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Kathmandu Sunday March 03, 2002 Falgun 19, 2058.
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Digging into property right
By UTPAL RAJ MISRA
Pursuit of happiness should be an inalienable
right of all the people. It is often said that wealth is not happiness and that wealth
does not necessarily bring happiness. But wealth is a very good substitute, as well as a
useful means to happiness. Imagine being sick and not having money to pay for the doctor
or the medicine that is prescribed. Imagine not having money to feed oneself or one’s
children. In fact the cliche that money does not bring happiness is illogical because it
seems to imply that happiness will automatically fall upon those who do not have money. In
fact, misery is the companion of destitution and not happiness.
The ancient shastras tells us: "Dhanat,
Dharma, Tatha Sukhum". That is, possession of wealth followed by Dharma (Right Deeds)
leads to happiness. The dhana (wealth) is given priority, even before Dharma in the
Shastras. One cannot perform good deeds without money. Philanthropic deeds, religious
ceremonies etc do require surplus wealth beyond that which is required for one’s own
needs. Tulsi Das, a poet of medieval Hindustan, is said to have observed that one with an
empty stomach cannot sing Bhajana (hymns). So the precondition for happiness is wealth.
And the precondition of a happy nation is also prosperity.
Gone are the days when wealth was considered
adequate, when it was sufficient to meet simple basic needs with just a little extra for a
rainy day. Rise of consumerism and economic liberalism has and will put ever-increasing
pressure on all people to generate and accumulate wealth. Failure to do so leads to
radicalism and terrorism. Radicalism and terrorism are more like temper tantrums of a
frustrated child. They do not solve any problem, they only vent one’s frustrations.
Yet in the situations where scarcity, uncertainty and frustration abound they will always
exist.
The shastras say, when the incompetent and
leaders without ethics rule the country, the result is the general prevalence of scarcity,
insecurity, and violent deaths. The extent to which these three things exist in the
country indicates the extent of bad governance.
Unfortunately, since 1990, these indicators
of bad governance have been rapidly increasing. Insecurity has increased not only due to
deteriorating law and order, but also due to the improper and unstable policies of the
government that affect the economy of the country. That which affects the propertied class
will eventually also affect the economy of the country. The indicators of bad and unstable
policy are capital outflows from the country and the disinclination to invest in the
country. It is only when savings are invested that wealth is generated. In the situation
where rulers adopt unstable and impractical policies, a general atmosphere of uncertainty
prevails. Accumulation of wealth is discouraged. So those with capacity to invest and
undertake entrepreneurial activities are discouraged. This in turn constricts job
opportunities and unemployment and poverty increase.
"Privatisation" will be ineffective
where private entrepreneurs are discouraged. Where private efforts are penalised by
efforts to reduce their margin of profit, through taxes, bureaucratic hassles and
corruption, private enterprise is discouraged.
The shastras, dealing with political economy,
say that one should not live in countries where the productive classes are not respected
and honoured. It is said that farmers, traders, and artisans (in modern times
industrialists also) should be encouraged. The government should make every effort to
facilitate the efforts of such productive classes. Unfortunately, the government of the
day has made the life of the productive classes more difficult by their policies and laws.
Disincentives (corruption included) to the
propertied class have increased in our democracy. The sorry state of our economy is proof
of the negative effect of such disincentives. Accumulation of wealth is necessary for the
prosperity of any nation, and the people. Accumulation of wealth is the prime motive for
all industry, trade and services. When industrious people are directly and indirectly
discouraged, the entire nation suffers. It is said that a system that cannot protect the
rich, who are few, cannot also protect the poor, who are many. Depriving citizens of
property through the enactment of unjust laws and usurious taxation, discourages
accumulation of wealth. Depriving people of their wealth whether by pointing a gun or by
use of laws is fleecing the people of their rightfully acquired wealth. Deprivation is
deprivation no matter whether it is done legally or otherwise.
The right to be rich must not be curtailed,
if the people and the country are to be prosperous. The right to property is a fundamental
right. Our current democratic Constitution has adopted this principle from the
Constitutions of other countries. However, from what has in fact transpired in this
country, the provision on the right to property seems to have no substance, because the
capable are not given full freedom to be rich. Article 17 of our Constitution provides the
"Right to Property" as one of the fundamental rights. Clause 1 of this Article
states: "All citizens shall, subject to the existing laws, have the right to acquire,
own, sell and otherwise dispose of, property." The phrase "subject to the
existing laws" in Clause 1 has become a tool to go against the sprit of this Clause.
The law to take away fifty percent of the tenanted land without compensation to the
landlords was enforced retroactively.
The recent law on land ceiling is intended to
prevent the large landowners from owning land beyond the stipulated amount. This law is
also to be enforced retroactively. In Nepali Democracy, it seems the government does not
know that laws to be legal, just and democratic cannot be enforced retroactively.
Retroactive laws are also being enforced for the sake of raising taxes on houses that were
built before the concerned laws were enacted. Demolition of legally built private houses,
without compensation outside of the Kathmandu Valley and with compensation within, has
gone against the provision of the right to property. If the houses were built legally,
what right did the government have to deprive the citizens of their property? The houses
in Kathmandu that were not demolished during the Panchayat period (during the first SAARC
Summit here) were demolished in this democratic period, on the pretext of preparing for
the SAARC summit. It seems, plebeians in authority tend to be more totalitarian than born
autocrats in authority!!
The Constitution does not grant any authority
to deprive the citizens of their property or even to create any kind of hindrance in the
use of private property, except in the public interest. Clause 2 of Article 17 explicitly
states: "The State shall not, except in the public interest, requisition, acquire or
create any encumbrance on, the property of any person." It seems the catch in this
Clause is the phrase, "except in the public interest." What is the public
interest? Are the whims of the rulers the public interest? If the legally built houses
were against the public interest, why did the authorities give the permission to build the
houses in the first place? Should the error of the officials be reason for penalising the
people and depriving them of their property? The principle of equality before the law is
also ignored. Why were the owners of the demolished houses outside Kathmandu Valley not
given compensation, while those within the Valley were provided with such compensations?
Article 11, Clause 1 of our democratic
Constitution states: "All citizens shall be equal before the law. No person shall be
denied the equal protection of the laws." So why the discrimination between those
within the Valley and those outside? The discrimination seems to indicate that in the
minds of our democratic rulers, those outside of the Valley are not citizens of this
country! Further, Clause 3 of Article 17 states: "The basis of compensation and
procedure for giving compensation for any property requisitioned, acquired or encumbered
by the State in the Public interest, shall be as prescribed by law." Given this
Constitutional provision, one is forced to wonder how the "basis of compensation, as
prescribed by law" was different for those within the Valley and those outside.
Should not the law be equally applicable to all? Previously, the by-law mentioned that no
constructions were to be made within a space of 15 meters on either side from the centre
of the roads. But suddenly a new rule has emerged and the previous 15 meters have been
changed to 25 meters for the highways. It is said that the houses and shops that were
legally constructed beyond the 15 meters range are now being demolished and the by-laws
are applied retroactively!
Laws and by-laws are frequently being changed
and applied retroactively. So, legally acquired properties are constantly facing such
legal threats, and hindrances. When people are never assured of enjoying their wealth, and
are constantly in a state of uncertainty, capital outflow from the country is natural. So
what is the use of "the Right to Property" being enshrined in our Constitution?
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