1) Introduction
Property has a much wider and far broader definition than what we understand in the real world. Property as defined by the Benami Transactions (Prohibition) Act of 1988, Section 2(c): The term "property" refers to "any kind of property, including any right or interest in such property, whether movable or immovable, tangible or intangible." [1]. It consists of funds, agreements, licensees, mortgages, property lessees, and property interests like an allottee's interest. The Commissioner of the Hindu case (above) identified the Mahantship of a Hindu Temple as an identifiable interest in the property,[2] and State of Bihar v. Kameshwar Singh [3] stated that stockholders with interests in the company [4]. It not only includes the money and other tangible things of value but also includes any intangible right considered as a source or element of income or wealth. It also includes the exclusive right and interest a man has in lands and other property. It is the freedom to use and dispose of things as one pleases, as long as one does not use them for any purpose that is against the law. The history of property rights in India has been a tussle between the progressive legislators trying to enact much-needed land reforms and the reactionary courts, who hampered the reforms Property can further be divided into real and personal property, absolute and qualified when it consists of goods and chattels, Corporeal and Incorporeal property, etc. Let us look at some of them.
a) Absolute property is everything that is truly ours, without exception. An example could bea book,a telephone,or any other inanimate object. It would also apply to domesticatedanimals that were never allowed to roam freely in the wild.
b) Qualified property is the one in which the ownership is not absolute or complete. Its the property of which subject matter is not permanent by nature like the possession of wild animals.
c) Corporeal property that is visible and tangible. It has the right of ownership in material property and further is divided into movable and immovable property.
d) Incorporeal property that is not visible or tangible. It doesnt have the right of ownership and is further divided into in re propria and rights in re aliena or encumbrances. Re propria are rights limited to ones own property where as rights in re aliena or encumbrances are the rights that someone has in a property belonging to someone else.
2) Right to Property in the Pre-Independence Era -
The Britishers introduced the Land Acquisition Act in 1894, empowering the government to acquire land for public purposes (construction of railways, roads, irrigation, infrastructure development, etc.) however it often led to disputes over compensation (resettlement/rehabilitation measures or money guaranteed) and misuse of power by the authorities. Over time, with Independence, new legislations and amendments were brought in to challenge this Act.
3) Right to property in the Post Independence Era
a) Abolition of Zamindari System Under colonial rule Zamindars who were intermediates between the government and the peasants held the land ownership. They used to exploit the peasants and would keep all the revenue generated by the land, giving just the bare minimum to the real land owners, the peasants. After independence, the Indian government sought to dismantle the zamindari system through land reforms in which the acquired by the landlords was redistributed among the landless farmers.
b) The landmark judgment delivered in the case Kesavananda Bharti v. State of Kerela 1973,[4] established the concept of Basic Structure Doctrine, limiting the governments power to amend certain fundamental rights including property rights
4) Right to Property as a Fundamental Right
Enforcement of the Constitution in 1950, introduced the right to Property as a Fundamental right. Article 31 and Article 19(1)(f) ensure that any persons right to their property remains protected and has the right to move to the Supreme Court in case of violation of this right. Article 31 provides for the protection of the property rights of citizens [5] and Article 19 guarantees to the Indian citizens a right to acquire, hold, and dispose of property which was not possible due to economic differences [6]. Both these rights were quite powerful in themselves in protecting the land and property from various land distribution systems which were relevant in the postindependence era like the Zamindari, Mahalwari, Ryotwari, and Jagirdari systems.
5) Constitutional amendments which questioned the fundamental right to property
Jawaharlal Nehru after Independence wanted to acquire land from the landowners to utilise it for the construction of Dams, Roadways, railways, etc. and therefore he brought in the Land Reforms which were later criticized by various High Courts and Supreme Courts. Further, the Constitutional Amendments changed what Nehru wanted, bringing a huge change to the status of the property right.
i) 1st Constitutional Amendment Act (1951) added Articles 31A (1) and 31B, allowing the state to acquire property without violating certain fundamental rights. Article 31B created the Ninth Schedule to the Constitution and protected the laws placed within it from being declared void on account of Part III. Despite this the Supreme Court upheld the West Bengal Land Acts cancellation in the State of West Bengal v. Bela Banerjee [7] because the money paid against the acquired land had to be commensurate with the current market value of such land, agreeing with its ruling in Shankari Prasad v. Union of India [8] (establishing the principle that the Parliament has the authority to amend fundamental rights through constitutional amendments).
ii) 4th Constitutional Amendment Act (1955) altered the Right to Property to a legal right from a fundamental right under Article 300A
Both these amendments questioned the right to property as a fundamental right reducing it to just a legal right.
6) Right to Property as a Legal Right
PostEmergency, the 44th Amendment Act of 1977 removed the right to obtain, hold, and arrange for property as a fundamental right and inserted a new article named 300A in the Constitution of India titled the Right to Property which stated thatno person shall be deprived of his property save by authority of law.[9] This article changed property rights to a legal right, reducing its status from a fundamental right.
7) Need for this Amendment
The transition of the fundamental right to property to a legal right in India was propelled by the need to address social inequalities, facilitate land reforms, and strike a balance between individual property rights and the states welfare objectives towards the development of the country as a whole.
8) Conclusion
In 1950, property rights became a legal framework in India, and the constitution guaranteed this fundamental right. When the administration started to implement land changes in an attempt to dismantle the zamindari framework of feudalism resulted in a struggle between the parliament and the legal executive continuing for a few decades and finally reducing the Fundamental right to property to a legal right. Even though the right to property has changed, it is still fundamental to Indian law and strikes a balance between the preservation of individual rights and the need for economic growth. As India develops, new socioeconomic issues and the goal of inclusive and equitable growth will probably have an impact on how property rights continue to evolve. At present, we do have strict laws regarding property rights and its a legal right present to all the citizens of India.
Citations
1) the Benami Transactions (Prohibition) Act of 1988, s. 2(c).
2) Dwaraka Das Srinivas v. Sholapur Spg and Wvg. Co. Ltd, AIR 1954 SRC 674.
3) State of Bihar v. Maharajadhiraja Kameshwar Singh, AIR 1952 SRC 889.
4) Right to property as a Constitutional right, iPleaders, available at:
https://blog.ipleaders.in/right-property-constitutional-right/ (last visited on December12, 2023).
5) Kesavananda Bharti v. State of Kerela, AIR 1962 SC 933.
6) The Constitution of India, art. 31.
7) The Constitution of India, art. 19.
8) State of West Bengal v. Mrs. Bela Banerjee and Others, AIR 1954 SRC 558.
9) Shankari Prasad v. Union of India,AIR 1951 SC 458.
10) The Constitution of India.
