Summary
Contents
Subject index
Displaced by Development: Confronting Marginalisation and Gender Injustice applies gender analysis to development induced displacement and resettlement in the Indian context. It highlights the need to focus specifically on how processes of displacement and resettlement affect social groups differently with regard to axes such as gender, class, caste and tribe. It argues that without differentiated analyses and programmes, the processes of resettlement and displacement will continue to be executed in ways that serve to intensify and perpetuate gender and social injustice. The book also critiques and draws attention to the injustices perpetrated in the course of development-induced-displacement and resettlement, which persist as burning issues in 21st century India, where economic and industrial development are growing rapidly.
The authors argue that without radically re-imagining the practices of development that cause displacement, there will be no end to the contentious politics accompanying displacement processes and the marginalisation and impoverishment of vulnerable social groups (e.g. adivasis, the urban and rural poor and lower castes). This means putting the interests of the displaced upfront, instead of seeing them as non-citizens or ‘dispensable citizens’ stripped of their basic rights.
A Word on Eminent Domain
A Word on Eminent Domain
‘Eminent domain’ is understood as the power that the State may exercise over all land within its territory. Eminent domain, and the law related to the compulsory acquisition of land, requires that the power may be invoked only for a public purpose, but what constitutes public purpose is wide open to interpretation and use. Development debates stoked by the mass displacement that accompanies large infrastructure projects have placed a severe strain on the acceptability of the power of eminent domain.
The endorsement of the eminent domain power of the State in the early constitutional years of independent India was assisted by the jurisprudence that had developed around the colonial Land Acquisition Act of 1894. That nineteenth century statute and the case law that grew around it, made the power of eminent domain, and the nature of ‘public purpose’, a matter solely for executive determination and statement, and, therefore, non-justiciable. Today, eminent domain is among the doctrines that have not been attempted to be tamed by constitutionalism. It has also not been tempered by altered notions of the relationship between citizens and the State which independence from a colonial power may well be expected to bring in its wake.
Hugo Grotius defined eminent domain in 1625 thus:1
The property of subject is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in cases of extreme necessity… but for ends of public utility, to which ends those who found civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property.
The Power of Eminent Domain
This understanding of the notion continues to hold sway. Not long after Independence, and within a short while after the promulgation of the Constitution, the Supreme Court was charged with judging the constitutionality of certain laws, which were intended to abolish the feudal zamindari (landowning) system. The power of eminent domain was under the scrutiny of the court, even as that power faced severe contest from the zamindars (landowners). In explicating the power, the court held that eminent domain was ‘the power of the sovereign to take property for public use without the owner's consent. The meaning of the power in its irreducible terms is: (a) power to take, (b) without the owner's consent, and (c) for the public use.’2
The reference to the ‘sovereign’ was a portent of one of the problems that has dogged the existence and uses of the eminent domain power, that is, the relationship between the State and the people. The power to take, and the unqualified nature of ‘public use’, has made dispossession and mass displacement possible, and is fast becoming a power which is acquiring illegitimacy, especially among the displaced. Further, the idea that the power to take will be from an ‘owner’ has excluded large numbers of the displaced from even the minimal consideration that the law provides—usually in the nature of entitlement to compensation—when displacement occurs. Landless labourers, artisans and others whose livelihood is not linked to land ownership as well as women have been among those whom this understanding of eminent domain has left excluded from the law. It has not mattered that women may belong in families that are losing land. They are considered outside the reckoning anyway, because the State is bound only to deal with the ‘owner’. Given the laws of succession, possession and ownership that have determined ownership, the probability of women being categorical owners with whom the State will have to negotiate is remote.
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