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A PROJECT ON: RIGHT TO PROPERTY UNDER THE CONSTITUTION OF INDIA

SUBMITTED TO: Mr. Azim Bahadar Pathan (FACULTY OF LEGAL METHODS)

SUBMITTED BY: Harsit.V.Raj Roll No.-48 Semester-I DATE OF SUBMISSION: 24st of October, 2011

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR (C.G.)

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who always stood by me. I would also like to thank the University for providing me the internet and library facilities which were indispensable for getting relevant content on the subject. RAIPUR (CHHATTISGARH) 2 . as well as subscriptions to online databases and journals. HARSIT V RAJ FIRST SEMESTER B. Mr. Special thanks goes out to my seniors who have been relentless in their help and supporting providing any material whenever required and my colleagues. L.ACKNOWLEDGEMENTS I would like to take this opportunity to express my deep sense of gratitude towards my course teacher. irrespective of the decisions taken by me. Azim Bahadar Pathan for giving me constant guidance and encouragement throughout the course of the project.L. which were instrumental in writing relevant text. Without their support this project would not have seen the light of the day.B.A. HIDAYATULLAH NATIONAL LAW UNIVERSITY.

Objectives of the project can be summed up as follows:1. journals. research papers websites. 300 (a). 31 (a) and Art. 2. TABLE OF CONTENTS 3 . To explain in detail the 44th amendment to the Indian constitution.RESEARCH METHODOLOGY & OBJECTIVES This project on „The Right to Property under the Constitution of India‟ is non-empirical in nature and it derives all the data from the secondary sources of data such as books. To explain Art. To understand why the right to property was removed from the list of the fundamental rights.19. 3.

... RIGHT TO PROPERTY UNDER ART......................9 3..................................... BIBLIOGRAPHY............................13 5.....5  POST CONSTITUTIONAL DEVELOPMENTS  PRE 1978 THE FUNDAMENTAL RIGHT TO PROPERTY 2.......................14 6....................................................... INTRODUCTION.... 300A...................................................................................................................................................................11 4...........16 4 ................. THE 44TH AMMENDMENT ..... CASES RELATED TO THE RIGHT TO PROPERTY........................................................................................................................................ CONCLUSION.............1.....................................

Montesquieu has quoted that one would forget sooner the murderer of his father than the man who robbed him of his property1.INTRODUCTION “That government can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of a legislative body without any restraint” -Joseph Story These words will often haunt every person who endeavors to look into the dismal state of affairs that the property rights under our Constitution has been through since its inception. This essay intends to document the development of the legislative and judicial saga that led to the removal of Right to Property from the fundamental rights‟ chapter of our Constitution.” 1 Palkhivala. Our Constitution Defaced and Defiled. N A. 5 . The right to property is often derided as the “least defensible” right in a socialist democracy and it happened in our country as well. But if we look into the detailed history of right to property cases and amendments. each age will have to reconsider it. What we really have to derive from it is the importance of property rights in a person‟s life and the extreme and innovative means he could come up with to defend it. pp 53-61. It seems so preposterous that the reason given for the removal of property rights was that since it induced a lot of controversy it was thought to better get rid of it. And it is also disheartening to note the attitude of our legislature towards a basic human right like property rights. It is very absorbing to note that Right to Property has induced the most number of amendments to our Constitution and also has formed the core from which some commendable and historic decisions emerged out of our judiciary. “Where it will trouble us a thousand years. Most of the cases documented herein after have been extensively studied by every student of law in our country but sadly they have never been studied from the importance of property rights‟ perspective.

They definitely rejected the Russian theory of socialism but accepted the doctrine of individual right to property subject to the laws of social control. The state also has the power to acquire the land of a citizen for a public purpose after paying compensation. A scrutiny of the relevant provisions of the Indian Constitution as they stood on January 26. The said fundamental right is not absolute. The Directive principles of state policy lay down the fundamental principles of state policy and the governance of the country. It has the further power to impose taxation on a person for his property. Indeed. the state in exercising the power to enforce this principle does in fact enforce the duty implicit in the exercise of the fundamental right. 19(5). 19(1)(f). An assumption by constant repetition has become a conviction in some minds that the right to property has been so entrenched in our Constitution that it is not possible without amendment to enforce the directive principles. 39(b) and (c). taxation and acquisition is a justifiable issue. The gist of the said provisions may be briefly stated thus: Every citizen has the individual right to acquire. But the question of the validity of the said laws of social control. namely that it should be so reasonably exercised as not to interfere with similar rights of other citizens.Post constitutional developments There is some misapprehension on the scope of the right to property conferred under our Constitution. The exercise of it. The articles place the concept of the right to property in a right perspective. A duty is implicit in this right. the right to property is subject to justifiable laws of social control. The conflict between the citizen‟s right and the state‟s power to implement the said principles are reconciled by putting limitations both on the right and the power. 226 and 265. 1950 will dispel this assumption. to hold and dispose of property. 31. and through the relevant principles. under the said provisions. should be reasonable and in accordance with public interest. They are Articles 14. the state is directed to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. All the laws made in exercise of the said powers are governed by the doctrine of equality subject to the principle of classification. The right to property was conditioned by the social 6 . therefore. 32. Shortly stated. The state‟s power is also subject to the condition that the law made by it in so far it infringes the said fundamental right should stand the double test of reasonableness and public interest. It is subject to the law of reasonable restrictions in the interest of the general public.

Under the Constitution. State of U. By the constitution (Seventeenth Amendment) Act. Pre 1978 The Fundamental Right to Property The Ninth Schedule was inserted in the constitution by the Constitution (First Amendment) Act. article 31 A was amended with respect to meaning of expression estate and the Ninth Schedule was amended by including therein certain state enactments. The fundamental assumption of the Constitution was that every party that was elected to power should be bound by the provisions of the Constitution and should strive to bring about the new social and economic structure of the country. Bella Banerjee3. 1951 along with two new Articles 31 A & 31 B so as to make laws acquiring zamindaris unchallengeable in the courts. though the Supreme Court was itself skeptical about the way the government went about exercising its administrative power 2 3 Supra note-1 AIR 1954 SC 170 4 Vasanlal Maganbhai Sanjanwala v. after taking away such land from the land lords. The higher judiciary was made the arbiter to maintain the just balance between private rights and public interests.P. The social order visualized by the Constitution was expected to be brought about smoothly by a process of gradual judicial adjustment. both the means and the end were equally important in the evolution of a new society2. The amount of compensation payable for this purpose was made unjustifiable to overcome the effect of the Supreme Court judgement in the decision of State of West Bengal v. By the Fourth Amendment Act. in the manner prescribed therein. 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 property4. 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.responsibility. 1955. Art 31 relating to right to property was amended in several respects. 1964. AIR 1959 SC 564 7 . AIR 1961 SC 4: Attar Singh v. State Of Bombay. The purpose of these amendments related to the power of the state o compulsory acquisition and requisitioning of private property. Thirteen State Acts named in this schedule were put beyond any challenge in courts for contravention of fundamental rights.

in this regard. when the court admirably stood up for the right to property in however a limited manner against the over reaches of the socialist state. The court however really clashed with the socialist executive during the period of nationalization. 8 . The Supreme Court was insistent that the administrative discretion to appropriate or infringe property rights should be in accordance with law and cannot be by mere fact.

Shanthi Bhushan. 300A.” These amendments are hereafter referred to as “the property amendments. which has been the occasion for more than one Amendment of the Constitution. 4 and 5 of that Statement run as follows: 3.The Forty-fourth Amendment: The Final Trespass into Right to Property “We decide and debate carefully and in person. The 44th Amendment removed the right to property from the Part III (“the Chapter on Fundamental Rights”) by deleting Articles 19(1)(f) and 31. all matters of policy. but that acts are foredoomed to failure when undertaken undiscussed. 9 . It would however be ensured that the removal of property from the list of fundamental rights would not affect the rights of the minorities to establish and administer educational institutions of their choice. the right to property. 4. Similarly. Necessary amendments for this purpose are being made to Article 19 and Article 31 is being deleted. by making consequential amendments. holding.” Pericles. would cease to be a fundamental right and become only a legal right.” The ostensible reason for this change is given in the words of the Law Minister. The Funeral Oration These words will occur to the reader who considers the far reaching changes made in the “right to property” by the 44th Amendment without eliciting public opinion and without submitting the changes to the scrutiny of the Select Committee followed by a debate in both Houses on its report. and by inserting in Part XII the following new chapter: “Chapter IV—Right to Property. not that words and deeds go ill together. Persons not to be deprived of property save by authority of law—no person shall be deprived of his property save by authority of law. who has signed the Statement of Objects and Reasons for the 44th Amendment: Paragraphs 3. “In view of the special position sought to be given to fundamental rights. the right of persons holding land for personal cultivation and within ceiling limit to receive market compensation at the market value will not be affected.

namely “delete from the list of fundamental rights and instead affirm right to work. because a candid explanation would have said that the change was being made to fulfill part of the pledge given in the Janata Party Manifesto for the 1977 Parliamentary elections. because the right to work has not been affirmed. would. 10 . It seems to have been realised that right to work cannot be affirmed because no work may be available. which those rights did not occupy before. because Article 37 clearly makes the “rights” conferred in the Part IV (Directive principles of state policy) not enforceable in any court. which the Janata Party was pledged to restore. Nor does the 44 th Amendment give any new position to the fundamental rights. be given express recognition as a legal right. This explanation is not candid. An unemployed person will seek in vain to secure his “right to work” which must mean gainful employment and not slave labour. are now partly implemented by the 44th Amendment. Not convincing.” Nor does Article 41 confer “right to work” on anyone. Article 41. and (3) the correlation of fundamental rights to Directive principles of state policy.5. provision being made that no person shall be deprived of his property save in accordance with law. while ceasing to be a fundamental right. Property.” This explanation for the change is neither candid nor convincing. recognises this when it qualifies the duty of the state to secure work by the words “within the limits of working capacity and development. however.” The present Amendment implements a part of the pledge. The amendments proposed by in the Janata Party Manifesto. because the fact that the Constitution had to be amended a number of times to deal with right to property is not a sufficient reason for deleting it from the chapter on fundamental rights. have been made without realising (1) the close relation of property with other fundamental rights. which is a principle of state policy. (2) the effect of this change on the legislative power to acquire and requisition property.

The petitioners were permitted to challenge the 24th. In this case popularly known as the fundamental rights‟ case the petitioners had challenged the validity of the Kerala Land Reforms Act 1963. K S Hegde and A N Grover who. The fundamental rights are among the essential features of the Constitution. therefore. were superseded for the office of the Chief Justice of India. the amending power does not extend to damaging or destroying any of the essential features of the Constitution. 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 Act5. Justices J M Shelat. while they may be abridged. and that it should be trusted to exercise this seminal right wisely but not too well. 11 . 5 Baxi. Seventy years earlier.CASES RELATED TO THE RIGHT TO PROPERTY Fundamental rights Case: The Decision that saved the Constitution but yet Killed the Right to Property Kesavanada Bharathi vs State of Kerala. While Parliament is entitled to abridge any fundamental right or amend any provision of the Constitution. 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. the abridgment cannot extend to the point of damage to or destruction of their core. 25th and the 29th amendments also. Upendra. “The constitutional quicksand of Kesavananda Bharathi and the Twenty-fifth Amendment” (1974) 1 SCC pp 45. who retired a day after the judgement. Six senior judges of the Supreme Court (Chief Justice S M Sikri. and there was no judicial pronouncement to restrain that dictator. and Justices P Jaganmohan Reddy and A K Mukherjea) held as follows: (1) Parliament‟s amending power is limited. Hitler had asserted and exercised such a right by invoking the amending power of the German legislature. for deciding according to their conscience.21 was one of the milestones in the history of jurisprudence.

the judgment of Justice Khanna. Justices A N Ray. with which none of the other twelve judges totally agreed. S N Dwivedi and Y. (b) the substantive provision of Article 31C. has become the law of the land. Khanna did not agree completely with any of these twelve judges and decided the case midway between the two conflicting viewpoints. which abrogates the fundamental rights. it does not enable Parliament to alter the basic structure of framework of the Constitution. is not referred to here. 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. (The question of severability of the offending provisions of Article 31C. which was dealt with by one of the judges. and (c) the latter part of Article 31C. K K Mathew. he went a part of the way along with them. He held that (a) the power of amendment is limited. V. even those unconnected with property. 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.(2) Article 31C is void since it takes away invaluable fundamental rights. is valid on the ground that it does not alter the basic structure or framework of the Constitution. and they held Article 31C to be valid. six judges decided the case in favour of the citizen and six in favour of the state. M H Beg. is void. which ousts the jurisdiction of the Court. Justice H R. by a strange quirk of fate. Thus. D G Palekar.) On the other hand. Chandrachud held that the power of amendment is unlimited. when he held that Right to Property did not pertain to the basic structure of the Constitution. But then he spelt catastrophe to 19(1)(f). Thus. 12 .

The word “property” connotes everything which is the subject of ownership. AIR 1975 SC 2299.10 6 7 State of Maharashtra v. This Article was introduced from 20th June 1979. Right to hold a property is no more a fundamental right6. Jilubhai v. the right to property was removed from part-III relating to fundamental rights and was reintroduced as Article 300A as a constitutional right. Though the Right to property lost its protective aemour as a fundamental right after constitution (44th amendment) Act.not part of the basic structure Right to property did not pertain to the basic structure of the constitution and it was subordinate to the common good8. visible or invisible. 1995 Supp (1) SCC 596. state of Gujarat.617-618 : AIR 1995 SC 142 10 Id 13 . The word „property‟ used in Article 300A must be understood in the context in which the sovereign power of eminent domain is exercised by the state and property expropriated. This chapter contains only Article 300A which is now deals with the right to property. everything that has value or which goes to make up wealth or estate or status. Instead it is an constitutional right7. 9 Jilubhai nanbhai khachar v. tangible or intangible. RIGHT TO PROPERTY. This view was subsequently reiterated in a few cases which have been set out in jilubhai‟s case9. When Articles 19(1)(f) and 31 were deleted by the forty fourth amendment to the constitution. This article states that no person shall be deprived of his property save by authority of law. 1978.XII. corporeal or incorporeal. it was resurrected under Article 300A as a constitutional right.RIGHT TO PROPERTY UNDER Art. Thus. real or personal. state of Gujarat. The right to property is subject to state regulations. chandrabhan. AIR 1983 SC 803 : (1983) 3 SCC 387. 300A Article 300A falls within chapter IV of part. AIR 1995 SC 142 :1995 Supp (1) SCC 596 8 Indira Gandhi raj narain.

”11 Property is the most ambiguous of all categories. 552. which impinged upon these rights. People have rights. felt that the distinction between the two was unreal and said that nobody seems to have bestowed any thought on the question why property rights are not personal rights. which support or demolish certain kinds of property. whether the „property‟ in question be a welfare cheque. It covers a multitude of rights. 14 . and in the means of production worked by their owners must be protected by the higher law on the same logic on which it is proposed to safeguard by that law the interest in land of small tenure holders and of agriculturists within 11 Lynch vs Household Corpn. The right to enjoy property without unlawful deprivation. Considerations. Property does not have rights. a fundamental interdependence exists between the personal right to liberty and the personal right in property. As a result the courts were more astute to strike down legislations. 405 US 538. except that they are exercised by persons and enforced by the state. right to freedom of speech or personal liberty occupied a higher status in the hierarchy of values than property right. have no application to others. has given a decent burial both to the distinction and the preferred status of the so called personal rights or liberties in 1972 by saying “the dichotomy between personal liberties and property rights is a false one. it was thought that the so called personal rights like the right to vote. In fact. a home or a savings account. not less than the right to speak or the right to travel is in truth a „personal‟ right. That rights in property are basic civil rights has long been recognised. Arguments. If it be assumed that the fundamental right to property does not pertain to basic structure and can be amended by parliament without a referendum as proposed in the case of other fundamental rights regarding citizens. which have nothing in common. may be irrelevant in the next.CONCLUSION Once upon a time. It is therefore idle to present a case for or against private property without specifying the extent or value thereof. But Learned Hand. a great judge. Neither could have meaning without the other. For things are not similar in quality merely because they are identical in name. than upon property rights. then there can be no doubt that property is durable and nondurable consumer goods. which are conclusive in one stage of economic development. The Supreme Court of America which once gave hospitable quarter to the distinction between personal rights and property rights and accorded a preferred position to the former.

However. 2 SCC pp 65.”12 But this is where we have to really spare a thought—Justice K K Mathew had the most eloquent and liberal view in support of property rights.ceiling limit. “While these types of property can be justified as a necessary condition of a free and purposeful life. 15 . 12 K K Mathew. It is precisely the concentration of this type of property which the framers of the Constitution wanted to break up under Article 39 and distribute among the have-nots and there is no injustice in determining the compensation payable to the deprived owners on principles of social justice. at the end of his pursuit of defending property rights even he seems to have got misguided by the so-called conflict between directive principles and fundamental rights. 1978. Granting absolute right to property and also having to uphold the sanctity of a directive principle against concentration of wealth becomes almost an impossible thing to rationally achieve for any fair state which emerges and thrives on the foundation of rule of law. no such considerations are available in respect of the property in the means of production not worked or directly managed by their owners as it is not an instrument of freedom since it gives power not only over things but through things over persons. Fundamental right to property is dead. “Basic Structure and Fundamental Right to Property”. But long live right to. So let the Owl of Minerva take flight. The owners of these properties must be paid compensation based on market value in the event of the state or a corporation owned by the state acquiring them for public purpose.

in 16 . Mathew. basic structure and fundamental right to property. (1978) List of Websites: http://ccs. Our Constitution Defaced and Defiled. N A.(2002)  KK.in  http://indiacode .BIBLIOGRAPHY List of Books: Palkhivala.