The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that “no person shall be deprived of his property save by authority of law.” It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The 44th Amendment of 1978 removed the right to property from the list of fundamental rights. A new provision, Article 300-A, was added to the constitution, which provided that “no person shall be deprived of his property save by authority of law”.
Thus, if a legislator made a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. Furthermore, the aggrieved person would also have no right to move the court under Article 32 due to the right to property no longer being a fundamental right, though it would still be a constitutional one. If the government appeared to have acted unfairly, the action could have been challenged in a court of law by aggrieved citizens before the amendment.
The liberalisation of the economy and the government’s initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property. The Supreme Court had sent a notice to the government questioning why the right should not be brought back, but in 2010, the Court rejected the PIL
Property, as a legal social institution, has different forms in different cultures and legal systems. However, only a definition of constitutional property is common in all democratic countries. Since the state exercises eminent domain power against private property, it is pertinent to discuss the concept of private property in brief. The institution of private property has been a controversial issue with conflicting views, one completely denying the right to own private property and the other supports the holding of the private property.
However, the right to property is a natural and inherent right of an individual. Most of the modern constitutions, except those of communist countries have recognised the right of private property. Therefore, citizens have right to own and possess the property. This right of individual conflicts with the right of state to acquire property. A person has a right not to be deprived of his property except through due process of law.
The Indian Constitution does not recognize property right as a fundamental right. In the year 1977, the 44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as a fundamental right is now substituted as a statutory right. The amendment expanded the power of the state to appropriate property for social welfare purposes. In other words, the amendment bestowed upon the Indian socialist state a licence to indulge in what Fredric Bastiat termed legal plunder. This is one of the classic examples when the law has been perverted in order to make plunder look just and sacred to many consciences.
Indian experiences and conception of property and wealth have a very different historical basis than that of western countries. The fact the present system of property as we know arises out of the peculiar developments in Europe in the 17th to 18thcentury and therefore its experiences were universally not applicable. A still more economic area in which the answer is both difficult and important is the definition of property rights. The notion of property as it has developed over centuries and it has embodies in our legal codes, has become so much a part of us that we tend to take it for granted, and fail to recognize the extent to which just what constitutes property and what rights the ownership of property confers are complex social creations rather than self evident propositions.
This also seems to be the hidden reason why the right to property is suddenly much contested throughout India today and why the state is coming up unexpectedly against huge resistance from unexpected quarters in attempting to acquire land in India. The action of the state to assert the Eminent Domain over subsidiary claims on property and the clash which resulted there from Singur, Nandigram and other parts of India is precisely a manifestation of a clash of cultures. To put in Samuel Huntingtons words, the ideas of the west of development and liberalization propagated by the present ruling elite and the old Indic ideas which shape the views of the majority of the people.
The right to property under the Indian constitution tried to approach the question of how to handle property and pressures relating to it by trying to balance the right to property with the right to compensation for its acquisition through an absolute fundamental right to property and then balancing the same with reasonable restrictions and adding a further fundamental right o compensation in case the properties are acquired by the state. This was exemplified by Article 19(1)(f) balanced by Article 19(5) and the compensation article in Article 31. This was an interesting development influenced by the British of the idea Eminent Domain but overall it struck an interesting balance whereby it recognized the power of the state to acquire property, but for the first time in the history of India for a thousand years or more, it recognized the individuals right to property against the state.
However, when the state realized that an absolute property and the aspirations of the people were not the same the legislature was subsequently forced to make the said right to property subject to social welfare amid amendments to the constitution. Articles 31-A, 31-B and 31-C are the indicators of the change and the counter pressure of the state when it realized the inherent problems in granting a clear western style absolute fundamental right to property (even though it was balanced by reasonable restrictions in the interest of the public), specially Article 31-C, which for the first time brought out the social nature of property. It is another matter that the said provisions were misused, and what we are discussing today, but the abuse of the socialist state in India is not the scope of the present article and the articles are considered on their face value only.
The original Constitution of 1950 had safeguarded the right to property,recognized the same under part the III of the Constitution. However, soon after the Constitution of India came into force a long drawn out battle commenced between the persons who were sought to be deprived of their property and the legislature and executive until its final culmination. Ultimately by the forty fourth constitutionalamendment right to property as originally envisaged by the 1950 Constitution was deleted and only a small fraction of the right was retained in Article 300-A as a constitutional right. The whole genesis of the dispute over the right to property was the unwillingness of the legislature and executive to pay full compensation or full market value for the property acquired. The Constitutional obligation to pay compensation underwent massive changes because of the word ‘compensation’ used in Article 31(2). Hence tussle between the parliament and the judiciary as a result of which brought series of constitutional amendments to property right.Constitution makers refused to keep the word prefix ‘just’ for the word compensation under the Article 31(2). After the Constitution came into force (position before fourth amendment) court, in series of cases interpreted the word ‘compensation’ as ‘just compensation’ or ‘compensation equivalent to the property acquired’ by the state. Without paying equivalent compensation no property could be acquired even for public purpose, it was a great hurdle for the state. Therefore constitutional fourth amendment brought changes in the Article 31(2) i.e., for the property acquired compensation need not be just or equivalent compensation. The very object of fourth amendment exclude the judicial review over ‘compensation’ on the ground of ‘just compensation’ was failed to achieve. However even after the fourth amendment in series of cases court interfered by way of interpretation and held that the word ‘compensation’ means ‘equivalent to the property acquired or just compensation’. Even though state has sovereign power to acquire property for public purpose, acquisition cases are came before the courts on the ground thatcompensation was not adequate.
Therefore by twenty fifth constitutional amendment in 1971 the word ‘compensation’ in Art 31(2) was substituted by the word ‘amount’. By this amendment some extent battle between judiciary and parliament comes to an end. Court interpreted the word ‘amount’ something different from word ‘compensation’ these two words are not synonymous and also court held that amount declared for acquisition of property by State must not be illusory or it should not disproportionate to the property acquired. In Kesavananda Bharati v. State of Keralathe majority of the Supreme Court held that the amount which was fixed by the legislature could not be arbitrary or illusory or must be determined by the principle which are relevant for determining compensation.
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