In India there was a demand for the removal of the fundamental right to propert from part III of the Constitution. It was argued that the retention of it as a fundamental right leaves it to the judges rather than to the Parliament to decide the quantum of compensation payable when property is acquired for public purposes. Secondly, it was argued that the implementation of the Directive Principles of State Policy in the Constitution is rendered impossible by the right of property in India.

Property under Indian Constitution means any proprietary interest that can be acquired, disposed or taken possession of. It is not only tangible but also includes any bundles of right which the owner can exercise to the exclusion of others . Earlier Supreme Court was of the view that it is an abstract right only and not concrete but later in Commissioner Hindu Relegious Endowments v. Swamiar , it accepted right to property as a concrete right also.

So in the text ahead we would finally trace that hoe the above two argument s have actually amounted to the deletion of right to property form Part III and it becoming a legal right. To start with:

THE Constitution (First Amendment) Act, 1951

The introduction of the First Amendment bill was witnessed by the Provisional Government because general elections took place in 1952, the bill basically centered around the ‘certain difficulties that had been brought to light by the judicial decisions and pronouncements specially in regard to fundamental rights’.

After the independence India’s Political Leaders and planners embarked on social and economic reconstruction of Indian society by first of all removing the evils of zamindari system .The First Five year plan was in support of this ad it excluded the presence of intermediaries and had given the land to tiller. Consequently land reforms were enacted in UP, Bihar and elsewhere . But at the same junction of time the apex court in State of Bihar v. Kameshwar  held that the Bihar State Management of Estates and Tenures Acts,1949 void on the ground that compensation provided was no compensation . So as to nullify the effect of this judgment and also to upheld the validity of Zamindari Abolition Regulation first Amendment was done and Pt. Jawaharlal Nehru the then Prime Minister had enunciated the doctrine of Parliamentary Supremacy during the constituent assembly debate on compensation. He declared:

‘No Supreme Court and no judiciary can stand in judgment over the sovereign will of the Parliament representing the will of the entire community. If we go wrong here and there it can point out ultimate analysis, where the future of the community is concerned, no judiciary can come on its way, and ultimately the whole Constitution is a creature of Parliament.’

Therefore he first amendment added to art 31 two explanatory clauses 31-A and 31-B to fully secure the abolition of zamindari.

The Constitution (Fourth Amendment) Act, 1955

In 1954 when the Parliament adopted  a resolution for the establishment of “socialistic pattern of society” in India the State started assuming the role of a welfare state and were vitally concerned with reducing disparities in income, to prevent monoplies and concentration of economic power in a few hands . Consequently in furtherance of the above objective it started regulating and controlling the private business of several commercial companies and undertakings as done in Sholapur mills Case, Subodh Gopal’s Case and Belle Banerjee’s Case, the Supreme Curt was of the view that words ‘taken possession of or acquired’ amounted to deprivation hence compensation must be paid even though merely state took the possession and not acquired it. And according to Bella’s case the compensation should be equivalent to what the owner is deprived of.

Thus the above judgment of the court stood as a brake in the regulatory power of the state and property was given a very wide connotation. So it became necessary that the power to fix ceilings on land holdings, to distribute excess of land and lastly to remove the jurisdiction of the judiciary from fixing the compensation.

This led to Fourth Amendment which brought a change in the substantial character in 31(2) and also inserted (2-A). This way the State acquired the right to pass any law restricting, modifying and curtailing the right of ownership in property without being liable to pay compensation .It also provided that thee can be no taking or acquisition till the time the title is transfer to the state. Due to this the legislative activities increased considerably and then came the important case called the Vajaravelu Case in which Land Acquisition (Madras Amendment ) Act ,1961 which provided for land acquisition for housing scheme and laid down principle for fixation of compensation . Now the question in the present case was that the persons who were getting deprived of there  property were given lesser amount of compensation then what was just as laid down in Bella’s case. So the Supreme Court was barred to fix the compensation it said it can still get into the question of reasonable classification under Art 14 and also J. Subba Rao said that if the compensation was illusory or if the principles prescribed are irrelevant to the value of the property or about the time of its acquisition it can be said that legislature committed a fraud on its power and the same is a bad law.

Also in Art 31B the Ninth Schedule of the Constitution containing 13 Acts and regulations were made immune from the attack of fundamental rights chapter in the Constitution.

The Constitution (Seventeen Amendment) Act, 1964

It appeared that notwithstanding the amendments, certain other legislative measures by different States for the purpose of giving effect to agrarian policy were effectively challenged. So thus the Parliament thought that it was necessary to make amendment in Art 31-A and Art 31-B .Accordingly, the expression ‘estate’ in At 31-A was amended retrospectively by a new definition given in Art 31-A(2) and another proviso was added to 31 –A(1) .In art 31-B  instead of 13 acts 44 amendments act were added to the schedule.

The validity of the above amendments were challenged in Golak Nath’s case though the amendments were upheld but it was held that any amendment made under art 368 is a law under art 13 due to which state can take no action which infringes or abridges fundamental rights due to which j. Hiddayatulah said that the constitution needs to be amended as putting right to property as a fundamental right was in his opinion an error . But this defect was resolved by the 24th Amendment 1971 and the basic reason for the initiation of this bill was a conflict between the fundamental rights and the Directive Principles Of State Policy. And from then onward amendment under art 368 was not considered to be a law any longer.

The Constitution (twenty-fifth Amendment) Act, 1971

By this amendment a new clause was substituted for Art 31(2) replacing the expression ‘Compensation’ by the for ‘Amount ‘ and making the amount and mode of payment for takeover of property non –justiciable .And also by this time the conflict between the fundamental rights and Directives was over and Directive Principles of State Policy gain precedence over fundamental rights conferred under Art 14,19 and 31. It had made special provision with regard to law intended to give effect to the directive principles contained in art 39 (b) and 39 (c) of the Constitution.

Again Kesavananda Bharati’s Case the validity of 24th and 25th   Amendments were challenged along with the judgment of Golak Nath. Golak Nath was overruled and the Doctrine of Basic Structure was propounded by which any constitutional amendment has to pass the test of basic structures that means if it contravenes the basic structure the the amendment is not valid though an exhaustive list stating what all is there in basic structure was not given.

Transformation From Fundamental Right to Legal Right

The aftermath of the emergency witnessed not only changes in the poltical nvironment of the country but also in the realm of constitutional law . The Constitution (42nd Amendment) Act, 1976 made compreh- ensive changes in the Constituion primarily with the objective of removing “the impediments to growth of the Constitution”. The amendments were to spell out high ideas of secularism, socialism, democracy, to make Directive principles more comprehensive and give them precedence over fundamental rights .

The Act of 1976 widened the scope of 31(c) so as to cover all the Directive Principles to be given precedence over the fundamental rights. Further three new articles 39 A ,43A and 48A were inserted in Part IV . Again it was challenged in Minerva Mills case and the Act was declared unconstitutional upto the extent of it giving precedence to Directives .

Right to property was originally incorporated in Article 19(1)(f) of the Indian Constitution which declared that all the persons shall have the right ‘to acquire ,hold and dispose of property’ along with Art.31 which provided certain safeguards against the compulsory acquisition of individual properties which was based on English concept of private property  and was modelled on basis of Sec 299 of Government of India Act, 1935. As regards the constitutional provision relating to it Art 19 (1)(f) was subjected to reasonable restrictions under art 19(5).

After the Janta Government took over the reins at he Centre , it sought to undo the amendments made under 42nd Amendment Act. It enacted 44th Amendment Act ,1978 which brought about one of the  most significant change as it resulted in the deletion of right to property as a fundamental right and provided for its reincarnation as art 300-A to recognize it as a legal right.

The scope of Art 300-A was determined by the Supreme Court in Jilubhai Nanbhai Khachar v. State Of Gujarat and it was held that right to property does not form the basic structure of the Constitution. And also expression ‘property’ in article 300-A has to be understood in the context of the sovereign power of eminent domain of the State.

– Shivali Bansal