“Can We Castigate…”: Top Court Judge Red-Flags Criticism Of Past Judges

Judges should be mindful of not castigating past judges only because they reached a different outcome while deciding a case, Justice BV Nagarathna said today. The remark was made as the Supreme Court ruled that all privately owned property does not qualify as community resources that the State can take over for the common good.

The landmark verdict was delivered by a nine-judge Constitution bench led by Chief Justice of India DY Chandrachud and comprising Justice Hrishikesh Roy, Justice Nagarathna BV, Justice Sudhanshu Dhulia, Justice JB Pardiwala, Justice Manoj Misra, Justice Rajesh Bindal, Justice SC Sharma and Justice AG Masih. The bench passed the ruling with an 8-1 majority. Three judgments were authored — the Chief Justice wrote one for himself and six colleagues, Justice BV Nagarathna wrote a concurrent but separate judgment and Justice Sudhanshu Dhulia dissented.

One of the past verdicts referred to extensively during today’s judgment was the 1977 ruling in the State of Karnataka vs Ranganath Reddy case. This case addressed the issue of nationalisation of private transport companies and the extent to which the State can intervene in private enterprises. The matter had come up when the then Karnataka government brought a law to nationalise private bus services. A seven-judge bench had then ruled with a 4-3 majority

that all private property did not fall within the ambit of material resources of the community. Justice VR Krishna Iyer, one of the judges in the minority, had contended that both public and private resources fell within the ambit of “material resources of the community” under Article 39(b) of the Constitution.

“We have been guided by the thought that an all-too-large gap between the law and public needs, arising out of narrow notions, must be bridged by broadening the constitutional concepts to suit the changing social consciousness of the emerging Welfare State. Institutional crises and confrontations can be and should be avoided by evolving a progressive interpretation, discarding over-sensitivity to under-valuation when private property is taken for public good,” Justice Iyer had said.

Delivering the judgment today, the Chief Justice said, “Does material resource of a community used in 39B include privately owned resources? Theoretically, the answer is yes, the phrase may include privately owned resources. However, this court is unable to subscribe itself to the minority view of Justice Iyer in Ranganath Reddy. We hold that not every resource owned by an individual can be considered a material resource of a community only because it meets the qualifier of material needs.”

The Chief Justice also pointed out that Justice Iyer referred to Karl Marx in his judgment. “The judgment is rooted in the economic ideology that private property can be used by the state for the welfare of people. The role of this court is not to lay down economic policy but to facilitate to lay down economic democracy,” he said, adding that the country’s economy has shifted from a socialist approach to a liberal economic regime.

In response, Justice Nagarathna said Justice Iyer’s judgment on community resources came against a backdrop of a constitutional and economic structure that gave primacy to the State in a sweeping manner. “As a matter of fact, the 42nd amendment included ‘socialist’ in the Constitution. Can we castigate former judges and allege them with disservice only because of reaching a different interpretative outcome?” the judge asked.

She then said it is a “matter of concern” when judges view past judgments by losing sight of the time when they were delivered and the socio-economic policies that were followed then. “Merely after liberalisation, the paradigm shift after 1991 reforms, it cannot lead to the branding the judges of this court of yesteryears as to doing a disservice to the Constitution,” she said. “I may say that such observations emanating from this court and calling that they were not true to their oath of office… but just by having a paradigm shift in economic policies… judges of posterity should not follow the practice. I do not concur with the opinion of the Chief Justice in this regard,” she added.

Justice Nagarathna, however, agreed with the majority judgment and said a “flexible interpretation” of the Constitution is needed as times change.