Chief Justice DY Chandrachud while being part of the nine-judge Bench also comprising Justice Hrishikesh Roy, Justice BV Nagarathna, Justice Sudhanshu Dhulia, Justice JB Pardiwala, Justice Manoj Misra, Justice Rajesh Bindal, Justice Satish Chandra Sharma, and Justice AG Masih, said today while considering the scope of Article 39(b) and (c) that the said constitutional provision, cannot, in today's times, be attributed a definition which gives expression to an unbridled agenda of communism of socialism.

While explaining Article 39(b) and (c) of the Constitution of India, Solicitor General Tushar Mehta, at the start of his arguments today, cited the example of a case where a rare mineral is discovered in private property. According to him, it will be treated as a material resource that can be distributed for the common good as per Article 39(b).

Chief Justice DY Chandrachud responded to that example by saying, "Your example is very apposite. What your example shows is, that there may be instances where in respect of private property, there is community interest. This is clearly a case of that nature viz. though the property is of a private individual, underlying that property, you have, say, Uranium or a very rare resource, which is really a resource of the community. Therefore, there can't be a very strict dichotomy between private and public. At the same time, the formulation by Justice Krishna Iyer (Justice V.R. Krishna Iyer's opinion in State Of Karnataka vs Shri Ranganatha Reddy- 1977) is a little too extreme. What that formulation says is, since the community consists of individuals and therefore every individual is a part of the community, the material resources of the community will also mean resources of the individual. That may be a little extreme. I will tell you, also we must now be cognizant of the fact that all these constitutional provisions have an evolution. We are not interpreting them in the context of India of 1950".

"Nationalization to disinvestment. That is the transition", Tushar Mehta added.

The Chief Justice continued, "Therefore, we must adopt an interpretation which is in keeping with the changing nature of the times. At the same time, we must also have an enduring interpretation. So it may well be that certain resources which are vested in private individuals may still have some general bearing of public interest or community welfare or welfare of the broader community which requires regulation by the state".

The SG then gave the example of the need to acquire the land of an individual, which will be a material resource which will be acquired for distribution, for a common good.

"Article 39(b) postulates that there has to be a diversification of ownership and control. Why does it say ownership and control of the material resources of the community is distributed? This is speaking about the need for diversification of ownership and control to protect the common good. That is you don't want the concentration of economic resources in the hands of.. if they are material resources of the community (as added by the SG)", the CJI said.

"Restricted way of looking at it is, you total up the wealth of the entire nation, divide it by the people, whom you feel that needs to be distributed, and whatever is the figure- distribute it. That is not what Article 39 means. That will be a lack of understanding of governance as well as economy", Tushar Mehta said.

The CJI then said, "You can't attribute to Articles 39(b) and (c), at least in today's times, a sought of a definition which gives expression to an unbridled agenda of communism of socialism. That is not our Constitution today. We still protect private property. We still protect the right to carry on business. We still want as a part of a national agenda, I won't say government's agenda, because this is across.. From 1990, irrespective of party line or government, we have now expressly adopted a policy of encouraging investment by the private sector, realising that until then it was all right that the government was involved in very high levels of investment in industry. Now truly, if we have to have a productive enterprise, you have to encourage private investment. And therefore our interpretation must also be nuanced to take care of what India is today and what India is moving towards tomorrow".

Tushar Mehta agreed and said that investment in the private sector is now boosting the common good more than what was envisaged in 1947.

The CJI, in agreement, said, "For instance, in 1950, nobody envisaged that you would have electricity distribution by private companies on such a scale. They couldn't have envisaged that private sector will be building up infrastructure like roads, like ports. We may not have a strict dichotomy, that something which is totally privately owned can never be a material resource of the community. That will be a very extreme statement. But it will be an equally extreme statement to postulate that everything which is private is the material resource of the community, which the Attorney General argued".

The SG then clarified that he is not arguing contrary to what the AG argued, but is adding nuances to his arguments. "So far as the view expressed by My Lord Justice Krishna Iyer is concerned, it deserves respect, but with respect, I would personally and on behalf of the government, would not subscribe to that view at this stage of the country's economic development", Mehta submitted.

The CJI agreed and said, "Exactly, we will be sending a message across, because what we write will send a message of what India is and what India aspires to be. We don't want to dilute the social significance of 39(b) and (c). At the same time, we should not be sending a message by interpreting 39(b) in such a wide sense that there is no protection of private rights in society at all! How will we attract private investment if we say that there is no protection of..... But we will not go as far as to say that any thing which is private will never be a material resource of the country".

"That cannot be. That will be another extreme", the SG said in agreement and continued with his arguments.

During a previous hearing, Chief Justice Chandrachud had remarked that the directive principles in the Constitution have their foundation in the Gandhian ethos, and that our ethos regards property as something which is held in trust; and that we don't go as far as to adopt the socialistic model which says that there is no private property at all.

The case is part heard and the hearing will continue tomorrow. Senior Advocate Rakesh Dwivedi has not finished his arguments on behalf of the Respondents today, and will continue tomorrow.

Today's hearing can be viewed here.

Chief Justice DY Chandrachud

Verdictum News Desk