The Peculiar Circumstances of Eminent Domain in India

The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly of India, which drafted the Indian Constitution between 1947 and 1950, and in subsequent Parliamentary meetings regarding constitutional amendments. However, these extensive deliberations resulted in a clause that only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks that govern state acquisition of land, in particular The Land Acquisition Act, 1894, provide only another part of the puzzle. This paper starts earlier in history-at the inception of eminent domain in India-in order to put this institution into its colonial context. I argue that this concept of compulsory land acquisition by the government, as inherited from the British and encapsulated in the Constitution, statutory law, and in practice, is inappropriate for the reality of how property rights are held and exercised in India and incapable of being reformed toward the socially inclusive purposes for which property rights were originally included in the Constitution. Because of this discord, efforts to re-formulate the law of eminent domain continue to fall short of real transformation of the property rights regimes in India