The recent verdict of the Supreme Court on right to private property in a democratic polity governed by the rule of law is a landmark one. It summarizes that the state being a welfare state cannot arrogate to itself a status beyond what is provided by the Constitution.
Static dimensions:
- Original position of Private property in the Constitution
Current dimensions:
- SC ruling and its arguments
- Importance of the judgement
Content:
Original position of Private property in the Constitution:
- The Constitution of India 1949 contained Article 19(1)(f) as well as Article 31, which provided right of private ownership of property, and freedom to acquire, enjoy and dispose it off by lawful means.
- This freedom was limited only by ‘reasonable restrictions’ regarding exigencies of public welfare, or protection of the interests of a Scheduled Tribe.
- Article 31(1) provided that a person could be deprived of his property only by the authority of law, that is, private property couldn’t be taken away by an executive order.
- Article 31(2) stated that the state could take over someone’s private property only for public purposes, and only after payment of a compensation as provided for in the law.
- Due to these provisions, measures of agrarian reforms, acquisition of land for public infrastructure often ended up in complex situations as people approached the Supreme Court.
- Article 31A, 31B, 31C were introduced to nullify the effects of certain judgements.
- The 44th Constitutional amendment, 1978 completely removed Article 19(1)(f) and Article 31 from the Part III (Fundamental Rights).
- Instead, it introduced Article 300A in Part XII, which states that no person shall be deprived of his property except in accordance with law.
- Therefore, the right to property ceased to be a fundamental right, and can be regulated with the parliamentary law.
SC ruling and its arguments:
- Referring to an earlier verdict the bench held that the right to property is considered not only a constitutional or statutory right, but also a human right.
- The state cannot take possession of private property without following due procedure and authority of law.
- The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’ (Adverse possession- A plea which allows a trespasser, that is, a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years).
- This act of grabbing private land and then claiming it as its own makes the state an encroacher.
- Forcibly dispossessing citizens of their private property, without following the due process of law, would be to violate a human right, as also the constitutional right under Article 300A of the Constitution.
Importance of the judgement:
- In 1967, the Himachal Pradesh government had forcibly taken over a widow’s four acres at Hamirpur district to build a road.
- Taking advantage of the woman’s illiteracy, the state had failed to pay her a compensation for 52 years.
- It had not followed necessary proceedings while acquisition of land.
- In the judgement the court directed the state government to pay the compensation of ₹1crore to the widow in eight weeks with all statutory benefits.
- The court held that when the government forcibly took over her land, ‘right to private property was still a fundamental right’ under Article 31 of the Constitution.
- The SC exercised its extraordinary jurisdiction under Articles 136 and 142 of the Constitution.
Article 136:
The Supreme Court, in its discretion, may grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
Article 142:
The Supreme court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. It vests sweeping powers in the Supreme Court and is usually used in cases involving human rights and environmental protection.
Mould your thought:
- Right to property though no longer a fundamental right, is definitely qualified as a human right. Analyse.
Approach to the answer:
- Constitutional position of Right to property
- Recent SC ruling
- Conclusion in 2-3 sentences
