How did the Right to Property lose its Fundamental Right status in the Constitution of India?

The constitutional history of the right to property turns on a single judicial question: does Parliament hold the power to amend the Constitution under Article 368? The Supreme Court settled that question with the Basic Structure Doctrine. Parliament did hold the power to amend the Constitution under Article 368, the Court ruled, but it did not hold the power to change or destroy any element of the Constitution’s “basic structure.” The Supreme Court itself, finally, retained the power to decide what that basic structure contained.

The Constitution’s drafters expected property law to give government a free hand in pursuing its social engineering goals. A series of Supreme Court and High Court judgments in the early years of independence belied that expectation. Courts repeatedly struck down state laws as violations of fundamental rights, and these rulings hit three property issues in particular, undermining Prime Minister Jawaharlal Nehru’s view that no individual right could override the rights of the community: the expropriation of zamindari land on abolition of the zamindari system, the compulsory acquisition of private property, and the nationalisation of trade and businesses.

Each time the judiciary struck down a property law, Parliament responded by amending the Constitution to undo the damage. The early court rulings, though, were not really protecting the sanctity of the fundamental right to property under Article 19(1)(f). Courts upheld the abolition of zamindari property rights, the government’s seizure of zamindars’ surplus land, and the takeover of private enterprises. The same rulings validated the Ninth Schedule, a creation of the First Constitutional Amendment in 1951, even though that schedule shielded its listed laws from being struck down for violating any fundamental right. Parliament and the judiciary quarrelled only over how much compensation property losers deserved.

The 24th and 25th Constitutional Amendments, passed in 1971 and 1972, made every fundamental right amendable in service of the Directive Principles of State Policy. Article 13 no longer applied, so Parliament could infringe fundamental rights and bar judicial review of that infringement, and the government could carry out eminent domain expropriations with or without compensation.

The Supreme Court answered with the Basic Structure Doctrine in the Kesavananda Bharati case of 1973, ruling that Parliament could not destroy the power of judicial review. Parliament countered by passing the 42nd Constitutional Amendment in 1977, granting itself unrestrained power to amend any part of the Constitution and giving the Directive Principles primacy over fundamental rights. That amendment dispensed with judicial review, the rule-of-law principle at the heart of the earlier fight, and Parliament passed it during the Emergency, when the government had jailed many prominent opposition leaders and parliamentary proceedings ran without much debate or contest.

The post-Emergency Parliament was expected to undo these Emergency-era amendments. Instead, the 44th Constitutional Amendment of 1978 removed what remained of the fundamental right to property altogether. Parliament deleted Article 19(1)(f), the right to property, and Article 31, the eminent domain article, so no fundamental right to property survived, and no safeguard against the state’s exercise of eminent domain remained either. Courts could no longer question the amount of compensation paid for expropriated property. Parliament introduced Article 300A in their place, establishing a constitutional right to property stating that no person shall be deprived of property except by the authority of law. Only two exceptions to that diminished right survived: minorities retained the right to establish educational institutions, and only cultivators holding land within the ceiling limit for personal cultivation retained a right to compensation at market value.

In Minerva Mills Ltd. v Union of India (1980), the Supreme Court declared unconstitutional the part of the 42nd Amendment that had barred judicial review. The Court also struck down the provision giving the Directive Principles precedence over fundamental rights, and it held that every constitutional amendment passed after Kesavananda must be judged against the Basic Structure Doctrine. The Court left one gap untouched: it did not challenge the still-bottomless list of Ninth Schedule laws that remained outside judicial review.

The long contest over property rights, fought out across courtrooms and Parliament, ended with the Minerva Mills judgment and the sobering experience of the Emergency. The right to property stopped being a battleground between the executive and the judiciary. The Kesavananda bench had already ruled, unanimously, that the fundamental right to property was not a “basic feature” of the Constitution, and the judiciary conceded that the legislature alone could determine the extent of property rights, while holding firm to its own power of judicial review. Parliament, in turn, kept the power to amend the Constitution so long as it left the basic structure intact, and to exercise eminent domain under the authority of any law, since the right to property now survived only as the constitutional right set out in Article 300A.

A political and social consensus formed across the spectrum on the limited value of property rights. Every major political faction agreed that extinguishing property rights served the nation’s social and economic objectives.