A Constitution Based On Property Rights?

Monday, 9 October 2000
Parth J Shah
The Economic Times

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.