Self-appointed Trustee of Natural Resources

Trusteeship and the power of eminent domain were alien to Indian thought. The legal framework governing ownership and use of natural resources of ancient India harmonised the claims of society with that of collectives and individuals. The makers of the Indian Constitution ignored this rich heritage. To this day, both the Indian Constitution and jurisprudence recognize the Power of Eminent Domain of the State and the alienation of customary and communal rights of Indian people to manage their land and natural resources.

Trusteeship and the power of eminent domain were alien to Indian thought. The legal framework governing ownership and use of natural resources of ancient India harmonised the claims of society with that of collectives and individuals. The makers of the Indian Constitution ignored this rich heritage. To this day, both the Indian Constitution and jurisprudence recognize the Power of Eminent Domain of the State and the alienation of customary and communal rights of Indian people to manage their land and natural resources.

In India, land is among the most important economic resources and assets that people possess. Without land, there is no livelihood for millions. But in equal measure, land is valued as a symbol of belonging and stability. It has been and still is the very basis of social organisation in the country.

Today, a large number of people, both rural and urban, are being systematically alienated from their lands, homes and livelihoods. In many instances, entire communities such as the Pauri Bhuiyan (see box), are losing their lands and natural resources because of the greed of mining monopolies. People are being dispossessed from their lands by those with political power and money with the full support of the state apparatus. This is made possible by the collusion of the country’s elite and foreign investors and using ambiguous land laws; a judicial system that is a legacy of colonialism, hostage to political and financial power and unable to protect the rights of citizens; short-sighted economic development plans that seek to facilitate the growth of private monopoly capital at any cost, and; shocking apathy by political parties, who facilitate and share in the massive loot of land and resources. Like land, the exploration and consumption of other natural resources like minerals, is as old as civilization itself. Without the proper management of natural resources, a sustainable future is unthinkable. Claims over ownership and management of land and natural resources have not been settled peacefully. They have been fraught with tension and contradictions.

The Pauri Bhuiyan tribe has resided on the Kandhahar mountain-tops in Odisha, an area rich in mineral resources, since time immemorial. In the 1990s, many families of the Pauri Bhuiyan were forced to come down from the mountaintops and settle in the plains on the pretext that their shifting cultivation damaged the forests. This was done at the behest of mining interests. However, the Pauri Bhuiyan’s methods of cultivation regenerate the forest instead of damaging it – in obvious contrast to mining. Despite their symbiotic and nurturing relationship with the forest, the Pauri Bhuiyan are routinely and viciously persecuted by the local administration.

Present situation
The Indian State claims that it has the mandate to allow the loot and plunder of India’s natural resources by Indian and foreign monopolies as well as the public sector. The Constitution allows the Indian State as the trustee of the people to sell natural resources to anyone without any formal consent from the people. In the rulings on the 2G spectrum allotment, pricing of natural gas extracted by ONGC, Reliance Industries, British Petroleum and others, the coal mining permits issued, etc, the Supreme Court declared that natural resources should be distributed according to the “public trust doctrine” and Article 14 of the Indian Constitution, which says: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The Court accepted the principle that the Indian State as the “trustee” of the people had the right to sell the land and natural resources of India to anyone including multinationals, provided it treats them equally and the sale is transparent. It declared that instead of first-come-first served basis, the central government should have distributed the natural resources through auction or other means. The recently promulgated “Right to Fair Compensation in Land Acquisition, Rehabilitation and Resettlement Act, 2013” allows private players to acquire land from agricultural producers and urban residents with the of the state, as long as it is done at a “fair” price!

Articles 31A, B and C in the Indian Constitution dealing with the compulsory acquisition of property by the State give the Indian state the right to own and manage the land and natural resources of the Indian people without their formal consent on how to use these resources in their best interest.

The judgments on land and natural resource ownership have quoted Article 39 (b) of the Constitution which says: “The State shall, in particular, direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;” The “common good” in the Constitutional Article has its basis in the Power of Eminent Domain of the British colonial State according to which all natural resources belonged to the State and that the State will act as a “trustee” of the people towards their “common good”. In this case, the “common good” was the license to exploit the airwaves and coalmines to make maximum profits, while pretending that it is benefiting the people. It is important to note that the notion of State as a trustee is alien to Indian political theory. When a State is accepted as a “trustee”, it justifies all its activities, its constitution, its institutions, its superstructure in the name of the people, even if it is actually working for the benefit of a handful of monopolies and big capitalists, since there is no criterion to verify whether the state is working for the ‘common good’ or not and neither is there a recourse to the citizens if it is not. The concept of trusteeship implies that people should “trust” that the state is working for common good because it simply claims to do so without any check or mechanism to set it right if it is off course. Trusteeship expects the citizens to have faith that the state will be able to regulate the selfishness of the capitalist to make maximum profit and somehow subserve his capitalist greed to that of the interests of society (See box).

The present legal framework relating to land and natural resources in India, which gives authority to the State to act as a trustee, has its origin in the colonial period. This has been carried forward substantially in the postcolonial period. The legal framework underlying the formal law regarding natural resources is the Anglo- Saxon legal system, which remains the foundation of the Indian legal system today. As M.S. Vani points out in her paper on “Customary law and modern governance of natural resources in India…”, under this system, the three sources of law are statute, precedent and doctrine in that order of precedence, with statute having over-riding authority over the other sources. Wherever precedent or doctrine contradicts statute, however old the former may be, the latter will prevail. The modern legal framework in India is entirely statute-centred. This is of particular importance in the realm of ownership of natural resources in India.

Whereas the in pre-colonial times, use of natural resources was guided by an entirely different legal framework. The governance of land and natural resources in earlier times, which was essentially done by local communities, had its legal basis almost entirely in customary law. In the traditional Indian legal system, custom constituted a source of law independent from all other known sources such as religious or ethical doctrine, texts, or royal decrees.1 

“Trusteeship provides a means of transforming the present capitalist order of society into an egalitarian one. It gives no quarter to capitalism but gives the present owning class a chance of reforming itself. It is based on the faith that human nature is never beyond redemption. It does not recognize any right of private ownership of property except so far as it may be permitted by society for its own welfare. It does not exclude legislative regulation of the ownership and use of wealth. Thus under State-regulated trusteeship, an individual will not be free to hold or use his wealth for selfish satisfaction or in disregard of the interests of society”.
Mahatma Gandhi

The superimposition of the Anglo-Saxon legal system over what existed earlier has caused a constant tension between custom and formal law with respect to ownership and use of land and natural resources today. And this is reflected in the growing struggles throughout India over the question of who is really the rightful owner of the land and natural resources.

Traditional Indian legal framework
In traditional Indian jurisprudence, three sources of law were acknowledged – Dharma,
Royal Decree and Custom. Generally Dharma was thought to override all other sources of law. The rule of Dharma did not become ‘law’ until it became a practice and was accepted by the community as a customary rule. However, a delicate balance was maintained among these different sources of law, which ensured a specific authority for each, vis-à-vis the others. In a way, customary law was itself a source, and a product of dharma. The ancient Smriti writers, conscious of changing the needs of society, made Sadachara, i.e., good custom or practice, as a source of law.

Robert Lingat, in his authoritative book on “The classical law of India” explains the difference between western and Indian juridical systems. In the western juridical system, a written law is understood to express the will of all. Its authority comes from its constitutional validity and not from the power of usage or custom. So, what is just is what conforms to law. What is unjust, is what is contrary to law. It is a system which fits an individualistic society.

In contrast, in the classical legal system of India, law as defined in the smritis, is that which rules human activity. No one can escape from the law. But it does not impose itself on the people. It shows the way that one should follow.

As pointed out before, dharma stood above all other sources of law. It was generally accepted that the King should not and cannot legislate in the domain of dharma in general. Also Dharma and established custom were usually considered as inviolable2. A politically wise King ruled within the confines of dharma and was sensitive to customary laws. Rama Jois confirms this by pointing out that “dharmashastras did not confer on or recognize any legislative power in the king”.3

Any matter under dispute was to be judged according to the 4 bases of justice: Dharma – based on truth, Evidence–based on witnesses, Custom – based on tradition accepted by people, Royal edicts – i.e. law as promulgated.

So, we can see that customary law and rights had an important place in the Indian legal system prior to the introduction of Anglo- Saxon law and there was a constant attempt to harmonise dharma, which laid down rules for society, with those of customary laws, which related to the interests of collectives and individuals.

Ignoring this tradition which helped to resolve conflicts over land and natural resources over centuries, the Indian Constitution upholds the western legal framework, where customary law has been relegated a status subsidiary to statutory law. With the continuous shift in rights and powers over natural resources in favour of the central State, the custom of local communities has negligible authority now. The interests of a few override the interests of society and collectives.

For example, the Pauri Bhuiyan tribal community who have been living in the Kandhadhar mountain ranges in Odisha over many millennia, as well as the people of Odisha, have not been able to prevent the displacement of the tribals that is being done by using the false accusation that their shifting cultivation has damaged forests. After displacing the people, mining leases have been given to many companies including POSCO, over nearly 144,000 hectares of land.

This is a Fifth Schedule area4 and is entitled to have the Panchayat (Extension to Scheduled Areas) Act as well as the Forest Rights Act implemented. But these Acts have not prevented depriving the tribal communities of natural resources belonging to them.

This is just one instance where millions of peasants are being deprived of their land by real-estate sharks, mining corporations, highway projects, industrial corridors, special economic zones, and so on.

To reiterate what we discussed earlier, in traditional Indian statecraft, the King did not have the kind of arbitrary powers that we see in the present Indian State. In his insightful work on the “Legal and Constitutional History of India”, Justice Rama Jois makes the important observation that the ancient dharmashastras declared that dharma, which included the ‘law’ was binding on the king as well. This is probably the most important distinction between the concept of kingship in India and that in western countries. According to the western concept, the king was the fountain of all the three important limbs of the State, viz. the Legislature, the Executive and the Judiciary5. Whereas in India, laws were established by the dharmashastras themselves, developed over centuries based on the tradition and custom of people. The King did not have absolute and arbitrary powers over common land, natural resources and mineral wealth in the manner that we see today, where the central State can change land use and privatise the exploitation of natural resources with absolute powers

At the time of the Arthashastra, more than two millennia ago, reciprocal rights and duties characterised the relationship of the State with those who till the land, and those who engage in other productive activities.

The State was duty bound to ensure the conditions necessary for the producers of wealth to prosper and continue to produce more. Only then did the State have the right to collect a portion of the product as tax revenue. The producers, on their part, had the right to receive State support in the form of security over land, irrigation facilities, pasture lands, and other conditions required for agriculture. They were duty bound to turn over a prescribed portion of their product as revenue to the State.

Before the advent of the British colonialists, land was commonly administered by village communities. Land could not be bought or sold or its use modified without sufficient reason. Even the King had no authority to change land use or to deprive communities of their land without reason. Only in cases where lands were neglected did the king have the right to hand them over to others who would take care of them. The King was expected to ensure the wellbeing of peasants through expansion of irrigation and public works. The tax rate was fixed according to the productivity of land and the capacity of peasants. Village communities had rights over common land and there was considerable harmony in the relationship between man and nature.

Colonial law
The elaborate treatment of the difference between the Indian and colonial legal framework, the former based on dharmashastras and the latter on the power of eminent domain, in the earlier pages was necessary to appreciate the drastic changes in laws that dealt with land and natural resources that the colonialists engineered with devastating effect. Even during centuries of Mughal rule, this legal framework based on the dharmashastras was not tampered with.

Before the British colonialists brought the Indian subcontinent directly under the Crown, fragmentation of jurisdictions and extensive delegation to local authorities continued under Mughal rule. Marc Galanter in his excellent treatise on “The displacement of traditional law in modern India” describes the system that existed at that time and the systematic way in which colonialists overturned the legal system.

According to him, the existence of dharmshastra, a refined and respected system of written law, was not amenable for the colonialists to build a unified national legal framework. The system allowed for change but did not impose it. The relation of the “highest” and most authoritative part of the legal system to the “lower” end of the system was not that of superior to subordinate6.

Under Mughal rule, people belonging to the Muslim faith were governed by Muslim law in criminal, civil and family matters. Hindus were allowed their own tribunals in civil matters. A hierarchy of courts and rights of appeal existed. However, Muslim rulers never attempted to control the administration of law in villages. This applied to all matters including the use of land and natural resources. Thus, the special status enjoyed by customary laws continued and was not undermined during Mughal rule.

The discussion on the special status given to customary laws and the existence of three sources of law should not be construed as a chaotic arrangement impeding the progress of society. Far from chaos and conflicts, periods of significant strides in the development of social productive forces in pre-colonial India coincided with peaks in the degree of centralization of social production over large territories; maximum progress was achieved when centralization of power and of economic organisation was achieved in harmony with dharma and without any unnecessary contradiction with local customs. In contrast, the British Raj centralized power by negating everything else, including the basic principle that nobody can claim rights without acknowledging duties, not even the Emperor.

The British colonialists initiated a process that might be termed “expropriation of law”, which made the power to find, declare and apply law a monopoly of the government. This expropriation was done in three stages. In the first stage, Warren Hastings in 1772, introduced a system of courts for the hinterland of Bengal. The second period which began approximately in 1860 involved extensive codification of law. The third stage was after independence when further consolidation of the western legal system took place and a unified judicial system was imposed on the whole of India, in the style of the “modern” Anglo-Saxon legal system.

The new system that the British East India Company instituted in agrarian relations is the foundation from which the present day industrialists and private business houses draw inspiration in depriving the peasantry of their land to set up SEZs, industrial corridors and industrial estates. The Permanent Settlement Act of 1793 enacted by the colonial Governor-General, Cornwallis, introduced private property in land and provided hereditary rights to zamindars to collect taxes from productive land. In this process, the British colonialists created a new social class of landlords who would be loyal to the colonial government and work for its consolidation. The ryotwari and mahalwari systems were introduced in other parts of the country with similar intentions.

The Permanent Settlement Act was based on the British concept of the Power of Eminent Domain. This concept has its origins in feudal England of the 11th century, when William the Conqueror seized virtually all lands of England and gave fiefs of land to Norman and Anglo-Saxon vassals who were loyal to him and who would regularly collect taxes from the people and pay the King.

The 1935 Government of India Act drawn up by the British colonialists in consultation with their Indian loyalists, and the present Indian Constitution which largely emerged from it, sanctify this colonial concept of the Power of Eminent Domain. Private property in land and the right to sell and buy land and change its use, which were codified in various colonial Acts such as the Land Acquisition Act of 1894, the Forest Act of 1878 and others were based on these western concepts alien to Indian traditional thought and custom.

These changes by colonialists did not go unchallenged. There was stiff opposition to these changes and continued rebellions among peasants and adivasis from the late 18th century onwards. They directly and indirectly expressed this opposition to the new law on land and other natural resources. The present opposition among peasants and adivasis is a continuation of that struggle.

One example was the peasant uprising in east Bengal in the first half of the 19th century. Titumir and Dudu Mian organised a large peasant rebellion against the East India Company and its Zamindars. They claimed that, “the land belongs to God, we peasants are all children of God. It is our privilege to enjoy its fruits and it is our duty to look after it. Who are the Firangis and these Zamindars to appear on the scene now and claim ownership of the same?”

What is clearly evident is that trusteeship and the Power of Eminent domain were alien to Indian thought. The legal framework governing ownership and use of natural resources of ancient India harmonised the claims of society with that of collectives and individuals. The makers of the Indian Constitution ignored this rich heritage. To this day, both the Indian Constitution and jurisprudence recognize the Power of Eminent Domain of the State and the alienation of customary and communal rights of Indian people to manage their land and natural resources. Even the recent lofty sounding legislation, “Right to Fair Compensation in Land Acquisition, Rehabilitation and Resettlement Act, 2013” has not made a break with Anglo-Saxon concepts of ownership and use of land and natural resources.

It is a fact that the present Constitution, legislative framework and mechanisms work to preserve the monopoly of a few powerful business houses and multinationals over the huge land and natural resource base of India. While proclaiming itself to be the trustee of the Indian people, the State exercises arbitrary power to hand over oil and gas wells, iron ore, bauxite, coal mines and the airwaves to any private company that it chooses. Private property rights over land and natural resources are legally recognized as per colonial laws, while totally negating ancient traditions of common rights and duties over determining the usage and exploitation of a gift given by nature. Within this framework, the people have been completely marginalized in having any say over the use and management of these resources.

The State has set up a legislative framework and regulatory mechanisms with the aim of resolving contradictions among the most powerful interests in laying claim to and using these resources for maximum private gain. But it has been completely nonchalant towards maximising the use of these resources in the best interests of the people, in harmonising claims between various communities, and in harmonising the overall general interests of society with those of the individuals and collectives within it.

The regime of management of land and natural resources sanctified by the present Constitution and the legal framework built on its foundations are a legacy of our colonial past; they are irrelevant and anachronistic since they do not have the interests of people at their core. How do we get rid of this legacy?

Where should sovereignty over land and natural resources lie? What should be the principles that govern their equitable use and distribution? These questions can be resolved only by getting the Indian Constitution and the jurisprudential framework rid of their colonial prejudices. Can this be done by amendments, new legislation and regulatory frameworks? It does not appear so. Several amendments to the Constitution since its inception, including amendments to colonial laws and enactment of new laws, that still rest on old conceptual foundations, have not been able to stem the tide of discontent that is sweeping the entire length and breadth of the country on this issue.

A new Constitution and jurisprudential framework have to be built by breaking away from Eurocentric thought, and by modernising our ancient wisdom about the use and distribution of land and natural resources in consonance with the needs and aspirations of the people today.

S. Raghavan is the editor of Ghadar Jari Hai. He has a deep interest in India’s cultural,economic and social past, present and future.


  1. M.S. Vani, Development Centre for Alternative Policies
  2. Lingat, Robert (1973). The Classical Law of India, p. 224-225
  3. Rama Jois. Legal and Constitutional History of India. p. 13
  4. The Fifth Schedule of the Constitution of India deals with administration and control of scheduled areas and scheduled tribes in certain states
  5. Legal and Constitutional History of India: Ancient Legal, Judicial and Constitutional System, Justice M. Rama Jois, Universal, p. 13
  6. Marc Galanter. “Displacement of Traditional Law in India”. Journal of Social Issues


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