Right to property before and after 1978 - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Why this topic exists. Property is the only right removed from Part III. The reason was a thirty-year conflict between the promise of land reform in Part IV and the guarantee of property in Part III. Almost every landmark of Indian constitutional law — the First Amendment, the Ninth Schedule, Golak Nath, Kesavananda — grew out of it.

1. The position before 1978

Property was protected twice over:

Article 19(1)(f) — the right of citizens to acquire, hold and dispose of property, subject to reasonable restrictions in the interests of the general public under Article 19(5).
Article 31 — no person to be deprived of property save by authority of law, and compulsory acquisition only for a public purpose and on payment of compensation.

2. The conflict with land reform

Independent India inherited zamindari and other intermediary tenures, and the States legislated to abolish them. Landowners challenged the statutes under Articles 19(1)(f) and 31, and often succeeded. Parliament responded with a sequence of amendments, and the Court with a sequence of decisions. Learn the sequence; it is the answer to most questions on this topic.

First Amendment, 1951 — inserted Articles 31-A and 31-B and the Ninth Schedule. Article 31-B provided that laws placed in the Ninth Schedule could not be challenged as violating fundamental rights.
Fourth Amendment, 1955 — made the adequacy of compensation non-justiciable.
Seventeenth Amendment, 1964 — widened the definition of estate, bringing more land legislation within Article 31-A.
Twenty-fifth Amendment, 1971 — replaced “compensation” with “amount” in Article 31, and inserted Article 31-C, protecting laws giving effect to the directive principles in Articles 39(b) and (c).
Forty-fourth Amendment, 1978 — omitted Article 19(1)(f) and Article 31 altogether, and inserted Article 300-A.

3. The cases

In I.C. Golak Nath v. State of Punjab, 1967 INSC 45, AIR 1967 SC 1643, an eleven-judge Bench held that Parliament could not amend the Constitution to take away or abridge fundamental rights — property among them. Parliament replied with the Twenty-fourth and Twenty-fifth Amendments.

In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, the challenge was to Kerala land reform legislation. The Court overruled Golak Nath and upheld the Twenty-fourth Amendment, but held that the amending power cannot damage the basic structure. It also struck down the part of Article 31-C that made a legislative declaration conclusive and immune from judicial review. The foundational case of Indian constitutional law is, in origin, a property case.

In Minerva Mills Ltd. v. Union of India, 1980 INSC 142, (1980) 3 SCC 625, the extension of Article 31-C to all directive principles, made by the Forty-second Amendment, was struck down, because it would have subordinated the whole of Part III to Part IV and destroyed the balance between them.

And in I.R. Coelho (dead) by LRs v. State of Tamil Nadu, 2007 INSC 28, (2007) 2 SCC 1, a nine-judge Bench held that laws added to the Ninth Schedule after 24 April 1973 are open to challenge on the ground that they damage the basic structure. The Ninth Schedule ceased to be an absolute shelter.

4. The position today: Article 300-A

Article 300-A provides that no person shall be deprived of his property save by authority of law. It appears in Part XII, not Part III.

What follows from the relocation:

Property is a constitutional and legal right, not a fundamental right.
It cannot be enforced by petition under Article 32, though a remedy lies under Article 226 and in the ordinary courts.
Deprivation requires the authority of law — not executive action, and not merely an order. The law must be valid and made by a competent legislature.
The Article does not in terms require compensation, but the courts have read requirements of public purpose and fairness into the exercise.

In K.T. Plantation Pvt. Ltd. v. State of Karnataka, 2011 INSC 554, (2011) 9 SCC 1, a Constitution Bench considered Article 300-A at length. The Court held that the right is a constitutional right; that deprivation must be by a law which is just, fair and reasonable; that the requirement of public purpose is implicit; and that the rule of law and Article 300-A operate as a check on arbitrary deprivation even in the absence of an express compensation clause.

One exception retained in Part III is worth noting: Article 30(1-A), which protects the property of minority educational institutions on compulsory acquisition, survived the Forty-fourth Amendment.

How this is examined

As an essay: trace the constitutional history of the right to property in India, or discuss the position of the right to property after the Forty-fourth Amendment. As a short note: Article 300-A, or the Ninth Schedule.

Structure: state the original position under Articles 19(1)(f) and 31; explain the land reform conflict as the cause; list the amendments in order with their years and what each did; give Golak Nath, Kesavananda, Minerva Mills and Coelho as the judicial half of the dialogue; then set out Article 300-A and what changed in practice, particularly the loss of the Article 32 remedy; and close with K.T. Plantation for the modern content of the right.

Now go and read the questions themselves: Constitutional Law I past question papers.