Unquote: If Prof. K.T. Shah was assured ( by whom & when) is correct, then does it need a Nine Judge Bench to consider it ?
Please clarify.

@Anirudh, I agree – a judge will ultimately fail to be entirely apolitical. But I don’t think that is a reason to abandon the task as hopeless, especially when he confronts a case where the law is clear. Again, the best exposition of this view I’ve read is Mr. Seervai’s book, Vol. I, Interpretation of the Constitution.

You assume that the law exhausts all possible solutions in matters before the court. That is quite clearly false. Courts make law, whether we like it or not.

The decision of the Constitutional bench reconsidering Sanjeeva Coke would be interesting. However, subject to correction, they are looking into only one aspect of the decision (which was raised in Property Owners’ Association v. State of Maharashtra). Jusitce Reddy did not go into the issue of whether the pre-42nd Amendment Article 31C automatically revived post-Minerva Mills or whether Article 31C ceased to exist in any form post-Minerva Mills. This issue, I believe, is still pending before the Court.

With great respect to Justice Chinappa Reddy, I believe Sanjeev Coke is wrongly decided and deserves to be overruled by the Bench constituted a few years ago to consider it. Mihir has written a wonderful article on the subject at 21(1) NLSIR – I’ll post a link if I can find one. In short, Krishna Iyer J. had held in Ranganatha Reddy (in a concurring opinion, and possibly in obiter) that Art. 39(b) of the Constitution includes “private property”, relying on the word “distribution” used there. There is no clear explanation in the judgment of why this is the case, but it was accepted as law by Chinappa Reddy J. in Sanjeev Coke and subsequently, until it was doubted by a Constitution Bench in Property Owners. The difficulty with Chinnappa Reddy J.’s thesis, as Mihir points out in more detail, is that it does not distinguish between “acquisition” of property and collection of taxes – it implies that tax collection for the common good is beyond the pale of FR scrutiny, which is not the case.

Finally, the Constituent Assembly debates strongly (almost conclusively) demonstrate that Sanjeev Coke is incorrect. As Mr. Seervai points out, discussions on a draft proposed by BN Rau, if I remember correctly, demonstrate that the Constituent Assembly did not consider Directive Principles to be enforceable or justiciable. Further, Mr. Seervai argues persuasively that the drafters always intended Part III to override Part IV – while that is not the position the Supreme Court has taken today, it could not be further from the one Chinnappa Reddy J. proposes. Moreover, an amendment moved by Prof. KT Shah to exclude “private property” from Art. 39(b) was withdrawn on the assurance that that was already the case.