Synopsis

Property as legal right

Introduction

Evolution-right to property

Constitutional prospective

Abolition of right to property

The 9th schedule-constitution

Cases

Conclusion
Introduction

Right to property is framed as a human right under the Universal Declaration of

Human Right and is recognized as a fundamental right in most democracies. It is
one of the most controversial of rights, always in need of an appropriate
definition suited to a nation’s political, social and economic conditions. While all
liberal constitutions allow for certain reasonable restrictions on an absolute right
to property for some public good, the challenge facing every country is where to
draw the line against state interference into a person’s right to own and enjoy
property. In 1950, independent India drafted into its new Constitution a set of
fundamental rights for its citizens to free speech, peaceful assembly, association,
to move freely throughout the territory, to reside and settle in any part of the
country, “to acquire, hold and dispose of property”, and to practice any
profession, or carry on any occupation, trade or business. The Constitution also
gave the nation an independent judiciary.

Of all the fundamental rights enshrined in the Indian Constitution, the right to
property has been persistently under attack from the executive. Political
philosophies of the day claimed a need to set right historical wrongs. Whittling
down property rights through repeated subversion of the Constitution was the
chosen path. This pitted the executive against a judiciary, which believed itself to
be the final arbiter on the Constitution as framed by the founding fathers.
Undermining of the right to property as a fundamental right precipitated by a
weak rule of law regime saw a corresponding rise in the abuse of the eminent
domain power. The justification for dilution of the right to property for a more
equitable distribution of land by taking from the large landlords, gave way to
acquisition of land from small and marginal farmers, for projects and activities
that benefit the rich and powerful. This led to a growing sense of injustice and
numerous public protests.
Evolution - right to property

The concept of private property as understood in today’s constitutional sense

evolved with the interpretation of classical Hindu law by judges of the British
Empire. The English common law practices ironed out conflicting texts and
divergent customary rules prevailing across India and codified problematic
elements of a Hindu’s right to property and its alienation. Muslim rulers had
introduced the Jagirdari system of creating temporary alienations on military-
revenue considerations, which evolved in the sixteenth century. Jagirs (land
holdings) were granted to nobles, scattered away from each other to prevent
consolidation by the assignees (Gandhi 1985). British rulers inherited the
existing land settlement systems of the Mughals that covered much of the Indian
sub-continent. Waning Mughal rule had made the jagirdars de facto owners of
the land. It was politically expedient for the colonial rulers to continue dealing
with them to generate land revenue. By imposing the English common law to
determine property relationships, the British ironically laid the ground for
recognition of private property rights in India. In 1793, the British government
granted Permanent Settlements to zamindars (landed aristocrats) in the region of
Bengal with ownership rights over land. The settlement was extended to Bihar,
Madras and Orissa. Modified versions of such settlements, including short-term
alienations, were created in other parts of India also (Gandhi 1985; Mearns
1999). The common feature of these diverse land tenure systems was that the
zamindars did not technically own the land and the tillers of the land were
tenants of the zamindars. The concept of eminent domain as an attribute of State
sovereignty was first introduced by the British through the Bengal Regulation I
of 1824, which authorized compulsory acquisition of private property by the
State. The Land Acquisition Act of 1894 empowered the State to acquire private
land for a ‘public purpose’ on payment of compensation. Constitutional
protection of property figured for the first time under the British rule in the
Government of India Act of 1935. Expropriation of private property, including
land and commercial and industrial undertakings, without ‘public purpose’ and
full compensation was illegal.
 Constitutional prospective

By the end of the British rule, zamindars held vast tracts of land with complete
control over the tillers’ rights. This land was however, hugely fragmented,
because of the historical nature of alienations made first by the Mughals and later
by the British. In the run-up to the Indian independence in 1947, socialism was
the dominant ideology of the Indian National Congress, the party that led India’s
freedom struggle against British rule. Insecurity of land tenures among the
village communities, poverty and indebtedness and recurring famines
preoccupied negotiations on law-making with the British to secure independence
and later, within the Constituent Assembly drafting the Constitution for
independent India.

Pre-1978, ‘right to property’ was one of the Fundamental Rights as per Article
19(1) (f) of the Constitution. After 44th Amendment to the Constitution in 1978,
‘right to property’ was omitted as a ‘Fundamental Right’ and converted into a
‘legal right’ under Article 300-A of the Constitution.

What separates fundamental from legal rights? Both are rights, scribed in the
Constitution and, important. But both aren’t equally protected. Restrictions on
fundamental rights require just, fair and reasonable laws; restriction on legal
rights require laws. In other words, restrictions on fundamental rights demand
stronger justifications.

After the independence, India’s Political Leaders and planners embarked on

social and economic reconstruction of Indian society by first of all removing the
evils of Zamindari system. The First Five year plan was in support of this and it
excluded the presence of intermediaries and had given the land to the ‘tiller’.
Consequently land reforms were enacted in UP, Bihar and elsewhere. But at the
same junction of time the Hon’ble Supreme Court in State of Bihar Vs.
Maharajadhiraj Sir Kameshwar Singh of Darbhanga & Ors.1 held that the Bihar
State Management of Estates and Tenures Acts,1949 is void on the ground that
compensation provided was no compensation.

1
AIR 1952 SC 252
So as to nullify the effect of this judgment and also to upheld the validity of
Zamindari Abolition Regulation, first Amendment was done and Pt. Jawaharlal
Nehru, the then Prime Minister of India, had enunciated the doctrine of
Parliamentary Supremacy during the constituent assembly debate on
compensation wherein he declared that,

“No Supreme Court and no judiciary can stand in judgment over the sovereign
will of the Parliament representing the will of the entire community. If we go
wrong here and there it can point out ultimate analysis, where the future of the
community is concerned, no judiciary can come on its way, and ultimately the
whole Constitution is a creature of Parliament.”

Therefore, the first amendment added to Article 31 two explanatory clauses 31-A
and 31-B to fully secure the abolition of Zamindari. Once, Zamindari was taken
care of, then came the resistance against acquisition of private land for
government projects such as railway lines, public-welfare projects, road and
highways.

The 44th Amendment Act, 1978 repealed Article 19(1)(f) of the Constitution and
Article 31(1) had been taken out of Part III and made a separate Article 300A in
Chapter IV of Part XII of the Constitution. This amendment may have taken
away the scope of speedy remedy under Article 32 for the violation of Right to
Property because it is no more a Fundamental Right.

The question of ‘right to property’ being restored as fundamental right was

brought before Hon’ble Supreme Court again during land acquisition for SEZ
projects in 2009 wherein Hon’ble Apex Court deliberated on the issue that
‘Should the right to property be restored to a fundamental right, citizens will be
able to challenge state acquisition of land’. In that lawsuit, the Central
Government’s Special Economic Zone policy was under challenge in the
Supreme Court through public interest litigations.
The issue of Right to Property is one of the most controversial issues, both in
terms of its existence and interpretation, whose inception dates back to the
Constituent Assembly Debates.This Right has been subjected to scrutiny all over
the world and there is no universally accepted rule and principle which governs
this Act.

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 SC, 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 but also a human right.
Abolition of right to property

Earlier, it formed a part of the fundamental rights under Part III of the
Constitution;

o Article 19(1)(f), it was stated that every person had a right to acquire any
property by lawful means, hold on to it as his own, and dispose of it
freely. The only limitations to this Article were the reasonable restrictions
to serve the exigencies of public welfare, and any other restrictions
imposed by the State to protect interests of Scheduled Tribes.
o Article 31(1), no person could be deprived of his/her property save by the
authority of law.
o Article 31(2), it was stated that is the State wanted to acquire the property
of any private individual, it could only do so if the acquisition was strictly
for public purposes, and an adequate compensation was provided to the
owner.

This was the meaning and the implications of the right to property before the
44th Constitutional Amendment. After the 44th Amendment, Articles 19(1)(f),
31(1) and 31(2) were repealed, completely altering its meaning and removing it
from the ambit of ‘Fundamental Rights’, and converting it into a mere
‘Constitutional’ or ‘Legal’ right. The implications of such were that, now if the
right to property of any individual was violated, he could not approach the
Supreme Court for seeking redressal. This was solely because the right to
property was not a fundamental right anymore. The only exceptions to this
transformation were the minority communities and the persons holding land for
personal cultivation, to whom the fundamental right of property still existed and
was enforceable under Articles 30 and 31(A) respectively.

Furthermore, under the 44th Constitutional Amendment, a new article came into
place, namely, Article 300(A). This article provided that no person shall be
deprived of his/her property, save in accordance with the law.
 Why the right to property was transformed from a fundamental right into a legal
right?

The answer to this question is that prior to independence, lots of zamindaris and
colonial faithfuls had accumulated a large amount of wealth in the form of these
lands, and because of this, post-independence, there was a huge problem of land
rationalization for the government. On one hand there were people who had
amassed a huge proportion of land, and on the other hand, there were the poor
farmers and tenants who had lost their lands to the zamindaris and the bigger
farmers under the zamindari system. And in order to redistribute the lands, it was
extremely important to remove the right to property from the ambit of
fundamental rights.

This change was brought about with the case of Kesavananda Bharati v. State of
Kerala2, after which the decision to amend the Constitution was taken by the
Government and the parliament. The liberalization of the economy and the
government’s attempt to create special economic zones has led to many protests
by the farmers calling for the reinstatement of the right to property as a
fundamental right, but all these protests have yielded no fruit.

The makers of our Constitution differed when it came to the property rights of
the citizens. The then Prime Minister Jawahar Lal Nehru, wanted the removal of
Right to Property from Part III of the Constitution. His idea of developing a
socialist democracy could have been taken forward only when owners of large
swathes of land and the Zamindari system be abolished. With right to property in
Part III of the Constitution, it would have remained a dream. But the visionary
failed to see that it would go on to cause major exploitation and render thousands
without their properties, destroying their livelihood. The First and Fourth
amendments of the Constitution sowed the seeds for the removal of right to
property as a fundamental right.

2
AIR 1973 SC 1461
The 44th amendment of 1978 was the death knell for right to property. The State
could now acquire land from any citizen by giving inadequate compensation as it
was made impossible for one to approach court for low compensation. The
presence of a draconian Land Acquisition Act, 1894 only made things easier for
well-connected corporate houses to grab land at low prices through corrupt
officials who were on their payroll. Farmers were the most to be affected by this
amendment as swathes of farm lands were being acquired for ‘public purposes’.
The Ninth Schedule

The 9th schedule was inserted in the constitution by the constitution (first
amendment) Act, 1951 along with two new articles 31A &31B 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, Article 31 relating to right to property was

amended in several aspects. The purpose of these amendments related to power
of the state of compulsory acquisition and requisitioning of private property. By
the constitution (seventh Amendment) Act 1964, the Article 31A 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 S.C. was generally of the view that land reform needed to
be upheld even if they did strictly clash against the right to property, though the
S.C. was itself skeptical about the way the government went about exercising its
administrative power in this regard. The S.C. was insistent that the administrative
discretion to appropriate or infringe property rights should be in accordance with
the law and cannot be by mere fact. 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.
 Cases

Union of India v. Martin Lottery Agencies Ltd.3

Article 300 A includes all type of property capable of being owned. It includes
tangible, intangible, corporeal and incorporeal property. Article 300 A does not
confine to land alone but includes intangible property like copyright, intellectual
property rights, mortgage, money, any interest in property, lease, license etc. The
pension and gratuity are valuable right of individual therefore protected under
article 300 A.

Dnyaneshwar v. State of Maharashtra4

The Bombay High Court is held that depriving the petitioner from his right to
compensation is violation of the right guaranteed in Article 300-A of the
Constitution of India.

3
(2009) 12 SCC 209
4 (2002) 4 Mah LJ 612
Conclusion

Ownership of property has been critical in determining the power and political
evolution of society from ancient times. With increasing number of people
owning property, land and other assets, the demand for political participation in
decision-making has increased. While restoration of right to property as a
fundamental right in the Constitution is still not on the table, the demand for
protection property rights, particularly of the poor, can no longer be brushed
aside. Political devolution to the States, where land could become a key feature
of the local governments, with State and Central government exercising residual
authority is a future to look forward to in a deepening democracy.