Right to Property: Evolution and The Current Scenario

An article by Unnimaya T.K and Fathima Zahra P.I of Government Law College, Thrissur


Edited By - Lilian Grace Thomas



Property in simple terms is any item that an individual or a business has a title over. It is one of the most valuable achievements of mankind. There are three main socio-political rights that individuals have secured after a long fight for democracy viz., life, liberty, and property. In a democratic country like India, where the rights of individuals are protected in society, there is also a need for the right to property.

According to John Locke, "A Government has no other end, but the preservation of property." Property is a bundle of rights on the corpus, which any refined legal system classifies and identifies according to its culture, religion, history, and society. Furthermore, possession and ownership of property are two important facets which deal with the different dimensions of the rights of the holder of a property.

The right to property is framed as a human right under the Universal Declaration of Human Rights and is recognized as a fundamental right in most democracies. Initially, it was considered a fundamental right in India but was omitted by the Constitution Forty-fourth Amendment Act, 1978. It is one of the most controversial of rights, always in need of an appropriate definition suited to a nation's political, social, and economic conditions.[1] While all liberal constitutions allow for certain reasonable restrictions on the absolute right to property for the public good, the challenge facing every country pertains as to where the line must be drawn against state interference into a person's right to own and enjoy the property.

Evolution of Property Rights in India

Pre- Independence Phase:

In the pre-independence era, i.e. before the arrival and settlement of the English in this country, the land was neither wholly public nor wholly private, rather it fell in a very different category i.e. common property resources operated by very different methods altogether. The land was not merely an economic resource, rather it was revered and respected and its inalienability was reflected everywhere.

With the onset of the British colonial system, commenced the developmental process – geared to mega-irrigation, power, forestry, building, and mining projects, into the farthest hills and forests. Rural or tribal India made a stage affixed to urban India and was subjected to the self-assumed, redemptive, civilizing mission of the latter. The colonial jurisprudential concepts of res nullius and terra nullius were introduced, wherein land and forest that had not been previously assigned by the sovereign, and were not under visible occupation, was ultimately appropriated to the sovereign. The concept of eminent domain, postulating that the state had exclusive control, authority, and ownership over all the resources within its territory including the property privately owned by any individual or group, ultimately belonged to the state, became the base of India's new legal ordering. This is in direct contrast to the pre-colonial Indian jurisprudential approach, akin to lex loci rei sitae, whereby law derives legitimacy from the relationship, traditionally established by the people, with their land and forest. However, the British rulers in India are credited with the introduction of the concept of generalized private property into the Indian legal system.

Certain provisions relating to compulsory acquisition of land were incorporated under Section 299 of the Government of India Act,1935. It embodied the fundamental principle of common law that the executive may not extinguish property rights without the authority of the legislature. The right to property as was enshrined in the Constitution was majorly adopted from the abovementioned section.

Post- Independence Phase:

The Constitution in its original draft contained Article 19(1)(f) which guaranteed the right to property as a fundamental right. However, problems arose out of this guarantee of the right to property as a fundamental right. This controversy surrounding the guarantee centred chiefly on the wording of Article 31. Surprisingly, the wording of Article 19(1)(f) attracted little debate even though no such provision had existed in the Government of India Act. 'Acquisition and requisitioning of property' was included as a subject in the Concurrent List enabling both Parliament and the State legislatures to enact laws on the subject. Article 31 was taken almost verbatim from Section 299 of the Government of India Act 1935, but with certain key differences that greatly strengthened the protection of certain kinds of property rights in post-independent India and weakened those of others. Section 299, in turn, gave a 'constitutional' or 'entrenched' status to the restrictions on the State's power of compulsory takeover of land that had been enshrined in a series of colonial legislation starting from the Bengal Regulation I of 1824, and culminating in the Land Acquisition Act 1894.

However, The Constitution (Forty-Fourth Amendment) Act 1978, abolished Articles 19(1)(f) and 31 and instead, inserted Article 300A into a new chapter IV of Part XII of the Constitution, thereby depriving it of its 'fundamental right' status. Article 300 A provides, 'No person shall be deprived of his property save by authority of law'.

Current Status of the Right to Property

In Vidya Devi v. The State of Himachal Pradesh & Ors., a dispute arose when certain acres of land were taken over by the State Government in 1967. A petition was filed by the appellant, who was undisputedly the owner, for compensation of the land compulsorily taken over. On appeal to the Supreme Court, it was held that the State being a welfare state, cannot be permitted to take the plea of adverse possession, wherein a trespasser is allowed to gain legal title over such property for twelve years. The Court ordered the State to award Rs. 1 crore as compensation. By this judgment, it assured that the State Government cannot depreciate the rights of the citizens over the property and a State cannot take the benefit of the doctrine of adverse possession. A citizen’s right to own property is not only a constitutional right but also a human right. Furthermore, forcibly dispossessing citizens of their private property without following the due process of law would be a violation of a human right and a constitutional right under Article 300 A of the Constitution.[2]

Conclusion

The right to property is an indispensable right for an individual in today's world. It is not a fundamental right as there can be state intervention that could take place from time to time according to the need of the country. For a country to grow, there must be development and expansion of infrastructure. Acquisition of land must be carried out in such a way that proper compensation should be given to the aggrieved persons and for this, there must be constant change in the laws according to the need of times.

References:

1. Amar Pal Singh, Ashish Kumar Srivastava, Property Laws (6th ed, 2015).

2. Namita Wahi, The Fundamental Right to Property in the Indian Constitution (August 10, 2015), https://ssrn.com/abstract=2661212

[1] Pellissery S., Davy B., Jacobs H., Land Policies in India, 35-50 (Madhumita Mitra, Evolution of Property Rights in India, 2017). [2] Vidya Devi v. The State of Himachal Pradesh and Ors., Civil Appeal nos. 6061 of 2020.

5 views0 comments
 

©2020 by JURIS COGNITIONIS. Proudly created with Wix.com