Maitreyee Bhardwaj (Symbiosis Law School, Pune)
Rishabh Sharma (Jims School of Law, GGSIPU, New Delhi)
Yash Raj Gupta (Department of Law, CU)
The property derives its meaning from the French word ‘propitious’ which loosely translates to ‘a thing owned’ and comes from the Latin word ‘properties’. Property can find its origin in ancient civilization and the concept was fairly known to Hindus, Greeks, Romans, Scandinavians, and Jews. Apart from the common usage of property as land or material possessions, the property includes all the rights that a person has. According to Bentham, “property is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it.” Salmon says that “the law of property is the law of proprietary right in rem, the law of proprietary rights in personam being distinguished from it as the law of obligations. According to this usage, a freehold or leasehold estate in land, or a patent or copyright is property: but debt or the benefit of the contract is not.” The property, therefore, has various forms in different cultures and legal systems. However, the right to property is recognized as a natural and inherent right in almost all legislations across the globe except the countries that follow a communist form of government.
India, before the arrival of the British, followed the laws regarding property based on the religions that were practiced. After the arrival of British, Hindu, and Muslim laws were abolished and common law was practiced in the Indian courts set by the Britishers. The present laws related to the property are based more on common law than Indian laws.
In 1967, when the government forcibly took over the land, the right to private property was still a fundamental right under Article 31 of the Constitution. Right to Property ceased to be a fundamental right with the 44th Constitution Amendment in 1978. It was made a Constitutional right under Article 300A. The Supreme Court in a recent judgment held that private property is a human right and the state cannot take possession of it without following due procedure and authority of law. The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’, the court said. Grabbing private land and then claiming it as its own makes the state an encroacher. Therefore, even though the Right to Property might be repealed from the Fundamental Rights of the Constitution, Right to Property is still considered as a human right in India, and the state cannot encroach on the possessions of its citizen and claim its own. The Right to Property has come far from being a fundamental right to being repealed from Part III completely and becoming a constitutional right. This article will examine some aspects of the Right to Property in the pre-constitutional and post-constitutional era.
Right to Property before Independence- Pre-Constitutional Era
The Constitution of India derives its foundation from the Government of India Act, 1935, and the Universal Declaration of Human Rights (1948). The Government of India Act was passed by the British parliament in 1935 and came into effect in 1937. Although Section 127 of the Government of India Act, 1935 implied that the federation, if it deems necessary, can require any land situated in a province for any purpose, Section 299 of the Act 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 recognizes the right to private property and India is a signatory to that Declaration.
The Constituent Assembly examined the constitutions of various countries Constitutional Developments. There is some misapprehension on the scope of the right to property conferred under our Constitution. 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. A scrutiny of the relevant provisions of the Indian Constitution as they stood on January 26, 1950, will dispel this assumption. They are Articles 14, 19(1)(f), 19(5), 31, 32, 39(b) and (c), 226 and 265. The gist of the said provisions may be briefly stated thus: Every citizen has the individual right to acquire, to hold and dispose of the property. A duty is implicit in this right, namely that it should be so reasonably exercised as not to interfere with similar rights of other citizens. The exercise of it, therefore, should be reasonable and by public interest. The Directive Principles of state policy lay down the fundamental principles of state policy and the governance of the country, and through the relevant principles, the state is directed to secure that the ownership and control of the material resources of the community are so distributed as best to sub-serve 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. Indeed, the state in exercising the power to enforce this principle does enforce the duty implicit in the exercise of the fundamental right. The conflict between the citizen right and the State power to implement the said principles are reconciled by putting limitations both on the right and the power. The said fundamental right is not absolute. It is subject to the law of reasonable restrictions in the interest of the general public. The power of the State 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. The State also has the power to acquire the land of a citizen for a public purpose after paying compensation. It has further power to impose taxation on a person for his property.
All the laws made in exercise of the said powers are governed by the Doctrine of Equality subject to the principle of classification. But the question of the validity of the said laws of social control, taxation, and acquisition is a justiciable issue. Shortly stated, under the said provisions, the right to property is subject to justiciable laws of social control. The articles place the concept of the right to property in the right perspective. They rejected the Russian theory of socialism but accepted the doctrine of the individual right to property subject to the laws of social control. The right to property was conditioned by social responsibility. The higher judiciary was made the arbiter to maintain the just balance between private rights and public interests. The social order visualized by the Constitution was expected to be brought about smoothly by a process of gradual judicial adjustment. 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, in the manner prescribed therein.
Under the Constitution, both the means and the end were equally important in the evolution of a new society. After the Constitution of India came into force, the following agrarian reforms were introduced:
(1) Intermediaries were abolished
(2) Ceiling was fixed on land holdings
(3) The cultivating tenant within the ceiling secured permanent rights
(4) In some states, the share of the landlord was regulated by the law
(5) In one state, the tiller of the soil secured cultivating rights against the absentee landlord, and in some states, the rural economy was re-adjusted in such a way, that the scattered bits of the land of each tenant were consolidated in one place by a process of statutory exchange.
These reforms certainly implement the Directive principles of state policy. All these agrarian reforms could have been introduced within the framework of the original Constitution, “perhaps with a little more expensive that could have been re-adjusted through the laws of taxation.” said Justice Subba Raoes, 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, the security of person and security of the 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 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), given 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.
Post Constitutional Developments
Various amendments were made to Article 31 and finally it was repealed. In the 1949 constitution there were two articles providing the right to property, i.e. Article 19(1) (f) and Article 31, but both these articles were deleted from the Indian Constitution by the 44rth Amendment Act and Article 300A was inserted.
Right to Property under Article 31
After independence when Congress was in power at centre it decided to launched the abolition of Zamindari Programme in which it abolished the Zamindari system and acquired the lands of Zamindars. But the main difficulty before the government was of paying compensation. In Article 31(2) the word compensation was used without any adjective like just or reasonable. Thus, Supreme Court interpreted its meaning as ‘just compensation’. Various land legislations were declared invalid and were challenged under Article 14 and 19(1)(f). In Kameshwar Singh v State of Bihar, the Bihar Land Reforms Act, 1950 was held invalid under Article 14 for it classified the zamindars in a discriminatory manner for the purpose of compensation. Therefore, finding Zamindari Abolition Programme in danger because of these judicial pronouncements, the central government amended the Constitution and a new provision Article 31A was added .This new article laid down that no law providing for the acquisition by the state of any estate or of any rights therein, or for the extinguishing or modifying any such rights, would be void on the ground of any inconsistency with any of the fundamental rights contained in Articles 14, 19 and 31. As Article 31 was the only Constitutional Provision providing for compensation, which means an estate can be acquired or rights can be modified without paying compensation. The only exception was that such law should receive the assent of the President. The second proviso to Article 31A (1) refers to ceiling limits. This proviso says that the land exempted from acquisition should be within the ceiling limit and must be under personal cultivation. The Supreme Court in the case of Bhagat Ram v State of Punjab, interpreted the object of this proviso. The Court said that a person who is cultivating land personally and it is his source of livelihood, should not be deprived of that land under nay law protected by Article 31A unless the compensation at market rate is given.
In Waman Rao v. Union of India, the court held that amendments in the Ninth schedule made before the decision of Keshavananda Bharti v. State of Kerala that is before 24.04.1973 were beyond challenge but the amendments made afterwards could be tested on the grounds of amendment of basic structure. Similar views were given by the court in Minerva Mills v. Union of India and Bhim Singhji v. Union of India. In I.R. Coelho v. State of Tamil Nadu the nine judge bench of the Supreme Court unanimously decided that as held in Keshavananda Bharti case and later clarified in Waman Rao case while the laws included in the Ninth schedule before the decision in Keshavananda Bharti case are immune from any challenge on the grounds of violation of fundamental rights or basic structure and the Acts included after the decision shall be open to challenge. The Court reaffirmed that Article 31B did not destroy or damage the basic structure of the Constitution.
Article 31C was inserted by the 25th Constitutional Amendment to get over the difficulties placed by judicial decisions in the way of giving effect to the Directive Principles in Part IV. It provided immunity from any challenge on the grounds of violation of Articles 14, 19 and 31 any law enacted for implementing the directives in clause (b) and (c) of Article 39. In the 25th amendment it was further provided that such law made to give effect to the policy under Article 39(b) and (c), would not be open to judicial review. However, this second part was struck down in Keshavananda Bharti v State of Kerala, but rest of the Article was held valid. After this amendment 42nd Constitutional Amendment Act was passed by the Parliament which replaced Article 39(b)(c) by all Directives contained in Part IV of the Constitution. The part which was held unconstitutional in the Keshavananda Case was not omitted from the official text of the Constitution, since later cases seems to restrict the scope of judicial review of the statutory declaration only to the narrow question whether there is a reasonable nexus between the act passed and the objects of the directive it seeks to implement. But in the Minerva mills v Union of India, it was held that extending the immunity of Article 31C to all the Directives of Part IV by the 42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976 position, which has not been overruled by any larger bench yet. In Minerva Mills Ltd. v. Union of India, the extended version of article 31C was struck down by the Supreme Court. The Court ruled that the extension of the shield of article 31C to all the Directive Principles was beyond the amending power of Parliament under article 368 because by giving primacy to all Directive Principles over the Fundamental Rights in articles 14 and 19, the basic or essential features of the constitution viz., judicial review has been destroyed. Waman Rao v. Union of India, The Supreme Court maintained that article 31C as it stood prior to the 42nd Amendment Act made in 1978, was valid as its constitutionality had been upheld in Keshavananda Bharti case.
Right to Property under Article 300A
The Constitution (Forty-Fourth Amendment) Act, 1978, signifies the demise of the fundamental Right to Property. Before 1978, there were mainly two articles to protect private property, Arts. 19(1) (f) and 31, but they were repealed by constitutional amendments, and thus private property was left defenceless. The word property used in Article 300-A must be understood in the context in which the sovereign power of eminent domain is exercised by the State. It is held to include an undertaking which is a going concern. The expression right to property includes the right to use /enjoy/manage/ consume and alienate the same. The expression deprivation of the property must equally be considered in the fact situation of a case. It means different things under different situations. It includes confiscation, destruction, seizure of goods, or revocation of a proprietary right. It has been held that deprivation for the purposes of Article 300-A means acquisition or taking possession of property for public purpose, in accordance with the law made by Parliament or a State Legislature, a rule or a statutory order having force of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. Taking over the management of the property by a legislation permitted under Article 31 A (1) (b), is held to be outside the purview of Article 300-A. It has been held that each and every claim to property would not be property right within the meaning of Article 300-A. However, acquisition of land, in the exercise of its power of eminent domain, by the State is subject to conditions that there exists public purpose and reasonable compensation is offered. The Land Acquisition Act, 1894 fulfils these criteria. It, however, lays down the detailed procedure there for. It further imposes restrictions/conditions for acquisition of land for the benefit of the land owner. It has, thus, been ruled that the State must scrupulously comply with all these procedural safeguards. In State of Maharashtra v. Basantibai upholding the validity of the Maharashtra Housing and Area Development Act, 1976 under Article 300-A. The Supreme Court, said that the impuguned law could be upheld even by the standards of eminent domain as applied in the United States. The Court further held that a law under Article 300-A, relating to acquisition 0f property, need not satisfy the requirements of Article 21.
The jurisprudence concerning the right to property which has evolved over the years is that right to the property remains fundamental to a human, however, constitutionally it has been made only a statutory right. If it is acquired under any law of the state for any public purpose, the person should be compensated with a just amount and provided rehabilitation and resettlement facilities. Before 1978, when the right to property was fundamental right Supreme Court stated that-
a. The constitution guarantees the right to compensation which is equivalent to the value of the property.
b. The constitution guarantees the owner must be given the value of his property.
Post 1978 when the right to property became a constitutional right, the Supreme Court held that the distribution of material resources and the restriction on the concentration of wealth is to better serve the common good.
1. J. Bentham, Theory of Legislation, 111-13, (R. Hildreth ed. 1864)
2. Sushanth Salian, History of the Removal of the Fundamental Right to Property, Centre of Civil Society, 232-233
3. Krishnadas Rajagopal, Private property is a human right: Supreme Court, THE HINDU, (Jan 13, 2020) https://www.thehindu.com/news/national/private-property-is-a-human-right-says-sc/article30551819.ece. Last Accessed 26/08/2020
4. A. Jain, Constitutional Battles on Right to Property in India, Journal of civil and legal science, Vol. 3, 1-4 https://www.omicsonline.org/open-access/constitutional-battles-on-right-to-property-in-india-2169-0170.1000124.pdf Last Accessed 26/08/2020.
5. M.L Singhal, Right to property and compensation under the Indian Constitution, International journey of therapy and rehabilitation, 1-7 http://www.ijtr.nic.in/articles/art41.pdf last Accessed 26/08/2020.
6. Waman Rao And Ors vs Union of India (UoI) And Ors 1981 2 SCR 1
7. Minerva Mills v Union of India, AIR 1980 SC 1789
8. Maharao Sahib Sri Bhim Singhji vs. Union of India And Ors., 1985 AIR 1650
9. State of Maharashtra & Anr vs Basantibai Mohanlal Khetan & Ors, 1986 AIR 1466
10. Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. AIR 1973 SC 1461