The 44 th amendment act of 1978, abolished the right to property as a fundamental right by repealing Art 19(f) and Art 31 from part 3.
But the landmark verdict regarding the immunity of the " basic structure " of the constitution, was made as early as 1973.
While whether or not this fundamental right ( before 1978) falls within the ambit of the basic structure of our constitution as envisaged by our constitution makers, is beyond the scope of my understanding,I would still like to know any relevant judicial pronouncements ( between 1973-1978) that made the 44 th amendment possible.
Please share your thoughts alongside the relevant judgement/observation of the honorable supreme court.
Comments
So, the answer to your question is: it was the 1973 verdict itself that made 44th amendment possible, and not some judgement between 1973 and 1978. Needless to say, SC didn't deem Right to Property as a part of Basic Structure and let 44th amendment be.
Also,
1. The whole concept of 'basic structure' only came into existence after the 1973 verdict. The constitution makers never implied any such idea anywhere. Who knows what they would have considered to be a part of the 'basic structure'! Even today, there is no clear set of rules which define the 'basic structure' exhaustively. It really is up to the SC/HC to decide whether something is a part of it or not.
2. As @skylax mentioned, Right to Property was not considered to be a part of the 'basic structure' as per the 1973 judgment. The thing to note is that the same amendment also made the Right to Property a legal right. It didn't kill that right, just downgraded it. So there is a possibility of SC even meanwhile considering - Right to Property - to be a part of the 'basic structure', allowed it to be downgraded to a legal right because it was not removed completely. No? Am I wrong as per the usually accepted convention here?
Also, by the time the 44th amendment was passed, Articles 31A, 31B and 31C had been added to the constitution, and the right to property was considerably diluted already. As to why the right to property has not been considered to be part of the basic structure of the constitution, I think @woman's point is in the right direction. The basic democratic principle is that the government shouldn't interfere with property rights of individuals without the authority of a valid law, and since A. 300A did meet this standard, the SC probably let it be.
1) I agree
2) I can think of something.Moving it from a fundamental to a legal right implicitly took away the honourable supreme court's power to issue a writ on the same, under Art 32.
Thus no " judicial review " is possible through the honorable SC,on right to property( Although possible through high courts under Art 226)
But then again, in the 1973 case, the honorable SC declared " Judicial review " itself as a basic feature of the constitution.That's where my doubt comes from.
@igirit Thank you.
I think I should learn chapter 8 onwards and finish Laxmikanth before posting my doubts.
Thanks guys
- Before we jump in to the 'Right to Property', it is important we understand the origin, meaning and development of the 'Basic Structure' doctrine: (As usual, trying to explain it in simple language.)
Question: Can an amendment to the constitution itself be unconstitutional? Or Is constitutional amendment a part of Judicial review?
Answer: In early 1950s, the matter was settled - The legislature has unbridled power to amend the constitution and judicial review is for ordinary laws only. (Reason: Constitutional amendment requires 'supermajority' and thus cannot be challenged by courts as it will tilt the balance of power towards the judiciary.)
Enter Golaknath: 1967
- He gave a different reading of article 13 which proclaims that laws infringing FR are void and thus constitutional amendments have to pass the test of Rights in part III.
- He argued, article 368 laid down the procedure for amendment and said nothing about the 'substantive' nature of that power. Article 13 did that.
Parliament Reacts:
24th Amendment act: Makes the provision of article 13 inapplicable to constitutional amendment by introducing a clause 4!
25th Amendment act: Limited the applicability of certain FR to land reform laws.
Enter Kesavananda Bharati: 1973
- Again the question of unconstitutional constitutional amendments raised.
The Basic Structure Doctrine: Shift from article 13 to article 368.
Rather than going back to article 13, this time court relied on article 368 itself: The very words 'This constitution' and 'the constitution shall stand amended..' meant that there is a constitutional identity that cannot be destroyed. An amendment to the constitution should be such that it does not destroy the character of the constitution itself. The constitution should remain.
Result: Constitutional amendments, now, would not be tested against only the FRs but should also pass the test of 'Basic Structure'.
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Right to Property: 6 constitutional amendments have taken place on the right to property.
Article 31 = Doctrine of eminent domain = The state can acquire property. (.. authority of law)
Article 19 (1)(f) reasonably restricted by article 19 (5) = Police powers.
These two were repealed - The main reason being the dispute over 'just' compensation. There was no consensus on this.
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Question: Does the repeal of 'Right to Property' not violate 'Doctrine of Basic Structure'?
Answer: No, in no way these provisions destroy the character of our constitution. As we know now, this principle does not rely on any particular textual provision; it is derived from reading of several provisions. For example, the doctrine of separation of power (Between Centre and states as well as between the three organs of the government.) which is a part of the basic structure of the constitutions is an outcome of several provisions and therefore cannot be altered or destroyed.
My argument: Repeal of right to property (Or relegating the Right to property to a non fundamental right status) does not destroy the basic structure and thus is not unconstitutional.
Interesting Fact: No constitutional amendment after the coming of Basic Structure Doctrine has been found violative of this principle. (The threshold of destroying the constitution is thus high!)
@skylax held that it wasn't since 44th amendment repealed it.
I held that you can't be sure because right to property was simultaneously made a legal right and so, may be it was a part of the basic structure but just reclassifying it as a legal right didn't constitute a violation, repealing it completely might have been a violation.
And I think I have answered your query but nevertheless will still repeat it:
Basic Structure: Is not about a particular provision - It is not like Article X, Y, Z are part of basic structure and Article a, b, c are not. Your argument that 'Maybe, Right to property was a part of basic structure' is not right. because no clause, no article - be it FR, DPSP or anything in the constitution for that matter is a part of basic structure.
Basic structure comes from collection of provisions and the philosophy behind those provisions - Like I explained separation of power earlier. You can take the example of rule of law, or the Federal Character, Parliamentary structure, Secular polity - These are not provisions in the constitution but very much part of the basic structure. They are the philosophical underpinnings on which our constitution is based. Doctrine of basic structure is concerned about the philosophy and not some particular article.
For your simplicity: You can amend anything and everything in the constitution. You can amend all the FRs - Just make sure that you don't violate the basic structure. You may argue - Repeal of Right to property violates the basic structure - My question will be - Which philosophy does it violate? I see none!
So, Right to property can in no way be a part of basic structure - In fact, no FR is a part of basic structure as the constituents of basic structure are abstract principles and not articles and provisions.
FR's were amended many times - Article 16, Insertion of RTE and of course Right to property.
Note: Repealing it completely would also not be a violation - As per the above explanation.