SC’s interpretation of private property curtails state’s power but enhances judicial review

The circumstantial question earlier the nine-judge seat was the meaning of the word “material resources of the community” recovered successful Article 39(b). Though not binding, Article 39(b) exhorts the State to marque policies which guarantee “that the ownership and power of the worldly resources of the assemblage are truthful distributed arsenic champion to subserve the communal good.” In the discourse of a 1986 amendment to the Maharashtra Housing and Development (MHADA) Act, which allowed the authorities authorities to instrumentality implicit dilapidated buildings from their owners and manus it to tenants, the question was — bash “material resources of the community” needfully see backstage property? If they did, gathering owners could not situation the instrumentality claiming that it violated their rights nether Article 14 oregon Article 19.

No judgement had definitively answered this question truthful far, but 1 enactment of cases seemed to suggest that “material resources” included each backstage spot arsenic well. However, these cases were doubted by the Supreme Court successful the 1990s resulting successful the request for a nine-judge seat to settee the substance erstwhile and for all.

The bulk judgment, authored by CJI DY Chandrachud (on behalf of himself and six different judges) holds that “material resources of the community” whitethorn see backstage spot but bash not see each forms of backstage property. The bulk holds that whether backstage spot would magnitude to “material resources” is “context-dependent” and lists retired a non-exhaustive acceptable of factors to determine whether specified backstage spot is simply a “material resource”. These factors see the quality of the resource, its interaction connected “the well-being of the community”, its scarcity, etc.

Justice Sudhanshu Dhulia disagrees with this uncovering successful a dissenting sentiment holding that “material resources” needfully see each backstage property. However, Justice B Nagarathna agrees with the bulk sentiment but adds the nuance that the idiosyncratic effects of an idiosyncratic cannot go “material resources”.

Superficially it mightiness look that the Court has turned distant from the “socialist” mentation of Article 39 (b) favoured by judges specified arsenic Justices V R Krishna Iyer and O Chinnappa Reddy. The bulk sentiment disagrees with what was taken for granted successful earlier judgments — that each backstage spot would represent “material resources” for the purposes of Article 39(b). The aged view, 1 mightiness argue, has been rejected keeping successful presumption the displacement successful the ascendant economical policies followed by the government: That the imperatives of nationalisation and redistribution person present been replaced by the imperatives of a payment state, which compensates those near retired of the lightly regulated marketplace economy.

However, successful my view, the Supreme Court’s judgement successful Property Owners Association is really astir the powerfulness of judicial review. Article 31C tried to trim the scope of judicial reappraisal implicit laws limiting the close to property. The bulk judgement successful this lawsuit has expanded judicial reappraisal implicit specified laws successful a antithetic mode by leaving it to the tribunal to decide, connected a case-by-case basis, whether a instrumentality redistributing backstage spot violates cardinal rights oregon not. Earlier, a elemental invocation of Article 39 (b) was capable to enactment the instrumentality retired of the scope of judicial review. Now, the tribunal volition determine what 39(b) itself means successful each lawsuit earlier deciding whether the instrumentality is extracurricular its reach. Article 31C’s effort to prohibition judicial reappraisal of definite kinds of laws has been efficaciously skirted by the court

The number presumption of Justice Dhulia argues that the Constitution does successful information person a definite thought of however wealthiness should beryllium distributed successful society, what constitutes wealthiness and however it should beryllium distributed should beryllium near to Parliament to fig out. “Material resources of the community,” successful Justice Dhulia’s view, cannot beryllium interpreted successful immoderate mode to exclude backstage spot due to the fact that the framers of the Constitution meant to see backstage property. Justice Dhulia wants Parliament to person the last accidental connected these matters since an elected legislature knows champion what resources should beryllium successful whose hands.

Given that the Property Owners Association judgement lone lays down principles, it remains to beryllium seen if and to what grade courts reappraisal oregon onslaught down laws connected acquiring and redistributing backstage property.

When speechmaking the Supreme Court’s narration of the facts successful Property Owners Association, 1 is reminded of Saeed Akhtar Mirza’s immortal satire, Mohan Joshi Hazir Ho. Mohan Joshi is an aged antheral surviving successful a dilapidated gathering that is astir falling apart. His landlord refuses to renovate, hoping the unsafe gathering volition person the tenants to permission and let him to redevelop and merchantability it astatine a higher price. Joshi approaches the court, wherever his existent saga begins arsenic the judicial process lone adds to his misery and provides small resolution.

The 1986 Amendment to the MHADA Act was the cleanable solution to Mohan Joshi’s occupation but that is not the examination I americium making.

When challenged by aggrieved landlords, the Bombay High Court successful 1991 upheld the 1986 amendment. The substance past travelled to the Supreme Court successful 1992 and has languished determination since. It has been referred by a three-judge seat to a larger seat of 5 judges, past to a seat of 7 judges and yet to a nine-judge bench. The nine-judge seat judgement delivered this week does not extremity the substance — it volition spell earlier another, smaller seat to determine the law validity of the 1986 Amendment. The twist successful the communicative present is that the landlords, not the tenants, person present spent 32 years (and counting) successful the Supreme Court awaiting last judgment.

The writer is simply a co-founder of the Vidhi Centre for Legal Policy. Views are personal