The Revival of the Right to Property in India

Over the last six decades, the Supreme Court of India has created and re-created a right to property from very weak textual sources, despite constitutional declarations calling for social revolution, numerous amendments to reverse key judgments, and even, in 1978, the repeal of the core constitutional provisions guaranteeing a right to property. This article challenges the usual account of these developments. The primary contention is that the 1978 repeal is much less significant than it appears, due to the Court’s creative interpretation of other constitutional provisions. The Supreme Court has consistently advanced liberal models of constitutionalism and property, despite the influence of other models on the original constitutional design and later amendments. This article also examines whether the Court’s liberalism is compatible with the egalitarian values of the Constitution, and how its position will affect attempts to address social issues relating to the distribution of property in India.