“We are bound by Kesavananda Bharati verdict that saved constitutional provision”: 9-Judge Bench | Nature of Private Property [Day 3]

The Supreme Court Yesterday (April 25th) made it clear that it is “subservient” to the historic 13-judge bench verdict in the Kesavananda Bharati case which upheld a part of Article 31C of the Constitution meant to save laws if they are enacted to subserve “common good” by taking over material resources including private assets.

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NEW DELHI: The Supreme Court reaffirmed its adherence to the landmark 1973 Kesavananda Bharati judgment, which established the “basic structure” doctrine, limiting Parliament’s extensive powers to amend the Constitution. This doctrine also empowered the judiciary to review any constitutional amendment to ensure it does not damage the Constitution’s core principles.

The Court highlighted its ongoing respect for the historic decision made by the 13-judge bench, underscoring that it remains “subservient” to this ruling, particularly in relation to Article 31C. This Article allows for the enactment of laws aimed at the “common good” by appropriating material resources, including private assets, provided they do not disturb the Constitution’s basic structure.

The matter was brought into discussion by a nine-judge bench led by Chief Justice D Y Chandrachud during a session focused on determining whether private properties could be considered “material resources of the community” under Article 39(b) of the Constitution. This would allow such properties to be appropriated by the State to promote the “common good.”

During the proceedings, Chief Justice Chandrachud emphasized the court’s deference to the earlier judgment, stating,

“We are again subservient to a decision of the 13 judge bench (in the Kesavananda Bharati case). It wasn’t a judgement of five judges.”

This reference was in response to arguments presented by the counsel for the petitioners, including the Property Owners Association (POA), who noted that a subsequent ruling in the 1980 Minerva Mills case by a five-judge bench appeared to contradict Article 31C’s provisions.

The Supreme Court, in the Minerva Mills case, had struck down portions of the 42nd Amendment, which had attempted to place the Directive Principles of State Policy above the fundamental rights of individuals and had removed the possibility of judicial review of constitutional amendments.

Chief Justice Chandrachud addressed this point by clarifying that the Minerva Mills judgment primarily overturned the expansion of immunity granted to laws enacted under all the Directive Principles of State Policy (DPSP). The court is now tasked with assessing whether the original, un-amended version of Article 31C is thereby revived, continuing to protect laws made under Article 39(b) and (c) from judicial review as long as they adhere to the basic structure doctrine.

This ongoing legal discussion highlights the delicate balance the judiciary must maintain between upholding the constitutional framework and facilitating the State’s efforts to manage resources for the public welfare under the guidance of the Directive Principles.

The Supreme Court continued its examination of the constitutionality of certain property acquisition laws under the Maharashtra Housing and Area Development Authority (MHADA) Act, against a backdrop of long-standing legal precedents regarding the government’s power to use private property for the public good. Chief Justice D.Y. Chandrachud, leading a nine-judge bench, clarified the court’s position regarding historical judgments that influence the current case.

Chief Justice Chandrachud remarked,

“The Minerva Mill (judgement) couldn’t have doubted the Kesavananda Bharati (verdict),”

-indicating that previous rulings affirm the constitutionality of certain provisions while questioning others.

He elucidated,

“So what is emerging is this, that the pre-amended Article 31C is valid, the post amended 31C which expanded the ambit of Article 31C to include all the DPSPs is invalid.”

This ongoing legal discourse is critical because it impacts how private properties can be utilized in the public interest, particularly in densely populated urban areas like Mumbai, where old and dilapidated buildings are common.

The case in question involves the MHADA Act’s Chapter VIII-A, introduced in 1986, which allows the state to acquire cessed buildings and the land they occupy if 70% of the tenants request restoration.

The state government, represented by Solicitor General Tushar Mehta, defended the provisions by stating that they align with Article 39(b) of the Constitution, safeguarded by Article 31C, which was designed to secure that-

“the ownership and control of the material resources of the community are so distributed as best to subserve the common good.”

Mehta emphasized-

“It is clear that the un-amended Article 31-C, to the extent upheld by the judgment in the Kesavananda Bharati case, is valid and in operation.”

During the hearing, which did not reach a conclusion and is set to resume on Tuesday, the central issue discussed was whether the term “material resources of the community” in Article 39(b) includes privately owned resources. This query reflects broader concerns about balancing individual property rights with community needs, especially in areas where aging infrastructure poses risks to public safety.

The Property Owners Association of Mumbai and other petitioners argue that the MHADA Act’s provisions are discriminatory and infringe on property owners’ rights, highlighting the plight of about 13,000 cessed buildings in Mumbai needing urgent repair or reconstruction. These buildings, primarily constructed in the 1940s, suffer significantly during Mumbai’s monsoon season due to the saline environment, leading to severe dilapidation.

The legal challenge to the MHADA Act, initiated by the POA in 1992, has been referred to increasingly larger benches over the years, culminating in the current hearing before a nine-judge bench.

This referral underscores the complex legal and ethical questions surrounding the state’s role in managing private property for public use, particularly in contexts requiring urgent public safety measures.

Previously in Apex Court

The Supreme Court delved into the complex terrain of private property rights versus societal needs. This nine-judge bench, led by Chief Justice D Y Chandrachud, is tasked with interpreting whether private properties can be classified as “material resources of the community” under the constitutional framework, particularly examining Articles 39(b) and 31C.

The case in question stems from provisions of the Maharashtra Housing and Area Development Act, 1976 (MHADA), which involve the potential acquisition of dilapidated buildings by the Mumbai Building Repair and Reconstruction Board (MBRRB) under specific conditions. This law and others like it stand at the intersection of individual property rights and the state’s mandate to redistribute resources for the common good.

Chief Justice Chandrachud highlighted the historical context, stating,

“The Constitution was intended to bring about social transformation, and we cannot say that Article 39 (b) has no application once property is privately held.”

He further elaborated on the dual perspectives of property in economic systems, contrasting the capitalist notion of exclusivity with the socialist model, which views all property as communal.

The Chief Justice further detailed,

“The socialist concept of property is the mirror image which attributes to property, a notion of commonality. Nothing is exclusive to the individual. All property is common to the community. That’s the extreme socialist view,”

-thereby emphasizing the Gandhian ethos ingrained in the Indian Constitution which treats property as a trust held on behalf of the community and future generations.

The Bench also considered the implications of Article 31C, especially in light of the Minerva Mills case, which challenged the constitutionality of certain amendments. They expressed the need for clarity on whether Article 31C still stands post-Minerva Mills, given the potential

“radical constitutional consequences.”

Senior Advocate Uttara Babbar, representing the petitioners, argued that the state’s right to distribute property presupposes its acquisition, hence challenging the MHADA’s authority under Article 39(b). She cited historical debates that underscored the framers’ intent, focusing solely on distribution rather than acquisition.

In contrast, Solicitor General Tushar Mehta and Senior Advocate Zal Andhyarujina, representing the state, argued for the constitutionality of Article 31C and its relevance in implementing state policies as per the Directive Principles of State Policy (DPSPs). Mehta pointed out the legal precedent that supports the doctrine of revival, which would maintain Article 31C in its post-Kesavananda Bharati form.

The discussion brought forth by the Bench underscored a broader constitutional and philosophical debate on property rights. The justices are navigating through a labyrinth of legal precedents, the original intentions of the Constitution’s framers, and modern-day needs for social welfare and development.

As this high-stakes legal debate continues, the outcome will likely redefine the balance between individual property rights and the state’s role in redistributing resources for the greater good, setting a significant precedent for future constitutional and property law in India.

The Chief Justice of India (CJI) delved into the intricate layers of property rights, touching upon historical contexts and ideological underpinnings. The conversation pivoted around the nuanced understanding of property, juxtaposing contrasting perspectives of capitalism and socialism.

Highlighting the abolition of ‘Zamindari’ and the advent of capitalist notions of property, the CJI underscored how this transition imbued property with a sense of “exclusiveness.” This exclusivity, he argued, epitomized the capitalist ethos, where property ownership is strictly individualistic.

However, the narrative didn’t end there. The CJI traversed through ideological landscapes, shedding light on the socialist conception of property. Here, property transcends individual ownership, morphing into a communal asset.

“The socialist concept of property is the mirror image which attributes to property, a notion of commonality. Nothing is exclusive to the individual. All property is common to the community,”

-remarked the CJI, drawing a stark ideological contrast.

Yet, nestled within this ideological spectrum lies the Gandhian ethos, subtly influencing the Indian understanding of property.

“Our ethos regards property as something which we hold in trust,”

-the CJI elucidated.

This nuanced perspective doesn’t wholly embrace socialism’s communal ownership nor does it align entirely with capitalism’s individualistic fervor.

Justice Chandrachud, adding depth to the discourse, articulated a paradigm where property transcends temporal boundaries.

“We hold the property because of the succeeding generations in the family, but broadly, we also hold that property in trust for the wider community,”

-he explained.

This conception embodies the principle of sustainable development, where property isn’t merely a possession but a legacy passed down for the betterment of future generations.

The bench further dissected the notion of redistributive justice, navigating through the complexities of Article 39 (b) of the Indian Constitution.

“You must understand that Article 39 (b) has been crafted in a certain way in the Constitution because the Constitution was intended to bring about a social transformation,”

-remarked the CJI.

This provision, he argued, doesn’t negate private property but rather emphasizes its role as a societal resource.

In essence, the discourse transcended mere legal jargon, delving into the philosophical bedrock upon which property rights stand. It illuminated the intricate interplay between ideology, tradition, and constitutional mandate, offering a nuanced understanding of property in the Indian context.

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