Q. Make a critical evalution of right to property as it exists today. [2001]
Originally, the right to property was one of the seven fundamental rights under Part III of the Constitution. It was dealt by Article 19(1)(f) and Article 31.
- Article 19(1)(f) guaranteed to every citizen the right to acquire, hold and dispose of property.
- Article 31, on the other hand, guaranteed to every person, whether citizen or non-citizen, right against deprivation of his property.
- It provided that no person shall be deprived of his property except by authority of law.
- It empowered the State to acquire or requisition the property of a person on two conditions:
- it should be for public purpose, and
- it should provide for payment of compensation (amount) to the owner.
Since the commencement of the Constitution, the Fundamental Right to Property has been the most controversial. It has caused confrontations between the Supreme Court and the Parliament. It has led to a number of Constitutional amendments, that is, 1st, 4th, 7th, 25th, 39th, 40th and 42nd Amendments.
- Through these amendments, Articles 31A, 31B and 31C have been added and modified from time to time to nullify the effect of Supreme Court judgements and to protect certain laws from being challenged on the grounds of contravention of Fundamental Rights.
- Most of the litigation centred around the obligation of the state to pay compensation for acquisition or requisition of private property.
Therefore, the 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right by repealing Article 19(1)(f) and Article 31 from Part III. Instead, the Act inserted a new Article 300A in Part XII under the heading ‘Right to Property’.
- It provides that no person shall be deprived of his property except by authority of law.
- Thus, the right to property still remains a legal right or a constitutional right, though no longer a fundamental right. It is not a part of the basic structure of the Constitution.
The right to property as a legal right (as distinct from the Fundamental Rights) has the following implications:
- It can be regulated ie, curtailed, abridged or modified without constitutional amendment by an ordinary law of the Parliament.
- It protects private property against executive action but not against legislative action.
- In case of violation, the aggrieved person cannot directly move the Supreme Court under Article 32 (right to constitutional remedies including writs) for its enforcement. He can move the High Court under Article 226.
- No guaranteed right to compensation in case of acquisition or requisition of the private property by the state.
Though the Fundamental Right to Property under Part III has been abolished, the Part III still carries two provisions which provide for the guaranteed right to compensation in case of acquisition or requisition of the private property by the state. These two cases where compensation has to be paid are:
- When the State acquires the property of a minority educational institution (Article 30);
- This provision was added by the 44th Amendment Act (1978).
- When the State acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits (Article 31 A).
- This provision was added by the 17th Amendment Act (1964).
Further, Articles 31A, 31B and 31C have been retained as exceptions to the fundamental rights.
- Articles 31A: It was added by 1st CAA and was amended by 4th, 17th, 42nd abd 44th amendment.
- It saves five categories of laws from being challenged and invalidated on the ground of contravention of the fundamental rights conferred by Article 14 and Article 19. They are related to agricultural land reforms, industry and commerce.
- Article 31B: It was added by 1st CAA 1951. It saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights.
- Thus, the scope of Article 31B is wider than Article 31A.
- Article 31B immunises any law included in the Ninth Schedule from all the fundamental rights whether or not the law falls under any of the five categories specified in Article 31A.
- However, in a significant judgement delivered in I.R. Coelho case (2007), the Supreme Court ruled that there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule.
- Article 31C, as inserted by the 25th Amendment Act of 1971, also seeks to save some laws giving effect to certain directive principles.
