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).
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:
In the end, the Indian Supreme Court struck down the enclosers’ appeal with a clear declaration that the commons must revert to the commoners:
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.