Introduction
When the Constitution of India came into force on 26th January 1950, there were seven categories of Fundamental Rights. The Right to Property was one of them. It was protected under Articles 19(1)(f) and 31.
Today, however, we have six categories of Fundamental Rights. The Right to Property was removed from this list by the 44th Constitutional Amendment Act, 1978. But why was this change made? And was Parliament always free to amend Fundamental Rights?
To know this, we have to go to the time when our constitution was new and developing.
1. The First Amendment, 1951
Soon after the Constitution came into force, the government started taking steps to introduce land reforms and acquire land for public purposes. The problem was that the Right to Property was a Fundamental Right. Landowners could approach the courts and challenge laws through which their land was being acquired.
To deal with these difficulties, the First Constitutional Amendment Act, 1951, was introduced. Through this two new articles were added , Articles 31A and 31B to the Constitution. These provisions were added so that government can have certain protection.
This amendment was soon challenged in Shankari Prasad v. Union of India (1951) and the Supreme Court held that Parliament could amend Fundamental Rights. The Court in this case made a distinction between an ordinary law and a constitutional amendment, and held that the restrictions under Article 13 did not apply to amendments made under Article 368.
2. Sajjan Singh v. State of Rajasthan, 1965
The question was again raised in Sajjan Singh v. State of Rajasthan (1965).
The Court upheld its earlier decision of Shankari Prasad Case. At this stage, the position was clear: Parliament could make constitutional amendments affecting Fundamental Rights.
However, this view did not remain unchanged for long.
3. Golaknath v. State of Punjab, 1967
A different view was taken in I.C. Golaknath v. State of Punjab (1967).
In this case the Supreme Court changed its earlier view and held that Parliament could not amend Fundamental Rights. The Court reasoned that the word 'law' under Article 13 included constitutional amendments within its scope.
This judgment hence placed a restriction on the Parliament's power to amend Fundamental Rights.
4. The 24th Amendment, 1971
And in response to the above judgement parliament introduced 24th Amendment.
With this amendment, Parliament made it clear that it had the power to amend any provision of the Constitution, including Fundamental Rights. It also further clarified that constitutional amendments would not be treated as ordinary laws under Article 13.
But the question that went unanswered: could Parliament use this power without any limitation?
5. Kesavananda Bharati v. State of Kerala, 1973
This question was finally considered in Kesavananda Bharati v. State of Kerala (1973). The case was heard by a 13-judge bench, the largest bench in the history of the Supreme Court.
The Court held that Parliament could amend Fundamental Rights but the Parliament could not destroy the basic structure of the Constitution.
This became known as the basic structure doctrine.
The Court did not say that Fundamental Rights could never be changed. It recognised that the Constitution must be able to respond to changing needs of society. At the same time, Parliament could not use its amending power to damage the essential features of the Constitution.
The 24th Amendment was upheld, subject to this limitation.
6. The 42nd Amendment and Minerva Mills
The debate did not end here.
In 1976 through the 42nd Constitutional Amendment Act, Parliament attempted to make its amending power unlimited. It also restricted courts from examining constitutional amendments on certain grounds.
This amendment challenged in Minerva Mills v. Union of India (1980).
The Supreme Court held that Parliament's amending power can not be unlimited. It further struck down the provisions that attempted to exclude judicial review and remove the limitations on Parliament's power.
The Court made it clear that judicial review and limited amending power are important parts of the basic structure of the Constitution and they cannot be snatched.
7. The 44th Amendment, 1978
After all these developments, the Right to Property was finally removed from the list of Fundamental Rights through the 44th Constitutional Amendment Act, 1978.
Articles 19(1)(f) and 31 were deleted as Fundamental Rights. But this did not mean that a person's property could simply be taken away by the government without any legal justification.
Article 300A was introduced, which states:
“No person shall be deprived of his property save by authority of law.”
Hence, Right to Property was made a constitutional right and was removed as a Fundamental Right.
Conclusion
The removal of the Right to Property was not one night decision taken the authorities in isolation. It was a result of long debate between Parliament and the Supreme Court over land reforms, fundamental rights and the power to amend the Constitution.