In today’s time, where every citizen is protected and guaranteed certain human rights, that is, right to speech and expression or right to equality and other fundamental rights that are provided on the grounds of employment, education or for protection of life and personal liberty or protection from exploitation, etc.
There also exists a right that is not provided under fundamental rights, that is, Part III of the Constitution or rather it should be said that this right has been removed from the pedestal of being a fundamental right.
The right to property which was earlier provided as a fundamental right under Article 19 of Part III of the Constitution has been abolished by 44th Amendment Act, 1978 which added altogether a distinct provision as Article 300A in the Constitution.
However, rather than being a fundamental right, it is still a Constitutional right, and in that case, if the Government acquires the land by paying an amount as compensation that is not sufficient and proportionate to the market rate. The suit for infringing the constitutional right can be filed in court.
The right to property is the legal right that the people, company or any other organization or government has on the property or anything that they own.
This basic human and legal right can be broadly classified under certain categories which can include the right to transfer the property, secure income from it, use the property for their benefit or enjoyment, or enforce property rights on their lawful property.
“The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” [1]
What is the history?
In India, the establishment of property rights started in the 1950s. The right to property was first introduced in India because of the existence of the ‘zamindari system’ during the British period and to remove this system and to form a proper system for alleging right over the property.
Before the 44th amendment took place the Constitution of India guaranteed the right to property as a fundamental right under Part III of the Constitution.
The amendment was made due to several cases of exploitations of the right to property and hence it covers provisions that provide protection but not in the same way they used to provide as a fundamental right.
Originally, after India got Independence, the right to property was included as a ‘fundamental right’ under Article 19(1) (f) and Article 31 in Part III of the Constitution when the Constitution of India came into force on 26th January 1950.
The right to property being a fundamental right protected property and gave the legal status of the land to the people living in newly independent India.
However, it was abrogated because the Indian government wanted land reforms by administering the surplus land with the landowners to the landless farmers to encourage social equality and justice. This right was an interesting development influenced by the British as for the first time it was sanctioned and recognized as an individual’s right over the property against the state.
However, soon after the right was enforced the lawmakers perceived that the right to property as a fundamental right is a source of disagreement and worked as a hurdle as it curtailed the state to acquire property for public use, which was important for the development of the state, that is, construction of roads, railways or industries, etc.
Therefore, to make the infrastructure of the country a matter of success, the Supreme Court in his historic judgment stated that the right to property doesn’t constitute the Basic Structure of the Constitution and shall be altered from Part III of the Constitution and therefore, the government was allowed to take or acquire individual’s property for a good cause in good faith for the sole purpose of public interest as has been held in the case of KT Plantation Private Ltd Vs. State of Karnataka [2] .
This judgment, however, leads to the 44 th Amendment Act which made the property right invalid as a fundamental right and added it under Article 300A of the constitution thus including all types of property [3] , that is, tangible or intangible, corporeal or incorporeal property [4] .
The provision is also applied on intangible property like copyright, intellectual property rights, mortgage, and money [5] or any other interest in the property, lease, and license. It also includes the right to receive a pension is property. [6]
There have been some major clashes between legislature and judiciary which were aggravated by the Supreme Court decision in IC Golakhnath Vs. The State of Punjab, [7] which held that the right to property is a fundamental right and thus forms a part of the basic structure of the Constitution, which the legislation cannot be amended.
However, in Kesavananda Bharati Vs. State of Kerala [8] , it was held that:
“The right to property was not part of the ‘basic structure’ of the Constitution, even after the 25 th Amendment; the Court must inquire whether what is given as compensation is completely illusory or arbitrary.”
The 44 th Amendment Act, 1978 – Article 300A
The human right, that is, the right to property was recognized in Article 17 of the Universal Declaration of Human Rights as it states that:
“Everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property”
Before the 44th amendment act, 1978 it was originally incorporated under Article 19(1)(f) of the Indian Constitution which stated that all the persons are entitled “to acquire, hold and dispose of property” read with Article 31 which states that no person can be deprived of his property without the consent of a proper authority which were repealed by the 44th Amendment Act of the Indian Constitution.
Both the articles were based on the English concept of private property to provide certain provisions to safeguard against the compulsory acquisition of individual properties. Article 19 thus also provides certain exceptions and reasonable restrictions to balance this under Article 19(5).
However, after the articles were repealed the right to own property is treated as a legal right rather than being a Fundamental Right.
Moreover, before the final 44th amendment act there have been many modifications and provisions related to the right to property which was amended several times in various amendment acts.
Article 31A was inserted by the 1 st Constitutional Amendment Act, 1951 as the right was thus required to safeguard the interests of the tenants and improve the agricultural advancement of the country.
The ultimate property right has not been considered as a fundamental right to which every citizen of India is entitled to according to the Constitution and thus not a part of the basic structure of the constitution.
However, the 44th amendment eliminated and abolished the right to acquire, hold and dispose of the property as a fundamental right and made it more of a general, legal, and statutory right that was inserted under Article 300A of the constitution which states that “No person shall be deprived of his property save by authority of law.” to ensure that no person is deprived of his property and certain provisions are provided to safeguard their property.
However, it was clear that the concerned authorities cannot deprive a person of his right to property without the enforcement of the law.
The State thus can acquire a person’s private property for a public purpose by giving the compensation which need not be equivalent to the exact value of the property but it is to be ensured that such compensation is not irrationally disproportionate or deficient.
According to the latest position concerning the right to property in the Indian constitution, it is well established in the case of Indian Handicraft Emporium Vs. Union of India, [9] by the Supreme Court of India that the right to property is a constitutional right under Article 300A and not a fundamental right. “It is indeed a Statutory right but each and every claim to property would not be property rights.”
What are the provisions of compensation under Article 300A?
The abolishment of the right to property as a fundamental right also gave the implied provision for the government to pay a certain amount to the deprived party for acquiring their land as compensation which may not be equal to the exact amount of the land but in the form of compensation as to take away their property [10].
However, the compensation must be the equivalent to the market price of the property at the time of procurement as it is illegal, unjust and violates the principle of fair compensation if the property is acquired at the rate lower than the prevailing market price, though this has not been expressly mentioned under Article 300A of the Constitution.
Moreover, the aggrieved party whose right to property has been transgressed cannot directly approach the Supreme Court under Article 32 as it is no longer a fundamental right but the right to property still being a constitutional and statutory right the aggrieved person may challenge the infringement in the High Court under Article 226 of the Constitution as it does not just deal with the breach in use of fundamental rights but also administrative tribunals. He can seek justice from the High Court in the case when the amount of compensation is unfair.
The right to property is neither a fundamental right nor a basic structure of the Constitution of India but the court can make sure that the amount of the compensation is fair or not. If the amount of compensation is illusory then the court may set aside the acquisition proceeding as has been held in the case of Jilubhai Khachar Vs. The State of Gujarat, [11] .
The Supreme Court held that the court can determine the principles on which the amount of the compensation decided was enough and not illusory.
As also in the case of Kesvanand Bharti Vs. State of Kerala [12] , the Supreme Court reiterated that it is not the arbitrary decision of the government to decide the amount of compensation as it should not be illusory and according to the market rate.
Even though the right to property has been removed by the 44th amendment act of 1978 but it does not empower the government to acquire land paying inadequate compensation.
Conclusion
The right to property which was treated as a fundamental right prior to the 44th amendment act, 1978 has now been treated as a legal and constitutional right which is provided under Article 300A of the constitution.
Even though the land has been the most precious asset in India, the government has the right to acquire the land for the public by paying a certain amount of compensation which may not be equal to the market price, however, it is an implied right provided under the same provision for the aggrieved party to file suit in case of incompetent compensation.
Thus, it is to be ensured by the government and the concerned authority that when the government needs land and it acquires the land, an adequate amount of compensation is paid to the landowners.
The amount of compensation must be just, fair and reasonable as the right to property is not a fundamental right but it is still a constitutional right.
