This article is written by Shweta Singh. This article contains exhaustive information regarding the right to property as a fundamental right. It discusses in detail the evolution of the right to property from being a fundamental right to being derogated as a constitutional right. In addition, it also provides the reasons behind the Constituent Assembly incorporating this right under Article 19(1)(f) of the Indian Constitution as a fundamental right and what caused the government to remove it and reclassify it as a constitutional right under Article 300-A of the Constitution of India.
Table of Contents
Introduction
The right to property has always been regarded as a fundamental right since the advent of the Indian Constitution in the year 1950. However, the meaning and significance of this concept have evolved over the years. This article explores the evolution and effects that the right to property has undergone within the Constitution of India. Earlier, it was protected as a fundamental right under Articles 19(1)(f) and 31 of the Constitution of India. However, in 1978, the 44th Amendment Act of the Constitution changed it as a legal right and was laid under Article 300A because of socio-economic situations leading to a change in land reforms. It has enabled the government to pass laws regarding the acquisition of private property for public use, thereby leading to a significant impact on landowners. In addition, it has also raised questions about the balancing of private property rights with the public welfare. Secondly, various constitutional provisions and case laws, especially those given by the Supreme Court, have enhanced the scope and applicability of the right to property.
History of right to property
Property rights have evolved and have played an important role in the progress of human civilisations. In early societies, property rights were often based on possession and usage. Nomadic tribes acknowledged personal property such as clothing, tools, and even weapons. However, the concept of private property was restricted, most of them followed the concept of communal ownership. With the development of more advanced societies such as Mesopotamia, Egypt, Greece, and Rome, more complicated systems of property rights evolved. Ownership of land was mainly in the domain of the ruling class or the state, while individuals had the privilege of using the land for agriculture or any other purpose they deemed fit. Property rights were strongly associated with social rank and could be taken away by those in authority. During the Middle Ages in Europe, feudalism appeared. The kings gave out land to the nobles in return for military service and loyalty. Property rights were structured around the relationships between lords and servants, with strict hierarchies governing land distribution and control.
As regards property rights in India, they are governed by customs and traditions prevailing in a particular area or in a particular caste. Property was inherited through members of the clans or communities, and individual property ownership was not common. The idea of property was inextricably tied to social and religious practices. During the medieval period, there was a practice of granting lands to nobles and religious institutions. The state or the ruling elite had ownership over a vast amount of the land, and land revenue systems were created to recover taxes from the cultivators. The British rule had an immense impact on property rights in India. The Permanent Settlement of 1793 in Bengal influenced the introduction of the concept of ownership of private property under British law, where the landlords were granted permanent rights over the land in exchange for fixed revenues to the British crown. The Ryotwari and Mahalwari systems (these systems were a way of regularising the revenue that was generated through the taxes on land) were later extended to other parts of India. Individual land ownership was established, with cultivators paying the land and revenue to the British administration or other intermediaries. Further, after independence, property rights were recognised as an essential aspect of human development and were therefore established as a fundamental right under Part III of the Constitution of India by the Constituent Assembly.
Evolution of right to property
The Constitution of India derives its provisions from the Government of India Act of 1935 and the Universal Declaration of Human Rights of 1948. The Government of India Act of 1935 contained provisions for the right to property under Section 299 of the Act, which included protection of property from compulsory acquisition for purposes other than the public interest. In the same manner, Article 17 of the Universal Declaration of Human Rights states that everyone has the right to own property.
While framing the Constitution of India, the constituent assembly looked into the provisions of the constitutions of many countries that sought to protect the freedom of citizens. It is stated that the constitutions generally protect rights related to equality before the law, freedom of speech, religion, assembly, association, personal security, and property. Within limits, these rights were deemed fundamental and well-established. The debates held during the Constituent Assembly sessions on the draft Articles 19(1)(f) and 31 proved that the makers of the Indian Constitution accorded considerable importance to the right to property. They placed it in the chapter on fundamental rights, which showed their eagerness to guarantee fair and appropriate consideration of property rights in the newly created State. Originally, till 1978, the right to property was a part of the fundamental rights in India. However, by the 44th Amendment Act of 1978, it was removed from the category of fundamental rights and became a constitutional right under Article 300A of the Indian Constitution.
Right to property as a fundamental right
The Constituent Assembly envisioned a legal system that was a unique blend of democratic socialism and liberal democracy. This system was expected to guard personal freedoms, liberties, and property while also working towards social and economic reform, including land reform and resource distribution. However, there was a conflict between protecting property rights and introducing a policy on land redistribution for the purpose of creating a more equitable society. This led to debates within the Constituent Assembly and ultimately, a balance between these two competing objectives was established. As a result, Article 19(1)(f) and Article 31 were adopted to establish the right to property as a fundamental right under Part III of the Constitution of India.
Article 19 (1)(f) of the Indian Constitution
As initially adopted, Article 19(1)(f) guaranteed to all citizens of India the fundamental right “to acquire, hold, and dispose of property.” However, this right could be restricted by the Union and the State legislatures in the interest of the public, as provided in Article 19(6) of the Constitution of India.
In the case of State of West Bengal vs. Subodh Gopal Bose (1953), Chief Justice Sastri, gave a theory relating to Article 19(1)(f) of the Indian Constitution. He pointed out that Article 19(1)(f) was centered on the general right of a citizen to acquire, hold, and dispose of property in the widest sense and not on specific instances of property ownership. According to his interpretation, Article 19(1)(f) protected the abstract right to property, meaning it guaranteed the fundamental principle that citizens have the freedom to engage in property-related activities. This article did not explore anything regarding the rights that are attached to any particular piece of property. This change implied that while it was established that the citizens had a general right to property, particular property rights could still be regulated by the law and regulations without violating the fundamental rights provided under Article 19(1)(f).
In the case of Commissioner, Hindu Religious Endowments vs. Lakshmindra (1954), the Supreme Court of India gave a liberal construction of the term ‘property’ as incorporated under Article 19(1)(f) of the Indian Constitution. The Court noted that there was no rationale that would warrant a narrow definition of ‘property’ to only include physical or tangible assets. At the same time, the term should also encompass different kinds of interests that resemble certain features of the proprietary rights. This means that Article 19(1)(f) applies not only to specific physical properties but also to more abstract property rights.
In the same manner, the scope and definition of ‘property’ under Article 19(1)(f) and Article 31(2) have been further explained by the Supreme Court in M. M. Pathak vs. Union of India (1978). The Supreme Court observed that the ‘property’ referred to every type of property, whether tangible or intangible. This included not only tangible items and land but also debts and other financial interests, or what was referred to as “choice in actions.” Therefore, the protection under these constitutional Articles was extended to a wide range of property types, ensuring a comprehensive approach to property rights that covered both physical assets and intangible interests.
Article 31 of the Indian Constitution
Article 31 of the Indian Constitution was largely based on Section 299 of the Government of India Act, 1935. However, there have been certain significant variations that affected the overall balance of the protection provided to property rights of an individual in India after independence. Section 299 of the 1935 Act had given constitutional status to certain restraints on the State’s power to compulsorily acquire land. Such restraints originated from a set of colonial legislation, beginning with the Bengal Regulation Act I of 1824 and ending with the Land Acquisition Act of 1894. These colonial laws sought to place some restraints on the states’ control of private property, and therefore provide some protection to the owners of such property. Certain categories of property rights got better protections, guaranteeing that specific types of property could not be easily expropriated by the State. On the other hand, other types of property rights were made less secure to enable the state to easily take over the land in situations where such action is deemed necessary in the public interest.
The Constituent Assembly’s debate on drafting Article 31 concentrated on the following key issues:
- How can the balance between the individual’s right to property and the need for social and economic reforms be achieved?
- Should the term ‘public purpose’ be restricted to official government purposes, or should it be interpreted in a wider and more flexible sense to encompass significant social objectives?
- What can be considered an ‘acquisition’ or ‘deprivation’ of property that would require compensation?
- What is meant by ‘compensation’ and how does one define words like ‘fair,’ ‘equitable,’ and ‘just.’
- Who will be the final decision maker as to the amount of compensation as well as how it will be disbursed?
The provision of Article 31 as finally adopted by the constituent assembly provided that “no one can be deprived of their property except by the authority of law.” Furthermore, Article31(2) provides that both movable (such as vehicles or machinery) as well as immovable property (such as land or buildings) including any interest in such property or in companies owning commercial or industrial undertakings, can only be acquired for public purposes and the law governing such acquisition must also provide for compensation. This implies that such a law can either specify the amount that is required to be paid as compensation or provide the principles or methods that can be used to determine the amount of compensation. Article 31(3) further provides that every law enacted by the state legislature under Article 31(2) shall be effective only when it has been reserved for the consideration of the President and received his assent. Such a provision aims to ensure that such laws undergo scrutiny at the highest level before coming into force. Certain legislation is afforded protection from judicial review under Article 31(4). It provides that if certain laws were in the legislative process at the time when the Constitution came into effect, such laws shall not be subject to judicial review. It further provides that if a bill, which was pending when the Constitution came into force, is passed by the legislature thereafter and gets the president’s assent, then such law shall not be challenged before the court on the ground that it is not in compliance with the compensation requirement as provided under Article 31(2). However, there are two exceptions to Article 31(2) and they have been provided under Article 31(5). They are as follows:
- Existing laws, excluding those specified under Article 31(6), are not affected by Article 31(2).
- Laws enacted by the State for the purpose of imposing taxes or penalties, supporting public health, and preventing danger to life or property are excluded from the purview of Article 31(2). Other laws dealing with evacuee property under certain agreements also fall under the exceptions to Article 31(2).
By Article 31(6) it was provided that any state law that was enacted within 18 months of the commencement of this Constitution can be forwarded to the President for certification within 3 months of the commencement of this Constitution. It, therefore, follows that where the President has certified such a law, it cannot be challenged in the Supreme Court as unconstitutional on the grounds that it offends Article 31(2) or Section 299(2) of the Government of India Act 1935.
Clauses (1) and (2) of Article 31 were the same in spirit as Section 299(1) and (2) of the Government of India Act 1935, but there was a slight difference in two respects. First, Section 299 was confined to the extent of compulsory acquisition of property, while Article 31 broadened it to include cases of taking possession of the property for ‘public use’. This implied that compensation had to be paid regardless of whether or not the title to the property was vested in the government. Second, while Article 31(2) of the Constitution provided that legislatures could allow compensations in any other form, including bonds, Section 299(2) provided that compensations had to be in the form of money only. Articles 31(4) and 31(6) were specifically made to protect and maintain the land reform laws. They laid down some conditions under which the protection of property rights stipulated in Clauses (1) and (2) of Article 31 would not be available but did not specify which property rights or interests were excluded. Instead, they pointed to certain periods when legislation was passed that would be exempt from the requirements of Article 31(2). Whereas Clause (4) exempted legislation from bills that were before parliament at the time the Constitution came into force, Clause (6) excluded legislation passed within 18 months of the commencement of the Constitution. Both types of laws had to be approved by the President, thus implying the consent of the union executive.
Right to property as a constitutional right
Guaranteeing a fundamental right to property while pursuing land reform and state-led industrial growth created a predictable conflict. While the legislature and executive sought to implement development projects, the judiciary protected the property rights of people affected by these projects. This situation over the years saw the judiciary nullify many laws meant for social and economic changes, such as land reforms. This judicial pushback urged the legislature to make several constitutional amendments. The Forty-fourth Amendment of 1978 deleted Articles 19(1)(f) and 31 from the section relating to ‘Fundamental Rights’ of the Constitution and inserted Article 300A in a new chapter. This change reduced the ‘right to property’ from being a fundamental right to a constitutional right.
Amendments to right to property under the Indian Constitution
The fundamental rights specified under Article 31 and Article 19(1)(f) of the Constitution of India have been amended a total of six times since the inception of the Constitution.
First Amendment Act (1951)
The land reforms by the state governments in the initial years were aimed at the abolition of the zamindari system. As per the Seventh Schedule of the Constitution of India (List II, Entry 18), land is a subject that falls within the legislative competence of a state, which means only state legislatures can make laws in relation to it. The Bihar Land Reforms Act of 1950, and the Uttar Pradesh Zamindari Abolition and Land Reforms Act of 1950, were challenged before the court for being unconstitutional. The main arguments that were made by the affected individuals were that these acts infringed on the right to property as provided for in Article 19(1)(f) of the Constitution of India. It was further argued that the acquisitions were not in furtherance of a public purpose, and the compensation offered was low and unrealistic. The Patna High Court in the case of Kameshwar Singh vs. State of Bihar (1951) held that the Bihar Land Reforms Act of 1950 is unconstitutional as it violated the right to property provided under Article 19(1)(f), while on the other hand, the Uttar Pradesh High Court in the case of Raja Suryapal Singh vs. State of Uttar Pradesh (1951) upheld the validity of the Uttar Pradesh Zamindari Abolition and Land Reforms Act of 1950. These conflicting judgements were then referred to the Supreme Court for the final decision. While these appeals were pending before the Supreme Court, the Provisional Parliament passed the Constitution (First Amendment) Act of 1951.
The historical evolution of the right to property started with the First Amendment Act, 1951, wherein Articles 31-A and 31-B were incorporated into the Constitution and even introduced the Ninth Schedule. The amendments aimed to do something that wasn’t covered in the original Article 31. They enumerated the kinds of property interests that would not be exempted from the requirement of providing compensation as provided under Article 31(2) and other provisions included under Articles 14 and 19. Article 31A(1) was to the effect that the competence of the State to make a law for the acquisition of any property or any rights in the property, or for the alteration or repeal of such rights was not to be struck down for being inconsistent with any of the provisions contained under Parts III of the Constitution of India. Article 31A(2) explained the meaning of the term ‘estate’. Article 31A2(a) is illustrated by stating that “estate” bears the same meaning as in the local laws in relation to tenures of land and includes “jagirs, inams, muafis or any similar grants”. Article 31A2(b) clarified that rights relating to an estate comprise the rights of proprietors, sub-proprietors, under-proprietors, tenure holders, intermediaries, and any other rights and privileges in so far as the land revenue is concerned.
The First Amendment Act also introduced Article 31-B and the Ninth Schedule to the Constitution of India. Article 31B provided that no law enumerated in the Ninth Schedule would be struck down or be deemed to have become void merely because it was declared to be in conflict with any of the rights protected under Part III of the Constitution. This meant that Article 13(1), in which it was stated that any law contrary to fundamental rights would be void to the extent of the inconsistency, did not apply to the laws enlisted in the Ninth Schedule.
The practice of new legislation being incorporated into the Ninth Schedule through amendments has resulted in an increase in the number of protected laws. Initially, there were 64 laws that were incorporated into the Ninth Schedule. Subsequent amendments continued this trend: 17 new laws were added by the 4th Amendment; the 17th Amendment added 29 new laws; the 34th Amendment added 17 new laws; the 39th Amendment added 38 new laws; the 42nd Amendment added 64 new laws; and 14 new laws were added by the 47th Amendment making it 202 in total. It was only in 1993, through the 66th Amendment, that there was an addition of 55 legislations bringing the total number of legislations to 257. The 75th Amendment Act of 1994 also contained a Tamil Nadu Act that envisaged 69 percent reservation for backward classes under the ninth schedule. This expanded use of the Ninth Schedule has been criticised as a deviation from its original purpose, which was to protect land reform laws from judicial challenges. In 1995, by the 78th Amendment Act, 27 more acts were included, making it a total of 284 Acts.
In Sri Sankari Prasad Singh Deo vs. Union Of India and State of Bihar and another (1951) (hereinafter referred to as ‘Sankari Prasad case’), the Supreme Court upheld the constitutional validity of the First Amendment, as the Parliament had the exclusive right to amend any part of the Constitution under Article 368 of the Constitution of India. Moreover, the Court pointed out that the provision that the laws shall not abridge or take away the fundamental rights mentioned under Article 13(2) was not applicable to the laws amending the constitution. This means that the amendment that affected the fundamental rights was not deemed unconstitutional under Article 13(2).
Fourth Amendment Act (1955)
After the introduction of the Ninth Schedule, the legislature added several laws to the Ninth Schedule to bypass the scrutiny of the judiciary on the exercise of its power. The Supreme Court has decided a series of cases in favour of the litigants on the issue of the right to property. Most of these successful constitutional challenges were superseded by amendments that either added the controversial laws to the Ninth Schedule or made further alterations to the constitutional provisions. The decision of the Supreme Court in the case of State of West Bengal vs. Mrs. Bella Banerjee (1954), induced the government to introduce the Fourth Amendment to the Constitution of India. In this leading case, the Supreme Court held that in every case of compulsory acquisition of properties by the state, compensation has to be paid. The Court determined that both clause (1) and clause (2) of Article 31 address the same issue, that is, the deprivation of private property. Besides, the court put an emphasis on the interpretation of the term compensation to mean just compensation, which is the equivalent of what the owner has lost.
In 1955, the Fourth Amendment Act was passed by the Parliament to counter this decision by amending clause (2) of Article 31 and inserting clause (2-A) into Article 31. This change meant that clause (2) covered the acquisition or requisition of property as defined in clause (2-A) and clause (1) outlined the deprivation of property by the state in other ways than by acquisition or requisition. This amendment gave the State the right to seize a man’s property by law. It also empowered the State to determine the compensation for acquired/requisitioned property, either by stating the amount or by indicating how it would be calculated. The amended clause (2) further provided that the adequacy of the amount could not be questioned in any court, thereby giving the state substantial discretion on compensation matters.
Seventeenth Amendment Act
The Seventeenth Amendment Act of 1964 was passed to amend and expand the scope of Article 31-A and the Ninth Schedule in order to afford protection to some of the land reforms carried out by the States of Kerala and Madras. This amendment extended the meaning of the term “estate” in Article 31-A to include other forms of land tenure like ‘jagirs’, ‘inams’, ‘muafi’, and ‘janmam’ rights in Kerala and Madras, as well as Ryotwari lands.
Further, it amended clause (1) of Article 31-A by adding one more proviso to it. This proviso was intended to prevent people from being dispossessed of land that was below the land ceiling limits held for personal cultivation, and if such land was acquired, it would be at its market value. The Amendment also added 44 more laws to the Ninth Schedule that made these laws immune to legal challenges on the grounds of violating fundamental rights.
The validity of certain laws added to the Ninth Schedule by the Seventeenth Amendment Act of 1964 was contested in court. However, the Supreme Court upheld these laws in the case of Sajjan Singh vs. the state of Rajasthan (1965). In its decision, the Supreme Court followed the precedent set in the earlier case of Sankari Prasad. The Court applied the principle of ‘stare decisis’, which means adhering to previously established rulings. This ensured consistency in legal interpretations and upheld the amendments made under the Seventeenth Amendment Act.
Twenty-fifth Amendment Act
Consequently, the Twenty-fifth Amendment to the Indian Constitution contained three major changes. Firstly, it revised Article 31(2) of the Constitution of India to replace the term “compensation” with “the amount”. This was an effort meant to shift the citizen’s right to property into the state’s right to expropriation. As a result, the State could take anyone’s property by paying an unspecified “amount” instead of “compensation,” which has to be reasonable and fair.
Secondly, the Amendment sought to expand the authority of the State to take away the property of a person at its discretion and under such terms and conditions as it would prefer. This meant that the State could always decide how much ought to be remunerated for the property, at any time and on any condition, without the need to provide adequate compensation.
Thirdly, the Amendment attempted to bar the courts from reviewing the conduct of the State, even if the action was arbitrary or irrational. This significantly lowered the protection of property rights against the interference of the State. The loss of property without adequate compensation could impact other freedoms since they can be limited, rendered ineffective, or even, denied. The only exception to this rule was in the case of education institutions, as provided under the proviso to Article 31(2).
The Twenty-fifth Amendment also added the so-called Article 31C, which precludes the constitutional invalidation of any law enacted for the enforcement of the state’s policies outlined under Articles 39(b) and 39(c) of the Constitution of India on the ground that it violates the property rights provided under Articles 14, 19, and 31. Furthermore, if a law contains the statement that it is intended to realise these policies, it cannot be challenged in court on the ground that this law does not realise these policies.
44th Amendment Act of the Indian Constitution
The Constitution (Forty-Fourth Amendment) Act of 1978 introduced major changes to the right to property in India. It replaced the rights to property previously provided under Article 19(1)(f) and 31 of the constitution and introduced Article 300A in a new chapter IV of Part XII of the Indian Constitution. This change meant that property was no longer a fundamental right but a constitutional right under Article 300-A, which states that “No person shall be deprived of his property save by authority of law. Thus, according to the Forty-Fourth Amendment, the State is not bound to compensate property owners for the property taken by it, save in cases specified by other articles. Article 30(1A) says that where the property of an institution established for a minority is acquired, compensation ought to be paid. Likewise, the second proviso to Article 31A(1) provides that, where estates where personal cultivation is being conducted are acquired, compensation should be made at market value. This has resulted in an irregular situation whereby the State, in most cases, is not constitutionally bound to pay market value as compensation whenever it acquires the property for public use, except for the specific circumstances provided under the legal provisions of Articles 30(1A) and 31A(1). The following changes were made by the 44th Amendment Act:
- Abrogated Article 19(1)(f), which granted every citizen the right to acquire, hold, and dispose of property.
- Amended Article 30 with new clause (1-A) with the effect that if the state acquires the property of any minority-administered educational institution, the compensation shall not encroach on the rights of the minorities.
- Deleted the subheading “Right to Property.”
- Deleted Article 31.
- Amended Part XII by including Chapter IV titled “Right to Property,” which comprises Article 300A, which states, “any person shall not be stripped of this property except by the authority of the law”.
- The Ninth Schedule was revised, and the particular entries 87, 92, and 130 were deleted from the list.
Reason behind the 44th Amendment Act
The removal of Articles 19(1)(f) and 31 and the introduction of Article 300-A were aimed at demoting the property right from a fundamental right to a legal right. This means that while the right to property would still be protected against the interference of the executive, it would not be protected against the interference of the legislature. Another reason why the right to property was removed from the “fundamental rights” list through the 44th Constitutional Amendment passed in 1978 was because this right posed many problems in the integration of socialism and the equitable distribution of resources.
After independence, the right to property posed several legal and practical challenges in India. Of all the fundamental rights, property rights have been the most controversial and have triggered many legal suits between the government and the citizens. In response, the central and state governments formulated a plethora of laws for governing property rights to implement social and economic reforms. In the agrarian sector, the government proposed to give the tiller the rights of property, remove the zamindari system, give the tenants security of tenure, put a ceiling on individual holdings of agricultural land, and redistribute the surplus land among the landless. In the urban areas, they centered their activities on housing construction, eradication of squatter residential areas, and planning, regulation of rents, purchase of property, and even limiting the holding of urban land. Furthermore, it aimed at regulating business ventures and some aspects of commercial activities through nationalisation. All these legislative actions were carried out with the view of establishing a socialistic structure in society. Hence, Articles 31 and 19(1)(f) were removed from Chapter III of the Constitution of India for the implementation of these reforms.
Consequences of the 44th Amendment Act
In the Indian Constitution at the time of its adoption, the right to property was a part of the fundamental rights as provided under Article 19(1)(f) of the Indian Constitution. However, in 1978, the 44th Amendment Act took this right away from the list of fundamental rights and termed it as a constitutional right with the introduction of Article 300-A. This re-classification entailed a shift in how this right could be implemented. When it was a fundamental right, a person could approach the Supreme Court directly under Article 32 for its enforcement. After the amendment, the right to property could only be protected through the High Courts in accordance with Article 226. This change was adopted with the aim of balancing the competing interests of the individual’s right to own property and the state’s need to acquire property for public use and promote social justice. Thus, by transforming it from a fundamental right into a constitutional right, the government intended to have more discretion in implementing its policies for social and economic development, including land reforms and redistribution of resources.
Judicial stand on amendments made to the right to property
Articles 19(1)(f) and 31, when read with other articles, are the rights that were assimilated into the Constitution in such a way that they could not be taken out of the entire framework of rights. Removing these rights without causing disruption was challenging. To bring coherence with the rest of the Constitution, the gaps and disruptions needed to be addressed and repaired. This has been a challenging task, and the courts have been called upon several times to consider the correct position of the law, especially after several amendments were made to Article 31 of the Indian Constitution.
The Supreme Court, by means of several judgements, reconsidered the amendments and curtailed their exercise to rational parameters. In the case of Kavalappara Kottarathil Kochuni vs. The State Of Madras And Others (1960), the Supreme Court rejected the contention that Article 31(1), after amendment, sought to confer absolute power to the state to take away the property of a person. Thus, the Court stated that Article 31(1) and Article 31(2) are two distinct fundamental rights and that the word “law” in Article 31(1) means valid law. According to Article 31, this law must qualify as a reasonable restriction in the interest of the public under the provisions of Article 19(5). While the decision recognised the power of the state to deprive a person of property by law where necessary, it also established a condition that the law under which a person’s property could be taken must be reasonable and in the interest of the public and can be reviewed by the court.
In the cases of P. Vajravelu Mudalier vs. Special Deputy Collector, Madras and Another (1964) and Union of India vs. Metal Corporation of India Ltd. and Another (1966), the Supreme Court analysed the aspect of compensation for the property acquisitions under Article 31(2). The Court held that if the compensation set was hypothetical or the principles applied for setting the compensation were not adequate to the value of the property at the time of its acquisition, then it would amount to an abuse of the legislative powers. Consequently, as a law would be considered insufficient and invalid.
The Supreme Court of India, dealing with the constitutional challenge to certain laws enlisted in the Ninth Schedule and connected matters, delivered a sharply divided judgement (6:5) in the case of I. C. Golaknath & Ors vs. State of Punjab & Anrs. (1967) (hereinafter referred to as ‘the Golaknath case’). The majority decision reversed earlier rulings in the Sankari Prasad and Sajjan Singh cases in determining that constitutional amendments are included within the meanings of ‘law’ as stated under Article 13(2) of the Constitution. Thus, it stated that Parliament could not interfere with the basic individual freedoms by amending the Constitution. A majority of them also discovered that the Constitution, through the First, Fourth, and Seventeenth Amendments, limited the scope of fundamental rights. Nonetheless, the court permitted these amendments to continue as they had been declared legal in previous judgements (like the Sankari Prasad case) and innumerable state laws and property rights have been created based on these amendments. In order to overcome this situation, the Court employed the method of prospective overruling, which means that the new meaning is to be applied to future cases, but the prior amendments and actions based upon the prior interpretations of the law cannot be deemed invalid.
In the landmark case of Kesavananda Bharati Sripadagalvaru vs. the State of Kerala and Anr (1973) (hereinafter referred to as ‘the Kesavnanda Bharti case’), the Supreme Court of India dealt with the validity of certain constitutional amendments made to the right to property. The case was decided by a narrowly divided court (7:6) and annulled the verdict given by the court in the Golak Nath case. The Court clarified that the term ‘law’ in clause (2) of Article 13 does not include a constitutional amendment, which in turn means that a constitutional amendment was beyond the restrictions placed by clause (2) of Article 13. However, the Court also declared that though the Parliament has the power to add, vary, or repeal any provision of the Constitution, it does not have the power to change the basic structure of the Constitution. This legal proposition came to be referred to as the basic structure doctrine and became a part of India’s constitutional jurisprudence.
Following this judgement, the parliament passed the 44th Amendment Act, removing Article 31 and Article 19(1)(f) from the status of the fundamental rights that form the basic structure of the constitution. In the later case of Waman Rao and Ors. vs. Union of India and Ors. (1981), the Supreme Court discussed the amendments and laws protected under the Ninth Schedule of the Constitution in light of the judgement given in the Kesavnanda Bharti case. It was held that all the constitutional amendments and enactments that were protected under the Ninth Schedule prior to the judgement of the Kesavnanda Bharati case will continue to remain protected and cannot be challenged in a court of law. However, any amendments and laws included in the Ninth Schedule after the decision in Kesavananda were held to be subject to judicial review on the basis of the basic structure doctrine enunciated in the Kesavananda Bharti case.
Status of right to property after the 44th Amendment Act
The Supreme Court decisions and the history of the right to property reveal that, despite the right to property being removed from the list of fundamental rights, it is protected by the rule of law. The emerging trends in the courts’ decisions also demonstrate that the right to property is essential for the protection of constitutional, and more particularly, economic, rights. The language of Article 300-A is important and its similarity with Articles 21 and 265 of the Constitution, indicates that it serves as a guardian of the rule of law.
In the case of Maharao Sahib Shri Bhim Singhji vs. Union of India (1980), the Apex Court discussed the importance of the fundamental right to property even though it was eliminated from the list of fundamental rights. Despite its abolition, the Court acknowledged the importance of property rights by relying on the fundamental right of equality, which is grounded in the concept of reasonableness under Article 14 of the Constitution. Therefore, by applying the test of reasonableness and equality under Article 14, the Supreme Court was able to strike down the provisions of the urban land ceiling laws, which were unfair and unjustified. This decision established that while the right to property was no longer a fundamental right, it could nonetheless be safeguarded through the use of other rights under the Constitution of India, particularly the right to equality.
There has been a massive takeover of land by the State for various reasons since the 2000s. Such acquisitions, mainly for building dams or industries, have caused the removal of millions of poor peasants and traditional communities such as indigenous forest dwellers, cattle grazers, fishermen, and tribal people. In the year 2009, Public Interest Litigation (PIL) was filed in the Supreme Court in the case of Sanjiv Agarwal v. Union of India (2009) Writ Petition (c)No.464/2007. The Petitioner prayed to strike down the Forty-Fourth Constitutional Amendment and revive the right to property as a fundamental right. Large-scale displacements on account of the setting up of Special Economic Zones (SEZs) and other projects such as the Narmada dams, besides land “acquisition” agitation in Singur and Nandigram, were explained by the petitioner as the main reasons for this demand. The argument of the petitioner was based on the decision made in I. R. Coelho (Dead) By Lrs vs. State Of Tamil Nadu & Ors (2007) wherein it was held that fundamental rights are a part of the basic structure of the Constitution and hence cannot be removed, as propounded in the case of Kesavananda Bharati case. Since the right to property was a fundamental right under Article 19(1)(f) at the time when the court rendered its decision in the Kesavananda Bharti case, its removal, therefore, by the operation of the Forty-Fourth Amendment, was said to negate the basic structure of the Constitution and thus, unconstitutional. However, in 2010, the Supreme Court dismissed the petition without addressing its merit and noted that the petitioner had no locus to challenge the amendment as a public interest litigant since he did not suffer any loss as a result of the repeal of the right to property from the fundamental rights. Furthermore, the Court observed that to entertain the petition would entail revisiting settled constitutional case laws relating to property rights.
In recent years, the Supreme Court of India has reiterated the requirements of ‘public purpose’ and ‘compensation’ under Article 300A of the Constitution of India. In the case of K.T. Plantation Private Ltd vs. State of Karnataka (2011), the Supreme Court of India asserted that ‘the rule of law’ reigns supreme in India and found that the Court is not powerless when a person is deprived of his property for a private purpose, with or without compensation. Therefore, where a State acquires property, it must satisfy both the provisions of ‘public purpose’ and ‘compensation’ provided under Article 300A.
Likewise, in the case of Super Cassettes Industries Ltd vs. Music Broadcast Private Ltd (2012), the court reiterated the requirement of ‘public purpose’ and ‘compensation’ in relation to intellectual property. The Court also acknowledged that ‘copyright’ is classified as ‘property’ under Article 300A. The Court stressed that the compulsory licencing provisions under Section 31 of the Copyright Act, 1957, must meet the test of valid law and must be in the public interest. In Narayan Prasad vs. State of Chhattisgarh (2017), the High Court declared that the right to property as per 300-A of the Constitution of India is not only a constitutional or legal right but a human right as well. It stressed that this right can only be taken away by the authority in law.
The Supreme Court of India in the case of Bajranga (Dead) by Lrs. vs. The State of Madhya Pradesh (2021) directly touched upon the provisions of Article 300A of the Constitution of India, which relate to the right to property. This particular case involved a dispute in which the government asserted that there was surplus land that belonged to it, although there was no surplus land at all. The Supreme Court clarified that although the right to property ceased to be a fundamental right, it remains protected under Article 300A of the Constitution. The Court noted that any deprivation of property rights has to be in accordance with due legal process. This means that the government cannot unilaterally claim ownership or take property, without following established legal procedures. Consequently, since the government failed to prove that there was surplus land as they had proposed, the Court concurred that the actions of the government were unjustified.
Also, in the case of Ravindran vs. The District Collector, Vellore District (2020), the Court upheld the authority of law and ruled that the government is empowered to interfere with a citizen’s right to property only when it is done in accordance with the law. The decision made in this case was further upheld by the Madras High Court in the case of Jayalakshmi & Ors. vs. State of Tamil Nadu (2021). The court asserted that the right to property is closely connected with the right to life as provided under Article 21 of the Constitution of India. This implies that any action of the state that affects the right to property of an individual has to comply with legal procedures established within the broader constitutional principles relating to the right to life.
Right to property under Article 300-A of the Indian Constitution
After the 44th Amendment Act, the right to property is no longer included in Part III of the Constitution of India. For this reason, an individual whose rights under Article 300-A are violated cannot directly approach the Supreme Court under Article 32 of the Indian Constitution. The remedy under which they can avail is through Article 226 or in civil courts. Initially, Article 31(1) provided that no person shall be deprived of their property except by the authority of law. This provision was replaced and reappeared by Article 300-A, which states that no person shall be deprived of their property except by the authority of law. This implies that a law is required in order to deprive a person of his property.
Every democratic country in the world acknowledges that before the government can infringe on one’s right to property or demand that a person relinquish his property to another, there must be a law and that law is valid. The ability to limit, reduce, or change property rights is only possible through the legislative process. Thus, any executive action that acquires a person’s property without the sanction of law cannot be considered constitutional. In Article 300-A, the word ‘law’ means the valid law. In the case of Jilubhai Nanbhai Khachar vs. State of Gujarat (1994), the Supreme Court made it clear that when referring to the ‘law’ in Article 300-A, only a law made by the Parliament or the legislature of a state or a legal rule or a statutory order is implied. This interpretation emphasises that only those laws passed through proper legislative processes, or the statutory orders that have a force of law, can justify actions that affect property rights under Article 300-A.
Applicability of Article 300A of the Indian Constitution
The scope of Article 300A was discussed in detail by the Madhya Pradesh High Court in the case of Vijay Mahobiya vs. The State Of Madhya Pradesh And Others (2022). In this case, a petition was filed under Article 226 of the Constitution of India which was heard by a single Judge, Hon’ble Justice Milind Ramesh Phadke. The petitioner claimed that the banks sought to unlawfully oust him from a property that he legally owned in breach of the DRT’s order that the status quo be maintained as to the auction. The Government Advocate, on the other hand, submitted that the petitioner had already pursued his remedy in a civil suit seeking an order of injunction to prevent interference with his peaceful possession. The advocate also argued that the current petition was not maintainable given that the petitioner was already seeking this remedy under the civil suit. While discussing the applicability of Article 300A the Court observed that Article 300A protects personal rights and is also a weapon in the hands of the state to take up infrastructure and other developmental projects. It was clarified by the Madhya Pradesh High Court that Article 300A is not intended to be used against the actions of an individual and that there are civil remedies in place for such circumstances. Article 300A is especially designed to prevent state interference, especially in cases where property is taken to benefit the public.
The position of Article 300-A of the Indian Constitution was explained through the judgement of the Supreme Court of India in the case of Kolkata Municipal Corporation vs. Biman Singh (2024), where the Article was discussed along with the deletion of the right to property as a fundamental right through the 44th Constitutional Amendment. Article 300-A provides that nobody can be taken out of his property without following due process of law. Accordingly, the judgement insists that the phrase ‘authority of law’ in Article 300-A means something beyond the power of the state to take land for its own use. It also highlights that the processes and procedures of the law form an essential part of this authority. They mean that any deprivation of property must be through legal means and this of course, has to be in accordance with a valid legislation.
Justice Narasimha, in the above-mentioned case, pointed out that the challenge in Article 300A is not met by a state merely having a ‘law’ that empowers it to take property. It requires compliance with strict legal processes that protect people’s rights and preserve their liberties as stipulated in the Constitution. Such an interpretation helps to guarantee that the State cannot simply take away someone’s property without complying with the legal procedure and the rule of law. In this case, the court enumerated seven procedural rights that belong to a private individual, which define what the right to property entails and what the state must uphold before depriving an individual of their property:
- the citizens possess the right to be informed through a notice in relation to the intention of the state to take their property.
- the citizens have a right to be heard, which entails that the state must pay attention to any objection that the citizens may have concerning the acquisition.
- citizens have the right to receive a reasoned decision from the state with regard to the acquisition of their property.
- the state is required to prove that the acquisition is for the purpose of public use and interest.
- citizens have the right to receive fair compensation for their property from the state.
- the state has to carry out the acquisition process effectively and in accordance with stated timelines.
- citizens have the right to the conclusion of the acquisition process, which means taking physical control of the land by the state.
The learned judge of the Apex Court Justice K. S. Narasimha, highlighted that the acquisition process is absolutely perfected only when the state physically takes possession of the acquired land. This means that citizens are protected throughout the process of acquisition of property under Article 300-A of the Constitution of India.
Conclusion
The fundamental rights that are enshrined under Part III of the Constitution of India are considered to be essential for the holistic development of an individual. One of such rights is the right to property. After a detailed discussion, the Constituent Assembly decided to incorporate the right to property within the list of fundamental rights. However, the right to property is no longer a fundamental right but a constitutional right, which means that the State can make laws depriving a person of his right to property and such a law can not be challenged on the grounds that other fundamental rights are challenged. The conflict between an individual’s right to property and the State’s obligation to conduct projects for public welfare led to the abolition of such a right from being recognised as a fundamental right. Despite such removal, the Supreme Court has always been consistent in upholding the right to property as an essential right for the survival of an individual. Consequently, the Supreme Court, in numerous judgements, has held that the right to property, though not a fundamental right, can only be curtailed by following the due process and procedure established by a valid law and shall always be ascertained on the principles of the rule of law. The scope of the definition of ‘person’ and ‘property’ under Article 300A of the constitution has been expanded by the Supreme Court decision. The applicability of the right to property under Article 300A is not just limited to the citizens of India but also non-citizens and the term ‘property’ encompasses within itself both tangible and intangible property along with any interest thereupon.
Frequently Asked Questions (FAQs)
Is pension a property under Article 300A of the Constitution?
Yes. As per the Bombay High Court decision in the case of Shri Naini Gopal vs. The Union of India and Ors. (2020), the pension payable to the employee upon superannuation constitutes a property under Article 300A of the Constitution of India hence any deprivation of such property by the State has to be in accordance with law. The court by upholding the rule of law with regard to the acquisition of property by the State held that the Bank’s actions were arbitrary, unreasonable, unauthorized, and in clear violation of the principles of natural justice, as they did not follow due process, including corresponding about the accuracy of the pension or providing an explanation for the deduction. In another case of Vishwanath Vishwakarma vs. the State of UP (Through Prin. Secy. Deptt. of Revenue Lko.) and Ors. (2023) The Allahabad High Court reaffirmed that pensions and post-retirement benefits are considered property under Article 300A of the Constitution of India and cannot be revoked without legal authority.
Whether a right to property under Article 300A available to the non-citizen?
Yes. According to the decision of the Supreme Court in the case of Lucknow Nagar Nigam & Others vs. Kohli Brothers Colour Lab. Pvt. Ltd. & Others (2024), the right to property under Article 300A is also available to the person who is not a citizen of India. The Supreme Court in this case which involved the issue regarding the status of ‘enemy property’ clarified the definitions of ‘people’ and ‘property’ under Article 300A of the Constitution of India. The Supreme Court while deciding upon the issue expanded the meaning of the terms ‘property’ and ‘person’ by observing that “The term ‘person’ in Article 300A includes not only legal or juristic persons but also non-citizens of India. The term ‘property’ is broad, encompassing both tangible and intangible property, as well as all rights, titles, and interests in a property.” The court further emphasised that the word ‘person’ used in Article 300A is also applicable to a person other than an Indian citizen. For instance, if property held by a custodian is transferred from an enemy, the real owner even if it is an enemy has the ownership right. When such property is acquired by the government they must compensate the owner of the property.
What is the meaning of property?
In ordinary usage, property means anything that belongs to a person or that is owned by him/ her. Examples of such assets may be tangible property such as land, buildings, and other personal property, or intangible property such as intellectual property, and digital assets, among others. The word ‘property’ derives from the Latin term ‘proprietas’ which refers to owning something. The term highlights the relationship between owning and possessing something. Property and ownership can be considered to be related concepts, with ownership referring to the legal right or title of an object of property. In the case of R.C. Cooper vs. Union of India (1970), the Supreme Court of India interpreted the concept of property within the legal framework. The court stated that “property” includes both tangible items, like land and furniture, and intangible items, such as copyrights and patents. However, the Court’s recent approach has shifted. It now considers property in the context of Article 21 of the Indian Constitution, recognizing that liberties related to owned and possessed property also exist under this provision.
What is the difference between a fundamental right and a constitutional right?
While both fundamental rights and constitutional rights are enshrined in the Indian Constitution, there are distinctions in terms of rights granted, the degree of protection offered, and the extent to which these rights can be enforced. The fundamental rights are guaranteed under Part II of the Constitution from Article 12 to 35. They are classified as fundamental because the rights specified under Part III are considered essential for the development of an individual. These rights include the right to equality, freedom of speech, and protection from discrimination among others. The fundamental rights are directly enforceable by the judiciary which means that an individual can directly approach the Supreme Court under Article 32 or High courts under Article 226 in case of infringement of these rights. These rights are more difficult to amend as the Parliament can only amend them without changing the basic structure of the Constitution as was held in the case of Kesavananda Bharati. Moreover, certain rights provided under Part III of the Constitution can be restricted during a state of emergency, including the freedom to move any court for enforcement under Article 359 of the Constitution of India.
Constitutional rights on the other hand are rights that are also provided under the Constitution of India though they are not categorized under Part III as being the fundamental rights. They are incorporated in other parts of the Constitution and offer a wider range of protection for example the right to property as provided under Article 300A of the Constitution. These rights are protected by the Constitution but are not considered as essential as fundamental rights. While constitutional rights are protected and may be enforced through the judiciary, a different procedure usually has to be followed, which is often through the High Courts under Article 226. They are relatively easier to alter by Parliament than the fundamental rights because they do not fall under core rights protected by the Constitution’s basic structure doctrine. In general, constitutional protections are not abrogated during a state of emergency unless the state provides otherwise.
Why did the Constituent Assembly add the right to property as a fundamental right under the Indian Constitution?
The Constituent Assembly envisioned a legal system that was a unique blend of democratic socialism and liberal democracy. This system was expected to guard personal freedoms, liberties, and property while also working towards social and economic reform, including land reform and resource distribution. However, there was a conflict between protecting property rights and introducing a policy on land redistribution for the purpose of creating a more equitable society. This led to debates within the Constituent Assembly and ultimately, a balance between these two competing objectives was established. As a result, Article 19(1)(f) and Article 31 were adopted to establish the right to property as a fundamental right under Part III of the Constitution of India.
What does the removal of the right to property from a fundamental right to a constitutional right mean?
The removal of the right to property from being a fundamental right to a constitutional right means that the level of protection as well as the remedies open to the affected individuals when this right is infringed has changed. As a fundamental right, the right to property enjoyed higher protection under Part III of the Constitution of India, allowing individuals to directly challenge violations in the Supreme Court under Article 32, ensuring robust and immediate enforcement. The state before interfering with the right to property had to face stricter standards and scrutiny of the courts. However, as a constitutional right under Article 300A of the Constitution of India, any violation of this right has to be challenged in the High Courts under Article 226. This means that the state enjoys comparatively more relaxation in terms of regulating or even exercising its power to expropriate property for public interests.
What was the status of property rights in pre-independence India?
Under the pre-independence scenario, the relevant provisions regarding ownership and disposal of property existed in the Government of India Act of 1935, which was considered an oppressive law. More specifically, Section 299 of the aforementioned Act conferred protection of property to all classes of people, both the zamindars and the peasants. This section ensured that people’s property could not be exploited or misused without fair compensation. The Act thus offered legal protection to property owners and deemed that the government could only acquire property from individuals in the interest of the public. This protection was important so that property could not be taken away from owners in an unfair manner and if it was, it had to be done fairly and rightfully.
References
- https://ccs.in/sites/default/files/2022-10/History%20of%20Fundamental%20Right%20to%20Property%20in%20the%20Constitution.pdf
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4643401#:~:text=Initially%2C%20the%20right%20to%20property,300A%20as%20a%20legal%20right.
- https://www.academia.edu/32738323/RIGHT_TO_PROPERTY_UNDER_THE_CONSTITUTION_OF_INDIA_AND_REFORMS_PROJECT_SUBMITTED_TO?sm=b
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