LAND REORMS IN THE CONSTITUTION OF INDIA

LAND REFORMS
Land reform is a strategy for social change through state intervention. It
is where the State uses instrumental rational 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 to increase the productivity of the tiller by
giving him a portion of the land that he works on. The other 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
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
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 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 land reforms have
been conservative. In reality land reform 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 up1

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 citizen5.

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 INDIA, 4th ed. (Delhi: Universal Book Traders.1999) at pp.
825, 828

5
D.D Basu, CONSTITUTIONAL OF INDIA. 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.