Right to Property : Pre and Post 42nd Amendment

By CS Shirish Bhootra

2022-08-11 ; 11:00 p.m.

RIGHT TO PROPERTY: PRIOR AND POST 42ND AMENDMENT

The development of a nation has a positive correlation with administrative actions, judicial determination, and the laws framed by the legislature. As all these have the force of the Constitution of the country. The Constitution plays a supportive role by framing the principles upon which the country would function. In its absence, the whole classification and hierarchy upon which a nation is operated would easily fall apart. In the case of executive supremacy constitution’s role is nominal and its scope is very limited however in the case of democratic countries like India follow the constitution and their constitution is given more weightage rather than having weightage to the government or other machinery.

The constitution is the basic structure of administration, it bifurcated the powers between various organs of state and determines the national goals. It also highlights the fundamental rights of citizens which are of paramount importance for a citizen to live. It also focuses on contingent events or situations of emergency.

In the context of the above-mentioned value of the Constitution, the 42nd Amendment to the Indian Constitution that took place in 1976 played a significant role by muddling most principles as mentioned above, and also there was the addition of various new provisions.  Therefore the 42nd Constitution is also as Mini Constitution or Constitution of Indira.

Right to Property: Pre Amendment

Prior to the 42nd Amendment Right to property was included in the list of fundamental rights and it was not considered as a legal right.

Right to Property: Post Amendment

 [18th December 1976.] Constitution (Forty-second Amendment) Act, 1976 came into effect.

42nd Amendment modified the description of India from a  sovereign democratic by adding the words secular and republic and thereby it became a sovereign secular democratic republic, it also modified the title unity of nation by adding the word integrity, and thereby it became unity and integrity of the nation.

The right to property was originally one of the seven fundamental rights enshrined in Part III of the Constitution.

 Article 19(1)(f) and Article 31 contain a provision regarding this. Every citizen has the right to acquire, hold, and dispose of property, according to Article 19(1)(f).

 Article 31, however, guarantees every person, citizen or non-citizen, the right against property deprivation. It provided that no one’s property may be acquired from him unless there be a legal authority to carry out  such acquisition.

The 44th Amendment Act of 1978 discontinued the right to property as a Fundamental Right by repealing Article 19(1) (f) and Article 31 from Part III. Instead, the Act added a new Article 300A under the heading ‘Right to Property’ to Part XII.

The right to property is still a legal or constitutional right, but not to be considered a fundamental right. It is not a part of the Constitution’s basic structure.

Constitutional Provisions :

  • The right to property, however, was removed from the list of Fundamental Rights by the 44th Amendment Act of 1978.
  • Article 300-A of Part XII of the Constitution determined it as a legal right.
  • Articles 31A, 31B, and 31C to be considered as exceptions to the fundamental rights.

Significance :

  • It states that no one’s property may be taken from him unless there is legal authority to do so.
  • Though the Fundamental Right to Property under Part III has been repealed, Part III still contains two provisions that guarantee the right to compensation in the event of the state’s acquisition or requisition of private property. Following are the two instances where compensation is paid:
    • when the State acquires the property of a minority educational institution (Article 30);
    • This provision was added by the 44th Amendment Act (1978).
    • When the State acquires land under personal cultivation held by a person and the land is within the statutory ceiling limits (Article 31 A).
    • This provision was added by the 17th Amendment Act (1964).

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 is centered on the state’s obligation to pay compensation for the acquisition or requisition of private property.

Supreme  Court  Judgements :

 

Sh. Jilubhai Nanbhai Khachar Etc … vs State Of Gujarat And Anr. Etc. Etc on 20 July, 1994

Bench: K. Ramaswamy, N. Venkatachala

https://indiankanoon.org/doc/1515136/

It was determined that the right to property under Article 300A is a constitutional right not a part of the basic structure of the constitution.

Hari Krishna Mandir Trust vs State Of Maharashtra . on 7 August 2020

Author: Hon’ble Ms. Malhotra

Bench: Hon’ble Ms. Malhotra, Hon’ble Ms. Banerjee

https://indiankanoon.org/doc/74798333/

The Supreme Court ruled that the appellant could not be deprived of his strip of land, which was a private road, without the authority of law, which if allowed would be a violation of Art. 300A of the Constitution of India.

 

Vidaya Devi vs The State Of Himachal Pradesh on 8 January 2020

Author: Hon’ble Ms. Malhotra

Bench: Hon’ble Ms. Malhotra, Ajay Rastogi

indiankanoon.org/doc/127924004/

  • The Supreme Court ruled that the right to own private property is a human right that cannot be denied.
  • The party denying one’s right to property must have legal authority.
  • In the above-mentioned case, the plaintiff was compensated for the incorrect acquisition of property by the state.

Implications of Right to Property as a Legal Right :

  • It can be regulated, i.e., limited, shortened, or modified, without requiring a constitutional amendment, through ordinary parliamentary legislation.
  • It shields the private property from executive action but not from legislative action.
  • In the event of a violation, the aggrieved party cannot directly petition the Supreme Court for its enforcement under Article 32 (right to constitutional remedies, including writs). He has the right to file a petition with the High Court under Article 226.
  • There is no guaranteed right to compensation in the event that the state acquires or requisites private property.
  • It states that no one’s property may be taken from him unless he has the legal authority to do so.

Conclusion :

Excessive possession of land by zamindars and tenants, the legal status of the right to freedom was modified from a fundamental right to a constitutional right to avoid the situation of zamindars and other landowners misusing the right to property as a fundamental right against state measures to acquire land and to implement land ceiling laws in India. Nonetheless, as a constitutional right, this right is available to all persons and can be invoked in high court under Article 226 of the Indian Constitution

References

  1. 42nd Constitutional Amendment: A Draconian Act of Parliament.
  2. 42nd Amendment of Indian Constitution – Indian Polity.
  3.  Constitution of Indira: The most controversial amendment to the Indian Constitution.
  4. Fundamental Duties.

        5.  prepp.in/news/e-492-right-to-property-Indian-polity-note

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