Shifting Foundation of The Jurisprudential History of Property

Introduction:

Property has been looked at with different perspectives by people according to the purpose it serves them. Therefore the meaning of property has not been constant over the years and it kept on evolving. It has not been easy to define property as it is both an institution and a concept that have influenced each other over time. Earlier property was seen to be as only property in things and not property as rights. Also, property was greatly identified with private property.

However, it was to be understood that property is a right because it was a claim enforced by the society or the state to some use or benefit from something. It could be a benefit derived from a common resource or private one. This has helped in distinguishing property from mere occupancy or momentary physical possession. It has been held by jurists and thinkers that property is a claim because it is a natural right that is necessary for peoples’ fundamental existence. Property is a political relationship between persons. It is a system of rights of each person in relation to other persons.

For example, in cases of private property, a person who owns it has a right to exclude a trespasser. Similarly, in cases of common property, there is a negative right of each person not to be excluded from it. In such cases of common property also the common rights of each person are their rights. Common property does not belong to the state. The state only creates and enforces the right of individuals in such common property as it does in cases of private property as well. Therefore both the properties are extensions of individual rights. However, it does not mean that the state does not own any property. There are properties that are not individual rights and such properties are state property. States only have rights over such property. For example, the right to use airwaves for radio and television communication. However, from such analysis, it becomes clear that property was seen to be as only the rights of persons. Common property is always the right of the natural person, whereas private property may be a right of either a natural or an artificial person, and state property is always a right of an artificial person.  

16^th Century Foundation

The debate regarding private property also sore in the 16^th century. According to natural law theory, there was no individual property and all things were common to people. But by means of agreement, private property was established. According to historical theory, private property has a slow but steady growth from the collective property.[1] The various stages were- first of possession naturally independent of law, second was the possession of both fact and law and third was of ownership i.e. a pure legal conception. Aristotle argued that there are two systems of property- common and private. He saw private property as essential for the full use of human faculties and as making for a more efficient use of resources. Sir Henry Maine remarked that private property was formed when individuals’ rights separated from their community rights. Family property disintegrated and replaced by individual property rights.[2] Plato disagreed with the concept of private property as it would lead to greed and selfishness in human life. Jean Boding however also said that both are important- common property because for a sense of community and viable state, and private property for appreciation of common property.

17^th Century Foundation

In the 17^th century, the property was referred to as a right in a thing. The term property was used widely to include not only land and goods and claims on revenue from leases, mortgages, patents, but also a property in their lives and liberties. The reason for this was that man could use his land only for certain uses and he also had the right to revenue which was provided by such things.

However, with the rise in the full capitalist market economy, property was considered as things themselves. Land became more freely marketable and rights in land became more absolute. So land itself was considered to be property. However, authors have argued that during sale of land, it was right in the land that was being sold, which previously was not saleable. But such distinction between rights and things became blurred. Property was increasingly understood to be only private property. More and more property was being captured as private property with unlimited rights and freely transferrable. What led to the conversion of labor and resources as property was the need of the market to operate fully and freely.

20^th Century Foundation

In the 20^th century, some authors and jurists opined that property still meant only to be rights and not things. The argument put forth is that when advertisements like ‘Property for Sale’ are put up what is being conferred is the legal title (exclusive right) to the tangible thing. There had been a rise in corporations as a form of business enterprise and it was said that such corporations had a market value because of their ability to produce revenue. Moreover even in countries with a free market the rights of individuals and corporations on revenue depended on the government. Here again, the property was seen as a right- a right to income. Modern private property is however subjected to certain limits, unlike the 17^th century. Person cannot use their property to create a nuisance or cause harm to others. But in a welfare state, more allocation work is done by the state itself. Also due to the growing public consciousness of the menaces of air and water pollution, air and water were also regarded as common property from which nobody should be excluded. Therefore the concept of property as ‘absolute’ individual rights in things becomes less necessary. 

The Modern Era: 21^st Century Foundation

However today, the property is used to refer to both- property in thing (material object) and property to rights of person. The provisions of Indian law unambiguously reflect this position. Article 300 A of The Indian Constitution provides that no person shall be deprived of his property save by the authority of law. Therefore, the article protects an individual from interference by the State and dispossesses a person of the property unless it is in accordance with the procedure established by law. Such right to property includes the right to hold property i.e. the material object and right against deprivation of such property. This interpretation of the term has also been laid down in a variety of case laws. Supreme Court in the case of The State Of West Bengal vs Subodh Gopal Bose And Others[3] held that property in the context of Article 31 (now deleted) protects private property in all its forms and it must be interpreted to include

1. property incorporeal sense i.e. property in the specific thing which can be privately appropriated and enjoyed as well as,
2. property in the legal sense which confers a bundle of rights in the owner by municipal law and can be exercised by him to enjoy the thing and exclude others. 

Also in the case of Swami Motor Transport (p) ltd. and another vs. Sri Sankaraswamigal Muttand another[4] it was said that Article 19(1)(f)[5] comprises of both the abstract and concrete rights of property. Abstract rights is the right of a citizen in the property which cannot be infringed by the state and concrete right is the right to acquire, hold, and dispose off the property held. In Chrianjit Lal Chowdhuri v. Union of India[6] also the judge said that right to hold property under Article 19(1) (f) meant the right to possess as well as enjoy all the benefits which were ordinarily attached to ownership of property.

Conclusion

Therefore property in today’s time includes all rights of a person and not just the personal proprietary rights like property in slave or wife. This is also evident as the slave trade today is illegal and even wives, who was earlier considered as the chattels of their husbands are no longer considered so. In the case of Joseph Shine vs UOI[7], a lot of emphasis had been laid by the 5 judge bench while repelling adultery as a crime, that women are no longer the chattels of their husband or their property. Property rights today do not include the right to life, liberty or reputation, but comprise of the estate or property like land, shares, copyright, patent, etc. Therefore property in the 21^st century means property in both things and rights.

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References:

[1] V.D. Mahajan, Jurisprudence and Legal Theory, pg 472.

[2] Ibid, pg. 473.

[3] AIR 1954 SC 92.

[4] AIR 1963 SC 864.

[5] Article 19(1) (f) provided property as a fundamental right in Indian Constitution. This was later repelled and replaced by Article 300 A.

[6] (1952) SCR 284.

[7] AIR 2018 SC 4898.