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Restore fundamental right to property: PIL

Petitioner Sanjiv Kumar Agarwal contended that Parliament could not have done away with the right to property as a fundamental right as was part of the basic structure of the Constitution that can’t be altered.

india Updated: Feb 27, 2009 23:58 IST
Satya Prakash

Should right to property be restored as a fundamental right? Thirty-one years after the right to property was deleted from the list of fundamental rights in the Constitution, a public interest petition has challenged the legality of the 44th constitutional amendment that led to its scrapping.

Petitioner Sanjiv Kumar Agarwal, a resident of Kolkata and founder of Good Governance India Foundation, contended that Parliament could not have done away with the right to property as a fundamental right as was part of the basic structure of the Constitution that can’t be altered.

The petitioner said there was a need to declare the right to property as a fundamental right in the changed socio-economic scenario when the government was “misusing” the amendment for the benefit of private companies by acquiring farmers’ land in the name of Special Economic Zones (SEZs).

In the Keshavanand Bharti case, a 13-judge Constitution Bench propounded the “basic structure” doctrine in 1973. While upholding Parliament’s power to amend the Constitution, the court said it was a limited power subject to judicial review. It said that by using the power to amend the Constitution, Parliament could not alter its basic features.

A bench headed by Chief Justice of India K.G. Balakrishnan on Friday issued notice to the Centre, seeking its response to the PIL that sought restoration of Articles 19(1)(f) and 31, which dealt with the right to property and were deleted by the 44th amendment in 1978.

However, while deleting the right to property from the list of fundamental rights, the amendment added Article 300A to the Constitution, making it a constitutional right. According to Article 300A, “No person shall be deprived of his property save by authority of law.”

Appearing for the petitioner, Harish Salve said the government had diluted the right to property by deleting it from the fundamental rights chapter.

He said this made it easier to acquire a citizen’s property on the pretext of public interest even without paying adequate compensation, let alone the market value.

“It is an irony that the very same enactments that were aimed at ameliorating the lot of the poor and underprivileged are now being used to take away their lands to be handed over to the rich, including large corporations and foreign conglomerates,” Salve said.