Right to Property in India

Introduction:

Property is a term derived from the Latin word ‘propertietat’ and the French equivalent ‘proprious’ which means ‘a thing owned’.[i] The term and its applicability in our daily life are not new to any one of us. The Supreme Court took two approaches in dealing with the Concept of Property. Earlier there was a narrow view and restricted the meaning of property while later the interpretation was widened.[ii] The Judicial Body took several steps in different case laws to clarify the concept of Property.[iii]

Bentham has referred to the Right to Property as Property includes nothing more than corporeal property or the right of ownership in material things. Being a Human, we are ultimately reliant on the materialistic things which constitute the main ingredient of a property. Today Property is not only a synonymous term to material but has time by time converted into a Right. This Right to Property has taken several reforms with the help of the Legislative and the Judicial Bodies during the passage of time. This article gives a brief concept of the Concept of Right to Property and the Recent developments in the same.

Historical Background

It was soon after Independence that our Constitution has guaranteed the Right to Property as a Fundamental Right. However, the Battle for Right to Property to secure itself as a Fundamental Right started soon. Many a time the Legislative and the Judiciary have fallen into debate on this issue. Initially, Property Rights were posing a challenge to the Government as it was considered that the government had tried to initiate its program of land reforms to dismantle the zamindari system.[iv] Supreme Court in the case known as Fundamental Rights Case[v] held that the Right to Property is not a Part of the basic constitution and thus Parliament can take away private property of persons for concerned goods and in the public interest.

The Constitution of India has originally provided Right to Property under Article 19 and 31. Article 19 guaranteed all citizens the right to acquire, hold and dispose of property. Article 31 provided that ‘no person shall be deprived of his property save by authority of Law’, It also granted for compensation if the property would be taken for a public purpose. Later on, under the 44^th Amendment of the Constitution, the Right to Property was made a Legal Right under Article 300A. Recently, in the case of Indian Handicraft Emporium v. Union Of India, the Supreme Court observed the Right to Property as a Human Right. Till date, many judicial pronouncement has been done to bring reforms in the right to property in India.

Some Essentials about Right To Property In India

1. Theories of Property
   1. Natural Law Theory: Based on the Principle of Natural Reason derived from the Nature of Things. This Theory states that the Property was first acquired by the occupation of an ownerless object as a result of individual labor. This theory was supported by Locke, Blackstone, etc but at the same time, it was also criticized by Sir Henry Maine and Bentham.
   2. Labor Theory: This theory was given by Spencer. According to this theory, Res (a thing) is the property of the person who brings it into existence.
   3. Metaphysical Theory: Hegel propounded this theory stating that Property is the objective manifestation of the personality of an individual.
   4. Psychological Theory: Bentham stated in this theory that Property came into existence on account of the acquisitive tendency of Human Beings.
   5. Sociological Theory: This theory was given by Jenks which states that the Concept of Property should not only be confined to private rights but should be considered as a social institution securing the maximum interest of the society.
   6. State Created Theory: Origin of Property is to be traced back to the origin of Law and the state.
2. How to Acquire a Property (Acquisition): A Property can be acquired through Four important modes.
   1. Possession: Realization of ownership. It is the Prima-facia of ownership.
   2. Prescription: The effect of Lapse of time in the creation and extinction of legal rights.
   3. Agreement: By signing an agreement enforceable by law.
   4. Inheritance: Succession of Property.

Types of Property[vi]

I. Corporeal Property

These are the Property that are tangible in nature meaning thereby things which are material in nature such as House, money, land, etc. These are of two types i.e., Movable and immovable. The criteria for differentiating between the two is different in different legal systems.

1. Immovable Property: Salmond includes following elements in immovable property:
   • A determinate portion of earth’s surface.
   • The Column of space above the surface ad infinitum.
   • Objects under the earth’s surface in its natural state such as Minerals, stones, etc.
   • Objects are established by humans on or under the Earth’s surface with permanent annexation such as walls, fence, etc.
2. Movable Property: In English Law, Movable Property is also known as Chattel which has three different meanings:
   • All  movable objects such as table, money, etc.
   • Personal Property whether movable or immovable (opposed to real property).
   • Incorporeal Proprietary Rights such as shares, debts, and other rights in rem (which are not rights over land).

II. Incorporeal Property

That Property which is not tangible or visible in nature such as Copyright, Patent, etc. incorporeal Property is also of two types i.e., Jura In Re Propria over Immaterial Things and Jura In Re Aliena or Encumbrances.

1. Rights in Re Propria in Immaterial things: Such as Patents, Trademarks, Copyright, etc.
2. Rights in Re Aliena or Encumbrances such as Mortgages, Lease, and Servitude.

Recent Development

The Recent Judgment by the Bench of Justice Indu Malhotra and Indira Banerjee in the case of Hari Krishna Mandir Trust stated that the Right to Property may no more be a Fundamental Right but it still enjoys Constitutional Protection and is a Constitutional Right under Article 300A.[vii] Also, it was mentioned that while Article 300A does not explicitly provide for the requirement of compensation, the same cannot be denied by the state when private property is acquired for a public purpose.

Conclusion

Property has been one of the most debatable issues or the most common Reason of conflict witnessed since time immemorial. Time to Time the Legislative and the Judiciary have been trying to resolve these disputes through various Laws and Judicial Precedents. Recently, in the case of Vineeta Sharma v. Rakesh Sharma[viii], delivered a Landmark Judgment stating the Daughters having equal coparcenary rights in Hindu Undivided Family properties.[ix]

Thus, it can be concluded that the Property Rights have different dimensions and with the passage of time development is taking place in the same. Starting from the Golak Nath’s Case[x] to the Kesavananda Bharti’s Case[xi] to the various judicial pronouncements to date, it can be observed that the Right to Property is an ongoing Debatable Issue whose concluding result has still a long journey to go.

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References:

[i] Diva Rai, ‘Right To Property In India: Everything Important You Should Know about’ (January 29, 2020) available at: https://blog.ipleaders.in/right-to-property-in-india/

[ii] B.S.Sinha, Law And Social Change In India, 234 (1st ed., 1983).

[iii] Jageshwar Prasad Singh v. Bircha, AIR 1956 Pat.149; M.M. Pathak v. Union of India, AIR 1987 SC 803

[iv] India Property Rights Timeline, India Property Rights Alliance, available at: http://indiapropertyrights.org/history-timeline/

[v] Kesavananda Bharati v State of Kerala’s, AIR 1973 SC 1461

[vi] Diva Rai, ‘Right To Property In India: Everything Important You Should Know about’ (January 29, 2020) available at: https://blog.ipleaders.in/right-to-property-in-india/

[vii] Shruti Mahajan, ‘ Right to Propery may not be a Fundamental Right any longer but still a Constitutional right: Supreme Court reiterates’ (August 8, 2020) available at: https://www.barandbench.com/news/litigation/right-to-property-still-a-constitutional-right-supreme-court-reiterates

[viii] https://theprint.in/judiciary/daughters-equal-right-to-ancestral-property-heres-what-landmark-sc-judgment-says/479728/#:~:text=New%20Delhi%3A%20In%20a%20landmark,an%20amendment%20came%20into%20force.

[ix] https://theprint.in/judiciary/daughters-equal-right-to-ancestral-property-heres-what-landmark-sc-judgment-says/479728/#:~:text=New%20Delhi%3A%20In%20a%20landmark,an%20amendment%20came%20into%20force.

[x] I C Golak Nath v. Punjab, AIR 1967 SC 1643.

[xi] AIR 1973 SC 1461