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Constitutional Law

Right to Property

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 11-Nov-2024

Introduction 

  • The Right to Property is currently protected under Article 300A of the Constitution of India, 1950 (COI). 
  • It simply states that "No person shall be deprived of his property save by authority of law" 
  • It's no longer a Fundamental Right but rather a Constitutional right.

Historical Background of Property Rights

  • The initial constitutional framework had three-tier protection:  
    • Article 19(1)(f): Gave citizens right to acquire, hold and dispose property. 
    • Article 31(1): Protected against arbitrary deprivation. 
    • Article 31(2): Required compensation for acquisition.
  • Reasonable Restrictions were allowed:
    • For public welfare. 
    • For protecting Scheduled Tribes' interests. 
    • Had to pass a test of reasonableness. 
  • State powers were limited by:
    • Need to show public purpose. 
    • Requirement to pay compensation. 
    • Judicial review of acquisition process.

Evolution of Property Rights

  • First Amendment (1951):  
    • This amendment added Article 31A. 
    • It also protected certain laws from challenge. 
    • This amendment made agrarian reforms possible.
  • Fourth Amendment (1955):
    • This is limited judicial review of compensation. 
    • This made adequacy of compensation non-justiciable.
  • Twenty-fifth Amendment (1971): 
    • This amendment changed 'compensation' to 'amount’. 
    • This amendment further restricted property rights. 
  • Forty-fourth Amendment (1978):  
    • This amendment removed property from fundamental rights. 
    • This amendment inserted Article 300A. 
    • This amendment changed the entire framework of property rights.

44th Constitutional Amendment 

    • The 44th Amendment entailed the removal of the right to property from Article 19(1)(f) of Part III and its reincorporation as a constitutional right within Article 300-A. Additionally, Article 31, which had been a subject of significant controversy concerning compensation determination, was also expunged. 
    • Justice K.K. Mathew, a dissenting judge in the Kesavananda Bharati case, said that property ownership bears a direct correlation with civilization's quality and culture. 
    • He argued against excluding the fundamental right to own and acquire property from the roster of constitutional bedrock, even within the framework of the basic structure doctrine. 
    • In 1980, a professor asserted in an influential publication that the deletion of Article 31 was a misstep. 
    • He contended that the power conferred by Entry 42 of the concurrent list pertains to “acquisition” rather than “confiscation”. 
    • The professor maintained that the explicit inclusion of conditions mandating acquisition solely for public purposes and accompanying compensation within Article 31(2) obviated the necessity of deeming them inherent aspects of the grant itself. 
    • Article 300A stipulates that no individual shall be deprived of their property except by authority of law. 
    • According to the professor this signifies that the "law" cannot be deemed valid unless the acquisition or requisition serves a public purpose and incorporates provisions for compensation. 
    • He maintained that "compensation" would retain the same interpretation as delineated in the Bela Banerjee case, signifying the market value of the property around the time of acquisition. 
    • In subsequent years following the elimination of Articles 19(1)(f) and 31, the Supreme Court has asserted that the right to property constitutes both a constitutional and a human right. 
    • In the M.C. Mehta v. Union of India (1986), the Court pronounced that for a law to be valid, it must be just, fair, and reasonable. Therefore, despite not being categorized as a fundamental right, any law depriving an individual of their property must adhere to the mandates of Articles 14, 19, and 21. 
    • The Court in the B.K. Ravichandra v. Union of India (2020) emphasized the striking resemblance between the phrasing of Article 300A and Articles 21 and 265. 
    • The Court observed that the guarantee enshrined in Article 300A could not be diluted. 

Current Legal Framework of Property Rights in India 

  • Property can be acquired by:  
    • Central government laws 
    • State government laws 
    • Any statutory authority with legal backing 
  • Requirements to acquire a property: 
    • Must have legal authority 
    • No need for public purpose 
    • No mandatory compensation requirement 
  • Limitations:  
    • Cannot be done through executive orders 
    • Must follow procedure established by law 
    • Should not violate other constitutional provisions

Legal Remedies Available to Protect the Right of Property 

  • If property is taken without legal authority, one can approach the High Court under Article 226. 
  • Cannot approach Supreme Court directly under Article 32 (as was possible earlier). 
  • Cannot challenge acquisition on grounds of inadequate compensation.

Landmark Cases

  • A K Gopalan v. State of Madras (1950): 
    • This case, heard by the Madras HC, was one of the early instances where the court grappled with the conflict between the right to property and the state's power to regulate it. 
    • The court upheld the constitutionality of the Madras Maintenance of Public Order Act, 1949, which authorized the state to take possession of any property for public order.
  • Kesavananda Bharati v. State of Kerala (1973): 
    • This case is often referred to as the "basic structure doctrine" case. 
    • While not directly related to the right to property, it is crucial in understanding the constitutional context. 
    • The Supreme Court, in a historic decision, held that while the Parliament has the power to amend the Constitution, it cannot alter its basic structure. 
    • This case indirectly influenced the subsequent amendment that transformed the right to property into a legal right.
  • Minerva Mills Ltd. v. Union of India (1980): 
    • In this case, the Supreme Court struck down parts of the 42nd Amendment Act, 1976, which gave Parliament unbridled power to amend the Constitution. 
    • The court, while upholding the amendment abolishing the fundamental right to property, emphasized that even though the right to property is no longer a fundamental right, it continues to be a constitutional right.
  • Jilubhai Nanbhai Khachar v. State of Gujrat (1995): 
    • The Supreme Court held that the Right to Property is not a part of the Basic Structure Doctrine of the Constitution.

Conclusion

The right to property in India has been significantly weakened over time. Current protection is limited to requiring legal authority for property acquisition. The focus has shifted from individual property rights to social and economic goals. The change reflects a shift towards giving the state more power over property matters. This transformation of property rights in India represents a significant shift from strong individual property protections to a more state-controlled approach, prioritizing social and economic development over individual property rights.