In a startling abridgement of sovereign power, a nine judge bench of the Supreme Court has fundamentally altered the socialist flavour of the Constitution. This flavour had been exploited in varying degrees by successive governments since the early 1950s. At issue before the bench was an interpretation of the term ‘material resources’ and the power under Article 39 (b) and (c) to declare private property as such, so that it could be acquired by the State. Article 39(b) which is actually a Directive Principle says: “The state shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.”
The Court has now said that this is not an untrammelled power. It has also thus reversed the Court’s own predisposition, which became more pronounced after 1972, to cite public interest as a reason for diminishing the right to private property. Overall, the power of governments to act unfairly stands reduced and that’s something the country must be grateful for. It should be noted here that this right hasn’t been a fundamental right in India since the end of the 1970s. The Court has thus rid both itself and the Executive of an expanded reach that was based more on ideology than fairness. The importance of this cannot be underestimated because ever since the socialist capture of mainstream political, economic and judicial thought, there has not only been a completely avoidable ambiguity regarding private property but also the spectre of dispossession of hapless citizens by the State after citing vaguely defined public interest. It is also important to point out that, over the years, the Court itself has, in a large number of judgments, resisted this approach.
But the problem was that the room for expanding State power was always there under various provisions of the Constitution. These could, and were, used by ideologically committed judges, or even judges seeking to please the executive. These led to judgments that caused confusions of both interpretation and precedent while boldly expanding State power. That said, we should also not forget that the idea of community property, or what’s called ‘commons’ in the West, has been intrinsic to societies all over the world. The problem, however, has been the tendency of the sovereign to deprive citizens of their property without adequate compensation.
The 4th amendment to our Constitution dealt with these issues of compulsory acquisition and compensation as far back as 1955. However, Article 31 of the Constitution dealing with the right to property was diluted to allow the State more flexibility to acquire property. Hopefully now the problem caused by Article 39 and similar provisions of the Constitution will be hugely mitigated. It will be very interesting to see how the effects of this judgment play out in the years to come, especially if the Executive decides, as it has sometimes done in the past, to dilute these effects.