35 The Evolution of the Right to Property in India

Dr. K Sita Manikyam

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AIMS OF THE CHAPTER:

  • To understand the evolution of the right to property in India
  • To learn the constitutional prospective of the right to property in India
  • To learn judicial approach behind the constitutional amendments to property rights in India

1. INTRODUCTION

The economic thought weights the Constitution is the founding of a welfare State and an economic structure embedded in the fulfillment of the individual, restricted and delimited always by the morals of the principles of the society in which he lived. The right to property is often knocked at the ―slightest defendable right in a socialist democracy and it occurred in our country as sound. It is very fascinating to note down that Right to Property has induced the mainly number of amendments to our Constitution and also has created the center from which some creditable and historic decisions emerged out of the judiciary. The Indian Constitution does not identify t h e property right as a fundamental right. In the year 1977, the 44th amendment removed the right to obtain, hold and arrange for property as a fundamental right. However, in a different part of the Constitution, Article 300 (A) was included to insist that no person shall be disadvantaged of his property save by authority of law. The effect is that the right to property as a fundamental right is now replaced as a statutory right.

2. EVOLUTION OF RIGHT TO PROPERTY

Indian understanding and origin of property and wealth have a very special historical basis than that of western countries. The fact the current system of property as we know happens out of the peculiar developments in Europe in the 17th to 18thcentury and therefore its experiences were across the world not valid. A still new economic part in which the answer is equally hard and significant is the clarity of property rights. The idea of property as it has developed more centuries and it has embodied in our legal codes, has become so great part of us that we have a propensity to obtain it for granted, and fail to identify the amount to which just what constitutes property and what rights the ownership of property confers are complex social designed rather than self-evident suggestions.

The right to property under the Indian constitution tried to move toward the question of how to switch property and pressures relating to it by trying to stability the right to property with the right to compensation for its acquisition through an unlimited fundamental right to property and then harmonizing the same with rational restrictions and adding together a further fundamental right to compensation in case the properties are obtained by the state. This was exemplified by Article 19 (1) (f) unbiased by Article 19 (5) and the compensation article in Article 31. This was a motivating growth predisposed by the British of the idea Eminent Domain but largely it struck an interesting balance whereby it renowned the power of the state to obtain property, but for the first time in the history of India for a thousand years or more, it recognized the individual‘s right to property in opposition to the state. However, when the state realized that an absolute property and the wants of the people were not the similar the legislature was afterward forced to make the said right of property subject to social welfare amid amendments to the constitution. Articles 31-A, 31-B and 31-C are the pointed the change and the counter force of the state when it realized the inherent troubles in yielding an obvious western style absolute fundamental right to property, particularly Article 31-C, which for the first time brought out the social nature of property.

2.1. Pre-Constitutional Position of Right to Property

The Constitution of India obtains its basis from the Government of India Act, 1935 and the Universal Declaration of Human Rights (1948). Section 299 of the Government of India Act, 1935 protected the right to property and enclosed protection against expropriation lacking compensation and against the acquisition of a non-public reason. Article 17 of the Universal Declaration of Human Rights (1948) also recognizes the right to private property and India is a signatory to that Declaration. The Constituent Assembly examined the constitutions of diverse countries, which guarantee basic rights. Constituent Assembly of India, Constitutional precedents (1947), it is declared that the rights declared in the Constitutions relate to equality before the law, freedom of speech, freedom of religion, freedom of assembly, freedom of association, security of person and security of property. Within limits these are all well recognized rights. When the draft Article 19 (1) (f) and Article 31 came up for discussion clearly in the Constituent Assembly point to that the framers of our Constitution attached enough significance to property to incorporate it in the chapter of fundamental rights. The provision regarding freedom of trade and intercourse, which was initially in the chapter of fundamental rights, was later on detached from that chapter and put in a take apart part (Article 301), in view of the suggestions by some members of the Constituent Assembly. It is important to note that similar suggestions in respect of the right to property were not accepted.

2.2. Concept of property in post constitutional position of India

There is some misunderstanding about the scope of the right to property conferred under our Constitution. A supposition by steady repetition has become a conviction in some minds that the right to property has been so ingrained in our Constitution that it is not possible without amendment to enforce the directive principles. An inquiry of the applicable provisions of the Indian Constitution as they stood on 26-1-1950 will disperse this supposition. They are Articles 14, 19 (1) (f), 19 (5), 31, 32, 39 (b) and (c), 226 and 265.

The substance of the said provisions may be in brief stated thus: Every citizen has the individual right to obtain, to hold and dispose of property. A duty is implicit in this right, namely that it should be so rationally exercised as not to get in the way with a like right of other citizens. The work out of it, therefore, should be rational and in accordance with the public interest. The directive principles of State Policy lay down the fundamental principles of State policy, lay down the fundamental principles for the governance of the country, and under the related principles for the governance of the country, and under the related principles, the State is directed to protected that the ownership and control of the material resources of the community are so dispersed as best to sub serve the common good and that the process of the economic system does not result in the attention of wealth and means of production to the common detriment. Indeed, the State, in exercising the power to enforce this principle does in fact enforce the duty unspoken in the exercise of the fundamental right. The disagreement between the citizen’s right and the State’s power to implement the said principles is submissive by putting restrictions both on the right and the power. The said fundamental right is not absolute. It is subject to the law of reasonable limitations in the interest of the general public. The State’s power is also subject to the circumstance that the law made by it in so far it infringes the said fundamental right should stand the double test of sensibleness and public interest. The State also has the power to obtain land of a citizen for a public purpose after paying compensation. It has the further power to impose taxation on a person in value of his property. All the laws made in exercise of the said powers are governed by the doctrine of the equality subject to the principle of classification. But the question of the validity of the said laws of social control, taxation and acquisition is a justifiable matter. After a while stated, under the said provisions, the right to property is subject to justifiable laws of social control.

3. PERSPECTIVE OF RIGHT TO PROPERTY UNDER CONSTITUTION

The Articles put the idea of the right to property in a right point of view. They absolutely abandoned the Russian theory, but received the doctrine of individual right to property subject to the laws of social control. The right to property was qualified by the social accountability. The higher judiciary was made the arbiter to keep the just balance between private rights and public welfare. The social order visualized by the Constitution was anticipated to be brought about easily by a procedure of steady judicial adjustment. The fundamental supposition of the Constitution was that each party that was elected to power should be bound by the provisions of the Constitution and should endeavor to bring about the novel social and economic construction of the country, in the way prearranged therein. Under the Constitution, both the means and the end were evenly significant in the development of a new society.

3.1. Agrarian reforms in India in Indian Constitution

After the Constitution of India came into force, the following agrarian reforms were initiated:

  1. Intermediaries were abolished;
  2. The ceiling was fixed on land holdings;
  3. The cultivating tenant within the ceiling secured permanent rights;
  4. In some States, the share of the landlord was regulated by law;
  5. In one State, the tiller of the soil secured cultivating rights against the absentee landlord; and
  6. In some States, the rural economy was re-adjusted in such a way, that the scattered bits of land of each tenant were consolidated in one place by a process of statutory exchange.

These reforms definitely put into carry out the directive principles of State policy. All these agrarian reforms could have been set up in the structure of the original Constitution, maybe with a slight more expenditure which could have been re- attuned through the laws of taxation. But on an open request that they could not be done within the shade structure, the Constitution had been amended, on several times that its philosophy had been wholly challenged.

4. CONSTITUTIONAL AMENDMENTS AS TO PROPERTY RIGHTS

4.1. State an arbitrary power to confiscate citizen’s property

Article 31-A initiated by the Constitution First Amendment Act, 1951 according to this the State completed a reliable effort by the procedure of amendment to the Constitution to take away the judicial ensure on the workout of its power in a large area. The history of the amendments of Article 31(1) and (2) and the adding up of Articles 31(A) and (B) and the 9th Schedule disclose the pattern. Article 31, clauses (1) and (2) offered for the doctrine of eminent domain and under clause (2) a person must be believed to be depressed of his property if he was substantially dispossessed or his right to use and benefit from the property was seriously damaged by the impugned law. The result of the amendment is that clause (2) deals with gaining or demand as defined in clause (2-A) and clause (1) covers the deficiency of a person’s property by the State or else than by gaining or demand. This Amendment allows the State to divest a person of his property in a suitable case by a law. This is placed in the hands of State an arbitrary power to take away citizen’s property. This is a divergence from the high comfort of the rule of law imagined in the Constitution. The amendment to Clause (2) of Art. 31 was an effort to appropriate the judicial power. Under amended clause (2), the property of a citizen could be obtained or demanded by law which clause (2) of Article 31 was an attempt to usurp the judicial power. Under amended clause (2), the property of a citizen could be acquired or requisitioned by law which offers of compensation for the property so obtained or demanded, and moreover secures the amount of compensation or indicates the principles on which and the way in which the compensation is to be determined. It was additional offered that no such law could be described in question in several courts on the view that the compensation provided by that law is not sufficient. This amendment made the State the concluding arbiter on the question of compensation. This amendment awarded an arbitrary power of the State to fix at its carefulness the amount of compensation for the property obtained or requisitioned. The non-justifiability of compensation enables the State to fix any compensation it decides and the effect is, by mistreatment of power, taking away may be result in the form of acquisition.

4.2. Extension of the estate in addition the power of State

Further, the Constitution Fourth Amendment Act of 1961 and the 17th Amendment of 1964, constitute a slight form of demolishing property rights. By the First Amendment, the Parliament defined Estate and then went on by additional amendments to expand its meaning so as to understand basically the entire agricultural land in the rural area as well as waste lands, forest lands, lands for meadow or sites of buildings, etc. Under the said amendment, no law given that for gaining by the State of an estate so defined or any rights in that of the extinguishment or alteration of such rights could be questioned on the view that it was conflicting with or took away or shortened any of the rights awarded by Articles 14, 19 or 31.

4.3. The Legislature made void laws antisocial fundamental rights

Article 31-B and Schedule 9 commenced by the following Amendments was one more effort to suitable judicial power. It was a novelty set up in our Constitution to no avail, of in any other part of the democratic world. The Legislature made void laws aberrant fundamental rights, and they were integrated in Schedule 9 and afterward on the list were extended from time to time. Article 31-B confirmed that none of the Acts or Regulations precise in neither the Ninth Schedule nor any of the provisions thereof shall be deemed to be void on the ground that they are not in agreement with Part III, in spite of any judgments, decree or order of any Court or Tribunal to the divergent. By additional amendment, the list was unmitigated. This amendment discloses a pessimistic approach to the rule of law and the philosophy essential our Constitution.

5. JUDICIAL SCRUTINY OF THE AMENDMENTS

The Supreme Court by a variety of judgments measured the said amendments and limited their scope within rational limits. The Supreme Court in Kochunni v. State of Madras (AIR 1960 SC 1080) case did not believe the request of the State that Article 31 (1) after amendments gave an unobstructed power to the State to divest a person of his property. It held that Article 31(1) and (2) are different fundamental rights and that the expression Law in Article 31(1) shall be suitable law and that it cannot be valid law if not it amounts to a rational limits in the public interest within the meaning of Article 19(5). While this decision accepted to the State the power to divest a person of his property by law in an appropriate case, it was made subject to the condition that the said law should operate as a reasonable restriction in the public interest and be justifiable. The Court construed the amended provision reasonably in such a way as to salvage to some extent the philosophy of the Constitution. But the Supreme Court in Srimathi Sithabathi Devi v. State of West Bengal, (1967) 2 SCR 949) held that Article 31 (2) i.e., the provision connecting to the acquisition or requisition of land was not subject to Article 19 (5). It would have been logical if the expression law in Article 31 (2) was given the same meaning as in Article 31 (1). In that event, the law of acquisition or requisition should not only comply with the requirements of Article 31 (2) and (2-a), but should also satisfy those of Article 19 (5). That is to say, such a law should be for a public purpose, provide for compensation and also make happy the double test of reasonable restriction and public interest provided by Article 19 (5). The rationality of such a law should be tested from substantive and procedural standpoints. There may be a public purpose, but the compensation fixed may be so deceptive that it is unreasonable. The procedure arranged for acquisition may be so arbitrary and therefore irrational. There may be many other defects misbehaving the standard of reasonableness, both significant and procedural. But from a realistic standpoint, the current dichotomy between the two decisions—Kochini and Sithabathi Devi—will not bring about any considerable hardship to the people, for a law of acquisition or requisition which rigorously complies with the ingredient of clause (2) may normally also be reasonable restriction in the public interest. Substantive divergence from the principles of natural justice may be hit by Article 14. Provision for an elusive compensation may be struck down on the ground that it does not comply with the obligation of Article 31 (2) itself.

The Supreme Court in P. Vajravelu Mudalier v. Spl. Dy. Collector, (1965) 1 SCR 614) and Union of India v. Metal Corporation of India, (1967) 1 SCR 255) cases measured Article 31 (2) in the situation of compensation and held that if the Compensation fixed was illusory or the principles arranged were immaterial to the worth of the property at or about the time of attainment, it could be said that the Legislature had committed a fraud on power and therefore the law was bad. The consequence of the brief survey of the provisions of the Constitution and the case-law thereon may now be stated in the form of the following proposals:

  1. Each citizen has a fundamental right to obtain, hold and arrange for the property.
  2. The State can build law impressive reasonable restrictions on the said right in public interest. The said limits, under certain situation, may amount to the deficit of the said right.
  3. Whether a limit compulsory by law on a fundamental right is rational and in the public interest or not, is a justifiable issue.
  4. The State can, by law, take away a person of his property if the said law of deficiency amounts to a reasonable restriction in the public interest within the meaning of Article 19 (5).
  5. The State can acquire or demand the property of a person for a public reason after paying compensation.
  6. The sufficiency of the compensation is not justifiable.
  7. If the compensation set by law is illusory or is different to the principles related to the fixation of compensation, it would be a fraud on power and therefore the legality of such a law becomes justifiable.
  8. Laws of agrarian reform miserly or restricting the rights in an estate” the said term has been defined to include basically every agricultural land in a village cannot be questioned on the ground that they have infringed fundamental rights.

6. CONCLUSION

The right to enjoy property with no illegal deprivation, not less than the right to speak or the right to travel is in truth a personal right, whether the property in question is a welfare check, a home or a reserve account. In fact, a fundamental interdependence survives between the personal right to liberty and the personal right in property they visualized a society in which each citizen should be the owner of a few properties not only as a means of rations, but also as a zone of safety from oppression and economic oppression and they put that right above the vote of passing majority. They enacted Article 39 and enjoined upon the state to break up the attentiveness of property in the hands of the few and its sharing with all. Though, at the end of his detection of defensive property rights even he seems to have got mistaken by the so-called disagreement among directive principles and fundamental rights. Yielding absolute right to property and also having to sustain the holiness of a directive principle against attentiveness of wealth becomes almost an not a possible thing to routinely achieve for any fair state which emerges and thrives on the foundation of the rule of law. Yielding absolute right to property and also having to uphold the sanctity of a directive principle against attentiveness of wealth becomes nearly a not a possible thing to reasonably attain for any just state which emerges and thrives on the foundation of the rule of law. Constitution had originally placed the property rights in the right viewpoint. Even as the individual right was safeguarded, the State was given plenty power to legalize the exercise of it in the public interest through the rule of law. The amendments not only enormously increased the State’s power, but also gave a tyrannical point of view to the exercise of the said power. It is true a state will become a just society where a right equilibrium will be maintained between the right to property and social justice.

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Reference

  • Property Rights under the Constitution” (1969) 2 SCC (jour) 
  • Baxi, Upendra. “The constitutional quicksand of Kesavananda Bharathi and the Twenty-fifth Amendment” (1974) 1 SCC
  • K K Mathew, “Basic Structure and Fundamental Right to Property”, (1978) 2 SCC
  • Austin, Granville (1999) Working a Democratic Constitution: The Indian Experience Oxford University Press New Delhi
  • Anant, T.C.A. and Jaivir Singh (2002) ‘An Economic Analysis of Judicial Activism’ Economic and Political Weekly Vol. XXXVII October 26
  • Upadhyay Videh, Public Interest Litigation in India: Concepts, Cases, Concerns, LexisNexis Butterworths, New Delhi, 2007