RIGHT TO PROPERTY

INTRODUCTION

- Right to Property has been the most controversial right in our country.
- Right to Property: Fundamental Right or Constitutional Right?
- Early Provisions: Article 19(1)(f) and Article 31.
- Current Provisions: Article 31A, 31B, 31C and Article 300.
- Importance of Right to Property.

IN THIS SEMINAR: Discussion on Legislative and Judicial developments of Right to Property in India.
 MEANING OF ‘PROPERTY’

- Latin word: Propertritat ; French word: Proprious

- Guru Datt Sharma v. State of Bihar [1962 SCR (2) 292]: Tangible Property= Right to possess, enjoy, retain,
alienate and destroy.
- Recent Position: “Property” under Article 300A includes tangible property (ex. land, etc) as well and intangible
property (ex. Copyrights and other Intellectual Property).

KEY POINT
PROPERTY = TANGIBLE PROPERTY + INTANGIBLE PROPERTY
 CONCEPT OF EMINENT DOMAIN

- Eminent Domain: Inherent right of a Sovereign State to take private property for public use.

EMINENT DOMAIN
(Essentials)

“Public Use” “Compensation”

- Entry 42 List III: acquisition or reacquisition of property

- State of Bihar v. Kameshwar Singh [AIR 1952 SC 458]: Eminent Domain = Power of the sovereign to take
the property for public use without the owners consent by paying just compensation.
 PRE & POST CONSTITUTIONAL POSITION OF RIGHT TO PROPERTY
- Pre- Constitution Laws that secured Right to Property:
 Section 299 of the Government of India Act, 1935.
 Article 17 of the Universal Declaration of Human Rights.

- Post- Constitution Position

 Article 19(1)(f) : Right to acquire, hold and dispose off property.
Reasonable Restrictions on Article 19(1)(f): Article 19 (5)

 Article 31: No person shall be deprived of his property except by authority of law. Compensation to be paid to
a person whose property has been taken for public purpose.
 FURTHER POST CONSTITUTIONAL DEVELOPMENTS

- Agrarian Reforms introduced (Implementing Directive Principles of State Policy)

1. Intermediaries were abolished
2. Ceiling was fixed on landholdings
3. Cultivating tenant within the ceilings secured permanent rights
4. Share of landlord was regulated by law
5. Consolidation of scattered lands- Re adjustment of rural economy

Aim: To Abolish Zamindari System.

- Formed the basis for amending the Constitution several times.
 ARTICLE 31A
(Saving of laws providing for acquisition of estates, etc.)
 Added by the 1st Constitutional Amendment Act, 1951.
-Immunity to acquisition of estate and modification of rights by the state from Fundamental Rights under Art.
14, 19 and 31.
-An estate can be acquired or rights can be modified without paying compensation .
-Only exception: Such law should receive the assent of the President.

 Amended by the 4th Constitutional Amendment Act, 1955

- Scope of “estate” extended.
- Scope of Article 31A widened.
 ARTICLE 31B
(Validation of certain Acts and Regulations)
 Added by the 1st Constitutional Amendment Act, 1951 along with the Ninth Schedule.
-Immunity to the Acts and Regulations mentioned in the Ninth Schedule from Part III of the Constitution.
-Legislature can repeal or amend such Acts and Regulations.
-Validity of the Acts or Regulations can be examined by Courts on merits if not saved by Art. 31A

CASE: Shankari Prasad v. Union of India [AIR 1951 SC 455]

CASE: State of Bihar v. Kameshwar Singh [AIR 1952 SC 252]

 ARTICLE 31C
(Saving of laws giving effect to certain directive principles)
 Added by the 25th Constitutional Amendment Act, 1971.
-Immunity to acquisition of estate and modification of rights by the state from Fundamental Rights under Art.
14, 19 and 31.
-An estate can be acquired or rights can be modified without paying compensation .
-Only exception: Such law should receive the assent of the President.

 Amended by the 4th Constitutional Amendment Act

- Scope of “estate” extended.
- Scope of Article 31A widened.
 ARTICLE 300A

- Right to Property has been the most controversial right in our country.
- Right to Property: Fundamental Right or Constitutional Right?
- Early Provisions: Article 19(1)(f) and Article 31.
- Current Provisions: Article 31A, 31B, 31C and Article 300.
- Importance of Right to Property.

IN THIS SEMINAR: Discussion on Legislative and Judicial developments of Right to Property in India.
 TIMELINE OF THE LEGISLATIVE & JUDICIAL TUSSEL
INITIAL
Art. 19(1)(f) & Art. 31 25th Constitutional Amendment 42nd Constitutional Amendment
Art. 31C Scope of Art. 31C widened
Land Reforms

1st Constitutional Minerva Mills Case (1980)

Golaknath Case (1967)
Amendment
Kesavananda Bharati Case (1973)
Art. 31A, 31B and Ninth
Schedule Waman Rao Case (1981)
44th Constitutional Amendment
Art. 19(1)(f) and 31 struck
Shankari Prasad Case down.
4th Constitutional Amendment
(1951) Art. 300A added
Scope of Art. 31A widened
 CONCLUSION

- Right to Property has been the most disputed right in our country. It is diminishing since its inception.
- The Forty- fourth Constitutional Amendment Act, 1978 struck down Article 19(1)(f) and Article 31 from
Chapter III of the Constitution and introduced Chapter IV, Article 300A thereby reducing Right to Property
from being a Fundamental Right to a Constitutional Right.
- Effect:
1. Right to Property is now dealt with by ordinary laws.
2. Upon infringement of Right to Property, one can only invoke the jurisdiction of High Courts under Article 226
and not that of the Supreme Court under Article 32.
- Providing security to DPSP while safeguarding the Fundamental Rights is a necessity.
THANK YOU!