Broad Overview: The notion of 'Property' under the Indian Constitution

Abstract

Right to Property, which grants Indian citizens the unrestricted ability to acquire, dispose, and hold properties, is enshrined in the Indian Constitution. The right to property was once under the ambit of fundamental rights, but with the evolution of time and law, the right to property has been made a Constitutional right instead of a fundamental right. In this article, we will cover the meaning of property, constitutional provisions related to the right to property, and the current legal status of the right to property.

Keywords- Property, fundamental rights, ownership, public, private property.

Introduction

Prior to its amendment in 1978, the Indian Constitution included the right to property as a fundamental right. It was covered by Article 19(1)(f) and Article 31. By repealing the Articles from Part III, the 44th Amendment Act of 1978 eliminated the right to property as a Fundamental Right. In India, Article 300A of the Indian Constitution guarantees the right to property and it is essential to understand that this right has some limitations imposed by the State and that it is not unrestricted. Although it is no longer a fundamental right, the right to property is still a legal or constitutional right. It is not a part of the basic structure of the Constitution.[1]

Meaning of property

A ‘property’ refers to anything upon which a person or a business has legal rights. Generally speaking, we consider it to be any land we own. However, the term "property" should be given a broad definition in accordance with the Supreme Court's interpretation of Article 31. According to the court, it should cover all commonly recognised categories of interests that exhibit traits or hallmarks of property rights.[2] Under Article 300A, "property" refers to more than just land.[3] Both corporeal and incorporeal rights are included. Intangible items, on the other hand, include things like stocks and patents, whereas tangible items, among others, include things like furniture, cars, industrial equipment, and real estate.

Also, Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as: “Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.[4]

Section 2 (11) of the Sale of Goods Act, 1930 defines property as: “Property” means the general property in goods, and not merely a special property.[5]

Fundamental Right to Property (Constitutional Provisions)

The right to property was included as a fundamental right in the Constitution of India under Article 19(1)(f) and Article 31. However, these provisions were subject to certain limitations, and the state was empowered to make laws imposing reasonable restrictions on the exercise of these rights in the interest of the general public.

Article 31- Article 31 provided certain safeguards against the compulsory acquisition of individual properties. These modifications aimed to give the government more authority over the seizure and requisitioning of private property.

Article 19 (1)(f)- ensures that any person’s right against his property remains protected, earlier Indian residents were given the right to purchase, possess, and dispose of their property under Article 19(1)(f), the 44th Amendment Act of 1978 deleted the Right To Property by repealing article19(1) (f).

Article 26 of the Constitution, which was also a part of the chapter on fundamental rights recognized religious denominations' property rights and stated that "Subject to public order, morality, and health, every religious denomination or any section then shall have the right-"

(a) to found and maintain institutions for charitable and religious purposes;

(b) to handle its own business regarding religion;

(c) to possess and purchase real estate, both mobile and immovable; and

(d) to manage the property in compliance with the law.

Right to property: Transformation from fundamental to legal right

Pre-independence era- The right to property was not specifically acknowledged as a fundamental right prior to India's 1947 independence from British colonial rule. However, the colonial government's established legal frameworks, such as the Land Revenue Code and other rules governing landownership and land use, placed restrictions on property rights.

Post-independence era- The inclusion of the right to property as a fundamental right was hotly contested by those who created the Indian Constitution. In the end, they made the right to own property a fundamental right protected by Article 31 of the Constitution, which grants the freedom to acquire, possess, and dispose of property.

The right to property was originally included as a fundamental right in the Constitution of India under Article 19(1)(f) and Article 31. However, it was later repealed as a fundamental right by the 44th Amendment Act of 1978. This amendment changed the status of the right to property from a fundamental right to a legal right.[6]

44th Amendment - The right to property was removed from the list of Fundamental Rights by the 44th Amendment Act of 1978. With the aid of the 44th Amendment, Article 31 and Article 19(1)(f) were eliminated from Part III – Fundamental Rights of the Constitution. The Supreme Court reminded the State Government that before taking someone else's private property, the State had to follow the law and proper procedure. This shall be done in accordance with the provisions of Article 300A.

Scope of right to property under article 300-A

Article 300-A of Part XII of the Constitution of India establishes it as a legal right. Only legal authority may take away someone's property, according to Article 300 A. Only when it follows the proper legal procedure can the State seize a citizen's property. Article 300 A implies the obligation to pay compensation even though it does not expressly state it.[7]

In other words, forcibly evicting someone from their private property without following due process is against both their constitutional and human rights under Article 300 A of the Constitution. In Hari Krishna Mandir Trust v. the State of Maharashtra and Others[8] the Supreme Court ruled that the appellant could not be deprived of his strip of land, which was a private road, without the authority of law, which if allowed would be a violation of Art. 300A of the Constitution of India.

Current Legal Status of the Right to Property

Following the ratification of the 44th Constitutional Amendment in 1978, the Right to Property was no longer regarded as a fundamental freedom. Everyone is permitted to use it as a human right, according to the Indian Constitution. According to the Supreme Court of India, The government cannot take possession of a property without first following the law and the proper legal process.[9]

Recently, in the case of Bajrang v. State of Madhya Pradesh[10] the Supreme Court held that the “right to property is still a constitutional right under Article 300A of the Constitution” in a situation where the government claimed ownership of excess land despite there being none. Only in accordance with the legal process may a right be denied. The right to property under Article 300-A of the Indian Constitution is not only constitutional or legal, but also a human right, and it can only be taken away by the authority of the law.

Conclusion

The repeal of the right to property as a fundamental right in India was a significant constitutional amendment that took place through the 44th Amendment Act of 1978. However, it is essential to note that the right to property still exists as a legal right under Article 300A of the Indian Constitution, ensuring that individuals are not deprived of their property arbitrarily. The amendment, therefore, represents a delicate balance between individual rights and the state's authority, reflecting the complexities of governance and the pursuit of the greater good for Indian society.

REFERENCES

[1] Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596

[2] https://en.wikipedia.org/wiki/Right_to_property

[3] Right to Property: Its Evolution and Constitutional Development in India, 48 JILI (2006) 489

[4] THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988

[5] THE SALE OF GOODS ACT, 1930

[6] https://www.livelaw.in/search?search=right%20to%20property

[7] Wahi, Namita. (2015). The Fundamental Right to Property in the Indian Constitution. SSRN Electronic Journal. 10.2139/ssrn.2661212.

[8] Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356

[9] https://www.jetir.org/papers/JETIR1901C18.pdf

[10] Bajranga v. State of M.P., 2010 SCC OnLine SC 100

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.

Vibhanshu Srivastava is a penultimate-year student at Bharati Vidyapeeth New Law College, Pune.