Schrodinger’s Article

In a week where ‘wealth redistribution’ was national conversation, a nine-judge bench of the Supreme Court heard a challenge to an Act that allows a public housing body to acquire land and buildings to transfer them to “needy persons”. 

In Property Owners Association v State of Maharashtra, landowners have questioned the validity of a 1986 amendment to the MHADA Act, which allows a Repair and Reconstruction Board to acquire control of dilapidated buildings in Mumbai if 70 percent of tenants request it. 

The amendment contains an express declaration about “securing the principle specified in Article 39(b)”, referring to a Directive Principle which calls on the State to ensure that “ownership and control of the material resources of the community are distributed as best to subserve the common good.” 

This is no simple landlord-tenant dispute. The property owners, already exasperated by the Rent Control law, first went to the Supreme Court 32 years ago. They claim that their fundamental rights have been violated. It raises an issue that was fashionable in the 1970s, the high noon of amendments and rights litigation: can a law that furthers a DPSP be protected from a fundamental rights challenge? 

At the centre of this storm is Schrodinger’s Article—31C. Introduced by the 25th Amendment in 1971, it declared that a law advancing the ‘wealth redistribution’ DPSPs in Articles 39(b) and (c) cannot be void on the grounds that they are inconsistent with Articles 14 and 19. The second part of the provision saved such a law from being challenged in court on the ground that it did not “give effect” to the two DPSPs. 

The first part survived the 13-judge decision in Kesavananda Bharati and the second one didn’t. In 1976, Parliament, through the 42nd Amendment, expanded the scope of Article 31C to all the DPSPs, not just 39(b) and (c). Four years later in Minerva Mills, the Court struck down this Amendment. Here’s where things get complicated: Did this mean 31C was wiped off the book in its entirety? Or did the narrower 31C survive? 

On Day 1 of the hearing, my colleague Spandana reported that the Bench declined to get into the 31C crosshair. But on Day 2, the Chief noted that there would be “radical constitutional consequences” if it was found that 31C did not exist after Minerva Mills. 

After this track switch, the way the hearing went might have thrilled the constitutional law geek but baffled the casual observer. Petitioners argued that it would take no less than parliamentary legislation to revive 31C. Solicitor General Tushar Mehta, for the respondents, relied on the ‘doctrine of revival’ to suggest that the first part of 31C had survived the striking down in Minerva. 

If you dropped into the livestream without context, you’d think that the Court was veering away from the heart of the issue: whether private property can be considered a “material resource of the community.” But, on Day 1, the judges had already made some noises about answering that question in the affirmative. The Chief had drawn an approving comparison to mines and forest land, noting that there was a community interest in them even when the titleholder was a private person. 

On Tuesday next week, when the Bench reassembles, respondents will pick up their arguments on 31C and 39(b). 

Not for the first time, the proceedings got me thinking about what the solicitors are saying to their clients during the debrief. In the present matter, for instance, doesn’t the owner of a hoary old building in Mumbai’s Opera House area wonder what partial survival and revival have to do with him paying for a renovation he doesn’t want? (Our efforts to get to the client’s side of the story in the run-up to the hearing didn’t amount to much—the Property Owners Association was not willing to talk.) 

The SCO team is  not complaining, though. It’s always educational to see the Court negotiating its own history as it marinates in constitutional questions. We’re waiting to see what it says about Article 31C—is it alive or is it dead? That’s our kind of headline about wealth redistribution.

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