Lawsuit seeks to restore right to property as fundamental right

February 27th, 2009 - 8:41 pm ICT by IANS  

New Delhi, Feb 27 (IANS) The Supreme Court Friday sought the union government’s response on a petition demanding restoration of the right to property as a fundamental right akin to the right to life or the freedom of speech and expression.
A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam issued notice to the union government on a lawsuit by civic rights body Good Governance India, which also demanded negation of a 1978 change in the constitution, diluting citizens’ right over their property.

The lawsuit pointed out that the right to property was a fundamental right till 1978 and no Indian citizen could be divested of his property by the government without proper and due compensation, matching the market value.

It sought a reversal of the 44th amendment to the constitution.

The Janata Party government headed by Morarji Desai, the lawsuit stated, had amended the constitution in 1978 and diluted the citizens’ fundamental right to own and enjoy their property, subject merely to some reasonable restriction in the pubic interest, to an ordinary legal right that could be suspended at the slightest pretext.

Appearing for the petitioner, senior counsel Harish Salve said the government had diluted the citizens’ right to property by deleting Articles 19(1)(f) and 31 of the Constitution, which enabled the government to acquire a citizen’s property on the pretext of public interest even without paying any compensation, let alone market value, for it.

Salve sought restoration of the right to property as fundamental right arguing that various fundamental rights, accorded to Indian citizens by the constitution, forms part of the basic structure of the constitution, which cannot be altered, let alone omitted.

The lawsuit, which came up for hearing Friday, had been filed in 2007.

Explaining why the lawsuit was filed nearly three decades after the status of the right to property was diluted to that of an ordinary legal right, Salve told the court that there was a legal hitch in fling the lawsuit anytime before 2007.

For the first time in 2007, a nine-judge bench had clarified that any fundamental right of citizen is the basic structure of the constitution, which cannot be altered.

Earlier, the apex court in its famous Keshavanandan Bharti case of 1973 had first termed some basic and unalterable parameters and features of the Indian state and its constitution like the country’s democratic form of government, as its basic structure, which could not be changed at all even by constitutional amendment.

But, in the judgement of the case, Justice H.R. Khanna had made a passing observation to the effect that fundamental rights accorded to the citizens’ might not be a basic structure of the Constitution. This had left the scope open for changing or diluting the fundamental right of the citizens.

Though later in 1975, wile adjudicating another famous lawsuit between erstwhile prime minister Indira Gandhi and prominent political leader of his times Raj Narain, Justice Khanna had tried to clarify that his observation had been misconstrued.

Despite that clarification, the Janata Party government, under the advice of then law minister Shanti Bhushan, had changed the Constitution, removing the right to property from the list of fundamental rights.

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