Right to Property as Legal Right in India

The right to property has always been an important aspect of civilised society. In India, this right has gone through a major transformation since Independence. What began as a fundamental right has now become a legal and constitutional right. 

This change was not accidental. It was the result of conscious policy decisions, landmark judicial pronouncements, and a need to balance individual rights with the wider objectives of social justice and economic development.

Historical Background: From Fundamental Right to Legal Right

Original Protection under the Constitution

When the Constitution of India came into effect in 1950, the right to property was recognised as a fundamental right. There were three important provisions:

• Article 19(1)(f): Guaranteed all citizens the right to acquire, hold and dispose of property.
• Article 31(1): Stated that no person could be deprived of their property except by authority of law.
• Article 31(2): Stated that if property was acquired by the State, the person had to be compensated.

This framework offered strong protection to private property. However, it soon became clear that this could hinder the government’s plans for land reforms, redistribution of land, and other measures needed for social welfare and economic development.

Amendments to Balance Public and Private Interest

The need for land reforms and removal of inequality led to several amendments:

• First Amendment (1951): Added Article 31A and Article 31B. Protected certain laws relating to land reforms from being challenged in courts. Introduced the Ninth Schedule.
• Fourth Amendment (1955): Limited the scope of judicial review regarding compensation paid for acquired property.
• Twenty-fifth Amendment (1971): Changed the word ‘compensation’ to ‘amount’ and further reduced judicial interference.

These changes were made to allow the State to acquire land for public purposes without getting entangled in endless litigation.

The Turning Point: 44th Constitutional Amendment

The real game-changer was the 44th Amendment Act, 1978. This amendment removed the right to property from the list of fundamental rights altogether.

• Articles 19(1)(f) and 31 were deleted.
• Article 300-A was introduced in a new chapter (Part XII) of the Constitution.

Article 300-A reads:
“No person shall be deprived of his property save by authority of law.”

With this, the right to property was no longer a fundamental right, but a constitutional and legal right. This meant it was still protected, but not with the same force as before.

Constitutional and Legal Status: What Does it Mean?

Not a Fundamental Right Anymore

After the 44th Amendment, citizens cannot directly approach the Supreme Court under Article 32 for violation of the right to property. Instead, the remedy is to file a writ petition before the High Court under Article 226.

Still a Constitutional and Legal Right

Despite being removed from Part III (Fundamental Rights), the right to property remains in the Constitution under Article 300-A. This means:

• The State cannot take away a person’s property without passing a law.
• Such a law must be valid and follow proper procedure.
• The right is also recognised in various laws, such as the Transfer of Property Act, 1882.

Scope of Article 300-A

• The law must provide the process for acquiring or taking away property.
• Executive action alone is not enough; there must be a statute.
• The law should not violate other constitutional provisions, especially Article 14 (right to equality), Article 19 (right to certain freedoms), and Article 21 (right to life and personal liberty).

Landmark Cases: Shaping the Right to Property

A K Gopalan v. State of Madras (1950)

One of the earliest cases in A K Gopalan v. State of Madras, this dealt with the State’s power to take property for maintaining public order. The court upheld the power of the State to regulate property in the larger public interest.

Kesavananda Bharati v. State of Kerala (1973)

This is the famous “basic structure doctrine” case. Though not directly about property rights, it established that Parliament cannot alter the basic structure of the Constitution. The Kesavananda Bharati v. State of Kerala judgement influenced later amendments relating to property.

Minerva Mills Ltd. v. Union of India (1980)

Here, the Supreme Court struck down some parts of the 42nd Amendment that gave sweeping powers to Parliament. The court in Minerva Mills Ltd. v. Union of India also observed that even after the removal of the fundamental right to property, the right continues as a constitutional right under Article 300-A.

Jilubhai Nanbhai Khachar v. State of Gujarat (1995)

The Supreme Court made it clear that the right to property is not part of the basic structure of the Constitution. This means Parliament can amend or regulate this right as long as it does not violate the basic structure.

Recent Judgements: Upholding Constitutional Protection

In recent years, courts have reiterated that the State must act lawfully and fairly while depriving a person of property.

• In the Bengaluru-Mysuru Infrastructure Corridor Project case (2024), the Supreme Court held that the right to property is a constitutional right, and adequate compensation must be paid. The court emphasised that compensation should reflect the current market value, considering inflation and delays.
  
• In State of West Bengal & Ors. v. Achinta Roy (Calcutta HC, 2024), the High Court held that the State has a duty to safeguard the property rights of citizens and pay compensation for wrongful dispossession.

Practical Aspects of the Right to Property as a Legal Right

How Can Property Be Acquired?

• Property can be acquired by the government through laws passed by Parliament or State legislatures.
• Statutory authorities can also acquire property if empowered by law.
• The process must follow the “procedure established by law” and cannot be done by executive order alone.

Is Compensation Always Required?

• Unlike the earlier situation, Article 300-A does not explicitly guarantee compensation.
• However, in most acquisition laws (like the Land Acquisition Act), compensation is provided.
• The adequacy of compensation cannot always be challenged unless the law itself is arbitrary or violates other constitutional rights.

Legal Remedies

• If a person is deprived of property without authority of law, they can approach the High Court under Article 226.
• The Supreme Court cannot be approached directly under Article 32, as property is not a fundamental right.
• If the acquisition is illegal, the court can order restoration of property or payment of compensation.

Balancing Public Good and Individual Rights

• The change in the status of property rights reflects a shift towards social and economic development.
• The State can now pursue land reforms, redistribute land, and acquire property for public projects with fewer legal hurdles.
• However, courts have ensured that the right to property is not rendered meaningless. Arbitrary or unfair deprivation can still be challenged.

Conclusion

The Right to Property in India today stands as a legal and constitutional right, not a fundamental one. While this means it no longer enjoys the highest level of protection, it is still a significant safeguard for individuals against arbitrary State action.

The transformation of this right highlights India’s commitment to balancing private property rights with the larger public interest. Courts have played a vital role in ensuring that this balance is maintained and that the State acts within the bounds of law.

For citizens, it is important to remember that while the right to property can be regulated, it cannot be taken away without due process. Compensation must be fair and the procedure must be just. If these are violated, remedies are available through the High Courts.