“POST-1980S, THE JUDICIARY, RATHER THAN THE LEGISLATURE, HAS HELD OUR NATION AND THE PEOPLE IN BETTER STEAD”
[By Krishna Ananth]
Dr. V.Krishna Ananth teaches history at Sikkim University, Gangtok. He did his PhD from the Jawaharlal Nehru University, New Delhi and was associated with The Hindu newspaper in various capacities, reporting and commenting on national politics, until 2003. Alongside he taught at the Asian College of Journalism, Chennai, lecturing on contemporary Indian politics and constitutional history and practiced at the Madras High Court for a brief while. Dr. Ananth continues to contribute to various newspapers and journals as a freelance journalist.
He is author of India Since Independence: Making Sense of Indian Politics (Pearson Longman, 2009), Politics in the Times of Churning (Daya, 2014) and The Indian Constitution and Social Revolution: Right to Property Since Independence (Sage, 2015) apart from chapters in edited volumes. Dr. Ananth has been a fellow traveler and sympathizer of the many shades of the Left movement in India and an active participant in campaigns against war and jingoism.
In this interview with LiveLaw, Krishna Ananth, shares his views on the recent Supreme Court judgment quashing the land acquisition in Singur for the Tata Motors Limited [TML] by the erstwhile Left Front Government in West Bengal.
Q: In your recent article on the Singur judgment, you have said that The Land Acquisition Act, 1894 remained valid, because it was protected by Article 31(5) and because there was ambiguity in the Constituent Assembly over the status of the right to property in independent India. Do you infer this ambiguity from the Constituent Assembly Debates? Can you elaborate?
Ans: Well. When we look at the history of Article 31 of the Constitution (which was Article 24 in the draft), one thing that strikes us is the substantive changes to the draft brought about by Jawaharlal Nehru through amendments in the CA. A reading of this and the debate in the CA reveals that there was a conflict between the idea of egalitarianism in property relations and that of the right to property and the difficulties in reconciling the two led to Article 31(5) being brought into the Fundamental Rights; this was not there in the draft Article 24 as it was. If you see, Article 31(5) was meant to render the right to property as NOT a fundamental right… rather it was a ‘restriction’ and thus the concept of eminent domain was smuggled into where it was not there. This, indeed, persisted throughout Nehru’s years as Prime Minister and reflected in the Constitution First, Fifth and Seventeenth amendments.
Q: Another observation you have made in that article, is that the scrapping of the right to property under the 44th Amendment Act, resulted in reviving the problematic aspects of the 1894 Act. How did this go against the small and middle peasants, as you suggest? Can you explain?
Ans: My argument is that post-Keshavananda, particularly with Justice H.R.Khanna’s explicit statement that the Right to Property was not part of the Basic Structure of the constitution and also the majority upholding the Constitution 24th amendment Act, acquisition of land for the purpose of land reforms/redistribution of land for serving the ends of Article 39 (b) and (c) was no longer a problem. Article 31 being deleted thereafter meant that the Right to Property was no longer a fundamental right though the 44th amendment then had another implication too: dispossession of land to achieve the goals mentioned in Article 39 (b) and (c) was now made possible and that helped dispossession of the small and middle peasants. This is not what Keshavananda implied in my view. It was a fraud on the Constitutional direction in my view, though couched in radical garb.
Q: If the right to property remained as a fundamental right, what difference it would have made to citizens dispossessed of their land through eminent domain? In retrospect, was the decision to scrap the right flawed?
Ans: I will prefer to use the word fraud rather than flawed. The Singur farmer could have stopped acquisition then with the kind of Public Interest Lawyers he had now. Many acts of dispossession in other parts of the country also could have been prevented.
Q: Procedural lapses by the state coming to the aid of people dispossessed of their rights. — is not the law just then?
Ans: My argument is that the poor cannot rest their case only on procedural infirmities. The Singur case is one instance where it is revealed that if the Left Front government was not all that brazen about its ways, the farmers would have suffered injustice.
Q: On the contrary, a state with the intent to dispossess land, if it is careful to avoid such procedural lapses, at least just for the record, will it be just?
Ans: That’s exactly the point.
Q: The land returned by TML, is now unsuitable for agriculture, because it has been ravaged with cement, steel and other material. How will those who have now got back their lands use it, and what difference it will make to their livelihood?
Ans; This is where the delay matters. I must say that the judiciary in this case decided faster than usual and yet the problem of what use is the land is relevant. But then, I think here are ways to de-ravage the land in question and the one who was responsible for the ravaging must be asked to pay too. I am not ignorant of the UCC case in Bhopal in this context and the power of the corporates in denying justice by delaying tactics here; notwithstanding the apex court’s pronouncements, once in a while, on the need for speedy justice!
Q: Two Judges of the Supreme Court, Justices V Gopal Gowda and Arun Mishra reached the same conclusion, but adopted different reasoning. Which reasoning is correct?
Ans: I will not get into which one is correct or incorrect. However, I will insist that there were more substantial bases that they could have relied upon to reach the same decision. I think the NOIDA cases as decided in 2011 and the Mukesh Hans case earlier would have served a larger purpose than what the learned judges relied upon here.
Q: The CPI(M) has responded to the Singur judgment saying that the 1894 Act was to be blamed, not the Left Front Government, which had no alternative but to use that outdated Act. Your comments.
Ans: It is ridiculous. But if I stretch the argument of the ridicule, I will then wonder as to whether they decided to brazenly un-follow the procedure, even by the 1894 Act, to grab land from the farmer and hand it over to TML anticipating that the acquisition will be struck down by the courts? I am surprised that someone there in the party is not speaking this way. The fact is that the party simply turned against the people who were its backbone to serve whom it called the class enemy and fell between the two stools. Someone there should be told that they should realise that the people are not dumb as they think.
Q: You made a subtle distinction between procedure established by law and the due process of law and there is evidence of a shift to the latter in our history of constitutional law. Does the Singur judgment suffer from its inability to recognise the due process of law? Can you also briefly explain how the shift took place?
Ans: I have dealt with this in some detail in my book on the land acquisition laws and the constitution. I see the beginning of this shift marked in R.C.Cooper case (insofar as property is concerned) and further evident in Olga Tellis. I will also hold that Keshavananda (which happened between the two cases mentioned above) was where the firm foundations were laid for this shift when the majority upheld the first leg of Article 31 C of the Constitution. This, indeed, was also pronounced in the NOIDA cases in my view.
Q: How does Justice Mishra reconcile the inconsistency between his reliance on Justice Krishna Iyer, and his conclusion that the test of public purpose is fulfilled in Singur?
Ans: Well. I am at a loss over the fact that Justice Justice Mishra chose not to rely on Justice Iyer’s exposition even after citing that in his judgment. I do not know why he skirted that.
Q: You are suggesting that the 2013 Act is in fact worse than the 1894 Act as it further illegitimises struggles against land acquisition. You cited the instance of tourism as a ground for acquisition in recent times, and how the new Act legitimises it. Has there been an example of tourism-related acquisitions of land failing to overcome the challenges under the old Act?
Ans: Well. It’s too early given the course that the 2013 Act has taken since May 2014, with the coming to power of the Narendra Modi government. But given the nature of ‘industries’ I will not be surprised if disaster tourism too qualifies for acquisition of land in the guise of public purpose! I wish I am proved wrong.
Q: Your article appears to show the procedure established by law and the due process of law in binary terms. Are they to be understood as being inconsistent with each other, or in harmony?
Ans: If I had conveyed it in a way that the two are binary opposites, I did not intend that way. But then, these are two distinct positions in jurisprudence and understood as different. The preference, in the CA, for the procedure-established-by-law principle was for reasons that the judiciary, at that stage, was not seen as conducive to be vested with the future of the country and its people. While that may have been true, I will argue that post-1980s, the judiciary has held our nation and the people in better stead than the legislature. Hence, I will argue that the shift is legitimate.
Q. You have suggested that higher compensation to the dispossessed under the new Act has only reduced the scope for stalling indiscriminate acquisition of farmlands in the name of development. Is it because those who receive compensation are happier, and therefore, give a damn to the question whether there was any public purpose or proper procedure followed etc.
Ans: In a sense, this is turning real with the neglect of agriculture and the preference for industries in our budgets. The terms are heavily loaded against agriculture. It is a reality that has ominous portents for the food security of the nation. But then, nobody seems to be bothered about this.
Q: You have referred to Section 40 of the new Act, and compared it with Section 17 of the old Act. The courts can still examine whether what is officially claimed as emergency, to justify short-circuiting all the safeguards, was indeed an emergency.
Ans: Yes. But then, it takes many years between the dispossession and when the land thus taken is ravaged and rendered unfit for farming. Also consider that Singur happened to draw national attention and the involvement of public spirited lawyers of repute reaching out to the farmers. My point is what you call as a better law and one that has taken care of all the infirmities is not all that great. It’s in some sense, worse than the other one. One brand of noodles or one MNC-manufactured cola is not a substitute for another’!
Q. Why you are critical of freeing the peasantry as against the bondage of the peasant class to the land?
Ans: Well. I presume this question is with reference to my brief discussion on the Enclosure Acts in England and Marx’s reference to that as the original sin. The point is that the peasants were told they were free to move away from their lands; but then, they were left with no possession except their bodies and labour to sell and stay alive. That, indeed, is NOT freedom. It’s another form of slavery and that is what freeing the peasantry has meant in history.
Q: You are critical of fair compensation as the only requirement for compulsory acquisition. Can you identify other requirements, which may be just? What are the consequences of treating land as a commodity?
Ans: Well. Let us interrogate against the commoditization of any human activity. I say interrogate.
Q: You infer a ray of hope from the political class’ failure to scrap Section 3(za) of the new Act, which requires prior consent of the 80 per cent of the dispossessed. Are Niyamgiri and Bhatta Parsaul exceptions, rather than the rule?