Originally, there were seven Fundamental Rights under Part III of the Constitution. Article 19 (1)(f) guaranteed to every citizen the right to acquire, hold and dispose property. Article 31, on the other had, stated that no person, citizen or non-citizen can be deprived of his property, except by authority of law. The State was empowered to acquire or requisition the property only under two conditions: (a)It should be for public purpose. (b)It should provide for payment of compensation to the owner.
Articles 31A, 31B and 31C have also had their own share of controversies. These articles contain certain laws that the Supreme court cannot challenge as unconstitutional on the grounds of contravention of articles 14 and 19 of the Constitution.
Since the commencement of the Constitution, these two articles have created many controversies and pitched the Supreme Court and the Parliament against one another more than once. The Parliament saw this right as a hurdle when it came to acquire land and numerous amendments were made (1st, 4th, 7th, 25th, 39th, 40th and 42nd) to add and modify Articles 31A, 31B and 31C so as to nullify the effect of Supreme Court judgments and protect certain laws from being struck down by the courts on the grounds contravention of the Fundamental Rights. Most of the litigation centered around the obligation of the state to pay compensation for acquisition of private property.
Finally, the Parliament abolished the Right to Property as a Fundamental Right by repealing articles 19(1)(f) and 31 from part III by the 44th Amendment act, 1978. Thus, the Right to property was no more a Fundamental Right. But to say that the Right to Property was totally discarded would be wrong, because it was added to the constitution as Article 300A. It can be said, that the Right to property no more remains a Fundamental right but exists as a legal right and consequently no longer a part of the basic feature of the Constitution.
The implications of the Right to property as a legal right is that a constitutional amendment is not required to curtail or abridge or modify this right. An ordinary law of the Parliament will suffice.
Furthermore, a person cannot move the Supreme Court under Article 32 (right to constitutional remedies) if it is violated and the SC cannot issue any writ regarding the violation. The person can approach the High Courts under Article 226 in case of violation of the Right, to which the courts are empowered to issue legal writs. It should also be noted that Article 300A protects property from executive action but not legislative action and the right to compensation is not guaranteed in case of acquisition or requisition of private property.
Though the Right to Property was abolished as a Fundamental Right, Part III still carries provisions for the guaranteed right to compensation on acquisition or requisition of property in two cases:
- When the State acquires the property of a minority educational institution (Article 30)
- When the State acquires the land held by a person under his cultivation and the land is within the statutory ceiling limits.(Article 31 A).
Articles 31A, 31B and 31C have also had their own share of controversies. These articles contain certain laws that the Supreme court cannot challenge as unconstitutional on the grounds of contravention of articles 14 and 19 of the Constitution.
Article 31A saves five categories of laws from being challenged in court. These are related to agricultural land reforms, industry and commerce and include the following:
- Acquisition of estates and related rights by the State
- Taking over the management of properties in the State
- Amalgamation of corporations
- Modification or extinguishment of rights of directors or shareholders of corporations, and
- Extinguishment or Modification of mining leases.
Article 31C was inserted by the 25th Amendment Act, 1971 with the object of getting over difficulties in giving effect to Directive principles in part IV of the Constitution. As it originally stood, Article 31C shielded any law from being challenged in SC for violation of Articles 14, 15 and 31 which was enacted for implementing the Directive Principles mentioned in clause (b) and (c) of Article 39. Further, it provided that no such law which was enacted for the purpose of giving effect to Article 39(b)(c) would not be open to judicial review. The Supreme Court struck down the second part as offending against the basic structure of the Constitution, as per the ruling of Sc in Keshavananda Bharti case (1973). It is also to be noted that the Parliament tried to shield laws enacted to give effect to any of the Directive Principles in part IV, by the 42nd Constitutional Amendment Act, 1976. But the Supreme Court held that the extension of shield of Article 31C to all the Directives over the Fundamental Rights was beyond the amending power of the Parliament, as it gave primacy to the Directive Principles over the fundamental rights and also destroyed the power of judicial review, as the 42nd Amendment Act totally excluded judicial review of a law implementing a Directive Principle if it offended against Article 14 or 19 (Minerva Mills case 1980). The result was that Article 31 C was restored to its original pre 1976 position, namely to protect laws which gave effect to Directive Principles mentioned in clause a, b of Article 39, subject, of course to judicial review. Clause b of Article 39 directs the state to secure equitable distribution of material resources of the community for the common good while clause c directs the state to secure prevention of concentration of wealth and means of production. Thus Article 31C makes possible the nationalisation or the taking under public management and control of all means of production, key industries, mines, minerals, public supplies, utilities and services.
