SC: Kesavananda Bharati Verdict Sets Limits on Amendment of Constitutional Principles

The Supreme Court reinforced the "subservient" role of the judiciary to the 1973 Kesavananda Bharati verdict that upheld Article 31C of the Constitution. Article 31C protects laws enacted for the "common good" and taking over private property. The Minerva Mills judgment (1980) set aside the expanded immunity of laws made under all Directive Principles of State Policy. However, the court held that the pre-amended Article 31C remains valid. The Maharashtra Housing and Area Development Authority (MHADA) Act's provisions, which allow the state to acquire cessed buildings with tenant requests, are challenged by property owners claiming discrimination and dispossession. The hearing will continue on Tuesday.

The Supreme Court on Thursday made it clear that it is ''subservient'' to the historic 13-judge bench verdict in the Kesavananda Bharati case which upheld a part of Article 31C of the Constitution meant to save laws if they are enacted to subserve ''common good'' by taking over material resources including private assets.

The path-breaking 1973 Kesavananda Bharati judgement on ''basic structure'' doctrine had clipped the vast power of Parliament to amend the Constitution and simultaneously gave the judiciary the authority to review any amendment.

It also upheld the constitutionality of a provision of Article 31-C, which implied that amendments for implementing the Directive Principles of State Policy (DPSP), if they do not affect the 'basic structure' of the Constitution, shall not be subjected to judicial review.

The observations came from a nine-judge bench headed by Chief Justice D Y Chandrachud which was hearing arguments for the third day to decide the contentious legal question about whether private properties can also be considered ''material resources of the community'' under Article 39 (b) of the Constitution and, consequently, can be taken over by the State to subserve ''common good''.

''We are again subservient to a decision of the 13 judge bench (in the Kesavananda Bharati case). It wasn't a judgement of five judges,'' said the bench, which also comprised justices Hrishikesh Roy, BV Nagarathna, Sudhanshu Dhulia, JB Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih.

The CJI was responding to the submissions advanced by the counsel for petitioners, including the Property Owners Association (POA), that Article 31C was set aside by a five-judge bench verdict in the Minerva Mills case in 1980 and hence, the protection to the laws made under Article 39 (b) and (c) goes.

The top court had, in the Minerva Mills case, declared two provisions of the 42nd Amendment which prevented any constitutional amendment from being ''called in question in any Court on any ground'' and accorded precedence to the Directive Principles of State Policy over the fundamental rights of individuals as unconstitutional.

The CJI said the Minerva Mills judgement set aside the expansion of the immunity granted to the laws made in furtherance of all DPSPs and hence, the question to deal with is whether the older and un-amended Article 31C of the Constitution gets revived.

''The Minerva Mill (judgement) couldn't have doubted the Kesavananda Bharati (verdict),'' the CJI said, adding, ''So what is emerging is this, that the pre-amended Article 31C is valid, the post amended 31C which expanded the ambit of Article 31C to include all the DPSPs is invalid.'' The legal arguments and observations of the bench assume significance in view of the fact that the 16 petitioners, including the Property Owners Association (POA) of Mumbai, are opposing Chapter VIII-A of the Maharashtra Housing and Area Development Authority (MHADA) Act.

The provisions, which were inserted in 1986, empower the state authorities to acquire cessed buildings and the land they are built on if 70 per cent of the occupants make such a request for their restoration.

The MHADA law, made in pursuance of Article 39(b) of the Constitution, which is part of the DPSP, is saved by Article 31C from judicial scrutiny and makes it obligatory for the State to create policy towards securing ''that the ownership and control of the material resources of the community are so distributed as best to subserve the common good''.

The state government, represented by Solicitor General Tushar Mehta, said the MHADA Act provisions are saved by Article 31-C of the Constitution, which was inserted by the 25th Amendment Act of 1971 with an intention to save laws giving effect to certain DPSPs.

The solicitor general told the bench that ''the only issue that has been referred to a larger Bench of 9-judges is whether the expression 'material resources of the community' under Article 39 (b) covers privately owned resources or not.'' He also said, ''It is clear that the un-amended Article 31-C, to the extent upheld by the judgment in the Kesavananda Bharati case, is valid and in operation''.

The hearing in the case remained inconclusive and will resume on Tuesday.

The Property Owners Association and others have challenged Chapter VIII-A claiming that the provisions discriminate against the owners and attempt to dispossess them of their properties.

The lead plea was filed by POA way back in 1992 and it was referred thrice to larger benches of five and seven judges before being referred to a nine-judge bench on February 20, 2002.

While referring the issue to a nine-judge bench in 2002, the previous bench had said, ''Put shortly, the question is as to the interpretation of Article 39(b) of the Constitution which speaks of the distribution for the public good of the ownership and control of the material resources of the community. '' Mumbai is a densely populated city with old, dilapidated buildings that house tenants despite having become unsafe due to lack of repairs.

In order to repair and restore these buildings, the Maharashtra Housing and Area Development Authority (MHADA) Act, 1976 imposes a cess on its occupants which is paid to the Mumbai Building Repair and Reconstruction Board (MBRRB) that oversees repair and reconstruction of these ''cessed buildings''.

''Take a case like these buildings in Mumbai. Technically, you are right that these are privately owned buildings, but what was the reason for the law (MHADA Act)... we are not commenting on the legality or the validity of the law that will be tested independently,'' the CJI had said.

''The reason why the state legislature came out with this (Act) was that these are old buildings of the 1940s...With a kind of monsoon in Mumbai, these buildings get dilapidated because of the saline weather,'' Justice Chandrachud had said.

There are around 13,000 cessed buildings in Mumbai which need restoration or reconstruction.

However, their redevelopment is often delayed due to differences between tenants or between owners and tenants on appointing a developer.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)