Court rejects plea to make property a fundamental right

The Supreme Court has dismissed a public interest litigation petition seeking a direction to make ‘right to property' a fundamental right under the Constitution.

Though the ‘right to property' was deleted by the 44{+t}{+h} Constitution Amendment in 1978, it was challenged only in 2007 in the context of acquisition of large extents of land for Special Economic Zones, and the court issued notice to the Centre.

It was contended in the PIL petition that nowadays, further inroads into the right to property were evident in the newly formed policy on SEZs, “which has as its goal the taking over of the property of individuals, small peasants and farmers under the Land Acquisition Act without reference to their reasonableness.”

On Monday, a Bench of Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Justice Swatanter Kumar, however, rejected the petition filed by Sanjiv Kumar Agarwal, founder of the Kolkata-based Good Governance India Foundation. Its dismissal is likely to have a bearing on land acquisition for SEZs.

When counsel Gopal Sankaranarayanan said the right to property was deleted by the 44{+t}{+h} Amendment, the Bench said, “It has to be read along with the 42{+n}{+d} Amendment by which the word ‘socialist' was inserted in the Preamble to the Constitution. The CJI said: “If your contention is to be accepted, then we will have to reverse earlier judgments on property rights. Recently we dismissed the Gudalur Janmam petition seeking similar relief. We can't reopen the issue.”

44th Amendment

The petition challenged the deletion of Article 19 (1) (f) from the Fundamental Rights chapter of the Constitution by the 44th Amendment. According to the object of this Amendment, “In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Article 19 and Article 31 [compulsory acquisition of property] is being deleted.”

The petitioner contended that over the years the importance of the right of individuals to private property was limited in scope and size and was constantly invaded by schemes of acquisition without any safeguard as to the reasonableness of the law or their ultimate purpose.

The right to property, which existed as a fundamental right on April 24, 1973 when the court decision in the Kesavananda Bharati case was pronounced, was part of the basic structure and could not have been amended, leave alone deleted.

The petitioner said Article 19 (1) (f) was inextricably linked to Articles 19 (1) (d), (e) and (g), viz. the right to move, the right to reside and settle in any part of the country and the right to occupation, which together formed the fabric of unity and integrity of the nation. And without the right to acquire, hold and dispose of property, these other rights would become ephemeral and meaningless.

The petitioner, therefore, sought a direction to strike down the 44th Amendment as being violative of the basic structure of the Constitution.