What Has Not Changed Is the Inequality: Sudhanshu Dhulia's Dissent in Property Owners' Association v. State of Maharashtra

On 5 November 2024 a nine-judge Constitution Bench overruled the broad Krishna Iyer / Sanjeev Coke reading of Article 39(b) that had stood for forty years. Justice Sudhanshu Dhulia dissented on Part D of the judgment. A reading of his 50-paragraph opinion on material resources, distributive justice, and the constitutional vision of the freedom struggle.

On 5 November 2024 a nine-judge Constitution Bench of the Supreme Court overruled a line of authority that had stood for forty years. The line ran from Justice V.R. Krishna Iyer’s opinion in State of Karnataka v. Ranganath Reddy (1977) through Justice O. Chinnappa Reddy’s judgment in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (1983) and onward through a succession of Constitution Bench decisions. The line read the phrase “material resources of the community” in Article 39(b) of the Constitution expansively: everything of value or use in the material world, including privately owned resources, fell within its ambit. The majority in Property Owners’ Association v. State of Maharashtra, speaking through Chief Justice D.Y. Chandrachud, rejected this reading. Privately owned resources may be material resources of the community, the majority held, but not all of them are; legislatures and courts must apply a multi-factor test to determine which resources qualify. Justice Sudhanshu Dhulia concurred with the majority on Part C of the judgment (the survival of the unamended Article 31-C after Minerva Mills) but dissented sharply on Part D (the meaning of Article 39(b)). He would have affirmed the Krishna Iyer / Sanjeev Coke formulation in its entirety.

The line at which the dissent’s framing rests appears at paragraph 5 of his opinion. The dissent opens its substantive argument by invoking Justice Louis Brandeis: We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.¹ The epigraph is not ornamental. The dissent’s argument is that Article 39(b) was framed under the influence of exactly this thought — that political democracy without economic redistribution is incomplete — and that abandoning the expansive reading of “material resources of the community” is therefore not a clean doctrinal correction but a substantive shift in the constitutional vision.

The dissent’s engagement with the historical record, with the Constituent Assembly debates, with the precedent chain, and with the persistence of inequality in contemporary India, is organised around this proposition.

The case the nine-judge bench was asked to decide

The reference reached the nine-judge bench through a long procedural path. A five-judge Constitution Bench had referred the question to a seven-judge bench, which in turn referred it to nine. The substantive question was narrow but consequential: whether privately owned resources fall within the phrase “material resources of the community” in Article 39(b) such that legislation acquiring or redistributing them in furtherance of distributive justice would qualify for the protection of Article 31-C against fundamental-rights challenge. The case before the Court arose under Chapter VIII-A of the Maharashtra Housing and Area Development Act, 1976, which permitted state acquisition of dilapidated buildings in Mumbai.

The doctrinal terrain was already laid out. In Ranganath Reddy, a seven-judge bench upheld the Karnataka Contract Carriages (Acquisition) Act, 1976, by which the State had acquired all privately owned contract carriages and transferred them to the Karnataka State Road Transport Corporation. The four-judge majority reached the result on harmonious construction, deciding the case without ruling on Article 39(b). The three-judge minority — Justices Krishna Iyer, Bhagwati, and Tulzapurkar — wrote separately to deliver the now-famous reading of Article 39(b): material resources of the community embrace all national wealth, private and public, every resource of value or use in the material world. Six years later, in Sanjeev Coke, a unanimous five-judge Constitution Bench led by Justice O. Chinnappa Reddy adopted the Krishna Iyer reading as the law. The reading then held the field through State of T.N. v. Abu Kavur Bai, Tinsukhia Electric Supply, Madhusudan Singh, Basantibai Khetan, Assam Sillimanite, and Jilubhai Khachar — a span of nearly two decades of Constitution Bench affirmation.

The majority opinion in Property Owners’ Association retired this reading. The opinion held that the Krishna Iyer formulation was “flawed,” that its rhetorical scope outran the textual content of Article 39(b), and that future legislatures and courts must apply a non-exhaustive list of factors — the resource’s scarcity, the consequences of its concentration in private hands, the impact of its private ownership on the community — to determine whether a privately owned resource qualifies as a material resource of the community in any given case. The dissent’s objection to this framework is set out at paragraph 3 of his opinion: I cannot accept the finding of the learned Chief Justice on the second part of his judgment. The majority’s reading, the dissent observes, restricts the legislature to a non-exhaustive list of factors and holds that not all privately owned resources are material resources of the community — a pre-emptive determination that, on the dissent’s view, the Constitution did not call for.

The freedom struggle and the constitutional commitment to redistribution

Paragraphs 4 to 10 of the dissent set out the historical framing on which the substantive argument turns. The constitutional question, the dissent observes at paragraph 4, “is not simply a legal or constitutional question. The question is as much rooted in our modern and contemporary history, as it is in law.” The interpretive method that follows is purposive: paragraph 6 cites Aharon Barak for the proposition that constitutional text is only the starting point of interpretation, not the end point, and that the meaning of the text must be located within its general context.

The context the dissent reconstructs is the political-economic vision of the Indian freedom movement. The 1931 Karachi Resolution of the Indian National Congress, the dissent observes at paragraph 8, called for the State to “own or control key industries and services, mineral resources, railways, waterways, shipping and other means of transport” — a forerunner of Part III and Part IV. The Karachi Resolution treated democracy as another name for socialism, equality, and the redistribution of wealth.

The Bombay Plan of 1944–45, examined at paragraph 10, is treated by the dissent as evidence that the redistributive vision was shared even by the leaders of Indian industry. The plan’s signatories — JRD Tata, GD Birla, Sir Ardeshir Dalal, Lala Shriram, Kasturbhai Lalbhai, Purushottamdas Thakurdas, AD Shroff, and John Mathai — accepted, in the dissent’s description, “as fait accompli the dominant role of socialism in the economic policies of the national government” while seeking to carve out a continuing space for private capital. The industrial class itself recognised that the State would have to be the principal investor in dams, roads, railways, and heavy industries because the necessary capital was not yet in private hands. The Bombay Plan and the Karachi Resolution were two articulations of a shared political-economic consensus.²

Ambedkar’s closing speech to the Constituent Assembly on 25 November 1949 is the dissent’s third historical anchor. “On the 26th of January 1950,” Ambedkar said, “we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality.” The warning that followed — that those who continue to suffer inequality will eventually “blow up the structure of political democracy which this Assembly has so laboriously built up” — is treated by the dissent as the operating constitutional concern of Articles 38 and 39. The dissent quotes Ambedkar twice: in paragraph 5 as part of the historical framing, and again at paragraph 50 as the operative premise of the conclusion that the expansive reading of Article 39(b) must be preserved.

Constituent Assembly debates and the language of Article 39(b)

Paragraph 20 turns to the Constituent Assembly debates on Article 39(b) itself. The amendment moved by K.T. Shah would have specified the phrase “material resources of the community” to encompass natural resources, minerals, and similar categories. Ambedkar’s response was to oppose the amendment. “It is always better,” he told the Assembly, “to keep some expressions in general terms since these are being incorporated in a Constitution.” Elaboration would, in Ambedkar’s phrase the dissent emphasises, “arrest and limit” the meaning of the constitutional text.

The dissent treats this exchange as decisive. The framers, faced with a choice between an enumerated list of resources and a generalised expression, chose the generalised expression. They did so because they wanted the provision to encompass whatever resources the legislature, at any given time and under any given economic conditions, might find it necessary to bring within its distributive ambit. The majority’s multi-factor test is in effect a reinstatement of K.T. Shah’s rejected amendment — it does what the Constituent Assembly declined to do, specifying in advance which resources qualify and which do not.

Aharon Barak’s account of why constitutional language is kept general — to reach consensus at a high level of abstraction, and to regulate behaviour across generations whose specific conditions cannot be predicted — is invoked at paragraph 21 to support the same conclusion. “Air valves,” in Barak’s phrase, are part of how constitutional texts are designed to function. Closing them by judicial pre-specification is a misunderstanding of the interpretive task.

Ranganath Reddy, Sanjeev Coke, and the stare decisis question

Paragraphs 23 to 31 develop the dissent’s argument that the majority’s overruling was not warranted as a matter of judicial discipline. The reading is careful and turns on the structure of the Ranganath Reddy bench. The seven-judge bench had been unanimous in upholding the Karnataka Contract Carriages (Acquisition) Act, but its four-judge majority had reached the result on harmonious construction — reading the Act in a way that avoided the need to decide the Article 39(b) question. The three-judge minority went further, holding that even if harmonious construction had failed, the Act would have been protected by Article 31-C as a law implementing Article 39(b). The Article 39(b) interpretation was the minority’s work alone.

Six years later, when Sanjeev Coke arose before a five-judge Constitution Bench, the bench adopted the Krishna Iyer reading. The dissent’s account at paragraph 30 is that this was not a breach of judicial discipline. The Ranganath Reddy majority had not contradicted the minority on Article 39(b); they had remained silent on the question. The Four Judges, the dissent observes at paragraph 31, said nothing contrary to or in opposition to what the Three Judges had laid down, and no judicial discipline was broken. The dissent supports the proposition with authority: K.T. Moopli Nair v. State of Kerala, and three High Court decisions — from Kerala, Bombay, and Allahabad — all of which had treated a minority opinion on a question on which the majority remained silent as having precedential value.

The dissent then surveys the body of post-Sanjeev Coke jurisprudence at paragraph 26. Six Constitution Bench and division bench decisions had followed and applied the Krishna Iyer reading — Abu Kavur Bai, Tinsukhia Electric Supply, Madhusudan Singh, Basantibai Khetan, Assam Sillimanite, and Jilubhai Khachar. The argument the dissent presses at paragraph 32 is that the Krishna Iyer reading is not an isolated holding to be revisited: it is the operating doctrinal foundation on which forty years of subsequent constitutional jurisprudence on distributive economic legislation has been built. It would be unwise, the dissent argues, to upset the long-settled meaning given consistently by several Benches of this Court to the phrase “material resources of the community.”³

What Article 39(b) made possible

Paragraphs 32 to 42 do something doctrinally important. They trace the use to which the expansive reading of Article 39(b) was put across the first three decades of constitutional adjudication. The argument is not merely that the precedent should not be unsettled because it is old. The argument is that the precedent is the instrument by which India did the constitutional work of agrarian reform, abolition of zamindari, nationalisation of strategic industries, and redistribution of land and credit.

The dissent walks the chain. The First Amendment of 1951 introduced Articles 31-A, 31-B, and the Ninth Schedule to insulate land-reform legislation from constitutional challenge. Shankari Prasad upheld the amendment; Kameshwar Singh upheld the Bihar land-reform statute. The Monopolies Inquiry Commission of 1964 found that economic concentration had increased even after independence — a finding that informed the Bank Nationalisation Act of 1969 and the broader project of state intervention in the economy. Bela Banerjee struck down the compensation provision of a West Bengal land-development statute; the Fourth Amendment of 1955 responded by removing adequacy of compensation from judicial review. The Bank Nationalisation case (RC Cooper) struck down the original ordinance; the Twenty-Fifth Amendment of 1971 responded by replacing “compensation” with “amount” and introducing Article 31-C.

The point the dissent presses is that this entire chain — the constitutional amendments, the judicial decisions, the political contestations — was working out a single problem: how to use the State’s legislative and constitutional powers to redistribute material resources of the community for the common good. Article 39(b)’s broad reading was not an isolated theoretical preference. It was the doctrinal anchor for the most ambitious socio-economic transformation project the Indian State has undertaken. To overrule it now is to retire the doctrinal apparatus by which that transformation was achieved — leaving its constitutional warrant in doubt.

The living document and what has not changed

Paragraphs 43 to 47 turn to the argument the majority pressed: that the constitutional reading of Article 39(b) must evolve to reflect contemporary economic conditions. The dissent does not contest the proposition that the Constitution is a living document. The Constitution is indeed a living document. The words and meanings in the Constitution are not frozen in time, they change and evolve. The Constitution cannot be limited to the vision of its founding fathers.⁴ The dissent observes at paragraph 43 that “Times have changed since then, and so has the governing philosophy which is now of a liberal and market driven economy.” The doctrinal question is what the change of philosophy entitles the Court to do.

The dissent’s answer is that the living-document principle, as the Court has developed it across half a century of jurisprudence, has operated to expand the reach of constitutional protections, not to narrow them. Paragraph 47 surveys the expansions: Maneka Gandhi on Article 21 and procedure that is fair, just, and reasonable; Hussainara Khatoon on the right to speedy trial; Sunil Batra on prisoners’ dignity; Bijoe Emmanuel on freedom of religion; Vishaka on workplace sexual harassment; K.S. Puttaswamy on the right to privacy; Navtej Singh Johar on Section 377. The words in Articles 14 and 21, the dissent observes, do not on their face yield the meanings the Court has given them; that range of rights has emerged through a long line of expansive interpretation.

The asymmetry the dissent identifies is doctrinal. The Court’s living-document jurisprudence on the fundamental rights chapter has been progressive in a specific direction — toward fuller protection of liberty, privacy, dignity, equality. To deploy the same living-document principle to contract the State’s redistributive authority under Article 39(b) is, on the dissent’s reading, an inversion of how the doctrine has previously been used. The change of economic philosophy from socialism to market liberalism is, the dissent grants, a real political development. But political developments do not authorise the Court to read the Constitution as if those developments had been ratified by constitutional amendment when they have not.

And then the dissent’s central normative claim at paragraph 50: What has not changed, however, is the inequality. The dissent gathers the data: India’s 134th position on the UNDP Human Development Index, the 105th position on the Global Hunger Index, the Gini coefficient of 0.444. Absolute poverty may have decreased, the dissent acknowledges, but the gap between rich and poor has not. The economic conditions that originally justified the broad reading of Article 39(b) persist in 2024. The constitutional response to those inequalities cannot be retired by judicial decision simply because the political-economic preferences of the moment have changed.

The Krishna Iyer Doctrine and what the dissent will not let pass

Paragraph 48 reaffirms the doctrine the dissent defends. The meaning that must be given to “material resources of the community,” the dissent writes, is what was given in Ranganatha Reddy by the Three Judges and followed in Sanjeev Coke. The dissent reproduces the Krishna Iyer formulation in full:

Material resources of the community in the context of re-ordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Everything 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 community.V.R. Krishna Iyer J., State of Karnataka v. Ranganath Reddy, (1977) 4 SCC 471, para 81, as quoted at para 48 of the dissent

Paragraph 49 then sets out what the dissent treats as the correct division of institutional roles. It is for the legislature, the dissent writes, to decide how the ownership and control of material resources is to be distributed in order to subserve common good. Once the expansive meaning of the phrase has been established, the legislature’s task is to identify, on case-by-case judgment, which resources to bring within Article 39(b)’s ambit at any given time. The Court’s task is judicial review of specific legislation: does the law in question establish a nexus with the principles of Article 39(b)? Does it subserve the common good? If yes, it survives; if not, it falls. What and when privately owned resources come within the definition of material resources, the dissent observes, is not for this Court to declare.⁵

The dissent’s closing paragraph is unusual in its personal register. After 49 paragraphs of historical, doctrinal, and stare decisis argument, the dissent records its disapproval of the majority’s critical references to what it calls the Krishna Iyer Doctrine. “I must also record here my strong disapproval on the remarks made on the Krishna Iyer Doctrine as it is called. This criticism is harsh, and could have been avoided.” The dissent defends the Krishna Iyer Doctrine — and, by extension, the O. Chinnappa Reddy Doctrine — as based on “strong humanist principles of fairness and equity” and as “a doctrine which has illuminated our path in dark times.” The closing line, borrowed from Justice Krishna Iyer himself, places the Court’s work in its broadest frame: that the Courts too have a constituency — the nation — and a manifesto — the Constitution.⁶

What the dissent preserves

The nine-judge bench’s judgment is the law. The expansive reading of Article 39(b) stands overruled. Future legislation acquiring or redistributing privately owned resources for purposes of distributive justice will be tested under the multi-factor framework the majority has laid down. How that framework will operate in practice — how courts will weigh resource scarcity against the impact of private ownership, how legislatures will draft acquisition statutes to satisfy the new test — will be worked out across the next decade of constitutional adjudication.

What Justice Dhulia’s dissent preserves is a particular reading of what Article 39(b) was for and what its overruling means. The reading holds that the broad formulation of “material resources of the community” was not a doctrinal accident or a judicial overreach. It was the constitutional instrument by which the Indian State pursued the distributive-justice commitments of the freedom struggle. The reading further holds that the persistence of social and economic inequality in contemporary India is a constitutional concern on which Articles 38 and 39 continue to operate, regardless of changes in the political-economic preferences of the day. And it insists that the Court’s role in this domain is judicial review of specific legislation, not advance specification of which resources may be brought within constitutional categories.

Whether subsequent benches treat the dissent as a position from which the Court turned away, or as one that future Article 39(b) jurisprudence must engage, will depend on what the multi-factor framework produces in application. The dissent’s historical, doctrinal, and stare decisis arguments are available for that engagement. So too is its closing claim: that the abandonment of the expansive reading should not be confused with the resolution of the underlying question of what Article 39(b) is for.