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Property Rights: Law, Liberty & Livelihood

Mine or thine: The Challenges and Prospects of the Property Rights debate in India

"If Communism's bastion in Bengal could fall, no party can afford to be on the wrong side of the land issue" writes Abheek Bhattacharya in The Wall Street Journal Asia.

The spurt in Naxal violence, bloody battles over land rights, the electoral outcomes in West Bengal and growing protests by popular politicians of "unfair" land acquisition policies have woken the nation to the latent property rights crisis that has been brewing for over three decades. Although the Indian Constitution recognized the right to right as a fundamental right, socialist policies led to its dilution in 1978 to facilitate land acquisition by the state. Feeding into the crisis in judicial expediency, a majority of cases pending in the civil courts are property related. The dismal state of land records and distorted taxes and fees make almost every land transaction laced with bribery making property related transactions a major cause of corruption. The rapid pace of urbanization puts unprecedented pressure on urban space and deepens conflicts among competing users. Governance of natural resources like forests, minerals, water and coastal areas raises conflicting questions over development, livelihoods and conservation.

The Centre for Civil Society (CCS) in partnership with the Friedrich Naumann-Stiftung für die Freiheit hosted a three-day "Colloquium on Property Rights: Law, Liberty & Livelihood" in Mumbai. Seventeen professionals from India, France and Nepal who are actively engaged with these issues from civil society, law, academics and government came together to share their experiences and seek alternative perspectives. Spread over five sub themes and based on a set of pre-selected readings, the discussions weaved from the constitutional and historical evolution of property rights, private use of public space, public use of private space, ownership and management of natural resources to the issues on titling, transfer and taxation of property. The revolving question across sessions was whether real property rights’ reforms can help achieve both economic growth and social empowerment?

The participants were able to integrate new ideas into their approach to various dimensions of property rights as well as apply their approach to current challenges and strategise for their implementation. A field visit to slum areas helped participants witness the partisan manner in which the state treats its citizens, how clear titling can impact quality of life and why it is an important demand of the slum dwellers. There was a general consensus that the current laws and government’s efforts in managing property have been dismal. For example, many of the grassroots activists present complained about difficulties in helping tribals claim their land under the Forest Rights Act. Even though many believed in the intrinsic importance of property rights, each property challenge requires a nuanced approach and possibly a bundle of negotiations.

Some questions still remained. Even while public purpose can be clearly defined, how far should the state be allowed to facilitate land acquisition for the private sector? Should the private sector be forced to negotiate directly with individual land owners when the poor state of land records makes individual negotiations extremely difficult? What is main the issue? Is it land acquisition per se or it is the warped system of compensation that allows the state to make enormous profits at the cost of the land owners? Should the right to property be reinstituted as a fundamental right? How can we ensure that institutional structures are put in place so that due process is followed in protecting the right to property especially for those without easy access to legal remedy?

Given the importance of these issues in their work, the participants resolved to continue to exchange experiences, best practices, and analyses of relevant legislations. Many areas were identified that require further studies. The grassroots activists and the academicians will be able to seek the assistance of the lawyers present to better understand the legal implications of draft legislations. The group will also contribute towards providing feedback on these draft legislations to relevant government ministries.

For more photographs click here.