We're not going to pretend to fully understand the Supreme Court of India's recent decision in Property Owners Ass'n v. State of Maharashtra, No. 2012-2022 (Nov. 4, 2024) for obvious reasons (plus, the judgement and various opinions and dissents total 193 pages).
But we post it here because we think it gives some insight how other jurisdictions and cultures view expropriation, and the role of property rights in free societies.
Some background. The Constitution of India (article 39(b)) has been held by the Supreme Court to embody a concept known as "constitutional socialism." It provides:
The State shall, in particular, direct its policy towards securing--...(b) that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.Not quite the Fifth Amendment, is it?
Indeed, Justices of the Supreme Court have opined that constitutional socialism means that everything is the community's, including private property ("material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material need, not merely public possessions").
But there seems to have been a long-standing push-pull between the legislature and the courts over the nature and role of private property, with the legislature pushing the socialist view and the court responding with decisions emphasizing the role of privately-owned property, as in this earlier case we posted.
The current case is what we'd label eminent domain for blight remediation and redevelopment. By statute, the Mumbai Housing Board may take certain private property for redevelopment if 70% of the residents approve. The statute was adopted under the authority of article 39(b), and property owners objected to the expropriation, asserting that the Court's prior endorsement of constitutional socialism should not have included all private property as "material resources of the community," to be "distributed as best to sub serve the public good."
That's not socialist, that's Marxist, they argued, and private property in some form must exist.
A seven-Justice majority of the nine-member Supreme Court agreed, rejecting the view that all private property is part of the "resources of the community." Community resources do not include private property because the use of the term "community" must mean there's some distinction between the community and the individual.
The majority also rejected the notion that India's Constitution enshrines an economic theory. Instead of requiring socialism, the India Constitution does not require "particular form of social structure or economic policy for future governments ... [and] did not intend to prioritise one form of government or economic structure over the other but instead only laid down the ideal of ‘economic democracy’. Slip op. at 152.
In short, that means that the electorate remains free to choose the "economic or political school of thought" it prefers. Slip op. at 153. The end result is that the government does not have a free hand to take privately-owned property.
Here's more on the decision and the opinions of the Justices:
- Summary of the decision and judgement (Supreme Court Observer)
- Case page (Supreme Court Observer)
- Opinion: Private Property And The Question Of 'Constitutional Socialism' (NDTV)
- SC’s interpretation of private property curtails state’s power but enhances judicial review (The Indian Express)
- Justice Dhulia Stands Firm on Constitutional Socialism (Devdiscourse)
Check it out
Property Owners Ass'n v. State of Maharashtra, No. 1012-2022 (India Nov. 5, 2024)
