Everyday some or the other legal developments take place. We have been given certain rights and with it comes duty. In order to protect people fundamental rights are given to them in Constitution, but it is interesting to see that in one instance in order to do economic justice, a person's fundamental right was converted into just a constitutional right, that is Right to Property.

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The main aim of this writing is to enable readers to know why the legal status of the Right to Property was changed from a fundamental right to a constitutional right.

What is Property?

The word property interpreted by SC for Art. 31 has said, should be given a liberal meaning and should be extended to all those well-recognized types of interest which have the insignia or characteristic of property right[1]. The expression property in Article 300A is confined not only to land alone. It includes both corporal and incorporeal rights [2]. It includes Money[3], contract, interest in the property, etc.

Right to Property as a fundamental right

Since the Constitution of India came into force in the 1950s, the right to property was given fundamental status. Basically, two articles Art. 31 and Art. 19(1)(f) ensures that any person's right against his property remains protected.

Art. 31 clause (1) reads as No person shall be deprived of his property save by authority of law. It gives protection to persons against the government or State's arbitrary action to seize private property for public use and private use. That means a person has right to move to SC in case of violation of this right. At this juncture it is essential to understand the power of Eminent Domain- every government has an inherent right to take and appropriate the private property belonging to an individual citizen for public use[4]. It is based on the legal maxim Salus Populi est suprema lex meaning the welfare of people or the public is the paramount law.

In America, this power was limited by imposing three restrictions:

1. there must be a law authorizing the taking of property
2. the property must be taken for a public purpose
3. just compensation should be paid.

In India clause (1) of art. 31 provides for first restriction and clause (2) reading  No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition of the property for an amount which shall be fixed by such law, and no such law be called in question in any court on the ground that the amount so fixed is not adequate for the other two restrictions.

Article 19(1)(f) provides the freedom to citizens to acquire, hold, and dispose of the property within the territory of India.

But by the Constitutional 44th Amendment act 1978, these two above mentioned articles were deleted and a new chapter IV was added in Part XII, containing only one article 300A.

The legal status of the Right to Property was changed from the fundamental right to constitutional right. As a result, people were not allowed to approach Supreme Court directly u/A 32 of the constitution for violation of the Right to Property although they still could invoke jurisdiction at high court u/A 226 of COI.

In Jilubhai Nanbhai Khachar v. State of Gujrat[5], it was held that the Right to property u/A 300A is not a basic structure of the Constitution. It is only a constitutional right.

Why the 44th amendment act was made?

In order to understand why such a step was taken by the Parliament of India, it is necessary to understand that before India get its independence there were four major systems prevailing – the Ryotwari system, Mahalwari system, Zamindari system, and Jagidari system. Due to these large parts of land was in possession of zamindars, tenants, and like people, which causes an unequal distribution of land and increases the gap between rich and poor.

Since 1947-1950, the constituent assembly worked day and night to draft the Constitution of India. Members of the constituent assembly were concerned by the situation at that time and knew various land reforms and acquisition acts will be needed to pass, due to the above-mentioned system, so in order to redistribute land and to rectify the damage various steps were taken:

1. Provisions related to saving of certain laws were added- By Constitution 1st amendment act 1951 Art. 31A and 31B were added. Art.31A provides that no law providing for the acquisition of any estate or any right or modification of any right will not be deemed to be void on the basis that it is inconsistent with Art. 14 and 19. Art.31B provides for validation of certain acts and regulations, it says that none of the acts and regulations mentioned in the IX Schedule of the constitution would be deemed to be void on the ground that it is inconsistent with the rights conferred in Part III of the constitution. Later on, by the 4th amendment 1955, the scope of the estate was increased, it includes any jagir, inam or muafi, or any other similar grants.
   
   
2. Land celling was one of the strongest measures taken in this regard. Celling means the maximum limitation on the area that can be acquired by a private person. In the year 1959 at the Nagpur conference of Indian National Congress, it was decided that laws or acts related to the restriction of land limits must be implemented till the end of the year. The land ceiling act was implemented from 1960-1972 and from1976-1999.

Despite such efforts by the government the zamindars and other land owners whose ceiling limit exceeded approached Supreme Court using their fundamental right to property with the intention to hold acts unconstitutional. So, in order to stop this from happening and with a view to doing economic justice, Art.31, and Art. 19(1)(f) ceased to be a fundamental right and was modified as a constitutional right in new chapter IV Part XII of the Constitution as Art. 300A, which continues to exist and follow till today.

Present Legal Status of Right to Property

By 44th Amendment Act 1978 of the Constitution of India, a new article namely 300A was inserted and titled as Right to Property. It read as:
No person shall be deprived of his property save by authority of law. This article provides restrictions on the State that it cannot take anybody's property without the force of law also interpreted can be deprived of the force of law. The word 'law' here means a validly enacted law which is just, fair, and reasonable[6].

In the case of Hari Krishna Mandir Trust vs the State of Maharashtra And Others[7], it was held by the SC that the appellant cannot be deprived of his strip of land being a private road, without the authority of law, if allowed will be a violation of Art. 300A of COI.

Art. 31 used to impose a similar limitation on the power of Eminent Domain as in America but the new Art. 300A only imposes one restriction on this power that is the authority of law.
It is obvious such deprivation will have the force of law only when it is for public welfare and is just, fair and reasonable. In the case of K.T. Plantation Pvt. Ltd. v. State of Karnataka[8], it was held by SC that the requirement of public purpose is invariably the rule when a person is deprived of his property.

The main question arises if any person is deprived of his property by the force of law for the public interest, will he be entitled to compensation?
The answer is yes. Although it is not explicit like in Art. 30(1)(A) as well as in 2nd proviso of Art.31A (1) but yet it can be inferred in Article 300A. The State has to justify its stand on justiciable grounds which depends upon legislative policy.

Right to own Private Property is a Human Right

In the recent judgment of Vidhya Devi v. The State of Himachal Pradesh & Ors.[9], it was held by SC that the Right to own Private Property is a human right and cannot be denied. The party depriving one's right to property must have the authority of law. In this case, the plaintiff was given compensation for the wrong acquisition of property by the state.

Conclusion
Due to the excessive possession of land by the zamindars and tenants, the legal status of the Right to freedom was changed from a fundamental right to a constitutional right in order to avoid the situation of misusing of right to property as a fundamental right by zamindars and another landowner against state measures to acquire land and to implement land ceiling laws in India. Still, this right is available to all persons as a constitutional right and can invoke the jurisdiction in high court u/A 226 of the Constitution of India.

End Notes:

1. Commr. Hindu Religious Endowment v. L.T. Swamiar, AIR 1954 SC 282.
2. Dewarka Das Srinivas v. Sholapur Spg. And Wvg.Co.Ltd., AIR 1954 SC 112.
3. Bombay Dyeing Co. v. State of Bombay, AIR 1958 SC 328.
4. Charanjit Lal v. Union of India, AIR 1951 SC 41
5. AIR 1995 SC 142
6. M/s. Delhi Airtech Services Pvt. Ltd. V. State of U.P., AIR 2012 SC 573.
7. Civil Appeal No. 6156 of 2013., decided on 07-08-20.
8. AIR 2011 SC 3430
9. SC, DB,Appeal(civil), 60-61 of 2020, Judgement date: Jan 08 2020

Abbreviations:

1. SC- Supreme Court
2. Art.- Article
3. u/a- Under article
4. v.- verses
5. Ltd.- limited

Written By: Shivang Parashar