RE-ENACTING RIGHT TO PROPERTY AS A FUNDAMENTAL RIGHT: THE

CONSTITUTIONAL PERSPECTIVE

The term ‘Right’ in civil society is defined to mean that something which a man is ‘entitled’ to
have or to do, or to receive from others, within the limits prescribed by law. Property means any
property over which any person has disposing power and a person can exercise the same right for
his own benefit and free will. By incorporating both definitions, the conclusion that can be derived
for the purpose of this paper is that “Right to Property” means and includes the right to possess,
own and dispose one’s property out of his own free will and by fulfilling his own interest in a
manner prescribed by law. The said right can be encroached in case if ‘public interest’ is at stake
or any other standards determined by the law.

Right to property enjoys a distinct position in our constitution, because firstly it was one of the
most debated topic during the drafting process of our constitution and secondly it is one of the
most amended provision and the only fundamental right eliminated from the position of
fundamental rights.

This paper studies the debate held on Right to Property while framing of the constitution, at midst
the amendment and judicial interpretation regarding Right to Property are examined and at last
this paper concludes with a debate whether ‘Right to Property’ should be re-enacted as
fundamental right in the Indian Constitution.

STATEMENT OF PROBLEM

The crux of the problem can be argumented in two parts, firstly, whether Right to Property can be
listed under “fundamental rights” and secondly, can a proper analyzation of amendments and
judicial decisions can throw light on the issue pertaining to right to property.

HYPOTHESIS

A comparative study as to decide whether the amendments and judgements declaring right to
property as mere a constitutional right on one side and whether it can come under the umbrella of
fundamental rights by creating a positive analogy from the underlying principle adopted by framers
to enlist it as a fundamental right and by interpreting international conventions favoring it.
RESEARCH OBJECTIVE

The objective is to achieve a platform declaring either Right to Property as fundamental right or
vice-versa.

RESEARCH QUESTION

1 – Whether the disagreement as to Right to Property as fundamental right is valid?

 If valid, what are the ground for its validation?

 If not, then what are the reasons for its disqualification?

2 – Whether a positive analogy can be established regarding the bone of contention existing about
right to property –

 By using empirical analysis of all the amendments and judicial decisions.

 By linking the principle behind its inclusion in constitution and international conventions
supporting it.

LITERATURE REVIEW

1- Granville Austin, The Indian Constitution, Cornerstone of a Nation.

2- Constitution (First Amendment) Act, 1951.
3- Constitution (Fourth Amendment) Act, 1955.
4- Constitution (Seventh Amendment) Act, 1956.
5- Constitution (Seventeenth Amendment) Act, 1964.
6- Constitution (Twenty Fourth) Act, 1971.
7- Constitution (Twenty Fifth Amendment) Act, 1972.
8- Constitution (Twenty Six Amendment) Act, 1972.
9- Constitution (Twenty Ninth Amendment) Act, 1972.
10- Constitution (Thirty Fourth Amendment) Act, 1974.
11- Constitution (Thirty Ninth Amendment) Act, 1975.
12- Constitution (Forty Fourth Amendment) Act, 1978.
13- Universal Declaration of Human Rights.
14- European Convention on Human Rights.