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Sunday, October 2, 2011

Q. What is the present position of right to property under the Constitution ?

Ans. Originally, the right to property was recognized as one of the seven Fundamental Rights under Articles 19(1-7) and 31 of the Constitution. It included the right to acquire. to earn and to dispose of the property. The State was authorised to appropriate the property ot a person only in the public interest with the payment of a just compensation. As provided by the First and the Fourth Amendments, the amount of compensation was to be determined by the Legislature and the same was not to be questioned in the court of law. The right to property became highly controversial as it came in the way of socialistic pattern of society and led to many legal battles in the courts. Therefore, by the 44th Constitutional Amendment in 1978, the right to property was abolished as a Fundamental Right under Part III of the Constitution and was placed under Article 300A as a legal right. The legal right to property means that the private property of a person can be appropriated by the government only under the provisions of law. It also implies that in case of violation of a legal right (as distinct from the Fundamental Rights), the affected person can avail only ordinary judicial protection not like the judicial protection granted with respect to Fundamental Rights. Further, as a legal right is not a part of Fundamental Rights, it can be restricted or abridged by ordinary legal provisions also. Thus, if the right to property is violated as a legal right the affected person cannot directly approach the High Court or the Supreme Court but shall resort to ordinary legal procedure.

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