Problems of the concept of property and its constitutional protection in India, the United States of America and Australia




Narain, Jagat

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This thesis studies the concept of property with special reference to the nature and. kind of constitutional protection accorded to it, mainly in India, United States and Australia. It is observed that the property concept in the aforesaid countries possesses certain common features partly due to common legal systems, partly to common legal history, and partly to the common role or position given to private property in these societies. However, notwithstanding such similarity, certain influences in the different social backgrounds in these three countries have in many cases worked strongly so as to modify these common features. So that in such cases the property concept becomes more sociological than analytical, because it cannot be susceptible to logical analysis based on the aforesaid common features. The general principle that at least some compensation must be paid to the expropriated owner, or that a restriction on the right of property must be justified as being in the public interest has been accepted, expressly or implicitly, in these countries. A study of such provisions becomes interesting when it is noticed that the courts in these countries have in general tended to recognise the social background and social values in their task of interpretation of the property guarantees, though this is less true of the courts in India, as explained in the thesis. The reason why only these three countries have been chosen lies in the fact that they have in common the institution of federal or quasi-federal democracy under a constitution containing elaborate guarantees relating to private property; they have also a good deal of case material on the subject. Other countries do not stand in this position. Thus, for instance, while Canada dqes not have, despite the Bill of Rights (i960), constitutional ^guarantee of property in the true sense, the ’.Vest German case material on the subject translated in English is not enough; this material discloses mo problem there which can be said to be specially characteristic cf its Constitution (Basic Law, 1949) in the sense in which one can say with regard to the countries proposed to be studied here, e.g., town planning in the 'United States, collective pool marketing in Australia, agrarian and industrial reform in India. The position in West Germany has, therefore, been discussed, only briefly in the Appendix.






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