Right to Property: A Fundamental Right or a Legal Right in South Asia?


2016-06-03-1464958846-8518405-SouthAsian-thumbBy Jivesh Jha

The Constitutions of the member states of South Asian Association for Regional Cooperation (SAARC) are divided over the arrangement of right to property. The fundamental document of Sri Lanka and India envisage that right to property is a constitutional right, not the fundamental right, while the same right continues to be an important fundamental right (FR) in remaining six countries.

Like many other FRs, the charters assert that right to property would be exclusively available to citizens giving themselves to the concerned Constitutions. A look at what has constrained and qualified that right, by way of law, religion and politics in South Asia.

The Constitution of Islamic Republic of Pakistan-1973 ensures that every citizen would have right to acquire, hold and dispose the property in any part of Pakistan, Article 23.

However, the position is different in India. The state of Jammu & Kashmir happens to be the only Indian state that has its own official flag and constitution and Indians from other states cannot purchase land or property in the state. Noted, Article 370, which provides special autonomy, is the current bedrock of the Constitutional relationship between Jammu and Kashmir and the rest of India.

“Meanwhile, right to property was initially enshrined under Article 19(1) (f) but it was omitted by the 44th amendment Act of 1978. Even though the right to property is no longer a FR in India, the same continues to be a significant Constitutional right and in terms of Article 300A, no person can be deprived of his property except by authority of law,” said Dr Nidhi Saxena, faculty of International Law at Sikkim Central University.

In the similar vein, the Pakistani statute in its Article 24, enacts that ‘no person shall be deprived of his property save in accordance with law.’

Similarly, the Constitution of Bhutan in its Article 7 (9) envisages that a Bhutanese citizen shall have the right to own property, but shall not have the right to sell or transfer land or any immovable property to a person who is not a citizen of Bhutan.

The SAARC states unanimously assert that a person ‘shall not be’ deprived of property by acquisition or requisition, except for public purpose and on payment of fair compensation in accordance with the provisions of law.

Like Bhutan, the Constitutional Act of Maldives also ensures that every citizen has the right to acquire, own, inherit, transfer or otherwise transact of such property, Article 40 (a).

Further, right to property stays the same in Afghanistan as of Maldives. Article 40 of Afghani statute commands that no citizen of the country would be forbidden to own the property and acquire it. “Property shall be safe from violation,” says Article 40. However, the similar provisions for property rights have been embodied in Article 42 of the Constitutional Act of Bangladesh.

Moving neck-to-neck with India, the Sri Lankan statute maintains that right to property is of course a legal right but not a fundamental right.

Unlike the aforesaid two countries, the newest Constitution of the world, which was enforced on Nepali soil on September 20 last year, enacts that “Every citizen shall, subject to laws, have the right to acquire, enjoy own, sell, have professional gains, and otherwise utilize, or dispose of property.”

The legislative intent of the South Asian states is very clear: Citizens shall have right to own, hold and dispose of property. The legislatures of these developing nations have clarified that the property rights has constitutional limitations attached to it and this right cannot be exercised in an absolute sense.

What are those qualifiers?

The Constitutions of SAARC states affirm that there should not be a slim interpretation of right to property, but that does not mean that there cannot be any restriction.

  • National/Public interest

The statutes command that acquisition of private property ‘shall’ be legally permitted only for the sake of public interest and in exchange of prior and just compensation. The charters are at even to envisage that the private property may only be compulsorily acquired by state for public good.

“However, every government has an inherent right to take the property belonging to an individual citizen for public use. This power is known as Eminent Domain. It’s unanimously believed that the doctrine of eminent domain is the offspring of political necessity,” opined former Civil Judge Pramod Tiwari, who currently delivers lecture on International Law at Uttaranchal University, Dehradun.

This right rests upon the two legal maxims: 1. ‘Salus populi est suprema lex’ (welfare of the people is the paramount law), and 2. ‘Necessita public major est quam’ (public necessity is greater than the private necessity).

“Thus property may be needed and acquired under this power by the government for government offices, libraries, hospitals, schools, etc. The exercise of this doctrine has been recognized in the jurisprudence of all civilized nations. And, the state is literally supposed to pay the compensation,” argued Abhiranjan Dixit, another faculty of International Law at Uttranchal University, Dehradun.

  • Compensation

While the two Islamic states of Pakistan and Bangladesh provision that one cannot knock the door of court on the ground that any compensation was not adequate, the remaining six states stand for the reasonable, fair and just compensation with freedom to move the court.

 

“The compensation amount should be reasonable and also it should be in the line with circle rate [or market value]. The socialist character of any country would be called in question when they disallow any person to bring an action in a competent court of law on the ground that any provision in respect of compensation is not adequate,” further added Tiwari.

 

Meanwhile, Article 42 of Bangladeshi Constitution explains that the new law of Proclamations (Amendment) Order-1977 has been enacted which so far relates to the acquisition and nationalization of any property without compensation.

 

  • Only for Citizen

 

The statutes are not at odds in envisaging that right to own an immovable property would be exclusively available to citizens.

 

  • Civil right or Fundamental Right?

Of eight member states of SAARC, altogether two countries—India and Sri Lanka—guarantee right to property as an important legal right, while the remaining countries ensure the same as a sacrosanct fundamental right.

“The right to property was removed from FR because the government was pursuing a socialist ideal. The right to property is made a statutory right in 1978 to abolish large land holdings with Zamindars and rich and to ensure their distribution among landless peasants,” further added professor Tiwari.

“It would have an uphill task for the government to acquire the property of an individual for public purpose if right to property continued to be an important FR.”

Similarly, Doctrine of Eminent Domain suggests that the government is blessed with inherent power to acquire any private property for the public purpose.

In effect the states have the right to confiscate anybody’s property in South Asia, and compensation is only offered as relief. To put it simply, the right to property remains a legal right in India and Sri Lanka and FR in remaining South Asian nations and the citizens here can own property and dispose of it as they please.

Even as it remains to be a significant FR in Pakistan, Bhutan, Bangladesh, Nepal, Afghanistan, and Maldives, the government only provides compensation when it acquires land. And, so is the case in India and Sri Lanka.

So, the compensation is a lone way to give people whose land is taken away a chance at a new beginning. So, in one way or the other, the right to property enjoys the same currency in South Asia—no matter it’s a FR or not.

(Jivesh Jha is a Nepali student who is currently pursuing Masters Degree in Dehradun, India. )

Published on Aug. 23, 2016

 

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