This bloody debate on land acquisition is quite a nonsense as NO compensation has been paid hitherto since partition all on the name of development and public interest.
West Bengal Government only has to pay Rs,300 to 350 million for land acquired!
Excalibur Stevens Biswas
Great Indian Saga of development and growth is all about displacement from Jal Jangal Jameen.
Law or no law,constitution or no constitution it makes nonsense as land acquisition has been an unilateral affair without compensation,without hearing.
This bloody debate on land acquisition is quite a nonsense as NO compensation has been paid hitherto since partition all on the name of development and public interest.
No rule of Law whatsoever and constitution of India is a sacred book only which has no impact in governance since Independence as civic and human rights have to be violated.
It is a breathtaking story about the blatant violation of Indian Constitution along with civic and human rights amounting to brutal apartheid as well as contempt of court as court orders never to be complied.
Bengal government has lost at least fifty cases during last few months and has to pay compensation amounting Rs 300 to 350 million at the rate fixed in the new land acqusition act 2013.
Bengali daily Ei Samay has published a lead story which refers th high court quote about artcle 300 A which vests the holding land right for land owners.
Compliance of the High court order is near impossible,the report says as no compensation has been paid since partition of Bengal and Bengal Finance has touched the bottom already as the government has to pay salaries to its employees in accordance to pay commission scales on credit or via overdraft or diverting funds.
The left overlooked the problem and hitherto no government countrywide has cared to pay compensation for land or to behave in accordance the Article 300A.
Article 300A is violated time and again just because
Right to Property under the Indian Constitution!
[PDF]Right to Property and Compensation under the Indian ...
Article 300A of Constitution of India deals with Persons not to be deprived of property save by authority of law.
From the Constitution
No person shall be deprived of his property save by authority of law.
Related Cases / Recent Cases / Case Laws
- J Rajiv Subramaniyan and Another v M s Pandiyas and Others, Civil Appeal Jurisdiction, Civil Appeal Petition No 3342 OF 2014, Supreme Court of India judgement dated March 14, 2014
- Tukaram Kana Joshi and Others through Power of Attorney Holder Vs MIDC and Others, Civil Appeal No. 7780 of 2012, Arising out of SLP(C) No.2418 of 2012, Supreme Court of India judgement delivered on November 2, 2012
When independent India first adopted its Constitution, the Right to Property, as enshrined in Article 19(1)(f), was a fundamental right and therefore placed at a high pedestal. Article 19(1)(f) had to be read along with Article 31 of the Constitution in order to prevent the Government from depriving a person of his property without the "authority of the law" and further that such law should provide "for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and give".
Both Article 19(1)(f) and Article 31 proved to be a substantial headache to the Indian Government, as these provisions made it very difficult for the Government to proceed with its socialist agenda of land reforms and nationalization schemes, as the Government simply could not afford to pay reasonable compensation for the lands and corporations acquired by it. Initially the Congress Party which was in power at the Centre aimed at maintaining the legality of its action by introducing new provisions such as Article 31A,B & C along with Schedule IX to the Constitution to protect, from judicial review, all those legislations which offended the fundamental rights enshrined in Part III of the Constitution. At last count there were at least 285 legislations, most of them land reform legislations, locked up under the safety of Schedule IX.
In 1977, the grand coalition of the Janata Party, had just wiped out the Congress Party, in the elections held after the lifting of the internal emergency imposed by then Prime Minister Indira Gandhi in the year 1975. A year later in 1978, the Janata Party passed the 44th Amendment to the Constitution of India. As a part of these Amendments both Article 19(1)(f) & Article 31 were deleted from the Constitution. Article 31 however was only party deleted in the sense that Article 31(1) which provided that "no person shall be deprived of his property, save by the authority of the law" was transferred out of the fundamental rights chapter and shifted to Chapter IV of Part XII, in the form of Article 300A.
Article 300A now reads as follows: Article 300A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.
The constitution of India can be accessed here.
This amendment had two immediate implications:
(i) The Right to Property would now be a Constitutional Right and not a Fundamental Right. A legislation violating the constitutional right to property could now be challenged only in High Courts and not directly in the Supreme Court.
(ii)Due to the deletion of Article 31 the Government was no longer under an obligation to compensate persons whose land had been acquired as per a law passed by Parliament.
As of now, it is, beyond the scope of my research and understanding as to whether Proposition (ii) i.e. deprivation of property without compensation is still legally tenable especially in light of the Supreme Court's ruling, in the Maneka Gandhi case, which held that each and every provision of the Constitution had to be interpreted in a just, fair and reasonable manner. Therefore any law depriving a person of his property shall have to do so in a reasonable manner. It could be argued that the only reasonable manner to deprive a person of his property would be to offer him, reasonable compensation for the same. This discussion however is not completely relevant for the purpose of this post. The only relevant point is the fact that under the Constitution no person can be deprived of their property without the authority of law.
The two relevant concepts that now require to be examined are (i) 'property' & (ii) 'authority by law'.
C. 'Property' as understood in Article 300A: The obvious first question is as to whether or not 'intellectual property' such as 'clinical trial data' would fall within the definition of 'property' as understood in Article 300A. There seems to be enough authority to support the proposition that 'property' as understood in Article 300A is wider than just 'immovable property'. One such authority in the context of 'intellectual property rights' is the judgment of the Supreme Court in the case of Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd. (SCIL). In pertinent part the Court held the following:
The ownership of any copyright like ownership of any other property must be considered having regard to the principles contained in Article 19(1)(g) read with Article 300A of the Constitution, besides, the human rights on property.
The judgment goes on further to say that:
But the right of property is no longer a fundamental right. It will be subject to reasonable restrictions. In terms of Article 300A of the Constitution, it may be subject to the conditions laid down therein, namely, it may be wholly or in part acquired in public interest and on payment of reasonable compensation.
The fact that the Supreme Court recognizes 'copyright' to fall within Article 300A is indicative that even 'clinical trial data', collected after extensive experimenting, should in all likelihood fall within the definition of 'property' as understood in Article 300A.
D. 'Authority by law' as understood in Article 300A: The term 'law' as defined in Article 300A is understood to mean only a legislation or a statutory rule or order. The term 'law' as understood by Article 300A will not include executive fiats. The source of the 'law' depriving a person of his property has to be necessarily traced, through a statute, to the legislature. The question therefore is whether the relevant provisions of the Drugs and Cosmetics Rules, 1945 qualify as 'law' for the purpose of Article 300A or whether the same would be struck down as having no basis in the Act:
(a) Rule 122 E – Definition of 'new drug': Any drug which has not been used within the territory of India for any significant extent under the conditions prescribed by the Act shall be deemed to be a 'new drug' for a period of 4 years after its approval by the relevant authority, which is now the DCGI/CDSCO.
(b) Schedule Y, Appendix 1 to the D & C Rules, 1945 (approval for new drugs) – These provisions prescribe the data that is to be submitted to the DCGI along with the application to manufacture a 'new drug'. The clinical data that is required is as follows:
(i)Phase 1 & Phase 2 – Clinical Trial studies;
(ii) Phase III – Confirmatory Clinical Trial studies, which involves large scale testing on human beings (These studies would include mandatory Phase III trials on at least 100 Indian patients in India);
These requirements however are significantly diluted by the first proviso to Rule 122(B)(3) and Rule 122(A)(2), which states that local clinical trials need not be conducted if in case the Licensing Authority so decides to waive the requirement in light of tests carried out in foreign countries.
(c) Schedule Y, Appendix 1A (Approval for generic drugs) – These provisions prescribe the data that is to be submitted to the DCGI along with the application to manufacture a 'new drug' already approved for manufacture in India. Not surprisingly these provisions do not require the submission of any 'clinical studies' – the only requirement is that the application be accompanied by bio-equivalence studies along with sub-acute animal toxicity studies for intravenous infusions and injectables. Bio-equivalence studies are a relatively inexpensive affair and are aimed at establishing that the biological efficacy and safety of the generic drug in relation to the innovator drug. These studies save generic manufacturers the cost of executing expensive clinical trials and are in fact the primary reason for the low cost of generic drugs.
The long and short of this provision is that the approving authority of the Central Government, in effect depends, on clinical trial data submitted by the innovator company for the first approval of its new drug product. In a sense the Government 'acquires' the data for a 'public purpose' in a manner which directly affects the business of the innovator company.
Most importantly however this dependence on the innovator's data is not mandated by the Act but instead by the Rules, which are delegated legislation.
(ii) Do 'the relevant provisions' of the D & C Rules, 1945, fall within the definition of 'law' as understood in Article 300A?
There is enough authority to support the proposition that Statutory Rules & Orders would fall within the definition of 'law' as understood in the context of Article 300A. For example an Order made under the procedure laid down by the Land Acquisition Act would qualify as 'law' for the purpose of Article 300A since it has been promulgated under the procedure prescribed by the Act. The 'relevant provisions' of the D & C Rules, 1945, that have been discussed above, may not qualify as 'law' since such delegated legislation, in my opinon, is beyond the scope of the Act.
As discussed by a Seven Judge Bench of the Supreme Court in the In Re Delhi Laws case, delegated legislation is permissible, to the extent that it does not allow for the delegation of an essential legislative function i.e. a question of policy cannot be delegated. The decision to 'acquire' valuable property, i.e. expensive clinical data, for a public purpose is an essential function which can be carried out only through an Act of the legislature. At the time when the United States of America decided to curtail the data exclusivity period of innovators drugs from perpetuity to 5 years it had to do so through a legislative action which was known as theHatch-Waxman Act and not through FDA regulations.
Moreover each and every rule that is formulated in the guise of delegated legislation has to find its source in the Parent Statute. In the present case I have, either rightly or wrongly, not be been able to locate the source of these 'relevant provisions' in the Drugs and Cosmetics Act. While it is true that the Act provides the Central Government with a mandate to regulate the manufacture of drugs, it does not provide the Government with the power to deprive a person of his property.
It would therefore be difficult for the Government to defend these provisions on the basis of Article 300A of the Constitution.
Having said that, I would also like to clarify that the rights under Article 300A are always capable of being restricted by Parliament. It would thus be completely legal for Parliament to pass an amendment expressly allowing for generic companies to depend on the clinical data submitted by the innovator company, provided the innovator is reasonably compensated for sharing the same.
http://spicyip.com/2010/05/article-300a-of-constitution.html
Read more: http://www.lawnotes.in/Article_300A_of_Constitution_of_India#ixzz3hfeoxhwH
Right to Property under the Indian Constitution |
| By : vyshnavi neelakantapillai on 07 March 2011 |
Introduction
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 recognize property right as a fundamental right. In the year 1977, the 44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental right. However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as a fundamental right is now substituted as a statutory right. The amendment expanded the power of the state to appropriate property for social welfare purposes. In other words, the amendment bestowed upon the Indian socialist state a licence to indulge in what Fredric Bastiat termed legal plunder. This is one of the classic examples when the law has been perverted in order to make plunder look just and sacred to many consciences.
Indian experiences and conception of property and wealth have a very different historical basis than that of western countries. The fact the present system of property as we know arises out of the peculiar developments in Europe in the 17th to 18thcentury and therefore its experiences were universally not applicable. A still more economic area in which the answer is both difficult and important is the definition of property rights. The notion of property as it has developed over centuries and it has embodies in our legal codes, has become so much a part of us that we tend to take it for granted, and fail to recognize the extent to which just what constitutes property and what rights the ownership of property confers are complex social creations rather than self evident propositions.[1] This also seems to be the hidden reason why the right to property is suddenly much contested throughout India today and why the state is coming up unexpectedly against huge resistance from unexpected quarters in attempting to acquire land in India. The action of the state to assert the Eminent Domain over subsidiary claims on property and the clash which resulted there from Singur, Nandigram and other parts of India is precisely a manifestation of a clash of cultures. To put in Samuel Huntingtons words, the ideas of the west of development and liberalization propagated by the present ruling elite and the old Indic ideas which shape the views of the majority of the people.[2]
The right to property under the Indian constitution tried to approach the question of how to handle property and pressures relating to it by trying to balance the right to property with the right to compensation for its acquisition through an absolute fundamental right to property and then balancing the same with reasonable restrictions and adding a further fundamental right o compensation in case the properties are acquired by the state. This was exemplified by Article 19(1)(f) balanced by Article 19(5) and the compensation article in Article 31. This was an interesting development influenced by the British of the idea Eminent Domain but overall it struck an interesting balance whereby it recognized the power of the state to acquire property, but for the first time in the history of India for a thousand years or more, it recognized the individuals right to property against the state.
However, when the state realized that an absolute property and the aspirations of the people were not the same the legislature was subsequently forced to make the said right to property subject to social welfare amid amendments to the constitution. Articles 31-A, 31-B and 31-C are the indicators of the change and the counter pressure of the state when it realized the inherent problems in granting a clear western style absolute fundamental right to property (even though it was balanced by reasonable restrictions in the interest of the public), specially Article 31-C, which for the first time brought out the social nature of property. It is another matter that the said provisions were misused, and what we are discussing today, but the abuse of the socialist state in India is not the scope of the present article and the articles are considered on their face value only.
Doctrine of Eminent Domain
v HISTORY
Few hundred years old and first used when an English king needed salt petre (form of Potassium Nitrate, used in the manufacturing of fire work) to make gun powder and when he was not able to find any land, he grabbed hold of a private mine. The owner of the private mine approached the House of Lords, the House of Lords held that, the sovereign can do anything, if the act of sovereign involves public interest.
WHAT IS THE POWER BESTOWED BY THE DOCTRINE TO THE STATE???
Basically this doctrine entitles sovereign to acquire private land for a public use, provided the public-ness of the usage can be demonstrated beyond doubt.
PRESENTLY THE DOCTRINE DOES THE DUTY OF:
In the present context this doctrine raises the classic debate of powers of State v. Individual Rights. Here comes the DIDDevelopment Induced Displacement which means, The forcing of communities even out of their homes, often from their home lands for the purpose of economic development, which is viewed as a Human Right violation in the International level.
ESSENTIAL INGREDIENTS OF THIS DOCTRINE
1. Property is taken for public use
2. Compensation is paid for the property taken.
The above said are the two limitations imposed on the power of Eminent Domain by the repealed A.31 .
Whereas the new A.300 A imposes only one limitation on this power (i.e.,)Authority of Law
MAXIMS
The doctrine is based on the following two Latin maxims
i. Salus Populi est Suprema Lex Welfare Of The People Of The Public Is The Paramount Law;
ii. Necessita Public Major est Quam Public Necessity Is Greater Than Private Necessity.
Every government has an inherent right to take and appropriate the private property belonging to individual citizen for public use.[3] This power is known as Eminent Domain. It is the offspring of political necessity. This right rests upon the above said two maxims. Thus property may be needed and acquired under this power for government office, libraries, slum clearance projects, public schools, parks, hospitals, highways, telephone lines, colleges , universities, dams, drainages etc.[4] The exercise of such power has been recognized in the jurisprudence of all civilized countries as conditioned by public necessity and payment of compensation[5]. But this power is subject to restrictions provided in the constitution. In the United States of America, there are limitations on the power of Eminent Domain---
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.
Meaning of Property
The word property as used in Article 31 the Supreme Court has said should be given liberal meaning and should be extended to all those well recognized types of interest which have the insignia or characteristic of property right.[6] It includes both corporeal and incorporeal right.[7] It includes money[8], Contract, interest in property e.g., interest of an allottee, licensees, mortgages or lessees of property. The Mahantship of a Hindu Temple,[9] and shareholders of Interests in the company[10] are recognizable interest in property. The right to receive pension is property.[11]
Supreme Court Approach to the Right to Property
The Supreme Courts approach to the right to property can be divided into two phases:-
THE TIME TILL THE RIGHT TO PROPERTY WAS A FUNDAMENTAL RIGHT (PRE 1978)
THE TIME AFTER THE CONVERSION OF RIGHT TO PROPERTY AS A CONSTITUTIONAL RIGHT (POST 1978)
Pre 1978 The Fundamental Right to Property
The Ninth Schedule was inserted in the constitution by the Constitution (First Amendment) Act, 1951 along with two new Articles 31 A & 31 B so as to make laws acquiring zamindaris unchallengeable in the courts. Thirteen State Acts named in this schedule were put beyond any challenge in courts for contravention of fundamental rights. These steps were felt necessary to carry out land reforms in accordance with the economic philosophy of the state to distribute the land among the land workers, after taking away such land from the land lords.
By the Fourth Amendment Act, 1955, Art 31 relating to right to property was amended in several respects. The purpose of these amendments related to the power of the state o compulsory acquisition and requisitioning of private property. The amount of compensation payable for this purpose was made unjustifiable to overcome the effect of the Supreme Court judgement in the decision of State of West Bengal v. Bella Banerjee[12]. By the constitution (Seventeenth Amendment) Act, 1964, article 31 A was amended with respect to meaning of expression estate and the Ninth Schedule was amended by including therein certain state enactments.
During this period the Supreme Court was generally of the view that land reforms need to be upheld even if they did strictly clash against the right to property[13], though the Supreme Court was itself skeptical about the way the government went about exercising its administrative power in this regard[14]. The Supreme Court was insistent that the administrative discretion to appropriate or infringe property rights should be in accordance with law and cannot be by mere fact[15]. The court however really clashed with the socialist executive during the period of nationalization, when the court admirably stood up for the right to property in however a limited manner against the over reaches of the socialist state[16].
In this juncture the court in this Bank Nationalisation case[17] has clearly pointed out the following two points:
a. The constitution guarantees the right to compensation which is equivalent in money to the value of the property has been compulsorily acquired. This is the basic guarantee. The law must therefore provide compensation and for determining compensation relevant principles must be specified: if the principles are not relevant the ultimate value determined is not compensation[18].
b. The constitution guarantees that the expropriate owner must be given the value of his property (the reasonable compensation for the loss of the property). That reasonable compensation must not be illusionary and not reached by the application of an undertaking as a unit after awarding compensation for some items which go to make up the undertaking and omitting important items amounts to adopting an irrelevant principle in the determination of the value of the undertaking and does not furnish compensation to the expropriated owner[19].
Post 1978 The Constitutional Right to Property
It was at this period the Supreme Court had gone out of its way to hold against the right to property and the right to accumulate wealth and also held that with regard to Article 39, the distribution of material resources to better serve the common good and the restriction on the concentration of wealth.[20] The court however is also responsible in toning down the excesses on the right to property and wealth by the socialist state[21]. During the period of Liberalisation, the Supreme Court has attempted to get back to reinterpret the provisions which give protection to the right to property so as to make the protection real and not illusory and dilute the claim of distribution of wealth.[22]However, this has been an incremental approach and much more needs to be done to shift the balance back to the original in the constitution. This means that the acquisition of property is not merely temporal but to be accepted as valid it must conform to spiritual guidelines as well as the Indian conceptions recognize quite clearly that though property can be enjoyed which has not been acquired strictly in terms of the law, it cannot be called real property of the person concerned. Property therefore is not merely an individual right but a construction and part of social and spiritual order[23]. The basis of conception of property in the societies of India is not a rigid and clear demarcation of claims belonging to an individual but is a sum total of societal and individual claims all of which need not be based on clear individual legal demarcation.
44th Amendment to the Constitution & the present scenario
The outburst against the Right to Property as a Fundamental Right in Articles 19 (1) (f) and 31 started immediately after the enforcement of the Constitution in 1950. Land reforms, zamindari abolition laws, disputes relating to compensation, several rounds of constitutional amendments, litigations and adjudications ultimately culminated first in the insertion of the word socialist in the Preamble by the 42nd Amendment in 1977 and later in the omission of the Right to Property as a FR and its reincarnation as a bare constitutional right in Article 300-A by the 44th Amendment in 1978.
Today, the times have changed radically. India is no more seen through the eyes of only political leaders with a socialist bias. It is India Shining seen through the corporate lenses of financial giants like the Tatas, Ambanis and Mahindras, with an unfathomable zeal for capitalism, money and markets. There is another angle. There is a scramble by industrialists and developers for land all over the country for establishment of Special Economic Zones. Violent protests by poor agriculturists have taken place to defend their meager land-holdings against compulsory acquisition by the State. In particular, the riots and killings in Singur, Nandigram etc. in a State (of West Bengal) ruled by communists has turned the wheel full circle. Socialism has become a bad word and the Right to Property has become a necessity to assure and assuage the feelings of the poor more than those of the rich. Soon after the abolition of the Fundamental Right to property, in Bhim Singh v. UOI[24], the Supreme Court realised the worth of the Right to Property as a Fundamental Right. In the absence of this Fundamental Right to property, it took recourse to the other Fundamental Right of Equality which is absolutely the concept of Reasonableness under Article 14 for invalidating certain aspects of the urban land ceiling legislation. Today, the need is felt to restore the right to property as a Fundamental Right for protecting at least the elementary and basic proprietary rights of the poor Indian citizens against compulsory land acquisition. Very recently, the Supreme Court, while disapproving the age-old Doctrine of Adverse Possession, as against the rights of the real owner, observed that The right to property is now considered to be not only a constitutional right or statutory right but also a human right.[25]Thus, the trend is unmistakable. By 2050, if the Constitution of India is to be credited with a sense of sensibility and flexibility in keeping with the times, the bad word socialist inserted in the Preamble in 1977 shall stand omitted and the Right to Property shall stand resurrected to its original position as a Fundamental Right.
Recent Approach by the Supreme Court
In a very recent PIL filed in the Supreme Court which was still pending in the Honble Court, it was held that the very purpose for which the right to property relegated to a mere statutory right in the late 1970s is not no longer relevant. It was argued by Harish Salve, the learned counsel for the petitioners that:
The right to property is made a statutory right in 1978 to abolish large land holdings with zamindars and rich and their distribution among landless peasants;
Having achieved the very purpose behind the legislative action in the late 1970s, the government should now initiate fresh measures to put right to property back in the fundamental rights.
Earlier, the apex court in its famous Keshavanandan Bharti case of 1973 had first termed some basic and unalterable parameters and features of the Indian state and its constitution like the country's democratic form of government, as its basic structure, which could not be changed at all even by constitutional amendment. But, in the judgement of the case, Justice H.R. Khanna had made a passing observation to the effect that fundamental rights accorded to the citizens' might not be a basic structure of the Constitution. This had left the scope open for changing or diluting the fundamental right of the citizens. Though later in 1975, while adjudicating another famous lawsuit[26]between erstwhile Prime Minister Indira Gandhi and prominent political leader of his times Raj Narain, Justice Khanna had tried to clarify that his observation had been misconstrued. Despite that clarification, the Janata Party government, under the advice of then law minister Shanti Bhushan, had changed the Constitution, removing the right to property from the list of fundamental rights.
Judiciary vs Legislature: The Tussle Begins
The saga of legislative manipulation of the right to property began with the First Amendment Act, 1951 by which the Articles 31-A and 31-B were inserted into the Constitution. Article 31-A was introduced by the Constitution First Amendment Act, 1951 wherein the Parliament defined ʺEstateʺ and continued by further amendments to extend its meaning so as to comprehend practically the entire agricultural land in the rural area including waste lands, forest lands, lands for pasture or sites of buildings. Under the said amendment, no law providing for acquisition by the state of an estate so defined or any rights therein of the extinguishment or modification of such rights could be questioned on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Articles 14, 19 or 31. Article 31-B and Schedule Nine introduced by the subsequent amendments was another attempt to usurp judicial power. It was an innovation introduced in our Constitution unheard of in any other part of democratic world. The legislature made void laws offending fundamental rights and they were included in Schedule Nine and later on the list was extended from time to time. Article 31-B declared that none of the acts or regulations specified in neither the Ninth Schedule nor any of the provisions thereof shall be deemed to be void on the ground that they are inconsistent with Part III, notwithstanding any judgments, decree or order of any court or tribunal to the contrary. By further amendment, the list was extended. This amendment discloses a cynical attitude to the rule of law and the philosophy underlying our Constitution. Autocratic power was sustained by democratic processes. The amendments in the realm of property substituted the Constitutional philosophy by totalitarian ideology. This totalitarian ideology is articulated by the deliberate use of amendments to add more and more laws to the Ninth Schedule. Originally 64 laws were added to the Ninth Schedule and more acts were added by the 4th, 17th and 29th Amendment Acts; 34th Amendment added 17 more Acts; 39thAmendment added 38 Acts; 42nd Amendment added 64 Acts; the 47th Amendment added 14 more Acts and by the end of this amendment the number of Acts in the Ninth Schedule had risen to 202; The 66th Amendment added 55 Acts raising the total to 257. The 75th Amendment Act, 1994 has been passed by the parliament, which includes Tamil Nadu Act providing for 69 percent reservation for backward classes under the Ninth Schedule. This is a clear misuse of the Ninth Schedule for political gains as the object of the Ninth Schedule of the Constitution is to protect only land reform laws from being challenged in court. After the addition of 27 more Acts to the Schedule by the 78th Amendment Act of 1995 the total number of Acts protected by the Schedule has risen to 284. The saga did not end here, the hornets nest had been stirred up already, the state made a consistent attempt by the process of amendment to the Constitution to remove the judicial check on the exercise of its power in a large area, and to clothe itself with arbitrary power in that regard. The history of the amendments of Article 31(1) and (2) and the adding of Articles 31(A) and (B) and the Ninth Schedule reveal the pattern. Article 31 in its first two clauses deals with the deprivation of property and acquisition of property. The Supreme Court held in a series of decisions viz. State of West Bengal v. Mrs. Bella Banerjee[27], State of W.B v. Subodh Gopal[28], State of Madras v. Namasivaya Muralidar[29], that Article 31, clauses (1) and (2) provided for the doctrine of eminent domain and under clause (2) a person must be deemed to be deprived of his property if he was substantially dispossessed or his right to use and enjoy the property was seriously impaired by the impugned law. According to this interpretation, the two clauses of Article 31 dealt only with acquisition of property in the sense explained by the court, and that under Article 31(1) the state could not make a law depriving a person of his property without complying with the provisions of Article 31(2). It is worth mentioning in this context that it was the decision in the Bella Banerjees case that actually induced the government to resort to the Fourth Amendment. In this case the Apex court through this landmark decision had insisted for payment of compensation in every case of compulsory deprivation of property by the state. It was held that clause (1) and (2) of Article 31 deal with the same subject, that is, deprivation of private property. Further the court held that the word compensation meant just compensation i.e. just equivalent of what the owner had been deprived of. It is also worthwhile to note here that this amendment also amended Article 305 and empowered the state to nationalize any trade. The Parliament instead of accepting the decision, by its Fourth Amendment Act, 1955 amended clause (2) and inserted clause (2-A) to Article 31. The effect of the amendment is that clause (2) deals with acquisition or requisition as defined in clause (2-A) and clause (1) covers deprivation of a personʹs property by the state otherwise than by acquisition or requisition. This amendment enables the state to deprive a person of his property in an appropriate case by a law. This places an arbitrary power in the hands of the state to confiscate a citizenʹs property. This is a deviation from the ideals of the rule of law envisaged in the Constitution. The amendment to clause (2) of Article 31 was an attempt to usurp the judicial power. Under amended clause (2), the property of a citizen could be acquired or requisitioned by law which provides for compensation for the property so acquired or requisitioned, and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined. It was further provided that no such law could be called in question in any court on the ground that the compensation provided by that law is not adequate. This amendment made the state the final arbiter on the question of compensation. This amendment conferred an arbitrary power on the state to fix at its discretion the amount of compensation for the property acquired or requisitioned. The non-justiciability of compensation enables the state to fix any compensation it chooses and the result is, by abuse of power, confiscation may be effected in the form of acquisition.
Then came the Seventeenth Amendment Act, 1964 by which the state extended the scope of Article 31-A and Ninth Schedule to protect certain agrarian reforms enacted by the Kerala and Madras states. The word estate in Article 31-A now included anyjagir or inam, mauf, or any other grant and janmam right in state of Kerala, Madras and also Ryotwari lands. It also added consequentially, the second proviso to clause (1) to protect a person of being deprived of land less than the relevant land ceiling limits held by him for personal cultivation,4 except on payment of full market value thereof by way of compensation. It also added 44 more Acts to the Ninth Schedule. The Supreme Court by various judgments considered the said amendments and restricted their scope within reasonable confines. The Supreme Court in Kocchuni vs State of Madras,[30] did not accept the plea of the state that Article 31(1) after amendments gave an unrestricted power to the state to deprive a person of his property. It held that Article 31(1) and (2) are different fundamental rights and that the expression ʺlawʺ in Article 31(1) shall be valid law and that it cannot be valid law unless it amounts to a reasonable restriction in public interest within the meaning of Article 19(5). While this decision conceded to the state the power to deprive a person of his property by law in an appropriate case, it was made subject to the condition that the said law should operate as reasonable restriction in public interest and be justiciable. The Court construed the amended provision reasonably in such a way as to salvage to some extent the philosophy of the Constitution. This became necessary as the definition of estate was simultaneously expanded to cover Ryotwari settlements in order to make agrarian reforms more effective.
But the Supreme Court in Srimathi Sitabai Devi v. State of West Bengal[31] held that Article 31(2) i.e., the provision relating to the acquisition or requisition of land was not subject to Article 19(5). It would have been logical if the expression ʺlawʺ in Article 31(2) was given the same meaning as in Article 31(1). In that event, the law of acquisition or requisition should not only comply with the requirements of Article 31(2) and (2-A), but should also satisfy those of Article 19(5). That is to say, such a law should be for a public purpose, provide for compensation and also satisfy the double test of ʺreasonable restrictionʺ and ʺpublic interestʺ provided by Article 19(5). The reasonableness of such a law should be tested from substantive and procedural standpoints. There may be a public purpose, but the compensation fixed may be so illusory that it is unreasonable. The procedure prescribed for acquisition may be so arbitrary and therefore unreasonable. There may be many other defects transgressing the standard of reasonableness, both substantial and procedural. But from a practical standpoint, the present dichotomy between the two decisionsKochunni and Sithabathi Devidid not bring about any appreciable hardship to the people, for a law of acquisition or requisition which strictly complies with the ingredients of clause (2) may ordinarily also be ʺreasonable restrictionʺ in public interest. Substantive deviations from the principles of natural justice may be hit by Article 14. Provision for an illusory compensation may be struck down on the ground that it does not comply with the requirement of Article 31(2) itself. That is if the courts make it mandatory to bring 31(2) in conformity with 31(1).
The Supreme Court in P Vajravelu Mudalier v. Special Deputy Collector[32] and also in the Union of India v. Metal Corporation of India[33] considered Article 31(2) in the context of compensation and held that if the compensation fixed was illusory or the principles prescribed were irrelevant to the value of the property at or about the time of acquisition, it could be said that the Legislature had committed a fraud on power and therefore the law was inadequate. The Supreme Court in three other decisions confined the bar of Article 31-A only to agrarian reforms. In Kochunni case the Court held that requirement of Article 31-A bars an attack on the ground of infringement of fundamental right only in the case of agrarian reforms, pertaining to an estate. In Ranjith Singh v. State of Punjab,[34] it was held that the expression ʺagrarian reformʺ was wide enough to take in consolidation of holdings as it was nothing more than a proper planning of rural areas. In Vajravelu decision the Supreme Court explained that there is no conflict between the said two decisions and pointed out that the latter decision includes in the expression of agrarian reforms, the slum clearance and other beneficial utilisation of vacant and waste lands. In a Ghulabhai v. Union of India,[35] the Supreme Court did not accept the contention of the state that the expression ʺEstateʺ takes in all waste lands, forest lands, lands for pastures or sites of buildings in a village whether they were connected with agriculture or not but ruled that the said enumerated lands would come under the said definition only if they were used for the purpose of agriculture or for purposes ancillary thereto. The result of the brief survey of the provisions of the Constitution and the case law thereon as it stood then may be stated in the form of the following propositions:
(1) Every citizen has a fundamental right to acquire, hold and dispose of the property.
(2) The state can make a law imposing reasonable restrictions on the said right in public interest.
(3) The said restrictions, under certain circumstances, may amount to deprivation of the said right.
(4) Whether a restriction imposed by law on a fundamental right is reasonable and in public interest or not, is a justiciable issue.
(5) The state can by law, deprive a person of his property if the said law of deprivation amounts to reasonable restriction in public interest within the meaning of Article 19(5).
(6) The state can acquire or requisition the property of a person for a public purpose after paying compensation.
(7) The adequacy of the compensation is not justiciable.
(8) If the compensation fixed by law is illusory or is contrary to the principles relevant to the fixation of compensation, it would be a fraud on power and therefore the validity of such a law becomes justiciable.
(9) Laws of agrarian reform depriving or restricting the rights in anʺestateʺthe said expression has been defined to include practically every agricultural land in a villagecannot be questioned on the ground that they have infringed fundamental rights.
Amending Power of the Parliament
Another path breaking development, which is till today being considered as the most trivial phase faced by the judiciary and legislature in entire Constitutional history of our nation was triggered off by the issue of right to property. As explained herein before there was an ongoing tussle between the judiciary and the legislature regarding the Constitutional provisions of right to property. The theory was simple. The judiciary was invalidating legislative action curbing property rights in order to uphold the sanctity of the Constitution. And whenever the judiciary invalidated a law by terming it as unconstitutional the legislature would conveniently amend the Constitution in order to uphold its supremacy over the judiciary. When this saga was going on, there emerged another set of litigations which actually intended to put an end to the legislative manipulation by questioning the amending power of the Constitution itself. These litigations were based on the relevance of Article 13(2) of the Constitution which provides that
the state shall not make any law which takes away or abridges the fundamental rights and any law made in contravention of fundamental right shall to the extent of contravention, be void. So the line of argument that was put forward by the litigants in the cases to be discussed hereinafter was questioning the validity of amending power of the parliament with regard to fundamental rights. It all began when the question whether fundamental rights can be amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India[36]. In this case the validity of the Constitution (1st Amendment) Act, 1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged. The Amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III, which fell within the prohibition of Article 13 (2) and hence was void. It was argued that the state in Article 12 included parliament and the word law in Article 13 (2), therefore, must include Constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article 368, and that the word law in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights. In Sajjan Singh v. State of Rajasthan[37], the validity of the Constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in Shankari Prasads case and held that the words amendment of the Constitution means amendment of all the provisions of the Constitution. Gajendragadkar, C J said that if the Constitution-makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.
The challenge to the Seven Essential Features of the Constitution by Article 31 C
Article 31C sought to challenge seven essential features of the Constitution.
1. Vital Distinction between Two Cases of Constitutional amendment:
(1) Where the fundamental rights are amended to permit laws to be validly pass which would have been void before amendment; and
(2) Where the fundamental rights remain unamended but the laws, which are void, as offending those rights are validated by a legal fiction that they shall not be deemed void.
The question is not merely of legislative device. In the first case the law is Constitutional in reality, because the fundamental rights themselves stand abridged.
2. Unconstitutional in reality but fictional
In the second case the law is unconstitutional in reality but is deemed by a fiction of law not to be so; with the result that Constitution breaking law is validated and there is a repudiation of the Constitution pro tanto. If the second case is permissible as a proper exercise of the amending power, the Constitution could be reduced to a scrap of paper. If 31C is valid, it would be equally permissible to parliament to so amend the Constitution as to declare all laws to be valid which are passed by the parliament or state legislatures in excess of their legislative competence, or which violate any of the basic human rights in Part III or the freedom of inter-state trade in Article 301. It would be equally permissible to have an omnibus article that not withstanding anything in the Constitution, no law passed by the Parliament or any state legislature shall be deemed to be void on any ground whatsoever. The insertion of one such article would toll the death-knell of the Constitution. (The fact that under the Supreme Courts judgement in the fundamental rights case[38] the Constitution cannot be so amended so as to alter the basic structure, is relevant to the point considered here, viz. that a quietus is given to the supremacy of the Constitution by the omnibus protection of Constitutionbreaking laws.) Thus Article 31C clearly damages or destroys the supremacy of the Constitution, which is one of the essential features. It gives a blank charter to the parliament and to all the state legislatures to defy and ignore the Constitutional mandate regarding human rights. Second, Article 31C subordinates the fundamental rights to the Directive principles of state policy and in effect abrogated the rights as regards laws, which the legislature intends or declares to be for giving effect to the directive
principles. The fundamental rights are paramount and are enforceable in the courts (Article 32 and 226), in contrast to the directive principles, which are not so enforceable (Article 37). To abrogate fundamental rights when giving effect to directive principles is to destroy another basic element of the Constitution. Ignorance and arbitrariness, injustice and unfairness, was thereafter not to be upon challenge on the touchstone of the invaluable basic rights.
1. Form & Manner Amenability of the Fundamental Principle
Third, it is a fundamental principle of the Constitution that it can be amended only in form and
manner laid down in Article 368 and according to that Articles basic scheme[39]. This principle was repudiated by Article 31C. That Article had the effect of virtually authorising the abrogation of the fundamental rights while they still remain ostensibly in the statute book. Criticism and debate, within and outside parliament, which would be evoked by a proposal to abridge a particular fundamental right are avoided, while various fundamental rights are effectively silenced. The absurd situation was that, whereas amendment of a single fundamental right would require a two-thirds majority (Article 368), a law falling within 31C which overrides and violates several fundamental rights could be passed by a simple majority.
2. Role of Fundamental Rights as The Essential Feature of the Constitution
Fourth, the fundamental rights constitute an essential feature of the Constitution. Within its field Article 31C completely took away:
The right to acquire, hold and dispose of property [Article 19(1)(f)];
The right not to be deprived of property save by authority of law [Article 31(1)];
The right to assert that property can be acquired or requisitioned by the state only for a
public purpose [Article 31(2)]; and
The right to receive an amount, however small, when the state seizes the property [Article 31(2)].
In short, Article 31C expressly authorised outright confiscation of any property, large or small,
belonging to anyone, poor or rich, citizen or non-citizen. Further, Article 31C provides for the wholesale smothering of various rights which were all together distinct from right to property and are totally irrelevant to the Directive principles of state policy laid down in Article 39(b) and (c). Even the rights to equality before law, to freedom of speech and expression, to assemble peaceably and without arms, to form associations and unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, and to practice any profession or to carry on any occupation, trade or business which are so vital for the survival of the democracy, the rule of law, and the integrity and unity of the republic, can be violated under Article 31C under the cloak of improving the economic system.
3. The Directive Principle Of State Policy
Fifth, it was not even permitted to raise the question whether the proposed law will result, or is
reasonably calculated to result, in securing the directive principle laid down in Article 39(b) and (c). The wrong done to the people who are deprived of their basic freedoms is worsened by protection to those laws, which may not be at all calculated to give effect to the directive principles. The right to move the Supreme Court to enforce other fundamental rights is itself a fundamental right (Article 32) and is a basic feature of the Constitution. This right is destroyed when a fundamental right is made unenforceable against a law purporting to give effect to the directive principles and at the same time the court is precluded from considering whether the law is such that it can possibly secure any directive principle[40].
4. What is the basic principle of the constitution???
Sixth, the basic principle of the Constitution is that no state legislature can amend the fundamental rights or any other part of the Constitution. This essential feature is repudiated by 31C, which empowers even state legislatures to pass laws, which virtually involve a repeal of the fundamental rights. The wholly irrational consequence is that whereas state legislatures cannot abridge a single fundamental right, it was now open to them to supercede a whole series of such rights. In substance, the power of amending or overriding the Constitution is delegated to all state legislatures, which is not permissible under Article 368[41].
N. A. Palkhivala rightly remarked in this regard Hereafter liberty may survive in some states and not in others, depending on the complexion of the political party in power. The state of Meghalaya has already passed a law prohibiting the residents of other parts of India staying in Meghalaya for more than six months without permit.
Due protection to minorities
One of the essential features of the Constitution is to provide for due protection to minorities and their cultural and educational rights. The fundamental rights under Article 14,19 and 31, which were sought to be superseded by Article 31C are necessary to make meaningful rights of the minorities, which are, guaranteed by Articles 25 to 30. Under the guise of giving effect to the directive principles, a number of steps may be taken which may seriously undermine the position of regional linguistic, cultural and other minorities. The proviso inserted by the 25th amendment is a very tall tale. It expressly provides that where the property of an educational institution established and administered by a minority is acquired, the amount fixed for the acquisition should be such as not to restrict or abrogate the right guaranteed under 30(1). The clear implication is that when property is acquired in any other cases, an amount can be fixed which abrogates or restricts any other fundamental rights, for instance, the right to freedom of speech and expression [Article 19(1)(a)], to form associations or unions [Article 19(1)(c)], or to practice any profession or carry out any occupation, trade or business [Article 1991)(g)], or the right of an religious community to establish and maintain institutions for religious or charitable purposes (Article 26). Further, if a law violates the rights of the minorities under Articles 25 to 30, such law, being invalid, would be no law at all and therefore deprivation of property under such a law would violate Article 31(1) which provides that no person shall be deprived of his property save by authority of law, i.e. a valid law. But since 31(1) is one of the articles abrogated by Article 31C, minorities can be deprived of their properties held privately or upon public charitable or religious trust, by a law which is invalid. In sum, Article 31C is a monstrous outrage on the Constitution. In the entire history of liberty, never were so many millions of people deprived of so many fundamental rights in one sweep as by the insertion of Article 31C. De Tocqueville remarked that nothing is more arduous than the apprenticeship of liberty. N A Palkhivala rightly remarks with grief in this context that It is a measure of our immaturity as a democracy and the utter apathy of our people that the betrayal of our basic freedoms excited hardly any public debate.
7. The Four Attributes of a Totalitarian State
The four attributes of a totalitarian state are:
(1) Constitutional to the ruling party to favour its own members,
(2) Denial of the right to dissent or to oppose,
(3) Denial of various personal freedoms, and
(4) The states right to confiscate anyones property.
All these four attributes were implicit in Article 31C. The Article had a built in mechanism for the dissolution of the true democracy that India had been so far, cession of rule of law and possible disintegration of the nation. The governments argument was that though the power of amending the Constitution must be held to be limitless after the 24th amendment and it can destroy human freedoms under Article 31C, the legislature will not use the power. The answer to this is contained in the words of W B Yeats No Government has the right, whether to flatter fanatics or in mere vagueness of mind, to forge an instrument of tyranny and say that it will never be used. Moreover, laws characterized by stringent injustice have in fact been passed in pursuance of the amended Article 31(2) and 31C. General insurance companies have been nationalized under a law, which provided for fixed amounts payable on the acquisition of all their assets and liabilities, the amounts having been fixed on a basis which was not officially disclosed either to parliament or to the public but which transpired to be positively absurd. Some companies found that the amounts they received were less than the value of their government securities and the amounts of their bank balance and of their currency notes after providing for all their liabilities; in other words, there was a blatant repudiation of national debt. One insurance company was paid Rs 10, 000 for acquisition of its net assets worth more than Rs 23,00,000. Laws for acquisition of coal mines were also passed, under which all assets of the nationalised companies were taken over but none of their liabilities; and further, all the creditors of the companies are statutorily deprived of every charge or security which had been created on the companys assets. The net result was that the banks, which had advanced money to the companies, lost their principal, interest and security; debenture holders lost their entire capital; ex-employees of the companies who retired before nationalisation lost their right to pension and other dues; and traders lost the price of the goods they had given on credit. Thus innumerable innocent citizens found their property virtually confiscated outright as a side effect of the law expropriating the colliery companies. Those companies could not discharge their liabilities because all their assets are gone and also the derisory amounts due to them on nationalisation was to be paid to the Commissioner of Claims who would not be appointed at all for years. Similar nationalisation laws were passed for confiscation of all assets of sick textile mills, with statutory abrogation of all mortgages and other securities in favour of creditors, with the same disastrous consequences for innocent third parties. Article 31C had damaged the very heart of the Constitution. N A Palkhivala remarked This poisonous weed has been planted where it will trouble us a hundred years, each age will have to reconsider it.
The Fundamental Rights Case and its attitude towards the right to property
This decision which changed the entire scenario of the Indian Constitution did the three following important changes
1. Through Article 31 C took away the right to acquire, hold and dispose off the property under Article 19(1) (f)
2. Right to property under Article 19(1) (f) did not pertain to the basic structure of the constitution (Honble Justice. H.R.Khanna)
3. Article 19(1) (f) conferred citizens the right to acquire, hold and dispose off the property under Article 19(1) (f) which formed a part of group of articles under the heading Right to Freedom
4. There is no necessity for an elaborate argument to demonstrate that property is intimately connected with the Right to Freedom.
Article 300-A
Chapter IVRight to Property, 300A. Persons not to be deprived of property save by authority of lawno person shall be deprived of his property save by authority of law.
The 44th amendment act which deleted article 19(1) (f) and introduced this article brought out the following important changes:
1. 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 rights of the minorities to establish and administer educational institutions of their choice.
2. Similarly, the right of persons holding land for personal cultivation and within ceiling limit to receive market compensation at the market value will not be affected.
3. 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.
Problems Posed by the Removal of Right to Property from Fundamental Rights
The rights conferred by Article 19(1)(f) and Article 31 read with the undernoted entries[42]were so closely interwoven with the whole fabric of our Constitution that those rights cannot be torn out without leaving a jagged hole and broken threads. The hole must be mended and the broken threads must be replaced so as to harmonise with the other parts of the Constitution. The task is not easy, and courts will be called upon to answer problems more formidable than those raised by the Article 31 after it was amended a number of times. However some of the problems which will arise and the probable lines of solution, are considered below:
(i) That Articles 19(1) (f) and 31(2) dealt with a different, but connected, aspects of the right to property is clear from several Supreme Court decisions which dealt with the co relation of those two Articles.
(ii) The correct view was that the two Articles were mutually exclusive. But one judgement which was soon corrected and another judgement which was a judgement per incuriam, to the view that Articles 19(1)(f) and 31(2) were not mutually exclusive. This judicial conflict was resolved by 25th Amendment, which introduced in Article 31 a new clause (2-B) which provided that Nothing in Article 19(1)(f) shall effect any such law as is referred in clause (2). The validity of this Amendment as unanimously upheld in the Kesavananda case. The reason for this mutual exclusiveness was that when property is acquired for a public purpose on payment of compensation, the right of a citizen to hold property is gone and the question of his right to hold property subject to reasonable restrictions does not arise.
(iii) Further, Article 19(1)(f) that conferred citizens the right to acquire, hold and dispose of property formed part of a group of articles under the heading Right to Freedom. It requires no elaborate argument to demonstrate that property is intimately connected with the right to freedom. Article 31 appeared under the heading Right to Property; for the right to freedom conferred by Article 19(1)(f) would be worth little if the property when acquired could be taken away by law. Hence Article. 31 provided that private property could be acquired only for a public purpose and on payment of compensation (later amount). There is nothing in the Statement of Objects and Reasons to show that Parliament no longer looks upon the right to acquire, hold and dispose of property as a part of the Right to Freedom.
(iv) The retention of Article. 19(1)(a) to (e) and (g) is a clear indication to the contrary. That sub-clauses (d), (e) and (f) of Article. 19(1)(f)(1) were interlinked is clear from their provisions as well as from sub-Article (5) which governed each of those sub-clauses. The meaning of Article 19(1) (f) has been considered and it is being submitted that the Supreme Court correctly held that the right conferred by Article 19(1)(d) was not a right of free movement simpliciter, but a special right to move freely throughout the territory of India with a view to secure, among other things, the unity of India which a narrow provincialism would deny.
(v) This right of free movement was not limited to travelling throughout India, because it was accompanied by the further right conferred by Article 19(1) (e) to reside and settle in any part of India, as also the right conferred by Article 19(1)(f) to acquire, hold and dispose of property, in any part of India. But a right to settle in any part of India means not only a right to have a place to live in, but also a place to work in, for Article 19(1)(g) conferson every citizen the right to practise any profession, or to carry on any occupation, trade or business.
(vi) Further, Article 19(1)(a) confers on every citizen the right to the freedom of speech and expression, which right includes the freedom of the press[43]a right which is basic to democracy. But a press needs a building or buildings to house it, and movable property to work it, so that without the right to acquire, hold and dispose of property, there can be no freedom of the press. And the same is broadly true of the fundamental right conferred by Article 19(1)(c)-the right to form associations or unions-for normally the working of associations and unions involves the right to acquire, hold and dispose of property. What then is the effect of deleting Article 19(1)(f), which conferred the right to acquire, hold and dispose of property, and of deleting Article 31 which provided for the acquisition of property for public purpose on payment of compensation (later called amount)?
To these questions the Statement of Objects and Reasons gives no answer-it is doubtful whether those who framed the property amendments were even aware of their effect on other fundamental rights retained in Article 19(1)(f)(1), and on the political unity of India which Article 19(1)(f)(1)(d), (e), (f) and (g) was intended, inter alia, to subserve, along with other provisions of our Constitution. At any rate, the framers on these amendments have provided no solutions for the problem, which the property amendments inevitably raise. One further complication must be noted here. Although Article 19(1)(f) and Article 31(2) had been made mutually exclusive by Article 31(2-B), there was no such mutual exclusiveness between Article 31(2) and the right to practise a profession or to carry on any occupation, trade or business conferred by Article 19(1)(g). This right was subject to restrictions mentioned in Article 19(1)(f)(6). But trade and business is capable of being acquired, as Section 299(2) of the Government of India Act, 1935, clearly showed. By what test is the validity of the law acquiring property, and a law acquiring trade or business, including industrial and commercial undertakings, to be judged? The 25th Amendment inserted in Article 31 a new sub clause (2) with the following proviso:
Provided that in making any law for the compulsory acquisition of any property of an educational institution established and administered by minority, referred to in clause (1) of Article 30, the State shall insure that e amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
This proviso recognised the fact that the valuable right conferred by Article 30(1) on minorities to establish educational institutions of their choice would be destroyed if adequate compensation was not made for acquisition of the property of such institutions. Political expediency may require that minorities should not be alienated by depriving them of their cherished rights, especially when minorities are as large as they are in India. Special rights are conferred on minorities because in a democratic country with adult universal suffrage, majorities by virtue of their numbers can protect themselves. But it does seem illogical and unjust to leave out majority educational institutions from the same protection, unless it was believed that majorities, deprived of their power to oppress minorities, would not wish to oppress themselves. Thus, in State of Kerala v. Mother Provincial,[44] Counsel for the state told the Supreme Court that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority instutitions also. Again, the 17th Amendment had introduced in Article. 31A(1)(e) the following proviso: Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof. To take away land under personal cultivation without compensation would be unfair and unjust and the above proviso prevented such injustice being done. It would be equally unfair and unjust to take away from a person following a vocation, other than agriculture, the tools of his trade, or the property by which he earns his living. These observations have been made because the above provisos relating to property, which have been retained in the chapter on fundamental rights, recognise the injustice of confiscatory laws which impinge on fundamental rights. In the absence of any rational explanation in the Statement of Objects and Reasons for deleting the right to property from the category of fundamental rights, the relief against injustice provided by the 44th Amendment appears to have been guided by political expediency-large minorities and tillers of the soil have votes to give or withhold. Or it may be that the reason was more complex. The Janata Party having redeemed its pledge, it was left to the Supreme Court to determine, in the light of the provisions of our Constitution, whether the pledge can be constitutionally redeemed, and if so to what extent. Likewise there are a lot many aspects and long term evils given rise by 44th Amendment. In short the above discussion shows that it is easy to make an electoral promise to delete right to property from the list of fundamental rights; it is not easy to work out the consequences of that promise and embody them in a Constitution Amendment Bill. Normally, amendment proposing far reaching changes in the Constitution are submitted to a Select Committee for scrutiny, and report. If that course was not followed, it is difficult to resist the conclusion that the sponsors of the property amendments realized that those amendments would not stand the scrutiny of a Select Committee with a power to examine witnesses. The course of first redeeming an electoral promise by amending the Constitution and then leaving it to the courts to work out the consequences of the amendments, must appear attractive. And that course was followed, in the confident belief that the court would not shirk their duty of interpreting the Constitution even if Parliament preferred silence to speech as to its real intentions.
Defects of the 44th Amendment Act
The amendment was brought out without realizing the following draw backs:
(1) The close relation of property with other fundamental rights, which the Janata Party was pledged to restore;
(2) The effect of this change on the legislative power to acquire and requisition property; and
(3) The correlation of fundamental rights to Directive principles of state policy.
Implications
(i) The Right to Property would now be a Constitutional Right and not a Fundamental Right. A legislation violating the constitutional right to property could now be challenged only in High Courts and not directly in the Supreme Court.
(ii)Due to the deletion of Article 31 the Government was no longer under an obligation to compensate persons whose land had been acquired as per a law passed by Parliament.
As of now, it is, beyond the scope of my research and understanding as to whether Proposition (ii) i.e. deprivation of property without compensation is still legally tenable especially in light of the Supreme Court's ruling, in the Maneka Gandhi case, which held that each and every provision of the Constitution had to be interpreted in a just, fair and reasonable manner. Therefore any law depriving a person of his property shall have to do so in a reasonable manner. It could be argued that the only reasonable manner to deprive a person of his property would be to offer him, reasonable compensation for the same. This discussion however is not completely relevant for the purpose of this post. The only relevant point is the fact that under the Constitution no person can be deprived of their property without the authority of law.
The two relevant concepts that now require to be examined are 'property' & 'Authority by law'.
'Property' as understood in Article 300A:
The obvious first question is as to whether or not 'intellectual property' such as 'clinical trial data' would fall within the definition of 'property' as understood in Article 300A. There seems to be enough authority to support the proposition that 'property' as understood in Article 300A is wider than just 'immovable property'. One such authority in the context of 'intellectual property rights' is the judgment of the Supreme Court in the case of Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd. (SCIL)[45]. In pertinent part the Court held the following: The ownership of any copyright like ownership of any other property must be considered having regard to the principles contained in Article 19(1) (g) read with Article 300A of the Constitution, besides, the human rights on property; The judgment goes on further to say that; But the right of property is no longer a fundamental right. It will be subject to reasonable restrictions. In terms of Article 300A of the Constitution, it may be subject to the conditions laid down therein, namely, it may be wholly or in part acquired in public interest and on payment of reasonable compensation. The fact that the Supreme Court recognizes 'copyright' to fall within Article 300A is indicative that even 'clinical trial data', collected after extensive experimenting, should in all likelihood fall within the definition of 'property' as understood in Article 300A.
'Authority by law' as understood in Article 300A: The term 'law' as defined in Article 300A is understood to mean only legislation or a statutory rule or order. The term 'law' as understood by Article 300A will not include executive fiats. The source of the 'law' depriving a person of his property has to be necessarily traced, through a statute, to the legislature.
While summarizing the entire concept of Right to Property..
Once upon a time, it was thought that the so called personal rights like the right to vote, right to freedom of speech or personal liberty occupied a higher status in the hierarchy of values than property right. As a result the courts were more astute to strike down legislations, which impinged upon these rights, than upon property rights. But Learned Hand, a great judge, felt that the distinction between the two was unreal and said that nobody seems to have bestowed any thought on the question why property rights are not personal rights. The Supreme Court of America which once gave hospitable quarter to the distinction between personal rights and property rights and accorded a preferred position to the former, has given a decent burial both to the distinction and the preferred status of the so called personal rights or liberties in 1972 by saying the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, not less than the right to speak or the right to travel is in truth a personal right, whether the property in question be a welfare cheque, a home or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.
That rights inproperty are basic civil rights has long been recognised.[46]This again would show that if the fundamental right to freedom of speech or personal liberty pertains to basic structure, there is every reason that the fundamental right to property should also pertain to it, as the former set of rights could have no meaning without the latter. Protection of freedom depends ultimately upon the protection of independence, which can only be secured, if property is made secure. Learned Hand long ago spoke of the false hope of the courts protecting liberty if it dies in the hearts of men. One reason, which would induce its death in their hearts, is an atmosphere in which liberty derives no sustenance from a sense of security to property created by putting it beyond the outcome of the vote of shifting majorities. Our Constitution was framed by an extraordinary body of men, a body of men whose combined virtues and talents have seldom if ever been equaled in this country. They possessed that rare quality of mind, which unites theory and practice. They understood the unique conditions of the country and the enduring needs and aspirations of the people, and they adapted their principles to the character and genius of the nation. They visualised a society in which every citizen should be the owner of some property not only as a means of sustenance but also as a zone of security from tyranny and economic oppression and they put that right above the vote of transient majority. They enacted Article 39 and enjoined upon the state to break up the concentration of property in the hands of the few and its distribution among all. There is no reason today to think that the type of society they visualised is in any way unsuited to our present condition. Property is the most ambiguous of all categories. It covers a multitude of rights, which have nothing in common, except that they are exercised by persons and enforced by the state. It is therefore idle to present a case for or against private property without specifying the extent or value thereof. Arguments, which support or demolish certain kinds of property, have no application to others. Considerations, which are conclusive in one stage of economic development, may be irrelevant in the next. For things are not similar in quality merely because they are identical in name. If it be assumed that the fundamental right to property does not pertain to basic structure and can be amended by parliament without a referendum as proposed in the case of other fundamental rights regarding citizens; then there can be no doubt that property is durable and nondurable consumer goods, and in the means of production worked by their owners must be protected by the higher law on the same logic on which it is proposed to safeguard by that law the interest in land of small tenure holders and of agriculturists within ceiling limit. The owners of these properties must be paid compensation based on market value in the event of the state or a corporation owned by the state acquiring them for public purpose. While these types of property can be justified as a necessary condition of a free and purposeful life, no such considerations are available in respect of the property in the means of production not worked or directly managed by their owners as it is not an instrument of freedom since it gives power not only over things but through things over persons. It is precisely the concentration of this type of property which the framers of the Constitution wanted to break up under Article 39 and distribute among the have-nots and there is no injustice in determining the compensation payable to the deprived owners on principles of social justice.[47] But this is where we have to really spare a thoughtJustice K K Mathew had the most eloquent and liberal view in support of property rights. However, at the end of his pursuit of defending property rights even he seems to have got misguided by the so-called conflict between directive principles and fundamental rights. Granting absolute right to property and also having to uphold the sanctity of a directive principle against concentration of wealth becomes almost an impossible thing to rationally achieve for any fair state which emerges and thrives on the foundation of rule of law. So let the Owl of Minerva take flight. Fundamental right to property is dead. But long live right to property.
[1] Capitalism and Freedom by Milton Friedman
[2] Class Of Civilization by Samuel Huntington
[3] P.K.Tripathi- Right of Property After 44th Amendment Better Prosecuted Than Ever Before, Air 1980(51) Journal.
[4] V.N.Shukla: The Constitution of India, p.144 (1969 Edn.).
[5] State of Bihar v. Kameshwar Singh, AIR 1952 SC 252
[6] Commr. Hindu Religious Endowment v. Swamiyar, AIR 1954 SC 282
[7] Dwaraka Das Srinivas v. Sholapur Spg and Wvg. Co. Ltd, AIR 1958 SC 328
[8] Bombay Dyeing Co v. State of Bombay, AIR 1958 SC 328
[9] Supra note 6
[10] Supra note 5
[11] State of Kerala v. Padmanabhan Nair, (1985) 1 SCC 429
[12] AIR 1954 SC 170.
[13] Vasanlal Maganbhai Sanjanwala v. State Of Bombay, AIR 1961 SC 4: Attar Singh v. State of U.P, AIR 1959 SC 564
[14] Raghubir Singh v. Court of Wards, AIR 1953 SC 373 paras 8 to 10
[15] Bishan Das v. State of Punjab, AIR 1961 SC 1570
[16] The Bank Nationalisation Case (Rustom Cavasjee Cooper v. Union of India), (1970)1 SCC 248
[17] Supra.
[18] Paragraph 112 of the Bank Nationalisation Case
[19] Paragraph 113 of the Bank Nationalisation Case
[20] State of T.N v. L. Abu Kavur Bai, (1984) 1 SCC 515
[21] K.R.Lakshmanan v. State of T.N, (1996) 2 SCC 226
[22] Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705
[23] See, J.M.D.; Religion Law and State in India; Oxford University Press, New Delhi, 1999; pp.131-132
[24] (1981) 1 SCC 166
[25] The Times of India, 24th September, 2008
[26] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
[27] AIR 1954 SC 170
[28] (1954) SCR 587
[29] (1964) 6 SCR 35
[30] AIR 1960 SC 1080
[31] (1967) 1 SCR 614
[32](1965) 1 SCR 614
[33] (1967) 1 SCR 255
[34] AIR 1965 SC 632
[35] AIR 1967 SC 1110
[36] AIR 1951 SC 455, P.458
[37] AIR 1965 SC 845
[38]Keshvananda Bharathi v. State of Kerala, AIR 1973 SC 1461
[39] Cf Attorney-General of New South Wales v. Therthtown, 1932 AC 526
[40] In Keshvananda Bharathi v. State of Kerala, AIR 1973 SC 1461 the Supreme Court held this provision barring the Courts jurisdiction to be void.
[41] Cf In re The Initiative and Referendum Act 1919 AC 935,945 (P C); Shama Rao vs Union Territory of Pondichery [1967] 2 SCR 650, 653-54,659-60, AIR 1967 SC 1480,1484, 1487; Attorney General of Nova Scotia vs Attorney-General of Canada 1951 CLR, SC, 31, 37-38.
[42] Till the Seventh Amendment, the entries ran as follows: Entry 33, List I: Acquisition and requisitioning of property for the purpose of the Union; Entry 36, List subject to the provisions of entry 42 of List III; Entry 42, List III: Principles on which compensation for property acquired or requisitioned for the purpose of the Union or the State or for any other public purpose, is to be determined, and the form and manner in which such compensation is to be given. The above entries were deleted by the Seventh Amendment which came into force from 1 November, 1956, and the following new Entry 42 was substituted in List III: Acquisition and Requisitioning of Property.
[43] Romesh Thappar v. State of Madras, (1950) SCR 594, 597.
[44] (1971) 1 SCR 734.
[45] 2008
[46] Lynch v. Household Corpn. 405 US 538, 552.
[47] K K Mathew, 1978, Basic Structure and Fundamental Right to Property, 2 SCC pp 65
No comments:
Post a Comment