TAMIL NADU NATIONAL LAW UNIVERSITY, TIRUCHIRAPPALLI

Submitted for the internal assessment for the course of

B.Com. LL.B. (Hons.) – Fourth Semester
Academic Year: 2020-2021

Subject: Property Law

Analysis of Constitutional Battle on Property Rights in India

Submitted to:
Ms. Mrinmoyee Mukherjee
Assistant Professor (Law),
TNNLU
Submitted by:
Chandan Kumar
BC0190009
CHANDAN KUMAR
Reg No. BC0190009
II – B.Com. LL.B. (Hons.)
Tamil Nadu National Law University
Tiruchirappalli
Tamil Nadu – 620 027

DECLARATION

I, Chandan Kumar, Register Number BC0190009, hereby declare that this Research Paper/
Research Project work entitled “Analysis of Constitutional Battle on Property Rights in
India” has been originally carried out by me under the guidance and supervision of Ms.
Mrinmoyee Mukherjee, Assistant Professor, Tamil Nadu National Law University,
Tiruchirappalli – 620 027. This work has not been submitted either in whole or in part of any
Degree/Diploma at any University.

Place: Tiruchirappalli

Date: 31-03-2021

(Chandan Kumar)
 TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................ 1

RESEARCH PROBLEM .................................................................................................................... 3

RESEARCH QUESTIONS ................................................................................................................. 3

RESEARCH OBJECTIVES ................................................................................................................ 4

RESEARCH METHODOLOGY .......................................................................................................... 4

REVIEW OF LITERATURE ............................................................................................................... 4

RESEARCH HYPOTHESIS ............................................................................................................... 5

THE EVOLUTION OF RIGHT TO PROPERTY – PRE-CONSTITUTIONAL ERA ........................................ 5

THE EVOLUTION OF RIGHT TO PROPERTY – POST-CONSTITUTIONAL ERA....................................... 7

CONCLUSION ............................................................................................................................. 12

BIBLIOGRAPHY ........................................................................................................................... 13
INTRODUCTION

The Right to property is perceived as a fundamental right in various countries and is

outlined as a basic right that every individual is entitled to in the Universal Declaration of
Human Rights, 1948. It is perhaps the most contentious rights, often looking for a new
precise description that is tailored to a country’s political, cultural, and socioeconomic
circumstances. Although all democratic constitutions provide for fair limitations on an
inherent right to property for the general welfare and social interest, every nation faces the
dilemma of determining where the line needs to be drawn between state intervention in an
individual’s property rights.1

Basic property rights enjoy a unique distinction. The concerned right was not only the second
most controversial clause in the drafting of the constitution but also the most revised clause.
It is also the only fundamental right that was finally abolished in 1978. Unlike other rights to
life, freedom and equality can be applied equally to all people at least in theory, so the
particularly controversial nature of property rights emerges, because the protection of
property rights inevitably leads to the unequal distribution of existing property rights.

The legal and constitutional provisions with regard to property rights in India have always
attracted disputes between the government and the courts. The basic matter of disputation
between the two is on the issue of “legality” or “illegality” of such an acquisition, and the
legislature has constructed it a question of the way in which legal power is exercised. Via
several constitutional laws and amendments, the right to property in India has grown from
time to time.

The perceptions and conceptions of property and wealth in India are somewhat distinct from
those in Western countries. Since the modern property structure, as we understand it,
emerged from specific innovations in Europe during the seventeenth and eighteenth centuries,
its principles were not globally relevant. The concept of property rights is another
socioeconomic field where the solution is both complicated and critical. The concept of
property, as it has evolved across nations and is expressed in our legal systems, has become
so ingrained in all of us that we often take it for granted failing to understand how
complicated social creations rather than self-evident premises define what constitutes
property as well as what rights property ownership bestows.

1
Madhumita Datta Mitra, Evolution of Property Rights in India, Land Policies in India 35 (Springer 2017).

1
This appears to be the unseen explanation of why and how the right to property has become
so contentious in India nowadays and why the government is encountering unexpectedly
strong opposition from unusual sources when intending to acquire property in the country.
The state’s decision to enforce the Eminent Domain over subordinate claims on the property,
as well as the ensuing dispute, is specifically a representation of a cultural clash.

In every state, property rights are a source of conflict. However, India’s property rights,
which was declared a fundamental right by the virtue of Article 31 of the Indian Constitution
in 1950, seems to have had a remarkably turbulent political and legal background. It is a
widely debated clause in the Constituent Assembly, the most amended provision of the
Constitution, and that the only fundamental right that has ever been abolished. The
Constitution’s origin is widely recognised to have arisen from an intellectual institutional
dispute between a Parliament pursuing democratic socialism and a judiciary protecting
individual liberties. Having a look at the Constitution and its underlying amendments through
the context of “law and development” presents a criticism of the existing dispute and an
alternate view of Article 31’s past. The strengthening of power in the leading spheres in the
Constitution enabled the country to streamline the industrial and agricultural economic
relations through the property rights system established during the colonial period by
reorganizing the productive capitalist line. The Constitution aided in the accumulation and
development of the powers of the state, the formation of the connection among nation,
economy, and citizen, as well as the formulation of India’s private property rights
framework.2

Indian Parliament enacted a new legislation the Land Acquisition, Rehabilitation, and
Resettlement Act in September 2013 which eliminates the Land Acquisition Act of 1894,
which has a range of drawbacks, including a lack of clarification on the topic of resettlement
and relocation for those who have been affected.3 Following massive farmer movements, the
Land Acquisition, Rehabilitation and Resettlement Bill of 2011 was adopted. Since
independence, there have been intermittent disputes over the impotence of compensation for
damages of land’s socio-cultural value.4

2
Rashmi Venkatesan, The Evolution of the Right to Property in India: From a Law and Development
Perspective, 14(1) LAW AND DEVELOPMENT REVIEW 2021: DE GRUYTER 273 (2020).
3
Elizabeth Roche, Rajya Sabha clears Land Acquisition Bill, LIVEMINT (Sep. 04, 2013, 10:57 PM),
https://www.livemint.com/Politics/f4bDFe8N9OFU30PFIUdYVJ/Rajya-Sabha-to-vote-on-land-acquisition-
Bill-today.html.
4
Nihal Joseph & Shrinidhi Rao, The Land Acquisition Bill, 2011: One Step Forward and Two Steps Back, 5(2)
NUJS LAW REVIEW 219 (2012).

2
Various communities and farmers have been marginalized since the Land Acquisition Act of
1894 was enacted to pave the way for the housing interests of moderate groups for the sake of
development and advancement. Protests are driven against the relationship between the State
and dominant private entities that absolves them of rights and sovereignty on their own
lands.5The Land Acquisition, Rehabilitation and Resettlement Act, 2013 attempts to end the
conflict over forced acquisition and compensation for the same.6

It is fascinating to remember that perhaps the right to property has prompted the most
changes to our Constitution and since then has served as the foundation for a few of our
judiciary’s most laudable and landmark rulings. The aim of this paper is to chronicle the
legislative and judicial fiasco that culminated in the right to property from our fundamental
rights chapter of the Constitution. This paper delves deeper into the major concerns about the
right to property in India, taking into account the country’s constitutional history and growth.

RESEARCH PROBLEM

The precedent on property rights that has developed over the years is that property rights are
still the basic fundamental rights of mankind, but from a constitutional point of view, this is
only a legal right. Unlike other basic fundamental rights, the scope of property rights has
been continuously reduced through various constitutional amendments and thus has been
continuously reduced. In fact, property rights no longer exist in India.

Since the state and the central government have promulgated huge legislation to control
property rights, many important constitutional lawsuits have emerged in the field of property
rights. Based on the history of the Constitution and the development of Indian property rights,
this article analyses the law and the main issues related to property rights.

RESEARCH QUESTIONS

1. Whether the present Land Acquisition, Rehabilitation, and Resettlement Act, 2013
actually redress the resettlement and other grievances of the people regarding property?

2. What the fundamental reasons that resulted in the making of the right to property a
constitutional right by the apex court of India?

5
Walter Fernandes, Rehabilitation Policy for the Displaced, 39(12) ECONOMIC AND POLITICAL WEEKLY (2004).
6
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013, No. 30, Acts of Parliament, 2013 (India).

3
RESEARCH OBJECTIVES
• To present a detailed analysis of the historical evolution of property rights in India.

• It aims to scrutinize the property rights of individuals under the Constitution and various
statutes.

• To understand the provisions of the Land Acquisition, Rehabilitation and Resettlement

Act, 2013.

RESEARCH METHODOLOGY

The present research is primarily theoretical and partly research into social law or empirical
studies. It includes description, debate, claim, and opinion and its aim is to look at property
rights in India through the prism of the social and legal environment and to highlight the
characteristics of the Land Acquisition, Rehabilitation, and Resettlement Act, 2013, as well
as its benefits and disadvantages. The information was gathered from published and
unpublished sources such as libraries, public records, posts, blogs, and secondary data.

REVIEW OF LITERATURE

The Property Rights in India is something that has great importance to procure knowledge
about the historical development of laws, legal systems, governance, and polity. Various
authors and researchers have studied the topic to acknowledge the constitutional battle on
property rights. To achieve the objectives of the research I will be using various research
papers along with internet articles and blogs to grasp the exact information about the topic.
Some of the articles are as follows:

1. The Indian Constitution: Property Rights and Social Reform by H.C. L. Merillat (1960): -
This review pointed out the procedure and intentions of Constitution drafters behind
inserting some safeguards for private property. And it also highlights the comparison of
property rights with other Constitutions such as the British and American constitutions.

2. The Fundamental Right to Property in the Indian Constitution by Namita Wahi: - This
literature gives a glimpse about the concept of property rights starting from the Colonial
rule and its evolution over time as a fundamental right and then to a constitutional right.

4
3. Right to Property and Compensation under the Indian Constitution by M.L. Singhal
(1995): - This article provides a broad view of laws and cases relating to property
acquisition in India over time. A detailed study of events and case law has been
performed in this article to show the evolution of jurisprudence with regard to the right to
property.

4. The Fading Right to Property in India by Gopal Sankaranarayanan (2011): – This

literature gives a detailed knowledge about property rights in India, how it was introduced
as a fundamental right in the Constitution, and how it was eroded by numerous
constitutional amendments and judicial pronouncements.

RESEARCH HYPOTHESIS

At the time of adoption of the Constitution, the right to property was given the status of a
fundamental right i.e., a birth right. However, through sequences of constitutional
amendments, its ‘fundamental’ right status was abolished. Attempts have been made by the
judiciary to safeguard its status as a fundamental right. And the hypothesis here is that its
‘fundamental’ right status should be restored.

THE EVOLUTION OF RIGHT TO PROPERTY – PRE-CONSTITUTIONAL ERA

The Land Acquisition Act of 1894 was the first piece of legislation enacted to incorporate the
idea of land acquisition. The Land Acquisition Act has been widely used by the state (with
appropriate amendments) to expropriate vast swaths of land for private enterprises in the
name of public welfare. This legislation states that anyone whose property was to be
confiscated would be entitled to compensation.7 This same Act was based on the premise that
the application of eminent domain authority could not be challenged as long as the “Public
Purpose” existed. As a result, it was one of the most significant considerations in deciding
whether or not compulsory taking was legitimate. Even though it was unclear what
constitutes a “public purpose”. As a result, since the concept of “public purpose” remained
vague, any acquisition could be questioned on its legitimacy.

The Indian legal system has developed its very own method of identifying the public purpose.
The Apex Court in a case outlined that: “Expression ‘public purpose’ is not capable of a

7
R. Rajesh Babu, Constitutional Right to Property in Changing Times: The Indian Experience, 6(2) VIENNA
JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW 213 (2012).

5
precise definition and has not a rigid meaning. It can only be defined by a process of judicial
inclusion and exclusion. In other words, the definition of the expression is elastic and takes
its colour from the statute in which it occurs, the concept varying with the time and state of
society and its needs. The point to be determined in each case is whether the acquisition is in
the general interest of the community as distinguished from the private interest of an
individual.”

In court further in a case noted that “whether the purpose for which land was needed was a
public purpose or not was for the Government to be satisfied about and the declaration of the
Government would be final subject to one exception, namely that where there was a
colourable exercise of the power the declarations would be open to challenge at the instance
of the aggrieved party.”8 The same idea was being repeated by the Hon’ble Supreme court in
another case namely Laxman Rao Bapurao Jadhav v. the State of Maharashtra.9

In addition, the administration’s inconsistencies and provision of discretionary authority

attributed to the executive misusing the authority to satisfy private interests. In civil court, the
insufficiency of the compensation paid may be questioned. But on the other hand, the Act
restricted the judiciary’s authority to decide on questions of “just” compensation by issuing
the Civil Court specific instructions in deciding compensation, as well as what matters should
be overlooked when assessing compensation.10

Owing to constitutional limitations, the abuse of the Law, which enabled the authority to
acquire land with the lawful authority, could not be prevented by the courts. This was
particularly true in cases of compensation. Compensation for annexation became a hot topic
after 1894, particularly in the context of land reform. The imperial tax revenue scheme gave
the zamindars a great deal of control over the land. It really was unclear how properties
would be assured with little or no offer of compensation that will only favour rightful owners.
This indicates that in India, there existed no such concept as a “right to property” as a
fundamental right.

The right to property was protected under Section 299 of the Government of India Act, 1935,
which included provisions preventing confiscation without compensation and acquisition for

8
Somawanti v. State of Punjab, [1963] 2 SCR 774.
9
Laxman Rao Bapurao Jadhav v. State of Maharashtra, (1997) 3 SCC 493.
10
Tom Allen, Property as a Fundamental Right in India, Europe and South Africa, 15(2) ASIA-PACIFIC LAW
REVIEW 193 (2007).

6
a non-public purpose. The right to private property is also acknowledged in Article 17 of the
Universal Declaration of Human Rights (1948), of which India is a signatory. The
Constituent Assembly looked at different nations’ constitutions to see which ones guarantee
fundamental rights. The debates in the Constituent Assembly over the draught Article
19(1)(f) and Article 31 obviously demonstrate that the drafters of our Constitution thought
the property was essential enough to include it in the chapter of fundamental rights.
Following recommendations from certain representatives of the Constituent Assembly, the
clause on the liberty of “trade and intercourse”, which was initiated in the chapter on
fundamental rights, was transferred to a different component (Article 301). It is worth noting
that similar proposals about the right to property were turned down.

The compensation mechanism was specified in the Government of India Act, 1935, which is
something the Constituent Assembly agreed to hold.11 Protest movements against obtaining
agricultural land, forced migration, deprivation of livelihood, and inequitable compensation
arose as a result of the administration’s systematic abuse of its authority to acquire lands.
Enforced land acquisition, compensation, and property rights wars went on before the “Right
to Property” was recognized as a fundamental right. Article 31 provided that “no person shall
be deprived of his property save by the authority of law” and limited the State’s excessive
dominance authority.12

THE EVOLUTION OF RIGHT TO PROPERTY – POST-CONSTITUTIONAL ERA

When the Constitution was enacted in India, the “Right to Property” was considered a
“fundamental right”. Article 19 (1)(f) and Article 31, which safeguard the fundamental right
to land, have been the topic of frequent and controversial judicial interpretations and statutory
intervention since the Constitution’s inception in 1951. The Apex Court’s earlier rulings
revealed that it regulated the process of acquisition under the Constitution two of the
following specific elements: public purpose and compensation. The Supreme Court had to
choose between two conflicting rights: the state’s ability to obtain property and the person’s
fundamental right to property. It took a pessimistic outlook of the state’s ability of forced
acquisition, favouring the protection of property rights and the provision of fair
compensation. In light of Articles 14, 19, and 31 of the Constitution, the Supreme Court

11
The Government of India Act, 1935.
12
INDIAN CONST. art. 31.

7
delivered a range of judgments declaring certain laws and related state acts unconstitutional.13
Then again, the Legislature passed a range of amendments to nullify the impact of Supreme
Court rulings that restricted the State’s discretionary authority.

State of West Bengal v. Bela Banerjee14 was the case that prompted the first amendment to be
incorporated into the constitution. It called into dispute the constitutionality of a law that
allowed for the purchase of land for purposes that render public welfare but restricted
compensation to the market value of the property as of 31st December 1945. The Court ruled
that imposing a compensation limit based on a specific date rather than the market value of
the property at the time of purchase was unfair and contrary to the intent of the law. As a
consequence, two additional articles, 31A, and 31B were added to the very first amendment
Act.15 According to Article 31A, no legislation providing for land acquisition shall be
considered invalid on the basis that it is conflicting with or negates any of the rights granted
by the Constitution.16 In Shankari Prasad Deo v. Union of India, zamindars questioned the
constitutionality of this provision.17 However, the appeal was unsuccessful, and the Act’s
validity was approved by the Court. Subsequently, in 1954, the Fourth Amendment Act was
passed, which attempted to clarify the meaning of Articles 31A and 31B by stating that the
judiciary could not address these issues of adequacy of compensation and specifying what
“compulsory acquisition of land” meant.18

Despite the fact that the Very first Amendment had repealed most of these constitutional
issues, the Apex Court nevertheless released a statement on the main concerns posed by
counsel, and this was the first serious case to indicate the extent of Article 31 and the
exceptions passed by the First Amendment.19

Even after the passage of this Amendment, the court ruled that a statute absolving an
individual of his property may be judged on its reasonableness. The Seventeenth Amendment
Act of 1964 also contained a specific clause for compensation for land taken from small
farmers that must at a minimum value equivalent to land’s market value.20It was questioned

13
State of Bihar v. Maharajadhiraja Sir Kameshwar, (1952) 1 SCR 889.
14
The State of West Bengal v. Bela Banerjee, AIR 1954 SC 170.
15
The Constitution (First Amendment) Act, 1951.
16
INDIAN CONST. art. 31A.
17
Shankari Prasad Deo v. Union of India, AIR 1951 SC 458.
18
The Constitution (Fourth Amendment) Act, 1955.
19
Shruti Rajagopalan, The Nehruvian years, THINK PRAGATI (Aug. 7, 2017),
https://www.thinkpragati.com/opinion/1982/the-nehruvian-years/.
20
The Constitution (Seventeenth Amendment) Act, 1964.

8
in the case of Sajjan Singh v. the State of Rajasthan21; however, the court ruled the
amendment’s validity. Ultimately, Golaknath v. State of Punjab called into question the
constitutionality of the first, fourth, and seventeenth amendments.22 The Apex Court ruled the
abovementioned amendments to be illegal, but the laws passed as a result of them remain in
force. It also stated that the State should not deprive citizens of their fundamental rights by
enacting legislation, whether in the course of constituent or legislative power.

The Apex Court ruled in the case of R.C. Cooper that the adequacy of compensation and the
legislative standards for determining the amount of compensation are reviewable. 23 The
above resulted in the 25th Amendment Act of 1971, which supplanted the phrase “amount”
for the word “compensation” and added a new clause, Article 31C.24 It stipulated that any
legislation passed in addition to responding to the Directive Principles set out in Clauses (b)
and (c) of Article 39 is not unconstitutional on the grounds that it deprives or restricts
Fundamental Rights. The 25th Constitutional Amendment included this article to address the
challenges posed by legal pronouncements in implementing the Directive Principles in Part
IV. It gave any law that was passed to enforce the instructions in clauses (b) and (c) of Article
39 protection from any lawsuit based on a violation of Article 14, 19, or 31.

Even though Article 31(2) to (6), which connoted requirements for compensation whenever
property was procured, have indeed been removed from the Constitution Statute books, the
duty to pay an appropriate sum of compensation to the property owner still exists. The court
ruled in the case of Basantibai Fakirchand Khetan v. the State of Maharashtra that, despite
the elimination of Art. 31(2), the State is still obligated to pay a sufficient sum to the
confiscated holders.25 Furthermore, as stated by the Apex Court in the popular Maneka
Gandhi case, the legislation providing for property deprivation must be fair, just, and
reasonable.26

Finally, in Kesavananda Bharati v. the State of Kerala, the legality of the 25th amendment, as
well as others, was questioned in the Supreme Court.27 All land-related amendments were
upheld by the Court, and the existence of property rights as a “basic feature” of the

21
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
22
Golaknath v. State of Punjab, AIR 1967 SC 1643.
23
Rustom Cavasjee Cooper v. Union of India, (1970) 3 SCR 530.
24
The Constitution (Twenty-Fifth Amendment) Act, 1971.
25
BasantibaiFakirchandKhetan v. State of Maharashtra, AIR 1984 Bom 366.
26
Maneka Gandhi v. Union of India, (1978)2 SCR 621.
27
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

9
Constitution was dismissed. Nonetheless, the right to obtain “amount” (compensation) was
regarded as a fundamental right.

The Apex Court shot away quickly the expanded interpretation of Article 31C in the
judgment given in Minerva Mills Ltd. v. Union of India.28 The Court decided that perhaps the
expansion of article 31C’s protection to all Directive Principles was just outside Legislature’s
amending power under article 368 as it undermined one of the constitution’s basic or
essential features, judicial review, by granting all Directive Principles supremacy over
Fundamental Rights in articles 14 and 19.

The 44th Amendment Act dealt the decisive hit to property owned by individuals privately by
repealing Article 19(1)(f) effectively ending the right to property as a fundamental right and
relegating it to a constitutionally protected right under Article 300A of the Constitution.29 The
44th Amendment, on the other hand, has provided two alternatives to the above legal
principle. To begin with, if the property obtained corresponds to a minority-owned
educational facility/institution, the State shall ensure that perhaps the sum allocated or
decided under such legislation for the procurement of such property does not limit or revoke
the right of minorities “to establish and administer educational institutions of their choice”
ensured by Article 30(1).

Furthermore, if the State intends to purchase any property and any land situated must be
owned by an individual engaged in personal cultivation and such property is beyond the
ceiling limit permissible to him under any law as it stands in effect, or any housing or
infrastructure therein or appurtenant thereto, the State would pay compensation at market
price for those properties, dwelling, or infrastructure acquired.

To comprehend why the Indian Parliament took such a decision, it is important to remember
that even before India’s independence, there were four major systems in place: The
Zamindari system, the Ryotwari system, the Mahalwari system, and the Jagirdari system.
Significant portions of land were in the hands of zamindars, tenants, and other like citizens,
resulting in an uneven distribution of land and widening the disparity of wealth.

Ever since the right to receive “amount” has been recognised as a fundamental right, and
there have been new controversies between both the legislature and the judicial branch over

28
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
29
The Constitution (Forty-Fourth Amendment) Act, 1978.

10
what constitutes a “just” amount, whether enforceable or nonjusticiable, specifically in the
context of state land acquisition for purposes that are meant for public needs under the Land
Acquisition (Amendment) Act, 1985. “Public purpose” is another contentious expression, for
the sake of which a huge number of dwellings have been evacuated from their property,
regardless of whether they provide “just amount” and any resettlement facilities. As long as
the two basic principles of “fair compensation” and “public purpose” are not followed, the
judicial department will intervene. In the case of Greater Noida Industrial Development
Authority v. Devendra Kumar30, for example, the land was said to have been purchased for
public purposes, but the farmers were only paying a pittance. The property, on the other hand,
was purchased for the purpose of building apartments for residents. The Apex Court ruled
that this was not a “public purpose”, and thus struck down such arbitrary exercise of power.

Nonetheless, the question of resettlement, inadequate compensation, and no mechanism for

relocation seems to have been a source of protests for a long time. In the name of progress,
people have been affected, resulting in the deprivation of shelter and loss of livelihood. The
landmark decision in this field is Narmada Bachao Andolan v. Union of India31, which
involved the building of a dam that resulted in the migration of tens of thousands of people
with no rehabilitation or resettlement policies in place. It provided the parliament with
additional power to pass legislation restricting people’s property rights. Anyone did not have
the freedom or locus standi to file a petition in the Supreme Court under Article 32 for
violation of the right to property because it was no more a fundamental right and only a very
constitutional right. He may either sue the state or file a petition with the High Court under
Article 226. This limits an individual’s options in the event of a violation of his right to
property.

The Land Acquisition, Resettlement, and Rehabilitation Act of 2013 was passed as a result of
all this. In instances of forced land acquisition32, the Act raises the compensation owed, as
well as allowing for relocation and resettlement awards in circumstances of displacement.33
The Act also aims to narrow the scope of a “public purpose” by including a far more

30
Greater Noida Industrial Development Authority v. Devendra Kumar, (2011) 12 SCC 375.
31
Narmada BachaoAndolan v. Union of India, (2000) 10 SCC 664.
32
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 § 27-30 r/w First Schedule.
33
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 § 31-33.

11
comprehensive list of them.34 As a result, the Land Acquisition, Resettlement, and
Rehabilitation Act have enhanced the specifications concerning the use of land for public
welfare and compensation that were debilitated by the weakening of the right to property in
the Constitution.

Under the current circumstances, when a large number of relocations and land expropriation
are carried out for the sake of development, the Apex Court has realized the deficiency of this
fundamental right, and the right has been invoked to overturn the land ceiling legislation. It is
perceived that the right to property should be restored as a fundamental means to govern the
poor’s basic and proprietary rights against forced land acquisition. Sanjeev Agarwal v. Union
of India, a Public Interest Litigation filed before the Supreme Court, appealing to negate the
Forty-fourth Amendment and restore the right to property as a fundamental right. The
Supreme Court, on the other hand, rejected the petition not just on the merits, but on the
grounds that perhaps a stronger case could be made.35

CONCLUSION

Initially, it was believed that the purported personal rights, such as voting rights, freedom of
expression, and personal liberty, had a greater place in the progression of ideals than property
rights. Thus, the judiciary was much keener to throw away laws that breached these rights
than those that violated property rights.

However, through the various judicial pronouncements and constitutional amendments, the
legislature and judiciary have shown that these property rights are also important for the
development of the populace and need some consideration. It has been observed that the right
to property is a contentious matter, legislature and judiciary have always stepped in to deal
with the matter and the current scenario of the right to property is a result of these multiple
interventions.

Though the connection among property rights and liberties must not be ignored, it is
important to keep in mind the link between property and cultural identities, integrity,

34
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 § 2(1) r/w § 3.
35
J. Venkatesan, Court rejects plea to make property a fundamental right, THE HINDU (Oct. 19, 2010, 01:45
AM), https://www.thehindu.com/news/national/Court-rejects-plea-to-make-property-a-fundamental-
right/article15783836.ece.

12
wellbeing, and a sense of community, particularly for those whose lives have been
inextricably linked to property for generations.

Besides that, the constitutional principles concerning property rights do provide an

outstanding component of how India has effectively interacted with the troublesome issue of
ensuring more widespread distribution of economic development among a large and
impoverished population while not hindering the production processes upon which the
development is based.

BIBLIOGRAPHY

1. H. C. L. Merillat, The Indian Constitution: Property Rights and Social Reform, 21

OHIO STATE LAW JOURNAL 616 (1960).

2. Namita Wahi, The Fundamental Right to Property in the Indian Constitution,

HARVARD LAW SCHOOL; CENTER FOR POLICY RESEARCH (INDIA); SSRN (2015).

3. M. L. Singhal, Right to Property and Compensation under the Indian Constitution, 1(2)
J.T.R.I JOURNAL 1 (1995).

4. Gopal Sankaranarayanan, The Fading Right to Property in India, 44(2) VERFASSUNG

UND RECHT IN ÜBERSEE / LAW AND POLITICS IN AFRICA, ASIA AND LATIN AMERICA 220
(2011).

5. R. Rajesh Babu, Constitutional Right to Property in Changing Times: The Indian

Experience, 6(2) VIENNA JOURNAL ON INTERNATIONAL CONSTITUTIONAL LAW 213
(2012).

6. Tom Allen, Property as a Fundamental Right in India, Europe and South Africa, 15(2)
ASIA-PACIFIC LAW REVIEW 193 (2007).

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