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