It is time that someone wrote on the Dharmic ideas of the Right to Property and try to match and see whether the Right to Property as we know it has anything in common with the conception of Svatva , which is the Dharmic equivalent . This study has not been done yet . The study on the ideas of Indic / Bharatiya / Dharmic conceptions of property have been very sketchy . Surprisingly the only scholar to have done some work is the very famous legal Indologist Duncan Derett . I have just finished writing on the same and have sent the same for publication to an Indian Law Journal . I would be waiting for their reply . Till we all wait for the reply of the law journal I am enclosing excerpts of the article in random order . Hope I can entice you to read the entire article when it is published ....if it is published that is ...
Bharatiya Conception of Property and Accumulation and distribution of wealth.
The Bharatiya conception of property and the accumulation and distribution of wealth is by conception and therefore by definition not based on the idea of rights but on the conception of dharma[1] .The basis of the conception of property in Bharatiya society is therefore not a rigid and clear demarcation of claims belonging to an individual but is a sum total of societal and individual claims all of which need not be based on clear individual legal demarcation.[2]
The concept of “Svatva” which approximately translates as “Ownership”[3] is roughly equivalent to the Right to Property , the basis of which is traced back to the Vedas. There are broadly four methods of acquiring property , being (i) by purchase , (ii) by getting , (iii) by buying , and (iv) by exchange .[4] There also remains social norms and injunctions for the accumulation , use and disposition of wealth so gathered since the claim of svatva is not merely an individual claim but is dependent on social recognition , and subject to social control .
Interestingly , the state has very little to do in the area of recognising property . This is probably because the state does not enjoy the concept of being owner of all property in it’s lands or “eminent domain”, since Bharatiya jurisprudence specifically recognises that the king/state is only the owner of the lands which he/it owns privately or those lands which have not been granted to others , in other words , clearly showing that he/it has no claim on private lands. The king cannot even keep for himself what he has recovered from thieves and which does not belong to him [5].
In addition no claim on property is absolute and separate , equal and at times contradictory claims on the same piece of land / property are taken to be equally valid. All claims on property exist within a web of claims , each claim individually and independently valid and transactions can be done on the claims alone.[6]
Wealth is treated as a social and spiritual asset and though the individual can use various means of acquiring his wealth , but dharma puts in social guidelines so that the wealth is put to use both for social and spiritual upliftment of the individual and therefore for the entire society [7] . The disposition of wealth or gifting of wealth is an integral part of the reason of acquiring wealth . Dharma however recognises that not only must a gift be made , it must be made to the deserving i.e. gifting of wealth should serve a definite social and spiritual purpose.[8]
The conception of property and wealth as we know it today has been evolved in western civilisation through a complex process of transforming claims into clear legal entitlements [9].
Needless to say that these entitlement claims of property arose out of the relationships and the complexities of the western civilisation and it’s evolution . In India however , there has been no such process , we have applied western conceptions of law and property on Bharatiya society and have therefore left untouched the greater amount of claims which could be the basis of a true , practicable , equitable and indigenous market system.
Directly as a result of such a lopsided conception of property and the legal recognition of only westernised property , the westernised market system in India has not been able to transform rapid western style growth into genuine development . The system today has therefore resulted in making wealthy those who have the benefit of a western education and therefore capable of understanding western conceptions of property and simultaneously at a single stroke impoverish those who are genuinely wealthy but whose wealth is not recognised by western conceptions of property[10] . The present conception of property does not recognise the vast amount Bharatiya claims which must be recognised if we are to evolve a genuinely Bharatiya market system[11] .
The attempt to recognise Bharatiya conceptions of property has only been tangential and half hearted . The three most important being the recognition of the Hindu Undivided Family as a property holding unit[12] , the conception of “devotturs” [13]and the recognition that the one who tills the land has a claim on the land [14] .
Sadly the present property regime in India still does not recognise other genuine claims like the multifarious claims of villagers on common land , the complex claims of vanavasis on the use of forests and lands held jointly , the claims of the entire village on all properties of every individual in the said village .
[1] This means that acquisition of property is not merely temporal but to be accepted as valid it must conform to spiritual guidelines as well . Bharatiya conceptions recognise quite clearly that though property can be enjoyed which has not been acquired strictly in terms of the law , it cannot be called real property of the person concerned .Property therefore is not merely an individual right but a construction and part of social and spiritual order. Jaimini therefore classifies property in two types , one in accordance (niyama) and one not in accordance . : See : ; Derett ,JMD; Religion Law and State in India ; Oxford University Press , New Delhi ;1999 ; pg 131-132 .
[2] Importantly the conception of property recognises , anadhikarika dhana / asvamika dhana , or which no one has a claim on , which is impossible in western jurisprudence . It also recognises sadharana dhana or public property . Interestingly because of successive imposition of ideas of law which were completely foreign to Bharat , the idea of wealth not individually or properly owned has disappeared from legal theory , though they exist in practise all over India . The only place which recognises this concept of Dharmic ownership if one can call it that , is in Indonesia , where the Shariah law and Dutch law has been made subject to existing Dharmic conceptions of land tenureship and ownership through the process of recognising practise or Adat as a valid source of law both to regulate social practise as well as to regulate land and property ownership . More importantly Svatva is always balanced by the fact of Svatantra ( approximately independence or self governed ) , that is whether the person is individually and absolutely capable of dealing with the property and wealth . Bharatiya jurisprudence recognises that though you may have Svatva over a property or wealth , you may be subject to Paratantra ( subject to others ) , that is may be the king or the spiritual preceptor ( Guru) , may be the jati , or may be the head of the household , who alone are Svatantra ( independent ) that is to say the use to which you put your property has to be subject to social controls .
[3] Needless to reiterate that Svatva is not the same thing as Ownership . Ownership in western jurisprudence is a right of an individual entity or entities ( it may be a group of persons , but the law treats the said group like an individual for the purpose of owning property ) , but in Bharatiya thought Svatva is social , spiritual and exists within a web of interlinked claims which are all uniquely valid and absolute in their specific claim , yet existing with other claims , which are equally valid and absolute , for example , the right of the title holder , the tenure holder and the person who has access through the land , are all equally valid and absolute but they are all separate without being hierarchical In other words the king ( though Bharatiya law says that the king is not the ultimate owner of the property , the mulasvami / bhaumika ( the landholder ) , the mortgagee , the submortgagee , and the cultivator to whom the land is leased to be tilled , all their claims are of the same character , though different , without being hierarchical .Infact in Bharatiya jurisprudence the King was not owner of all the lands in his kingdom , he is taken to be the owner of those lands which he owns privately or those lands which have not been granted to anyone , i.e. those lands which belong to specified owners do not belong to the king . As Duncan Derrett notes in his now seminal article on “ The Development of the Concept of Property in India c. AD 800 to 1800 ” : “ The distinctive feature of Indian concept of property , therefore , is the capacity of svatva to exist in favour of several persons , simultaneously , not only identical adhikaras being shared as in co-owners , but especially where adhikaras are inconsistent or mutually exclusive” ; Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 93 .
[4] This is a distinction drawn by Patanjali commenting on Panini : Derett, JMD ; Religion Law and State in India ; Oxford University Press ; New Delhi ; 1999 ; pg 130 : However , Jaimini defers from the same by holding that acquisition of property and wealth can be because of purusartha ( to subserve individual ) , kratvartha ( to subserve sacrifice ) , and lipsa ( want ) – ibid , page 131-132 . Manu has a slightly different approach to the same : Olivelle , P ; Manu’s Code of Law : A critical Edition and Translation of the Manava Dharmasastra ; Oxford University Press ; New Delhi ; 2005 ; pg. 214.
[5] Olivelle , P ; Manu’s Code of Law : A critical Edition and Translation of the Manava Dharmasastra ; Oxford University Press ; New Delhi ; 2005 ;pg.169.
[6] Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 95.
[7] Therefore the entire spectrum of property and dealing of wealth is governed by Dhanarjana Niyama ( rules of acquisition of wealth ) , Dhana Viniyoga Niyama ( rules of putting wealth to use ) and Dhana Tyaga Niyama ( rules of giving wealth up ) , which are in the nature of injunctions which would result in the benefit of Dharma but are strictly not implimentable by the state : See : ; Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 43-50 .
[8] For an interesting and indicative read as to how and to who are worthy of gifting wealth. See Olivelle , P ; Manu’s Code of Law : A critical Edition and Translation of the Manava Dharmasastra ; Oxford University Press ; New Delhi ; 2005 ; pg. 135.
[9] It will be apparent that the law as we have inherited it from the British does not recognise various types of wealth and property specially properties which are held in common and properties and claims which strictly does not confirm to western conceptions of property , like tribal rights on forests . It must be added also that the struggle to recognise private property against the concept of “eminent domain” does not exist in India , simply because the concept of “eminent domain” is alien to the conceptions of property in Bharatiya thought. This holds true even today inspite of the fact that Bharatiya conceptions of property have not been legally recognised by the state in large parts of India for more than a thousand years. This has led to great conflict during the tenure of the British when land was being acquired for large projects , as well as during the present time when large swathes of land are being acquired by the state . Notably those who entertain claim on the land are not opposed to parting with their claim but are clearly resentful of state interference in that right . There has been attempts however to read in eminent domain specially by British scholars , but they go again the very grain of the jurisprudence : See : Kangle , R.P. ; The Kautilya Arthashastra ; Part III ; Motilal Banarasidass Publishers Pvt. Ltd. ; New Delhi ; 1965 ; pages 169-171.
[10] This was because of largely two factors (i) since large portions of the population were not very close to the British legal system , they were not aware as to what constitutes “property” and “wealth” in law , and therefore were not able to get the same recognised in law , and (ii) the British law did not recognise certain forms of holding of property and wealth which went against the British conception of private property , specially in relation to publicly held lands and entertaining claims recognising the absoluteness of other forms of land tenure amongst others .
[11] The British used their ideas of property and law and grafted them on India disregarding the background of the then existing systems : See : Guha , Ranajit ; Rule of Property for Bengal : An essay on the idea of Permanent Settlement ; Duke University Press ; Durham , North Carolina , USA ; 1996
[12] Bharatiya jurisprudence recognises three entities who are sovereigns ( svatantra ) , (i) the king / spiritual preceptor , (ii) jati ( or what we call caste ) and (iii) householder . Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 96 .The householder is the person who heads the household and for all purposes was the basis of the entire economy . The Indian legal regime post the British regime in it’s rush to make India a developed economy in western terms , focussed on the individual right to property rather than on the older Indic / Bharatiya economy . However the household was such an important constituent that they could not do away with it completely and had to acknowledge it’s existence in the Tax regime of the state .
[13] Devotturs or the land and or property held by deities was always acknowledged as a method of land and property holding . See : Kangle , R.P. ; The Kautilya Arthashastra ; Part III ; Motilal Banarasidass Publishers Pvt. Ltd. ; New Delhi ; 1965 ; pg. 157.
[14] The success of Operation Barga and land reform initiated by the communists were infact a recognition of the old methods of land holding , whereby the claim of the tenure holder was given statutory recognition . This lead to spectacular success of the land reforms initiated by the Communists in West Bengal in the years between 1977 to 1980 . However the logic of the Communists was completely different . The Communists mistook the success of the land reform as success of the logic of land reform adopted by them . They surmised that it was because land should go to the tillers and the state should be the instrument for the same . They were on to a good thing without realising it . The recent problems of the same Communist Party in West Bengal in trying to acquire land from the title holders , without recognising the claims of the tenure holders , has fallen as spectacularly because of not recognising the other basic tenet of Indian land holding , that there is no “eminent domain” , and once the state gives up a certain claim it is not entitled to take it back , unless the land belongs to the state itself.
The Bharatiya conception of property and the accumulation and distribution of wealth is by conception and therefore by definition not based on the idea of rights but on the conception of dharma[1] .The basis of the conception of property in Bharatiya society is therefore not a rigid and clear demarcation of claims belonging to an individual but is a sum total of societal and individual claims all of which need not be based on clear individual legal demarcation.[2]
The concept of “Svatva” which approximately translates as “Ownership”[3] is roughly equivalent to the Right to Property , the basis of which is traced back to the Vedas. There are broadly four methods of acquiring property , being (i) by purchase , (ii) by getting , (iii) by buying , and (iv) by exchange .[4] There also remains social norms and injunctions for the accumulation , use and disposition of wealth so gathered since the claim of svatva is not merely an individual claim but is dependent on social recognition , and subject to social control .
Interestingly , the state has very little to do in the area of recognising property . This is probably because the state does not enjoy the concept of being owner of all property in it’s lands or “eminent domain”, since Bharatiya jurisprudence specifically recognises that the king/state is only the owner of the lands which he/it owns privately or those lands which have not been granted to others , in other words , clearly showing that he/it has no claim on private lands. The king cannot even keep for himself what he has recovered from thieves and which does not belong to him [5].
In addition no claim on property is absolute and separate , equal and at times contradictory claims on the same piece of land / property are taken to be equally valid. All claims on property exist within a web of claims , each claim individually and independently valid and transactions can be done on the claims alone.[6]
Wealth is treated as a social and spiritual asset and though the individual can use various means of acquiring his wealth , but dharma puts in social guidelines so that the wealth is put to use both for social and spiritual upliftment of the individual and therefore for the entire society [7] . The disposition of wealth or gifting of wealth is an integral part of the reason of acquiring wealth . Dharma however recognises that not only must a gift be made , it must be made to the deserving i.e. gifting of wealth should serve a definite social and spiritual purpose.[8]
The conception of property and wealth as we know it today has been evolved in western civilisation through a complex process of transforming claims into clear legal entitlements [9].
Needless to say that these entitlement claims of property arose out of the relationships and the complexities of the western civilisation and it’s evolution . In India however , there has been no such process , we have applied western conceptions of law and property on Bharatiya society and have therefore left untouched the greater amount of claims which could be the basis of a true , practicable , equitable and indigenous market system.
Directly as a result of such a lopsided conception of property and the legal recognition of only westernised property , the westernised market system in India has not been able to transform rapid western style growth into genuine development . The system today has therefore resulted in making wealthy those who have the benefit of a western education and therefore capable of understanding western conceptions of property and simultaneously at a single stroke impoverish those who are genuinely wealthy but whose wealth is not recognised by western conceptions of property[10] . The present conception of property does not recognise the vast amount Bharatiya claims which must be recognised if we are to evolve a genuinely Bharatiya market system[11] .
The attempt to recognise Bharatiya conceptions of property has only been tangential and half hearted . The three most important being the recognition of the Hindu Undivided Family as a property holding unit[12] , the conception of “devotturs” [13]and the recognition that the one who tills the land has a claim on the land [14] .
Sadly the present property regime in India still does not recognise other genuine claims like the multifarious claims of villagers on common land , the complex claims of vanavasis on the use of forests and lands held jointly , the claims of the entire village on all properties of every individual in the said village .
[1] This means that acquisition of property is not merely temporal but to be accepted as valid it must conform to spiritual guidelines as well . Bharatiya conceptions recognise quite clearly that though property can be enjoyed which has not been acquired strictly in terms of the law , it cannot be called real property of the person concerned .Property therefore is not merely an individual right but a construction and part of social and spiritual order. Jaimini therefore classifies property in two types , one in accordance (niyama) and one not in accordance . : See : ; Derett ,JMD; Religion Law and State in India ; Oxford University Press , New Delhi ;1999 ; pg 131-132 .
[2] Importantly the conception of property recognises , anadhikarika dhana / asvamika dhana , or which no one has a claim on , which is impossible in western jurisprudence . It also recognises sadharana dhana or public property . Interestingly because of successive imposition of ideas of law which were completely foreign to Bharat , the idea of wealth not individually or properly owned has disappeared from legal theory , though they exist in practise all over India . The only place which recognises this concept of Dharmic ownership if one can call it that , is in Indonesia , where the Shariah law and Dutch law has been made subject to existing Dharmic conceptions of land tenureship and ownership through the process of recognising practise or Adat as a valid source of law both to regulate social practise as well as to regulate land and property ownership . More importantly Svatva is always balanced by the fact of Svatantra ( approximately independence or self governed ) , that is whether the person is individually and absolutely capable of dealing with the property and wealth . Bharatiya jurisprudence recognises that though you may have Svatva over a property or wealth , you may be subject to Paratantra ( subject to others ) , that is may be the king or the spiritual preceptor ( Guru) , may be the jati , or may be the head of the household , who alone are Svatantra ( independent ) that is to say the use to which you put your property has to be subject to social controls .
[3] Needless to reiterate that Svatva is not the same thing as Ownership . Ownership in western jurisprudence is a right of an individual entity or entities ( it may be a group of persons , but the law treats the said group like an individual for the purpose of owning property ) , but in Bharatiya thought Svatva is social , spiritual and exists within a web of interlinked claims which are all uniquely valid and absolute in their specific claim , yet existing with other claims , which are equally valid and absolute , for example , the right of the title holder , the tenure holder and the person who has access through the land , are all equally valid and absolute but they are all separate without being hierarchical In other words the king ( though Bharatiya law says that the king is not the ultimate owner of the property , the mulasvami / bhaumika ( the landholder ) , the mortgagee , the submortgagee , and the cultivator to whom the land is leased to be tilled , all their claims are of the same character , though different , without being hierarchical .Infact in Bharatiya jurisprudence the King was not owner of all the lands in his kingdom , he is taken to be the owner of those lands which he owns privately or those lands which have not been granted to anyone , i.e. those lands which belong to specified owners do not belong to the king . As Duncan Derrett notes in his now seminal article on “ The Development of the Concept of Property in India c. AD 800 to 1800 ” : “ The distinctive feature of Indian concept of property , therefore , is the capacity of svatva to exist in favour of several persons , simultaneously , not only identical adhikaras being shared as in co-owners , but especially where adhikaras are inconsistent or mutually exclusive” ; Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 93 .
[4] This is a distinction drawn by Patanjali commenting on Panini : Derett, JMD ; Religion Law and State in India ; Oxford University Press ; New Delhi ; 1999 ; pg 130 : However , Jaimini defers from the same by holding that acquisition of property and wealth can be because of purusartha ( to subserve individual ) , kratvartha ( to subserve sacrifice ) , and lipsa ( want ) – ibid , page 131-132 . Manu has a slightly different approach to the same : Olivelle , P ; Manu’s Code of Law : A critical Edition and Translation of the Manava Dharmasastra ; Oxford University Press ; New Delhi ; 2005 ; pg. 214.
[5] Olivelle , P ; Manu’s Code of Law : A critical Edition and Translation of the Manava Dharmasastra ; Oxford University Press ; New Delhi ; 2005 ;pg.169.
[6] Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 95.
[7] Therefore the entire spectrum of property and dealing of wealth is governed by Dhanarjana Niyama ( rules of acquisition of wealth ) , Dhana Viniyoga Niyama ( rules of putting wealth to use ) and Dhana Tyaga Niyama ( rules of giving wealth up ) , which are in the nature of injunctions which would result in the benefit of Dharma but are strictly not implimentable by the state : See : ; Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 43-50 .
[8] For an interesting and indicative read as to how and to who are worthy of gifting wealth. See Olivelle , P ; Manu’s Code of Law : A critical Edition and Translation of the Manava Dharmasastra ; Oxford University Press ; New Delhi ; 2005 ; pg. 135.
[9] It will be apparent that the law as we have inherited it from the British does not recognise various types of wealth and property specially properties which are held in common and properties and claims which strictly does not confirm to western conceptions of property , like tribal rights on forests . It must be added also that the struggle to recognise private property against the concept of “eminent domain” does not exist in India , simply because the concept of “eminent domain” is alien to the conceptions of property in Bharatiya thought. This holds true even today inspite of the fact that Bharatiya conceptions of property have not been legally recognised by the state in large parts of India for more than a thousand years. This has led to great conflict during the tenure of the British when land was being acquired for large projects , as well as during the present time when large swathes of land are being acquired by the state . Notably those who entertain claim on the land are not opposed to parting with their claim but are clearly resentful of state interference in that right . There has been attempts however to read in eminent domain specially by British scholars , but they go again the very grain of the jurisprudence : See : Kangle , R.P. ; The Kautilya Arthashastra ; Part III ; Motilal Banarasidass Publishers Pvt. Ltd. ; New Delhi ; 1965 ; pages 169-171.
[10] This was because of largely two factors (i) since large portions of the population were not very close to the British legal system , they were not aware as to what constitutes “property” and “wealth” in law , and therefore were not able to get the same recognised in law , and (ii) the British law did not recognise certain forms of holding of property and wealth which went against the British conception of private property , specially in relation to publicly held lands and entertaining claims recognising the absoluteness of other forms of land tenure amongst others .
[11] The British used their ideas of property and law and grafted them on India disregarding the background of the then existing systems : See : Guha , Ranajit ; Rule of Property for Bengal : An essay on the idea of Permanent Settlement ; Duke University Press ; Durham , North Carolina , USA ; 1996
[12] Bharatiya jurisprudence recognises three entities who are sovereigns ( svatantra ) , (i) the king / spiritual preceptor , (ii) jati ( or what we call caste ) and (iii) householder . Derett ,JMD , “ The Development of the Concept of Property in India c. AD 800 -1800” ; Essays in Classical and Modern Hindu Law ; Brill ; Leiden , 1977 ; pg 96 .The householder is the person who heads the household and for all purposes was the basis of the entire economy . The Indian legal regime post the British regime in it’s rush to make India a developed economy in western terms , focussed on the individual right to property rather than on the older Indic / Bharatiya economy . However the household was such an important constituent that they could not do away with it completely and had to acknowledge it’s existence in the Tax regime of the state .
[13] Devotturs or the land and or property held by deities was always acknowledged as a method of land and property holding . See : Kangle , R.P. ; The Kautilya Arthashastra ; Part III ; Motilal Banarasidass Publishers Pvt. Ltd. ; New Delhi ; 1965 ; pg. 157.
[14] The success of Operation Barga and land reform initiated by the communists were infact a recognition of the old methods of land holding , whereby the claim of the tenure holder was given statutory recognition . This lead to spectacular success of the land reforms initiated by the Communists in West Bengal in the years between 1977 to 1980 . However the logic of the Communists was completely different . The Communists mistook the success of the land reform as success of the logic of land reform adopted by them . They surmised that it was because land should go to the tillers and the state should be the instrument for the same . They were on to a good thing without realising it . The recent problems of the same Communist Party in West Bengal in trying to acquire land from the title holders , without recognising the claims of the tenure holders , has fallen as spectacularly because of not recognising the other basic tenet of Indian land holding , that there is no “eminent domain” , and once the state gives up a certain claim it is not entitled to take it back , unless the land belongs to the state itself.
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