RIGHT TO PROPERTY UNDER INDIAN CONSTITUTION- AN ANALYSIS
Author: Sonalika Gupta
Amity University Uttar Pradesh, Lucknow
ISSN: 2581-8465
ABSTRACT
Right to own property is a human right. The right being most important is also the most anxious law. This right has been subjected to a lot of political, social effects followed by various controversies. Right to property is contempt as the “least justifiable” right in a social- democrat and it occurs in our nation too. It is especially entrancing that Right to Property has effectuated the greatest number of amendments to our Constitution and has formed the centre of our judiciary decision. This article narrates the uneasy position in the framework of development from the series of Land Acquisition act 1894 elevated to the constitutional right by section 299 of the government of India act 1935 to be included under Article 300 which states that no citizen should be deprived except by law and notes the legislative and judicial clash from the pre and post-independence era, which further led to the deletion of Right to Property from the part III of fundamental rights of the constitution thereby making limitations on the State’s power to acquire property non-justifiable and to form as constitutional right to acquire land side-line with economic and social development and promotion of the country.
INTRODUCTION:
Blackstone defined property as – “Bundle of rights over which the owner has the rights of free use, enjoyment and disposal.”
Property has also been considered as a suite of labour and as a creation of land thus, the right to property has been regarded as an individual’s natural right[1] even in the absence of the state by jurists such as Locke- seen as deriving from Human Labour
“……everyman has a “property” in his own” persons.” This nobody has a right but himself. The “labour” of his body and the “work” of his hand, we may say, are properly his.”[2](Locke)
Right to property is also been recognized in international instruments such as –Article 17, under the Universal Declaration of Human Rights state:
- Everyone has the right to own property alone as well as in association with others,
- No one shall be arbitrarily deprived of his property.[3]
BACKGROUND
In India, the right to property has been very unequal and contentious. Several constitutional amendments and court rulings have been provided. In India, then, before colonial rule, the land was held in compliance with the various systems of tenure that differed throughout the region. So, while this is not true of all the region, the land used to be concentrated in the hands of some parts of the population, we shall refer to it as “Zamindar”.[4]
Under Indian colonial rule, the property right system was created. After the British have come to India, they need land for various infrastructure schemes, so they enforce separate land acquisition laws for different regions. Eventually, the regulation was all consolidated in the form of uniform legislation Act VI of 1857[5], which applies to all the territory that was under the governance of East India company.
Later, in 1894, the British government enacted the Land Acquisition Act[6], which amended in unified land acquisition law since British India.
POST INDEPENDENCE, BATTLE OF RIGHT TO PROPERTY
There was a great deal of controversy during the drafting of the Constitution for independent India on the extent of protection to be given to property rights. The strong law of property right would benefit the landed Zamindar community, which consolidated the land in its hand but harming the rights of the tenants. Since landowner owns approximately 43% of Indian land at the time of India’s independence. There was anonymity around the fact that the Zamindari system was to be abolished, but there was a lot of controversy over it and the way it was to be abolished.
So, while one faction led by Sardar Vallabhbhai Patel believed that there should be a Strong property rights protection with the right to complete compensation for the “zamindar” as land acquired by the state.[7]
The other fraction headed by the Jawaharlal Nehru objected than the later influenced by socialist principle wished to dismantle the zamindari regime and to affect a large-scale redistribution of land and nationalisation of the industry without payment of compensation. This was because, concerning the dissolution of the zamindari regime by state law, there was fear that, if “only” compensation had been provided, the Constitution would be challenged by the court on the ground of an inadequate justification for the compensation.[8] This could lead to a better outcome for the zamindar, and, more importantly, this kind of confrontation would take a long time to impede social change.[9]
Later, the Right to property was a part of the seven fundamental rights under part III. It was enshrined in two provisions of the Indian constitution-
- Article 19(1)(f) (repealed) – It guaranteed to every citizen the right to acquire, hold and dispose of the property.[10]
- Right under 19(1)(f) was subject to the reasonable restriction imposed in the public interest by article 19(5)[11]
- Article 31 (repealed by the44th Amendment Act of 1978)
(1) No person shall be deprived of his property save by the authority of law.
(2) No property, movable or immovable …, shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and how, the compensation is to be determined and given.[12]
The interesting claim is that Article 31(2) would not include a promise of the right to maximum reimbursement, which is because the constitutional assembly considers that court should not concern with the problem of the adequacy of the reimbursement from the point of market value. The decision of the Parliament to purchase the land was not to interfere. An inadequacy in reimbursement must be taken to the judge unless it infringes the human right to possess the land. Even with the ambiguous terms of Article 31(1) and Article 31(2), it was found that the state was unable to pay Zamindar for the large amount of land it owned, and this led to land reform being stalled for several years until 1950.[13]
After 1950, the Nehru government keeping with the socialist principle amended the constitution resulting in the insertion of Article 31A and 31B.
Article 31A providing immunity from judicial review of the acquisition of zamindari and abolition of permanent settlements. Thus, no statute that affected the right of a proprietor or intermediate holder in a State could be invalidated on the ground of inconsistency with fundamental right laid down in part III.[14]
Article 31B was a retrospectively validated statute or legislation contained in the 9th schedule from invalidity based on a violation of the fundamental rights set out in part III of the Constitution.
In the next two decades, there has been a persistent dispute tussle between the state and the courts over the right to property. The judiciary tried to view property rights liberally, while the government sought to redefine property rights in line with its economic growth policy, which is focused on agrarian and land reform.
LANDMARK CASES:
State of West Bengal v Bela Banerjee[15] In this case, the supreme court ruled that the government must give reasonable and just compensation to the landowner because the court believes that the property owner has a legal right to complete compensation in respect of the land acquisition. The legislature, believing that a liberal understanding of the duty to pay compensation would impede economic changes, thus amended Article 31(2), to ensure that the right of the State to purchase the property by duty cannot be challenged on the ground of lack of compensation or for its adequacy.[16]
However, the supreme court in the latter case of Vajravelu Mudaliar v Special Deputy Collector, Madras[17]–held that while statue could not be challenged on the inadequacy of the compensation paid for the acquisition of the land it could not provide for illusory compensation or determine compensation according to the principle that has no relation to its worth. This decision was made in the execution of Bela Banerjee’s legitimacy, with the result that the law amendment was taken as the minor effects.
Now, the clash between legislature and judiciary intensified with the supreme court decision in I C Golakhnath v. State of Punjab[18] in this case, it was held that the fundamental right including the right to property formed a part of the basic structure of the constitution, which the legislation cannot be amended.
Subsequently, the decision in RC Cooper V Union of India[19]followed the position in Vajravelu Mudaliar and refused to permit the nationalization of banks to go forward on the basis that the compensation provided was illusory.
Now, regardless of these decisions, the parliament did not hold, it passed the 24th and 25th constitutional amendments by which the state’s right to acquire property was cemented. The term ‘compensation’ replaced with ‘amount’ in Article 31(2). The principle behind the amendment was that the citizen’s right to property should be converted into states that are allowed to acquire property, and therefore the state could not be hampered of its ability to seize any property in exchange for some sum of money due at any period under any term and that executive action in obtaining property could not be subjected to judicial review.
The 25th constitutional amendment also adopted Article 31C under which government acquisition land should not be declared unconstitutional because it seemed to violate Articles 14, 19, and 31. This article essentially abrogated the fundamental right which it gave Parliament a blank charter, the state legislature to disregard the fundamental right, and secondly, it subordinated fundamental rights to the Directive principles on State policy.
The disagreement between the judiciary and the legislature continues until Kesavananda Bharathi V. State of Kerala[20], the decision was circumscribed by the basic structure of doctrine when the parliament passed to amend the constitution. The parliament could not change the basic structure of the constitution, although this decision held that the constitutional right form part of the basic structure of the constitution, the right of land was held not to form a part of this unamendable heart. Thus, the parliament might change the right to property against its own will. The 44th Constitutional Amendment introduced in 1978 consequently abolished Article 19(1)(f) and Article 31. Consequently, Clause 19(1)(f) and Clause 31 were repealed by the 44th Constitutional Amendment passed in 1978. The impact of this amendment was to prohibit the constitutionality of any statute or regulation from being contested on the basis that it violated the fundamental right to property. The amendment is only prospective in scope, such that any statute made prior to the entering into force of the amendment might also constitute a conflict according to Article 19(1)(f) and Article 31. Article 300A[21] was subsequently applied to the constitution by the 44th amendment, which introduced the arguments of Article 31(1). Accordingly, Article 300A states that no citizen shall be deprived except by statute.
CONCLUSION
Thus, we can see that the right to property was stripped from being a fundamental right to being a constitutional right. With the abolition of Article 31, there was no provision in the constitution, which provided the power of an eminent domain, so that vacuum was filled it in by the colonial legislation. The act of acquisition of land permits public officials to purchase land on a compulsory basis and, if appropriate for public purposes, the amount to be paid for such acquisition shall be determined by the public official in compliance with the market value of the land. The Land Acquisition Act has led to a great deal of lawsuits in the court over the acquisition of land by the government. Many of these cases have been dealt with to determine the public purpose of the term and the adequacy of the pay-out. It has been argued that the word public purpose has been subject to a great deal of misuse and has lately been freely construed by the court to include any cause for which a fraction of the population may be involved or of which it may gain.
The public purpose was described as employment, thereby allowing any public or private project to meet this requirement. Thus, the land has been purchased for a special economic zone, factory etc. Similarly, there has been uncertainty in the concept of compensation under the Land Acquisition Act. The Court has recently held that reasonable compensation for the purchase and arbitrary acquisition of land by the State may not be valid. However, while the Land acquisition allows for the recognition of market value. The role of assessing fair value is left to the courts, often resulting in the undervaluation of the land. Also, the land acquisition act has been widely criticized as not considering the right of the community displaced by the development.
The right to the property has an uneasy position in the framework of development, while it was restricted initially for implementing the government agenda of the abolition of the zamindari system and land reforms and is now side-lined with economic development and promotion.
[1]Yumpu, Commentary-Of-The-Charter-Of-Fundamental-Rights-Of-The-European-Union, YUMPU (Aug.29, 2020, 10:04 AM), https://www.yumpu.com/fr/document/view/51805406/commentary-of-the-charter-of-fundamental-rights-of-the-european-union/.
[2]wwnorton, The Second Treatise on Civil Government (1689), John Locke, WWNORTON (Aug.29, 2020,10:20 AM), https://wwnorton.com/college/history/archive/resources/documents/ch04_03.htm.
[3]United Nation, Universal Declaration of Human Rights, UNITED NATION (Aug. 29,2020,10:30 AM) https://www.un.org/en/universal-declaration-human-rights/.
[4]The system of Zamindari was a system of land possession of feudal type. Zamindars and other major landlords generally didn’t own the land completely under the Mughals, and even under the British. But they had to raise money from the residents there and must retain some of it. They normally kept land after independence. Many of the Zamindaris got their land either through imperial favours or just through taking them when the British left.
[5] Law Commission of India, Report on the law of acquisition and requisitioning, LAW COMMISSION OF INDIA (Aug. 29, 2020, 10:20 AM), http://lawcommissionofindia.nic.in/1-50/report10.pdf.
[6] The Land Acquisition Act, 1894, No I, of 1894 [Land Acquisition Act, 1894].
[7] Priya s. Gupta, The Peculiar Circumstances of Eminent Domain in India. SSRN Electronic Journal, DIGITAL COMMONS (Aug. 29, 2020, 10:20 AM), https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1044&context=ohlj.
[8]Gupta, Supra note 7.
[9]Gupta, Supra note 7.
[10]INDIA CONST. art. 19, cl. 1 sub cl. f.
[11]Article 19(5) in The Constitution Of India 1949(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
[12]INDIA CONST. art 31.
[13]Priya s. Gupta, The Peculiar Circumstances of Eminent Domain in India. SSRN Electronic Journal, DIGITAL COMMONS (Aug. 29, 2020, 10:20 AM), https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1044&context=ohlj .
[14] Shodhganga, Right to property under the Indian Constitution: An Analysis, SHODHGANGA (Aug. 29, 2020, 10:20 AM), https://shodhganga.inflibnet.ac.in/bitstream/10603/48090/9/09_chapter%202.pdf.
[15]State of West Bengal v. Bela Banerjee, A.I.R. 1954 S.C. 170.
[16]Vidya Mitra, Right to property, VIDYA MITRA (Aug. 29, 2020, 10:29 AM), https://www.youtube.com/watch?v=Mzulz-MJJSs
[17] Vajravelu Mudaliar v. Special Deputy Collector, Madras, A.I.R. 1965 S.C. 1017.
[18]I. C. Golaknath & Ors v. State of Punjab & Anrs., 1967 A.I.R. 1643.
[19]Rustom Cavasjee Cooper v. Union of India, A.I.R. 1970 S.C. 564.
[20]Kesavananda Bharati v. State of Kerala And Anr, A.I.R. 1973 S.C. 1461.
[21]INDIAN CONST. art. 3oo A.