By Shivali Bansal
In India there was a demand for the removal of the fundamental right to property from Part III of the Constitution. It was argued that the retention of it as a fundamental right leaves it to the judges rather than to the Parliament to decide the quantum of compensation payable when property is acquired for public purposes. Secondly, it was argued that the implementation of the Directive Principles of State Policy in the Constitution is rendered impossible by the right of property in India.
Property under Indian Constitution means any proprietary interest that can be acquired, disposed or taken possession of. It is not only tangible but also includes any bundle of rights which the owner can exercise to the exclusion of others. Earlier Supreme Court was of the view that it is an abstract right only and not concrete but later in Commissioner, Hindu Religious Endowments v. Swamiar, it accepted right to property as a concrete right also.
So in the text ahead we would finally trace how the above two arguments have actually amounted to the deletion of right to property from Part III and it becoming a legal right. To start with:
The Constitution (First Amendment) Act, 1951
The introduction of the First Amendment Bill was witnessed by the Provisional Government because general elections took place in 1952, the Bill basically centered around the “certain difficulties that had been brought to light by the judicial decisions and pronouncements specially in regard to fundamental rights”.
After independence India’s political leaders and planners embarked on social and economic reconstruction of Indian society by first of all removing the evils of zamindari system. The First Five Year Plan was in support of this and it excluded the presence of intermediaries and had given the land to tiller. Consequently land reforms were enacted in UP, Bihar and elsewhere.
But at the same junction of time the Apex Court in State of Bihar v. Kameshwar held that the Bihar State Management of Estates and Tenures Act, 1949 was void on the ground that compensation provided was no compensation.
So as to nullify the effect of this judgment and also to uphold the validity of Zamindari Abolition Regulation, the First Amendment was done and Pt. Jawaharlal Nehru, the then Prime Minister, had enunciated the doctrine of Parliamentary Supremacy during the Constituent Assembly debate on compensation.
“No Supreme Court and no judiciary can stand in judgment over the sovereign will of the Parliament representing the will of the entire community. If we go wrong here and there it can point out, ultimately, where the future of the community is concerned, no judiciary can come in its way, and ultimately the whole Constitution is a creature of Parliament.”
Therefore the First Amendment added to Article 31 two explanatory clauses, 31-A and 31-B, to fully secure the abolition of zamindari.
The Constitution (Fourth Amendment) Act, 1955
Right to property was originally incorporated in Article 19(1)(f) of the Indian Constitution which declared that all persons shall have the right “to acquire, hold and dispose of property” along with Article 31 which provided certain safeguards against the compulsory acquisition of individual properties. It was based on the English concept of private property and was modelled on the basis of Section 299 of Government of India Act, 1935.
As regards the constitutional provision relating to it, Article 19(1)(f) was subjected to reasonable restrictions under Article 19(5). This way the State acquired the right to pass any law restricting, modifying and curtailing the right of ownership in property without being liable to pay compensation. It also provided that there can be no taking or acquisition till the time the title is transferred to the State.
Then came the important case called the Vajaravelu Case in which Land Acquisition (Madras Amendment) Act, 1961, provided for land acquisition for housing scheme and laid down principle for fixation of compensation.
Now the question in the present case was that the persons who were getting deprived of their property were given lesser amount of compensation than what was just as laid down in Bella’s case. So the Supreme Court was barred to fix the compensation. It said it can still get into the question of reasonable classification under Article 14 and also J. Subba Rao said that if the compensation was illusory or if the principles prescribed are irrelevant to the value of the property or about the time of its acquisition it can be said that legislature committed a fraud on its power and the same is a bad law.
Also in Article 31-B the Ninth Schedule of the Constitution contained 13 Acts and regulations which were made immune from the attack of fundamental rights chapter in the Constitution.
The State started assuming the role of a welfare state and was vitally concerned with reducing disparities in income, to prevent monopolies and concentration of economic power in a few hands. Consequently in furtherance of the above objective it started regulating and controlling the private business of several commercial companies and undertakings as done in Sholapur Mills Case, Subodh Gopal’s Case and Bella Banerjee’s Case.
The Supreme Court was of the view that words “taken possession of or acquired” amounted to deprivation; hence compensation must be paid even though merely State took the possession and not acquired it. And according to Bella’s case the compensation should be equivalent to what the owner is deprived of.
Thus the above judgment of the Court stood as a brake in the regulatory power of the State and property was given a very wide connotation. So it became necessary that the power to fix ceilings on land holdings, to distribute excess of land and lastly to remove the jurisdiction of the judiciary from fixing the compensation.
This led to Fourth Amendment which brought a change in the substantial character in Article 31(2).
The Constitution (Seventeenth Amendment) Act, 1964
It appeared that notwithstanding the amendments, certain other legislative measures by different States for the purpose of giving effect to agrarian policy were effectively challenged. So thus the Parliament thought that it was necessary to make amendment in Article 31-A and Article 31-B.
Accordingly, the expression “estate” in Article 31-A was amended retrospectively by a new definition given in Article 31-A(2) and another proviso was added to 31-A(1). In Article 31-B, instead of 13 Acts, 44 Amendment Acts were added to the Schedule.
The validity of the above amendments were challenged in Golak Nath’s case. Though the amendments were upheld, it was held that any amendment made under Article 368 is a law under Article 13 due to which the State can take no action which infringes or abridges fundamental rights; due to which J. Hidayatullah said that the Constitution needs to be amended as putting right to property as a fundamental right was in his opinion an error.
But this defect was resolved by the 24th Amendment, 1971 and the basic reason for the initiation of this Bill was a conflict between the fundamental rights and the Directive Principles of State Policy. And from then onward amendment under Article 368 was not considered to be a law any longer.
The Constitution (Twenty-Fifth Amendment) Act, 1971
By this amendment a new clause was substituted for Article 31(2), replacing the expression “Compensation” by the word “Amount” and making the amount and mode of payment for takeover of property non-justiciable. And also by this time the conflict between the fundamental rights and Directives was over and Directive Principles of State Policy gained precedence over fundamental rights conferred under Articles 14, 19 and 31.
It had made special provision with regard to law intended to give effect to the Directive Principles contained in Article 39(b) and 39(c).
Again Kesavananda Bharati’s Case the validity of 24th and 25th Amendments were challenged along with the judgment of Golak Nath. Golak Nath was overruled and the Doctrine of Basic Structure was propounded by which any constitutional amendment has to pass the test of basic structure.
Right to property is a human rights.
Transformation from Fundamental Right to Legal Right
The aftermath of the Emergency witnessed not only changes in the political environment of the country but also in the realm of constitutional law. The Constitution (42nd Amendment) Act, 1976 made comprehensive changes in the Constitution primarily with the objective of removing “the impediments to growth of the Constitution”. The amendments were to spell out high ideas of secularism, socialism, democracy, to make Directive Principles more comprehensive and give them precedence over fundamental rights.
The Act of 1976 widened the scope of 31(c) so as to cover all the Directive Principles to be given precedence over the fundamental rights. Further three new Articles 39-A, 43-A and 48-A were inserted in Part IV. Again it was challenged in Minerva Mills case and the Act was declared unconstitutional up to the extent of it giving precedence to Directives.
After the Janata Government took over the reins at the Centre, it sought to undo the amendments made under 42nd Amendment Act. It enacted 44th Amendment Act, 1978 which brought about one of the most significant changes as it resulted in the deletion of right to property as a fundamental right and provided for its reincarnation as Article 300-A to recognize it as a legal right.
The scope of Article 300-A was determined by the Supreme Court in Jilubhai Nanbhai Khachar v. State of Gujarat and it was held that right to property does not form the basic structure of the Constitution. And also expression “property” in Article 300-A has to be understood in the context of the sovereign power of eminent domain of the State.