Two questions of seminal importance are at stake in Property Owners Association vs State of Maharashtra, in which hearings recently concluded before a nine-judge Bench of the Supreme Court of India. First, what does the term “material resources of the community” used in Article 39(b) of the Constitution denote? Second, are laws made in furtherance of the goal stipulated in Article 39(b) — that is, legislation aimed at securing ownership of resources and distributing them to best subserve the common good — immunised from challenges premised on the fundamental rights to equality and freedom?
The second of these questions brings to sharp focus a clash between Part III of the Constitution, which delineates fundamental rights, and Part IV, which enumerates a set of “Directive Principles of State Policy” (DPSP). The Constitution expressly makes fundamental rights enforceable, while DPSPs are regarded as goals that the state is expected to work towards. The tension between these parts has simmered through India’s history, reaching boiling point in the 1970s when the Constitution was routinely amended, primarily to make certain kinds of legislation exempt from judicial review.
The Supreme Court has from time to time attempted to clarify where the law stands, starting with the verdict of its 13-judge Bench in Kesavananda Bharati vs State of Kerala (1973). But the conflict has never really gone away. The uneasy relationship between the two parts has now reared its head again. How the Bench in Property Owners answers the reference made to it will have a deep bearing on the Constitution’s future course.
