Justice BV Nagarathna of the Supreme Court on Tuesday expressed strong reservations over Chief Justice of India (CJI) DY Chandrachud criticising former Supreme Court judges, including Justice VR Krishna Iyer, for their views on whether private property can be taken over by the State to subserve the common good.

In doing so, Justice Nagarathna emphasised,

"I say that the institution of the Supreme Court of India is greater than individual judges, who are only a part of it at different stages of history of this great Country! Therefore, I do not concur with the observations of the learned Chief Justice in the proposed judgment."

The majority (including Justice Nagarathna) on a nine-judge Bench led by the CJI today held that all private properties can't be be considered "material resources of the community" under Article 39(b) of the Constitution.

Justice Nagarathna said that while she partially concurred with the majority on this view, she did not agree with the CJI's comments on past judges who took a different view.

"Krishna Iyer, J. adjudicated on the construction of 'material resources of the community' in the backdrop of a constitutional, economic and social culture that gave primacy to the State over the individual in a broad-sweeping manner. As a matter of fact, the 42nd Amendment had, inter alia, inserted the word 'Socialist' into the Preamble to the Constitution ... On a conspectus understanding of all contributing factors such as the discussions in Constituent Assembly and the tide of the times that found in the broad house of economic democracy a legitimate State policy, can we castigate former judges and allege them with 'disservice' only for reaching a particular interpretive outcome?" Justice Nagarathna asked.

In particular, Justice Nagarathna had objected to a comment by the CJI that “the doctrinal error in the Krishna Iyer approach was, postulating a rigid economic theory, which advocates for greater state control over private resources, as the exclusive basis for constitutional governance. … a single economic theory, which views the acquisition of private property by the state as the ultimate goal, would undermine the very fabric and principles of our constitutional framework.”

Justice Nagarathna said that these comments were unwarranted and unjustified.

She noted that one cannot lose sight of the fact that past judges may have delivered rulings that were more fitting to the circumstances of the time.

Merely because there has been a paradigm shift since then, it would not be appropriate to castigate former judges and say that they did "a disservice to the Constitution" for taking a view that may not be appropriate today but may have been relevant in the past, she said.

She strongly objected to the CJI's criticism of former judges' rulings in this manner and commented that such a practice must not be followed by judges in future.

"Merely because of the paradigm shift in the economic policies of the State to globalisation and liberalisation and privatisation, compendiously called the 'Reforms of 1991', which continue to do so till date, cannot result in branding the judges of this Court of the yesteryears 'as doing a disservice to the Constitution,'" Justice Nagarathna said.

In a separate opinion, Justice Sudhanshu Dhulia also joined Justice Nagarathna in disapproving the harsh criticism of the Krishna Iyer doctrine in the majority judgment.

"Before I conclude, I must also record here my strong disapproval on the remarks made on the Krishna Iyer Doctrine as it is called. This criticism is harsh, and could have been avoided," Justice Dhulia said.

He added that this doctrine - which was also supported by Justice O Chinnappa Reddy - founded on strong humanist principles and reflected empathy for people during dark times.

"The Krishna Iyer Doctrine, or for that matter the O. Chinnappa Reddy Doctrine, is familiar to all who have anything to do with law or life. It is based on strong humanist principles of fairness and equity. It is a doctrine which has illuminated our path in dark times. The long body of their judgment is not just a reflection of their perspicacious intellect but more importantly of their empathy for the people, as human being was at the centre of their judicial philosophy. In the words of Justice Krishna Iyer himself : 'The Courts too have a constituency – the nation – and a manifesto – the Constitution,'" his opinion further said.

A total of three judgments have been written in the case - with CJI Chandrachud leading the majority with six other judges - Justices Hrishikesh Roy, JB Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih. 

Justice BV Nagarathna partially concurred, while Justice Sudhanshu Dhulia dissented.

Read more on the verdict here.

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