State of West Bengal vs Subodh Gopal Bose and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 17 December 1953

Coram: M. Patanjali Sastri, Mehr Chand Mahajan, Ghulam Hasan, B. Jagannadhadas

In this matter the Supreme Court of India delivered its judgment on 17 December 1953. The case was styled State of West Bengal versus Subodh Gopal Bose and others. The opinion was authored by Justice M Patanjali Sastri. The bench that heard the case comprised Justices M Patanjali Sastri, Mehr Chand Mahajan, Ghulam Hasan and B Jagannadhadas. The petitioner was the State of West Bengal and the respondents were Subodh Gopal Bose together with several other parties. The official citation for the decision appears in the All India Reporter at 1954 AIR 92 and in the Supreme Court Reports at 1954 SCR 587. The decision is also listed in a series of citator references, namely E 1954 SC 119 (1), RF 1954 SC 282 (13), R 1954 SC 728 (25), R 1955 SC 41 (6), R 1955 SC 604 (19), RF 1955 SC 781 (11), RF 1956 SC 246 (65), E&D 1957 SC 599 (24), D 1957 SC 832 (25), R 1958 SC 328 (9, 10, 11, 34), F 1958 SC 578 (170), F 1958 SC 731 (21), R 1959 SC 308 (6), D 1959 SC 648 (38), D 1960 SC 1080 (22, 27, 28), RF 1961 SC 1684 (28, 29), E 1962 SC 263 (24), D 1962 SC 458 (24), RF 1962 SC 1006 (67, 72, 78), RF 1962 SC 1781 (20), C 1963 SC 864 (25, 27), R 1963 SC 1019 (13, 14), RF 1963 SC 1667 (11), R 1965 SC 190 (4), R 1967 SC 856 (9), F 1967 SC 1643 (179, 227), RF 1968 SC 394 (10, 18), RF 1969 SC 634 (33, 35, 38), RF 1970 SC 564 (54, 55, 151, 200), R 1971 SC 1594 (9), RF 1973 SC 1461 (310), R 1978 SC 215 (68), R 1978 SC 597 (189), R 1978 SC 803 (35), RF 1979 SC 248 (10), E 1980 SC 1042 (110), E&R 1987 SC 180 (9), F 1989 SC 1629 (15), F 1990 SC 1927 (61), RF 1992 SC 1256 (14). The issues considered involved the Constitution of India, specifically Articles 19 (1)(f) and 31, the scope of the correlation between those provisions, whether the two clauses are mutually exclusive, and the meanings of the terms “deprivation”, “acquisition” and “taking possession”. The Court also examined the Bengal Land Revenue Sales (West Bengal Amendment) Act 1950, identified as West Bengal Act VII of 1950, particularly section 7, to determine whether that provision was ultra vires Articles 19 (1)(f) and 31.

The headnote records that the first respondent, referred to as B, purchased a touzi in the 24-Parganas Collectorate at a revenue sale held on 9 January 1942. By virtue of that purchase, B acquired under section 37 of the Bengal Revenue Sales Act, 1859, the right “to avoid and annul all under-tenures and forthwith to eject all under-tenants”, subject to certain exceptions that are not material to the present dispute. Exercising the statutory right, B issued notices of ejectment and instituted a suit in 1946 seeking the eviction of several under-tenants, including the second respondent, and the recovery of possession of the lands. The trial court decreed in favour of B, ordering the second respondent to vacate. The second respondent appealed the decree to the District Judge of 24-Parganas, contending that his under-tenure fell within one of the statutory exceptions specified in section 37. While that appeal was pending, the Bill that would later be enacted as the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the West Bengal Legislative Assembly.

On 23 March 1950 the Bill that later became the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 was introduced in the Legislative Assembly. According to the statement of objects and reasons annexed to the Bill, the application of section 37 of the Bengal Land Revenue Sales Act, 1859, was creating great hardship for a large section of the population, especially in urban areas and in Calcutta and its suburbs. The statement observed that the phenomenal increase in land values in those localities had provided a strong incentive for speculative purchasers to exploit section 37 of the law, resulting in unwarranted large-scale evictions of under-tenants. Because of this situation the legislature considered it necessary to enlarge the scope of protection already afforded by section 37 to certain categories of tenants, while also providing safeguards to protect government revenue. The Bill was subsequently passed as an amending Act and came into force on 15 March 1950. The amendment substituted a new section 37 in place of the original provision by means of section 4, and section 7 of the amendment expressly declared that all pending suits, appeals and other proceedings which had not yet resulted in the delivery of possession would abate.

Thereafter the purchaser, identified as B, contended that section 7 was void because it abridged his fundamental rights under article 19(1)(f) and article 31 of the Constitution. B moved the High Court under article 228, seeking to withdraw the pending appeal and to have the constitutional issue decided. The High Court withdrew the appeal and the matter was heard by Justice Trevor Harries, Chief Justice, and Justice Banerjee. In separate but concurring judgments the two judges declared section 7 unconstitutional and void. They held that B’s right to annul under-tenures and evict under-tenants was a vested right acquired by him at the time of his purchase, before the amendment of section 37. The retrospective deprivation of that vested right by section 7, without any reduction in the price B had paid at the revenue sale, constituted an infringement of his fundamental right under article 19(1)(f) to hold property together with all the rights attached to his purchase. The Court further observed that such deprivation was not a reasonable restriction on the exercise of his vested right and therefore could not be saved by clause (5) of article 19; consequently, section 7 was void. The State of West Bengal appealed the High Court’s decision to the Supreme Court. The Supreme Court, speaking through Chief Justice Patanjali Sastri, held that article 19(1)(f) does not apply to the case because the word “hold” in that article means “own”. The sub-clause gives citizens an abstract right to acquire, own and dispose of property, but does not address the concrete disputes that arise after property has been acquired and owned. Those concrete rights, the Court explained, are dealt with under article 31 of the Constitution. Under the constitutional scheme, the broad freedoms guaranteed to citizens are protected from state invasion by clause (1) of article 19, while the powers of the state to regulate those freedoms in the public interest are defined in relation to each specific freedom.

The Court observed that clauses (2) to (6) of the article deal with the regulation of rights, whereas the protection of private property is specifically set out in article 31. The provision further indicates, in paragraph (ii) of sub-clause (b) of clause (5) of article 31, the situations where social control and regulation may extend to the deprivation of property rights, and it provides that such cases are exempt from the obligation to pay compensation.

Held, per Patanjali Sastri C.J., with Mehr Chand Mahajan and Ghulam Hasan JJ. concurring: (i) Article 31 safeguards the right to property by delineating the limits on the State’s power to acquire private property without the owner’s consent. Clauses (1) and (2) of article 31 are not mutually exclusive; they must be read together because both address the same subject-matter, namely the protection of property rights through constitutional limitations on State action. The deprivation mentioned in clause (1) is essentially the acquisition or taking possession described in clause (2). The expressions “taking possession or acquisition” in article 31(2) and the terms “acquisition or requisitioning” in entry 589 No. 33 of List I, entry No. 36 of List II, and “acquired or requisitioned” in entry No. 42 of List III all convey the same concept of deprivation within the meaning of article 31(1). No precise formula exists to determine whether a particular owner has been “deprived” of property under article 31; each case must be examined on its own facts. In general, an abridgement will constitute a deprivation if it effectively withholds the property from the owner’s possession and enjoyment, seriously impairs the owner’s use and enjoyment, or materially reduces the property’s value. The phrase “taking possession” in article 31(2) therefore refers to any form of possession that the property is capable of being subjected to and does not require physical occupation.

(ii) The Court found it difficult to conclude that the retrospective limitation placed on the rights of a purchaser at a revenue sale amounted to a deprivation of property within the meaning of article 31(1) and (2). Consequently, there was no issue regarding the applicability of clause 5(b)(ii) of article 31 to the matter. The Court held that the restriction introduced by the new section 37 on the purchaser’s rights at a revenue sale merely imposes a reasonable limitation on the right guaranteed by article 19(1)(f). Such a limitation serves the public interest and is fully permissible under clause (5) of article 19.

The Court observed that the statement of objects and reasons that accompanies a statute is not admissible as a tool for construing the statutory language, but it may be consulted for a narrowly-defined purpose: to determine the factual conditions that existed at the time the sponsor of the Bill introduced the legislation and to evaluate the seriousness and urgency of the evil that the sponsor intended to remedy. Those factual considerations, the Court held, must be taken into account when the judiciary assesses whether the restrictions permitted under article 19 (5) are reasonable. The Court then explained the relationship between article 19 (1)(f) and article 31. It noted that a person who loses his property because it has been compulsorily acquired under article 31 also loses the right to continue holding that property and therefore cannot claim that his fundamental right under article 19 (1)(f) has been infringed. The rights enumerated in article 19 (1) exist only while a citizen possesses the legal capacity to exercise them. The Court referred to the decisions in A.K. Gopalan’s case [1950] S.C.R. 88 and Chiranjit Lal’s case [1950] S.C.R. 869 to support this proposition. For the purposes of the present appeal, the Court said, the matter proceeds on the premise that article 19 covers both an abstract liberty and the concrete right to own property. Turning to article 31, the Court described the true scope and effect of its clauses (1) and (2). Clause (1) addresses deprivation of property that occurs through the exercise of police power and enunciates the constitutional restrictions that the framers deemed necessary: such power may be exercised only by authority of law and not by a mere executive fiat. Clause (2) concerns the exercise of the power of eminent domain and imposes limitations on that power; those limitations constitute fundamental rights that protect citizens against the State’s power of eminent domain. The Court stressed that both clauses cannot be understood as dealing solely with the State’s eminent-domain power, because doing so would render clause (1) redundant, would leave deprivations of property that do not involve taking possession or acquisition outside the reach of constitutional protection, and would remove any safeguard against the exercise of police power over property by either the executive or the legislature. The Court cited Chiranjit Lal’s case [1950] S.C.R. 869 and The Bihar Zamindari case [1952] S.C.R. 889 in support of this view. Finally, the Court held that the State’s police power is not confined within the ambit of article 19; to assert otherwise would imply that no person, whether citizen or non-citizen, enjoys protection against the executive’s exercise of police power over property, that while clauses (2) to (6) protect against legislative “restriction” there would be no protection against legislative “deprivation,” and that within article 31 (5)(b) such a reading would incorrectly suggest that police power, which is inherent in sovereignty and does not require express reservation, could be exercised without any constitutional test of validity.

In this passage the Court observed that the power inherent in sovereignty does not need a specific reservation, yet it had been needlessly defined and set aside. The Court noted that the Constitution does not lay down any test for judging the validity of a law that falls outside the provision, and consequently such a law could be as outdated, offensive or unreasonable as the legislature wishes to make it. It further held that the provision gave no protection against actions of the executive. The Court added that the legislature’s exercise of police power was limited to the very narrow and rigid boundaries of the clause, so that the State could not embark on any beneficial or social legislation involving the taking of property unless the law fell within the clause and provided for payment of compensation. The Court pointed out that acquisition of property for which compensation is normally required—such as taking land for a public park, a hospital, or for clearing a slum—would thereafter be allowed even if the law did not prescribe any compensation. The Court then examined the argument that if article 31(1) were read as a fundamental right protecting against deprivation of property by the executive and article 31(2) as setting the limits of the State’s power of eminent domain, there would be no real protection because the State could deprive a person of his property without compensation simply by enacting a law. The Court rejected this position on three grounds. First, it said there would indeed be protection against the executive, just as the twenty-ninth clause of the Magna Carta protected subjects against the Crown. Second, it observed that article 31(2) safeguards against the legislature in matters of taking possession or acquisition where compensation must be paid, and clause 5 of article 19 protects against unreasonable restraint. Third, it noted that the lack of protection against the legislature in other contexts is no greater than the lack of protection against the legislature in the field of taxation; if the legislature can be trusted to levy taxes fairly, it may also be trusted to act in matters of acquisition. Finally, the Court explained that not every taking of an object into the custody of the State or its nominee amounts to a taking of possession within the meaning of article 31(2) that would obligate the State to pay compensation. It distinguished police power, which is exercised for the community’s interest, from eminent-domain power, which is exercised to achieve a public purpose; both involve taking possession of private property, yet they differ markedly. The Court admitted that while the distinction between the two types of possession is clear, it is somewhat hard to articulate. Because the State’s police power has such a wide reach, the Court said it is neither desirable nor possible to set a fixed general test to decide whether a particular law’s taking of possession falls under one category or the other. Without attempting to create an inflexible rule, the Court concluded that it is possible to speak in general terms about the aim, purpose and effect of each kind of taking, leaving the detailed assessment to the scrutiny of the specific enactment in question.

The Court observed that the purpose and effect of the two categories of taking possession differ, and therefore, in each case the specific provisions of the statute that authorises the taking must be examined closely to decide under which category the taking falls. It explained that the analysis must consider the ultimate aim of the taking, the immediate purpose for which possession is taken, the method and manner of the taking, the period for which possession is retained, and the impact of the taking on the rights of the person who is dispossessed, together with any other relevant factors, and that all of these elements together guide the judicial decision. The Court then turned to the question of whether the right to annul under-tenures, to eject under-tenants, and to obtain a decree for ejectment could be treated as “property” within the meaning of article 31(2). It held that the State had not acquired those rights because there was no transfer of the rights by agreement or by operation of law from respondent B to the State or to any other party. Since the purchase in question took place at a revenue sale governed by the West Bengal Act VII of 1950, the purchaser of the land was deprived of that right by operation of law; consequently, the situation fell within clause (1) of article 31 and not within clause (2). The Court further held that, even if the impugned provision of the West Bengal Act VII of 1950 were regarded as imposing restrictions on the purchaser, those restrictions were reasonable and fell within the permissible scope of article 19(5) of the Constitution, and therefore the challenge to the provision on constitutional grounds could not succeed. In its reasoning, the Court assumed that the dispute arose under article 19(1)(f) and article 19(5). It concluded that the impugned section was intra-vires because the restrictions were reasonable within the meaning of article 19(5). The Court also noted that article 19(1)(f), although primarily intended to protect natural rights, also embraces concrete property rights, and that the restrictions contemplated by article 19(5) normally relate to such concrete property rights. Regarding article 31(1), the Court clarified that it should not be read as an endorsement of the American “police power” doctrine; rather, it requires authority of law, distinct from mere executive fiat, for the exercise of eminent domain, although its reach may be broader. The terms “acquisition” and “taking possession” in article 31(2) were explained not to imply a mandatory transfer of title or possession, but to cover all situations where title or possession is removed from the owner and appropriated without consent, whether by transfer, extinction, or any other process that effectively amounts to taking. In this context, “possession” is understood as the type of possession that the nature of the property admits and that the law recognises. Finally, the Court observed that, in the setting of article 31(2) and the corresponding provisions of article 19(1)(f), the meaning of the word “property” is limited by the accompanying terms “acquisition” and “taking possession.”

The Court observed that the accompanying words “acquisition” and “taking possession” indicate that the right to annul under-tenures cannot, by itself, be treated as property because it is not capable of independent acquisition or possession. The Court explained that depriving a person of that right merely amounts to a restriction on the exercise of rights concerning the main property and therefore falls within article 19(1)(f) read with article 19(5). The judgment then referred to a long line of authorities, namely Butchers Union etc. Co. v. Crescent City etc. Co. (111 U.S. 746), Punjab Province v. Daulat Singh and Others ([1946] F.C.R. 1), Chiranjit Lal Chauduri v. The Union of India and Others ([1950] S.C.R. 869), A.K. Gopalan v. The State of Madras ([1950] S.C.R. 88), P.D. Shamdasani v. Central Bank of India ([1952] S.C.R. 391), Ministry of State for the Army v. Dalziel (68 C.L.R. 261), Pennsylvania Coal Co. v. Mahou (260 U.S. 322), Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd. ([1954] S.C.R. 674), State of Madras v. V.G. Row ([1952] S.C.R. 597), Ram Singh v. The State of Madras ([1951] S.C.R. 451), State of Bihar v. Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank v. Haskeli (219 U.S. 104), Eubank v. Richmond (226 U.S. 137), and Ioseph Hurtado v. People of California (1883) (10 U.S. 516), all of which were cited for support. The judgment then recorded the details of the appeal: it was a civil appellate jurisdiction matter, Civil Appeal No. 107 of 1952, arising from the judgment and order dated 22 March 1951 of the High Court of Judicature at Calcutta (Presided over by the Chief Justices Harries and Banerjee) in Reference No. 4 of 1950 under Civil Rule No. 1643 of 1950. Counsel for the appellant, assisted by another counsel, appeared on behalf of the State, while counsel for respondent No. 1, assisted by counsel, represented the first respondent. The judgment dated 17 December 1953 was delivered by Chief Justice Patanjali Sastri. The Court noted that the appeal raised issues of great public and private importance concerning the extent of protection that the Constitution of India affords to private property ownership. The first respondent had purchased the entire Touzi No. 341 of the 24-Parganas Collectorate at a revenue sale held on 9 January 1942. By virtue of that purchase, the respondent obtained, under section 37 of the Bengal Revenue Sales Act, 1859 (Central Act No. 11 of 1859), the right “to avoid and annul all under-tenures and forthwith to eject all under-tenants,” subject to certain exceptions that were not material to the present case. Exercising that right, the respondent issued notices of ejectment and instituted a suit in 1946 to evict several under-tenants, including the second respondent, and to recover possession of the land. The suit was decreed against the second respondent, who then appealed to the District Judge, 24-Parganas, contending that his under-tenure fell within one of the statutory exceptions. While that appeal was pending, the Bill that later became the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950 (referred to as “the amending Act”) was introduced in the West Bengal Legislative Assembly on 23 March 1950. The Court observed that it would appear, according to the statement of objects and reasons annexed to the Bill, that the legislation was intended to address hardships caused by the application of section 37 in urban areas, particularly in Calcutta and its suburbs, where rising land values had encouraged speculative evictions, and that the amendment sought to broaden protection for certain categories of tenants while safeguarding government revenue.

In the statement of objects and reasons annexed to the Bill, it was recorded that a large portion of the public suffered great hardship due to the operation of section 37 of the Bengal Land Revenue Sales Act, 1859, especially in urban zones such as Calcutta and its suburbs. The statement explained that a phenomenal rise in land values had created an incentive for speculative purchasers to use section 37 to carry out unwarranted large-scale evictions. Consequently, the Bill sought to widen the protection already afforded by section 37 to certain categories of tenants, while preserving safeguards for government revenue. The Bill was eventually enacted as the West Bengal Revenue Sales (West Bengal Amendment) Act and came into force on 15 March 1950. By virtue of section 4, the new provision replaced the original section 37 with a revised version. Section 7 of the amending Act stipulated that all pending suits, appeals and other proceedings that had not yet resulted in the delivery of possession would abate.

Following the enactment, the respondent argued that section 7 was void because it infringed his fundamental rights under article 19(1)(f) and article 31. He filed a petition in the High Court under article 228 requesting that the pending appeal be withdrawn and that the constitutional issue raised by him be decided. The High Court withdrew the appeal, and the matter was subsequently heard by the Chief Justice, Trevor Harries, and Justice Banerjee. Both judges, in separate but concurring opinions, declared section 7 unconstitutional and void, and they remitted the case to the District Court for disposal in accordance with their decision. The learned judges held that the respondent’s right to annul under-tenures and to evict under-tenants was a vested right acquired at the time of his purchase, before the amendment of section 37. They found that the retrospective deprivation of that vested right by section 7, without any reduction in the price paid at the revenue sale, violated the respondent’s fundamental right under article 19(1)(f) to hold property together with all rights acquired through his purchase. The judges further concluded that this deprivation was not a reasonable restriction on the exercise of his vested right, that section 7 was not saved by clause (5) of article 19, and therefore it was void.

Representing the State, the Attorney-General contended before the Court that if the respondent’s right to annul under-tenures and evict under-tenants—except those protected under the original enactment—constituted “property” within the meaning of clause (1) of article 19, then the same right must also be “property” within the meaning of clause (1) of article 31, because the expression should carry the same connotation in both provisions. Accordingly, the Attorney-General argued that the respondent’s deprivation of this right under the authority of section 7 of the amending Act was lawful and could not be challenged. In support of this position, counsel relied heavily on the observations made by Justice Das in Chiranjit Lal Choudhury’s case(1) and also drew an analogy to the reasoning employed by the majority in a related decision.

The counsel for the State also argued, invoking the earlier decision in Gopalan’s case, that if the proper interpretation was that the respondent’s loss of right amounted merely to a “restriction” on his enjoyment of the property he had lawfully purchased, as the learned judges had previously observed, then that restriction could be characterised as reasonable. The argument continued that such a restriction was imposed in the interests of the general public pursuant to clause (5) of article 19, when the factual background and the circumstances that motivated the enactment of the measure were considered, as detailed in the Statement of Objects and the reasons annexed to the Bill, which are admissible for this purpose.

The Court found it convenient to address first the latter submission made by the Attorney-General. In the Court’s view, sub-clause (f) of clause (1) of article 19 did not apply to the present matter. Article 19 enumerates certain freedoms under the heading “right to freedom” and is intended to protect those great and basic rights that are recognised as natural rights inherent in the status of a citizen of a free nation. The freedoms listed in sub-clauses (a) to (e) and (g) clearly fall within that description; consequently, sub-clause (f) should also be understood as safeguarding the freedom of a citizen of free India to acquire, possess and dispose of private property. In other words, sub-clause (f) declares a citizen’s right to own property and does not refer to the right to the specific property already owned, a matter that is dealt with in article 31.

The Court then turned to the concept of “privileges and immunities” as mentioned in article 4 and the Fourteenth Amendment of the United States Constitution. Referring to the observations of Justice Bradley in Butchers Union v. Crescent City Co., the Court quoted: “The phrase has a broader meaning. It includes those fundamental privileges and immunities which belong essentially to the citizens of every free government, among which Justice Washington enumerates the right of protection; the right to pursue and obtain happiness and safety; the right to pass through and reside in any State for the purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; and to take, hold and dispose of property either real or personal” (see Corfield v. Coryell, 4 Wash. (C.C.) 371). The Court explained that these rights differ from the concrete claims a person may have to a particular chattel, a piece of land, the performance of a contract, or damages for a specific wrong—rights that can be invaded by other individuals. Instead, the cited rights constitute the capacity, power or privilege to possess and enjoy those concrete rights and to protect them in court, a capacity that can only be infringed by the State. The Court characterised these capacities as primordial and fundamental privileges and immunities of citizens, the very rights referred to in article 4 of the Constitution.

The Court observed that the discussion was not to be about the precise definition of the expression “privileges and immunities” as it appears in the Constitution and in the Fourteenth Amendment to that Constitution (the words are shown in italics to indicate the original emphasis). The Court noted that certain judges had limited the reference of that expression to privileges and immunities that arise solely from the Federal Constitution or its statutes. For the present analysis, however, the Court found it more relevant that two learned judges had characterized the “right to take, hold and dispose of property” as one of the “primordial and fundamental rights” belonging to the same class as the right to pursue happiness, safety and other basic freedoms enjoyed by free citizens. The judges distinguished this class of rights from the “concrete rights” that a person may have in a particular thing or piece of land. According to the judges, the former category referred to the capacity, power or privilege of possessing and enjoying those concrete rights, whereas the latter category concerned the specific entitlement to a particular asset.

The Court further explained that sub-clause (f) of clause (1) of Article 19 of the Constitution appears to correspond to clause (1) of Article 17 of the United Nations Declaration of Human Rights, which states that “Everyone has the right to own property alone as well as in association with others,” and to Article 31 of the same Declaration, which provides that “No one shall be arbitrarily deprived of his property.” The Court expressed confidence that the framers of the Indian Constitution drew the same distinction, grouping the natural right or capacity of a citizen “to acquire, hold and dispose of property” together with other natural rights and freedoms inherent in the status of a free citizen, and embodying that grouping in Article 19(1). At the same time, the framers placed protection of the concrete rights relating to property already owned by a person in Article 31. The Court pointed out that the meaning of the phrase “to acquire, hold and dispose of property” and the nature of the subject matter it addresses are also evident from Sections 111 and 298 of the Government of India Act, 1935, where the very same expression is used to forbid the imposition of any “disability” on a British subject domiciled in the United Kingdom or on an Indian subject of His Majesty on grounds of religion, place of birth, descent, colour or any similar basis. The Act, however, deals with the expropriation of specific property belonging to such persons in Section 299, not with the broader capacity to own property. The Court observed that there were difficulties in accepting the view of the learned judges that Article 19(1)(f) and Article 19(5) concern only the concrete rights of property and the attendant restraints. Firstly, sub-clause (f) of clause (1) of Article 19 is limited to the rights of citizens, whereas Article 31 applies to the rights of persons generally. If Article 31, which is headlined “right to property,” was intended to protect the property rights of both citizens and non-citizens, the Court questioned why a separate provision was deemed necessary in sub-clause (f) of clause (1) of Article 19 to protect those same rights.

In examining the protection afforded by sub-clause (f) of clause (1) of article 19, the Court observed that the Constitution-makers could not have intended to give a double-barrelled safeguard to private property. The phrase “right to acquire and dispose of property” was understood to refer solely to the capacity of a citizen to engage in those transactions. The intervening word “hold” was interpreted, in the Court’s view, as meaning “to own” rather than indicating a distinct set of rights to particular things owned by a citizen. The Court found no merit in the contention that, unless sub-clause (f) read together with clause (5) is taken to cover concrete property rights, the legislature would be free to impose unreasonable restrictions on citizens’ enjoyment of private property. It appeared implausible that the framers of the Constitution would have drawn a line between citizens and non-citizens with respect to restrictions on the enjoyment of private property.

The Court explained that any restriction on private property is exercised as part of the State’s inherent power to regulate property rights when such regulation is necessary to prevent injury to others who hold similar rights. The measure of any restriction must be determined, for both citizens and non-citizens, by the need to protect the community. Nonetheless, the Court noted that a differential approach would be understandable if sub-clause (f) of clause (1) of article 19 and clause (5) were construed only as dealing with the general freedom or capacity to acquire, hold and dispose of property. In that narrower sense, it would be permissible to exclude aliens from that freedom, a practice observed in several countries for the benefit of their nationals, especially concerning land. The Court further observed that, by virtue of the preamble and the directive principles of State policy in Part IV, the Constitution aims at establishing a social-welfare State, which necessarily involves a substantial degree of social control and regulation over the enjoyment of private property. If concrete property rights were placed within the scope of article 19(1)(f), the judicial review mandated by clause 5 regarding the reasonableness of such control could unduly hamper legislative action. Accordingly, the Constitution-makers may have intended to leave the legislature free to regulate the enjoyment of property rights, imposing indemnification under clause 2 of article 31 only when regulation results in deprivation of property, subject to the exceptions specified in paragraph (ii) of sub-clause (b) of clause 5 of article 31. Finally, the Court was not persuaded by the argument that the reference to “exercise” in clause 5 of article 19, concerning the rights conferred by sub-clause (f) of clause 1, implies that those rights must be limited in a particular manner.

Clause 5 of Article 19 may be understood to include restrictions on a citizen’s freedom to acquire, hold and dispose of property. Such restrictions could take the form of a ban on acquiring land in a particular locality, for example a tribal area, a limit on the total amount of land that any citizen may possess, or a requirement that alienation of land be made only to persons belonging to specified classes, as illustrated in the case of Punjab Province v. Daulat Singh and Other. The reasonableness of these restrictions would be subject to judicial review under the provisions of the Constitution. For these reasons, the Court held that, within the constitutional scheme, the wide and fundamental freedoms that arise from the status of a person as a free citizen are embodied and protected from State invasion by the guarantee in clause 1 of Article 19. The power of the State to regulate those freedoms in the public interest is defined, for each freedom, by clauses 2 to 6 of the same article. Rights to private property, on the other hand, are dealt with separately and receive protection under Article 31. The situations in which social control and regulation may extend to the deprivation of property rights are specified in paragraph (ii) of sub-clause (b) of clause 5 of Article 31, and in those cases compensation is exempted under clause 2. Consequently, there is no occasion for correlating Article 19(1)(f) with Article 31, and the analogy drawn from the Gopalan case does not apply. On this view, the question of whether section 70/3 of the amending Act constitutes a reasonable restriction on the respondent’s right to the property he purchased cannot arise, because clause 5 of Article 19 can refer only to the types of disabilities already mentioned. Turning to the contention based on Article 31(1), the Court quoted the language employed by Justice Das in the case of Chiranjit Lal Choudhury, a passage fully embraced by the Attorney-General. The passage states that Article 31(1) formulates a fundamental right in negative terms, prohibiting deprivation of property except by authority of law, and therefore it implies that a person may be deprived of his property by such authority. Article 31(2) consequently prohibits the acquisition or taking possession of property for a public purpose under any law unless that law provides for payment of compensation. It has been suggested that clauses 1 and 2 of Article 31 address the same subject—compulsory acquisition or taking possession of property—with clause 2 merely elaborating clause 1. The Court identified two objections to that suggestion. Firstly, if clause 1 were wholly redundant, clause 2 alone would suffice, which is not the case. Secondly, that view would exclude any deprivation of property that does not occur through acquisition or taking possession. The Court noted that one can conceive circumstances in which the State may need to deprive a person of his property without acquiring or taking possession of it.

In the passage under consideration, the Court observed that it is possible for a person’s property to be taken away without the State actually acquiring or taking possession of that property. The Court illustrated this point by describing a situation that might arise in an emergency: if a fire threatens to spread, the authorities may be compelled to demolish a building that lies in the path of the fire in order to protect other lives and property. The Court noted that such a deprivation of property, carried out in order to prevent a greater disaster, is recognised in the United States of America as an exercise of what is described there as “police power”. The Court further explained that this type of deprivation is distinct from the deprivation that occurs when the State acquires or takes possession of property, a concept that in American law is known as “eminent domain”. The Court added that the construction being suggested by the learned Attorney-General would imply that the Constitution of India addresses only the law of eminent domain and that it makes no provision for deprivation of property undertaken in the exercise of police powers. The Court stated that it was not prepared to accept such a construction because the language of Article 31, clause 1, does not compel that view. On the contrary, the Court held that the language of clause 1 is broader than that of clause 2, because deprivation of property may occur by means other than acquisition or taking possession. The Court explained that clause 1 expresses the general principle that no person shall be deprived of his property except by authority of law; when expressed in a positive form, this principle implies that a person may be deprived of his property provided that such deprivation is authorised by law. The Court observed that clause 1 does not raise any question of compensation. By contrast, clause 2, according to the Court, deals only with those particular kinds of deprivation that are brought about by acquisition or taking possession, and it makes such deprivation impermissible unless the law providing for it also provides for payment of compensation. The Court further stated that where deprivation of property occurs by means other than acquisition or taking possession, compensation is not required so long as the deprivation is effected by authority of law.

The Court added that it had reproduced the foregoing lengthy passage in order to avoid any unfairness that might arise from summarising the position. The observations recorded as “2-9 S.C.I./59” were made while the Court was rejecting an argument raised by the petitioner in the case, although the learned Judge had decided in the petitioner’s favour on a different point; consequently, the observations were purely obiter. The Court expressed, with all due respect, its inability to share the view advanced by the learned brother. According to that view, clauses 1 and 2 of Article 31 were read as mutually exclusive in scope and content, with clause 2 imposing limitations only on two specific categories of deprivation—those resulting from acquisition or taking possession—while clause 1 was said to authorise every other kind of deprivation so long as it was authorised by law. The Court identified several objections to accepting that interpretation, and it highlighted the most serious objection: that such a reading would effectively nullify the constitutional protection afforded to private property and would undermine the very concept of the right to property as a fundamental right. Under that interpretation, the Court warned, the State, acting through its legislative arm, could arbitrarily forbid a person from using his property, order its destruction, or render it useless, without any requirement to pay compensation and without the necessity of a public purpose.

The Court observed that the two conditions of compensation and public purpose apply only to acquisition and taking possession as set out in clause (2). It noted that the purpose of Part III of the Constitution is to safeguard the freedoms and rights mentioned therein against arbitrary intrusion by the State, which Article 12 defines to include the legislatures of the country. The Court warned that it would be a striking irony if the fundamental right to property were, by construction, transformed into an arbitrary power of the State to dispossess a person of his property without compensation in every manner except acquisition or taking possession. If legislatures possessed such unfettered power, the Court asked why the Constitution would still require compensation and a public purpose in connection with the two forms of deprivation specified in clause (2). The Court questioned what rational principle could justify this differentiation. It rejected the suggestion that clause (1) merely defines a “police power” concerning property rights, observing that the same power could equally be applied to the two particular kinds of deprivation, thereby avoiding an inconsistency. The Court explained that compensation is intended to indemnify an owner for the loss of his property, and it makes no practical difference to the owner whether the deprivation is authorized under clause (1) or clause (2); in either case the property is lost and the owner suffers a loss. Whether the property is subsequently used for a public purpose or simply destroyed without any public benefit is immaterial to the owner’s loss. The Court further observed that an owner might find some solace if his property were employed for the public good, as he would then be participating in that benefit as a member of the public; such consolation is denied when deprivation occurs under clause (1), rendering the loss more grievous. According to the reading of Das J., the Constitution-makers provided no indemnification for the expropriated owner because deprivation under clause (1) is an exercise of “police power.” The Court found this reasoning fallacious. It argued that construing the clause as granting the State, acting through its legislature, unrestricted authority to deprive owners of their property in all cases except the two enumerated in clause (2), and then trying to justify that sweeping power by labeling it “police power,” is unsound. The Court reiterated that Das J. treated clause (1) as conferring “police power” on the State to deprive persons of their property by means other than acquisition or taking possession. He interpreted the clause positively, implying that a person may be deprived of his property by authority of law. In other words, the framers of the Constitution, who began Part III by formulating fundamental rights of individuals against invasion by the legislatures, appear, according to Das J., to have ended that part by granting the legislatures the right to deprive individuals of property without compensation.

In the passage under consideration, it is observed that the Constitution formulates a power for the Legislatures to dispossess individuals of their property without providing compensation. The discussion then turns to the concept of police power as it relates to personal liberty, quoting Prof. Willis, who states that a proper exercise of police power requires two essential elements: first, a social interest that outweighs the interest in personal liberty, and second, a means that bears a substantial relation to achieving that social interest. The same two-fold requirement, it is argued, applies equally when police power is exercised over private property.

The judgment notes that clauses (2) to (6) of Article 19 embody this principle by delimiting the Legislatures’ regulatory authority over the freedoms listed in clause (1) of that article, including the freedom identified in sub-clause (f). By contrast, clause (1) of Article 31 is said to impose no comparable limitations on the Legislature’s power to deprive a person of property. The Court questions why such unfettered authority should be granted in the context of private property, when the restrictive power under Article 19 is carefully confined to specified purposes and is subject to the requirement of reasonable restriction.

The Court further asks whether it could have been intended that, while restrictions on the freedoms mentioned in clause (1) of Article 19 must be reasonable and in the public interest, the deprivation of property—except in the two situations enumerated in clause (2) of Article 31—need not satisfy any test of reasonableness or public benefit. It is observed that invoking “authorisation by law” as the sole limitation on deprivation overlooks the fact that, even for the restrictions under clauses (2) to (6) of Article 19, the authorising law is supplemented by additional constraints. Consequently, authorisation by law alone cannot be regarded as a limitation on legislative power.

The discussion then examines the nature of “police power.” It points out that in American jurisprudence, police power is essentially a legislative power, and asks how the Indian Constitution permits the State to exercise such power. Referring to the doctrine of police power in American constitutional law (see Constitutional Law, p. 728), the Court recalls the observation made in Gopalan’s case that when legislative power was threatened by the excesses of due process, the vague and expansive doctrine of police power—defined as the Government’s power to regulate private rights in the public interest—was introduced as a counter-measure. Similarly, Justice Das observed that the doctrine of due process needed to be narrowed through the “enunciation and application of the new doctrine of police power as an antidote or palliative to the former.” The Court held that the framers of the Indian Constitution deliberately rejected the doctrine of due process of law. It then asks whether they accepted the “antidote” doctrine of police power and incorporated it into clause (1) of Article 31 as a specific power granted to the Legislatures to deprive persons of their property.

The Court observed that the idea that clause (1) of article 31 grants the Legislatures a power to deprive individuals of their property is unfounded and runs counter to the constitutional scheme. The Constitution of India, unlike that of the United States, distributes legislative authority between the Union and the State legislatures by means of the Lists contained in the Seventh Schedule. Within those Lists the power to acquire or requisition property for Union purposes appears in entry 33 of List I, and the similar power for State purposes appears in entry 36 of List II. Consequently, the power commonly described as eminent domain, which continental and American jurists regard as an inherent attribute of state sovereignty and which therefore is not expressly mentioned in the American Constitution, is expressly granted by the Indian Constitution. After expressly conferring that power, article 31 delineates the limitations on its exercise by recognising the owner’s right to property as a fundamental right, while all other fundamental rights function as restraints on State action, as noted in the observations on page 198 of Gopalan’s case (1). The Court then turned to the broader notion of the State’s power of social control and regulation of private rights and freedoms for the common good, cited in the reports of 1950 S.C.R. 88 at pages 200 and 313. This power, being an essential characteristic of a political community and permeating the entire field of legislation, is not singled out in any specific entry of the legislative Lists. Instead, it is left to be exercised as part of the appropriate legislative competence wherever the legislature deems it necessary. Even where regulatory powers are expressly defined and limited—such as in clauses (2) to (6) of article 19, which qualify the rights and freedoms enumerated in clause (1)—the exercise of those powers must still be carried out under statutes that fall within the relevant entries of the Lists. For illustration, the power to regulate speech and expression may be exercised through a law made under entry 1 of List II (Public Order) or entry 39 of List III (Newspapers, books and printing presses). Likewise, a freedom that does not fall under clause (1) of article 19, such as the liberty to consume any beverage or food, can be restricted or even prohibited by legislation made under entry 8 of List II (Intoxicating liquors, etc.) or entry 19 of List III (Drugs and poisons). Thus, the American doctrine of a distinct “police power” as a separate legislative authority is not recognised in the Indian Constitution, and it would be contrary to the constitutional design to interpret clause (1) of article 31 positively as conferring such a police power on the Legislature in relation to property rights. The Court fully endorsed Mukherjea J.’s observations in Chiranjit Lal’s case (1), emphasizing that constitutional interpretation must adhere to the plain language employed by the framers, and that importing the variable and indefinite American concept of “police power” would only complicate the interpretative task.

The Court observed that interpretation of constitutional provisions should rely on the plain words employed by the Constitution-makers, and that importing foreign expressions such as “police power,” a term that carries variable and indefinite meaning in American law, only complicates the task of interpretation. In the Court’s view, the proper method for interpreting article 31 required consideration of the context and setting in which the provision was placed. As previously noted, Part III of the Constitution was intended to safeguard the freedoms and rights enumerated therein against encroachment by the State, a term that embraces both the legislative bodies and the executive governments of the Union and the States. Although protection against executive action was deemed unnecessary under British-derived systems of government—where, as highlighted in Gopalan’s case citing Eshukbayi Eleko v. Officer Administering the Government of Nigeria, no executive official may interfere with a subject’s liberty or property except pursuant to legally granted powers—the framers of the Indian Constitution explicitly incorporated the executive governments of the Union and the States within the definition of “the State” under article 12. Consequently, a fundamental right was intended to be shielded not only from legislative intrusion but also from executive action. The Court emphasized that the purpose of article 31 was not to confer upon the State a right to deprive any person of property; rather, as the heading of the article indicates, it sought to protect every person’s “right to property.” The mechanism by which the article achieves this protection is by delineating the limits on the State’s power to dispossess private property without the owner’s consent, expressly making legislative action a prerequisite for any such exercise of power. Citing Cooley, the Court noted that the State’s authority to appropriate private property for public purposes remains dormant until a legislative enactment specifies the occasions, modes, conditions, and agencies for such appropriation, and that private property may be taken only pursuant to law. The Court further explained that in England, the historic contest between prerogative and Parliament concluded with Parliament prevailing, resulting in the prerogative right to take private property merging into parliamentary supremacy; consequently, the right to compensation did not exist independently of parliamentary enactment, and only Parliament could authorize interference with private property rights. References were made to earlier authorities, including a 1950 Supreme Court Reporter decision, a 1931 appellate case, and Cooley’s “Constitutional Limitations” (Vol II, p. 1119). Blackstone was also cited, affirming that only the Legislature could compel an individual to part with his property. The Court concluded that this limitation was embodied by the framers in clause (1) of article 31, which was designed to protect the right to property against deprivation by the State acting through its legislative and executive organs.

In this case, the Court explained that clause (2) of article 31 placed two further restraints on the Legislature. The Legislature was forbidden from enacting any law that authorised expropriation unless the purpose was public and the owner received compensation for the injury suffered. These restraints on the State, acting through both its executive and legislative branches, were intended to shield owners from arbitrary loss of their property. The Court observed that clauses (1) and (2) of article 31 were not separate or contradictory in their scope; rather, they were to be read together as addressing the same subject, namely the protection of the right to property by limiting State power. According to the Court, the deprivation described in clause (1) was essentially the acquisition or taking possession of property mentioned in clause (2). Substantial argument had been presented to contend that clause (2) dealt only with two specified modes of depriving a person of property—acquisition and requisitioning—and therefore could not be merely an elaboration of clause (1), which spoke of deprivation generally. It was submitted that clause (2) should be read in conjunction with entry No. 33 of List I, entry No. 36 of List II and entry No. 42 of List III, each of which referred specifically to acquisition or requisitioning of property and to no other form of deprivation. The Court also noted that sub-section (2) of section 299 of the Government of India Act, 1935, and entry No. 9 of List II of the Seventh Schedule referred only to compulsory acquisition of land for public purposes. It was further highlighted that only after the Bombay High Court’s decision in Tan Bug Taim and Others v. The Collector of Bombay and Others did it become clear that rule 75(a) of the Defence of India Rules, which had permitted requisition of a property in Bombay, was ultra vires because entry No. 9 of List II did not grant the Legislature power to requisition; such power was conferred on the Central Legislature by the India (Proclamations of Emergency) Act, 1946. The Court drew attention to the various Regulations and Acts concerning compulsory land acquisition in the country, including the Land Acquisition Act, 1894, all of which provided that the acquired property would vest in the Government or one of its officers. It was suggested that the framers of the Constitution, being aware of the lacuna in the Government of India Act, 1935, regarding the power of requisitioning, deliberately added the words “taken possession of” in clause (2) and the term “requisitioning” in the relevant entries. Consequently, the Court urged that the expressions “acquired” or “taken possession of” in clause (2) should not be interpreted narrowly.

The Court observed that there is no sufficient reason to construe the words “acquired or taken possession” employed in clause (2) of article 31 in a narrow technical sense. It noted that the Constitution represents a clear break with the pre-Constitution order and introduces new concepts, especially in relation to fundamental rights, and therefore it cannot be assumed that the ordinary word “acquisition” is used in the Constitution in the same limited sense that it might have been employed in earlier statutes concerning land acquisition. The Court pointed out that those earlier enactments dealt exclusively with land, whereas article 31(2) also covers movable property, for which no formal transfer or vesting of title is required. It further held that there is no support for the assumption that “taking possession of property” was meant to be synonymous with “requisitioning property” as referred to in the entries of the Seventh Schedule. The Court asked why, if the intention had been to equate the two, the word “requisitioning” was not used in clause (2) itself. It declared it fallacious to argue that, unless “taking possession” means “requisitioning”, the legislature lacks power to enact a law authorising the taking of possession of property because no entry in any of the Lists of the Seventh Schedule confers such power. The Court explained that a specific entry in the legislative Lists is no more necessary for conferring that power than for conferring the power to make a law authorising deprivation of property that clause (1) of article 31 envisages, citing the observations in P.D. Shamdasani v. Central Bank of India (1). The Court further stressed that the word “acquisition” is not a term of art; ordinarily it means coming into possession of, obtaining, gaining, or getting something as one’s own, and it is in this general sense that the term appears in articles 9, 11 and 19(1)(f), not as implying any transfer or vesting of title.

Turning to comparative jurisprudence, the Court referred to Minister of State for the Army v. Dalziel (2), where a Full Bench of the High Court of Australia was called upon to interpret the scope of the legislative power concerning “acquisition” of property granted to the Commonwealth Parliament by section 51 (xxxi) of the Australian Constitution. By a majority, the Australian court held that the power encompassed the authority to take possession of property for a temporary purpose for an indefinite period. The Court warned that to construe acquisition as necessarily involving transfer and vesting of title in the Government would ignore the true nature of State power as a sovereign acting through its legislative and executive organs to appropriate a subject’s property without consent. When the State exercises such power, it creates a title in itself rather than acquiring it from the owner; the nature and extent of the title thus created depend on the purpose and duration for which the appropriated property is intended to be used, as disclosed in the law authorising such appropriation.

In this passage the Court explained that the concept of acquisition does not require a specific formula for vesting title. It observed that, particularly with respect to movable property, the only form of acquisition that could be contemplated is the act of seizing the property; no formal transfer of title is necessary. The Court then turned to clause 5(b)(ii) of Article 31, which excludes from the operation of clause 2 any law made in the future “for the prevention of danger to life or property.” The Court noted that, but for this exception, clause 2 would impose liability to pay compensation for deprivation caused by destruction of property. Consequently, a law aimed at preventing danger to life or property may often require destruction of the property concerned, and such a law would fall within the scope of clause 2. The Court expressed the view that the word “acquisition” and its grammatical variations, in the context of Article 31 and the relevant entries in the Lists, should be understood in their ordinary sense. The additional terms “taking possession of” or “requisitioning,” which appear in Article 31(2) and in the entries, are not intended to contradict “acquisition” but to amplify it, making clear that the combined language also encompasses deprivations that do not leave the property in existence after it is acquired. For example, destruction necessarily involves reducing the thing to be destroyed into possession as a necessary step toward that end. The Court clarified that “taking possession” refers only to the type of possession to which the property is susceptible and not to literal physical occupation. Interests in a company or in any commercial or industrial undertaking, which are expressly included in clause 2 of Article 31, cannot be physically seized. The Court added that it was unnecessary to give a definitive conclusion on the precise scope of the expression “shall be taken possession of or acquired” in clause 2, except to state that it should not be read as broadly as the word “taken” in the Fifth Amendment of the United States Constitution. Rather, it implies an appropriation of the property or a limitation of the incidents of ownership that amounts to a deprivation of the owner. Any other interference with the enjoyment of private property that does not involve such appropriation or limitation would not be compensable under Article 31(2). The Court then addressed the two objections raised by Das J. The first objection claimed that clauses (1) and (2) must be read together and that reading them together would make clause (1) redundant. The Court rejected this, explaining that clause (1) embodies one of the three essential limitations on the State’s power to deprive private property, namely, the requirement that legislative action must precede the exercise of that power, thereby providing protection against arbitrary executive action.

In this case, the Court observed that the first objection raised by Das J., which claimed that clause (1) would become redundant if read together with clause (2), was unfounded. Clause (1) was explained to embody one of the three essential limitations on the State’s power to deprive a person of private property, namely, that legislative action must precede the exercise of that power and that it serves as a safeguard against the executive arm of the State. The second objection, which suggested that the State’s emergency power to take away a person’s property without compensation—for example, demolishing an intervening building to stop a fire from spreading—should be excluded, was likewise dismissed as baseless. The Court held that such situations would fall within the exception specified in clause (5)(b)(ii), and accordingly no compensation would be payable for loss caused by destruction of property authorized under that provision. The learned Attorney-General had argued that sub-clause (b) was inserted “ex-abundante cautela” because even without it, no one could have presumed that a law of the type mentioned in that sub-clause would be covered by clause (2). The Court found this argument difficult to accept. If the exceptions in sub-clause (b) were so evident that they need not have been expressly provided, then the same reasoning would undermine Das J.’s second objection. To say that sub-clause (b) was introduced as a matter of abundant caution does not eliminate the exceptions; rather, it underscores their existence elsewhere. Whether it was deemed necessary to state expressly that destruction of private property in emergency conditions entails no liability to pay compensation, or whether the State’s power to do so was so well established that sub-clause (b)(ii) was unnecessary and merely inserted “ex-abundante cautela”, the Court concluded that in either view the second objection must fail.

The Court further noted that all the cases referred to in sub-clause (b) represent different forms of deprivation of property. Because the written Constitution could give rise to interpretative difficulties if such forms were not expressly and specifically excepted from the compensation requirement of clause (2), the framers found it necessary to insert clause (5)(b). When asked why clause (1) of article 31 provides protection against the executive government in matters of compulsory acquisition, while no comparable protection appears in the regulative powers exercisable under article 19(2) to (6), the Court explained that the same need that led to the enactment of article 265—providing similar protection in taxation—also dictated the inclusion of clause (1). In any event, the Court held that this point does not constitute a stronger objection to the view previously indicated than the alternative view that also recognizes the necessity of legislative action before a person can be deprived of his property. The Court also referred to article 38, which signifies that the Constitution aims at promoting social welfare, and observed that the pursuit of that objective, together with the increasing complexities of modern life, does not justify expanding State power to deprive private property without compensation beyond the narrow limits set out in article 31(5)(b). The Court thus reaffirmed that the constitutional safeguards on compensation remain applicable despite considerations of social welfare.

In this passage the Court explained that the notion that the State may expand its power of social control and regulation, especially concerning the enjoyment of private property, without being required to pay compensation, and that such power should therefore be limited to the narrow scope described in article thirty-one clause five (b), is a misconception. The Court first observed that the purpose of social welfare is not to conflict with private ownership and does not justify the State’s arbitrary expropriation of property without compensation. The Court then cited the authority of Blackstone, noting his statement that “the public good is in nothing more essentially interested than in the protection of every individual’s private rights as modelled by the municipal law.” The Court pointed out that this observation is not outdated, because a modern instrument such as the Universal Declaration of Human Rights expressly protects private property by providing in article seventeen the clause “No one shall be arbitrarily deprived of his ….” The Court inferred that the framers of the Constitution adopted this view.

Next, the Court clarified that clause five (b) of article thirty-one was never intended to exhaustively define the State’s power of social control and regulation in relation to private property. The clause merely limits the purposes for which the State may deprive a person of property without liability to pay compensation; it does not describe the entire scope of the power. When the exercise of that power does not amount to a deprivation of property, the question of compensation does not arise. Consequently, the legislatures of the Union and the States remain free to enact laws that exercise the power of regulation within the subjects allotted to them by the Legislative Lists. The Court therefore concluded that there is no basis for fearing that article thirty-one clause five (b) would unduly restrain the regulation of private property for the public good or produce any alarming effect on community safety.

The Court then addressed the concern that legislative action might deprive a person of property without compensation. It noted that the Constitution does not provide a similar protection against deprivation of property by the Legislature when it exercises its taxation power, and therefore a complaint about the absence of such protection under article thirty-one clause one is misplaced. The Court observed that the Constitution-makers placed trust in the Legislature, similar to the trust that the people of Great Britain place in their Parliament to protect the Englishman’s right to property. The Court rejected the suggestion that well-informed public opinion is the sole safeguard against arbitrary legislative action. Regarding taxation, the Court reiterated that the Constitution recognises no fundamental right to immunity from tax, which explains the lack of constitutional protection in that area. However, the Court emphasized that fundamental rights occupy a different constitutional position, and that the argument challenging the policy of embedding a declaration of such rights within the Constitution therefore lacks merit.

In Part HI of the Constitution, the Court recalled the observation made in Gopalan’s case (1). The Court quoted the earlier judgment: “Madison (who played a prominent part in framing the First Amendment of the American Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing ‘the great and essential rights of the people’, observed Here they are secured not by laws paramount to prerogative but by Constitutions paramount to laws.’” The Court noted that the principle expressed in that passage had been incorporated into positive law in Part 1I1’ of the Indian Constitution. The judgment then observed that two schools of thought have long existed concerning the effectiveness of a constitutional declaration of fundamental rights. It stated that Britain has never embraced a formal declaration of such rights. Referring to the demand of the Indian Delegation that the Parliamentary Bill later enacted as the Government India Act, 1935 should contain certain fundamental rights, the Court reproduced the view of the Joint Parliamentary Committee (2): “The question of so-called fundamental rights, which was much discussed at the three Round Table Conferences, was brought to our notice by the British India Delegation, many members of which were anxious that the new Constitution should contain a declaration of rights of different kinds, for reassuring minorities for asserting the equality of all persons before the law, and for other like purposes; and we have examined more than one list of such rights which have been compiled. The Statutory Commission observe with reference to this subject:—‘We are aware that such provisions have been inserted in many Constitutions, notably in those of the European States formed after the war. Experience, however, has not shown them to be of any great practical value. Abstract declarations are useless unless there exist the will and means to make them effective.’” The Court added that the cited observations (1)[1950] S.cR. 88, 198. (2) Para. 366 were fully endorsed, and it warned that a cynic could find plausible arguments in recent history of several countries that the most effective way of destroying a fundamental right is to embed a declaration of that right in a constitutional instrument. The judgment then turned to the American perspective. It quoted Thomas Jefferson’s response to a similar objection to the inclusion of a Bill of Rights in the United States Constitution: “But though it is not absolutely efficacious under all circumstance’s, it is of great ‘potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniences which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration are, that it may cram Government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniences of the want of a declaration are permanent, affective, and irreparable. They are in constant progressive from bad to worse. The executive in our Governments is not the sole, it is scarcely the principal, object of my jealousy. The ‘tyranny of the Legislatures’” The Court concluded by emphasizing that the American view, as expressed by Jefferson, contrasted sharply with the British scepticism, and that the framers of the Indian Constitution had adopted the former approach by including Part III.

The passage quoted from Cooley’s Constitutional Limitations (8th edition, Volume I, page 535) observes that the fear of legislative tyranny is the most formidable dread at present and will remain so for many years. The Court noted that the framers of the Indian Constitution evidently embraced the American perspective, which led them to incorporate Part III— the Chapter on Fundamental Rights— into the Constitution of India. Consequently, the Court held that it is incorrect to interpret the provisions of Part III by referencing the British tradition, which relies on parliamentary supremacy and is more a customary than a constitutional method of safeguarding individual rights and liberties. In light of this understanding of the meaning and effect of Article 31, the Court examined whether the combination of Section 7 and Section 4 of the amending Act infringes the respondent’s fundamental right under that article. The Court observed that, by operating retrospectively, these provisions unquestionably curtail the respondent’s property rights by nullifying one of the incidents attached to the estate he purchased at a revenue sale—specifically, the right to annul certain types of under-tenures and to evict particular classes of under-tenants occupying parts of the estate. The Court then posed the question: does such a curtailment amount to a deprivation of property within the meaning of Article 31 as previously explained, and if it does, does it fall within the exception listed in clause (5)(b)(ii) of that article? The Court explained that the term “property” in Article 31, which is intended to protect private property in all its manifestations, must be understood in a dual sense. First, it has a corporeal dimension, referring to all specific things that can be privately appropriated and enjoyed. Second, it has a juridical or legal dimension, denoting the bundle of rights that an owner may exercise under municipal law regarding the use and enjoyment of those things to the exclusion of all others. Because of this broad connotation, the Court acknowledged that it can sometimes be difficult to determine whether an impugned law constitutes a deprivation of property within the meaning of Article 31(2). Any restriction placed on the use and enjoyment of property may be regarded as a deprivation of one or more of the rights previously exercised by the owner. The Court further observed that American courts have faced a similar difficulty in deciding whether a statutory limitation on an owner’s rights represents an exercise of “police power,” for which no compensation is payable, or a “taking” of property within the meaning of the Fifth Amendment clause stating, “Nor shall private property be taken for public use without just compensation.” Citing Justice Holmes’s majority opinion in Pennsylvania Coal Co. v. Mahon, the Court quoted that “the general rule, at least,” is that property may be regulated to a certain extent, but if regulation goes too far, it will be recognized as a taking. The Court noted that the doctrine of police power and the use of the term “taken” in the Fifth Amendment have been construed in a very wide sense, covering any injury or damage to property, and that both the doctrine and the terminology are equally vague and expansive (260 U.S. 393, 3-95 S.G.I./59).

In this case the Court explained that the American doctrine of “due process” gave U.S. courts a wide latitude to balance the competing requirements of police power and the Fifth Amendment prohibition against taking private property without just compensation. By contrast, the Constitution of India required that any question of deprivation be examined by reference to the expression “taken possession of or acquired,” which had to be read together with the word “deprived” in clause (1) of article 31. The Court stressed that this phrase meant a substantial curtailment of the owner’s rights that effectively deprived him of his property. No fixed formula could be laid down to decide when an owner was “deprived” within the meaning of article 31; instead, each situation had to be assessed on its own facts. Generally, the Court held, an infringement would constitute a deprivation if it stripped the owner of possession and enjoyment, seriously impaired his use and enjoyment, or materially reduced the value of the property. The learned judges of the High Court had not applied this perspective. They had relied on article 19(1)(f) and article 19(5) and concluded that section 7 of the amending Act, by operating retrospectively, imposed unreasonable restrictions on the respondent’s enjoyment of the property he had purchased at a revenue sale. The Supreme Court said that view could not be sustained for the reasons already discussed, and that the matter must be examined through the lens of article 31 as interpreted above. The Court then compared the old provision, section 37, with the new provision, section 4 of the amending Act, noting that section 7 made the amendment clearly retrospective. Although the amendment narrowed the purchaser’s right to demand annual under-tenures and to evict under-tenants by widening the exceptions in the old section, it simultaneously gave the purchaser a counterbalancing advantage: the ability to increase the rent payable by those tenure-holders and tenants who were newly brought within the expanded exception. Apart from this rent-adjustment power, the purchaser remained free to enjoy the property in all other respects as before. In other words, the amendment sought to broaden the protective scope of the exception in the old section, which had been found inadequate, while granting certain compensatory benefits to the purchaser. This approach was consistent with the traditional tenancy legislation of the country, which had historically provided relief to tenants when tenancy laws became unduly harsh because of changing circumstances. Consequently, the Court found it difficult to conclude that the retrospective restriction of the purchaser’s rights at a revenue sale amounted to a deprivation of his property within the meaning of article 31.

In this matter the Court held that the deprivation complained of did not amount to a deprivation of property within the meaning of article 31 (1) and (2) of the Constitution. Consequently, the question of whether clause 5 (b) (ii) of article 31 applied to the case did not arise. Accordingly, the appeal was allowed and the judgment of the High Court was set aside. The Court further ordered that the first respondent pay the costs of the appeal that were incurred by the appellant both in the Supreme Court and in the lower Court. Justice Mehr Chand Mahajan, after referring to the reasons set out in his earlier judgment in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Mills Ltd. (Civil Appeal 141 of 1952), said that he agreed with the Chief Justice on the construction of article 31 of the Constitution. He also expressed concurrence with the conclusions reached by the Chief Justice and with the decision on the appeal. Justice Das, while also agreeing that the appeal must be allowed, explained that he arrived at that conclusion by a different line of reasoning. He observed that the arguments raised before the Court involved very important constitutional issues and therefore it was appropriate for him to set out the reasons for his decision in some detail.

The factual background of the appeal was as follows. On 9 January 1942 a revenue sale was held in the permanently settled district of 24-Parganas in West Bengal, and the respondent Subodh Gopal Bose purchased the entire Touzi No. 341 that was recorded in the Collectorate. At the time of that sale, the purchaser at a revenue sale enjoyed the rights that were then prescribed in section 37 of the Bengal Land Revenue Sales Act 1859. The provision, as it stood then, read: “37. The purchaser of an entire estate in the permanently-settled districts of Bengal, Bihar and Orissa, sold under this Act for the recovery of arrears due on account of the same shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement; and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants, with the following exceptions: First—Istimrari or Mukarrari tenures which have been held at a fixed rent from the time of the permanent settlement; Secondly—Tenures existing at the time of settlement which have not been held at a fixed rent, provided always that the rents of such tenures shall be liable to enhancement under any law then in force for the enhancement of the rent of such tenures; Thirdly—Talukdari and other similar tenures created since the time of settlement and held immediately of the proprietors of estates and farms for terms of years so held, when such tenures and farms have been duly registered under the provisions of this Act; Fourthly—Leases of lands on which dwelling houses, manufactories or other permanent buildings have been erected, or on which gardens, plantations, tanks, wells, canals, places of worship or burning or burying grounds have been made, or wherein mines have been sunk. And such a purchaser as aforesaid shall be entitled to proceed in the manner prescribed by any law for …”. This statutory framework formed the basis for the respondent’s exercise of his rights to annul all under-tenures and tenancies attached to the purchased estate.

The provision stated that any rent enhancement permitted by the law then in force could be applied to land that fell within the fourth class of exceptions, provided that the purchaser could demonstrate that the land had originally been let at an unfair rent and that it had never been held at a fixed rent comparable to that of good arable land for a period exceeding twelve years. The provision expressly limited its operation to those circumstances only. Moreover, the provision clarified that nothing contained therein should be interpreted as giving any such purchaser the power to evict a raiyat who possessed a right of occupancy at a fixed rent, or at a rent that was determined according to fixed rules established by the applicable laws. The purchaser also could not increase the rent of such a raiyat except in the manner prescribed by those laws, nor could the purchaser act in any way that differed from the former proprietor’s rights, regardless of any engagements that might have been created after the settlement date.

In reliance upon the rights granted by the aforesaid section, Subodh Gopal Bose set aside all under-tenancies and tenancies attached to the property identified as the Touzi. On 18 March 1946, he instituted Title Suit No. 35 of 1946 in the Fourth Court of the Subordinate Judge at Alipore, 24-Parganas, seeking the ejectment of respondents numbered 2 through 6. Bose asserted that he was entitled to recover possession of the disputed lands on the basis of the powers conferred by section 37. The only party to contest the suit was respondent No. 2, who was designated as Defendant No. 1. In his defence, he claimed that he was a raiyat and therefore enjoyed the protection of the proviso to section 37. He further contended that he was covered by the fourth exception to that section. The learned Subordinate Judge delivered his judgment on 14 February 1949. By that judgment he rejected the contentions raised by the contesting defendant and issued a decree of ejectment against him. The judge dismissed the claim against the remaining defendants, now respondents Nos. 3 to 6, on the ground that they were not indispensable parties to the suit.

Subsequently, on 25 March 1949, respondent No. 2 filed an appeal, recorded as Title Appeal No. 252 of 1949, before the District Judge at Alipore, 24-Parganas. This appeal was later transferred to the court of the Additional District Judge for further hearing. While the appeal was pending, the West Bengal Legislature enacted West Bengal Act VII of 1950, known as the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950. The Act received the Governor of Bengal’s assent on 15 March 1950 and was published in the Official Gazette on the same day. Under section 4 of the amending Act, the original section 37 of the Bengal Revenue Sales Act, 1859, was repealed and substituted with a new provision, the material portion of which reads: “37. (1) The purchaser of an entire estate …”.

The amended legislation introduced a new provision that stipulated that the purchaser of an entire estate situated in the permanently settled districts of West Bengal, when the estate was sold under the Act for the recovery of arrears, would acquire that estate free from any encumbrances that might have been created after the settlement date. The purchaser was also given the right to avoid and annul all tenures, holdings and leases, except for certain categories. The first exception covered tenures and holdings that had been in existence since the time of the permanent settlement and were either rent-free or levied at a fixed rent or a fixed rate of rent. The second exception was divided into two parts: firstly, tenures and holdings that did not fall within the first exception, and secondly, any other leases of land, irrespective of whether they were connected with agricultural or horticultural purposes, that were in existence on the date when the notification for the sale of the estate under the Act was issued. A further proviso clarified that, notwithstanding any other law, lease or contract, no person could be allowed to hold under the purchaser any tenure, holding or lease that fell within the second exception at a rent-free rate, at a low rent, or at a rent or rate fixed in perpetuity or for a specified period, unless such a right had been expressly recognised by a competent civil or revenue court under the law then in force. The purchaser was also authorised to proceed in accordance with the method prescribed by any law then applicable for determining a fair and equitable rent for such tenures, holdings or leases.

Section seven of the amending Act addressed pending litigation relating to the newly inserted provision. It provided that any suit or proceeding for the ejectment of any person from land pursued under section thirty-seven or section fifty-two of the Act, as well as any appeal or application for review or revision arising out of such a suit or proceeding, which were pending on the date the Act commenced, would abate if, had the Act been operative on the date of the original institution, the suit, proceeding, appeal or application could not have been validly instituted, preferred or made. The section further declared that any decree or order issued before the commencement of the Act for the ejectment of any person from land under sections thirty-seven or fifty-two would be void if, had the Act been in force at the time of its issuance, the decree or order could not have been validly passed. However, this provision expressly excluded from its operation any decree or order in execution where the possession of the land concerned had already been delivered before the Act’s commencement. Finally, the section stipulated that whenever any suit, proceeding, appeal or application was extinguished under the first sub-section, or any decree or order was declared void under the second sub-section, the fees that had been paid under the Court-fees Act, 1870, would be refunded to the parties who had made those payments.

In this case, the Court observed that if section 7 were a valid provision and fell within the limits of the Constitution of India, then the suit brought by the respondent Subodh Gopal Bose would have to abate and the decree that had been passed in his favour would become void. On 21 July 1950, the respondent Subodh Gopal Bose filed an application before the Additional District Judge, before whom the appeal was pending, seeking a reference under article 228 of the Constitution for a decision on whether the provisions of section 7 were void for being beyond the powers of the Constitution. The learned Additional District Judge dismissed that application by order dated 16 September 1950. Subsequently, on 24 November 1950, the respondent again applied to the High Court under article 228, and on 18 December 1950 the High Court directed that the appeal be transferred to the High Court solely for the determination of the constitutional question. The proceedings were recorded as Reference Case No 4 of 1950. After notice was given to the Advocate-General of Bengal, the State of West Bengal entered its appearance on the reference. On 22 March 1951, the High Court held that section 7 imposed an unreasonable restriction on the respondent’s right to hold property and that it infringed his fundamental right guaranteed by article 19(1)(f) read with article 19(5). Accordingly, the High Court declared section 7 void on the ground of article 13(1). Following this finding, the High Court returned the record to the lower appellate court for disposal of the appeal in light of the decision. On 30 November 1951, the High Court granted permission to the State of West Bengal to appeal to this Court, which gave rise to the present appeal.

The Court noted that the validity of section 7 of the amending Act, which is the subject of the present challenge, directly affects pre-existing rights. According to the wording of section 7, every suit or proceeding for ejectment that was instituted under the old section 37, as well as every appeal, application for review, or revision arising out of such suit or proceeding that was pending at the commencement of the amending Act, must abate if the suit, proceeding, appeal or application could not have been validly instituted, referred or made had the amending Act been in force at the relevant date. Moreover, every decree or order passed before the commencement of the amending Act for the ejectment of any person from land pursuant to the old section 37 is to become void if such decree or order could not have been validly passed or made had the amending Act been operative at the time of the decree or order. The proviso to the section, however, saves any decree or order in execution where possession had already been delivered before the commencement of the amending Act. The Court therefore concluded that section 7 operates retrospectively, affecting pre-existing rights by giving, in effect, a retroactive operation to section 4, which has substituted, among other things, the new section 37 for the old section 37 of the Act of 1859. A cursory comparison of the language of the old section 37 with that of the new section 37 demonstrates the extent of this impact.

The Court observed that a direct comparison of the wording of the old provision called section 37 with that of the new provision also designated as section 37 immediately reveals that the substantial entitlement formerly granted to a purchaser under the old provision—to avoid and annul under-tenures and to eject under-tenants—no longer exists under the new provision. Although the introductory clause of the new section 37 appears to confer upon the purchaser a right to avoid and annul tenures, the Court noted that because of the broad scope of exception (b) this purported right, for all practical purposes, has been eliminated. The Court further explained that the new section 37 does not strip the purchaser of the physical estate that was acquired at the revenue sale; the purchaser remains the legal owner of that estate and may exercise and enforce all the rights that flow from such ownership, with the sole limitation that, by virtue of the new section 37, he may no longer avoid or annul the under-tenures nor eject the under-tenants. In effect, the Court said, from the bundle of rights that constituted ownership under the old section 37, an important component has been removed, thereby curtailing the purchaser’s ownership. The respondent, Subodh Gopal Bose, argued that this removal infringed his fundamental right under article 19(1)(f) of the Constitution—the right to hold, that is, the right to enjoy and exercise the full spectrum of ownership rights over the property he acquired under the old section 37. Consequently, he contended that section 7, which operates retrospectively to give effect to the new section 37, is beyond the constitutional limits and void under article 13(1). The learned Attorney-General did not deny that the impugned provision had adversely affected the purchaser’s rights under the old section 37; rather, he maintained that the limitation imposed by the new section 37 merely constituted a reasonable restriction on the exercise of the right guaranteed by article 19(1)(f) in the interest of the general public and was fully permissible under clause (5) of the same article. The High Court rejected this contention, holding that the restriction was unreasonable. It based its decision on three grounds: first, the retrospective operation of the impugned provision; second, the absence of any mechanism for the reduction of the purchase price; and third, the State’s failure to demonstrate any justification for introducing the impugned provision into the amending Act. The learned Attorney-General submitted that the first two considerations relied upon by the High Court are entirely irrelevant when assessing whether the restriction was reasonable in the public interest. He further observed that statutes are ordinarily construed prospectively unless they are expressly made retrospective by clear wording or necessary implication, and argued that the mere fact of retrospective operation does not, by itself, render a statute prima facie unfair or unreasonable.

The Court observed that merely making a statutory provision retrospective does not, by itself, provide a decisive reason to declare the statute prima facie unfair or unreasonable. While the Court acknowledged that this argument possessed some merit, it was not convinced that the retrospective character of the statute could be ignored when assessing the reasonableness of the restriction that was claimed to be in the public interest. The Court further held that the loss suffered by a purchaser – specifically the conversion of a vested estate into a reversionary interest without any reduction of the purchase price – should also be considered in the test of reasonableness under article 19(5). In support of this approach, the Court cited the observations of the Chief Justice in The State of Madras v. V.G. Row (1952) S.C.R. 597 at p. 607, recalling that the test of reasonableness must be applied to each statute individually and that no single abstract standard can be imposed on all cases. The Court emphasized that the nature of the right claimed to be infringed, the purpose behind the restriction, the seriousness and urgency of the evil that the restriction seeks to remedy, the proportionality of the restriction, and the conditions prevailing at the time of enactment all must enter into the judicial assessment.

Regarding the third element raised by the High Court, the Court noted that the High Court had observed that no material had been placed before it showing an unusually large number of pending suits for ejectment of tenants or any other compelling reason for inserting the impugned provision into the amending Act. The Court referred to a later decision in Iswari Prasad v. N.R. Sen, where a special bench of the same High Court, comprising three judges including the two who had decided the appealed case, expressly distinguished that earlier judgment on the basis of the absence of such a suggestion. In that later case, the High Court found that the circumstances cited there were present and consequently held that the law challenged in that case was not unconstitutional. The Court expressed regret that several important pieces of information that could have aided the High Court in reaching a correct conclusion on the reasonableness of the restriction were not brought to its notice. For example, the Court pointed out that the statement of objects and reasons annexed to the Bill that eventually became the amending Act had apparently not been placed before the High Court. That statement clearly referred to the considerable hardship caused by the application of the old section 37 to a large number of persons living in the urban area, particularly in Calcutta and its suburbs, where prevailing conditions at the time had created serious difficulties.

The Court observed that a phenomenal increase in land values had supplied the necessary incentive to speculative purchasers to exploit the provision for unwarranted large-scale eviction, and that, according to the sponsor of the Bill, such large-scale evictions required an enlargement of the scope of protection of that provision together with appropriate safeguards for securing Government revenue. The Court noted that this Court had previously held that the statement of objects and reasons was not admissible as an aid to statutory construction (see Aswini Kumar Ghose v. Arabinda Bose (1)) and therefore stated that it would not rely on that statement to interpret any part of the Act or to determine the meaning of any word used therein. The Court clarified that it referred to the statement only to ascertain the conditions prevailing at the time which motivated the sponsor of the Bill to introduce the legislation, and to gauge the extent and urgency of the evil that the sponsor sought to remedy. The Court explained that these matters must be taken into account when the judiciary assesses the reasonableness of the restrictions that article 19(5) permits to be imposed on the exercise of the right guaranteed by article 19(1)(f). The Court further identified another significant fact that had not been highlighted before the High Court. The Bill had been introduced in the Legislature on 23 March 1949 and referred to a select committee. On 25 April 1949, while the Bengal Legislature was not in session, West Bengal Ordinance No 1 of 1949 was passed. The two preambles to that Ordinance read: “Whereas it is expedient, pending the enactment of further legislation, to provide for the temporary stay of certain suits, proceedings and appeals in pursuance of the Act; and whereas the West Bengal Legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action.” The Court concluded that the need to pass an Ordinance pending the Bill’s enactment, together with the language of the preambles, unmistakably indicated that the authorities considered the prevailing conditions to disclose a serious evil requiring immediate remedial action. Moreover, the Court noted that the High Court judgment did not mention that a number of cases were pending before other courts involving the same question, a circumstance that emerged from the State’s application for leave to appeal. Finally, the Court observed that the judgment under appeal made no reference to the proviso to the new section 37, which, by way of compensation for the loss of the right of ejectment, expanded the purchaser’s right to claim rent enhancement far beyond the limited rent-enhancement right that existed under the earlier provision.

In this case the Court observed that under the old provision, the right to claim an increase in rent was limited solely to the fourth-excepted under-tenures. The Court noted that the High Court had found that land values had risen to such an extent that auction purchasers could now be found who, even without the authority to eject the under-tenants, were prepared to pay a sum far exceeding the arrears of Government revenue, which had remained unchanged since the permanent settlement. The Court held that the combined impact of these facts, which had not been presented to the High Court, greatly outweighed the consideration of the monetary loss suffered by the respondent, Subodh Gopal Bose, as the auction-purchaser. In the circumstances, the Court concluded that the deprivation of the right to eject under-tenants could only be seen as a reasonable restriction permitted by article 19(5) of the Constitution on the exercise of the right guaranteed under article 19(1)(f). Accordingly, the Court found that the reasons on which the High Court had declared section 7 of the amending Act ultra vires the Constitution were no longer tenable in light of the new material now before it, and therefore the High Court’s decision could not be upheld.

The Court also examined an alternative argument raised by counsel for the respondent, who contended that the impugned section violated the fundamental right secured to him by article 31(2) and was therefore void under article 13(1). The argument was that the right conferred by the old section 37 to avoid and annul under-tenures and to eject under-tenants constituted “property”, and that the new section 37 removed this property without providing any compensation, rendering the provision unconstitutional. The Court recorded that the Bill which ultimately became the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the West Bengal Legislature on 23 March 1949, passed by the Legislature and obtained the Governor’s assent on 15 March 1950. Consequently, the Bill was still pending when the Constitution of India came into force and it was enacted after the Constitution’s commencement. The Court noted that the Bill does not appear to have been reserved for the President’s consideration or to have received his assent; therefore the impugned law could not enjoy the protection of article 31(4). Moreover, if the law falls within the category described in clause (2) of article 31, then, by virtue of clause (3), it cannot have any effect at all. The Court therefore identified the central question as whether the impugned section qualifies as a law referred to in article 31(2), a determination that requires a close examination of article 31 and the other relevant constitutional provisions.

In addressing the questions presented, the Court first referred to the decision in A.K. Gopalan’s case (1), which examined the relationship between sub-clauses (a) to (e) and (g) of clause (1) of Article 19 and Articles 20, 21 and 22 of the Constitution. Kania C, the present Chief Justice (pages 191-192), Mahajan, Mukherjea and the author of this judgment (pages 302-306) all expressed the view that the validity of the Preventive Detention Act could not be assessed by reference to the provisions of Article 19. The majority of the Bench held that the rights conferred by Article 19(1)(a)-(e) and (g) could be enjoyed only while the citizen remained free and possessed personal liberty; the moment a person was lawfully deprived of his personal liberty under Article 21, those rights under Article 19 ceased to operate.

The consequence of this part of the Gopalan decision was later summarized in Ram Singh v. State of Delhi (2). The present Chief Justice, delivering the judgment on behalf of himself, Kania C.J. and the author, observed at pages 455-456: “Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in Article 19(1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in Article 19 and Articles 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged. The interpretation of these articles and their correlation were elaborately dealt with by the full Court in Gopalan’s case (1). The question arose whether Section 3 of the Act was a law imposing restrictions on ‘the right to move freely throughout the territory of India’ guaranteed under Article 19(1)(d) and, as such, was liable to be tested with reference to its reasonableness under clause (5) of that article. It was decided by a majority of five to one that a law which authorises deprivation of personal liberty did not fall within the purview of Article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirements of Articles 21 and 22, and as Section 3 satisfied those requirements, it was constitutional.”

Mahajan J., who issued a separate judgment dissenting from the majority on another point that is not material to the present discussion, stated at page 467: “On the other points argued in the case I agree judgment of Sastri J.” The cited authorities include (1) [1950] S.C.R. 88 and (9) [1951] S.C.R. 451. Consequently, it must be regarded as settled law that the freedoms referred to in Article 19(1) sub-clauses (a)-(e) and (g) are guaranteed to a citizen of India only while he remains a free man.

In this case the Court explained that while a person who is free may enjoy the freedoms guaranteed by article 19, those freedoms are not unlimited licences to act without restriction. The Court noted that reasonable restrictions may be imposed on the rights listed in article 19 by law, as provided in clauses (2) to (6) of that article, and that such restrictions constitute a form of social control. However, the Court observed that once a citizen is lawfully deprived of personal liberty—whether through detention, punitive measures, or preventive detention—the citizen loses the ability to exercise the rights enumerated in sub-clauses (a) to (e) and (g) of article 19 (1). Consequently, the citizen cannot claim that any of those rights have been infringed while he is lawfully detained. The Court further held that the validity of a law that deprives a citizen of personal liberty cannot be evaluated by the reasonableness test set out in clauses (2) to (6) of article 19. Instead, the Constitution requires such a law to be examined according to the safeguards contained in articles 20, 21 and 22. The Court indicated that this conclusion follows from the two earlier decisions of this Court that were previously cited. Having established the correct relationship between article 19 (1) sub-clauses (a) to (e) and (g) on one side and article 21 on the other, the Court said that it became necessary to consider the relationship between article 19 (1)(f) and article 31. Article 19 (1)(f) confers on a citizen, as one of his fundamental freedoms, the right to acquire, hold and dispose of property, but the Constitution permits reasonable restrictions on the exercise of that right in accordance with clause (5). Article 31, by its very heading, guarantees the “right to property” as a fundamental right to all persons, whether citizens or non-citizens, to the extent specified in that article. The Court questioned what the precise correlation is between article 19 (1)(f) taken together with article 19 (5) and article 31. Referring to the ruling of the Chief Justice in A.K. Gopalan’s case (page 191), the Court reiterated that sub-clauses (a) to (e) and (g) of article 19 (1) read with clauses (2) to (6) “presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests.” Accordingly, the Court reasoned that article 19 (1)(f) read with article 19 (5) must likewise presume that the person to whom the right is guaranteed continues to possess the property that forms the basis for exercising that right. The Court admitted that it could not escape this logical conclusion and therefore, in A.K. Gopalan’s case (pages 304-305), observed that if a person loses his property because it has been compulsorily acquired under article 31, he loses the right to hold that property and cannot allege that his fundamental right under sub-clause (f) of article 19 (1) has been violated. The Court concluded that the rights listed in article 19 (1) exist only while the citizen retains the legal capacity to exercise them; if that capacity is removed, the rights cease to subsist.

By reason of a lawful conviction concerning the rights enumerated in sub-clauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition concerning the right in sub-clause (f), the person ceased to possess those rights for the duration of his incapacity. The Court reiterated the same view in the judgment delivered in ChiranJitlal’s case. The Court observed that nothing presented during the present hearing altered the opinion previously expressed regarding the relationship between article 19(1)(f) read with article 19(5) and article 31 of the Constitution. During the arguments, a suggestion was advanced by a learned friend that article 19(1)(f) dealt solely with the abstract right and the capacity to acquire, hold, and dispose of property, without reference to any particular property, whereas article 31 concerned only the right to a specific, concrete property and bore no correlation with article 19. The Court noted that neither party argued this point and therefore it declined to give a final opinion on the suggestion. For the purpose of deciding the present appeal, the Court expressed its willingness to assume that article 19 embraces both the abstract right and the right to concrete property.

Turning to article 31, which falls under the heading “right to Property,” the Court set out the clauses relevant to the issue in dispute. Clause (1) states that no person shall be deprived of his property except by authority of law. Clause (2) provides that no movable or immovable property, including any interest therein, any company, or any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising such taking unless that law provides for compensation, either fixing the amount of compensation or specifying the principles and manner by which compensation is to be determined and paid. Clause (5) clarifies that nothing in clause (2) shall affect (a) the provisions of any existing law other than a law to which clause (6) applies, or (b) the provisions of any law which the State may subsequently make for the purpose of imposing a tax or penalty, for the promotion of public health, for the prevention of danger to life or property, or in pursuance of any agreement entered into between the Government of the Dominion of India, the Government of India, or any other country, or otherwise with respect to property declared by law to be evacuee property. It was suggested that clauses (2) and (5) are not mutually exclusive but must be read together, and that they concern only what has been described as the State’s power of eminent domain.

In this case, the Court examined the notion of “domain” as explained by Professor Willis, describing it as the legal power of sovereign authority or one of its governmental organs to acquire private property for public use, provided that just compensation is paid. The Court referred to passages taken from the writings of prominent early jurists, including the seventeenth-century Dutch publicist Hugo Grotius, the English jurist William Blackstone who authored his Commentaries around 1769, and Judge Cooley’s well-known treatise on Constitutional Limitations. From these sources the Court observed that, since ancient times, jurists have insisted that the exercise of eminent domain must satisfy three pre-conditions: first, a clear authority of law; second, a requirement that the taking be for public use; and third, the payment of just compensation. The Court noted that these three conditions were later embodied in the last two clauses of the Fifth Amendment to the United States Constitution in 1791.

The Court then considered the argument that Article 31 of the Indian Constitution reproduces the same three limitations on the State’s power of eminent domain. According to that argument, clause (1) of Article 31 imposes the necessity of legislative sanction before the power can be exercised, thereby shielding individuals from arbitrary expropriation by the executive arm of the State. Clause (2) was said to echo the requirement of a public purpose and the payment of compensation. The Court accepted that, if true, these limitations would constitute a fundamental right protecting persons against arbitrary deprivation of their property. While acknowledging that this proposition is attractive and has found support among some learned colleagues, the Court identified several objections to the reasoning.

The Court expressed, in a modest tone, a view that the method of reasoning supporting the proposition was fundamentally flawed. The reasoning, as outlined by the submissions, proceeded in three steps: (i) that the power of eminent domain and its limitations, as explained by eminent jurists, are incorporated in the Fifth Amendment of the United States Constitution; (ii) that clauses (1) and (2) of Article 31 deal with the same subject of eminent domain; and (iii) that, consequently, those two clauses must be read as reproducing the same limitations on the power. The Court observed that this line of reasoning effectively equates one thing with another and then assumes that the meaning of the second must be identical to the first, a method that Lord Halsbury rejected in Styles’ case. Moreover, the Court warned that accepting such reasoning would allow one to argue, for example, that Article 21 reproduces the American constitutional safeguards against deprivation of life and personal liberty, thereby rendering the phrase “procedure established by law” in Article 21 equivalent to the phrase “due process of law” in the Fifth Amendment. The Court emphasized that such a conclusion had been expressly rejected in the earlier decision of A.K. Gopalan, underscoring that the approach was misleading and inconsistent with sound constitutional interpretation.

In this case, the Court described the argument that the expression “due process of law” found in the Fifth Amendment of the United States Constitution could be imported into Article 21 of the Indian Constitution. The Court said that it had resolutely refused to adopt that approach in the earlier judgment of A. K. Gopalan. The report of that judgment records at page 108 that Chief Justice Kania expressed the view that the line of reasoning was not proper and was misleading. The present Chief Justice, at page 197 of the same report, also repelled that contention. After quoting the words of James Madison on the great and essential rights of the people, the Chief Justice concluded at page 199: “This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind. This, however, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment, should be collected primarily from the natural meaning of the words used.” After noting the argument of the learned counsel for the petitioner, Mukherjea J., at page 266 et sc., the Court found the citation (1) [1889] L.R. 14 A.C. 381. The Court held it impossible to introduce the American doctrine of due process of law into Article 21. It explained that if the language of Article 21 could not be stretched to match the American due-process clause so as to enlarge the scope of the fundamental right to life and personal liberty, then the same principle must apply to Article 31. Accordingly, the language of Article 31 should be construed in its ordinary natural meaning to give effect to the plain intention of the Constitution-makers. The Court said, with utmost humility, that the proper method of approach is to adopt the golden rule of construction referred to in the earlier judgment, and not to begin with any assumption that the Constitution reproduces any foreign doctrine.

The Court further observed that, apart from the erroneous line of reasoning already discussed, the conclusion reached by following that reasoning was open to serious objections on its merits. If it were correct to say that clauses (1) and (2) of Article 31 deal with the same topic – the State’s power of eminent domain which is inherent in its sovereignty – then, as the Court had pointed out in its judgment in Chiranjitlal’s case (page 925), clause (1) would be wholly redundant. Clause (2) alone contains an implicit requirement of law, which by itself would serve as protection against arbitrary State action through the executive organ, the government. Therefore, reading both clauses as dealing only with eminent domain would ignore the broader purpose of Article 31. The Court indicated that a more serious objection to such a narrow construction follows, but the present excerpt ends at that point.

The Court observed that, as it had previously noted in Chiranjitlal’s case, interpreting article 31 so that it only covered deprivation of property by actual taking of possession or acquisition would exclude from constitutional protection any loss of property that does not involve such taking. The Court explained that it is possible to imagine situations in which the State, while exercising its police power, may need to deprive an individual of property without actually taking possession or acquiring the property within the meaning of article 31(2), as discussed in the 1950 S.C.R. report at page 869. The police power of the State, the Court said, is likewise a component of the State’s sovereign authority. Consequently, the suggestion that the first two clauses of article 31 should be read as dealing solely with the power of eminent domain would, if accepted, imply that the Constitution does not address the State’s police power to dispossess a person of property and that it provides no limitation on the exercise of that power. Such a construction, the Court held, would render the declaration of the fundamental “Right to property” incomplete. Although it has been contended that the State’s police power is recognised and regulated by article 19 clauses (2) to (6) and by article 31 clause (5)(b), the Court indicated that it would examine that contention in detail later and found it untenable. Beyond that argument, the Court noted that reading article 31 clauses (1) and (2) together as only concerning eminent domain would lead to the conclusion that the Constitution offers no protection against the exercise of the State’s police power by either Parliament or the executive, a conclusion the Court refused to accept. Accordingly, the Court reiterated its earlier explanation of the true scope of article 31 clauses (1) and (2) as set out in Chiranjitlal’s case at page 925. It clarified that clause (1) addresses deprivation of property in the exercise of police power and imposes the restriction that such power may be exercised only under the authority of law and not by mere executive fiat. Clause (2), on the other hand, deals with the exercise of eminent domain and imposes limitations on that power; those limitations constitute the fundamental right protecting individuals against the State’s power of eminent domain. The language of article 31(2) was said to unambiguously indicate that the constitutional concept of eminent domain concerns only deprivation of property that results from the taking of possession or acquisition contemplated by that clause. The Court again referred to this point in The State of Bihar v. Maharajadhiraja Kameshwar Singh of Darbhanga. It observed that interpreting article 31(1) so that it does not articulate any fundamental right of the people would, on the contrary, imply that the Constitution merely declares the legislature’s unfettered power to deprive a person of property by legislation.

In this case, the Court observed that the argument suggesting a fundamental right for the Legislature to dispossess a person of his property merely by passing a law was a superficial criticism. The Court explained that such criticism ignored the fact that article 31(1) of the Constitution, to the extent it can be read, actually establishes a fundamental right by imposing a limitation on executive power. According to the Court, it is precisely this limitation on the executive that creates the constitutional protection of property under article 31(1). The Court stated that there was no compelling reason to abandon the views expressed in earlier judgments on this point, and therefore the earlier position was to be maintained. The Court then indicated that it was necessary to consider the various objections that had been raised against the interpretation it had suggested.

The Court noted that some submissions claimed the State’s police power concerning the citizens’ right to freedom was fully recognised in article 19. They pointed out that clause (1) of article 19 guarantees seven specific freedoms to Indian citizens, while clauses (2) to (6) allow the State to enact laws imposing reasonable restrictions on the exercise of those freedoms. The argument advanced was that clauses (2) to (6) acknowledge the State’s police power because they permit the legislature to impose restrictions on the seven guaranteed rights, and at the same time regulate that power by requiring that any such restrictions be reasonable. It was further argued that article 31(5)(b) also protects the State’s police power, and consequently, because police power is already recognised in article 19 and saved by article 31(5)(b), there was no need to read article 31(1) as relating to the State’s police power.

The Court rejected this objection as lacking force or validity. First, the Court addressed the contention that the recognition of police power in article 19 undermined the need to read article 31(1) in that way. The Court explained that article 19(1) merely enumerates seven freedoms for citizens and that clauses (2) to (6) regulate the exercise of police power over those freedoms through the legislative branch, allowing only reasonable legislative restrictions. Consequently, article 19 does not provide any protection to citizens against the executive’s exercise of power over even those seven freedoms. While article 21 does protect citizens against both legislative and executive action, that protection is limited to life and personal liberty. Therefore, the Court reasoned, there is no protection for a citizen’s property against executive police power anywhere except in article 31(1), as construed by the Court. The Court further clarified that article 19 safeguards only the seven enumerated freedoms and that its clauses merely recognise and regulate the legislative imposition of reasonable restrictions, leaving property rights under executive power unprotected except by article 31(1).

The Court explained that Article 19 authorised the legislative organ of the State to exercise police power over the rights guaranteed in that article. It noted that a person who was not a citizen fell completely outside the scope of Article 19; consequently such a non-citizen possessed none of the seven rights enumerated in that provision and could not claim any protection from the State under Article 19. The Court therefore observed that a non-citizen could only rely on Article 21. The non-citizen contended that all of his personal liberties, including the six rights listed in Article 19(1)(a) to (e) and (g), were protected against the exercise of police power by either the executive or the legislative branch of the State. The Court, however, reiterated that Article 21, as previously stated, protected a person only against deprivation of life and personal liberty. Thus the Court asked where a non-citizen could obtain protection against the loss of his property by the exercise of police power by the executive government. It held that such protection could be found nowhere unless Article 31(1) were interpreted in the manner suggested by the Court. The Court then turned to clauses (2) to (6) of Article 19, which authorise the State to enact laws that impose reasonable “restrictions” on the citizen’s rights under clause (1). It observed that, in the earlier case of A K Gopalan, Justice Fazl Ali, in a dissenting judgment, had suggested that “restrictions” might extend to total deprivation, but that none of the other judges on that Bench accepted this view. Chief Justice Kania, quoted at page 106, declared that Article 19(5) could not apply to a substantive law that deprived a citizen of personal liberty and that he could not accept the argument that the term “deprivation” fell within the meaning of “restriction” when interpreting Article 21. The then Chief Justice, cited at page 191, explained that the use of the word “restrictions” in the various sub-clauses seemed to imply, in context, that the rights guaranteed by the article remained exercisable and that the term was intended to exclude the notion of incarceration, even though “restriction” and “deprivation” were sometimes employed interchangeably and a restriction might at times amount to deprivation. Reading the provision as a whole and in the setting of Articles 19 to 22, which collectively address the “Right to Freedom,” the Court held that Article 19 presupposed that a citizen whose fundamental rights were secured retained the underlying personal freedom on which the enjoyment of those rights necessarily depended. The Court rejected a contrary view expressed by a Bench of the Allahabad High Court, remarking at the end of page 193 that the premise that deprivation of personal liberty constituted a “restriction” within the meaning of Article 19 was erroneous. Justice Mahajan, at page 227, expressed a similar opinion, stating that preventive detention in substance negated the freedom of movement guaranteed under Article 19(1)(d) and could not be described merely as a restriction. Finally, Justice Mukherjea, at page 256, noted that the purpose of Article 19 was to indicate the limits within which the…

The State, by means of legislation, may impose restrictions on the exercise of the freedoms guaranteed to individuals. The courts are empowered to examine whether such legislation is reasonable to the extent prescribed by the various clauses of article 19, but they are not permitted to review laws that relate to the deprivation of life or personal liberty. His Lordship, observing this principle, concluded on page 264 that the first contention raised by Mr Nambiar could not succeed and that the court was not authorized to assess the reasonableness of the Preventive Detention Act in order to determine whether it fell within the permissible limits fixed by clause (5) of article 19. After a detailed discussion spanning pages 302 to 305, he reiterated on page 306 that, in his judgment, article 19 does not affect the validity of preventive detention; consequently, the test of reasonableness prescribed in clause (5), which is to be defined and applied by the court, has no application whatsoever.

A suggestion was later advanced that, although in the A K Gopalan case the word “restriction” occurring in clauses (2) to (6) could not, when applied to sub-clauses (a) to (e) and (g), be understood as extending to “deprivation”, there was no compelling reason to hold that the same word “restriction” occurring in clause (5) might, in its application to sub-clause (f), cover “derivation”. This contention, however, was found to lack any substance. Clause (5) expressly covers sub-clauses (d), (e) and (f), and the same word “restriction” used within a single clause cannot be given one meaning for sub-clauses (d) and (e) and a completely different meaning for sub-clause (f). Moreover, the reasoning applied in the Gopalan decision—where that word was given a narrower meaning for sub-clauses (a) to (e) and (g)—applies mutatis mutandis to sub-clause (f) when it is read in correlation with article 31.

Therefore, as clearly indicated by the Court’s decision in A K Gopalan, article 19 does not furnish any protection against the deprivation of property beyond the mere restriction imposed on the right to property. Protection against deprivation of life and personal liberty, including the various freedoms enumerated in sub-clauses (a) to (e) and (g) of article 19, must be sought under article 21 by both citizens and non-citizens. Likewise, protection against the deprivation of property by legislative or executive action is available to both citizens and non-citizens only under article 31. The Court further noted that, if clause (5)(b) had been inserted in article 31 as a precautionary measure rather than as a substantive provision defining the scope of police power or placing any limitation on that power, then the ensuing analysis would follow accordingly.

In the Court’s view, protection against the deprivation of property must be sourced solely from clauses (1) and (2) of article 31. If, as counsel for the respondent Subodh Gopal Bose proposes, those two clauses are interpreted only to regulate the State’s power of eminent domain, the inevitable result is that neither a citizen nor a non-citizen in the Republic of India enjoys any constitutional shield against the exercise of police power by either the legislative or the executive branch. Conversely, if the Court adopts the construction advanced by the author, then every person—whether a citizen or a non-citizen—will obtain full protection under article 31 (2) against the exercise of eminent domain by both the legislature and the executive, and will additionally be protected against the executive’s exercise of police power over property. The Court considers that preserving even this modest protection is a sufficiently strong justification for preferring the author’s construction over the alternative, which would eliminate even that limited safeguard.

The next point of contention raised against the author’s conclusion is the claim that the police power to deprive a person of his property is already adequately covered by article 31 (5)(b), and therefore need not be read into article 31 (1). A careful reading of clause (5) of article 31, which the Court has previously quoted, shows that this clause merely exempts certain laws from the operation of clause (2). The exemption under sub-clause (b) applies only to specific categories of future legislation. Sub-clause (b)(i) refers to future statutes that impose or levy any tax or penalty, while sub-clause (b)(ii) saves future statutes that are enacted for the promotion of public health or for the prevention of danger to life or property. It has been argued that sub-clause (b)(ii) therefore protects laws that are made in the exercise of the State’s police power. The argument proceeds that the State’s police power to impose a “restriction” on a citizen’s right to acquire, hold, or dispose of property is recognised and limited by article 19 (5), and that when it becomes necessary for the police power to go beyond mere “restrictions” and to cause an actual “deprivation” of property, the State may do so through a law that is saved from clause (2) by virtue of article 31 (5)(b)(ii).

It is further noted that, with respect to imposing “restrictions” on the right to acquire, hold, or dispose of property, the only constitutional limitation on the police power is that such restrictions must be reasonable, as required by article 19 (5). However, in cases of “deprivation” of property authorized by law under article 31, the limitation on the police power is stricter: the law may be made only for the promotion of public health or for the prevention of danger to life or property, as specified in clause (5)(b)(ii). This distinction underscores the narrower scope of police-power-induced deprivation compared with mere restrictions.

The Court observed that a law falling under clause 5(b)(ii) could be enacted only for the purpose of promoting public health or preventing danger to life or property, and for no other purpose. It noted that although this argument appeared simple and plausible, it failed when examined closely. The Court then set out several reasons to reject the argument. First, every student of constitutional law knows that scholars classify the State’s sovereign powers into three distinct categories: the power of taxation, the power of eminent domain, and the police power. Each of these categories carries its own meaning and serves different societal needs. The Court explained that if clauses 1 and 2 of Article 31 dealt solely with restrictions on the power of eminent domain, there would be no genuine need to exempt the taxation power or the police power from the operation of the eminent-domain power by invoking clause 5(b). This is because, by hypothesis, the first two powers are separate from eminent domain, could not be subsumed within it, and therefore required no exemption.

The Court further pointed out that even a casual student of constitutional law knows that money, as a form of property, cannot be taken under the State’s power of eminent domain. Consequently, there was no necessity to carve out an exemption for tax-imposing laws from the operation of Article 31(2), which embodies only the doctrine of eminent domain. Moreover, the Court emphasized that the police power, like the power of taxation and the power of eminent domain, is an attribute of sovereignty itself. Referring to the description by Professor Willis, the Court called the police power “the offspring of political necessity,” a coercive legal capacity inherent in every sovereign and therefore requiring no special reservation. It observed that the Constitution of the United States contains no specific reservation of the State’s police power, illustrating that an explicit constitutional saving of that power was not necessary.

Addressing the question of why clause 5(b)(ii) was inserted in Article 31 at all, the Court explained that defining the precise scope of the State’s police power over private property is extremely difficult. Certain instances of exercising police power over property may outwardly resemble the exercise of eminent-domain power. Because of this difficulty, the Constitution-makers, out of abundant caution and wishing to preempt any future argument, chose to insert sub-clause 5(b)(ii) into Article 31 even though it was not strictly required to save the police power. The Court concluded that it would be unreasonable to hold that the entire police power of the State to deprive a person of his property is captured by that sub-clause. Finally, the Court noted that the argument advanced in reference to Article 31(5)(b) was therefore untenable.

In this case, the Court observed that clause (5)(b)(ii) of Article 31 merely preserves the State’s authority to enact certain statutes that are exercised either through its power of taxation or through its police power. The Court noted that the clause does not provide any safeguard against the Legislature by imposing any test for determining the validity of such statutes. Accepting the proposed interpretation would allow statutes saved by the clause to be as outdated, oppressive, or unreasonable as the Legislature might wish, provided they pertain to the matters listed in the sub-clause. The Court further stated that if the public’s respect for private property were not disturbed by the idea of leaving property completely at the mercy of the Legislature concerning laws covered by clause (5)(b)(ii), then there was no reason to reject the construction merely because it might appear to grant the Legislature unrestricted authority to enact any law that deprives property under the police power. The Court then turned to the question of protection against the executive. It held that Article 31(5)(b) gave no protection against the executive’s exercise of those powers. Regarding Article 31(5)(b)(i), the Court explained that it could not have been intended to shield the executive in the exercise of the power of taxation, because if that had been the purpose, there would have been no need to insert Article 265, which expressly provides that no tax may be levied or collected except under authority of law. Article 265 therefore makes clear that the executive cannot levy or collect taxes on its own authority. Consequently, the Court concluded that Article 31(5)(b)(i) was not designed to protect the executive in matters of taxation, and that the Constitution-makers deliberately inserted Article 265 to give such protection expressly. Similarly, the Court observed that Article 31(5)(b)(ii) merely saves certain statutes and does not, in itself, grant any protection against the executive’s exercise of police power. The Court asked where the Constitution protected individuals from deprivation of property by the executive’s police power and found that such protection existed only in Article 31(1). The Court interpreted Article 31(1) as establishing a fundamental right against deprivation of property by the executive arm of the State when police power was exercised. The Court added that protection against the exercise of eminent domain by the executive was found in the requirement that only a law could authorize the taking or acquisition of property, a requirement that was implicit in Article 31(2). Accordingly, the Court held that recourse to Article 31(1) was unnecessary to obtain that protection. Finally, the Court rejected the proposition that the entire police power of the State to deprive a person of his property could be said to reside solely in Article 31(5)(b)(ii).

In this passage the Court explained that if the power of the State to deprive a person of property were said to exist only in article 31(5)(b)(ii), the legislative authority to exercise that power would be limited to a very narrow and rigid scope, namely to measures for the promotion of public health or for the prevention of danger to life or property. Assuming that article 31(5)(b)(ii) is intended to preserve the police power, it could justifiably include statutes that authorize the destruction of rotten or adulterated food, the demolition of a dangerous dilapidated building, or the razing of a structure to stop a fire from spreading. However, it is easy to imagine statutes that do not fall within article 31(5)(b)(ii) yet are nonetheless enacted under a mistaken claim of police power. For example, a law that authorizes the seizure and destruction of obscene photographs or blasphemous literature is clearly aimed at promoting or protecting public morality. No reasonable person would argue that such a statute should be invalid merely because it does not provide compensation, but under the proposed construction it would be struck down, since it is not covered by article 31(5)(b)(ii) and would therefore fall under article 31(2). That interpretation would lead to the absurd consequence that the State would be required to purchase all obscene or blasphemous material in order to preserve public morality, a result the Court found untenable and rejected outright. The Court then considered a statute that imposes a compulsory contribution on all banks, calculated on the basis of their average daily deposits, for the purpose of creating a guarantee fund that would ensure full repayment of deposits to all depositors if a bank became insolvent and was ordered to be wound up. This legislation clearly deprives banks of property in the form of the contributions required from them. Yet it does not fall within clause (5)(b)(i), because it cannot be characterized as a tax or penalty, and it also does not satisfy clause (5)(b)(ii), because it is not a law for the promotion of public health or for the prevention of danger to life or property. Consequently, the statute lies outside clause (5)(b). According to the suggested construction, because the entire police power concerning deprivation of property is said to be confined to clause (5)(b), the banking contribution law would receive no protection from article 31(2) and would be void for failing to provide compensation. The Court noted, however, that in the United States, where considerable emphasis is placed on the sanctity of private property, a comparable law has been upheld as constitutional, being regarded as a valid exercise of the State’s police power that extends to “all the great public needs,” as observed in Noble State Bank v. Haskell.

In the illustration presented, the Court imagined a labour dispute between a tramway company and its employees that caused the suspension of tram services. The Court noted that a statute which, in such an emergency, empowered the State to assume possession of the tram depot and to operate the tram cars using the military or other personnel for the benefit of passengers would not fall within clause (5)(b)(ii). Consequently, on the basis of that construction, the statute would be void unless it provided compensation to the tramway company. The Court further observed that extending the suggested construction to its logical limits would preclude the State from regulating profiteers or black-market operators, because any law fixing the prices of essential goods would invariably deprive the traders of property measured by the gap between the black-market price and the controlled price, as illustrated by the reference to 219 U.S. 104. Moreover, the Court warned that the construction could hinder future legislation resembling provisions in procedural codes or other statutes that do not strictly fall within clause (5)(b)(ii) but that authorize seizure of books, documents, or other property, or that permit the appointment of a receiver or sequestrator to take possession of property, since each of those actions would constitute a deprivation of property. The Court deemed it unnecessary to enumerate further examples, stating that the several instances already outlined supplied sufficient reason to reject a construction that would render it impossible for the State to enact beneficial laws aimed at promoting social interests and that might invalidate the types of statutes previously mentioned. Turning to clause (v), the Court explained that Article 31 (5) (b) (ii) shields from the operation of clause (2) any future laws enacted for the promotion of public health or the prevention of danger to life or property. It was evident that the framers intended such protected laws to involve the taking or acquisition of private property; otherwise, the exemption would have no purpose. The Court cited examples such as a law permitting the opening up of a congested town area and the acquisition of land for a public park that would provide fresh air and health benefits, a law allowing the clearance of slums and the closure of unsanitary surface drains together with land acquisition for widening lanes to install underground sewers, and a law authorising the acquisition of land for constructing a hospital for patients suffering from infectious diseases like plague, small-pox and cholera. All of these statutes would fall under the heading of promoting public health or preventing danger to life. According to the proposed construction, the acquisition of property under each of these statutes would be exempt from the requirement to pay compensation to the owners because clause (5)(b)(ii) exempts them from Article 31(2). Yet the Court observed that acquisition of land for such public purposes is

In this matter, the Court observed that the type of land acquisition being discussed is precisely the sort that has historically been conducted with full compensation under the Land Acquisition Act of 1894, as reflected in the cited authorities. The Court stated that any interpretation which would remove a law that is genuinely exercised as an exercise of the power of eminent domain from the ambit of article 31(2) of the Constitution cannot be regarded as persuasive or correct.

The Court then turned to the broader context of modern governance, noting that the increasing complexity of contemporary states regularly generates conflicts between competing social interests. It was noted that it is easy to envisage situations in which legislation aimed at broader social control becomes indispensable, even though such legislation may extend beyond the categories contemplated in article 31(5)(b). The Court cited the scholarly observation of Professor Willoughby, who wrote that “the police power knows no definite limit. It extends to every possible phase of what the Courts deem to be the public welfare.” The Court also recounted the language employed by Justice Holmes in Noble State Bank v. Haskell, wherein he remarked that, in general terms, police power “extends to all the great public needs.” Further authority was drawn from Eubank v. Richmond, in which the Court explained that police power “extends not only to regulation which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity… It is the most essential of powers, at times most insistent, and always one of the least limitable of the powers of government.”

Building on these precedents, the Court emphasized that such expansive police powers are especially necessary in a state that aspires to function as a welfare state, guided by the directive principles of state policy enumerated in Chapter IV of the Constitution. The Court warned that restricting the State’s police power in the manner advocated by counsel for the respondent would lead to social stagnation and would retard the progress of the nation. The Court observed that the Constitution contains no language obligating adoption of the narrow construction proposed, and that a construction which would produce the undesirable outcomes described must be rejected.

The Court then addressed the final objection raised against interpreting article 31(1) as the declaration of a fundamental right protecting property from deprivation by the exercise of police power, while reading article 31(2) as the limitation on the State’s power of eminent domain. It was argued that such a reading would, in practice, afford no effective protection because the State could always invoke police power under article 31(1) to dispossess a person of property without compensation, simply by enacting a law, and would never need to rely on its eminent domain power under article 31(2). The Court responded that this objection overlooks the essential distinction between the nature and purpose of the two powers. The Court indicated that it would proceed to discuss and explain that distinction, noting that it is incorrect to assert that article 31(1) provides no protection at all.

In this judgment the Court explained that article 31(1) of the Constitution did not leave the citizen without any protection. The Court held that article 31(1) certainly protected a person against deprivation of property by executive fiat, in the same manner as the famous twenty-ninth clause of the Magna Carta, which declared that no free person could be dispossessed of any free tenement except by the law of the land. Referring to the observations of Mathews J. in Joseph Hurtado v. People of California (1), the Court noted that the twenty-ninth clause of the Magna Carta was intended not to provide security for the body of the English Barons or for the common good by limiting the power of Parliament, but rather to safeguard the Barons against the oppression and usurpation of the King’s prerogatives. In other words, that clause was not a protection against Parliament and it did not intend to limit the State’s power of eminent domain; instead it was meant as a shield against the exercise of police power by the highest executive, the King. The Court observed that the language of article 31(1) echoed the language of the twenty-ninth clause, and that the purpose and function of article 31(1), as understood by the Court, were the same as those of the Magna Carta, citing (1) (1883) 10 U.G. 516 at p. 531. Consequently, the Constitution, according to the Court, gave ample protection against the executive with respect to all three sovereign powers of the State. The Court explained that the executive could not, on its own authority and without the sanction of a law, deprive any person of life or personal liberty under article 21, deprive a person of property under article 31(1), take possession of or acquire private property under article 31(2), or impose any tax under article 265. The Court further observed that the Constitution-makers evidently regarded protection against deprivation of property by the exercise of police power or the power of eminent domain by the executive as more important than protection against deprivation of property through taxation. Accordingly, they placed the former protection in articles 31(1) and 31(2) within Part III dealing with fundamental rights, while the latter protection was located in article 265 in Part XII dealing with finance. Thus, with regard to all three sovereign powers, the Court concluded that the Constitution afforded complete protection against the executive organ of the State.

Turning to the claim that there was no protection against legislative tyranny in respect of property, the Court rejected that contention as ill-rounded. The Court pointed out that the Constitution did provide a measure of protection against the legislature concerning property rights. Specifically, the Court stated that when the State exercised its power of eminent domain by taking possession of or acquiring private property, it was required to do so in accordance with the three conditions prescribed by article 31(2). There was no shortcut to bypass these constitutional safeguards. By emphasizing this requirement, the Court underscored that the Constitution did not leave the citizen defenseless before legislative action that affected property, and that the legislature was bound by the procedural and substantive limitations embedded in article 31(2).

The Court explained that when a law is enacted under article 31 (2) there is no shortcut; the full procedure must be followed. In addition, the Constitution afforded citizens further protection against the legislature concerning their right to acquire, hold and dispose of property, a right guaranteed by article 19 (1)(f). The Constitution, however, recognized in clause (5) that the State possessed police power to restrict that right in the interest of the general public or for the protection of any Scheduled Tribe, but it conditioned such restriction on the requirement that the law imposing it be reasonable. This condition, the Court observed, constituted a fundamental protection for citizens against the exercise of police power by the legislature in respect of article 19 (1)(f) while they enjoyed possession of the right. The Court then noted an argument that, according to the speaker’s construction, the Constitution gave no protection against the legislature when property is deprived under the State’s police power. The Court rejected that contention, holding that even under the contrary construction the effect would be the same, because article 31 (5)(b) only exempts certain laws from article 31 (2); it merely acknowledges police power without prescribing any test to assess the validity of such laws, however unreasonable the legislature might make them. The Court further asked what protection existed against the legislature in matters of property deprivation by taxation and answered that none existed. By exercising its taxing power, the State could, by law, deprive a citizen or a non-citizen of up to sixteen annas per rupee of income. The Court also queried the protection afforded by the Constitution against legislative deprivation of life or personal liberty, answering that only article 21 required the legislature to prescribe a procedure, supplemented by the skeletal procedure in article 22. Referring to A.K. Gopalan’s case (supra), the Court noted that, despite a citation to Bronson J.’s remark in Taylor v. Porte (1) suggesting the Constitution warned the legislature it could not infringe the right unless it chose to do so, the majority of the Court declined to question the wisdom or policy of the Constitution or to broaden the language of article 21. Instead, it felt bound to give effect to the plain words of the Constitution, as observed by Kania C.J. at page 11, Mukherjea J. at page 277 and the Court’s own judgment at page 321. The Court concluded that, with respect to deprivation of property by taxation, the Constitution offered only the limited protection found in article 265 against the executive and none against the legislature.

The Court observed that the Constitution, through article 265, furnishes protection against the executive in matters of taxation but offers no comparable shield against legislative action. In the context of deprivation of life and personal liberty, the Constitution provides only the minimal safeguard that the legislature must prescribe a procedure, and that a skeletal procedure is outlined in article 22. The Court further noted that article 31(2) affords protection from the legislature solely with respect to the exercise of eminent domain. Consequently, the Court asked what grievance could be raised when, regarding deprivation of property by the State’s police power, article 31(1) extends protection only against the executive and none against the legislature. The Court remarked that it is not abnormal for the Constitution to place trust in the legislature, just as the people of Great Britain trust their Parliament, where rights to life, liberty and private property continue to exist despite parliamentary supremacy. The Court cautioned against assuming that Parliament or State legislatures might arbitrarily deprive individuals of property without rational basis, emphasizing that the executive is accountable to the legislature and the legislature to the people. While acknowledging that legislatures may occasionally act erratically, the Court held that such occasional vagaries are a price of democracy and cannot justify expanding constitutional language to match an idealised conception of constitutional perfection. To do so, the Court said, would amount to drafting a new Constitution rather than interpreting the one bestowed by the people of India, a task beyond the judiciary’s remit. The Court further instructed that if, after proper construction under the cardinal rules of interpretation, any defect or lacuna is perceived, the appropriate recourse is to approach the competent authority for amendment, not the courts. Moreover, the Court suggested that there may be sound reasons why the Constitution does not extend protection against the legislature in matters of property deprivation beyond outright possession or acquisition. The Court warned against clinging to an imagined absolute sanctity of individual liberty or private property rooted in the philosophical doctrines of the sixteenth-century jurist Hugo Grotius, the eighteenth-century Blackstone, or the framers of the United States Constitution. Instead, the Court urged acceptance of the evident shift in emphasis from the individual to the community, noting that the Constitution’s express purpose is to advance the welfare of the community.

In this case, the Court explained that the purpose of the Constitution is to establish a welfare State by placing the community’s social interests above the individual’s liberty or property rights. The Court observed that the State’s police power is described as the most essential, often most insistent, and always among the least limited powers of government. Because social interests are constantly expanding, innumerable, and impossible to list or anticipate, it is not feasible to define the limits of State social control narrowly or to confine it within the narrow scope of article 31 (5) (b) (ii). Accordingly, the Court held that the determination of when, how, and to what extent the State may exercise such social control must be left to the State itself. The Constitution, the Court noted, does not assign the authority to deprive a person of his property—whether through eminent domain or police power—to the arbitrary will of the executive; instead, that authority rests with the legislature. Regarding the deprivation of property other than by taking possession or acquiring it under article 31 (2), the Constitution entrusts the legislature with this power and does not impose any limitation on the legislature’s exercise of the State’s police power over private property. The Court further stated that protection against legislative tyranny, if any, ultimately depends on a free and intelligent public opinion that will eventually assert itself. Having examined the relationship between clauses (1) and (2) of article 31 as it understood them, and after considering and rejecting the objections to its conclusions, the Court proceeded to analyze the provisions of clause (2). Referring to its earlier judgment in the Darbhanga case (supra) at pages 989-990, the Court reiterated that article 31 (2) imposes three conditions on the State’s power of eminent domain, which together constitute the protection afforded to property owners as a fundamental right. First, the sovereign power may be exercised only if authorized by law, making clear that the executive branch cannot act on its own authority without legislative sanction. Second, the taking of possession or acquisition must be for a public purpose, meaning the power cannot be used for private ends; the Court noted that the definition of public purpose had been extensively discussed in the earlier case and did not need repetition. Third, the law authorizing the taking or acquisition must provide for compensation, which is payable only when the State actually takes possession of or acquires private property. The Court then posed the question of the meaning of the words “taken possession of or acquired” and their grammatical variations as used in article 31 (2), indicating that this issue required further examination.

In this case, the Court examined the meaning of the expression “taken possession of or acquired” that appears in Article 31(2) of the Constitution. It was observed by some that the final clause of the Fifth Amendment of the United States Constitution, which also deals with eminent domain, employs the word “taken.” On that basis, it was suggested that because Article 31(2) addresses the same subject of eminent domain, it would be reasonable to conclude that the Indian provision reproduces the American constitutional limitation and that the phrase “taken possession of or acquired” should be understood in exactly the same way that United States Supreme Court judges have interpreted the word “taken” in the Fifth Amendment. The Court rejected this line of reasoning. It expressed a clear reluctance to accept an argument that begins by equating one provision with another and then proceeds to attribute the qualities of the foreign provision to the domestic one. The Court reiterated the fundamental rule of statutory and constitutional interpretation, namely that the meaning and effect of any enactment must be derived from the words actually used in that enactment. If those words have acquired a technical or specialised meaning, that meaning must be applied. To read the phrase “taken possession of or acquired” merely as “taken” and to give it the broad American definition would, in the Court’s view, disregard the entire historical context of compulsory acquisition of private property by the State in India. The Court pointed out that under English law, which forms the foundation of much of the modern Indian legal system, the term “acquisition” possesses a distinct technical meaning. It denotes a transfer of title, whether voluntary or involuntary. When the State acquires property through a negotiated agreement, a regular conveyance transfers title from the vendor to the State. Even when the State acquires property by exercising its sovereign power in a coercive manner, the notion of purchase remains because the property is vested in the State by operation of law. Thus, under English law, acquisition of private property by the State signifies a purchase—voluntary or involuntary—and involves the transfer of the entire title from the owner either to the State itself or to a third party for whom the State acquires the property. The Court then traced the Indian legislative history, noting that compulsory acquisition of private property was first introduced by Bengal Regulation I of 1824. Since that time, India has enacted at least seven statutes dealing with compulsory acquisition, namely Act I of 1850, Act XLII of 1850, Act XX of 1852, Act I of 1854, Act XXII of 1863, Act X of 1870, and the current Land Acquisition Act, Act I of 1894. Each of these statutes provides for the vesting of the acquired property in the State, meaning that the owner’s title is divested and passes to the State by operation of law.

In the passage considered, the Court explained that once a property is transferred to the State, the term “acquisition” acquires a specialised legal sense that denotes the conveyance of the entire title of the owner. The Court observed that “acquisition” has become a term of art with a long-standing legislative meaning that necessarily implies the transfer of title. According to the proper principles of statutory interpretation, it would be incorrect to ignore this technical meaning and to treat the word merely in its ordinary sense. Accordingly, the Court concurred with the earlier observation of Mukherjea J. in the case of Chiranjit Lal, where it was stated that acquisition cannot be disputed as meaning the taking of the whole title of the expropriated owner, irrespective of the nature or extent of that title. The Court quoted that passage, explaining that the entire bundle of rights vested in the original holder passes, upon acquisition, to the acquirer, leaving nothing remaining with the former. By contrast, when the State merely takes possession of a property, the title nominally stays with the original owner, although he is excluded from the enjoyment or possession of the property. The Court then referred to Article 31(2) of the Constitution, noting that that provision draws a clear distinction between acquisition of property and taking possession of it for a public purpose. Nevertheless, both concepts are placed on the same footing insofar as any legislation authorising either act must provide for compensation to the displaced or expropriated holder of the property. Within the context of Article 31(2), the Court held that the word “acquisition” can only refer to the acquisition of the entire interest of the previous holder by transfer of title, and nothing less.

The Court further reasoned that the term “acquired” as used in Article 31(2) must be understood with this specialised meaning and must not be equated with the word “taken” as employed in the Fifth Amendment of the United States Constitution. The Court rejected the suggestion that the expression “taken possession of” should be read in the same sense as the American law’s use of “taken”. It observed that even in the United States the meaning of “taken” has evolved over time. The earlier, narrow view required an actual physical taking or occupation of property for the word to apply. That approach was later deemed too mechanical, and a broader theory emerged, holding that ownership consists of the rights, powers, privileges and immunities attached to a thing, whether tangible or intangible, and that a “taking” occurs whenever any of those components are injured in a manner not attributable to police power or taxation. Under that wider interpretation, a taking would be found whenever a private individual’s exercise of any of those rights caused a loss that would otherwise be actionable as a tort. The Court cited this evolution to underscore that the American concept of “taken” is not synonymous with the Indian constitutional usage. Consequently, the Court affirmed that the word “acquired” in Article 31(2) retains its special legislative meaning of transfer of the whole title, and cannot be read as a mere “taking” in the sense of the United States jurisprudence.

In order to move away from the old narrow interpretation of the term “taken,” many States amended their constitutions so that compensation would be required when property was “damaged, injured or destroyed” for a public purpose. The commentary of Professor Willis on constitutional law, particularly pages 820-821, notes this legislative trend. The framers of the Indian Constitution were aware that American courts had eventually given the word “taken” a very broad meaning. Nevertheless, they chose not to use the term “taken” in article 31 (2); they would almost certainly have employed it if they intended to adopt the expansive American concept of a taking. Instead, the Constitution-makers deliberately selected a narrower expression, using the words “taken possession of.” This choice was intended to make clear that compensation would be payable only when there was an actual removal of the property from the owner’s or possessor’s control into the hands of the State or a nominee of the State. The method by which possession is taken, however, must vary according to the nature of the property involved. It is essential, and the Court emphasizes with humility, not to disregard the historical background and the precise wording employed in our Constitution when interpreting these provisions.

Both clause (1) and clause (2) of article 31 deal with the subject of eminent domain, and consequently the expression “taken possession of or acquired” that appears in clause (2) bears the same meaning as the word “deprived” used in clause (1). In other words, each clause addresses deprivation of property, and there is no reason to suppose that the phrase in clause (2) was intended to signify a different shade or type of deprivation. One might immediately ask why, if the drafters wished to convey a general idea of deprivation by any means, they used “deprived” in clause (1) but opted for the distinct phrase “taken possession of or acquired” in clause (2), a phrase that is commonly understood to have a narrower import. It would have been simple to phrase clause (2) with the word “deprived” instead of the longer expression. Because the Constitution-makers employed different language in the two clauses, it must be concluded that they did so for a definite purpose: to limit compensation to a particular kind of deprivation that is expressly mentioned, and not to cover every conceivable form of deprivation. Supporting this view, reference can be made to Entry 33 in List I, Entry 36 in List II, and Entry 42 in List III of the Seventh Schedule, where the terminology employed is “acquisition or requisitioning” or its grammatical variants. Legislative authority is confined to “acquisition or requisitioning,” and it is therefore reasonable to hold that the “taking of possession” referred to in article 31 (2) is in the nature

The Court observed that the expression “requisitioning” appears in the Constitution whereas the phrase “taking of possession” does not occur in section 299 (2) of the Government of India Act. The same phrase is also absent from any of the legislative lists contained in the Seventh Schedule to that Act. Nevertheless, the Constitution introduced the words “taking of possession” in article 31 (2), while the three entries previously cited insert the term “requisitioning” after the word “acquisition”. The Court warned that if the expression “taken possession of or acquired” in article 31 (2) were given a meaning broader than that of “acquired or requisitioned” and their grammatical variants, it would imply that article 31 (2) contemplates legislation beyond the powers assigned to Parliament and the State Legislatures. This is because Parliament and State Legislatures may legislate only on matters of “acquisition or requisitioning”. To rebut this line of reasoning, the Court noted that Parliament possesses the residuary power of legislation under the Union List, and therefore a broader interpretation of “taken possession of or acquired” presents no constitutional difficulty. However, applying a wider meaning would amount to assigning different meanings to the same expression depending on the enacting authority. Consequently, when the provision is used in a law enacted by a State Legislature, “taken possession of or acquired” must necessarily be understood as “requisitioned” or “acquired”. In contrast, the same expression in a law made by Parliament would carry a substantially broader scope, a result that conflicts with the principle of consistent statutory construction. Accordingly, the Court concluded that “taken possession of or acquired” should be read as a reference to the concept of “requisition or acquisition”.

The Court then raised an additional question: whether every act of placing an object under the custody of the State or its nominee automatically amounts to a “taking of possession” within the meaning of article 31 (2) that would obligate the State to pay compensation. The Court observed that the exercise of police power over property may lead to the extinction, destruction, or merely the control of the property by the State. For example, a municipal law empowering a bailiff to seize and destroy rotten vegetables or adulterated foodstuffs constitutes a state-authorized taking and destruction without any transfer of title. Similarly, a law allowing a municipal authority to enter private premises and demolish a dilapidated structure for public safety also results in a state-initiated taking of possession followed by demolition. The Court also cited statutes that permit fire-brigade personnel to enter private property and demolish it in order to prevent the spread of fire to neighboring houses. Moreover, statutes authorising the seizure and destruction of property for the protection of public morality illustrate further instances where the State destroys property without acquiring title. In none of these situations does the State acquire the title to the property, yet each involves a “taking of possession” and destruction carried out under lawful authority. Nevertheless, the Court emphasized that none of the cited statutes can be said to provide for a “taking of possession” within the meaning of article 31 (2), because they do not involve a transfer of ownership that would trigger compensation.

The Court observed that a statute which fails to provide compensation for a deprivation of property must be held unconstitutional and void. It illustrated this principle with the Court of Wards Act, a law that empowers the State to assume possession of the estate of a proprietor who has been declared disqualified and to manage that estate for his benefit. Under this scheme the State acts only as a manager, not as an owner, and it does so on behalf of the disqualified proprietor. The proprietor does not have the authority to nominate the State or any State official as his manager, nor can he dismiss or remove the manager appointed by the State. Consequently, the manager’s control over the estate cannot realistically be described as the proprietor’s own possession. In effect, the proprietor is stripped of actual possession of his estate, while the State holds the estate in its own possession. The Court noted that an analogous situation arises under the Lunacy Act, where property belonging to a person adjudged a lunatic is taken out of that person’s possession even though legal title does not pass to the State. No transfer of title occurs in either statute, so there is no acquisition of property by the State. Nevertheless, neither the Court of Wards Act nor the Lunacy Act contains any provision for compensation, and no party has argued that compensation is required under those laws.

The Attorney-General then referred to three statutes enacted after the Constitution came into force: the Insurance (Amendment) Act, 1950 (Act XLVII of 1950) dated 20 May 1950, the Railway Companies (Emergency Provisions) Act, 1951 (Act LI of 1951) dated 14 September 1951, and the Industries (Development and Regulation) Act, 1951 (Act LXV of 1951) dated 30 October 1951. He contended that each of these Acts falls strictly outside article 31(5)(b) and that holding the taking of possession authorized by them to be within article 31(2) would compel compensation, thereby obstructing the State’s ability to impose necessary social control for the greater public interest. He argued that the possession taken under these three Acts does not constitute an acquisition within article 31(2) but merely reflects the exercise of the State’s police power. The Attorney-General further submitted that since the Acts were passed after the Constitution became operative, any challenge to them would be premature and would merely beg the question before this Court. The Court therefore declined to base its decision on the merits of those statutes and simply recorded the Attorney-General’s contention. Restricting its analysis to the illustrations previously set out, the Court concluded that none of the statutes discussed authorise an “acquisition” of property in the sense explained earlier. While each law does permit a form of possession to be taken by the State, no authority can claim that such taking falls within the ambit of article 31(2) requiring compensation.

The Court observed that a taking of possession authorized by the statutes in question does not fall within the operation of article thirty-one clause two. In other words, such a taking of possession is not an exercise of the power of eminent domain but rather results from the exercise of the State’s police power. Consequently, the Court concluded that not every taking of possession is covered by article thirty-one clause two. The Court then asked what test should be applied to decide whether a particular taking of possession authorized by a law represents a taking in exercise of eminent domain or a taking in exercise of police power. The Court recalled that it had already described the nature of the State’s police power and cited American decisions indicating that police power extends beyond regulations for health, morals and safety. Those decisions further show that police power also includes regulations that promote public convenience or general prosperity. When applied to private property, the police power in some respects resembles the power of eminent domain because both involve a taking of private property. Nevertheless, a clear distinction exists between the two sovereign powers, as the Court explained in the following discussion. According to Professor Willis, eminent domain allows the State to take property for public use or public benefit, whereas police power restrains owners from using their property in a manner that harms others. The core principle of police power is that no person may use his property or any legal right in a way that interferes with the property or legal rights of others. This principle was stated in Willoughby volume three page seventeen seventy-five. Willoughby volume three page seventeen eighty-three explains that the primary purpose of police power is to protect the community. Police power aims to restrain persons from exercising their private rights of property, contract or conduct in a way that infringes the equal rights of others or prejudices the interests of the community. When the State identifies a public purpose that it must fulfill and then acquires or takes possession of private property to use it itself, the State is said to be exercising its power of eminent domain. If the State takes possession and subsequently transfers the property to a third party for implementing the same public purpose, that act also constitutes the exercise of eminent domain. The exercise of eminent domain can be made only under a law that expressly authorises it, and such a law must provide for payment of compensation to the affected owner. In such cases the public purpose for which the property is taken is one that the State has undertaken as its own obligation to fulfil.

In this context the Court observed that when the State takes possession of property for the purpose of fulfilling its own obligation, it is exercising its power of eminent domain. By contrast, when the State acts under its police power, it may destroy, extinguish, or take possession of property in order to stop the owner from engaging in anti-social conduct or from causing injury to the legitimate interests of other members of the community, either by using the property in a prohibited manner or by failing to use it in a manner that the law requires. In such police-power situations the State intervenes solely to prevent harm to the social interest; it may destroy or extinguish the offending use, or it may take over the property and assume its superintendence, not for the State’s own public project but to protect community interests. The Court acknowledged that although the distinction between these two modes of taking possession is clear in principle, it is somewhat difficult to articulate precisely. Because the State’s police power is broad, the Court held that it is neither practical nor desirable to lay down a rigid, universal test for deciding whether a particular statutory taking falls into one category or the other. Consequently, the Court refrained from pronouncing any inflexible rule, and instead stated that, in general terms, the purpose, aim and effect of the two kinds of possession differ. Accordingly, the specific provisions of the statute that authorises the taking must be examined closely to determine under which heading the taking should be classified. The Court listed several factors that must guide this judicial determination: the ultimate aim of the taking, the immediate purpose, the manner in which possession is effected, the length of time for which possession is retained, the impact on the rights of the person dispossessed, and other comparable elements. The Court recognised that this inquiry is demanding, but it warned that the judiciary must balance social control against individual rights and decide, within the limits imposed by the Constitution, whether the statute operates within the legitimate sphere of police power or has over-reached into the domain of eminent domain. In this manner, the Court said, it fulfils its constitutional duty by reconciling competing social interests. Having set out these considerations, the Court turned to the specific contention that Section 7 of the amending Act (VII of 1950) is unconstitutional because it infringes the petitioner Subodh Gopal Bose’s fundamental right to property guaranteed by Article 31. The argument, recorded as citation 6-95 S.C. India/59, is that having purchased the entire Touzine at a revenue sale, the respondent Subodh Gopal Bose, under the former Section 37 of the Act of 1859, acquired the valuable right to annul the under-tenures and to eject the under-tenants, and that he had actually obtained a decree for ejectment, but that he

In this case, the Court observed that the respondent, Subodh Gopal Bose, had been deprived of his vested rights by the operation of section 7 of the amending Act, which in effect gave retrospective effect to the new section-37. The Court noted that, assuming the right to annul under-tenures, the right to eject under-tenants, and the decree for ejectment fell within the term “property” as used in article 31(2), a question immediately arose as to whether those rights had been taken possession of or acquired under the impugned Act. The Court pointed out that the Touzi still remained the property of Subodh Gopal Bose. He could continue to realise rents and perform all acts of ownership, except that he could no longer exercise the right to annul the under-tenures, could not eject any under-tenants, and could not enforce the decree he had obtained. The Court then asked whether these specific rights had been taken possession of or acquired by the State within the meaning of article 31(2). It held that there was no doubt that the State had not “acquired” those rights, because there had been no transfer, either by agreement or by operation of law, of the rights from Subodh Gopal Bose to the State or to any other person. The impugned law, the Court explained, had not vested those rights in the State or any other authority and did not authorise the State or anyone else to exercise them. Referring to the position of shareholders under the Sholapur Spinning and Weaving Company (Emergency Provision) Act, 1950, the Court cited Mukherjea J.’s judgment in Chiranjitlal’s case, wherein it was held that the State had not usurped the shareholders’ right to vote nor vested that right in another authority; the State’s appointment of directors was done under powers granted by the impugned Act, not by exercising the shareholders’ voting right. Consequently, there was no dispossession of the shareholders’ voting right. The same reasoning, the Court said, applied to other shareholder rights such as passing resolutions and presenting winding-up petitions. Although those rights were restricted while the State managed the company, the restrictions did not amount to dispossession in the sense of usurpation by another party. The Court concluded that this reasoning applied mutatis mutandis to the present case: the rights of the respondent had not been taken possession of or acquired by the State through eminent domain, but had instead been extinguished or destroyed through the exercise of the State’s police power aimed at preventing public mischief and anti-social activities as outlined in the objects and reasons of the law.

The Court examined the legislative provision that had been enacted as the statute under challenge. It found that the respondent, Subodh Gopal Bose, had been deprived of what could be described as his “property” by operation of law. The Court concluded that this deprivation fell within the ambit of article 31(1) of the Constitution and did not invoke article 31(2). Accordingly, the respondent’s interest was not taken over or acquired by the State in the sense contemplated by article 31(2). The Court considered two possible characterisations of the impugned provision. First, if the provision were regarded merely as a restriction on Mr Bose’s right to hold property, the Court held, for the reasons already set out, that such a restriction was reasonable and fell within the permissible limits of article 19(5). Second, if the provision were understood to extinguish his right to property—by treating the power to annul tenancy, to eject sub-tenants and to enforce an ejectment decree as a proprietary right—the Court determined that the State had not acquired possession of that right. Instead, the deprivation occurred by authority of law under article 31(1), which does not require compensation. On this basis, the Court rejected the contention that the impugned law was unconstitutional and ordered that the appeal be allowed, directing that costs be awarded both in this Court and in the High Court.

Justice Ghulam Hasan wrote that he agreed with the Chief Justice that the view of the Calcutta High Court, which held section 7 of the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, to be void for infringing the first respondent’s fundamental rights under article 19(1)(f) and article 19(5), could not be sustained. He affirmed that the order proposed by the Chief Justice should stand, thereby confirming the judgment that the challenged provision was valid and that the appeal should be allowed.

Justice J Gannadhadas noted that he had reviewed the judgments of the Chief Justice and of Justice S R Das. Assuming that the question presented arose under article 19(1)(f) and article 19(5), as the High Court had framed the issue, he concurred with the portion of Justice S R Das’s judgment that declared section 7 of the Bengal Land-Revenue Sales (West Bengal Amendment) Act, 1950, to be intra vires for the reasons set out therein. He observed, however, that a broader issue also existed concerning whether the case should be decided under article 19(1)(f) and article 19(5) or under article 31. Since all the judges were already in agreement about the final outcome of the appeal, he expressed a reluctance to explore the larger constitutional question in detail. Nevertheless, out of respect for his fellow judges and a sense of duty to the Court, he briefly outlined his view, noting that the Chief Justice inclined toward the position that the fundamental right in article 19(1)(f) does not refer to concrete property rights but rather to the natural freedoms of citizenship, a view he found unpersuasive in light of the issues before the Court.

The Judge observed that the expression “concrete property rights” refers to actual, enforceable rights over land or other immovable property, whereas article 19 (1) (f) of the Constitution was intended chiefly to protect the natural rights and freedoms that flow from a person’s status as a citizen. Nevertheless, with due respect, the Judge could not understand how the limitations on the exercise of rights mentioned in article 19 (5) could be interpreted in any way that did not involve concrete property rights. In the Judge’s view, article 19 (1) (f), although primarily aimed at the natural rights of citizens, also embraces within its ambit concrete property rights. The Judge believed that this dual meaning had been consistently accepted without doubt in the numerous decisions rendered over the past four years by this Court and by the High Courts. Accordingly, the Judge held that the restrictions contemplated in article 19 (5) normally, if not invariably, relate to concrete property rights. To construe article 19 (1) (f) and article 19 (5) as having no reference to concrete property rights would, in the Judge’s opinion, permit the legislature to impose unreasonable restrictions on the enjoyment of such property, except where those restrictions could be brought within the scope of article 31 (2) through a careful construction. At the present stage, the Judge could not assent to a view that excluded concrete property rights from the operation of articles 19 (1) (f) and 19 (5). Turning to article 31, the Judge agreed that clause (1) could not be read as a declaration or an implied recognition of the American concept of “police power”. The negative language employed in clause (1) could not, with respect, be transformed into the grant of a positive power, whether express or implied. As the Chief Justice had pointed out, no such grant of police power was required by the constitutional scheme. The Judge explained that, according to his understanding, each legislature in the Union possessed plenary authority over the subjects listed in the Seventh Schedule, as conferred by articles 245 to 255, subject to the limitation of article 13 which forbids the exercise of that authority in a manner that infringes the fundamental rights set out in Part III. Consequently, legislatures could exercise any power—including police power—if it proved necessary to achieve the intended purpose, provided that the exercise did not conflict with the specific safeguards in article 19 (2) to (6) or article 31 (5)(b)(ii) or any other particular constitutional provision. The real question before the courts, the Judge noted, was not the extent of the police power but the scope and limitation of the fundamental right alleged to have been violated by the legislative measure. The Judge agreed with his colleague, Justice S.R. Das, that the Constitution envisages a broad measure of social control as a means to realise the objectives articulated in the preamble and the Directive Principles in Part IV, and he also expressed the view that the courts must interpret these provisions in that social-control context.

The Court observed that the directive principles cannot be ignored merely because they are not directly invoked in the interpretation of constitutional disputes, for article 31 explicitly obliges the State—defined to include the legislature by the definition of “State” in part III as applied through article 36—to give effect to these principles when enacting legislation. Consequently, while the Court accepted that comprehensive social-control legislation may become necessary over time, it held that this necessity does not justify reading article 31(1) as conferring an undefined police power; such a consideration may, however, be relevant when determining the scope of a fundamental right. The Court further rejected the contention that article 31(1) deals solely with the power of eminent domain. Although it recognized that article 31(1) includes the requirement that any deprivation of property must be authorized by law, as opposed to an arbitrary executive act, the Court pressed that the provision’s reach could be broader. The breadth, it said, depends on the precise meaning attributed to the term “property” and on whether the “deprivation” mentioned in article 31(1) is essentially the same concept as “taking possession” or “acquisition” referred to in article 31(2). While the Chief Justice had suggested that “taking possession” and “acquisition” should be interpreted as synonymous with “deprivation,” the Court noted that although taking possession and acquisition certainly amount to deprivation, the reverse implication does not automatically follow in the specific context of the constitutional language. With respect, the Court found no justification for construing article 31(1) and article 31(2) as addressing an identical subject of eminent domain and merely providing different procedural requirements—namely, the legal authority in article 31(1) and the public-purpose and compensation criteria in article 31(2). If article 31(2) were intended to make “acquisition” and “taking possession” interchangeable with “deprivation,” the framers would have had no reason to omit the word “deprivation” from article 31(2) and replace it with other expressions. The Court illustrated that the clause could have been drafted as “There shall be no deprivation of property, movable or immovable, for public purposes under any law authorising the same unless the law provides ….” Instead, the framers appear to have adopted a broader requirement of “authority of law” for deprivation in article 31(1) while limiting the compensation obligation to the narrower concepts of “acquisition” and “taking possession” in article 31(2). The Court therefore expressed respect for the distinction between the language of the two sub-sections, cautioning against reading them as identical.

In this case, the Court observed that treating the word “deprivation” in article 31(2) as identical to the term used in article 31(1) would create a situation similar to the uncertainty that surrounds the phrase “taken” in the American Constitution. The Court noted that such an interpretation would allow many of the vague elements that have accumulated around the American expression to be imported into Indian constitutional law, despite the caution expressed by the Chief Justice in his earlier judgment. The Court therefore concluded that the framers deliberately refrained from using the term “deprived” or “deprivation” in article 31(2) in order to avoid this problem. While the Court recognised the general principle that a Constitution should be interpreted liberally to give effect to the rights it guarantees, it also stressed that where the Constitution’s language shows a purposeful choice, that intentional wording must be given effect. The Court further explained that the Constitution’s Part IV sets a broad goal, yet the framers may have intended a measured and restrained approach to the limits of the right, and consequently the expressed language should dominate the interpretation.

The Court also expressed disagreement with Justice S.R. Das’s view that the terms “acquisition” and “taking possession” in article 31(2) necessarily require a transfer of title or possession. Instead, the Court held that these expressions cover any situation where title or possession is removed from the owner without consent, whether by transfer, extinction, or another process that effectively results in the owner losing possession as understood by law. This broader understanding, the Court said, is supported by the list of property classes specified in article 31(2) and by the principle that, from the owner’s perspective, any act of appropriation is fundamentally the same. The Court further pointed out that article 31(5)(b)(ii) supports this wider view, as it often deals with cases involving the destruction of property, which does not involve a straightforward transfer of title. The Court agreed with the Chief Justice that article 31(5)(b)(ii) represents an exception to article 31(2), meaning that compensation is not required for acquisitions or takings that fall within the purposes listed in that sub-section. Consequently, compensation is required for any other acquisition or taking possession of property. Finally, the Court indicated that the remaining question is the precise definition of “property” for the purposes of article 31(2).

In this case the Court examined the expression “any interest in, or in any company owning, any commercial or industrial undertaking” that appears in the enumerated categories of the provision. It observed that, broadly speaking, the term property includes not only a physical thing that is either corporeal or incorporeal, but also the entire bundle of rights that constitute ownership of that thing, and potentially each separate right that forms part of that bundle. However, the Court held that within the context of article 31(2), and similarly in the related context of article 19(1)(f), the meaning of the word “property” is narrowed by the accompanying terms “acquisition” and “taken possession”. Consequently, from the wide category ordinarily covered by the word “property”, only those interests that can be the subject of an acquisition or a taking of possession fall within the scope of article 31(2). The Court explained that this interpretation excludes, for example, a solitary individual right that forms part of the larger bundle of rights, unless that individual right is recognized by law as a distinct property right or an interest in property such as an easement, a profit-a-prendre, or a similar right that can be separately acquired or possessed. Applying this principle to the present appeal, the Court noted that the right to annul under-tenures cannot be treated as property because it cannot be independently acquired or possessed. Any deprivation of that right would merely restrict the exercise of rights relating to the main property and therefore would not be permissible under article 19(1)(f) read together with article 19(5), according to the Court’s understanding. The Court, however, indicated that the term “property” in article 31(1) may have been intended to carry a broader meaning, so that the removal of any individual right from the bundle that makes up a concrete property could be regarded as deprivation of “property” requiring lawful authority. The Court acknowledged the possible criticism that the same word appearing in two parts of the same article should bear the same meaning, a rule of construction that is generally accepted. Yet it observed that this rule may yield when the surrounding context and the placement of other words or phrases demand a different interpretation. In the Court’s view, article 31(1), although forming part of a larger article, functions as an independent provision that overlaps to some extent with the law of eminent domain. It stands on an equal footing with article 21 and appears to serve a purpose beyond the traditional scope of eminent domain, namely to address deprivation of property that does not fall within the ambit of article 31(2). It therefore mandates that such deprivation may occur only by authority of law. On the basis of this analysis, the Court concluded that the initial assumption—that the matter fell within article 19(1)(f) and article 19(5)—was correct.

The Court observed that the starting assumption, namely that the matter before it fell within the scope of article 19 (1) (f) and article 19 (5), was correct in the Court’s view. Having accepted that premise, the Court then turned to the question of relief. It held that, in the circumstances of the case, the appeal ought to be allowed and that the costs of the proceedings should be awarded in favour of the appellant both in the present proceeding and in the earlier proceedings before the High Court. Accordingly, the Court recorded an order granting the appeal. The order was expressed in the succinct terms “Appeal allowed.” The Court also identified the persons who had acted as agents for the parties. For the appellant, the agent was P K Bose, and for respondent No 1, the agent was R R Biswas.