CHAPTER 1- LEGISLATIVE HISTORY OF THE RIGHT TO PROPERTY

The Indian Constitution is first and foremost social document. A majority of the provisions in
the Constitution are therefore aimed at furthering the goals of social revolution. During the
nationalist movements, in the background of deep-rooted economic inequalities,
intermediaries in agriculture and exploitation in trade and industry, this above distinction was
highlighted in several public fora. In the Indian Constitutional context, the effort of
reconciling the values of democracy with that of socialistic pattern of society without a
tenable criterion for distinguishing the use aspect of property from its power aspect, made the
right to property a debatable issue. The fundamental rights of the Constitution are, in general,
those rights of citizens, or those negative obligations of the State not to encroach on
individual liberty there have been well-known since the late eighteenth century and since the
draft in the Bill of Rights of the American Constitution and the Indians have become heirs to
this liberal tradition.

The Fifth and Fourteenth Amendment of the Constitution of United States of America read:
"No person shall be deprived of life, property without the due process of law". The following
wide definition of property is generally accepted in that country. "Property" in its broader
sense is not the physical thing which may be subject to ownership, but is the right thing
which may be subject to ownership, but is the right of domination, possession, and power of
dispossession which may be acquired over it; and the right of property preserved by the
Constitution is the right not only to possess and enjoy it, but also to acquire it in any lawful
mode.

But the socialist concept of property is based upon the theory of labour. Karl Marx in his
work "Das Capital" propounded the theory thus: "In political economy there is a current
confusion between two very different kinds of private property, one of which is based upon
the producer's own labour, whilst the other is based upon the exploitation of the labour of
others.” The Russian Constitution, therefore, rejects private ownership of the instruments of
production but admits only to a limited extent of private ownership based upon the producer's
'own labour.' In is within this that the Constitutional Assembly Debates must be located.
Constitutional right under Article 300A in the Forty fourth-Amendment Act, which
ultimately proved to be the bottom line
1.1 - Constituent Assembly Debates
Since 1787 every people who have intended to give themselves a written Constitution have
had to decide what are the citizens rights to life, liberty and property. The Fundamental
Rights subcommittee on the 28 March 1947 stated that no private property could be acquired
for public use unless the law called 'for the payment according to principles previously
determined, a just compensation for the property acquired.1

The property provisions in the Draft Constitution appeared briefly before the Assembly in
November and December 1948 in the first of the two provisions considered was the right 'to
acquire, hold and dispose of property'. This right became subject only to' reasonable
restrictions' either in the public interest or the interests of Schedule Tribes. With the right to
possess property guaranteed in the Constitution, the Assembly again considered the extent of
the States power to deprive a person of his property in the name of social justice. The Union
Cabinet, in early 1948 in a broad resolution on industrial policy had laid down that property
was acquired by the government 'fundamental rights guaranteed by the Constitution will be
observed and compensation will be awarded on a fair and equitable basis'

According to Sardar Vallabhai Patel the solution to this quandary was Section 299 of the
Government of India Act, 1935 in which the power of the courts and the legislature was
limited and the courts would be unable to invalidate land reform and other property
acquisition legislation provided reasonable principles had been established and the legislature
would be unable to expropriate property without payment of compensation. Thus justice and
social reform would both be served. B N Rau, however, prepared a new clause that made an
omnibus provision in the directive principles the said that the ownership and control of
material resources should be distributed to subserve the common good and the operation of
the economic system should not result in the concentration of wealth.

1.2- Pre-Constitutional Position of Right to Property

The Constitution of India derives its foundation from the Government of India Act, 1935 and
the

1
Granville Austin. THE INDIAN CONSTITUTION-CORNERSTONE OF THE NATION. 2nd Edition. (New Delhi :
Oxford University Press. 1999) at pp.84
Universal Declaration of Human Rights (1948).

 Section 299 of the Government of India Act, 1935 secured the right to property and
contained safeguards against expropriation without compensation and against
acquisition for a non-public purpose.
 Article 17 of the Universal Declaration of Human Rights (1948) also recognises the
right to private property and India is a signatory to that Declaration.

The Constituent Assembly examined the constitutions of various countries, which guarantee
basic rights. In “Constituent Assembly of India, Constitutional precedents (Third Series)”
(1947), it is stated “Broadly speaking, the rights declared in the Constitutions relate to
equality before the law, freedom of speech, freedom of religion, freedom of assembly,
freedom of association, security of person and security of property. Within limits these are all
well recognized rights.”

The debates in the Constituent Assembly when the draft Article 19(1)(f) and Article 31 came
up for discussion clearly indicate that the framers of our Constitution attached sufficient
importance to property to incorporate it in the chapter of fundamental rights.

The provision regarding freedom of “trade and intercourse,” which was originally in the
chapter of fundamental rights, was later removed from that chapter and put into a separate
part (Article 301), in view of the suggestions by some members of the Constituent Assembly.
It is significant to note that similar suggestions in respect of the right to property were not
accepted.