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Every citizen is protected and guaranteed certain human rights, such as the right to free speech and expression, the right to equality, and other fundamental rights that are provided on the basis of employment, education, the protection of life and personal liberty, or the prevention of exploitation, among other things. In certain instances, the right to property might be considered an inherent human right. The Indian Constitution’s right to property has a unique history that might be defined as an extensive conflict of provisions between the legislature and the judiciary. The right to property was once considered a fundamental right in India, but it was altered to just a constitutional right by the 44th amendment of the Indian Constitution, which included the provision of Article 300 (A).
Because of the excessive possession of land by zamindars and tenants, the legal status of the right to property was changed from a fundamental right to a constitutional right in order to avoid the situation of zamindars and other landowners misusing the right to property as a fundamental right to oppose state measures to acquire land and implement land ceiling laws in India.
Salmond defines property as an entity that includes all the legal rights of an individual, whereas another eminent jurist, Austin, has defined property as the greatest right of enjoyment known to the law.
In R C Cooper vs. Union of India, the Supreme Court defined property as a term that includes both corporal and incorporeal things. The term “property” in light of Article 300A includes land, money, contracts, and interests in property. In State of Kerala v. Padmanabhan Nair,the apex court held that the right to pension is a form of property.
Property under Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 is property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property. Property under Section 2(11) of The Sale of Goods Act, 1930 means the general property in goods and not merely a special property.
Right to Property as a Fundamental Right
The precursor of the constitution was the Government of India Act, 1935. The act was in force for 15 years, and then it was replaced by the constitution of India. Section 299 of the Government of India Act states that “No person shall be deprived of his property in British this act guaranteed the rights of all the people. It did not matter if that person was a zamindar or a peasant. This section ensured compensation, stating that sufficient compensation must be provided. In Rustom Cavasjee Cooper vs. Union of India, the Supreme Court held that the compensation must be equal to the monetary value of the property acquired as guaranteed by the constitution. “Land includes immovable property of every kind and any rights in or over such property”. The primary goal of the new constitution was to attain social justice. Fundamental rights are the backbone of the constitution, and back then, while making the constitution; two privileges were added that dealt with the right to property. Article 19(1) (f): an individual’s right to own, acquire, and dispose of property. Article 31 reproduced in section 299 of the Government of India Act states that no one’s property may be taken from them unless they obtain legal authority to do so. The right to property was made available to any person, including non-citizens. As this right is a fundamental right, a person has the power to move to the Supreme Court for the violation of the right to property.
Then the 44th amendment act came in and abolished article 19(1) (f) and article 31 and instead established article 300A, and just like that, the fundamental right to property was made into merely a constitutional right.
Why was Right to Property removed from the Fundamental Rights?
Property rights were first established in India in the 1950s. The right to property was initially established in India in response to the presence of the ‘zamindari system’ during the British rule, which was abolished in favour of establishing a suitable mechanism for claiming ownership of property. Prior to the 44th amendment, India’s Constitution guaranteed the right to property as a basic right under Part III of the Constitution.
Due to multiple incidents of abuse of the right to property, the change was made, and it now encompasses provisions that give protection but not in the same way that they used to provide as a fundamental right.
Then It started from the constant battle between parliament and the judiciary. In Kameshwar Singh v. the Province of Bihar, the high court of Bihar held that the Bihar Management of Estates and Tenures Act, 1949 was unreasonable in not providing compensation and said that the act was unconstitutional. The High Courts of Lucknow and Allahabad issued orders restraining the government from acquiring lands under the state’s land reform law. Then, through the first amendment, articles 31A and 31B were added, which had a neutralising effect on the judicial interpretations. It stated that any law that is made regarding the acquisition of any estate or right by the government or management of any property or creates a merger of two or more companies, receives the benefit of any agreement or lease or license, will not be void or null until it has received assent from the president.
In the State of West Bengal v. Bela Banerjee, it was held that the owner of the property must be paid the full market value of the property. Then through the 4th amendment act, 1955, article 31 (2) was added, and it stated that no law shall question the ground that the compensation provided by law is not adequate.
Right to Property as a Constitutional Right
The right to property was once considered a fundamental right in India, but it was elevated to just a constitutional right by the 44th amendment of the Indian Constitution, which included the provision of Article 300 (A). Due to this change, violations of rights to property cannot be directly challenged in the Supreme Court, and due to the removal of article 31, the state is now not obligated to compensate anyone whose land has been taken under the authority.
The Doctrine of Adverse Possession
The British rulers brought the legal doctrine of adverse possession in land law to the Indian real estate markets and legal systems. The term “adverse possession” refers to obtaining a property in unexplained ways. However, it is a widely used and recognized approach in India.
It is a legal doctrine that permits a person to claim legal title to someone else’s land after possessing or residing on it for a lengthy period of time. In India, a person who is not the original owner of a property becomes the owner if he has been in possession of the property for at least 12 years and the actual owner has not taken legal action to evict him during that time.
Compensation under Right To Property
Before the 44th amendment act, the government had to pay any person who they had acquired land from under article 31. But due to the repealing of this article now, the government need not compensate. There are two instances where the government has to compensate;
- When the state acquires the property of a minority educational institution under Article 30,
- The state acquires land under personal cultivation held by a person and the land is within statutory sealing limits,
The Principle of Eminent Domain
Article 31 was the epitome of the principle of eminent domain. Article 31(1) offered protection against deprivation of private property without following the legal procedure, and Article 31(2) gave the safeguard of compensation needing to be given in the case of such taking of property. This included both moveable and immovable property.
The principle states that our land can be used by the government for public purposes such as road and bridge development. In such circumstances, however, the property owner must be adequately compensated. The fundamental components of this concept are that the property is taken for the public good and that the acquired property is compensated.
Only Article 31(1) was finally restructured by Article 300-A, with the remaining subclasses, including the promise of compensation in Article 31(2), being removed. As a result, the Constitution now allows a law to take private property without having to pay compensation.
Right to Property as a Human Right
The high court in Narayan Prasad v. State of Chhattisgarh stated that the right to property under Article 300-A of the Indian Constitution is not merely constitutional or legal, but also a human right that can only be taken away by the authority of the law.
The Supreme Court ruled in Vidhya Devi v. The State of Himachal Pradesh & Ors. that the right to possess private property is a human right that cannot be denied. The party who takes away one’s right to property must have legal authority. In this case, the plaintiff was compensated for the state’s improper purchase of land.
In Kesavananda Bharati & others v. State of Kerala, it was held by the Supreme Court that the basic structure of the constitution must not be changed. The Constitution’s essential framework precludes Indian sovereignty, secularism, equality, and liberty. It also bans Parliament from exploiting its powers for religious purposes or to satisfy its power lust. Fundamental rights were not explicitly recognized as the fundamental structure of the constitution, but the removal of the right to compensation through the 44th amendment act resulted in discrimination, which violated equality. We have seen the instances where compensation can be provided; there is discrimination between majority and minority communities, and between personal holders of land and actual tillers. Equality is considered the basic structure of the constitution. Hence, the 44th amendment was unconstitutional as it violates the basic structure principle laid down by the apex court.
The 44th Amendment has had a severe impact on the Constitution itself, dealing several blows to its basic structure.
This article is authored by Shivanshi Shukla, student at Institute of Law Nirma University.
What is a Property?
Property is of any kind, whether movable or immovable, tangible or intangible, it includes land, money, contracts, and interests in property.
Is right to property a fundamental or constitutional right?
By 44th Amendment Act 1978 of the Constitution of India, a new article namely 300A was inserted and titled as Right to Property. Presently right to property is a constitutional right under Article 300A.
What are the provisions for compensation under right to property?
There are two instances where the government has to compensate;
- When the state acquires the property of a minority educational institution
under Article 30,
- The state acquires land under personal cultivation held by a person and
the land is within statutory sealing limits,
Is right to property also a human right?
Yes, as per Supreme Court judgment in Vidhya Devi v. The State of Himachal Pradesh & Ors., the apex court stated that that the right to possess private property is a human right that cannot be denied.