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Right to Property under the Indian

Constitution
vyshnavi neelakantapillai

07 March 2011
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Introduction

Pre 1978 Amendment

Article 19﴾1﴿﴾f﴿
ACT

Post 1978 Amendment

Articles 31﴾a﴿, 31﴾a﴿, 31﴾a﴿, 300 A
Act

The Indian 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.[1] 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.[2]

The 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.

Doctrine of Eminent Domain

v HISTORY

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.

WHAT 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.

PRESENTLY 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
level.
 ESSENTIAL INGREDIENTS OF THIS DOCTRINE

1. Property is taken for public use

2. Compensation is paid for the property taken.

The above said are the two limitations imposed on the

power of Eminent Domain by the repealed A.31 .

Whereas the new A.300 A imposes only one limitation on this

power ﴾i.e.,﴿Authority of Law

MAXIMS

The doctrine 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;

ii. Necessita 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.[3] 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.[4] The exercise
of such power has been recognized in the jurisprudence of all
civilized countries as conditioned by public necessity and
payment of compensation[5]. 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‐‐
‐

1. There must be a law authorizing the taking of property

2. Property is taken for public use

3. Compensation should be paid for the property taken.

Meaning of Property

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.[6] It includes both
corporeal and incorporeal right.[7] It includes money[8],
Contract, interest in property e.g., interest of an allottee,
licensees, mortgages or lessees of property. The Mahantship of a
Hindu Temple,[9] and shareholders of Interests in the
company[10] are recognizable interest in property. The right to
receive pension is property.[11]

Supreme Court Approach to the Right to Property

The Supreme Courts approach to the right to property can be

divided into two phases:‐

THE TIME TILL THE RIGHT TO PROPERTY WAS A

FUNDAMENTAL RIGHT ﴾PRE 1978﴿

THE TIME AFTER THE CONVERSION OF RIGHT TO PROPERTY AS

A CONSTITUTIONAL RIGHT ﴾POST 1978﴿

Pre 1978 The Fundamental Right to Property

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[12]. 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[13], though the Supreme
Court was itself skeptical about the way the government went
about exercising its administrative power in this regard[14]. 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 fact[15]. 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[16].

In this juncture the court in this Bank Nationalisation case[17]

has clearly pointed out the following two points:

a. 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[18].

b. 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[19].

Post 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.[20] The
court however is also responsible in toning down the excesses
on the right to property and wealth by the socialist state[21].
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 of
wealth.[22]However, 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 order[23]. 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.

44th 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[24], 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.[25]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.

Recent Approach by the Supreme Court

In a 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
lawsuit[26]between 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.

Judiciary vs Legislature: The Tussle Begins

The saga 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[27], State of W.B v.
Subodh Gopal[28], State of Madras v. Namasivaya Muralidar[29],
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.

Then 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,[30] 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.

But the Supreme Court in Srimathi Sitabai Devi v. State of West

Bengal[31] 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﴿.

The Supreme Court in P Vajravelu Mudalier v. Special Deputy

Collector[32] and also in the Union of India v. Metal Corporation
of India[33] 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,[34] 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,[35] 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:

﴾1﴿ Every citizen has a fundamental right to acquire, hold and

dispose of the property.
﴾2﴿ The state can make a law imposing reasonable restrictions on
the said right in public interest.

﴾3﴿ The said restrictions, under certain circumstances, may

amount to deprivation of the said right.

﴾4﴿ Whether a restriction imposed by law on a fundamental right

is reasonable and in public interest or not, is a justiciable issue.

﴾5﴿ 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 19﴾5﴿.

﴾6﴿ The state can acquire or requisition the property of a person

for a public purpose after paying compensation.

﴾7﴿ The adequacy of the compensation is not justiciable.

﴾8﴿ 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.

﴾9﴿ 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
rights.

Amending 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

the state 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[36]. 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[37], 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.

The challenge to the Seven Essential Features of the Constitution

by Article 31 C

Article 31C sought to challenge seven essential features of the

Constitution.

1. Vital Distinction between Two Cases of Constitutional

amendment:
﴾1﴿ Where the fundamental rights are amended to permit laws to
be validly pass which would have been void before amendment;
and

﴾2﴿ 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.

The question is not merely of legislative device. In the first case

the law is Constitutional in reality, because the fundamental
rights themselves stand abridged.

2. Unconstitutional in reality but fictional

In 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 rights case[38]
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

principles. 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.

1. Form & Manner Amenability of the Fundamental

Principle

Third, it is a fundamental principle of the Constitution that it can

be amended only in form and

manner laid down in Article 368 and according to that Articles

basic scheme[39]. 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.

2. Role of Fundamental Rights as The Essential Feature of

the Constitution

Fourth, 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﴿]; and

The right to receive an amount, however small, when the state

seizes the property [Article 31﴾2﴿].
In short, Article 31C expressly authorised outright confiscation of
any property, large or small,

belonging 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
system.

3. The Directive Principle Of State Policy

Fifth, it was not even permitted to raise the question whether the
proposed law will result, or is

reasonably 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[40].

4. What is the basic principle of the constitution??

Sixth, 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[41].

N. 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.
Due protection to minorities

One of 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

The four attributes of a totalitarian state are:

﴾1﴿ Constitutional to the ruling party to favour its own members,

﴾2﴿ Denial of the right to dissent or to oppose,

﴾3﴿ Denial of various personal freedoms, and

﴾4﴿ The states right to confiscate anyones property.

All these 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
reconsider it.

The 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

1. Through Article 31 C took away the right to acquire, hold

and dispose off the property under Article 19﴾1﴿ ﴾f﴿

2. Right to property under Article 19﴾1﴿ ﴾f﴿ did not pertain to

the basic structure of the constitution ﴾Honble Justice.
H.R.Khanna﴿

3. Article 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

4. There is no necessity for an elaborate argument to

demonstrate that property is intimately connected with the Right
to Freedom.

Article 300‐A

Chapter 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.

The 44th amendment act which deleted article 19﴾1﴿ ﴾f﴿ and
introduced this article brought out the following important
changes:

1. 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.

2. 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.

3. 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

The rights conferred by Article 19﴾1﴿﴾f﴿ and Article 31 read with

the undernoted entries[42] 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:

﴾i﴿ 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.

﴾ii﴿ 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.

﴾iii﴿ 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.

﴾iv﴿ 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.

﴾v﴿ 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.

﴾vi﴿ 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 press[43]a 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﴿?

To these 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:

Provided 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.

This 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,[44]
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.

Defects of the 44th Amendment Act

The amendment 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

﴾3﴿ The correlation of fundamental rights to Directive principles

of state policy.

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.

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 Maneka Gandhi
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 of law.

The two relevant concepts that now require to be examined are

'property' & 'Authority by law'.

'Property' 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﴿[45]. 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 300A.

'Authority 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.

While summarizing the entire concept of Right to Property..

Once 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.[46]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.[47] 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.

[1] Capitalism and Freedom by Milton Friedman

[2] Class Of Civilization by Samuel Huntington

[3] P.K.Tripathi‐ Right of Property After 44th Amendment Better

Prosecuted Than Ever Before, Air 1980﴾51﴿ Journal.

[4] V.N.Shukla: The Constitution of India, p.144 ﴾1969 Edn.﴿.

[5] State of Bihar v. Kameshwar Singh, AIR 1952 SC 252

[6] Commr. Hindu Religious Endowment v. Swamiyar, AIR 1954

SC 282

[7] Dwaraka Das Srinivas v. Sholapur Spg and Wvg. Co. Ltd, AIR
1958 SC 328

[8] Bombay Dyeing Co v. State of Bombay, AIR 1958 SC 328

[9] Supra note 6

[10] Supra note 5

[11] State of Kerala v. Padmanabhan Nair, ﴾1985﴿ 1 SCC 429

[12] AIR 1954 SC 170.

[13] Vasanlal Maganbhai Sanjanwala v. State Of Bombay, AIR

1961 SC 4: Attar Singh v. State of U.P, AIR 1959 SC 564

[14] Raghubir Singh v. Court of Wards, AIR 1953 SC 373 paras 8

to 10

[15] Bishan Das v. State of Punjab, AIR 1961 SC 1570

[16] The Bank Nationalisation Case ﴾Rustom Cavasjee Cooper v.

Union of India﴿, ﴾1970﴿1 SCC 248

[17] Supra.

[18] Paragraph 112 of the Bank Nationalisation Case

[19] Paragraph 113 of the Bank Nationalisation Case

[20] State of T.N v. L. Abu Kavur Bai, ﴾1984﴿ 1 SCC 515

[21] K.R.Lakshmanan v. State of T.N, ﴾1996﴿ 2 SCC 226

[22] Indore Vikas Pradhikaran v. Pure Industrial Coke &

Chemicals Ltd., ﴾2007﴿ 8 SCC 705

[23] See, J.M.D.; Religion Law and State in India; Oxford

University Press, New Delhi, 1999; pp.131‐132

[24] ﴾1981﴿ 1 SCC 166

[25] The Times of India, 24th September, 2008

[26] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299

[27] AIR 1954 SC 170

[28] ﴾1954﴿ SCR 587

[29] ﴾1964﴿ 6 SCR 35

[30] AIR 1960 SC 1080

[31] ﴾1967﴿ 1 SCR 614

[32]﴾1965﴿ 1 SCR 614

[33] ﴾1967﴿ 1 SCR 255

[34] AIR 1965 SC 632

[35] AIR 1967 SC 1110

[36] AIR 1951 SC 455, P.458

[37] AIR 1965 SC 845

[38]Keshvananda Bharathi v. State of Kerala, AIR 1973 SC 1461

[39] Cf Attorney‐General of New South Wales v. Therthtown,

1932 AC 526

[40] In Keshvananda Bharathi v. State of Kerala, AIR 1973 SC

1461 the Supreme Court held this provision barring the Courts
jurisdiction to be void.

[41] Cf In re The Initiative and Referendum Act 1919 AC 935,945

﴾P C﴿; Shama Rao vs Union Territory of Pondichery [1967] 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, 31, 37‐38.
 [42] 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.

[43] Romesh Thappar v. State of Madras, ﴾1950﴿ SCR 594, 597.

[44] ﴾1971﴿ 1 SCR 734.

[45] 2008

[46] Lynch v. Household Corpn. 405 US 538, 552.

[47] K K Mathew, 1978, Basic Structure and Fundamental Right to

Property, 2 SCC pp 65

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Comments

EDDIE E. LAHTI about a year ago

Good information

AMY JONES 5 years ago

Thanks for sharing this article. Its really helpful for me. If
anyone want to know more about Property Dispute Lawyers
and also need any kind of help then visit:
https://www.ahlawatassociates.com/area‐of‐practice/real‐
estate‐lawyers

ARUP 13 years ago

THANKS. IT WAS MY REQUIREMENT.

A. PATRAWALA ADVOCATE 13 years ago

British feudalism legacy under Article 19 ﴾f﴿ deprived ownership
to millions cultivators. Misuse by State SEZ Laws caused
tremendous harm to social fabric. We must restore Article 19﴾f﴿
through ballet not bullet. Appreciation for scholarly treaty.

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