Saturday, September 17, 2011

Amendments History of Private Property Right

I post here the full article for record:

Land acquisition and right to property by Sudhanshu Ranjan
"Right to property has seen various mutations, in effect, granting more powers to the State to acquire for ‘public purposes'
The issue of land acquisition by the State and the compensation paid to the owner has been a cause of turmoil in recent times. The problem, however, is not new. This is borne out by the repeated amendments that have been made to the ‘right to property'.
The proposed new law on land acquisition, which may be placed in Parliament soon, would virtually re-open the legal debate on the right to property, where the courts and Parliament have been at loggerheads.
The power of eminent domain — the legal capacity of the State to acquire the private property of individuals for public purposes— has been recognised as an essential attribute of a sovereign State.
The Supreme Court, however, held in Kameshwar Singh v. State of Bihar (1951) that though this power is recognised, Constitutional provisions define safeguards subject to which the right may be exercised. The State has, in turn, sought to spell out exceptions to the right to property from time to time. What we see today is a situation where eminent domain has been exercised on dubious grounds.
Statute changes
Article 31 of the Constitution made the right to property a fundamental right, which clearly stated that no person would be deprived of his property save by authority of law, and it would not be acquired save for a public purpose, and most crucially, it provided for the payment of adequate compensation.
Article 31 was amended six times before it was repealed. In its place there were a number of Constititional Amendments, essentially circumscribing the right to property.
The Fourth Amendment to the Constitution stated that acquisition of property cannot be challenged on grounds of adequacy of compensation. The six amendments to Article 31A were aimed at enhancing the power of the State.
The Fourth Amendment restated more precisely the power of the State for compulsory acquisition and requisition of private property, and distinguished it from cases where State caused “deprivation of property”. The Seventeenth Amendment further restricted the fundamental right to property. The concept of “estate” was expanded to overcome the Supreme Court's decisions and those of the Kerala High Court. Ryotwari estates were specifically included in Article 31A, even as the Supreme Court held in Karimbil Kunhikonam v. State of Kerala that ryotwari estates did not fall within the ambit of Article 31A. At the same time, the State was restrained from acquiring any self-cultivated land within the ceiling fixed by law till compensation not less than the market value was paid.
Many of these changes were placed under the Ninth Schedule, rendering them immune to judicial review.
The confrontation between the court and Parliament veered around the right to property. When the court persisted in its interpretation of the word “compensation”, Parliament substituted it with the word “amount” in the Constitution (Twenty-Fifth Amendment) Act, 1971. During Nehru's time, 17 amendments to the Constitution were effected.
The controversial ones were those which restricted judicial review in respect of the right to property.
The propertied class was worried and challenged the validity of those amendments on the grounds that they attacked the fundamental rights.
The issue was whether Parliament could use the power of amendment to deprive the people of fundamental rights guaranteed by the Constitution.
Article 13 (2) says that the State shall make no law that takes away or abridges the fundamental rights. The question is whether Constitutional amendments are “law” or not.
In a landmark judgement in 1967 the Supreme Court in I. C. Golaknath v. State of Punjab held that a Constitutional amendment effected under Article 368 was a “law” within the purview of Article 13(2). The case called into question the inclusion of the Punjab Security of Land Tenures Act, 1953, in the Ninth Schedule, the court observing that the First, Fourth and Seventeenth Amendments themselves were unconstitutional as they precluded judicial review of laws relating to property.
The inclusion of the Mysore Land Reforms Act (10 of 1962 as amended by Act 14 of 1965) was assailed on the same grounds.
A Constitution Bench of 11 judges heard it and the court decided by a majority of 6:5 that none of the fundamental rights could be taken away or even abridged.In 2007, the Supreme Court held that laws placed under the Ninth Schedule after April 1973 would be open to review.
Current context
The recent agitations of farmers against land acquisition and compensation stem from the fact that the State governments have been behaving like property dealers. In Uttar Pradesh, land acquired at the rate of Rs. 880 per square metre was sold to builders at the rate of Rs 4,800 and an additional Rs 2,600 was allegedly paid ‘below the table'. If farmers sell directly to builders they could have earned more.
The Land Acquisition Act, 1894, provides for taking private property for public purposes, the eminent domain principle. In 1984, this Act was amended radically, providing that compensation once announced by the government cannot be reduced as could be done under the 1894 Act, and that compensation is to be provided at projected market rate.
Besides, it provided for ‘solatium compensation' for psychological injury caused because of displacement.
Now, another Land Acquisition Bill is likely to introduced in the next session of Parliament.
A just formula of compensation has to be worked out, and the buyer must be forced to return the land to the seller if it is not developed within a reasonable time span."
(The author is a Senior TV journalist and columnist.) (This article was published on June 14, 2011 in The Business Line)

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