Recently, an ideological dialogue happened in the Indian Supreme Court on Article 39(b) of the Constitution. The judgment by a nine-judge Bench in Property Owners Association v. State of Maharashtra last Tuesday reflects a division of opinion on the topic, though the majority on the Bench laid down the law.

Constitutional socialism, like political socialism, has remained a controversial issue in the Indian juridical discourse. Article 39(b) of the Constitution, together with other provisions under the directive principles in part IV of the Constitution, embodies an idea of constitutional socialism. This, however, is a contested argument. To understand the legal and political ramifications of the verdict, let us now examine the crux of the judgment.

The Fundamentality Of Directive Principles

The Court in the current case broadly did two things. First, it said that the annulment of certain amendments made to Article 31-C of the Constitution would not nullify Article 31-C in the unamended form. This is the Article that gives immunity to certain laws from judicial review if the laws are made to further the directive principles of state policy stated in the Constitution. The Article says that such laws cannot be assailed on grounds of violation of the equality clause (Article 14) or the freedom clause (Article 19) in the Constitution. This signifies the fundamentality of directive principles in the process of governance, which are otherwise not enforceable. This takes us to the second and the more vital part of the judgment. The majority held that the interpretation given to Article 39(b) of the Constitution by Justice Krishna Iyer in a minority judgment in 1977 in Ranganatha Reddy endorsed by the five-judge Bench in Sanjeev Coke (1982) was not good law on Article 39(b). Thus, the Court overturned the precedential materials in the Article that gave an expanded connotation to this constitutional provision.

Article 39(b) says that the State shall strive for policy to secure that “the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. In a minority judgment in State of Karnataka v. Ranganatha Reddy (1977) Justice Krishna Iyer analysed the Article and said that all individual wealth is part of the community’s wealth and therefore, private property is well within the ambit of “material resources of the community”. He said that “material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions”. He added that “to exclude ownership of private resources from the coils of Article 39(b) is to cipherise its very purpose of redistribution the socialist way”. This minority verdict in Ranganatha Reddy was endorsed by a five-judge Bench in Sanjeev Coke. Thus, the minority verdict [which essentially has not expressly disagreed on the point of Article 39(b)] got an authoritative endorsement in Sanjeev Coke. This interpretation was validated in a series of judgments that followed Sanjeev Coke. Thus, the ”Krishna Iyer doctrine”, as CJI Chandrachud calls it, got judicially reaffirmed.

What Ambedkar Said 

It is this constitutional landscape that is now thoroughly altered by the majority judgment in the Property Owners Association case. According to CJI Chandrachud, Dr. B.R. Ambedkar did not perceive the Article in the way Krishna Iyer did. Relying on the reply given by Dr Ambedkar to Prof. K.T. Shah in the Constituent Assembly, Justice Chandrachud said that the Court is unable to subscribe to “the expensive view” of Justice Iyer. He wrote: ”…(T)his Court must not tread into the domain of economic policy, or endorse a particular economic ideology while undertaking constitutional interpretation”.

The counter view on Article 39(b) is well reflected in Justice Dhulia’s minority view. He endorses Krishna Iyer’s approach on the ground that the Constitution in general and the directive principles [including Article 39(b)] are essentially socialist in their tone and tenor. Curiously again, Justice Dhulia relies on Dr Ambedkar’s reply (relied on by Chandrachud) to say quite the opposite of what Justice Chandrachud said. According to him, the very scheme of the directive principles reflected the idea of constitutional socialism. He also relied on Ambedkar’s famous speech in the Constituent Assembly on November 25, 1949, underscoring the absence of socio-economic equality in the country. He also put forward a blunt commonsensical reading of the Article, saying that for utilising public assets for public good, no constitutional provision is required, and the very purpose of Article 39(b) is to empower the state to ensure public good by resorting to privately owned resources. He said public property will be used for public good only, even if it is not contemplated in the directive principles. Criticism of the ‘Krishna Iyer doctrine’ by Chief Justice Chandrachud is not endorsed by Justice Nagarathna either, though the judge agreed substantially with the majority judgment.

Law, Politics, And The ‘Iyer Doctrine’ 

It is necessary to understand the constitutional, political and economic context in which the ‘Iyer doctrine’ evolved. The era of Land Reforms Acts by different states, laws for abolition of the Zamindari system and privy purses, and nationalisation of private banks were all developments that facilitated a political climate of Nehruvian socialism that paved the way to the Krishna Iyer doctrine. Laws are essentially political statements made by the regime of the day. The preambular addition of the word “socialist” did not indicate anything new but only restated the socialist inclination of the Constitution, which was otherwise clear, as elaborated by Justice Dhulia in the present minority verdict.

The present judgment also held that Article 31-C in the unamended form will hold good. Certain additions to this Article made by way of the 42nd amendment in 1977 were struck down in the Minerva Mills Case (1980). The curious aspect, however, is that the Centre argued in favour of the State’s power to treat private properties as “material resources of the community”, relying on Krishna Iyer’s doctrine. This argument was repelled by the majority on the Bench. In an era of privatisation of public properties, this gesture may appear to be a bit ironic.

At any rate, the present regime at the Centre is not a proponent of Nehruvian socialism. Political and ideological shifts play a big role in determining what the Constitution means, what it says and how it is invoked. The distance that the nation has travelled since 1977 is reflected in the Property Owners Association case and the dissent in the judgment shows the other side of the coin. The judgment will carry forward the eternal discourse on the socialist traits in the country’s Constitution. The juridical discourse on the topic underlines the quality of deliberative democracy within the system of judiciary.

(Kaleeswaram Raj is a lawyer at the Supreme Court of India)

Disclaimer: These are the personal opinions of the author

“It’s good these people are in jail,” a fruit seller shared his frustration, keeping his shop open despite a lowered shutter in response to the lockdown called on by the separatists. The year was 2019, precisely a month after the Bharatiya Janata Party (BJP)-led government announced the abrogation of Article 370, and “these people” in question were the leaders of Jammu & Kashmir’s regional parties: the Jammu & Kashmir National Conference (JKNC) and the People’s Democratic Party (PDP). Five years later, these very people are not just out of jail, but some of them are also set to form the government in the Union Territory of Jammu and Kashmir. 

The world can draw an essential lesson from what has transpired in Jammu & Kashmir in the last five years. And this lesson has nothing to do with the polling outcome. Despite the previous unstable assembly (the BJP opted out of the ruling PDP-led coalition), the geopolitical turmoil in the aftermath of the abrogation of Article 370, and the controversy around delimitation, Jammu & Kashmir chose democracy yet again.

Democracy As A Lived Reality

When an insurgency or an armed conflict continues for too long, democracy is the first to fall. Increased securitisation of a conflict-ridden space undermines democracy not just as a political philosophy concept but also as an everyday lived reality. Political alienation is often the beginning and the end of a conflict. It is also the means and the end of most insurgencies. Secessionists in Jammu & Kashmir, therefore, leaned on boycotts of political processes in the region. These boycotts were successful in forging a sense of identity, delinked from New Delhi, in a section of Jammu & Kashmir’s population.

Jammu & Kashmir’s voter turnout in 2024 has fallen marginally short of 2014. Still, considering the political and security volatility during the past decade, the political remapping of the region, and the trends from the 2024 general election turnout, the absolute figure of 63.88% is a big round of applause for Indian democracy. Not only were the calls for boycotting the elections negligible, but voters also didn’t even think twice before ignoring them. The pre-poll sentiment in Jammu & Kashmir was defined by buoyancy and optimism.

Reigniting Faith

Participation in electoral processes should not be seen as an indicator of peace in Jammu & Kashmir or any other conflict-riddled region. Democracy does not suit all, and efforts to derail it are the strongest whenever it appears to work and emerge as a choice. For peace, the synergy of formal institutions is a prerequisite. The BJP has done well to reignite people’s faith in at least one of them: electoral polity. Jammu & Kashmir, under the governor’s rule for six years, grabbed this chance to assert itself and make its voice heard in New Delhi. The JKNC-Congress alliance has trumped religious extremism-driven parties on the one hand and heavy-handed nationalism on the other.

After almost a decade of aggressive and kinetic strategy in dealing with the hardliners in J&K, this is a perfect moment for the Indian establishment to rethink its attitudes towards conflict resolution. The temptation to discard democracy as a defunct system is at its highest during an armed conflict. But this is also the time when democracy can shine the brightest. A rights-based approach to conflict resolution may appear counter-intuitive, but this is the only lasting solution. The rejection of the right to vote by a dissatisfied bunch of people as a means of their political expression can be the first sign of trouble. The converse is also true.

This Is True ‘Normalcy’

The BJP may not feel warm and fuzzy about the assembly poll results, but New Delhi has all the reasons to rejoice. This is what ‘normalcy’, an oft-touted catchword of the current dispensation, looks and feels like. This almost violence-free election is the festive bonus that everyone hoped for, but nobody could have been sure of it. Reams will be written about the “success” of this election within the security paradigm. However, the real success is allowing the decriers of democracy to come into the fold. After long periods of violence and quasi-violence directed primarily against the Indian state, this election is an affirmation of the core principles of participatory democracy. 

No political system, even the good old democracy, can and should be treated as the panacea for all ills. At best, democracy can achieve an environment where people who are affected by policies feel like stakeholders. This precludes compulsive resistance and fosters a sense of ownership. Jammu & Kashmir’s ‘problem’ is both a function and an origin of political alienation and disempowerment. Increased participation on the population’s part and more open-mindedness on the part of the establishment during political processes help create a secure environment that doesn’t rely solely on securitisation.

What and how Jammu & Kashmir’s political arena will look like with a government in place after six years of Governor’s rule remains to be seen. For now, these lessons of democracy are for all to see and emulate. 

(Nishtha Gautam is a Delhi-based author and academic.)

Disclaimer: These are the personal opinions of the author