The right to property can be considered more or less a natural human right. It is a very vast debatable topic that is prevalent in different countries and union. In India, right to property was once considered as a fundamental right, but later it was scrapped down and became merely a constitutional right by the 44th amendment of the constitution, under the provision of Article 300A. Though it seems very simple, the right to property under the Indian Constitution has its own unique history, which can be considered a long war of provisions between the legislature and the judiciary of India.
“If you are to suffer, then you should suffer in the interest of the Country”.
The regime of property rights in India started in the 1950s. The constitution has guaranteed the right to property as a fundamental right. Over time, there were several misuses of the right to property and hence today it covers far weaker protection than it was at first. Property rights in India were first introduced to remove the zamindari system that was there during the British era and since, India got its Independence, so it really needed a proper system for claims over the property.
Now, when the government and the ministers decided to remove the Zamindari system by curtailing the property rights under the Indian Constitution, it cannot be said that they were wrong or they acted against the nation’s interest. It is crystal clear these men were attempting to shackle the institutional setup created by history. However, the fact that they actually opted a way that crude, i.e. to abridge the right to property of all individuals instead of those some Zamindars, is the decision they took wrong.
This thing resulted in a tug of war between the parliament and the judiciary over a few succeeding decades. The parliament was in view to bring an amendment which will weaken the property rights and make interference of judiciary as null and void.
The motive behind it was so that the government can claim any property for its own purpose. But, again the judiciary was also making decisions to maintain the property rights of the individuals. This tussle ended in 1978 with the 44th amendment of the constitution and giving weaker protection to the right to property. Through this amendment, the government brought the dead fundamental right back to life but in the form of a Constitutional right and not the same fundamental right.
Article 300A was inserted in the Constitution to fulfil this purpose and according to this provision, a person’s right to property cannot be abridged unless the government prescribes a reasonable procedure for the same by way of an enactment.
Pre-constitutional position of the right to property
Before the independence, the right to possess and dispose of properties was provided under the infamous Government of India Act of 1935. Section 299 of the 1935 Act assured protection of such right to all the individuals irrespective of whether they were zamindars or peasants. This safeguarded the people and ensured that there is no exploitation or abuse of their property without payment of adequate compensation. Also, the Act allowed the use of private property by the government only and for public purposes.
This can be easily understood with the help of the presently followed doctrine of eminent domain. Even when we have right to property as a Constitutional right under Article 300A and also as a statutory right under the Transfer of Property Act, 1881, the government is still entitled to use our property for public purposes like construction of roads, bridges, etc. Nevertheless, in such circumstances, adequate compensation must be paid to the property owner.
Article 17 of the Universal Declaration of Human Rights (1948) also recognises the right to private property and India is a signatory to that declaration. One thing is to be noted that the framers of our constitution paid sufficient focus to the right to property as they drafted article 19(1) (f) and Article 31 in the constitution.
There was a significant misassumption that the right to property, under the constitution, cannot be amended without the directive principles of the state policy. This assumption was later proved to be false in 1950 when there was a development of several Articles – 14, 19(1)(f), 19(5), 31, 32, 39(b) and (c), 226 and 265.
The conflict between the citizens’ right and the states’ power to implement the said principles are reconciled by putting limitations both on the right and the power. The power of the state is also subject to the laws laid down by the legislature and even the judiciary.
The state has powers to acquire any private land for the public purpose or its own purpose, but this is only possible after giving adequate compensation to the private individual/ party. Here, comes the actual catch. Can the government claim any property? Can it provide justice by giving a mere compensation to the parties? And the major question is the validity of the said laws of social control, taxation and acquisition is a justiciable issue. Shortly stated, under the said provisions, the right to property is subject to justiciable laws of social control.
Judiciary vs. Legislature
The debates over the right to property started with the first amendment act, 1951 which included article 31A and article 31B. Here, the parliament defined the term ‘estate’. Then there were many cases filed in the court regarding property issues. These all continued until the 44th amendment. But, did this chaos end after this amendment? The answer is definitely negative. This war is even continued today. Though the parliament has stopped after the last amendment the judiciary is still continuing its work when property issues are brought to court.
Let’s take a few examples. The most common and well-known land acquisition case resulting in the right to property cases is of the government taking private land for the construction of roads and metro. The road cases are somehow resolved but the major issues are regarding the metro. There are several cases in several courts of India regarding land acquisition for the metro.
On, one hand, the government motive is to make transport and communication better in a city, but with the sacrifice of some private parties; while the private parties are unwilling to do so. This is completely a debatable thing. The government tries to convince the parties to a contribution for the good of their nation, while the parties claim their right to property.
The above example can be considered in favour of the government as it is in good faith. But, again there are some instances where the government’s role in acquiring a property is a question. In 1967, the Himachal Pradesh government forcibly took four acres of land from a widow, Vidya Devi, to build road. Ms Vidya Devi was not educated so much. But, later she learnt about her property rights and she realised that she had not got the compensation. So, she filed a case seeking compensation in Himachal Pradesh High Court in 2010. Later, this case was moved to the Supreme Court.
The court delivered the decision in favour of Ms Devi by stating-‘A citizen’s right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law; the state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’. Grabbing private land and then claiming it as its own makes the state an encroacher’
Right to Property as the Supreme Right of All Rights
As stated earlier, the right to property enjoyed supremacy in the Indian Constitution as it was a fundamental right. This was because the makers of our constitution thought that property is an essential human right as there is right to vote, right of freedom and expression or right of personal liberty. Property is the most ambiguous of all categories.
It covers a multitude of rights, which have nothing in common, except that they are exercised by persons and enforced by the state. It is therefore idle to present a case for or against private property without specifying the extent or value thereof.
Arguments, which support or demolish certain kinds of property, have no application to others. Considerations, which are conclusive in one stage of economic development, may be irrelevant in the next. Though today, the right to property is a constitutional right, yet if we see this has to be something more than that.
Taking possession of the property is not easy for any individual. It definitely takes several efforts and difficulties as well. So, if it will be an injustice to anyone from whom the state acquired the land in a minute for its own purpose.
When you think about property and possessing property as a right, the first question that might pop up is ‘isn’t this the reason why everything started, the government and the people?’ When everything was in the state of nature, it was people’s duty to protect their own property from others but as time passed, it seemed impossible for people to do that themselves. This was the time when the Hobbes’ concept of leviathan, Locke’s idea of a social contract and Rousseau’s concept of a general will started catching fire.
According to Leviathan, the government is the ruler who is at the top of all other beings by virtue of his/her position and power. This was the first concept that explained the role of a ruler and ruled in society. However, it did not depict things in a way that people would like it or be able to cope with it. The social contract theory expounded by John Locke was more significant and relevant at this place. According to this theory, people entered into contracts with the government to allow them to protect their property in return of power and permission to rule and govern them.
This theory was again interpreted and expanded by Rousseau who took the liberty of adding the concept of “general will” to this theory. According to him, people signed a general will in favour of the government so that the property can be bestowed on the government and the government can protect them.
Now, it is categorical that property rights and its protection has been the talk of the town from ancient periods and is not a de novo concept and hence, the act of switching right to property from the fundamental right to the legal right was towards saving the rights of people along with curtailing the accumulated rights of zamindars. So, the right to property as a fundamental right is dead as of now, but the constitutional right must be there for justice.
- D. Basu, Commentary on the Constitution of India, vo. 6 and 8, Ed. 8, 2011.
- P. Jain, Indian Constitutional Law, 8th ed. 2018
- Andrew Heywood, Political Ideologies: An Introduction, 2012.
 Jawaharlal Nehru while speaking to the villagers who got displaced by the Hirakud Dam project in Odisha, 1948.
 Gopal Sankaranarayanan, “The Fading Right to Property in India.” Law and Politics in Africa, Asia and Latin America, vol. 44, no. 2, 2011, pp. 220–236.
 D.D. Basu, Commentary on the Constitution of India, vol. 6, Ed. 8, pp. 5617 – 18.
 A.M. Siddiqi, “Right to Property.” The Indian Journal of Political Science, vol. 13, no. 3/4, 1952, pp. 95–98.
 Shankari Prasad v. Union of India, AIR 1951 SC 458.
 Minerva Mills v. Union of India, AIR 1980 SC 1789.
 Vidaya Devi v. The State Of Himachal Pradesh, on 8 January 2020; Civil Appeal No. 6061/2020