transfer of Property Act,
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This article is written by Aditi Rana who is pursuing a Certificate Course in Advanced Civil Litigation: Practice Procedure and Drafting from LawSikho.

Introduction

Property can be immovable as well as movable. It can be a house, a store or a simple piece of land. It can also be intellectual property. It can be a creation of a writer etc.

The most common form of property that we understand and I am going to discuss in this article is land. India being an agricultural country and with at least 50% of the population being dependent on agriculture it was really important to protect the rights of the farmers and to preserve agricultural land and maintain its value. 

Different rulers came to our country and tried to change our customs and traditions and impose their own rules on us. When we got independent it was a fresh start, the framers of the Constitution wanted every citizen to feel equal, free and built a nation that respected and celebrated humanity in a beautiful form. They didn’t want even a single trace of the past inequalities to be included in the new fate of our nation.

Fundamental Rights

Taken from the Constitution of the United States of America by the drafting committee of the Constitution of India are one of the most important rights and the most beautiful feature of the Indian Constitution.

Originally there were seven fundamental rights provided in the Indian Constitution but then the Right to Property which was given in Article 19(f) was repealed as a fundamental right and a new Article 300A was inserted in the constitution of India, which was declared as a constitutional right.  

Causes for Removal of Right to Property as a fundamental right

Before India got Independence, the poor peasants were burdened and crushed by the zamindars and the landlords. It was really important to build a Constitution that gives equal rights and opportunities to all the citizens. 

For the development of the nation the state required to have property whether to build hospitals, institutions etc. for the people and when the government tried to take land for the benefit of the society as a whole it became quite controversial.

Article 31 A and B was inserted by the Parliament in the First Amendment Act of 1951. Article 31 that provided compensation to the person if their property was occupied by the state was later repealed under the forty-fourth amendment act. Now, after Article 31 has been repealed, the cases under the right to property, do not guarantee compensation to the landowner.

When the right to property was a fundamental right every other person could move to the Hon’ble Supreme Court of India under Article 32 claiming the infringement of their rights. With every other person moving to the Apex Court the situation became uneasy. Also, the majority of cases between people and the state governments created a troublesome scenario. This amendment ended the situation and introduced the right to property as a constitutional right instead of a fundamental right.

Forty-Fourth Amendment Act

The forty-fourth amendment made by the Parliament in the year 1978 repealed Article 19(1)(f) and Article 31. It led to the addition of Article 300 to nullify the effect of Supreme Court Judgements to protect certain laws from being challenged on the grounds of infringement of fundamental rights. Right to Property created a lot of agitation and so the Parliament repealed the Right to Property and inserted Article 300A which falls under Part XII of the Indian Constitution. With the implication of the amendment, no compensation rights have been guaranteed in case of states acquisition.

Landmark Judgements

Waman Rao v. Union of India

In this case, there was an act named Maharashtra Agricultural and Lands Act 1962. It was amended now and then. A petition was filed in the court stating that the act violates the fundamental rights, the provisions under Article 31A and 31B were also challenged. The High Court rejected the plea and a case was filed under the name of Dattatraya versus State of Maharashtra in the Supreme Court.

Waman Rao case is the review of this case. This case challenged the validity of Article 31A. The questions that arose, in this case, were whether the Parliament had exercised its power in amending the Article and repealing it? Whether Article 31A provided the protection required by the Articles to be challenged? Can Articles 31B and 31C be challenged for the violation of Fundamental Rights?

It was held that it is not necessary that if a case is violating the fundamental rights then it is also damaging the basic structure. The Supreme Court held that no State policy would be entitled void because it is inconsistent with the fundamental rights.

The judgement was given by a ratio of 4:1 in this case. The court held all three articles valid and held that the main cause of the parliament was to maintain the economic gap in society.

It also clarified the confusions caused by the case of Kesavananda Bharati and said that all the acts and regulations placed under the ninth schedule before the date of Kesavananda Bharati’s judgement cannot be challenged in the court of law on the ground of violation of Fundamental Rights. Although the court held that the rules and regulations that pass the basic structure shall be applicable.

The basic issue, in this case, was the tussle of power between the Parliament and the Hon’ble Supreme Court. The Supreme Court has always made sure that no one exercises their power and laws are not unnecessarily amended for the benefit of any individual upon the society.

Ambika Mishra v.State of Uttar Pradesh

The Supreme Court held the unconstitutionality of Article 31A on the test of basic structure. In Minerva Mills case the Supreme Court had held that the whole of Article is unassailable on the stare decisis basis.

Glimpse of ideologies at Constitutional Debates

The right to property was a right already mentioned in the constitution but there were a few members of the constituent assembly who believed that the right to property should be abolished including K.T. Shah, he believed that the government can take away any property they want on the other hand K.M. Munshi believed that no person should be deprived of their property on unreasonable grounds just like the American Constitution. The debate that now arose was whether the right to property should be provided constitutional protection?

The government was required to perform land acquisition but was in agony whether the lands of the people should be taken up as it was the only resort for development. The public use of land was also confusing as it was crucial to decide whether the land of normal people should be taken over by the zamindars. While a few argued that zamindars were just tax collectors and collected tax on behalf of the British government but taking away their whole land without compensation would be unjust. The argument exceeded its core when the opinions were presented by a few members of the assembly that zamindars required no compensation and the zamindari system should be abolished at every cost.

Finally, it was decided that land acquisition was the resort for social reform and industrialisation and compensation should be given to the individual whose property was getting acquired but providing compensation at a market rate and the rift between the legislature and judiciary finally concluded in the elimination of the right to property as a fundamental right and inserting it as a constitutional right.

Right to Property in the United States of America

The Fourth Amendment Act of the U.S. Constitution protects people from ‘seizures and searches’ on unreasonable grounds, this amendment ensures that people get privacy in their property.

The Fifth Amendment act protects the rights of private properties as it states that no person shall be deprived of their property without fair procedure or proper trial. 

Conclusion

Right to Property though removed from the Fundamental Rights that fall under the Part III of the Constitution is still a legal right and a constitutional right. It does not mean that a person cannot move to any court and is helpless, a case of right to property can be held in an ordinary court of law and the Forty-Fourth Amendment Act has made sure no one directly approaches the Hon’ble Supreme Court so that it maintains social justice. Also, since now it does not fall under the fundamental rights so it does not give the liberty to directly move to the Supreme Court under Article 32 for its infringement. Social Justice means distributing the property equally amongst the sections of society.

The basic structure cannot be amended and was amended was held in the landmark case of Kesavananda Bharati. Right to Property is now not a part of the basic structure of the Constitution and hence it can be amended. 

References

  1. 1980 AIR 1762
  2. (1981) 2 SCC 362
  3. http://www.legalservicesindia.com/article/1435/Emergence-of-Article-31-A,-B-and-C-and-its-validity.html
  4. https://www.youtube.com/watch?v=SnyVU3LsFy0
  5. J N Pandey Constitution of India
  6.  https://blog.ipleaders.in/brief-overview-waman-rao-v-union-india/
  7. http://www.pbs.org/tpt/constitution-usa-peter-sagal/rights/privacy-and-property-rights/#:~:text=The%20Fourth%20Amendment%20protects%20Americans,and%20seizures%E2%80%9D%20by%20the%20government.&text=The%20Fifth%20Amendment%20protects%20the,law%2C%E2%80%9D%20or%20fair%20procedures.
  8. https://www.thinkpragati.com/opinion/1849/founding-fathers-right-property/

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