44th Amendment, 1978 and The right to property
by a somewhat hasty step, the Janata Government, headed by Morarji Desai, has taken out an important fundamental right, namely, the right of Property, by omitting Arts. 19(l)(f) and 31, by the 44th Amendment Act, 1978. Of course, the provision in Art. 31(1) has, by the same amendment, been transposed to a new article,—Art. 300A, which is outside Part III of the Constitution and has been labelled as ‘Chapter IV’ of Part XII (which deals with ‘Finance, Property, Contracts and Suits’),—but that is not a ‘fundamental right’. While under the Congress rule for 30 years, the ambit of the Fundamental Rights embodied in Part III of the original Constitution had been circumscribed by multiple amendments, bit by bit, the death blow to one of the Fundamental Rights came from the Janata Government. The net result of the foregoing amendments inflicted upon the right to Property are— (i) The right not to be deprived of one’s property save by authority of law is no longer a ‘fundamental right’. Hence, if anybody’s property is taken away by executive fiat without the authority of law or in contravention of a law, the aggrieved individual shall have no right to move the Supreme Court under Art. 32. (ii) If a Legislature makes a law depriving a person of his property, he cannot challenge the reasonableness of the restrictions imposed by such law, invoking Art. 19(l)(f), because that provision has ceased to exist.4 (iii) Since Cl.(2) of Art. 31 has vanished, the individual’s right to property is no longer a guarantee against the Legislature in respect of any compensation for loss of such property. Article 31(2) [in the original Constitution] embodied the principle that if the State makes a compulsory 82 acquisition or requisitioning of private property, it must (a) make a law; (b) such law must be for a public purpose; and (c) some compensation must be paid to the expropriated owner. Of course, by the 25th Amendment of 1971, during the regime of Mrs. Gandhi, the requirement of ‘compensation’ was replaced by ‘an amount’, the adequacy of which could no longer be challenged before the Courts. Nevertheless, the Supreme Court held, the aggrieved individual might complain if the ‘amount’ so offered was illusory or amounted to ‘confiscation’.5 But even such an innocuous possibility has been foreclosed by the 44th Amendment. The short argument advanced in the Statement of Objects and Reasons of the 45th Amendment Bill for deleting the fundamental right to property is that it was only being converted into a legal right. What is meant is that while Arts. 19(l)(f) and 31(2) of the original Constitution operated as limitations on the Legislature itself, the 45th Amendment Bill installs the Legislature as the guardian of the individual’s right to property, without any fetter on its goodwill and wisdom. But if the Legislature could be presumed to be so infallible and innocent, this would be a good argument for omitting all the fundamental rights from Part III. As it has been pointed out earlier, the very justification of putting limitations on the Legislature by adopting a guarantee of Fundamental Rights is that history has proved that the group of human beings constituting, for the time being, the majority in a Legislative body, are not always infallible and that is why constitutional safeguards are necessary to permanently protect the individual from legislative tyranny. Thirdly, by subsequent amendments, the arena of Fundamental Rights has been narrowed down by introducing certain exceptions to the operation of fundamental rights, namely, Articles 31A, 31B, 31C, 31D.
IAS NETWORK 