My last article on the Kesavanandra
Bharati Case discussed how right to property does not form the basic structure
of our Constitution. However, there is a lot of ambiguity relating to the
status of this right. In the present article, I am going to discuss about the
current status of Right to Property vis-à-vis article 31 as it existed before.
Comparative Analysis
Originally, Article 31 guaranteed that
“All citizens shall have the right to acquire, hold and dispose of the property.”
The State, however, could impose reasonable restrictions (i) to serve the
exigencies of public welfare and (ii) to protect the interest of any Scheduled Tribe
[vide Art. 19 Clauses (1) (f) & (5)][1].
Also, article 31 (1) contained “no
person shall be deprived of his property save by authority of law” i.e. the
present article 300A. The interpretation of this phrase has been clarified by
the Supreme Court in a number of cases. In the case of Bishambhar Dayal Chandra Mohan v. State of U.P., the apex court held that
“Art.
300A provides that no person shall be deprived of his property save by
authority of law. The State Government cannot while taking recourse to the
executive power of the State under Art. 162, deprive a person of his property.
The word
'law' in the context of Article 300A must mean an Act of Parliament or of a
State Legislature, a rule, or a statutory order, having the force of law, that
is positive or State-made law.[2]”
Article
31 was deleted by the 44th Amendment in 1978. To understand the
reasoning behind the deletion of article 31 and article 19 (1) (f), let us
explore the Statement of Object and Reasons of the “The Constitution (Forty-fourth Amendment) Act, 1978”.
“3. 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 right of minorities
to establish and administer educational institutions of their choice.
4. Similarly, the right of persons holding
land for personal cultivation and within the ceiling limit to receive
compensation at the market value would not be affected.
5. 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.”
The
status of Right to Property was already made microscopic by the 42nd Amendment. 42nd Amendment introduced Article 31D that made laws
relating to anti-national activities and anti-national associations immune to
Judicial Review on the anvil of article 14, article 19 and article 31. Also, during
this period, our country was suffering from the vices of Zamindari System and
many a times, it became very difficult for the government to acquire land and
property from the landlords. There was a huge need to introduce agrarian
reforms and with Right to Property being sacrosanct, it was just not possible
for the government to go ahead with its reforms agenda. In fact, there were
many other reasons too such as the paucity of resources on part of the
government. The government was not in a position to pay full compensation to
the land holders. Hence, the government decided to demote the status of right
to property to a mere legal right.
Implications
There are
two exceptions with regard to this amendment or rather two areas that were no
affected by this change in the status of Right to Property.
1. The
right of minorities to establish and administer educational institutions of
their choice was not affected by this amendment. This was done by
introducing article 30 (1A).
2. The
rights of persons holding land for personal cultivation within the ceiling
limit were also not affected by this amendment. This was done by inserting a
second proviso to article 31A (1).
The
present article 300A says that “No person shall be deprived of his property save by authority
of law”. As I mentioned earlier, the word ‘law’ in article 300A means an Act of Parliament or of a State
Legislature, a rule, or a statutory order, having the force of law, that is
positive or State-made law[3]. A mere executive order in this regard won’t
suffice.
However,
there were two crucial consequences of 44th Amendment.
1. The
manner in which the compensation was to be determined or given became immune to
Judicial Review.
2. The
remedy under article 32 of the constitution is no more available to an aggrieved
person. However, the person can approach the High Court under article 226.
The
Present Position
In the
case of Rajiv Sarin and Another v. State of Uttarakhand and Others, the
Apex Court held that
1. The
inherent powers of public purpose and eminent domain are embodied in Article
300A, and Entry 42, List III, ‘Acquisition and Requisitioning of
Property’ which necessarily connotes that the acquisition and
requisitioning of property will be for a public use and for compensation and
whenever a person is deprived of his property, the limitations as implied in
Article 300A as well as Entry 42 List III will come into the picture. The Court
can always examine the legality of the legislation in question and such a
question is open to judicial review.
2. Article
31B read with Ninth Schedule of the Constitution does not protect
laws if they are violative of the Part III of the Constitution. In I.R. Coelho v. State of Tamil Nadu[4], the court held that the
laws added to the Ninth Schedule of the Constitution would be amenable to judicial
review on the ground of basic structure doctrine.
3. Under
Article 300A of the Constitution the State can proceed to acquire land for
specified use but by enacting a law through State legislature or by Parliament
and in the manner having force of law. When the State exercises the power
of acquisition of a private property thereby depriving the private person of
the property, provision is generally made in the statute to pay compensation to
be fixed or determined according to the criteria laid down in the statute
itself.
4. It
does not require payment of market value or indemnification to the owner of the
property expropriated. Payment of market value in lieu of acquired property
is not a condition precedent or sine qua non for acquisition. It must be
clearly understood that the acquisition and payment of amount are part of the
same scheme and they cannot be separated. It is true that the adequacy of
compensation cannot be questioned in a court of law, but at the same time
the compensation cannot be illusory (held in Kesavananda Bharati Case).
5. A
distinction and difference has been drawn between the concept of ‘no
compensation’ and the concept of ‘nil compensation’. As mandated by
Article 300A, a person can be deprived of his property but in a just, fair
and reasonable manner. In an appropriate case the Court may find ‘nil
compensation’ also justified and fair if it is found that the State has
undertaken to take over the liability and also has assured to compensate in a
just and fair manner. But the situation would be totally different if it is a
case of ‘no compensation’ at all. Basically, a law seeking to acquire
private property for public purpose cannot say that ‘no compensation’
would be paid.
The next
part in this series will talk about the development of “basic structure”
jurisprudence in India.
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