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Synopsis

Two Supreme Court judges Justices B V Nagarathna and Sudhanshu Dhulia on November 5, 2024 disapproved of the criticism of Justice V R Krishna Iyer made by the majority judgment authored by Chief Justice of India D Y Chandrachud on the issue of material resources of the country under Article 39(b) of the Constitution.

Justice Nagarathna said the comments on Justice Krishna Iyer are "unwarranted and unjustified".

She was apparently peeved with the observations by the CJI that "the doctrinal error in the Krishna lyer approach was, postulating a rigid economic theory, which advocates for greater state control over private resources, as the exclusive basis for constitutional governance. A single economic theory, which views the acquisition of private property by the state as the ultimate goal, would undermine the very fabric and principles of our constitutional framework".

The Supreme Court's nine-judge bench by a majority view of 7:2 yesterday held that not all private properties can be termed as material resources of the country which can be taken over for the common good.

In her judgment, Justice Nagarathna wrote that such observations emanating from this Court in subsequent times create a concavity in the manner of voicing opinions on judgments of the past and their authors by holding them doing a disservice to the Constitution of India and thereby implying that they may not have been true to their oath of office as a Judge of the Supreme Court of India. 

Similarly, Justice Dhulia in his dissenting judgment said, "Before I conclude, I must also record here my strong disapproval on the remarks made on the Krishna Iyer Doctrine as it is called. This criticism is harsh, and could have been avoided".

In her separate opinion, 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'.

She felt it is a matter of concern as to how the judicial brethren of posterity view the judgments of the brethren of the past, possibly by losing sight of the times in which the latter discharged their duties and the socio-economic policies that were pursued by the state and formed part of the constitutional culture during those times. 

"Neither the judgments of the previous decades nor the judges who decided those cases can be said to have done a “disservice to the Constitution”," she asserted.

Justice Nagarathna suggested the answer lies in the obligation that the top court, in particular, and the Indian judiciary, in general, has in meeting the newer challenges of the times by choosing only that part of the past wisdom which is apposite for the present without decrying the past judges. 

“I say so, lest the judges of posterity ought not to follow the same practice. 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 history of this great Country! Therefore, I do not concur with the observations of the learned Chief Justice in the proposed judgment," Justice Nagarathna wrote.

She wondered if the principles of liberalisation, privatisation, and globalisation adopted in India since the year 1991, reforms in the economy and structural changes that have been brought about in last three decades hold a mirror against the socio economic policies that were followed in the decades immediately after India attained independence.

“Can the judgments of this court which interpreted the Constitution to be compatible with the policies of the State then be considered to be ‘a disservice to the broad and flexible spirit of the Constitution’ and the authors of the said judgments being critiqued today,” she asked.

Justice Nagarathna said heavy capital investment in the public sector in the early decades after Independence and its failure to yield good results in the subsequent decades and the move towards disinvestment and privatisation are all experiments in achieving the constitutional goals which are static but the path to achieve them may vary with the passage of time. 

"It is in this backdrop that the judgments of this court must be viewed rather than viewing the judges who authored the judgments as doing a disservice to the Constitution," she added.

Case Title: Property Owners Association vs. State of Maharashtra