State of Karnataka and Anr Etc. v. Shri Ranganatha Reddy & Anr. Etc.

Judgment

KRISHNA IYER, J.-We go wholly with our learned brother l'niwalia

J. Then why a separate afterword ?

Because, to put it simplistically, a legislation for the nationalisation of contract carriages by the Karnataka State, where provision has been made for fair compensation under present circumstances, has still been struck down by the High Court on the surprising grounds of absence of public purpose, illusoriness of compensation State take-over being be yond the orbit of Article 39 (b) and the like, and to express ourselves emphatically in reversal on the obvious, yet basic, issue we itemise be

.D low which is necessary to obviate constitutional deraliment again. The public sector, in our constitutional system, is so strategic a tool in the national plan for transformation from stark poverty to social justice, transcending administrative and judicial allergies,. that the questions raised and rulings thereon are of larger import for the country than one particular legislation and its vires and one particular government and its policies. What are those disturbing interrogatories ?

If the State, to subserve the objects of governmental or other like agencies, compulsorily takes movable property or realty of private citi zens, the like of which are readily available in the open market. does the law authorising such taking violate the limitation of 'public purpose' imposed by Article 31(2) of the Constitution, in the absence of urgency which brooks no delay whatever ? Further, does the prospect of easy purchase elsewhere, negate the presence of 'public purpose', implying thereby the resort to compulsory acquisition within the framework of Article 31 ('2) is interdicted save where there is 'State necessity' coupled with scarcity of supplies in the market? Secondly, does a legislation qualify for immunity under Article 31C read with Article 39(b), onlv where the scheme is to divide and deal out to a plurality of persons, disperse, diffuse or scatter ownership and control of material resources of the community compulsorily taken by the State? Or does it em brace 'distribution' with a wider connotation of 'removal' from the pri vate sector and allocation in the public sector, dividing and arranging, · separating and allocating, acquiring from individuals and ma.king over to collective institutions or State organs, acting for and in the interest of the community, according to the State Plan or policy decision on the

scheme of distribution and allocation of resources among the different sectors of economic activity so as best to subserve the public good ? How. in short, do we decode 'distribute' in Article 39(b) illumined by Article 3 8 ? All permitting or proscribing holding of 'resources' by the State or its designated organ monopolistically, for the better produc fion and/ or distribution of goods and services to the community, for participative control by and distribution of profits among workers' and for all those other benefits claimed to flow out of public ownership, social <:ontrol, commitment to community, parliamentary accountability and vaster capability? Does R. C. Cooper(') remain a legal tender even after demonetisation on the question of acquisition vis a vis compensa tion, by the 25th (Constitution) Amendment ? Can the theory of 'illusory compensation' be apocryphal or be exaggerated to apply to ,diminished compensation as a revised reincarnation of 'adequate com pensation' still menacing projects of nationalisation ? How do we con ceptulise 'material resources' and 'public purpose' in our current consti tutional setting ? When cryptic phrases expressive of constitutional culture and aspirational future, fundamental to the governance of the nation, call for interpretative insight, do we merely rest content to con ~ult the O.E.D. and alien precedents, or feel the philosophy and share the foresight of the founding fathers and their telescopic faculty ? Is the meaning of meanings an artless art ? Holmes (² J. in lovely langu-

) age,, stated 'what oft was thought but never so well expressed' :

"A word is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used."

Jerome Frank adopted a quotation from Holmes which drives home the same point :

"We must think things not words, or at least, we must con stantly translate our words into the facts for which they stand if we are to keep to the real and the true.(³)"

Be the High Court's judgment right or wrong, its socio-economic and jurisprudential repercussions for a social Welfare State or a 'Socialist Republic' are sufficiently profound to explain why, from us too, an afterword.

Is it otiose to ponder over these matters ariculately even though we generally concur in the reasoning and conclusion of our learned collea gues ? Some economic issues of moment, quiet in their legal look but critical in their later portent, come before the Court as has happened now, when, regardless of assent or dissent, the spelt-out opinion of the judges sitting on the same bench, separately or conjointly, becomes the right of the citizen, read in the context of the pregnant provision in Article 14 l. When major juristic problems of futuristic import involve constitutional probes, a plurality of opinions may bring out if we may mix metaphorS-more facets, shifts in emphasis, finer notes, fresh vistas and seeds of development. not necessarily verbal re-hash or medley of re-' petitive prolixity. A hundred noetic flowers and some cerebral briars

are not a confusing crowd of colours.

Judicial perspective vis a vis consti!utio,nality of economic legislation.

When confronted by serions constitntional problems, judicial states manship drops the craft of a legal tinker or lexicographic borrower bnt transforms itself into that of social engineer who 'beholds the fntnre in the present and his thoughts are the germs of the flower and frni! of latest time'. He gives conscions expression, in jnristic tongne, to the Constitntion's implicit pnrpose gronnded on the permanent interests of man as a progres_sive being-here, the little yet large man of India break ing ont of an iniqnitons system, yet reaching out to a human society, shot with distributive justice. The presence of this people-oriented perspec- · tive in the conrt, as the interpreter of the Constitution and its imperatives and the laws designed to inaugnrate a Human Tomorrow, compels us in all hnmility and aware of inadeqnacy, lo lend our pen to the reversal of the decision under appeal which de facto proceeds on fastidions socie tal valnes of vanishing validity in the changed setting, and is partly founded on exotic jnridical doctrines (eminent domain) incongrous with the legitimate realities of the emerging Indian Order as are writ into Article 31 (2) and more nnmistakably in Article 31C read Oin the man· ner of Keshavananda Bharati) (') along side of Article 39(b) and (c).

The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine,, eco nomic democracy sans which political democracy is chimerical. We say so because our Constitntion, in Parts III and IV and elsewhere, en sonls snch a valne system and the debate in this case pnts precisely this son! in peril.

Friedman has said in his 'Legal Theory and Social Evolntion'. 'The lawyer cannot afford to isolate himself from the social process. His independence can never be more than rela tive, and it is only a clear awareness of the political. social and constitntional fonndations of his fnnction in general as well as of particular legal problems that enables him to find the proper balance between stability and progrcss."(² )

Our thesis is that the dialectics of social jnstice should not be missed if the synthesis of Part III and Part IV is to influence State action and conrt prononncements: Constitutional problems cannot be studied in a socio-economic vacnum, since socio-cultnral changes are the source of the new valnes,, and slonghing off old legal thought is part of the process of the new eqnity-loaded legality. A judge is a social scientist in his role as constitntional invigilator and fails fnnctionally if he for· gets this dimension in his complex dnties.

The credal essence of the Constitution consists in its Preamble, Arti. cles 38, 39(b) and (c), 31 and the bunch of Articles 31A, 3!B and 31C (We do not deem it necessary to refer in this case to the 42nd Constitntion Amendment Act).

Our emphasis is on abandoning formal lega!istics or sterile machy in assessing the vires of statutes regulating vital economic areas, and adopting instead a dynamic,, goal-based approach to problems constitutionality. It is right that the rule of law enshrined in our Constitution must and does reckon with the roaring current of change which shifts our social values and shrivels our feudal roots, invades our lives and fashions our destiny. The key issues argued at learned length in these appeals cannot suffer 'judicial separatidn' from the para mount principles in the Preamble and in Article 39(b) and (c). So we have to view the impugned provisions from the vantage point . socio-legal perception.

Fhe semantic sin of dubious legislating drafting

Before entering the thorny thicket of debate on the questions arising in this batch of appeals a cautionary word may be uttered, without dis respect, about the unwitting punishment of the community by our legislative draftsmen whose borrowed skills of Westminster vintage and hurried bills without sufficient study of their economic project, occasion ally result in incomprehensibility and incogruity of the law for the lay and the legal. Francis Bennion, (¹ commenting on the Renton Com

) mittee Report, writes :

"The Renton Committee points out that the problem of obscure statute law is important to every citizen.

"There is hardly any part of our national life or of our p~r­ sonal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries, public cor porations and private commerce are regulated by legislation. The life of the ordinary citizen is affected by various provisions of the statute book from credle to grave."

The c0mmittee might have added that the rule of law and parliamentary democracy itself are imperilled if laws are incom prehensible. They did say that it is of fundamental import tance in a free society that the law should be readily ascertain able and reasonably clear, and that otherwise it is opressive and deprives the citizens of one of his basic rights. It is also needlessly expensive and wasteful. Reed Dicerson, the famous American draftsman, said it cost the government and the public "many millions of dollars annually."

It must be said in fairness to both sides that Shri Lal Narain Sinha whole-heartedly agreed with Shri Asoke Sen (they appeared on opposite sides) that the legislation was i!ldrafted and made a big drift on the creative imagination and linguistic tolerance of the judges, to reconcile tte verbal deficiencies and semantic difficulties besetting the text. Shri Sinha told the Court that a clarificatory bill was going before the House shortly as an amending exercise in this behalf. Our draftsmen

without full grasp of the economic regulation or the leisure and facilities for such study.

In a country where the people are, by and large, illiterate, where a social revolution is being pushed through by enormous volume and variety of legislation and where new economic adventures requiring unordhoodoz jural techniques are necessitous, if legal drafting is to be equal lo th~ challenge of change, a radica!isation of its methodology and philosphy and an ability for the legislative manpower to express themselves in streamlined, simple, project-oriented fashion essential. Jn the hope that a rolrrconscious court communicates to a responsive Cabinet, we make this cbservation.

What is the battle about ?

Back to the challenging problems thrown up by the High Court's decision. The facts are there in the leading judgment and the formulation of the controverted propositions also needs no reiteration. Broadly speaking, we strike no note of dissensus but seek to bring out some social nuances even in consensus. Let us project the pegs on which

our discussion may bang. Incidentally, conceptual differences about the dimensions of the change visualised by Article 31 C read with Artic!e 39 (b) and ( c) arc bound to exist among judges who, after all, professionally objectify the social philosophy of the Constitution through the subjective prism of their own mentalism.

1. What is a 'puhlic purpose', set as a constitutional limitation in Article 31(2), compliance with which conditions the immunity from attack based on Article 19 (!) (f) or inadequacy of recompense when any person is deprived of his property ?

1. (a) What is the degree of nexus between 'the public purpose and the acquisition desiderated by Article 31 (2) ?

1 (b) Can Cooper (supra) be judicially resurrected, draped differently but with the same 'compensation' soul, even after the amendment of Article 31 (2) '?

2. What are the pervasive ambience and progressive amplitude of the 'directive principle' in Article 39 (b) and ( c) in the context nationalisation of public utilities ?

2 (a) Can State monopoly by taking over private property be a modus operandi of distribution of ownership and control of the material resources of the community to subserve the common good, within the framework of Article 39 (b) ?

2(b) Are distribution and nationalisation antithetical of overlapping?

2 ( c) What is the connotation of the expression 'material resourccs'? Can private buses be regarded as material resources of community ? fore us and are sure to occupy the centre of the stage when management and control of growth in effective measure for common weal expand the frontiers of public law with a view to implement the 'distributive justice' embodied in Articles 38 and 39 and, by Article 37, made fundamental in the governance of the country. Dr. Ambedkar, in words significant, said

"In enacting this part (Part IV) of the Constitution, the Assembly is giving certain directions to the future legislature and the future executive to show in what manner they are to exercise the legislative and executive power they will have. Surely it is not the intention to introduce in this part these principles as mere pious declarations. It is the intention of this Assembly that in future both the legislature and the executive should not merely pay lip-Service to thos,c principles but that they should be made the basis of all legislative and executive action that they may be making hereafter in the matter of the governance of the country."

The Directive Principles, being the spiritual essence of the constitution, must receive sweeping signification, being our socio-economic Magna Carta, quiddities apart.

They key etc. thought o the Constitution and the interpretative response.

The role of nationalisation of essential services for the better life of the people, an item on tl1e country's urgent developmental agenda, must be gathered before the wide range of the companion set of constitutional articles can be spanned by the court "in interpretative terms. Codified law is legislatively crystallised politico-economics and so the search of the jurist has to be wider and deeper and interlaced. Take care of the basics, the specifics will take care of themselves. So we have to go behind the legal facade to respond to the rhythm of the pulsating text of the Constitution which casts heavy developmental responsibilities on the Welfare State. Roscoe Pound's remark reflects this thought :

"All he social sciences must be co-workers, and emphatically all must be co-workers with jurisprudence."

Moreover. sheer legalism cannot lightly upset legislative wisdom or efficiency while passing on the constitutionality of economic legislation based on national planning, public finance, private investments, cost accounting, policy decisions, historical factors and a host of complex social variables, Dixon C.J.(') in a different context observed :

"These matters of incidental powers are largely questions of degree, but in considering them we must not lose sight of the fact that once the subject matter is fairly within the provinee of the Federal legislatuure the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the legislature

and not for the Judiciary."

legislation is colourable, measures make-believe or orders mala fide, the judges are the masters of the situation, and this Court, under Article 141, declares the law in that supreme spirit. But courts must be cir cumspect not to rush iu where serious reflection will make them fear to tread nor to resort to adroit circumvention because of econ0mic al lergy to a particular legislative policy.

At this stage, a glance at the raw realities, to abolish which Article 31(2), Article 31C and Articles 38 and 39 have been enacted, necessary. Poverty has, for ages, been the omnipresent reality Indian life. Stark inequal,ties have been chrome and the 'hidden hunger' (to use Myrdal's phrase) of the people have pushed the Free dom Movement forward in the socialistic direction toward a better lik. The fasciculus of clauses in the Constitution we have referred to is calculated to prevent the revolution of rising expectations from becom ing a revolution of rising frustrations. These compulsions mnst inform legal interpretation. For. in the words of Seton Pollock,

"The law itself, though of crucial social importance, oruy one element in the total human task. That task is to meet and master those frustrations that diminish man in this humanity and obstruct the realisation of his freedom and ful filment within !he human society. Those frustrations stem from ignorance, poverty, pain, disease and conflicts of inte rest both within the person (the field of psychological medi cine) and between persons (the territory of the law). These manifold and interacting frustrations cannot be met by any one discipline but only by a coordinated attack upon the pro blem through enlightened political and administrative initia tives and by educational. medical, psychological and legal re medies.

Our concern is with the human condition and the impera tive need to improve it through such resources as we can de velop. We are beginning to see more clearly the need for a unitary view which is, in essence, spiritual in its character. reaching down to the realities that underlie our fragmented disciplines.

The burning issue ol our times is how our resources can be developed and combined to achieve the fulfilment of the human task and the improvement of the human condition." (Preface to 'The English Legal Aid System' by Seton Pollock Orient Longmans)

The Father of Nation long ago argued for 'the art and science of mobilising the entire physical, economic and spiritual resources of all the various sections of the people in the service of the common good of all'. Sir Leslie Scarman developed this new dimension of law in !he English climate when he said :

"I shall endeavour to show that there are in the contemporary world challenges, socia,J. political and economic, challenges are not created by lawyers; they certaintly cannot be suppressed by lawyers; they have to be met either by dis carding or by adjusting the legal system. Which is to be?"

A panoramic sociological view-not a narrow legal peep-alone can invest judicial power with capability to help solve the myriad problems of Mankind and Mother Earth.

We have divagatcd to drive home the pertinence and power or poverty to change our social order through law, and the necessity of the constitutional court to appreciate this fundamental logos before voiding any 'law'. Ideas of the Old Order on 'public purpose', illu sory compensation, nexus doctrine and 'distributed to subservc the common good' should not reduce lofty constitutional considerations into 'hollow concepts, tea-cup debates and impotent ideas (which) debase modern jurisprudence' and are 'intellectually subversive', to use the indignant expressions of John Batt. Nietzsche once said : 'The great problems are in the streets'. Abraham Lincoln warned that 'the dogmas of the quiet past are no longer adequate to the stormy present.' Our legal doctrines, canons of interpretation and constitutional attitudes must therefore t.1ke not of this adaptational potential and response tn realities.

The schen1e of the in:p11g11ed statute

Co1ning no\v to the concrete provi~ions of the r\cti tested on anvil of Article 31(2) and 39(b) and (c), we have to get a hang ot the legislative project. Its purpose is to acquire contract carriages from all private sources. The reason for this measure of nationalisation is set out in the 'whereas' paragraphs. In broad terms, it is. that private contract carriages are being operated in the State in a man ner highly detrimental and prcjudical to the public interest. It is further claimed that with a view to prevent such misuse and also provide better facilities for the transport of passengers and 'to give effect to the policy of the State towards securing that the ownership and control of the material resources of the conununity are so distributed as best to subserve the common good and that the operation of the ec nomic system does not result in the concentration of wealth and means of production to the common detriment,' acquisition of contract. carriages is being resorted to. The requisite declaration contemplated in Article 31 C is thus made in the preamble as well as in Section 2 of the Act. Of course, in the light of the Keshavananda Bharat1 Case (supra) there is in this Court a power-and if demanded, a duty-to examine whether there is real nexus between the legislation and Article J9(b) and (c) or whether the ritualistic declaration is cutely colourably designed to ward off attack from Article 14, 19 and 31. Make-believes cannot make-do. But if there is a reasonable re lation between the two, the Court cannot constitute itself as a superadministrator and suggest that there arc better ways of achieving the object than what the legislature has chosen to adopt. 'Quo modo' ;, not for the court.

and we adopt it.

Let us now examine the fatal constitutional vices, embedded in the Act and discovered at the High Court level. One such lethal feature which appealed to the High Court, and has been repeated before us by Shri Asoke Sen with insistence, is that there is no public purpose in volved in the acquisition of contract carriages and so the enactment is not invulnerable under Article 31 (2). The statutory purpose was to acquire contract carriages in private ownership, and transfer them to the State Road Transport Corporation which was to enjoy the exclu sive privilege of running contract carriages. The expected shower of benefits was elimination of misuse of contract carriages in private hands and augmentation of public good by plying these vehicles under pro

c lic ownership and direction. The first question is whether such taking from a private person and vesting in a public body is not a public pur pose. There are two sub-issues which are distinct and mu>t be kepi distinct if ideational confusion is not to vitiate our conclusion : (a) Is there a public purpose ?; and (b) If there is, what are the ways to fulfil that purpose '/ The ends cannot be telescoped into the means. Once this perspicacity in thinking is present, it is unarguably obvious that the State Government's or the State Corporation's purpofo is a public purpose. Putting aside the possible distortions, historically proved, of class domination of the State apparatus and assuming values of our constitutional order, the State symbolizes, represents and acts for the good of society. Its concerns are the ways of meeting the wants of the community, directly or otherwise. The pnrpose of pnblic body to run a public transport service for the benefit of the people. operating it in a responsible manner through exercise of public powe1 which is controlled and controllable by society through its organs like the legislature and, at times, even the court, is mainfestly a public pur pose. Does the purpose subserve some public use or interest produce some public good or utility? If it does. the purpose becomef, public. 'Public' qualifies the object. Black's Legal Dictionary eluci dates the expression :

"The ter111 is synonyrnous with gover11111al purpose, (Statev. Dizon). As employed to denote the objects for wl1ich taxes may be levied, it .has no relation to the urgency of the public need or to the extent of the public bene fit which is to follow; the essential reqwsrte beim; that a public service or use shall effect the inhabitants as a community, and not merelv as individuals. (Stevenson v. Port of Portland). A public purpose or public business has for its objective the promotion of the public health. safety. mora:ls, general welfare. security, prosperity. and contentment of all the inhabitants of residents within a given political divi sion, as, for example, state. the sovereign powers of which are exercised to promote such public ouroosc or pu b1ic busi ness. (Green v. Frazier)." (underscoring ours)

There may be many processes of satisfying a public purpose. wide range of choices may exist. The State mov walk ;ntn the ooen market and buy the items, movable and immovable, to fulfil the public pose; it may requisition, instead of resorting to acquisition; it may take on loan or on hire or itself manufacture or produce. Ali these steps are various alternative means to meet the public purpose. The State may need chalk or cheese, pins, pens or planes, boats, buses or buildings, carts, cars, or eating houses or any other of the innumerable items to run a welfare-oriented administration or a public corporation answer a community requirement. If the purpose is for servicing the public, as governmental purposes ordinarily are, then everything desi derated for subserving such public purpose falls under the broad and expanding rubric. The nexus between the taking of property and the public purpose springs necessarily into existence if the former is capable of answering the latter. On the other hand, if the purpose is a private or non-public one, the mere fact that the hand that acquires or requires is Government or a public corporation, does not make the purpose automatically a public purpose. Let us illustrate. If a fleet of cars is desired for conveyance of public officers, the purpose is public one. If the same fleet of cars is sought for fulfilling the tourist appetite of friends and relations of the same public officers, it is a private purpose. If bread is 'seized' for feeding a. starving section of the community, it is a public purpose that is met but, if the same bread is desired for the private dinner of a political maharajah who may pro rem fill a public office, it is a private purpose. Of course, the thing taken must be capable of 'serving the object of the taking. If you want to run bus transport you cannot take buffaloes.

I

A public purpose is vastly wider than public necessity, even as a mere purpose is more pervasive than an urgency. That which one sets before him to accomplish; and end, intention or aim, object, plan, project-is purpose (Black's Legal Dictionary). A need or necessity is compulsive, urgent, unavoidable. In purpose, there is dires; in necessity, there is imperative demand. 'The presumption is that a use is public, if the legislature has declared it to be such, and the deci sion of the legislature must be treated with the consideration due 10 a co-ordinate department of the government of the state'. Its effect is not conclusive but considerable. 'Public purpose' should be liberal ly construed, not whittled down by logomachy.

The concept of 'public purpose' has been considered in some aca demic writings and judicial rulings and a glance at them may give the oretical nourishment to juridical ideas. We have to remember that neither socia.tist jurisprudence nor capitalist legal culture can govern the concept of public purpose in India's mixed economy and expanding public sector, in the context of progressive developmental programmes. Even the Privy Council, way back in 1914, in Fram;ee Patit 42 I.A. 44 approved of the wide definition of 'public purpose.' This court has also taken a liberal view of 'public purpose'. In a host of cases beginning with Kameshwar AIR (1952 SC 889). Agrarian refom1, slum clearance to house the homeless, procuring a house for a dinlomat (Bombay v. Ali Gulshan: AIR 1955 SC 810) or an office for the State Trading Corporation, acquisition of land to construct a dharma shala, houses for members of a cooperative society housing scheme, Court of India' (Tripathi) have been regarded in decided cases as pub lic purposes.' Conceptually, it has a home-spun texture al tho' that public transport is a public purpose is self-evidence anywhere. The dyna mics of development must inform interpretation in this area.

There is a touch oi swadeshi about a country's jurisprudence anti so our legal notions must bear the stamp of Indian Developmental am plitude linked to constitutional goals. Counsel for the appellant, from his angle, produced before us the Industrial Policy Resolution o! the Government of India of April 6, 1948 and April 30, 1956 wherein considerable importance was attached to the national economy securin~ a continuous increase in production and equitable distribution. The 1948 Resolution itself pointed out that the State must play an increa> ingly active role in the development of industries. Many other item' were included for a progressive participation by the State by 1he time the 1956 Resolution was made. This fresh statement of Industrial policy took note of the constitutional preamble which, inter alia aimed at securing justice-social, economic and political. Articles³~ and 39 were also adverted to so that a precise direction might be given to the socialist pattern of society as the objective of social and economic policy. In particular, it was explicitly stated that 'the Stnte will pro gressively assume the predominant and direct responsibl!ty from settin~ up new industrial undertakings and for developing 'transpor• facilities'. Indeed, the State was to become the agency for planned national deve lopment and the socialistic pattern of sociey as the national objective required that all industries, of basic and strategic importance, or in the nature of public utility services should be in the public sector'. Titer,· was a division and distribution, in a broad manner, of industries and utilities between the private and the publlc sector. Stress was laid on the need to improve the Jiving and working conditions of workers a' well as their efficiency and a schedule in which road transport figure' (Schedule B) was appended setting out those categories which would be progressively State-owned and in which the State ·would therefore genera,lly take the intiative in establishing new undertakings.

When we ascertain the content of 'public purpose', we have to bear the above factors in mind which mean that acquisition of road trans port undertakings by the State will undoubtedly be a public purpose Indeed, even in England, 'public purposes' have been defined to mean such 'purposes' of the administration of the government of the country (p. 228, Words & Phrases Legally defined, II Edn.). Theoretically. or even otherwise, there is no warrant for linking un public ourposL· with State necessity, or in the court throwing off the State's declaration of public purposes to make an economic research on its own. It i• indeed sigoificant that in Section 40(h) of the Land Acquisition Act 1894, the concept of 'public use' took in acquisition for the construc tion of some work even for the benefit of a company, provided sucl1 work as likely to prove useful to the public. Even the American Constitution, in the Vth Amendment, uses the expression 'public use' and it has been held in India in Kameshwar that 'public purpose' i' that case :

"The phrase 'public purpose' has to be construed accord ing to the times in which particular legislation is enacted and so construed, the acquisition of the estates has to be held to have been made for a public purpose." (p. 942) In the same judgment. the learned j11dgc went on to state 'The legislatiure is the best judge of what is good for the community, by whose suffrage it comes into existence and it is not possible for this court to say that there was no public pur pose behind he acquisition contempated by the impugned statute." ( p. 941)

We have no doubt that this wider approach necessar11y means that a comprehensive signification has to be given to the expression 'public purpose'.

It is true that Cooley and Willoughby and Willis and other Ameri can writings and rulings and theories like 'eminent domain' and 'police powers' have been eruditely referred to in the early days of this Court. However useful they may be in helping to understand the scope 'public purpose', we have to be guided by the Directive Principles of State Policy while decoding the cryptic expression "public purpose'. Even in Kameshwar the Court referred to Article 39 and the preamble to the Constitution and the obligation to secure its citizens justice Social, economic and political. The reference, here and there, in the separate judgments delivered in that case to the 'necessities of the State' cannot cut back npon the ambit of the concept.

It is signiJicant that Das J. (as he then was) has in Kw>ieshwur, observed :

"We have been referred to some American authorities for ascertaining the meaning and implication of 'public me' an expression which obviously is of a more limited import than the expression 'public purpose used in our Constitution."

The learned Judge explains that the notion of 'public nse' is-rapidly changing in America, for in the modern view, 'public use' means 'useful to the public.'

It is right to remember, what has been mentioned in Shri Justice Das' judgment, that modern conditions and the increasing inter-depen dence of the different human factors in the progressive complexity of the community make it necessary for the government to touch upon and limit individual activities at more points than formerly. In Carpus Juris the meaning of the term is stated to be flexible and varying with time and circumstances. All that can be said is that it embraces public utility, public advantage, public interest or objec.t .

.

individual pervades our Constitution .... The words 'public purpose' used in Article 23(2) indicate that the Constitution used those words in a very large sense. In the never end-· ing race, the law must keep pace with the realities of the social and politica·l evolution of the country as reflected in the Constitution. If, therefore, the Sate has to give effect to this avowed purpose of our Constitution, we must regard as 'public purpose' all that will be calculated to promote the we!· fare of the people as envisaged in these Directive Principles of State policy whatever else that expression may mean."

This new outlook, in the words of Das J. brings in economic jus tice regarded yesterday as a fantastic formula, but is today a directive principle of State policy.

To conclude this branch of the discussion, there is no validity in Shri Sen's contention that because the Road Transport Corporation; Act, 1950, speaks of business principles as guiding State Transport Services, therefore taking over of private buses is not a public purpose. Nor is there any force in reading compulsive need or State necessity of some imperative urgency as a component of the concept of public pur pose. Speaking for ourselves, nothing that has been stated in the judgment of the High Court discussing the doctrine of 'eminent domain' and allied matters, or/in the submissions of Shri Sen conjuring up a grim picture of government acquiring even paper, pencil, ink. furniture, spares and tyres and cars and buses merely because they do not want to pay market price even when these items are abundantly available, does not deffect us from the conclusion that a Government which seeks to serve the community is entitled even for its commercial purposes to invoke its power of compulsory purchase, even when not driven by necessitous circumstances. We cannot confuse between abuse public power and limitation of public purpose.

The nexus between 'public purpo'se' and Part IV is also relevant. Sir Alladi Krishnaswami Ayyar in his speech in the Constituent Assembly said : 'No Government responsible to the people can afforti light-heartedly to ignore the provisions in Part IV of the Constitution. f As early as A. K. Copa/an (1950 SC 27), Chief Justice Kania state, with reference to Directive Principles, that 'it repre·sents not the tempo rary will of a majority in the Legislature but the deliberate wisdom of the nation'. Shri Justice Mathew explained this idea at the Second Kerala State Lawyers' Conference thus :

" ... State is not an end in itself, but only an instrumen tality, to be evaluated in terms of its contribution to the welfare of the political community. The concept of the laissez faire of the nineteenth century arose from a philosophy that general welfare is best promoted when the intervention of the State in economic and social matters is kept to the lowest possible minimum. The rise of the welfare State prO ceeds from the political philosophy that the greater economic vention of the Government and the adoption of public measures aimed at general economic betterment. Today, people cry for intervention of Government when anything goes wrong in any front. They demand interjection of Gov-

ernment in every aspect and sphere of life."

IVill 'public purpose' run riot?

The. consternation that if anything can be acquired compulsorily for a public purpose everything will be so acquired is understand able only if we readily grant that the Legislature and the Cabinet are the veils and vestments worn by a callous body irresponsible to the people and irresponsive to justice. There is a general presumption in favour of honest and reasonable exercise of power (State of West Bengal v. Anwar Ali Sarcar, 1952 SCR, 284, 301, per Patanjali Sastry J.). Of course not that gross abuse of power and demoniac departure from legal norms are unknown; even so we should have faith in Parliament which, ultimately, is responsible to the people who cannot be ignored by it for all time without imperilling it own existence. Repelling the argument of likely abuse of power, Das J. observed < 1954, SCR 587) :

"What is abnormal it our Constitution has trusted the legislature, as the people o[ Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or appre hend that our Parliament or State legislatures should act like mad men and deprive us of our property without any rhyme or reason ? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even if the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehen sion of such vagaries can be no justification for stretching the language of the Constitution to bring it into line with our notion of what an ideal Constitution should be. To do so is not to interpret the Constitution but to make a new Consti tution by unmaking the one which the people of India have given to themselves. That I apprehend, is not the function of the Court. If the Constitution, properly construed accord ing to the cardinal rules of interpretation. appears to some to disclose any defect or lacuna the appeal must be to the autho rity competent to amend the Constitution and not to the court."

(1954 SCR 587; 654; Subodh Gopal Bose) To take Sri Sen's illustration, if a law authorises-or government does-resort to compulsory acquisition of all its requirements of stationary or routine needs of public sector undertakings, with a view to pay nominal snm and ~et away with it, that Legislature or Gov ernment will, without the Court's services. go the way world histor3 sanctuary¹¹¹ a democracy against caprise dressed in 'little brief Juthority. If the act becomes so shockingly 1mqmt1ous to violate the law of life, the Court will have enough reserve power under the Constitution to speak for law aud to save the government from itself ! These extreme lurid, recondite picturi sations cannot be transformed into probabilities and realities.

we find little to complain in fairues·s of pro especially in a case where cedure or delivery of the end product. Of course, in a 'radical change' situation, certain classes, invoking vari1ishing values, may cry 'wolf'· and in any welfare legislation stray injustice is unavoidable. Perfection is God's property, to aim at its is human progres·s. We find no legal. flaw in the measure under attack.

We think it is a fallacy to deny the presence of public purpo>c· merely because its satisfaction by readily available private purchase is possible in the circumstances. It is for the State to decide whether it should pay market price and buy or resort to Article 31 (2) and pay an amount which may be administratively feasible but less than the market price. It may take on hire and not buy at all, it may requisi tion without paying full compensation. These arc the means which cannot be confounded with the ends and it is egregious error to roll up the two together. The entire object of Article 31 (2) is defeated if such a constricted construction or cramped meaning were to be given to the provision. ft is a social welfare handicap, a jurispruden tial error and a truncation of the State's constitutional power to ruk that it shall not 'seize' private property within Article 31 (2) unless II proves beyond reasonable doubt a scarcity situation, a public necessit0 and unavailability in the open market and the like. Yet this is the 'reasoning' which has had a fascination for the High Court. The spec• nus submission is tersely put by the High Court thus :

"It was argued that for compulsory taking over of the vehi cles w'th permits and o•her effects of the contract carriage operators, there was no necessity or need or, in other words, there was no nexus between the public purpose and the tak ing over of the particular property." (ILR 1976 Karuataka

1 1478, 1512) fhc accent was on need or necessity. The Court felt the pell of till' ratiocination and erroneously argued itself into convincing conclu siveness:

°'State necessity or need for taking the particular property of a citizen is the very foundation for the exertion of the power of E1nincnt Domain. If there is no Stale necessity or need for the particular property, then, in my opinion, the power of Ern!nc11t Don1ain cannot be exerted. Let n1e assun1c that the law provides for payin~ just compensation for taking the property of a citizen but there is no si:<Jtc nccc'5ity for taking over that property. In such an event. the property cannot be taken in an exercise of the power oE Eminent Domain. The ambit of legislative power conferre<l by requisitioning of property', in my opinion, carUlot comprehend the taking of private property by the state even on payment of just compensation if there is no state necessity. If there is no nexus between the taking over or private property and State necessity such a power cannot be exerted. I am of opinion that even if Article 31 is deleted from Part III of the Congitution, the State cannot acquire property of a citizen or make a law for acquisition of priyate property if the taking over has no relation to State necessity. Such a legislation will be ultra vires of the powers of the State Legislature." "There is material in the Act itself to show that the Legisla ture was conscious of the fact that the acquisition under section 4 is not for a public purpose . . . . . . . . . . . . . . . . . . When the purpose of the acquisition is 'deemed' to be a public purpose, the only meaning possible is that whereas tl1e purpose of the acquisition is not in reality a public purpose, the State Legislature requires the purpose to be treated as if it were a public purpose. It is rather an admission on the part of the Legislature that the purpose of the acquisition is not a public purpose." (pp. 1515-16)

If this were good law and logic, the States' operations might shrink into midget size with large spaces for laissez faire economics. The fiaw and fallacy of the law and the fetter on the State in this collStitu tional interpretation goes far beyond this Act and to mortality. We have no hesitation in visualising a wider horizon of public purpose as outlined by us earlier and consequentially to overrule the view. of the High Court. The people iu our welfare State await State undertakings in a we-alth of ways most of which involve compulsory taking of private property and this futurism argues for a wider connotation of public purpose. The aware court must remember the hint of Francis Bacon that 'it is a hard thing to torture the laws so that they torture men poor men hopefully looking forward for benignant State action. After all, ordinarily, the legislature will acquire compulsorily only if it considers it a proper measure to promote public good.

Compensatfrm vis a vis the 25th Amendment

The constitutional salvoes of Shri Sen were fired on the target of illusory compensation granted according to him, by the impugned Act. The amendment and recasting of Article 31 (2) would stand stiutified if the High Court were right that payment which is less than the dealer's price inclusive of sales-tax or does not make good the loans of the operators or spreads payments over long years awarding only 6% interest, is illusory aud unconstitutional.

We are not dealing with the details of the arithmetic arranged by the statute for payment of the amounts to persons interested iu the acquired properties since it is fairly clear, as explained by Shri Lal Narain Sinha, that the Act awards, through the arbitrator, an amount which is just and reasonable for those who· suffer deprivation of their view of the exceptionable construction adopted by the High Court, needs to be clarified unambiguously and declared decisively. Indeed, if the High Court were right in its holding on this branch, 27 years of decisions and amendments and decisions and amendments have taken us back to square one ! FuU compensation with a formal differ ence ! The Court will not question the 'adequacy' directly, but 'inter pret' the amended articles into the same desideratum. In this con dition of the Jaw, we deem it proper to dive to the beginnings briefly.

Right from the start the framers of the Constitution have been clear in their minds, as the debates, drafts, reports and resolutions show, that the amount payable when private property is taken by the

c State is a matter of legislative policy and not of judicial fixation. Speaking with a sense of history, the Father of the Nation used pro phetic words, as far back as the time of the Round Table Conference, while dealing with the issue of compensation :

"If the national government comes to the conclusion that the step is necessary no matter what interests are con cerned, they will be dispossessed and they will be dispos sessed. I might te11 you, without any compensation because if you want this Government to pay compensation, it will have to rob Peter to pay Paul, and that would be impossi

ble.~' He reminded the British masters again :

"I have in mind many things I would have to do in order to equalise conditions. I am afraid that for years together India would be engaged in passing legislation in order to raise the down-trodden. the fallen, from the mire into which they have been sunk by the capitalists, by the land-lords, by the so-ca11ed higher classes and then, subsequently and scientificaUy by the British rulers."

"If we are to lift these people from the mire then it would be the bounden duty of the National Government of India in order to set its house in order. continuaUy to give preferences to these people and even free them from the burden under which they are being crushed.

And if the landlords, zamindars, monied-men and those who are today enjoying privileges---1 do not care whether they are European or Indian-if they find that they are discrlminated against; I shall sympathise with them, but I will not be able to help them. It will therefore be a battle

between the haves and the have-nots."

Speaking as one of the foremost jurists of the country and with a sense of far-sightedness, Alladi Krishnaswami Iyer, in the Constituent Assembly, argued for legislative autonomy, without forensic interven tion in the m~r of fixation of compe11Bation and the principles in pies of compensation could not be the same in every species of acqui

"Law, according to me, if it is to fulfil its larger pur pose, must serve as an instrument of social progress. It must refielct the progressive social tendencies of the age- Our ancients never regarded the institution of property as an end in itself. Property exists for dharma, dharrna and the duty which the individual owes to the society ~om the whole basis of social framework. Dharrna is the law of social well-being and varies from yuga to yuga. Capitalism as it i! practised in the West came in the wake of the Industrial Revolution and is alien to the root idea of our civilisation. The sole end of the property is yagna and to serve a social purpose."

(Quoted from Fuudamental Rights & Socio-Economic

Justice-by K. P. Krishna Shetty-pp. 127-128) Shri Jawaharlal Nehru, speaking in the Constituent Assembly with refemnce to determination and payment of compensation emphasized that it was left to Parliament to determine the various aspects thereof

"there is no reference in this to any judiciary coming into the picture. Much thought has been given to it and there has been much debate as to where the judiciary comes in. Eminent lawyers have told us that on a proper construc m tion this clause, normally speaking, the judiciary should not and does not come in. Parliament fixes either the com pensation itself or the principles governing that compensation and they should not be challenged except for one reason where it is thought that there bas ben a gross abuse of the law, where in fact there has been a fraud on the Constitu tion. Naturally the judiciary comes in to see if there has been a fraud on the Constitution or not. But normally speaking, one presumes that any parliament representing the entire 'community of the nation will certainly not commit a fraud on its own Constitution and will be very much con cerned with doing justice to the individual as well as the

community. (p. 123, Krishna Shetty, supra) When complications arose on account of judicial interpretation of Article :11 not being in accord with what the framers of the Consti tution fancied, amendments to the Constitution came in. Jawaharlal Nehru, speaking on the 4th Amendment, which has sinoe been upheld by this Court, said in Parliament :

"If we are aiming, as I hope we are aiming and we repeatedly say we are aiming, at changes in the social struc ture, then inevitably we cannot think in terms of giving what is called full compensation. Why? Well, firstly because do it, unjust to do it, and it should not be done even if you can do it for the simple reason that in all these social mat ters, Jaws etc., they are aiming to bring about a certain structure of society different from what it is at present. In that different structure, among other things that will change is this, the big difference between the have's and the have-not's. Now, if we are giving full compensation, the havc's remain the have's and the have-not's, have-not's. It does not change in shape or form if compensation take:; place. Therefore, in any scheme of social engineering, if I may say so, you cannot give full compensation, apart from the patient fact that you are not in a position-nobody has the resources--to give it."

The divergence of thinking between those who framed U1e Con stitution and amended it and the summit judiciary showed up glar ingly in Cooper's case and then came the Constituiton 25th Amend ment Bill devoted primarily to overcome the effect of Cooper. While moving the Constitution 25th Amendment Bill which brought in Arti-

cle 31 C, the then Law Minister emphasized :

"Critics of the present measure seek to invest propert; rights with an aura of sacrosanctity by regarding it as a pn• mordial institntion of the Jaw of natnre. It is this approach which led the Snpreme Court in the Bank Nationalisation case to seek help from the now archaic and long-past dead theories of Blackstone who regarded property as a natnral right. Such a view is not only out of tnne with the juristic approach to the institution of private property in modern jmisprudence, but it is not in tune even with the native genius of ancient and traditional juristic thought in India. TI1e individual's right to private property must yield second place to the supervening right of society to acquire the pro perty for a public purpose. That is the eminent and domi nant basis of the amendment which the House fa called

upon to consider today."

The Law Commission also had, in its 46th Report, supported Article 31-C in the sense that Cooper's case was not in keeping with what they regarded as the intendment of the Constitution :

"Nehru described this position in his characteristically lucid words by observing :

"The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering. so long our work will not be

over."

,of the provision and were referred to in the parliamentary debates

:and so we excerpts portions thereof. Wrote the Commission :

"Reverting then, to clause 2 of the Bill, it would be no t'ccd that sub-clause (a) of this clause deletes the word 'compensation' and introduces in its place the word 'amount' in order to avoid any {;ontroversy about the adequacy of the amount which Parliament may direct to be paid in tho manner specified by the clause, where property belonging to a citizen is compusorily acquired or requisitioned. It also provides, as did Article 31 (2) in the unamended form, that a law passed by virtue of the powers conferred by Article 31 (2) shall not be called in ·question in any Court on the ground that the amount so fixed or determined is not adequate; and it adds that the said law cannot also be challenged on the ground that the whole or any part of such amount is to be given otherwise than in cash.

Sub-clause (b) of clause. 2 of the Bill inserts clause (2B) after clause (2A) in the existing Article, and it lays down that nothing in sub-clause (f) of clause (I) of Article J 9 shall effect any such law as is referred to in clause (2). In other words, an additional safeguard has been provided by clause (2B) which is sought to be introduced by the Bill to prevent any attack against the law passed under Article 31 (2) on the ground that any of its provisions contravene the fundamental rights guaranteed by Article 19( l) (F) ."

·specific mention is made of the Bank Nationalisation Case and its

poignant pertinence consists in the High Court still dinging to

'.Cooper :

"On a careful reading of the several opinions of the learned Judges in Keshavananda Bharati's case, I am of the clear opinion that the law hiid down in Cooper's case holds good." (ILR 1976 Kar. 1478, 1522)

·The Commission remarks :

"Every student of Constitutional Law knows that Parlia ment thought that it was n=ssary to make these provisions because of the recent decision of the Supreme Court in Rustom Covasjee Cooptr & Another \'. Union of India. Parliament presumably thought, and we think rightly, that the effect of this majority decision of the Supreme Court was in substance, to make compensation provided for by the impugned legislation justi~iable and sub_ject it to . the test of reasonableness under arucle 19 ( 5) ; and, to that extent the said decision is inconsistent with the view taken by the

& others. Indeed, ever since the Supreme Court had gene rally interpreted clause (2) of ArtiCJe 31 to mean that the adequacy of compensation directed to be paid by laws pass ed under the said clause was not justiciable as we have ex plained earlier, except in cases where it reasonably appear ed to the Court that the compensation was illusory or that the whole legislative exercise was a fraud on the. Constitution. But, in Cooper's case, the majority view appeared to strike a somewhat different note; and that, according to Parlia ment, made it necessary to introduce the amended clause (2) in Article 31. We think that, in the circumstances to which we have just referred, Parliament is justified in intro

ducing the amendment in question."

A seminal aspect of the changes wrought by the 25th Constitution

,. Amendment Act is the immunization of 'Article 39 enactments' from the viral attack of rertain fundamental rights (the attackers were al most never the poor !) . The Commission commented :

"By introducing this clause (31-C), Parliament is taking the first major and significant step to!"ards implementing two of the Directive Principles enshrined in clause (b) and (c) of Article 39 in Part IV of the Constitution, and, in that sense, the clause under consideration can be appropria tely described as historic. After it is adopNxl, Parliament will have heralded a new era in the pursuit of the goal placed before the nation by the Constitution to establish social and economic justice in this country. The Com mission is in full agreement with this object of the clause. In the two decades after the Constitution was passed, the inter-relation between the Directive Principles and Fundamental Rights have been often considered by the Supreme Court. The Directive Principles enshrined in Part IV are, in terms, declared to be non-justiciable and yet, Article 37, which makes this declaration, emphatically adds that the said principles are nevertheless fundamental in the governance of the country and it ordains that it shall be the duty of the State to apply these principles in making Jaws."

"In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positivre sense, free from the passivity engendered by centuries of co ercion by society and by nature, free from the abject phy sical conditions that had prevented them from fulfilling their best selves."

The High Court has referred to Cooper's case the ratio of which lo put it terselv-goes to the extent of saving that if any of the rele vant consideration in ascertaining the market value were not inclu ded. It ceased to be 'compensation' within the meaning of Article expression 'compensation' and substituting the neutral word 'amount' and restructuring the Article effectively to exclude judicial examina tion even of the principles of evaluation, the challenge to the consti tutionality of that constitutional amendment and the elaborate Bharati ruling upholding, by a majority, the vires of the Amending Act. And yet, the High Court has, after selectively culling out passages from the bunch of opinions in Bharati come full circle to Cooper again. This about-turn is untenable in our \<iew and it is necessary to run rapidly bnt in a short compass through the multiple views expressed by the many judges who heard and pronounced.

Bharati-the majority opinion-blinds us. What, on the question of payment for taking was the preponderant view ? Sikri C.J. per mitted a narrow area for judicial inspection and readily accepted that full compensation was not a fundamental right. The Court could satisfy itself only about the amount not being a monstrous or un principled under-value. Cooper was dead by this test. The learned Chief Justice said :

": . ; What meaning is to be given to the expression 'the amount so fixed'. The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with some principles because it could not have been- intended that if the amount is fixed by law, the legis latnre would fix the amount arbitrarily. It could not, for example, fix the amount by a letter .

• • • * * * If I were to interpret Article 31 (2) as meaning that e:ven an arbitrary or illusory or a grossly low amount could be given, which would shock not ouly the judicial con science but the conscience of every reasonable human being, a serious question would arise whether Parliament has not exceeded its amending power under Article 368 of the Constitution. The substance of the fundamental right to 'property, under Article 31, consists of three things : one, the property shall be acquired by or under a valid Jaw; se cond, it shall be acquired only for a public purpose; and, thirdly, the person whose property has been acquired shall be given an amount in lieu thereof, which, as I have already said,· is not arbitrary, illusory or shocking to the judicial conscience or the conscience of mankind."

(196-197 pp) The payment may be substantially less than the market value, the principles may not be all-inclusive, but the court would not, because it could not, upset the taking save where the principles of computation were too arbitrary and illusory to be unconscionably shocking.

Shri Justice Shelat, with the concurrence of Shri Justice Grover, put his viewpoint thus :

. "It is significant that the amount can be determined in

accordance with specified principles, if it is not fixed by the a court. The use of the word 'principles' anu the question of inadequacy can only arise if the amount has some norm. If it has hO ,1orm no question of specifying any principles arises nor can there be any occasion for the determination of its adequacy. The very fact that the court is debC'tred Jrom going into the question of adequacy shows that the 'amount' can he adequate or ilwdequate. Even if it is the

~uodequate, fixation er determinaiion of the a111ount is h-nn·,;;111e fron1 any challenge. It postulates the existence of some standard or norm without which any enquiry into adequacy becomes wholly unnecessary and irrelevant." (p. 283) (emphasis, add ed).

* * • • * *

''It is true that the 'amount' to be paid to an owner may not be the market value. The price of the prape1ty might have increased owning to various factors to which no contri bution has been made by the owner. The element of social justice may have to be taken into consideration ......... . The Court will certainly give due weight to legislative judg ment. Bul the norm or the principles of fixing or determin ing Lhe 'amount' will have to be disclosed to the Conrt. It will haw to be satisfied that the 'amount' has reasonable relationship with the value of the property acquired or re qui:-:it ioned and one or more of the relevant principles have been applied and further that the 'amount' is neither illusery nor it has been fixed arbitrarily, nor at such a figul'e that it means virtual deprivation of tM right under Article 31(2). Tk question of adequacy or inadequacy, however, cannot be gone into" (pp. 284-85) (emphasis; added).

Hegde J. discussed the question from lexicographic, political and social

ani:les and held :

"The market value of a property is the result of an inter action of various forces. It may not have, any reason21ble relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various contributions made by the society snch as improvements effected by the State in the in ques

lo~ality tion or the conversion of a rural area into an urban area. It is undoubtedly open to the State to appropriate to itself that part of the market value of a property which is not the result of any contribution made by its owners. There may be several other relevant grounds for fixing a particular 'amount' in a given case or for adopting one or more of the relevant p>;nch>les for the <letermination of the price to be paid. In all these matters the legislative judgment is entitled to great wci~ht. It will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has no reasonable relationship to the valne of the property acquired or that the 'amount' to be paid has been arbitrarily fixed or that the same is an illusory return for the property taken. So long as the basis adopted for computing the '"Jue of lhc property is relevant to the acquisition in question or the amount fixed can be justified on any such basis, it is no more open to the court to consider whether the amount fixe1 or to be determined is adequate. But it is still open to the court to consider whether 'amount' in question has been arbltrarily determined or whether the same is an illusory return for the property taken. It is also open to the court to consider whether the principles laid down for the determination of the amount are irrelevant for the acquisition or requisition in qucstio11. To put it differently, the judicial review under the amended Article 31 (2) lies within narrow limits. The court cannot go into the question whether what is paid or is po.yable is compensation. It can only go into the question whether the 'amount' in question was arbitrarily fixed as illusory or whether the principles laid down for the purpose of determin ing the 'amount' payable have reasonable relationship with the value of the property acquired or requisitioned." (pp. 341- 342).

Even here we may excerpt Hegde J's highlight of Part IV :

"Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be ful filled after independence. The aim of the Constitution is not to guarantee certain liberties to only a few of the citizens but for all. The Constitution visualizes our society as a whole and contemplates that every member of the society should participate in the freedoms guaranteed. To ignore Part IV is to ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built. Without faithfully implementing the Directive Principles, it is not possible to achieve !he Welfare State contemplated by the Constitution. A society like ours stepped in poverty and ignorance satisfying the minimum eco nomic needs of every citizen of this country. An;- Govern ment which fails to fulfil the pledge taken under the Consti tution cannot be said to have been faithful to the Constitution . and to its commitments." (343-344).

Reddy J. in short paragraph disposed of the question :

"Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it is fixed are found to bear reasonabie relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or deter mined on the basis of such principles." (p. 555).

Our learned brother Chandrachud J. explained his stand effectively "The specific obligation to pay an 'amount' and in the alternative the nse of the word 'principles' for determination of that amount must mean that the amount fixed or deter mined to be paid cannot be illusory. If the right to pro perty still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him : 'I will take your fortune for a farthing:." (p. 992-993).

"As at present advised, I am inclined to the view which as I have said is unnecessary to discuss fully, that though it is not open to the court to question a law under Article 31 (2) on the ground that the amount fixed or determined is not ade quate, Courts would have the po\Ver to question such a law if the amount fixed thereunder is illusory; if the principles, if any are stated, for determining the amount are wholy irrelevant for fixation of the amount, if the-power of compulsory acqui sition or requisition is exercised for a collateral purpose; if the law offends constitutional safeguards other than the one contained in Article 19(1)(f); or, if the law is in the nature ,,f a fraud on the Constitution. I would only like to add, by way of explanation, that if the fixation of an amount is shown to depend upon principles bearing on social good it ;nay not be possible to say that the principles are irrelevant." (p. 993) (emphasis added)

It is regrettable that two significant points made by brother Chandrachud J. have slipped out of the scrutiny o( the High Court and we have emphasized them for identification. Are the principles wholly irrelevant? Do the principles bear on social good? In the present case, few will agree that the principles are wholly irrelevant or not geared to social good.

The majority view in Bharati was set out by the Court and there it was sLqted: Section 2(a) and (b) of the Constitution (25th Amend ment) Act, 1971 is valid. Glosses apart, the provision excludiug the court's power to investigate either the adequacy of the amount or the propriety of the principles to determine the amount was upheld. ft follows that individual annotations notwithstanding the Court has set its seal of validity on Article 31 (2). Nothing covered by it can now be available for examination using passages in separate opinions. Tile result is the quantum of the amount or the reasonableness of the principles are out of bounds for the Court. Article 31 C has also been upheld subject to the rider that there should be nexus between Article

of J9 (b) and (c) and the object the acquisition. Our learned brother, Chandrachud J., has struck a middle note and pointed out that where the inputs of valuation prescribed by the statute are wholly irrelevant or unconnected with Social good, then Article 31 (2) may not retrieve the statute. It is a far cry from this observation to the position that the 25th Constitution Amendment leaves untouched the ratio in Cooper. We have pointed out how the said constitutional amendment was expressly undertaken, inter aha, to undo the effect of Cooper and to forbid forensic diagnostics into the question of compensation. In this light it is difficult to uphold the view of the High Court that Cooper survives after death and keeps virtually alive the obligation for payment ·Of market value inclusive of the usurious rates of interest at which the owner borrowed to buy the property seized by the state.

This takes us to the non-negotiable minimum of nexus between the purpose of the acquisition and Article 39(b). Article 39(c) was feebly mentioned but Article 39 (b) was forcefully pressed by the appellant. Better read Article 39 (b) before discussing its lull import :

"39(b) Certain principles of policy to be followed by the State.--The State shall, in particular, direct its policy towards securing that the ownership and control of the material re sources of the commiiiilly are so ·distributed as best to sub

serve the common good."

The key word is 'distribute' and the genius of the article, if we may say so, cannot but be given fully play as it fulfils the basic purpose of re structuring the economic order. Each word in the article has a strate gic role and the whole article is a social mission. It embraces the entire material resources of the community. Its task is to distribute such resources. Its goal is so lo undertake distribution as best to subserve the common good. It re-organizes by such distribution the ow11ership .and control.

'Resources' is a sweeping expression and covers not only cash re- I/ sources but even ability to borrow (credit resources). Its meaning given I in Black's Legal Dictionary is :

"Money or any property that can be converted into sup lied; means of raising money or supplies; capabilities of rais ing wealth or to supply necessary wants; available means or

capability of any kind."

And material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merefy natural resources, all the private and public sources of meeting material needs, not merely public possessions. Every thing of value or use in the material world is material resource and the individual being a member of the community his resources are part of those of the com munity. To exclude ownership of private resources from the coils of · Article 39(b) is to cipherise its very purpose of redistribution the socialist way. A directive to the State with a deliberate design to dis mantle feudal and capitalist citadels of property must be interpreted in that spirit and hostility to such a purpose alone can be hospitable to the meaning which excludes private means of production or goods pro duced from the instruments of production. Sri A. K. Sen agrees that private means of production are included in 'material resources of the community' but by some baffling logic excludes things produced. If a car factory is a material resouree, why not cars manufactured ? 'Material' may cover everything worldly and 'resources', according to Random House Dictionary, takes in 'the collective wealth of a country converted into money; assets.' No further argument is needed to conelude that Article 39(b) is ample enough to ropo in buses. The motor vehicles are part of the material resources of the operators.

The next question is whether nationalisation can have nexus with. distribution. Should we assign a narrow or spaciorn sense to this concept? Doubtless, the latter, for reasons so apparent and eloquent. 'distribute', even in its simple dictionary meaning, is to 'allot, to divide into classes or into groups' and 'distribution' embraces 'arrangement, classilication, placement, disposition, apportionment, the way in which items, a quantity, or the like, is divided or apportioned; the system of dispersing goods throughout a community' (See Random House Dic tionary). To classify and allocate certain industries or services or utilities or articles between the private and the public sectors of the national economy is to distribute those resources. Socially conscious economists will find little difficulty in treating nationalisation of trans port as a distribuiive process for the good of the community. You can not condemn the concept of nationalisatfon in our Plan on the score that Article 39(b) does riot envelope it. It is a matter of public policy left to legislative wisdom whether a particular scheme of take·over should be undertaken.

Two conclusions strike us as quintessential. Part lV, especially Article 39(b) and (c), is a futuristic mandate to the state with a message of transformation of th~ economic and social order. Firstly, such change calls for collaborative effort from all the legal institutions. ol the system : the legislature, the judiciary and the administrative machinery. Secondly and consequentially, loyalty to the high pur pose or the Constitution, viz., social and economic justice in the con text of material want and utter inequalities o;n. a massive scale, com pels the court to ascribe expansive meaning to the pregnant words nsed with hopeful foresight, not to circumscribe their connotation into con tradiction of the objectives inspiring the provision. To be Pharisaic towards the Constitution through ritualistic construction is to weaken the social-spiritual thrust of the founding fathers' dynamic faith.

An American political scientist, Benjamin Twiss, commented with jarring exaggeration upon the conservative perspective of the lawyer in the United States of the slump years in the 'thirties :'

"It is not surprising that lawyers' fame is evanescent .... Allied with those who are pre-occupied with production and profits to the exclusion of standards of consumption and gene ral well-being, lawyers have taken a negative rather than a creative and constructive attitude toward social development. · In defending rights of untramrneHed enterprise against rules of fair play and in presuming the unconstitutionality of legisla tive enactments, they have missed their cue to the role of con structive leaders and have been instead dogs in the manger." (Lawyers for Social Change : Perspectives on Public Interest Law : by Robert L. Rabin Stanford Law Review Col.

28, No. 2, January 1976).

to ex abundant; cautela. Law and Development in India should repel, as far as possible. such an unlovely judgment 011 Indian jural perspec tives and performances. The Court and counsel have a justice consti tuency with economic overtones, the manifesto being the Co11stitution designed to uphold the humanist values of life, liberty and the equal pursuit of happine·ss, material and spiritual.

An Explanatory Post·script to our juristic Attitude

We have been guided by the thought that an all-too-large gap bet ween the law and public needs, arising out of narrow notions, must oe bridged by broadening the constitutional concepts to suit the changing social consciousness of the emerging Welfare State. Institutional crises and confrontations can be and should be avoided by evolvi11g a prog ressive interpretation, discarding over-sensitivity to under-valuation when private property is taken for public good. 'A legal system that works to serve the community' says Bernard Schwartz, 'is better than the academic conceptions of a bevy of Platonic guardians unrespmisivc to public needs'. The law, in the words of Justice Holmes, is a magic mirror in which we see reflected not only our own lives but also the lives of those who went before us-and may we add, of those who come after us. But basically we have brought fo bear upon the im pugned legislation a value judgment in tune with the 'welfare' wav~ length of our Constitution and the still, and music of Indian humanity. 'The law moves with the main currents of the society it regulates. Each society has its o\\·n values which nre necessarily reflected in the ends that the legal order seeks to further. The ends of law are attained oy recognizing certain interest, defining the limits within which they shall be recognized legally, and endeavouring to secure those interests that are within the limits defined.' (Quoted from the Law in America Bernard Schwartz-p. 34) We have recognised that rights and obliga tions of long ago do not acquire a static validity in our galloping age and a decent oblivision must put· them back into forgotten antiquity if we, as a nation, are to run on the rails of the rule of law and so we have nullified the attempt to drift back from Bharati to Cooper on 'compensation'. A blend of law as a set of responses to the new needs of expanding society and of Daniel Chapman's advice that 'the known oertainty of the law is the safety of aU', has played upon our approach. We are aware that in constitutional construction, a limited judicial law making is inevitable 'juristic chemistry', to borrow Roscoe Pound's exprei;sive phrase. "The chemist does not make the materials which go into his test tube : He selects them and combines them for some purpose and his purpose gives form to the resuli.' Our constitution makers have had due regard to the felt necessities of the time and the philosophical and political theories about what would best serve the country's progress; and so we have grounded ourselves on these solid prescriptions undeflected by speculative niceties lent by literal study and possible injuries inevitable in reshaping society. 'The object and end of all Government is to promote the happiness and prosperity of the community by which it is established', wrote U.S. Chief Justice Taney, 140 years ago in Charles River Bridge v. Warren Bridge and we, in a republic with an irrevocable tryst to give social justice in the To be stable is not to stand still; to move forward and reconcile is the road to the goal-juridical engineering geared to desiderated policy ob jectives, being the key to most constitutional problems. Not unoften, the subjective philosophy of the judge underpowers the philosophy of the Constitution while it should be overpowered by it. Cardozo, with apt elegance, struck this note :

"The great tides and currents which engulf the rest of man do not turn aside in their course and pass the Judges

by." Cardozo, The Nature of Judicial Process, 1932, P. 170. Taking this warning to head, we have also to take the Constituent Assembly's hope to heart :

"The Judiciary was to be the arm of the social revolution, upholding the quality that Indians had longed for in colonial days ...... The courts were also idealised because, as guardians of the Constitution, they would be the expression of a new law created by India_ns for Indians."

-Granville Austin, The Indian Constitution.

The Discovery of Law India by interpreting liberalli to embrace the higher values of collective good and to curb, where necessary, indi vidual property rights, is all that we have endeavoured to do. We have been cautioned by appellant's counsel that governments may usurp and destroy if judges do not cry halt. Where arbitrary, oppressive and ma/a fide misuse of power is a real peril. the court shall not fail. But to intervene and strike down, because a measure, within the constitu tional bounds, may work hardship for some but is conceived for the good of the many in keeping with the planned process of Development, has a 'Tory' touch. Canonisation of laissez faire cannons by the Court is to move counter-clockwise. Lord Sankey held the view that in the field of constitutional Law, progressive and dynamic interpretation in the light of political developments must dominate (see : British Coal Corporation v. The King : 1935 AC 500). Lord Jowitt L.C. in Attor ney General of Ontario v. Attorney Gen. of Canada (1947 AC 503) affirmed the same approach :

"To such an organic statute the flexible interpretation must be given that changing circumstances require, aiid it would be alien to the spirit with which the preamble to the Statute of Westminster is instinct, to concede anything less than the widest amplitude of power to the Dominion legisla ture under section 101 of the British North America Act."

Legalism has to yield when spacious issues arise. "Whatever the legal aspect of the thing, tKere are moments when it is a feeble need to rely on," said Nehru, in the Constituent Assembly (I Constituent Assembly Debates, p. 61) .

There is another stark possibility the Administration sliding back from the progressive constitutional values to protect private interests; and then the Court may be activate the 'welfare jurisprudence' of the Constitution by appropriate commands.

M.R.

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