EVOLUTION
OF RIGHT TO PROPERTY IN INDIA
By- Abhinav Bishnoi*
ABSTRACT:
Right
to property which was earlier a fundamental right was then later converted into
a legal and constitutional right. It is often described as the “least
defensible” right socialist democracy. The interrelation and conflict between
the individual right with social welfare and economic reform with judicial
concern for fairness is the plot of this conversion. But what were the reasons
behind this big constitutional change? What changes and amendments did the
Indian Constitution faced and the effects in the society due to those changed
are the major areas this research paper is concerned about. These questions
will be answered with the help of many case laws as well. Not only India but
other countries concerns about the same will be observed and that how the Indian
Judiciary and the Indian Parliament had the tussle. The research is doctrinal
in nature and the paper is been divided into many chapters for better
understanding.
STATEMENT
OF PROBLEM:
The paper will be dealing with the problem came into
the light which forced the parliament along with the judiciary to change the
validity of the earlier Right to Property from its recognition of the fundamental
right to a legal and constitutional right. Why did the 44th
amendment came into force and why article 19(1)(f) was removed and article 300
A came into force and why article 31 has to bear so many amendments. What was
schedule 9 of the Indian Constitution. How the journey of right to property
started from The Governments Act 1935, then to the constituent assemble
debates, then the period between 1949 to 1978 and then contemporary India with
respect to Right to Property. How and why it all happened and what all affect
it came in along with itself from such changes in the Indian Constitution.
There are many Supreme and High Court judgements which came in for and some
against the parliamentary laws.
INTRODUCTION:
“That the
government can scarcely be deemed to be free where the rights of property are
left solely dependent upon the will of a legislative body without any restraint”
– Joseph Story[1]
Until 1978 there were two articles in the constitution
of India, namely article 19 (1) (f) and Article 31 which protected the
fundamental right to property of every person within the boundary of India. The
constitution of India is taken its foundation from The Governments Act 1935, in
section 299 of the same it expressly secures the right to property and
non-exploitation of property without compensation for any nonpublic purpose.
Even Universal Declaration of Human Right’s (1948) article 17 recognizes the
right to private property to which India has signed the Declaration. Even the
framers of The Indian Constitution have attached sufficiently to the property
to incorporate it into the fundamental right of the Indian citizens.
Before 1978 the Government of India whenever tried to
occupy the private land for any public welfare or any other purpose the Indian
Citizens challenge such acquisition in the court of law based on article 32,
that their fundamental right got violated under section 19(1)(f) and Article
31. Article 19(1)(f) talks about the right to acquire, hold and dispose of any
property and article 31 talks about the right against deprivation of his
property. Which then later under the amendment act of 1978 (44th
constitutional amendment) got repealed. So, in the present scenario, we have
article 300(A) in part XII of the Indian Constitution, which provides that no
person shall be deprived of his/her property except by the authority of law.
Then the Right to Property was made a legal right. Not only this but schedule 9
was also made the parliament which got immune from the power of judicial review
as said in the landmark judgement of Kesavananda Bharati v. Union of India
1973. It meant that no one can challenge the law which is provided in the
schedule 9 of the Indian Constitution, irrespective of whether it violates the
fundamental right or not. So, if we look into the schedule 9 of the Indian
Constitution, we will be found that most of the acts are related to land
reforms and acquisition. But in 2009 in the I.R. Cohelo case, the
supreme court has finally said that the act in schedule 9 can be challenged if
it violates the fundamental right of the person.
Right to Compensation came into force after 44th
amendment as per article 30 (when the state acquires the property of a minority
educational institute then the compensation is being granted to the owner) and
article 31(a) (when the property is acquired by the government which is held
under cultivation and the land is within statutory limits, then the
compensation to be granted by the government). Then there comes the exception
to the fundamental right under Article 31(a), 31(b) and 31(c). these articles
are very vast especially the article 31(c), which will be dealt with in the latter
part of the paper.
The paper will also see the relation of the economic
welfare of society versus the individual right. The scope and limitation of today’s
right to property that the people hold. What is the meaning of property in the legal
sense and how article 19(1)(f) and Article 19(5) holds their power and validity
in contemporary India.
RELATION
BETWEEN RIGHT TO PROPERTY AND EQUALITY
The
power of eminent domain of the state is a sovereign right which can be acquired
by accessing or reasserting the people’s private property temporarily or
permanently by way of compensating them for the sake of public good. In
Jilubhai Nanbhai Khachar a division bench of the Supreme Court elaborately
considered the use of them and for the full the purpose of life and also
considered the ingredients of ‘eminent domain’ in article 300(A)[2].
It
has remained a very moot point that whether the land acquisition is legal or
illegal by the government. This point has got its roots from the ‘Land
Acquisition Act’ 1894, which enabled the government to access the private land
for the purpose of making industries under the notion of the greater good. The
Government of India Act 1935 was then further entailed the bifurcation formula
which then the Constituent Assembly decided to remain in the Constitution,
because of the continuous misuse of the Government of their power to acquire
the private land led to the protest of the people.
The
case law which made the first constitutional amendment was the West Bengal v
Bela Banerjee, which raise the question of the constitutionality of the
particular act but also it limited the ceiling of the compensation to the
market value of the land acquired. Due to which 2 articles came into effect 31
A and 31 B, that no law which acquires the land be violative of part III of the
Indian constitution. Which further led to the case of Shankari Prasad Deo v
Union of India, for the challenged, but the SC declined the appeal. Later the
fourth amendment act came into effect, which said that the court cannot deal
with the inadequacy of the compensation provided to the people by the Indian
Government.
Seventeenth
amendment act further made which said that the law depriving the person of
their property can be examined by the judiciary for the reasonableness of the
particular law fir the small farmers. In the case of Sajjan Singh v State of
Rajasthan, the court upheld the validity of the said amendments, which was that
the compensation of the land should not be less than that of the market value.
But finally, in the Golaknath v State of Punjab, the SC declare the
above mentioned amendments act as invalid and stated that the state cannot take
away the personal property and thus the fundamental right by making laws in the
exercise of their constituent and legislative powers.
Then
in bank nationalization case, the SC said that adequacy of the compensation is
justiciable, which led to 25th amendment act and word ‘compensation’
was replaced by ‘amount’ and article 31 C came into force.
RESTRICTIONS
TO RIGHT TO PROPERTY
The
word ‘interest of general public’ of article 19(5) was held similar to term
‘public interest’. It does not mean the interest for the all citizen of the
nation but only referred to the particular section of the society or a
particular class of the society. The removal of serious grievances from the
society was a matter of public interest for a particular section of the society
and not for the whole of the Indian citizens[3].
The
term public interest was a very broad term, therefore, a law has to be there
for the safeguarding of the interest of the weaker section of the society or
law to protect the grave nuances was held to be in the public interest[4]. The safeguarding of the right to compensation
doesn’t seem working well in many cases, like in Narmada Bachao Andolan v Union
of India, the government is only providing with the cost of the land at market
price but who will take care of the long-term benefits of the people, for the
purpose of the resettlement and rehabilitation. A person even cannot file the
petition on the basis of Article 32 now for the infringement of the fundamental
right for taking the proper remedy in the case, the only option left with them
is now to file a case under article either 226 or against the government. In Minerva
Mills case the SC gave effect to the policy of the state as per article 39 B
and C and gave the protective umbrella to article 31 C, and held that the
article 31 C is very much valid and that the people cannot challenge the
validity of the law on the ground of violation of article 14 and 19 of the
Indian Constitution.
ARTICLE
31(A), 31(B) AND 31(C)
Article 19(1)(f), which state that every citizen has
the right to hold, acquire and dispose of his or her property and article 31
said that no person shall not be deprived of his/her property, which was later
repealed by the constitutional amendment 44 of 1978. So, under 44th
constitutional amendment act of 1978, the Supreme Court and the Indian
Parliament repealed Right to Property as a fundamental right and added a new
article under 300(A) in part XII of the constitution which says that no person
shall be deprived of his/her property except by the authority of law. So, if
the parliament can make any law, which deprives a person of his property then
that will be legally valid. So now the Right to Property only remained a legal
and constitutional right rather than a fundamental right[5].
But in part III of the constitution, we could see two
such provisions which will guarantees the Right to Compensation against the
land in case of acquisition or requisition. Like article 30, when the state
acquires the land of a minority educational institute and article 31(A) when
the state acquires the land held by a person under his personal cultivation and
the land is within the statutory ceiling limit; the compensation will be
granted by the government.
EXCEPTIONS TO THE FUNDAMENTAL RIGHTS ARE AS FOLLOW:
1. Article 31(A)
saves five categories of laws from being challenged on the ground of the
fundamental rights as under Article 14 (which is Right to Equality) and 19
(which is regarding certain Rights like – to freedom of speech and expression,
to assemble peacefully and without arms, to form association and unions, to
move freely throughout the territory of India and to reside, to settle in any
part of the territory of India and to practise a profession or to carry on any
occupation, trade or business).
· Acquisition of the
estates and related rights by the State;
· Taking over the
management of the properties by the State;
· The amalgamation
of the corporations;
· Extinguishment or
modification of the rights of directors or shareholders of the corporations and
· Extinguishment or
modification of mining leases.
So, they cannot be challenged before the court of law,
because the article 31(A) safeguards them[6].
2. Article 31(B) - the
validity of certain Acts and Regulations. It says that any act or law made by
the Indian Parliament and that provision is been kept in Schedule 9 of the
Indian Constitution, then any such Law and Act cannot be challenged before the
court and the court as well does not hold the power of Judicial Review against
such Law and Act, even if it violates the Fundamental Rights as well. Thus, the
scope of Article 31(B) was much wider than that of Article 31(A). in the
Kesavananda Bharati v State of Kerala 1973, even the Supreme Court said that
provision in the 9th schedule is free from judicial review and
cannot be challenged before the court of law. But in 2007, in I.R. Cohelo case,
the Supreme Court held that if any provision of the 9th schedule
violates the Fundamental Right, then that can be challenged in the court of
law. And the court also said that the schedule will not get any ‘blanket
immunity’ from Judicial Review as well. So, any law placed in the 9th
schedule after 24th April 1973, is open to challenge in the court of
law if violates the fundamental right guaranteed under article 14, 15, 19 and
21 of the Indian Constitution (which forms the basic feature of the
Constitution)[7].
3. Article 31(C) –
Saving of laws giving effect to certain Directive Principles. No law that seeks
to implement the socialist directive principles specified in the Article 39(b)
or 39(c) shall be void on the ground of contravention of fundamental rights conferred
by Article 14 or Article 19. So basically, fundamental rights and d DPSP have a
different definition of law in some context. For e.g. as per DPSP there should
be Universal Civil Code, which will be that the marriage procedure and other
practises of all the religion shall be same. But it the violation of the
fundamental right under Article 25 (Right to follow and practise religion).
Therefore, in order to give importance and protection to the DPSP, this article
was formed. No law containing a declaration that it is for giving effect to
such policy shall be questioned in any court on the ground that it does not
give effect to such policy. That if a state makes a law to impose socialist
directive principle and violated article 14 and 19, then no one can challenge
that the law even if someone finds that the particular law is not to promote
socialist directive principles.
In 1973 the Supreme Court in Kesavananda Bharati case
held article 31(C) unconstitutional on the ground that Judicial Review is the
basic feature of the Constitution.
The 42nd amendment act of 1976 (during the time of emergency) extended the scope of the above first provision of the Article 31(C) by including within its protection any law to implement any of the Directive Principle specified in Part IV of the Indian Constitution and not merely in Article 39(b) or (c). However, this extension was declared unconstitutional and invalid by the Supreme Court in the case of Minerva Mills (1980)[8].
CONCLUSION:
The concept of Right to Property remained a question
of discussion in India. There are many ways of looking at it. But I personally
feel that for people’s sake the government should have the upper hand on the
right of property for the public welfare and greater good than that of the
individual good. The economic concept comes into play in this issue. The notion
of property is developed from countries to countries. But India as a country
has understood it that people as an individual will not always realise the fact
of using the property for a greater good. The government by having the access
over the land will know how to develop the nation as they are answerable to the
public and therefore the efficient use of the land will become possible.
The relation between personal liberty and the Right to
Property is very closely related. Article 21 of the Constitution which allows
the people right to live life with dignity is the one which should be looked
upon like this that it constitutes the principle of distributive justice. One
cannot hamper the development of the nation.
To serve the better purpose for the common good it
becomes an important distribution of resource and material should be in one
hand. But in the present scenario, there has been much ill use of hr same by
the government, as seen in the PIL (Public Interest Litigation) of Sanjeev
Aggarwal v Union of India, the government is taking away the Right to Equality
and against the compulsory land acquisition of the poor for the purpose of
making Special Economic Zones or Narmada Dam like projects. However, the SC
dismissed the petition on the merit in order to avoid any change in the law
declared in the Keshavananda Bharti case.
Also read - How to Save Money in Transfer of Property
*
III Year, B.A.LL.B(Hons), Institute of Law, Nirma
University.
[1] “History of the Removal of the Fundamental Right to Property” - Sushanth
Salian
[2]
https://timesofindia.indiatimes.com/india/Right-to-property-is-a-constitutional-right-Supreme-Court/articleshow/8019243.cms
[3] Constitutional
Battles on Right to Property in India: Anukriti Jain
[4]
http://www.legalserviceindia.com/legal/article-48-right-to-property.html
[5] History of
the Removal of the Fundamental Right to Property, by Sushanth Salian
[6] Fundamental Right, a
study of their interrelationship, by P. Ishwara Bhat, published by Eastern Law
House.
[7] Indian Constitutional
Law, by M P Jain, published by Lexis Nexis
[8] Evolution of Property Rights in India, lesson from the past, possibilities for the future, by Madhumita Datta Mitra.
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