Right to Private Property

The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare state, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article.

In other words, to forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. 

This article will briefly discuss an important right – the right to private property and the associated judgement of the Supreme court and other details in the context of the IAS Exam.

This article is significant for the Indian Polity segment of the UPSC Syllabus.

The candidates can read more relevant articles to enhance their preparation from the links provided below:

Judgement of the Supreme Court

• On January 8, a verdict was given by a Bench of Justices Ajay Rastogi and Indu Malhotra that the Right to Property is a human right.
• The Supreme Court observed in its judgement that the State cannot take possession of a person’s private property without following due procedure of the laws
• This verdict was given in a case where the Government of Himachal Pradesh had forcibly taken 4 acres of private land to build a road. This incident had occurred in 1967, at a village in Hamirpur district, in Himachal Pradesh.
• Justice Malhotra highlighted the failure of the Himachal Pradesh Government to pay compensation for 52 years, to the appellant, who was a widow and illiterate.
• Justice Malhotra empathized that the appellant had not filed any proceedings for the failure of the state government to pay land compensation, as the appellant was from a rural background and who was not educated enough to know her entitlements and rights given to her by the law.
• After many years, the appellant moved to the Supreme Court, initially, she had filed a case in the High Court, but the High Court had asked to file a civil suit in the lower court, hence the Supreme Court was approached.
• The Supreme Court observed in its judgement that the State becomes an encroacher when it grabs the private property of a person without following due process of law.
• The Supreme Court ordered the Government to pay a compensation of Rs 1 crore to the 80-year-old appellant.

Right to Property – Fundamental Right & 44th Amendment in 1978

• The Supreme Court observed that when the incident took place in 1967, the Right to Property was still a Fundamental Right under Article 31.
• Article 31(2) had mentioned that only after due compensation was paid to the person by the Government, the Government would get the right to take over private property and use it only for public purposes.
• Article 31(1) of the Constitution had made it clear that private property could not be taken by the Government through an executive order but only through the authority of law.
• The above laws were preventing the Government from carrying out public infrastructure projects and other agrarian reforms as people started approaching the courts during the land acquisition by the Government.
• Hence there was an amendment to the Constitution of India in 1978.
• It was the 44th amendment of the Constitution of India which declared that the Right to Property will no longer be a Fundamental Right.
• Article 31 and Article 19(1)(f) was completely removed from Part III – Fundamental Rights of Constitution with the help of the 44th Amendment.
• The Supreme Court reminded the State Government that the State had to follow the authority of law and due procedure of law before taking the private property of a person. This needs to be done as per provisions mentioned in Article 300A.

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