WHAT IS THE RIGHT TO PROPERTY IN INDIA?

Table of Contents

Introduction

According to Article 300-A of the Indian Constitution, the right to property states that no one has the authority to deprive a person of his or her immovable property apart from the state government.

What is property?

The word property interpreted by SC for Art. 31 said, should be given a liberal meaning and should be extended to all those well-recognized types of interest which have the insignia or characteristic of property rights

[1]. The expression of the property in Article 300A is confined not only to land alone. It includes both corporal and incorporeal rights

[2]. It includes Money

[3], contract, interest in the property, etc.

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.

What is an example of a right to property?

The right to the property gives a property holder total control over their properties. This means the individual can take decisions about their possessions as and when required. For example, if a property owner wishes to remodel their existing house from scratch, the right to the property gives them the authority to do so. A legal owner can also gift their property to anyone they wish to.

In case private property needs to be in possession of the government for public welfare, the legal owner will receive compensation.

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.

Right to Property as a fundamental right

Since the Constitution of India came into force in the 1950s, the right to property was given fundamental status. Basically, two articles Art. 31 and Art. 19(1)(f) ensures that any person’s right against his property remains protected.

Art. 31 clauses (1) reads No person shall be deprived of his property save by authority of law. It gives protection to persons against the government or State’s arbitrary action to seize private property for public use and private use. That means a person has the right to move to SC in case of violation of this right. At this juncture it is essential to understand the power of Eminent Domain- every government has an inherent right to take and appropriate the private property belonging to an individual citizen for public use[4]. It is based on the legal maxim Salus Populi est suprema lex meaning the welfare of people or the public is the paramount law.

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 the 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.

What is the current legal status of the Right to Property?

The 44th Constitution Amendment in 1978 made the Right to Property a human right instead of a fundamental one. As per the Indian Constitution, it is now a human right and can be enjoyed by all individuals.