Right to Property – India

“If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind?”

In my previous post, Right to Property, I claimed that Indians don’t have a fundamental right to property, and instead it’s a constitutional right. I am not trained in law or constitutional law of India. Therefore it was not an expert opinion.

In my opinion, the US constitution differs from the Indian constitution in one significant aspect. The US constitution places the citizens of the US as the principal and the US government as the agent. It was created by people who wanted to have a republican form of government. The stress was on freedom and liberty.

The Indian constitution was a British creation. It’s a colonial document. It placed the government at the principal and the people as its servants. There were no checks on the government. The stress was on government control of the people.

In the comments, someone pointed out that the US has the notion of eminent domain. Doesn’t that mean that US citizens also don’t have a right to property? Not quite.

Anyhow, I asked ChatGPT the question, “Do Indian citizens have a right to property?” Here’s the answer.

Begin quote.

Yes,  Indian citizens  do have a  right to property, but the scope and nature of this right have evolved significantly over time. The  Constitution of India  originally provided a  fundamental right to property, but this right has been modified by subsequent amendments.

1. Right to Property as a Fundamental Right (Article 31) 

• •  When the  Constitution of India  was adopted in 1950,  Article 31  guaranteed the right to property as a  fundamental right .
  •  Article 31 protected citizens from being deprived of their property without  due process of law  and stipulated that property could not be taken by the government except for  public purposes , and only with  just compensation .

However, over time,  property rights  became a subject of significant change through constitutional amendments.

2. The 44th Amendment (1978) 

• •  In  1978 , the  44th Amendment  to the Constitution of India significantly altered the status of the right to property. It removed the  right to property  from the list of  fundamental rights  (Article 31).
  •  The right to property was moved to  Article 300A , which states:
    • “No person shall be deprived of his property save by authority of law.”

This change meant that the right to property became a  legal right  (protected by ordinary law) rather than a  fundamental right (protected by the Constitution as an essential guarantee). This shift made it easier for the government to enact laws for the acquisition of property, such as land reforms and eminent domain (for public purposes), without needing to justify them as fundamental constitutional protections.

3. What Does Article 300A Provide? 

• •   Article 300A  guarantees that no person can be deprived of their property except by the authority of law. This means that property can be taken away or regulated by the government, but it must be done through a legal process (such as passing a law, issuing orders, or following a fair judicial procedure).
  •  This  legal right  is still strong, but it lacks the robust protections of a  fundamental right  (such as the right to approach the courts directly if violated).

4. Property Laws and the State’s Power 

• •  Although property is no longer a fundamental right, the Indian government retains the power to  acquire land  for  public purposes  (such as infrastructure projects, urban development, or industrial growth) under  eminent domain . The government must, however, compensate the owner of the property at  market value  or as determined by law.
  •  The  Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013  provides a framework for land acquisition, ensuring fair compensation to those whose land is taken.

5. Land Reforms and Social Justice 

• •  Over time, India has implemented  land reform  laws aimed at promoting  social justice  and breaking up large estates. These laws, which sometimes involve the  expropriation  (forced acquisition) of land, were designed to redistribute land to the landless or poor.
  •  Such measures reflect the tension between the right to private property and the state’s interest in ensuring social and economic equity.

6. Property Rights and Judicial Oversight 

• •  Even though property is not a fundamental right,  judicial oversight  ensures that any deprivation of property by the state must be done according to law. Courts are tasked with ensuring that property acquisition or regulation is done in a  fair, transparent, and just manner .
  •  Citizens can challenge the government’s actions related to property through regular courts, but they cannot directly claim the violation of a fundamental right.

End quote.  

In effect, there’s a legal right to property. But legislation can be passed if and when it suits the government to just take property and that’s that. After all, the legislators form the government. My claim that Indians don’t have a right to property is not invalid.