RIGHT TO PROPERTY

300.A. Persons not to be deprived of property save by authority of law :

No person shall deprived of his property save by authority of law.

Right to Property and its

Evolution in India
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
I, ARUN SHARMA describing why the legal status of the Right to
Property was changed from a fundamental right to a constitutional
right.

What is Property?

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. The expression property in Article 300A is confined not
only to land alone. It includes both corporal and incorporeal rights. It
includes Money, contract, interest in the property, etc.
Right to Property as a fundamental right

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. 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 America, this power was limited by imposing

three restrictions:
 1. there must be a law authorizing the taking of property
2. the property must be taken for a public purpose
3. just compensation should be paid.

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, 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.

Why the 44th amendment act was made?

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:

1. Provisions related to saving of certain laws were added- By Constitution 1st

amendment act 1951 Art. 31A and 31B were added. Art.31A provides that no law
providing for the acquisition of any estate or any right or modification of any
right will not be deemed to be void on the basis that it is inconsistent with Art. 14
and 19. Art.31B provides for validation of certain acts and regulations, it says
that none of the acts and regulations mentioned in the IX Schedule of the
constitution would be deemed to be void on the ground that it is inconsistent
with the rights conferred in Part III of the constitution. Later on, by the 4th
amendment 1955, the scope of the estate was increased, it includes any jagir,
inam or muafi, or any other similar grants.

2. Land celling was one of the strongest measures taken in this regard. Celling
means the maximum limitation on the area that can be acquired by a private
person. In the year 1959 at the Nagpur conference of Indian National Congress, it
was decided that laws or acts related to the restriction of land limits must be
implemented till the end of the year. The land ceiling act was implemented from
1960-1972 and from1976-1999.

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.
Present Legal Status of Right to
Property

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.

In the case of Hari Krishna Mandir Trust vs the State of

Maharashtra And Others, 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, it was held by SC
that the requirement of public purpose is invariably the rule when
a person is deprived of his property.
Kesavananda Bharati Case
Case Summary – Kesavananda Bharati & Others (Petitioners) V
State of Kerala (Respondents)
1. Kesavananda Bharati & others Versus State of Kerala is certainly one of the
leading cases in the constitutional history of India if not the most important
judgement of post-independent India and is popularly known as the Fundamental
Rights case.
2. The majority judgement in the case was pronounced by S.M.Sikri C. J., Hegde J,
Mukherjea J, Shehlat J, Grover J, Jaganmohan Reddy J, Khanna J, and was
dissented by Ray J, Palekar J, Mathew J, Beg J, Dwivedi J and Chandrachud J.
3. It is rightly said that the judgement in the instant case brought an end to the
conflict between the executive and the judiciary and proved to be a saviour of
the democratic system and set up in the country. The resultant judgement in the
case was a hard-fought legal battle between the two constitutional stalwarts and
legal luminaries namely N.A. Palkhivala (who represented Petitioners) and H.M.
Seervai (who represented the State of Kerala). The hearing in the case took place
for sixty-eight long days and finally, a voluminous 703-page judgement was
pronounced on 24th April 1973.

Brief Facts
Kesavananda Bharati was the chief pontiff of the Edneer Mutt, a monastic religious
institution located in Kasaragod district, Kerala. Bharati had some land in the Mutt which
he owned. The Kerala state government passed the Land Reforms Amendment Act in
1969. As per this Act, the government could acquire some of the lands that belonged to
the Mutt. In March 1970, Bharati moved the Supreme Court (under Section 32 of the
Constitution) to enforce the rights that were guaranteed to him under:

1. Article 25: Right to practice & propagate religion

2. Article 26: Right to manage religious affairs
3. Article 14: Right to equality
4. Article 19(1)(f): Freedom to acquire property
5. Article 31: Compulsory acquisition of property

The Kerala state government enacted another law, the Kerala Land Reforms
(Amendment) Act, 1971 even as the petition was under the court’s consideration.

The contentions made by the petitioners brought to the fore the validity of various
amendments that were brought in by the Parliament to nullify the effects of Golaknath
v State of Punjab. The petitioners challenged, in particular, three constitutional
amendments – 24th Amendment, 25th Amendment and 29th Amendment and their validity.
Contentions of the Petitioners

1. Petitioners contended that the Parliament can’t amend the Constitution

in a manner they want as their power to do this is limited. The
Parliament cannot make an amendment to the Constitution to change
its basic structure as was set forth by Justice Mudholkar in the Sajjan
Singh v State of Rajasthan case.
2. They argued that the 24th & 25th Constitutional Amendments were
violative of the Fundamental Right provided in Article 19(1)(f).

Contentions of the Respondents

1. The State said that the Parliament’s supremacy is the Indian legal
system’s basic structure and hence, it has boundless power to amend
the Constitution. The respondents stressed that in order to fulfil its
socio-economic obligations the unlimited power of the Parliament to
amend the Constitution must be upheld.

Kesavananda Bharati Case – Judgement

1. The landmark judgement was delivered on 24th April 1973 by
a razor-thin majority of 7:6 wherein the majority held that
any provision of the Indian Constitution can be amended by
the Parliament in order to fulfil its socio-economic obligations
that were guaranteed to the citizens as given in the
Preamble, provided that such amendment did not change
the Constitution’s basic structure. The minority, however, in
their dissenting opinion, were wary of giving the Parliament
unlimited amending power.
2. The court held that the 24th Constitutional Amendment was
entirely valid. But it found the first part of the 25 th
Constitutional Amendment to be intra vires and the second
part of the same ultra vires.
Doctrine of Basic Structure
The basic structure doctrine states that the Parliament has limitless power to amend the
Constitution subject to the condition that such amendments should not change the
Constitution’s basic structure. The bench did not mention the basic structure of the
Constitution and it was left to the interpretation of the courts. This was subsequently
laid down in several other judgements by the SC.

The court contended that the term ‘amend’ mentioned in Article 368 doesn’t imply
amendments that can alter the Constitution’s basic structure. If the Parliament intends
to make an amendment with respect to a constitutional provision, such an amendment
would necessarily have to undergo the ‘basic structure’ test.

Conclusion
The case of Kesavananda Bharati vs the State of Kerala as mentioned supra had been
heard for 68 days, the arguments commencing on October 31, 1972, and ending on
March 23, 1973. The hard work and scholarship that had gone into the preparation of
this case were breathtaking. Literally hundreds of cases had been cited and the then
Attorney-General had made a comparative chart analysing the provisions of the
constitutions of 71 different countries.

The majority of the bench wished to safeguard the Constitution by preserving its basic
features. The judgment was based on sound reasoning and it was given after a careful
analysis of multifarious aspects. The bench opined that if the Parliament were to get
unfettered power to amend, there were chances of that power to be misused, and that
governments would change it as per their own preferences and whims. Such limitless
powers vested in the hands of the government would mean that the basic features and
also the very essence and spirit of the Indian Constitution could be changed. There was
a need for a doctrine which could protect the rights of both the Indian Parliament and
Indian citizens; the bench met this need halfway and came up with the basic structure
doctrine, that protects the rights of both camps. It is to be noted that while in the US,
only 27 amendments have been made, India has seen over one hundred amendments
since independence. Despite this big number, the spirit of the Constitution and also the
ideas of the Constitution-makers have not been tampered with. It is because of the
bench’s decision that the identity and spirit of the Constitution have not been lost. This
landmark case has given our Constitution stability. Even though the petitioner lost this
case partially, the SC ruling in the Kesavananda Bharati case turned out to be a saviour
for Indian democracy, and also prevented the Constitution from losing its spirit.
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.

Right to own Private Property is a Human Right

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.

NAME = ARUN SHARMA

COURSE = BA.LLB SEMESTER 4th
ROLL.NO = L40120036