Pre 1978 Amendment ACT
Post 1978 Amendment Act
Articles 31(a), 31(a), 31(a), 300 A
Constitution does not recognize property right as a fundamental right. In the year
1977, the 44th amendment eliminated the right to acquire, hold and dispose
of property as a fundamental right. However, in another part of the Constitution,
Article 300 (A) was inserted to affirm that no person shall be deprived of his
property save by authority of law. The result is that the right to property as
a fundamental right is now substituted as a statutory right. The amendment expanded
the power of the state to appropriate property for social welfare purposes. In
other words, the amendment bestowed upon the Indian socialist state a licence to
indulge in what Fredric Bastiat termed legal plunder. This is one of the classic
examples when the law has been perverted in order to make plunder look just and
sacred to many consciences.
Indian experiences and conception
of property and wealth have a very different historical basis than that of western
countries. The fact the present system of property as we know arises out of the
peculiar developments in Europe in the 17th to 18thcentury
and therefore its experiences were universally not applicable. A still more economic
area in which the answer is both difficult and important is the definition of property
rights. The notion of property as it has developed over centuries and it has embodies
in our legal codes, has become so much a part of us that we tend to take it for
granted, and fail to recognize the extent to which just what constitutes property
and what rights the ownership of property confers are complex social creations rather
than self evident propositions.
This also seems to be the hidden reason why the right to property is suddenly much
contested throughout India today and why the state is coming up unexpectedly against
huge resistance from unexpected quarters in attempting to acquire land in India.
The action of the state to assert the Eminent Domain over subsidiary claims
on property and the clash which resulted there from Singur, Nandigram and other
parts of India is precisely a manifestation of a clash of cultures. To put in Samuel
Huntingtons words, the ideas of the west of development and liberalization propagated
by the present ruling elite and the old Indic ideas which shape the views of the
majority of the people.
right to property under the Indian constitution tried to approach the question of
how to handle property and pressures relating to it by trying to balance the
right to property with the right to compensation for its acquisition through an
absolute fundamental right to property and then balancing the same with reasonable
restrictions and adding a further fundamental right o compensation in case the properties
are acquired by the state.
This was exemplified by Article 19(1)(f) balanced by Article 19(5) and the compensation
article in Article 31. This was an interesting development influenced by the British
of the idea Eminent Domain but overall it struck an interesting balance whereby
it recognized the power of the state to acquire property, but for the first time
in the history of India for a thousand years or more, it recognized the individuals
right to property against the state.
However, when the state realized
that an absolute property and the aspirations of the people were not the same the
legislature was subsequently forced to make the said right to property subject to
social welfare amid amendments to the constitution. Articles 31-A, 31-B and 31-C
are the indicators of the change and the counter pressure of the state when it realized
the inherent problems in granting a clear western style absolute fundamental right
to property (even though it was balanced by reasonable restrictions in the interest
of the public), specially Article 31-C, which for the first time brought out the
social nature of property. It is another matter that the said provisions were
misused, and what we are discussing today, but the abuse of the socialist state
in India is not the scope of the present article and the articles are considered
on their face value only.
of Eminent Domain
Few hundred years old and first used
when an English king needed salt petre (form of Potassium Nitrate, used in the manufacturing
of fire work) to make gun powder and when he was not able to find any land, he grabbed
hold of a private mine. The owner of the private mine approached the House of Lords,
the House of Lords held that, the sovereign can do anything, if the act of
sovereign involves public interest.
IS THE POWER BESTOWED BY THE DOCTRINE TO THE STATE???
Basically this doctrine entitles
sovereign to acquire private land for a public use, provided the public-ness
of the usage can be demonstrated beyond doubt.
THE DOCTRINE DOES THE DUTY OF:
In the present context this doctrine
raises the classic debate of powers of State v. Individual Rights. Here comes the
DIDDevelopment Induced Displacement which means, The forcing of communities
even out of their homes, often from their home lands for the purpose of economic
development, which is viewed as a Human Right violation in the International
INGREDIENTS OF THIS DOCTRINE
Property is taken for public use
Compensation is paid for the property taken.
said are the two limitations imposed on the power of Eminent Domain
by the repealed A.31 .
the new A.300 A imposes only one limitation on this power
(i.e.,)Authority of Law
is based on the following two Latin maxims
i. Salus Populi
est Suprema Lex Welfare
Of The People Of The Public Is The Paramount Law;
Public Major est Quam Public Necessity Is Greater Than Private Necessity.
Every government has an inherent
right to take and appropriate the private property belonging to individual citizen
for public use.
This power is known as Eminent Domain. It is the offspring of political necessity.
This right rests upon the above said two maxims. Thus property may be needed and
acquired under this power for government office, libraries, slum clearance projects,
public schools, parks, hospitals, highways, telephone lines, colleges , universities,
dams, drainages etc.
The exercise of such power has been recognized in the jurisprudence of all civilized
countries as conditioned by public necessity and payment of compensation.
But this power is subject to restrictions provided in the constitution. In the United
States of America, there are limitations on the power of Eminent Domain---
There must be a law authorizing the taking of property
Property is taken for public use
Compensation should be paid for the property taken.
The word property as used in Article
31 the Supreme Court has said should be given liberal meaning and should be extended
to all those well recognized types of interest which have the insignia or characteristic
of property right.
It includes both corporeal and incorporeal right.
It includes money,
Contract, interest in property e.g., interest of an allottee, licensees,
mortgages or lessees of property. The Mahantship of a Hindu Temple,
and shareholders of Interests in the company
are recognizable interest in property. The right to receive pension is property.
Court Approach to the Right to Property
The Supreme Courts approach to the
right to property can be divided into two phases:-
TIME TILL THE RIGHT TO PROPERTY WAS A FUNDAMENTAL RIGHT (PRE 1978)
TIME AFTER THE CONVERSION OF RIGHT TO PROPERTY AS A CONSTITUTIONAL RIGHT (POST 1978)
1978 The Fundamental Right
The Ninth Schedule was inserted in
the constitution by the Constitution (First Amendment) Act, 1951 along with two
new Articles 31 A & 31 B so as to make laws acquiring zamindaris unchallengeable
in the courts. Thirteen State Acts named in this schedule were put beyond any challenge
in courts for contravention of fundamental rights. These steps were felt necessary
to carry out land reforms in accordance with the economic philosophy of the state
to distribute the land among the land workers, after taking away such land from
the land lords.
By the Fourth Amendment Act, 1955,
Art 31 relating to right to property was amended in several respects. The purpose
of these amendments related to the power of the state o compulsory acquisition and
requisitioning of private property. The amount of compensation payable for this
purpose was made unjustifiable to overcome the effect of the Supreme Court judgement
in the decision of State of West Bengal v. Bella Banerjee.
By the constitution (Seventeenth Amendment) Act, 1964, article 31 A was amended
with respect to meaning of expression estate and the Ninth Schedule was amended
by including therein certain state enactments.
During this period the Supreme Court
was generally of the view that land reforms need to be upheld even if they did strictly
clash against the right to property,
though the Supreme Court was itself skeptical about the way the government went
about exercising its administrative power in this regard.
The Supreme Court was insistent that the administrative discretion to appropriate
or infringe property rights should be in accordance with law and cannot be by mere
The court however really clashed with the socialist executive during the period
of nationalization, when the court admirably stood up for the right to property
in however a limited manner against the over reaches of the socialist state.
In this juncture the court in this
Bank Nationalisation case
has clearly pointed out the following two points:
The constitution guarantees the right to compensation which is equivalent in money
to the value of the property has been compulsorily acquired. This is the basic guarantee.
The law must therefore provide compensation and for determining compensation relevant
principles must be specified: if the principles are not relevant the ultimate value
determined is not compensation.
The constitution guarantees that the expropriate owner must be given the value of
his property (the reasonable compensation for the loss of the property). That reasonable
compensation must not be illusionary and not reached by the application of an undertaking
as a unit after awarding compensation for some items which go to make up the undertaking
and omitting important items amounts to adopting an irrelevant principle in the
determination of the value of the undertaking and does not furnish compensation
to the expropriated owner.
1978 The Constitutional
Right to Property
It was at this period the Supreme
Court had gone out of its way to hold against the right to property and the right
to accumulate wealth and also held that with regard to Article 39, the distribution
of material resources to better serve the common good and the restriction on the
concentration of wealth.
The court however is also responsible in toning down the excesses on the right to
property and wealth by the socialist state.
During the period of Liberalisation, the Supreme Court has attempted to get back
to reinterpret the provisions which give protection to the right to property so
as to make the protection real and not illusory and dilute the claim of distribution
this has been an incremental approach and much more needs to be done to shift the
balance back to the original in the constitution. This means that the acquisition
of property is not merely temporal but to be accepted as valid it must conform to
spiritual guidelines as well as the Indian conceptions recognize quite clearly that
though property can be enjoyed which has not been acquired strictly in terms of
the law, it cannot be called real property of the person concerned. Property therefore
is not merely an individual right but a construction and part of social and spiritual
The basis of conception of property in the societies of India is not a rigid and
clear demarcation of claims belonging to an individual but is a sum total of societal
and individual claims all of which need not be based on clear individual legal demarcation.
Amendment to the Constitution & the present scenario
The outburst against the Right to
Property as a Fundamental Right in Articles 19 (1) (f) and 31 started immediately
after the enforcement of the Constitution in 1950. Land reforms, zamindari
abolition laws, disputes relating to compensation, several rounds of constitutional
amendments, litigations and adjudications ultimately culminated first in the insertion
of the word socialist in the Preamble by the 42nd Amendment in 1977 and later
in the omission of the Right to Property as a FR and its reincarnation as a bare
constitutional right in Article 300-A by the 44th Amendment in 1978.
Today, the times have changed radically.
India is no more seen through the eyes of only political leaders with a socialist
bias. It is India Shining seen through the corporate lenses of financial giants
like the Tatas, Ambanis and Mahindras, with an unfathomable zeal for capitalism,
money and markets. There is another angle. There is a scramble by industrialists
and developers for land all over the country for establishment of Special Economic
Zones. Violent protests by poor agriculturists have taken place to defend their
meager land-holdings against compulsory acquisition by the State. In particular,
the riots and killings in Singur, Nandigram etc. in a State (of West Bengal) ruled
by communists has turned the wheel full circle. Socialism has become a bad
word and the Right to Property has become a necessity to assure and assuage the
feelings of the poor more than those of the rich. Soon after the abolition of the
Fundamental Right to property, in Bhim Singh v. UOI,
the Supreme Court realised the worth of the Right to Property as a Fundamental Right.
In the absence of this Fundamental Right to property, it took recourse to the other
Fundamental Right of Equality which is absolutely the concept of Reasonableness
under Article 14 for invalidating certain aspects of the urban land ceiling legislation.
Today, the need is felt to restore the right to property as a Fundamental Right
for protecting at least the elementary and basic proprietary rights of the poor
Indian citizens against compulsory land acquisition. Very recently, the Supreme
Court, while disapproving the age-old Doctrine of Adverse Possession, as against
the rights of the real owner, observed that The right to property is now considered
to be not only a constitutional right or statutory right but also a human right.Thus,
the trend is unmistakable. By 2050, if the Constitution of India is to be credited
with a sense of sensibility and flexibility in keeping with the times, the bad word
socialist inserted in the Preamble in 1977 shall stand omitted and the Right to
Property shall stand resurrected to its original position as a Fundamental Right.
Approach by the Supreme Court
very recent PIL filed in the Supreme Court which was still pending in the Honble
Court, it was held that the very purpose for which the right to property relegated
to a mere statutory right in the late 1970s is not no longer relevant. It was argued
by Harish Salve, the learned counsel for the petitioners that:
The right to property is made
a statutory right in 1978 to abolish large land holdings with zamindars and rich
and their distribution among landless peasants;
Having achieved the very purpose
behind the legislative action in the late 1970s, the government should now initiate
fresh measures to put right to property back in the fundamental rights.
Earlier, the apex court in its famous
Keshavanandan Bharti case of 1973 had first termed some basic and unalterable
parameters and features of the Indian state and its constitution like the country's
democratic form of government, as its basic structure, which could not be changed
at all even by constitutional amendment. But, in the judgement of the case, Justice
H.R. Khanna had made a passing observation to the effect that fundamental rights
accorded to the citizens' might not be a basic structure of the Constitution. This
had left the scope open for changing or diluting the fundamental right of the citizens.
Though later in 1975, while adjudicating another famous lawsuitbetween
erstwhile Prime Minister Indira Gandhi and prominent political leader of his times
Raj Narain, Justice Khanna had tried to clarify that his observation had been misconstrued.
Despite that clarification, the Janata Party government, under the advice of then
law minister Shanti Bhushan, had changed the Constitution, removing the right to
property from the list of fundamental rights.
vs Legislature: The Tussle Begins
of legislative manipulation of the right to property began with the First Amendment
Act, 1951 by which the Articles 31-A and 31-B were inserted into the Constitution.
Article 31-A was introduced by the Constitution First Amendment Act, 1951 wherein
the Parliament defined ʺEstateʺ and continued by further amendments to extend
its meaning so as to comprehend practically the entire agricultural land in the
rural area including waste lands, forest lands, lands for pasture or sites of buildings.
Under the said amendment, no law providing for acquisition by the state of an estate
so defined or any rights therein of the extinguishment or modification of such rights
could be questioned on the ground that it was inconsistent with or took away or
abridged any of the rights conferred by Articles 14, 19 or 31. Article 31-B and
Schedule Nine introduced by the subsequent amendments was another attempt to usurp
judicial power. It was an innovation introduced in our Constitution unheard of in
any other part of democratic world. The legislature made void laws offending fundamental
rights and they were included in Schedule Nine and later on the list was extended
from time to time. Article 31-B declared that none of the acts or regulations specified
in neither the Ninth Schedule nor any of the provisions thereof shall be deemed
to be void on the ground that they are inconsistent with Part III, notwithstanding
any judgments, decree or order of any court or tribunal to the contrary. By further
amendment, the list was extended. This amendment discloses a cynical attitude to
the rule of law and the philosophy underlying our Constitution. Autocratic power
was sustained by democratic processes. The amendments in the realm of property substituted
the Constitutional philosophy by totalitarian ideology. This totalitarian ideology
is articulated by the deliberate use of amendments to add more and more laws to
the Ninth Schedule. Originally 64 laws were added to the Ninth Schedule and more
acts were added by the 4th, 17th and 29th Amendment Acts; 34th Amendment added 17
more Acts; 39thAmendment added 38 Acts; 42nd Amendment added 64 Acts;
the 47th Amendment added 14 more Acts and by the end of this amendment the number
of Acts in the Ninth Schedule had risen to 202; The 66th Amendment added 55 Acts
raising the total to 257. The 75th Amendment Act, 1994 has been passed by the parliament,
which includes Tamil Nadu Act providing for 69 percent reservation for backward
classes under the Ninth Schedule. This is a clear misuse of the Ninth Schedule for
political gains as the object of the Ninth Schedule of the Constitution is to protect
only land reform laws from being challenged in court. After the addition of 27 more
Acts to the Schedule by the 78th Amendment Act of 1995 the total number of Acts
protected by the Schedule has risen to 284. The saga did not end here, the hornets
nest had been stirred up already, the state made a consistent attempt by the process
of amendment to the Constitution to remove the judicial check on the exercise of
its power in a large area, and to clothe itself with arbitrary power in that regard.
The history of the amendments of Article 31(1) and (2) and the adding of Articles
31(A) and (B) and the Ninth Schedule reveal the pattern. Article 31 in its first
two clauses deals with the deprivation of property and acquisition of property.
The Supreme Court held in a series of decisions viz. State of West Bengal
v. Mrs. Bella Banerjee,
State of W.B v. Subodh Gopal,
State of Madras v. Namasivaya Muralidar,
that Article 31, clauses (1) and (2) provided for the doctrine of eminent domain
and under clause (2) a person must be deemed to be deprived of his property if he
was substantially dispossessed or his right to use and enjoy the property was
seriously impaired by the impugned law. According to this interpretation, the
two clauses of Article 31 dealt only with acquisition of property in the sense explained
by the court, and that under Article 31(1) the state could not make a law depriving
a person of his property without complying with the provisions of Article 31(2).
It is worth mentioning in this context that it was the decision in the Bella Banerjees
case that actually induced the government to resort to the Fourth Amendment. In
this case the Apex court through this landmark decision had insisted for payment
of compensation in every case of compulsory deprivation of property by the state.
It was held that clause (1) and (2) of Article 31 deal with the same subject, that
is, deprivation of private property. Further the court held that the word compensation
meant just compensation i.e. just equivalent of what the owner had been deprived
of. It is also worthwhile to note here that this amendment also amended Article
305 and empowered the state to nationalize any trade. The Parliament instead of
accepting the decision, by its Fourth Amendment Act, 1955 amended clause (2) and
inserted clause (2-A) to Article 31. The effect of the amendment is that clause
(2) deals with acquisition or requisition as defined in clause (2-A) and clause
(1) covers deprivation of a personʹs property by the state otherwise than by acquisition
or requisition. This amendment enables the state to deprive a person of his property
in an appropriate case by a law. This places an arbitrary power in the hands of
the state to confiscate a citizenʹs property. This is a deviation from the ideals
of the rule of law envisaged in the Constitution. The amendment to clause (2) of
Article 31 was an attempt to usurp the judicial power. Under amended clause (2),
the property of a citizen could be acquired or requisitioned by law which provides
for compensation for the property so acquired or requisitioned, and either fixes
the amount of compensation or specifies the principles on which and the manner in
which the compensation is to be determined. It was further provided that no such
law could be called in question in any court on the ground that the compensation
provided by that law is not adequate. This amendment made the state the final arbiter
on the question of compensation. This amendment conferred an arbitrary power on
the state to fix at its discretion the amount of compensation for the property acquired
or requisitioned. The non-justiciability of compensation enables the state to fix
any compensation it chooses and the result is, by abuse of power, confiscation may
be effected in the form of acquisition.
came the Seventeenth Amendment Act, 1964 by which the state extended the scope of
Article 31-A and Ninth Schedule to protect certain agrarian reforms enacted by the
Kerala and Madras states. The word estate in Article 31-A now included anyjagir
or inam, mauf, or any other grant and janmam right in state of Kerala,
Madras and also Ryotwari lands. It also added consequentially, the second
proviso to clause (1) to protect a person of being deprived of land less than the
relevant land ceiling limits held by him for personal cultivation,4 except on payment
of full market value thereof by way of compensation. It also added 44 more Acts
to the Ninth Schedule. The Supreme Court by various judgments considered the said
amendments and restricted their scope within reasonable confines. The Supreme Court
in Kocchuni vs State of Madras,
did not accept the plea of the state that Article 31(1) after amendments gave an
unrestricted power to the state to deprive a person of his property. It held that
Article 31(1) and (2) are different fundamental rights and that the expression ʺlawʺ
in Article 31(1) shall be valid law and that it cannot be valid law unless it amounts
to a reasonable restriction in public interest within the meaning of Article 19(5).
While this decision conceded to the state the power to deprive a person of his property
by law in an appropriate case, it was made subject to the condition that the said
law should operate as reasonable restriction in public interest and be justiciable.
The Court construed the amended provision reasonably in such a way as to salvage
to some extent the philosophy of the Constitution. This became necessary as the
definition of estate was simultaneously expanded to cover Ryotwari settlements
in order to make agrarian reforms more effective.
Supreme Court in Srimathi Sitabai Devi v. State of West Bengal
held that Article 31(2) i.e., the provision relating to the acquisition or requisition
of land was not subject to Article 19(5). It would have been logical if the expression
ʺlawʺ in Article 31(2) was given the same meaning as in Article 31(1). In that
event, the law of acquisition or requisition should not only comply with the requirements
of Article 31(2) and (2-A), but should also satisfy those of Article 19(5). That
is to say, such a law should be for a public purpose, provide for compensation and
also satisfy the double test of ʺreasonable restrictionʺ and ʺpublic interestʺ
provided by Article 19(5). The reasonableness of such a law should be tested from
substantive and procedural standpoints. There may be a public purpose, but the compensation
fixed may be so illusory that it is unreasonable. The procedure prescribed for acquisition
may be so arbitrary and therefore unreasonable. There may be many other defects
transgressing the standard of reasonableness, both substantial and procedural. But
from a practical standpoint, the present dichotomy between the two decisionsKochunni
and Sithabathi Devidid not bring about any appreciable hardship to the people,
for a law of acquisition or requisition which strictly complies with the ingredients
of clause (2) may ordinarily also be ʺreasonable restrictionʺ in public interest.
Substantive deviations from the principles of natural justice may be hit by Article
14. Provision for an illusory compensation may be struck down on the ground that
it does not comply with the requirement of Article 31(2) itself. That is if the
courts make it mandatory to bring 31(2) in conformity with 31(1).
Court in P Vajravelu Mudalier v. Special Deputy Collector
and also in the Union of India v. Metal Corporation of India
considered Article 31(2) in the context of compensation and held that if the compensation
fixed was illusory or the principles prescribed were irrelevant to the value of
the property at or about the time of acquisition, it could be said that the Legislature
had committed a fraud on power and therefore the law was inadequate. The
Supreme Court in three other decisions confined the bar of Article 31-A only to
agrarian reforms. In Kochunni case the Court held that requirement of Article
31-A bars an attack on the ground of infringement of fundamental right only in the
case of agrarian reforms, pertaining to an estate. In Ranjith Singh v.
State of Punjab,
it was held that the expression ʺagrarian reformʺ was wide enough to take in consolidation
of holdings as it was nothing more than a proper planning of rural areas. In
Vajravelu decision the Supreme Court explained that there is no conflict between
the said two decisions and pointed out that the latter decision includes in the
expression of agrarian reforms, the slum clearance and other beneficial utilisation
of vacant and waste lands. In a Ghulabhai v. Union of India,
the Supreme Court did not accept the contention of the state that the expression
ʺEstateʺ takes in all waste lands, forest lands, lands for pastures or sites of
buildings in a village whether they were connected with agriculture or not but ruled
that the said enumerated lands would come under the said definition only if they
were used for the purpose of agriculture or for purposes ancillary thereto. The
result of the brief survey of the provisions of the Constitution and the case law
thereon as it stood then may be stated in the form of the following propositions:
Every citizen has a fundamental right to acquire, hold and dispose of the property.
The state can make a law imposing reasonable restrictions on the said right in public
The said restrictions, under certain circumstances, may amount to deprivation of
the said right.
Whether a restriction imposed by law on a fundamental right is reasonable and in
public interest or not, is a justiciable issue.
The state can by law, deprive a person of his property if the said law of deprivation
amounts to reasonable restriction in public interest within the meaning of Article
The state can acquire or requisition the property of a person for a public purpose
after paying compensation.
The adequacy of the compensation is not justiciable.
If the compensation fixed by law is illusory or is contrary to the principles relevant
to the fixation of compensation, it would be a fraud on power and therefore the
validity of such a law becomes justiciable.
Laws of agrarian reform depriving or restricting the rights in anʺestateʺthe
said expression has been defined to include practically every agricultural land
in a villagecannot be questioned on the ground that they have infringed fundamental
Power of the Parliament
Another path breaking development,
which is till today being considered as the most trivial phase faced by the judiciary
and legislature in entire Constitutional history of our nation was triggered off
by the issue of right to property. As explained herein before there was an ongoing
tussle between the judiciary and the legislature regarding the Constitutional provisions
of right to property. The theory was simple. The judiciary was invalidating legislative
action curbing property rights in order to uphold the sanctity of the Constitution.
And whenever the judiciary invalidated a law by terming it as unconstitutional the
legislature would conveniently amend the Constitution in order to uphold its supremacy
over the judiciary. When this saga was going on, there emerged another set of litigations
which actually intended to put an end to the legislative manipulation by questioning
the amending power of the Constitution itself. These litigations were based on the
relevance of Article 13(2) of the Constitution which provides that
shall not make any law which takes away or abridges the fundamental rights and any
law made in contravention of fundamental right shall to the extent of contravention,
be void. So the line of argument that was put forward by the litigants in the cases
to be discussed hereinafter was questioning the validity of amending power of the
parliament with regard to fundamental rights. It all began when the question whether
fundamental rights can be amended under Article 368 came for consideration of the
Supreme Court in Shankari Prasad v. Union of India.
In this case the validity of the Constitution (1st Amendment) Act, 1951, which inserted
inter alia, Articles 31-A and 31-B of the Constitution was challenged. The
Amendment was challenged on the ground that it purported to take away or abridge
the rights conferred by Part III, which fell within the prohibition of Article 13
(2) and hence was void. It was argued that the state in Article 12 included parliament
and the word law in Article 13 (2), therefore, must include Constitution amendment.
The Supreme Court, however, rejected the above argument and held that the power
to amend the Constitution including the fundamental rights is contained in Article
368, and that the word law in Article 13 (8) includes only an ordinary law made
in exercise of the legislative powers and does not include Constitutional amendment
which is made in exercise of constituent power. Therefore, a Constitutional amendment
will be valid even if it abridges or takes any of the fundamental rights. In
Sajjan Singh v. State of Rajasthan,
the validity of the Constitution (17th Amendment) Act, 1964 was challenged. The
Supreme Court approved the majority judgement given in Shankari Prasads case and
held that the words amendment of the Constitution means amendment of all the provisions
of the Constitution. Gajendragadkar, C J said that if the Constitution-makers intended
to exclude the fundamental rights from the scope of the amending power they would
have made a clear provision in that behalf.
challenge to the Seven Essential Features of the Constitution by Article 31 C
31C sought to challenge seven essential features of the Constitution.
Vital Distinction between Two Cases of Constitutional amendment:
Where the fundamental rights are amended to permit laws to be validly pass which
would have been void before amendment; and
Where the fundamental rights remain unamended but the laws, which are void, as offending
those rights are validated by a legal fiction that they shall not be deemed void.
is not merely of legislative device. In the first case the law is Constitutional
in reality, because the fundamental rights themselves stand abridged.
Unconstitutional in reality but fictional
the second case the law is unconstitutional in reality but is deemed by a fiction
of law not to be so; with the result that Constitution breaking law is validated
and there is a repudiation of the Constitution pro tanto. If the second case
is permissible as a proper exercise of the amending power, the Constitution could
be reduced to a scrap of paper. If 31C is valid, it would be equally permissible
to parliament to so amend the Constitution as to declare all laws to be valid which
are passed by the parliament or state legislatures in excess of their legislative
competence, or which violate any of the basic human rights in Part III or the freedom
of inter-state trade in Article 301. It would be equally permissible to have an
omnibus article that not withstanding anything in the Constitution, no law passed
by the Parliament or any state legislature shall be deemed to be void on any ground
whatsoever. The insertion of one such article would toll the death-knell of the
Constitution. (The fact that under the Supreme Courts judgement in the fundamental
the Constitution cannot be so amended so as to alter the basic structure, is relevant
to the point considered here, viz. that a quietus is given to the supremacy of the
Constitution by the omnibus protection of Constitutionbreaking laws.) Thus Article
31C clearly damages or destroys the supremacy of the Constitution, which is one
of the essential features. It gives a blank charter to the parliament and to all
the state legislatures to defy and ignore the Constitutional mandate regarding human
rights. Second, Article 31C subordinates the fundamental rights to the Directive
principles of state policy and in effect abrogated the rights as regards laws, which
the legislature intends or declares to be for giving effect to the directive
The fundamental rights are paramount and are enforceable in the courts (Article
32 and 226), in contrast to the directive principles, which are not so enforceable
(Article 37). To abrogate fundamental rights when giving effect to directive principles
is to destroy another basic element of the Constitution. Ignorance and arbitrariness,
injustice and unfairness, was thereafter not to be upon challenge on the touchstone
of the invaluable basic rights.
Form & Manner Amenability of the Fundamental Principle
it is a fundamental principle of the Constitution that it can be amended only in
laid down in Article 368 and according to that Articles basic scheme.
This principle was repudiated by Article 31C. That Article had the effect of virtually
authorising the abrogation of the fundamental rights while they still remain ostensibly
in the statute book. Criticism and debate, within and outside parliament, which
would be evoked by a proposal to abridge a particular fundamental right are avoided,
while various fundamental rights are effectively silenced. The absurd situation
was that, whereas amendment of a single fundamental right would require a two-thirds
majority (Article 368), a law falling within 31C which overrides and violates several
fundamental rights could be passed by a simple majority.
Role of Fundamental Rights as The Essential Feature of the Constitution
the fundamental rights constitute an essential feature of the Constitution. Within
its field Article 31C completely took away:
The right to acquire, hold and
dispose of property [Article 19(1)(f)];
The right not to be deprived of
property save by authority of law [Article 31(1)];
The right to assert that property
can be acquired or requisitioned by the state only for a
public purpose [Article 31(2)];
The right to receive an amount,
however small, when the state seizes the property [Article 31(2)].
Article 31C expressly authorised outright confiscation of any property, large or
to anyone, poor or rich, citizen or non-citizen. Further, Article 31C provides for
the wholesale smothering of various rights which were all together distinct from
right to property and are totally irrelevant to the Directive principles of state
policy laid down in Article 39(b) and (c). Even the rights to equality before law,
to freedom of speech and expression, to assemble peaceably and without arms, to
form associations and unions, to move freely throughout the territory of India,
to reside and settle in any part of the territory of India, and to practice any
profession or to carry on any occupation, trade or business which are so vital for
the survival of the democracy, the rule of law, and the integrity and unity of the
republic, can be violated under Article 31C under the cloak of improving the economic
The Directive Principle Of State Policy
it was not even permitted to raise the question whether the proposed law will result,
calculated to result, in securing the directive principle laid down in Article 39(b)
and (c). The wrong done to the people who are deprived of their basic freedoms is
worsened by protection to those laws, which may not be at all calculated to give
effect to the directive principles. The right to move the Supreme Court to enforce
other fundamental rights is itself a fundamental right (Article 32) and is a basic
feature of the Constitution. This right is destroyed when a fundamental right is
made unenforceable against a law purporting to give effect to the directive principles
and at the same time the court is precluded from considering whether the law is
such that it can possibly secure any directive principle.
What is the basic principle of the constitution???
the basic principle of the Constitution is that no state legislature can amend the
fundamental rights or any other part of the Constitution. This essential feature
is repudiated by 31C, which empowers even state legislatures to pass laws, which
virtually involve a repeal of the fundamental rights. The wholly irrational consequence
is that whereas state legislatures cannot abridge a single fundamental right, it
was now open to them to supercede a whole series of such rights. In substance, the
power of amending or overriding the Constitution is delegated to all state legislatures,
which is not permissible under Article 368.
A. Palkhivala rightly remarked in this regard
Hereafter liberty may survive in some states and not in others, depending
on the complexion of the political party in power. The state of Meghalaya has already
passed a law prohibiting the residents of other parts of India staying in Meghalaya
for more than six months without permit.
protection to minorities
the essential features of the Constitution is to provide for due protection to minorities
and their cultural and educational rights. The fundamental rights under Article
14,19 and 31, which were sought to be superseded by Article 31C are necessary to
make meaningful rights of the minorities, which are, guaranteed by Articles 25 to
30. Under the guise of giving effect to the directive principles, a number of steps
may be taken which may seriously undermine the position of regional linguistic,
cultural and other minorities. The proviso inserted by the 25th amendment is a very
tall tale. It expressly provides that where the property of an educational institution
established and administered by a minority is acquired, the amount fixed for the
acquisition should be such as not to restrict or abrogate the right guaranteed under
30(1). The clear implication is that when property is acquired in any other cases,
an amount can be fixed which abrogates or restricts any other fundamental rights,
for instance, the right to freedom of speech and expression [Article 19(1)(a)],
to form associations or unions [Article 19(1)(c)], or to practice any profession
or carry out any occupation, trade or business [Article 1991)(g)], or the right
of an religious community to establish and maintain institutions for religious or
charitable purposes (Article 26). Further, if a law violates the rights of the minorities
under Articles 25 to 30, such law, being invalid, would be no law at all and therefore
deprivation of property under such a law would violate Article 31(1) which provides
that no person shall be deprived of his property save by authority of law, i.e.
a valid law. But since 31(1) is one of the articles abrogated by Article 31C, minorities
can be deprived of their properties held privately or upon public charitable or
religious trust, by a law which is invalid. In sum, Article 31C is a monstrous outrage
on the Constitution. In the entire history of liberty, never were so many millions
of people deprived of so many fundamental rights in one sweep as by the insertion
of Article 31C. De Tocqueville remarked that nothing is more arduous than the apprenticeship
of liberty. N A Palkhivala rightly remarks with grief in this context that It
is a measure of our immaturity as a democracy and the utter apathy of our people
that the betrayal of our basic freedoms excited hardly any public debate.
7. The Four Attributes of a Totalitarian State
attributes of a totalitarian state are:
to the ruling party to favour its own members,
of the right to dissent or to oppose,
of various personal freedoms, and
states right to confiscate anyones property.
four attributes were implicit in Article 31C. The Article had a built in mechanism
for the dissolution of the true democracy that India had been so far, cession of
rule of law and possible disintegration of the nation. The governments argument
was that though the power of amending the Constitution must be held to be limitless
after the 24th amendment and it can destroy human freedoms under Article 31C, the
legislature will not use the power. The answer to this is contained in the words
of W B Yeats No Government has the right, whether to flatter fanatics or in mere
vagueness of mind, to forge an instrument of tyranny and say that it will never
be used. Moreover, laws characterized by stringent injustice have in fact been
passed in pursuance of the amended Article 31(2) and 31C. General insurance companies
have been nationalized under a law, which provided for fixed amounts payable on
the acquisition of all their assets and liabilities, the amounts having been fixed
on a basis which was not officially disclosed either to parliament or to the public
but which transpired to be positively absurd. Some companies found that the amounts
they received were less than the value of their government securities and the amounts
of their bank balance and of their currency notes after providing for all their
liabilities; in other words, there was a blatant repudiation of national debt. One
insurance company was paid Rs 10, 000 for acquisition of its net assets worth more
than Rs 23,00,000. Laws for acquisition of coal mines were also passed, under which
all assets of the nationalised companies were taken over but none of their liabilities;
and further, all the creditors of the companies are statutorily deprived of every
charge or security which had been created on the companys assets. The net result
was that the banks, which had advanced money to the companies, lost their principal,
interest and security; debenture holders lost their entire capital; ex-employees
of the companies who retired before nationalisation lost their right to pension
and other dues; and traders lost the price of the goods they had given on credit.
Thus innumerable innocent citizens found their property virtually confiscated outright
as a side effect of the law expropriating the colliery companies. Those companies
could not discharge their liabilities because all their assets are gone and also
the derisory amounts due to them on nationalisation was to be paid to the Commissioner
of Claims who would not be appointed at all for years. Similar nationalisation laws
were passed for confiscation of all assets of sick textile mills, with statutory
abrogation of all mortgages and other securities in favour of creditors, with the
same disastrous consequences for innocent third parties. Article 31C had damaged
the very heart of the Constitution. N A Palkhivala remarked This poisonous weed
has been planted where it will trouble us a hundred years, each age will have to
Fundamental Rights Case and its attitude towards the right to property
This decision which changed the entire
scenario of the Indian Constitution did the three following important changes
Through Article 31 C took away the right to acquire, hold and dispose off the property
under Article 19(1) (f)
Right to property under Article 19(1) (f) did not pertain to the basic structure
of the constitution (Honble Justice. H.R.Khanna)
19(1) (f) conferred citizens the right to acquire, hold and dispose off the property
under Article 19(1) (f) which formed a part of group of articles under the heading
Right to Freedom
There is no necessity for an elaborate argument to demonstrate that property is
intimately connected with the Right to Freedom.
IVRight to Property, 300A. Persons not to be deprived of property save by authority
of lawno person shall be deprived of his property save by authority of law.
amendment act which deleted article 19(1) (f) and introduced this article brought
out the following important changes:
In view of the special position sought to be given to fundamental rights, the right
to property, which has been the occasion for more than one Amendment of the Constitution,
would cease to be a fundamental right and become only a legal right. Necessary amendments
for this purpose are being made to Article 19 and Article 31 is being deleted. It
would however be ensured that the removal of property from the list of fundamental
rights would not affect the rights of the minorities to establish and administer
educational institutions of their choice.
Similarly, the right of persons holding land for personal cultivation and within
ceiling limit to receive market compensation at the market value will not be affected.
Property, while ceasing to be a fundamental right, would, however, be given express
recognition as a legal right, provision being made that no person shall be deprived
of his property save in accordance with law.
Problems Posed by the Removal
of Right to Property from Fundamental Rights
conferred by Article 19(1)(f) and Article 31 read with the undernoted entries
were so closely interwoven with the whole fabric of our Constitution that those
rights cannot be torn out without leaving a jagged hole and broken threads. The
hole must be mended and the broken threads must be replaced so as to harmonise with
the other parts of the Constitution. The task is not easy, and courts will be called
upon to answer problems more formidable than those raised by the Article 31 after
it was amended a number of times. However some of the problems which will arise
and the probable lines of solution, are considered below:
That Articles 19(1) (f) and 31(2) dealt with a different, but connected, aspects
of the right to property is clear from several Supreme Court decisions which dealt
with the co relation of those two Articles.
The correct view was that the two Articles were mutually exclusive. But one judgement
which was soon corrected and another judgement which was a judgement per incuriam,
to the view that Articles 19(1)(f) and 31(2) were not mutually exclusive. This
judicial conflict was resolved by 25th Amendment, which introduced in Article 31
a new clause (2-B) which provided that Nothing in Article 19(1)(f) shall effect
any such law as is referred in clause (2). The validity of this Amendment as unanimously
upheld in the Kesavananda case. The reason for this mutual exclusiveness was that
when property is acquired for a public purpose on payment of compensation, the right
of a citizen to hold property is gone and the question of his right to hold property
subject to reasonable restrictions does not arise.
Further, Article 19(1)(f) that conferred citizens the right to acquire, hold and
dispose of property formed part of a group of articles under the heading Right
to Freedom. It requires no elaborate argument to demonstrate that property is intimately
connected with the right to freedom. Article 31 appeared under the heading Right
to Property; for the right to freedom conferred by Article 19(1)(f) would be worth
little if the property when acquired could be taken away by law. Hence Article.
31 provided that private property could be acquired only for a public purpose and
on payment of compensation (later amount). There is nothing in the Statement
of Objects and Reasons to show that Parliament no longer looks upon the right to
acquire, hold and dispose of property as a part of the Right to Freedom.
The retention of Article. 19(1)(a) to (e) and (g) is a clear indication to the contrary.
That sub-clauses (d), (e) and (f) of Article. 19(1)(f)(1) were interlinked is clear
from their provisions as well as from sub-Article (5) which governed each of those
sub-clauses. The meaning of Article 19(1) (f) has been considered and it is being
submitted that the Supreme Court correctly held that the right conferred by Article
19(1)(d) was not a right of free movement simpliciter, but a special right
to move freely throughout the territory of India with a view to secure, among other
things, the unity of India which a narrow provincialism would deny.
This right of free movement was not limited to travelling throughout India, because
it was accompanied by the further right conferred by Article 19(1) (e) to reside
and settle in any part of India, as also the right conferred by Article 19(1)(f)
to acquire, hold and dispose of property, in any part of India. But a right to settle
in any part of India means not only a right to have a place to live in, but also
a place to work in, for Article 19(1)(g) conferson every citizen the right to practise
any profession, or to carry on any occupation, trade or business.
Further, Article 19(1)(a) confers on every citizen the right to the freedom of speech
and expression, which right includes the freedom of the pressa
right which is basic to democracy. But a press needs a building or buildings to
house it, and movable property to work it, so that without the right to acquire,
hold and dispose of property, there can be no freedom of the press. And the same
is broadly true of the fundamental right conferred by Article 19(1)(c)-the right
to form associations or unions-for normally the working of associations and unions
involves the right to acquire, hold and dispose of property. What then is the effect
of deleting Article 19(1)(f), which conferred the right to acquire, hold and dispose
of property, and of deleting Article 31 which provided for the acquisition of property
for public purpose on payment of compensation (later called amount)?
questions the Statement of Objects and Reasons gives no answer-it is doubtful whether
those who framed the property amendments were even aware of their effect on other
fundamental rights retained in Article 19(1)(f)(1), and on the political unity of
India which Article 19(1)(f)(1)(d), (e), (f) and (g) was intended, inter alia,
to subserve, along with other provisions of our Constitution. At any rate, the framers
on these amendments have provided no solutions for the problem, which the property
amendments inevitably raise. One further complication must be noted here. Although
Article 19(1)(f) and Article 31(2) had been made mutually exclusive by Article 31(2-B),
there was no such mutual exclusiveness between Article 31(2) and the right to practise
a profession or to carry on any occupation, trade or business conferred by Article
19(1)(g). This right was subject to restrictions mentioned in Article 19(1)(f)(6).
But trade and business is capable of being acquired, as Section 299(2) of the Government
of India Act, 1935, clearly showed. By what test is the validity of the law acquiring
property, and a law acquiring trade or business, including industrial and commercial
undertakings, to be judged? The 25th Amendment inserted in Article 31 a new sub
clause (2) with the following proviso:
that in making any law for the compulsory acquisition of any property of an educational
institution established and administered by minority, referred to in clause (1)
of Article 30, the State shall insure that e amount fixed by or determined under
such law for the acquisition of such property is such as would not restrict or abrogate
the right guaranteed under that clause.
proviso recognised the fact that the valuable right conferred by Article 30(1) on
minorities to establish educational institutions of their choice would be destroyed
if adequate compensation was not made for acquisition of the property of such institutions.
Political expediency may require that minorities should not be alienated by depriving
them of their cherished rights, especially when minorities are as large as they
are in India. Special rights are conferred on minorities because in a democratic
country with adult universal suffrage, majorities by virtue of their numbers can
protect themselves. But it does seem illogical and unjust to leave out majority
educational institutions from the same protection, unless it was believed that majorities,
deprived of their power to oppress minorities, would not wish to oppress themselves.
Thus, in State of Kerala v. Mother Provincial,
Counsel for the state told the Supreme Court that he had instructions to say that
any provision held inapplicable to minority institutions would not be enforced against
the majority instutitions also. Again, the 17th Amendment had introduced in Article.
31A(1)(e) the following proviso: Provided further that where any law makes any
provision for the acquisition by the State of any estate and where any land comprised
therein is held by a person under his personal cultivation, it shall not be lawful
for the State to acquire any portion of such land as is within the ceiling limit
applicable to him under any law for the time being in force or any building or structure
standing thereon or appurtenant thereto, unless the law relating to the acquisition
of such land, building or structure, provides for payment of compensation at a rate
which shall not be less than the market value thereof. To take away land under
personal cultivation without compensation would be unfair and unjust and the above
proviso prevented such injustice being done. It would be equally unfair and unjust
to take away from a person following a vocation, other than agriculture, the tools
of his trade, or the property by which he earns his living. These observations have
been made because the above provisos relating to property, which have been retained
in the chapter on fundamental rights, recognise the injustice of confiscatory laws
which impinge on fundamental rights. In the absence of any rational explanation
in the Statement of Objects and Reasons for deleting the right to property from
the category of fundamental rights, the relief against injustice provided by the
44th Amendment appears to have been guided by political expediency-large minorities
and tillers of the soil have votes to give or withhold. Or it may be that the
reason was more complex. The Janata Party having redeemed its pledge, it was left
to the Supreme Court to determine, in the light of the provisions of our Constitution,
whether the pledge can be constitutionally redeemed, and if so to what extent.
Likewise there are a lot many aspects and long term evils given rise by 44th Amendment.
In short the above discussion shows that it is easy to make an electoral promise
to delete right to property from the list of fundamental rights; it is not easy
to work out the consequences of that promise and embody them in a Constitution Amendment
Bill. Normally, amendment proposing far reaching changes in the Constitution are
submitted to a Select Committee for scrutiny, and report. If that course was not
followed, it is difficult to resist the conclusion that the sponsors of the property
amendments realized that those amendments would not stand the scrutiny of a Select
Committee with a power to examine witnesses. The course of first redeeming an electoral
promise by amending the Constitution and then leaving it to the courts to work out
the consequences of the amendments, must appear attractive. And that course was
followed, in the confident belief that the court would not shirk their duty of interpreting
the Constitution even if Parliament preferred silence to speech as to its real intentions.
of the 44th Amendment Act
was brought out without realizing the following draw backs:
(1) The close relation of
property with other fundamental rights, which the Janata Party was pledged to restore;
(2) The effect of this change
on the legislative power to acquire and requisition property; and
The correlation of fundamental rights to Directive principles of state policy.
(i) The Right to Property
would now be a Constitutional Right and not a Fundamental Right. A legislation violating
the constitutional right to property could now be challenged only in High Courts
and not directly in the Supreme Court.
(ii)Due to the deletion of Article 31 the Government was no longer under an obligation
to compensate persons whose land had been acquired as per a law passed by Parliament.
As of now, it is, beyond the scope
of my research and understanding as to whether Proposition (ii) i.e. deprivation
of property without compensation is still legally tenable especially in light of
the Supreme Court's ruling, in the
case, which held that each and every provision of the Constitution had to be interpreted
in a just, fair and reasonable manner. Therefore any law depriving a person of his
property shall have to do so in a reasonable manner. It could be argued that the
only reasonable manner to deprive a person of his property would be to offer him,
reasonable compensation for the same. This discussion however is not completely
relevant for the purpose of this post. The only relevant point is the fact that
under the Constitution no person can be deprived of their property without the authority
The two relevant concepts that now require to be examined are 'property'
& 'Authority by law'.
as understood in Article 300A:
The obvious first question is as
to whether or not 'intellectual property' such as 'clinical trial data' would fall
within the definition of 'property' as understood in Article 300A. There seems to
be enough authority to support the proposition that 'property' as understood in
Article 300A is wider than just 'immovable property'. One such authority in the
context of 'intellectual property rights' is the judgment of the Supreme Court in
the case of
Entertainment Network India Ltd. (ENIL) v. Super
Cassette Industries Ltd. (SCIL).
In pertinent part the Court held the following: The ownership of any
copyright like ownership of any other property must be considered having regard
to the principles contained in Article 19(1) (g) read with Article 300A of the Constitution,
besides, the human rights on property; The judgment goes on further to say that;
But the right of property is no longer a fundamental right. It will be subject
to reasonable restrictions. In terms of Article 300A of the Constitution, it may
be subject to the conditions laid down therein, namely, it may be wholly or in part
acquired in public interest and on payment of reasonable compensation. The fact
that the Supreme Court recognizes 'copyright' to fall within Article 300A is indicative
that even 'clinical trial data', collected after extensive experimenting, should
in all likelihood fall within the definition of 'property' as understood in Article
by law' as understood in Article 300A:
The term 'law' as defined in Article 300A is understood to mean only legislation
or a statutory rule or order. The term 'law' as understood by Article 300A will
not include executive fiats. The source of the 'law' depriving a person of his property
has to be necessarily traced, through a statute, to the legislature.
summarizing the entire concept of Right to Property..
upon a time, it was thought that the so called personal rights like the right to
vote, right to freedom of speech or personal liberty occupied a higher status in
the hierarchy of values than property right. As a result the courts were more astute
to strike down legislations, which impinged upon these rights, than upon property
rights. But Learned Hand, a great judge, felt that the distinction between the two
was unreal and said that nobody seems to have bestowed any thought on the question
why property rights are not personal rights. The Supreme Court of America which
once gave hospitable quarter to the distinction between personal rights and property
rights and accorded a preferred position to the former, has given a decent burial
both to the distinction and the preferred status of the so called personal rights
or liberties in 1972 by saying the dichotomy between personal liberties and property
rights is a false one. Property does not have rights. People have rights. The right
to enjoy property without unlawful deprivation, not less than the right to speak
or the right to travel is in truth a personal right, whether the property in
question be a welfare cheque, a home or a savings account. In fact, a fundamental
interdependence exists between the personal right to liberty and the personal right
in property. Neither could have meaning without the other.
That rights inproperty
are basic civil rights has long been recognised.This
again would show that if the fundamental right to freedom of speech or personal
liberty pertains to basic structure, there is every reason that the fundamental
right to property should also pertain to it, as the former set of rights could have
no meaning without the latter. Protection of freedom depends ultimately upon the
protection of independence, which can only be secured, if property is made secure.
Learned Hand long ago spoke of the false hope of the courts protecting liberty if
it dies in the hearts of men. One reason, which would induce its death in their
hearts, is an atmosphere in which liberty derives no sustenance from a sense of
security to property created by putting it beyond the outcome of the vote of shifting
majorities. Our Constitution was framed by an extraordinary body of men, a body
of men whose combined virtues and talents have seldom if ever been equaled in this
country. They possessed that rare quality of mind, which unites theory and practice.
They understood the unique conditions of the country and the enduring
needs and aspirations of the people, and they adapted their principles to the character
and genius of the nation. They visualised a society in which every citizen should
be the owner of some property not only as a means of sustenance but also as a zone
of security from tyranny and economic oppression and they put that right above the
vote of transient majority. They enacted Article 39 and enjoined upon the state
to break up the concentration of property in the hands of the few and its distribution
among all. There is no reason today to think that the type of society they visualised
is in any way unsuited to our present condition. Property is the most ambiguous
of all categories. It covers a multitude of rights, which have nothing in common,
except that they are exercised by persons and enforced by the state. It is therefore
idle to present a case for or against private property without specifying the extent
or value thereof. Arguments, which support or demolish certain kinds of property,
have no application to others. Considerations, which are conclusive in one stage
of economic development, may be irrelevant in the next. For things are not similar
in quality merely because they are identical in name. If it be assumed that the
fundamental right to property does not pertain to basic structure and can be amended
by parliament without a referendum as proposed in the case of other fundamental
rights regarding citizens; then there can be no doubt that property is durable
and nondurable consumer goods, and in the means of production worked by their owners
must be protected by the higher law on the same logic on which it is proposed to
safeguard by that law the interest in land of small tenure holders and of agriculturists
within ceiling limit. The owners of these properties must be paid compensation based
on market value in the event of the state or a corporation owned by the state acquiring
them for public purpose. While these types of property can be justified as a necessary
condition of a free and purposeful life, no such considerations are available in
respect of the property in the means of production not worked or directly managed
by their owners as it is not an instrument of freedom since it gives power not only
over things but through things over persons. It is precisely the concentration of
this type of property which the framers of the Constitution wanted to break up under
Article 39 and distribute among the have-nots and there is no injustice in determining
the compensation payable to the deprived owners on principles of social justice.
But this is where we have to really spare a thoughtJustice K K Mathew had the most
eloquent and liberal view in support of property rights. However, at the end of
his pursuit of defending property rights even he seems to have got misguided by
the so-called conflict between directive principles and fundamental rights. Granting
absolute right to property and also having to uphold the sanctity of a directive
principle against concentration of wealth becomes almost an impossible thing to
rationally achieve for any fair state which emerges and thrives on the foundation
of rule of law. So let the Owl of Minerva take flight. Fundamental right to property
is dead. But long live right to property.
Capitalism and Freedom by Milton Friedman
Class Of Civilization by Samuel Huntington
P.K.Tripathi- Right of Property After 44th Amendment Better Prosecuted
Than Ever Before, Air 1980(51) Journal.
V.N.Shukla: The Constitution of India, p.144 (1969 Edn.).
State of Bihar v. Kameshwar Singh, AIR 1952 SC 252
Commr. Hindu Religious Endowment v. Swamiyar, AIR 1954 SC 282
Dwaraka Das Srinivas v. Sholapur Spg and Wvg. Co. Ltd, AIR 1958
Bombay Dyeing Co v. State of Bombay, AIR 1958 SC 328
Supra note 6
Supra note 5
State of Kerala v. Padmanabhan Nair, (1985) 1 SCC 429
AIR 1954 SC 170.
Vasanlal Maganbhai Sanjanwala v. State Of Bombay, AIR 1961 SC 4: Attar
Singh v. State of U.P, AIR 1959 SC 564
Raghubir Singh v. Court of Wards, AIR 1953 SC 373 paras 8 to 10
Bishan Das v. State of Punjab, AIR 1961 SC 1570
The Bank Nationalisation Case (Rustom Cavasjee Cooper v. Union of India),
(1970)1 SCC 248
Paragraph 112 of the Bank Nationalisation Case
Paragraph 113 of the Bank Nationalisation Case
State of T.N v. L. Abu Kavur Bai, (1984) 1 SCC 515
K.R.Lakshmanan v. State of T.N, (1996) 2 SCC 226
Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC
See, J.M.D.; Religion Law and State in India; Oxford University Press, New Delhi,
(1981) 1 SCC 166
The Times of India, 24th September, 2008
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
AIR 1954 SC 170
(1954) SCR 587
(1964) 6 SCR 35
AIR 1960 SC 1080
(1967) 1 SCR 614
1 SCR 614
(1967) 1 SCR 255
AIR 1965 SC 632
AIR 1967 SC 1110
AIR 1951 SC 455, P.458
AIR 1965 SC 845
Bharathi v. State of
Kerala, AIR 1973 SC 1461
Cf Attorney-General of New South Wales v. Therthtown, 1932 AC 526
In Keshvananda Bharathi v. State of Kerala, AIR 1973 SC 1461 the Supreme
Court held this provision barring the Courts jurisdiction to be void.
Cf In re The Initiative and Referendum Act 1919 AC 935,945 (P C); Shama Rao vs Union
Territory of Pondichery  2 SCR 650, 653-54,659-60, AIR 1967 SC 1480,1484,
1487; Attorney General of Nova Scotia vs Attorney-General of Canada 1951 CLR, SC,
Till the Seventh Amendment, the entries ran as follows: Entry 33, List I: Acquisition
and requisitioning of property for the purpose of the Union; Entry 36, List subject
to the provisions of entry 42 of List III; Entry 42, List III: Principles on which
compensation for property acquired or requisitioned for the purpose of the Union
or the State or for any other public purpose, is to be determined, and the form
and manner in which such compensation is to be given. The above entries were deleted
by the Seventh Amendment which came into force from 1 November, 1956, and the following
new Entry 42 was substituted in List III: Acquisition and Requisitioning of Property.
Romesh Thappar v. State of Madras, (1950) SCR 594, 597.
(1971) 1 SCR 734.
Lynch v. Household Corpn. 405 US 538, 552.
K K Mathew, 1978, Basic Structure and Fundamental Right to Property, 2 SCC pp