Tuesday, 15 February 2022

Right to Property

 Right to Property was earlier a fundamental right enshrined under Part III of the Constitution under Article 19(1)(f) and Article 31 but it was deleted. The Constitution 44th (Amendment) Act,1978 introduced the Right to Property which is a single Article 300A enshrined under Chapter 4 in Part 12 of the Constitution.

According to Article 300-A “no person shall be deprived of his property save by authority of law”.  It is clear that the State has to only enact a law by which the property can be acquired. The said law should be just, fair, reasonable in the eyes of law and is under the ambit of Judicial review. A person aggrieved from such law doesn’t have the option to file a writ under Article 32 of the Constitution but has the option under Article 226 of the Constitution because the ambit of Article 226 is much wider.

Whether Right to Property is a basic feature of the Indian Constitution according to basic structure theory? It was answered in Jilubhai Nanbhai Khachar V. State of Gujarat (AIR 1995 SC 142) that Article 300-A is not under the ambit of the doctrine of basic structure theory but the right to property is a Constitutional right.

One important concept which is important to know is the concept of Eminent Domain. It was explained by the Judiciary in the case of Charanjit Lal v. Union of India (AIR 1951 SC 41) The Court explained that it is the inherent right and duty of the Government to work for the public necessity. Thus, taking property that belongs to an individual and using that property for public use is the meaning of Eminent Domain. It is based on the doctrine of “Salus populi est superema lex” which translates or means the welfare of the public. Another maxim that is associated with it is “necessita public major est quam” which means that the public necessity is greater than private necessity. Thus, according to this, the State can acquire property to build bridges, schools, colleges, libraries, dams, parks, airports, etc for the benefit of the public at large. 

Another important question that arises is whether Article 300A provides for the Right to Compensation?

This was answered in the case of K.T. Plantation Pvt. Ltd V. State of Karnataka (AIR 2011 SC 3430) and Bhagauji V. State of Maharashtra (2021 SCC OnLine Bom 982)

The summary of the above two judgments is that though it is not expressly mentioned in Article 300-A of the Constitution about the compensation though it can be inferred from the Article itself. If a person is disposed of his property without any compensation, then it is a violation of his human rights and is a clear violation of Article 21 of the Constitution. Thus, the right to claim compensation is inbuilt in Article 300A when a person is deprived of the property.

What constitutes property?

Property is not only confined to land in Article 300-A but it includes intangible properties like patents, trademarks, copyrights, industrial design, etc. It includes both corporeal and incorporeal rights.

It is to be noted that though the acquisition of land does not violate any constitutional or fundamental right but the person is entitled to rehabilitation and re-settlement. 



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