This was one of many defining constitutional points within the first three a long time of the republic, leading to an extended tussle between the court docket and the legislature. Courts stored hanging down legal guidelines which infringed on the fitting to property and Parliament stored amending the Structure to slender the fitting additional. In 1971, Parliament launched Article 31-C, which mentioned that if a regulation was meant to additional the Directive Ideas contained in Article 39 (b) and (c) of the Structure, it couldn’t be held to violate the Proper to Equality or the freedoms assured beneath Article 19 of the Structure.
The precise query earlier than the nine-judge bench was the which means of the time period “materials sources of the neighborhood” present in Article 39(b). Although not binding, Article 39(b) exhorts the State to make insurance policies which guarantee “that the possession and management of the fabric sources of the neighborhood are so distributed as finest to subserve the frequent good.” Within the context of a 1986 modification to the Maharashtra Housing and Improvement (MHADA) Act, which allowed the state authorities to take over dilapidated buildings from their house owners and hand it to tenants, the query was — do “materials sources of the neighborhood” essentially embrace personal property? In the event that they did, constructing house owners couldn’t problem the regulation claiming that it violated their rights beneath Article 14 or Article 19.
No judgment had definitively answered this query to date, however one line of instances appeared to recommend that “materials sources” included all personal property as nicely. Nonetheless, these instances had been doubted by the Supreme Courtroom within the Nineties ensuing within the want for a nine-judge bench to settle the matter as soon as and for all.
The bulk judgment, authored by CJI DY Chandrachud (on behalf of himself and 6 different judges) holds that “materials sources of the neighborhood” could embrace personal property however don’t embrace all types of personal property. The bulk holds that whether or not personal property would quantity to “materials sources” is “context-dependent” and lists out a non-exhaustive set of things to resolve whether or not such personal property is a “materials useful resource”. These elements embrace the character of the useful resource, its affect on “the well-being of the neighborhood”, its shortage, and many others.
Justice Sudhanshu Dhulia disagrees with this discovering in a dissenting opinion holding that “materials sources” essentially embrace all personal property. Nonetheless, Justice B Nagarathna agrees with the bulk opinion however provides the nuance that the non-public results of a person can not develop into “materials sources”.
Superficially it may appear that the Courtroom has turned away from the “socialist” interpretation of Article 39 (b) favoured by judges similar to Justices V R Krishna Iyer and O Chinnappa Reddy. The bulk opinion disagrees with what was taken with no consideration in earlier judgments — that every one personal property would represent “materials sources” for the needs of Article 39(b). The previous view, one would possibly argue, has been rejected maintaining in view the shift within the dominant financial insurance policies adopted by the federal government: That the imperatives of nationalisation and redistribution have now been changed by the imperatives of a welfare state, which compensates these overlooked of the evenly regulated market financial system.
Nonetheless, in my opinion, the Supreme Courtroom’s judgment in Property House owners Affiliation is definitely in regards to the energy of judicial evaluate. Article 31C tried to scale back the scope of judicial evaluate over legal guidelines limiting the fitting to property. The bulk judgment on this case has expanded judicial evaluate over such legal guidelines another way by leaving it to the court docket to resolve, on a case-by-case foundation, whether or not a regulation redistributing personal property violates elementary rights or not. Earlier, a easy invocation of Article 39 (b) was sufficient to place the regulation out of the attain of judicial evaluate. Now, the court docket will resolve what 39(b) itself means in every case earlier than deciding whether or not the regulation is exterior its attain. Article 31C’s effort to ban judicial evaluate of sure sorts of legal guidelines has been successfully skirted by the court docket
The minority view of Justice Dhulia argues that the Structure does the truth is have a sure concept of how wealth ought to be distributed in society, what constitutes wealth and the way it ought to be distributed ought to be left to Parliament to determine. “Materials sources of the neighborhood,” in Justice Dhulia’s view, can’t be interpreted in any solution to exclude personal property as a result of the framers of the Structure meant to incorporate personal property. Justice Dhulia desires Parliament to have the ultimate say on these issues since an elected legislature is aware of finest what sources ought to be in whose fingers.
On condition that the Property House owners Affiliation judgment solely lays down ideas, it stays to be seen if and to what extent courts evaluate or strike down legal guidelines on buying and redistributing personal property.
When studying the Supreme Courtroom’s narration of the information in Property House owners Affiliation, one is reminded of Saeed Akhtar Mirza’s immortal satire, Mohan Joshi Hazir Ho. Mohan Joshi is an previous man residing in a dilapidated constructing that’s virtually falling aside. His landlord refuses to renovate, hoping the harmful constructing will persuade the tenants to depart and permit him to redevelop and promote it at a better worth. Joshi approaches the court docket, the place his actual saga begins because the judicial course of solely provides to his distress and supplies little decision.
The 1986 Modification to the MHADA Act was the right resolution to Mohan Joshi’s downside however that isn’t the comparability I’m making.
When challenged by aggrieved landlords, the Bombay Excessive Courtroom in 1991 upheld the 1986 modification. The matter then travelled to the Supreme Courtroom in 1992 and has languished there since. It has been referred by a three-judge bench to a bigger bench of 5 judges, then to a bench of seven judges and at last to a nine-judge bench. The nine-judge bench judgment delivered this week doesn’t finish the matter — it is going to go earlier than one other, smaller bench to resolve the constitutional validity of the 1986 Modification. The twist within the story right here is that the landlords, not the tenants, have now spent 32 years (and counting) within the Supreme Courtroom awaiting closing judgment.
The author is a co-founder of the Vidhi Centre for Authorized Coverage. Views are private
