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 the law, be treated in accordance with the law and only in accordance with the 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.
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.
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).
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 the Indian Constitution) and no one’s property can be taken away from him unless the Government machinery has the legal authority to do so.
Article 42(1) of our Constitution states subject to any restriction imposed by law, every citizen shall have the 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 the 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 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 People’s Republic of Bangladesh does guarantee property right as a fundamental right whereas our neighbour, India does not do so.
K Shamsuddin Mahmood is a Professor and Dean of the School of Law at Brac University.