In a majority 7:2 ruling, the Supreme Court on Tuesday held that states are not empowered under the Constitution to take over all privately-owned resources for distribution to serve the “common good”. A nine-judge bench headed by Chief Justice DY Chandrachud, however, said states can stake claim over private properties in certain cases. Justice BV Nagarathna partially disagreed with the majority judgement penned by the CJI, while Justice Sudhanshu Dhulia dissented on all aspects.

The majority verdict pronounced by the CJI Chandrachud overruled Justice Krishna Iyer’s five- decade-old ruling that all privately owned resources can be acquired by the State for distribution under Article 39(b) of the Constitution.

“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,” said the majority of the judges led by CJI, supported by six Judges. The SC held that for a privately-owned property to qualify as a material resource of the community, it must meet certain tests first.

While reading her decision, Justice Nagarathna said she had concurred with the CJI-led majority on certain issues and wrote some opinions in response to Justice Dhulia’s judgement. “How does ownership and control of material resources privately owned transform into material resources of the community for distribution as best to sub serve the common good. This is the crux of my judgement,” Justice Nagarathna said.

“The enquiry about the resource in question falls under Article 39(b) must be contest specific and subject to a non exhaustive list of factors such as nature of resource, the characteristics, the impact of the resource on well being of community, the scarcity of resource and consequences of such a resource being concentrated in the hands of private players, the public trust doctrine evolved by this court may also help identify resources which fall under ambit of material resource of a community,” said the majority judgement, written by CJI.

Justice Dhulia in his dissent said it is the parliament’s prerogative to see how to control and distribute material resources. “What and when do the ‘privately owned resources’ come within the definition of “material resources” is not for this Court to declare. This is not required. The key factor is whether such resources would subserve common good. Clearly the acquisition, ownership or even control of every privately owned resource will not subserve common good. Yet at this stage we cannot come out with a catalogue of do’s and don’ts. We must leave this exercise to the wisdom of the legislatures,” he concluded.

Justice Nagarathna expressed strong reservations over Chief Justice of India (CJI) DY Chandrachud criticising former Supreme Court judges, including Justice VR Krishna Iyer, for their views on whether private property can be taken over by the State to subserve the common good. “I say that the institution of the Supreme Court of India is greater than individual judges, who are only a part of it at different stages of history of this great Country! Therefore, I do not concur with the observations of the learned Chief Justice in the proposed judgement,” said Justice Nagarathna. In a separate opinion, Justice Sudhanshu Dhulia also joined Justice Nagarathna in disapproving the harsh criticism of the Krishna Iyer doctrine in the majority judgement.

The nine-Judge Bench verdict arose in the context of the two conflicting views taken by the SC in 1978, in cases which dealt with the nationalisation of road transport services.