Property rights and their legal protection: The constitutional perspective

What we are is our "culture" and we expect to protect our rights through law. In other words, we expect to enjoy the protection of law, be treated in accordance with law and only in accordance with law, which is an inalienable right of every citizen (wherever he or she may be) and of every other person for the time being in Bangladesh, and no action detrimental to the life, liberty and property of any person can be taken, except in accordance with the law. It is customary in modern states to have a written constitution, to enshrine the "fundamental rights" of the people in their constitution that it guarantees, and Bangladesh along with other countries of the sub-continent are no exception.

In Bangladesh, the constitution is the supreme law of the land that sets limits on the powers of the government and ensures a democratic system in which people enjoy certain rights (as embodied in Part III of the Constitution). The citizens of Bangladesh are endowed with certain fundamental rights, which are considered to be sacrosanct and transcendental in nature. Thus, as the name suggests, fundamental rights are not only one of the most important sources for the protection and maintenance of human dignity and integrity, but they also enormously contribute towards the development of society as a whole.

Fundamental rights are incorporation of the basic human rights, but are regulated by our Constitution and identified as special rights for the people. With these rights being cohesive in a society, citizens are able to comprehend the importance of all members of society, and collaborate, concert and adjust themselves accordingly in maintaining cordial relationships with one another. The constitution also provides for enforcement of these rights; therefore, they not only have a legal value but also an educational value, assisted by the citizens to protect, respect, accept and fulfil the rule of law. Thus, they not only ensure and guarantee the basic civil and political rights and freedoms, but they also serve the important functions of safeguarding the community by removing the notion of discrimination of all kinds to ensure equality among all. Moreover, these rights are part of the basic structure of the Constitution they cannot be contravened, reduced or infringed by any constitutional law or its provisions or amendments. If and when this appears, that particular law will be declared as unconstitutional and void for being against the norms of the Constitution (Article 26 of the Constitution of Peoples' Republic of Bangladesh/Anwar Hossain Chowdhury vs Bangladesh, 41 DLR (AD) 165 [1989]).

Fundamental rights are such rights that are basic in nature for any individual, without which the modern constitutional democracy would be meaningless as they are ingrained with an understanding that these rights cannot be infringed/taken away by any ordinary provisions of law.

It also protects citizens (as provided in Article 44; read along with Article 102 of the Constitution) from/against violations or any arbitrariness/excess of the state machinery, as facts suggest that the state is often considered to be the biggest violator of human rights! Inclusion of the fundamental rights in Part III of our Constitution aims to establish a government of laws and not of men – where peace, tranquillity and harmony will be maintained in society, ensuring justice and equality. It not only safeguards freedom, but also guarantees the right to live a "dignified life with personal liberty." In short, it can be said that these are basic human rights that are crucial for the existence of people and their development in society.

The right to property, being a natural human right, is considered as a fundamental right within the ambit of our Constitution. It was so in India originally, too, but through the 44th Amendment of the Indian Constitution by the provision of Article 300(A), it was reduced to or relegated as merely a constitutional right, which appears to be straightforward, but has a unique history that may be described as a long conflict of provision between the Indian legislature and judiciary. History reveals that the inception of the right to property (as a fundamental right in 1950) till its elimination as a basic right and its reinstatement subsequently as a constitutional right only in 1978 were quite thunderous events, making an uproar of loud and confused noise.

In the case of Commissioner, Hindu Religious Endowment v. Swamiyar (1954), the Indian Supreme Court opined that the term "property" as employed in Article 31 of the Indian Constitution should be given a broad interpretation and should include all well-known categories of interest that bear the insignia/characteristics of a property right. It also comprises money, contracts, and property interests such as an allottee's interest, licensees, mortgagees, and property lessees. An identifiable interest in the property is the Mahantship of a Hindu temple as identified in the commissioner of Hindu case and stockholders with interests in the company, as stated in the State of Bihar v. Kameshwar Singh (1952). The right to a pension is a form of property as noted in the State of Kerala v. Padmanabhan Nair (1985).

It is interesting to note that, soon after the evolution of property rights as a fundamental right, the Indian Supreme Court recognised the value of "right to property" as a fundamental right in Bhim Singh v. Union of India in 1981, and in doing so, it relied on the second fundamental right of equality by naming the idea of reasonableness under Article 14 of the Indian Constitution to invalidate the certain provisions of the urban land ceiling legislation. Anyway, though the right to property is not a fundamental right in India anymore, it is still considered a valuable right, as established in BK Ravichandra v. Union of India (2020) where the court, in fact, ordered the central government to return land to its owners. Thus, while primacy of property rights as a fundamental right has been questioned, the same is being protected by the rule of law. Therefore, the expanding jurisprudence on the issue demonstrates that it is a valuable right which guarantees basic liberty as well as economic liberty.

Be that as it may, although the right to property is no longer a fundamental right in our neighbouring country, it remains a constitutional right and a human right – Article 300(A) of Indian Constitution) and no one's property can be taken away from him unless the Government machinery have legal authority to do so.

Article 42(1) of our Constitution states subject to any restriction imposed by law, every citizen shall have right to acquire, hold, transfer or otherwise dispose of property and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law with the idea that a citizen shall not be deprived of his landed property otherwise than in accordance with law and when deprived for public purposes, compensation at the market rate has to be given to him. Moreover, the new law Acquisition and Requisition of Immoveable Property Act, 2017 provides that in case of acquisition of land for any government purpose, the interested person shall be paid an additional compensation of 200 (two hundred) percent over the market price and in the case of acquisition of land for a private institution, the amount of the said compensation shall be an additional 300 (three hundred) percent on the market price thereby protects interest of the people in property rights which is a well-known practice all over the land.

In the premises mentioned above, the earlier discussion on the intrinsic value of fundamental rights and their importance in the society and some of the developments that took place in neighbouring countries as discussed and relegating the property rights of the people from a fundamental right to constitutional right only seems not to hinder the citizens' rights of having adequate compensation, especially when such acquisition and requisition law exists in a polity, as in Bangladesh. Moreover, it is noteworthy to mention that the Constitution of the Peoples' Republic of Bangladesh does guarantee property right as a fundamental right whereas our neighbour, India does not do so.

K Shamsuddin Mahmood is Professor and Dean of the School of Law at Brac University.