BY erealto | 03-12-2018
Property, as a legal social institution, has different forms in different cultures and legal systems. However, only a definition of constitutional property is common in all democratic countries. Since the state exercises eminent domain power against private property, it is pertinent to discuss the concept of private property in brief. The institution of private property has been a controversial issue with conflicting views, one completely denying the right to own private property and the other supports the holding of the private property. However, the right to property is a natural and inherent right of an individual. Most of the modern constitutions, except those of communist countries have recognised the right of private property. Therefore, citizens have right to own and possess the property. This right of individual conflicts with the right of state to acquire property. A person has a right not to be deprived of his property except through due process of law. International Relevance International Convention on The Elemination of All Forms of Ratial Discrimination Which states in Article 5 that everyone has the right to equality before the law without distinction as to race, colour and national or ethnic origin, including the “right to own property alone as well as in association with others” and “the right to inherit”. Convention on The Elimination on All Forms of Discrimination Against Women The convention on the Elimination of All Forms of Discrimination against women recognises the property rights in Article 16, which establishes the same right for both spouses to ownership, acquisition, management, administration, enjoyment and disposition of property, and Article15, which establishes women’s right to conclude contracts. Convention Relating To The Status of Refugees These international human rights instruments for minorities do not establish a separate right to property, but prohibit discrimination in relation to property rights where such rights are guaranteed. Universal Declaration of Human Rights Article 17 of the Universal Declaration of Human Rights (UDHR) enshrines the right to property as follows: (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property The object of the right to property as it is usually understood nowadays, consists of property already owned or possessed, or of property acquired or to be acquired by a person through lawful means. Not on opposition but in contrast to this, some proposals also defend a universal right to private property, in the sense of a right to every person to effectively receive a certain amount of property, grounded in a claim to Earth’s natural resources or other theories of justice. Indian Relevance Constitution of India In India, no fundamental right has given rise to so much of litigation than property right between state and individuals. Through the Supreme Court of India sought to expend the scope and ambit of right of property, but it has been progressively curtailed through constitutional amendments. The Indian version of eminent domain has found in entry 42 List III, which says “acquisition or requisition of property”. Under the original Constitution Article 19(1)(f) and 31 provides for protection of property right and later they were repealed and Article 300A was inserted. Accordingly no person shall be deprived of his property save by the authority of law. However, regarding right to property what kind of protection given by the US Constitution under Article 300A. For better understanding of Article 19(1)(f) and 31 along with constitutional amendments. Article 31(2) of the constitution provides for compulsory Acquisition of land. The power of eminent domain is essential to the sovereign government. The provisions of the fifth amendment to the constitution of the United states is that private property cannot be taken for public use without just compensation. The principle of compulsory acquisition of property is founded on superior claims of the whole community over an individual citizen, is applicable only in those cases where private property is wanted for public use or demanded for the public welfare. Accordingly, the right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation where the public interest will be in no way promoted by such transfer. The limitation on the power of eminent domain is that the acquisition or taking possession of property must be for a public purpose has been expressly engrafted in clause (2) of Article 31 of the constitution of India. No property shall be compulsorily acquired or requisitioned save for a public purpose.