A citizen's right to own private property is a fundamental human right. The
state cannot take possession of it without following due procedure and authority
of law, the Supreme Court has held in a judgment. The state cannot trespass into
the private property of a citizen and then claim ownership of the land in the
name of ‘adverse possession', the court said.
Adverse possessionA welfare state cannot be permitted to take the plea of adverse possession,
which allows a trespasser i.e. a person guilty of a tort, or even a crime, to
gain legal title over such property for over 12 years. The State cannot be
permitted to perfect its title over the land by invoking the doctrine of adverse
possession to grab the property of its own citizens
, Justice Malhotra, who
authored the judgment, laid down the law.
Yet, this is exactly what happened 52 years ago with Vidya Devi, a widow. The
Himachal Pradesh government forcibly took over her four acres at Hamipur
district to build a road in 1967. Justice Malhotra highlights how the state took
advantage of Ms. Devi's illiteracy and failed to pay her a compensation for 52
“The appellant [Ms. Devi] being an illiterate widow, coming from a rural
background, was wholly unaware of her rights and entitlement in law, and did not
file any proceedings for compensation of the land compulsorily taken over by the
state,” Justice Malhotra empathised with Ms. Devi, who is 80 years old now.
Ms. Devi first learnt about her right for compensation in 2010 from her
neighbours who had also lost their property to the road. Then, in her 70s, she
did not lose time to march straight to the Himachal Pradesh High Court,
accompanied by her daughter, to join her neighbours in their fight against the
But the High Court asked her to file a civil suit in the lower court.
Disappointed, Ms. Devi moved the Supreme Court.
Ordering the state to pay her Rs1 crore in compensation, the Supreme Court noted
that in 1967, when the government forcibly took over Ms. Devi's land, ‘right to
private property was still a fundamental right' under Article 31 of the
Property ceased to be a fundamental right with the 44th Constitution Amendment
in 1978. Nevertheless, Article 300A required the state to follow due procedure
and authority of law to deprive a person of his or her private property, the
Supreme Court reminded the government.
Right to Property and the 44th Amendment Act:
The Indian Constitution does not recognize property right as a fundamental
right. In the year 1977, with the enactment of the 44th amendment the right to
acquire, hold, and dispose of property as a fundamental right. However, in
another part of constitution, Article 300(A) was inserted to affirm that no
person shall be deprived of his property save by authority of law. The result is
that the right to property as a fundamental right is now substituted as a
The amendment expanded the power of the state to appropriate
property for social welfare purposes. In other words, the amendment bestowed
upon the India socialist state a license to indulge in what Fredric Bastiat
termed legal plunder. This is one of the classic examples when the law has been
perverted in order to make plunder look just and sacred to many consciences.
The right to property under the Indian constitution tried to approach the
question of how to handle property and pressure relating to it by trying to
balance the right to property with the right to compensation for its acquisition
through an absolute fundamental right to property and then balancing the same
with reasonable restrictions and adding a further fundamental right of
compensation in case the properties are acquired by the state. This is
exemplified by Article 19(1)(f) balanced by Article 19(5) and the compensation
article in Article 31.
This was an interesting development influenced by the
British of the idea eminent domain but overall it struck an interesting balance
whereby it recognized the power of the state to acquire property, but for the
first time in history of India for a thousand years or more, it recognized the
individuals right to property against the state.
Property as understood in article 300A:
The obvious first question is as to whether or not intellectual property
as clinical trial data
would fall within the definition of property
a understood in article 300A. there seems to be enough authority to support the
proposition that property
as understood in Article 300A is wider than
just immovable property
One such authority in the context of intellectual
is the judgment of Supreme Court in the case of Entertainment
Network India ltd. (ENIL) v. Super Cassette Industries ltd
In pertinent part the court said the following:
Authority by Law
- The ownership of any copyright like ownership of any other property must
be considered having regard to the principles contained in Article 19(1)(g)
read with Article 300A of the constitution, besides, the human rights on
- It also added that right of property is no longer a fundamental right.
It will be subject to the reasonable restrictions. That is in terms of 300A
of the constitution, it may be subject to the conditions laid down therein,
namely, it may be wholly or in part acquired in public interest and on
payment of reasonable compensation.
The fact that the supreme Court recognizes copyright
to fall within Article 300A is indicative that even ‘clinical trial data',
collected after extensive experimenting, should in all likelihood fall within
the definition of ‘property' as understood in Article 300A.
as understood in Article 300A: The term law
as defined in
Article 300A is understood to mean only legislation or a statutory rule or
order. The term law
as understood by Article 300A will not include executive
fiats. The source of the law
depriving a person of his property has to be
necessarily traced, through a statute, to the legislature.
As opposed by some of early thoughts that right to property is beneath the right
to vote, freedom of speech or personal liberty, the difference between them is
unreal and the dichotomy between personal and property rights is a false one.
Property does not have rights. People have rights. The right to enjoy property
without unlawful deprivation is not less than the right to speak. In fact, there
is a fundamental interdependence between the personal right to liberty and the
personal right in property. Property is although the most ambiguous of all the
It covers multitude of rights, which have nothing in common, except
that they are exercised by persons and enforced by the state. It is therefore
idle to present a case for or against private property without specifying the
extent or value thereof.