“During the last six years, the country has watched with horror nearly half a dozen judges going amok and perverting the Constitution… Today we have arrived at a stage in the life of the Supreme Court where these modern Kalidasas are chopping off the very branches on which they are sitting.”
This was senior advocate and Congress Rajya Sabha MP, DP Singh speaking on the floor of the House on 3 May 1973 (under the cover of Parliamentary immunity, of course!). For the first author of this article, the property wheel of Indian constitutionalism has come full circle. When he enrolled as a law student in 1973, the raging debate was about “committed” judges in the context of their constitutional philosophy. DP Singh was speaking in a debate on the supersession of three Supreme Court judges in 1973. Then Steel Minister Mohan Kumaramangalam unequivocally said that the government was entitled to look at the social and economic philosophy of judges when appointing the Chief Justice of India.
The striking down of bank nationalisation, the abolition of privy purses and the view that fundamental rights could not be affected while passing economic legislation (in the Golak Nath case) were all seen as the push-back by “reactionary” judges against Indira Gandhi’s attempts to bring about socio-economic transformation.
It is in this context that the recent judgment of the nine-judge bench of the Supreme Court in ‘Property Owners Association v. State of Maharashtra’ on the meaning of Article 39(b) assumes significance. Article 39(b) of the Indian Constitution says that the State shall direct its policy towards securing “that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good.” (emphasis added) The central issue in the present case concerned the interpretation of the phrase “material resources of the community”, and specifically whether it included privately owned resources.
Serving a public purpose
What gave rise to the recent judgment was the minority view taken in 1977 by Justice VR Krishna Iyer, Justice PN Bhagwati and Justice Jaswant Singh in ‘State of Karnataka v. Ranganatha Reddy’. This was a case relating to the nationalisation of public transport in Karnataka. Interestingly, all the seven judges on the bench upheld the nationalisation. The majority judgment by Justice NL Untwalia upheld it on merits, finding that the acquisition of vehicles under the legislation served a “public purpose” in this case. The minority opinion of Justice Iyer and his colleagues went further, holding that the legislation was constitutionally valid because Article 39(b) included “all the private and public sources of meeting material needs”. The minority opinion further emphasised that Article 39(b) was designed “to dismantle feudal and capitalist citadels of property” and that to exclude privately owned resources from its ambit would defeat this aim. The majority however ambiguously distanced itself from this view of Article 39(b), noting that they partially disagree with Justice Krishna Iyer’s reasoning on this point, without specifying the extent of their agreement.
This partial disagreement became a thorny issue in Indian Constitutional jurisprudence because subsequent judgments relied upon and extended Justice Iyer’s expansive reading of Article 39(b). Ultimately, the present case arose in the context of a challenge to Chapter VIIIA of the Maharashtra Housing and Area Development Act 1976 (MHADA) as amended in 1986, which empowered the State to acquire old and dilapidated buildings and transfer ownership and control of them to tenants. In 1991, landlords filed writ petitions contending that the classification of buildings was arbitrary and that the amended statute discriminatorily deprived them of their property. The State defended the statute by contending that the power to acquire run-down buildings and control or redistribute them was immune from challenge under Articles 14 and 19 because it was in furtherance of Article 39(b).
Through a series of references, it was left to the outgoing CJI DY Chandrachud to constitute a nine-judge bench to decide the issues involved in this case. In the judgment delivered last week, the Court clarified at the outset it would only address the abstract questions of law involved, and would leave the constitutionality of the specific provisions under challenge to be evaluated by a regular bench applying the principles it develops. In this regard, the judgment is similar to the approach taken by the Court in its other recent judgment on whether institutions recognised by way of a statute can be recognised as having minority status under Article 30. There too, the Supreme Court left the question of whether AMU would be entitled to minority status to be decided subsequently.
Also read: Aadhaar to Ayodhya, DY Chandrachud confuses fans, critics. The New Right Liberal or Daddy?
‘Justice Krishna Iyer doctrine’
On the broad question of law, the majority opinion authored by Justice Chandrachud held that privately owned resources may be included within the ambit of Article 39(b), but that this issue is be to examined based on context and based on a non-exhaustive list of factors. These factors include “the nature of the resource and its characteristics; the impact of the resource on the well-being of the community; the scarcity of the resource; and the consequences of such a resource being concentrated in the hands of private players.”
Pertinently, however, the majority opinion questioned Justice Iyer’s notion of what amounts to material resources and found his approach of including such a vast range of privately owned resources under Article 39(b) to be too wide. One can appreciate the majority’s concern with the expansive interpretation of Article 39(b), as it reduces the safeguards for individuals against the State. However, what is striking is how the majority proceeds to distance itself from the approach taken in Justice Iyer’s minority opinion. The majority disapproves of Justice Iyer’s approach of reading the Constitution as endorsing a “rigid economic theory” as the “exclusive basis for constitutional governance.”
In their different opinions, Justice BV Nagarathna concurred with the majority headed by CJI Chandrachud while Justice Sudhanshu Dhulia took an absolutely contrary view. While agreeing that Justice Iyer’s interpretation of “material resources of the community” was too wide, Justice Nagarathna’s opinion focuses on specifying which kinds of privately owned resources should not fall within its ambit.
Justice Nagarathna also reminds us that adjudication does not take place in a vacuum, but is informed by a particular “constitutional, economic and social culture” existing at a point in time. She suggests that in the 1970s, this culture was one “that gave primacy to the State over the individual in a broad-sweeping manner.” Justice Nagarathna’s opinion hints at an irony in the majority opinion. While on the one hand the majority perhaps correctly questions the everlasting tone of what it calls “the Justice Krishna Iyer doctrine”, on the other hand, it appears oblivious to the fact that the deep influence of the post-liberalisation economic paradigm has coloured its own constitutional imagination.
Refreshing disagreements
Justice Dhulia’s main disagreement with the majority is with their approach of pre-emptively laying down a list of factors to determine which privately owned resources will fall within the ambit of material resources. His opinion suggests that perhaps the majority erred in attempting to pin down the meaning of “material resources of the community” in the abstract—especially while segregating the questions concerning the constitutionality of the provisions of MHADA that led to the creation of this nine-judge bench. According to him, the generality of the phrase is what grants the legislature flexibility in pursuing egalitarian goals, and what simultaneously enables the judiciary to focus on the specific context in front of them as it evaluates such legislative pursuits. His opinion aligns most closely with the judgments authored by Justice Iyer and Justice Chinnappa Reddy (Justice Reddy was another of the great “ progressive “ judges of the Supreme Court in the late seventies and a good part of the 1980s) , which were sceptical about the scales of justice having the capacity to weigh complex competing social and economic factors.
In consonance with his concern over context, Justice Dhulia devotes a section of his opinion to highlighting the deep-seated economic inequality that persists in India even today. This section of his opinion serves to remind us that the radical egalitarian project that former judges believed in may not have lost its relevance, and perhaps more importantly, “nor has it lost its audience”. It is heartening that even in the time of liberalisation, there is a good old-fashioned left-of-centre judge in Justice Dhulia, who still finds merit in “the Krishna Iyer doctrine”.
Like Justice Nagarathna, who felt that it was wrong to “castigate” former judges for arriving at particular interpretive outcomes, Justice Dhulia too finds the majority’s criticism to be “harsh”. In Justice Dhulia’s view, the constitutional philosophy of judges like Justice Iyer and Justice Reddy was “based on strong humanist principles of fairness and equity”, and was a genuine reflection of their empathy for the most socio-economically disadvantaged sections of society.
It is interesting to read the riposte by a majority judge and a minority judge to what they see as a “castigation” of former judges. Indian judges, unlike US Supreme Court judges (most notably Justice Antonin Scalia), have always been respectfully pusillanimous in their language when it comes to disagreeing with the views of other judges. It is therefore refreshing to find both CJI Chandrachud calling what he thinks is a spade to be a spade and the spirited defence by two judges of their colleagues from an earlier era.
Raju Ramachandran is a Senior Advocate of the Supreme Court. Vikram Aditya Narayan is an Advocate practising in Delhi. Views are personal.
(Edited by Theres Sudeep)