Supreme Court: Article 39(b) shouldn’t be read like there is no protection for private rights

Agreeing, Solicitor General Tushar Mehta, appearing for the Maharashtra government, said that such an interpretation may be counter productive and “may not be in national interest”.

The bench, also comprising Justices Hrishikesh Roy, B V Nagarathna, Sudhanshu Dhulia, J B Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih, is answering a reference whether the phrase “material resources of the community” in Article 39(b) of the Constitution includes what is privately owned.

The reference to the nine-judges had arisen in the context of the two views emerging in the 1978 decision in ‘State of Karnataka And Anr Etc vs Shri Ranganatha Reddy & Anr’. The case dealt with the nationalisation of road transport services. One of the opinions by Justice V R Krishna Iyer was that material resources of the community would include both natural and man-made, publicly and privately owned resources.

Tuesday, the CJI said “the formulation by Justice Krishna Iyer is a little too extreme. What that says (is) since the community consists of individuals and therefore every individual is a part of the community, the material resources of the community would therefore also mean resources of the individual”.

“That may be a little extreme. Also, we must now be cognisant of the fact that all these constitutional provisions have an evolution. We are now interpreting them not in the context of the India of the 1950s,” the CJI pointed out.

“Nationalisation to disinvestment. That is the transition,” Mehta was quick to add.

“Therefore, 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 be that certain resources which are invested in private individuals may still have some general bearing of public interest or welfare of the broad community, which requires regulation by the state,” the CJI said.

The CJI added that “you can’t attribute 39(b), at least in today’s times as sort of a definition, which gives expression to an unbridled agenda of communism or socialism. That’s not our Constitution today. We still protect private property, we still protect the right to carry on business… Therefore, our interpretation must also be nuanced to take care of what India is today and India is moving towards tomorrow”.

Mehta said that “investment in the private sector is now boosting the common good than what was in 1949”.