Much has been written about gender and property rights, most of it reflecting
the dismal record of developing countries in providing with equal rights not
only to land but to the basic necessities of life. Property rights are
contentious in any jurisdiction. But the right to property in India, adopted as
a fundamental right in Article 31 of the Constitution of the India, 1950
("Article"), has had a particularly tumultuous legal and political history.
It
holds the distinction of being the second most debated Article in the
Constituent Assembly, the most amended provision of the Constitution and the
only fundamental right to ever be deleted. The history of the Article is
commonly understood as arising from an ideological institutional conflict
between a Parliament in pursuit of socialism and a judiciary safeguarding
individual freedoms.
However, looking at the Article and its initial amendments
from a "law and development" perspective provides a critique of the current
narrative of "conflict" and offers an alternative interpretation of the history
of Article 31. The paper argues that rather than arising from the pursuit of
either authoritarian socialist planning or an egalitarian social revolution, the
travails of the Article came in the context of India's quest for economic
modernity through a process of "passive revolution".
The powers of eminent
domain reinforced in the Article empowered the state to modernise economic
relations in industry and agriculture by restructuring a semi-feudal
pre-capitalist property rights regime established during colonialism along
productive capitalist lines. In this process, the Article helped to consolidate
the powers of the developmental state in the domain of economic policy; forged
the relationship between state, market and the individual; and helped shape the
regime of private property rights in India.
Understanding the evolution of the fundamental right to property in India
therefore, not only tells a key part of India's development story but also
contributes to the "law and development" literature by assimilating diverse
historical experiences within its framework, which, as critics have long argued,
tends to have a strong Eurocentric bias. Rather than disputes leading to
violence, the legal system resolves them.
Without such a system, there is no
right to an asset or retail estate. For example, let's say Mr Jones builds a
house for himself. He may leave it vacant for a time, only to find someone else
has moved in. Without property rights and a legal system, he has no ownership,
therefore, he has no authority to remove the other party.
This defeats the point
of ownership – highlighting the importance of property rights. With property
rights, Mr Jones is able to use the legal system to evict and reclaim the
property that is his. The culprit will be brought to court and will be forced to
pass back the property to the rightful owner.
If the consumer has no right over the good they purchase, then anybody can
freely take it. As a result, trade halts and production is almost non-existent.
Imagine a society where there is no consequence of theft – which would be the
state the economy without property rights.
Women have less access to shelter,
income, water, food, education,
and healthcare when compared to men, leading to what is often called the
"feminization of
poverty." While women are increasingly heads of households, today's women and
girls in
developing countries make up 70 percent of the estimated 1.2 billion people
living in absolute poverty, defined as living on less than $1 a day. No doubt
one cause in the overrepresentation of women in poverty is the fact that land
and other real property are generally considered to represent about 75 percent
of a nation's overall wealth, and women own only an estimated 1-2 percent of all
titled land worldwide.
While there is a dearth of reliable and comprehensive
data on the extent of inequality between males and females with regard to access
to and control over land and real property, particularly in urban areas,
available surveys and studies indicate that the disparity is substantial.1
The
plight of women in poverty seems destined to continue unless there is
significant reform and strengthening of laws, policies, and practices relating
to ownership and control of property throughout the developing world, and among
approaches taken by donors supporting these reforms. Improving the property
rights of women is a matter not only of human rights and gender equality; it is
a fundamental principle that underlies economic development for all people.
There is an abundance of research showing that when women's incomes go up, the
additional income goes directly to increasing household consumption and
therefore into the overall economy; men on the other hand spend much of their
income on personal items.2 In addition,
Women's lack of property rights has been increasingly linked to other
development:
Problems, including low levels of education, hunger, and poor health.3 For
women, there is a linkage between rural and urban poverty. Rural women's incomes
could increase if they own or control land, individually or jointly, and have
the benefit of legally recognized use and inheritance rights.
Ongoing exclusion
of women from rural land rights pushes them toward the cities, where they often
join the increasing ranks of women-headed or women-only house holds in slum
areas where inadequate housing is the norm and homelessness is all too common.
While women make up 66 percent of the labor force in urban areas of developing
countries, they account for only 10 percent of income. With urbanization of
poverty as well as
Feminization of poverty on the increase, it is critical for women living in peri-urban
or urban
settings to have clear rights and independent access, use, and control of
property and housing for their own economic benefit and empowerment, and for
them to reach their potential in contributing to their countries' overall
economies. The purpose of this paper is to explore the nexus of three issues
that individually are touchstones of international donor efforts to improve
conditions and reduce poverty in developing countries, but are not usually
considered together or in terms of how they relate to each other.
These issues
are gender equality in property rights, i.e., the rights of women to participate
in property use and ownership with full legal and societal protection the
importance to economic development of residential and commercial property rights
in urban areas; and the role of women in economic development. There is widely
available literature about each of these individual issues, but little has been
written about how they intersect, and why more emphasis on programs that view
them in a holistic manner would make development efforts more efficient and
beneficial.
In Sections II, III, and IV, this paper sets out the individual
issues and some of the better and worse practices that have been used in
addressing them in international development programs. These sections emphasize
factors that are then drawn together in Section V, which provides
recommendations for addressing all three in a coordinated and more effective
way.
Intellectual property (IP) rights are legal and institutional devices to protect
creations of the mind such as inventions, works of art and literature, and
designs. They also include marks on products to indicate their difference from
similar ones sold by competitors. Over the years, the rather elastic IP concept
has been stretched to include not only patents, copyrights, trademarks, and
industrial designs but also trade secrets, plant breeders' rights, geographical
indications, and rights to lay out designs of integrated circuits, among other
things.
To proponents, IP rights contribute to the enrichment of society by promoting:
(1) the widest possible availability of new and useful goods, services, and
technical information that derive from innovative activity, and
(2) the highest possible level of economic activity based on the production,
circulation, and further development of such goods, services, and information.
These objectives are supposed to be achieved because owners can seek to exploit
their legal rights by turning them to commercial advantage. The possibility of
attaining such advantage, it is believed, encourages innovation. But (typically)
after a certain period of time, these legal rights lapse and the now-unprotected
inventions and works can be freely used by others.
IP rights have never been more economically and politically important than they
are in today's so-called 'knowledge-based society.' Neither have they ever been
so controversial. IP rights are frequently mentioned in discussions and debates
on such diverse topics as human rights, agriculture, health, education, trade,
industrial policy, public health, biotechnology, biodiversity, environmental
protection, information technology, the entertainment and media industries, and
the widening gap between the income levels of the developed countries and the
developing countries.
Such importance and controversy arise from the fact that today's international
IP rules require both developed and developing countries to provide strong and
uniform standards of protection. The 1994 Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS), one of the main outcomes of the Uruguay
Round of the General Agreement on Tariffs and Trade (GATT), which is
administered by the Geneva-based World Trade Organization (WTO), is of special
importance in that it establishes enforceable global minimum (and generally
high) standards of protection and enforcement for virtually all the most
important IP rights in one single agreement.
However, there is much more to today's global IP regime than TRIPS. The
architecture of the global IP regulatory system includes an increasing diversity
of multilateral agreements, international organizations, regional conventions
and instruments, and bilateral arrangements. In sum, the international law of IP
in its present form consists of three types of agreement.
These are multilateral
treaties, regional and supranational treaties or instruments, and bilateral
agreements. Of these, the agreement that affects the greatest number of
countries is TRIPS. Important also are multilateral treaties administered by the
World Intellectual Property Organization (WIPO), a specialized United Nations
agency that is also located in Geneva. Prominent examples of the latter include
the 1883 Paris Convention for the Protection of Industrial Property and the 1886
Berne Convention for the Protection of Literary and Artistic Works.
Most
multilateral IP rights agreements are administered by WIPO, but there are some
important non-WIPO treaties such as the 1961 International Convention for the
Protection of New Varieties of Plants, which is administered by the Union
Internationale pour la Protection des Obtentions Végétales (UPOV) (which shares
a headquarters with WIPO in Geneva) and of course, TRIPS. Important regional
agreements and instruments include the 1973 European Patent Convention (updated
in 2000) and the 1998 European Union Directive on the Legal Protection of
Biotechnological Inventions.
A new right over plant material, in some respects analogous to conventional IP
rights, was foreshadowed by the Convention on Biological Diversity (CBD, Rio,
1993) and further defined by the Nagoya Protocol to the CBD (2015).
Objectives
This objective of this paper is to describe what exactly the term "property
rights" and equality signify and also to present the provisions that are already
present in our constitution but are:
Importance Of Property Rights
- Property Rights Guarantee Freedom
Property rights guarantee freedom because control of production is spread among
many acting bodies; nobody has complete power of resources. Whether 'society' or
central government controls the means of production; both have complete control.
When governments own resources, a few people decide what to produce, how much to
produce and for how much. Instead, millions of individuals own their own
resources which they can use for whatever they see fit. This allows for the
right and freedom for individuals to pursue their own interests. At the same
time, it provides an incentive for people to live, work, and save.
- Economic Progress And Incentive To Work
Without private property, what incentive is there to work? If the house you live
in is not yours, then why make improvements? You may not own the house, but who
does… the government? What would be the incentive to build the house in the
first place?
When there is no private property, there is no incentive other than subsistence.
Private property gives individuals an incentive to earn, invest, and accumulate
wealth. It incentivizes people to earn as wealth can accumulate. That
accumulation can be used for future consumption.
Human wants are inherently infinite and private property allows humans to
accumulate wealth and satisfy future wants. This can be for the purpose of our
own consumption, but also the purpose of providing for our children.
- Protection of Ecosystem
The importance of property rights can be extended to the ecosystem. What such
rights do, is assign the right to a specific piece of land. Without such, it is
a common resource that can be used and exploited by everyone. For example,
fishing is a known area that can potentially lead to overuse without property
rights.
If a fisher owns rights to a specific part of the sea, it is in their interest
to ensure there will be sufficient fish in the long term. This results in
limited resource extraction. A fisher will want to ensure they can make an
earning tomorrow.
What these property rights do is allow for the long-term allocation of resources
to be considered. Without such, individuals will rush to catch all of the fish
in the sea before others are able to benefit.
- Intellectual Property Rights
Private property rights extend beyond the realms of physical property. There are
also intellectual property rights to consider such as patents, copyrights,
trademarks, and trade secrets. These protect ideas and business secrets, but how
do these help the economy and society? Well, they provide the foundations for
ideas to grow and develop.
Are businesses going to spend years and millions on developing a new product or
idea, only for it to be copied at a fraction of the cost? It allows businesses
to protect their trade secrets like Coca-Cola does with its recipe. Without
protections like patents, investors are unwilling and unlikely to invest. For
example, within the pharmaceutical sector, millions of dollars are spent on
research & development, which requires patent approval.
IP rights incentivizes entrepreneurs to keep innovating and pushing for new
developments and technology in the knowledge that they will be protected in the
end.
- Protection From Confiscation and Government Control
The ease at which the government can take back property is a serious concern; so
many systems try to prevent this through the allocation of property rights. Some
countries employ restrictions on government's power, but they do not prevent
government over-reach. For example, the US government has a power called
'eminent domain'. This allows the confiscation of private property for public
use – as long as a fair price is paid. The courts then judge what a fair price
is. However, this price is frequently below the owner's value.
Whilst the US has strong property rights, they are by no means encompassing.
When we look at countries with strong property rights, we see a direct
correlation with prosperity.
Countries such as Singapore and Hong Kong rank highly on property rights. The
likes of Venezuela and Haiti are among the weakest. It only goes to show the
importance of property rights. Without such strong property rights, nothing will
protect the average citizen from government dictatorship and control.
- Absence of property rights can lead to violence
In some countries such as India, residents are easily evicted without warning or
compensation. Thousands are displaced due to infrastructural projects which
force residents to resettle elsewhere. This can lead to resentment, anger, and
violence.
When individuals believe that the home they built is theirs, but others come and
destroy it, violence can result. It might be a government or privately led
project that claims the land for re-development – at the price of peoples
livelihoods. Without private property rights, those residents have no recourse
to fight other than through physical means. They cannot go to court, and they
have no legal right to that land due to the absence of property rights.
- Economic Prosperity
When individuals have a claim on a land, home, or other type of property, they
are able to benefit economically. For example, that asset can be sold on to
another individual, with the associated rights also being passed on. In
addition, that asset can be used as collateral to borrow money. Homes are
frequently used as collateral in order to allow consumers to obtain a mortgage –
something that would be impossible without property rights.
Mortgage lenders own the official property rights until that debt has been paid
off, whereby the title deeds are then transferred over to the owner. Only once
the mortgage is paid, are the property rights transferred, but it is through
this agreement which makes lending thousands of dollars a secure transaction for
lenders. Without property rights, there would be no mortgage business.
The same applies to businesses and shareholders. Investors would not invest
billions of dollars into businesses if they did not have a stake in that
company. Once shares are purchased, they have a formal and legally recognized
stake in that company. Without property rights, it could own a share, but would
have no legal basis if the company said that it did not issue those shares.
The Literature Survey
Guide to the literature survey
The literature on intellectual property rights dates as far back as the era of
the classical economist such as Adam Smith and even beyond. Not surprisingly,
then, the volume of literature on the subject that has accumulated over the
years is immense, and a survey of this kind can only cover a small fraction of
what actually exists. in more recent times, one can notice that interest in the
subject of intellectual property rights has spread from the law and economics
departments of universities to disciplines which traditionally did not consider
IPRs as being of relevance.
The intellectual property literature has
proliferated and expanded, attracting the interest of researchers in such fields
as sociology, anthropology and ethnobiology, international relations and
political science, and moral and legal philosophy. In addition, IPRs have become
integral to the work of NGOs and international organisations concerned with
development and trade. Therefore for a literature survey on IPRs to be at all
comprehensive, a very wide net indeed needs to be cast. The survey focuses on
writings published since 1995. However, particularly significant earlier texts
are also included.
The references are arranged by the following subject areas:
- General texts
- Public health
- Agricultural development, food security, and nutrition
- Education
- Business and industrial development
- Biotechnology
- Information and communication technologies, and media
- Technology transfer and direct foreign investment
- Administration and enforcement
- Trade and competition
- The TRIPS Agreement
- Traditional knowledge
- Music, folklore, and entertainment
- Biodiversity and the environment
- Human rights
It is not always easy to place works within these categories since many of the
writings cover two or more topics. Indeed, many of the best writings are those
having a broad scope. Key texts are marked with an asterisk. This does not
signify that unmarked texts should be considered as being in some way inferior.
Rather, for busy development practitioners and policy-makers who are unfamiliar
with the subject of intellectual property rights, the most profitable return on
a limited time investment is likely to be gained by focusing on those selected
texts. It is worth pointing out that some of the most interesting studies on
different aspects of intellectual property may be found in works that are not
primarily about IPRs.
Nature of Property Rights:
Property rights have certain characteristics which are not possessed by other
kinds of rights and duties.
- Property Rights are Transferable:
Property can be transferred by its owner by way of sale, exchange or gift. It
can be transmitted from one generation to the next. "In any .event the
conception of property always implies that except on some taboo on sale or
transmission it could be transferred", say Davis. In this sense a person's right
in his wife or his skill are not property rights, for they are not transferable.
- Property Rights involves a Distinction between Ownership and
Possession of a Thing:
There is distinction between ownership and possession of thing. A person a may
own a thing but he may not actually use and enjoy it. Another person may steal
it to use and enjoy, borrow with the owner's consent. A person may own a
building, but it may be in the possession of another person (tenant) at a cost.
- Power Aspect:
The third characteristic of property is its power aspect. As a social
institution, property gives power, not only over things, but through things also
over persons. The possession of property implies the possession of power over
others. It has been an instrument whereby those who own it can control the life
and labour of those who do not own it. In a capitalist society, for example, the
owners of capital have control over the life arid labour of those who do not own
it.
- Property is usually Non-human:
This means that the object of property has no rights of its own but is simply
the passive object of such rights. The land has no right of its own; it only
serves the land owner. It is the owner's will, his discretion and advantage that
are served by the object. Human beings cannot be the object of property. For
example, a woman cannot be the object of property of her husband. Property
rights apply only to those things which have no rights of their own.
Types of Property:
The nature of property rights and type of property vary from society to society
and within a particular society over time because property rights are socially
terminated. We find different forms of property. Property may be broadly
classified into two types, private property and common (public property).
An outstanding feature of modem economic life is the institution of private
property. The term private property usually applies to rights held by
individuals or groups acting in their own interests. The term 'public property'
refers to rights held by the community at large and administered by individuals
or groups acting as agents of the community. These two types of property differ
in the focus of ownership as well as kinds of property rights exercised.
Private property again may be classified into two types: individual property and
collective property. In individual property, the control is vested in an
individual. Collective property may take various forms depending on the
collective entity having ownership and control; it may be
Types of Corporations:
- a private corporation,
- a quasi-public corporation, and
- a public corporation.
Differences between Private and Public Property:
- Private property is owned by a person or group of persons, whereas public property is owned by the community.
- Private property is usually used by its owner for his own good, while public property is used for public good.
- Private property is regulated by the laws of the State, while public property belongs to the State itself and not subject to regulation by any external group.
According to Bottomore, "property for power and unlimited acquisition of wealth
was product of capitalism," it reached its peak in nineteenth century Europe and
North America. Individual private ownership is the basis of capitalist economic
system.
Advantages of Private Property:
The institution of private property has gathered a great controversy. It has
been defended and attacked on various grounds. On the one hand, it is regarded
as essential for social progress, on the other, it is called "theft'.:
The advocates of the institution of private property put forth the following
arguments in favour of its advantages:
- Natural Right Argument:
John Locke argued that property is natural to man. The right to private property
arises because by labour a man extends his personality into the objects
produced. Like the right to life and liberty, property right is also
fundamental, inalienable right of an individual. No person and no Government can
rightfully infringe upon it. Property is necessary for rational existence of
man. It is necessary for the free play of individual capacities.
- Incentive to Work:
It is said that man needs an incentive to work. The concept of private property
ensures a labour, control over all the gains of his labour. This motivates him
to do still better. It raises his efficiency, satisfaction and indoctrinates a
sense of protection.
- Provides Security against Future:
Property provides security to man against starvation. Property is a fore-guard
against the wants of tomorrow. Those who have no property, are uncertain about
the means of life in future. Economic insecurity discourages social evils such
as exploitation. Private property generates sense of security.
- Ethically Sound:
The right to property has always been justified on the ground that it is the
reward to an individual to work more and more. It extracts hard and sincere
efforts of the worker.
- Property is the Nurse of Virtues:
Property generates social virtues; family sense and affection as well as
generosity. It attaches great social virtues to the holder who behaves
benevolently. It generates a feeling of social service and sacrifice for the
noble cause.
- Socio-economic Progress:
The institution of private property has been the major contributory to the
progress of civilisation.
It stimulates physical, mental and spiritual welfare of the individual and of
community. Property is considered necessary for a better social awareness and
individual developments.
Disadvantages:
There are some thinkers who maintain that private property creates evils. The
disadvantages that are generally attributed to it are discussed as under.
- Greed for Property:
Private property makes man greedy. He wants to earn more and more money by any
means. He even forgets morality. Private property thus, leads to moral
degradation.
- Basis of Capitalism:
Advertisements:
Private property is the basis of capitalism. In capitalism, every person has the
right to earn and maintain property. Capitalism is harmful to both the
individual and society.
- Breeds Inequality:
Private property is not available to each and every individual because of
scarcity. It breeds inequality. Since property begets property and so the rich
produce goods and services not for use, but to acquire property from their
production. Private property creates wide gap between the haves and have-not's.
The ownership of private property gives power to direct the lives of those who
have no property.
The rich get control over the political machinery and use it for their
advantage. They also corrupt legislatures. They artificially combine to increase
the cost of their commodities to the public. Private property breeds social
exploitation, inequality and subjugation.
- Breeds Corruption:
Private property breeds corruption that poisons the whole social life. Rich
advance their interest at the cost of poor. They satisfy their lust for wealth
by exploiting the needs of others. It corrupts the social values like love and
generosity, benevolence and charity.
Private property divides the society. It generates disharmony and antagonism. It
generates unemployment. In the capitalist economy, as far as the masses of
workers are concerned, property cannot be said to have fulfilled its primary
social functions of providing security and permanence as basis of freedom and
initiative.
It follows that the existing system of property is psychologically inadequate
because, says Laski, for most individuals, it inhibits the exercise of the
qualities which would enable them to live full life. It is morally inadequate
because it has created a leisure, parasitic class who live simply by owning and
consequently their rights to property have no appropriate relevance to social
values. It is socially and economically inadequate because it fails to
distribute the wealth it creates as to offer the necessary conditions of a free,
secure and purposeful life to those who live by its process.
Hypothesis
The property rights can facilitate attainment of other development goals.
Research Questions:
- Why are women property rights important?
- What are the property rights?
- To what other issues have women property rights linked to?
- What are the regulations of property rights?
- What leads to the violation of women's property rights?
- What are the consequences of property right abuses?
- What are the benefits of women property rights?
- What is ownership of land, house, and company?
Tentative Chapterization
Following is a detailed chapterization of research topic to give answers to the
research questions that arose from the hypothesis:
Why are women property rights important?
Unless women are granted property rights, a country can't develop. Women
property rights promote gender equality, which eventually leads to development.
Lack of these rights causes underemployment of women and keeps them
impoverished. According to UN Habitat, every 1 in 4 developing countries have
laws that impede women from owing property. As argued by World Bank, countries
with the unequal inheritance laws have also unequal property rights regimes.
Hence, women's property rights are important, as these are fundamental to
women's economic security, social and legal status, and sometimes their
survival. Land and property ownership empowers women and provides income and
security. Without property rights, women have limited say in household
decision-making, and no recourse to the assets during crises (be it divorce or
death of a husband or any other difficult situation). The lack of property
rights also results in domestic violence.
What are the women property rights?
Women, under the international law, have equal property rights. It applies for
both movable and immovable (or tangible and intangible) properties. However, in
many countries of the world, women property rights are limited by norms,
religious traditions, social customs and legislation.
To what other issues have women property rights linked to?
Like other human rights issues, women property rights are linked to
discriminatory inheritance practices, agriculture, gendered control over
economic resources, right to work and domestic violence or violence against
women.
Granting women equal property rights means decreased threat of discrimination,
domestic violence and other human rights violations. It also has positive impact
on political participation and women empowerment.
What leads to the violation of women's property rights?
The fundamental factors for violations include "discriminatory laws and
traditional customs, prejudiced attitude towards women property rights,
indifferent authorities and inefficient court system. Those women who assert for
their rights are termed as "greedy".
What are the consequences of women property right abuses?
These violations make women dependent on men. They remain poor and are not
treated equal to men. They have to live in abject living conditions and are
always at the risk of violence both in their parent's home and in-laws. The main
consequence of these abuses is that the country remains underdeveloped.
Property rights confer many benefits on women and their families including
increased bargaining power, (Social Protection and Economic Autonomy. Women
property rights increase the bargaining power of women both in and outside the
household and views are heard.
While in the developing countries, parents are usually dependent on their
children. Children take care of the parents if parents retain control over their
productive assets and are enjoying property rights. Strong property rights give
women the much-needed economy whether they are living with their parents or
husband. If they lack access to property rights, they remain dependent and their
household work and other activities remain invisible and unaccounted for.
What is ownership of land, house, and company?
Ownership of any of the movable and immovable property comes under the property
rights. Property rights are the rights to own, acquire (through purchase, gift,
or inheritance), manage, enjoy, and dispose of tangible and intangible property,
including land, house, money, bank accounts and other assets, livestock, and
crops.
Why are women property rights important?
Unless women are granted property rights, a country can't develop. Women
property rights promote gender equality, which eventually leads to development.
Lack of these rights causes underemployment of women and keeps them
impoverished. According to UN Habitat, every 1 in 4 developing countries have
laws that impede women from owing property. As argued by World Bank, countries
with the unequal inheritance laws have also unequal property rights regimes.
Hence, women's property rights are important, as these are fundamental to
women's economic security, social and legal status, and sometimes their
survival. Land and property ownership empowers women and provides income and
security. Without property rights, women have limited say in household
decision-making, and no recourse to the assets during crises (be it divorce or
death of a husband or any other difficult situation). The lack of property
rights also results in domestic violence.
Is right to property a legal right?
Owning a property is no longer a fundamental right because of an amendment to
the Constitution Act 1978. However, it is very much a legal, human and
constitutional right.
Can daughter claim father's property after marriage?
Yes, as per law, a married daughter has every right to claim a share in her
father's property. She has as much right as her brother or unmarried sister.
What does the right to property include?
All Indians have the right to own property. They also have rights to acquire,
manage, administrate, enjoy and dispose of their property. Unless any of this is
in conflict with the law of the land, the person cannot be held guilty.
Does son have right on father's property?
Yes, a son is a Class I heir and has right on the father's property.
Women's Property Rights in India
A Historical Overview Women's Property Rights & Vedic Period : During Vedic
period woman was considered as a goddess and was adored. The only Disability
from which she suffered is that she didn't have the right of inheritance. Vedic
literature prescribed inheritance to the unmarried daughter and to a
brother-less married daughter. The widow was not given any right of inheritance
in her husband's property but childless widow was entitled to succeed to her
husband estate. Women's Property Rights & Mediaval Period : The Indian woman's
position in the society deteriorated during the medieval period when Sati ,
child marriages and a ban on widow remarriages became part of social life .The
Muslim invaders brought the purdah practice in the Indian society. Among the
Rajputs of Rajasthan, the Jauhar was practiced. Polygamy was widely practised
especially among Hindu Kshatriya rulers.Women had no property rights during this
period.
Women's Property Rights & Smriti Period: In the smriti period, the widow, the daughter, and the mother were expressly named as heirs. But they could succeed to the property of a man only in the absence of male heirs.
- Property of women under Hindu Law:
- Under Hindu, there were two schools of thought/laws:
- Mitakshara
- Dayabhaga
Mitakshara Law:
Under this law, on birth, the son acquires a right and interest in the family
property. According to this school, a son, grandson and a great grandson
constitute a class of coparcenars, based on birth in the family.
No female is a member of the coparcenary in Mitakshara law. Under the Mitakshara
system, joint family property devolves by survivorship within the coparcenary.
This means that with every birth or death of a male in the family, the share of
every other surviving male either gets diminished or enlarged. If a coparcenary
consists of a father and his two sons, each would own one third of the property.
If another son is born in the family, automatically the share of each male is
reduced to one fourth.
Before the Hindu Law of Inheritance (Amendment) Act 1929, the Bengal, Benares
and Mithila sub schools of Mitakshara recognized only five female relations as
being entitled to inherit namely - widow, daughter, mother,paternal grandmother,
and 5.paternal great-grand mother
- Dayabhaga Law:
Neither sons nor daughters become coparceners at birth nor do
they have rights in the family property during their father's life time.
However, on his death, they inherit as tenants-in-common. It is a notable
feature of the Dayabhaga School that the daughters also get equal shares along
with their brothers and they can't compel the father to partition the property
in his lifetime and the latter is free to give or sell the property without
their consent. If one of the male heirs dies, his heirs, including females such
as his wife and daughter would become members of the joint property, not in
their own right, but representing him.
Women's Rights to property : In theory, in the ancient times, the woman could
hold property but in practice, in comparison to men's holding, her right to
dispose of the property was qualified, the latter considered by the patriarchal
set up as necessary, lest she became too-independent and neglect her marital
duties and the management of household affairs. This was the situation prior to
1937 when there was no codified law.
- The Hindu Women's Right to Property Act, 1937 was the outcome of
discontent expressed by a sizeable section of society against the
unsatisfactory affairs of the women's rights to property. Under the said Act
a widow was entitled to a limited interest over the property of her husband
- what was to be termed as Hindu widow's estate.
- The Act was amended in 1938 to exclude the widow from any interest in
agricultural land.
Hindu Succession Act , 1956
The Hindu Succession Act, 1956, was the first
law to provide a comprehensive system of inheritance among Hindus-and Jains,
Sikhs and Buddhists-and address gender inequalities in the area of inheritance.
It applies only in the case of intestate succession and to anyone who converts
to Hinduism and their children. The intestate's children (married or unmarried
daughter or son), mother and widow get equal share. It has no application in
case of testamentary succession (where there is a will).
The Act confers
absolute rights, including unfettered rights of disposal of property, on the
female in any property-movable and immovable-acquired by inheritance, demise,
partition, in lieu of maintenance, arrears of maintenance, gift, property
acquired by her own skill, purchase, prescription or in any other manner, and
also stridhana, which includes ornaments, apparel, gift received at the time of
wedding, property acquired out of her savings.
- After the Hindu Succession (Amendment) Act,2005 Section In September
2005, the Supreme Court (SC) in a landmark judgment declared that Indian
women would have an equal right to a share in property as men, granting
daughters the right to inherit ancestral property along with male relatives.
So under this Act ,the difference between the female and male inheritor has
been abolished. Now even female inheritor [daughter] can claim partition of
the ancestral property.
Section 6 of this Amendment Act ( 2005 ):
It provides for parity of rights in
the coparcenary property among male and female members of a joint Hindu family.
The daughter is entitled to a share in the ancestral property and is a
coparcener as if she had been a son. The excepted categories to which new
Section-6 is not applicable are two, namely:
- where the disposition or alienation including any partition which took
place before 20- 12-2004
- where testamentary disposition of the property was made before
20-12-2004. 4. Property Rights of Women under Muslim Law : A strict reading
of the Quran provides far more liberal rights for women in terms of property than
is normally believed. Quran emphasizes four core values i.e Insaaf, ehsaan,
rehem and Ilma. Many Islamic states, such as Tunisia, have legislated against
this liberalism, since they hold that it places too high of a burden on men.
The rules relating to intestate succession among Christians would come into
operation only if the deceased had not executed a will or any document of gift
or a settlement deed. In the absence of the aforesaid documents the rules
regulating succession enumerated under sections 29 to 49 in Part V of the Indian
Succession Act, 1925 would come into play. But, if there is a Will executed by
the deceased, the general law as contained in sections 57 to 391 would apply.
T
he Importance of Intellectual Property Rights in 2021
The origins of intellectual property rights can be traced back to two British
statues established during the 17th and 18th centuries. The Statute of
Monopolies, enacted in 1624, prohibited the majority of royal monopolies, but
preserved the right to grant a letters patent for new inventions for up to 14
years.1 The Statute of Anne, also known as the Copyright Act of 1709, gave book
publishers legal protection for 14 years, and granted 21 years of protection for
books already in print.2 In the nearly 400 years since the Statute of Monopolies
was made law, we have seen intellectual property rights continue to change and
evolve around the world.
Why are intellectual property rights important in the modern era? Let's explore.
A Brief Review of Intellectual Property Rights
The various types of intellectual property protections have been covered in
depth here on the Cardozo Online Blog, along with IP law for beginners and
landmark cases that continue to shape business, entertainment, art, and more.
Let's review the various types of protections to further our understanding of
how IP law is essential in today's world.
Why Intellectual Property Rights are Important Today
In 2021, intellectual property rights are more important than ever in this
global, highly-connected digital landscape. With all of the good the rise of the
internet has done for the sharing of information and ideas, it has unfortunately
become easier for ideas and works to be stolen, which can be damaging to both
national economies and innovation.
Intellectual property protection varies from country to country, but countries
that have strong IP laws recognize the important impact original works, designs,
inventions, etc. have on the overall economy. Almost every country that has a
dependence on international trade takes strong measures to protect their
intellectual property rights.3
With the rise of intangible assets that are shared across the internet, it is
easy for people to unlawfully copy and share books, music, movies, and more.
Copyrights, patents, trademarks, and trade secrets and the laws around these
protections are all intended to encourage innovation and creativity and are
essential to the practice of IP law to help curb illegal activities.
Organizations like the World Intellectual Property Organization (WIPO)
underscore the importance of fostering IP-driven innovation to incentivize and
protect creativity. WIPO is a global forum for intellectual property services
and is a self-funding agency of the United Nations, with 193 member states.4 In
2020, World IP Day, which is celebrated annually on April 26, focused on the
race to find a cure or vaccine for COVID-19.5 Without the proper enforcement of
intellectual property rights, vaccine rollouts in 2021 may not have been
possible.
Supreme Court's View
Defining the property as a legal concept, the Supreme Court in:
- Guru Dutt Sharma V. State of Bihar, observed that it is a bundle of rights,
and in the case of tangible property, it would include the right of possession,
the right to enjoy, the right to retain, the right to alienate and the right to
destroy.
The Supreme Court has said in;
- Commissioner, Hindu Religious Endowment V. K. Lakshmindra, that there is no
reason why the word 'property' as used in Article 19(1) (f) of the constitution
should not be given a liberal and wide connotation and should not be extended to
those well recognised.
- Dowry: The Muslim woman has all rights to the dowry, including any interest it might earn if in cash. If this dowry money is invested, all profits are the woman's, and there is no legal obligation to share with the man. The dowry, in other words, creates the basis of all female property rights.
-
Muslim Women's Property Rights: Division among the sexes in Islam, if anything, is biased against the male. The husband has all the obligations. Legally, the husband must care for the home and children, and any aged parents if applicable. The woman, the wife, need not do any of these things. Her money is hers and hers alone. The man's money is never really his, but belongs to the extended family. These rights serve to liberate women under Islamic law, but bind the man to family support. According to Dr. Nahid Angha, a woman can buy and sell in the marketplace, own her own business and, in the case of divorce, receive all her contributed property, including the dowry. Since the woman has full control over her dowry money and wealth, it follows that Islam cannot legislate negatively against her in any other property matter without falling into contradiction.
-
Shares of Property Under Muslim Law: "Allah commands you regarding your children. For the male a share equivalent to that of two females." *A son inherits a share equivalent to that of two daughters, a full (germane) brother inherits twice as much as a full sister, a son's son inherits twice as much as a son's daughter and so on. *"If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and if there is only one then it is half." *The share of the daughter under Muslim law is determined by the principle that a son inherits twice as much as a daughter.
-
Property Rights for Christian Women in India:
-
According to the Indian Succession Act, 1925, a Christian widow is entitled to one-third of her husband's property.
-
All children get an equal share in the remaining property.
-
Children of pre-deceased sons and daughters get their parents share of the property. In case there are no children, the widow gets Rs.5,000 along with half the share of the property left after deducting that amount.
-
A child in the womb is also entitled to a share of the property.
-
Any money earned by a Christian woman is her own property. Nobody can take it away from her.
-
She has the right to will away or gift away her own money, jewelry and other property to anybody she wants.
-
Even if a Christian women's father spends money on gifts at her marriage, she is still entitled to a share in her father's property Laws Governing Christian Women's Property Rights in India.
-
Christians from Goa are governed by the Portuguese's civil code.
-
Cochin and Travancore by Christian Succession Act 1921 and Travancore Christian Act 1916.
-
Those in Punjab, Haryana, and Himachal Pradesh by Customary laws.
-
Rest by Indian Succession Act Intestate succession among Christians.
f interests which have the insignia or
characteristic of proprietary rights.
It was due to the reason of giving such a wide meaning to 'property' that in one
case (Shantabai V. State of Bombay) it was held that a bare contractual right
unattended with any interest in property is property.
The modern judicial trend to interpret right to property in the light of Article
21 of the Constitution dealing with personal liberty also deserves mention at
this place. The Apex Court in a number of cases has expressed the view that
Article 21 in its widest magnitude covers a variety of rights which constitute
the personal liberty of a man.
Therefore, despite the fact that the right to property as a fundamental right
has been abrogated and repealed, this right may still be interpreted by the
Court as an aspect of personal liberty under Article 21.
Right to Property in India
After the Indian Independence, when the Constitution of India came into force on
26th January, 1950, the right to property was included as a 'fundamental right'
under Article 19(1)(f) and Article 31 in Part III, making it an enforceable
right.
However, during the first decade of independence era, it was felt that the right
to property as a fundamental right was a great impediment in ushering a just
socio-economic order and a source of conflict when the State was to acquire
private property for public purposes, particularly, expansion of rail, road and
industries etc.
In order to get rid of this hurdle, the Supreme Court in the historic case known
Fundamental Rights Case held that the right to property is no part of the basic
structure of the constitution and therefore, Parliament can acquire or take away
private property of persons for concerned good and in the public interest.
Thereafter, Parliament passed the Constitution 44th Amendment which made right
to property an ordinary legal right under Article 300-A.
However, the Supreme Court in one of the cases has made it clear that the
executive cannot deprive a person of his right to property without the authority
of law. The State can acquire a person's property for public purpose on payment
of compensation, which need not be necessarily just equivalent of the value of
the property so acquired, but such compensation must not be illusory and
irrationally disproportionate.
The latest position with regard to property in India is well expressed by the
Supreme Court of India in Indian Handicraft Emporium v. Union Of India, wherein
the Court observed that right to property is a human right as a constitutional
right under Article 300-A, but it is not a fundamental right. It is indeed a
Statutory right but each and every claim to property would not be property
rights.
Modes of Acquisition of Property/ when possession ripens into ownership
There are four important modes of the acquisition of property. They are:
Possession, Prescription, Agreement, and Inheritance. These four modes may be
put in two classes:
1. Acquisition inter Vivos- it includes possession, prescription and agreement.
2. Succession on death i.e. Inheritance.
Acquisition inter Vivos- As mentioned earlier it includes the possession,
prescription, agreement which are discussed as follows:
Possession
Possession is the objective realization of ownership. It is prima-facie evidence
of ownership.
The property which belongs to no one i.e. res nullius, belongs to the first
possessor of it and he acquires a valid title to it as against the world. Thus
the fish of the sea and the bird flying in open sky belong to one who first
succeeds in obtaining possession of them and acquire an absolute title over
them. This mode of acquisition has been called as occupatio in Roman law.
A property which is already in possession of someone else, when acquired by
possession, gives a good title to the possessor against all third persons except
the true owner. In such a case of adverse possession there are in fact two
owners, the ownership of one is absolute and perfect, while that of the other is
relative and imperfect and often called as possessory ownership by reason of its
origin in possession.
If the person in adverse possession i.e. possessory owner is wrongfully deprived
of the thing by a person other than the true owner, that person cannot set up
the defence of jus tertii, that is, he cannot plead that the thing does not
belong to the possessory owner either.
In other words, a possessory owner's possession shall be protected against all
except the true owner. This rule is justified on the ground of maintenance of
peace and order and to prevent misuse of force.
Prescription
Prescription may be defined as the effect of lapse of time in the creation and
extinction of legal rights. It is operation of time as a vestitive fact.
It has two aspects, namely, positive or acquisitive and negative or extinctive.
The creation of a right by the lapse of time is called the positive or
acquisitive prescription whereas the extinction of a right by the lapse of time
is called extinctive or negative prescription.
For example, the acquisition of right of way by use of it for a prescribed
period (in India according to the easement act this period is 20 years) is a
positive prescription.
For example, the right to sue for debt is destroyed after a prescribed period
(in India it is 3 years). Thus, it is a case of negative prescription. The
prescription is based on a conclusive prescription of rightfulness of a long
possession, and it is against the person who is not in possession or is not
exercising his rights.
The positive prescription is generally based on the ground of possession.
Therefore, it would apply on those objects only which admit of possession.
Negative prescription is common to law of property and obligations. According to
Salmond, negative or extinctive prescription is of two kinds, namely: Perfect
and Imperfect.
Perfect negative prescription results in the destruction of principal right
itself whereas imperfect prescription destroys only the right of action not the
principal right.
Law of prescription is based on the general principle that law helps the
vigilant and not the dormant.
Agreement
Property may also be acquired by agreement which is enforceable by law.
Paton defines agreement as an expression by two or more persons communicated to
each other, of a common intention to affect the legal relations between them. It
therefore follows that an agreement has four essential elements, namely:
1. It being a bilateral act, there should be two or more parties to an
agreement;
2. Mutual consent of the parties;
3. It should be communicated;
4. There should be common intention to affect the legal relationship.
As a proprietary right in rem, agreement is of two kinds, namely:
1. Assignment;
2. Grant.
An assignment transfers the existing right from one owner to another, e.g.,
assignment of a subsisting lease-hold from assignor to assignee.
Under a grant, new rights are created by way of encumbrance upon the existing
rights of the grantor, e.g., grant of a lease of land is the creation of
agreement between grantor and grantee.
Agreements may either be formal or informal. Formal agreements are written and
require the formality of registration and attestation of the deed to be
completed before they are effective. Informal agreements are verbal and do not
require any formality.
Inheritance
The right of inheritance is found on the assumption that property serve as a
best means of social security. Security of food, dwelling house and means of
living to the members in a joint family was the foremost obligation of the Karta
which barred from him alienating the family property except for legal necessity
and family benefit or seeking relief from distress.
This in turn conferred right of inheritance to the coparceners which included
right to be maintained out of family property and to claim partition as
co-owners. Even the illegitimate sons, who were not entitled to inherit property
as heirs, were required to be maintained by their father.
Mitakshara rules of succession regulated the law relating to inheritance
applying the principle of survivorship. The wife, widowed mother, minor sons and
daughters as a child in the mother's womb (unborn) were entitled to inherit
property as successors of the deceased and they could not be deprived of this
right by alienation or otherwise.
The death of the owner of property could result in two kinds of rights, namely:
- Inheritable; and
- Un-inheritable rights.
A right is inheritable if it survives its owner and it is un-inheritable if it
dies with him.
Proprietary rights are inheritable and most personal rights are un-inheritable.
But there are certain exceptions to this general rule. For example, the right of
action survives the death of both parties as a general rule. Proprietary rights
may be un-inheritable in case of a lease for the life of the lessee only or in
case of joint- ownership.
The rights which a dead man behind him vest in his representatives or
successors. But he has also to bear the liability of the deceased. This
liability is, however, limited to the amount of property which he has acquired
from the deceased. Thus, inheritance is some sort of legal and fictitious
continuation of the personality of the dead man.
Succession to the property of a person may be either testate or it may be
intestate i.e. by means of will or without a will.
If the deceased had made a will, succession would take place according to the
terms of the will.
But if there is no will, then succession would take place by the operation of
law which is known as non-testamentary succession. In case there are no heirs of
the deceased, his property shall vest in the state.
The power of a person to dispose of his property by testament (will) is subject
to the following limitations:
- Limitations of time;
- Limitation of amount; and
- Limitation of purpose.
Limitation of time
A person cannot dispose of his property by will in such a way as not to vest in
any person for a very long time. The property vests in some person within a
prescribed time.
Limitation of Quantum Amount
In most legal systems, a testator cannot dispose of his entire estate but
instead he has to leave a certain portion of it for those to whom he owes a
legal duty to support such as wife, children, etc.
In Mohammedan law, a person cannot dispose of more than one-third of his
property by will without consent of his heirs. This provision is made so that
the dependants and legal heirs of the deceased may not be disappointed. However,
this limitation does not exist in all the legal systems, and in some systems the
whole property may be willed away.
Limitation of Purpose
A person while exercising power of testamentary disposition may provide that his
estate may be used by his heirs and successors for the benefit of other persons
who survive him.
However, he cannot validly leave any direction in the will which is against
public interest, nor can he withdraw the property from the use of the living
persons.
For example, he cannot leave a direction in his will that his money be buried in
the grave along with his dead-body or thrown into the sea, that his estate or
land shall lie waste after his death. Such a testamentary disposition shall be
wholly void.
In conclusion It may be stated that the concept of property has a special
significance in jurisprudence because the determination of proprietary rights
such as ownership, title, etc. is solely based on property.
The concepts of ownership and possession have also originated from the
conception of property. Again, rights and duties are also closely related to
property. It is for this reason that the law relating to property has been
developed as an independent branch of law in jurisprudence. The estate or
property for which there is no heir or successor, shall vest in the State.
Recent judicial developments in India are promoting gender equality by
recognizing property rights for Indian women. The 2005 Hindu Succession
Amendment encourages Hindu females' ownership. The role of courts is crucial, as
they interpret laws granting property rights to women in society's interest.
References:
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