credit: The Global Reality.

Constitution as we know is a fundamental document ensuring rights of a person and while there are many rights guaranteed by it, the right to property holds a special place.

The Constitutions of the member states of South Asian Association for Regional Cooperation (SAARC) are divided over the arrangement of the right to property. The fundamental documents 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 in remaining six member states of SAARC.

Like many other fundamental rights, these developing states ensure right to property exclusively to citizens giving themselves to the Constitutions. This article delves into the arrangement Constitutional provisions for the right to property in South Asian states.

In this context, the Constitution of Islamic Republic of Pakistan, 1973 envisages that every citizen would have right to acquire, hold and dispose of the property in any part of the country [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. It is to be noted that 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) in Indian Constitution but it was omitted by the 44th amendment Act of 1978. The scholars in India argue that the right to property was made a statutory right in 1978 to abolish large land holdings with Zamindars and rich and to ensure their distribution among landless peasants.

Even though the right to property is no longer a fundamental right 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.

Interestingly, Article 24 of the Pakistani Constitution acknowledges similar wordings—“No person shall be deprived of his property save in accordance with law”—but it’s a fundamental right against India’s legal right. To surprise many, the Nepali Constitution too—more or less– adopts similar approach while describing the right to property. “Every citizen shall, subject to laws, have the right to acquire, enjoy own, sell, have professional gains, and otherwise utilize, or dispose of property,” reads Article 25.

Similarly, the Constitution of Bhutan in its Article 7 (9) provisions 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 charters of Afghanistan, Bangladesh, India, Maldives, Nepal, Pakistan, and Sri Lanka as well mirror similar laws for the right to property.

Despite this, the Constitutions cast an obligation on the state to award a fair compensation after the acquisition of property (of a private person for the public good).

Now, a conclusion can be drawn along the Constitutional lines that every citizen is vested with the right to own, hold and dispose of property by his means. Still, the charters clarify that the property rights have constitutional limitations attached to it and this right cannot be exercised in an absolute sense.

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

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

In this light, “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,” opines former Civil Judge Pramod Tiwari, who is currently a faculty member in Constitutional Law at Uttaranchal University, Dehradun, India.

This right rests upon the two celebrated 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, the property may be needed and acquired under this power by the government for building government offices, libraries, hospitals, schools, etc. The exercise of these doctrines has been recognized in the jurisprudence of all civilized nations. And, the state is literally supposed to pay the compensation,” further added Tiwari.

Shockingly, the Islamic states of Pakistan and Bangladesh proscribe a person to knock the door of court on the ground that any compensation was not adequate. However, the remaining six states of SAARC allows for the reasonable, fair and just compensation with the freedom to move the court.

“The compensation amount should be reasonable and it should be in the line with prescribed circle rate. The socialist character of any country would come under attack when they disallow a person to bring an action in the court of justice on the ground that any provision in respect of compensation was not adequate,” further added Tiwari.

In what can be seen as further annoying, Article 42 of Bangladeshi Constitution reveals that the new enactment–Proclamations (Amendment) Order-1977–has been scripted in the state which so far relates to the acquisition and nationalization of any property without compensation.

Beyond this, one of the hot cakes in Constitutional politics today is whether the right to own a property should be a fundamental right or a legal right.

Of eight member states of SAARC, altogether two countries—India and Sri Lanka—guarantee the right to property as an important legal right, while the remaining countries ensure the same as a sacrosanct fundamental right. And, the citizens here (in South Asia) can own property and dispose of it as they please.

The states ensuring this right as a legal right make an important claim that it would be an uphill task for the government to acquire the property of an individual person for the public purpose of the right (to property) continues to be an inherent fundamental right. On the other hand, ‘Doctrine of Eminent Domain’ has been held as a shield for validating their stated position. The principle suggests that the state has an inherent power to acquire any private property for the public purpose. In this effect, the states have the right to confiscate anybody’s property, and compensation is something which is offered as a relief after such acquisition.

Above all, the Constitutions oblige the state to award a just compensation and the compensation is a lone way to give the people whose land is taken away the state. Even as it remains to be a significant fundamental right in Pakistan, Bhutan, Bangladesh, Nepal, Afghanistan, and Maldives; the governments have only thing to give is compensation. Neither the Constitutions command states to award land holding of the same area nor has the states brought any other alternatives than the compensation. Also, the restrictions, especially acquisition for the public purpose, attached to this right appear more or less same.

So, in one way or the other, the right to property enjoys the same fate in South Asia—be it a fundamental right or a legal right.

Jivesh Jha

jhajivesh@gmail.com