A disservice done? The missing quote from CJI DY Chandrachud's judgment in private property case

Today's Supreme Court judgment in the case concerning "material resources of the community" under Article 39(b) of the Constitution saw two judges on the bench disagree on the views of former judges of the Court.

The judgment was rendered by a nine-judge Constitution Bench, with Chief Justice of India (CJI) DY Chandrachud delivering the majority opinion on behalf of himself and six others.

Justice BV Nagarathna dissented partially from the majority, while Justice Sudhanshu Dhulia also dissented from the majority.

In her judgment, Justice Nagarathna took exception to the CJI 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. She said,

"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."

To add to the controversy, there appears to be a major incongruency as regards a quote attributed by the dissenting judgment of Justice Nagarathna to the majority judgment rendered by the CJI.

What is curious is the fact that a quote which Justice Nagarathna attributes to the CJI's majority judgment - and on which she has registered her strong note of dissent - is not present at all in the CJI's judgment.

First, let us break down why Justice Nagarathna took issue with the CJI's purported comments.

"Disservice to the Constitution"

The quote in question is about legendary former judge of the top court Justice VR Krishna Iyer. In the 1977 case of State of Karnataka v. Ranganatha Reddy, Justice Krishna Iyer he endorsed a particular economic ideology and structure for our economy.

Justice Nagarathna's judgment states the following in this regard:

"Dr. Ambedkar has been quoted by the learned Chief Justice to state that economic democracy in India is not tied to one economic structure, such as Socialism or Capitalism, but to the aspiration of a welfare state. The learned Chief Justice further opines 'thus, the role of this Court is not to lay down economic policy, but to facilitate this intent of the framers to lay down the foundation for an “economic democracy'. The Krishna Iyer doctrine does a disservice to the broad and flexible spirit of the Constitution." 

Justice Nagarathna then goes on to castigate the CJI's majority opinion for the use of the term "disservice to the Constitution".

"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," she says in page 27 of her judgment (page 220 of the document uploaded on Supreme Court website).

She notes 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.

"But by there being a paradigm shift in the economy of this Country, akin to Perestroika in the erstwhile USSR, in my view, neither the judgments of the previous decades nor the judges who decided those cases can be said to have done a “disservice to the Constitution”, she went on to add.

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.

Justice Dhulia's dissent

Interestingly, Justice Dhulia also states in his judgment that he is recording his strong disapproval on the remarks made on the 'Krishna Iyer Doctrine'.

"This criticism is harsh, and could have been avoided. 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," he said.

However, his judgment does not contain the "disservice to Constitution" quote which Justice Nagarathna has attributed to the CJI.

CJI Chandrachud's judgment - the curious case of missing "disservice"

What is interesting is that the quote attributed by Justice Nagarathna to the CJI on "disservice to the Constitution" cannot be found in the CJI's judgment.

The relevant portion from the CJI's judgment reads as follows:

"According to Dr Ambedkar, if the Constitution laid down a particular form of economic and social organisation, it would amount to taking away the liberty of people to decide the social organisation in which they wish to live. He opined on several occasions that economic democracy is not tied to one economic structure, such as socialism or capitalism, but to the aspiration for a ‘welfare state’. Thus, the role of this Court is not to lay down economic policy, but to facilitate this intent of the framers to lay down the foundation for an ‘economic democracy’."

Thus, the following quote attributed by Justice Nagarathna to CJI is conspicuously absent from the CJI's judgment.

"Thus, the role of this Court is not to lay down economic policy, but to facilitate this intent of the framers to lay down the foundation for an “economic democracy'. The Krishna Iyer doctrine does a disservice to the broad and flexible spirit of the Constitution."

Confusion over "proposed judgment"?

Interestingly, in her verdict, Justice Nagarathna refers to the CJI's judgment as the "proposed judgment".

This deepens the mystery. Was the final judgment uploaded by the CJI on the Supreme Court website not the judgment which was shared with the dissenting judges?