Editorial: Property Ruling: The Private Must Not Encroach Into The Public Domain

As Chief Justice of India Dhananjaya Y Chandrachud retires, one of the significant judgments he authored in the past week brought back the focus on a contentious interpretation of a Constitutional provision. This corresponds to the rights over private property versus the State’s power of eminent domain to acquire it for public good. The nine-bench judgment, on a decades-old case between the , laid down principles and a non-exhaustive list of circumstances in which the State can acquire private property using its eminent domain status. It took the view that the “material resources of the community” may include private property but not all forms of private property; it specified that this could be “context-dependent” and set down a non-exhaustive list of factors to decide if a private property is, indeed, a material resource of the community — such as its scarcity and role in the community’s well-being.

The capitalist liberal view has celebrated the judgment for finally ring-fencing private property while the progressive set has its misgivings. The latter is not wrong. Article 39 (b) calls upon the State to make policies which ensure “that the ownership and control of material resources of the community are so distributed as best to subserve the common good”. Property owners, however, have challenged the acquisition of their land or holdings on the basis of Article 14 or Article 19. This judgment offers grounds to assert that the apex court has diverged from the socialist spirit of Article 39 (b) and previous judgments of stalwart judges like Justice VK Krishna Iyer to somehow limit the State’s reach and power.

This cannot be a good development when public resources, including land, have been increasingly handed over to private companies under one guise or another when income and wealth inequalities are the highest in India since the British Raj. It may be the dream of liberal capitalists to see the State wither away — it has withdrawn from several obligations and responsibilities such as in housing and education — but to allow this within the ambit of law is hardly cause for cheer for the rest. Justice Sudhanshu Dhulia dissented to hold that the material resources of a community do, indeed, include all private property — a small relief. In a country where not all private property is treated fair when it comes to acquisition — that belonging to the poor or marginalised is often summarily usurped — the judgment could be interpreted to suit private interests rather than the community good.