Right To Property In India

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 recognised types of interests which have the characteristic of property rights. Property is classified as movable1 and immovable2, corporeal and incorporeal, real and personal. It may mean a thing or a right which a person has in relation to that thing3. It is an object of legal rights which embraces possessions or wealth collectively and connotes individual ownership of the same4. However nothing can be subject of property which is not recognised 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 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 property5. 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 wealth6 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 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 1

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Section 3.(36) of the General Clauses Act, 1897, “Moveable Property” shall mean Property of every description, except immoveable property; Section 3.(26) of the General Clauses Act1897, “Immoveable property” shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth;

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K Subba Rao, “Property Rights under the Constitution”, (1969) 2 SCC (Jour) 1

4

“property”, Encyclopedia Britannica (CD ROM) (New York: Britannica Corp., 1994-2001).

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It is interesting to note that property has always been associated as one which advances the Capitalist State structures and the interests of the capitalists. 6 Section 5 of the Transfer of Property Act, 1882 defines “Transfer of property” as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.

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under the Constitution property means all things and rights recognised by law—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 Locke7 consists of three basic characteristics (1) To acquire (2) To own and possess and (3) 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 2658. 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. With reference to the right to property in the Constitution9 in the case of Kesavananda Bharati v. State of Kerala10 Justice Mathew11 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. The exponents of natural law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists are agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life. Property is the necessary consequence and condition of liberty. Liberty and property demand and support each other. 7

John Locke, Second Treaties of Government 28 (6th ed. 1952) as cited in K Subba Rao, “Property Rights under the Constitution”, (1969) 2 SCC (Jour) 1 8

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Refer to Appendix I Prof. P.K. Tripathi, Kesavananda Bharati v. The State of Kerala Who Wins?, (1974) 1 SCC (Jour) 3

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(1973) 4 SCC 225 At p.884

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The doctrine of natural rights has exercised a profound influence upon the conception of private property. In its most modern form it insists that property is indispensable to man's individual development and attainment of liberty. Without dominion over things, man is a slave. The most that we can claim, as a general principle applicable to all stages of social development, is that without some property or capacity for acquiring property, there can be no individual liberty, and that without some liberty there can be no proper development of character. Persons without property enjoy no sense of background such as would endow their individual lives with a certain dignity. They exist on the surface; they cannot strike roots, and establish permanency. In short, the concept of property is not an arbitrary ideal but is founded on man's natural impulse to extend his own personality. In the long run, a man cannot exist, cannot make good his right to marriage or found a family unless he is entitled to ownership through acquisition of property." He further stated that "The root of the difficulty is that in most of the discussions the notion of private property is used too vaguely. It is necessary to distinguish at least three forms of private property: (i) Property in durable and non-durable consumer's goods; (ii) Property in the means of production worked by their owners; (iii) Property in the means of production not worked or directly managed by their owners, especially the accumulations of masses of property of this kind in the hands of a relatively narrow class. While the first two forms of property can be justified as necessary conditions of a free and purposeful life, the third cannot. For this type of property gives power not only over things, but through things over persons." The whole problem arose because the third kind of property, agrarian, industrial and capital reserves, which were not being worked or directly managed by their owners, was

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clubbed with the other two kinds of property viz. private property in durable and nondurable consumer goods and property in the means of production worked by their owners .So it is only the third kind of property that needs to be acquired and it is only with regard to that kind of property that the right of property may be abridged. It was, however, not emphasised that with the abrogation of the right to the first two kinds of property our society would cease to be a free society meaning a complete change in the basic structure or framework of society envisaged in the Constitution12. 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 right to property is not absolute and it is subject to the law of reasonable restrictions in the interest of the general public. The State's 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. However problems with regard to the possession of property arose as there was a dichotomy between the individual ownership of property and the regulation of its use in public interest. There are several political implications to the individual possession of property and the use of property in the interests of the public with specific reference to land reforms and the other agrarian policies of the government. It is within this dichotomy that the right to property as a fundamental right needs to be located.

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Surendra Malik, “The Fundamental Rights Case”, (1973) 2 SCC (Jour) 32

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Chapter I-NOTIONS OF PROPERTY RIGHTS 1.1 Traditional Western notions of the Right to Property In the classical Roman law the sum of rights, privileges and powers that the legal person could have in a thing was called dominium or proprietas (ownership). The classical Roman jurists tend to ascribe proprietas to the current possessor of the thing and once the Roman system had identified the proprietarius or the owner he was granted the right over his land. Plato claimed that the economic cleavage that existed in society led to the most dangerous political condition. He was of the notion that economic motives are very influential in determining political action and political affiliations. In an oligarchic State the State was governed by the interests of the "well born" (comparable to the Marxian notion of the nature of state), among whom the possession of property was hereditary but Plato's Republic would be governed by the "many" would have neither birth no property. In oligarchic societies, Plato claimed that economic distinction was a key to political distinction and diversity of wealth was thought to be inconsistent with good government. In his opinion there was no way to abolish evil except by the abolition of wealth itself. This purpose in doing this was to produce the greatest degree of unity and private property was incompatible with this. Plato unites land ownership with stringent regulation of the amount of land held and use of it. The number of citizens in Athens was set at 5040 and land was to be divided into an equal number which would pass by inheritance and can be neither divided nor alienated. Property in land was therefore equalized. Personal property, however, was permitted to the unequal but the amount of it was limited and could not exceed 4 times the value of a lot of land. Although Plato did not propagate community ownership of land he certainly propagated the equal distribution of land for the sake of equality among men. Seneca's theory on the right to property was a departure from the presumption that the State was the highest moral agency and he believed in the "Golden Age" wherein men are still happy and innocent. He believed that men were still happy and innocent because

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they had not yet acquired "the great agency of greed", that is, the institution of private property. Feudalism in Europe was again based on a personal relation and a property relation. The serf or the vassal was obligated to render services to the Lord and in return for the protection and surrendered of the ownership of land in and became a tenant upon the condition of paying rent in service or goods. The property and power of the feudal lord was thus augmented. The most influential medieval thinker on the problem of property was Thomas Aquinas. Thomas Aquinas saw the community of goods and as being rooted in natural Law and such natural Law protects every person’s access to earthly goods and requires responsibility by everyone to provide for the needs of others. Private property, on the other hand, is rooted in a positive law and through human reason. It has been stated that if common good is served by the ownership of private property since with the ownership of a private property there is an incentive to work and superfluous property may be distributed among the needy. 1.2 Classical Theories on the Right to Property13 Modern western philosophy is basically divided into two schools on the issue of ownership of private property. The division is simple, those who consider property as an inalienable fundamental right and others who consider property is a right, but one that may be subject to the restrictive and regulative control of the State. Jean Bodin14 was of the belief that sovereignty was different from ownership and property belonged to the family and sovereignty to the prince and the magistrate. Also the right to property was inherent in the family and put a definite limit on the power of the sovereign. The possession of property, he stated, was an inalienable natural right, so sacred that the sovereign cannot touch it without the owner's consent and even taxation 13

George H Sabine and Thomas L Thorson., A HISTORY OF POLITICAL THEORY . 4th ed. (Calcutta: Oxford and IBH Publishing House.1975) 14

id. at pp.374-382

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required the assent of the estates. The Bill of Rights15 stated that political rights do not include property and even a poor man has his birthright and which the State is bound to protect no less than the property of the rich and a man may have these natural rights even against the legal rights of property. James Harrington16 believed in that the form of government which is permanently possible in any country depended on the distribution of property especially property in land and the group which owns a preponderant "balance" of the land, say three-fourths, must by sheer economic necessity commands the power to control the government. He stated that of a large balance of land is held by the nobility, the commoners would be depended on them economically and therefore politically. If the land passes into the hands of many, the power of the nobility would be correspondingly curtailed. The argument of James Harrington might be acceptable in a monarchical system of government but in a democracy like India with which is equality and equal participation in government, property in the hands of a few would be detrimental to democratic egalitarian setup. John Locke17 united the statement of ‘natural law’ which he claimed was the origin of private property. In State of nature, Locke believed that property was common and everyone had a right to draw sustenance from whatever nature offers. There was a common use of property although there was no communal ownership.

Therefore,

property was a right which each individual brought to society in his own person and not a right to society created and therefore society cannot justly regulate this right. In fact, both society and the government exist in part, to protect the private right to property. He also clubbed property along with other rights such as "life liberty and estate." However, it must be noted, that Locke expresses the concerns and interests of the landed and moneyed men by whose consent William III came to the throne, and his view is strictly 15

“The Bill of Rights consists of the first 10 amendments to the U.S. Constitution, which were adopted as a single unit on Dec. 15, 1791, and which constitute a collection of mutually reinforcing guarantees of individual rights and of limitations on federal and state governments. The Fifth Amendment provides that no person shall be compelled to testify against himself, forbids the taking of life, liberty, or property without due process of law or the taking of private property for public use without just compensation.” id. at p.450 16 id. at pp.460-462 17 id. at pp.485-487 7

and conservative and the limits himself to propagating the advantages of the right to property to the propertied class.

Locke thus advocated a Constitutional mode of

government, limited by parliamentary control of armed forces and supply, designed mainly to protect the rights of property and deprived the right of arbitrary taxation or regulation of the ownership of land. 1.3 From Rousseau to Foucault Rousseau's views on property18 are rather contradictory. In "Discourse on Inequality" and in the Plan for the Constitution of Corsica, he states that there are no rights ‘fundamental’ to man and property certainly was not one of them. He even states that the State and ought to be the sole owner. However, in an article on political economy, he considered property as "the most sacred of all rights of citizenship" and also called it an indispensable social right. Whatever be the contradictions and he held that property was a right within the community and not against it. But he believed that the introduction of property marked a further step toward inequality since it made it necessary for men and to institute law and government in order to protect property. Rousseau often laments the departure from the condition and in which land belonged to everyone. However he was of the opinion that although property could be regulated in a community it could never be alienated from it. This policy would seem in support of the conversion of property from a fundamental right to a legal right. David Hume19 in "Treatise of Human Nature" in 1739-40 stated that there is civic obedience only because their society in which order is preserved and property protected and consequently citizens of a State maintain order and protect property. But Karl Marx20, writing in Das Kapital, relates the ownership of property to alienation. He states that definite capitalist society man becomes an alienated being and worker is alienated from the land that he works on since he is not himself the owner of that property. Private property therefore becomes "the product of alienated labour... the means by which labour alienated itself and the tangible material expression of alienated human life". Marx further held that "Private property does not know how to change crude need into

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id. at pp.535-536 id. at pp.554-555 20 “Marx, Karl”, Encyclopedia Britannica (CD ROM) (New York: Britannica Corp., 1994-2001). 19

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human need.21"

What he wished to imply by the statement was that ownership of

property only served the interests of the capitalist and led to the domination of the proletariat. Acknowledged jurists like Laski, John Stuart Mill and Friedman held that modern democracy looked upon the right to property as one conditioned by social responsibility22. Michelle Foucault holds that one of the defects of Socialism is that are necessary condition for society being Socialist was the public ownership of at least the major means of production. However in social societies this came close to the State ownership and control of the means of production and public ownership slowly became little more than legal fiction. The control of the means of production was not in the hands of the workers them but in the hands of a very circumscribed group and the major benefits of the use of the means of production go to an even smaller elite, who were very privileged and very powerful, while the society at large people lived spartanly and had very little controlled of their own lives. Foucault seems to negate Socialist notions of property on the basis that it promotes a State ownership and not public ownership. He however does not negate the fact that the needs to be state regulation of ownership of property and goes as far to say that in a democracy such regulation is necessary23. What we see therefore from the alteration in the theories on the right to property is a chain that alters with alterations in political philosophy. In the monarchical system of government, wherein property was owned by the nobility and the king philosophers have held that property is an inalienable right however the more socialist and democratic form the government property is held to be a right that is subject to state control and regulation. Being situated in a democratic system of government one would tend to lean more toward the democratic and socialistic viewpoint of State regulation of property although ideally the possibility of community ownership would be perfect but also a distant dream. Chapter II- LEGISLATIVE HISTORY OF THE RIGHT TO PROPERTY 21

As cited in B N Ray, "Political Theory of Human Need". CONTEMPORARY POLITICAL THINKING. Edited by B N Ray. (New Delhi: Kanishka Publications.2000) at p.434 22

As cited in V.G. Ramachandran, Summary of Arguments in the Fundamental Rights Case[(1973) 4 SCC 225], (1973) 4 SCC (Jour) 35 23

Kai Nielsen, "The Crisis of Socialism and Analytical Marxism". CONTEMPORARY POLITICAL THINKING. Edited by B N Ray.(New Delhi: Kanishka Publications.2000) at pp.251-253

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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 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, or by following any lawful pursuit, which the citizen in the exercise of the liberty guaranteed may choose to adopt. 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.

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2.1Constituent 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, and within the context of their own and experiences in what way and to what degree these rights are to be limited for the good of society as a whole. The Constituent Assembly's treatment of the due process issue shows the conflict between the principles of abstract justice and the need to solve the pressing problems of social reform as a means to advance the common good. 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 acquired24.' Pandit Pant stated that if the right to property were to come under the purview of due process in the future of the country would be determined 'not by the collective wisdom of the representatives of the people but by the fiats of those elevated to the judiciary'. But K M Pannikar suggested that life and liberty should be separated from property in the rights. He stated in April 1947 that the courts should guard life and liberty but 'so far as property is concerned, it must be subject to legislation.' The committee then adopted the provision that no person could be deprived of life or liberty without due process of law25. 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 Tribes26. 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 Congress election manifesto of 1945 had called for state ownership of or control of a wide variety of industries and services and for 'removal of intermediaries between the present and the State. The Union Cabinet, in early 1948 in a broad resolution on industrial policy had laid down that property was acquired by the 24

Granville Austin. THE INDIAN CONSTITUTION-CORNERSTONE OF THE NATION . 2nd Edition. (New Delhi : Oxford University Press. 1999) at pp.84 25 26

CAD III, 3 , 468 CAD VII, 18, 75

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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. Nehru stated that it part of the Congress' long-standing programme to abolish Zamindari and the promise of equal to compensation. He further stated in this regard that 'no individual can override ultimately the rights of the community at large and no community should ensure and invade the rights of the individuals unless in default the most urgent and important reasons.' Sri Alladi Krishnaswami Ayyar stated that 'the law must reflect progressive and social techniques of the age' and that the notion of capitalism practice in the West was 'alien to the root of our civilisation. The sole end of property is Yagna and to serve the social purpose.' It was pursuant to these debates that the Constituent Assembly adopted the provision which became Article 31 of the Constitution which Nehru believed to be adequate to India's social needs. The legislative battle against the abusive potentiality of the power aspect of property through enacting constitutional amendments and legislations providing for abolition of Zamindari and others forms of agrarian intermediaries, wiping of monopolies, equitable distribution of material resources of production and protection of these economic reforms from Constitutional challenges, culminated in the repeal of provisions relating to protection of right to property from part 3 of the Constitution and placement of it as a

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Constitutional right under Article 300A in the Forty fourth-Amendment Act, which ultimately proved to be the bottom line. To understand the right to property in India it would be imperative to understand the constitutional set up that was prevalent in India under Article 31 that prevented any distribution of land. It is in this relationship that the legislative history of the right to property needs to be located. Thus the right to property guaranteed under Article 3127(now deleted) had a checkered history. On the one hand, the interpretation of this Article was not in accordance with the assumptions of the framers of the Constitution, on the other hand, the urgent need for economic development of the country and to ameliorate the lot of millions of marginalized citizens led to frequent amendments of this Article. 2.2 Initial Modifications of the Right to Property If one were to critically analyse 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 Bihar28 in 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 27

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Article 31. [Compulsory acquisition of property.] . -Rep. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f. 20-6-1979). AIR 1962 SC 1166

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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. In doing this the state seems to have been in agreement with Plato’s notion of the state having a role in the stringent regulation of land ownership.

The 4th Amendment widened the scope of Article 31A by including certain other categories of legislation, which shall be 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,29 the validity of the seventeenth amendment was challenged and the Supreme Court upheld the argument that the power of the 29

AIR 1967 SC 1643

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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 socioeconomic 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 recognise the ownership of property as a fundamental right that is not subject to state regulation or intervention. The 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. 2.3 From the 25th Amendment to the 44th Amendment The Constitution (Twenty Fifth Amendment) Act, 197130, 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.31 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 30

Upendra Baxi, “The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment”, (1974) 1 SCC (Jour) 45 31

AIR 1973 SC 1461; (1973) 4 SCC 225

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importance over fundamental rights. The 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 (44th 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 interference32. 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.

Chapter III-PROPERTY IN THE CONSTITUTION OF INDIA 3.1 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 32

Statement of Objects and Reasons for the Forty-fourth Amendment, paras. 3 & 5

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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 up33 3.2 Fundamental Rights and Directive Principles

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See Judge, Paramjit. S. SOCIAL CHANGE THROUGH LAND REFORMS . (New Delhi : Rawat Publications. 1999)

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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 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 thus34: 34

as stated in K. Subba Rao (Ex-Chief Justice of India), “The Two Judgments: Golaknath and Kesavananda

Bharati”,(1973) 2 SCC (Jour) 1

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1. Every citizen has a fundamental right to acquire, hold and dispose of property; 2. 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; 3. Whether a restriction imposed by law on a fundamental right is reasonable and in public interest or not is a justiciable issue; 4. 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); 5. The State can acquire or requisition the property of a person for a public purpose after paying compensation; 6. The adequacy of the compensation is not justiciable; 7. 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 8. 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; 9. The State has powers to impose taxes on all types of property and incomes. 3.3 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

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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 Constitution35. 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 India36. 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 citizen37. 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

35

D K Nabhirajiah v. State of Mysore, (1952) SCR 744 H. M. Seervai., CONSTITUTIONAL LAW IN INDIA , 4th ed. (Delhi: Universal Book Traders.1999) at pp. 825, 828 36

37

D.D Basu, CONSTITUTIONAL OF INDIA. 7th ed. (New Delhi: Prentice Hall of India. 1998) at p.102

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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. 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 Contemporary debates on property rights revolve around intellectual property and the notion of property as an expression of heritage and identity. This may be related in essence to the relationship that existed between property, life and liberty. The conversion of the right to property from a fundamental right to a legal right makes it amendable legal

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provisions and judicial intervention. But if property is an integral part of human existence in a democracy than property rights should have a certain amount of autonomy from state regulation. This autonomy may only be guaranteed if the legal right to property is protected by the judiciary from arbitrary state intervention and regulation. Intellectual property rights (IPRs) give the owners of intellectual property the legally enforceable power to prevent others from using an intellectual creation or to set the terms on which it can be used. If intellectual property is amendable to state regulation then the creativity and the research and development that goes into the creation of intellectual property would be considerably reduced since the provisions for the regulation of property rights act as a hindrance to innovation. In this era of globalisation it is the imperative of developing nations to encourage and develop innovations and guarantee the intellectual property right to the individuals who make the innovation. In today’s industrial countries we see that IPRs are part of the institutional infrastructure that encourages private investments in formal research and development (R&D) and other inventive and creative activities38. In contrast, India has not relied on IPRs protection as a major mechanism to foster innovation. This is due to the extent of significant inequality in the control of proprietary rights developing countries have traditionally preferred rapid dissemination of knowledge at the expense of the protection of IPRs of the individual innovators. Is the dissemination of information is in the greater common good as in the case of the pharmaceutical industry where it is imperative of the State to provide for medical care to its citizens in the case of life-saving drugs intellectual property may come under state regulation. It may be seen in this regard that the only reasonable consideration for state regulation of property of any sort is the fact that such regulation may lead to the betterment of society. There have been many reasons that have been stated in support of having the right to property as a fundamental right in the Constitution of India. In his proposition on behalf of the petitioner in support of the point that the Right to Property is one of the essential

38

Braga, C.A.P, Fink, C. and Sepulveda, C.P., “Intellectual Property Rights and Economic Development” TechNet working paper. World Bank. International Trade CD – ROM.

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features of the Constitution39 N.A. Palkhivala, Senior Advocate, enumerates his reasons as follows. Every fundamental right, he claimed, is an essential feature of the Constitution. If the Constitution-makers had thought that a particular right was not an essential feature, they would not have included it in the category of fundamental rights. Property is necessary for the subsistence and well-being of men. No man would become a member of a community in which he could not enjoy the fruits of his honest labour and industry. The preservation and security of property is one of the primary objects of the social compact that induce men to unite in society. It is precisely for this reason that the right to property has been recognised as an inalienable right by much legislation notably Section 299 of the Government of India Act, 1935 recognised the right to property and contained a safeguard against expropriation without compensation or acquisition of property for a non-public purpose. Also Article 17 of the Universal Declaration of Human Rights also recognises the right to private property. India is a signatory to that Declaration. The right to property is further essential for the effective and meaningful exercise of various other fundamental rights. For instance, the right to freedom of the Press under Article 19(1) (a) would be meaningless if a publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1) (c) to form trade unions would be denuded of its true content if the property of a trade union could be acquired by the State without compensation. The right to reside and settle in any part of the territory of India, which is guaranteed by Article 19(1) (e), would be meaningless if the State could expropriate the citizen's hut or house or household effects. The right to practise any profession or to carry on any occupation, trade or business under Article 19(1) (g) would be merely a right to do forced labour for the State if the net savings from the fruits of a citizen's personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 would lose a great deal of its efficacy if the institutions maintained by a community for its religious and charitable purposes could be acquired without compensation. It would thus be no exaggeration to say that without the right to property, it would be impossible to work the Constitution but does that imply that it must be a fundamental right. 39

Writ Petition No. 135 of 1970 submitted by N.A. Palkhivala, Senior Advocate in the matter of Kesavananda Bharat v. State of Kerala as it appeared in (1973) 4 SCC (Jour) 1

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The arguments that have been forwarded in support of the right to property as a fundamental right may be convincing if one were to take a capitalist bourgeois view. If one would consider the fact that the State must exist for greater common good then having the right to property as a fundamental right is not only incompatible but also illogical in a liberal democracy such as ours. The Constituent Assembly in its infinite wisdom included the right to property as a fundamental right, however, again in its infinite wisdom it deleted the right to property as a fundamental right in the 44th Amendment and transformed it into a legal right. This meant that the citizen of India could not come under the original jurisdiction of Supreme Court under Article 32 of the Constitution for violation of the fundamental right. More importantly it also meant that the right property was susceptible to state regulation in the interests of the greater common good. Although initially the Constituent Assembly believed that right to property had an intrinsic value is a fundamental right, in retrospect they appear to have corrected their view on the basis the private property is detrimental to the greater common good for the simple reason that it promotes existing inequalities and creates new ones. Another very pointed argument that has been raised to justify the right property as a fundamental right is that without the right property the other fundamental rights may not be exercised to the fullest. This argument may be voided as a mere syllogism since the transformation of the right to property from a fundamental right to a legal right does not delete it but merely alter its nature. A citizen of India may still approach the Court if there has been violation of his legal right and although the above stated argument may be important from legal standpoint but from a socio-political standpoint it would stand negated at the very outset. The argument that the right to property is intrinsic for the very functioning of the Constitution can be said to be a mere afterthought and has nothing more than an argumentative basis to it. In any liberal democracy which believes in equality for all, the right to property actually propagates inequality. The right to property may be fundamental in a monarchical system of government or a feudal one but in the liberal democracy it is only incompatible with the notions of "liberty, fraternity and equality" upon which any liberal democracy is based.

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14. Seervai, H. M. CONSTITUTIONAL LAW IN INDIA, 4th ed.(Universal Book Traders: Delhi, 1999) at pp. 825, 828 15. Tope, T K. “44th Amendment and the Right to Property”, (1979) 4 SCC (Jour) 27 16. Tope, T K. “Is Article 30 (1) (A) Unconstitutional?”, (1983) 2 SCC (Jour) 21 17. Tripathi, P K. “Kesavananda Bharati v. The State of Kerala Who Wins?”(1974) 1 SCC (Jour) 3 18. Writ Petition No. 135 of 1970 submitted by N.A. Palkhivala, Senior Advocate in the matter of Kesavananda Bharat v. State of Kerala as it appeared in (1973) 4 SCC (Jour) 1

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