Polity

Present Position of Right to Property

Present Position of Right to Property

As we all know that the Constitution of India originally provided for seven Fundamental Rights under Part III, which were:

  • Right to Equality
  • Right to freedom
  • Right against Exploitation
  • Right to Freedom of Religion
  • Right to minorities (educational and cultural rights)
  • Right to Constitutional Remedies
  • Right to Property

However, at present, there are only six fundamental rights as the Right to Property was removed from the list.

  • Article 19(1)(f) guaranteed every citizen the right to acquire, hold and dispose of property.
  • Article 31 guaranteed every person, whether citizen or non-citizen, the right against deprivation of his property. Article 31 provisioned that no person shall be deprived of his property except by authority of law.
  • Article 31 also empowered the State to acquire or requisition the property of a person on two conditions:
    • (a) it should be for public purpose
    • (b) it should provide for payment of compensation (amount) to the owner

In this article, we’d be discussing the present position of Right to Property.

Present Position of Right to Property
Image by- Libertarianism

Present Position of Right to Property

Why was the Right to Property controversial?

The Right to Property created a lot of hurdles in the welfare and land reform policies adopted by the state. With the land reform policies, the government tried to eliminate zamindari and undertake land redistribution and land ceiling (putting a cap on the maximum area of agriculture/rural land an individual can hold) policies aimed at reducing income inequality. But many zamindars and individuals holding large areas of land firmly opposed these policies taken by the government. They moved to the Supreme Court and asserted that their property was forcefully acquired by the government, which is curtailing their fundamental right.

The First Constitutional Amendment

This created a dilemma, both for the Supreme Court and the Government of India, as the Supreme Court’s primary responsibility was to protect the fundamental rights of the citizens, and the government was responsible for reducing income inequality. This dilemma eventually led to the First Amendment. 

(We won’t be discussing the whole Amendment, just the part which is relevant to our topic)

31(A)
The First Amendment added a new clause 31(A). It stated that if an individual’s property is seized under the Land Reform policies, then the provisions of Article 31 (Right to Property) shall not be applicable to that seizure. Hence, this solved the dilemma for the Government and the Supreme Court, as no one can challenge the policies of land redistribution and land ceiling in the Supreme Court on the ground of Right to Property.

Present Position of Right to Property
Image by- UPSC Buddy

31(B)
Article 31(B) added Ninth Schedule to the constitution of India. The acts, passed by the Central and State legislative assemblies, that are included in the ninth schedule, would not be eligible for Judicial Review by the Supreme Court or the High Court. It means that the Supreme Court or the High Court cannot do a Judicial Review of the acts that are included in the Ninth Schedule.
*Judicial Review – A process by which the Judiciary checks whether the actions of the Legislative, Executive, and Administrative are compatible with the constitution i.e. whether the action is justified by the constitution. And if the Judiciary finds the action to be incompatible, then it has the power to nullify the action. For example, if an act passed by the parliament is inconsistent with our constitution, then the Supreme Court can nullify that act.

The Conflict between the Government and Supreme Court

As the landowners started moving to the Supreme Court against the acquisition of their property by the Government, most of the judgments, initially, went in favor of the petitioner, like the Golak Nath case. This led to a series of conflicts between the Government and the Supreme Court. And the Government, in retaliation, made several Constitutional Amendments to curtail the powers of the Supreme Court in this regard, like the First Constitutional Amendment, and the 24th Constitutional Amendment, which eventually repealed and nullified the judgment of the Golak Nath case.

There were a number of Constitutional Amendments caused by the controversial nature of this right, which are the 1st, 4th, 7th, 25th, 39th, 40th, and 42nd Constitutional Amendments. And through these amendments, Articles 31A, 31B, and 31C have been added to the Constitution. These amendments were mainly aimed at nullifying the effect of Supreme Court judgments and protecting certain laws from being challenged on grounds of contravention of Fundamental Rights. And most of these amendments were centered around the obligation of the state to pay compensation for the acquisition or requisition of private property.

Golak Nath Case
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44th Constitutional Amendment

So, to escape all these conflicts and dilemmas, the then Government of the Janata Party enacted the 44th Constitutional Amendment Act in 1978. The 44th Constitutional Amendment;

  • repealed Article 19(1)(f) and Article 31 from Part III( consisting of the Fundamental Rights)
  • inserted a new Article 300A in Part XII under the heading ‘Right to Property’

Article 300A provides that ‘no person shall be deprived of his property except by authority of law.’

Hence, the 44th Constitutional Amendment determined the present position of the Right to Property. The 44th Amendment reduced the Right to Property from the status of a Fundamental Right to a legal right. Hence, the people still have the Right to Property in India but it’s no longer a Fundamental Right. Moreover, it’s not a part of the basic structure of the Constitution.

Present Position of Right to Property (as a legal right)
Present Position of Right to Property
Image by- Law Corner

So, the Article 300A of the Indian Constitution (Right to Property) provides that:

  • It can be regulated, i.e. curtailed, abridged, or modified without any 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 to the Supreme Court under Article 32 (right to constitutional remedies including the writs). However, he can move to the High Court under Article 226.
  • No guaranteed right to compensation in case of acquisition or requisition of the private property by the State.
Right to Compensation
Image by- Managing IP

As mentioned earlier, the present position of Right to Property is that it’s no longer a Fundamental Right, but rather a legal right under Article 300A. However, there are still two provisions in Part III (Fundamental Rights) of the Constitution that provisions for the guaranteed right to compensation to the person whose property has been acquired by the State. These provisions are:

  • When the State acquires a property of a minority educational institution (provided by Article 30). This provision was added in the Constitution 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 (provided by Article 31 A). This provision was added to the Constitution by the 17th Amendment Act, 1964.
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Exceptions to Fundamental Rights

Keshwananda Bharati Case: The Case that saved our Democracy

Golak Nath Case: Historical Background and the Aftermath

Constituent Assembly: Promulgation and Criticisms

Objectives Resolution: Actual and Simplified texts

Cabinet Mission Plan 1946: Proposals and Conflicts

One nation one election: Need of the hour

Government of India Act of 1935: Is Indian Constitution its carbon copy?

Charter Acts: Significance in Indian History

Citizenship Act of 1955: How could you acquire or loose Indian citizenship?

Election System in India: Lok Sabha and Rajya Sabha

Elections to Rajya Sabha: Proportional Representation System

Right to Constitutional Remedies: Types of Writs

Central Vigilance Commission of India: Composition and Functions

Swaran Singh Committee: Fundamental Duties

Subordinate Courts of India: Structure and Constitutional Provisions

National Legal Services Authority: Structure and Functions

Lok Adalats: Lok Adalats and Permanent Lok Adalats

Gram Nyayalayas: Composition and Functions

Unitary Features of the Indian Constitution

Laws Inconsistent with Fundamental Rights

Features of Parliamentary Government

Features of Presidential form of Government

Financial Relations between Centre and State

Sarkaria Commission: Overview and Recommendations

Legislative Relations between Centre and State

Administrative Relationship between Centre and State

Rajamannar Committee: Overview and Recommendations

Zonal Councils: Structure and Functions

Veto Powers of the President

Parliamentary Forums: Structure and Functions

 

 

 

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