Wealth Inequality Still Enormous; Views Of Krishna Iyer & Chinnappa Reddy Haven't Lost Relevance : Justice Sudhanshu Dhulia In Dissent

In a nine-judge Constitution bench judgment where majority held that all private properties cannot form part of the 'material resources of the community' which the State is obliged to equitably redistribute as per the Directive Principles of State Policy under Article 39(b) of the Constitution, Justice Sudhandhu Dhulia dissented.

The bench headed by Chief Justice of India DY Chandrachud comprising Justices Hrishikesh Roy, B.V. Nagarathna, Sudhanshu Dhulia, J.B. Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih by 7:2 held that some private properties may come under Article 39(b) provided they meet the qualifiers of being a 'material resource' and 'of the community'. Whereas, Justice Nagarathna partially concurred.

The majority disagreed with the view expressed by Justice Krishna Iyer in State of Karnataka v. Ranganatha Reddy (1978) that private properties can be regarded as community resources. Also, the judgment in Sanjeev Coke Manufacturing Company vs. Bharat Coking Coal Ltd. and Anr. (1983) which endorsed Justice Iyer's view was held to be erroneous.

In a 97-page dissent, Justice Dhulia opined that he completely agreed with the majority judgment authored by the CJI on Article 31C that the unamended provision to the extent held valid in Kesavananda Bharati survives.

However, he disagreed on the point of Article 39(b) and held that privately owned resources are a part of the 'material resources of the community' as against the observation of the majority that not all privately owned resources are 'material resources of the community'.

Justice Dhulia stated that there was no need for the "pre-emptive determination" whereby the majority gives a non-exhaustive list of factors to determine which resources can be considered as "material resources".

Constituent Assembly deliberately not limited 'material resources'

Justice Dhulia's opinion dwells on the historical root of the issue including the Constituent Assembly debates and also engages with both the subjective and objective interpretation of the Constitution to explore what was in the minds of the Constitution framers and what were the objective realities of the time when it was written.

Travelling through the historical background of the Constitution, Justice Dhulia answered the direct question by stating that there has not existed any judgment until now which has held that 'material recourses of the community' do not include private property.

He referred to the Constituent Assembly debate where K. T. Shah proposed to elaborate as to what would be “material resources of the community”. According to him, these would include all the natural resources, minerals, etc, Justice Dhulia stated. He added that the amendment was turned down by the Assembly.

Justice Dhulia said: "Dr. Ambedkar while denying this amendment also gave his reasons, which were that it is always better to keep some expressions in general terms since these are being incorporated in a Constitution. In case one elaborates the phrase “material resources”, the Constituent Assembly would be arresting and limiting its meaning. From this it can also be deducted that according to Dr. Ambedkar, a generalised term would include the entire resources of the community, including private property, and that also seemed to be the general consensus."

He pointed out that it's important to note that in turning down the proposed amendment of Shah, the Constituent Assembly did not think it correct to limit “material resources” to specified resources alone and it was deliberately left as a broad-based term – “material resources of the community”.

Justice Dhulia said: "In doing so, Dr. B. R. Ambedkar showed great wisdom and acumen as the Chairman of the Drafting Committee of the Constitution. He understood well that the Constituent Assembly is not in the process of making an ordinary statute, it was the Constitution which was being made. A Constitution has to be drafted in a manner to withstand the test of several years and generations, and therefore, by necessity certain provisions and words have to be in general terms, which is referred to as 'Majestic Generalizations'."

Material resources in Article 39 (b) without privately owned resources being a part of it makes no sense

Justice Dhulia held that there was only a 'doubt' raised whether material resources of the community would include private owned resources and said: "There should be no confusion that the expression “material resources of the community” used in Article 39(b) includes privately owned resources. This has been the consistent view of this Court, as already referred above. It could not have been otherwise. To my mind a reference to material resources in Article 39 (b) without privately owned resources being a part of it, does not even make any sense. It is only when we include privately owned resources, as a part of the “material resources of the community” that the purpose of Articles 38 and 39 is fully realised. It is only then that the socialist and democratic principles incorporated in our Constitution get their true meaning."

Justice Dhulia further added: "The aims and objects of our freedom fighters, their vision for a just and equitable society, the extensive debates in the Constituent Assembly, the provisions incorporated in Part IV, even other than Article 39 (b), all have to be taken into consideration and they leave us with no doubt that privately owned resources are a part of “material resources of the community”, as given in Article 39(b)."

Articles 39(b) & (c) to be read in light of Article 38

Adding to this, Justice Dhulia said that clauses (b) and (c) of Article 39 have to be read in light of Article 38 of the Constitution. He said: "We also have to read clauses (b) and (c) of Article 39 together, and in light of Article 38 of the Constitution of India, in order to get a better perspective. Article 39(c) mandates that our economic system should not result in concentration of wealth and means of production (in a few hands). Material resources (both private and public) of the community must subserve the common good. The debates in the Constituent Assembly show that efforts made by some of the members to specify the scope of material resources were turned down for this reason."

He noted: "The incorporation of Article 38 as well as Article 39(b) and (c) in Part IV of our Constitution was based on the prevalent philosophy of the time and the path of development India chose to follow. The interpretation given to the above provisions by this Court, particularly in Ranganatha Reddy and Sanjeev Coke also has its contextual relevance. Perhaps in some ways situations have changed. What has not changed, however, is the inequality. There is today a political equality and there is also an equality in law, yet the social and economic inequalities continue as cautioned by Dr. Ambedkar in his speech in the constituent Assembly on November 25, 1949.

The inequality in income and wealth and the growing gap between the rich and the poor is still enormous. It will therefore not be prudent to abandon the principles on which Articles 38 and 39 are based and on which stands the Three Judge opinion in Ranganatha Reddy and the unanimous verdict in Sanjeev Coke."

Article 31C protection not available if private owned resources not a part of 'material resources of the community'

Justice Dhulia also opined that the protection of Article 31-C is only required when private property and privately owned resources are being acquired to subserve the common good and while doing so it is violating Articles 14 and 19 of the Constitution.

He noted: "When public resources are being utilised for common good, there is no violation of Article 14 and 19 of the Constitution of India and consequently there is no requirement of Article 31-C. As we have already referred in the preceding paragraphs, the unamended Article 31-C to the extent its validity has been upheld in Kesavananda Bharati still stands as a part of the Constitution and exists as a protective umbrella to the laws which are made in pursuance of Article 39 (b) and (c) of the Constitution of India."

Justice Dhulia concluded by stating: "The meaning which must be given to “material resources of the community” is what has been given to it in Ranganatha Reddy by the Three Judges and what has been followed in the Constitution Bench decision in Sanjeev Coke. To my mind, this has been the correct interpretation of the phrase “material resources of the community”.

To reiterate what was said by Justice Krishna Iyer in Ranganatha Reddy:

“… material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Everything of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the community."

Justice Dhulia also registered strong disapproval of the remarks made by the CJI on the Krishna Iyer doctrine and called the criticism harsh, which could have been avoided.

"The Krishna Iyer Doctrine, or for that matter the O. Chinnappa Reddy Doctrine, is familiar to all who have anything to do with law or life. It is based on strong humanist principles of fairness and equity. It is a doctrine which has illuminated our path in dark times. The long body of their judgment is not just a reflection of their perspicacious intellect but more importantly of their empathy for the people, as human being was at the centre of their judicial philosophy," he wrote.

Other reports about the judgment can be read here.

Case Details: Property Owners Association v. State of Maharashtra (CA No.1012/2002) & Other Connected Matters