Revisiting Property Rights In India - Constitutional Amendments, Human Rights, And Governance

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:57:10.033643+00:00

Updated: 2026-08-26T17:09:40.242+00:00

REVISITING PROPERTY RIGHTS IN INDIA:

CONSTITUTIONAL AMENDMENTS, HUMAN RIGHTS, AND

GOVERNANCE

Preeti, LL.M., National Forensic Science University, New Delhi

ABSTRACT

The right to property in India has undergone significant transformations, reflecting the interplay between individual rights, societal welfare, and constitutional mandates. This paper examines the evolution of property rights, tracing their journey from being enshrined as a fundamental right to their current status as a constitutional right under Article 300-A. It explores the classification of property, its historical development, and the pivotal role of constitutional amendments and judicial interpretations in shaping its trajectory. The study also delves into the human rights implications of land acquisition, highlighting the socio-economic challenges faced by marginalized communities, including displacement and inadequate rehabilitation.

Special focus is given to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013, analyzing its provisions, loopholes, and impact on land governance. The paper concludes with recommendations for strengthening legal frameworks to ensure a balanced approach that protects individual property rights while promoting public welfare and addressing the rights of displaced populations. Keywords: Right to property, Constitutional right, Human Rights, Land Laws

1. Introduction

The concept of the right to property stands at the intersection of individual autonomy, economic prosperity, and societal progress. In India, its evolution mirrors the nation’s journey of balancing individual rights with collective interests. Originally enshrined as a fundamental right, the right to property underwent significant constitutional modifications, reflecting the dynamic interplay between human rights and the shifting priorities of a developing nation. This paper explores the historical trajectory of the right to property in India, analyzing its constitutional foundations, key legal developments, and its current status as a constitutional right. Property is a dynamic idea. It has changed over time in a dynamic, adaptable way and has been interpreted in various ways by different communities, legal systems, and historical periods.

It has differed widely, even within the same community and legal system. ‘John Stuart Mill’ perfectly represents this situation in his “Chapters on Socialism”1, which even the famous socialist theorist ‘Harold Laski’ praises. The concept of property cannot be simplified to a single interpretation, not even at the conceptual level. Salmond lists at least four different ways to classify the term, which are as follows: - (i. ) All legal rights, (ii. ) Proprietary rights, (iii. ) Proprietary rights in rem, (iv. ) Corporeal property. 2 This examination delves into the intricate dimensions of property, shedding light on its evolving significance in India’s legal and societal framework. In this regard this paper is presented in eight sections, including the introduction.

Section 2 explores the classification of property, differentiating between corporeal and incorporeal property and examining various legal interpretations. Section 3 traces the historical evolution of property, from primitive societies to its modern-day legal conception. Section 4 discusses the origin of the right to property as a fundamental right in India, focusing on legislative developments under British rule and the debates in the Constituent Assembly. Section 5 examines the journey of the right to property from a fundamental right 1 Baum, B. (2007). J. S. Mill and Liberal Socialism. In N. Urbinati & A. Zakaras (Eds. ), J. S. Mill's Political Thought: A Bicentennial Reassessment (pp. 98-123). Cambridge: Cambridge University Press. doi:10. 1017/CBO9780511618734. 005. 2 Philbrick, F. S. (1938, May). Changing Conceptions of Property in Law.

University of Pennsylvania Law Review and American Law Register, 86(7), 691. https://doi. org/10. 2307/3308734.

to a legal right, emphasizing the implications of the 44th Amendment and the introduction of Article 300-A. Section 6 addresses the issue of land acquisition and its impact on human rights, focusing on the socio-economic challenges faced by marginalized communities. Section 7 provides an analysis of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013, highlighting its key features, limitations, and implications for land governance. Section 8 concludes the paper with suggestions for improving the legal framework to balance individual property rights with public welfare and to address the challenges of displacement and rehabilitation effectively.

2. Classification of Property

Property can be categorized in a number of ways. The contrast between corporeal, or actual property, and incorporeal property forms the basis of one approach. 3 The first involves having ownership over tangible objects, or those with physical existence. 4 Examples of this include real estate, housing, and personal property like jewellery and animals. Entities that lack a real or physical presence but are instead made by the law are considered incorporeal property. 5 The example of intellectual property, such as patents and copyrights, is arguably the best-known. Another illustration, as previously indicated, relates to rights in re-aliena, such as leases, securities, etc. Jura in re-propria and jura in re-aliena do constitute another grouping. 6 The latter speaks of property rights.

In other words, the person who has the right is regarded as the owner of that particular piece of property. The scope of rights in re-propria may include both tangible (land, chattels) and intangible properties (patents, copyrights). It should be highlighted that the prime owner of rights in re-propria over immaterial goods, notably intellectual property like patents and copyrights, is the person who created the thing that gives rise to those rights. 7 3 Jr, Geo. P. C. (1903, May). A Plea for a Modern Definition and Classification of Real Property. The Yale Law Journal, 12(7), 425–440. https://www. jstor. org/stable/781687.

4 Ibid

5 Id.

6 Id.

7 Jr, Geo. P. C. (1903, May). A Plea for a Modern Definition and Classification of Real Property. The Yale Law Journal, 12(7), 425–440. https://www.jstor.org/stable/781687.

Meanwhile, rights in re-aliena typically merely grant the person, the possession of the property rather than ownership. An example of in re-aliena right would be a lease on the land. It does not grant the holder ownership rights; rather, it grants him the right to enter, cultivate, and otherwise use the land. This right can only be categorized as incorporeal property because it does not include ownership of a physical object. In other words, a lease over a plot of land merely grants a restricted right to use the land, not a claim to the land itself. However, one could even argue that it amounts to ownership of that limited usage. Finally, it should be noted that neither property nor ownership is absolute concept. Instead, they strike a balance between the owner's (or creator's) personal interests and the public welfare of society.

This public interest has received significant weight in relation to intellectual property. Both copyright and patent law establishes a number of exceptions where it is acceptable to copy innovations or creative works without the owner's permission or just compensation. There are fewer of these with the corporeal property. Even yet, there are a number of circumstances in which a person's land and other property may be taken from him without his knowledge or permission.

3. Evolution of Property

Property has undergone centuries of change. Law and property had no place in the early development of man.8 Then, the rule of "might makes right" applied; whoever had more power had more control over things.9 The phrase "nasty, brutish, and short" by Hobbes accurately described life.10 As civilization developed, the idea of a legitimate interest gradually grew in importance to people. Rights or claims eventually formed a defence mechanism against unrestrained force. Personal and proprietary interests also followed it. In the same way, as beliefs of the family and marriage evolved, so did those of property.11 There are various levels that make up the right to property. The first group consists of the things necessary for the 8 Seipp, D. J. (1994). The Concept of Property in the Early Common Law. Law and History Review, 12(1), 29–

91. http://www.jstor.org/stable/30042821.

9Ganguli, A. K. (2006). RIGHT TO PROPERTY: ITS EVOLUTION AND CONSTITUTIONAL DEVELOPMENT IN INDIA. Journal of the Indian Law Institute, 48(4), 489–526. http://www.jstor.org/stable/43952060. 10 Thomas Hobbes: “Solitary, poor, nasty, brutish, and short.” (2021, January 9). Yale University Press London Blog. Retrieved October 7, 2024, from https://yalebooksblog.co.uk/2013/04/05/thomas-hobbes-solitary-poornasty-brutish-and-short/. 11Ganguli, A. K. (2006). RIGHT TO PROPERTY: ITS EVOLUTION AND CONSTITUTIONAL DEVELOPMENT IN INDIA. Journal of the Indian Law Institute, 48(4), 489–526. http://www.jstor.org/stable/43952060.

existence of human dignity. Clothing, food, and shelter are pertinent examples of this layer. The second includes a person's whole profession, career, and means of livelihood. It also includes the artisan's tools and equipment, the lawyer's books, and even the doctor's stethoscope. It even includes the farmer's plough. The right to obtain and keep things that would lessen his ability to enjoy his life and his labours constitute the third division. Over time, the definition of property changed, and so did its content. 12 Law did not significantly alter the concept of property over time, but rather human society did. 13 The land is still likely to be a very important type of property today as it was yesterday. It cannot be disregarded. 14 The other types of property, however, are now quite significant in industrially developed nations.

When everything is said and done, the property can primarily consist of a millionaire holding a bundle of paper in his hands that symbolizes millions, securities, promissory notes, etc. That is how people today think of property, and that is how they really think of millionaires. To have to carefully protect a property that, in the grand scheme of far greater properties, is paper is a really strange idea. 15 No society in a civilised era could completely abolish property. Even communist regimes like China and the former USSR have acknowledged the idea in certain ways, though not in the same depth or breadth as capitalist nations have. 16 The USSR Constitution of 197717 specifies in Article 57 that “Citizens of the USSR have the right to protection by the courts against encroachments on their honour and reputation, life and health, and personal freedom and property.

”18 This is an expansion of the fundamental idea in Article 39: The social, economic, political, and personal rights and freedoms proclaimed and guaranteed by the USSR Constitution and by Soviet legislation are fully enjoyed by USSR citizens. As social, economic, and cultural development initiatives are carried out, the socialist system ensures that citizens' rights and freedoms are expanded and that their living standards are continuously raised.

12 Ibid.

13 MINOGUE, K. R. (1980). THE CONCEPT OF PROPERTY AND ITS CONTEMPORARY

SIGNIFICANCE. Nomos, 22, 3–27. http://www.jstor.org/stable/24219420.

14 Ganguli, supra note 11.

15Snare, F. (1972). The Concept of Property. American Philosophical Quarterly, 9(2), 200–206. http://www.jstor.org/stable/20009439.

16 Ganguli, A. K. (2006). RIGHT TO PROPERTY: ITS EVOLUTION AND CONSTITUTIONAL

DEVELOPMENT IN INDIA. Journal of the Indian Law Institute, 48(4), 489–526. http://www.jstor.org/stable/43952060.

17 USSR Constitution, Retrieved October 3, 2024, from

https://www.marxists.org/history/ussr/government/constitution/1977/constitution-ussr-1977.pdf.

18 USSR Const. art. 57.

However, a provision in article 39 known as the rider has significantly weakened both the ‘right to property’ and ‘other essential human rights’. According to it, citizens' enjoyment of their rights and freedoms “shall not be to the damage of society or the state, or infringe upon the rights of other citizens.”19

4. Origin of Right to Property as a Fundamental Right

British colonial rule over India lasted for a very long time. Untold suffering for the nation's masses—especially those who dared to speak out against oppression—followed this highly oppressive administration. As a result, throughout the history of the constitution, statesmen actively worked to pass laws that would guarantee some fundamental human rights.20

4.1 Under the British Rule

The renowned ‘Home Rule BilI’21, which granted residents, among other things, the ‘freedom of expression’, the ‘inviolability of one's home’, and ‘equality before the law’, specified the number of constitutionally guaranteed rights as early as 1895. A “statement of rights”, similar to those found in the Irish Constitution was envisioned by the ‘Commonwealth of India Bill of 192522’. Fundamental rights were thoroughly discussed by the Nehru Committee, which was established by the All-Parties Conference. 23 In the end, the Government of India Act, 1935's sections 275 and 297 to 300 granted certain rights to British subjects in India. This comprised the right against employment discrimination, the right to property, as well as other rights safeguarding grants of land free of revenue or subject to remissions of land revenue.

For the first time, the Joint Committee on Indian Constitutional Reforms24 suggested in its report that certain protections against the acquisition of private property be granted. however, It opposed, securing any individual property rights. According to their recommendation,

19 USSR Const. art. 57.

20 Ganguli, A. K. (2006). RIGHT TO PROPERTY: ITS EVOLUTION AND CONSTITUTIONAL

DEVELOPMENT IN INDIA. Journal of the Indian Law Institute, 48(4), 489–526. http://www. jstor. org/stable/43952060. 21The Constitution of India Bill (Unknown, 1895). (n. d. ). Constitution of India. Retrieved October 4, 2023, from https://www. constitutionofindia. net/historical_constitutions/the_constitution_of_india_bill__unknown__1895__ 1st%20January%201895. 22The Commonwealth of India Bill (National Convention, India, 1925). (n. d. ). Constitution of India. Retrieved October 5, 2024, from https://www. constitutionofindia. net/historical_constitutions/the_commonwealth_of_india_bill__national_conve ntion__india__1925__1st%20January%201925.

23 For a comprehensive treatment of the origins of fundamental rights, see The Framing of India's Constitution (hereinafter referred to as 4 FIC ') 170-318(2004) 24 Report of the Joint Parliamentary Committee on Indian Constitutional Reforms, 1934 Vol I para 369.

legislation that expropriates or authorises the expropriation of private property should only be valid if it serves public interests and "if compensation is established, either in the first instance or on appeal, by some independent authority. " At the third reading of the bill, the Attorney General urged that the reference to compensation decision by some independent entity be withdrawn because, in his perspective, the safeguard could be accomplished by the Governor- General using his veto. Finally, the Government of India Act, 1935's25 Section 299 offered certain protections against the arbitrary acquisition of land and property as well as for the payment of “compensation” in the event that a property is acquired for public use. 26 A Constituent Assembly was proposed by the British Cabinet Mission in 1946, and the creation of an advisory committee was advised.

A subcommittee on fundamental rights was established within the latter. On April 3, 1947, this subcommittee completed its final draft. The advisory board approved its proposals for

1. Dividing rights into those that are justiciable and non-justiciable;

2. Guaranteeing some rights to everyone while reserving others for citizens exclusively; and 3. Making each of these rights equally relevant to the union and the units. 4. 2 The Constituent Assembly The first session of India's Constituent Assembly took place on December 9th, 1946. Given that India had been under foreign rule for over 200 years, the founding fathers felt it vital to clearly define the powers, responsibilities, and domains of operation of the various governmental bodies. Unavoidably, a solid, workable bill of fundamental rights—of which the right to property was a crucial component—formed a top priority. In his drafts, ‘K M Munshi’ contained the following clause: “No person shall be deprived of his life, liberty or property without due process of law. 27” However, ‘KT shah’ who was an alumnus of the London School of Economics, followed a different approach.

It recognized the

25 The Government of India Act, 1935. (n.d.). Retrieved October 7, 2024, from

https://legislative.gov.in/sites/default/files/legislative_references/GOI%20act%201935.pdf. 26The Government of India Act, § 299 (1935), at https://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf.

27 Art. v (1) (e), Munshi's Draft, found in FIC, vol. II at 75.

state's power to take private property. Only if religious institutions' property was taken and compensation considered. 28 13 Finally, on March 26, 1947, the Sub-Committee on Fundamental Rights produced the following Draft Clause 27: 29 “No property, movable or immovable, of any person or corporation, including any interest in any commercial or industrial undertaking, shall be taken or acquired for public use unless the law provides for the payment of just compensation for the property taken or acquired and specifies the principles on which and the manner in which the compensation is to be determined. ” ‘B N Rau’, who was responsible for the general structure of the democratic framework of the Constitution also opined that the 'due process' clause might prove an impediment to social justice.

He proposed the following clause be added: “The State may limit by law the rights guaranteed by sections 11, 16, and 27 whenever the exigencies of the common good so require. ” He pointed out that a similarly worded clause in the American fifth amendment had caused several progressive laws to be overturned and that even the Irish Constitution had taken a middle course. 30 It is well known that the advisory committee strongly opposed the concept of the "due process" clause insofar as it pertains to property. ‘G. B. Pant, noted that it would be a big hurdle to the elimination of zamindari, the feudal system currently in use in India. 31 ‘Alladi Krishnaswami Ayyar’ defended the provision by pointing out that a provision with similar wording in the 1935 Act, section 299, had not prevented the government from acquiring property.

While Panikkar’s idea to eliminate the term "just" from the acquisition clause was rejected32, Pant's suggestion to limit the acquisition clause to solely "governmental purposes" was included as clause 19 of the Advisory Committee's Interim Report on the Fundamental Rights. 33

4.3 Right to Property under the Constitution of India

The right to property was finally included in the list of fundamental rights in the following

28 K T Shah's Draft, FIC, vol. II at 5.

29 Draft Report, Annexure, FIC, vol. II at 128, 14.

30B N Rau's notes, FIC, vol. II at 151-52.

31 Advisory Committee Proceedings, FIC, vol. II at 245-46.

32 Advisory Committee Proceedings, FIC, vol. II at. 272-76,291

33 Advisory Committee Interim Report, FIC, vol. II at 298.

way: Some of the rights that were listed in Article 19 and granted protection to all citizens. The right "to acquire, hold, and dispose of property" was stated in Article 19(1)(f) of the Constitution. 34 Certain protections against the compulsory acquisition of individual properties were granted by Article 31. It was largely based on the English notion of private property and was developed from sub-sections (1) and (2) of section 299 of the ‘Government of India Act, 1935’35. Although Article 31 (1) adopted Section 299 (1)'s text, clause (2) significantly diverged from section 299 (2). While movable properties were not covered by section 299, it included all private properties, whether they were movable or immovable (2). While Section 299(2) exclusively dealt with the acquisition, Article 31(2) dealt with both acquisition and taking possession of properties, which included requisition.

Article 26 recognized the right to property of religious denominations and stated that ‘Subject to public order, morality, and health, every religious denomination or any section then shall have the right- (a) to establish and maintain institutions of religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property, and (d) to administer such property in accordance with the law.

4.4 Right to Property – Post Constitution

1st Constitutional Amendment According to the proposed amendment to Article 19(6), "reasonable restrictions" on the exercise of the right granted by ‘Article 19 (1) (g)’ must be "in the interests of the general public" and must be broad enough to include any nationalisation plan that the State may undertake. According to certain high courts' interpretations of Article 31, agricultural reform laws implemented in Bihar, Uttar Pradesh, and Madhya Pradesh (such as the abolition of the zamindari system, etc.) were unlawful despite the provisions of clauses (4) and (6) of that article. In order to "completely secure the constitutional legality of the Zamindari abolition legislation in general and certain specified State Acts in particular," articles 31 -A and 31 -B

34 Indian Const. art. 19, § 1(f).

35 The Government of India Act, 1935. (n.d.). Retrieved October 7, 2024, from

https://legislative.gov.in/sites/default/files/legislative_references/GOI%20act%201935.pdf.

were added. In the case of Shankari Prasad v. Union of India36, the constitutionality of the first amendment to the Constitution was contested before the Supreme Court. The court unanimously upheld the constitutional amendment, concluding that the term "Law" in article 13(2) of the Constitution only applied to the exercise of ordinary legislative power and not to amendments to the Constitution made by Parliament in accordance with its power under article 368 of the Constitution. • 17th Constitutional Amendment It is clear from the statement of objections grounds included in bill number 1 of 1963 that was introduced in order to overturn the Supreme Court's ruling in the Kunhikoman case37, which resulted in the enactment of the Constitution (17th Amendment) Act, 1964. 38 In the case of Sajjan Singh v.

the State of Rajasthan39, the petitioners contested the constitutionality of the Seventeenth Amendment Act on the grounds that it was likely to affect the authority granted by Article 226 and had not been submitted in accordance with the special procedure outlined in the proviso to Article 368. When Parliament wants to change any of the constitutional provisions covered by Clauses (a) to (e), including Article 226's provisions, a special procedure under Article 368 must be followed. According to the Supreme Court, Article

226 is unchanged and the Seventeenth Amendment Act is valid because Parliament only wants

to amend fundamental rights in order to remove any obstacles to the implementation of socioeconomic policy. The petitioners in the case of Golak Nath40, who were his son, daughter, and granddaughters, argued that the Punjab Security of Land Tenures Act's 41provisions violated their rights under articles 14 and 19(l)(f) and 19(1)(g) of the Constitution by declaring the land holding ceilings in their possession to be surplus. Additionally, they disputed the Constitution's first, fourth, and seventeenth amendments. The eleven-judge constitution bench, presided over by Chief Justice 36Shankari Prasad v. Union of India AIR 458 (1951).

37 Karimbil Kunhikoman vs State Of Kerala AIR 723 (1962).

38 https://legislative.gov.in/constitution-seventeenth-amendment-act-1964.

39 Sajjan Singh v. the State of Rajasthan 1 SCR 933 (1965).

40 Golaknath v. State Of Punjab AIR 1643 (1967).

41 http://plrs.org.in/pdfs/Punjab%20Security%20Of%20Land%20Tenures%20Act.pdf.

‘Subba Rao’, declared unanimously that the aforementioned modifications were invalid because they went beyond the scope of the competence of Parliament to modify the Constitution and violated article 13(2). • 24th, 25th and 29th Amendments Keshvananda Bharati filed Writ Petition no. 135 of 1970 on March 21 under article 32 of the Constitution, asking, among other things, for a declaration that the Kerala Land Reforms Act 1963,42 as amended by the Kerala Land Reforms (Amendment) Act 1969, was unconstitutional, ultra vires, and void because it violated his fundamental rights under articles 25, 26, 14, 19(1)(f), and 31 of the Constitution. 43 The Kerela Land Reforms (Amendment) Act, 197144 was approved while the writ petition was pending. On April 26, 1971, In Kunjukutty Sahib v.

the State of Kerala45, the Supreme Court confirmed the majority decision of the Kerala High Court that resulted in the repeal of some provisions of the Act. The 24th, 25th, and 29th Amendments went into effect on November 5, 1971, April 20, 1972, and June 9, 1972, respectively. The Kerala Land Reforms (Amendment) Act of 1969 and 1971 was added to the 9th Schedule at serial numbers 65–66 by the 29th Amendment. By amending the writ petition, which was permitted by the court by order dated August 10, 1972, the petitioner also challenged these changes. When the case was brought before the constitution bench, it was forwarded to a larger bench of 13 judges so they could decide whether the challenged constitutional revisions were valid or not. The majority, represented by ‘Chief Justice Sikri’, supported the validity of the aforementioned three constitutional changes.

He believed that as long as the fundamental structure and foundation of the Constitution are respected, every provision of it may be changed. ‘Sikri, CJ’, rejected the arguments that the phrase "rights conferred" in Article 13(2) supports the idea that certain of the rights in Part III are not natural and inalienable rights, noting that

42 https://ildm.kerala.gov.in/wp-content/uploads/2017/01/1.THE-KERALA-LAND-REFORMS-ACT-1963.pdf.

43 Keshavananda Bharati v. State of Kerala Supp SCR 1 (1973).

44 https://blinkvisa.com/blog/wp-content/uploads/2024/07/The-Kerala-Land-Reforms-Amendment-Act-

1971.pdf.

45 Kunjukutty Sahib v. the State of Kerala (1) SCR 326 (1973).

India is a signatory to the Universal Declaration of Rights, which identifies some of the fundamental rights as inalienable, and that several court decisions have referred to the fundamental rights as "Natural Rights" or "Human Rights." Furthermore, the decision in Golaknath's case46 that the word "law" in article 13(2) did not apply to amendments to the Constitution under article 368 was overturned by the majority of the justices.

5. Right to Property: A Journey from Fundamental Right to Legal Right

Not only did the political environment change significantly after the emergency, but the constitutional law also underwent significant modifications. A comprehensive change to the constitution was enacted by the Constitution 42nd Amendment Act of 197647, frequently referred to as the "Mini constitution. " It really is interesting to note that the Janata government sought to overturn the changes made by the 42nd Amendment Act after coming into power at the centre. The Constitution (44th Amendment) Act of 197848 was enacted by it. One of the major changes brought about by this amendment was the deletion of articles 19(l)(f) and 31, which dealt with the “fundamental right to property” and allowed for its rebirth as article 300- A, establishing the right to property as a legal right.

The Statement of Objects and Reason provided an explanation of the rationale behind the proposed significant amendment to the Constitution. According to it, the right to property would no longer be a fundamental right but merely a legal right. Both Article 19 and Article 31 underwent the necessary modifications. However, it was made clear that the rights of minorities to establish and manage educational institutions of their choice would not be impacted by the removal of property from the list of fundamental rights. The individual's right to obtain compensation at market value who owns land for personal cultivation and is within the ceiling limit would also be unaffected. The right to property thus transformed into a legal right was the reiteration of Article 31(1) which declared that 'no person shall be deprived of his property save by authority of law'.

The Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act

46 Golaknath v. State of Punjab AIR 1643 (1967).

47 THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976. (n.d.). Ministry of Law and Justice.

Retrieved October 4, 2024, from https://legislative.gov.in/constitution-forty-second-amendment-act-1976.

48 THE CONSTITUTION (FORTY-FOURTH AMENDMENT). (n.d.). Ministry of Law and Justice. Retrieved

October 4, 2024, from https://legislative.gov.in/constitution-forty-fourth-amendment.

of 198249 were challenged as being unconstitutional by the Supreme Court after the inclusion of article 300-A into the Constitution. According to this, with effect from 1. 5. 1960 in the State of Gujarat, the mines and minerals in the alienated lands were excluded from the abolition and extinguishment of the rights of Girasdars or Barkhalidars. 50 The judge concluded that the right to property in article 300-A is not a fundamental feature or structure of the Constitution. It’s only a constitutional right. The Court further ruled that "Article 14 of the Constitution is not a basic structure" when referring to the right to property. Article 300-A's referring to "property" must be viewed in the context of the state's eminent domain power.

According to the ruling, "Article 300-A attracts to an acquisition or taking possession of the private property, by necessary implication for a public purpose, in conformity with the law passed by the Parliament or the state legislature, a regulation or a statutory order having the force of law. " Additionally, it was decided that this will be up for judicial review and that the court has a duty to judge whether a specific purpose is a public purpose or not.

6. Land Acquisition and the Issue of Human Rights

The Nehru idea that large dams and large-scale development projects are the contemporary temple of development was the cornerstone of independent India. India has pursued rapid economic growth through planned development since gaining independence. This has required significant financial outlays for dams, highways, mines, power plants, industrial parks, new cities, and other land-related projects. Infrastructure development is directly related to economic development. Rehabilitation is the process of caring for those affected by these projects. Since the country's independence, land has been acquired from private persons, primarily farmers, in order to expand towns and cities by transforming agricultural land into nonagricultural land. Risks associated with forced displacement include "landlessness, nobleness, marginalisation, increased morbidity and mortality".

A larger area of land was taken from the people for "public purpose" and development under the banner of industrialization, and it was ultimately given to private enterprises. 51 Societies have attempted to strike a balance between 49 The Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982. (n. d. ). PRS Legislative Research (PRS). Retrieved October 5, 2024, from https://prsindia. org/files/bills_acts/acts_states/gujarat/1982/1982GUJARAT8. pdf.

50 Jilubhai Nanbhai Khachar v. State of Gujarat Supp 1 SCC 596 (1995).

51 S S, J. (2013, September). An Overview of Land Acquisition Act and Human Rights Issues. International Journal of Humanities and Social Science Invention, Volume 2(Issue 9), 44–49.

governmental power and individual rights throughout the course of human history. 52 On a global level, it is considered a violation of human rights. 53 The Narmada Dam case is a prime example of displacement without adequate rehabilitation. As of February 2002, more than 2,000 households that were uprooted by the multipurpose Hirakund dam project in the Sambalpur region of Orissa had not received compensation. 54 Further, The west Bengali region of Nandigram became the sight of a battle in 2007 over the issue of land acquisition for the building projects of an automobile project between state police officers and the anti-land acquisition Bhumi Uchhed Pratirodh committee (BUPC), which was made up of the poor who refused to sell their lands. 55 Moreover, the pattern of land acquisition has changed; in the past, most development projects fell under the heading of water resources.

In the four states of Andhra Pradesh, Chhattisgarh, Orissa, and Jharkhand, more than 14 million people have been uprooted from their homes. According to the government the majority are Adivasis and Dalits. According to studies on the social impacts of development projects, ethnic minorities and indigenous people are disproportionally affected. Tribal or tribal people make approximately 40–50% of the displaced in India. 56 This is due to the fact that they are less exposed to modern society and the economy than middle-class farmers. Compared to the middle caste, they are more homogeneous. After India and Pakistan were divided, the constitution states that persons who were forced to leave their home country are entitled to rehabilitation and settlement assistance from the Indian government.

The constitution does not, however, provide any provisions for persons who have been uprooted from their homes as a result of government developmental projects. 40% of the individuals who lost land due to state-sponsored activities in the first forty years after https://www. ijhssi. org/papers/v2(9)/Version-1/H0291044049. pdf; Eyras, X. (2008, September). An SEZ with a Defiance. Social Action, 58, 272. 52 S. S, J. (2013, September). An Overview of Land Acquisition Act and Human Rights Issues. International Journal of Humanities and Social Science Invention, Volume 2(Issue 9), 44–49. https://www. ijhssi. org/papers/v2(9)/Version-1/H0291044049. pdf.

53 http//www.2ohchr.org

54 M.J. Peterson. 2010. “Narmada Dams Controversy.” International Dimensions of Ethics Education in Science and Engineering. Available www.umass.edu/sts/ethics.

55 2007: Nandigram protest TEAM FRONTLINE. (2022, August 25). Frontline. Retrieved October 6, 2024,

from https://frontline.thehindu.com/politics/india-at-75-epochal-moments-2007-nandigramprotest/article65722145.ece.

56 Indian Tribes and Displacement. (n.d.). Retrieved October 7, 2024, from

http://www.haldiagovtcollege.org.in/wp-content/uploads/2020/05/VI-SEM_C14T_Tribal-Displacement.pdf.

independence were tribals. People who are threatened by progress are refusing more frequently to put aside their own interests in favour of the common good. The repercussions of displacement are felt throughout generations in a variety of ways, including relationship marginalisation, a severe psychological trauma, and loss of conventional occupation (lively hood). Existing production methods are destroyed, kinship and poverty are impacted, and the cultural identities of tribal and ethnic minorities are in danger. Additionally, forced relocation is frequently linked to greater social and psychological strains as well as higher rates of sickness and mortality. Therefore, population shifts disturb social, economic, and cultural systems. As they lose productivity while adjusting to their new surroundings, people who are evacuated experience extreme stress.

57 Cash compensation, however, appears to the government and its agents to be the only solution to the issues brought on by displacement and the only rehabilitation programme, even though in reality it is the most ineffective form of rehabilitation. In comparison to the induced displaced persons, the development induced displaced person is likewise in the same scenario. What matters in the rehabilitation process are the packages. Packages vary from project to project, but all projects typically include a financial component in addition to housing space. 58

7. An Analysis of Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013

7.1 LARR Act, 2013

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act of 201359 (hereinafter referred to as the RFCTLARR Act) was introduced in the year 2013. It requires that the acquisition of land for a project involving public and private participation be approved by 70% of the affected landowners.60 A colonial legislation on land acquisition was replaced by the 2013 Act, which also aimed to safeguard farmers' rights to life 57 Sahay, A. K., & Sethy, P. (2000, January). Tribal Displacement and Resettlement Effective Safeguard. Social Action, 58(24). https://ili.ac.in/pdf/p6_balaji.pdf. 58 Dr. C. Nagiah, „Resettlement and Rehabilitation Upper Krishna Project, Special Deputy Commissioner UKP‟, (Unpublished, NLSIU in Association with NTPC, New Delhi conducting training program.15th-17th December 2010).

59 ACT No. 30 OF 2013.

60Right to Fair Compensation and Transparency in Land Acquisition Act, Rehabilitation and Resettlement Act, § 2(2)(ii).

and dignity.’ This new law is seen as the most significant change to land governance.

7.2 Main features of RFCTLARR Act

‘Public purpose’: It outlines the various "public purpose" schemes for which the government may acquire private property. 61 • ‘Prior consent’ is required from 70% of land losers and those working on government-assigned lands only in the event of public-private partnership projects,62 and from 80% in the case of private companies. 63 • ‘Compensation’: Up to four times the market value in rural areas and double the market value in urban areas are proposed as maximum compensation amounts. • R&R: This law is the first to link the responsibilities for resettlement and rehabilitation that go along with the Land Acquisition Act. • ‘Retrospective operation’- The Bill applies retrospectively to circumstances where no land acquisition award has been issued in order to redress previous injustice.

• ‘Return of unused land’: If the state so decides, unused land may now be given back to the original owners. 64 • ‘Strict limitations on the acquisition of multi-crop property’: Acquiring agricultural and multi-crop land must be done as a last resort. In every state, there will be clear limitations on the scope of land acquisition, which will be decided by the States concerned. • ‘Acquisition only if necessary’: It has to be made sure that the process of acquisition should take place only when there is no any land available. 61 Right to Fair Compensation and Transparency in Land Acquisition Act, Rehabilitation and Resettlement Act, § 2. 62 Right to Fair Compensation and Transparency in Land Acquisition Act, Rehabilitation and Resettlement Act, § 2(2). 63 Right to Fair Compensation and Transparency in Land Acquisition Act, Rehabilitation and Resettlement Act, § 2(2).

64 Right to Fair Compensation and Transparency in Land Acquisition Act, Rehabilitation and Resettlement Act, § 101.

This new act of 2013, also gives the ‘Fishing rights’. However, this right is subject to certain conditions. • ‘Time-bound social impact assessment’: The Act provides a mandates for the social impact assessment of every project. This act states that the impact assessment must be completed within a period of six months. • The government must form a multidisciplinary, independent Expert Group- Two non-official social scientists, two members of the Panchayat, Gram Sabha, Municipality, or Municipal Corporation, two rehabilitation experts, and a technical expert in the project-related field shall make up the Expert Group.

7.3 Loopholes in the Act

Delays are caused by the Act- There are several steps in the acquisition process, which can take up to four and a half years to complete. • The expert group's suggestions are not legally binding; therefore, the government may move forward with the acquisition process regardless of what the recommendations might indicate. This provides the government enormous power to silence the voice of the people. • A vague definition of "public purpose"- The Act's definition of the public purpose covers a broad range of topics. All objectives can, in fact, be served by defence, infrastructure, industry, tourism, sports, and health. A tourist resort in the deep forests of Karnataka, for example, can be considered to be fulfilling a public purpose regardless of whether it is privately or publicly owned. • It lacks a monitoring organisation that might keep an eye on how the law is being applied.

8. Suggestions and Conclusion

One of the most challenging and problematic issues that the ‘Advisory Committee,’ the ‘Sub- Committee’ on ‘Fundamental Rights’, and the ‘Constituent Assembly’ had to deal with was the precise wording of the ‘right to property’ that was to be included in our Constitution. This is a reflection of the difficulty of the problems that inevitably arise in attempts to define and

enforce the property rights. The Constituent Assembly only adopted the right to property, specifically under ‘Article 31’, on September 12 after debating it for two full years. The ‘Universal Declaration of Human Rights’, states that "(1) Everyone has the right to own property alone as well as in association with others; (2) No one shall be arbitrarily deprived of his property,"65. It was adopted by the United Nations in 1948 as a result of the history of the 20th century, which saw wars and atrocities committed against millions of innocent people.

Although ‘Section 299’ of the ‘Government of India Act, 1935’, served as the framework for ‘Article 31’, there is no doubt that the history of the 20th century and the aforementioned declarations of human rights had a significant impact on the recognition of property as one of the freedoms that every Indian citizen enjoyed as a fundamental right. The ‘right to equality’ has been recognized as a basic element of the Constitution by the Keshavananda Bharati ruling and several following decisions. This right would continue to recognise an individual's right to property, not as a separate right but as an essential component of the twin rights of equality and dignity, which could not be destroyed, damaged, or taken away even by a constitutional amendment.

Regarding the more comprehensive question of the right to property, which includes within the ‘right to means of production’ and the ‘right to create, own, and administer property’, there is no doubt that the new ‘Article 300-A's’ constitutional protections recognise this right implicitly. The statement therein reads as "No individual shall be deprived of his property save by authority of law". It would initially indicate the existence of a valid legislation. The legality of a law would rely on whether it violated any of the rights protected in part III as well as the legislative ability of the law-making body. Therefore, such a law must pass both the article 14 and article 21 tests.

65 ‘Article 17’ of UDHR.