| Mains PYQ Relevance: Q) Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy. (UPSC IAS/2014) Q) The Supreme Court of India keeps a check on the arbitrary power of the Parliament in amending the Constitution. Discuss critically. (UPSC IAS/2013) |
Note4Students:
Prelims: Article 300-A;
Mains: The decision of the Supreme Court in Kolkata Municipal Corporation;
Mentor comments: A frequently cited maxim regarding property rights is that of President John Adams, who stated, “Property is surely a right of mankind as real as liberty.” This notion of property as a fundamental right has undergone significant developments in the post-colonial era, with the right to property being fiercely contested between courts and the legislature.
Let’s learn
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Why in the News?
The recent Supreme Court decision in “Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors” has clarified that Article 300-A of the Indian Constitution, which guarantees that no person shall be deprived of their property except by authority of law, encompasses seven essential procedural sub-rights that must be protected during land acquisition.
Background
- Origin: The genesis of the power struggle over the right to property in India dates back to the case of Bela Banerjee, which involved the interpretation of Articles 19(1)(f) and 31(2) of the Constitution before the amendment. The Supreme Court held that the word “compensation” in Article 31(2) implied a just equivalent of what the owner had been deprived of. To undo this interpretation, the Constitution (Fourth) Amendment was passed in 1955, amending Article 31(2) to explicitly state that courts could not question the adequacy of compensation.
- Substituting the word “compensation” with “amount,”: they held that although the final compensation was non-justiciable, the principles fixed by the legislature to determine such compensation were open to scrutiny. Parliament realised that the word “compensation” in Article 31(2) was the source of the problem. The Constitution (Twenty-Fifth) Amendment Act, 1971, substituted the word “compensation” with “amount,” effectively keeping the courts from interpreting the adequacy of such “amount” through judicial review.
- Supreme Court response: The validity of the Constitution (Twenty-Fifth) Amendment Act, 1971, was upheld in Kesavananda Bharati, but the Supreme Court watered down the intended effect of the amended Article 31(2) through an interpretive process. The majority in Kesavananda Bharati held that though the adequacy of the amount paid was not justiciable, the courts could still examine whether the principles fixed for determining such compensation were relevant, effectively reinstating what Justice Shah had said in the Bank Nationalisation Case. After this decision, Parliament was convinced that the Right to Property remained a thorn in the goal of achieving a socialist state, as it was seen as a citadel of the bourgeoisie.
Major changes:
- Constitution (44th Amendment) Act, 1978: The Janata Party, which came to power after the 1977 general election, passed the Constitution (44th Amendment) Act, 1978. This amendment deleted Article 19(1)(f) and Article 31 from Part III of the Constitution and rehabilitated the right to property as a constitutional right under Article 300-A.
- Right to property is not absolute: Article 300-A states that “no person shall be deprived of his property save by authority of law.” This provision emphasizes that the property right is not absolute and can be regulated by law.
- Impact on the Right to Property: The deletion of Article 19(1)(f) and Article 31 led to a significant change in the Right to Property. The Right to Property was no longer a fundamental right, but a constitutional right that could be regulated by law.
| The arguments in the favour of Right to property Justice K.K. Mathew’s Observation: Justice K.K. Mathew, a dissenting judge in Kesavananda Bharati, believed that the right to own and acquire property was a fundamental right and should not have been excluded from the basic features of the Constitution. Professor P.K. Tripathi’s Views: Professor P.K. Tripathi argued that the deletion of Article 31 was a mistake and that the Right to Property was still protected by Article 300-A. He believed that “compensation” in Article 300-A meant the market value of the property at the time of acquisition. Supreme Court Interpretations: The Supreme Court has held that the Right to Property is not only a constitutional right but also a human right. In cases like M.C. Mehta and B.K. Ravichandra, the Court emphasized that laws depriving individuals of their property must be just, fair, and reasonable and that Article 300-A’s guarantee cannot be read down |
The recent decision of the Supreme Court in Kolkata Municipal Corporation has fleshed out seven different facets which are protected under Article 300-A-
Seven Facets Protected:
- 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
- Right to Restitution or Fair Compensation: The Supreme Court has reiterated that a person deprived of land by the state in the exercise of its power of eminent domain is entitled to be paid compensation which is just and reasonable.
- Position in the Bela Banerjee Case: The Court has judicially affirmed the position prevailing when the unamended Article 31 was in force, and the interpretation expounded in the Bela Banerjee case on the aspect of payment of compensation.
- Protection of Property: The decision in Kolkata Municipal Corporation vindicates the prophetic words of Prof. P.K. Tripathi, 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
Way forward:
- Ensure that the acquisition process is transparent and follows the prescribed procedures outlined in the Land Acquisition Act, 1894, and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
- Ensure that the procedures are documented and easily accessible to all stakeholders.
