A
Constitution Based On Property Rights?
Parth J. Shah
Economic Times,
October 2000
India is truly a land of paradoxes. She is marching towards
liberalisation and privatisation without recognising the right to
property as a fundamental right. Legal protection and status of
private property is weaker in India than even in formerly communist
countries. The Supreme Court has accepted governments claim that
any compensation is fair and just when government acquires private
property. No dispute about governments payment for takings shall
be entertained. There is no rule of law in acquiring and using private
property for public purposes. Truly a land of paradoxes.
Janata Partys 44th Amendment to the Constitution
in 1978 removed the right to private property from the list of fundamental
rights. In the history of the Congress Party, nationalisation of
various industries and Emergency are the darkest chapters. But the
first-ever non-Congress party to come to power at the Centre has
inflicted a far deeper wound on our Constitution. Jan Sangh was
a member of the Janata Party; BJP established constitutional review
committee must reconsider the status of private property and the
definition of just compensation.
Socialists believe that property rights are meaningful
only to those who have property. For those who do not possess much,
property rights are simply legalisation of exploitation. Only the
rich, not the masses, benefit by constitutional protection of private
property. Analogy between the right to property and the right to
free expression is instructive. The right to free expression is
a fundamental right protected by the Constitution even though a
few ever exercise that right. A villager may not have the ability,
or the means, or even the need to use her right to free expression.
Only the educated, articulate people of means may only use that
right. But the villager is better off in a society that protects
that right for all. Property rights are not rights of property but
rights of humans about property. The right to property is the most
critical of human rights, without which all other human rights are
baseless, untenable, indefensible.
The institution of private property has been under
constant debate. None has been a more efficient arrangement. Private
property is the most incentive-compatible organisation of our resources.
It provides the most effective and timely incentives and information
to put our resources to their most valuable uses. Actually most
of our basic economic and environmental problems result from the
absence or improper definition and enforcement of property rights.
The tragedy of the commons - the absence of private property - is
the root of all our environmental problems. Be that air pollution,
water pollution, overfishing, traffic congestion, endangered species.
Environment problems occur in areas where the concerned resource
is commonly owned. Elephants, tigers, fish, air, water and roads
are commonly owned, are public property. The solution: privatise
- create private property rights where ever possible; if it cannot
be privatised, price the use of that resource. Zimbabwe converted
its elephants from public to private property, and the elephant
population is expanding despite permitting hunting and ivory trade.
Use of roads, even if operated by government, could be priced to
provide incentives for better utilisation.
Understand the logic of the tragedy of the commons,
apply it to any and all environmental problems, and judge it for
yourself. Absence of private property means absence of the market.
And without markets, it is impossible to find peaceful resolution
of the conflicting demands on the use of our resources. Environmental
problems are examples not of market failure but of the absence of
the market. Private property and the sanctity of contracts are the
basis of civilisation. Lets not live in barbarism.
The author is President, Centre for Civil Society.
New Delhi, October 10, 2000
Copyright 2000 The Economic Times
All Rights Reserved.
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