Right To Property And Its Evolution In India

Introduction

The word property is derived from the Latin word “propertietat” and the French word ‘proprious’ which means “a thing owned”.  When India got independence and the constitution came into force the right to property act was included in the “fundamental rights“. The right to property act has a very important place in human survival. The relation of property and ownership are very closely related to each other and both are interdependent. The right to Property act has been evolved from time to time and the Government has made different amendments. Today our focus will be on how the Right to property evolved from fundamental rights to constitutional rights, what amendment was made by, and by whom to evolve it.

What is Property?

In today’s world property is used in a very wider sense like it has all the rights that a person has. It’s not only the land that is the property the person’s reputation, life, liberty everything is a property. 

The term property is not only for the person’s personal belongings but also for the share of his in the company and many more.

property is a material object subject to the immediate power of a person” – Ahrens

Why Government of India needed amendments in right to Property?

1. The government wanted to make some developments in the public sector and for that, they needed the land but the zamindar was never ready for that so the government was trying to make it legal so that they can get the land for their development process and landlords cannot utter a word on that.

2. But that was not easy because at that time the right to property act was the fundamental right [Article 19(1)(f) – Repealed] in the constitution. 

3. If by making any law they tried to take the land then zamindar can directly move to the Supreme court and file litigation if any issues arrive and that makes government work difficult and if they get the property then they have to pay some amount of compensation [ Article 31(1)] to the landlords and the compensation should be at the market value [Article 31(2) – Repealed]. And at that time the government was not having that much amount of money and so they were not able to settle this thing.

When, What and by Whom Amendments are made in right to Property?

Before independence

The original idea of acquisition of land appears from the colonial legislation, Land Acquisition Act, 1894. It gave the power to the government to acquire property for the common good. The act provided a warning that those whose property would be acquired would have a right to receive compensation. Acquisition of property had the main motive was public welfare “public purpose” so every acquisition can be challenged on its legality that is used for a public purpose or not. Further, few executives were misuses their power in acquisition so the compensation which was paid can be challenged in the civil court. In the colonial system, the zamindari system was followed because of which land acquisition was not properly followed.

In 1935, The Government of India Act, 1935 entailed the compensation formula, decided to retain in the Constitution. Right to Property was made a fundamental right, to end the battles between land acquisition, property rights and compensation. Article 31 guaranteed that ‘no person shall be deprived of his property save by the authority of law’ and made zamindar aware of this.

Jawaharlal Nehru – Former Prime Minister of India

Article 31A

Before independence, the zamindari system was common, and because of which zamindar became wealthy. So at that Congress was in power, they decided to abolish the zamindari system by taking land from zamindar and use the land for public reforms. So they added Article 31A by the 1st Constitutional Amendment Act, 1951. In which, provided that government can acquire the property of people and it will not be invalid on the ground of volition of Article 14 and Article 19 of India constitution. Because of this Congress was able to demolish the zamindari system and with land, they used that for public welfare.

Article 31B

1st Constitutional Amendment Act, 1951 and alongside Article 31B was added to a schedule nine. Article 31B says that any law that is made, which violates any article or right under part three, shall be immune from judicial challenges if this is placed in schedule nine. This was done to do land reforms and protect laws from judicial challenges but the amendment did not mention the nature of laws to be kept in schedule nine and that’s why it got unlimited scope. Today 284 laws are present in schedule nine (eg:- 69% quota in Tamil Nadu).

IR Coelho 2007 – Judgement

The court said that all laws which have been added after the basic structure case of Kesavananda Bharati that is April 24, 1973, if they are found to be violative of the basic structure of constitutional they would be liable to be structured down.

Article 31(2) [Repealed]

4th Constitutional Amendment Act 1955. Article 31(2) was added to resolve the problems, Congress was facing about compensation. The article says that compensation given by Government can’t be questioned in any court of law about its sufficiency. 

Indira Gandhi – Former Prime Minister of India

Article 31(2) [Repealed]

25th Constitutional Amendment Act, 1971. Article 31(2) was amended and was “compensation” was replaced by “Amount” on the payment of compensation which would be determined by the Parliament and not the courts. Supreme court comment on article 31(2) that, it is constitutionally valid but the compensation should not be so low that the acquisition was confiscated and unacceptable.

Article 31C 

Added by 25th Constitutional Amendment Act, 1971.

Provided for saving of laws giving effect to certain direction principles.  Article 39(b) and Article 39(c) were given precedence over Article 14, Article 19, and Article 31. No law can be challenged which gives effects to the provision present in Article 39(b) and Article 39(c).

Added 42nd Constitutional Amendment Act, 1976

This amendment was introduced so that all Directive principles of state policy are precedence of Article 14, Article 19, and Article 31. 

This amendment was challenged in Minerva Mills Vs Union of India case–

As we all know fundamental rights are the basic feature of the constitution and under Article 368 they need to be preserved. Well, in this, the extended portion of Article 31C was eradicated with the rationale that it attacked the fundamental rights under Article 368. It was amazingly pointed out by the eminent judge that by this Article the DPSP was secured which added to the weight of DPSP which went up against the weight of the fundamental rights but fundamental rights being paramount should not be curtailed by any law whatsoever. The judgment also stood up for the concept of judicial review which was not made available to the people in case of infringement of their fundamental rights.

Article 31D [Repealed]

Added 42nd Constitutional Amendment Act, 1976

Any law in the context of checking anti-national activity shall not violative of grounds mentioned in Article 19 and Article 19(1)(f). Article 31D was repealed by the 43rd Constitutional Amendment Act 1977. The main motive of introducing it was to acquire property to check anti-national activity.

Morarji Desai – Former Prime Minister of India

Introduce 44th Constitutional Amendment Act, 1978

Right to property was removed from Part Three of the constitution of India and was introduced under Article 300A of the constitution with the heading Right to the property itself. Article 300A states that no person shall be deprived of his property save by authority of law. This means that the Right to property is no longer a fundamental right that is aggrieved individual would not be competent to move to Supreme court under Article 32, for any violation of Article 300A but under Article 226 individuals can move to the high court. Also, a law will be necessary to deprive a person of his property.

Now, the Right to property is a constitutional right but not a fundamental right. It is just a legal right. The exception remains except Article 31D which was removed by the 43rd Constitutional Amendment Act, 1977, and also Article 19(1)(f) was removed by the 44th Constitutional Amendment Act, 1978. Article 31 has been repealed by the 44th Constitutional Amendment Act, 1978 and there is no constitution binding on the government to pay for compensation of acquisition but for a religious institution, minority education institution is to be compensated as discussed previously, and also farmers have to be compensated for full market value under [Article 31A of Constitution of India].

Conclusion

As the zamindars were becoming rich day by day because of their lands. After independence government wanted to develop so the government needed property for public welfare but a lot of parts were with zamindar. So the government decided to change the legal status of the Right to Property from a fundamental right to constitutional rights so that the zamindars will not be able to misuse the lands and the government will easily get the possession of land for public welfare. Still in India, this right is applicable to all persons as a constitutional right and not a fundamental right.

This article has been written by Akshay Chaudhary, 3rd Year BA.LL.B student at The Maharaja Sayajirao University of Baroda, Vadodara, Gujarat.

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