Historical Background of Property Rights
The initial constitutional framework had three-tier protection:
o Article 19(1)(f): Gave citizens right to acquire, hold and dispose property.
o Article 31(1): Protected against arbitrary deprivation.
o Article 31(2): Required compensation for acquisition.
Reasonable Restrictions were allowed:
o For public welfare.
o For protecting Scheduled Tribes' interests.
o Had to pass a test of reasonableness.
State powers were limited by:
o Need to show public purpose.
o Requirement to pay compensation.
o Judicial review of acquisition process.
Evolution of Property Rights
▪ First Amendment (1951):
o This amendment added Article 31A.
o It also protected certain laws from challenge.
o This amendment made agrarian reforms possible.
▪ Fourth Amendment (1955):
o This is limited judicial review of compensation.
o This made adequacy of compensation non-justiciable.
▪ Twenty-fifth Amendment (1971):
o This amendment changed 'compensation' to 'amount’.
o This amendment further restricted property rights.
▪ Forty-fourth Amendment (1978):
o This amendment removed property from fundamental rights.
o This amendment inserted Article 300A.
o Articles 31 and 19(1)(f) were repealed.
Article 300A of the Indian Constitution states that “No person shall be deprived of his
property save by authority of law.” This means the government cannot arbitrarily deprive a
person of their property without the backing of a valid law. As a result, the ‘right to property’
is now categorized as a constitutional right, which means it is protected by law but does not
enjoy the same status as fundamental rights such as the Right to Freedom or the Right to
Equality. The legal status of the ‘right to property’ was changed therefore, people were not
allowed to approach the Supreme Court under Article 32 of the Constitution of India.
The Supreme court in the Jilubhai Nanbhai Khachar vs. State of Gujarat (July 20, 1994) case,
held that “Right to property under Art, 300A is not a basic feature or structure of the
Constitution. It is only a constitutional right.”
Can the government acquire property under Article 300A?
Yes, the government can acquire property under Article 300A, but such acquisition must
comply with the law. Article 300A does not prevent the government from acquiring property;
rather, it ensures that such acquisitions are carried out following the law. The process of
property acquisition by the government is governed by various laws, including the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement
Act, 2013. This law stipulates that the government must follow due process, provide fair
compensation, and adhere to prescribed procedures while acquiring property for public
purposes.
Therefore, while Article 300A protects property from arbitrary deprivation, it does not
preclude the government from exercising its powers of acquisition as long as it follows legal
norms.
The Supreme Court of India in the Kolkata Municipal Corporation & Anr. vs. Bimal
Kumar Shah & Ors. (May 16, 2024) judgment said, “Prescription of the necessary
procedures, before depriving a person of his property is an integral part of the ‘authority of
law’, under Article 300A.” Moreover, the bench constituting Justice PS Narasimha and
Justice Aravind Kumar illustrates 7 sub-rights to be adhered to by the government while
dealing with matters related to Article 300A of the Indian Constitution. These include:
• “The Right to Notice: The duty of the State to inform the person that it intends to acquire
his property
• The Right to be Heard: The duty of the State to hear objections to the acquisition
• The Right to a Reasoned Decision: The duty of the State to inform the person of its
decision to acquire
• The Duty to Acquire only for Public Purpose: The duty of the State to demonstrate that
the acquisition is for public purpose
• The Right of Restitution or Fair Compensation: The duty of the State to restitute and
rehabilitate
• The Right to an Efficient and Expeditious Process: The duty of the State to conduct the
process of acquisition efficiently and within prescribed timelines of the proceedings
• The Right of Conclusion: Final conclusion of the proceedings leading to vesting.”
What are the exceptions to the Right to Property under Article 300A?
Article 300A of the Indian Constitution provides a legal ‘right to property,’ ensuring that no
individual can be deprived of their property except by authority of law. However, this right is
not absolute and is subject to certain exceptions and limitations. One such exception is that the
government has the power of eminent domain which allows it to acquire property for public
purposes such as urban developments, infrastructure projects, etc. that are beneficial for the
community. This must be done by following an appropriate procedure and providing fair
compensation to the owners.
Legal Remedies Available to Protect the Right of Property
▪ If property is taken without legal authority, one can approach the High Court under
Article 226.
▪ Cannot approach Supreme Court directly under Article 32 (as was possible earlier).
▪ Cannot challenge acquisition on grounds of inadequate compensation.
A K Gopalan v. State of Madras (1950):
This case, heard by the Madras HC, was one of the early instances where the court grappled
with the conflict between the right to property and the state's power to regulate it.
The court upheld the constitutionality of the Madras Maintenance of Public Order Act, 1949,
which authorized the state to take possession of any property for public order.
Kesavananda Bharati v. State of Kerala (1973):
This case is often referred to as the "basic structure doctrine" case.
While not directly related to the right to property, it is crucial in understanding the
constitutional context.
The Supreme Court, in a historic decision, held that while the Parliament has the power to
amend the Constitution, it cannot alter its basic structure.
This case indirectly influenced the subsequent amendment that transformed the right to
property into a legal right.
Minerva Mills Ltd. v. Union of India (1980):
In this case, the Supreme Court struck down parts of the 42nd Amendment Act, 1976, which
gave Parliament unbridled power to amend the Constitution.
The court, while upholding the amendment abolishing the fundamental right to property,
emphasized that even though the right to property is no longer a fundamental right, it
continues to be a constitutional right.
Jilubhai Nanbhai Khachar v. State of Gujrat (1995):
The Supreme Court held that the Right to Property is not a part of the Basic Structure
Doctrine of the Constitution.
The Indian Constitution includes specific provisions under Articles 31A, 31B, and 31C that
exempt certain laws from being challenged as violations of Fundamental Rights. These
exceptions are designed to balance state policies with constitutional values. This article
explores these provisions, their scope, and the criticisms surrounding the broader framework
of Fundamental Rights in India.
Article 31A: Saving Of Laws Providing For Acquisition Of Estates, Etc.
Article 31A protects specific categories of laws from being challenged under Articles 14
(equality before law) and 19 (freedom of speech, movement, etc.).
1. These include laws related to:
1. Acquisition of estates or related rights by the State.
2. State management of properties.
3. Amalgamation or dissolution of corporations.
4. Modification of shareholder or director rights.
5. Changes to mining leases.
Judicial immunity under Article 31A applies only when the law is approved by the President
of India. Compensation must be provided at market value for land acquired under personal
cultivation within statutory ceiling limits.
Article 31B: Validation of Certain Acts and Regulations
1. Article 31B protects laws listed in the Ninth Schedule from being challenged under
Fundamental Rights.
2. Originally intended to uphold land reform laws, the Ninth Schedule now includes a wide
array of legislations.
3. Supreme Court Verdict in I.R. Coelho Case (2007): Laws added to the Ninth Schedule
after April 24, 1973, can be reviewed if they violate basic structure doctrine or
Fundamental Rights like Articles 14, 19, or 21.
Prioritization of Directive Principles (Article 31C)
Inserted by the 25th Amendment Act of 1971, Article 31C initially had two provisions:
o Protection for Laws Implementing Directive Principles: The first stated that laws
implementing certain directive principles, especially those in Article 39(b) and (c), cannot be
voided for contravening Articles 14 and 19.
o Court Challenge Ban Declared Unconstitutional: The second provision, which prevented
any law containing a declaration for implementing such policies from being questioned in
court, was declared unconstitutional in the Kesavananda Bharati case (1973) as it violated
the basic structure of the Constitution.
• Expansion of Protection by the 42nd Amendment Act (1976): The 42nd Amendment Act
of 1976 tried to expand this protection to any law implementing any directive
principles, However, this extension was struck down in the Minerva Mills case (1980).
