A WORD ON EMINENT DOMAIN (original) (raw)
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The Constitution of Kenya 2010 read together with the various land laws has entrenched the right to ownership of property. This right is however not absolute following the encapsulation of the doctrine of eminent domain under the Constitution of Kenya 2010. The doctrine has provided for circumstances under which the state may compulsorily acquire privately owned property. The Constitution of Kenya 2010 provides that the state shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of parliament that requires prompt payment in full, of just compensation to the person. The central provisions of this doctrine such as public purpose, public interest, prompt payment and just compensation, have not been awarded a clear definitive meaning neither by the Constitution of Kenya 2010 nor the respective land laws. This flaw in the law has created room for vague construction and the misapplication of the doctrine of eminent domain. This study opts to critically analyze how the vagueness of these provisions, being key elements of eminent domain, infringe on the right to ownership of property, freedom of conscience and may further leave people landless and cause loss of livelihood.
Gupta The Peculiar Circumstances of Eminent Domain in India 2012.pdf
The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly (the body which framed the Indian Constitution between 1947 and 1950) and in subsequent Parliament meetings regarding Constitutional amendments. However, these extensive deliberations resulted in a clause which only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks which govern government acquisition of land, in particular the Land Acquisition Act of 1894, are important to understand, but they provide only another part of the puzzle. This paper starts earlier in history – at the inception of eminent domain in India – in order provide the colonial context on which my argument rests. I argue that this concept of compulsory land acquisition by the government, as inherited from the British and encapsulated in the Constitution, the statutory law, and in practice, is inappropriate for the reality of how property rights are held and exercised in India and incapable of being reformed toward the socially inclusive purposes for which property rights were included in the Constitution. Because of this discord, efforts to re-formulate the law which hold current forms of eminent domain as their focal point continue to fall short of real transformation of the property rights regimes in India.
A STUDY ON EMINENT DOMAIN IN INDIAN JURIDICAL PERSPECTIVE
Indian Journal of Law and Legal Research, 2023
The American theory of eminent domain grants the sovereign the authority to take property from private individuals. Taking private property away from its owner for public use is a sovereign authority. Although it is not specifically specified in the Constitution, a state's sovereign has the inherent right to take private property without the owner's agreement. The eminent domain grants the authority to seize private property without an agreement in order to advance the public good. However, because it imposes a subsequent responsibility on the sovereign, it is not an unqualified right of the latter. After the Coelho case, the use of eminent domain was strengthened since it was believed that for the interest of the public, governmental bodies should adhere to the social welfare concept. The article describes in brief the doctrine of Eminent Domain according to the Indian Constitution which has its scope evolved over a period.
The Constitution of Kenya 2010 read together with the various land laws has entrenched the right to ownership of property. This right is however not absolute following the encapsulation of the doctrine of eminent domain under the Constitution of Kenya 2010. The doctrine has provided for circumstances under which the state may compulsorily acquire privately owned property. The Constitution of Kenya 2010 provides that the state shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation is for a public purpose or in the public interest and is carried out in accordance with the Constitution and any Act of parliament that requires prompt payment in full, of just compensation to the person. The central provisions of this doctrine such as public purpose, public interest, prompt payment and just compensation, have not been awarded a clear definitive meaning neither by the Constitution of Kenya 2010 nor the respective land laws. This flaw in the law has created room for vague construction and the misapplication of the doctrine of eminent domain. This study opts to critically analyze how the vagueness of these provisions, being key elements of eminent domain, infringe on the right to ownership of property, freedom of conscience and may further leave people landless and cause loss of livelihood.
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 doctrine's 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.