ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Limits to Absolute Power

Eminent Domain and the Right to Land in India

As the conflict over land assumes a central dynamic within the "growing Indian economy", forcible acquisition, or the state's power of eminent domain, is critical to various political and economic calculations. This paper discusses the doctrine of eminent domain in the context of dispossession and emergent land and resource conflicts in India. The origin of the doctrine in pre-constitutional colonial law, the legal mechanisms of land reform and acquisition laws through which it finds expression, and the recently proposed mechanisms for acquisition that expand its power and conflate public purpose with private capitalist interests are discussed. The paper examines the dual nature that lends itself to redistributive justice and the dispossession of already marginalised citizenry. It then examines the vexatious concept of sovereignty animating the doctrine, discusses existing substantive limits to its power that need to be given primacy and the uneven jurisprudence around the doctrine. It argues for contextualised rights to land- and resource-use regimes, concluding with observations on the implications of the doctrine's continuing and expanded scope.

“Absolute” power in the title of this paper is not totalitarian power but exceptional power operationalised through certain legal provisions in an ostensibly democratic framework, like eminent domain expressed in the Land Acquisition Act 1894 that allows the state to overrule any dissent for land acquisition for public purpose. I would like to thank Usha Ramanathan and K B Saxena for insightful discussions on eminent domain and land reforms, respectively. Thanks are also due to Sanjay Parekh, Albertina Almeida, Krishnendu Mukherjee and other legal experts with whom I consulted and who referred relevant judgments and concepts. Thanks also to the anonymous reviewer for suggestions. Any errors are my responsibility alone.

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