Author – Pratima Pal

Evolution of Property Rights

The word “property” generally means a thing owned. Every object whether tangible or intangible having some value attached to it in the eyes of law and human beings, maybe termed as Property.  The expression property in Article 300A is confined not solely to land alone. It includes both corporal and incorporal rights. It includes money, contract, interest in the property, etc. According to Eminent jurist Bentham, the term property includes ownership of material objects. Whereas Austin denotes property as the greatest right of enjoyment known to the law, including servitudes.

International Relevance

Universal Declaration of Human Rights (UDHR), adopted in year 1948 by the United Nations General Assembly was the first legal document to be protected universally. The UDHR is the foundation of all international human rights law. It includes the prominent 30 articles in order to safeguard the human rights and provides principles for future human rights conventions, treaties and other legal instruments.

Article 17 of UDHR reads as –

1) Everyone has the right to own property alone as well as in association with others.

2) No one shall be arbitrarily deprived of his property.

UDHR designates private property as a human right. Human rights are the rights that we simply inherit just being born as a human being. Human rights are not granted by any state, but it is duty of the state to make sure that no human being is deprived of his human rights. These are universal rights which applies globally and equally regardless of sex, nationality, language, religion, color or any other status.

International Convention on the Elimination of All Forms of Racial Discrimination, adopted in year 1965, it has 88 signatories and 182 parties as of now. Article 5 of the convention states that everyone is equal before law irrespective of race, color and national or ethnic origin, including the right to own private property alone as well as in association.

Convention on the Elimination on All forms of Discrimination Against Women ,adopted in year 1979 by the UN General Assembly (UNGA) with has been ratified by 189 states and signed by 99 states as of now. Article 16 of the convention recognizes the property rights which provide equal right for both spouses to ownership, acquisition, management, administration, enjoyment and disposition of property.

Convention Relating to the Status of Refugees, adopted in year 1951, it has 145 signatories as of now. Also known as the 1951 Refugee Convention or the Geneva Convention of 28 July 1951.These international human rights are instruments for minority rights but do not provide for a specific right to property but prohibit discrimination in all forms as well as in relation to property rights which are guaranteed.

Indian Relevance-Constitution of India

Indian Constitution originally defined the right to property as a Fundamental Right under the provisions of Article 19(1)(f) and 31 which provided security to private property and later they were repealed through the 44^th Amendment Act of 1978 which deleted the right to property from the list of fundamental rights and inserted Article 300A. 

Accordingly right to property was made a Constitutional right under Article 300A which requires the state to follow due procedure and authority of law to ensure that no person is deprived of his or her private property.

Need for the 44^th Amendment Act

Before India got independence there were four major systems prevailing – the Ryotwari system, Mahalwari system, Zamindari system ,and Jagidari system. Due to these large parts of land was in possession of Zamindars, tenants, and other wealthy landowners, which causes an unequal distribution of land and increases the gap between rich and poor. Various acts, provisions were passed in order to redistribute the land and to rectify damages various land reforms were added in the Constitution. Despite such efforts by the government the zamindars and other land owners whose ceiling limit exceeded  approached Supreme Court using their Fundamental right to property to hold acts unconstitutional. So, in order to stop these happenings further in future and for economic wellbeing the Court repealed Right to Property as a Fundamental right under Article 19(1)(f) and Article 31 and added chapter IV part XII of the Constitution as Article 300A under which right to property was made a Constitutional right which is available to all persons.

Right to own Private Property as a Human Right

In the benchmark case of Vidya Devi vs. The state of Himanchal Pradesh (2020) the honorable Supreme Court held that a citizen’s right to own private property is a human right. It referred to an earlier landmark judgment in State of Haryana vs. Mukesh Kumar case (2011) wherein it was held that the right to property is not solely a constitutional or statutory right, but also a human right. The case was of an 80-year-old woman whose 3.35-hectare land was forcibly taken by the Himachal Pradesh Government in 1967, for constructing a road. The Court applied its extraordinary jurisdiction under Article 136 and Article 142 of the Constitution and directed the government to pay the loss incurred by them as compensation of 1 crore rupees. It was held that the state cannot claim the Doctrine of Adverse Possession to perfect the title over land grabbed from private citizens. The Court held that forcible dispossession of a person from his private property is violative of human rights and constitutional rights under Article 300A. An exception to this is applicable only in those cases where private property is wanted for public use or demanded public welfare. Moreover, State does not have the right to take the property of one citizen and transfer it to another, even for full compensation where the public interest is not determined.

Right to Property is a basic human right which provides for the protection of private property of common citizens. The notion of property has been developed over the centuries which embed our current legal system. There are many land acquisition cases which are still pending before the court whereas some people are unaware of their rights and cannot reach the Court which further leads to their own loss. So, it becomes important for the government to look after such cases and make property laws more flexible and accessible so that the real land owners are not at loss. Property rights need to be given equal significance, which we tend to take it for granted and unaware of our rights that we own on our belongings. It is the legitimate purpose of government to protect the lives and property of its citizens.

“The rights of persons and the rights of property are the objects, for the protection of which Government was instituted”  

                                                                                    –JamesMadison

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Author Pratima Pal is a first-year Law student at Amity University, Lucknow.