Right to Property Under Indian Constitution
Right To Property Under Indian Constitution
The circumstances and the process of transformation of the right to property are an object lesson in the complexity of constitutional law . The original Article 31 (1) simply asserted that no person would be deprived of his property save by authority of law . Clause (2) of the same article provided that no property could be taken possession of , or acquired . Unless the law provided for compensation or specified the principles on which the compensation was to determined and paid . After a series of judicial cases on the adequacy of the amount of compensation , Parliament made the 4th amendment of the constitution in 1955 replacing the word 'compensation' by 'amount' and declaring that no law fixing the amount or laying down the principles for determining such amount could be called in question on the ground that the amount so fixed or determined was not adequate . In Vajravelu Mudaliar v. Special Deputy Collector , Madras and another (1965) , the Supreme Court accepted the amendment to the effect that equivalence (compensation) could not be questioned , but held that 'if a law lays down principles which are not relevant to the property acquired , it may be said that they are not principles contemplated by Article 31(2) of the constitution'.
The full implication of the doctrine of relevance would unfold a quarter of century later in the Bomai case .Meanwhile , the 17th amendment , giving a new definition to 'estates,' was challenged in Golak Nath v. the state of Punjab . While agreeing with the majority view that fundamental rights are unamendable , Hidayatullah , J. opined that it was an error to put property among the fundamental rights . In 1970 , in the bank nationalization case the supreme court evoked the doctrine of relevance of the principles of determining compensation again . After the 44th amendment in 1978 property has ceased to be a fundamental right . It has become a right in chapter IV of Part XII , and it says that no person shall be deprived of his property except by law . However certain savings of laws , erstwhile contingent upon that article (Article 31), have , somewhat oddly , been retained in Part III without an appropriate sub title . Their proper place would be chapter IV of Part XII . Those articles are the following .
Article 31 A saves laws providing for acquisition of estates , temporary management of any property by the state in public interest , amalgamation of two or more corporations either in public interest or for their proper management , extinguishment or modification of any rights of managing directors , directors or managers of corporations , or of any voting rights of shareholders thereof , or the extinguishment or modification of any rights accruing by virtue of any agreement , lease or license for the purpose of searching for , or winning , any mineral or mineral oil , or the premature termination or cancellation of any such agreement .
These powers of the state have two provisions :
- Any such laws made by a state legislature shall have to secure the assent of the President of India .
- If the state acquires any land under personal cultivation of a person , the compensation paid against such acquisition shall not be lower than at the market rate .
According to the Article 31 B a ninth schedule to the constitution was created in order to exclude certain legislations from the scope of judicial review . Originally the acts put there related to land reform . Some of the later legislations , included in the ninth schedule , related to other kinds of property too. But , when the Tamil Nadu Backward Classes , Scheduled castes and Scheduled tribes (Reservation of Seats in Educational Institutions and appointments or posts in the Services under State) Act, 1993 , was added to the schedule as entry no. 257 A , the inclusion was challenged and the Supreme Court , in 2007 , decided to examine the entire ninth schedule .
Article 31 C had a worse fate . This article , inserted by the 25th amendment in 1971 , to mitigate the effect of the Supreme Court judgement in the bank nationalization case of 1970 , provided that, notwithstanding anything contained in Article 13, no law giving effect to any of the directive principles of state policy would be void and no court could call in question any such law . In the Keshavananda Bharti case of 1973 the Supreme Court declared void that portion of the 25th amendment that precluded judicial review of such law .
By the 44th Amendment to the Constitution, the right to property was removed as a fundamental right and instead, a new provision was added to the Constitution i.e. Article 300-A.