LEGAL METHOD

(PROJECT WORK)

SUBMITTED TO :
Assit . Professor Billal Ahmed
SUBMITTED BY-
Karan Kataria(17LLB038)

1
 ACKNOWLEDGMENT

I would like to express our special thanks of gratitude to Assit . ProfessorBillal ah-
med who gave us the golden opportunity to do this wonderful project on the topic
‘Cultural and Educational Rights & Right to Property also helped us in doing a lot
of research and we came to know about so many new things we are really thankful
to her .

Secondly I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

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3
INDEX

TOPIC Pg. No.

S,No.
TOPIC
1 4

INTRODUCTION
2 5

SIGNIFICANCE AND CHARACTERSTICS

3 5

CULTURAL AND EDUCATIONAL RIGHTS

4 6

CASES
5 7

MINORITY AND THEIR RIGHT

6 7,8

RIGHT TO PROPERTY
7 8

CONSTITUTIONAL PROVISION
8 9,10

RIGHT TO PROPERTY A CONSTITUTIONAL

9 RIGHT 10

CONCLUSION
10 15

BIBLOGRAPHY
11 17

4
CULTURAL AND
EDUCATIONAL
RIGHT &
RIGHT
TO
PROP-
ERTY……..

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INTRODUCTION
Fundamental Rights are the basic rights of the common people and inalienable rights of the
people who enjoy it under the charter of rights contained in Part III(Article 12 to 35) of Con-
stitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace
and harmony as citizens of India. These include individual rights common to most liberal de-
mocracies, such as equality before law freedom of speech and expression, religious and cultural
freedom and peaceful assembly, freedom to practice religion, and the right to constitutional
remedies for the protection of civil rights by means of writs such as habeas corpus, Mandamus,
Prohibition, Certiorari and Quo Warranto. Violation of these rights result in punishments as
prescribed in the Indian Penal Code or other special laws, subject to discretion of the judiciary.
The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the
right to enjoy for a proper and harmonious development of personality. These rights universally
apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Though the
rights conferred by the constitution other than fundamental rights are equally valid and their
enforcement in case of violation shall be secured from the judiciary in a time consuming legal
process. However, in case of fundamental rights violation, the Supreme Court of India can be
approached directly for ultimate justice per Article 32. The Rights have their origins in many
sources, including England's Bill of Rights, the United States Bill of Rights and 1.
The six fundamental rights recognised by the Indian constitution are the right to equality, right
to freedom, right against exploitation, right to freedom of religion, cultural and educational
rights, right to constitutional remedies. The right to equality includes equality before law, pro-
hibition of discrimination on grounds of religion, race, caste, gender or place of birth, and
equality of opportunity in matters of employment, abolition of untouchability and abolition of
titles. The right to freedom includes freedom of speech and expression, assembly, association
or union or cooperatives, movement, residence, and right to practice any profession or occupa-
tion, right to life and liberty, protection in respect to conviction in offences and protection
against arrest and detention in certain cases. The right against exploitation prohibits all forms
of forced labour, child labour and trafficking of human beings. The right to freedom of religion
includes freedom of conscience and free profession, practice, and propagation of religion, free-
dom to manage religious affairs, freedom from certain taxes and freedom from religious in-
structions in certain educational institutes. Cultural and educational rights preserve the right of
any section of citizens to conserve their culture, language or script, and right of minorities to
establish and administer educational institutions of their choice. The right to constitutional
remedies is present for enforcement of Fundamental Rights. The right to privacy is an intrinsic
part of Article 21(Right to Freedom) that protects life and liberty of the citizens.
Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-
independence social practices. Specifically, they have also been used to abolish untouchability
and thus prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth.
They also forbid trafficking of human beings and forced labour (a crime). They also protect
cultural and educational rights of religious and linguistic minorities by allowing them to pre-
serve their languages and also establish and administer their own education institutions. They
are covered in Part III (Articles 12 to 35) of Indian constitution.

Genesis

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The development of such constitutionally guaranteed fundamental human rights in India was
inspired by historical examples such as England's Bill of Rights (1689), the United States Bill
of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and
France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified
on 26 August 1789).[2]
In 1919, the Rowlatt Act gave extensive powers to the British government and police, and
allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, re-
strictions on public gatherings, and intensive censorship of media and publications. The public
opposition to this act eventually led to mass campaigns of non-violent civil disobedience
throughout the country demanding guaranteed civil freedoms, and limitations on government
power. Indians, who were seeking independence and their own government, were particularly
influenced by the independence of Ireland and the development of the Irish constitution. Also,
the directive principles of state policy in Irish constitution were looked upon by the people of
India as an inspiration for the independent India's government to comprehensively tackle com-
plex social and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission composing of representatives of Indian political parties pro-
posed constitutional reforms for India that apart from calling for dominion status for India and
elections under universal suffrage, would guarantee rights deemed fundamental, representation
for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian
National Congress (the largest Indian political party of the time) adopted resolutions commit-
ting itself to the defence of fundamental civil rights, as well as socio-economic rights such as
the minimum wage and the abolition of untouchability and serfdom.[3] Committing themselves
to socialism in 1936, the Congress leaders took examples from the Constitution of the Soviet
Union, which inspired the fundamental duties of citizens as a means of collective patriotic
responsibility for national interests and challenges2
Task of developing a constitution for the nation was undertaken by the Constituent Assembly
of India, composing of elected representatives. The Constituent Assembly first met on 9 De-
cember 1946 under the presidency of Dr. Sachidanand later Dr. Rajendra Prasad was made its
president. While members of Congress composed of a large majority, Congress leaders ap-
pointed persons from diverse political backgrounds to responsibilities of developing the con-
stitution and national laws.[4] Notably, Bhimrao Ramji Ambedkar became the chairperson of
the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chair-
persons of committees and sub-committees responsible for different subjects. A notable devel-
opment during that period having significant effect on the Indian constitution took place on 10
December 1948 when the United Nations General Assembly adopted the Universal Declaration
of Human Rights and called upon all member states to adopt these rights in their respective
constitutions3
The fundamental rights were included in the First Draft Constitution (February 1948), the Sec-
ond Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November
1949), prepared by the Drafting Committee.

Significance and characteristics

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https://www.iaspaper.net/cultural-educational-right-indian-constitution/
3
https://en.wikipedia.org/wiki/Fundamental_rights_in_India

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The fundamental rights were included in the constitution because they were considered essen-
tial for the development of the personality of every individual and to preserve human dignity.
The writers of the constitution regarded democracy of no avail if civil liberties, like freedom
of speech and religion were not recognised and protected by the State.[5] According to them,
"democracy" is, in essence, a government by opinion and therefore, the means of formulating
public opinion should be secured to the people of a democratic nation. For this purpose, the
constitution guaranteed to all the citizens of India the freedom of speech and expression and
various other freedoms in the form of the fundamental rights.
• vte
All people, irrespective of race, religion, caste or sex, have been given the right to petition
directly the Supreme Court or the High Courts for the enforcement of their fundamental rights.
It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people
may not have the means to do so and therefore, in the public interest, anyone can commence
litigation in the court on their behalf. This is known as "Public interest litigation".[7] In some
cases, High Court judges have acted suo moto on their own on the basis of newspaper reports.
These fundamental rights help not only in protection but also the prevention of gross violations
of human rights. They emphasise on the fundamental unity of India by guaranteeing to all
citizens the access and use of the same facilities, irrespective of background. Some fundamen-
tal rights apply for persons of any nationality whereas others are available only to the citizens
of India. The right to life and personal liberty is available to all people and so is the right to
freedom of religion. On the other hand, freedoms of speech and expression and freedom to
reside and settle in any part of the country are reserved to citizens alone, including non-resident
Indian citizens. The right to equality in matters of public employment cannot be conferred to
overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary state actions, but some
rights are enforceable against individuals.For instance, the Constitution abolishes untouchabil-
ity and also prohibits begar. These provisions act as a check both on state action as well as the
action of private individuals. However, these rights are not absolute or uncontrolled and are
subject to reasonable restrictions as necessary for the protection of general welfare. They can
also be selectively curtailed. The Supreme Court has ruled[11] that all provisions of the Consti-
tution, including fundamental rights can be amended. However, the Parliament cannot alter the
basic structure of the constitution. Since the fundamental rights can be altered only by a cons-
titutional amendment, their inclusion is a check not only on the executive branch but also on
the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such a state, the
rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain sus-
pended. Hence, in such a situation, the legislature may make laws that go against the rights
given in Article 19. Also, the President may by order suspend the right to move court for the
enforcement of other rights as well.

Cultural and Educational rights

As India is a country of many languages, religions, and cultures, the Constitution provides
special measures, to protect the rights of the minorities. Any community that has a language
and a script of its own has the right to conserve and develop it. No citizen can be discriminated
against for admission in State or State aided institutions.
All minorities, religious or linguistic, can set up their own educational institutions to preserve
and develop their own culture. In granting aid to institutions, the State cannot discriminate

8
against any institution on the basis of the fact that it is administered by a minority institution.
But the right to administer does not mean that the State cannot interfere in case of maladmin-
istration. In a precedent-setting judgement in 1980, the Supreme Court held that the State can
certainly take regulatory measures to promote the efficiency and excellence of educational
standards. It can also issue guidelines for ensuring the security of the services of the teachers
or other employees of the institution. In another landmark judgement delivered on 31 October
2002, the Supreme Court ruled that in case of aided minority institutions offering professional
courses, admission could be only through a common entrance test conducted by State or a
university. Even an unaided minority institution ought not to ignore the merit of the students
for admission.

The Indian constitution guarantees Cultural and Educational Rights under articles 29 and 30.
In India education finds place in the Concurrent list.
India is a vast land where resides different races, languages, cultures and castes. Indian people
are not integrated by racial unity, unity of language and literature, geographical proximity,
historical unity, religious unity, unity of economic interest and cultural unity. In such a country
it is essential to protect the interest and identities of the minority.

Article 29: This article seeks to protect the interests of the minority communities. This article
confers the freedom to all citizens, residing in different parts of the land, to conserve their
distinct languages, scripts or cultures state shall not impose upon it any culture other than the
community’s own culture.
This article further assures that no citizen shall be denied admission into any state-run or state-
aided educational institution on grounds only of religion, race, caste, language or any of them.
Kerala Education Bill (1958) and State of Madras vs. Compakam (1951) may be referred to in
connection with this right.

Article 30: It provides that all minority communities—religion or linguistic, have the right to
establish and administer educational institutions of their choice. In granting aid to educational
institutions, the state shall not discriminate on the grounds of religion or language.
This article confers
1 The right to establish an educational institution by the minorities,
2 The right to administer it and
3 The right to get state-grants for it without discrimination.
The word minority has not been defined by the constitution. The Harijans are not regarded as
minority; they are treated as part of ‘Hindu community. Backward classes are not minorities
(Kerala Education Bill, 1958).
The right stipulated in Article 30 is under the regulatory power of the state. So long as the
minority is not deprived of their right guaranteed by the constitution, a law regulating certain
matters concerning industrial relation, academic matters and the like shall not be considered as
infringement on Article 30.
But autonomy of a minority cannot be completely taken away (St. Stephens College vs. Uni-
versity of Delhi (1992).

Minority

9
The Constitution does not define the terms 'minority', nor does it lay down sufficient indicia to
the test for determination of a group as minority. Neither Motilal Nehru(1928) nor The Sapru
report has tried to define minority4

The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities

has defined minority as under:
1) The term 'minority' includes only those non-documents group of the population which pos-
sess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics mark-
edly different from those of the rest of the population;

2) Such minorities should properly include the number of persons sufficient by themselves to
preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of which they are nationals.

The first initial afford was in In Re Education bill by Supreme Court to define minority. Justice
S.R. Das C.J., suggested the techniques of the arithmetic tabulation, held that the minority
means a “community, which is numerically less than 50 percent” of the total population.

The definition refers to group of individual who are particularly smaller as the majority in a
defined area. Definition however does not indicate as to what factor of distinction, subjective
or objective are to be taken as the test for distinguishing a group from the rest. Thus, while
considering 'minority', a numerically smaller group, as against the majority in a defined area,
some place emphasis upon certain characteristics commonly possessed by the members con-
stituting the minority and, to them, these characteristics serves as objective factors of distinc-
tion. In this sense the term used to cover "racial, religious or linguistic sections of the popula-
tion within a State which differ in these respects from the majority of the population." Distinc-
tion can be made on different basis; types of minority can be racial, religious or linguistic
minority. There have been different rights guaranteed to minorities by the constitution.

Minority Rights In India

The constitution of India guarantees different rights to the minority. These are cultural and
educational rights which have been guaranteed under Article 29 and 30.

Article 29 Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same.

The application of this Article is upon person having a distinct language, script or culture of its
own and it takes into the consideration two types of minority one linguistic and other religious
minority. If they have the same can be protect it. This right includes the rights “to agitate for
the protection of the language.” It also not subject to any reasonable restriction like other fun-
damental rights and hence it is an absolute right. Under Article 29(1) any school or university
can promote education in regional language as far as it is done for minor and language of the
minor.

In D.A.V school, Jullundur v. state of Punjab the above provision was challenged on the
ground that the college administered by the religious minority i.e. Arya Samaj and affiliated
university would be compelled to study the religious teaching of the Guru Nanak and this would

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mount to violation of the Article 29.Supreme court declined the view and said that the there is
no mandate in the provision for compelling affiliated colleges either to study religious teaching
of the Guru Nanak, or to adopt in any way the culture of the Sikh. If the university includes the
teaching and life of the saint for the research and philosophical it can not be said that the affil-
iated colleges are being required to compulsorily study his life and teaching.

The provision meant that for the promotion of the majority language minority should not be
stifle. If any body does it will be trespass on the rights of the sections of the citizens who have
distinct language or script and which they have a right to conserve through their own educa-
tional institutions. So the minority institution affiliated to the Guru Nanak University to teach
in the Punjabi language, or in any way impeding their rights to conserve their language, script
or culture.
(2) No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language or
any of them.

This Article is wide and unqualified. It confers a special right not on the minority but to the
majority also for the admission in the state maintained or aided educational institution. If it
would be only limited to the minority it would mean that majority has no right for the admission
in the state maintained or aided educational institution. This it is very clear trough these provi-
sion that in any case no one can discriminate on the ground of the language, caste or religion.
Whether it is state maintained education institute or private aided institution. Now it is im-
portant to know the application of the above Article. Dispute of its application was firstly arisen
in State of Maharastra v. Champakam . Communal G.O. of the state of Madras allotted seats
in medical and engineering college in the proportionately to the several communities. A Brah-
min candidate who could not be admitted to the engineering college challenged the G.O. as
being inconsistent with the Article 29(2).

Supreme Court held that the classification on the ground of the caste was inconsistent with the
provision of the Article. Even though petitioner has got much higher marks than those who
secured by non Brahmin who were admitted in the seats allotted to them, he could no admitted
in any institution. The reason was that he was Brahmin. In another case Supreme Court denied
the view that intake of students on the ground language is violating of the fundamental rights.
In instant case Bombay Government by an order banned the admission of those whose language
is not English to a school using English as a mode of instruction. Argument advanced by the
state was that by doing it is trying to promote national language. Court said that the view is
right but could not be upheld as it is violating of the fundamental rights. So there should not be
any discrimination on ground of language in matter of admission which has been clearly stated
by the Hon’ble Supreme Court of the India.

Dividing sates in two regions and then allocating seats for medical and engineering college in
the state between these regions does not violate Article 29(2). Refusal of admission on grounds
of not possessing requisite academic qualification or because any one was expelled for the
indiscipline. Reservation for rural student passing class out of VIII was held bad decision in
Suneel Jitley v. State of Haryana. Supreme Court said that basis of reservation was irrational.
As student from the rural area can study in urban area still he would have been preferred. While
a student of urban area could have been studied in rural area and could have became entitled

11
for reservation. Also the education up to VIII standard does not make any difference to medical
education. Hence there was no nexus between the classification and object sought to achieve5

Relation between Article 29(2) with article 15(1) and 15(4)

Article 15(1) prohibits discrimination on grounds of religion, race, sex, caste or place of birth.
Still there is significant differences between these two articles, 15(1) protects all citizen against
discrimination by the state where as Article 29(2) extends protection against the state, or any
body who denies the right conferred. Article 15(1) is much broader than the 29(2) as it covers
numerous conditions where as article 29(2) only deal with the protection against only one
wrong namely denial of admission in state aided or maintained educational institute. Article
15(1) broader than 29(2), whenever second one is not applicable the first one is apply.

Article 15(4) was added by first amendment of the constitution. It was introduced for the ad-
vancement of the socially and educationally backward classes of citizen or of SC and ST.
Rights guaranteed under Article 29(2) is limited by the Article 15(4) as it has provision of
reservation in an educational institute for some section of the Indian citizen.

If state prescribe a some percentage of reservation in any educational institute for a certain
section of the people under Article 15(4), but not increases more than the prescribed limited
than reservation of the rest can not be set aside as it would be violating of the fundamental right
under article 29(2). Any reservation of seats in an educational institute seats not justified under
Article 15(4) cannot be valid.

Article 30. Right of minorities to establish and administer educational institutions.

(1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educa-
tional institution established and administered by a minority, referred to in clause (i), the State
shall ensure that the amount fixed by or determined under such law for the acquisition of such
property is such as would not restrict or abrogate the right guaranteed under that clause.

The benefit of Article 30(1) extends only to linguistic or religious minorities and not to any
other section of the Indian citizens. Article here sate linguistic and religious minority. Here
minority means that community which is less than 50 percent of the total population with the
respects of the population of the state.
The words in the article administer and established in the Article 30(1) have to be read together.
This means that the religious minority will have the right to establish the educational institution
and can administer it only. If it established by the other community or by any other person then
they cannot claim the right under this article. Like Aligarh Muslim university was established
by the statutory provision and hence can be designated as minority educational institute.
The minority factor to attract Article. 30(1) is the establishment of the institution established
by the minority concerned. The Supreme Court has observed in Azeez Basha . Article 30(1)
postulates that the religious community will have the right to establish and administer educa-
tion institute of their choice meaning thereby where religious minority establishes an education
institution, it will have the right to administer institute of their choice provide that they have
established them not otherwise. It has to be proved by producing satisfactory evidence that the
institution was established by the minority claiming to administer it. The onus of the proof lies

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on one who asserts an institution is a minority institution. It is sole decision of the court to
decide whether the institution is minor or not. Even the government has recognized it as minor
institute.

In Yogendra Nath Singh v. State of uttar pradesh the Government recognized an institution
as minor institution. This order was challenged in the high court through a writ petition. Look-
ing into the antecedent history of the institution right from its inception , the court decide that
the institution was not established as minority institution, and, therefore, it could not granted
the minority status even though it presently it was managed by the minority community. Under
this Article both the condition “established and managed” should be read together and absence
of even one would unfit the institution for the status of the minority institution.

2) The State shall not, in granting aid to educational institutions, discriminate against any edu-
cational institution on the ground that it is under the management of a minority, whether based
on religion or language.

Article 30(2) bars the state, while granting aid to educational institution on the ground that it
is under the management of a linguistic or a religious minority. Government aided educational
institute should not be discriminated by the state on the ground that it is under the management
of a minority, whether based on religion or language. Minority educational institute are entitled
to get financial assistance much the same way as the educational institutions run by the majority
community. This does not mean that the minority educational institution can claim state as a
matter of right. But there should not be discrimination while providing financial assistance.

Purpose of Granting Cultural and Educational right

The Above rights have been granted by the Constitution with certain underlying purpose. Being
India as a secular state to maintain it and let the minority to mix with the main stream society.
And can also help in the development of the country. Other reason is that India is a country of
diverse culture, and every body is equal. Hence they have the equal opportunity to preserve it.
As Supreme Court in Ahmedabad St. Xavier College v. State of Gujarat pointed out that the
spirit behind the provision of the following article is conscience of the nation that the minori-
ties, religious as well as linguistic, are not prohibited from establishing and administering ed-
ucational institutes, of their choice for the purpose of giving their child the best general educa-
tion to make them complete man and women of the country.

The minorities have been given protection to preserve and strength the integrity of the country.
The sphere general secular education will develop the commonness of boys and girls of India.
This is the true spirit of liberty, equality and fraternity through medium of education. The mi-
nority will fell isolated and separated if they are not given these rights. General secular educa-
tion will open doors of perception and act as the natural light of mind for our countrymen to
live in the whole. The rights to administer have been given to the minority, so that it can mould
the institution as it thinks fit, and accordance with its idea how the interest of the community
in general, and institution in particular, will be best served.

Conclusion
The Supreme Court has observed in In re Kerala education bill. ” the real import of the Article
29(2) and 30(1) seems to be that they clearly contemplate a minority institution with the sprin-
kling of outsiders admitted into it.” the idea has been reinforced in the ST. Stephen college
case, Article 30(1) does not mean that the minority can establish an educational institution

13
solely for the benefit of its own community people. The minority are not entitled to establish
such institution for their exclusive benefit. The Court “every education institution irrespective
of community to which it belongs is a melting pot in our national life and that it is essential
that there should be a proper mix of the students of different communities in all education
institutions. This means that a minority institution cannot refuse admission students of other
minority and majority communities.

Our constitution believes that diversity is our strength. Therefore they guaranteed the right to
minority to maintain their culture. The minority status is not only dependent on the religion but
linguistic and religious minorities are also included in this provision. Minorities are groups that
have common language or religion and in a particular part of the country or in the country as a
whole, they are outnumbered by some other social section. Such communities have the right to
conserve and develop these.

Now through these provision religious and linguistic minority an set up their own educational
institutes. By doing so, they can preserve and develop their culture. The Government will not
while granting aid to educational institutions, discriminate against any educational institution
on the basis that it is under the management of minority community.

Minorities Rights:
In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims
(12%), which is world’ third largest. In India majority consist of Hindus, their population in-
cludes more that 80% of India’ population.

Minority Rights - The Judicial Approach:

Who are the persons of inherence of the rights under Article 30 of the Indian Constitution?
This right secures to religious and linguistic minorities a right to establish and administer edu-
cational institutions of their choice.

Minority Rights - with special reference to Christian missionaries in India:

It is well known that the standard of Christian missionary educational institutions was by and
large higher than the level of other institutions. Thanks to the dedication of Christian mission-
aries, aided generously by the British rulers, the education as well as literacy average of Chris-
tians is also higher than that of Hindus6

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Right to Property
In India, no fundamental right has given rise to so much of litigation than property right be-
tween state and individuals. Through the Supreme Court of India sought to expend the scope
and ambit of right of property, but it has been progressively curtailed through constitutional
amendments. The Indian version of eminent domain has found in entry 42 List III, which says
“acquisition or requisition of property”. Under the original Constitution Article 19(1)(f) and 31
provides for protection of property right and later they were repealed and Article 300A was
inserted. Accordingly no person shall be deprived of his property save by the authority of law.
However, regarding right to property what kind of protection given by the US Constitution
under Article 300A. For better understanding of Article 19(1)(f) and 31 along with constitu-
tional amendments. Article 31(2) of the constitution provides for compulsory Acquisition of
land. The power of eminent domain is essential to the sovereign government. The provisions
of the fifth amendment to the constitution of the United states is that private property cannot
be taken for public use without just compensation. The principle of compulsory acquisition of
property is founded on superior claims of the whole community over an individual citizen, is
applicable only in those cases where private property is wanted for public use or demanded for
the public welfare. Accordingly, the right of eminent domain does not imply a right in the
sovereign power to take the property of one citizen and transfer it to another, even for a full
compensation where the public interest will be in no way promoted by such transfer. The lim-
itation on the power of eminent domain is that the acquisition or taking possession of property
must be for a public purpose has been expressly engrafted in clause (2) of Article 31 of the
constitution of India.

No property shall be compulsorily acquired or requisitioned save for a public purpose.

The Supreme Court pointed out in State of Bihar V. Kameshwar Singh case that Article 31(2),
as it stood before the amendment did not expressly make, the existence of ‘public purpose’ a
condition precedent to the power of acquisition, but it was an essential ingredient of eminent
domain, and the clause proceeded on the assumption that acquisition can be for a public pur-
pose. After a scrutiny of the authorities, Das J. in Kameshwar Singh case, reached the conclu-
sion that no hard and fast definition of “public purpose” can be laid down for its concept, it has
been rapidly changing in all countries, he formulated as a working definition, that whatever
furthers the general interest of the community, as opposes to the particular interest of the indi-
vidual must be regarded as a public purpose.

Judicial Opinion

15
Dwarkadas Srinivas v. Sholapur Spinning and Weaving Co. Ltd., the Sholapur Spinning
and Weaving Co. Act of 1950 enabled the government to take control of the property to Sho-
lapur Spinning and Weaving Company. The question was whether the Act was invalid as it did
not provide for compensation. The government did not acquire the property therefore govern-
ment was contended that Article 31 clause (2) providing for compensation did not apply since
only clause (1) applied any authorized law was sufficient to deprive a person property right.
As clause (1) authorizes any deprivation of property under authority of law.

The learned Chief Justice would postulate that the limiting power thereof is correct by clause
(2). The Supreme Court held that the Sholapur Spinning and Weaving Company Act 1950 was
void. Article 31 clause (1) and (2) should be read together. So when there is deprivation of
property, though there is no acquisition by the state clause (2) applied and compensation be-
comes payable. Hence, any deprivation of property should be:
(1) Authorized by law; (Article 31 clause 1)
(2) Necessitated by a public purpose; (Article 31 Clause 2)
(3) Subject to payment of compensation.

Saghir Ahmed v. State of Uttar Pradesh issue was based on the Road Transport Act, 1951,
which vested in the state government the road transport services in the interest of the general
public. Supreme Court held that the Act was unconstitutional as it offended the provisions of
Article 31(2) of the constitution. The fact that passenger buses of the appellant had not been
acquired or might not have been deprived but they were depriving their business of running
buses for hire on public roads. Following the Shollapur case discussed above, the Supreme
Court held that depriving a person of his interest in a commercial undertaking even though
state did not acquire or take possession of it, attracted the provisions of Article 31(2).

State of West Bengal v. Subodh Gopal Bose is the third case relevant to the present discus-
sion. This case made it quite clear that the obligation of paying compensation arose only where
the state action resulted in the substantial deprivation of private property of the individual. The
Supreme Court held that the abridgment of right was not amount to substantial deprivation of
the right to property within the meaning of Article 31. The West Bengal Revenue Sales Act
1859 was declared void by the Supreme Court as it infringed Article 31 of the constitution. The
judgement in this case shed new light on the extent of protection of property rights under the
constitution Patanjali Sastri C.J. observed that the constitution made a definite break with the
old order and introduced new concepts in regard to many matters, particularly relating to word
‘acquisition’ which is used in narrow sense in the constitution it might have used in same sense
in pre constitutional legislation.

Chiranjit Lal's case it was held that Article 19(1) (f) would continue until the owner deprived
of such property by authority of law under Article 31. If there was ‘deprivation’ of property
under clause (1) if Article 31 by law, the citizen was not entitled to compensate at all, while he
was entitled to compensation if property was acquired or requisitioned under clause (2) upon
the point as to what is ‘deprivation’ there was conflict. In Kochunni's case court made it clear
that clause (1) dealt with deprivation of property other than acquisition or requisition as men-
tioned in the clause (2) and other could be no acquisition or requisition unless there was transfer
of ownership or a right to possession to the state or its nominee.7

7
http://www.legalserviceindia.com/legal/article-48-right-to-property.html

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Transformation From Fundamental Right to Legal Right

The aftermath of the emergency witnessed not only changes in the poltical nvironment of the
country but also in the realm of constitutional law . The Constitution (42nd Amendment) Act,
1976 made compreh- ensive changes in the Constituion primarily with the objective of remov-
ing “the impediments to growth of the Constitution”. The amendments were to spell out high
ideas of secularism, socialism, democracy, to make Directive principles more comprehensive
and give them precedence over fundamental rights .
The Act of 1976 widened the scope of 31(c) so as to cover all the Directive Principles to be
given precedence over the fundamental rights. Further three new articles 39 A ,43A and 48A
were inserted in Part IV . Again it was challenged in Minerva Mills case and the Act was
declared unconstitutional upto the extent of it giving precedence to Directives .
Right to property was originally incorporated in Article 19(1)(f) of the Indian Constitution
which declared that all the persons shall have the right ‘to acquire ,hold and dispose of prop-
erty’ along with Art.31 which provided certain safeguards against the compulsory acquisition
of individual properties which was based on English concept of private property and was
modelled on basis of Sec 299 of Government of India Act, 1935. As regards the constitutional
provision relating to it Art 19 (1)(f) was subjected to reasonable restrictions under art 19(5).
After the Janta Government took over the reins at he Centre , it sought to undo the amendments
made under 42nd Amendment Act. It enacted 44th Amendment Act ,1978 which brought about
one of the most significant change as it resulted in the deletion of right to property as a funda-
mental right and provided for its reincarnation as art 300-A to recognize it as a legal right.
The scope of Art 300-A was determined by the Supreme Court in Jilubhai Nanbhai Khachar v.
State Of Gujarat and it was held that right to property does not form the basic structure of the
Constitution. And also expression ‘property’ in article 300-A has to be understood in the con-
text of the sovereign power of eminent domain of the State.

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 BIBLOGRAPHY

https://www.omicsonline.org/.../constitutional-battles-on-right-to-property-in-
india-2169

www.lawyersclubindia.com › Articles › Constitutional Law

https://www.omicsonline.org/.../constitutional-battles-on-right-to-property-in-
india-21...

shodhganga.inflibnet.ac.in/bitstream

www.indiamapped.com

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