Property Right Under the Indian Constitution

Table of Contents

• The Original Constitutional Position: Articles 19(1)(f) and 31

  • What Article 31 Originally Guaranteed

  • The Right to Acquire and Hold Property under Article 19(1)(f)

• The 44th Amendment, 1978: A Fundamental Shift

  • What Changed and What Was Repealed

  • The Critical Consequences of the Amendment

• Article 300A: The Constitutional Right to Property

  • Who is a 'Person' Under Article 300A

  • What Constitutes 'Property' Under Article 300A

  • What Does Not Constitute 'Property'

  • 'Save by Authority of Law': The Core Safeguard

• Property Right as a Human Right

• The Doctrine of Eminent Domain and Public Purpose

  • Public Purpose as a Condition Precedent

  • The Land Acquisition Act and Article 300A

• Who Can Complain of Violation of Article 300A

• Remedies: Article 226, Not Article 32

• The Author's Critique: Regressive Consequences of the 44th Amendment

Introduction

When a State authority demolishes a hutment by the stroke of an executive order, with no law authorising such action and no compensation offered to the displaced family — what remedy does the Constitution of India offer?

Today, the answer does not lie in Part III of the Constitution. Since 1978, the property right under the Indian Constitution is no longer a fundamental right. It has been relocated to Article 300A, sitting quietly in Part XII, as a mere constitutional right. The transformation — brought about by the Constitution (44th Amendment) Act, 1978 — is one of the most consequential changes to the original constitutional scheme envisaged by the Founding Fathers.

Understanding this shift is indispensable for every law student and practising advocate. It determines which court to approach, whether compensation can be claimed as of right, and how far the State's power over individual property extends.

The Original Constitutional Position: Articles 19(1)(f) and 31

The Constitution as originally enacted in 1949 guaranteed property rights in two distinct provisions: Article 19(1)(f) and Article 31, both housed in Part III alongside other fundamental rights.

What Article 31 Originally Guaranteed

Article 31 was a two-limbed provision of considerable force. Clause (1) of that Article declared that no person shall be deprived of his property save by authority of law — a guarantee against executive extravagance unsupported by legislative sanction. Clause (2) went further: it required that when the State compulsorily acquired private property, it could do so only on payment of compensation and for a public purpose. These two conditions — public purpose and compensation — acted as constitutional brakes on an otherwise potent power of the State.

The substantive guarantee of property under Article 31(2) meant that even the Legislature, which had the power to sanction deprivation, was bound by the constitutional obligation of compensation. No law could direct acquisition of a private person's property and deny him some financial recompense without running afoul of Part III.

The Right to Acquire and Hold Property under Article 19(1)(f)

Alongside Article 31, Article 19(1)(f) guaranteed every citizen the right to acquire, hold and dispose of property. Like the other freedoms in Article 19, this right was not absolute. The State could impose reasonable restrictions on its exercise by law, and such restrictions were judicially reviewable — the courts would strike them down if found unreasonable. This subjected legislative power over property to a two-fold test: the law had to be valid in form, and the restrictions it imposed had to be reasonable in substance.

The 44th Amendment, 1978: A Fundamental Shift

The Janata Government, while reversing several excesses of the preceding era through the 43rd and 44th Amendments, simultaneously made what has been described as a "regressive contribution, the far-reaching consequences of which have not so far been realised by many."

What Changed and What Was Repealed

The Constitution (44th Amendment) Act, 1978 effected the following structural changes:

• Clause (1) of Article 31 was shifted from Part III and re-enacted as Article 300A in Part XII, but stripped of its character as a fundamental right.

• Clause (2) of Article 31, which mandated compensation for compulsory acquisition, was repealed entirely.

• Article 19(1)(f), which guaranteed the right to acquire, hold and dispose of property, was omitted from the Constitution.

The combined effect was sweeping. The property right under Article 19(1)(f) and the obligation to pay compensation under Article 31(2) were simultaneously extinguished. What survived — in the form of Article 300A — was a shadow of the original protection.

The Critical Consequences of the Amendment

The legal consequences, as derived from the amended constitutional text, are:

1. The right to property has ceased to be a fundamental right. The corollary is that no person can approach the Hon'ble Supreme Court directly under Article 32 for enforcement of Article 300A, since it no longer falls within Part III. (For a deeper understanding of constitutional remedies under Articles 32 and 226, refer to our detailed note.)

2. The Legislature no longer carries any constitutional obligation to pay compensation to an expropriated owner, except in the narrow case of property belonging to a minority educational institution under the newly inserted Article 30(1A) and the property of an agriculturist under personal cultivation under the 2nd Proviso to Article 31B(1).

3. Even the condition of "public purpose" — which was an explicit requirement under Article 31(2) before it was repealed — has since been re-introduced by the Supreme Court through interpretation of Article 300A, as discussed below.

4. A person whose property is deprived by executive action unsupported by law can seek remedy before the High Court under Article 226 or file a civil suit, but not petition the Supreme Court under Article 32. (State of Maharashtra v. Chandrabhan Tale, AIR 1983)

Article 300A: The Constitutional Right to Property

Article 300A, as introduced by the 44th Amendment, reads in its entirety:

"No person shall be deprived of his property save by authority of law."

Sparse as this language is, it has been construed by the Supreme Court to carry significant protective content.

Who is a 'Person' Under Article 300A

The protection of Article 300A is available to any person — the word is not limited to citizens. It extends equally to legal or juristic persons such as companies and corporations. (Dharam Dutt v. Union of India, (2004) 1 SCC 712) Prior to the insertion of Article 300A, when the equivalent protection resided in Article 31(1), the courts had held that a non-citizen could not take advantage of restrictions flowing from Article 19, which was confined to citizens; Article 300A removes that complication by standing on its own terms. (Indo-China Steam Navigation Co. v. Jasjit Singh, AIR 1964)

What Constitutes 'Property' Under Article 300A

The term "property" under Article 300A has received an expansive judicial interpretation. The following positions are settled:

No right or interest constitutes 'property' unless the law recognises it as a proprietary right. (Jaivant Singhji Ranmal Singhji v. State of Gujarat, AIR 1962) Subject to this threshold, the word "property" is "designed to include private property in all its forms" and "must be understood both in a corporeal sense… as well as in its judicial or legal sense of a bundle of rights." (State of W.B. v. Subodh Gopal Bose, (1954))

Within this broad compass, 'property' includes:

• Any proprietary interest, including a temporary or precarious interest such as that of a mortgagee or lessee (Suryapal Singh, Raja v. State of U.P., (1952))

• Any interest in a commercial or industrial undertaking, or in a business, including managing agency and the assets of a going concern (Cooper, R.C. v. Union of India, AIR 1970)

• A right of pre-emption conferred by Mohammedan law or by custom (Audh Bihari Singh v. Gajadhar Jaipuria, (1955))

• Contractual rights of a shareholder in a company (Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd., AIR 1951)

• Arrears of rent due from a tenant (Madan Mohan Pathak v. Union of India, AIR 1978)

• Anything acquired by inheritance (State of M.P. v. Shiv Kunwarbai, AIR 1971)

• Mines, minerals and quarries (Jilubhai Nanbhai Khachar v. State of Gujarat, 1995)

• The right of inheritance and succession under the Hindu Succession Act (N. Padmamma v. S. Ramakrishna Reddy, (2008))

• Salary which has accrued, pension, and cash grants annually payable by the Government (Madhavrao Phalke v. State of M.P., AIR 1961)

• Patents, copyrights, leases, choses in action, and every other thing of exchangeable value (Jilubhai Nanbhai Khachar v. State of Gujarat, 1995). Notably, the Supreme Court has held that an owner of a copyright has a right akin to the right to property, and it may be acquired in public interest upon payment of reasonable compensation. (Entertainment Network (India) Limited v. Super Cassette Industries Limited, (2008))

The word "property" connotes "everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status" — a formulation settled in Jilubhai Nanbhai Khachar v. State of Gujarat, (1995).

What Does Not Constitute 'Property'

Equally important are the exclusions. The following have been held not to constitute 'property' within the meaning of Article 300A:

• A mere right to collect revenue, or to use a public highway (Saghir Ahmed v. State of U.P., (1955))

• A bare contractual right, or the right of a bare licensee unattended with an interest in property (Mehboob Co. Anwar Khan v. State of M.P., AIR 1963)

• A grant-in-aid, until it is actually paid (Joseph Valamangalam, Rev. Fr. v. State of Kerala, AIR 1958)

• A right of superintendence of property without any beneficial enjoyment (Bira Kishore Deb, Raja v. State of Orissa, AIR 1964)

• The right to vote at an election (Ramdas v. State of M.P., AIR 1959)

• A bare right to manage an institution or endowment, such as that of a hereditary trustee — unless, on facts, the management involves taking over of properties and assets (Kakinada Annadana Samajam v. Commr., H.R.E., AIR 1971)

'Save by Authority of Law': The Core Safeguard

The phrase "save by authority of law" is the operative protective clause of Article 300A. Under this formulation, the Executive cannot deprive a person of his property — of any kind — without specific legal authority established by valid law of the Legislature, however laudable the motive for such deprivation may be. (Wazir Chand v. State of H.P., (1955); Bishan Das v. State of Punjab, AIR 1961)

Where property is taken away by executive action unsupported by law, the owner may seek restoration of possession by a proceeding for mandamus against the Government. (Wazir Chand v. State of H.P., (1955))

Critically, "by authority of law" means by or under a law made by the competent Legislature or a statutory order having the force of law. Merely because the executive authority of the State extends to its legislative competence does not authorise State officers to deprive a person of his property without a legislative backing. (State of M.P. v. Bharat Singh Thakur, AIR 1967) Executive powers under Articles 73 or 162 of the Constitution are themselves subject to the limitation imposed by Article 300A. (Bishamber Dayal Chandra Mohan v. State of U.P., AIR 1982)

Before a person can be deprived of his right to acquire property, the law and/or contract must expressly and explicitly state so. (Chandigarh Housing Board v. Major-General Devinder Singh, (2007))

Property Right as a Human Right

A dimension of Article 300A that courts have consistently affirmed is its character as not merely a constitutional right but also a human right. The Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) characterised the right to property as both a constitutional right and a human right.

The Court has further observed that "without the right to property, other rights become illusory." (Lala Ram v. Jaipur Development Authority, (2016))

This human rights dimension has a direct bearing on how the right is interpreted in welfare contexts. The Supreme Court has held that depriving a poor farmer of his immovable property constitutes a violation of Article 21 of the Constitution — a provision which guarantees the right to life and personal liberty. (Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353)

This jurisprudential linkage between property and the right to life and personal liberty under Article 21 is a significant doctrinal development that practitioners must not overlook.

The Doctrine of Eminent Domain and Public Purpose

Public Purpose as a Condition Precedent

Article 300A has been judicially construed to embody the doctrine of eminent domain, which comprises two elements: (i) acquisition of property in the public interest; and (ii) payment of reasonable compensation therefor. (State of Bihar v. Project Uchcha Vidya Sikshak Sangh, (2006) 2 SCC 545) The Supreme Court has held that public purpose is a condition precedent for invoking Article 300A — a person can be deprived of his property only for a public purpose. (K.T. Plantation Pvt. Limited v. State of Karnataka, (2011) 9 SCC 1)

The determination of whether a purpose is primarily public or private lies primarily with the Legislature. However, where the State's power is exercised mala fide, for collateral purposes, is de hors the Act, irrational, or where the so-called "public purpose" is transparently a fraud on the statute, a writ court can interfere under Articles 32 and 226. The court, however, cannot substitute its own judgment for the Government's as to what constitutes public purpose in ordinary circumstances. (Sooraram Pratap Reddy v. District Collector, Ranga Reddy District, (2008) 9 SCC 552)

The Land Acquisition Act and Article 300A

The Land Acquisition Act, 1894 (now largely replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) was an expropriatory legislation and was required to be strictly construed. The Supreme Court held that Section 5A of the 1894 Act — which conferred on landowners a right to file objections to proposed acquisition — is akin to a fundamental right in the context of Article 300A. (Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627)

Under the eminent domain framework, the State possesses the power to take or control property for the public benefit, but when it so acts, it is obliged to compensate the injured owner by just compensation. (Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555) The Supreme Court has also held that where poor farmers are displaced by statutory acquisition, the welfare State is under not only a duty to pay adequate compensation but also a legal obligation to rehabilitate the displaced persons. (Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353)

Statutes conferring the power to confiscate or imposing restrictions on the right to use one's land must be strictly construed. Where a statute involves drastic consequences for individual property rights, it should be construed so as not to cause greater hardship to citizens than was actually contemplated by the Legislature. (Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705)

Who Can Complain of Violation of Article 300A

Before invoking Article 300A, a party must satisfy three requirements:

1. He must establish that he has title to the property in question. Where title is disputed, he cannot invoke Article 300A until his title has been established in proper proceedings. (Bokaro and Ramgarh Ltd. v. State of Bihar, AIR 1963) The Supreme Court in Supriyo Basu v. W.B. Housing Board, (2005) reaffirmed that before a party can complain of infringement of his right to hold property, he must first establish his title.

2. The object to which his claim relates must constitute 'property' recognised by law (Audh Bihari Singh v. Gajadhar Jaipuria, (1955)).

3. The deprivation must have been caused by the State or an authority recognised under law — not by a private individual. (Paika Padhan v. Pindiko Patro, AIR 1958)

Further, the Supreme Court has held that deprivation of property from persons who cannot establish legitimate sources of income to acquire the assets held by them is consistent with both Article 300A and Article 14 of the Constitution. (Biswanath Bhattacharya v. Union of India, (2014))

Remedies: Article 226, Not Article 32

The shift of the property right out of Part III has an immediate remedial consequence. Since Article 300A is not a fundamental right, an aggrieved individual cannot approach the Supreme Court under Article 32 for its enforcement. The remedies available are:

• High Court under Article 226 — by way of a writ petition. The Hon'ble Supreme Court has cautioned that while examining a land owner's challenge to acquisition under Article 226, the High Court should not adopt a pedantic approach; it must decide the matter keeping in view the constitutional goals of social and economic justice. (Sri Radhy Shyam (Dead) through LRs v. State of U.P., (2011) 5 SCC 553)

• A civil suit before the appropriate civil court.

This distinction matters enormously in practice. A person dispossessed by the State without legislative authority does not have the luxury of a direct petition to the Supreme Court; he must traverse the longer route of the High Court or a civil suit.

The theory of basic structure — which the Supreme Court developed in Kesavananda Bharati v. State of Kerala — has been held not to save the right to property; the Supreme Court in Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995, explicitly held that the right to property under Article 300A is not a 'basic feature' of the Constitution and is merely a constitutional right subject to State restraints and regulation.

The Author's Critique: Regressive Consequences of the 44th Amendment

The source text, with characteristic candour, identifies what it calls the "regressive contribution" of the 44th Amendment. The consequences of repealing Article 31(2) and Article 19(1)(f) can be stated thus:

• If the appropriate Legislature makes a law depriving an individual of his property, the individual can no longer challenge its constitutionality as imposing an unreasonable restriction under Article 19(1)(f), because that provision has been repealed.

• Except in narrow categories (minority educational institutions; property under personal cultivation of agriculturists), the Legislature carries no constitutional obligation to pay any compensation to the deprived owner, however needy he may be.

• Even the condition of 'public purpose' — explicit in the original Article 31(2) — no longer appears in the constitutional text and has been re-introduced only by judicial interpretation.

Some High Courts attempted to read across from Maneka Gandhi v. Union of India, AIR 1978 SC 597, and argue that restrictions imposed by laws covered by Article 300A can still be tested for 'unreasonableness' under Article 14.

However, as the author cautions, this reasoning is fragile: the doctrine of non-arbitrariness in Maneka Gandhi was evolved from a confluence of Articles 14, 19 and 21 — of which Article 19(1)(f) has since been deleted and Article 21 has been held inapplicable to cases of acquisition of property (State of Maharashtra v. Basantibai Mohan Lal Khetan, AIR 1986 SC 1466).

A case solely resting on Article 14 against acquisition without compensation faces the further difficulty that legislation implementing Article 39(b)-(c) of the Directive Principles is shielded by Article 31C from challenge under Article 14.

The net consequence — as expressed by the jurists — is that a law which deprives a poor man's hut without compensation, for purposes that serve the political establishment, may find no legal remedy under the Constitution. This, the author points out, is a position less protective than even the 1977 Constitution of the U.S.S.R. and the 1978 Constitution of China, both of which expressly protected the personal property of citizens.

Frequently Asked Questions

Q: Is the right to property a fundamental right in India today?

No. The right to property ceased to be a fundamental right with the coming into force of the Constitution (44th Amendment) Act, 1978, which deleted Article 19(1)(f) and repealed Article 31(2). It now exists as a constitutional right under Article 300A, which is placed in Part XII of the Constitution, outside Part III. The Supreme Court in State of Maharashtra v. Chandrabhan Tale, AIR 1983 confirmed this position.

Q: What is Article 300A of the Indian Constitution?

Article 300A was inserted by the 44th Amendment, 1978, and provides that no person shall be deprived of his property save by authority of law. While it replaces Clause (1) of the original Article 31, it does not carry the status of a fundamental right and cannot be enforced by approaching the Supreme Court under Article 32. The remedy for its violation lies before the High Court under Article 226 or by way of a civil suit.

Q: Can a non-citizen or company invoke Article 300A?

Yes. The protection of Article 300A extends to "any person," which includes legal and juristic persons such as companies and corporations. It is not confined to citizens of India. (Dharam Dutt v. Union of India, (2004) 1 SCC 712)

Q: Is public purpose required for deprivation of property under Article 300A?

Although the constitutional text of Article 300A does not expressly mention public purpose, the Supreme Court has held that the article embodies the doctrine of eminent domain, of which public purpose is a condition precedent. A person can be deprived of his property only for a public purpose. (K.T. Plantation Pvt. Limited v. State of Karnataka, (2011) 9 SCC 1)

Q: What is the difference between Article 32 and Article 226 in the context of property rights?

Since Article 300A is not a fundamental right, a person aggrieved by deprivation of property cannot invoke Article 32 for a direct petition to the Supreme Court. Article 32 is available only for enforcement of fundamental rights under Part III. The remedy available in property cases is under Article 226 before the High Court, or a civil suit. This distinction has significant practical implications for the choice of forum and the nature of relief available.