What are the effects of the abolition of the fundamental right to property on the other Constitutional rights? Build a case for or against the re-introduction of the property right as a fundamental right.

Question: What are the effects of the abolition of the fundamental right to property on the other Constitutional rights? Build a case for or against the re-introduction of the property right as a fundamental right. [BJS 1984]

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Answer

The right to property enjoyed supremacy in the Indian Constitution as it was a fundamental right. This was because the makers of our constitution thought that property is an essential human right as there is the right to vote, the right to freedom and expression, or the right to personal liberty.

However, Property is the most ambiguous of all categories. Unlike other rights of life, liberty, and equality that can at least theoretically be conceived as applying equally to all, the especially contentious nature of the right to property arises because the protection of property rights inevitably results in entrenching unequal distributions of existing property entitlements.

It was felt that the right to property as a fundamental right was a great impediment in ushering a just socio-economic order and a source of conflict when the State was to acquire private property for public purposes, particularly, expansion of rail, road, and industries, etc. Also, judicial enforcement of the property clause resulted in the invalidation of several laws seeking to bring about social and economic reform including land reform legislation, provoking several parliamentary amendments to the constitution.

This became the reason for the abolition of the right to property as a fundamental right under Article 19(1) (f) and the right of compensation under Article 31 by the Forty-Fourth Constitutional Amendment, 1978. Instead, it inserted Article 300A in a new chapter IV of Part XII of the Constitution, thereby giving ‘right to property’ a constitutional right status.

The effect of this amendment of vast magnitude is that the right to property is no more a fundamental right but is only a constitutional/legal right and in the event of breach thereof; the remedy available to an aggrieved person is to approach the High Court under Article 226 of Constitutional India and not the Supreme Court under Article 32 of the Constitution, a speedy remedy available earlier.

A Full Bench of the Kerala High Court in Elizebath Samuel Aaron’s Case [AIR 1991 Ker. 162 (FB)] observed- “The legislative history behind the deletion of Article 31 and the introduction of Article 300-A eloquently shows that Parliament intended to do away with the concept of a just equivalent or adequate compensation in the matter of deprivation of property, and to provide only a limited right, namely that no person shall be deprived of his property save by authority of law.”

As upheld by the Supreme Court in the Bank Nationalization case, R.C. Cooper v. Union of India,[ AIR 1970 SC 564] the constitutional validity of the act in the context of Article 19(1)(f). The court said that the act is not violative of the freedom to carry trade & business justifying that the state can always create a partial and absolute monopoly as per Article 19. But the court also held the said act in clear violation of Article 14 since only these 14 banks were restrained from conducting banking business in the future while other banks including the foreign banks were allowed to continue Banking in India.

Therefore, it is to be noted that according to the provision of Article 300A “No person shall be deprived of his property save by the authority of law”. The provision indicates that a person can be deprived of his property only through an Act passed by the Parliament/State Legislature and not by executive order or fiat. The word Law in Article 300A means an Act of Parliament or a State Legislature, a rule or a statutory order, having the force of law under Article 13 of the Constitution.

A reasonable restriction can be imposed on this constitutional right as per Article 19 of the constitution but the act should not be arbitrary or discriminatory as in violation of Article 14 of the Constitution which talks about equals to be treated equally.

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