Raghuvansh Seth elucidates the right to property and the restrictions that were imposed upon it under the Constitution provisions, along with explaining those constitutional rights have been repealed post – independence.
The issue of Right to Property is one of the most controversial issues, both in terms of its existence and interpretation, whose inception dates back to the Constituent Assembly Debate .
This Right has been subjected to scrutiny all over the world and there is no universally accepted rule and principle which governs this Act.
It formed a part of the fundamental rights under Part III of the Constitution, and its meaning was threefold:
1. Under Article 19(1)(f), it was stated that every person had a right to acquire any property by lawful means, hold on to it as his own, and dispose of it freely. The only limitations to this Article were the reasonable restrictions to serve the exigencies of public welfare, and any other restrictions imposed by the State to protect interests of Scheduled Tribes.
2. Under Article 31(1), no person could be deprived of his/her property save by the authority of law.
3. And under Article 31(2), it was stated that is the State wanted to acquire the property of any private individual, it could only do so if the acquisition was strictly for public purposes, and an adequate compensation was provided to the owner.
This was the meaning and the implications of the right to property before the 44th Constitutional Amendment. After the 44th Amendment, Articles 19(1)(f), 31(1) and 31(2) were repealed, completely altering its meaning and removing it from the ambit of ‘Fundamental Rights’, and converting it into a mere ‘Constitutional’ or ‘Legal’ right. The implications of such were that, now if the right to property of any individual was violated, he could not approach the Supreme Court for seeking redressal. This was solely because the right to property was not a fundamental right anymore. The only exceptions to this transformation were the minority communities and the persons holding land for personal cultivation, to whom the fundamental right of property still existed and was enforceable under Articles 30 and 31(A) respectively.
Furthermore, under the 44th Constitutional Amendment, a new article came into place, namely, Article 300(A). This article provided that no person shall be deprived of his/her property, save in accordance with the law.
Now, why the right to property was transformed from a fundamental right into a legal right? The answer to this question is that prior to independence, lots of zamindaris and colonial faithful had accumulated a large amount of wealth in the form of these lands, and because of this, post-independence, there was a huge problem of land rationalization for the government. On one hand there were people who had amassed a huge proportion of land, and on the other hand, there were the poor farmers and tenants who had lost their lands to the zamindaris and the bigger farmers under the zamindari system. And in order to redistribute the lands, it was extremely important to remove the right to property from the ambit of fundamental rights.
This change was brought about with the case of Kesavananda Bharati v. State of Kerala, after which the decision to amend the Constitution was taken by the government and the parliament. The liberalization of the economy and the government’s attempt to create special economic zones has led to many protests by the farmers calling for the reinstatement of the right to property as a fundamental right, but all these protests have yielded no fruit.
The makers of our Constitution differed when it came to the property rights of the citizens. The then Prime Minister Jawahar Lal Nehru, wanted the removal of Right to Property from Part III of the Constitution . His idea of developing a socialist democracy could have been taken forward only when owners of large swathes of land and the Zamindari system be abolished. With right to property in Part III, it would have remained a dream. But the visionary failed to see that it would go on to cause major exploitation and render thousands without their properties, destroying their livelihood. The First and Fourth amendments of the Constitution sowed the seeds for the removal of right to property as a fundamental right. The 44th amendment of 1978 was the death knell for right to property. The State could now acquire land from any citizen by giving inadequate compensation as it was made impossible for one to approach court for low compensation. The presence of a draconian Land Acquisition Act, 1894 only made things easier for well-connected corporate houses to grab land at low prices through corrupt officials who were on their payroll. Farmers were the most to be affected by this amendment as swathes of farm lands were being acquired for ‘public purposes’.
THE DOCTRINE OF EMINENT DOMAIN
The Doctrine of Eminent Domain, which forms an important part of the right to property, is a few hundred years old, and came into being when an English King needed salt petre to make gun powder, and unable to find any land, he grabbed hold of a private mine. The owner of the private mine approached the House of Lords, which held that, the sovereign can do anything, if the act of the sovereign involves public interest.
Basically, the said doctrine entitles the sovereign or the state with the power to acquire private land for a public use, provided that the public-ness of the usage can be proved beyond doubt.T
The essential ingredients which were imposed on the doctrine by the repealed Article 31 are as follows:
1. Property is taken for Public Use.
2. Compensation is paid for property taken.
But currently, only one limitation is imposed on this doctrine by Article 300, which is, the authority of Law.
The doctrine was based on the following two maxims
1. Salus Populi est Suprema Lex – which means, welfare of the people of the public is the paramount law.
2. Necessita Public Major est Quam – which means, public necessity is greater than Private Necessity
In a nutshell, every government has an inherent right to take and appropriate the private property belonging to an individual citizen for public use, this right or power is termed as Eminent Domain. It is the offspring of political necessity. Based on the above-mentioned two maxims, it entitles the government to take away the private property for the purpose of serving any public necessity such as government schools, highways, libraries, telephone lines etc.
But this power is subject to restrictions provided in the Constitution, which are :
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.
And even if any one of the limitations is not complied with, this right cannot be exercised.
THE INDIVIDUALIST THEORY
Now, the eternal conflict between the moral and the legal aspects of the law, largely due to their overlapping natures, is a well-known fact. While providing his opinion on the same, English professor John Locke proclaimed that every man is entitled to a property which belongs to him in person and nobody has the right to that property but himself. As per Locke, the privilege to property and privilege to life were unavoidable rights, and it was the obligation of the State to secure these rights for the people.
Locke argued that the safeguarding of the natural rights such as the right to property would help curtail political abuses by the State. This gave rise to the individualist theory. If individualism is indeed sound, so is the principle of private property rights. When the right to property is not respected and not sufficiently protected, then individualism tends to have a negative impact on the community at large.
Holding property has been a symbol of social status in our country from colonial times where the people were characterized on the basis of the property they acquired, held or disposed-off. Not just that, property was also a means of livelihood for a significant number of people in the country. The significance of holding property dates back to pre-historic times where people were considered eligible to vote based on the number of properties they own. Hence, the legal right in place must seek to fulfill individualistic needs of the community as a whole. Properties held by citizens, especially in our country , may also hold a high sentimental value as they may have been a part of their respective families across generations, for which no amount of compensation would even begin to suffice.
Hence, in my opinion the 44th Constitutional Amendment of 1978 was considerably wrong in its place because by repealing Articles 19(1)(f) and 31, it did not give the people a fair chance to retain their properties, regardless of the moral and sentimental values, despite Article 300(A), which provided adequate compensation for the property taken away by the government for public purposes.
 John Locke’s 1689, The Two treatises of Government
 Access at : https://www.quora.com/Why-was-Right-to-Property-removed-from-Fundamental-Rights-in-India
 Access at : https://www.quora.com/Why-was-right-to-property-removed-from-fundamental-rights-and-kept-as-a-legal-right
 Access at : http://www.dailyo.in/politics/madhav-godbole-the-god-who-failed-rupa-nehru-fundamental-right-to-property-nani-palkhivala-article-31a/story/1/3965.html
 Ibid (.,1)
 John Locke’s 1689, The Two treatises of Government
 Access at : http://www.iep.utm.edu/property/