LAND REORMS IN THE CONSTITUTION OF INDIA LAND REFORMS
Land reform is a strategy for social change through state intervention. intervention. It is where the State uses instrumental rational action action for intervention. Land reform forms the basis for the abolition of the feudal colonial structure and distributes the property that belonged to the erstwhile higher classes to the tiller. It is an initiative initiative to increase the productivity of the the tiller by giving him a portion of the land that he works on. The other associations associations to the question of land reforms came with the associated problems of ownership of property. Ownership of property by a certain section of the the society ensures rule poverty, income inequality and discrimination on economic grounds. The socialist goal of the State was to ensure a ceiling on land holdings and the distribution of surplus land. This was targeted at 4/5th of the population which had no ownership of property. The reason that the State S tate went for a policy of land reform was that one of its objectives was the prevention of class wars and to attain this objective the State had to intervene in regulating the the relationships among the classes. The reason that land reform has remained a policy and never been actually implemented is the fact that it is ideological based to protect the interests of the upper classes. It is precisely for this reason that that land reforms have been conservative. In reality land reform re form is a radical ideology of a newly emerging political system which is used by the ruling elite to pacify the role masses. Land reform, called for social change at an ideological and at a practical level. Social change can only occur when all three of these three factors exist
1 .Interplay between society and social economic factors 2. Intervention of the State 3. Collective action Although any or all of these may exist the state has been unable to implement land reforms for the distribution of property for the following reasons 1. Influence of land owners in the democratic setup 2. Lack of commitment and political will to implement land reforms 3. Influence of the economic and agrarian relations prevalent in India 4. Social and hierarchical setup 5. Legal and constitutional set up 1
FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES
Thus to foster the goal of equality, the Directive principles the State ensured adequate means of livelihood and that the operation of the economic system and controlled of the material resources of the country and subserve common good. By establishing these positive obligations of the state, the members of the Constituent Assembly created the responsibility of future Indian governments to find the middle way between individual liberty and public good, between preserving the property and privilege of the few and distributing benefits on the many in order to liberate the people of India.
The Directive in Article 39(b) and (c) is solely aimed at the third kind of property and it evades logical reasoning as to why the other fundamental rights should be abridged, what to say of abrogation. Thus seen there is no conflict between the Directive Principles and the Fundamental Rights. Both have been placed after much deliberation by the Constituent Assembly and none can be made redundant. The plea that Fundamental Rights are an impediment to the implementation of Directive Principles is deceptive and mischievous and intended to cover our failings. Article 39(b) calls for distribution of ownership and control which mean that private ownership and control will be expanded and therefore nationalisation of private industry cannot be read into distribution. Distribution does not exclude the original owner. He is only to be deprived of the part which he does not work. So it is the third kind of property which has been referred to in Article 39(c) while talking of concentration of wealth and means of production. But the real problem facing modern India is not so much as to preserve the unlimited right to property, but while maintaining the substratum of individual right and its stability, to regulate the use of it in public interest. If undue attachment to acquisition of property is bad, revolutionary zeal to dislocate the structure of property is worse. A balance therefore has to be struck between possession and regulation of property. The initial constitutional position of the right to property may be briefly stated thus2:
Every citizen has a fundamental right to acquire, hold and dispose of property;
The State can make a law imposing reasonable restrictions on the said right in public interest. The said restrictions, under certain circumstances, may amount even to deprivation of the said right;
Whether a restriction imposed by law on a fundamental right is reasonable and in public interest or not is a justiciable issue;
The State can, by law, deprive a person of his property if the said law of deprivation amounts to a reasonable restriction in public interest within the meaning of Article 19(5);
The State can acquire or requisition the property of a person for a public purpose after paying compensation;
The adequacy of the compensation is not justiciable;
If the compensation fixed by law is illusory or is contrary to the principles relevant to the fixation of compensation, it would be a fraud on power and, therefore, the validity of such a law becomes justiciable; and
Laws of agrarian reform depriving or restricting the rights in an estate — the said expression has been defined to include practically every land in a village — cannot be questioned on the ground that they have infringed fundamental rights;
The State has powers to impose taxes on all types of property and incomes.
EVOLUTION OF RIGHT OF PROPERTY
Even before the 44th Amendment the status of the right to property was rather dubious and its conversion into a legal right has only made it more so. So much so that before a person could complain that a law violates his right to acquire, hold and dispose of property, he must establish that the right which he claims is a right to property.
To the extent that the right to property is important for the enjoyment of the other fundamental rights it has remained a fundamental right. Article 30(1) confers on religious and linguistic minority a fundamental right to establish and administer educational institutions. This right can not be enjoyed unless the minorities have a right to property with respect to such institutions. It means that such minorities will have a fundamental right to property as far as educational institutions are concerned. This position is accepted by the framers of the44th amendment, as they have provided in Article 30 (1) (A) that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the state shall ensure that the amount fixed by or determined under such law for acquisition of such property is such as would not restrict or abrogate the right guaranteed. Also the present position of right to property under Article 300As indirectly gives the right to hold and acquire property. Article 300A states that "No person shall be deprived of his property save by authority of law." One can not be deprived of property unless he has property and one can not have property unless he has the right to hold or acquire it. The reasonableness of restriction to the right to property must be charged not by considerations relevant to pre Constitution laws but in the light of fundamental rights. Before a person can complain that a restriction on a fundamental right is unreasonable he must show that he has a fundamental right. Thus, where an order of allotment of a house made before the Constitution came into force was challenged as violating Article 19(1) (f) on the ground that this possession of the landlord took place after the Constitution came into force, the Court held that as the petitioners right to retain possession of the house came to amend as a result of the order of requisition before the Constitution came into force,
he had no fundamental right which he could assert under the Constitution3. It must be said, therefore, that the totality of changes brought about by the 44th Amendment relating to property has been clumsy and cumbrous. The main argument in favour of the polish of the right to property was that it stood in the way of progress report socialistic legislation. This having been affected by the polish and of Articles 19(1) (f) and 31, it hardly stands to reason that article 31 A, which was inserted primarily by way of exception to the right to property, should still survive. The major difference will exist in the fact that if the executive of the police takes away man's property without the majority of low, he will have no access to the Supreme Court directly under Article 32 of the Constitution of India 4 . The sacrifice therefore has been made of the speedy remedy before the Supreme Court and is considered by many as too heavy loss to the citizen 5. Whatever be the intention of our legislators in the deletion of 'right to property ' as a fundamental right, the fact remains that the right to property is a right which cannot be read in isolation. It is a right around which many other rights exist. There seems to be an inherent interdependence between the right to property and other fundamental rights.
4
H. M. Seervai., CONSTITUTIONAL LAW IN I NDIA, 4th ed. (Delhi: Universal Book Traders.1999) at pp. 825, 828
5
D.D Basu, C ONSTITUTIONAL OF I NDIA. 7th ed. (New Delhi: Prentice Hall of India. 1998) at p.102
The 44th Amendment Act has opened a Pandora’s Box and the judiciary will take years to explain fully the implications of this amendment. Following are some of the problems that would need clarification from judiciary: 1. Whether as a result of deletion of Article 19(1)(f), the right to property has now become a natural right? Although there is a strong case may in favour of right to property being a natural right, as a result of explicit deletion of Article 19(1) (f) it would not only be difficult to persuade the Supreme Court to accept this view, but well near impossible. 2. If a law depriving a person of his personal liberty or liberty ought to be reasonable law and the procedure must be 'fair, just and reasonable', whether the law depriving a person of his property must also be reasonable law? If the court were to approach the right to property by striking a balance between rights and directive principles as being “fair, just and reasonable” then greater protection to the right to property and it may be a right that would exist for the greater common good.
