DR.

BHIMRAO AMBEDKAR LAW UNIVERSITY,

JAIPUR

Project on:
“Right to Property: The Constitutional Perspective”
As a part of Paper V:
LEGAL EDUCATION AND RESEARCH
METHODOLOGY

Supervisor: Submitted By:

Dr. Bharat Singh Tanushree Singhal
(Assistant Professor) LL.M Part- I, Roll No.-

MAHARSHI DAYANAND LAW COLLEGE, JAIPUR

Session: 2022-23

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 CERTIFICATE

It is certified that the project work titled “Right of Property: The

Constitutional Aspect” submitted by TANUSHREE SINGHAL for the
partial fulfillment of the LL.M. Degree offered by Maharshi Dayanand Law
College, Jaipur during the academic year 2022-2023 is an original work
carried out by the student under my supervision, and this work has not formed
the basis for the award of any other degree, diploma or such other titles. The
student has completed research work in stipulated time and according to the
matter prescribed for the purpose.

Date:
Name of the supervisor: Dr. Bharat Singh
Designation: Assistant Professor of Law
Institution: Maharshi Dayanand Law College, Jaipur

Signature of the supervisor

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 ACKNOWLEDGEMENT

Before we got into thick things, I would like to add few words of appreciations
for the people who have been a part of this Project write from its inception. The
writing of this project has been one of the significant academic challenges I
have faced and without the support, patience and guidance of the people
involved in this task would not have been completed. It is to them I owe my
deepest gratitude. It gives me immense pleasure in presenting this project report
of “LEGAL EDUCATION AND RESEARCH METHODOLOGY”. It has
been privilege to have a team of project. The success of this project is a result
of sheer hard work and determination put in by me with the help of my project
guide and takes the opportunity to express my gratitude to Dr. Bharat Singh
[Assistant Professor] of Maharshi Dayanand Law College, Jaipur, who
played a significant role in my project.

The project is dedicated to all those people, who helped me while doing this
project.

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 CONTENTS

1. Introduction

2. Meaning of the term “Property”

3. History of Right to Property in India

4. Right to Property: A Fundamental Right or A Constitutional Right

5. Eminent Domain

6. Supreme Court Approach to The Right to Property

7. Fundamental rights case: The decision that saved the constitution but yet
killed the right to property

8. Fundamental rights’ case and attitude of judges towards right to property

9. The Forty-second amendment act

10. Implications Of 44th Amendment Act

11. Present Scenario

12. Right to Property as A Human Right

13. Criticism

14. Conclusion

15. Biblography

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INTRODUCTION:

The right to property can be considered a natural human right in some

ways. Itis a hugely contentious issue that affects many countries including
the EuropeanUnion. The right to property was originally regarded as a
fundamental right in India, but by the 44th amendment of the Indian
Constitution, under the provision of Article 300(A), it was reduced to
merely a constitutional right. Though it appears to be straightforward, the
right to property under the Indian Constitution has a unique history that
can be described as a long conflict of provisions between India’s
legislature and the judiciary.

The “Constitutional right to property project” examines the right to

property’s tumultuous history under the Indian Constitution, from its
inception as a fundamental right in 1950 through its elimination as a basic
right and its reinstatement as a constitutional right in 1978. The
Fundamental Right to Property had the distinction of being not only the
second most contentious provision in the Constitution’s drafting, but also
the most amended/edited, and the only fundamental right to be eliminated
in 1978.

In today’s time, where every citizen is protected and guaranteed certain

human rights, that is, right to speech and expression or right to equality
and other fundamental rights that are provided on the grounds of
employment, educationor for protection of life and personal liberty or
protection from exploitation etc.

There also exists a right that is not provided under fundamental rights, that
is, Part III of the Constitution or rather it should be said that this right has
been removed from the pedestal of being a fundamental right.

The right to property is the legal right that the people, company or any
other organization or government has on the property or anything that they
own. This basic human and legal right can be broadly classified under
certain categories which can include the right to transfer the property,
secure income from it, use the property for their benefit or enjoyment, or
enforce property rights on their lawful property.

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 MEANING OF THE TERM “PROPERTY”:

Property is defined as follows:

According to Section 2(c) of the Benami Transactions (Prohibition) Act, 1988:
“Property” means “any sort of property, whether movable or immovable, tangible
or intangible, and includes any right or interest in such property.”
According to Section 2 (11) of the Sale of Products Act of 1930: “Property”
denotes the general property in goods, not just a special property.

The word “property” as used in Article 31, the Supreme Court has said “should
be given a liberal meaning and should be extended to all those well recognized
types of interest which have the insignia or characteristic of property right. The
expression “property” in Article 300A is confined not only to land alone but it
includes intangibles like copyrights and other intellectual property and embraces
every possible interest recognized by law. It includes both corporeal and
incorporeal right. It includes money, contract, interest in property e.g. interest of
an allottee, licensee, mortgagee or licensee of a property. The Mahantship of a
Hindu Temple and shareholders interests in the company are recognizable interest
in property. The right to receive pension is property.

The Hon’ble Supreme Court in Commissioner Hindu Religious Endowment

v. Swamiyar (1954) held that the term “property” as employed in Article 31
should be given a broad interpretation and should include all well-known
categories of interests that bear the insignia or characteristics of a property right.
It encompasses both corporeal and incorporeal rights as observed in Dwaraka
Das Srinivas v. Sholapur Spg and Wvg. Co. Ltd (1958). It comprises money,
contracts, property interests such as an allottee’s interest, licensees, mortgages,
and property lessees.

In State of Jharkhand v. Jitendra Kumar Srivastava AIR 2013 SC 3383, the

Supreme Court held that the pension is hard earned benefit which accrues to an
employee and is in the nature of property which cannot be taken away without
the due process of law as per the provisions of Article 300A of the constitution.
Under Rule 43(b) of the Bihar Pension Rules, the government could withhold or
withdraw pension or part thereof if after the conclusion of departmental inquiry
or a judicial proceeding a finding was recorded that the employee had committed
grave misconduct in the discharge of his duty while in his office but there was no
provision in the rules for withholding of the pension/ gratuity during pendency of
departmental or judicial proceedings. By an executive instruction or circular, even
a part of pension/ gratuity could not be withheld in the absence of any provision
in the statutory rules.

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HISTORY OF RIGHT TO PROPERTY IN INDIA:
In India, the establishment of property rights started in the 1950s. The right
to property was first introduced in India because of the existence of the
‘zamindari system’ during the British period and to remove this system and
to form a proper system for alleging right over the property.

Before the 44th amendment took place the Constitution of India guaranteed
the right to property as a fundamental right under Part III of the Constitution.
The amendment was made due to several cases of exploitations of the right
to property and hence it covers provisions that provide protection but not in
the same way they used to provide as a fundamental right.

Originally, after India got Independence, the right to property was included
as a ‘fundamental right’ under Article 19(1) (f) and Article 31 in Part III
of the Constitution when the Constitution of India came into force on 26th
January 1950.

The right to property being a fundamental right protected property and gave
the legal status of the land to the people living in newly independent India.
However, it was abrogated because the Indian government wanted land
reforms by administering the surplus land with the landowners to the landless
farmers to encourage social equality and justice. This right was an interesting
development influenced by the British as for the first time it was sanctioned
and recognized as an individual’s right over the property against the state.

However, soon after the right was enforced the lawmakers perceived that the
right to property as a fundamental right is a source of disagreement and
worked as a hurdle as it curtailed the state to acquire property for public use,
which was important for the development of the state, that is, construction
of roads, railways or industries, etc.

Therefore, to make the infrastructure of the country a matter of success, the

Supreme Court in his historic judgment stated that the right to property
doesn’t constitute the Basic Structure of the Constitution and shall be altered
from Part III of the Constitution and therefore, the government was allowed
to take or acquire individual’s property for a good cause in good faith for the
sole purpose of public interest as has been held in the case of K.T.
Plantation Private Ltd Vs. State of Karnataka(2011) 9 SCC 1.

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This judgment, however, leads to the 44th Amendment Act which made
the property right invalid as a fundamental right and added it under Article
300A of the constitution thus including all types of property, that is,
tangible or intangible, corporeal or incorporeal property.

The provision is also applied on intangible property like copyright,

intellectual property rights, mortgage, and money or any other interest in
the property, lease, and license. It also includes the right to receive a
pension is property.
There have been some major clashes between legislature and judiciary
which were aggravated by the Supreme Court decision in IC Golakhnath
Vs. The State of Punjab, AIR 1967 SC 1643 which held that the right to
property is a fundamental right and thus forms a part of the basic structure
of the Constitution, which the legislation cannot amend.

However, in Kesavananda Bharati Vs. State of Kerala AIR 1973 SC

1461, it was held that:
“The right to property was not part of the ‘basic structure’ of the
Constitution, even after the 25th Amendment; the Court must inquire
whether what is given as compensation is completely illusory or
arbitrary.”

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RIGHT TO PROPERTY: A FUNDAMENTAL RIGHT
OR ACONSTITUTIONAL RIGHT

Since the Constitution of India came into force in the 1950’s, the right to
property was given fundamental status. Basically, two articles Art. 31 and
Art. 19(1)(f) ensures that any person's right against his property remains
protected.

Art. 31 clause (1) reads as: “No person shall be deprived of his property
save by authority of law”. It gives protection to persons against the
government orState's arbitrary action to seize private property for public
use and private use. That means a person has right to move to Supreme
Court in case of violation of this right. At this juncture it is essential to
understand the power of Eminent Domain. In Charanjit Lal v. Union of
India, AIR 1951 SC 41, the hon’ble Supreme Court held that every
government has an inherent right to take and appropriate the private
property belonging to an individual citizen for public use.
It is based on the legal maxim: “Salus Populi est suprema lex” meaning:
The welfare of people is the paramount law.

In India clause (1) of Art. 31 provides for first restriction and clause (2)
reading:“No property shall be compulsorily acquired or requisitioned save
for a public purpose and save by authority of a law which provides for
acquisition of the property for an amount which shall be fixed by such law,
and no such law be called in question in any court on the ground that the
amount so fixed is not adequate for the other two restrictions.”

Article 19(1)(f) provides the freedom to citizens to acquire, hold, and

dispose ofthe property within the territory of India.
But by the Constitutional 44th Amendment act 1978, these two above
mentioned articles were deleted and a new chapter IV was added in Part
XII, containing only one Article 300A.

The legal status of the Right to Property was changed from the
fundamental right to constitutional right. As a result, people were not
allowed to approach Supreme Court directly u/A 32 of the constitution for
violation of the Right to Property although they still could invoke
jurisdiction at high court u/A 226 of the Constitution of India.

In Jilubhai Nanbhai Khachar v. State of Gujarat AIR 1995 SC 142 the

hon’ble Supreme Court held that the Right to property u/A 300A is not a
basic structure of the Constitution, it is only a constitutional right.

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EMINENT DOMAIN:
Every Government has an inherent right to take and appropriate the private
property belonging to individual citizen for public use. This power is known as
Eminent Domain.
It is offspring of political necessity. The right rests upon the famous maxim:
“Solus populi est superema lex”- which means that the welfare of the people or
the public is the paramount law and also on the maxim: “Necessita public major
est quam”, which means “public necessity is greater than private”. Thus,
property may be needed and acquired under this power for Government office,
libraries, slum clearance projects, public schools, colleges and universities, public
highways, public parks, railways, telephone lines, dams, drainages, sewer and
water systems and many other projects of public interest, convenience and
welfare. The exercise of such power has been recognized in the jurisprudence of
all civilized countries as conditioned by public necessity and payment of
compensation. But the power is subject to restrictions provided in the
Constitution. In America, there are limitations on the power of Eminent Domain-
(1.) There must be a law authorizing the taking of property
(2.) Property must be taken for public purpose
(3.) Just compensation should be paid.

In India, Article 31 imposed similar limitation on this power of Eminent Domain

but Article 300 A imposes only one limitation on the power of Eminent Domain
i.e. Authority of Law.

Right to Compensation in-built in Article 300A:

In K.T. Plantation PVT. LTD. VS State of Karnataka AIR 2011 SC 3430, the
Supreme Court has held that the requirement of public purpose is invariably the
rule when a person is deprived of his property. Principle of “eminent domain”
requiring compensation is not seen incorporated in Article 300 A as it is in Article
30(1A) as well as in 2nd proviso to Article 31A (1) although it can be inferred in
Article 300A. After deletion of Article 31(2), the question is whether there is
requirement of compensation to be paid when a person is deprived of his property.
The requirement of public purpose is a pre-condition but ‘no’ compensation or
‘nil’ compensation or its ‘illusiveness’ has to be justified by the State on judicially
justiciable standards. Measures designed to achieve greater social justice may call
for lesser compensation. Such a limitation by itself will not make legislation
invalid, unconstitutional or confiscatory. The right to claim compensation or
obligation to pay though not expressly included in Article 300A, it can be inferred
in it. The State has to justify its stand on justifiable grounds which may depend
upon the legislative policy, object and purpose of the statue and host of other

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factors. The Parliament in enacting Article 300A has only borrowed Article 31(1)
i.e. The “Rule of Law” doctrine and not Article 31(2) i.e. The “Doctrine of
Eminent domain”.
The law providing deprivation of property under Article 300A must be just, fair
and reasonable. The Court clarified difference between ‘no’ compensation and
‘nil’ compensation.
A law seeking to acquire private property for public purpose cannot say that no
compensation shall be paid but there may be law awarding nil compensation
where the state undertakes to discharge the liabilities charged on the property
under acquisition and the onus is on the government to establish its validity. In
the latter case, the court in exercise of judicial review has to test such a law
keeping in mind the above parameters.

Article 300A, unlike Articles 31(A) and 31(C), does not make the law depriving
a person of his property immune from challenge for the violation of Article 14 or
21. However, acquisition of property for a public purpose may be in deprivation
of livelihood leading to violation of Article 21 but that per se is not a ground to
strike down a statute or its provision. A constitutional court is not powerless when
it confronts with a situation of a person deprived of his property by law for a
private purpose. The ‘Rule of Law’ which has the status like the basic structure
of the constitution, exists while interpreting a statue which has blessings of Article
300A. The right to compensation is inbuilt in Article 300A when a person is
deprived of his property.

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SUPREME COURT APPROACH TO THE RIGHT TO
PROPERTY:

The Supreme Courts approach to the right to property can be divided

into two phases:-
a.) The time till the right to property was fundamental right (Pre1978)

b.) The time after the conversion of right to propertyas a constitutional

right (Post 1978)

Pre 1978 The Fundamental Right to Property:

The Ninth Schedule was inserted in the constitution by the Constitution

(First Amendment) Act, 1951 along with two new Articles 31 A & 31 B
so as to make laws acquiring zamindaris unchallengeable in the courts.
Thirteen State Acts named in this schedule were put beyond any challenge
in courts for contravention of fundamental rights. These steps were felt
necessary to carry out land reforms in accordance with the economic
philosophy of the state to distribute the land among the land workers, after
taking away such land from the land lords.
By the Fourth Amendment Act, 1955, Art 31 relating to right to property
was amended in several respects. The purpose of these amendments related
to the power of the state of compulsory acquisition and requisitioning of
private property.
By the constitution (Seventeenth Amendment) Act, 1964, Article 31 A was
amended with respect to meaning of expression estate and the Ninth
Schedule was amended by including therein certain state enactments.
During this period the Supreme Court was generally of the view that land
reforms need to be upheld even if they did strictly clash against the right
to property. In this juncture the Bank Nationalisation Case (Rustom
Cavasjee Cooper v. Union of India), (1970)1 SCC 248 is an important
case.

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Post 1978 The Constitutional Right to Property:

Following independence, the mood was to continue Prime Minister

Jawahar Lal Nehru’s socialist policies and to remove zamindars and other
rural intermediaries who had earned rights to enormous swaths of land
during colonial authority. When the government attempted to dismantle
these institutions, it was challenged in court under the Constitution’s Right
to Property section in a series of challenges. As a result, the government
decided it would be best to stay out of legal wranglings while attempting
to execute its socialist principles of limited private land ownership to avoid
wealth concentration and government control over the property as a
method of achieving dispersed development.

The backlash against Articles 19(1)(f) and 31 of the Constitution as

Fundamental Rights began almost immediately after it was enacted in
1950. After multiple court battles over this sensitive issue, the Janata Party
government introduced the 44th amendment, which eliminated the right to
property as a fundamental right and replaced it with Article 300A, which
reduced it to a legal right.

No deprivation of property except by Authority of law:

Article 31(1) provided that no person shall be deprived of his property

except by authority of law. This means that the state had authority to take
away the property of an individual but it could do so only by authority of
law. The word ‘law’ as used in Article 300A makes it clear that the
deprivation of the property can only be made by the authority of law, be it
an act of Parliament or State Legislature or a rule or statutory order having
force of law, and not by an executive fiat or an order.

In Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415, it was

held illegal seizure of goods in possession of the petitioner in India under
no authority of law at the instance of the Jammu and Kashmir police was
clearly an infringement of the fundamental right under Article 31(1).

The protection of Article 31(1) extended to citizens as well as aliens. But

Article 31(1) was not attracted where a person is deprived of his property
by action of another private person. The same is the position under Article
300A.

The new Article 300A lays down similar condition for taking away the
private property of an individual. A person can be deprived of his property
only by the authority of law.
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FUNDAMENTAL RIGHTS CASE: THE DECISION THAT
SAVED THE CONSTITUTION BUT YET KILLED THE RIGHT
TO PROPERTY:
Kesavanada Bharathi vs State of Kerala AIR 1973 SC 1461 was one of the
milestones in the history of jurisprudence. In this case popularly known as the
fundamental rights’ case the petitioners had challenged the validity of the
Kerala Land Reforms Act 1963. But during the pendency of the petition the
impugned Act was amended in 1971 and was placed under the Ninth Schedule
by the 29th Amendment Act. The petitioners were permitted to challenge the
24th, 25th and the 29th amendments also. The question was as to what was the
extent of the amending power conferred by Article 368 of the Constitution?
The Government of India claimed that it had the right as a matter of law to
change or destroy the entire fabric of the Constitution through the
instrumentality of Parliament’s amending power; and that it should be trusted
to exercise this seminal right wisely but not too well. Seventy years earlier,
Hitler had asserted and exercised such a right by invoking the amending power
of the German legislature, and there was no judicial pronouncement to restrain
that dictator.
Six senior judges of the Supreme Court (Chief Justice S M Sikri, who retired a
day after the judgement; Justices J M Shelat, K S Hegde and A N Grover who,
for deciding according to their conscience, were superseded for the office of the
Chief Justice of India; and Justices P Jaganmohan Reddy and A K Mukherjea)
held as follows:
(1) Parliament’s amending power is limited. While Parliament is entitled to
abridge any fundamental right or amend any provision of the Constitution,
the amending power does not extend to damaging or destroying any of the
essential features of the Constitution. The fundamental rights are among the
essential features of the Constitution; therefore, while they may be abridged,
the abridgment cannot extend to the point of damage to or destruction of
their core.
(2) Article 31C is void since it takes away invaluable fundamental rights, even
those unconnected with property. (The question of severability of the
offending provisions of Article 31C, which was dealt with by one of the
judges, is not referred to here.)
On the other hand, Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S
N Dwivedi and Y V Chandrachud held that the power of amendment is
unlimited; and they held Article 31C to be valid.

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 Thus, six judges decided the case in favour of the citizen and six in favour of
the state. Justice H R Khanna did not agree completely with any of these twelve
judges and decided the case midway between the two conflicting viewpoints.
He held that (a) the power of amendment is limited; it does not enable
Parliament to alter the basic structure of framework of the Constitution; (b) the
substantive provision of Article 31C, which abrogates the fundamental rights,
is valid on the ground that it does not alter the basic structure or framework of
the Constitution; and (c) the latter part of Article 31C, which ousts the
jurisdiction of the Court, is void.
Thus, by a strange quirk of fate, the judgment of Justice Khanna, with which
none of the other twelve judges totally agreed, has become the law of the land.
This result follows from the fact that while Justice Khanna did not fully agree
with the six judges who decided in favour of the citizen, he went a part of the way
along with them; and the greatest common denominator between the judgments
of the six judges in favour of the citizen and the judgment of Justice Khanna
became the judgment of seven judges and thus constituted the majority view of
the Supreme Court.
But then he spelt catastrophe to 19(1)(f), when he held that Right to Property did
not pertain to the basic structure of the Constitution.

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FUNDAMENTAL RIGHTS’ CASE AND ATTITUDE OF
JUDGES TOWARDS RIGHT TO PROPERTY:
Kesavananda Bharathi case, which is undoubtedly the most significant
development in the constitutional history of India, is paradoxically likely to create
an illiterate Bar in this country. A decision that runs over 700 closely printed
pages is most unlikely to be read by the majority of the Bar; and if read only once
it is most unlikely to be understood. But a legal profession, which misses out on
the liberal and legal reading of this decision, is thus likely to commit mayhem
upon itself, thereby upon the development of the constitutional jurisprudence in
this country. As always, the illiteracy of the literate is more pernicious for
development than that of the illiterate.
The well-known Twenty-fifth Amendment purports on its face to deprive the
judiciary of any say in the matter of compensation for deprivation of property. It
is based on the myth that the Supreme Court of India has been the protagonist of
the right to property and an antagonist of every major attempt at an egalitarian
social order through its requirement of market value compensation for acquisition
of property. The myth has been carefully nurtured–-intentionally or otherwise—
by the targets, consumers, and students of the court. So successful has been the
mythologization process that even the judiciary in the country, including some
Justices like Kesavananda, have (with respect) fallen easy prey to it.
Myths do serve some constructive functions in society but it is doubtful whether
this particular myth has served us well. The untenable premise of the contention
is that the right to property coupled with judicial review of legislation affecting it
is somehow an obstacle to the very fulfillment of the Directive principles of state
policy.
The truth is that all the fundamental rights together with the majority of the
directive principles elucidate the constitutional conception of social justice for
India; and this conception, like all conceptions of social justice, embodies values,
which cannot be fulfilled concurrently in an economy of scarcity. Choices giving
priority to one or the other value from amongst all the values of equal moral
weight have to be made. When this is grasped, it would be impossible to honestly
say in the abstract, for example that preferring the standard of just compensation
is always contrary to “social justice” or that confiscation is always in consonance
with “social justice.”
Kesavananda has also produced (or rather revived) the institution of judicial
curse. He says: “But, if despite the large powers now conceded to the parliament,
the social objectives are going to be a dustbin of sentiments, then woe betide those
in whom the country has placed such massive faith.”

16
But mere curses, even by the highest in the land, cannot kill the myths. As Voltaire
said, that you can kill a flock of sheep with curses only if you add a little bit of
arsenic as well.
Kesavananda concedes that Parliament has some powers to amend the
Constitution and that such power is constituent, not legislative in nature. On the
scope of constituent amending power so recognised, there is no clarity at all. It is
of course possible to arrive, mechanically, at the “majority” and the “minority”
of Kesavananda and to say that seven judges (Sikri, C J, Shelat, Grover, Hegde,
Mukherjea, Jagmohan Reddy, and Khanna, J J) assert certain limitations to the
constituent amending power whereas six other judges (Ray, Palekar, Mathew,
Beg, Dwivedi and Chandrachud, J J) recognise no limitations to the power.
One wishes that the matter was so simple but unfortunately it is not. So, this essay
only intends to take account of the holdings on the validity of 24th amendment
only in so far as they clearly bear upon the question of validity of 25th
amendment.
Even as regards the latter, what the court decided remains uncertain. A very
cursory examination reveals the following picture:
(1) Article 31(2), 31(2)(b) are held valid unanimously but six justices held
them valid “as interpreted.” (Sikri, CJ, Shelat, Grover, Hegde, Mukherjea,
Jagmohan Reddy, and Khanna, J J.; hereafter referred to as Sikri et al.)
(2) Article 31C first half is declared valid by seven justices (Ray, Palekar,
Mathew, Beg, Khanna, Dwivedi and Chandrachud. J J); Invalid by five
(Sikri, CJ, Shelat, Grover, Hegde and Mukerjea, J J); and valid upon
severance by Jagmohan Reddy, J.
(3) Article 31C second half is held invalid by seven justices (Sikri, CJ, Shelat,
Grover, Hegde, Mukerjea, Jagmohan, and Khanna. J J); wholly valid by
four justices (Ray, Palekar, Beg and Dwivedi, J J); and valid as interpreted
by two justices (Mathew and Chandrachud, J J).
Let us now look at the unanimity sustaining Article 31(2). Six judges (Sikri et al.)
regard the Article valid only as bearing the interpretation they place on it. This,
as will be shown below, is also the case with the remaining seven judges, even
though they have not preferred to characterise their conclusions of validity by
reference to their interpretations.
It is most important at the out set to ascertain whether Article 31(2) is still a
fundamental right. It appears in the part III as such; but after Kesavananda
whatever appears in part III, if not the entire Constitution, becomes problematic!

17
Six judges (Sikri, C J, et al.) explicitly recognise that Article 31(2) is a
fundamental right. This recognition has certain important bearings upon its
interpretation. For, while they recognise Parliament’s power to amend, and even
abridge, fundamental rights they do not allow this power a scope, which would
destroy these rights. The new Article 31(2) would be valid only if it did not
destroy the right to property. Such destruction would indeed occur if the Article
were interpreted to mean that the state has absolute discretion to fix any amount
for the affected property, which may not have any relevance to such property. On
this view, so long as Article 31(2) is a fundamental right, the Constitution does
not authorise confiscation of private property that is expropriation without some
reasonable recompense. The six judges acknowledge that the amount may be less
than the market value and that considerations of social justice may help fix or
determine the amount. Nevertheless, the right under Article 31(2) entails a
corresponding duty on the state to act reasonably in the exercise of the eminent
domain power.
The six judges do not derive the above stated conclusion inexorably from the
premise that Article 31(2) is a fundamental right. That is only one aspect of their
reasoning based upon a construction of the language of Article 31(2), to which
we turn in the next section.
As against this, the remaining seven justices are not in full agreement inter se.
Justice Dwivedi stands in majestic isolation in holding that Article 31(2) in effect,
abrogates the right to property.24 Justice Khanna seems loftily disinterested in
the question whether the Amendment abrogates right to property. This is so
because he has determined that the right does not pertain to the “basic framework”
of the Constitution. The right to property is a mere “matter of detail” not of basic
framework. So that even if the new Article abrogated the right, it would be valid.
The question whether it in effect does so does not at all interest the learned Justice.
Of the remaining five justices, Palekar, J, recognises that Article 31(2) postulates
a “fundamental right to receive an amount” but this fundamental right means the
right to receive what the “Legislature thinks fit.”Justices Ray and Mathew do not
speak of Article 31(2) in terms of its being a fundamental right at all. They both
conclude that the legislative determination is beyond question in courts.
But unlike Ray, J, Palekar, J, would allow judicial review on the grounds of fraud
on the Constitution and illusoriness. Mathew, J, leaves the question pointedly
open. And Chandrachud, J, asserts even more pointedly that the Court would have
the power to question the law on the above grounds as well as, inter alia, if the
principles are “wholly irrelevant for the fixation of the amount.”

Justice Beg’s position, with great respect remains highly anomalous. He adopts
on the whole question the reasons of Ray, Mathew and Dwivedi, J J, holds that

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there is no fundamental right to property. Ray, J, is not as clear, though it is open
to argument that since Ray, J, would not allow judicial review even on the ground
of illusoriness, he too by necessary implication denies the existence of the
fundamental right. Functionally speaking this must be so, because there is no
remedy to enforce the duty on the state to pay a reasonable amount. Payment of
one paise would be adequate to oust the judicial review on the reasoning of Justice
Ray. However, Justice Beg also adopts the reasons and conclusions of Justice
Mathew who in effect differs from Ray and Dwivedi, J J, by clearly leaving open
illusoriness and fraud as possible grounds of judicial review. Mathematically,
therefore, one would have to apportion half of Justice Beg’s agreement to
Mathew, J, and half to Ray and Dwivedi, J J. If this is unreasonable, Justice Beg’s
opinion on Article 31(2) will have to be altogether excluded. If this too is
unreasonable, one will have the option to choose between two equally
unreasonable courses.
The net result on this issue is as follows:
(1) Eight justices (Sikri et al., Chandrachud and Palekar, J J) acknowledge that
the right to receive amount is a fundamental right. That is to say, Article
31(2) abridges but does not take away right to property.
(2) Two (or two and a half) Justices rule that the right to property is abrogated
(Dwivedi and Ray, J J plus a portion of Beg, J).
(3) One Justice (or one and a half, if we include Beg J, with Mathew, J) takes
a position not easy to characterise in this respect. On the one hand, judicial
review is held completely excluded; on the other, judicial review on the
grounds of “illusoriness” and “fraud” seems to have been left open. The
significance of maintaining any degree of judicial review as to the amount
payable for acquisition is that it endows the fundamental right with a legal
remedy, whatever be the scope of this remedy.
(4) One Justice (Khanna, J) adopts an approach in which the question whether
the right to property is a fundamental right or not becomes a narrow
academic question.
(5) Therefore, due to a quirk of fate, a decision given by Khanna J has become
the law of the land and his decision explicitly excluding right to property
from the purview of “Basic structure” made it convenient for the future
parliamentarians to abridge property rights conveniently. But the
relevance and the reasonableness of such a decision by Khanna J will be
discussed later in the essay while discussing the effect of the 44th
Amendment Act and also the excerpts of the views of Justice K K Mathew
regarding the basic structure and right to property.

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THE FORTY-SECOND AMENDMENT ACT:

The 42nd Amendment Act sought to expand the scope of Article 31C by
extending it to any law giving effect to the policy of the state towards securing
“all or any of the principles laid down in Part IV” and that is how the Article reads
today. The actual scope of this Article has, however, been considerably restricted
in three respects by the process of judicial interpretation and subsequent
amendment:

(1) As above mentioned condition (i) was sought to be amended by the 42nd
Amendment (1976) so as to take in all laws intended to secure not merely
the objectives of Article 39 (b) or (c) but “all and any of the Directive
principles of state policy laid down in part IV” but this attempt was
frustrated by Minerva Mills v. Union of India AIR 1980 SC 1787 and
the above freedom now stands restricted only to laws seeking to give effect
to Articles 39 (b) or (c).

(2) Condition (iii) above placing a law beyond challenge under this Article if
it just contains a declaration that it fulfils the first condition, has also been
held unconstitutional in the Kesavananda Bharathi vs. State of Kerala
case. In other words, statutory declaration of a nexus between the law and
Article 37 is inconclusive and justiciable.

(3) Article 31D: A provision newly inserted in the Constitution in

juxtaposition with Articles 31A to 31C, though has nothing to do with the
right to property, may now be referred to. The insertion of Article 31D by
the 42nd Amendment (1976) represents yet another attempt to save from
Constitutional challenge a group of laws intended to curb “anti-national
activities.” This Article, introduced during a time when state of emergency
had been declared in the country was, however, omitted, with a change in
government, by the 43rd Amendment (1977).

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 IMPLICATIONS OF 44TH AMENDMENT ACT:

 The Right to Property would no longer be a fundamental right, but

rathera constitutional right and a human right (as held in various
court decisionssuch as State of Haryana v. Mukesh Kumar (2011)
 Only the High Courts, not the Supreme Court, can now challenge
the legislation that violates the fundamental right to property.
 With the repeal of Article 31, the government no longer had to pay
anyone whose land had been taken under the authority of a statute
passed by Parliament.

Why the 44th amendment act was made?

In order to understand why such a step was taken by the Parliament of India, it is
necessary to understand that before India get its independence there were four
major systems prevailing the Ryotwari system, Mahalwari system, Zamindari
system, and Jagidari system. Due to these large parts of land was in possession of
zamindars, tenants, and like people, which causes an unequal distribution of land
and increases the gap between rich and poor.

Since 1947-1950, the constituent assembly worked day and night to draft the
Constitution of India. Members of the constituent assembly were concerned by
the situation at that time and knew various land reforms and acquisition acts will
be needed to pass, due to the above-mentioned system, so in order to redistribute
land and to rectify the damage various steps were taken:

1. Provisions related to saving of certain laws were added- By Constitution

1st amendment act 1951 Art. 31A and 31B were added. Art.31A provides
that no law providing for the acquisition of any estate or any right or
modification of any right will not be deemed to be void on the basis that it
is inconsistent with Art. 14 and 19. Art.31B provides for validation of
certain acts and regulations, it says that none of the acts and regulations
mentioned in the IX Schedule of the constitution would be deemed to be
void on the ground that it is inconsistent with the rights conferred in Part
III of the constitution. Later on, by the 4th amendment 1955, the scope of
the estate was increased, it includes any jagir, inam or muafi, or any other
similar-grants.

2. Land celling was one of the strongest measures taken in this regard. Celling
means the maximum limitation on the area that can be acquired by a private
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 person. In the year 1959 at the Nagpur conference of Indian National
Congress, it was decided that laws or acts related to the restriction of land
limits must be implemented till the end of the year. The land ceiling act
was implemented from 1960-1972 and from1976-1999.

Despite such efforts by the government the zamindars and other land owners
whose ceiling limit exceeded approached Supreme Court using their fundamental
right to property with the intention to hold acts unconstitutional. So, in order to
stop this from happening and with a view to doing economic justice, Art.31, and
Art. 19(1)(f) ceased to be a fundamental right and was modified as a constitutional
right in new chapter IV Part XII of the Constitution as Art. 300A, which continues
to exist and follow till today.

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PRESENT SCENARIO:

Today, the times have changed radically. India is no more seen through the
eyesof only political leaders with a socialist bias. It is India Shining seen
through thecorporate lenses of financial giants like the Tatas, Ambanis and
Mahindras, withan unfathomable zeal for capitalism, money and markets.
There is anotherangle. There is a scramble by industrialists and developers
for land all over the country for establishment of Special Economic Zones.
Violent protests by poor agriculturists have taken place to defend their
meager land-holdings against compulsory acquisition by the State. In
particular, the riots and killings in Singur, Nandigram etc. in a State (of
West Bengal) ruled by communists has turned the wheel full circle.
Socialism has become a bad word and the Right to Property has become a
necessity to assure and assuage the feelings of the poor more than those of
the rich.

Soon after the abolition of the Fundamental Right to property, in Bhim

Singh v. UOI (1981) 1 SCC 166 the Supreme Court realised the worth of
the Right to Property as a Fundamental Right. In the absence of this
Fundamental Right to property, it took recourse to the other Fundamental
Right of Equality which is absolutely the concept of Reasonableness under
Article 14 for invalidating certain aspects of the urban land ceiling
legislation.

Today, the need is felt to restore the right to property as a Fundamental

Right for protecting at least the elementary and basic proprietary rights of
the poor Indian citizens against compulsory land acquisition. Very
recently, the Supreme Court, while disapproving the age-old Doctrine of
Adverse Possession, as against the rights of the real owner, observed that
the right to property is now considered to be not only a constitutional right
or statutory right but also a human right. Thus, the trend is unmistakable.

By 2050, if the Constitution of India is to be credited with a sense of

sensibility and flexibility in keeping with the times, the bad word socialist
inserted in the Preamble in 1977 shall stand omitted and the Right to
Property shall stand resurrected to its original position as a Fundamental
Right.

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RIGHT TO PROPERTY AS A HUMAN RIGHT:

The Supreme Court recognized in State of West Bengal v. Haresh C.

Banerjee (2006) that, even though the right to property was no longer a
fundamental right after the repeal of Article 19(1)(f) and Article 31 (1) of
the Constitution by the Constitution (Forty-Fourth Amendment) Act, 1978,
w.e.f. June 20, 1979, it was still a constitutional right, as provided in
Article 300A of the Constitution. The right to a pension was viewed as if
it were a right to property.

The right to property under Article 300-A of the Indian Constitution is not
only constitutional or legal, but also a human right, and it can only be taken
away by the authority of the law as observed by the High court in Narayan
Prasad v. State of Chhattisgarh (2017).

Although the right to property is no longer a fundamental right, it is

nonetheless protected by the Constitution as a Constitutional and a human
right”, reminded the Allahabad High court to the government. in the case
of Gayatri Devi v. the State of UP (2019).

CRITICISM:

 The Fundamental Right to Property has been the most controversial since
the beginning of the Constitution.

 It has resulted in clashes between the Supreme Court and Parliament.

 It has resulted in several constitutional amendments, including the 1st, 4th,

7th, 25th, 39th, 40th, and 42nd Amendments.

 Articles 31A, 31B, and 31C have been added and modified over time to
nullify the effect of Supreme Court judgments and to protect certain laws
from being challenged on the basis of violation of Fundamental Rights.

 The majority of the litigation iscentred on the state's obligation to pay

compensation for the acquisition or requisition of private property.

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CONCLUSION:

The right to property which was treated as a fundamental right prior to the
44th amendment act, 1978 has now been treated as a legal and
constitutional right which is provided under Article 300A of the
constitution.

Even though the land has been the most precious asset in India, the
government has the right to acquire the land for the public by paying a
certain amount of compensation which may not be equal to the market
price, however, it is an implied right provided under the same provision
for the aggrieved party to file suit in case of incompetent compensation.

Thus, it is to be ensured by the government and the concerned authority

that when the government needs land and it acquires the land, an
adequate amountof compensation is paid to the landowners.

The amount of compensation must be just, fair and reasonable as the right
to property is not a fundamental right but it is still a constitutional right.

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BIBLOGRAPHY:

 Primary Sources:
 The Constitution of India: By Dr. B.R. Ambedkar
 Introduction To The Constitution Of India: By Dr. Durga Das Basu
 India’s Founding Moment: The Constitution Of A Most Surprising
Democracy: By Madhav Khosla
 Constitutional Law of India: By Dr. J.N. Pandey
 Indian Polity: By Mr. M. Lakshmikant

 Secondary Sources:
 www.lawyersclubindia.com
 www.livelaw.in
 www.indiapropertyrights.org
 www.lawzmag.com
 www.lawyersclubindia.com
 www.legalbites.in
 www.blog.ipleaders.in
 www.lawinsider.in
 www.legalserviceindia.com
 www.indiankanoon.org
 www.legalcrystal.com
 www.supremecourtcases.com
 www.kanoon.com
 www.lawschoolnotes.wordpress.com
 www.manupatra.com

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