JURISPRUDENCE-II PROJECT

TITLE:
RIGHT TO PROPERTY UNDER INDIAN LEGAL
SYSTEM

Submitted By:
Anwesha Tripathy
3rd Year(6th Semester), Section: A, Roll Number- 724

Submitted To:
Dr. Manoranjan Kumar,
Associate Professor(Law)

Session: 2014-2015

ACKNOWLEDGEMENT
It is my greatest pleasure to be able to present this project of Jurisprudence-II. I found it very
interesting to work on this project. I would like to thank Dr. Manoranjan Kumar,
Assistant.Prof., Faculty of law,Chanakya National Law University for providing me with
such an interesting project topic,for his unmatched efforts in making learning an enjoyable
process,for his immense sincerity for the benefit of his students and for his constant
unconditional support and guidance.

I would also like to thank the university library staff for helping me in gathering data for the
project. Above all, I would like to thank my parents, elder sister and paternal aunt, who from
such a great distance have extended all possible moral and motivational support for me in
every work I do.

I hope the project is up to the mark and is worthy of appreciation.

Anwesha Tripathy
Chanakya National Law University, Patna

CONTENTS
Acknowledgement
1. Introductory Chapter
1.1.
Introduction
1.2.
Objective
1.3.
Research Methodology
1.4.
Sources of Data
1.5.
Scope of the Project work
1.6.
Hypothesis
2. Concept of Property In Jurisprudence
2.1.
An account on the concept of Property : Roscoe Pound
2.2.
Meaning of the Concept of Property
2.3.
Theories of Property
3. Property Under Indian Legal System
3.1.
Types of Property
3.2.
Laws In India with regard to Property
4. The Right To Property under Indian Legal System
4.1.
Articles 19(1)(f) and 31 of the Constitution of India, 1950
4.2.
44th Constitutional Amendment and the Demise of the Fundamental
Right to Property
4.3.
Current Scenario: A Chronological Account
5. Evaluation of Hypothesis
6. Conclusion
Bibliography

1.INTRODUCTORY CHAPTER
1.1: Introduction

There is nothing which so generally strikes the imagination, and engages the affections of
mankind as the right of property.- Blackstone.1
In our time, property is the root of all evil and of the suffering of the men who possess it, or
are without it, and of all the remorse of the conscience of those who misuse it, and of the
danger of collision between those who have and who have it not.- Tolstoy.2
The term property is not a term of the art3. It has been used in a variety of senses. In its
widest sense, property includes all the legal rights of a person of whatever description. The
property of a man is all that is his in law. Natural law jurists had emphasised much on the
concept and right to property. According to Thomas Hobbes, ...of things held in propriety,
those that are dearest to man are his own life and limbs; and in the next degree, in most men,
those that concern conjugal affection, and after them, riches and means of living. 4 What we
see of this idea is that idea of property comprised of all that man needed for survival. This
idea is also propagated in a different way by jurist John Locke. He says, Every man has a
property in his own person. Every individual has a right to preserve his property..... 5. He in
his notion has also talked of the right of property. Property according to Locke comprises of
life, liberty and estate. In a narrower sense of the term, property includes the proprietary
rights of a person and not his personal rights6.
Property has been an excessively vital concept since the inception of civilisation on this earth.
Man, in the early age, lived the life of a wanderer and thus survived on whatever he could lay
his hands on, in the course of his continuous wandering. Gradually, as the later epochs
dawned, man resorted to the settled form of life, and thus had to find ways for survival at one
place he chose to settle on. The means for this was all that he could possess and exercise
1 W.BLACKSTONE, COMMENTARIES.
2 Leo Tolstoy, quoted in A.Carter, The Philosophical Foundations of Property
Rights(1989)
3 Lord Porter in Nokes v. Doncaster Collieries (1940) A.C. 1014 at 1051
4 Mahajan, V.D., Jurisprudence and Legal Theory, (5 th Edition), Ch 18, pg 399
5 Leviathan, Chap XXX; Eng Wks III 329.
6 See footnote no.4

certain rights on. Thus, his property came to be what all he could possess. With passage of
time as civilisations mushroomed, property came to be a necessity and the rights over it,
inevitable. The early jurists propounded the necessity of recognition of property rights and
the later jurists followed trail. The concept of property has therefore undergone several
evolutions and at this date, is one of the prime concerns of government policy.
The concept of property has found place in jurisprudence, and thus made its way into the law
of laws, i.e., the constitutions of almost all countries. This project deals with both the
concepts, with a chapter specially dedicated to the constitutional position of the right to
property in India.
1.2: Objective
The project work is aimed at discussing the concept of property under jurisprudence, the
right to property as a constitutional right and the legal position of the right to property
in India.
1.3: Research Methodology
The methodology adopted for this research is purely doctrinal in nature.
1.4: Sources of Data
The sources from where data has been used for study, research and compilation in this project
work are all secondary in nature.
1.5: Scope of the Project Work
Undoubtedly, right to property is a vast concept, embracing in it a plethora of theories,
notions and applications. However, this project work is confined to the areas outlined in the
objective.
1.6: Hypothesis
Right to property is of immense essence and extreme importance, and must thus be granted as
a fundamental right to all citizens of a nation. This would also mean security of their natural
rights of settling down to live life with all basic amenities. However, of late, an undeniable
fact is that it is this property and rights over it that has been the cause of major disputes, as

the laws related to property, immovable property in particular, have a number of loopholes in
them.

2. CONCEPT OF PROPERTY IN JURISPRUDENCE

The term property has a bewildering variety of uses. Firstly, it sometimes means ownership
or title and sometimes the res over which ownership may be exercised 7. Even in the sense in
which property means ownership, usage varies 8. On the other hand, the term property is
frequently used in a broad sense to include assets which the technique of the law would
regard as mere rights in personam. The substantive law is divisible into law of property, of
obligations and of status. The first, that is the law of property, deals with rights in rem, that is,
the rights available against the world at large. As discussed earlier in the introductory chapter,
there are many senses property is understood in. Following is a detailed discussion on the
same:
A. All Legal Rights: Property in the widest sense includes all of his legal rights of
whatever description. This description has however become obsolete in law and is
only common in the older books. As said by Blackstone, property is a right, which a
master has in the person of his servant and a father in the person of his child. So
according to him, the inferior has no kind of property in the company, care or
assistance of the superior, as the superior is held to have in those of the inferior 9. Now
this indeed is an older and obsolete concept. Natural law jurists have also emphasised
on the concept of property and the rights over it, but in a different way. Jurists like
Thomas Hobbes and John Locke have talked of what a persons property is comprised
of and that it his right to preserve his own property.
B. Proprietary Rights (Dominium and Status): In a second and narrower sense, property
includes not all a persons rights, but only his proprietary as opposed to his personal
rights. The former constitute his estate or property, while the latter constitute his status

7 Paton, G.W., A textbook of Jurisprudence (4th Edition), ch 21, pg 505

8 Austin John, Province of Jurisprudence Determined, Lecture XLVII.
9 Fitzgerald, PJ, Salmond on Jurisprudence, Twelfth Edition, Ch 13, pg 411

or personal condition. In this sense, a mans land, chattels, shares and the debts due to
him are his property, but not his life or liberty or reputation10.
C. Proprietary Rights in rem (Dominium and Obligatio): In the third notion of property
which is also the most accepted, the term includes not even all proprietary rights, but
those that are proprietary and in rem. According to this notion, a freehold or leasehold
estate in land, or a patent or copyright, is property; but a debt or the benefit of a
contract is not11.
D. Corporeal Property (Dominium corporis and Dominium juris): In the narrowest sense
of the term property, it includes nothing more than corporeal property, i.e., the right
of ownership in a material object or that object itself. According to Ahrens, property
is a material object subject to the immediate power of a person.12 Bentham considers
the term in its metaphorical and improper extension to include other rights than those
which relate to material things.13
2.1: A Historical Account of the Right to property by Roscoe Pound14
From the time when men began to think about rights and formulate declarations of liberties or
assertions of rights, they have put property and exercise of liberties in acquiring and
controlling property along with liberty in the fore front. In the Charter of Henry II (1145) the
order is customary rights, gifts (which then meant estates conveyed), and liberties. In Magna
Carta, next after freedom of the church come the sections guaranteeing property and its
enjoyment. The third and fourth sections of the Petition of Right recite the, guarantees of
freehold, liberties and free customs in Magna Carta and against being put out of lands and
tenements in a statute of Edward III. The Virginia Bill of Rights (1776), the prototype of
American bills of rights, puts a guarantee against deprivation of property without due process
of law before the guarantees of freedom of speech and of the press and of religious liberty.
The Massachusetts Bill of Rights (1780) puts an assertion of natural rights of liberty and
10 Ibid
11 Ibid 9
12 Droit Naturel, II, Sect 55.
13 Principles, 231; Works. I. 108.
14 http://www.jstor.org/stable/25712576?seq=1#page_scan_tab_contents

property in the first article and next after the declaration of political liberties declares that
each individual has a right to be protected in the enjoyment of his life, liberty, and property
according to standing laws. New Hampshire in 1784 called for an impartial interpretation of
the laws and administration of justice in order to preserve "the rights of every individual, his
life, liberty, property, and character." Connecticut in a Declaration of Rights in 1776 put a
man's "goods" and "estate" along with his person, his character and his family. The Fifth
Amendment to the Federal Constitution guaranteed life, liberty and property against
unreasonable and arbitrary action on the part of the government and thence that guarantee
passed into all the state constitutions in the nineteenth century and was later imposed on the
states by the Fourteenth Amendment.
2.2: Meaning of the concept of property15
Property has a very wider meaning in its real sense. It not only includes money and other
tangible things of value, but also includes any intangible right considered as a source or
element of income or wealth. The right and interest which a man has in lands and chattels to
the exclusion of others. It is the right to enjoy and to dispose of certain things in the most
absolute manner as he pleases, provided he makes no use of them prohibited by law.
The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one
has any exclusive right in them. When things are fully our own, or when all others are
excluded from meddling with them, or from interfering about them, it is plain that no person
besides the proprietor, who has this exclusive right, can have any claim either to use them, or
to hinder him from disposing of them as he pleases; so that property, considered as an
exclusive right to things, contains not only a right to use those things, but a right to dispose of
them, either by exchanging them for other things, or by giving them away to any other
person, without any consideration, or even throwing them away. Basically Property is divided
into real property, and personal property. Property is also divided, into absolute and qualified,
when it consists of goods and chattels. Absolute property is that which is our own, without
any qualification whatever; as when a man is the owner of a watch, a book, or other
inanimate thing: or of a horse, a sheep, or other animal, which never had its natural liberty in
a wild state. Qualified property consists in the right which men have over wild animals which
15 http://www.legalservicesindia.com/article/article/definition-&-concept-ofproperty-502-1.html

they have reduced to their own possession, and which are kept subject to their power; as a
deer, a buffalo, and the like, which are his own while he has possession of them, but as soon
as his possession is lost, his property is gone, unless the animals, go animo revertendi.
Property is again divided into corporeal and incorporeal. The former comprehends such
property as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the
latter consists in legal rights, as chooses in action, easements, and the like.
It is proper to observe that in some cases, the moment that the owner loses his possession, he
also loses his property or right in the thing: animals ferae naturae, as mentioned above,
belong to the owner only while he retains the possession of them.
But, in general,' the loss of possession does not impair the right of property, for the owner
may recover it within a certain time allowed by law.
Meaning of property

In general sense, property is any physical or virtual entity that is owned by an individual or
jointly by a group of individuals. An owner of the property has the right. Human life is not
possible without property. It has economic, socio-political, sometimes religious and legal
implications. It is the legal domain, which institutes the idea of ownership. The basic
postulate of the idea is the exclusive control of an individual over some thing. Here the
most important aspect of the concept of ownership and property is the word thing, on which
a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his
property. Property is any physical or intangible entity that is owned by a person or jointly by
a group of people. Depending on the nature of the property, an owner of property has the
right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to
exclude others from doing these things.

There are some Traditional principles related to property rights which includes include:

16

1. Control over the use of the property.

16 www.preservearticles.com

2. Right to take any benefit from the property.

3. Right to transfer or sell the property.
4. Right to exclude others from the property.

2.3: Theories of Property

There are many theories which have been evolved for the purpose of understanding the
concept of property properly.
Those theories are as follows:
1. Historical Theory of Property:
2. Labour Theory (Spencer):
3. Psychological Theory (Bentham):
4. Functional Theory ( Jenks, Laski):
5. Philosophical Theories
(i) Property as a means to Ethnical Ends
(ii) Property as an End in itself
Historical Theory of Property17
According to the Historical theory, the concept of private property had grown out of
collective group or joint property. In the words of Henry Maine, Private property was chiefly
formed by the gradual disentanglement of the separate rights of individual from the blended
rights of the community. Earlier property did not belong to individuals, not even to

isolated families, but the larger societies composed on patriarchal mode. Later with the
disintegration of family- individual rights came into being. Roscoe Pound also pointed out
that the earliest form of property was group property. It was later on that families were
partitioned

and

individual

property

came

into

Labour Theory (Spencer)18

17 http://www.britannica.com/EBchecked/topic/479032/property-law

being.

The theory is also known as positive theory. This theory insists on the fact that labour of the
individual is a foundation of property. This theory says that, a thing is the property of a
person, who produces it or brings it into existence. The main supporter of this theory is
Spencer, who developed it on the principle of equal freedom. He says that property is the
result of individual labour. Therefore, no person has any kind of right, including moral over
any property which he has not acquired by individual efforts and endeavours.

Psychological Theory (Bentham)19

According to this theory, property came into existence on account of acquisitive instinct of
man. Every individual desires to own things and that brings into being property.
According to Bentham, Property is altogether a conception of mind. It is nothing more than
an expectation to derive certain advantages from the object according to ones capacity.
Roscoe Pound also supports Bentham and observed that the sole basis of conception of
property is the acquisitive instinct of individual which motivates him to assert his claim over
objects in his possession and under his own physical power or, for that matter under his
control.

18 http://www.jstor.org/stable/205045
19 https://quizlet.com/14613244/property-i-theories-of-property-law-flash-cards/

Functional Theory ( Jenks, Laski)20

The theory is sometimes also known as sociological theory of property. It implies that the
concept of property should not only be confined to private rights but it should be considered
as a social institution securing maximum interests of society. Property is situated in the
society, has to be used in the society. According to Jenks, no one can be allowed an
unrestricted use of his property, to the detriment to others. He said that the use of property
should conform to the rules of reason and welfare of the community. According to Laski,
Property is a social fact like any other, and it is the character of social facts to alter. Property
has further assumed varied aspects and is capable to further change with the changing norms .

Property is the creation of the State

The origin of property is to be traced back to the origin of law and the state. Jenks observed
that property and law were born together and would die together. It means that property came
into existence when the state framed laws. Property was nowhere before law.
According to Rousseau, It was to convert possession into property and usurpation into a
right that law and state were founded 21. The first who enclosed a piece of land and said- this
is mine- he was the founder of real society. He insisted on the fact that property is nothing
but a systematic expression of degrees and forms of control, use and enjoyment of things by
persons that are recognized and protected by law. Thus the property was the creation of the
state.

20 https://www.escholar.manchester.ac.uk/api/datastream?publicationPid=uk-acman-scw:1b5723&datastreamId=PRE-PEER-REVIEW.PDF
21 http://www.sparknotes.com/philosophy/inequality/quotes.html

Philosophical Theories22
Property as a means to Ethnical Ends:

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but
always as a means to some other end. According to Aristotle, it may be a means to the end of
good life of the citizens, further in the opinion of Hegel and Green, it may be a means to the
fulfillment of the will without which individuals are not full human. According to Rousseau,
Jefferson, Friedman, it may be a means as a pre-requisite of individual freedom seen as a
human essence. Similarly the outstanding critics of property like Winstanley, Marx have
denounced it as destructive of human essence, a negative means in relation an ontological
end23.
In all the above cases, property is taken as a means not as an end.

Property as an End in itself:

The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an
end. It is maximization of utilities. According to Bentham, the command of utilities is
measured by the material wealth. The maximization of material wealth is indistinguishable
from the ethical end; property is virtually an end in itself. In the words of Locke, the
unlimited accumulation is a natural right of the individual that is an end in itself. Aristotle and
Aquinas have considered, property as a means, concluded for a limited property right.
Hegel and Green, treats property, as a means, concluded for an unlimited right24.

22 http://plato.stanford.edu/entries/property/
23http://www.austlii.edu.au/au/journals/ResJud/1947/45.pdf
24https://books.google.co.in/books?
id=tTfLVk0ke8wC&pg=PA410&lpg=PA410&dq=jurists+opinion+on+philosophy+
of+property

The supporters of utilitarian tradition treat, accumulation of property, as an end, always meant
a right of unlimited accumulation. Later the concept changed and the utilitarian Bentham held
that the ultimate end to which all social arrangements should be directed was the
maximization of the aggregate utility (Pleasure minus pain) of the members of the society.
While listing out the kinds of pleasures, including non material one, he held that wealth, the
possession of material goods was so essential to the attainment of all other pleasures that it
could be taken as the measure of pleasure or utility as such.

3. PROPERTY UNDER INDIAN LEGAL SYSTEM

3.1: Kinds of Property

Broadly Property is divided into three kinds those are as follows:

Movable and Immovable property
Movable property

The definition of movable property is given differently in many acts. The General Clauses
Act defines movable property as: 'Movable property shall mean property of every description,

except immovable property."25 The Registration Act, 1908 defines property as: 'Moveable
property' includes standing timber, growing crops and grass, fruit upon and juice in trees, and
property

of

every

other

description,

except

immovable

property.26"

Section 22 of IPC defines property as: The words moveable property is intended to include
corporeal property of every description, except land and things attached to the earth or
permanently fastened to anything, which is attached to the earth. Things attached to the land
may become moveable property by severance from the earth.for example Cartloaded of
earth, or stones quarried and carried away from the land become movable property.

Immovable property

The Term "Immovable Property" occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property
is the Transfer of Property Act27 (T.P.Act).

i. According to this Act, "Immovable Property" does not include standing timber, growing
crops or grass28. Thus, the term is defined in the Act by excluding certain things. "Buildings"
constitute immovable property and machinery, if embedded in the building for the beneficial
use thereof, must be deemed to be a part of the building and the land on which the building is
situated.
ii. As per the General Clauses Act 1897, "immovable property" "shall include land, benefits
to arise out of land and things attached to the earth, or permanently fastened to anything
25 Section 3(36) of the 1897 Act
26 Section 2(9) of the 1908 Act
27 1882
28 Section 3.

attached to the earth29". This definition of immovable property is also not exhaustive;
iii.

The

Registration

Act,1908

defines

"Immovable

Property"

as

under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights,
ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or
permanently fastened to anything which is attached to the earth but not standing timber,
growing crops nor grass30". The definition of the term "Immovable Property" under the
Registration Act 1908, which extends to the whole of India, except the State of Jammu and
Kashmir, is comprehensive. The above definition implies that building is included in the
definition of immovable property. The right to collect rent, life interest in the income of the
immovable property, right of way, a ferry, fishery, a lease of land is included under this head.
iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As
per Section 269UA(d) of the IncomeTax Act, 1961, Immovable Property is defined as under :
a. Any land or any building or part of a building, and includes, where any land or any
building or part of a building is to be transferred together with any machinery, plant,
furniture, fittings or other things, such machinery, plant, furniture, fittings and other things
also.
Any rights in or with respect to any land or any building or part of building (whether or not
including any machinery, plant, furniture, fittings or other things therein) which has been
constructed or which is to be constructed, accruing or arising from any transaction (whether
by way of becoming a member of, or acquiring shares in, a co-operative society, or other
association of persons or by way of any agreement or any arrangement of whatever nature,
not being a transaction by way of sale, exchange or lease of such land, building or part of a
building.

29 Section 3(26)
30 Section 2(6)

Tangible and Intangible property:

Tangible property refers to any type of property that can generally be moved (i.e., it is not
attached to real property or land), touched or felt. These generally include items such as
furniture, clothing, jewellery, art, writings, or household goods. Intangible property refers to
personal property that cannot actually be moved, touched or felt, but instead represents
something of value such as negotiable instruments, securities, service (economics) etc..

Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind
for which property rights are recognizedand the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency,
investments etc and such assets are not the only kind that can be protected by law. There are
many other forms of intangible property known as intellectual property that have been
recognized under the law and granted protection against infringement Under intellectual
property law, owners are granted certain exclusive rights to a variety of intangible assets,
such as musical, literary, and artistic works; discoveries and inventions; and words, phrases,
symbols, and designs. Patents, trademarks and copyrights, designs are included under
Intellectual Property and have been recognised under the laws pertaining to the same.
Patents31
Patents are used to protect new product, process, apparatus, and uses providing the invention
is not obvious in light of what has been done before, is not in the public domain, and has not
been disclosed anywhere in the world at the time of the application. The invention must have
a practical purpose. Patents are registrable nationally; the patent granted by European Patent
Office is a bundle of national patents. No EU-wide single patent system exists to date,
although the Community Patent is in the final stages of enactment. Registration provides a
31 Kapoor, SK., Intellectual Property Rights, ch 4, pg 118

patentee the right to prevent anyone making, using, selling, or importing the invention for 20
years. Patents are enforced by court proceedings. In addition, the Regulation on
Supplementary Protection Certificates (SPCs), grants patent extensions of up to 5 years to
pharmaceutical and plant products, providing as much as 25 years of patent life for originator
medicines.
Trademarks32
A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service
with a recognisable identity to distinguish it from competing products. Trademarks protect
the distinctive components which make up the marketing identity of a brand, including
pharmaceuticals. They can be registered nationally or internationally, enabling the use of the
symbol . Trade mark rights are enforced by court proceedings in which injunctions and/or
damages are available. In counterfeiting cases, authorities such as Customs, the police, or
consumer protection can assist. An unregistered trade mark is followed by the letters . This
is enforced in court if a competitor uses the same or similar name to trade in the same field.
Copyright33
Copyright is used to protect original creative works, published editions, sound recordings,
films and broadcasts. It exists independently of the recording medium, so buying a copy does
not confer the right to copy. Limited copying (photocopying, scanning, downloading) without
permission is possible, e.g. for research. Publication of excerpts or quotes needs
acknowledgement. An idea cannot be copyrighted, just the expression of it. Nor does
copyright exist for a title, slogan or phrase, although these may be registered as a trade mark.
Copyright applies to the Internet with web pages protected by many different copyrights, so
that permission should be asked to copy or print a page, or insert a hyperlink to it. Material
cannot be posted on a Web site (Intranet included) without permission from the copyright
holder.
Copyright is not registrable because it arises automatically on creation. Copyright is

32 http://www.wipo.int/trademarks/en/trademarks.html
33 http://www.wipo.int/copyright/en/

protected in the EU for 70 years after the authors death for creative works, 50 years for
broadcasts, etc and 25 years for published editions.
3.2: Laws in India with regard to Property
Considering the immense importance that property holds in every individuals life, the
legislature in India has from time to time, by making laws and amendments in them,
addressed the various dealings that can happen with regard to a property, immovable or
movable. The Transfer of Property Act, 1882 is the statute aimed at laying down a uniform
law for the dealings with immovable property, for example, sale, transfer, mortgage, trust and
gift etc,. Further, the law governing the agreements and deeds for such transactions is the
Indian Contract Act, 1872. There are also laws like the Registration Act, 1908 which provide
for the rules required to be adhered in order to keep record of all the property existing in a
country. The Sale of Goods Act, 1930 deals with sale of movable property.
There are also personal laws in India to deal with transfer of private property upon the owner
or last holders demise. These include the Hindu Succession Act, 1956, the laws of
succession, intestate and testamentary under Muslim laws, Christian Laws, Parsi Laws and
the secular law in this regard being the Indian Succession Act,1925 etc. .

4. THE RIGHT TO PROPERTY UNDER INDIAN LEGAL SYSTEM

4.1: Article 19(1)(f) and Article 31 of the Indian Constitution

Natural law jurists regarded protection of property, along with life and liberty of a person as
being of paramount necessity in a free society. It is for this reason that the US Constitution in
the 5th Amendment ordains: No person can be deprived of his life, liberty or property
without due process of law.34 This concept was also enshrined in the Indian Constitution
under Articles 19(1)(f), and 31. Article 19(1)(f) provided that all citizens shall have the right
to acquire, hold and dispose of property35. It was only in general public interest that the State
was authorised by the Constitution to violate this fundamental right of the citizens36.
Further, Art 31 of the Constitution dealt with Compulsory acquisition of property 37 and
provided :
(1) No person shall be deprived of his property save by authority of law.
(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and
save by authority of a law which provides for acquisition of the property for an amount which
shall be fixed by such law; and no such law be called in question in any court on the ground
that the amount so fixed is not adequate.
Another provision of the Constitution in this regard was Art 31A titled Saving of laws
providing for acquisition of estates38 and provided that not withstanding any thing contained
in Art 13, no law providing for the acquisition by the state of any estate or any rights therein
shall be void on the ground that it is inconsistent with or takes away or abridges any
fundamental rights.
However, the fundamental and constitutional right of citizens to property was accorded a
step-motherly attitude from the very commencement of the Constitution. Through a series of
discussions, debates and judgements, finally the right to property was scrapped off from the
34 https://www.law.cornell.edu/constitution/fifth_amendment
35 The Constitution of India prior to the 44th Amendment
36 Article 19(5) of the Constitution of India, 1950
37 Ibid
38 Ibid

Constitution. Following is the history of the demise of the fundamental and constitutional
right to property.
4.2: 44th Constitutional Amendment and the Demise of the Right To Property
The Constituent Assembly debated the inclusion and content of a fundamental right to
property for two and a half years before adopting Article 31, a provision taken almost
verbatim from Section 299 of the Government of India Act, 1935, with exceptions for certain
zamindari abolition laws. Article 31 codified what is often described in political and legal
parlance as the eminent domain power of the state. This power inherent in the exercise of a
states sovereignty allows the state to compulsorily acquire property belonging to private
persons for a public purpose upon payment of just compensation. The twin requirements of
public purpose and just compensation are based on the rationale that no individual should
have to disproportionately bear the burden of supporting the public good.
Acquisition and requisitioning of property was included as a subject in the Concurrent List
to enable both Parliament and the State legislatures to enact laws on the subject. In the last 60
years, over a hundred acquisition laws have been enacted. Acquisitions also continue to be
made under colonial laws that have remained in force after the adoption of the Constitution.
The most significant of these colonial laws is the Land Acquisition Act, 1894, which,
amended frequently by Parliament and the State legislatures since Independence, continues to
govern land acquisitions today. The Act provides that compensation for land acquisitions
must be computed at the market value of the land acquired. Given the public outrage
regarding land conflicts and the widespread displacement of poor peasants and traditional
communities, moves started in 2007 for a comprehensive amendment of the 1894 Act,
followed by attempts in 2011 for the first time to repeal and replace this Act by the Land
Acquisition Rehabilitation and Resettlement Bill, 2011.39
Article 31 was drafted with a view to reaching a just compromise between various competing
interests. On one end of the spectrum were the zamindars and industrialists who sought
protection for their property interests and, failing that, payment of market value compensation
for acquisition of their property. On the other end were the democratic socialists who wanted
zamindari abolition without compensation, land redistribution and nationalisation of key
39 Wahi, Namita. Frontline, Vol 29, Issue 19, Sept 22 to Oct 5, 2012.

industries, all of which necessitated altering existing property arrangements and therefore
militated against the recognition of a fundamental right to property. Also represented in the
Constituent Assembly were those who believed that property rights, particularly those of
industry, should be protected even as they believed in the legitimacy of zamindari abolition.
The views of the last group were ultimately reflected in the compromise that was reached.
Predictably, however, the compromise failed to please both the zamindars and the socialists
and merely shifted the battle arena from the Constituent Assembly to the courts.
The distinction between zamindari and industrial property reflected in the compromise
adopted in Article 31 was derived from the prevailing development discourse in the post-War
period with its focus on economic growth through greater industrialisation and capital
formation. The adoption of such a strategy of growth and development based on the rejection
of feudal tenure systems in an agrarian society and the acceptance of a state-led capitalist
model of development in an industrial society required protection of the property rights of
industry.
Judiciary and zamindari rights
Interestingly, despite the so-called disagreements between the Supreme Court and Parliament
and the charge often levelled against the court for impeding progressive land reforms, when
the zamindars challenged the abolition of their property rights before the court as violating
Article 31, with the exception of the Kameshwar Prasad case 40 where the court struck down
two provisions of the Bihar Land Reforms Act, the court upheld the abolition of zamindari
rights in all other cases even when absolutely no compensation was allowed for the
extinguishing of particular rights.
Moreover, in each of these cases, the court not only regarded zamindari abolition as a
legitimate public purpose but also adopted a highly deferential standard of review in its
examination of what constituted public purpose. In successive cases, the court held that the
expression public purpose was elastic and could only be developed through a process of
judicial inclusion and exclusion in keeping with the changes in time, the state of society and
its needs. The court also clarified that acquisitions that benefited particular individuals or

40 Kameshwar Prasad v. State of Bihar, AIR 1954 Pat 91

entities could satisfy the requirement of public purpose so long as they were in furtherance of
a particular scheme of public benefit or utility41.
Consequently, even before 1978, when the right to property was a fundamental right, state
acquisition of land for private industry was routinely upheld as a valid public purpose. Over
time, the list of public purposes has been continually expanded to include acquisitions for
SEZs, private cooperative societies, private recreational projects and residential development,
all of which have been upheld by the Supreme Court. To date, the Supreme Court has never
found a law unconstitutional for violating the requirement of public purpose.
In contrast, the court scrutinised the compensation requirement, strictly emphasising in its
early decisions that the payment of compensation for acquisition of property was mandated
by Article 31. Parliaments fear that the Supreme Court would insist on this requirement even
in the zamindari abolition cases led to the First Amendment of the Constitution in 1951,
which ousted judicial review of zamindari abolition laws.
Following the First Amendment, the court heard cases of acquisition of urban land,
government takeover of a mismanaged textile mill, and cancellation of motor vehicle licences
of private bus operators. In each of these cases, the Supreme Court insisted that acquisition
without payment of market value compensation violated Article 31. Overriding the Supreme
Courts rulings, Parliament enacted the Fourth Amendment in 1955, which ousted judicial
review of the adequacy of compensation in all cases where the deprivations of property did
not transfer title or possession of the property to the state. However, in a series of cases
following the Fourth Amendment and culminating in the bank nationalisation case in 1970,
the court resurrected the compensation requirement and invalidated laws for providing
inadequate or illusory compensation. These decisions ultimately led to the abolition of
Articles 19(1)(f) and 31 in 1978.42
4.3: Current Scenario: A Chronological Account
The Indian Constitution adopted in 1950 guaranteed a set of fundamental rights that cannot
be abridged by Central or State laws. One of these fundamental rights was the right to
41 See footnote 39
42 http://indiacode.nic.in/coiweb/amend/amend44.htm

property enshrined in Articles 19(1)(f) and 31. Article 19(1)(f) guaranteed to all citizens the
right to acquire, hold and dispose of property, subject to reasonable restrictions in the public
interest. Article 31 provided that any state acquisition of property, whether movable or
immovable, must only be upon enactment of a valid law, for a public purpose and upon
payment of compensation.
The following decades saw conflict between Parliament and the Supreme Court, with the
court invalidating acquisition laws for violating the fundamental right to property and
Parliament responding with numerous amendments to the Constitution that redefined
property rights. This conflict culminated in the 44th Amendment, which abolished the
fundamental right to property in 1978. The same amendment, however, inserted Article 300A
in the Constitution, which provided that no person shall be deprived of his or her property
without the authority of a valid law43.
The courts role before 1978 is vilified in political rhetoric and scholarly discourse as being
reactionary and anti-poor. It is criticised for protecting the rights of rich property owners and
impeding Parliaments progressive land-reform agenda. Post-1978, however, the court is
regarded as progressive and pro-poor. It is credited with developing a rich jurisprudence of
socio-economic rights reading into the fundamental right to life and non-enforceable directive
principles of state policy, including the rights to food, shelter, livelihood and a healthy
environment44.
Since the early 2000s, however, there has been growing disenchantment with this narrative.
Widespread acquisition of land by the state for dams and infrastructure and industrial projects
has received significant public attention owing to the dispossession of poor peasants and
traditional communities such as forest dwellers, cattle grazers, fishermen and indigenous
tribal groups. Some scholars now argue that the weakening of property rights by Parliament
in response to the courts pro-property rights decisions before 1978 has dispossessed the
poor rather than the rich. In accordance with this view, in 2009, a public interest petition was
filed before the Supreme Court, Sanjiv Agarwal vs Union of India 45, seeking invalidation of
43 Seervai, H M . Constitutional Law of India, Fourth Edition
44 See footnote 39
45 1990 AIR 1202, 1990 SCR (2) 318

the 44th constitutional amendment and reinstatement of the fundamental right to property.
The petitioner cited the large-scale displacements caused by the creation of special economic
zones (SEZs) and by projects such as the Narmada dams and the land conflicts in Singur and
Nandigram as motivating his demand. In 2010, the Supreme Court dismissed the petition but
not on its merits.
Simultaneously, since the late 1990s, many economists and development theorists have
argued that strong formal property rights are a necessary precondition for economic growth.
Perhaps the most influential proponent of this view is Hernando de Soto. In his book, de Soto
argues that strong protection for property rights is the key to unlocking capital, that is, the
potential value of assets, which is necessary for economic growth and for the elimination of
poverty in developing countries46. In line with these prescriptions, the World Bank has
supported programmes for the formalisation of property rights and the creation of titling
systems to secure such rights in many countries including India.

In the 1980s, with the rise of neoliberalism in development discourse, we saw a move away
from the nationalisation of resources and a lifting of state control. In 1991, the economy was
liberalised, and attempts were made to integrate it with the global economy through the
reduction of tariff barriers and the liberalisation of foreign investment laws. In 1999, a
Disinvestment Ministry was created and specifically charged with the privatisation of stateowned industries. Finally, with the enactment of the Special Economic Zones Act47, the
acquisition of land by the government to hand it over to private industry, which had happened
in an ad hoc manner in previous decades, became official government policy.

46 The Mystery of Capital, 1st Edition, 2000.

47 2005

5. EVALUATION OF HYPOTHESIS
The rhetoric for strengthening property rights through constitutional or legislative means is
based on the assumption that strong property rights will somehow on their own ensure
protection of the interests of poor peasants and traditional communities. This assumption is in
turn based on two developments. The first is the hegemonic nature of the rights discourse,
which tends to regard the articulation of an interest in the form of a right as valuable per se
irrespective of the social and political context within which those rights are exercised and
enforced. The second is an implicit faith in the judiciary, an institution whose image, though
somewhat tarnished by allegations of corruption and non-transparency in the recent past, still
commands enormous public legitimacy as compared with that of Parliament and the
executive.
Yet, rights are abstract and are given content only by the social and political context within
which they are articulated and enforced. A property right is not the relation between an owner
and a thing but between several individuals with respect to a thing. Property law involves
relations among people; more broadly, it defines a particular social, economic, and political
structure. Consequently, property relations in society are structured differently in each period
of the societys development according to the dominant perception of what an ideal society
should look like. Therefore, at any given point of time, certain property interests and property
rights of certain individuals and groups will be prioritised over others.
Moreover, a review of the Supreme Courts property rights jurisprudence indicates that
despite apparent conflict between the court and Parliament in property rights cases, there has
existed significant consensus between judges and legislators about appropriate property
relations in society stemming from their shared vision of economic development and
industrial growth as progress. In what follows, I review the history of the fundamental right
to property to demonstrate the nature of this consensus and to evaluate its impact on current
debates regarding land acquisition and the reinstatement of a fundamental right to property.

During the ongoing changes in the scenario in the 1980s, despite the courts so-called
progressive socio-economic rights phase, we see an almost complete abdication of judicial
review of acquisition laws. This is presumably because of the abolition of Article 31 as it
removed the requirements of public purpose and just compensation from the chapter on
fundamental rights. However, this is not a satisfactory explanation since the insertion of
Article 300A in the Constitution both enabled and required the court to continue its review of
acquisitions. Moreover, the court had in the past continued to review the adequacy of
compensation even after the Fourth Amendment had expressly ousted judicial review with
respect to the same, thereby demonstrating that it could at times choose not to be constrained
by constitutional amendments.
As a consequence of the courts abdication of its review powers, since the 1980s we find little
or no disagreement between the court and Parliament on property rights issues, even though
property relations were significantly altered in order to transfer land from individuals and
traditional communities to private industry. For instance, in its 2000 judgment in the
Narmada Bachao Andolan case, the Supreme Court, in a highly deferential decision, accepted
the governments decision about the necessity and feasibility of the Narmada dam. In doing
so, it ignored evidence regarding the economic and environmental unsustainability of the
dam, which had resulted in the World Bank withdrawing from the project, and the
displacement of thousands of people who were not covered by the governments
rehabilitation plans.
In the last few years, however, we have seen a revival of judicial scrutiny. In 2011 the
Supreme Court quashed the acquisition of farmland in Haryana on the grounds of violation of
procedures under the Land Acquisition Act, 1894. In several pending cases, acquisition of
land for housing development projects is under review. Given that this heightened scrutiny is
occurring within the confines of the courts review powers under Article 300A and without
the reinstatement of a fundamental right to property in the Constitution, clearly the courts
complete abdication of its review powers in the last three decades cannot be attributed merely
to the abolition of Article 31.
Thus, the courts relationship with Parliament on property rights issues has been largely one
of consensus marked by occasional disagreement. This is partly a result of the courts concern
for its own autonomy from executive and legislative interference. More importantly, however,
it follows from consensus between the court and Parliament about appropriate property

relations in society, which is in turn derived from their shared vision of economic
development and industrial growth as progress.
In the light of this, it is clear that reinstatement of the fundamental right to property in the
Constitution will on its own do little to protect the interests of poor peasants and traditional
communities. While the court may in the present political climate invalidate acquisitions that
smack of blatant arbitrariness and crony capitalism, such isolated cases may not be sufficient
to address the needs of those facing displacement on a systemic level. Before we reinstate the
fundamental right to property in the Constitution, we need not only a clearer articulation of
what such a right would mean in the present context but also sustained resistance to the
current model of economic development which privileges property rights of big industry over
those of poor peasants, workers, owners of small industrial units and traditional communities.

6.CONCLUSION
Rule of Law is the basic principle of almost all governments across the world. It is here that
law can come to the rescue of the turmoil faced by every civilization for property rights from
time to time. Property rights and the rule of law are the essential foundation for economic
progress and reductions in poverty. From the natural right of individuals to the fruits of their
own labour to the mundane expectation that the security of peoples homes, businesses, and
possessions will be enforced, the capitalist institution of private property creates conditions
conducive to economic growth and generates incentives that make growth likely to occur.
Throughout developing countries, lack of secure property rights founded on the rule of law
denies the poor access to wealth-generating capital, robbing them of initiative and hope.
Successful anti-poverty efforts in developing countries like validate predictions based on
observing the history of western development since the Industrial Revolution: human rights
to property foster economic growth. Following are certain observations drawn from the study
on impacts of property rights on economy.

To be effective stimulants of economic growth, property rights must exist within a

rule of law that offers reasonable expectations of stability and enforcement.

Secure property rights to self and possessions release resources from protective to
productive endeavours.

Rights to private property promote economic growth by providing incentives to invest

in future production, and facilitate such investment by acting as collateral for the
assumption of debt.

The poor are burdened more heavily than the rich by the costs associated with illdefined or insecure property rights, and stand to gain greatly from property rights
reforms.

However, a straight dive at reforming property rights is not the solution. What is required is a
proper and logical as well as practical scrutiny of revival of the right to property in India. A

social and political audit prior to any significant change is inevitable. Only when there are
reasons strong enough to point towards actual benefit from the reforms and reinstatement of
property rights can the government proceed with what could, if materialized, be a historical
step by the Indian Government.

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