Last year, in his penultimate judgment as the Fiftieth Chief Justice of India, Justice D. Y. Chandrachud presided over a nine-judge constitutional bench reference in Property Owners’ Association v. State of Maharashtra. Writing on behalf of the majority of seven judges, Justice Chandrachud upended fifty-year-old case law by a five-judge constitutional bench of the Court in Sanjeev Coke Manufacturing Co vs. Bharat Coking Coal Ltd. At issue in this case was the interpretation of Articles 31 C and 39(b) and (c) of the Constitution. While Article 39 was part of the original constitutional text adopted in 1950, Article 31C was inserted in the text of the Constitution by the Twenty-Fifth constitutional amendment in 1971 by the Indira Gandhi-led Congress (I) government. Read together, these provisions established the supremacy of the Directive Principles of State Policy over Fundamental Rights guarantees, thereby reversing the original constitutional compromise embodied in the Constitution, pursuant to which Fundamental Rights guarantees were enforceable and Directive Principles, though fundamental in the governance of the country, were non-enforceable.
According to the conventional political and scholarly narrative, this reversal of the original constitutional compromise was necessitated by the challenges posed to the democratically elected state’s economic development and social redistribution agenda by Fundamental Rights, especially the Fundamental Right to Property. In this talk, Namita Wahi will evaluate the recent Supreme Court judgment against the backdrop of the contentious trajectory of the Fundamental Right to Property which is the only fundamental right to have been abolished in 1978. In so doing, she will show that the relationship between property and economic development on the one hand, and property and democracy on the other, is far more complex and context dependent than either theorists of economic development or conventional political and scholarly accounts of the circumstances that led to the abolition of the Fundamental Right to Property have tended to admit. Through a historical account of Supreme Court cases on the Fundamental Right to Property from 1950-1978, Wahi will show that in the particular context of India, far from being an impediment either to democracy or development, the Supreme Court’s enforcement of the right to property may have helped protect democracy against majoritarianism/authoritarianism, without necessarily derailing the development agenda.
About the speaker
Dr. Namita Wahi is a Senior Fellow at the Centre for Policy Research, and Founding Director of the Land Rights Initiative. She is also a Global Fellow at the Centre for Law and Social Transformation, which is jointly hosted by the Chr. Michelsen Institute and the University of Bergen. Positioned at the intersection of academia and policy, Namita’s scholarship has informed her extensive policy engagements with constitutional bodies like the National Commission on Scheduled Tribes, and central and state governments, like the Department of Land Resources at the Ministry of Rural Development, the NITI Aayog, and the State Government of Jharkhand.