Sunday, 2 September 2018

Whether right to property is fundamental right?

A brief history of property rights in Independent India: The history of property rights in India is way too complicated for me to provide for a detailed account herein. I’ll instead just aim for a very brief summary of the same.
When independent India first adopted its Constitution, the Right to Property, as enshrined in Article 19(1)(f), was a fundamental right and therefore placed at a high pedestal. Article 19(1)(f) had to be read along with Article 31 of the Constitution in order to prevent the Government from depriving a person of his property without the “authority of the law” and further that such law should provide “for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and give”.

Both Article 19(1)(f) and Article 31 proved to be a substantial headache to the Indian Government, as these provisions made it very difficult for the Government to proceed with its socialist agenda of land reforms and nationalization schemes, as the Government simply could not afford to pay reasonable compensation for the lands and corporations acquired by it. Initially the Congress Party which was in power at the Centre aimed at maintaining the legality of its action by introducing new provisions such as Article 31A,B & C along with Schedule IX to the Constitution to protect, from judicial review, all those legislations which offended the fundamental rights enshrined in Part III of the Constitution. At last count there were at least 285 legislations, most of them land reform legislations, locked up under the safety of Schedule IX.
In 1977, the grand coalition of the Janata Party, had just wiped out the Congress Party, in the elections held after the lifting of the internal emergency imposed by then Prime Minister Indira Gandhi in the year 1975. A year later in 1978, the Janata Party passed the 44th Amendment to the Constitution of India. As a part of these Amendments both Article 19(1)(f) & Article 31 were deleted from the Constitution. Article 31 however was only party deleted in the sense that Article 31(1) which provided that “no person shall be deprived of his property, save by the authority of the law” was transferred out of the fundamental rights chapter and shifted to Chapter IV of Part XII, in the form of Article 300A.
Article 300A now reads as follows: Article 300A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.
The constitution of India can be accessed here.
This amendment had two immediate implications:
(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.
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