Paradigm Shifts in the Development and Judicial Discourses | Arup Kumar Sen

In the post-independence period, the dominant paradigm of development followed by the Nehru regime was State-led industrialization strategy for the ‘greater common good’. We know the pitfalls of this paradigm of development – compulsory acquisition of land by the State and displacement of people. This paradigm was in vogue even in the 1970s. However, we cannot deny the public welfare dimensions of this development regime. The judgement of the Supreme Court bench of Justice Krishna Iyer in the case between the Karnataka government and Ranganatha Reddy in 1977 in connection with the acquisition of land for the Karnataka Transport Corporation is consistent with this paradigm of development. The judgement affirmed that all private property belongs to the society. Justice Krishna Iyer stated that “constitutional problems cannot be studied in a sociocultural vacuum” and argued for “social justice” and “equity-loaded legality”.

Very recently (November 5, 2024), the Supreme Court ruled that not all private property can be deemed “material resource of the community”. The Chief Justice of India, D Y Chandrachud, wrote the majority verdict (8:1). To put it in the words of The Telegraph (November 6,2024): “Justice Chandrachud, while heading a bench that ruled that the government has no absolute right to nationalise all private properties, referred to the verdicts in the Ranganatha Reddy vs State of Karnataka case (1977), which was heard by a bench that Justice Iyer was part of, and the subsequent Sanjeev Coke vs Bharat Coke case (1982), heard by a bench that had justice Reddy…” Justice Chandrachud said:

“In essence, the interpretation of Article 39 (b) adopted in these judgements is rooted in a particular economic ideology and the belief that an economic structure which prioritises the acquisition of private property by the state is beneficial for the nation…The doctrinal error in the Krishna Iyer approach was postulating a rigid economic theory, which advocates for greater state control over private resources, as the exclusive basis for constitutional governance.” (Quoted in ibid.).

The majority verdict of the Supreme Court, drafted by the Chief Justice of India, testifies that it carries the signature of neoliberal governance, the pillars of which are valorization of private property and dismantling of common property resources (CPRs). This is evident in the dissenting observation made by Justice B V Nagarathna of the Supreme Court, disapproving the critical remarks of Justice D Y Chandrachud about the two former judges of the Court: “Merely because of the paradigm shift in the economic policies of the State to globalization and liberalization and privatization, compendiously called the ‘Reforms of 1991’, which continue to do so till date, cannot result in branding the judges of this Court of the yesteryears ‘as doing a disservice to the Constitution’” (Quoted in ibid.).

It should be mentioned in this connection that so many human rights activists are languishing in jails in contemporary India, some even dying immediately after being released from jails with precarious health conditions. In this context, Justice Krishna Iyer’s words pronounced in a landmark judgement reverberate in our minds: “the government cannot put fetters on the rights of citizens”.