The Hindu Editorial: - Property is real, and so should the ‘compensation’

The Tussle Between Judiciary and Legislature Over Property Rights in India

A Fundamental Right Under Attack

• The right to property was initially considered a fundamental right in India's post-colonial era.

• A Supreme Court decision (Bela Banerjee case) mandated "just compensation" for property acquired by the state.

Legislative Response and Judicial Counter

• The parliament amended the constitution to remove judicial review of compensation amount.

• Courts then scrutinized the principles used to determine compensation, effectively achieving a similar outcome.

Further Amendments and Debates

• Parliament substituted "compensation" with "amount" in the constitution to bypass judicial scrutiny.

• The Supreme Court still reviewed the fairness of the process for determining the amount.

• This back-and-forth highlighted the ideological clash between socialist goals and individual property rights.

Shifting Sands: Deletion and Redefinition

• Following a change in government, the right to property was removed from the list of fundamental rights.

• It was reintroduced as a constitutional right with a new article (300A) requiring legal authorization for property deprivation.

Debates on Compensation and Judicial Review

• Legal scholars argued that the new framework still implied "just compensation" based on market value.

• The Supreme Court has since interpreted the right to property as a human right, requiring a just and fair process for acquisition.

The Continuing Debate

• Justice K.K. Mathew, dissenting in a key case (Kesavananda Bharati), argued that property rights are essential for a civilized society and should remain a fundamental right.

• Professor P.K. Tripathi argued that the deletion of Article 31, which mandated compensation for acquired property, was a mistake.

• He believed that "compensation" should still be interpreted as market value and that a law depriving someone of property must satisfy principles of fairness and public purpose.

Conclusion

• The history of property rights in India reflects a continuous struggle between the legislature's desire for social reform and the judiciary's efforts to protect individual rights.

• The debate around "just compensation" and the nature of the right to property itself continues to evolve.

The Bela Banerjee Case and the Fight for Just Compensation

The Bela Banerjee case, formally known as The State Of West Bengal vs Mrs. Bela Banerjee And Others (1953), is a landmark case in Indian legal history concerning property rights and the power of eminent domain. It ignited a decades-long struggle between the legislature and the judiciary over the interpretation of property rights enshrined in the Indian Constitution.

The Dispute:

The case centered around the West Bengal government's acquisition of land belonging to Bela Banerjee and others under the West Bengal Land Acquisition Act. This act authorized the government to acquire private property for public purposes, but the compensation offered to the landowners was considered inadequate.

Bela Banerjee and others challenged the acquisition on two grounds:

1. Violation of Article 19(1)(f): This article guarantees all citizens the right to acquire, hold, and dispose of property. The petitioners argued that the inadequate compensation infringed upon this fundamental right.

2. Violation of Article 31(2): This article states that no property can be acquired for public purposes without providing "compensation" for the acquisition. The petitioners argued that the compensation offered fell short of the "just equivalent" interpretation of compensation established in previous cases.
   

The Supreme Court's Decision:

The Supreme Court ruled in favor of the petitioners, holding that:

• Article 19(1)(f) protects the right to property, and acquiring property without just compensation violates this right.

• The term "compensation" in Article 31(2) implies "a just equivalent of what the owner has been deprived of." This meant the compensation should reflect the market value of the acquired property.
  

The Impact of the Bela Banerjee Case:

This decision set a significant precedent for ensuring "just compensation" in cases of land acquisition. However, it also triggered a series of legislative responses aimed at curbing the judiciary's power to review the adequacy of compensation.

The Ensuing Battle:

• The parliament, aiming to bypass the "just equivalent" interpretation, amended the Constitution through the Fourth Amendment Act (1955). This amendment altered Article 31(2) to explicitly state that the amount of compensation determined by the legislature could not be challenged in court.

• In response, the judiciary devised a strategy to scrutinize the principles used by the legislature to determine compensation, even if the final amount couldn't be challenged directly.

This back-and-forth between the judiciary and legislature continued for several decades, with further amendments to the constitution impacting the interpretation of property rights.

The Legacy of the Bela Banerjee Case:

The Bela Banerjee case serves as a crucial starting point in understanding the ongoing debate around property rights in India. It highlights the tension between the government's power to acquire land for public purposes and the individual's right to fair compensation for their property. The case also showcases the judiciary's role in upholding fundamental rights and its struggle against legislative attempts to curtail judicial review.