Present position of Right to Property – UPSC Notes – Indian Polity

Originally, the right to property was one of the seven fundamental rights in Part III of the Constitution. It was covered by Article 19(1)(f) and Article 31. Article 19(1)(f) ensured that every citizen had the right to buy, keep, and sell property. Article 31, on the other hand, guaranteed this right to every person, whether they were a citizen or not. It stated that no one could take away a person’s property unless it was done according to the law. The government could take someone’s property only if it was for a public purpose and if they compensated the owner for it.

Since the commencement of the Constitution, the Fundamental Right to Property has been the most controversial. It has caused confrontations between the Supreme Court and the Parliament. It has led to a number of Constitutional amendments, that is, 1st, 4th, 7th, 25th, 39th, 40th, and 42nd Amendments. Through these amendments, Articles 31A, 31B, and 31C have been added and modified from time to time to nullify the effect of Supreme Court judgments and to protect certain laws from being challenged on the grounds of contravention of Fundamental Rights. Most of the litigation centered around the obligation of the state to pay compensation for the acquisition or requisition of private property.

Therefore, the 44th Amendment Act of 1978 abolished the right to property as a Fundamental Right by repealing Article 19(1)(f) and Article 31 from Part III. Instead, the Act inserted a new Article 300A in Part XII under the heading ‘Right to Property.’ It provides that no person shall be deprived of his property except by authority of law. Thus, the right to property still remains a legal right or a constitutional right, though no longer a fundamental right. It is not a part of the basic structure of the Constitution.

The right to property, as a legal right (different from Fundamental Rights), has the following implications:

(a) It can be controlled, meaning it can be limited, shortened, or changed without needing a change in the Constitution, just by a regular law passed by Parliament.

(b) It safeguards private property from actions by the government’s executive branch but not from actions taken by the legislative branch.

(c) If this right is violated, the affected person can’t directly approach the Supreme Court under Article 32 (which covers constitutional remedies and writs) for help. Instead, they can approach the High Court under Article 226.

(d) There’s no guaranteed right to compensation if the state acquires or requisitions private property.

Even though the right to property as a fundamental right has been removed, there are still two provisions in Part III that ensure the right to compensation when the government takes away private property. These situations where compensation is required are:

(a) When the State takes over the property of a minority educational institution (Article 30). (b) When the State acquires the land that someone is personally cultivating, and the land is within the legal limits (Article 31A).

The first provision was added in 1978 through the 44th Amendment Act, and the second provision was added in 1964 through the 17th Amendment Act. Additionally, Articles 31A, 31B, and 31C continue to be exceptions to the fundamental rights.

FAQs on the Right to Property in the Constitution

1. Q: What was the significance of Article 19(1)(f) and Article 31 in the Constitution regarding the right to property?
   • A: Article 19(1)(f) ensured every citizen’s right to buy, keep, and sell property, while Article 31 guaranteed this right to every person, citizen or not. Article 31 specified that property could only be taken away according to the law and for a public purpose, with compensation to the owner.
2. Q: Why did the Fundamental Right to Property become a controversial issue in the Constitution?
   • A: The Fundamental Right to Property led to confrontations between the Supreme Court and Parliament, resulting in several Constitutional amendments (1st, 4th, 7th, 25th, 39th, 40th, and 42nd). These amendments added or modified Articles 31A, 31B, and 31C to counter Supreme Court judgments and protect certain laws from challenges based on Fundamental Rights.
3. Q: How did the 44th Amendment Act of 1978 change the status of the right to property in the Constitution?
   • A: The 44th Amendment Act abolished the right to property as a Fundamental Right by repealing Article 19(1)(f) and Article 31. Instead, it introduced Article 300A under the heading ‘Right to Property,’ making it a legal or constitutional right, though no longer a fundamental one.
4. Q: What implications does the right to property as a legal right have on its control and protection?
   • A: The legal right to property can be controlled by regular laws passed by Parliament without needing a constitutional amendment. It safeguards private property from the executive branch but not from legislative actions. Violations of this right cannot be directly taken to the Supreme Court but can be addressed through the High Court under Article 226.
5. Q: Even after the removal of the fundamental right, are there provisions ensuring compensation when the government acquires private property?
   • A: Yes, two provisions in Part III ensure compensation when the government takes away private property. These are: (a) When the State takes over the property of a minority educational institution (Article 30), added in 1978 through the 44th Amendment Act, and (b) When the State acquires land personally cultivated within legal limits (Article 31A), added in 1964 through the 17th Amendment Act. Articles 31A, 31B, and 31C remain exceptions to fundamental rights.

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