Right to property in India is a human right after it ceased to be a fundamental right, following the 44th amendment to the Constitution if India in 1978. To understand its significance and what it means for an individual, it is pertinent to know the difference between fundamental and human rights. But before proceeding, let us understand what property is.
What is property?
A property can be anything, tangible or intangible, over which a person has legal rights. While tangible property can include care, furniture, equipment, automobile, home, etc., intangible assets stocks and patents.
Difference between fundamental and human rights
Fundamental rights, considered essential for a normal existence, are stated in the Indian Constitution and enforced by law. On the other hand, human rights, considered essential to life, are safeguards for people to live with dignity and equality.
While fundamental rights are absolute and nobody can deny and deprive a person of those rights under any circumstances, human rights are limited and not absolute.
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Right to Property and its evolution in India
The right to property was earlier a fundamental right, under Article 19 (1) (f) and Article 31, both enshrined in Part-III of the Indian Constitution. Article 19 (1) (f) guaranteed Indian citizens the right to acquire, hold and dispose of their properties. On the other hand, Article 31 guaranteed the right against property deprivation.
However, problems with property being a fundamental right started to manifest itself when the Defence of India Act, which empowered the central government to requisite and acquire any immovable property in public interest, in accordance with the Requisitioning and Acquisition of Immovable Properties Act, 1952, which was enacted in 1962. When the authority started land acquisition, it became obvious that the state’s power to acquire it for public use could be curtailed, as the right to property was a fundamental right.
Right to Property as a fundamental right
Article 19 (1) (f) was repealed by the 44th Amendment of the Indian Constitution. Article 31 was also repealed by the Constitution (44th Amendment) Act, 1978, and a modified version of it was inserted as Article 300-A in Part-XII of the Constitution.
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Present legal status of Right to Property
The Right to Property in India ceased to be a fundamental right with the 44th Constitution Amendment in 1978. It is now a human right under the Indian Constitution.
Right to property under Article 300-A
In India, property is no more a fundamental right but a human right, after an amendment was made in this regard in 1978. To this effect, Article 300-A was introduced in the Constitution in 1978, which states that ‘no person shall be deprived of his property save by authority of law’.
It means that barring the state, no one can deprive a person of his property. The article empowers the state to take over private property of an individual for public welfare. However, the law prescribing the property acquisition needs to be valid and the acquisition of land by the state must be for public gain, explained the Madhya Pradesh High Court (HC), while deciding a case in May 2022.
According to the Madhya Pradesh HC, the article maintains a balance between the interest of property owners and the interest of the state.
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Right to own private property is a human right
According to the Supreme Court, a citizen’s right to own private property is a human right. The state cannot take possession of it without following the due procedure and the authority of law, it said. The state can also not trespass into a citizen’s private property and claim ownership through adverse possession.
Supreme Court on right to property
India’s apex court has shared many observations on property rights, stating that in a welfare state, authorities cannot take possession of it, without following due procedure and law. The top court has also said that the state cannot trespass into a citizen’s private property and claim ownership of the land under the pretext of ‘adverse possession’.
“A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser, i.e., a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The state cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens,” the Supreme Court (SC) said in January 2022, while giving its judgement in the case of Vidya Devi versus the State of Himachal Pradesh.
“The right to property may not be a fundamental right any longer but it is still a constitutional right under Article 300-A and a human right as observed by this court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and others. In view of the mandate of Article 300-A of the Constitution of India, no person is to be deprived of his property save by the authority of law,” the SC said, while delivering its judgement in the Hari Krishna Mandir Trust versus State of Maharashtra on August 7, 2020.
Similar observations have been made on the right to property in India by many high courts from time-to-time.
“No person shall be deprived of his/her property, save by the authority of law or a procedure established by law, as the right to property is a human right and constitutional right under Article 300-A,” said the Jammu & Kashmir and Ladakh High Court, in a judgement in July 2022.
The state, by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, said the MP High Court.
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news update
Right to property available to people not citizen of India: Supreme Court
The right to property prescribed under Article 300A of the Indian Constitution extends to people who are not the citizen of the country, the Supreme Court has ruled.
“The expression person in Article 300-A covers not only a legal or juristic person but also a person who is not a citizen of India. The expression property is also of a wide scope and includes not only tangible or intangible property but also all rights, title and interest in a property,” a Bench comprising Justices BV Nagarathna and Ujjal Bhuyan observed.
“Article 300-A of the Constitution states that no person shall be deprived of his property save by authority of law. The word “law” is with reference to an Act of Parliament or of a State Legislature, a rule or a statutory order having the force of law. Although, to hold property is not a fundamental right, yet it is a constitutional right,” the apex court said while giving its order in a case dealing with the matter of enemy properties.
FAQs
Is right to property a fundamental right in India?
No, the right to property is not a fundamental right but a human right in India.
When was Article 19 (1) (f) repealed?
Article 19 (1) (f) was repealed in 1978.
Is right to property a constitutional right?
The right to property is a constitutional right under Article 300-A. However, it is no more a fundamental right.
Is right to property a legal right?
The right to property under Article 300-A is a human right.
What is the Universal Declaration of Human Rights on property?
Article 17 of the Universal Declaration of Human Rights states that everyone has the right to own a property alone, as well as in association with others and no one shall be arbitrarily deprived of his property.
An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.
In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel.
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