Private Property, Private Choice: Why Courts Must Not Blur the Line
The recent public commentary by a sitting judge regarding housing discrimination has sparked a necessary debate, but the focus is drifting. This is not a lecture on social harmony or neighborhood ethics. It is a hard question of legal boundaries. In the Indian context, where “society NOCs” and landlord preferences are part of the urban fabric, the line between private rights and state overreach must remain ironclad. When judges use the pulpit to suggest new moral obligations for private citizens, they risk undermining the very liberty the Constitution is meant to protect.
Private Property as a Constitutional Right
While the 44th Amendment moved property away from being a fundamental right, Article 300A ensures it remains a robust constitutional protection. Ownership in India is not a mere suggestion; it is the right to control an asset. If a citizen has legally acquired a flat, they hold the autonomy to decide who stays in it. To suggest that a private homeowner’s choice is subject to judicial “vibes” rather than written law is a dangerous slide toward eroding the concept of private ownership entirely.
Freedom of Contract and Mutual Consent
A rental agreement in India is a contract, and the bedrock of the Indian Contract Act is free consent. You cannot force a contract onto a private individual. Unlike a government office or a public utility, a private landlord is not a “state actor.” They are a citizen engaging in a private transaction. Compelling a homeowner to enter into a lease against their will is not social progress; it is a violation of the basic freedom to choose who you do business with in your own home.
State Action vs. Private Action
Article 15 of the Constitution is a shield against State discrimination, not a sword to be used by the judiciary to micro-manage private living rooms. There is a massive legal gulf between a government housing scheme and a middle-class family renting out their second investment flat. Unless Parliament passes a specific law regulating private tenancies—which it hasn’t—the courts have no business expanding constitutional “duties” into the private sphere through sheer rhetoric.
The Risk of Judicial Overreach
We are seeing a worrying trend where judicial commentary tries to do the work that only Parliament is authorized to do. Law-making belongs to the elected representatives in New Delhi, not to benches offering normative opinions on how people should live. When judges signal a shift in the law through speeches rather than through formal judgments based on existing statutes, they create a climate of legal uncertainty that hurts both owners and tenants.
Reasonable Apprehension of Bias
The Indian legal system relies on the principle that justice must be seen to be done. When a judge expresses strong, pre-determined views on a contentious social issue like housing “bias,” any future litigant in a similar case will naturally fear the outcome is already decided. This “apprehension of bias” is not a small matter; it creates a trust deficit. Public confidence in the neutrality of the robes is the only thing keeping the system standing.
Institutional Responsibility of the Chief Justice
The Chief Justice of India is more than a lead judge; he is the custodian of the institution’s discipline. There is an urgent need for clear guidelines on extra-judicial comments. We need internal mechanisms to ensure that the personal social philosophies of judges do not leak into the public domain in a way that compromises the court’s perceived impartiality. The judiciary must speak through its orders, not through off-the-cuff remarks that bypass the legislative process.
Conclusion
Standing up for private property rights is not an attack on equality. It is a defense of the constitutional structure that prevents the state—or the courts—from overstepping their bounds. Until the law of the land changes through the proper legislative channels, a private citizen’s right to choose remains paramount. Protecting this boundary is the only way to ensure that “liberty” remains a practical reality for Indians rather than a bureaucratic slogan.
