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is right to property is a fundamental right in india

Law Student

Is right to property is a fundamental right in india.

if yes, plz provide the related document or in which section.

 

regds

DS

 
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Law Student

Dear peers,

Is right to property is a fundamental or constitutional right in india.

and Is peaceful existence is a fundamental or constitutional right in india

if yes, plz provide the related document or in which section.


regds

DS

 
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Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)

Right to property is not a fundamental right anymore post - 1976 (42nd Amendment to the Constitution). It is just a constitutional right under article 300A (earlier it was 19(i)(f) - hence on a lower pedestal than the fundamental rights. Being a FR Earlier it could be curtailed only via reasonable restrictions. Now it can be defeated on much larger grounds. Right to property is never a fundamental right in socialist constitutions which envisage the value of equitable distribution of wealth. However due to dominance of the rich class in the constituent assembly it was included in the list of FRs. However soon after the constitution came into force - right to property turned out to be a obstacle in achieving the socialist principles given in Directive Principles, and out of this tussle came out the doctrine of basic structure.

Coming back to right to property it being only a legal right - can be curtailed on a large number of grounds land acquisition etc being one of many.  


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I would like to slightly disagree with the opinion of Adv. Chugh on this matter. The due process has firmly become a part of Indian Constitutional law. Whether a fundamental right is guaranteed or not cannot be determined by the fact that it is explicitly enumerated or not in the Part III of the Constitution. It has to be determined by following due process regardless of its explicit enumeration in Part III.

 

The rights under Articles 19 are emnanting from Article 21. The explicit enumeration of right to property under Article 300A or removal of explicit enumeration of right under Article 19(1)(f) does not extinguish the same right under Article 21. Sections 96 to 106 IPC are nothing but corrolary to Article 21. Under Section 103 one can even cause death in defense of his property. How is this possible unless Section 103 IPC is in confirmation with right to property under Article 21?


This matter has been earlier discussed here http://www.lawyersclubindia.com/forum/Sc-right-to-property-is-a-human-right-44986.asp

These two Supreme Court judgements have been reported in the media. I have tried searching Supreme Court website but was not able to locate them. If anyone could find these judgments:


1) http://www.indianexpress.com/news/sc-right-to-property-now-a-human-right/365463/


2) http://www.tribuneindia.com/2011/20111005/main6.htm

 
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right to property is not fundamental right in india it is just like any other right.

 
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UNEMPLOYED

Mr Chugh is perfect.

 

It is a constitutional right u/a 300a.

 

One can pray u/a 300a C.O.I., if the right is violated, not u/a 32 or 226 of C.O.I.

 
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Interpretation of the Constitution has to be done with proper due process following logic, reasoning and facts.


Please note the following facts:


1) The rights under Articles 19 are emnanting from Article 21. There is already Supreme Court judgment on this matter. Removal of explicit enumeration of right under Article 19 does not mean it also gets extiguished from Article 21. For example Right to Information is a fundamental right but not explicitly enumerated under Part III. How is it possible Right to Information is a fundamental right but not explicitly enumerated? Because due process of interpretation of Constitution has been followed to come to this conclusion.


2) All laws flow from the Constitution. Since right to property is a fundamental right under Article 21, there exists Section 103 IPC. Is Section 103 IPC violative of the Constitution? If yes, why? If no why?


3) What about the two Supreme Court judgements that say property is a human right under Article 21?

 
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Also since the right to property is a fundamental right under Article 21, there exists Section 14(2) in Arms Act 1959 which says:


(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.


Is Section 14(2) violative of the Constitution? If yes, why? If no, why? Hope my point of view is clear.

 

“When men yield up the privilege of thinking, the last shadow of liberty quits the horizon.” - Thomas Paine

 
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Advocate

The query posed is whether the right to property is a fundamental right. Fundamwental rights are specifically enumerated in Art. 19. Those that are not so enumerated are not called  fundamental rights. They may be other legal rights which may be subject to the due process of law. On this ground these other rights cannot be called fundmaental rights. As pointed out by Mr. Chugh after 42 amendment the right to property ceased to be a fundamental right and as such all theSC judgments rendered prior to the above amendment may not be applicable to any action on the part of the State to deprive a citizen of his property for publioc purpose, if the due process prescribed for such an action has beenfollowed.

 
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Originally posted by :M V Gupta
" The query posed is whether the right to property is a fundamental right. Fundamwental rights are specifically enumerated in Art. 19. Those that are not so enumerated are not called  fundamental rights.
"

Right to Information is a fundamental right. It is not enumerated. Is it not a fundamental right?

Right to Self Defence is a fundamental right. It is not enumerated. Is it not a fundamental right?

Right to  Privacy is a fundamental right. It is not enumerated. Is it not a fundamental right?

Originally posted by :M V Gupta
" They may be other legal rights which may be subject to the due process of law. On this ground these other rights cannot be called fundmaental rights. "

Constitution itself is a supreme and fundamental law, and subject to due process. Since it is written in the form of a statute, the general principles of statutory interpretation are applicable to interpretation of the constitution as well.  It is important to note that the constitution itself endorses the general principles of interpretation through Article 367(1), which states that unless the context otherwise requires, the General Clauses Act, 1897 shall apply for the interpretation of this constitution as it applies for the interpretation of an act of the legislature.

Originally posted by :M V Gupta
" as such all theSC judgments rendered prior to the above amendment may not be applicable to any action on the part of the State to deprive a citizen of his property for publioc purpose, if the due process prescribed for such an action has beenfollowed. "

The SC judgements stating right to property is a human right under Article 21 that I have referred above are not prior to 42 Amendment but very recent.

 
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