Right to Property Debate03 Sep 2011
In recent times, there have been multiple incidents where farmers were protesting against the Government as it took away the land from them without paying the adequate compensation and against the wishes of many farmers. The whole debate about Right to Property needs to be re-initiated under this background. The Right to Property, which was enshrined in the original Constitution of India, as Fundamental Right should be re-instated by voiding the changes made by 44th Amendment Act of 1978 in this respect.
Forty-Fourth Amendment Act of 1978 omitted Art 19(1) (f) with the net result being:-
- The right not to be deprived of one’s property save by authority of law has since been no longer a fundamental right. Thus, if government issues a fiat to take away the property of a person, that person has no right to move the Supreme Court under Art 32.
- Moreover, no one can challenge the reasonableness of the restriction imposed by any law the legislature made to deprive the person of his property.
Art 31(2) in the original Constitution embodied the principle that if the Government makes a compulsory acquisition or requisitioning of private property, then it must take following actions:-
a) make a law
b) such law must be for public purpose
c) compensation must be paid to the owner of the property
First, the 25th Amendment Act, 1971 replaced the requirement of ‘compensation’ by ‘an amount’, the adequacy of which cannot be challenged in any court. Then the real killer 44th Amendment Act, 1978 came and omitted the Art 31 along with Art 19(1) (f). Thus individual’s right to compensation for loss of property was also lost.
If we see the current situation then it is because of the lack of willingness of the government to understand and empathise with the people of India. The argument that the Legislature put in favour of the act was that the right to property was only being converted into a legal right. It means that Art 19(1) (f) and Art 31, which were limitations on the Legislature itself, are replaced and in place of them, the Amendment Act has installed the Legislature as the guardian of the individual’s right to property. However, in the present-day scenario the guardian itself has become a devil (rakshak bana bhakshak). In addition, the argument itself is flawed. If the Legislature can be installed as the guardian and it is so infallible and innocent then why do we have the Fundamental Rights. Delete them all. It was to safeguard against the tyranny of Legislature that Fundamental Rights with judicial review were introduced in our Constitution.
In my opinion, the original set of Fundamental Rights should be re-instated with power of legislature to impose reasonable restriction and open to judicial review. First of all a positive debate on the issue should start so that the issue of acquisition and requisitioning of land does not become just a political issue for the sake of elections, but for the welfare of the people. Preamble still says that we still are Socialist. Thus, our aim is a welfare state – not of some rich people living in small pockets in the country but the people of whole of India.
- Recommendations/observations of Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on the Judicial Standards and Accountability Bill, 2010 (indialawyers.wordpress.com)
- 'Many advantages in Lokpal as a constitutional body' (indialawyers.wordpress.com)
1. Dr. Durga Das Basu, Introduction to the Constitution of India,20th Edition Reprint 2009, LexisNewis Butterworths Wadhwa Nagpur, New Delhi