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6 Vienna J. on Int'l Const. L. 213 (2012)
Constitutional Right to Property in Changing Times: The Indian Experience

handle is hein.journals/vioincl6 and id is 213 raw text is: R. Rajesh Babu

Constitutional Right to Property in Changing Times:
The Indian Experience
The constitutional right to property has undergone a significant change since
India's independence. In the past few decades, the guarantee of property for
both alien and domestic right holders went for considerable dilution to sanction
the unrestrained power of eminent domain. The arbitrary expropriation of property
was justified in the then social and political context of a nascent state. However,
since India embarked on the path of liberalization with the policy of promoting
international trade and foreign investments, there appeared a progressive and
selective modification if its legal regime on property rights to favour alien
property and corporate interests. Part of the policy shift involved guarantee and
strengthening of the legal environment for protection of foreign property and
investment. India's international commitments under the WTO Agreements and
several investment protection treaties guaranteed capital and IP exporting states
safe and secure property rights in the host state - India, much beyond the
existing protection for citizen's property. Remedies for breach and standard of
compensation for expropriation, direct or indirect, were judged by international
rules and practices, beyond the control of local courts. To the extent that
international expropriation and compensation rules provide foreign investors and
IPR holders with stronger rights than India's laws, they are also likely to provide
them with stiffer property rights. In addition, change was evident in the nature of
ownership of expropriated property. Nationalization (state ownership), which was
the primary character of expropriations, was replaced by 'corporate' ownership
with no respect for public purpose or just compensation. The recent stints of
compulsory acquisition of land for SEZ underline the 'reverse-discrimination' or
double standards perpetrated by the Indian state. The paper attempts to highlight
this paradox in India's property rights regime in the changing global context. The
paper argues for a constitutional rethinking on right to property, in the post
liberalization context, considering the new social and political realities, particularly
from the viewpoint of individual private owners whose identity and livelihood are
attached to the property.
The legal and political history of the rise and fall of property rights in India is
well documented. After decades long tussle over state's power of eminent
domain, the right to property stand relegated from a fundamental right to a

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