Everyday some or the other legal developments take place. We have been given certain rights and with it comes duty. In order to protect people fundamental rights are given to them in Constitution, but it is interesting to see that in one instance in order to do economic justice, a person's fundamental right was converted into just a constitutional right, that is Right to Property.
AIM
The main aim of this writing is to enable readers to know why the legal status of the Right to Property was changed from a fundamental right to a constitutional right.
The word property interpreted by SC for Art. 31 has said, should be given a liberal meaning and should be extended to all those well-recognized types of interest which have the insignia or characteristic of property right[1]. The expression property in Article 300A is confined not only to land alone. It includes both corporal and incorporeal rights [2]. It includes Money[3], contract, interest in the property, etc.
Since the Constitution of India came into force in the 1950s, the right to property was given fundamental status. Basically, two articles Art. 31 and Art. 19(1)(f) ensures that any person's right against his property remains protected.
Art. 31 clause (1) reads as No person shall be deprived of his property save by authority of law. It gives protection to persons against the government or State's arbitrary action to seize private property for public use and private use. That means a person has right to move to SC in case of violation of this right. At this juncture it is essential to understand the power of Eminent Domain- every government has an inherent right to take and appropriate the private property belonging to an individual citizen for public use[4]. It is based on the legal maxim Salus Populi est suprema lex meaning the welfare of people or the public is the paramount law.
In India clause (1) of art. 31 provides for first restriction and clause (2) reading No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition of the property for an amount which shall be fixed by such law, and no such law be called in question in any court on the ground that the amount so fixed is not adequate for the other two restrictions.
Article 19(1)(f) provides the freedom to citizens to acquire, hold, and dispose of the property within the territory of India.
But by the Constitutional 44th Amendment act 1978, these two above mentioned articles were deleted and a new chapter IV was added in Part XII, containing only one article 300A.
The legal status of the Right to Property was changed from the fundamental right to constitutional right. As a result, people were not allowed to approach Supreme Court directly u/A 32 of the constitution for violation of the Right to Property although they still could invoke jurisdiction at high court u/A 226 of COI.
In Jilubhai Nanbhai Khachar v. State of Gujrat[5], it was held that the Right to property u/A 300A is not a basic structure of the Constitution. It is only a constitutional right.
In order to understand why such a step was taken by the Parliament of India, it is necessary to understand that before India get its independence there were four major systems prevailing – the Ryotwari system, Mahalwari system, Zamindari system, and Jagidari system. Due to these large parts of land was in possession of zamindars, tenants, and like people, which causes an unequal distribution of land and increases the gap between rich and poor.
Since 1947-1950, the constituent assembly worked day and night to draft the Constitution of India. Members of the constituent assembly were concerned by the situation at that time and knew various land reforms and acquisition acts will be needed to pass, due to the above-mentioned system, so in order to redistribute land and to rectify the damage various steps were taken:
Despite such efforts by the government the zamindars and other land owners whose ceiling limit exceeded approached Supreme Court using their fundamental right to property with the intention to hold acts unconstitutional. So, in order to stop this from happening and with a view to doing economic justice, Art.31, and Art. 19(1)(f) ceased to be a fundamental right and was modified as a constitutional right in new chapter IV Part XII of the Constitution as Art. 300A, which continues to exist and follow till today.
By 44th Amendment Act 1978 of the Constitution of India, a new article namely 300A was inserted and titled as Right to Property. It read as:
No person shall be deprived of his property save by authority of law. This article provides restrictions on the State that it cannot take anybody's property without the force of law also interpreted can be deprived of the force of law. The word 'law' here means a validly enacted law which is just, fair, and reasonable[6].
In the case of Hari Krishna Mandir Trust vs the State of Maharashtra And Others[7], it was held by the SC that the appellant cannot be deprived of his strip of land being a private road, without the authority of law, if allowed will be a violation of Art. 300A of COI.
Art. 31 used to impose a similar limitation on the power of Eminent Domain as in America but the new Art. 300A only imposes one restriction on this power that is the authority of law.
It is obvious such deprivation will have the force of law only when it is for public welfare and is just, fair and reasonable. In the case of K.T. Plantation Pvt. Ltd. v. State of Karnataka[8], it was held by SC that the requirement of public purpose is invariably the rule when a person is deprived of his property.
The main question arises if any person is deprived of his property by the force of law for the public interest, will he be entitled to compensation?
The answer is yes. Although it is not explicit like in Art. 30(1)(A) as well as in 2nd proviso of Art.31A (1) but yet it can be inferred in Article 300A. The State has to justify its stand on justiciable grounds which depends upon legislative policy.
In the recent judgment of Vidhya Devi v. The State of Himachal Pradesh & Ors.[9], it was held by SC that the Right to own Private Property is a human right and cannot be denied. The party depriving one's right to property must have the authority of law. In this case, the plaintiff was given compensation for the wrong acquisition of property by the state.
Conclusion
Due to the excessive possession of land by the zamindars and tenants, the legal status of the Right to freedom was changed from a fundamental right to a constitutional right in order to avoid the situation of misusing of right to property as a fundamental right by zamindars and another landowner against state measures to acquire land and to implement land ceiling laws in India. Still, this right is available to all persons as a constitutional right and can invoke the jurisdiction in high court u/A 226 of the Constitution of India.
Abbreviations:
Written By: Shivang Parashar