A nine-judge bench of the Supreme Court on Tuesday ruled by a majority judgment that not all the private properties are attributable as ‘material resources of the community’ under Article 39(b) of the Constitution and can’t be taken over by the state authorities to subserve the “common good” and that the country’s economic foundations are not on rigid economic theory to advocate greater state control over private resources.

The majority verdict authored by Chief Justice D Y Chandrachud said the interpretation that every privately-owned property could be used by the state as a material resource to “subserve the common good” postulated a “rigid economic theory which advocates greater state control of private resources”.

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Besides himself, Chief Justice Chandrachud, speaking for Justice Hrishikesh Roy, Justice J B Pardiwala, Justice Manoj Misra, Justice Rajesh Bindal, Justice Satish Chandra Sharma, and Justice Augustine George Masih overruled several verdicts post-1978 that had adopted the socialist theme and ruled that states could take over all private properties for the common good.

The majority verdict said that the interpretation that every privately owned property could be used by the state as a material resource to “subserve the common good” postulated a “rigid economic theory which advocates greater state control of private resources”.

Partially concurring with the majority opinion, Justice B.V. Nagarathna gave a separate judgment, while Justice Sudhanshu Dhulia dissented with the majority view on all aspects.

Justice Nagarathna said, “The term “distribution” has no doubt a wide connotation but vesting in the State of a particular privately owned “material resource” or nationalisation of the same are only conditions precedent to distribution which has to comply with Article 300A of the Constitution. Further, a resource that has vested in the State or a resource retained by a State on nationalisation could be utilised by the State to subserve the common good as a material resource of the community. The public trust doctrine would apply to such material resources.”

Expressing strong reservations over Chief Justice Chandrachud criticising former Supreme Court judges, including Justice V.R. Krishna Iyer for their views on whether the private property can be taken over by the State to subserve the common good, Justice Nagarathna said, “I say that the institution of the Supreme Court of India is greater than individual judges, who are only a part of it at different stages of the history of this great Country! Therefore, I do not concur with the observations of the learned Chief Justice in the proposed judgment.”

Taking exception to Chief Justice Chandrachud adversely commenting on the economic outlook of Justice Krishna Iyer, Justice Nagarathna further said, “Krishna Iyer, J. adjudicated on the construction of ‘material resources of the community’ in the backdrop of a constitutional, economic and social culture that gave primacy to the State over the individual in a broad-sweeping manner. As a matter of fact, the 42nd Amendment had, inter alia, inserted the word ‘Socialist’ into the Preamble to the Constitution … On a conspectus understanding of all contributing factors such as the discussions in the Constituent Assembly and the tide of the times that found in the broad house of economic democracy a legitimate State policy, can we castigate former judges and allege them with ‘disservice’ only for reaching a particular interpretive outcome?”

Stating that the comments against Justice Krishna Iyer in the majority judgment were “unwarranted and unjustified”, Justice Nagarathna said, “Merely because of the paradigm shift in the economic policies of the State to globalisation and liberalisation and privatisation, compendiously called the ‘Reforms of 1991’, which continue to do so till date, cannot result in branding the judges of this Court of the yesteryears ‘as doing a disservice to the Constitution.”

Justice Nagarathna has objected to CJI Chandrachud for saying “The doctrinal error in the Krishna Iyer approach was, postulating a rigid economic theory, which advocates for greater state control over private resources, as the exclusive basis for constitutional governance.”

Joining Justice Nagarathna, Justice Dhulia too disapproved of the harsh and avoidable criticism of Justice Krishna Iyer in the majority judgment.

“Before I conclude, I must also record here my strong disapproval of the remarks made on the Krishna Iyer Doctrine as it is called. This criticism is harsh, and could have been avoided,” Justice Dhulia said.

Having said that not all private properties can be acquired by the government for the common good under Article 39(b), the majority judgment said, however, that the State can stake claim over private properties in certain cases.

The top court judgment came while adjudicating the question of whether material resources of the community under Article 39(b), which states that the government should create policies to share community resources fairly for the common good, includes privately owned resources. The verdict is based on the petitions that initially came up in 1992 and subsequently way back in 2002 referred to a nine-judge bench.

Article 39(b) of the Constitution provides that the state shall direct policy to ensure “ownership and control of the material resources of the community are so distributed as best to sub-serve the common good”.