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CONTENTS

TABLE OF CASES .............................................................................................................. 2


REVIEW OF LITERATURE ............................................................................................... 3
CHAPTER 1- INTRODUCTION ..................................................................................... 4
CHAPTER 2- LEGISLATIVE HISTORY OF THE RIGHT TO PROPERTY .......... 6
2.1 - Constituent Assembly Debates ......................................................................................................... 7
2.2- Pre-Constitutional Position of Right to Property ............................................................................... 8
2.3- Post Constitutional Developments ..................................................................................................... 8
CHAPTER-3 MODIFICATION OF THE RIGHT TO PROPERTY ....................... 10
3.1-Initial Modification ........................................................................................................................... 10
3.2- From the 25th Amendment to the 44th Amendment ......................................................................... 12
CHAPTER 4- LAND REFORMS IN THE CONSTITUTION OF INDIA ................. 16
4.1- Land Reforms .................................................................................................................................. 16
4.2- Fundamental Rights and Directive Principles ................................................................................. 17
4.3 The Evolution and Status of the Right to Property ........................................................................... 19
Conclusion ......................................................................................................................... 22
Bibliography- .................................................................................................................... 23

1
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

2
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.

3
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 things3 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 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.

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

4
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.

With reference to the right to property in the Constitution In the case of Kesavananda Bharati v.
State of Kerala5 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.

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

5
(1973) 4 SCC 225

5
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 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

6
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
6
Granville Austin. THE INDIAN CONSTITUTION-CORNERSTONE OF THE NATION. 2nd Edition. (New Delhi : Oxford
University Press. 1999) at pp.84

7
distributed to subserve the common good and the operation of the economic system should not
result in the concentration of wealth.

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

8
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 .

9
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 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.

7
AIR 1962 SC 1166

10
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
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.

8
AIR 1967 SC 1643

11
3.2- From the 25th Amendment to the 44th Amendment

The Constitution (Twenty Fifth Amendment) Act, 19719, 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 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.

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

12
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 interference 11 . 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.

 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

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

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

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

(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

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.
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

14
Statement of Objects and Reasons for the 44th Amendment: Paragraphs 3, 4 and 5 of that
Statement run as follows:
“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.

15
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

16
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 none
can be made redundant. The plea that Fundamental Rights are an impediment to the
16
See Judge, Paramjit. S. SOCIAL CHANGE THROUGH LAND REFORMS. (New Delhi : Rawat Publications. 1999)

17
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;
 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;

17
as stated in K. Subba Rao (Ex-Chief Justice of India), “The Two Judgments: Golaknath and Kesavananda
Bharati”,(1973) 2 SCC (Jour) 1

18
 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.

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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

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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.

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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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Bibliography-

1. Kashyap Subhash, The framing of India’s Constitution, A study, 2nd edn. Vol 5 Universal
Law Publishing Co. Pvt.Ltd.
2. Jain M P, Indian Constitutional Law, 5th edition, 2008, Lexis Nexis, Buttorworths Wadhwa
Nagpur.
3. Basu DD, Commentary on the Constitution of India, 8th edn 2008, Vol. 3 Lexis Nexis
Buttorworths Wadhwa Nagpur.
4. Saharay, H K, The Constitution of India, an analytical approach, 3rd edn, Eastern Law House.
5. Bhansali, S.R. The Constitution of India, Vol 1, India Publishing House, Jodhpur.
6. Seervai, H.M. Constitutional Law of India, A critical Commentary, 4rth edn. Universal Law
Publishing Co. Pvt. Ltd.
7. Shukla V.N., Constitution of India, 10 edn., 2001, Eastern Book Co.
8. Pylee M.Y., Constitutional Amendment in India, 3 edn, 2010, Universal Law Publishing Co.
9. Basu D. D., Casebook on Indian Constitutional Law, Kamal Law House, Kolkata.
10. Bakshi P.M., The Constitution of India, Universal Law Publishing Co.

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