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Explained: If the government takes over your property, will the Constitution justify it? Know Article 39(B)

Author: Aditya Prasanna Bhattacharya and Aditya Falnikar
Amidst the elections for the formation of the 18th Lok Sabha, the ruling party and the opposition have clashed on an important question. The question is, to what extent is India ready to tolerate inequality? Congress in its manifesto has promised to conduct a caste census across the country to find out the socio-economic status of various caste and sub-caste groups. Congress officials have expressed displeasure over the unfair possession of huge wealth by a few selected individuals. BJP has hit back and accused Congress of doing appeasement politics. BJP says that Congress actually intends to snatch the property of common people and distribute it among the minorities.

the issue is philosophical

Amidst this tussle, the most important question emerges – whose material resources are the country’s? While this debate continues in election rallies and TV newsrooms, the Supreme Court is silently preparing to answer this question. Originally adjudicating on property disputes in 1992, the Supreme Court has felt the need to re-interpret Article 39(B) of the Constitution. This article is a ‘directive principle’ which urges the state to formulate policies to ensure that ‘ownership and control of the material resources of the community are distributed in such a manner as to best serve the common good.’

This is not just an academic question

Generally the Directive Principles of State Policy cannot be enforced by the Court. One member of the Constituent Assembly even called this entire part a ‘dustbin of emotions’. But Article 39(b) is different. This is supported by Article 31C, which provides that laws made by Parliament under Article 39(b) are not invalid even if they violate fundamental rights such as equality and freedom of trade. It is notable that the relationship between the two provisions is also an issue before the Supreme Court in this case.

We should not give such a message by interpreting 39(B) and 39(C) that there is no protection of personal rights in the society.

DY Chandrachud, Chief Justice, Supreme Court

basic approach to interpretation

Of course, the term ‘physical resources’ should also include public resources. The question is simple – does it also include private resources?

pay attention

The government nationalized 14 private banks in 1969 to ensure availability of loans to a large section of the population.

On the other hand, government control over business without adequate administrative structures also leads to inefficiencies. Air India is an example of this.

What are the possibilities?

A recent study conducted by the World Inequality Database states that economic inequality in India has become higher than it was during British rule. In view of this, Parliament could potentially introduce a ‘property tax’, under which all citizens with a certain net worth would be taxed at 2% of their wealth. There will be no point challenging the law for violating fundamental rights like ‘equality’, ‘life and personal liberty’ and ‘freedom of trade’ as Article 39(B) supported by Article 31C will come into force.

Another example includes a law to acquire all privately owned forest land across the country and distribute it among tribal communities who have been displaced due to climate change, infrastructure projects, internal conflicts, etc. The mere reference to Article 39(B) in such an Act would save it from being struck down.

The Directive Principles of State Policy are in accordance with the Gandhian ethos and ideology… We accumulate wealth for future generations of the family, but we also accumulate wealth for the wider community. This is the basic concept of sustainable and sustained development which we call equitable hereditary gift.

DY Chandrachud, Chief Justice, Supreme Court

real implications

The implications of this case go beyond the immediate political debate. Its significance lies in how the Supreme Court interprets the constitutional guarantee of equality and the power it gives to the state to carry out this guarantee. A directed interpretation would assign the role of reducing inequality to the private market, in the hope that wealth will leak out and reach everyone. A broader interpretation would give the state greater powers to intervene in private affairs to ensure fair redistribution of wealth. The assumption behind this provision is that the State may be better able to ensure equality. This may be true in some cases, but very false in others.

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Gandhian view of Article 39(B)

Supreme Court Chief Justice DY Chandrachud said that Article 39(B) cannot be interpreted in a purely communist or socialist sense. He saw Gandhian spirit in this provision. So there is a possibility that the Supreme Court may give us a more nuanced interpretation of Article 39(b). Personal property cannot be excluded entirely, but certain types of personal property can be placed in a trust.

The author is associated with Vidhi Center for Legal Policy.

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