The Right to Property in India

Source-This post on The Right to Property in India has been created based on the article “Property is real, and so should the ‘compensation’ published in “The Hindu” on 3 June 2024.

UPSC Syllabus-GS Paper-2– Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Context– The article highlights the history of the right to property in post-colonial India and the power struggle between the judiciary and the legislature over this issue.

What are the debates surrounding right to property in India?

The right to property was a fundamental right protected under Article 19(1)(f) of the Constitution.

1) Bela Banerjee case– In this case the court focused on how to interpret Articles 19(1)(f) and 31(2) of the Constitution. The Supreme Court of India decided that in Article 31(2), the word “compensation” meant providing the owner with a fair equivalent for what they lost.

To change this interpretation, the 4th constitutional amendment was passed in 1955. This amendment explicitly stated that courts could not question the  inadequacy of compensation.

2) Kesavananda Bharati Case– Parliament understood that the term “compensation” in Article 31(2) was causing problems. So, they replaced it with “amount” through the 25^th Constitution Amendment Act, 1971, which prevented the courts from interpreting it.

The Supreme Court in this judgement interpreted that while the adequacy of the amount paid was non-justiciable, the principles for determining such compensation were still open to judicial review.

3) 44^th Constitutional Amendment– The Janata Party government passed the Constitution 44th Amendment Act in 1978, which deleted the right to property from the list of Fundamental Rights and placed it as a Constitutional Right under Article 300-A.
Article 31, which had caused a lot of debate about how compensation should be decided, was removed.

What are the arguments against the Deletion of Article 31?

1) One of the dissenting judges in Kesavananda Bharati held that that the right to property should be considered a basic feature of the Constitution.

2) The power granted under Entry 42 of the Concurrent List allows for “acquisition,” not “confiscation,” and it’s stressed that compensation should still mean what was defined in the Bela Banerjee case.

What are various Supreme court judgements after the deletion of Articles 19(1)(f) and 31?

In the years following the deletion of Articles 19(1)(f) and 31, the Supreme Court has held that the right to property is not only a constitutional right but also a human right. In the M.C. Mehta case, the Court stated that a law depriving a person of property must be just, fair, and reasonable.

B.K. Ravichandra case– In this case, the Court observed that the phrasing of Article 300-A resembled Articles 21 and 265, and its guarantee could not be read down.

The Kolkata Municipal Corporation Case – The recent decision in the Kolkata Municipal Corporation case has fleshed out seven facets protected under Article 300-A, including the right to notice, the right to be heard etc.

The Court has affirmed that the obligation to provide compensation, which means the value of the property taken in monetary terms, as established in the Bela Banerjee case, has been restored.

Question for practice

What discussions exist regarding the right to property in India? What Supreme Court rulings have emerged following the removal of Articles 19(1)(f) and 31?