Friday, July 6, 2012

Gupta on Eminent Domain in India

GuptaPriya Gupta (Southwestern) has posted The Peculiar Circumstances of Eminent Domain in India (Osgoode Hall Law Review) on SSRN.  Here's the abstract:

The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly (the body which framed the Indian Constitution between 1947 and 1950) and in subsequent Parliament meetings regarding Constitutional amendments. However, these extensive deliberations resulted in a clause which only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks which govern government acquisition of land, in particular the Land Acquisition Act of 1894, are important to understand, but they provide only another part of the puzzle. This paper starts earlier in history – at the inception of eminent domain in India – in order provide the colonial context on which my argument rests. I argue that this concept of compulsory land acquisition by the government, as inherited from the British and encapsulated in the Constitution, the 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 included in the Constitution. Because of this discord, efforts to re-formulate the law which hold current forms of eminent domain as their focal point continue to fall short of real transformation of the property rights regimes in India.

Steve Clowney

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