While common lands and waters are being stolen by investors and developers the world over, the Supreme Court of India decided it was not going to look the other way. In a bold, surprising ruling, the Court made a sweeping defense of the commons as commons.
In the January 28 decision, the Court held that the enclosure of a village pond in Rohar Jagir, Tehsil, in the State of Punjab, by real estate developers was a totally illegal occupation of the commons. The developers, who were appealing a lower court ruling, had filled in the pond with soil and started building houses on it. The Court ruled in unmistakable terms that the pond/land must revert to the commoners immediately and the illegal occupiers must be evicted. Even more remarkable, the Court held that similar enclosures of common lands elsewhere in India must be reversed even if they have been in effect for years. (Thanks, Trent Schroyer, for alerting me to this case!)
You can read the 12-page decision by Markandey Katju here [pdf file]. Given the ideological capture of American jurisprudence, it is astonishing and inspirational for me to encounter a no-nonsense affirmation of the rights of commoners by the highest court of any nation.
The Indian Supreme Court started by recognizing the ancient history of the commons in India and its vital importance (the paragraphs are numbered in the style of legal documents).
3. Since time immemorial there have been common lands inhering in the village communities in India, varioiusly called gram sabha land, gram panchayat land (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India) Kalam, Maidan, etc., depending on the nature of the user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponders for various purposes, e.g., for their cattle to drink and bathe for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyard, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers, and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
4. The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. [Editor’s note: This is essentially the same legal principle as the “public trust doctrine” in American environmental law.]
5. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. (emphasis in original) People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with the active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.
The justices proceed to note that the appellants [the real estate developers] “are neither the owner nor the tenants of the land in question,” but “are in fact trespassers and unauthorized occupants of the land…. [who] appear to have filled in the village pond and made constructions thereon.”
When the enclosure of the village pond was brought to the attention of the village Collector, Patiala, he “surprisingly held that it would not be in the public interest to dispossess them,” the Court writes. Instead, the Collector told the commoners to “recover the cost of the land” from the trespassers. “Thus, the Collector colluded in regularizing this illegality on the ground that the respondents have spent huge money on constructing houses on the said land,” the Court writes.
Later in the ruling, as if to emphasize the crime of enclosure, the Court revisits the timeless importance of the commons and the morally offensive, ecologically harmful results of enclosure:
17. We wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.
18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.
19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
In the end, the Indian Supreme Court struck down the enclosers’ appeal with a clear declaration that the commons must revert to the commoners:
We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village…. We cannot allow the common interest of the villagers to suffer merely because the authorized occupation has subsisted for many years.
The Court’s ruling is a welcome affirmation of the commons, of course, but its implications for enclosed commons throughout India are uncertain. As a knowledgeable Indian friend of mine noted, rich and poor alike have enclosed common lands in India. In the cases where the rich have built homes on those lands, it may be very difficult as a practical matter to evict them at this point, notwithstanding the Court’s statement, “Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.” The politics of actualizing the Court's ruling represents a major challenge.
Still, one could have worse problems. For once, the value of the commons and the rights of the commoners have been upheld by the highest court of a major nation. That's amazing. If this ruling catalyzes better management of the commons for the commoners -- and a recognition that the commons has affirmative value, and should not be dismissed as a mere "wasteland" -- it will be a significant achievement.