The (other) right to privacy upheld

On Tuesday, a 9-judge bench of the Supreme Court delivered a divided (8-1) interpretation that all private property can't be included in 'material resources' of the community for the state to apportion equitable, or for the 'greater common good'. The interpretation was overdue and is broadly in line with India's development trajectory that relies on market forces to redistribute resources. Yet, as the dissenting view points out, this reliance does not address rising inequality, and the state shouldn't unduly lose agency through a narrow reading of what constitutes 'material resources of the community' as stated in Article 39(b) of the Constitution. The verdict by a bench of this size overturns the legal position derived through a minority judgment several decades earlier that included all private property in the definition of 'community resources'. This is welcome. But it leaves open to interpretation what kind of private property is, well, private.

The bench had, at the outset, restricted itself to examining the question of community resources and not the constitutional immunity granted to the state in promoting public welfare. The judgment, thus, sets out the limit on resources the state can claim in its endeavour. To this extent, it serves as a check on creeping expansion of 'eminent domain'. Subsequent legal interpretations will have to strengthen the contract between state and its citizens over property rights. The state doesn't face any restriction in this ruling over the definition of control, another term left vague in the Constitution, which keeps alive the question of redistributing resources between community and individuals. This, too, is welcome in that it allows the state room to manoeuvre.

By linking the nature of a resource to its ownership, the reading pushes the issue to a granular level while permitting a dynamic relationship between community and material resources. In this, it serves to build a deeper moat around private ownership, keeping Adam Smith's proverbial hand invisible.