Some complex issues of economic and political significance land in the Supreme Court where they are allowed to cool down and almost touch freezing point by sheer lapse of time. Public memory about the matter, which reached boiling point at one time, fades and the problem is buried deep in the mounds of paper.
Two such pending cases refer to the right to property. It was originally a fundamental right but the 44th Constitution Amendment took it out of the list and made it into an ordinary right. As it stands, the citizens have no constitutionally guaranteed right to acquire, hold or dispose of property and the court has no power to strike down a law for violating the right to property.
However, the 25th amendment introduced some complexity in this issue, which has not been solved by the Supreme Court since 1996. The amendment inserted Article 31C, allowing the government to pass laws that gave effect to the directive principles of state policy without interference by the court. This was a radical step, because the directive principles listed utopian ideals, and once the law states that it is in furtherance of the principles, the courts cannot examine their constitutional validity.
This was one of the challenges in the celebrated Kesavananda Bharati case (1973) decided by 13 judges. It struck down part of Article 31C that stated that a mere declaration in the Act that it was meant to implement the directive principles would be enough to save it from judicial review. The truncated surviving provision was the subject of further conflict among the Supreme Court judges in the landmark judgments in the Minerva Mills case (1980), the Waman Rao case (1981) and the Sanjiv Coke case (1983). Unable to harmonise the amendments and the court’s own judgments, a Supreme Court bench in 1996 referred the issues to a larger Constitution bench in the case Property Owners’ Association vs State of Mahrashtra. But for the last 14 years, a nine-judge bench has not been constituted and the questions are in limbo.
Two recent cases would have rung a bell in the court’s mind, reminding it of the long-pending reference. The Gudalur Janmam case challenging the wholesale protection given to land reform laws by invoking the Ninth Schedule was one such occasion. But the court skirted the issue. Last month, a public interest litigation seeking a direction to make right to property a fundamental right was dismissed.
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The simmering discontent, and occasional blood-letting, over the way the land of ordinary citizens is taken away to benefit industrial houses has again called attention to the status of the right to property. The fight over the right has travelled from distant farmlands to the Supreme Court since 2006. Political activists like Kuldeep Bishnoi, farmers from Karnataka, Uttar Pradesh and Haryana and others are pitched against Mumbai SEZ Ltd and financial giants like the Reliance Group. Though this issue, which arises from the law relating to special economic zones, must be settled before more social unrest occurs, there has been no alarm bell in the court.
There are several other questions that cry for answers from larger benches. These deal with fiscal, social and even micro issues like the definition of “industry” in the Industrial Disputes Act and that of “shop” in the Employees’ State Insurance Act. There are questions involving revenue like whether to provide depreciation according to the Income-tax Act or the Companies Act while computing book profits under section 115J of the Act.
Among the political issues, the privilege of Parliament is an old question to be sorted out. The Cauvery issue refuses to leave the court, despite a tribunal dealing with it for decades. A recent issue referred to a larger bench is the question of negative vote. The ban on the Students Islamic Movement of India (SIMI) is yet to be tested by a Constitution bench. A social issue awaiting the final word is the constitutionality of the law providing for free and compulsory education to children. Another is a petition challenging the ban on the entry of women between the age of 10 and 50 years into Sabarimala temple in Kerala.
There is no definite count of such cases referred to larger benches. A rough guess is 50 cases. One of the urgent tasks of the court should be to pull out such old cases from the forgotten files with the help of computers and pronounce its final view so that important national issues are not stuck in the forensic mud.