Project on

RIGHT TO PROPERTY AFTER 1978

Submitted in the partial fulfillment of

B.Com.LL.B (8th semester)

Session: 2020-2021

LAND LAW

SUBMITTED TO: SUBMITTED BY:

Mr. SUSHIL JAIN sir Neelam Rathore

Puja Chowdhary

B.Com.LL.B 8th sem

 ACKNOWLEDGEMENT
I would like to express my earnest and deepest gratitude to Mr. Sushil
Jain sir a faculty for LAND LAW, to give me opportunity to do a
project on such a valuable topic of ‘Maintenance under Muslim law’. I
am grateful for the assistance, guidance and support that were extended
during the course of excellent research. I am also thankful to the
college administration for providing him resources necessary for the
research work. I thank my parents and my friends for their moral
support and love throughout my research work and projects operation.
Above all I thank the God almighty for the blessing me with the health
vitality to complete this projects.

Neelam Rathore

Puja Chowdhary

B.Com.LL.B VII SEM

 CERTIFICATE

I am to glad to submit this project report on “RIGHT TO

PROPERTY AFTER 1978” as a part of my academic assignment.
This project is based on research methodology. It further studies
making sources and method of research methodology and further
discusses the interview method. I hope this would be significant for a
cadmic for academic purpose as well as prove information to all
readers.

Here through I declare that this paper is an original piece of research

and all the borrowed text and ideas have been duly acknowledged.

SUBMITTED BY

Neelam Rathore

Puja Chowdhary
 DECLARATION
Neelam Rathore Puja Chowdhary, ROLL. NO.21 B.Com.LL.B VIII
Semester, OF GURU GHASI DAS UNIVERSITY does hereby declare
that, this project is my original work and I have not copied this project
or any pert there from any sources without any acknowledgement. I am
highly indebted to the author of the book that I have preferred in my
book as well as all the writers of the articles and the owner of the
information taken from website to it. It is only because of their
contribution and proper guidance of my faculty adviser Mr.SUSHIL
JAIN Sir, that I was able to gather light on the subject.

Neelam Rathore

Puja Chowdhary

B.Com.LL.B IV SEM.
 SYNOPSIS

TOPIC : The constitution right to property after 1978

PROJECT AIMS:

Its aim to establish equal distribution of resources and to give relief to the
poor because poor do not have enough opportunities to make a living in
formal jobs in case they are forcibly separate their property and also, to
facilitate acquisition of land for developmental project. The state can by law
deprived a person of his property if the said law of the deprivation amount to
reasonable restriction in public interest with in the meaning off article 19 (5).
a removal of property from list of fundamental rights would not affect the
rights of the minorities to establish and administer educational institutional
of their choice.

OBJECTIVES :

• No person can be deprived of his property except by authority of law.

• The fundamental right can be violated under article 31-c clock of
improving the economic system.
• Abolition of large land holding with zamindars and rich and
distribution among landless peasants.
• Equality towards poor and rich
• property is taken for publish use or social welfare purpose
• reasonable compensation is paid for the property taken.
• The govt cannot guarantee to property to every citizens because it is
impossible matter among population size.
• To grant responsibility to making the law for social, political and
economicallydevelopment.
• To provide protection of property and give legality of land to the
people living in newly independent India.
RESEARCH QUESTION :

Q- what is the power bestowed by the doctrine to the state?

Q- what is the reason behind the “right to property” being a legal right
instead of a fundamental right

Q- why was the right to property remove from the fundamental right list?

RESEARCH METHODOLOGY :

The use of both the primary and secondary sources helped in the completion
pf the project, primary source include the texts books and articles, and
secondary source includes many websites, newspapersetc. doctrinal method
is totally used in the completion of this project the analysis of the topic is
done via help books, websites, authentic , statistics etc.

SCOPE:

According to constitution of India right to property is a basic human right

and legal right it does not indicate a fundamental right which enter to all the
territory of Indian including Jammu Kashmir interpreted public use broadly
to include a public purpose of economic development that might directly
benefit private parties. In response many state legislature passed laws
limiting the scope of eminent domain for a public use.
TABLE OF CASES

REVIEW OF LITERATURE

CHAPTER 1- INTRODUCTION

CHAPTER 2- LEGISLATIVE HISTORY OF THE RIGHT TO

PROPERTY

 Constituent Assembly Debates

 Pre-Constitutional Position of Right to Property
 Post Constitutional Developments

CHAPTER-3 MODIFICATION OF THE RIGHT TO PROPERTY

 Initial Modification
 From the 25th Amendment to the 44th Amendment

CHAPTER 4- LAND REFORMS IN THE CONSTITUTION OF INDIA

 Land Reforms
 Fundamental Rights and Directive Principles
 The Evolution and Status of the Right to Property

Conclusion

Bibliography
TABLE OF CASES

 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

 Kameshwar Singh V. State of Bihar AIR 1962 SC 1166
 I.C. Golaknath V. State of Punjab AIR 1967 SC 1643
 Minerva Mills v. Union of India AIR 1981 SC 271.
 Assam Sillimanite vs Union of India 1992 Supp. (1) SCC 692.
 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252
 State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd 1973 AIR
2734, 1974 SCR (1) 671
 Waman Rao v. Union of India (1981) 2 SCC 362, 1981 2 SCR 1
 Ambika Mishra v State of UP AIR 1762, 1980 SCR (3)1159
 Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal
Ltd 1983 AIR 239, 1983 SCR (1)1000
REVIEW OF LITERATURE:

The object behind the amendment is considered to abolish the large land
holdings with zamindars and other rich people and to distribute it to the
landless peasants. But now when the object seems to be almost a achieved
the importance of this amendment is in question 44th constitutional
amendment eliminated the right to property as a fundamental right. After
44th amendment right to property became a statutory right.

Article 31 which contained right to property was shifted to Article 300. This
transfer was done to affirm that no person is deprived of his property save by
the authority of law. 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. When studying
the emergence of clause A, B and C of Article 31, a major focus should be
given to Doctrine of Eminent Domain. According to this doctrine state can
acquire any private property and the acquisition will be justified if it is for
public use and the use can be understood beyond doubt. Essential ingredients
of this doctrine are property is taken for public use and compensation is paid
to the owner
CHAPTER 1- INTRODUCTION
Property is a generic term of extensive application. It is indicative or
descriptive of every possible interest which a person can have. It is extended
to all recognized types of interests which have the characteristic of property
rights. Property is classified as movable 1 and immovable2, corporeal and
incorporeal, real and personal. It may mean a thing or a right which a person
has in relation to that thing. It is an object of legal rights which embraces
possessions or wealth collectively and connotes individual ownership of the
same. However nothing can be subject of property which is not recognized
by law to be such and therefore right to property lasts so long as law gives to
a particular item, the status of property, and if law withdraws that status it
ceases to be property.

In law property refers to individual possession of things 3 and these things

may be tangible such as land or goods or they may be intangible like stocks,
bonds or the more recent concept of intellectual property. In essence it
includes all things that enable a man to survive. Every legal system in the
world recognizes the relationship between persons and tangible objects and
property law deals with the allocation, use and the transfer of wealth and it
often reflects the economy and society in which it is found. The western
legal concept of property is such that a person who is in possession of a thing

1
Section 3.(36) of the General Clauses Act, 1897, \u201cMoveable Property\u201d shall
mean Property of every description, except immoveable property;

2
Section 3.(26) of the General Clauses Act1897, \u201cImmoveable property\u201d shall
include land, benefits to arise out of land and things attached to the earth, or permanently
fastened to anything attached to the earth;
3
K Subba Rao, \u201cProperty Rights under the Constitution\u201d, (1969) 2 SCC (Jour) 1
has the exclusive right to possess, use and transfer the thing if he so wishes.
The right to property in all such things and rights have been guaranteed in
the manner prescribed by the Constitution of India (hereinafter referred to as
the Constitution) and under the Constitution property means all things and
rights recognized by law\u2014 statutory, customary and common law, as
property before the Constitution has come into force.

The right to property was therefore included as a fundamental right under the
Constitution, the right to property as propounded by Locke consists of three
basic characteristics4

 To acquire
 To own and possess and
 To dispose of the same.

This apparently unrestricted right to property is subject to the laws of social

control reflected which are enforced by the state. The framers of our
Constitution in creating a constitutional democracy seem to have taken a
middle path between the capitalist and socialist notions of property. The
relevant provisions of the Indian Constitution as they stood on 26-1-1950 are
Articles 14, 19(1) (f), 19(5), 31, 32, 39(b) and (c), 226 and 265. The gist of
the said provisions may be briefly stated thus: Every citizen has the
individual right to acquire, to hold and dispose of property. The exercise of
this right should be reasonable and in accordance with public interest. State
in exercising the power to enforce the principle of distribution of material
resources for the greater common good does in fact enforce the duty implicit
in the exercise of the fundamental right.
4
John Locke, Second Treaties of Government 28 (6th ed. 1952) as cited in K Subba Rao,
\u201cProperty Rights under the Constitution\u201d, (1969) 2 SCC (Jour) 1
With reference to the right to property in the Constitution In the case of
Kesavananda Bharati v. State of Kerala 5 Justice Mathew stated that the
framers of the Constitution regarded the right to acquire and hold property as
a Fundamental Right for the reason that a dignified human life is impossible
without it. Property is the necessary consequence and condition of liberty.
Liberty and property demand and support each other.

CHAPTER 2- LEGISLATIVE HISTORY OF THE RIGHT

TO PROPERTY

The Indian Constitution is first and foremost social document. A majority of

the provisions in the Constitution are therefore aimed at furthering the goals
of social revolution. During the nationalist movements, in the background of
deep-rooted economic inequalities, intermediaries in agriculture and
exploitation in trade and industry, this above distinction was highlighted in
several public fora. In the Indian Constitutional context, the effort of
reconciling the values of democracy with that of socialistic pattern of society
without a tenable criterion for distinguishing the use aspect of property from
its power aspect, made the right to property a debatable issue. The
fundamental rights of the Constitution are, in general, those rights of citizens,
or those negative obligations of the State not to encroach on individual
liberty there have been well-known since the late eighteenth century and
since the draft in the Bill of Rights of the American Constitution and the
Indians have become heirs to this liberal tradition.

The Fifth and Fourteenth Amendment of the Constitution of United States of

America read: "No person shall be deprived of life, property without the due
5
(1973) 4 SCC 225
process of law". The following wide definition of property is generally
accepted in that country. "Property" in its broader sense is not the physical
thing which may be subject to ownership, but is the right thing which may be
subject to ownership, but is the right of domination, possession, and power
of dispossession which may be acquired over it; and the right of property
preserved by the Constitution is the right not only to possess and enjoy it, but
also to acquire it in any lawful mode.

But the socialist concept of property is based upon the theory of labour. Karl
Marx in his work "Das Capital" propounded the theory thus: "In political
economy there is a current confusion between two very different kinds of
private property, one of which is based upon the producer's own labour,
whilst the other is based upon the exploitation of the labour of others.” The
Russian Constitution, therefore, rejects private ownership of the instruments
of production but admits only to a limited extent of private ownership based
upon the producer's 'own labour.' In is within this that the Constitutional
Assembly Debates must be located. Constitutional right under Article 300A
in the Forty fourth-Amendment Act, which ultimately proved to be the
bottom line

2.1 - Constituent Assembly Debates

Since 1787 every people who have intended to give themselves a written
Constitution have had to decide what are the citizens rights to life, liberty
and property. The Fundamental Rights subcommittee on the 28 March 1947
stated that no private property could be acquired for public use unless the
law called 'for the payment according to principles previously determined, a
just compensation for the property acquired.6

The property provisions in the Draft Constitution appeared briefly before the
Assembly in November and December 1948 in the first of the two provisions
considered was the right 'to acquire, hold and dispose of property'. This right
became subject only to' reasonable restrictions' either in the public interest or
the interests of Schedule Tribes. With the right to possess property
guaranteed in the Constitution, the Assembly again considered the extent of
the States power to deprive a person of his property in the name of social
justice. The Union Cabinet, in early 1948 in a broad resolution on industrial
policy had laid down that property was acquired by the government
'fundamental rights guaranteed by the Constitution will be observed and
compensation will be awarded on a fair and equitable basis'

According to Sardar Vallabhai Patel the solution to this quandary was

Section 299 of the Government of India Act, 1935 in which the power of the
courts and the legislature was limited and the courts would be unable to
invalidate land reform and other property acquisition legislation provided
reasonable principles had been established and the legislature would be
unable to expropriate property without payment of compensation. Thus
justice and social reform would both be served. B N Rau, however, prepared
a new clause that made an omnibus provision in the directive principles the
said that the ownership and control of material resources should be
distributed to subserve the common good and the operation of the economic
system should not result in the concentration of wealth.

6
Granville Austin. THE INDIAN CONSTITUTION-CORNERSTONE OF THE NATION. 2nd Edition.
(New Delhi : Oxford University Press. 1999) at pp.84
2.2- Pre-Constitutional Position of Right to Property

The Constitution of India derives its foundation from the Government of

India Act, 1935 and the
Universal Declaration of Human Rights (1948).

 Section 299 of the Government of India Act, 1935 secured the right
to property and contained safeguards against expropriation without
compensation and against acquisition for a non-public purpose.
 Article 17 of the Universal Declaration of Human Rights (1948) also
recognises the right to private property and India is a signatory to that
Declaration.

The Constituent Assembly examined the constitutions of various countries,

which guarantee basic rights. In “Constituent Assembly of India,
Constitutional precedents (Third Series)” (1947), it is stated “Broadly
speaking, the rights declared in the Constitutions relate to equality before the
law, freedom of speech, freedom of religion, freedom of assembly, freedom
of association, security of person and security of property. Within limits
these are all well recognized rights.”
The debates in the Constituent Assembly when the draft Article 19(1)(f) and
Article 31 came up for discussion clearly indicate that the framers of our
Constitution attached sufficient importance to property to incorporate it in
the chapter of fundamental rights.

The provision regarding freedom of “trade and intercourse,” which was

originally in the chapter of fundamental rights, was later removed from that
chapter and put into a separate part (Article 301), in view of the suggestions
by some members of the Constituent Assembly. It is significant to note that
similar suggestions in respect of the right to property were not accepted.

2.3- Post Constitutional Developments

There is some misapprehension on the scope of the right to property

conferred under our Constitution. An assumption by constant repetition has
become a conviction in some minds that the right to property has been so
entrenched in our Constitution that it is not possible without amendment to
enforce the directive principles. A scrutiny of the relevant provisions of the
Indian Constitution as they stood on January 26, 1950 will dispel this
assumption. They are Articles 14,19(1)(f), 19(5), 31, 32, 39(b) and (c), 226
and 265. The gist of the said provisions may be briefly stated thus: Every
citizen has the individual right to acquire, to hold and dispose of property. A
duty is implicit in this right, namely that it should be so reasonably exercised
as not to interfere with similar rights of other citizens. The exercise of it,
therefore, should be reasonable and in accordance with public interest.
The conflict between the citizen’s right and the state’s power to implement the
said principles are reconciled by putting limitations both on the right and the
power. The said fundamental right is not absolute. It is subject to the law of
reasonable restrictions in the interest of the general public. The states power
is also subject to the condition that the law made by it in so far it infringes
the said fundamental right should stand the double test of reasonableness and
public interest. The state also has the power to acquire the land of a citizen
for a public purpose after paying compensation. It has the further power to
impose taxation on a person for his property.

After the Constitution of India came into force, the following agrarian
reforms were introduced:
(1)Intermediaries were abolished
(2)Ceiling was fixed on land holdings
(3)The cultivating tenant within the ceiling secured permanent rights
(4)In some states, the share of the landlord was regulated by the law
(5)In one state, the tiller of the soil secured cultivating rights against the
absentee landlord, and in some states, the rural economy was re-adjusted in
such a way, that the scattered bits of land of each tenant were consolidated in
one place by a process of statutory exchange.

These reforms certainly implement the Directive principles of state policy.

All these agrarian reforms could have been introduced within the framework
of the original Constitution, “perhaps with a little more expense that could
have been re-adjusted through the laws of taxation.” said Justice Subba Rao .

CHAPTER-3 MODIFICATION OF THE RIGHT TO

PROPERTY

3.1-Initial Modification

If one were to critically analyses the amendments to the Constitution in the

light of the theories propounded by classical western theorists it may be seen
that the amendments to the Constitution follow a chronological pattern.

The First Amendment came soon after the Constitution came into force. The
interpretation of Article 31 in certain decisions, which resulted in
invalidation of certain land reform laws, necessitated its amendment. The
most important of such decisions is Kameshwar Singh V. State of Bihar7 in
7
AIR 1962 SC 1166
which the Patna High court held the ‘Bihar Land Reform Act’, 1950 to be
invalid on the ground that the process of giving compensation was
discriminatory and violated the guarantee of equality to the citizens under
Article 14 of the Constitution. It appeared from this decision that clause 4 of
Article 31 would not prevent the Zamindari abolition laws from invalidation
on grounds other than mentioned in clause 2 of that Article. Thus, in order to
protect the laws from invalidation and pave the way for agrarian reforms in
the country, Article 31A and 31B were inserted by the Constitution First
Amendment Act, 1951 and was primarily aimed at Zamindars. Their effect
was to remove the intermediaries and to improve the lot of tiller of the soil,
which was one of the avowed objectives of National movement and more
importantly with the objectives of social reform and removal of inequality.

The first Amendment to the Constitution which followed certain decisions of

the Supreme Court appears to have the objective of removing the ‘economic
cleavage’ that existed between the owners of the land and the tiller. The
legislature seems to have realised that there was a need for proactive
legislation so as to enable distribution of land and improve the conditions of
the economically marginalized with reference to the right to property.

The 4th Amendment widened the scope of Article 31A by including certain
other categories of legislation, which shall immune from attack on ground of
their violating the provisions of part 3.

It added four new categories of legislation which shall not be open to

challenge on the ground that they are inconsistent with or take away or
abridge any of the rights conferred by Articles 14, 19 and 31: -
1. Taking over the management of any property by state for a limited
period.
2. Amalgamation of two or more corporations.
3. Extinguishment or modification of rights of persons interested in
corporations.
4. Extinguishment or modification of rights accruing under any
agreement ,lease or license relating to any mineral or mineral oil

The fourth amendment to the Constitution appears to be in contradiction with

Bodin’s theory of the separation of the sovereign power of the state and the
ownership of property. Since the fourth Amendment has enabled the state to
not only regulate but also to take over the management of private property
and such infringement of right shall not be challenged shows that the power
of the state in the regulation of private property for the greater common good
is to a certain extent absolute. Article 31A was amended by the Constitution
(Seventeenth Amendment) Act, 1964 as there arose some doubt about the
term ‘estate’ given in clause (2) (a) of the Article. In the case of I.C.
Golaknath V. State of Punjab,8 the validity of the seventeenth amendment
was challenged and the Supreme Court upheld the argument that the power
of the Parliament to amend the Constitution is an ordinary legislative power
and thus an amendment being law under Article 13 of the Constitution is
invalid if it abridges any of the fundamental rights. The ruling of the
Supreme Court created hurdle in the way of the amendment of fundamental
rights for saving the legislative measures aimed at the socio- economic
development of the country.

The seventeenth Amendment of the Constitution appears to be in agreement

with John Locke’s interpretation wherein the right to property is linked
with the inherent rights of life and liberty. When the legislature refers to the
term ‘estate’ they appear to recognize the ownership of property as a
fundamental right that is not subject to state regulation or intervention. The

8
AIR 1967 SC 1643
legislature here appears to have veered from its initial position of abridging
the right to property in the interest of the greater common good to protecting
the interests of the propertied classes.

3.2- From the 25th Amendment to the 44th Amendment

The Constitution (Twenty Fifth Amendment) Act, 1971 9, apart from

amending Article 31 sub clause (2), inserted a new Article 31C in the
Constitution which provided as follows: “Notwithstanding anything
contained in Article 13, no law giving effect to the policy of the State
towards securing the principles specified in clause (b) or (c) of Article 39
shall be deemed to be void on the ground that it is inconsistent with or takes
away or abridges any of the rights conferred by Articles 14, 19 and 31 and no
law containing a declaration that it is for giving effect to such policy shall be
called in question in the court on the ground that it does not give effect to
such policy.
This was challenged in the case of Kesavananda Bharati v. State of
Kerala.10 The majority held that the first part of section 3 of the amending
Act, inserting Article 31C is valid. The part was held to be invalid. Thus it
was established that law giving effect to Article 39 (b) (c) shall not be
deemed to be void on the ground that it is inconsistent with Articles 14, 19 or
31, however any such law was held to be justiciable.

Thus one of the Directive principles of state policy was given precedence
over certain fundamental rights. With the 25th Amendment there is a
noticeable shift to the Marxian notions of property rights wherein one of the
directive principles is even more importance over fundamental rights. The

9
Upendra Baxi, “The Constitutional Quicksands of Kesavananda Bharati and the Twenty-
Fifth Amendment”, (1974) 1 SCC (Jour) 45
10
AIR 1973 SC 1461; (1973) 4 SCC 225
judgment delivered in the Keshavananda Bharathi case also appears to be
consistent with the Marxian notion which enables the state to abridge the
right to property to provide for better state regulation and redistribution of
land. This has been criticised by many as an extreme violation of
fundamental rights.

On the whole the above-mentioned amendments paved the way for the
‘Forty Fourth Amendment’ which resulted in the deletion of ‘right to
property’ as a fundamental right and the frequent exercise of Constitutional
amendments came to an end.
The property clauses in the Constitution of India, contained in Arts.19 (1) (f)
and 31 were repealed by Section 2 and 4 of the Constitution (44 th
Amendment) Act, 1978, w.e.f. 20th June, 1979. The Forty-fourth Amendment
to the Constitution of India inserted article 300 A with effect from June 20,
1979 and simultaneously deleted the Fundamental Right to Property included
in Articles 19(1) (f) and 31. The reason for this was to reduce the right to
property from the status of Fundamental Right to that of a legal right, i.e., the
right will e available against the executive interference but not against the
legislative interference11. With the 44th amendment to the Constitution of
India the legislature seems to have taken a more liberal standpoint as
compared to the 25th Amendment. The movement now seems to be toward
Foucault’s state regulation of property in the interest of a democracy. Herein
we see that although individual ownership of property is permitted so is the
state regulation of the same. At the conversion of the right to property from
being a fundamental right to a legal right there is a noticeable transformation
to a more the liberal democratic tradition wherein private rights and public
rights are equally balanced.

11
Statement of Objects and Reasons for the Forty-fourth Amendment, paras. 3 & 5
  The Forty-second Amendment Act

The 42nd Amendment Act sought to expand the scope of Article 31C by
extending it to any law giving effect to the policy of the state towards
securing “all or any of the principles laid down in Part IV” and that is how
the Article reads today. The actual scope of this Article has, however, been
considerably restricted in three respects by the process of judicial
interpretation and subsequent amendment:

(1) As above mentioned condition (I) was sought to be amended by the 42nd
Amendment (1976) so asto take in all laws intended to secure not merely the
objectives of Article 39 (b) or (c) but “all and any of the Directive principles
of state policy laid down in part IV” but this attempt was
frustrated by Minerva Mills v. Union of India12 and the above freedom now
stands restricted only to laws seeking to give effect to Articles 39 (b) or (c).13

(2) Condition (iii) above placing a law beyond challenge under this Article if
it just contains a
declaration that it fulfils the first condition, has also been held
unconstitutional: Kesavananda
Bharathi vs. State of Kerala. In other words, statutory declaration of a nexus
between the law and
Article 37 is inconclusive and justiciable.14

12
AIR 1980 SC 1787, See, however, the observations made in Sanjeev Coke Mfg. Co. vs
BharathCooking Coal AIR 1981 SC 271

13
One often tends to forget this as the “judicial” restriction is not to be found incorporated in
thestatutory language, which continues as enacted under the 42ndAmendment (1976).
14
Tinsukia Electricity company ltd. vs State of Assam 1989 (3) SCC 709; Assam Sillimanite
vs Union of India 1992 Supp. (1) SCC 692.
(3) Article 31D: A provision newly inserted in the Constitution in
juxtaposition with Articles 31A to 31C, though has nothing to do with the
right to property, may now be referred to. The insertion of Article 31D by
the 42nd Amendment (1976) represents yet another attempt [like Articles
31A to31C] to save from Constitutional challenge a group of laws intended
to curb “anti national activities.” 15 This Article, introduced during a time
when state of emergency had been declared in the country was, however,
omitted, with a change in government, by the 43rd Amendment (1977).

The Forty-fourth Amendment: The Final Trespass into Right to

Property

“These words will occur to the reader who considers the far reaching
changes made in the “right to property” by the 44th Amendment without
eliciting public opinion and without submitting the
changes to the scrutiny of the Select Committee followed by a debate in both
Houses on its report. The 44th Amendment removed the right to property
from the Part III (“the Chapter on Fundamental Rights”) by deleting Articles
19(1)(f) and 31, by making consequential amendments, and by inserting in
Part XII the following new chapter: “Chapter IV—Right to Property, 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.”
These amendments are hereafter referred to as “the property amendments.”
The ostensible reason forthis change is given in the words of the Law
Minister, Shanthi Bhushan, who has signed the
Statement of Objects and Reasons for the 44th Amendment: Paragraphs 3, 4
and 5 of that Statement run as follows:

15
While the broad objective of such a provision is unexceptionable, the catch in the
provisions lay inthe vagueness of the definitions of activities sought to be curbed
“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.
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.

In a Way the 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.” This explanation for the change is neither candid nor convincing. Not
convincing, because the fact that the Constitution had to be amended a
number of times to deal with right to property is not a sufficient reason for
deleting it from the chapter on fundamental rights. Nor does the
44thAmendment give any new position to the fundamental rights, which
those rights did not occupy before. This explanation is not candid, because a
candid explanation would have said that the change was being made to fulfill
part of the pledge given in the Janata Party Manifesto for the 1977
Parliamentary elections, namely “delete from the list of fundamental rights
and instead affirm right to work.” The present Amendment implements a part
of the pledge, because the right to work has not been affirmed. It seems to
have been realized that right to work cannot be affirmed because no work
may be available. Article 41, which is a principle of state policy, recognises
this when it qualifies the duty of the state to secure work by the words
“within the limits of working capacity and development.” Nor does Article
41 confer “right to work” on anyone, because Article 37 clearlymakes the
“rights” conferred in the Part IV (Directive principles of state policy) not
enforceable in any court. An unemployed person will seek in vain to secure
his “right to work” which must mean gainful employment and not slave
labour.

The amendments proposed by in the Janata Party Manifesto, are now partly
implemented by the 44th Amendment, have been made without realizing
(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.

CHAPTER 4- LAND REFORMS IN THE CONSTITUTION

OF INDIA

4.1- Land Reforms

Land reform is a strategy for social change through state intervention. It is
where the State uses instrumental rational action for intervention. Land
reform forms the basis for the abolition of the feudal colonial structure and
distributes the property that belonged to the erstwhile higher classes to the
tiller. It is an initiative to increase the productivity of the tiller by giving him
a portion of the land that he works on. The other associations to the question
of land reforms came with the associated problems of ownership of property.
Ownership of property by a certain section of the society ensures rule
poverty, income inequality and discrimination on economic grounds.

The socialist goal of the State was to ensure a ceiling on land holdings and
the distribution of surplus land. This was targeted at 4/5th of the population
which had no ownership of property. The reason that the State went for a
policy of land reform was that one of its objectives was the prevention of
class wars and to attain this objective the State had to intervene in regulating
the relationships among the classes. The reason that land reform has
remained a policy and never been actually implemented is the fact that it is
ideological based to protect the interests of the upper classes. It is precisely
for this reason that land reforms have been conservative. In reality land
reform is a radical ideology of a newly emerging political system which is
used by the ruling elite to pacify the role masses.

Land reform, called for social change at an ideological and at a practical

level. Social change can only occur when all three of these three factors exist

1 .Interplay between society and social economic factors

2. Intervention of the State

3. Collective action
Although any or all of these may exist the state has been unable to
implement land reforms for the distribution of property for the following
reasons

1. Influence of land owners in the democratic setup

2. Lack of commitment and political will to implement land reforms

3. Influence of the economic and agrarian relations prevalent in India

4. Social and hierarchical setup

5. Legal and constitutional set up16

4.2- Fundamental Rights and Directive Principles

Thus to foster the goal of equality, the Directive principles the State ensured
adequate means of livelihood and that the operation of the economic system
and controlled of the material resources of the country and subserve common
good. By establishing these positive obligations of the state, the members of
the Constituent Assembly created the responsibility of future Indian
governments to find the middle way between individual liberty and public
good, between preserving the property and privilege of the few and
distributing benefits on the many in order to liberate the people of India.

The Directive in Article 39(b) and (c) is solely aimed at the third kind of
property and it evades logical reasoning as to why the other fundamental
rights should be abridged, what to say of abrogation. Thus seen there is no
conflict between the Directive Principles and the Fundamental Rights. Both
have been placed after much deliberation by the Constituent Assembly and
16
See Judge, Paramjit. S. SOCIAL CHANGE THROUGH LAND REFORMS. (New Delhi : Rawat
Publications. 1999)
none can be made redundant. The plea that Fundamental Rights are an
impediment to the implementation of Directive Principles is deceptive and
mischievous and intended to cover our failings.

Article 39(b) calls for distribution of ownership and control which mean that
private ownership and control will be expanded and therefore nationalisation
of private industry cannot be read into distribution. Distribution does not
exclude the original owner. He is only to be deprived of the part which he
does not work. So it is the third kind of property which has been referred to
in Article 39(c) while talking of concentration of wealth and means of
production.

But the real problem facing modern India is not so much as to preserve the
unlimited right to property, but while maintaining the substratum of
individual right and its stability, to regulate the use of it in public interest. If
undue attachment to acquisition of property is bad, revolutionary zeal to
dislocate the structure of property is worse. A balance therefore has to be
struck between possession and regulation of property.

The initial constitutional position of the right to property may be briefly

stated thus17:

 Every citizen has a fundamental right to acquire, hold and dispose of

property;

17
as stated in K. Subba Rao (Ex-Chief Justice of India), “The Two Judgments: Golaknath
and Kesavananda Bharati”,(1973) 2 SCC (Jour) 1
  The State can make a law imposing reasonable restrictions on the
said right in public interest. The said restrictions, under certain
circumstances, may amount even to deprivation of the said right;
 Whether a restriction imposed by law on a fundamental right is
reasonable and in public interest or not is a justiciable issue;
 The State can, by law, deprive a person of his property if the said law
of deprivation amounts to a reasonable restriction in public interest
within the meaning of Article 19(5);
 The State can acquire or requisition the property of a person for a
public purpose after paying compensation;
 The adequacy of the compensation is not justiciable;
 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; and
 Laws of agrarian reform depriving or restricting the rights in an estate
— the said expression has been defined to include practically every
land in a village — cannot be questioned on the ground that they
have infringed fundamental rights;
 The State has powers to impose taxes on all types of property and
incomes.

4.3 The Evolution and Status of the Right to Property

Even before the 44th Amendment the status of the right to property was rather
dubious and its conversion into a legal right has only made it more so. So
much so that before a person could complain that a law violates his right to
acquire, hold and dispose of property, he must establish that the right which
he claims is a right to property.

To the extent that the right to property is important for the enjoyment of the
other fundamental rights it has remained a fundamental right. Article 30(1)
confers on religious and linguistic minority a fundamental right to establish
and administer educational institutions. This right can not be enjoyed unless
the minorities have a right to property with respect to such institutions. It
means that such minorities will have a fundamental right to property as far as
educational institutions are concerned. This position is accepted by the
framers of the44th amendment, as they have provided in Article 30 (1) (A)
that in making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority, the state shall ensure that the amount fixed by or determined under
such law for acquisition of such property is such as would not restrict or
abrogate the right guaranteed. Also the present position of right to property
under Article 300As indirectly gives the right to hold and acquire property.
Article 300A states that "No person shall be deprived of his property save by
authority of law." One can not be deprived of property unless he has property
and one can not have property unless he has the right to hold or acquire it.

The reasonableness of restriction to the right to property must be charged not

by considerations relevant to pre Constitution laws but in the light of
fundamental rights. Before a person can complain that a restriction on a
fundamental right is unreasonable he must show that he has a fundamental
right. Thus, where an order of allotment of a house made before the
Constitution came into force was challenged as violating Article 19(1) (f) on
the ground that this possession of the landlord took place after the
Constitution came into force, the Court held that as the petitioners right to
retain possession of the house came to amend as a result of the order of
requisition before the Constitution came into force, he had no fundamental
right which he could assert under the Constitution18.

It must be said, therefore, that the totality of changes brought about by the
44th Amendment relating to property has been clumsy and cumbrous. The
main argument in favour of the polish of the right to property was that it
stood in the way of progress report socialistic legislation. This having been
affected by the polish and of Articles 19(1) (f) and 31, it hardly stands to
reason that article 31 A, which was inserted primarily by way of exception to
the right to property, should still survive.

The major difference will exist in the fact that if the executive of the police
takes away man's property without the majority of low, he will have no
access to the Supreme Court directly under Article 32 of the Constitution of
India19. The sacrifice therefore has been made of the speedy remedy before
the Supreme Court and is considered by many as too heavy loss to the
citizen20.

Whatever be the intention of our legislators in the deletion of 'right to

property ' as a fundamental right, the fact remains that the right to property is
a right which cannot be read in isolation. It is a right around which many
other rights exist. There seems to be an inherent interdependence between
the right to property and other fundamental rights.

18
D K Nabhirajiah v. State of Mysore, (1952) SCR 744
19
H. M. Seervai., CONSTITUTIONAL LAW IN INDIA, 4th ed. (Delhi: Universal Book
Traders.1999) at pp. 825, 828

20
D.D Basu, CONSTITUTIONAL OF INDIA. 7th ed. (New Delhi: Prentice Hall of India. 1998)
at p.102
The 44th Amendment Act has opened a Pandora’s Box and the judiciary will
take years to explain fully the implications of this amendment. Following are
some of the problems that would need clarification from judiciary:

1. Whether as a result of deletion of Article 19(1)(f), the right to property

has now become a natural right?
Although there is a strong case may in favour of right to property being a
natural right, as a result of explicit deletion of Article 19(1) (f) it would not
only be difficult to persuade the Supreme Court to accept this view, but well
near impossible.

2. If a law depriving a person of his personal liberty or liberty ought to be

reasonable law and the procedure must be 'fair, just and reasonable',
whether the law depriving a person of his property must also be
reasonable law?
If the court were to approach the right to property by striking a balance
between rights and directive principles as being “fair, just and reasonable”
then greater protection to the right to property and it may be a right that
would exist for the greater common good.

CONCLUSION

In this project the main focus was the constitutional validity of Articles 31A,
31B and 31C. It was strongly argued against the protective nature of these
articles which exclude all possibilities of challenge to the laws included
under the shield.

The constitution was amended in the year 1951 for the first time. This
amendment led to several modifications in the fundamental rights and started
the era of land reform through constitutional mechanism. It has introduced
.two new articles namely 31A and 31B and the infamous ninth schedule so as
to make the laws acquiring zamindars unchallengeable in the Court of law.
This was because of the land reform legislations were being challenged
before various high courts like Patna, Nagpur, Allahabad etc on the ground
of inconsistency with the fundamental rights specially Article 14..But the
High Court varied in their opinions.

The discussion in the project focused on the constitutional validity of the

Article 31C as amended by the 42nd Amendment does not, in fact cannot be
allowed to stand as if it is allowed then it will confer an unrestricted license
on the legislature and the executive, both at the Centre and in the States, to
destroy democracy and establish a totally authoritarian regime in the
democratic and socialist pattern of the Indian fabric. It’s a known fact that all
legislative action and every of the governmental action has to be related
directly or indirectly, to some directive principle of State policy in order to
fulfil its purpose under the constitution.

The final words of the author in concluding the above discussion would be
that if Article 31C was allowed to stand on its own over the grave of the
democratic and socialist fabric then the protection of this amended article
will be available to every legislative action under the sun, resulting into a
society that we cannot imagine, this is because article 31C abrogates the
right to equality guaranteed by Article 14, which is the very foundation of a
republican form of government and is by itself a basic feature of the
Constitution. So it is concluded that if article 31C is allowed to stand then
that would result into the complete failure of the basic spirit of the
constitution makers and therefore in violation to the basic structure of the
constitution of India.

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