Right to Property in India: From Fundamental Right to Constitutional Right

Introduction

The right to property has had a turbulent constitutional history in India. It began as a fundamental right, was progressively curtailed through constitutional amendments, and was ultimately removed from Part III of the Constitution. Understanding this journey is essential for any student of Indian constitutional law.

Original Position: A Fundamental Right

Under the original Constitution of India, the right to property was guaranteed as a fundamental right under two provisions:

• Article 19(1)(f): Right to acquire, hold and dispose of property
• Article 31: Protection against deprivation of property — compulsory acquisition only by law and with compensation

The Bank Nationalisation and Privy Purse Cases

The tension between Parliament's power to nationalise industries and the right to property came to a head in two landmark cases:

R.C. Cooper v. Union of India (1970) — The Supreme Court struck down the Banking Companies (Acquisition and Transfer of Undertakings) Act as unconstitutional for failing to pay adequate compensation.

Kesavananda Bharati v. State of Kerala (1973) — The Supreme Court held that Parliament could amend fundamental rights but could not destroy the "basic structure" of the Constitution.

The 25th, 42nd, and 44th Amendments

• 25th Amendment (1971): Replaced "compensation" with "amount" for property acquisition, limiting judicial review
• 42nd Amendment (1976): Placed several laws beyond judicial scrutiny
• 44th Amendment (1978): Deleted Articles 19(1)(f) and 31 entirely, removing the right to property from the list of fundamental rights

Current Status: Article 300A

The right to property now exists as a constitutional right (not a fundamental right) under Article 300A, which states:

"No person shall be deprived of his property save by authority of law."

The key differences from the earlier position:

• It is not a fundamental right — it cannot be enforced by filing a writ under Article 32 directly
• However, it can be enforced through Article 226 before the High Court
• There is no right to compensation guaranteed in the text
• But courts have read in requirements of fairness, public purpose, and reasonable compensation through judicial interpretation

Judicial Evolution Post-44th Amendment

Despite losing fundamental right status, the Supreme Court has significantly strengthened Article 300A through interpretation:

• Jilubhai Nanbhai Khachar v. State of Gujarat (1995): Held that deprivation must be for a public purpose
• K.T. Plantation v. State of Karnataka (2011): A Constitution Bench held that Article 300A imposes a duty on the state to pay fair and just compensation and the purpose must be public
• Indore Development Authority v. Manoharlal (2020): Clarified the law on lapsing of land acquisition proceedings under the 2013 Act

Practical Implications

Even today, Article 300A provides meaningful protection:

• The state must have legal authority to deprive a person of property
• The deprivation must be for a public purpose
• Fair compensation must be paid
• Procedure established by law must be followed

Conclusion

The evolution of the right to property reflects the broader tension in Indian constitutionalism between individual rights and the state's power to pursue socio-economic transformation. While it is no longer a fundamental right, Article 300A remains a significant protection against arbitrary state action.