Right to Property in India

Before the Indian government began having difficulties acquiring immovable properties for the public good, the right to property was a fundamental right. As a result, it lost its status as a basic right in 1978 but continued to be a human right. This means that no one's property can be taken without legal permission and that if private real estate is taken, no right to compensation will be guaranteed.

The Right to Property, which grants Indian residents the unrestricted ability to acquire, sell, and hold family holdings, was enshrined in the Indian Constitution. This right eventually lost its status as a basic one. In this article, let’s look at why and how this Article's legal standing shifted from being fundamental to a human right.

What is the Right to Property article?

A citizen's complete authority over immovable property ownership was a fundamental right. However, this right ceased to be a fundamental one but remained a constitutional and human right once Article 300-A was added to the Indian Constitution in 1978.

The right to property is guaranteed by Article 300-A of the Indian Constitution, which declares that nobody, other than the state (government), has the power to take away someone's immovable property. Despite having the authority to buy private property, the government must have a good reason and act in the public interest. For an instance, private properties are purchased in exchange for a fair price to build public facilities.

Is the Right to Property a fundamental right?

Fundamental rights imply the fundamental freedoms that citizens of a nation are entitled to under its constitution. Human rights, on the other hand, are universal rights that apply to all people, regardless of their citizenship, religion, caste, faith, color, sex, or language, among other things.

According to the 44th Amendment added to the Indian Constitution in 1978, the Right to Property is still a human right and not a fundamental one. This is due to the abolition of Article 31 in the Constitution Act of 1978 by the introduction of Article 300-A in Part XII.

The following are the main reasons for transferring property rights from the category of fundamental rights to those of human or legal rights:

· Considered to be greater than private necessity is a public necessity

· Objectives connected to socialism and economic distribution

· The creation of public facilities for citizens

· To better serve the public interest

As a result, in 1978, the definition of property ownership was altered. However, with the right justification, the government may purchase private property. The public interest does not condone or encourage trespassing based on adverse possession of the property, according to the Supreme Court.

Criticism of the Right to Property

· Since the founding of the Constitution, the Fundamental Right to Property has caused the most controversy.

· Conflicts between the Supreme Court and Parliament have developed as a result.

· It led to multiple amendments to the constitution, including the 1st, 4th, 7th, 25th, 39th, 40th, and 42nd amendments.

· Over time, Articles 31A, 31B, and 31C were added and changed to make Supreme Court rulings ineffective and to shield specific legislation from being challenged on the grounds that they violate Fundamental Rights.

· The state's responsibility to provide compensation for the acquisition or requisition of private property is at the heart of most legal disputes.

Fundamental Rights

One of the most significant rights and the most stunning aspect of the Indian Constitution were taken from the United States of America Constitution by the drafting committee.

Originally, the Indian Constitution listed seven fundamental rights; however, the Right to Property, which was stated in Article 19(f), was later ruled to no longer be a fundamental right, and a new Article 300A was added to the document.

Causes for removal of Right to Property as a Fundamental Right

Before India gained its independence, the zamindars and landlords oppressed and crushed the poor peasants. The creation of a Constitution that accords all individuals with equal rights and opportunities was extremely significant.

When the government attempted to take land for the benefit of society as a whole, it sparked much controversy because the state needed property for the growth of the country in order to create hospitals, institutions, etc. for the people.

The First Amendment Act of 1951 included an amendment by the Parliament known as Articles 31 A and B. The forty-fourth amendment act later abolished Article 31, which guaranteed compensation to the person if their property was occupied by the state. After Article 31 was eliminated, the landowner is no longer guaranteed compensation in matters involving the right to property.

When the right to own property was a fundamental right, anyone else might file a complaint with the Honourable Supreme Court of India under Article 32, alleging that their rights had been violated. The situation grew tense as everyone moved to the Apex Court. Additionally, the vast majority of disputes between citizens and state governments produced a problematic situation. This amendment put an end to the predicament and made property ownership a constitutional right as opposed to a fundamental one.

Forty-Fourth Amendment Act

Articles 19(1)(f) and Article 31 were repealed by the Parliament's forty-fourth amendment, which was passed in 1978. To prevent some legislation from being challenged on the grounds of infringement of fundamental rights, led to the insertion of Article 300, which nullifies the impact of Supreme Court judgments. Due to widespread protests, the Right to Property was removed by the Parliament and replaced with Article 300A, which is included in Part XII of the Indian Constitution. No compensation rights have been guaranteed in the event of a state acquisition as a result of the amendment.

Significance of Right to Property

Economic Growth: It promotes investment and expansion of the economy. If the government is unable to seize a person's property, it ensures their freedom. It also promotes private investment in the infrastructure industry.

Security: Because their property is protected, people can continue running their companies. For instance, a farmer wouldn't plant crops or improve his land if he thought the government may take it.

Important to end poverty and strengthen the section of the vulnerable: Without sound land tenure policies, economies run the risk of losing the foundations necessary for long-term growth, putting the lives of the most defenseless and disadvantaged people in jeopardy. It is simply impossible to end poverty and increase shared wealth without making considerable progress in land and property rights.

Can prevent Large informal settlements: Large informal settlements may be avoided if land rights were more clearly defined and discriminatory land regulations were changed. The urban poor might not be able to purchase homes owing to rising property values as a result. These inadequacies have already led to the growth of sizable informal settlements in several locations throughout the world.

Can protect women's property rights: Because the legal system does not permit equal access to property ownership or the use of land titles as collateral without a male guardian, many women continue to be denied the opportunity to own land.

Support for recognizing Indigenous People's rights: Recognizing the land rights of indigenous peoples is sensible from an economic and environmental perspective in addition to being a question of human rights. If indigenous peoples' land rights are recognized, they will be able to use the resources on their land more responsibly, which will improve their economic and social standing and make them a more positive force in society.

Ideologies at the Constitutional Debates

The right to property was already protected by the constitution, but some members of the constituent assembly thought it should be eliminated. K.T. Shah, for example, thought the government could take any property it wanted, while K.M. Munshi thought no one should be denied their property for irrational reasons, similar to the American Constitution. Now the question arose: Should the right to the property be protected by the constitution?

Although the people's lands were the only option for growth, the government was forced to acquire land and was torn about whether to do so. The public usage of land was also unclear because it was necessary to determine if the zamindars should take over the land of common people. Some countered that zamindars were merely tax collectors who collected taxes on behalf of the British government and that it would be unfair to take away their whole lands without offering them compensation. When a few assembly members voiced their opinions that zamindars didn't need to be paid and that the zamindari system should be eliminated at all costs, the debate veered off course.

The conflict between the legislature and judiciary ultimately resulted in the removal of the right to property as a fundamental right and the insertion of it as a constitutional right. It was ultimately decided that land acquisition was the resort for social reform and industrialization and compensation should be given to the individual whose property was getting acquired but providing compensation at a market rate.

Conclusion

Despite being excluded from the Fundamental Rights covered by Part III of the Constitution, the right to property is nonetheless protected by the law and the constitution. The Forty-fourth Amendment Act has ensured that no one directly approaches the Honorable Supreme Court to maintain social justice, but this does not mean that a person cannot proceed to any court and is helpless. A matter involving the right to property can be heard in a regular court of law. Additionally, because it no longer falls under a basic right, no direct petition under Article 32 for infringement may be made to the Supreme Court. Equitable property distribution among social groups is what social justice entails.

Right to Property is currently not a part of the Constitution's fundamental framework and can thus be amended.

Author Bio: Adv. Ankan Suri is an experienced lawyer with over 15 years of experience, practicing before the Supreme Court and the High Court of Delhi. His areas of expertise include Intellectual Property, Matrimonial Law, Property Law, Company Matters, and Criminal Law. Currently, Ankan runs his law firm from his office in Greater Kailash and maintains a chamber in the Supreme Court, leading a dedicated team of 8 juniors.