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Madhavi Sharma,
Haveli Institute of Legal Studies & Research
INTRODUCTION
In our constitution of India, Part III guarantees India fundamental rights. The Latin legal maxim salus populi suprema lex, which means let the welfare of the people be the supreme law, is clearly highlighted in the right to property journey from being a fundamental right to being a part of our constitutional rights. The proactive role of the judiciary in upholding and promoting citizens’ rights and preserving the constitutional and legal system of our country was mainly through the judicial activism of the Supreme Court in protecting the fundamental rights of citizens of India. Judges play an active role in interpreting laws through judicial activism. By supporting and playing vital roles in the country’s governance and justice system framework, legal reforms with immediate impact can address it in shaping pressing issues, and this has its own great importance in judicial interpretation, which requires meeting the needs of society and enhancing the justice system with advanced development. This particular right to property has gone through amendments and has also undergone recent legal reforms.
44TH AMENDMENT OF THE CONSTITUTION OF INDIA
The 1st Constitutional Amendment (1951) added Article 31A to provide for the acquisition of any estate as against the provisions enshrined under Articles 14 and 19. It was the 44th Amendment of 1978, in which, in the constitution, Article 31 and Article 19(1)(f) were in Part III of the Fundamental Rights, which were removed from it. This amendment was made because the government was unable to proceed with public infrastructure projects and reforms after people began approaching the courts to prevent the acquisition of private property. The right to property was made a constitutional right under Article 300A and a human right (as held in various court decisions, such as State of Haryana v. Mukesh Kumar & Ors., A.I.R. 2012 S.C. 559). Article 300A provides that “no person shall be deprived of his property save by authority of law.”
SUPREME COURT ADDED SUB-RIGHTS TO THE RIGHT TO PROPERTY
SC in Kolkata Municipal Corporation v. Bimal Kumar Shah & Ors., S.C.C. 2024 SC 340
A bench of Justices P S Narasimha and Aravind Kumar interpreted “authority of law” in Article 300A of the Constitution, holding that a minimum content of a Constitutional right to property comprises of seven sub-rights or procedures such as the right to notice, hearing, reasons for the decision, to acquire only for public purpose, fair compensation, efficient conduct of the procedure within timelines and finally the conclusion. [1]
“It is generally assumed that for a valid acquisition all that is necessary is to possess the power of eminent domain [power of the sovereign to acquire property of an individual for public use without consent] to acquire, followed by grant of reasonable and fair compensation… Compulsory acquisition will still be unconstitutional if proper procedure is not established and followed before depriving a person of his/her right to property,” Justice Narasimha, who authored the verdict, observed. [2]
The key highlights of the judgment were that deprivation of any person’s immovable property must follow a fair procedure of law, and the minimum content of a constitutional right to property comprises seven sub-rights, such as:
i. Right to Notice: The intention to acquire their property must be known to the individuals. The Constitution does not contemplate acquisition by trap. The notice of acquisition must be concise, cogent, and significant. Some statutes reflect this right.
ii. Right to Be Heard: The right to voice objections should be for affected individuals. Following the right to meaningful and effective prior notice of acquisition, the propertybearer has the right to make known his objections and concerns to the authority acquiring the property. The right to be heard must be meaningful and not a sham against the proposed acquisition.
iii. Right to a Reasoned Decision: The government needs to provide a well-reasoned decision to support the acquisition. A well-reasoned order is evidence that the authorities have listened to and taken into account the objections. It is the authority's responsibility to make an informed decision and let the objector know about it.
iv. Public Purpose Justification: Acquisitions ought to have a clear public purpose. An essential restriction on the authority's discretion in acquiring is the need that the acquisition serves a public purpose. These criteria state that the acquisition's purpose must be reasonable in light of the greater constitutional objectives of distributive justice and a welfare state.
v. Right of Restitution or Fair Compensation: Fair compensation should be entitled to landowners for their property. A person's constitutional right under Article 300A involves the right to hold and enjoy property. It is only legal to deny or terminate such rights for the reason of restitution, which can take the form of monetary compensation, rehabilitation, or other comparable measures. It is generally considered that compensation is a crucial component of the acquisition process.
vi. Right to an Efficient and Expeditious Process: There should be acquisition procedures that are efficient and adhere to set timelines. There are various reasons why the acquisition process is traumatic. Time and effort is spent on the administrative delays involved in identifying the land, carrying out the inquiry, evaluating the objections, and making the final declaration. Furthermore, transferring the award, paying the compensation, and assuming possession all require a similar amount of time. It is essential that the administration complete the process effectively and in a timely manner. Article 300A must necessarily include this obligation.
vii. Right of Conclusion: It is an incomplete acquisition if it fails to take possession; the process concludes with the physical transfer of property. Under normal circumstances, the state assumes control of the property upon completion of the acquisition process and payment of compensation. The actual physical possession of the land, rather than just receiving compensation, is what marks the end of the acquisition process. An acquisition is not complete if possession is not taken. Following the standard acquisition procedures, the private holding is divested, and the state becomes the legal owner of the property along with the right, title, and interest. The state's or its beneficiary's rights, title, and interest in the property are unclear and difficult in the absence of full vesting. Article 300A also includes an obligation to conclude and finish the acquisition process.
Before depriving a person of their right to property, compulsory acquisition will be unconstitutional if proper procedure is not established or followed.
CONCLUSION
The right to property in India is emphasized in 300A of the right to property. By laying out seven sub-rights under the right to property by the Supreme Court of India, it safeguards against the arbitrary government acquisition of landowners with these sub-rights. Without proper procedures and not violating fair steps, the state cannot take away private property. The journey of the right to property has had certain significance for transformation so far. This recent constitutional rights reform has its own significance, as the process of evaluating existing laws and implementing change in a legal system enhances justice and efficiency. This transformation in the right to property, with the addition of seven essential sub-rights, has made it crucial for safeguarding landowners and ensuring a fair process.
REFERENCES
[1] ‘Mere power, fair compensation not sufficient for valid acquisition,’ SC enlists 7 sub-rights under right to property, LAWBEAT (May 18, 2024), https://lawbeat.in/top-stories/mere-powerfair-compensation-not-sufficient-valid-acquisition-sc-enlists-7-sub-rights.
[2] State cannot acquire property without proper procedure: Supreme Court, THE HINDU (May 16, 2024), https://www.thehindu.com/news/national/state-cannot-take-right-toprivate-property-away-without-following-fair-procedure-sc/article68183265.ece.
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