Thus one of the Directive principles of state policy was given precedence over certain
fundamental rights. With the 25th Amendment there is a noticeable shift to the Marxian
notions of property rights wherein one of the directive principles is even more importance
over fundamental rights. The judgment delivered in the Keshavananda Bharathi case also
appears to be consistent with the Marxian notion which enables the state to abridge the right
to property to provide for better state regulation and redistribution of land. This has been
criticised by many as an extreme violation of fundamental rights.
On the whole the above-mentioned amendments paved the way for the ‘Forty Fourth
Amendment’ which resulted in the deletion of ‘right to property’ as a fundamental right and
the frequent exercise of Constitutional amendments came to an end.
The property clauses in the Constitution of India, contained in Arts.19 (1) (f) and 31 were
repealed by Section 2 and 4 of the Constitution (44 th Amendment) Act, 1978, w.e.f. 20th June,
1979. The Forty-fourth Amendment to the Constitution of India inserted article 300 A with
effect from June 20, 1979 and simultaneously deleted the Fundamental Right to Property
included in Articles 19(1) (f) and 31. The reason for this was to reduce the right to property
from the status of Fundamental Right to that of a legal right, i.e., the right will e available
against the executive interference but not against the legislative interference 1. With the 44th
amendment to the Constitution of India the legislature seems to have taken a more liberal
standpoint as compared to the 25th Amendment. The movement now seems to be toward
Foucault’s state regulation of property in the interest of a democracy. Herein we see that
although individual ownership of property is permitted so is the state regulation of the same.
At the conversion of the right to property from being a fundamental right to a legal right there
is a noticeable transformation to a more the liberal democratic tradition wherein private rights
and public rights are equally balanced.
The Forty-second Amendment Act
The 42nd Amendment Act sought to expand the scope of Article 31C by extending it to any
law giving effect to the policy of the state towards securing “all or any of the principles laid
down in Part IV” and that is how the Article reads today. The actual scope of this Article has,
however, been considerably restricted in three respects by the process of judicial
interpretation and subsequent amendment:
1
Statement of Objects and Reasons for the Forty-fourth Amendment, paras. 3 & 5
(1) As above mentioned condition (I) was sought to be amended by the 42nd Amendment
(1976) so asto take in all laws intended to secure not merely the objectives of Article 39 (b)
or (c) but “all and any of the Directive principles of state policy laid down in part IV” but this
attempt was
frustrated by Minerva Mills v. Union of India2 and the above freedom now stands restricted
only to laws seeking to give effect to Articles 39 (b) or (c).3
(2) Condition (iii) above placing a law beyond challenge under this Article if it just contains a
declaration that it fulfils the first condition, has also been held unconstitutional: Kesavananda
Bharathi vs. State of Kerala. In other words, statutory declaration of a nexus between the law
and
Article 37 is inconclusive and justiciable.4
(3) Article 31D: A provision newly inserted in the Constitution in juxtaposition with Articles
31A to 31C, though has nothing to do with the right to property, may now be referred to. The
insertion of Article 31D by the 42nd Amendment (1976) represents yet another attempt [like
Articles 31A to31C] to save from Constitutional challenge a group of laws intended to curb
“anti national activities.”5 This Article, introduced during a time when state of emergency had
been declared in the country was, however, omitted, with a change in government, by the
43rd Amendment (1977).
The Forty-fourth Amendment: The Final Trespass into Right to Property
“These words will occur to the reader who considers the far reaching changes made in the
“right to property” by the 44th Amendment without eliciting public opinion and without
submitting the
2
AIR 1980 SC 1787, See, however, the observations made in Sanjeev Coke Mfg. Co. vs BharathCooking Coal
AIR 1981 SC 271
3
One often tends to forget this as the “judicial” restriction is not to be found incorporated in thestatutory
language, which continues as enacted under the 42ndAmendment (1976).
4
Tinsukia Electricity company ltd. vs State of Assam 1989 (3) SCC 709; Assam Sillimanite vs Union of India
1992 Supp. (1) SCC 692.
5
While the broad objective of such a provision is unexceptionable, the catch in the provisions lay inthe
vagueness of the definitions of activities sought to be curbed
changes to the scrutiny of the Select Committee followed by a debate in both Houses on its
report. The 44th Amendment removed the right to property from the Part III (“the Chapter on
Fundamental Rights”) by deleting Articles 19(1)(f) and 31, by making consequential
amendments, and by inserting in Part XII the following new chapter: “Chapter IV—Right to
Property, 300A. Persons not to be deprived of property save by authority of law—no person
shall be deprived of his property save by authority of law.”
These amendments are hereafter referred to as “the property amendments.” The ostensible
reason forthis change is given in the words of the Law Minister, Shanthi Bhushan, who has
signed the
Statement of Objects and Reasons for the 44th Amendment: Paragraphs 3, 4 and 5 of that
Statement run as follows:
“In view of the special position sought to be given to fundamental rights, the right to
property,
which has been the occasion for more than one Amendment of the Constitution, would cease
to
be a fundamental right and become only a legal right. Necessary amendments for this purpose
are being made to Article 19 and Article 31 is being deleted. It would however be ensured
that the removal of property from the list of fundamental rights would not affect the rights of
the
minorities to establish and administer educational institutions of their choice.
