We’re bound by the verdict in Kesavananda Bharati case: SC
GUIDING LIGHT. Observations made during hearing of case related to takeover of pvt assets
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 ninejudge Bench headed by Chief Justice DY Chandrachud which
SC also upheld the constitutionality of a provision of Article 31-C, which implied that amendments for implementing the Directive Principles of State Policy, if they do not aect the ‘basic structure’ of the Constitution
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”.
13 JUDGE BENCH
“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 fivejudge Bench verdict in the Minerva Mills case in 1980 and hence, the protection to the laws made under Article 39 (b) and (c) goes.
MINERVA MILLS CASE
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 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 unamended Article 31C of the Constitution gets revived.
“The Minerva (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 Act.