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Right to Property: Journey from Fundamental Right to constitutional Right.

Introduction:

When the Constitution of India came into force on 26th January 1950, the Right to Property was a fundamental right under part III of the Constitution. Article 19(1)(f) and Article 31, were the two articles which used to guarantee the Right to Property as a fundamental right.


Judicial Interpretations of Right to Property as a Fundamental Right:

The Journey of judicial interpretation of Right to Property begins in 1954 when two more articles of Right to Property (Article 31A & 31B) were inserted by First Amendment Act. Later on, the validity of the First Amendment Act was challenged in the case of Shankari Prasad Deo v. Union of India but the Supreme Court upheld the validity of the Act.

In R.C.Cooper v. Union of India also known as Bank Nationalization Case, a new article was inserted in Right to Property as Article 31C through 25th Amendment Act 1971. The validity was this Amendment was challenged in Keshavananda Bharti v, Union of India. Supreme Court though upheld the validity of Amendment held that Right to Property is still a fundamental right but will not be considered as a ‘basic feature’ of the Constitution.


Right to Property as Constitutional Right:

Finally in the 44th Amendment of 1978 Right to Property was negated as a fundamental right. Article 19(i)(f) and Article 31 were removed from Part III of the Constitution. A new Article which read as Article 300A was inserted in Chapter IV of Part XII of the Constitution.

After the 44th Amendment of 1978 Right to Property was given the status of Constitutional Rights. In the case of the State of Maharashtra v. Basantibai Mohanlal Khetan question comes before the Court that whether Right to Property can be part of Right to Life under Article 21. Supreme Court cleared this by quoting “Article 21 essentially deals with personal liberty and has very little to do with the Right to Property.” 

  1. AIR 1951 SC 458

  2. AIR 1970 SC 564

  3. AIR 1973 SC 1461

  4. AIR 1986 1466


Conclusion:

Though the Right to Property was abolished as a fundamental right but still today it holds its constitutional value. “State cannot deprive any person of their Right to Property without the mandate of law and reasonable compensation in return” as quoted by two-Judge Bench of Justice Indu Malhotra and Justice Indira Banerjee in the case of Hari Krishna Mandir Trust v. State of Maharashtra and Others.


Sulabh Gupta

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