By Chandan Mohanty, KIIT Law School, KIIT University, Bhubaneswar.

The Constitution (44th Amendment) Act, 1978, signifies the demise of the fundamental Right to Property. Before 1978, there were mainly two articles to protect private property, Article 19(1)(f) and 31. But these Articles were repealed by constitutional amendments, and thus private property was left defenceless. Unlike other fundamental rights the scope of right to property is continuously diminished by curtailing it through constitutional amendments. Practically the right to property has ceased to exist in India. Much important litigation in Constitutional law has arisen in the field of property rights because of the large legislation enacted by the state and the central governments to control the property rights. Various amendments were made to Art. 31 and finally it was repealed. Article 31(1) has been shifted to article 300A as a new insertion in Chapter IV in part XII of the constitution. The shifting of Article 31(1) and omitting Article 31 signify that fundamental right to property has now become a constitutional right.

After 1978, in the area of property, there were only four constitutional provisions i.e. Article 31, 31B, 31C and 300A. Though Article 31A, 31B and 31C are included in the chapter of fundamental rights they cannot be called as fundamental rights in the real sense, as they do not confer fundamental right but impose certain restriction on right to property.


Doctrine of Eminent Domain and Right to Property

Doctrine of Eminent Domain is a concept in the American Constitution. It is the acquisition of private property by the state for a public purpose with paying certain amount of compensation. Initially when India got Independence, the legislature, to abolish the Zamindari System, enacted various laws through which it took the property from various land holders and used it for public purpose. Many a times mala fide intention can be seen achieved through this doctrine.

In Indian Constitution, Entry 42 of List III speaks about ‘acquisitioning and requisitioning of property’. In the case of State of Bihar v. Kameshwar Singh[1], the Supreme Court defined eminent Domain as “the power of a sovereign to take property for public use without the owner’s consent upon making just compensation.”

Essentials of the Doctrine of Eminent Domain:

  • Property is taken for public use.
  • Compensation is paid for the property taken.

Emergence of Article 31A

After independence, the then Central Government of India decided to launched the abolition of Zamindari Programme in which it abolished the Zamindari system and acquired the lands of Zamindars. Various land legislations were declared invalid and were challenged under Article 14 and 19(1)(f). In State of Bihar v. Kameshwar Singh[2], the Bihar Land Reforms Act, 1950, was held invalid under Article 14 for it classified the zamindars in a discriminatory manner for the purpose of compensation. Therefore, finding Zamindari Abolition Programme in danger because of these judicial pronouncements, the central government amended the Constitution and a new provision i.e Article 31A was added .

This new article laid down that no law providing for the acquisition by the state of any estate or of any rights therein, or for the extinguishing or modifying any such rights, would be void on the ground of any inconsistency with any of the fundamental rights contained in Article 14, 19 and 31. The only requirement was that such law should receive the assent of the President.

Emergence of Article 31B

The introduction of  Article 31A has cured the defects in various acts of the Ninth schedule as regards to the unconstitutionality alleged on the grounds of infringement of Part III of the Constitution. These acts, even if void or inoperative at the time, they were inactive by reason of infringement of Article 13(2) of the constitution. These acts assumed full force from the respective dates of their enactment after their inclusion in the Ninth schedule read with Article 31B of the Constitution.

The Ninth schedule had 284 legislations until the constitution (78th amendment) act, 1995 but article 31B did not empower the legislatures to amend these acts inconsistently with the provisions of the constitution or to take away the rights conferred by the Constitution. The amendments must be consistent with the provision of the Constitution or be saved under Article 31A of the Constitution, if not they must be held void.

A question was raised in Prag Ice And Oil Mills v. Union Of India[3] whether article 31B saved the orders and notifications issued under Section 3 of the Essential Commodities Act 1955 which was already included in the Ninth schedule. It was held that the amendments to Act subsequent to an inclusion of such Act in the Ninth schedule were not entitled to the protection of Article 31B. The Supreme Court dismissed the petition as the act did not violate the petitioner’s rights under Article 14 and 19. It was explained by the court that when a particular act or regulation is placed in the Ninth schedule, the parliament may be assumed to have applied its mind to the provisions of the particular Act.

Emergence of Article 31C

The insertion of this article made Article 14, 19 and 31 inapplicable to certain laws made by Parliament or any legislature. Along with this, it was also added that a declaration in the law that is to implement the directive principles enshrined in Article 39(b) and (c) cannot be questioned in a court of law. Therefore, the insertion of this article granted complete immunity to a law from judicial scrutiny if the President certified that it was enacted to promote the policy laid down in Article 39(a) and (b). The provisions of this Article would apply only if the law had received the assent of the President.

Constitutional Validity of Article 31A

In Ambika Mishra v State of UP[4], the Supreme Court upheld the constitutionality of clause (a) of Article 31A (1) on the test of basic structure. Also in Minerva Mills v Union of India[5], the Court held that the whole of Art. 31A is unassailable on the basis of stare decisis, a quietus that should not allowed to be disturbed.

Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain            kind of property from the operation of article 13 read with other relevant articles in Part III, while article 3lB purports to validate certain specified Acts            and Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13.[6]

Constitutional Validity of Article 31B

In Waman Rao v. Union of India[7], the court held that amendments in the Ninth schedule made before the decision of Keshavananda Bharti v. State of Kerala[8], were beyond challenge. But the amendments made afterwards could be tested on the grounds of amendment of basic structure. Similar views were given by the court in Minerva Mills v. Union of India.[9]

In I.R. Coelho v. State of Tamil Nadu[10], the nine judge bench of the Supreme Court unanimously decided that, while the laws included in the Ninth schedule before the decision in Keshavananda Bharti case[11] are immune from any challenge on the grounds of violation of fundamental rights or basic structure and the Acts included after the decision shall be open to challenge. The Court also reaffirmed that Article 31B did not destroy or damage the basic structure of the Constitution.

Constitutional Validity of Article 31C

Again in Minerva Mills Ltd. v. Union of India[12], the Supreme Court ruled that the extension of the shield of Article 31C to all the Directive Principles was beyond the amending power of Parliament under Article 368 because by giving primacy to all Directive Principles over the Fundamental Rights in Article 14 and 19, the essential features of the constitution i.e judicial review has been destroyed.

Parliament has power to amend Part III so as to abridge or take away fundamental rights but that power is subject to the limitation of basic structure doctrine. There should be a balance between fundamental rights an Directive Principles of State Policy.[13]


That right to property is a basic civil right has long been recognised. This again would show that if the fundamental right to freedom of speech or personal liberty pertains to basic structure, there is every reason that the fundamental right to property should also pertain to it.

The basic structure of the constitution, as a mandate, can be achieved only through the permissible means of the objectives set out in part III of the constitution. In other words, the mandatory ends set out in Part IV can be achieved only through those means which are consistent with the fundamental rights conferred by Part III.

The objective behind these provisions should be considered while deciding there constitutionality. As discussed above, these provisions were enacted to abolish the zamindari system which would help the Government to develop the country. These provisions also provide a shield to the laws which are made by following the Directive Principles of State Policy because the list provided under Directive Principles provides the necessary requirements of a ideal state. Therefore such laws should not be challenged if they are in consistence with the part III of the Indian Constitution. Hence it can be concluded that these provisions are made for the best interest of the public at large and should be considered as valid and constitutional.

[1] AIR (1952) Pat 417.

[2] Id.

[3] AIR(1978) SC 1296.

[4] AIR(1980) 1762.

[5] AIR 1980 SC 1789.

[6] Sri Sankari Prasad Singh Deo vs Union Of India And State Of Bihar, AIR (1951) SC 458.

[7] (1981) 2 SCC 362.

[8] (1973) 4 SCC 225.

[9] AIR 1980 SC 1789.

[10] AIR(1999) SC 3179.

[11] (1973) 4 SCC 225.

[12] AIR 1980 SC 1789.

[13] I.R. Coelho v. State of Tamil Nadu, AIR(1999) SC 3179.