3.3 The Evolution and Status of The Right To Property

But the real problem facing modern India is not so much as to preserve the unlimited right to
property, but while maintaining the substratum of individual right and its stability, to regulate
the use of it in public interest. If undue attachment to acquisition of property is bad,
revolutionary zeal to dislocate the structure of property is worse. A balance therefore has to
be struck between possession and regulation of property.
The initial constitutional position of the right to property may be briefly stated thus1:
 Every citizen has a fundamental right to acquire, hold and dispose of property;
 The State can make a law imposing reasonable restrictions on the said right in public
interest. The said restrictions, under certain circumstances, may amount even to
deprivation of the said right;
 Whether a restriction imposed by law on a fundamental right is reasonable and in
public interest or not is a justiciable issue;
 The State can, by law, deprive a person of his property if the said law of deprivation
amounts to a reasonable restriction in public interest within the meaning of Article
19(5);
 The State can acquire or requisition the property of a person for a public purpose after
paying compensation;
 The adequacy of the compensation is not justiciable;
 If the compensation fixed by law is illusory or is contrary to the principles relevant to
the fixation of compensation, it would be a fraud on power and, therefore, the validity
of such a law becomes justiciable; and
 Laws of agrarian reform depriving or restricting the rights in an estate — the said
expression has been defined to include practically every land in a village — cannot be
questioned on the ground that they have infringed fundamental rights;
 The State has powers to impose taxes on all types of property and incomes.
3.3 The Evolution and Status of the Right to Property

Even before the 44th Amendment the status of the right to property was rather dubious and its
conversion into a legal right has only made it more so. So much so that before a person could
1
as stated in K. Subba Rao (Ex-Chief Justice of India), “The Two Judgments: Golaknath and Kesavananda
Bharati”,(1973) 2 SCC (Jour) 1
complain that a law violates his right to acquire, hold and dispose of property, he must
establish that the right which he claims is a right to property.
To the extent that the right to property is important for the enjoyment of the other
fundamental rights it has remained a fundamental right. Article 30(1) confers on religious and
linguistic minority a fundamental right to establish and administer educational institutions.
This right can not be enjoyed unless the minorities have a right to property with respect to
such institutions. It means that such minorities will have a fundamental right to property as
far as educational institutions are concerned. This position is accepted by the framers of
the44th amendment, as they have provided in Article 30 (1) (A) that in making any law
providing for the compulsory acquisition of any property of an educational institution
established and administered by a minority, the state shall ensure that the amount fixed by or
determined under such law for acquisition of such property is such as would not restrict or
abrogate the right guaranteed. Also the present position of right to property under Article
300As indirectly gives the right to hold and acquire property. Article 300A states that "No
person shall be deprived of his property save by authority of law." One can not be deprived of
property unless he has property and one can not have property unless he has the right to hold
or acquire it.
The reasonableness of restriction to the right to property must be charged not by
considerations relevant to pre Constitution laws but in the light of fundamental rights. Before
a person can complain that a restriction on a fundamental right is unreasonable he must show
that he has a fundamental right. Thus, where an order of allotment of a house made before
the Constitution came into force was challenged as violating Article 19(1) (f) on the ground
that this possession of the landlord took place after the Constitution came into force, the
Court held that as the petitioners right to retain possession of the house came to amend as a
result of the order of requisition before the Constitution came into force, he had no
fundamental right which he could assert under the Constitution2.
It must be said, therefore, that the totality of changes brought about by the 44th Amendment
relating to property has been clumsy and cumbrous. The main argument in favour of the
polish of the right to property was that it stood in the way of progress report socialistic
legislation. This having been affected by the polish and of Articles 19(1) (f) and 31, it hardly
stands to reason that article 31 A, which was inserted primarily by way of exception to the
right to property, should still survive.
2
D K Nabhirajiah v. State of Mysore, (1952) SCR 744
The major difference will exist in the fact that if the executive of the police takes away man's
property without the majority of low, he will have no access to the Supreme Court directly
under Article 32 of the Constitution of India3. The sacrifice therefore has been made of the
speedy remedy before the Supreme Court and is considered by many as too heavy loss to the
citizen4.
Whatever be the intention of our legislators in the deletion of 'right to property ' as a
fundamental right, the fact remains that the right to property is a right which cannot be read in
isolation. It is a right around which many other rights exist. There seems to be an inherent
interdependence between the right to property and other fundamental rights.
3
H. M. Seervai., CONSTITUTIONAL LAW IN INDIA, 4th ed. (Delhi: Universal Book Traders.1999) at pp. 825, 828
4
D.D Basu, CONSTITUTIONAL OF INDIA. 7th ed. (New Delhi: Prentice Hall of India. 1998) at p.102

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But the real problem facing modern India is not so much as to preserve the unlimited right to

3.3 The Evolution and Status of the Right to Property

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