Legal Guide

Is the Right to property a legal right?

by Bhavya Choudhary · 4 min read

right to property is a legal right

Introduction

  • In certain instances, it might be considered that the right to property is a legal right. The right to property was formerly considered a fundamental right in India, but by the 44th amendment to the Indian Constitution, the right to property has been incorporated into the constitution under Article 300A and the Transfer of Property Act. 
  • The right to property under the Indian Constitution has a unique history that may be defined as a lengthy fight between India’s legislature and court, despite its seeming simplicity.
  • The constitutional right to property project investigates the stormy history of the right to property under the Indian Constitution, from its establishment as a fundamental right in 1950 through its abolition as a fundamental right and restoration of the right to property as a legal right as well as a constitutional right in 1978. 
  • The Fundamental Right to Property was not only the second most controversial item in the writing of the Constitution, but it was also the most amended and the only fundamental right to be removed in 1978. 
  • The question that comes to our mind is that is right to property a legal right after removing it from fundamental rights. The right to property is a legal right as well as a constitutional right.

Prior to 1978, the fundamental right to property

  • The Government of India Act of 1935 authorized the acquisition and sale of the property before independence. Section 299 of the Act guaranteed the preservation of this right for all individuals, regardless of their status as zamindars or peasants. 
  • This insured that the people’s property would not be exploited or mistreated without adequate recompense. In addition, the Act permitted the government to utilize private property exclusively for public purposes.
  • The right to property was a constitutional right and it cannot be said the right to property is a legal right. 
  • The Constitution (First Amendment) Act of 1951 introduced the Ninth Schedule and two new Articles 31A and 31B to the constitution to render legislation awarding zamindars uncontestable in court.
  • The Fourth Amendment Act of 1955 made a number of modifications to Article 31 concerning the right to property. The purpose of these amendments was to give the government additional authority over forcible property acquisition and requisition. 
  • During this period, the Supreme Court was usually of the view that land reforms should be upheld, even if they directly interfered with the right to private property. However, the Court was skeptical of the government’s administrative authority in this field. 
  • The Court was insistent that administrative discretion to take or infringe upon property rights must be grounded in law, not mere fact.
  • During the time of nationalization, however, the court contended with the socialist administration, when it magnificently, although in a limited fashion, defended the right to property against the communist state’s overreach.
  • In this Bank Nationalisation case, the court has clearly underlined the following two points:
  • The Constitution guarantees the right to compensation equivalent to the monetary worth of property obtained through force. Therefore, the right to property is a legal right.
  • Constitutionally, the expropriated owner must be paid for the value of their property (the reasonable compensation for the loss of the property).

Position since 1978 – Is the right to property a legal right?

  • Following independence, there was a desire to pursue the socialist objectives of Prime Minister Jawahar Lal Nehru and to eliminate zamindars and other rural intermediaries who had acquired rights to vast tracts of land during colonial rule. 
  • When the government moved to dissolve these institutions, it faced a succession of judicial challenges under the Right to Property Clause of the Constitution.
  • As a consequence, the government determined that it would be better to avoid legal disputes while implementing its socialist ideas of restricted private land ownership to prevent wealth concentration and government control over the property as a means of ensuring distributed development.
  • The opposition to Articles 19(1)(f) and 31 of the Constitution as Fundamental Rights started almost immediately after the 1950 ratification of the Constitution. 
  • The Janata Party administration passed the 44th amendment, which removed the right to property as a fundamental right and replaced it with Article 300A, which limited it to a legal right after several courts fights over this contentious topic. The question that came was whether the right to property is a legal right. 
  • The answer to the question whether the right to property is a legal right or not is that the right to property is a legal right as well as a constitutional right.

Is the right to property a legal right or a constitutional right?

  • A legal right is a right that is provided by the acts and statutes whereas a constitutional right is provided in the constitution.
  • Therefore, to answer the question whether the right to property is a legal right or a constitutional right, it can be said that the right to property is a legal right as it is provided under the Transfer of Property Act. The right to property is a constitutional right as it is provided under the Constitution. Therefore, it can be said that the right to property is a legal right as well as a constitutional right.
  • A person can transfer property by entering into a sale deed. A sale deed can be made by consulting a lawyer online. A lawyer online can help you to get your deed drafted and registered.

Conclusion

Property conflicts between siblings are a typical occurrence in India. Property-related concerns sometimes lead to family feuds. Therefore, in case of any dispute, it is recommended to consult a civil lawyer.

Property conflicts between siblings are a typical occurrence in India. Property-related concerns sometimes lead to family feuds. Therefore, in case of any dispute, it is recommended to consult a civil lawyer.

Bhavya Choudhary

Written by

Bhavya Choudhary

Get Expert Legal Advice For

Property Matters

Enter a valid phone number

Related Articles

View MoreView More

Hi there 👋!

How can I help you?

whatsapp