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Private Property As Fundamental Right

The Honorable Supreme Court in its latest ruling has held that a citizen’s right to hold private property is a human right. This decision came in a case between a widow and the Himachal Pradesh state. In this particular case named Vidya Devi v. State of Himachal Pradesh [2020 Indlaw SC 15], Justice Malhotra made it clear that the State cannot take plea of ‘adverse possession’ and get away with acquiring private property of citizens and further asserted that right to private property is not only a constitutional or statutory right but is human rights as well.  Even if the state acquires private property the state should have proper sanction of law and proper compensation must be paid to the land owner as specified under Article-300A of the Indian Constitution. But when the incident of acquisition of land had taken place in the year 1967 Right to Property was fundamental right under Art- 19 (1)(f) and Art- 31 and was later converted to only a legal right under Article 300A of Constitution. This was done through the 44th Amendment to the Constitution.


44th Constitutional Amendment, 1978 has changed many aspects but it had special effect on the right of an individual to hold property. It deleted Article 19(1)(f) and Article 31 of the Constitution hence derecognizing right to property as a fundamental right. These 2 articles recognized an individual’s right to hold private property, have ownership over the property, to freely enjoy the property, dispose of the property according to his will and if the state need to take away the property, then the property must be used for public purpose and adequate compensation must be paid to the landowner. But since the Constitution has come into force a lot of dispute had surrounded around the right to hold property as a fundamental right. The state required to abolish zamindari, bring land reforms and accelerate development for which it required to acquire land but the state’s action was challenged citing the Art- 19(1) (f) and Art- 31 which guaranteed the land owners the fundamental right to hold property. This led to several amendments to Art- 31 which led to addition of many clauses such as Art- 31A Art- 31 B etc. This controversial article was limiting the States’ actions for infrastructure development and growth of industries and carrying forward the land reforms schemes. So, finally in the year 1978 by the 44th Amendment the right to hold property as a fundamental right was removed by deleting Art. 19(1) (f) and Art- 31 from the Constitution. But right to property was not entirely taken from the citizens as property or land forms a very major part of the wealth and works as a social security for them. So right to property was incorporated as a constitutional right or legal right by adding Art- 300A to the Constitution by the 44th Amendment itself. This Article guarantees the citizens the legal right to hold private property except if the law prescribes something else.


The statement that right to private property is a human right holds immense significance. This statement was required amidst the situation when right to hold private property is no longer a fundamental right by virtue of 44th Amendment and provisions such as ‘adverse possession’ exists in law which may expose the private property of citizens to arbitrary state actions of acquiring the property. For example, in this particular case of Vidya Devi v. State of Himachal Pradesh [2020 Indlaw SC 15], government acquired land from the illiterate and innocent widow without providin any compensation to her. When she later became aware of her rights and filed a suit for recovery of land or compensation the State claimed right over the land by the law of ‘adverse possession’. Under ‘adverse possession’ the trespasser gets right over the land if he has been in the possession on the land for 12 years continuously without any interference from the actual owner of the land.

Sometimes the state even claims that the land owner has given consent orally to the state to acquire the land. This case in particular took place in year 1967 when right to property was fundamental right but after the amendment on violation of fundamental right the citizen can no longer file a writ before SC or HC and has to file a civil suit for the same. So, it becomes more difficult for the individual to seek proper justice against the actions of the state. So, the judiciary has been time and again been vigilant in protecting the property rights of the individuals. From time and again by numerous cases such as State of Haryana v. Mukesh Kumar [2013 1 SCC 353] and many more the SC has held that right to property is a human right apart from being a constitutional or statutory right. The State has no authority to take away the private property of the owners except with the sanction of proper law. The same has been mentioned in Article 300A which was added to the constitution vide the 44th Amendment to the Constitution. Declaring right to property as a human right was very much necessary for a dignified life as mentioned in Article 21 of the Indian Constitution. Therefore, in the present time of extravagantly costly real estate property or land acts as major source of financial strength and state cannot take away property of the individuals without giving them their due compensation. Hence, state has no right to infringe the human right of the citizens without proper reason and compensation therefore in Vidya Devi’s case Himachal Pradesh state was ordered to pay ₹1 cr. as compensation to her land that was acquired by the state in the year 1967.


Art 300 A was inserted to the constitution in the year 1978 by the 44th Amendment. This was done to declare right to property as a legal or constitutional right as it was removed to be a fundamental right by deletion Art- 19(1)(f) and Art- 31 of the Constitution. This article was drafted in a way to create a balance between the interest of property owners and interest of the state. The Article says that- ‘No person shall be deprived of his property save by the authority of law.’ This means that nobody can be deprived from his right over property except if it is prescribed by law. This article emphasizes on the doctrine of eminent domain which means that state can take over any private land if it is for public use. Therefore, the law prescribing the acquisition needs to be valid and the acquisition of the land the state must be for public purpose. Though the provision for providing compensation to the property owners has not been mentioned in the article but the SC through interpretation in numerous cases has held that if the state acquires a land for public use it has to provide compensation to the owner according to Art 300A. Therefore, Art 300A acts as a protector of individual interest and a tool for the state for infrastructural and various other development.


As rightly decided by SC private property is indeed a human right though it no longer exists as a fundamental right. Property cannot be declared as fundamental right living in a developing country where there is a constant need for infrastructural development projects taken up by the government. For carrying forward these projects’ government would require land which may at many occasions belong to private parties. Therefore, if the government acquires land by proper procedure according to the law private individual cannot raise objection as the country’s development is a greater need that personal satisfaction.