Balancing Justice Needs and Private Property in Constitutional Takings Provisions: A Comparative Assessment of India, Australia, and the United States

Fordham International Law Journal Vol. 42:4, 2019

U. of Adelaide Law Research Paper No. 2019-53

43 Pages Posted: 29 May 2019 Last revised: 5 Jun 2019

See all articles by Krithika Ashok

Krithika Ashok

OP Jindal Global University - Jindal Global Law School (JGLS); University of Chicago, Law School, Students

Paul T. Babie

Adelaide Law School, The University of Adelaide

John V. Orth

University of North Carolina School of Law

Date Written: May 28, 2019

Abstract

This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens through the re-distribution of goods and resources with the need to protect the private property of individuals. We summarize this framework in what we refer to as the “Justice Needs-Protection of Private Property Continuum.” Using the framework developed, the Article provides an outline of the takings provisions found in the Indian, Australian, and American constitutions. Part I examines Article 300A of the Constitution of India, which contains the scope of the power of compulsory acquisition exercised by the Indian state. Part II assesses Section 51(xxxi) of the Australian Constitution which, unlike its American and Indian counterparts, operates as both a grant of power to the federal government, as well as a limitation imposed upon that power, which may, it seems, operate so as to provide some minimal protection for individual private property interests. Part III considers the Takings Clause of the Fifth Amendment to the United States Constitution which, as interpreted by the Supreme Court, provides perhaps the most robust means among the three jurisdictions considered for protecting the individual private property interests as against state takings. The Conclusion offers comparative reflections on the nature of the takings provision found in each jurisdiction.

Keywords: justice, private property

JEL Classification: K10

Suggested Citation

Ashok, Krithika and Babie, Paul T. and Orth, John V., Balancing Justice Needs and Private Property in Constitutional Takings Provisions: A Comparative Assessment of India, Australia, and the United States (May 28, 2019). Fordham International Law Journal Vol. 42:4, 2019; U. of Adelaide Law Research Paper No. 2019-53. Available at SSRN: https://ssrn.com/abstract=3395059

Krithika Ashok

OP Jindal Global University - Jindal Global Law School (JGLS) ( email )

Jindal Centre 12 Bhi12 Bhikaiji Cama Place
Near Jagdishpur Village
New Delhi, Uttar Pradesh/Haryana 110 066
India

University of Chicago, Law School, Students ( email )

Chicago, IL
United States

Paul T. Babie (Contact Author)

Adelaide Law School, The University of Adelaide ( email )

Ligertwood Building
Adelaide, South Australia 5005
Australia
+61 8 8313 5521 (Phone)
+61 8 8313 4344 (Fax)

HOME PAGE: http://https://researchers.adelaide.edu.au/profile/paul.babie

John V. Orth

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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