News Excerpt:
The right to property initially envisaged as a fundamental right and later as a constitutional right has witnessed an interesting history in the post-colonial era. No other right as enshrined in the Constitution has witnessed a tussle as fierce as between courts and the legislature.
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- The genesis of this power struggle dates back to the case of Bela Banerjee which involved the interpretation of Articles 19(1)(f) and 31(2) of the Constitution (prior to amendment).
- The Supreme Court of India held that the word compensation in Article 31(2) postulated “a just equivalent of what the owner has been deprived of”.
- To undo this interpretation, the Constitution (Fourth) Amendment was passed in 1955 amending, inter alia, Article 31(2) to expressly state that the courts could not delve into the question of inadequacy of compensation.
- To retaliate, the courts then devised an ingenious plan: they held that although the final compensation was non-justiciable, the principles fixed by the legislature to arrive at such determination would be open to scrutiny.
Word substitution
- The word "compensation" in Article 31(2) of the Indian Constitution was the source of controversy.
- The Constitution (Twenty-Fifth) Amendment Act, 1971 substituted the word "compensation" with "amount" to avoid judicial interpretation.
- The validity of the Constitution (Twenty-Fifth) Amendment Act, 1971 was upheld in Kesavananda Bharati, the Supreme Court watered down the intended effect of the amended Article 31(2) by an interpretive process .
- In the Kesavananda Bharati case, the Supreme Court ruled that while the adequacy of the amount paid was not justiciable, the courts could still examine whether the principles for determining such compensation were relevant.
- Parliament was convinced that the right to property remained a proverbial thorn in the goal of achieving a socialist state. This was because the right to property, from a socialist point of view, was very much a citadel of the bourgeoisie.
A significant change
- After the 44th Amendment in 1978, Article 19(1)(f) regarding the right to property was deleted from Part III of the Constitution and was rehabilitated in the form of a constitutional right under Article 300-A.
- Article 31, which had witnessed much controversy in the matter of the determination of compensation, was also deleted. The ripple was felt instantly.
- Justice K.K. Mathew, who was one of the dissenting judges in Kesavananda Bharati, observed that ownership of property has a direct correlation to the quality of the civilisation and its culture and hence opined that
- “There is no justification to exclude the fundamental right to own and acquire property from the category of basic features of the Constitution even if it be assumed that the concept of basic structure is a tenable one”.
- Article 300A states that "no person shall be deprived of his property save by authority of law," which, meant that:
- The “law” cannot be valid unless the acquisition or requisitioning is for a public purpose and there is also a provision in the law for paying compensation.
- The Supreme Court has held that the right to property is not only a constitutional right but also a human right, and any law depriving a person of property must be just, fair, and reasonable.
- In the case of M.C. Mehta, the Supreme Court held that to be a valid law, it must be just, fair and reasonable.
- In other words, though the right to property was not a fundamental right, a law which deprived a person of his property must answer to the requirements of Articles 14,19 and 21.
- In B.K. Ravichandra, the Court went a step further and observed that the phrasing of Article 300A had a striking resemblance to Articles 21 and 265 and hence its guarantee could not be read down.
Facets that are protected
- The recent decision of the Supreme Court in Kolkata Municipal Corporation has fleshed out seven different facets which are protected under Article 300-A. These are:
- The right to notice;
- The right to be heard;
- The right to a reasoned decision;
- The duty to acquire only for public purpose;
- The right of restitution or fair compensation;
- The right to an efficient and expeditious process;
- The right of conclusion.
- The Supreme Court reiterated that deprivation or extinguishment of the right to property is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation, or similar means, reinstating the requirement of paying compensation as per the Bela Banerjee case.
Conclusion:
The decision in Kolkata Municipal Corporation vindicates held that in enacting the Forty-Fourth Amendment and deleting Articles 19(1)(f) and 31, Parliament has unwittingly given the property of a citizen the kind of protection it has never enjoyed before either in British or in independent India.
