New Article: “The Tension between Property Rights and Social and Economic Rights: A Case Study of India”

New Article: Namita Wahi, The Tension between Property Rights and Social and Economic Rights: A Case Study of IndiaSocial and Economic Rights in Theory and Practice (Helena Alviar et al. eds., Routledge, 2014 Forthcoming).  Abstract below:

In this paper, I explore the perceived tension in constitutional and human rights discourse between the right to property, regarded as a classic civil and political right, and socioeconomic rights such as the rights to food, housing, and health, through a review of Indian constitutional law. This tension arises because the enforcement of property rights, through judicial review, imposes severe restrictions on the fulfilment of socioeconomic needs of the poor. Moreover, social redistribution programmes, including land reform, that seek to improve access to resources amongst the beneficiaries necessarily involve alteration of existing property arrangements, which might be seen as violating justiciable constitutional property rights.

India is a unique case study for evaluating this tension because at the time of its adoption in 1950, the Indian Constitution constitutionalised both civil and political rights like the right to property and social and economic rights, but only made the former justiciable. However, according to the conventional political and scholarly narrative, judicial enforcement of the right to property during the period 1950-1978 resulted in the invalidation of many socioeconomic reforms. This led Parliament to amend the Constitution several times in order to nullify the effect of the judicial decisions and culminated in the Forty Fourth constitutional amendment in 1978, which changed the character of the property right from a justiciable to a non-justiciable right. In contrast, post 1978; the Court through its pronouncements on the “right to life” made non-justiciable socioeconomic rights, like the rights to food, livelihood, health and housing, justiciable.

Based on my review of the Indian experience, I conclude that broad generalizations about the differences and conflicts between property rights and socioeconomic rights are overstated and tend to come apart in the light of historical experience. Ultimately, it is the practices of individual judiciaries in particular periods of time and in particular social, political and economic contexts, both nationally and internationally, that influence the grant of concrete relief and enforcement of such relief in particular cases.



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