001).
6 The conception of land as property is a statement that can only be made in
dilemma; one that can only hope to conceive land as property and attempt to
regulate it by restricted legal means. We would see in the following chapters that
when land is conceived as property and made into a commodity that can be
bought and sold, it generates a range of entangled legal threads that are irrecon-
cilable. Even when the environmental issues related to land have to be consid-
ered, the conceptions of land as property need to be reconsidered. See Donald W.
Large, “This Land Is Whose Land-Changing Concepts of Land as Property,” Wis-
consin Law Review (1973): 1039, accessed July 7, 2019, http://heinonline.org/
hol-cgi-bin/get_pdf.cgi?handle=hein.journals/wlr1973&section=60. Hereinafter,
Large, “This Land Is Whose Land-Changing Concepts of Land as Property.”
7 The Hegelian approach to property establishes a connection between respect
for property and a respect for persons, that everyone must have property. The
approach recognizes the distributive implication of the concept of property –
that we cannot argue on one hand that property owning is necessary for ethical
development (which is usually argued by most libertarian writings on the sub-
ject) and, on the other hand, reserve this development for only a few privileged
ones and affect unconcern about the moral and material plight of those who do
not have the social or economic capital to own property. No right-based argu-
ment can be found that can provide justification for a society in which some
people have lots of property and others have none. See the introductory note
in Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press,
1990). Hereinafter, Jeremy Waldron, The Right to Private Property.
8 Ronald Dworkin, “What Is Equality? Part 2: Equality of Resources,” in The
Notion of Equality, ed. Mane Hajdin (London: Routledge, 2018), 143–205 at
143. Hereinafter, Dworkin, “What is Equality?”
9 I gathered this idea of people associating to their land through a sense of belong-
ingness, rather than one of ownership, from a folk song that I head while travelling
in Sundergarh, Orissa, as a part of a separate project on Indigenous Land Rights.
The song (originally in Oriya) was sung by a group of women of the Orissa Nari
Samaj, who, while celebrating Earth Day 2018 in their organization were reaf-
firming the historical relationship that their communities have been cultivating
with their ecosystem of which land is only but one part. The song captured the
essence of this relationship – where, it was characterized by mutual respect, life,
responsibility, and belongingness to each other. For a detailed account of the poli-
tics of belonging in African and American literature, see Duncan Brown, To Speak
of This Land: Identity and Belonging in South Africa and Beyond (South Africa:
University of KwaZulu-Natal Press, 2006); Carola Lentz, “Land and the Politics
of Belonging in Africa,” in African Alternatives, ed. Patrick Chabal, Ulf Engel,
and Leo de Haan (Boston: Brill, 2007), 37–58. Richard H. Schein, “Belonging
Through Land/Scape,” Environment and Planning A 41, no. 4 (2009): 811–826;
Laurie Anne Whitt et al., “Belonging to Land: Indigenous Knowledge Systems and
the Natural World,” Oklahoma City University Law Review 26 (2001): 701.
10 This is of course not to say that the rights regime is not subjected to state control,
rather, quite the opposite.
11 Large, “This Land Is Whose Land – Changing Concepts of Land as Property.”
12 A number of libertarian philosophers have argued that property is necessary for
freedom and development of individuals. See generally Richard Pipes, Property
and Freedom (New York: Vintage Books, 2007); Waldron, The Right to Private
Property, 1990 at 390. Hereinafter, Waldron, The Right to Private Property.
13 Waldron, The Right to Private Property.
14 See generally Richard A. Epstein, “The Necessary History of Property And Lib-
erty,” Chapman Law Review 6 (2003): 1, accessed July 14, 2019, http://heinon
line.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/chlr6&section=5.
15 Waldron, The Right to Private Property.
16 I’m referring here to a point Jeremy Waldron makes about the concept of prop-
erty being constrained by a general background of the right to subsistence – a
point that conceives of restricting the right to property so that its distributive
component is foregrounded. Waldron, The Right to Private Property at p. 5.
17 The right of political representation and the ownership of real property (gener-
ally used for land) have had a historical connection. Ownership of land has
been regarded as a prerequisite to both the right to vote and the right to contest
elections. For comments on the political connotation of the right to property,
see Armen A. Alchian and Harold Demsetz, “The Property Right Paradigm,”
The Journal of Economic History 33, no. 1 (1973): 16–27, accessed January 29,
2019, www.jstor.org/stable/2117138.
18 The regime of private property is constructed to argue that individuals have an
interest in owning things, an interest which is important enough to command
respect and to constrain political action. The notion of private property is often
placed against the ideals of communism or socialism as it demands that private
individuals, rather than the state, have a superior claim over land and other
forms of property. Defenders of private ownership of property base their argu-
ments on the utilitarian ideology, stating that the general welfare of the commu-
nity would be better served if the material resources and, in particular, the main
material means of production are controlled by private individuals and firms
rather than the state or the community as a whole. Interestingly, however, it is
also contended that no such rights-based argument can be found which would
be able to find adequate justification in a society where some people have lots of
property and the majority has close to none. See generally Waldron, The Right
to Private Property.
19 Private ownership of land is very well debated in the sphere of law and eco-
nomics. One of the most popular cases for a right of ownership in land in the
recent past has been made by Robert C. Ellickson, based on the views of Frank
I. Michleman. See generally Robert C. Ellickson, “Property in Land,” Yale Law
Journal (1993): 1315–1400.
20 The concept of eminent domain designates the state with power to possess a
superior claim over all private property within its bounds. For a detailed con-
ceptual analysis, see Arthur Lenhoff, “Development of the Concept of Eminent
Domain,” Columbia Law Review 42, no. 4 (1942): 596–638.
21 The discourse on private property rights has produced two mandates in case
of its infringement by the state: the deprivation of private property can only be
done by a law to that effect, and an amount of compensation to be paid to the
ex-owner of property. This means that the state does have the power to claim
its eminence of domain over private property, but not without a legislation and
compensation for such deprivation. Since property rights are generally under-
stood as a negative right against deprivation, in most Constitutions these two
elements exist as a security against infringement of such rights: the First Amend-
ment to the American Constitution and Article 31 of the Constitution of India
are the two relevant examples in the present context.
22 Redistribution of wealth and assets has been one of the central concerns of a
welfare state and in the Indian context, Article 39 of the Constitution directs
the state to undertake measures in redistributive direction. This point will be
discussed in detail later.
23 Defenders of private property have traditionally based their claims of rights of
ownership on individual liberty. A society averse to the institution of property
has been considered as being deprived of the first element of freedom (Lord
Acton, The History of Freedom). From the standpoint of freedom and liberty
of individuals, the right to own and utilize private property is considered both
a first embodiment and in itself a substantive end (Hegel, Philosophy of Right).
See generally Cheyney C. Ryan, “Yours, Mine, and Ours: Property Rights and
Individual Liberty,” Ethics 87, no. 2 (1977): 126–141.
24 “Under serious scrutiny, there is no rights-based argument to be found which finds
an adequate justification for a society in which certain people have lots of property
and many have close to none. The slogan that property is a human right can be
deployed only disingenuously to legitimise the massive inequality that we find in
modern capitalist countries.” Waldron, The Right to Private Property at p. 5.
25 Grey, “The Idea of Property in Land” at p. 17.
26 Richard W. Miller, “Economic Inequality and Political Oppression,” Theoria:
A Journal of Social and Political Theory, no. 85 (1995): 1–15, accessed July 14,
2019, www.jstor.org/stable/41802015.
27 See generally Harold J Laski, “The Purpose of Social Organization,” in A Gram-
mar of Politics, 5th ed., ed. Harold J. Laski (New Haven: Yale University Press,
1985), 15–44.
28 Ibid. at p. 174; “He would discover, in short, that a regime of private prop-
erty makes the State very largely an institution dominated by the owners of
private property, and that it protects the will and purpose of those owners. In the
absence of other considerations, a political system in which rights are built upon
property is one in which the property-less man will have no rights.”
29 Preamble to the Constitution of India, 1950.
30 The distribution on owned land during the early and mid-1950s was extremely
concentrated with a small minority owning most of the land. Three nationwide
surveys – First Agricultural Labour Enquiry, National Sample Survey, and the
Census of Landholdings – reveal a high degree of differentiation amongst house-
holds in respect of their holdings. While at the bottom, about three-fourths of
all rural households owned less than five acres of land and hold less than one-
sixth of the total area owned; on the top of the hierarchy, one-fourth of all rural
households held 83.68 per cent of the total area above five acres. Ministry of
Labour Government of India, Agricultural Labour Enquiry-Report on Intensive
Survey of Labour (Delhi: Ministry of Labour, 1955); First Report on Land Hold-
ings, Rural Sector: Eighth Round July 1954 – March 1955 (National Sample
Survey Organization, December 24, 1955), http://mospi.nic.in/sites/default/files/
publication_reports/nss_rep_10_0.pdf. at p. v; Planning Commission, The Third
Five Year Plan (Delhi: Planning Commission, 1961), Annexure to Chapter XIV,
pp. 239–240, accessed July 14, 2019.
31 There is no easy way to summarize caste and land relations in the country. The
traditional Indian agrarian society was divided by caste and since land was a part
of the social life, its ownership was also distributed based upon the caste system.
Generally speaking, land relations in India are often defined by caste. Within
an agrarian society, the caste system traditionally allotted specific duties to spe-
cific castes, each important at some stage of production, and landownership
was reserved for a few upper caste members. The upper layers of society were
allowed to take part in the cultivation, and the lower were allotted the residuary
duties. The system is extremely complex and beyond the scope of this work. See
Gail Omvedt, “Caste, Agrarian Relations and Agrarian Conflicts,” Sociological
Bulletin 29, no. 2 (1980): 142–170.
32 The discourse on property law uses the term as connoting both a right and the
entity in which the right is claimed.
33 The term tiller of soil was the most popular connotation of an Indian peasant
during the independence movement. It was also a part of the slogan that is said
to lead the Indian Land Reform Movement: “Land to the Tiller.” It represented
the idea that the land reform movement was directed to provide ownership
of land to the person who actually ploughs it. It is not clear, however, which
classes of peasants were actually included in this term: the early declaration of
the Congress Party (Karachi Resolution, 1934) indicated the tenants, but as the
movement progressed, some sections of the political leadership also wanted the
agricultural labourer to be a part of the reform programme. See R. V. Patil, “ ‘All
Land to the Tiller’: The Problem of Land Reform in India,” Economic Develop-
ment and Cultural Change (1955): 374–380.
34 Although there was much talk about abolition of zamindari and redistribution
of land, the Congress did not make any official declaration to that effect before
Independence. The famous Karachi Resolution of 1934, said to be the basis
of land reform policy, was only limited to the rent regulation of the tenants.
The Congress Socialist Party was the first to declare its intentions of pushing
for a complete agrarian reform that involved abolition and redistribution. See
Granville Austin, Working a Democratic Constitution: A History of the Indian
Experience (New York: Oxford University Press, 2003) 70–71.
35 Section 2(a)(ii) of the Constitution (Forty-fourth Amendment) Act, 1978 omit-
ted Article 19(1)(f) of the Constitution.
36 See generally Louis J. Walinsky, Wolf Ladejinsky, and others, “Agrarian Reform
as Unfinished Business; the Selected Papers of Wolf Ladejinsky,” International
Bank for Reconstruction and Development (1977). The document can be found at
http://documents.worldbank.org/curated/en/761501468765882964/pdf/multi0
page.pdf, accessed July 14, 2019.
37 As long as the right to own and possess property remained a part of the fun-
damental right to freedom (until 1978), all provisions related to property were
amended several times and, therefore, their composition differs at different
points in time.
38 The State of Bihar v. Maharajadhiraja Sir Kameshwar & Others, 1952 1 SCR
889.
39 His Holiness Kesavananda Bharti Sripadagalvaru v. the State of Kerala, AIR
1973 SC 1461, [1973] SuppSCR 1, (1973) 4 SCC 225.
40 The range of litigations that were fought claiming the right to property related
to all sorts of deprivations, for example, state takeover of a private enterprise
(Dwarkadas Shrinivas v. Sholapur Spg & Wvg Co. Ltd, 1954 AIR 119, 1954
SCR 674), acquisition of coal bearing areas (Burrakur Coal Co. Ltd. V. Union
of India, 1961 AIR 954, 1962 SCR (1) 44), acquisition of mine owners’ rights
(Gujarat Pottery Works v. B P Sood, 1967 AIR 964, 1967 SCR (1) 695).
41 The notion of property rights as being a bundle of various related rights in the
property is popular among the Anglo-American legal philosophy. See James E.
Penner, “Bundle of Rights Picture of Property,” UCLA Law Review 43 (1995):
711.
42 The ancient Indian land tenure system was guided by simultaneously occurring
multiple interests in land which defied all norms of individual ownership to the
exclusion of all others. Land relations were multifarious, complex and linked to
the social realities of caste. Land was the principal form of property in the Indian
peasant society which predominantly relied on the agricultural for sustenance.
For a detailed historic account on the subject, see E. Washburn Hopkins, “Land-
Tenure in Ancient India,” Political Science Quarterly 13, no. 4 (1898): 669–686.
Hereinafter, Hopkins, “Land-Tenure in Ancient India”; Edward Stanley Rob-
ertson, “Land Revenue and Tenures of India,” Hermathena 6, no. 14 (1888):
368–383.
43 Hopkins, “Land-Tenure in Ancient India.”
44 The first set of land reform statutes were meant to abolish the intermediaries
within the revenue system and bring the cultivator of land into a direct relation
with the state. They were popularly called the Zamindari Abolition Laws and
they repealed the Permanent Settlement Regulations in various regions in order
to demolish the British system of Land Revenue where the intermediaries owned
all the land and the cultivators were their tenants.
45 The NSS data for the year 1950–51.
46 A reading of the Report of the Joint Committee on Indian Constitutional

Reforms, 1934, that formed the basis of Government of India Act, 1935, where
the right first found recognition under Article 299(1) of the Act indicates that
the right was incorporated to protect the interests of intermediaries and other
grantees of the British government. Paragraphs 369, 370, and 371 of the 1934
Joint Committee Report; refer n. 78.
47 Although, in Minerva Mills Ltd and Ors. v. Union of India and Ors., AIR 1980
SC 1789 the court did not focus on the place of Right to Property in the Con-
stitution, it did arrive at a legal position which allowed a harmonious inter-
pretation of the Fundamental Rights and Directive Principles of State Policy in
order to further social goals. The majority altered its earlier position and stated
that both were part of the basic structure of the Constitution and neither was
superior over the other. Part IV contained the ends that were to be met by the
state and Part III was the means to achieve those ends. The court no longer saw
fundamental rights as a restraint or counter balance on social revolution, as was
Justice Sikri’s position in Kesavananda.
48 The argument that the land reform agenda started losing its vigour from the
1970s has been addressed in detail in the third, fourth, and fifth chapters.
9 AIR 1980 SC 1789.
4
50 Oliver Mendelsohn, “The Pathology of the Indian Legal System,” Modern Asian
Studies 15, no. 4 (1981): 823–863.
51 Paragraph 369, Report of the Joint Committee on Indian Constitutional Reform
1933–34, 31st October 1934, London, accessed January 29, 2019, https://
archive.org/stream/indianconstituti029644mbp/indianconstituti029644mbp_
djvu.txt.
52 Large, “This Land Is Whose Land – Changing Concepts of Land as Property.”
53 Mendelsohn, “The Pathology of the Indian Legal System” at p. 847. “The will-
ingness to take the judicial option was in part a function of the absence of an
institutional alternative: there appears never to have been regular adjudicative
control of land disputes in India. The basic solvent of such conflict had always
been more-or-less naked power. The village was a world of super- and sub-
ordination, and in a dispute between an economically (hence politically) domi-
nant individual or group and a subordinate, the will of the former was likely to
prevail.”
54 Ibid.
55 Litigation challenging rights and claims in land has generally been at the peak
of judicial concerns. A plethora of colonial and postcolonial legislations that are
not sufficiently backed by a thoroughly constructed land records system allows
litigants to create a state of confusion with regard to the claims to a single plot of
land. A historical account of this phenomenon can be found in Bernard S. Cohn,
“Anthropological Notes on Disputes and Law in India,” American Anthropolo-
gist 67, no. 6 (1965): 82–122.
56 Mendelsohn, “The Pathology of the Indian Legal System” at p. 840.
57 Ibid.
58 See generally Hopkins, “Land-Tenure in Ancient India.”
59 Mendelsohn, “The Pathology of the Indian Legal System” at p. 843.
60 The subsequent legislations were often aimed at controlling rent, the relation-
ship between landlord and tenants (Bengal Tenancy Act, 1886), regulating the
ryotwari system, systemizing the formal forms of transfer of land like mort-
gage, lease, etc. (Transfer of Property Act, 1882), establishing revenue boards
that would be instruments of state at the local level that supervised revenue
collection.
61 This number is arrived at as per the research conducted under this project. Refer
to Annexure A2 for the list of land legislations.
62 Although the general failure of land law to settle competing claims is difficult to
identify in any one writing on the subject, the general opinion on the subject is
indicative of the incapability of land law to address the perpetually fluctuating
claims. For a general understanding, see Ramkrishna Mukherjee, “Realities of
Agrarian Relations in India,” Economic and Political Weekly (1981): 109–116.
63 Land, or real property, has always been one of the central concerns of property
theory. However, the status of land as a fit subject of property rights of individu-
als has never really been seriously challenged in a legal context. See generally
Large, “This Land Is Whose Land-Changing Concepts of Land as Property.”
64 Professor Lipton, an emeritus professor at the University of Sussex and a world
renowned economist, makes a strong case of utilizing land reform as a tool to
reduce poverty in his book Land Reform in Developing Countries: Property
Rights and Property Wrongs. See Michael Lipton, Land Reform in Developing
Countries: Property Rights and Property Wrongs (London: Routledge, 2009).
65 The argument that the failure of the land reform programme was a structural
impediment of the law has been made in detail in the fourth and fifth chapters,
where the laws of reformation of tenure and redistribution have been closely
analyzed.
6 This point will be discussed in detail in the second part of this work.
6
67 Land reform including abolition of the intermediary class was one of the largest
agendas of the Congress party that helped it gain true political legitimacy. Hung-
Chao Tai, “Initiation of Reform and Political Legitimacy. The Political Process
of Land Reform,” in Land Reform and Politics: A Comparative Analysis, ed.
Hung-Chao Tai (Berkeley, CA: University of California Press, 1974), 51–88.
Hereinafter Tai, “Initiation of Reform and Political Legitimacy.”
68 The Karachi Resolution of the Indian National Congress in 1931 was vague
on the land reform agenda and limited itself to calling for reduction of rent for
tenants. The issue of a complete reform was treated gingerly as the Congress
wanted to avoid a class war: J. Bandyopadhayaya, The Congress and Demo-
cratic Socialism (New Delhi: Indian National Congress, 1968), at p. 4. But
the Congress Socialist Party had no such limitations of thought and declared
abolition of intermediaries and redistribution of land to the peasants: All India
Socialist Party Programme (Bombay: M R Massani, 1937). Hereinafter, Bandyo-
padhayaya, The Congress and Democratic Socialism.
69 Bandyopadhayaya, The Congress and Democratic Socialism.
70 Although the Congress was limiting its declarations to altering the tenancy struc-
ture, the socialist political parties were pressing for a redistribution of land even
before independence was attained. But the notion of abolishing the intermediary
titles had solidified and it became one of the priorities of the new government.
72 Austin, Working a Democratic Constitution at pp. 74–76.
73 In the original constitution, Article 19(1)(f) read as follows: Article 19(1): “All
citizens shall have the right (f) to acquire, hold and dispose of property.”
74 In the original constitution, Article 31(1) and (2) read as follows: Article 31(1):
“No person shall be deprived of his property save by authority of law.”
“2) No property, movable or immovable, including any interest in, or any company
owning, any commercial or industrial undertaking, shall be taken possession of
or acquired for public purposes under any law authorising the taking of such
possession or such acquisition, unless the law provides for compensation for
the property taken possession of or acquired and either fixes the amount of the
compensation, or specifies the principles on which, and the manner in which, the
compensation is to be determined and given.”
75 Austin at p. 77: “The compromise satisfied Patel, and two of its architects com-
mended its efficacy to the Assembly. K. M. Munshi said that if the principles of
compensation laid down were genuine, the courts would ‘not substitute their
own sense of fairness’ and ‘they will not judge the adequacy of compensation . . .
unless the inadequacy is so gross as to be tantamount to a fraud on the funda-
mental right to own property.’ Nehru told Assembly members that, ‘eminent
lawyers have told us that “on a proper construction of this clause (clause 2, the
compensation clause) normally speaking, the judiciary should not and does not
come in.” ’ Nehru also said that ‘equity applied to the community as well as to
the individual and that no individual could override the rights of the community
at large.’
76 These Indian utterances occur in paragraph 369 of the Joint Committee Report
on Constitutional Reform, 1934.
78 Although intermediaries were an existing class when the British took over the
administration, their status and landownership was gained only after the series
of Permanent Settlement Regulations.
79 Calls for abolition, Austin, Working a Democratic Constitution at p. 74.
80 H. C. L. Merillat, “25_Compensation for the Taking of Property – A His-
torical Footnote to Bela Banerjee’s Case,” 2016, accessed January 29, 2019,
http://14.139.60.114:8080/jspui/handle/123456789/15254. at p. 379. Hereinaf-
ter Merillat, “25_Compensation for the Taking of Property”.
81 Full text of the report is available at https://archive.org/stream/indianconsti-
tuti029644mbp/indianconstituti029644mbp_djvu.txt, accessed January 29, 2019.
82 Merillat, “25_Compensation for the Taking of Property” at p. 379.
83 Ibid.
84 Article 299(1): “No person shall be deprived of his property in British India save
by authority of law.”
“(2) Neither the Federal nor the Provincial Legislature shall have the power
to make any law authorising the compulsary acquisition for public purposes of
any land or any commercial or industrial undertaking or any interest in, or any
company owning, any commercial or industrial undertaking, unless the law pro-
vides for payment of compensation for the property acquired and either fixes the
amount of compensation or apecifies the principles on which and the manner in
which it is to be determined.”
85 On the matter of compensation, one very significant view was expressed mem-
bers like D. S. Seth and S. L. Saxena: “For the justice and fairness of compensa-
tion had to be determined from the point of view of the economically backward
and financially weak community – a judgment which, almost of necessity, had to
be exercised by the Legislature rather than the courts, and a judgment which led
some members to the other and apparently rational view that there was little jus-
tification in paying compensation when general transformation of the economic
structure on socialistic lines was to take place.” “National Congress Election
Manifesto,” n.d. pp. 1200–1206.
86 Austin, Working a Democratic Constitution at pp. 76–77.
87 Ibid. at p. 74.
89 A letter written by the Maharaja of Chota Nagpur to the Bihar Premier Shri
Krishna Sinha. The zamindars were pleading their case with Patel and all other
ministers of board. They also approached the then-president of India, Dr. Rajen-
dra Prasad, telling him that the provincial government was bent upon arbitrar-
ily taking their rights and without compensation. Their leader, the Maharaja
of Darbhanga (who later petitioned the Patna High Court in the Kameshwar
Prasad Case), stated that they were not against abolition of zamindari but they
wanted the procedure to be conducted in a fair way. Austin, Working a Demo-
cratic Constitution at p. 75.
90 Maharajadhiraja Sir Kameshwar & Others v. the State of Bihar, 1952 1 SCR 889.
91 “Article 31(4), which saved pending legislation later approved by the President,
only protected the act in question against judicial review under the provisions of
Article 31(2). The zamindars had also invoked article 14, guaranteeing equality
before the law, and the court held that the Bihar law, providing a graduated scale
of compensation related to the size of the landholdings, set up an unreasonably dis-
criminatory classification. Although the court was barred from inquiring into the
adequacy of compensation, it made clear its view that compensation meant equiva-
lent value.” Merillat, “25_Compensation for the Taking of Property” at p. 621.
92 “This business of the equality of the law may very well mean, as it has come to
mean often enough, making rigid the existing inequities before the law. That
is . . . dangerous in a changing society and it is completely opposed to the whole
structure and method of this Constitution and what is laid down in the directive
principles (of state policy).” Nehru’s statement after the First Amendment to the
Constitution cited in Abhik Chinmi, “Shared Mission: How Nehru’s Vision of
Social Justice Inspired PN Bhagwati’s PIL Revolution,” June 26, 2017, accessed
July 14, 2019, https://scroll.in/article/841434/shared-mission-how-nehrus-vision-
of-social-justice-inspired-pn-bhagwatis-pil-revolution.
93 The State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525 and
Romesh Thapar v. The State of Madras, 1950 SCR 594.
94 Nehru gave a speech to the Constitution Assembly on September 10, 1949,
stating that “Eminent lawyers have told us that on a proper construction of
this clause (clause 2, the compensation clause) normally speaking, the judiciary
should not and does not come in.” Nehru also said that “equity applied to the
community as well as to the individual and that no individual could override
the rights of the community at large.” CAD 9, no. 31, 1192–1195.
95 Preamble to the First Amendment stated that: “During the last fifteen months
of the working of the Constitution, certain difficulties have been brought to
light by judicial decisions and pronouncements specially in regard to the chap-
ter on fundamental rights. . . . Another article in regard to which unanticipated
difficulties have arisen is article 31. The validity of agrarian reform measures
passed by the State Legislatures in the last three years has, in spite of the provi-
sions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory
litigation, as a result of which the implementation of these important measures,
affecting large numbers of people, has been held up.”
96 Not defining the term estate was a conscious strategy of the legislature so
that the immense local diversity in the functioning of land tenures in different
regions was recognized. It was necessary for the programme of agrarian reform
that the term should have a diverse connotation, flexible to all forms of variant
land systems of the country. Article 31A(2) explains that the term would have
the same meaning as given to it by local laws relating to land tenures. Further,
Article 31A(2)(a) states that the term would include jagir, inam, muafi, or other
similar grants and any janam rights as well. See Kunhi Koman v. The State of
Kerala AIR 1962 SC 723, Amar Singhji v. The State of Rajasthan AIR 1955 SC
504, State of Uttar Pradesh v. Anand Brahma Shah, AIR 1967 SC 661.
97 Section 5, Article 31B, Constitution of India, 1950.
98 Section 4, Article 31A, Constitution of India, 1950.
99 Entry 42, List III, Schedule VI: “Acquisition and Requisition of Property.”
100 National Sample Survey, First Report on Landholding, Rural Sector, Delhi,
1958.
101 For the reformative character of land legislations, see John Murphy, “Insulat-
ing Land Reform from Constitutional Impugnment: An Indian Case Study,”
The Comparative and International Law Journal of Southern Africa 25, no. 2
(1992): 129–155.
102 Austin, Working a Democratic Constitution, at p. 97.
103 The new Indian state during the early 1950s was not in a financial capacity
to make huge amounts of payments to the zamindars, estimated at a total of
20 million. This financial aspect was one other reason why the government
seemed reluctant to pay. Therefore, most payments were made in cash bonds
that extended up to a period of 40 years. Bipan Chandra, India after Inde-
pendence: 1947–2000 (Penguin UK, 2000), accessed January 29, 2019, https://
books.google.co.in/books?hl=en&lr=&id=y5JEDxGZTOUC&oi=fnd&pg=PT
6&dq=india+since+independence+bipin+chandra&ots=CT3yEh5jDv&sig=4C
voh2grwC-gTGZHeY0nt_8hItY at p. 521.
104 State of West Bengal v. Bela Banerjee, AIR 1954 SC 170
105 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92.
106 Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd, AIR 1954 SC
119.
107 Para. 9 of the judgment.
108 Para. 11; “The learned Judges below observe that it is common knowledge
that since the end of the war land, particularly around Calcutta, has increased
enormously in value and might still further increase very considerably in value
when the space of industrialisation increases. Any principle for determining
compensation which denies to the owner this increment in value cannot result
in the ascertainment of the true equivalent of the land appropriated.”
109 The Preamble to the Act reads as follows: “An Art to provide for the acquisi-
tion and development of land for public purposes.”
110 See Merillat, “25_Compensation for the Taking of Property.”
111 It is believed that the Bela Banerjee decision had sent shock waves to the gov-
ernment. The Congress Working Committee immediately set up a subcommit-
tee to review the working of the Constitution which was to enlarge the scope
of Article 31 in order to make room for government policy, because clearly,
its then composition did not send a clear message to the judiciary. Austin at
p. 101.
112 Article 31(2), Constitution of India, 1950.
113 Clauses (b)(c)(d) of Article 31A(1); Section 3 of The Constitution (Fourth
Amendment) Act, 1955.
114 See Points 3 (i) to (v), Statement of Objects and Reasons, Constitution (Fourth
Amendment) Act, 1955. Full text of the amendment is available at http://india
code.nic.in/coiweb/amend/amend4.html, accessed January 29, 2019.
115 Karimbil Kunhikonam v. the State of Kerala, AIR 1962 SC 723.
116 Sajjan Singh v. the State of Rajasthan AIR 1965 SC 845; while also reconsider-
ing Sri Shankari Prasad Singh Deo v. Union of India & Ors., AIR 1951 SC 458.
117 Section 3 of the Constitution (Seventeenth Amendment) Act, 1964. Full text
of the Act is available at https://www.india.gov.in/my-government/constitu
tion-india/amendments/constitution-india-seventeenth-amendment-act-1964,
accessed July 14, 2019.
118 I.C. Golakhnath & Ors. V. The State of Punjab & Ors, AIR 1967 SC 1643.
119 His Holiness Kesavananda Bharti Sripadagalvaru & Ors. v. the State of Ker-
ala & Ors (1973) 4 SCC 225.
120 Constitution (Twenty-fourth Amendment) Act, 1971.
121 Ibid.
122 The Constitution (Twenty-ninth Amendment) Act, 1972.
123 “Hence, for property, there are two key points. The first is that the long dis-
pute over the fundamentality of the Constitutional protection of property was
not resolved by the repeal of Articles 19(1)(f) and 31. The focus of review has
changed, but property remains an interest that can be protected by review, and
that review is protected by the basic structure doctrine.” Tom Allen, “Property
as a Fundamental Right in India, Europe and South Africa,” Asia Pacific Law
Review 15 (2007): 193 at 211.
124 I R Coelho (Dead) by LRs v. The State of Tamil Nadu, AIR 2007 SC 861..
125 The term material resource is used in Article 39(b), Constitution of India, 1950
“the owner and control of material resources in the community are so distrib-
uted as best to serve the common good.”
126 See generally Patricia Hughes, “Recognizing Substantive Equality as a Founda-
tional Constitutional Principle,” Dalhousie Law Journal 22 (1999): 5; Gunther
Teubner, “Substantive and Reflexive Elements in Modern Law,” Law and Soci-
ety Review (1983): 239–285.
127 Roger Cotterrell, “Power, Property and the Law of Trusts: A Partial Agenda
for Critical Legal Scholarship,” Journal of Law and Society 14, no. 1 (1987):
77–90, at p. 82.
128 Ibid.
129 Cathi Albertyn and Beth Goldblatt, “Facing the Challenge of Transformation:
Difficulties in the Development of an Indigenous Jurisprudence of Equality,”
South African Journal on Human Rights 14, no. 2 (1998): 248–276.
130 Dworkin, “What Is Equality?”
131 Minerva Mills Ltd. & Ors. v. Union of India & Ors., AIR 1980 SC 1789.
132 Ibid. at para. 62, “The edifice of our Constitution is built upon the concepts
crystallised in the Preamble. We resolved to constitute ourselves into a Socialist
State which carried with it the obligation to secure to our people justice–social,
economic and political. We, therefore, put part IV into our Constitution con-
taining directive principles of State policy which specify the socialistic goal to
be achieved. We promised to our people a democratic polity which carries with
it the obligation of securing to the people liberty of thought, expression, belief,
faith and worship; equality of status and of opportunity and the assurance that
the dignity of the individual will at all costs be preserved. We, therefore, put
Part III in our Constitution conferring those rights on the people. Those rights
are not an end in themselves but are the means to an end. The end is specified
in Part IV. Therefore, the rights conferred by Part III are subject to reason-
able restrictions and the Constitution provides that enforcement of some of
them may, in stated uncommon circumstances, be suspended.” Minerva Mills
Ltd. and Ors. v. Union of India (UOI) and Ors. (09.05.1980 – SC): MANU/
SC/0075/1980.

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1

The construction of an Indian

The distinction between land and property

The Indian interpretation of property

Property rights and land laws – a distorted debate

The composition of a constitutional right to property

A combined reading of the constitutional right to property

Land, the law, and a distinction from general property

It was then considered whether the same protection should be extended

(1) No person shall be deprived of his property in British India save by

A possible harmonious interpretation for property rights

Land reform going astray with the subsequent

Reading together the constitutional right to property and

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