“Fair is foul, and foul is fair: Hover through the fog and filthy air.” We made a tryst with destiny when our nation became free. Indian humanity began the Swaraj journey with high hopes. But expectations darkened into anxiety, anxiety into agony and aspirations into frustrations. Quoting Abraham Lincoln, “Democracy is a form of government, which is of the people, for the people and by the people.” What is the meaning of the term ‘ property’? Generally speaking, the word ‘property’ has a very broad connotation, and is indictive and descriptive of every possible interest, which a person can have. Not only the thing which is subject matter of ownership but even dominium, or the right of ownership, possession, etc., falls within the scope of this term. In independent India, no fundamental right has caused so much trouble, and has given rise to so much litigation between the government and the citizens, as the right to property. While the Supreme Court has sought to expand the scope the ambit of many Fundamental Rights including the right to property, this right has been progressively curtailed through constitutional amendments. The Constitution (fourty-fourth amendment) Act, 1978, constitutes watershed in the evolution of the fundamental rights to property in India. Truly speaking, this Amendment signifies demise of the fundamental Right to property. Before 1978, there existed mainly two Articles to protect private property, viz., Art.19 (1) (f) and 31. Both these constitutional provisions were repealed by this constitutional Amendment, and thus, left private property defenseless against legislative onslaught. The present project focuses on the position of fundamental right to property in context with before and after 1978 with the important role of Eminent Domain in all these amendments. The situation before 1978 was confined within Art. 19 (1) (f) and 31 that situation was of historical value that puts the continual devaluation of the right to property since the inauguration of the constitution in a historical perspective. It may not be out of place to mention that the natural
law jurists regarded protection to property, along with life and liberty of a person, as being of paramount necessity in a free society. It is for this reason that the U.S constitution in the Vth Amendment ordains: “no person can be deprived of his life, liberty or property without due process of life”. In India, on the other side, the policy-makers under the impact of socialist philosophy started devaluing the institution of private property almost from the very day the constitution came into force<1>. Although, originally the constitution contained adequate provisions to protect private property, and although the Supreme Court sought to interpret these constitutional provisions liberally in favour of the protection to the institution of property, the fact remains that the right to property has practically ceased to exist in India. Jurisprudential aspect behind all these amendments and changes in the concept of right to property has been drawn from the concept of
Eminent Domain.
Eminent domain has been regarded as an inherent right of the state, an essential incident of its sovereignty, to take private property for public use. This power, known as Eminent Domain, depends on the superior domain of the state over all property within its property within its boundaries. <1>. M.P Jain, Indian constitutional Law, fifth edn., Wadhwa Publications,p.1253
More abstracts about the THEORY OF EMINENT DOMAIN AND RIGHT TO PROPERTY IN INDIA: THE MASK DEMASKED