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Mind and Society ISSN 2277-6907

Vol 08, No. III & IV,Sep. & Dec. 2019, Page No.28 to 30

Concept of Right to Property in Indian Constitution

(With special reference to land)
* Bhoopendra Karwande

Received Reviewed Accepted

28 Nov. 2019 30 Nov. 2019 05 Dec. 2019
Right to property as fundamental right created a barrier for both the govern-
ment and landless people as the government was unable to generate the comprehensive
revenue from the land where as the landless are unable to cultivate and earn their
livelihood aptly. To overcome this issue the status of the right to property was changed
from fundamental rights to constitutional right. As per the social economic and caste
census of 2011, which acknowledge and counted landlessness as a major poverty indi-
cator and the data that came out is shocking which reveals that nearly 494, 9 million
(49.9 Crore ) people are still landless in India after so many years of independence.
With so much significance on market-driven economy has resulted into the negligence
of such an important trend. This paper depicts a subjective look at the attribute of the
constitutional and other amendments in land laws as Zamindari abolition Act, ceiling
Act and other laws. It also explains how it stems the agrarian reform to the last straw.
Further discussion on the contradiction of land laws with the Constitution of India in
the light of Supreme Court judgments and its impact on landless persons. The paper
provides an objective look into the legal provisions regarding the right to property and
suggests essential changes which might be beneficial for both government and land-
less persons into the long run.
1) Introduction has exchangeable value or which goes to make
As per the resolution mentioned in Preamble up wealth. Private property also comes under
we, the people of India adopted the Constitution the ambit of it.
on 26th November 1949. In which the various In the legal term: Anything that is owned
land laws measures are as following: by a person or entity. Property is divided into
1. Right to property two types: “real property” which is any interest
2. Fundamental rights (article 31A, 31B, in land, real estate, growing plants or the im-
31C.) provements on it, and “personal property” (some-
Meaning of property: times called “personality”) which is everything
In general term: The word property means else. “Common property” is ownership by more
everything which is subject of ownership, cor- than one person of the same possession. “Com-
poreal or incorporeal, tangible or intangible vis- munity property” is a form of joint ownership
ible invisible, real or personal, everything which between husband and wife recognized in sev-

* Asst. Prof. LawGovt. J.Y. Chhattisgarh College Raipur(C.G.)

 Concept of Right to Property in Indian Constitution/ 29

eral states. “Separate property” is property Article 19(1) (f) and Article 31.
owned by one spouse only in a community prop- For example:
erty state, or a married woman’s sole owner- 1.Zamindari Abolition Act4 becomes challen-
ship in some states. “Public property,” refers to geable in the court because it was contradictory
ownership by a governmental body such as the to Fundamental Rights Article 19(1)(f) and Ar-
federal, State, county or city governments or their ticle 31 as these two Article says that person
agencies (e.g. school or redevelopment districts). having right to acquire ,hold and dispose of prop-
The Government, and, in particular, the courts erty but Zamindari abolition Act is obstructing
are obligated to protect property rights and to people to acquire land and getting proper com-
help clarify ownership.1 pensation.
According to Article 17 of the Universal 2. Land Ceiling Act: By this Act limit of hold-
Declaration of Human Rights2 ing land was decided and land beyond the limit
(1) Everyone has the right to own property would go in the account of Government, which
alone as well as in association with others. again became contradictory to Article 19(1)(f)
(2) No one shall be arbitrarily deprived of his and article 31.
property. Therefore to remove such complication and
2) Right to the property before the 44th betterment of all, Article 19(1) (f) and Article 31
amendment 19783 repealed by the 44th Amendment Act.
Right to property was the 7th kind of Funda- 3) Right to the property after the 44th
mental Right enshrined in the original Constitu- amendment 1978
tion and guaranteed by Article 19(1) (f) and Ar- By 44th Amendment the Article 300 A came
ticle 31. into the picture by redrafting the article 31(1) as
Article 19 (1) (f): to acquire, hold, and dis- Constitutional right. Article 31A, 31B, and 31C
pose of the property. were added by 1st and 25thAmendment, the
Article 31: Ensures that any person could not reason behind such additions are:
be deprived of property except by authority of Firstly Article 31 A was added to remove the
law. It also mentioned that the State could ac- compensation-related problem arising out of
quire property only for public purposes and in Zamindari abolition Act. The importance of this
return of which compensation had to be paid. Article increased by the 44th amendment.
At the time when the Indian Constitution was Secondly, Article31 B validates the Acts and
adopted, the organization of land was dominated regulations specified in the 9th Schedule. The
by Zamindars, intermediary, Ryotwari settlement, laws and regulations related to 9th Schedule,
Mahalwari settlement, etc. and a substantial por- which passed before the Case of Kesavanda
tion of the land was cultivated through tenants at Bharati Sripadagalvaru and Ors. V State of
will and sharecroppers who were paying about Kerala5 could not be challenged in court based
one half of the produce as rent to the Govern- on contradiction with Fundamental rights.
ment and holding were very small. So, for doing Thirdly, Article 31C approves laws giving
justice with landless or poor people, to uplift them, effect to the policy of the State towards achiev-
Indian Government started passing various laws ing all or any of the principles enshrined in Part
like Zamindari abolition Act, Land ceiling Act and IV (Directive principle of state policy) of the
Land tenure Act, etc. But in these laws, some Constitution. The objective of this article was to
part becomes contradictory to the 3rd part of the ensure a socialistic pattern of society in the coun-
Constitution i.e. Fundamental Rights especially to try. The ambit of this Article was also extended
30 /Concept of Right to Property in Indian Constitution

by the 42nd Amendment Act, 1976. The exten- 5) Conclusion

sion of the range of the Article 31-C to all direc- The provisions and historical background of
tive principles was held to be ultra vires by the the Right to Property show that step of remov-
Supreme court inthe case of Minerva mills case6 ing out the right to property from the fundamen-
Article 300A gives protection against depri- tal right was to save, uplift more underprivileged
vation of property. A person can only be deprived sections. And to take out more revenue from
of his property by the authority of law. Its means land as a tenant at will and sharecropper was
proper compensation shall be givenfor depriva- unable to pay much to the Government as their
tion according to laws made under Article part on land was less. Time passes by with the
31A.Such denial can’t be questioned before any popup of new sources of taxes and revenue
court. The remedy under Article 32 is not avail- which made the concept of revenue from land
able against the violation of Article 300. But a vanish. It is such revenue from which dream of
person has the right to file a civil suit in civil upliftment of tenure holder and poorer section
court and the high court under Article 226. was built and above mention actions by the Gov-
4) Deprivation: Deprivation occurs when ernment of India took place. So presently at the
a substantial bulk of the rights constituting prop- age of 72 of India, we should remember its im-
erty is taken away. portance, to revive land revenue again to spread
For example: its benefit to the above said group and Govern-
1. The owner dispossessed, ment too. The scope of this section now will
2. The property seized or confiscated, also apply to Jammu and Kashmir from 5th Au-
3. A business was taken over by the State, gust 2019 onwards which means it will get the
4. A trustee removed from the trust etc. more enhanced range.
1
Deprivation does not necessarily mean that legal-dictionary.thefreedictionary.com/property
2
the State has acquired the property. If the Gov- www.un.org/en/universal-declaration-human-
ernment pulls down or demolishes a house to rights/
3
prevent the spread of fire, the owner deprived, Basu, (2012).Introduction to the Constitution
but the property has not obtained. of Indian, Lexis Nexis 4Chandra, Mukherejee,
The law mentioned in the Article 300A sub- Mukherjee (2007). India since Independence,
jected to the Article14; Article 19 Penguin
5
AIR 1973
6
AIR 1980

Reference:
1. Basu, (2012).Introduction to the Constitution of Indian, Lexis Nexis

2. Chandra, Mukherejee, Mukherjee (2007). India since Independence, Penguin

3. Chandra Nathjha(2016).Land Revenue code.

4. www.un.org/en/universal-decralation-human-rights/
5. http://www.legalservicesindia.com/article/1435/Emergence-of-Article-31-A,-B-and-C-and-its-
validity.html