Chap5 Property fundamental to constitution

7/26/2019 Chap5 Property fundamental to constitution

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IGHT TO P OPE TY UNDE THE INDIAN CONSTITUTION

(fundamental to constitution)

INT ODUCTION

Pre 1978 Amendment ACT Article 19(1)(f)Post 1978 Amendment Act Articles 31(a), 31(a), 31(a), 300 A The Indian Constitution does not recognie !ro!ert" right as a fundamentalright# In the "ear 1977, the $$th amendment eliminated the right to ac%uire, hold and

dis!ose of !ro!ert" as a fundamental right# &o'eer, in another !art of theConstitution, Article 300 (A) 'as inserted to arm that no !erson shall *e de!ried of his !ro!ert" sae *" authorit" of la'# The result is that the right to !ro!ert" as afundamental right is no' su*stituted as a statutor" right# The amendment e+!andedthe !o'er of the state to a!!ro!riate !ro!ert" for social 'elfare !ur!oses# In other'ords, the amendment *esto'ed u!on the Indian socialist state a licence to indulge in'hat redric -astiat termed legal !lunder# This is one of the classic e+am!les 'henthe la' has *een !ererted in order to ma.e !lunder loo. /ust and sacred to man"consciences# Indian e+!eriences and conce!tion of !ro!ert" and 'ealth hae a er" dierenthistorical *asis than that of 'estern countries# The fact the !resent s"stem of !ro!ert"as 'e .no' arises out of the !eculiar deelo!ments in uro!e in the 17th to18thcentur" and therefore its e+!eriences 'ere uniersall" not a!!lica*le# A still moreeconomic area in 'hich the ans'er is *oth dicult and im!ortant is the de2nition of !ro!ert" rights# The notion of !ro!ert" as it has deelo!ed oer centuries and it hasem*odies in our legal codes, has *ecome so much a !art of us that 'e tend to ta.e itfor granted, and fail to recognie the e+tent to 'hich /ust 'hat constitutes !ro!ert"and 'hat rights the o'nershi! of !ro!ert" confers are com!le+ social creations ratherthan self eident !ro!ositions#This also seems to *e the hidden reason 'h" the rightto !ro!ert" is suddenl" much contested throughout India toda" and 'h" the state iscoming u! une+!ectedl" against huge resistance from une+!ected %uarters in

attem!ting to ac%uire land in India# The action of the state to assert the minentomain oer su*sidiar" claims on !ro!ert" and the clash 'hich resulted there from4ingur, 5andigram and other !arts of India is !recisel" a manifestation of a clash of cultures# To !ut in 4amuel &untingtons 'ords, the ideas of the 'est of deelo!mentand li*eraliation !ro!agated *" the !resent ruling elite and the old Indic ideas 'hichsha!e the ie's of the ma/orit" of the !eo!le The right to !ro!ert" under the Indian constitution tried to a!!roach the%uestion of ho' to handle !ro!ert" and !ressures relating to it *" tr"ing to *alancethe right to !ro!ert" 'ith the right to com!ensation for its ac%uisition through ana*solute fundamental right to !ro!ert" and then *alancing the same 'ith reasona*lerestrictions and adding a further fundamental right ofcom!ensation in case the

!ro!erties are ac%uired *" the state# This 'as e+em!li2ed *" Article 19(1)(f) *alanced *" Article 19(6) and the com!ensation article in Article 31# This 'as aninterestingdeelo!ment inuenced *" the -ritish of the idea minent omain *ut oerall itstruc. an interesting*alance 'here*" it recognied the !o'er of the state to ac%uire !ro!ert", *ut for the2rst time in thehistor" of India for a thousand "ears or more, it recognied the indiiduals right to!ro!ert" against the state# &o'eer, 'hen the state realied that an a*solute!ro!ert" and the as!irations of the !eo!le 'ere not the same the legislature 'as

su*se%uentl" forced to ma.e the said right to !ro!ert" su*/ect to social 'elfare amidamendments to the constitution# Articles 31A, 31- and 31C are the indicators of thechange and the counter !ressure of the state 'hen it realied the inherent !ro*lemsin granting a clear 'estern st"le a*solute fundamental right to !ro!ert" (een thoughit 'as *alanced *" reasona*le restrictions in the interest of the !u*lic), s!eciall"



Article 31C, 'hich for the 2rst time *rought out the social nature of !ro!ert"# It isanother matter that the said !roisions 'ere misused, and 'hat 'e are discussingtoda", *ut the a*use of the socialist state in India is not the sco!e of the !resentarticle and the articles are considered on their face alue onl"#

Doctrine of Eminent Domain v HISTORY e' hundred "ears old and 2rst used 'hen an nglish .ing needed salt !etre (form of Potassium 5itrate, used in the manufacturing of 2re 'or.) to ma.e gun !o'der and'hen he 'as not a*le to 2nd an" land,he gra**ed hold of a !riate mine# The o'nerof the !riate mine a!!roached the &ouse of ords, the &ouse of ords held that, thesoereign can do an"thing, if the act of soereign inoles !u*lic interest#WHAT IS THE POWER BESTOWED BY THE DOCTRINE TO THE STATE???-asicall" this doctrine entitles soereign to ac%uire !riate land for a !u*lic use,!roided the !u*licness of the usage can *e demonstrated *e"ond dou*t#PRESENTLY THE DOCTRINE DOES THE DUTY OFIn the !resent conte+t this doctrine raises the classic de*ate of !o'ers of 4tate #Indiidual ights# &ere comes the Ieelo!ment Induced is!lacement 'hichmeans, The forcing of communities een out of their homes, often from their home

lands for the !ur!ose of economic deelo!ment, 'hich is ie'ed as a &uman ightiolation in the International leel#ESSENTIAL IN!REDIENTS OF THIS DOCTRINE1# Pro!ert" is ta.en for !u*lic use:# Com!ensation is !aid for the !ro!ert" ta.en# The a*oe said are the t'o limitations im!osed on the !o'er of minent omain *"the re!ealedA#31 # ;hereas the ne' A#300 A im!oses onl" one limitation on this !o'er(i#e#,)Authorit" of a'<A=I<4T"e #octrine i$ %a$e# on t"e fo&&o'in( t'o Latin ma)im$

i# 4alus Po!uli est 4u!rema e+ ;elfare >f The Peo!le >f The Pu*lic Is The Paramounta'?ii# 5ecessita Pu*lic <a/or est @uam Pu*lic 5ecessit" Is reater Than Priate 5ecessit"#er" goernment has an inherent right to ta.e and a!!ro!riate the !riate !ro!ert"*elonging toindiidual citien for !u*lic use# This !o'er is .no'n as minent omain# It is theos!ring of !olitical necessit"# This right rests u!on the a*oe said t'o ma+ims# Thus !ro!ert"ma" *e needed and ac%uired under this !o'er for goernment oce, li*raries, slumclearance !ro/ects, !u*lic schools, !ar.s, hos!itals, high'a"s, tele!hone lines,

colleges , uniersities, dams, drainages etc# The e+ercise of such !o'er has *eenrecognied in the /uris!rudence of all ciilied countries as conditioned *" !u*licnecessit" and !a"ment of com!ensation## -ut this !o'er is su*/ect to restrictions!roided in the constitution# In the Bnited 4tates of America, there are limitations onthe !o'er of minent omain1 There must *e a la' authoriing the ta.ing of !ro!ert":# Pro!ert" is ta.en for !u*lic use3# Com!ensation should *e !aid for the !ro!ert" ta.en#<eaning of Pro!ert" The 'ord !ro!ert" as used in Article 31 the 4u!reme Court has said should *e gienli*eral meaning and should *e e+tended to all those 'ell recognied t"!es of interest

'hich hae the insignia or characteristic of !ro!ert" right# It includes *oth cor!orealand incor!oreal right# It includes mone", Contract, interest in !ro!ert" e#g#, interest of an allottee, licensees, mortgages or lessees of !ro!ert"# The <ahantshi! of a &indu Tem!le, and shareholders of Interests in the com!an" are recognia*le



interest in !ro!ert"# The right to receie !ension is !ro!ert"#

SUP EE COU T APP OACH TO THE IGHT TO P OPE TY

The 4u!reme Courts a!!roach to the right to !ro!ert" can *e diided into t'o !hasesTHE TI*E TILL THE RI!HT TO PROPERTY WAS A FUNDA*ENTAL RI!HT +PRE,-./0THE TI*E AFTER THE CON1ERSION OF RI!HT TO PROPERTY AS A

CONSTITUTIONALRI!HT +POST ,-./)P!e "#$% T&e 'undamental i&t to P!oe!t*

The 5inth 4chedule 'as inserted in the constitution *" the Constitution(irst Amendment) Act, 1961 along 'ith t'o ne' Articles 31 A D 31 - so as to ma.ela's ac%uiring amindaris unchallengea*le in the courts# Thirteen 4tate Acts named inthis schedule 'ere !ut *e"ond an" challenge in courts for contraention of fundamental rights# These ste!s 'ere felt necessar" to carr" out land reforms inaccordance 'ith the economic !hiloso!h" of the state to distri*ute the land amongthe land 'or.ers, after ta.ing a'a" such land from the land lords# -" the ourth Amendment Act, 1966, Art 31 relating to right to !ro!ert" 'as

amended in seeral res!ects# The !ur!ose of these amendments related to the !o'erof the state o com!ulsor" ac%uisition and re%uisitioning of !riate !ro!ert"# Theamount of com!ensation !a"a*le for this !ur!ose 'as made un/usti2a*le to oercomethe eect of the 4u!reme Court /udgement in the decision of 4tate of ;est -engal #-ella -aner/ee# -" the constitution (4eenteenth Amendment) Act, 19E$, article 31 A'as amended 'ith res!ect to meaning of e+!ression estate and the 5inth 4chedule'as amended *" including therein certain state enactments# uring this !eriod the 4u!reme Court 'as generall" of the ie' that landreforms need to *e u!held een if the" did strictl" clash against the right to!ro!ert",though the 4u!reme Court 'as itself s.e!tical a*out the 'a" the

goernment 'ent a*out e+ercising its administratie !o'er in this regard#The4u!reme Court 'as insistent that the administratie discretion to a!!ro!riate orinfringe !ro!ert" rights should *e in accordance 'ith la' and cannot *e *" merefact# The court ho'eer reall" clashed 'ith the socialist e+ecutie during the !eriod of nationaliation, 'hen the court admira*l" stood u! for the right to !ro!ert" inho'eer a limited manner against the oer reaches of the socialist state# In this /uncture the court in this Ban2 Nationa&i$ation ca$e#has clearl" !ointed out thefollo'ing t'o !ointsa# The constitution guarantees the right to com!ensation 'hich is e%uialent inmone" to the alue of the !ro!ert" has *een com!ulsoril" ac%uired# This is the *asicguarantee# The la' must therefore !roide com!ensation and for determining

com!ensation releant !rinci!les must *e s!eci2ed if the !rinci!les are not releantthe ultimate alue determined is not com!ensation#*# The constitution guarantees that the e+!ro!riate o'ner must *e gien the alue of his !ro!ert" (the reasona*le com!ensation for the loss of the !ro!ert")# Thatreasona*le com!ensation must not *e illusionar" and not reached *" the a!!licationof an underta.ing as a unit after a'arding com!ensation for some items 'hich go toma.e u! the underta.ing and omitting im!ortant items amounts to ado!ting anirreleant !rinci!le in the determination of the alue of the underta.ing and does notfurnish com!ensation to the e+!ro!riated o'ner#

Post "#$% T&e Constitutional i&t to P!oe!t*It 'as at this !eriod the 4u!reme Court had gone out of its 'a" to hold against theright to !ro!ert" and the right to accumulate 'ealth and also held that 'ith regard toArticle 39, the distri*ution of material resources to *etter sere the common good andthe restriction on the concentration of 'ealth#The court ho'eer is also res!onsi*le in



toning do'n the e+cesses on the right to !ro!ert" and 'ealth *" the socialist state#uring the !eriod of i*eralisation, the 4u!reme Court has attem!ted to get *ac. toreinter!ret the !roisions 'hich gie !rotection to the right to !ro!ert" so as to ma.ethe !rotection real and not illusor" and dilute the claim of distri*ution of 'ealth#&o'eer, this has *een an incremental a!!roach and much more needs to *edone to shift the *alance *ac. to the original in the constitution# This means that the ac%uisition of !ro!ert" is not merel" tem!oral *ut to *e acce!tedas alid it must conform to s!iritual guidelines as 'ell as the Indian conce!tionsrecognie %uite clearl" that though !ro!ert" can *e en/o"ed 'hich has not *eenac%uired strictl" in terms of the la', it cannot *e called real !ro!ert" of the !ersonconcerned# Pro!ert" therefore is not merel" an indiidual right *ut a construction and!art of social and s!iritual order# The *asis of conce!tion of !ro!ert" in the societies of India is not a rigid and clear demarcation of claims *elonging to an indiidual *ut is asum total of societal and indiidual claims all of 'hich need not *e *ased on clearindiidual legal demarcation#

++t& Amendment to t&e Constitution , t&e !esent scena!io

The out*urst against the ight to Pro!ert" as a undamental ight in Articles19 (1) (f) and 31 started immediatel" after the enforcement of the Constitution in

1960# and reforms, amindari a*olition la's, dis!utes relating to com!ensation,seeral rounds of constitutional amendments, litigations and ad/udications ultimatel"culminated 2rst in the insertion of the 'ord socialist in the Pream*le *" the $:ndAmendment in 1977 and later in the omission of the ight to Pro!ert" as a and itsreincarnation as a *are constitutional right in Article 300A *" the $$th Amendment in1978# Toda", the times hae changed radicall"# India is no more seen through thee"es of onl" !olitical leaders 'ith a socialist *ias# It is India 4hining seen through thecor!orate lenses of 2nancial giants li.e the Tatas, Am*anis and <ahindras, 'ith anunfathoma*le eal for ca!italism, mone" and mar.ets# There is another angle# Thereis a scram*le *" industrialists and deelo!ers for land all oer the countr" foresta*lishment of 4!ecial conomic Fones# Giolent !rotests *" !oor agriculturists haeta.en !lace to defend their meager landholdings against com!ulsor" ac%uisition *"the 4tate# In !articular, the riots and .illings in 4ingur, 5andigram etc# in a 4tate (of ;est -engal) ruled *" communists has turned the 'heel full circle# 4ocialism has*ecome a *ad 'ord and the ight to Pro!ert" has *ecome a necessit" to assure andassuage the feelings of the !oor more than those of the rich# 4oon after the a*olitionof the undamental ight to !ro!ert", in -him 4ingh # B>I, the 4u!reme Courtrealised the 'orth of the ight to Pro!ert" as a undamental ight# In the a*sence of this undamental ight to !ro!ert", it too. recourse to the other undamental ight of %ualit" 'hich is a*solutel" the conce!t of easona*leness under Article 1$ for

inalidating certain as!ects of the ur*an land ceiling legislation# Toda", the need is feltto restore the right to !ro!ert" as a undamental ight for !rotecting at least theelementar" and *asic !ro!rietar" rights of the !oor Indian citiens against com!ulsor"land ac%uisition#

Ger" recentl", the 4u!reme Court, 'hile disa!!roing the ageold octrine of Aderse Possession, as against the rights of the real o'ner, o*sered that The right to!ro!ert" is no' considered to *e not onl" a constitutional right or statutor" right *utalso a human right#Thus, the trend is unmista.a*le# -" :060, if the Constitution of India is to *e credited 'ith a sense of sensi*ilit" and e+i*ilit" in .ee!ing 'ith thetimes, the *ad 'ord socialist inserted in the Pream*le in 1977 shall stand omitted andthe ight to Pro!ert" shall stand resurrected to its original !osition as a undamental

ight# ECENT APP OACH -Y THE SUP EE COU T

In a er" recent PI 2led in the 4u!reme Court 'hich 'as still !ending in the &on*leCourt, it 'as held that the er" !ur!ose for 'hich the right to !ro!ert" relegated to a



mere statutor" right in the late 1970s is not no longer releant# It 'as argued *"&arish 4ale, the learned counsel for the !etitioners that The right to !ro!ert" is made a statutor" right in 1978 to a*olish large land holdings'ith amindars and rich and their distri*ution among landless !easants?&aingachieed the er" !ur!ose *ehind the legislatie action in the late 1970s, thegoernment should no' initiate fresh measures to !ut right to !ro!ert" *ac. in thefundamental rights#arlier, the a!e+ court in its famous 3e$"avanan#an B"arti ca$e of 1973 had 2rsttermed some *asic and unaltera*le !arameters and features of the Indian state andits constitution li.e the countr"Hs democratic form of goernment, as its *asicstructure, 'hich could not *e changed at all een *" constitutional amendment# -ut,in the /udgement of the case, ustice &## Jhanna had made a !assing o*seration tothe eect that fundamental rights accorded to the citiensH might not *e a *asicstructure of the Constitution# This had left the sco!e o!en for changing or diluting thefundamental right of the citiens# Though later in 1976, 'hile ad/udicating another famous la'suit *et'eenerst'hile Prime <inister Indira andhi and !rominent !olitical leader of his times a/5arain, ustice Jhanna had tried to clarif" that his o*seration had *een

misconstrued# es!ite that clari2cation, the anata Part" goernment, under theadice of then la' minister 4hanti -hushan, had changed the Constitution, remoingthe right to !ro!ert" from the list of fundamental rights#

.udicia!* /s 0eislatu!e1 T&e Tussle -eins

The saga of legislatie mani!ulation of the right to !ro!ert" *egan 'ith the irstAmendment Act, 1961 *" 'hich the Articles 31A and 31- 'ere inserted into theConstitution# Article 31A 'as introduced *" the Constitution irst Amendment Act,1961 'herein the Parliament de2ned KLstateKL and continued *" furtheramendments to e+tend its meaning so as to com!rehend !racticall" the entireagricultural land in the rural area including 'aste lands, forest lands, lands for !astureor sites of *uildings# Bnder the said amendment, no la' !roiding for ac%uisition *" the state of anestate so de2ned or an" rights therein of the e+tinguishment or modi2cation of suchrights could *e %uestioned on the ground that it 'as inconsistent 'ith or too. a'a" ora*ridged an" of the rights conferred *" Articles 1$, 19 or 31# Article 31- and 4chedule5ine introduced *" the su*se%uent amendments 'as another attem!t to usur! /udicial !o'er# It 'as an innoation introduced in our Constitution unheard of in an"other !art of democratic 'orld# The legislature made oid la's oending fundamentalrights and the" 'ere included in 4chedule 5ine and later on the list 'as e+tendedfrom time to time# Article 31- declared that none of the acts or regulations s!eci2edin neither the 5inth 4chedule nor an" of the !roisions thereof shall *e deemed to *e

oid on the ground that the" are inconsistent 'ith Part III, not'ithstanding an" /udgments, decree or order of an" court or tri*unal to the contrar"# -" furtheramendment, the list 'as e+tended# This amendment discloses a c"nical attitude tothe rule of la' and the !hiloso!h" underl"ing our Constitution#Autocratic !o'er 'as sustained *" democratic !rocesses# The amendments in therealm of !ro!ert"su*stituted the Constitutional !hiloso!h" *" totalitarian ideolog"# This totalitarianideolog" is articulated *" the deli*erate use of amendments to add more and morela's to the 5inth 4chedule# >riginall" E$ la's 'ere added to the 5inth 4chedule andmore acts 'ere added *" the $th, 17th and :9th Amendment Acts? 3$th Amendmentadded 17 more Acts? 39thAmendment added 38 Acts? $:nd Amendment added E$

Acts? the $7th Amendment added 1$ more Acts and *" the end of this amendmentthe num*er of Acts in the 5inth 4chedule had risen to :0:? The EEth Amendmentadded 66 Acts raising the total to :67# The 76th Amendment Act, 199$ has *een!assed *" the !arliament, 'hich includes Tamil 5adu Act !roiding for E9 !ercent



reseration for *ac.'ard classes under the 5inth 4chedule# This is a clear misuse of the 5inth 4chedule for !olitical gains as the o*/ect of the 5inth 4chedule of theConstitution is to !rotect onl" land reform la's from *eing challenged in court# Afterthe addition of :7 more Acts to the 4chedule *" the 78th Amendment Act of 1996 thetotal num*er of Acts !rotected *" the 4chedule has risen to :8$# The saga did not end here, the hornets nest had *een stirred u! alread", thestate made a consistent attem!t *" the !rocess of amendment to the Constitution toremoe the /udicial chec. on the e+ercise of its !o'er in a large area, and to clotheitself 'ith ar*itrar" !o'er in that regard# The histor" of the amendments of Article31(1) and (:) and the adding of Articles 31(A) and (-) and the 5inth 4chedule reealthe !attern# Article 31 in its 2rst t'o clauses deals 'ith the de!riation of !ro!ert"and ac%uisition of !ro!ert"# The 4u!reme Court held in a series of decisions i# 4tateof ;est -engal # <rs# -ella -aner/ee, 4tate of ;#- # 4u*odh o!al, 4tate of <adras #5amasia"a <uralidar, that Article 31, clauses (1) and (:) !roided for the doctrine of eminent domain and under clause (:) a !erson must *e deemed to *e de!ried of his!ro!ert" if he 'as su*stantiall" dis!ossessed or his right to use and en/o" the!ro!ert" 'as seriousl" im!aired *" the im!ugned la'# According to this inter!retation,the t'o clauses of Article 31 dealt onl" 'ith ac%uisition of !ro!ert" in the sense

e+!lained *" the court, and that under Article 31(1) the state could not ma.e a la'de!riing a !erson of his !ro!ert" 'ithout com!l"ing 'ith the !roisions of Article31(:)# It is 'orth mentioning in this conte+t that it 'as the decision in the -ella-aner/ees case that actuall" induced the goernment to resort to the ourthAmendment# In this case the A!e+ court through this landmar. decision had insistedfor !a"ment of com!ensation in eer" case of com!ulsor" de!riation of !ro!ert" *"the state# It 'as held that clause (1) and (:) of Article 31 deal 'ith the same su*/ect,that is, de!riation of !riate !ro!ert"# urther the courtheld that the 'ordcom!ensation meant /ust com!ensation i#e# /ust e%uialent of 'hat the o'ner had*een de!ried of# It is also 'orth'hile to note here that this amendment alsoamended Article 306 and em!o'ered the state to nationalie an" trade#

The Parliament instead of acce!ting the decision, *" its ourthAmendment Act, 1966 amended clause (:) and inserted clause (:A) to Article 31# Theeect of the amendment is that clause (:) deals 'ith ac%uisition or re%uisition asde2ned in clause (:A) and clause (1) coers de!riation of a !ersonKMs !ro!ert" *"the state other'ise than *" ac%uisition or re%uisition# This amendment ena*les thestate to de!rie a !erson of his !ro!ert" in an a!!ro!riate case *" a la'# This !lacesan ar*itrar" !o'er in the hands of the state to con2scate a citienKMs !ro!ert"# This isa deiation from the ideals of the rule of la' enisaged in the Constitution# Theamendment to clause (:) of Article 31 'as an attem!t to usur! the /udicial !o'er#Bnder amended clause (:), the !ro!ert" of a citien could *e ac%uired or re%uisitioned

*" la' 'hich !roides for com!ensation for the !ro!ert" so ac%uired or re%uisitioned,and either 2+es the amount of com!ensation or s!eci2es the !rinci!les on'hich and the manner in 'hich the com!ensation is to *e determined# It 'as further!roided that no such la' could *e called in %uestion in an" court on the ground thatthe com!ensation !roided *" that la' is not ade%uate# This amendment made thestate the 2nal ar*iter on the %uestion of com!ensation# This amendment conferred anar*itrar" !o'er on the state to 2+ at its discretion the amount of com!ensation for the!ro!ert" ac%uired or re%uisitioned# The non/usticia*ilit" of com!ensation ena*les thestate to 2+ an" com!ensation it chooses and the result is, *" a*use of !o'er,con2scation ma" *e eected in the form of ac%uisition#

Then came the 4eenteenth Amendment Act, 19E$ *" 'hich the state e+tendedthe sco!e of Article 31A and 5inth 4chedule to !rotect certain agrarian reformsenacted *" the Jerala and <adras states# The 'ord estate in Article 31A no' includedan"/agir or inam, mauf, or an" other grant and /anmam right in state of Jerala, <adras



and also "ot'ari lands# It also added conse%uentiall", the second !roiso to clause(1) to !rotect a !erson of *eing de!ried of land less than the releant land ceilinglimits held *" him for !ersonal cultiation,$ e+ce!t on !a"ment of full mar.et aluethereof *" 'a" of com!ensation# It also added $$ more Acts to the 5inth 4chedule# The 4u!reme Court *" arious /udgments considered the said amendments andrestricted their sco!e 'ithin reasona*le con2nes# The 4u!reme Court in Jocchuni s4tate of <adras,N30O did not acce!t the !lea of the state that Article 31(1) afteramendments gae an unrestricted !o'er to the state to de!rie a !erson of his!ro!ert"# It held that Article 31(1) and (:) are dierent fundamental rights and thatthe e+!ression KLla'KL in Article 31(1) shall *e alid la' and that it cannot *e alidla' unless it amounts to a reasona*le restriction in !u*lic interest 'ithin the meaningof Article 19(6)# ;hile this decision conceded to the state the !o'er to de!rie a!erson of his !ro!ert" *" la' in an a!!ro!riate case, it 'as made su*/ect to thecondition that the said la' should o!erate as reasona*le restriction in !u*lic interestand *e /usticia*le# The Court construed the amended !roision reasona*l" in such a'a" as to salage to some e+tent the !hiloso!h" of the Constitution# This *ecamenecessar" as the de2nition of estate 'as simultaneousl" e+!anded to coer "ot'arisettlements in order to ma.e agrarian reforms more eectie#

-ut the 4u!reme Court in Srimat"i Sita%ai Devi v4 State of We$t Ben(a& heldthat Article 31(:) i#e#, the !roision relating to the ac%uisition or re%uisition of land'as not su*/ect to Article 19(6)# It 'ould hae *een logical if the e+!ression KLla'KL inArticle 31(:) 'as gien the same meaning as in Article 31(1)# In that eent, the la' of ac%uisition or re%uisition should not onl" com!l" 'ith the re%uirements of Article 31(:)and (:A), *ut should also satisf" those of Article 19(6)# That is to sa", such a la'should *e for a !u*lic !ur!ose, !roide for com!ensation and also satisf" the dou*letest of KLreasona*le restrictionKL and KL!u*lic interestKL !roided *" Article 19(6)# The reasona*leness of such a la' should *e tested from su*stantie and !roceduralstand!oints# There ma" *e a !u*lic !ur!ose, *ut the com!ensation 2+ed ma" *e soillusor" that it is unreasona*le# The !rocedure !rescri*ed for ac%uisition ma" *e so

ar*itrar" and therefore unreasona*le# There ma" *e man" other defects transgressingthe standard of reasona*leness, *oth su*stantial and !rocedural# -ut from a !racticalstand!oint, the !resent dichotom" *et'een the t'o decisionsJochunni and 4itha*athieidid not *ring a*out an" a!!recia*le hardshi! to the !eo!le, for a la' of ac%uisition or re%uisition 'hich strictl" com!lies 'ith the ingredients of clause (:) ma"ordinaril" also *e KLreasona*le restrictionKL in !u*lic interest#

4u*stantie deiations from the !rinci!les of natural /ustice ma" *e hit *"Article 1$# Proision for an illusor" com!ensation ma" *e struc. do'n on the groundthat it does not com!l" 'ith the re%uirement of Article 31(:) itself# That is if the courtsma.e it mandator" to *ring 31(:) in conformit" 'ith 31(1)# The 4u!reme Court in P

1a5rave&6 *6#a&ier v4 S7ecia& De76t8 Co&&ector and also in the Union of In#ia v4*eta& Cor7oration of In#ia considered Article 31(:) in the conte+t of com!ensationand held that if the com!ensation 2+ed 'as illusor" or the !rinci!les !rescri*ed 'ereirreleant to the alue of the !ro!ert" at or a*out the time of ac%uisition, it could *esaid that the

egislature had committed a fraud on !o'er and therefore the la' 'asinade%uate# The 4u!reme Court in three other decisions con2ned the *ar of Article31A onl" to agrarian reforms# In 3oc"6nni ca$e the Court held that re%uirement of Article 31A *ars an attac. on the ground of infringement of fundamental right onl" inthe case of agrarian reforms, !ertaining to an estate# In Ran5it" Sin(" v4 State of P6n5a% it 'as held that the e+!ression KLagrarian reformKL 'as 'ide enough to ta.e

in consolidation of holdings as it 'as nothing more than a !ro!er !lanning of ruralareas#

In 1a5rave&6 decision the 4u!reme Court e+!lained that there is no conict*et'een the said t'o decisions and !ointed out that the latter decision includes in the



e+!ression of agrarian reforms, the slum clearance and other *ene2cial utilisation of acant and 'aste lands# In a !"6&a%"ai v4 Union of In#ia9 the 4u!reme Court didnot acce!t the contention of the state that the e+!ression KLstateKL ta.es in all'aste lands, forest lands, lands for !astures or sites of *uildings in a illage 'hetherthe" 'ere connected 'ith agriculture or not *ut ruled that the said enumerated lands'ould come under the said de2nition onl" if the" 'ere used for the !ur!ose of agriculture or for !ur!oses ancillar" thereto# The result of the *rief sure" of the!roisions of the Constitution and the case la' thereon as it stood then ma" *e statedin the form of the follo'ing !ro!ositions(1) er" citien has a fundamental right to ac%uire, hold and dis!ose of the !ro!ert"#(:) The state can ma.e a la' im!osing reasona*le restrictions on the said right in!u*lic interest#(3) The said restrictions, under certain circumstances, ma" amount to de!riation of the said right#($) ;hether a restriction im!osed *" la' on a fundamental right is reasona*le and in!u*lic interest or not, is a /usticia*le issue#(6) The state can *" la', de!rie a !erson of his !ro!ert" if the said la' of de!riationamounts to

reasona*le restriction in !u*lic interest 'ithin the meaning of Article 19(6)#(E) The state can ac%uire or re%uisition the !ro!ert" of a !erson for a !u*lic !ur!oseafter !a"ingcom!ensation#(7) The ade%uac" of the com!ensation is not /usticia*le#(8) If the com!ensation 2+ed *" la' is illusor" or is contrar" to the !rinci!les releantto the 2+ation of com!ensation, it 'ould *e a fraud on !o'er and therefore thealidit" of such a la' *ecomes /usticia*le#(9) a's of agrarian reform de!riing or restricting the rights in anKLestateKLthe saide+!ression has *een de2ned to include !racticall" eer" agricultural land in aillagecannot *e %uestioned on the ground that the" hae infringed fundamental

rights#Amendin Po2e! of t&e Pa!liament

Another !ath *rea.ing deelo!ment, 'hich is till toda" *eing considered as themost triial !hase faced *" the /udiciar" and legislature in entire Constitutional histor"of our nation 'as triggered o *" the issue of right to !ro!ert"# As e+!lained herein*efore there 'as an ongoing tussle *et'een the /udiciar" and the legislatureregarding the Constitutional !roisions of right to !ro!ert"# The theor" 'as sim!le# The /udiciar" 'as inalidating legislatie action cur*ing !ro!ert" rights inorder to u!hold the sanctit" of the Constitution# And 'heneer the /udiciar"inalidated a la' *" terming it as unconstitutional the legislature 'ould conenientl"

amend the Constitution in order to u!hold its su!remac" oer the /udiciar"# ;hen thissaga 'as going on, there emerged another set of litigations 'hich actuall" intended to!ut an end to the legislatie mani!ulation *" %uestioning the amending !o'er of theConstitution itself# These litigations 'ere *ased on the releance of Article 13(:) of theConstitution 'hich !roides that the state shall not ma.e an" la' 'hich ta.es a'a" ora*ridges the fundamental rights and an" la' made in contraention of fundamentalright shall to the e+tent of contraention, *e oid# 4o the line of argument that 'as!ut for'ard *" the litigants in the cases to *e discussed hereinafter 'as %uestioningthe alidit" of amending !o'er of the !arliament 'ith regard to fundamental rights#

It all *egan 'hen the%uestion 'hether fundamental rights can *e amendedunder Article 3E8 came for consideration of the 4u!reme Court in 4han.ari Prasad #

Bnion of India# In this case the alidit" of the Constitution (1 st Amendment) Act, 1961,'hich inserted inter alia, Articles 31A and 31- of the Constitution 'aschallenged# TheAmendment 'as challenged on the ground that it !ur!orted to ta.e a'a" or a*ridgethe rights conferred *" Part III, 'hich fell 'ithin the !rohi*ition of Article 13 (:) and



hence 'as oid# It 'as argued that the state in Article 1: included !arliament and the'ord la' in Article 13 (:), therefore, must include Constitution amendment# The4u!reme Court, ho'eer, re/ected the a*oe argument and held that the !o'er toamend the Constitution including the fundamental rights is contained in Article 3E8,and that the 'ord la' in Article 13 (8) includes onl" an ordinar" la' made in e+erciseof the legislatie !o'ers and does not include Constitutional amendment 'hich ismade in e+ercise of constituent !o'er# Therefore, a Constitutional amendment 'ill *e alid een if it a*ridges or ta.es an" of the fundamental rights# In Sa55an Sin(" v4 State of Ra5a$t"an, the alidit" of theConstitution (17th Amendment) Act, 19E$ 'as challenged# The 4u!reme Courta!!roed the ma/orit" /udgement gien in 4han.ari Prasads case and held that the'ords amendment of the Constitution means amendment of all the !roisions of theConstitution# a/endragad.ar, C said that if the Constitutionma.ersintended to e+clude the fundamental rights from the sco!e of the amending !o'erthe" 'ould hae made a clear !roision in that *ehalf#T&e c&allen(e to t&e Se/en Essential 'eatu!es of t&e Constitution 3* A!ticle 4"

C A!ticle 4"C sou(&t to c&allen(e se/en essential featu!es of t&e Constitution5

,4 1ita& Di$tinction %et'een T'o Ca$e$ of Con$tit6tiona& amen#ment

(1) ;here the fundamental rights are amended to !ermit la's to *e alidl" !ass 'hich'ould hae *een oid *efore amendment? and(:) ;here the fundamental rights remain unamended *ut the la's, 'hich are oid, asoending those rights are alidated *" a legal 2ction that the" shall not *e deemedoid# The %uestion is not merel" of legislatie deice# In the 2rst case the la' isConstitutional in realit",*ecause the fundamental rights themseles stand a*ridged#:4 Uncon$tit6tiona& in rea&it8 %6t ;ctiona&In the second case the la' is unconstitutional in realit" *ut is deemed *" a 2ction of

la' not to *e so?'ith the result that Constitution *rea.ing la' is alidated and there is a re!udiation of the Constitution !ro tanto# If the second case is !ermissi*le as a !ro!er e+ercise of theamending !o'er, the Constitution could *e reduced to a scra! of !a!er# If 31C is alid,it 'ould *e e%uall" !ermissi*le to !arliament to so amend the Constitution as todeclare all la's to *e alid 'hich are !assed *" the !arliament or state legislatures ine+cess of their legislatie com!etence, or 'hich iolate an" of the *asic human rightsin Part III or the freedom of interstate trade in Article 301# It 'ould *e e%uall"!ermissi*le to hae an omni*us article that not 'ithstanding an"thing in theConstitution, no la' !assed *" the Parliament or an" state legislature shall *e deemedto *e oid on an" ground 'hatsoeer# The insertion of one such article 'ould toll the

death.nell of the Constitution# (The fact that under the 4u!reme Courts /udgement inthe fundamental rights case the Constitution cannot *e so amended so as to alter the*asic structure, is releant to the !oint considered here, i# that a %uietus is gien tothe su!remac" of the Constitution *" the omni*us !rotection of Constitution*rea.ingla's#)

Thus Article 31C clearl" damages or destro"s the su!remac" of theConstitution, 'hich is one of the essential features# It gies a *lan. charter to the!arliament and to all the state legislatures to def" and ignore the Constitutionalmandath regarding human rights# 4econd, Article 31C su*ordinates the fundamentalrights to the irectie !rinci!les of state !olic" and in eect a*rogated the rights asregards la's, 'hich the legislature intends or declares to *e for giing eect to thedirectie !rinci!les# The fundamental rights are !aramount and are enforcea*le in thecourts (Article 3: and ::E), in contrast to the directie !rinci!les, 'hich are not soenforcea*le (Article 37)# To a*rogate fundamental rights 'hen giing eect todirectie !rinci!les is to destro" another *asic element of the Constitution# Ignorance



and ar*itrariness, in/ustice and unfairness, 'as thereafter not to *e u!on challenge onthe touchstone of the inalua*le *asic rights# Form < *anner Amena%i&it8 of t"e F6n#amenta& Princi7&e Third, it is a fundamental !rinci!le of the Constitution that it can *e amended onl" inform and manner laid do'n in Article 3E8 and according to that Articles *asic scheme# This !rinci!le 'as re!udiated *" Article 31C# That Article had the eect of irtuall"authorising the a*rogation of thefundamental rights 'hile the" still remain ostensi*l" in the statute *oo.# Criticism andde*ate, 'ithin and outside !arliament, 'hich 'ould *e eo.ed *" a !ro!osal toa*ridge a !articular fundamental right are aoided, 'hile arious fundamental rightsare eectiel" silenced# The a*surd situation 'as that, 'hereas amendment of asingle fundamental right 'ould re%uire a t'othirds ma/orit" (Article 3E8), a la' falling'ithin 31C 'hich oerrides and iolates seeral fundamental rights could *e !assed*" a sim!le ma/orit"#Ro&e of F6n#amenta& Ri("t$ a$ T"e E$$entia& Feat6re of t"e Con$tit6tionourth, the fundamental rights constitute an essential feature of the Constitution#;ithin its 2eld Article 31C com!letel" too. a'a" The right to ac%uire, hold and dis!ose of !ro!ert" NArticle 19(1)(f)O?

The right not to *e de!ried of !ro!ert" sae *" authorit" of la' NArticle 31(1)O? The right to assert that !ro!ert" can *e ac%uired or re%uisitioned *" the state onl" fora !u*lic !ur!ose NArticle 31(:)O? and The right to receie an amount, ho'eer small, 'hen the state seies the !ro!ert"NArticle 31(:)O#In short, Article 31C e+!ressl" authorised outright con2scation of an" !ro!ert", largeor small, *elonging to an"one, !oor or rich, citien or noncitien# urther, Article 31C!roides for the 'holesale smothering of arious rights 'hich 'ere all togetherdistinct from right to !ro!ert" and are totall" irreleant to the irectie !rinci!les of state !olic" laid do'n in Article 39(*) and (c)# en the rights to e%ualit" *efore la',to freedom of s!eech and e+!ression, to assem*le !eacea*l" and 'ithout arms, to

form associations and unions, to moe freel" throughout the territor" of India, toreside and settle in an" !art of the territor" of India, and to !ractice an" !rofession orto carr" on an" occu!ation, trade or *usiness 'hich are so ital for the surial of thedemocrac", the rule of la', and the integrit" and unit" of the re!u*lic, can *e iolatedunder Article 31C under the cloa. of im!roing the economic s"stem#T"e Directive Princi7&e Of State Po&ic8ifth, it 'as not een !ermitted to raise the %uestion 'hether the !ro!osed la' 'illresult, or isreasona*l" calculated to result, in securing the directie !rinci!le laid do'n in Article39(*) and (c)# The 'rong done to the !eo!le 'ho are de!ried of their *asic freedoms

is 'orsened *" !rotection to those la's, 'hich ma" not *e at all calculated to gieeect to the directie !rinci!les# The right to moe the 4u!reme Court to enforceother fundamental rights is itself a fundamental right (Article 3:) and is a *asicfeature of the Constitution# This right is destro"ed 'hen a fundamental right is madeunenforcea*le against a la' !ur!orting to gie eect to the directie !rinci!les and atthe same time the court is !recluded from considering 'hether the la' is such that itcan !ossi*l" secure an" directie !rinci!leW"at i$ t"e %a$ic 7rinci7&e of t"e con$tit6tion???4i+th, the *asic !rinci!le of the Constitution is that no state legislature can amend thefundamental rights or an" other !art of the Constitution# This essential feature isre!udiated *" 31C, 'hich em!o'ers een state legislatures to !ass la's, 'hich

irtuall" inole a re!eal of the fundamental rights# The 'holl" irrational conse%uenceis that 'hereas state legislatures cannot a*ridge a single fundamental right, it 'asno' o!en to them to su!ercede a 'hole series of such rights# In su*stance, the !o'er



of amending or oerriding the Constitution is delegated to all state legislatures, 'hichis not !ermissi*le under Article 3E85# A# Pal.hiala rightl" remar.ed in this regard &ereafter li*ert" ma" surie in somestates and notin others, de!ending on the com!le+ion of the !olitical !art" in !o'er# The state of <eghala"a hasalread" !assed a la' !rohi*iting the residents of other !arts of India sta"ing in<eghala"a for more than si+ months 'ithout !ermit#D6e 7rotection to minoritie$>ne of the essential features of the Constitution is to !roide for due !rotection tominorities and their cultural and educational rights# The fundamental rights underArticle 1$,19 and 31, 'hich 'ere sought to *e su!erseded *" Article 31C arenecessar" to ma.e meaningful rights of the minorities, 'hich are, guaranteed *"Articles :6 to 30# Bnder the guise of giing eect to the directie !rinci!les, a num*erof ste!s ma" *e ta.en 'hich ma" seriousl" undermine the !osition of regionallinguistic, cultural and other minorities# The !roiso inserted *" the :6th amendmentis a er" tall tale# It e+!ressl" !roides that 'here the !ro!ert" of an educationalinstitution esta*lished and administered *" a minorit" is ac%uired, the amount 2+ed

for the ac%uisition should *e such as not to restrict or a*rogate the right guaranteedunder 30(1)# The clear im!lication is that 'hen !ro!ert" is ac%uired in an" othercases, an amount can *e 2+ed 'hich a*rogates or restricts an" other fundamentalrights, for instance, the right to freedom of s!eech and e+!ression NArticle 19(1)(a)O,to form associations or unions NArticle 19(1)(c)O, or to !ractice an" !rofession or carr"out an" occu!ation, trade or *usiness NArticle 1991)(g)O, or the right of an religiouscommunit" to esta*lish and maintain institutions for religious or charita*le !ur!oses(Article :E)# urther, if a la' iolates the rights of the minorities under Articles :6 to30, such la', *eing inalid, 'ould *e no la' at all and therefore de!riation of !ro!ert" under such a la' 'ould iolate Article 31(1) 'hich !roides that no !ersonshall *e de!ried of his !ro!ert" sae *" authorit" of la', i#e# a alid la'# -ut since

31(1) is one of the articles a*rogated *" Article 31C, minorities can *e de!ried of their !ro!erties held !riatel" or u!on !u*lic charita*le or religious trust, *" a la''hich is inalid# In sum Article 31C is a monstrous outrage on the Constitution# In theentire histor" of li*ert", neer 'ere so man" millions of !eo!le de!ried of so man"fundamental rights in one s'ee! as *" the insertion of Article 31C# e Toc%ueilleremar.ed that nothing is more arduous than the a!!renticeshi! of li*ert"#

A Pal.hiala rightl" remar.s 'ith grief in this conte+t that It is a measure of ourimmaturit" as a democrac" and the utter a!ath" of our !eo!le that the *etra"al of our*asic freedoms e+cited hardl" an" !u*lic de*ate#T&e 'ou! Att!i3utes of a Totalita!ian State

The four attri*utes of a totalitarian state are(1) Constitutional to the ruling !art" to faour its o'n mem*ers,(:) enial of the right to dissent or to o!!ose,(3) enial of arious !ersonal freedoms, and($) The states right to con2scate an"ones !ro!ert"#All these four attri*utes 'ere im!licit in Article 31C# The Article had a *uilt inmechanism for the dissolution of the true democrac" that India had *een so far,cession of rule of la' and !ossi*le disintegration of the nation# The goernmentsargument 'as that though the !o'er of amending theConstitution must *e held to *e limitless after the :$th amendment and it can destro"human freedoms under Article 31C, the legislature 'ill not use the !o'er# The ans'er

to this is contained in the 'ords of ; - eats 5o oernment has the right, 'hether toatter fanatics or in mere agueness of mind, to forge an instrument of t"rann" andsa" that it 'ill neer *e used# <oreoer, la's characteried *" stringent in/ustice haein fact *een !assed in !ursuance of the amended Article 31(:) and 31C# eneral



insurance com!anies hae *een nationalied under a la', 'hich !roided for 2+edamounts !a"a*le on the ac%uisition of all their assets and lia*ilities, the amountshaing *een 2+ed on a *asis 'hich 'as not ociall" disclosed either to !arliament orto the !u*lic *ut 'hich trans!ired to *e !ositiel" a*surd# 4ome com!anies found that the amounts the" receied 'ere less than the alue of their goernmentsecurities and the amounts of their *an. *alance and of their currenc" notes after!roiding for all their lia*ilities? in other 'ords, there 'as a *latant re!udiation of national de*t# >ne insurance com!an" 'as !aid s 10, 000 for ac%uisition of its netassets 'orth more than s :3,00,000# a's for ac%uisition of coal mines 'ere also!assed, under 'hich all assets of the nationalised com!anies 'ere ta.en oer *utnone of their lia*ilities? and further, all the creditors of the com!anies are statutoril"de!ried of eer" charge or securit" 'hich had *een created on the com!an"s assets# The net result 'as that the *an.s 'hich had adanced mone" to the com!anies, losttheir !rinci!al, interest and securit"? de*enture holders lost their entire ca!ital?e+em!lo"ees of the com!anies 'ho retired *efore nationalisation lost their right to!ension and other dues? and traders lost the !rice of the goods the" had gien oncredit# Thus innumera*le innocent citiens found their !ro!ert" irtuall" con2scated

outright as a side eect of the la' e+!ro!riating the collier" com!anies# Thosecom!anies could not discharge their lia*ilities *ecause all their assets are gone andalso the derisor" amounts due to them on nationalisation 'as to *e !aid to theCommissioner of Claims 'ho 'ould not *e a!!ointed at all for "ears# 4imilarnationalisation la's 'ere !assed for con2scation of all assets of sic. te+tile mills, 'ithstatutor" a*rogation of all mortgagesand other securities in faour of creditors, 'iththe same disastrous conse%uences for innocent third !arties# Article 31C haddamaged the er" heart of the Constitution# 5 A Pal.hiala remar.ed This !oisonous'eed has *een !lanted 'here it 'ill trou*le us a hundred "ears, each age 'ill hae toreconsider it#T&e 'undamental i&ts Case and its attitude to2a!ds t&e !i&t to

!oe!t*

This decision 'hich changed the entire scenario of the Indian Constitution did thethree follo'ingim!ortant changes1# Through Article 31 C too. a'a" the right to ac%uire, hold and dis!ose o the!ro!ert" under Article 19(1) (f):# ight to !ro!ert" under Article 19(1) (f) did not !ertain to the *asic structure of theconstitution(&on*le ustice# &##Jhanna)3# Article 19(1) (f) conferred citiens the right to ac%uire, hold and dis!ose o the

!ro!ert" under Article 19(1) (f) 'hich formed a !art of grou! of articles under theheading ight to reedom$# There is no necessit" for an ela*orate argument to demonstrate that !ro!ert" isintimatel" connected 'ith the ight to reedom#Artic&e =>>ACha!ter IGight to Pro!ert", 300A# Persons not to *e de!ried of !ro!ert" sae *"authorit" of la'no !erson shall *e de!ried of his !ro!ert" sae *" authorit" of la'# The $$th amendment act 'hich deleted article 19(1) (f) and introduced this article*rought out thefollo'ing im!ortant changes1# In ie' of the s!ecial !osition sought to *e gien to fundamental rights, the right to!ro!ert", 'hich has *een the occasion for more than one Amendment of theConstitution, 'ould cease to *e a fundamental right and *ecome onl" a legal right#5ecessar" amendments for this !ur!ose are *eing made to Article 19 and Article 31 is*eing deleted# It 'ould ho'eer *e ensured that the remoal of !ro!ert" from the list



of fundamental rights 'ould not aect the rights of the minorities to esta*lish andadminister educational institutions of their choice#:# 4imilarl", the right of !ersons holding land for !ersonal cultiation and 'ithinceiling limit to receie mar.et com!ensation at the mar.et alue 'ill not *e aected#3# Pro!ert", 'hile ceasing to *e a fundamental right, 'ould, ho'eer, *e giene+!ress recognition as a legal right, !roision *eing made that no !erson shall *ede!ried of his !ro!ert" sae in accordance 'ith la'#

P!o3lems Posed 3* t&e emo/al of i&t to P!oe!t* f!om 'undamental

i&ts

The rights conferred *" Article 19(1)(f) and Article 31 read 'ith the undernoted entries'ere soclosel" inter'oen 'ith the 'hole fa*ric of our Constitution that those rights cannot*e torn out 'ithout leaing a /agged hole and *ro.en threads# The hole must *emended and the *ro.en threads must *e re!laced so as to harmonise 'ith the other!arts of the Constitution# The tas. is not eas", and courts 'ill*e called u!on to ans'er!ro*lems more formida*le than those raised *" the Article 31 after it 'as amended anum*er of times# &o'eer some of the !ro*lems 'hich 'ill arise and the !ro*a*lelines of solution, are considered *elo'

(i) That Articles 19(1) (f) and 31(:) dealt 'ith a dierent, *ut connected, as!ects of the right to !ro!ert" is clear from seeral 4u!reme Court decisions 'hich dealt 'iththe co relation of those t'o Articles#(ii) The correct ie' 'as that the t'o Articles 'ere mutuall" e+clusie# -ut one /udgement 'hich 'as soon corrected and another /udgement 'hich 'as a /udgement!er incuriam, to the ie' that Articles 19(1)(f) and 31(:) 'ere not mutuall" e+clusie# This /udicial conict 'as resoled *" :6th Amendment, 'hich introduced in Article 31a ne' clause (:-) 'hich !roided that 5othing in Article 19(1)(f) shall eect an" suchla' as is referred in clause (:)# The alidit" of this Amendment as unanimousl" u!held in the Jesaananda case# The

reason for this mutual e+clusieness 'as that 'hen !ro!ert" is ac%uired for a !u*lic!ur!ose on !a"ment of com!ensation, the right of a citien to hold !ro!ert" is goneand the %uestion of his right to hold !ro!ert" su*/ect to reasona*le restrictions doesnot arise#(iii) urther, Article 19(1)(f) that conferred citiens the right to ac%uire, hold anddis!ose of !ro!ert" formed !art of a grou! of articles under the heading ight toreedom# It re%uires no ela*orate argument to demonstrate that !ro!ert" is intimatel"connected 'ith the right to freedom# Article 31 a!!eared under the heading ight toPro!ert"? for the right to freedom conferred *" Article 19(1)(f) 'ould *e 'orth little if the !ro!ert" 'hen ac%uired could *e ta.en a'a" *" la'# &ence Article# 31 !roidedthat !riate !ro!ert" could *e ac%uired onl" for a !u*lic !ur!ose and on !a"ment of

com!ensation (later amount)# There is nothing in the 4tatement of >*/ects andeasons to sho' that Parliament no longer loo.s u!on the right to ac%uire, hold anddis!ose of !ro!ert" as a !art of the ight to reedom#(i) The retention of Article# 19(1)(a) to (e) and (g) is a clear indication to the contrar"# That su*clauses(d), (e) and (f) of Article# 19(1)(f)(1) 'ere interlin.ed is clear from their !roisions as'ell as from su*Article (6) 'hich goerned each of those su*clauses# The meaning of Article 19(1) (f) has *een considered and it is *eing su*mitted that the 4u!reme Courtcorrectl" held that the right conferred *" Article 19(1)(d) 'as not a right of freemoement sim!liciter, *ut a s!ecial right to moe freel" throughout the territor" of India 'ith a ie' to secure, among other things, the unit" of India 'hich a narro'!roincialism 'ould den"#() This right of free moement 'as not limited to traelling throughout India, *ecauseit 'as accom!anied *" the further right conferred *" Article 19(1) (e) to reside andsettle in an" !art of India, as also the right conferred *" Article 19(1)(f) to ac%uire,



hold and dis!ose of !ro!ert", in an" !art of India# -ut a right to settle in an" !art of India means not onl" a right to hae a !lace to lie in, *ut also a !lace to 'or. in, forArticle 19(1)(g) conferson eer" citien the right to !ractise an" !rofession, or to carr"on an" occu!ation, trade or *usiness#(i) urther, Article 19(1)(a) confers on eer" citien the right to the freedom of s!eech and e+!ression, 'hich right includes the freedom of the !ress a right 'hich is*asic to democrac"# -ut a !ress needs a *uilding or *uildings to house it, and moa*le!ro!ert" to 'or. it, so that 'ithout the right to ac%uire, hold and dis!ose of !ro!ert",there can *e no freedom of the !ress# And the same is *roadl" true of thefundamental right conferred *" Article 19(1)(c)the right to form associations orunionsfor normall" the 'or.ing of associations and unions inoles the right toac%uire, hold and dis!ose of !ro!ert"# ;hat then is the eect of deleting Article 19(1)(f), 'hich conferred the right to ac%uire, hold and dis!ose of !ro!ert", and of deletingArticle 31 'hich !roided for the ac%uisition of !ro!ert" for !u*lic !ur!ose on!a"ment of com!ensation (later called amount)Q To these %uestions the 4tatement of >*/ects and easons gies no ans'erit is dou*tful 'hether those 'ho framed the!ro!ert" amendments 'ere een a'are of their eect on other fundamental rightsretained in Article 19(1)(f)(1), and on the !olitical unit" of India 'hich Article 19(1)(f)

(1)(d), (e), (f) and (g) 'as intended, inter alia, to su*sere, along 'ith other !roisionsof our Constitution# At an" rate, the framers on these amendments hae !roided nosolutions for the !ro*lem, 'hich the !ro!ert"amendments ineita*l" raise# >nefurther com!lication must *e noted here#

Although Article 19(1)(f) and Article 31(:) had *een made mutuall" e+clusie*" Article 31(:-), there 'as no such mutual e+clusieness *et'een Article 31(:) andthe right to !ractise a !rofession or to carr" on an" occu!ation, trade or *usinessconferred *" Article 19(1)(g)# This right 'as su*/ect to restrictions mentioned in Article19(1)(f)(E)# -ut trade and *usiness is ca!a*le of *eing ac%uired, as 4ection :99(:) of the oernment of India Act, 1936, clearl" sho'ed# -" 'hat test is the alidit" of thela' ac%uiring !ro!ert", and a la' ac%uiring trade or *usiness, including industrial and

commercial underta.ings, to *e /udgedQ The :6th Amendment inserted in Article 31 ane' su* clause (:) 'ith the follo'ing !roisoProided that in ma.ing an" la' for the com!ulsor" ac%uisition of an" !ro!ert" of aneducational institution esta*lished and administered *" minorit", referred to in clause(1) of Article 30, the 4tate shall insure that e amount 2+ed *" or determined undersuch la' for the ac%uisition of such !ro!ert" is such as 'ould not restrict or a*rogatethe right guaranteed under that clause# This !roiso recognised the fact that the alua*le right conferred *" Article 30(1) onminorities to esta*lish educational institutions of their choice 'ould *e destro"ed if ade%uate com!ensation 'as not made for ac%uisition of the !ro!ert" of such

institutions# Political e+!edienc" ma" re%uire that minorities should not *e alienated*" de!riing them of their cherished rights, es!eciall" 'hen minorities are as large asthe" are in India# 4!ecial rights are conferred on minorities *ecause in a democraticcountr" 'ith adult uniersal surage, ma/orities *" irtue of their num*ers can !rotectthemseles# -ut it does seem illogical and un/ust to leae out ma/orit" educationalinstitutions from the same !rotection, unless it 'as *elieed that ma/orities, de!riedof their !o'er to o!!ress minorities, 'ould not 'ish to o!!ress themseles# Thus, in4tate of Jerala # <other Proincial,Counsel for the state told the 4u!reme Court thathe had instructions to sa" that an" !roision held ina!!lica*le to minorit" institutions'ould not *e enforced against the ma/orit" instutitions also#

Again, the 17th Amendment had introduced in Article# 31A(1)(e) the follo'ing

!roiso Proided further that 'here an" la' ma.es an" !roision for the ac%uisition*" the 4tate of an" estate and 'here an" land com!rised therein is held *" a !ersonunder his !ersonal cultiation, it shall not *e la'ful for the 4tate to ac%uire an"!ortion of such land as is 'ithin the ceiling limit a!!lica*le to him under an" la' for



the time *eing in force or an" *uilding or structure standing thereon or a!!urtenantthereto, unless the la' relating to the ac%uisition of such land, *uilding or structure,!roides for !a"ment of com!ensation at a rate 'hich shall not *e less than themar.et alue thereof# To ta.e a'a" land under !ersonal cultiation 'ithoutcom!ensation 'ould *e unfair and un/ust and the a*oe !roiso !reented suchin/ustice *eing done# It 'ould *e e%uall" unfair and un/ust to ta.e a'a" from a !ersonfollo'ing a ocation, other than agriculture, the tools of his trade, or the !ro!ert" *"'hich he earns his liing# These o*serations hae *een made *ecause the a*oe!roisos relating to !ro!ert", 'hich hae *een retained in the cha!ter on fundamentalrights, recognise the in/ustice ofcon2scator" la's 'hich im!inge on fundamentalrights# In the a*sence of an" rational e+!lanation in the 4tatement of >*/ects andeasons for deleting the right to !ro!ert" from the categor" of fundamental rights, therelief against in/ustice !roided *" the $$th Amendment a!!ears to hae *een guided*" !olitical e+!edienc"large minorities and tillers of the soil hae otes to gie or'ithhold# >r it ma" *e that the reason 'as more com!le+#

The anata Part" haing redeemed its !ledge, it 'as left to the 4u!remeCourt to determine, in the light of the !roisions of our Constitution, 'hether the!ledge can *e constitutionall" redeemed, and if so to 'hat e+tent# i.e'ise there are

a lot man" as!ects and long term eils gien rise *" $$th Amendment# In short thea*oe discussion sho's that it is eas" to ma.e an electoral !romise to delete right to!ro!ert" from the list of fundamental rights? it is not eas" to 'or. out theconse%uences of that !romise and em*od" them in a Constitution Amendment -ill#5ormall", amendment !ro!osing far reaching changes in the Constitution aresu*mitted to a 4elect Committee for scrutin", and re!ort# If that course 'as notfollo'ed, it is dicult to resist the conclusion that thes!onsors of the !ro!ert" amendments realied that those amendments 'ould notstand the scrutin" of a 4elect Committee 'ith a !o'er to e+amine 'itnesses# Thecourse of 2rst redeeming an electoral !romise *" amending the Constitution and thenleaing it to the courts to 'or. out the conse%uences of the amendments, must

a!!ear attractie# And that course 'as follo'ed, in the con2dent *elief that the court'ould not shir. their dut" of inter!reting the Constitution een if Parliament !referredsilence to s!eech as to its real intentions#

Defects of t&e ++t& Amendment Act

The amendment 'as *rought out 'ithout realiing the follo'ing dra' *ac.s(1) The close relation of !ro!ert" 'ith other fundamental rights, 'hich the anataPart" 'as !ledged to restore?(:) The eect of this change on the legislatie !o'er to ac%uire and re%uisition!ro!ert"? and

(3) The correlation of fundamental rights to irectie !rinci!les of state !olic"#Im7&ication$(i) The ight to Pro!ert" 'ould no' *e a Constitutional ight and not a undamentalight# Alegislation iolating the constitutional right to !ro!ert" could no' *e challenged onl"in &igh Courts and not directl" in the 4u!reme Court#(ii)ue to the deletion of Article 31 the oernment 'as no longer under an o*ligationto com!ensate!ersons 'hose land had *een ac%uired as !er a la' !assed *" Parliament#

As of no', it is, *e"ond the sco!e of m" research and understanding as to'hether Pro!osition (ii) i#e# de!riation of !ro!ert" 'ithout com!ensation is still

legall" tena*le es!eciall" in light of the 4u!reme CourtHs ruling, in the <ane.a andhicase, 'hich held that each and eer" !roision of the Constitution had to *einter!reted in a /ust, fair and reasona*le manner# Therefore an" la' de!riing a!erson of his !ro!ert" shall hae to do so in a reasona*le manner# It could *e argued



that the onl" reasona*le manner to de!rie a !erson of his !ro!ert" 'ould *e to oerhim, reasona*le com!ensation for the same# This discussion ho'eer is notcom!letel" releant for the !ur!ose of this !ost# The onl" releant !oint is the factthat under the Constitution no !erson can *e de!ried of their !ro!ert" 'ithout theauthorit" of la'# The t'o releant conce!ts that no' re%uire to *e e+amined are H!ro!ert"H DHAuthorit" *" la'H#HPro!ert"H as understood in Article 300A The o*ious 2rst %uestion is as to 'hether or not Hintellectual !ro!ert"H such asHclinical trial dataH 'ould fall 'ithin the de2nition of H!ro!ert"H as understood in Article300A# There seems to *e enough authorit" to su!!ort the !ro!osition that H!ro!ert"Has understood in Article 300A is 'ider than /ust Himmoa*le !ro!ert"H# >ne such authorit" in the conte+t of Hintellectual !ro!ert" rightsH is the /udgment of the 4u!reme Court in the case of ntertainment 5et'or. India td# (5I) # 4u!erCassette Industries td# (4CI)N$6O# In !ertinent !art the Court held the follo'ing Theo'nershi! of an" co!"right li.e o'nershi! of an" other !ro!ert" must *e consideredhaing regard to the !rinci!les contained in article 19(1) (g) read 'ith Article 300A of the Constitution, *esides, the human rights on !ro!ert"? The /udgment goes on further

to sa" that? -ut the right of !ro!ert" is no longer a fundamental right# It 'ill *e su*/ectto reasona*le restrictions# In terms of Article 300A of the Constitution, it ma" *esu*/ect to the conditions laid do'n therein, namel", it ma" *e 'holl" or in !artac%uired in !u*lic interest and on !a"ment of reasona*le com!ensation# The fact thatthe 4u!reme Court recognies Hco!"rightH to fall 'ithin Article 300A is indicatie thateen Hclinical trial dataH, collected after e+tensie e+!erimenting, should in allli.elihood fall 'ithin the de2nition of H!ro!ert"H as understood in Article 300A# HAuthorit" *" la'H as understood in Article 300A The term Hla'H as de2ned inArticle 300A is understood to mean onl" legislation or a statutor" rule or order# Theterm Hla'H as understood *" Article 300A 'ill not include e+ecutie 2ats# The source of the Hla'H de!riing a !erson of his !ro!ert" has to *e necessaril" traced, through a

statute, to the legislature#;hile summariing the entire conce!t of ight to Pro!ert"##>nce u!on a time, it 'as thought that the so called !ersonal rights li.e the right toote, right to freedom of s!eech or !ersonal li*ert" occu!ied a higher status in thehierarch" of alues than !ro!ert" right# As a result the courts 'ere more astute tostri.e do'n legislations, 'hich im!inged u!on these rights, than u!on !ro!ert" rights#-ut earned &and, a great /udge, felt that the distinction *et'een the t'o 'as unrealand said that no*od" seems to hae *esto'ed an" thought on the %uestion 'h"!ro!ert" rights are not !ersonal rights#

The 4u!reme Court of America 'hich once gae hos!ita*le %uarter to the

distinction *et'een !ersonal rights and !ro!ert" rights and accorded a !referred!osition to the former, has gien a decent *urial *oth to the distinction and the!referred status of the so called !ersonal rights or li*erties in 197: *" sa"ing thedichotom" *et'een !ersonal li*erties and !ro!ert" rights is a false one# Pro!ert" doesnot hae rights# Peo!le hae rights# The right to en/o" !ro!ert" 'ithout unla'fulde!riation, not less than the right to s!ea. or the right to trael is in truth a !ersonalright, 'hether the !ro!ert" in %uestion *e a 'elfare che%ue, a home or a saingsaccount# In fact, a fundamental interde!endence e+ists *et'een the !ersonal right toli*ert" and the !ersonal right in !ro!ert"# 5either could hae meaning 'ithout theother# That rights in!ro!ert" are *asic ciil rights has long *een recognised#This again 'ould

sho' that if the fundamental right to freedom of s!eech or !ersonal li*ert" !ertains to*asic structure, there is eer" reason that the fundamental right to !ro!ert" shouldalso !ertain to it, as the former set of rights could hae no meaning 'ithout the latter#Protection of freedom de!ends ultimatel" u!on the !rotection of inde!endence, 'hich



can onl" *e secured, if !ro!ert" is made secure# earned &and long ago s!o.e of thefalse ho!e of the courts !rotecting li*ert" if it dies in the hearts of men# >ne reason,'hich 'ould induce its death in their hearts, is an atmos!here in 'hich li*ert" deriesno sustenance from a sense of securit" to !ro!ert" created *" !utting it *e"ond theoutcome of the ote of shifting ma/orities#

>ur Constitution 'as framed *" an e+traordinar" *od" of men, a *od" of men 'hose com*ined irtues an talents hae seldom if eer *een e%ualed in thiscountr"# The" !ossessed that rare %ualit" of mind, 'hich unites theor" and !ractice# The" understood the uni%ue conditions of the countr" and the enduring needs andas!irations of the !eo!le, and the" ada!ted their !rinci!les to the character andgenius of the nation# The" isualised a societ" in 'hich eer" citien should *e theo'ner of some !ro!ert" not onl" as a means of sustenance *ut also as a one of securit" from t"rann" and economic o!!ression and the" !ut that right a*oe the oteof transient ma/orit"# The" enacted Article 39 and en/oined u!on the state to *rea. u!the concentration of !ro!ert" in the hands of the fe' and its distri*ution among all# There is no reason toda" to thin. that the t"!e of societ" the" isualised is in an" 'a"unsuited to our !resent condition#

Pro!ert" is the most am*iguous of all categories# It coers a multitude of rights,

'hich haenothing in common, e+ce!t that the" are e+ercised *" !ersons and enforced *" thestate# It is therefore idle to !resent a case for or against !riate !ro!ert" 'ithouts!ecif"ing the e+tent or alue thereof# Arguments, 'hich su!!ort or demolish certain.inds of !ro!ert", hae no a!!lication to others# Considerations, 'hich are conclusiein one stage of economic deelo!ment, ma" *e irreleant in the ne+t# or things arenot similar in %ualit" merel" *ecause the" are identical in name# If it *e assumed thatthe fundamental right to !ro!ert" does not !ertain to *asic structure and can *eamended *" !arliament 'ithout a referendum as !ro!osed in the case of otherfundamental rights regarding citiens? then therecan *e no dou*t that !ro!ert" isdura*le and nondura*le consumer goods, and in the means of !roduction 'or.ed *"

their o'ners must *e !rotected *" the higher la' on the same logic on 'hich it is!ro!osed to safeguard *" that la' the interest in land of small tenure holders and of agriculturists 'ithin ceiling limit# The o'ners of these !ro!erties must *e !aidcom!ensation *ased on mar.et alue in the eent of the state or a cor!oration o'ned*" the state ac%uiring them for !u*lic !ur!ose#

;hile these t"!es of !ro!ert" can *e /usti2ed as a necessar" condition of afree and !ur!oseful life, no such considerations are aaila*le in res!ect of the!ro!ert" in the means of !roduction not 'or.ed or directl" managed *" their o'nersas it is not an instrument of freedom since it gies !o'er not onl" oer things *utthrough things oer !ersons# It is !recisel" the concentration of this t"!e of !ro!ert"

'hich the framers of the Constitution 'anted to *rea. u! under Article 39 anddistri*ute among the haenots and there is no in/ustice in determining thecom!ensation !a"a*le to the de!ried o'ners on !rinci!les of social /ustice# -ut thisis 'here 'e hae to reall" s!are a thoughtustice J J <athe' had the most elo%uentand li*eral ie' in su!!ort of !ro!ert" rights# &o'eer, at the end of his !ursuit of defending !ro!ert" rights een he seems to hae got misguided *" the socalledconict *et'een directie !rinci!les and fundamental rights#

ranting a*solute right to !ro!ert" and also haing to u!hold the sanctit" of adirectie !rinci!le against concentration of 'ealth *ecomes almost an im!ossi*lething to rationall" achiee for an" fair state 'hich emerges and thries on thefoundation of rule of la'# 4o let the >'l of <inera ta.e ight# undamental right to

!ro!ert" is dead# -ut long lie right to !ro!ert"# of 5e' 4outh ;ales # Therthto'n,193: AC 6:E Till the 4eenth Amendment, the entries ran as follo's ntr" 33, ist IAc%uisition and re%uisitioning of !ro!ert" for the !ur!ose of the Bnion? ntr" 3E, istsu*/ect to the !roisions of entr" $: of ist III? ntr" $:, ist III Princi!les on 'hich



com!ensation for !ro!ert" ac%uired or re%uisitioned for the !ur!ose of the Bnion orthe 4tate or for an" other !u*lic !ur!ose, is to *e determined, and the form andmanner in 'hich such com!ensation is to *e gien# The a*oe entries 'ere deleted *"the 4eenth Amendment 'hich came into force from 1 5oem*er, 196E, and thefollo'ing ne' ntr" $: 'as su*stituted in ist III Ac%uisition and e%uisitioning of Pro!ert"#

Chap5 Property fundamental to constitution

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Transcript of Chap5 Property fundamental to constitution