Repatriate property to the Fundamental Rights Charter

The Supreme Court of India recently in Kolkata Municipal Corporation & Anr v. Bimal Kumar Shah & Ors case examined the constitutional position of acquisition of property by the State and opined that the mere legislative presence of power to acquire coupled with a provision for payment of fair compensation by itself is not sufficient for a valid acquisition.

Interpreting “authority of law” in Article 300A of the Constitution, the Court held that a minimum content of a constitutional right to property comprises seven subrights or procedures such as the right to notice, hearing, reasons for the decision, to acquire only for public purpose, fair compensation, efficient conduct of the procedure within timelines and finally the conclusion.

These sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands.

This sagacious judicial pronouncement invigorates the Constitutional human rights jurisprudence in India remarkably.

The Supreme Court pointed out that even though the Constitution (44th Amendment) Act of 1978 drifted the right to property from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making, and unfair redressal mechanisms.

“Despite its spatial placement, Article 300A which declares that “no person shall be deprived of his property save by authority of law” has been characterized both as a constitutional and also a human right.”-the Court observed.

The Court emphatically held that the aforementioned seven sub-rights constitute the real content of the right to property under Article 300A, and noncompliance with these will amount to a violation of the right, being without the authority of law.

An unalienable right

John Locke, the English constitutionalist, propounded that man was endowed by his Creator with the unalienable natural rights of life, liberty, and property.

He stated that human entitlements are the greatest and chief end of man’s uniting into commonwealth and man put himself under government mainly for the preservation and protection of his property.

Locke further stated that even if the commonwealth was based on freely elected representatives, it could not dispose of the property of its subjects arbitrarily. By stating so, he paved the foundations of the universal human right of private property.

Article 17 of the Universal Declaration of Human Rights states that “everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property”.

While framing our Constitution, the founding fathers conceived the right to property as a bedrock of fundamental rights. In his Note and Draft Articles on Fundamental Rights dated 17 March 1947, K.M. Munshi presented Article V (4) which read: “No person shall be deprived of his life, liberty or property without due process of law.”

Dr Ambedkar and Prof. K.T. Shah also advocated for providing the Due Process guarantee for the right to property in the Constitution. The Report of the Sub-Committee on Fundamental Rights dated 16 April 1947, submitted by its chairman J.B. Kripalani, also reiterated the same stand.

In the Constituent Assembly, it was Govind Ballabh Pant who vehemently opposed the Due Process guarantee for property due to his apprehension that such a clause would hamper the agrarian and land reforms.

C.Rajagopalachari successfully proposed a compromise that modified the Due Process Clause by deleting property from it and limiting it for life and liberty. But, alas, eventually the Due Process Clause altogether was driven out of the Constitution!

Subsequently, the right to acquire, hold, and dispose of property was made a fundamental right under Article 19(1)(f) of the Constitution.

However, the 44th Amendment Act of 1978 removed this right from the list of fundamental rights and placed it under Article 300A as a constitutional right.

The shift from a fundamental right to a constitutional right means that the right to property is no longer enforceable through the Supreme Court under Article 32. It can only be enforced through a High Court under Article 226.

Bulldozer in the Naboth’s vineyard

The biblical story of Naboth’s vineyard underscores the man’s millennia-old attachment to his property and the sacrosanctity of property rights. Humble Naboth owned a tiny vineyard that was close to King Ahab’s palace in Jezreel.

Ahab asked Naboth if he could buy the vineyard so that he could use it as a vegetable garden. Naboth refused because the land was his ancestral inheritance. Ahab’s queen Jezebel resolved the issue by writing a letter to the nobles of Jezreel.

In the letter, the nobles were instructed to (falsely) accuse Naboth of cursing God and the king. Afterward, they were to stone Naboth to death outside the city.

These instructions deliberately adhered to the Biblical code of criminal justice, so that the public would not suspect foul play. The conspiracy succeeded, with Naboth’s corpse being licked by stray dogs.

After Naboth was executed, King Ahab acquired the vineyard. But God punished King Ahab and his scheming queen with unbearable torments. The parable conveys the moral that the right to property must be honoured beyond the might of the state.

Richard A. Epstein, an American legal scholar, in his Supreme Neglect: How to Revive Constitutional Protection for Private Property (2008) argues that “the faithful constitutional protection of the private property is not some parochial exercise” but “an indispensable part of any comprehensive constitutional order that advances long-term social welfare”. 

Against the backdrop of the economic liberalization in India since 1991 and the recent judicial pronouncement, it is now opportune to re-incorporate the right to property into the Fundamental Rights Charter.

Such an act will entrench India’s position as a republic committed to human rights. The re-incorporated right to property would rather fence the humble vineyards of hapless Naboths than guard the vast estates of tycoons and deep pockets.

(Faisal C.K. is Deputy Law Secretary to the Government of Kerala. Views are personal.)