Right to Property: Prior to 1978 and it's Present Position | Constitutional Law - CLAT PG PDF Download

Right to Property in the Indian Constitution 

• The Indian Constitution originally recognized the right to property as a fundamental right. However, in 1977, the  44th Amendment  removed this status, making it a statutory right.
• Article  300 (A)  was inserted to ensure that no person could be deprived of their property except by authority of law.
• The amendment aimed to enhance the state's power to acquire property for social welfare, reflecting a shift towards a more socialist approach.

Historical Context and Property Rights 

• Indian concepts of property and wealth differ significantly from Western notions, shaped by unique historical developments.
• Property rights, as understood today, are complex social constructs rather than self-evident truths, leading to contemporary debates and resistance against state land acquisitions.

Conflict of Ideas 

• Conflicts arise between Western ideas of development and liberalization, promoted by the ruling elite, and traditional Indian perspectives on property and land.
• Cases like  Singur  and  Nandigram  exemplify clashes of cultures regarding land acquisition and development.

Balancing Rights and State Power 

• The original framework sought to balance the right to property with the right to compensation, reflecting the tension between individual rights and state power.
• Over time, amendments like Articles  31-A  ,  31-B  , and  31-C  demonstrate the evolving nature of property rights and the state's role in regulating them.

Doctrine of Eminent Domain 

• Historical Background : The concept of  Eminent Domain  is centuries old, originating when an English king seized private land for public use, establishing the principle that the sovereign could act in the public interest.
• Doctrine's Functionality : Today, this doctrine empowers the state to acquire private land for public purposes, emphasizing the need for clear public benefit in such actions.
• Contemporary Relevance : In modern contexts, the doctrine raises critical debates about  Development Induced Displacement  , where communities are forcibly relocated for economic development, often viewed as a violation of human rights.

Key Elements of Eminent Domain 

• Property must be taken for public use.
• Compensation must be provided for the property taken.

Latin Maxims Underpinning the Doctrine 

•  Necessitas Public Major est Quam Public  Necessity is Greater than Private Necessity.
•  Salus Populi est Suprema Lex  The Welfare Of The People Is The Paramount Law.

 Modern Applications and Limitations 

• In contemporary practice, the power of  Eminent Domain  is subject to constitutional restrictions, ensuring that property can only be taken for public use and with just compensation.
• The distinction between public and private necessity is crucial, as governments must justify their actions within the framework of public welfare.

Supreme Court's Interpretation of Property Rights 

A. Pre-1978 Era: Fundamental Right to Property 

• During this period, the Ninth Schedule was introduced in 1951 to protect land reform laws from judicial scrutiny, with Articles  31 A  and  31 B  ensuring certain state acts were beyond legal challenge.
• The  Fourth Amendment  of 1955 amended Article 31, clarifying state powers regarding  compulsory acquisition  and  requisition  of private property, particularly in response to the Supreme Court's ruling in  State of West Bengal v. Bella Banerjee  .
• The Supreme Court prioritized  land reforms  over property rights, advocating for legal adherence in administrative actions.
• In the  Bank Nationalisation case  , the court emphasized the constitutionally guaranteed right to compensation equivalent to the value of acquired property, ensuring fair compensation for expropriated owners.

B. Post-1978 Era: Constitutional Right to Property 

• The Supreme Court shifted focus to  property and wealth rights  , aligning with Article 39's emphasis on resource distribution for public benefit.
• During  Liberalisation  , the court sought to reinforce protections for property rights, aiming for genuine safeguards rather than token measures.
• Property acquisition was seen as not just temporal but needing to align with spiritual and societal norms, reflecting a blend of individual and collective claims.

44th Amendment and Current Context 

• The  44th Amendment  in 1978 marked a significant shift, removing the Right to Property as a Fundamental Right and redesignating it as a constitutional right under Article  300 A  .
• This change was driven by the need to balance individual property rights with the state’s authority to acquire land for public purposes, particularly in the context of  land reforms  and  zamindari abolition  .
• The amendment aimed to address the historical abuses of power and ensure that land acquisition laws were just and equitable, reflecting the evolving socio-political landscape of India.
•  Present Scenario  : The current legal framework around property rights continues to evolve, reflecting ongoing debates about the balance between individual rights, state power, and social justice.

Recent Developments in the Supreme Court 

• In a recent Public Interest Litigation (  PIL  ) pending in the Supreme Court, the argument was made that the  1978 statutory elevation of the right to property  was no longer relevant.
• The historical purpose behind the 1978 shift, aimed at curbing large land holdings and redistributing land among the landless, has been achieved.
• Therefore, there is a call for reinstating the right to property as a fundamental right, reflecting the changing societal and legal landscape.
• The Supreme Court, in the 1973  Keshavanandan Bharati case  , established the concept ofbasic structure, which includes the country's democratic framework and its fundamental rights.
• Initially, it was suggested that the fundamental rights might not be part of this basic structure. However, in a later case involving  Indira Gandhi  and  Raj Narain  , it was clarified that the fundamental rights are indeed vital and cannot be altered.
• The Supreme Court's recent stance indicates a potential shift in constitutional interpretation, suggesting that by  2050  , the  socialist tag in the Preamble  might be removed and the  Right to Property  could be restored as a Fundamental Right.

Judiciary vs Legislature 

• The struggle between the judiciary and the legislature over the  right to property  has been a significant aspect of India's constitutional history.
• The judiciary aimed to uphold the Constitution by invalidating legislative actions that curbed property rights.
• In response, the legislature amended the Constitution to assert its supremacy, particularly concerning fundamental rights.
• The Supreme Court's interpretations of  Article 13(2)  regarding the validity of amendments to fundamental rights played a crucial role in this struggle.
• In  Shankari Prasad v. Union of India  , the Supreme Court upheld the first amendment, stating that fundamental rights could be amended under Article 368.
•  In Sajjan Singh v. State of Rajasthan  , the court reaffirmed the power to amend fundamental rights, paving the way for further legislative actions.
• The challenge to  Article 31 C  was significant as it aimed to validate laws violating fundamental rights, raising concerns about the Constitution's supremacy.
• The debate over the amending power of the Parliament concerning fundamental rights continues to be a pivotal aspect of India's constitutional framework.