Can the judiciary infuse philosophy into law? The Property Owners Association case

The scope of property rights has always been a complex legal subject. 

When analysed against a jurisprudential back drop, the concept of property is only second to the concept of 'person' in its importance. 

The scope of a person's interconnection with property is a major concern to law because it ultimately decides the dos and don’ts with respect to property. 

This interconnection is the second most important concern of law, the first being the scope of interconnection between persons. 

In the context of property, the societal as well as political ideologies get further burdened with economic philosophies when it comes to determining the scope of property rights. 

At the same time, the legal control of interconnections between two persons is also part and parcel of the legal system. 

Thus, the larger philosophy governing such relations, whether it stems from the bucket of sociology, political science or economic theories, should equally reflect in determining the scope of proprietary rights of the persons. 

To put it simply, the philosophies and theories governing interconnections between person should be equally applicable to determine the scope of interconnections between persons and property.

Even though the author is not subscribing to the idea of pigeon holes for specific theories, beyond the nomenclatures, each theory has some elements that are specific to it, which differentiate it from others. 

In such a context, unless there are clear objections to such a separation, the relevance of treating ideas as fitting into different pigeon holes is necessary for a logical analysis. 

At the same time, there are areas in different theories that converge. Such convergence makes it appropriate to put such theories in the same bucket. 

However, as mentioned earlier, as and when the homogeneity disappears, there is a need to treat such theories differently.

The philosophy behind the scope of legal control over person-to-person interactions and person-to-property interactions should have a homogeneity that properly converges on a specific philosophy. 

In the context of a political system, such philosophy becomes part of the political ideology or policy of the system.  

There can be objections to such an idea, wherein there may be an argument that demands a totally different philosophy operating on person-to-person interactions and person-to-property interactions. Such an argument can exist, but could result in contradictions in many spheres. 

A system may award a high degree of individual freedom but not do the same with respect to proprietary elements. 

The said limitation is brought by the legal system because the State demands strong control over proprietary rights, thereby limiting the scope of private property rights. 

The usage of the term 'private property' is to highlight its differences from public property. In such a scenario, the law gives the subjects an extended scope of individual freedom. However, the same is limited in the scope of enjoyment of proprietary rights. 

Now the larger question is whether individual freedom can be enjoyed within the curtailed scope of proprietary rights. 

It may be noted that modern political theories and the resultant legal structures all evolve out of the earlier tribal concept of community living, which has since transitioned into a system involving a larger political organization. 

The concept of community living could have been a success only when the said community shared many things. The existence of such a unity is considered predominant to the community members.

However, in the context of a system where individuals are more predominant or where individuals have high amounts of individual freedom, the system expects individuals to exercise that freedom and thereby utilise their full potential in their contributions, by which society will get positive benefits. 

In such a scenario, the element of proprietary rights also becomes a relevant factor. The progressive amplitude of an individual’s freedom starts from his freedom to express and then moves through the freedom to socialise and form collectives and to move out freely to acquire property, to get settled in such property and to engage in an occupation. 

This is the idea that takes care of all the attributes of a particular person, in the context of individual freedom. 

The extent of proprietary rights is a significant factor in this context. The grant of freedom needs to complement and supplement each aspect of this structure. A person who has a high degree of freedom of speech and expression cannot be given a restricted freedom of occupation because such an occupation may require a high degree of proprietary rights.

In independent India, the move to introduce land reforms to avoid the concentration of property holding and to redistribute the same was based on a larger socialist philosophy. This was evident from the Supreme Court’s decision in the Kesavananada Bharati case. The cautionary move of taking out the concept of right to property from the bouquet of individual freedoms under Article 19 of the Constitution also reflected this approach.

The relevance of a philosophical unity can be identified in such a context.  Such a specific philosophical justification ensures that there is continuity and coherence in the larger legal structure. Otherwise, there will be contradictions in different aspects of even a singular concept. 

This can be exemplified by examining the pattern followed by the Supreme Court of India. 

The 1970s demonstrated a significant journey of the Supreme Court on various subject areas. The determination of the scope of property rights, which more or less culminated in the Kesavananda Bharati case, happened in 1973. 

On the other hand, the Maneka Gandhi case heralded new vistas for individual freedom. 

When it came to proprietary rights, there was a philosophy that was induced into the legal structure, which was triggered by the legislature and confirmed by the judiciary. 

On the other side, cases concerning individual rights were also addressed by the Supreme Court through an elaboration of Article 21, whereby the scope of Article 21 was interpreted for the benefit of individual freedoms at the cost of the state’s power. The Supreme Court attributed a due process clause in Article 21, and through a series of cases ensured that it is a part of the golden triangle formed by Articles 14, 19 and 21. 

Thus, the Supreme Court concretised the relevance of individual freedom above and over anything. This broad interpretation of individual freedoms is a part and parcel of a system that does not believe in the socialist philosophy.  In the same decade, the Supreme Court took a narrow view of the proprietary rights of individuals. On the other hand, it took a very wide perspective when it came to individual freedoms, even going against the specific intention of the Constituent Assembly.

In the recent Property Owners Association case, which involved a long-pending batch of matters before the Supreme Court, a nine-member Bench decided on the scope of proprietary rights. 

The said decision is composed of three judgments. The majority judgment was authored by then-Chief Justice DY Chandrachud for himself and six other judges.

Justice BV Nagarathna gave a different, partly concurring opinion and Justice Sudhanshu Dhulia rendered a dissenting opinion. 

The majority opinion in the said decision, in a way, widened the scope of proprietary rights. 

The Constitution was drafted and accepted by the Constituent Assembly after substantial deliberation, and documented in the form of Constituent Assembly Debates.

The extent of analysis and the philosophy that the framers bore in mind are evident from the same. The structuring of concepts into the provisions of the Constitution also shows a coherent form. 

The different stances of the apex court on two aspects of individual liberty - one triggered by the legislature and the other triggered by individual litigants - brought in two different philosophies. 

The first one, that is scope of proprietary rights, was to some extent confirmed by the Supreme Court by sanctifying the position taken by the legislature. 

The second one, on the scope of individual freedom, was brought into the Constitution through an interpretation technique that contradicted the original intention of the Constitution's makers.  

In the Property Owners Association case, the Supreme Court diluted the element of proprietary rights, favouring the right of the individual or, rather, limiting the scope of the State. 

So, presently, the Constitution that was created by the Constituent Assembly has been reworked by the above series of judgments, and what remains is what has been created by the Supreme Court. 

Unlike the earlier position, the philosophy underpinning a larger amplitude for individual freedoms is coherent.  However, the said philosophy is not one that was originally envisioned by the Constituent Assembly. 

Hence, the question remains - Can the judiciary infuse philosophy into law?

About the Author: The columnist is a lawyer with Vijayaraghavan and Devi Advocates and practices before the Kerala High Court.

Disclaimer: Views expressed are of the author and do not necessarily reflect the views of Bar & Bench.