Article 35 and Evolution of Right to Property

Explore the intricate journey of Constitutional Law focusing on how Article 35 and the 44th Amendment Act, 1978 shaped the nation. This detailed guide on Fundamental Rights and the Right to Property is essential for UPSC, Law students, and competitive exam preparation.

Effecting Fundamental Rights & Present Position of Right to Property in India

• The Constitution of India ensures a unified legal framework by centralizing the power to give effect to specific civil liberties.

  At the heart of our democratic structure lies the necessity for uniformity. The framers realized that for rights to be meaningful, their enforcement and the penalties for their violation must be consistent across all states, preventing a fragmented legal landscape.

  • (i) Parliament holds the exclusive baton to legislate on specific Fundamental Rights to maintain national integrity.
  • (ii) State Legislatures are explicitly barred from making laws on these reserved subjects to avoid legal disparity.
  • (iii) This centralized authority ensures that a citizen's rights in one state are identical to those in another.

• The Scope of Exclusive Parliamentary Powers under Article 35

  Article 35 acts as a guardian of uniformity, ensuring that only the Parliament has the mandate to breathe life into certain constitutional provisions.

  • Matters Reserved for Parliamentary Legislation

    In the story of Indian federalism, certain areas are too sensitive for regional variations, thus requiring centralized legislation.

    • (i) Employment Prerequisites: Prescribing residence as a mandatory condition for specific jobs or appointments within a State, Union Territory, or Local Authority as per Article 16.
    • (ii) Empowering Judiciary: Authorizing courts other than the Supreme Court and High Courts to issue writs and orders to enforce rights under Article 32.
    • (iii) Armed Forces Discipline: Limiting or abrogating the application of fundamental rights for members of the Armed Forces, police forces, or intelligence agencies under Article 33.
    • (iv) Indemnity during Martial Law: Granting indemnity to public servants for acts performed during the operation of Martial Law under Article 34.

  • Defining Punishments for Fundamental Rights Violations

    To ensure that prohibitions against social evils are effective, the Parliament exclusively decides the severity of punishments for acts declared as offences.

    • (a) Abolition of Untouchability: Enacting penal consequences for the practice of untouchability as mandated by Article 17.
    • (b) Prohibition of Forced Labour: Prescribing punishments for Human Trafficking and Begar or forced labour under Article 23.
    • (c) Constitutional Obligation: The Constitution makes it obligatory for the Parliament to enact these laws immediately after the commencement of the Republic.

  • Continuity and Superiority of Existing Laws

    The transition from colonial rule to a sovereign republic required a bridge for existing legal statutes to remain valid and functional.

    • (i) Laws in force prior to the Constitution regarding these matters continue until the Parliament chooses to alter, repeal, or amend them.
    • (ii) Article 35 extends the legislative reach of the Parliament even into subjects that would typically fall under the State List, ensuring constitutional supremacy.

• The Dramatic Transformation of the Right to Property

  Few provisions have seen as much turmoil and legal friction as the Right to Property, evolving from a fundamental pillar to a mere legal safeguard.

  • The Original Fundamental Status (1950–1978)

    Initially, the Constitution provided a dual-layer protection for property owners, making it a Fundamental Right under Part III.

    • Article 19(1)(f) and Article 31

      • (i) Article 19(1)(f) guaranteed every citizen the right to acquire, hold, and dispose of property.
      • (ii) Article 31 protected persons against deprivation of property except by authority of law.
      • (iii) It stipulated that State acquisition must be for a Public Purpose and accompanied by Compensation.

  • The Era of Constitutional Conflict and Amendments

    The quest for social engineering and land reforms led to an intense conflict between the Parliament and the Supreme Court.

    • (i) A series of amendments including the 1st, 4th, 7th, 25th, 39th, 40th, and 42nd Amendments were passed to bypass judicial hurdles.
    • (ii) These amendments introduced Articles 31A, 31B, and 31C to shield specific agrarian and economic laws from being challenged in court.
    • (iii) The core of the dispute remained the State's obligation regarding the quantum of compensation for acquired private property.

• The Abolition of Property as a Fundamental Right

  A turning point in Indian history occurred when property was stripped of its Part III status to balance individual rights with social welfare.

  • Impact of the 44th Amendment Act, 1978

    The Janata Government introduced the 44th Amendment, fundamentally altering the constitutional landscape of Property Rights.

    • (i) Articles 19(1)(f) and 31 were officially repealed, removing them from the category of Fundamental Rights.
    • (ii) A new Article 300A was inserted in Part XII under the heading 'Right to Property'.
    • (iii) It now serves as a Constitutional Right or Legal Right, stating that no person shall be deprived of property except by "authority of law."

  • Modern Implications of the Legal Right Status

    The shift from Fundamental to Legal right brought significant changes to how property is protected against the State.

    • (a) Legislative Flexibility: It can be regulated, curtailed, or modified by an ordinary law of Parliament without needing a complex Constitutional Amendment.
    • (b) Executive vs. Legislature: It protects the citizen against arbitrary Executive Action, but offers no immunity against Legislative Action.
    • (c) Remedy Limitation: In case of violation, a person cannot move the Supreme Court directly under Article 32, though they can approach High Courts under Article 226.
    • (d) Compensation Status: There is no longer a constitutionally guaranteed right to compensation for State acquisition, except in specific cases.

  • Exceptions: When Compensation is Still Mandatory

    Despite the general rule, two specific exceptions remain where the State must pay compensation at market value.

    • (i) Minority Institutions: Acquisition of property belonging to a Minority Educational Institution as per Article 30.
    • (ii) Ceiling Limits: Acquisition of land held by a person under his personal cultivation which is within the Statutory Ceiling Limits as per Article 31A.

  • Retained Provisions: Articles 31A, 31B, and 31C

    Interestingly, while the main right was abolished, the protective shields created during the conflict years remain part of the Constitution.

    • (i) Articles 31A, 31B, and 31C continue to exist as Exceptions to Fundamental Rights to protect social welfare legislation.

• Summary of Constitutional Evolution and Student Relevance

  The journey from Article 31 to Article 300A represents the evolution of Indian Democracy toward a socialist pattern. Understanding the 44th Amendment Act, 1978 and the exclusive powers of Parliament under Article 35 is vital for students to grasp the balance between Individual Liberty and State Authority. This transition remains a cornerstone of Judiciary and Civil Services examinations.