Should Part III Of The Constitution Be Amendable? Revisiting The Right To Property: The Impact Of The 44th Amendment On India's Constitutional Framework
Aastha Jain, Anshika Bakrewal, Sonali Thakur & Vishal Rajpurohit, OP Jindal Global University
ABSTRACT
Whether or not property should be protected by the state has always been controversial. Scholars argue that the 44th Amendment1 removing the fundamental right to property has had a massive impact on the constitution itself, challenging the ‘basic structure’ notion, amputating the concept of eminent domain and creating glaring inequities.2 On the other hand, it had been argued by the late prime minister Jawaharlal Nehru that even though the protection to Article 19(1)(f) and 31 was amended, such amendment would reduce the glaring inequalities in India.
The primary objective of this paper is to critically examine the question of whether Part III of the Constitution should be amendable in light of the withdrawal of constitutional protection for the right to property. Furthermore, this study aims to assess whether such potential amendment to Part III would inherently contravene the foundational principle of the Basic Structure Doctrine, a cornerstone of constitutional jurisprudence.
The paper offers a nuanced analysis of the historical evolution of the right to property and its intricate relationship with the Basic Structure Doctrine. Then, it delves into the contentious debates surrounding the Ninth Schedule of the Constitution and how it has been utilized as a tool for bypassing judicial scrutiny. It offers a comparative perspective, thus, shedding light on the unique features of India's constitutional framework with that of other countries.
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