Monday, January 11, 2016

Wahi on The Fundamental Right to Property in the Indian Constitution

Namita-wahiNamita Wahi (Harvard - Fellow) has posted The Fundamental Right to Property in the Indian Constitution on SSRN.  Here's the abstract:

The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished in 1978. Unlike other rights of life, liberty, and equality that can at least theoretically be conceived as applying equally to all, the especially contentious nature of the right to property arises because the protection of property rights inevitably results in entrenching unequal distributions of existing property entitlements. This chapter narrates the evolution of the fundamental right to property in the Indian Constitution, and outlines the chequered trajectory of its doctrinal development, following the First (1951), Fourth (1955), Seventh (1956), Seventeenth (1964), Twenty-Fourth (1971), Twenty-Fifth (1972), Twenty-Sixth (1972), Twenty-Ninth (1972), Thirty-Fourth (1974) and Thirty-Ninth (1975) constitutional amendments. The Forty Fourth Constitutional Amendment, 1978, deleted Articles 19(1)(f) and 31 from Part III, the chapter on Fundamental Rights in the Constitution. Instead, it inserted Article 300A in a new chapter IV of Part XII of the Constitution, thereby depriving the ‘right to property’ of its ‘fundamental right’ status. However, in the last five years, there have been attempts made judicially to restore the right to its fundamental right status, as it existed before the Forty Fourth amendment. Simultaneously, the requirements of ‘public purpose’ and ‘compensation’ have been strengthened legislatively through the repeal and replacement of the Land Acquisition Act 1894 by the LARR Act 2013. The LARR Act’s amendment by the thrice promulgated LARR Amendment Ordinance within a year of its enactment, and yet the inability of the government to garner parliamentary support to pass the LARR Amendment Bill, 2015, into law, testifies to the intense social and political contestation around the contours of the right to property, both as a legal and constitutional right.

The paper argues that the trajectory of the right to property in the Constitution, as seen from the drafting of the original constitutional property clause, and its evolution through judicial interpretation, legislation, and constitutional amendment, demonstrates the Indian State’s continual attempts to reshape property relations in society to achieve its goals of economic development and social redistribution. Each iteration of the property clause favoured property rights of certain groups and weakened those of others and was the product of intense contestation between competing groups that used both the legislature and the judiciary to further their interests. Concomitantly, lurking behind the development of the Supreme Court’s doctrinal jurisprudence is the Court’s fear of arbitrariness of State action. Almost all of the property cases also involved a challenge on grounds of the equality guarantee in Article 14, and in a majority of these cases, the impugned law was invalidated for violating the right to equality and not the right to property.

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