New Delhi: Following a petition asking for the restoration of the right to property to a fundamental right, the Supreme Court on Friday asked the Union government to explain why the petition should not be allowed. The court issued a notice to the government on the petition that questions a 1978 amendment to the Constitution that removed the right to property from the list of fundamental rights.
In 1978, the Constitution (44th) Amendment Act was passed by the then ruling Janata Party, repealing the right to property accorded to every citizen in Article 19(1)(f) and Article 31. The fundamental right consequently became a mere legal right that could not be challenged in the courts on the basis of constitutional law.
Article 31 had said: “No person could be deprived of property without due process of law” and “no property...shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation...” The repeal of the right essentially gave the state eminent domain, or the power to take over private property for public use.
Sanjiv Kumar Agarwal, a businessman and founder of the not-for-profit Good Governance India Foundation, had filed the petition in July 2007. The petition argues that since the judgement of the Supreme Court in the Kesavananda Bharati case in 1973, which held that fundamental rights are part of the basic structure of the Constitution, the later amendment abolishing the right to property was invalid.
Chief Justice of India K.G. Balakrishnan issued a notice to the Union government seeking its response after senior counsel Harish Salve, appearing for Agarwal, told the bench that this was the first time a petition challenging the amendment had been brought before the court. The petition also questions the government’s SEZ policy, which allows the state to take over private property under the Land Acquisition Act.
Should the right to property be restored to a fundamental right, citizens will be able to challenge state acquisition of land. The Centre’s SEZ policy is already under challenge in the Supreme Court in public interest litigations.
However, Walter Fernandes, a former director of Indian Social Institute and currently head of North Eastern Social Research Centre, said even if the court decides in favour of Agarwal, it would only make a “marginal difference”. “Eighty per cent of those affected are ordinary people, many don’t have legal title over land, like landless labourers and small-time merchants, whose livelihood is attached to acquired land,” he said. He added that the Rehabilitation and Resettlement Bill, 2007 and the Land Acquisition (Amendment) Bill, 2007 approved earlier this week make it easier for the government to acquire land.