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Published : January 17, 2013 | Author : Laxman
Category : Constitutional Law | Total Views : 62974 | Rating :

Laxman Singh Dudi, BALLB IInd Year, Institute of Law, Nirma University, Ahemdabad, Gujarat.

Emergence of Article 31 A, B and C and its validity

The Constitution (Forty-Fourth Amendment) Act, 1978, signifies the demise of the fundamental Right to Property. Before 1978, there were mainly two articles to protect private property, Arts. 19(1) (f) and 31, but they were repealed by constitutional amendments, and thus private property was left defenseless.

U S Constitution in its V amendment ordains that- “No person can be deprived of his life liberty or property without due process of law”.

Unlike other fundamental rights the scope of right to property is continuously diminished by curtailing it through constitutional amendments. Practically the right to property has ceased to exist in India. Much important litigation in Constitutional law has arisen in the field of property rights because of the large legislation enacted by the state and the central governments to control the property rights. The most important question in these controversies was the payment of compensation for the property rights acquired. Important constitutional battles have been fought around this question and the constitution has been amended several times to get over some inconvenient judicial rulings

Various amendments were made to Art. 31 and finally it was repealed. In the 1949 constitution there were two articles providing the right to property, i.e. Art. 19(1) (f) and Art. 31, but both these articles were deleted from the Indian Constitution by the 44rth Amendment Act.

Article 31 with sub heading “Right to Property” has been omitted by the Constitution Forty Fourth Amendment Act 1978. Article 31(1) has been shifted to article 300A as a new insertion in Chapter IV in part XII of the constitution. The shifting of Article 31(1) and omitting Article 31 signify that fundamental right to property is abolished.

The right to property under the Indian constitution tried to approach the question of how to handle property and pressures relating to it by trying to balance the right to property with the right to compensation for its acquisition through an absolute fundamental right to property and then balancing the same with reasonable restrictions and adding a further fundamental right o compensation in case the properties are acquired by the state. This was exemplified by Article 19(1)(f) balanced by Article 19(5) and the compensation article in Article 31. This was an interesting development influenced by the British of the idea Eminent Domain but overall it struck an interesting balance whereby it recognized the power of the state to acquire property, but for the first time in the history of India for a thousand years or more, it recognized the individual’s right to property against the state.

After 1978, in the area of property, there were only four constitutional provisions i.e. A. 31, 31B, 31C and 300A. Though A. 31A, 31B and 31C are included in the chapter of fundamental rights they cannot be called as fundamental rights in the real sense, as they do not confer fundamental right but impose certain restriction on right to property. The main object of these provisions was to provide immunity to various laws curtailing property rights.

Review of Literature
The object behind the amendment is considered to abolish the large land holdings with zamindars and other rich people and to distribute it to the landless peasants. But now when the object seems to be almost achieved the importance of this amendment is in question.

44th constitutional amendment eliminated the right to property as a fundamental right. After 44th amendment right to property became a statutory right. Article 31 which contained right to property was shifted to Article 300. This transfer was done to affirm that no person is deprived of his property save by the authority of law. The amendment expanded the power of the state to appropriate property for social welfare purposes. In other words, the amendment bestowed upon the Indian socialist state a licence to indulge in what Fredric Bastiat termed legal plunder. This is one of the classic examples when the law has been perverted in order to make plunder look just and sacred to many consciences. When studying the emergence of clause A, B and C of Article 31, a major focus should be given to Doctrine of Eminent Domain.

According to this doctrine state can acquire any private property and the acquisition will be justified if it is for public use and the use can be understood beyond doubt. Essential ingredients of this doctrine are property is taken for public use and compensation is paid to the owner.

Along with the doctrine of Eminent Domain, various cases which are very important to complete the study of the right to property are also analysed in this project. The article 31A, B and C were added through amendments.

Indian Constitutional Law by Prof. M P Jain
As stated earlier, earlier Article 31 conferred right to property as a fundamental right. M P Jain divides this chapter in two parts. One part is the pre-1978 position and the other is the post-1978 position. Pre 1978 position is the position before the 44th Amendment. This chapter includes Doctrine of Eminent Domain, relation between Art. 19(1)(f) and 19(5) and relation between Art. 31, 14 and 19(1)(f). It also discusses various important amendments like the first, fourth, seventeenth, forty-second and forty fourth etc. the second part is Right to property present position. It discusses mainly the Saving of certain laws part of A. 31. This chapter includes mainly A.31A, 31B and 31C and A.300A.

This research project will depict the real situation between the earlier article 31 and the amended article, the need for insertion of clause A, B and C to the amended article, and the transition of right to property from fundamental right to a statutory right. For a detailed study of Right to Property after 1978, one has to look to Art. 31A, B and C. along with these three Articles, A. 300A also plays a major role in the area of property rights. This article confers the status of constitutional right to a person with regards to property.

Doctrine of Eminent Domain and Right to Property

Doctrine of Eminent Domain is a concept in the American Constitution. It is the acquisition of private property by the state for a public purpose with paying certain amount of compensation. Initially when India got Independence, the legislature to abolish the Zamindari System, enacted various laws through which it took the property from various land holders and used it for public purpose. Many a times mala-fide intention can be seen achieved through this doctrine.
There are two essentials of the Doctrine of Eminent Domain:
1. Property is taken for public use
2. Compensation is paid for the property taken.
In Indian Constitution, Entry 42 of List III speaks about ‘acquisitioning and requisitioning of property’. In the case of State of Bihar v Kameshwar Singh , Supreme Court defined eminent Domain as “the power of a sovereign to take property for public use without the owner’s consent upon making just compensation.”
Article 31A, 31B and 31C as well as Art. 300A are the existing constitutional provisions concerning private property.

Emergence of Article 31 A
This Article was added to the Constitution of India by the First Amendment, 1951. Later, the Fourth Amendment substituted various clauses in it.

Article 31 A -Saving of certain laws
Article 31A - (1) Notwithstanding anything contained in Article 13, no law providing for -
(a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) The taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) The amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) The extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) The extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19:

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
[Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof

History behind Article 31A
After independence when Congress was in power at centre it decided to launched the abolition of Zamindari Programme in which it abolished the Zamindari system and acquired the lands of Zamindars. But the main difficulty before the government was of paying compensation. In A. 31(2) the word compensation was used without any adjective like just or reasonable. Thus Supreme Court interpreted its meaning as ‘just compensation’. Various land legislations were declared invalid and were challenged under Article 14 and 19(1)(f). In Kameshwar Singh v State of Bihar , the Bihar Land Reforms Act, 1950 was held invalid under A. 14 for it classified the zamindars in a discriminatory manner for the purpose of compensation. Therefore, finding Zamindari Abolition Programme in danger because of these judicial pronouncements, the central government amended the Constitution and a new provision A. 31A was added .

This new article laid down that no law providing for the acquisition by the state of any estate or of any rights therein, or for the extinguishing or modifying any such rights, would be void on the ground of any inconsistency with any of the fundamental rights contained in A. 14, 19 and 31. As A. 31 was the only Constitutional Provision providing for compensation, which means an estate can be acquired or rights can be modified without paying compensation . The only exception was that such law should receive the assent of the President.

After the 44th Amendment Act in which A. 31 was repealed, consequently Article 31 was removed from A. 31A(1). The word estate in sub clause (a) of Article 31A (1) is defined in clause 2(a) to have the same meaning as that expression or its local equivalent has in the existing law relating to the land tenures in force in that area, and by inclusive definition it takes in any jagir, inam or muafi or other similar grants and in the states of Tamil Nadu and Kerala any Janman rights. The object of Article 31A (1)(a) is to bring a change in the agricultural economy and facilitate agrarian reforms and it is applied to legislations affecting the rights of landlords and tenants . In K.K. Kochuni v State of Madras , it was held that the protection of this clause is not applicable to a law which seeks to modify the rights of the owner without any reference to agrarian reforms. In State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd. , the court held that there has to be a direct nexus between the subject matter acquired and its utilisation for agrarian reforms.

The second proviso to A. 31A (1) refers to ceiling limits. This proviso says that the land exempted from acquisition should be within the ceiling limit and must be under personal cultivation. The Supreme Court in the case of Bhagat Ram v State of Punjab , interpreted the object of this proviso. The Court said that a person who is cultivating land personally and it is his source of livelihood, should not be deprived of that land under nay law protected by A. 31A unless the compensation at market rate is given.

Constitutionality of A. 31A
In Ambika Mishra v State of UP , the Supreme Court upheld the constitutionality of clause (a) of Article 31A (1) on the test of basic structure. In Minerva Mills v Union of India , the Court held that the whole of Art. 31A is unassailable on the basis of stare decisis, a quietus that should not allowed to be disturbed.

In Waman Rao and I R Coelho case, the First Amendment in which the Art. 31A was introduced and Fourth Amendment which substituted new clauses to this Article has been held constitutional. Therefore relying on the judgments of Minerva Mills, Waman Rao and Coelho case Article 31A can be stated as constitutionally valid.

Emergence of Article 31 B: Validation of certain Laws
Art.31A was added to the Constitution by the Constitution (First Amendment) Act, 1951. It was added as a constitutional device to protect the specified statutes from any attack on the ground that they infringe Part III of the Constitution . It has retrospective effect which is clear from the words “ever to have become void” . The introduction of this provision has cure the defects in various acts of the Ninth schedule as regards to the unconstitutionality alleged on the grounds of infringement of Part III of the Constitution, these acts even if void or inoperative at the time, they were inactive by reason of infringement of Article 13(2) of the constitution assumes full force from the respective dates of their enactment after their inclusion in the Ninth schedule read with Article 31B of the Constitution. The Ninth schedule consists of 284 legislations until the constitution (78th amendment) act, 1995 but article 31B did not empower the legislatures to amend these acts inconsistently with the provisions of the constitution or to take away the rights conferred by the Constitution. The amendments must be consistent with the provision of the Constitution or be saved under Article 31A of the Constitution, if not they must be held void. A question was raised in Prag Ice And Oil Mills v. Union Of India whether article 31B saved the orders and notifications issued under Section 3 of the Essential Commodities Act 1955 which was already included in the Ninth schedule but as was already decided in Godavari Sugar Mills Ltd. v. S.B Kamble that the amendments to ac act subsequent to an inclusion of an act in the Ninth schedule were not entitled to the protection of Article 31B. The Supreme Court dismissed the petition as the act did not violate the petitioner’s rights under Article 14 and 19, it was explained by the court that when a particular act or regulation is placed in the Ninth schedule, the parliament may be assumed to have applied its mind to the provisions of the particular act and the desirability, propriety or necessity of placing it in the Ninth schedule and such an assumption cannot in the very nature of things be made in the case of an order issued under an Act or Regulation placed in the Ninth schedule.

Constitutional Validity of Article 31B
In Waman Rao v. Union of India , the court held that amendments in the Ninth schedule made before the decision of Keshavananda Bharti v. State of Kerala that is before 24.04.1973 were beyond challenge but the amendments made afterwards could be tested on the grounds of amendment of basic structure. Similar views were given by the court in Minerva Mills v. Union of India and Bhim Singhji v. Union of India . In I.R. Coelho v. State of Tamil Nadu the nine judge bench of the Supreme Court unanimously decided that as held in Keshavananda Bharti case and later clarified in Waman Rao case while the laws included in the Ninth schedule before the decision in Keshavananda Bharti case are immune from any challenge on the grounds of violation of fundamental rights or basic structure and the Acts included after the decision shall be open to challenge. The Court reaffirmed that Article 31B did not destroy or damage the basic structure of the Constitution.

Emergence of Article 31 C
Insertion of Article 31-C by the Twenty-Fifth Amendment
Article 31-C “Notwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securing [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by [Article 14 or Article 19] and [no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy].

Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent Right to Constitutional Remedies. ”

The insertion of this article made A. 14, 19 and 31 inapplicable to certain laws made by Parliament or any legislature. Along with this it was also added that a declaration in the law that is to implement the directive principles enshrined in A. 39(b) and (c) cannot be questioned in a court of law. Therefore, the insertion of this article granted complete immunity to a law from judicial scrutiny if the President certified that it was enacted to promote the policy laid down in A. 39(a) and (b). The provisions of this Article would apply only if the law had received the assent of the President.

History behind Article 31C
This article was inserted by the 25th Constitutional Amendment to get over the difficulties placed by judicial decisions in the way of giving effect to the Directive Principles in Part IV. It provided immunity from any challenge on the grounds of violation of Article 14, 19 and 31 any law enacted for implementing the directives in clause (b) and (c) of Article 39. In the 25th amendment it was further provided that such law made to give effect to the policy under Article 39(b) and (c), would not be open to judicial review. However, this second part was struck down in Keshavananda Bharti v State of Kerala , but rest of the Article was held valid. After this amendment 42nd Constitutional Amendment Act was passed by the Parliament which replaced Article 39(b)-(c) by all Directives contained in Part IV of the Constitution. The part which was held unconstitutional in the Keshavananda Case was not omitted from the official text of the Constitution, since later cases seems to restrict the scope of judicial review of the statutory declaration only to the narrow question whether there is a reasonable nexus between the act passed and the objects of the directive it seeks to implement. But in the Minerva mills v Union of India , it was held that extending the immunity of Article 31C to all the Directives of Part IV by the 42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976 position, which has not been overruled by any larger bench yet.

Decisions given by court on the constitutionality of Article 31C
The validity of the 25th Constitutional Amendment was questioned in Keshavananda Bharti v State of Kerala , Sikri C.J. held that since Parliament cannot under article 368 abrogate fundamental rights; equally it cannot enable the legislature to abrogate them. Therefore article 31C must be declared unconstitutional. The second part of Article 31C was held unconstitutional on the ground that it ousted the jurisdiction of the Courts which is a basic feature of the constitution and which cannot be done away with a amendment under Article 368.

Minerva Mills Ltd. v. Union of India , The extended version of article 31C was struck down by the Supreme Court. The Court ruled that the extension of the shield of article 31C to all the Directive Principles was beyond the amending power of Parliament under article 368 because by giving primacy to all Directive Principles over the Fundamental Rights in articles 14 and 19, the basic or essential features of the constitution viz., judicial review has been destroyed.

Waman Rao v. Union of India , The Supreme Court maintained that article 31C as it stood prior to the 42nd Amendment Act made in 1978, was valid as its constitutionality had been upheld in Keshavananda Bharti case.

Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. , The Supreme Court struck down article 31C as unconstitutional (Amended portion in 42nd Amendment Act) on the ground that it destroys the "basic features" of the Constitution. The goal set out in Part IV has to be achieved without abrogating the means provided for by Part III. Thus there is no conflict between the directive principles and the fundamental rights. These are meant to supplement one another. The Court held that article 31C as originally introduced by the 25th Amendment is constitutionally valid.

I.R. Coelho v. State of Tamil Nadu , the Supreme Court held that any law which infringes basic structure of the Constitution can be struck down. Parliament has power to amend Part III so as to abridge or take away fundamental rights but that power is subject to the limitation of basic structure doctrine. There should be a balance between fundamental rights an Directive Principles of State Policy.

Conditions for applicability of Article 31C
There are two conditions which must be fulfilled for the application of Article 31 C
1. A law for giving effect to the policy of the state to implement a Directive Principle in Article 39(b) or (c).
2. The Legislature making a declaration to that effect.
But the question that whether the act is intended to secure the object contained in Article 39(b)-(c) does not depend upon the declaration made by the legislature but upon the contents of the act as found by the court.

The constitution was amended in the year 1951 for the first time. This amendment led to several modifications in the fundamental rights and started the era of land reform through constitutional mechanism. It has introduced .two new articles namely 31A and 31B and the infamous ninth schedule so as to make the laws acquiring zamindars unchallengeable in the Court of law. This was because of the land reform legislations were being challenged before various high courts like Patna, Nagpur, Allahabad etc on the ground of inconsistency with the fundamental rights specially Article 14..But the High Court varied in their opinions. These kinds of litigations were causing delay in the process of agrarian reforms which was supposed to be speedy. Therefore it was thought to bypass these wasteful litigations in order to give true effect to the land reform process. In this project the main focus was the constitutional validity of Articles 31A, 31B and 31C. It was strongly argued against the protective nature of these articles which exclude all possibilities of challenge to the laws included under the shield. It was argued in litigations that such shield will violate certain fundamental rights enshrined under part IIII of the constitution
The validity of the article 31A was challenged stating that it fetters the fundamental rights and is therefore contrary to the basic structure of the constitution. But the Court rejected this by saying that every case where the protection of the fundamental right is withdrawn can’t be something that is damaging the basic structure. the Court referred to the historical view of the Constitution 1st Amendment Act and said that the 1st amendment was aimed in removing the social and economic disparities in the agricultural sector. But while removing wide disparities it is impossible for any government to remove all the disparities without causing certainn hardship to a classs of people who are also entitled to equal treatment under the law. It is thus concluded that the 1st amendment of the constitution does not violate any basic structure of the constitution.

The basic structure of the constitution as a mandate can be achieved only through the permissible means of the objectives set out in part III of the constitution and these reservations cannot be in contravention to the mandates of the directive principles of state policy. In other words, the mandatory ends set out in Part IV can be achieved only through those means which are consistent with the fundamental rights conferred by Part III. The discussion in the project focussed on the constitutional validity of the Article 31C as amended by the 42nd Amendment does not, in fact cannot be allowed to stand as if it is allowed then it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish a totally authoritarian regime in the democratic and socialist pattern of the Indian fabric. It’s a known fact that all legislative action and every of the governmental action has to be related directly or indirectly, to some directive principle of State policy in order to fulfil its purpose under the constitution. The final words of the author in concluding the above discussion would be that if Article 31C was allowed to stand on its own over the grave of the democratic and socialist fabric then the protection of this amended article will be available to every legislative action under the sun, resulting into a society that we cannot imagine, this is because article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution. So it is concluded that if article 31C is allowed to stand then that would result into the complete failure of the basic spirit of the constitution makers and therefore in violation to the basic structure of the constitution of India.

Secondary Sources-
1. Kashyap Subhash, The framing of India’s Constitution, A study, 2nd edn. Vol 5 Universal Law Publishing Co. Pvt.Ltd.
2. Jain M P, Indian Constitutional Law, 5th edition, 2008, Lexis Nexis, Buttorworths Wadhwa Nagpur.
3. Basu DD, Commentary on the Constitution of India, 8th edn 2008, Vol. 3 Lexis Nexis Buttorworths Wadhwa Nagpur.
4. Saharay, H K, The Constitution of India, an analytical approach, 3rd edn, Eastern Law House.
5. Bhansali, S.R. The Constitution of India, Vol 1, India Publishing House, Jodhpur.
6. Seervai, H.M. Constitutional Law of India, A critical Commentary, 4rth edn. Universal Law Publishing Co. Pvt. Ltd.
7. Shukla V.N., Constitution of India, 10 edn., 2001, Eastern Book Co.
8. Pylee M.Y., Constitutional Amendment in India, 3 edn, 2010, Universal Law Publishing Co.
9. Basu D. D., Casebook on Indian Constitutional Law, Kamal Law House, Kolkata.
10. Bakshi P.M., The Constitution of India, Universal Law Publishing Co.

1. Vyshnavi Neelakantapillai, “Right to Property under the Indian Constitution” available at lawyersclubindia.com/articles/Right-to-Property-under-the-Indian-Constitution-3515.asp" target="_blank"> http://www.lawyersclubindia.com/articles/Right-to-Property-under-the-Indian-Constitution-3515.asp  (Last visited on 12-09-2012)

Authors contact info - articles The  author can be reached at: laxman@legalserviceindia.com

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Article Comments

Posted by Raja on August 30, 2014
In the property owners Association Vs State of Maharashtra case referred the matter regarding Art. 31C to a Constitution Bench on 1-6-1996 and said as under:

“Having heard learned counsel for some time, we have formed the opinion that it would be more appropriate for a Bench of not less than five Judges to consider and decide these questions for an authoritative pronouncement on the same. The decisions in Minerva Mills, Waman Rao and Sanjeev Coke are all by Bench of five Judges. The question in the form it is raised by Shri F.S.Nariman did not arise for consideration in any of those decisions which were rendered on a certain premise as indicated therein, which assumption is now seriously challenged by Shri F.S.Nariman. Even if it is assumed that Article 145(3) of the Constitution is not attracted, it does appear to us that in order to settle the controversy on this point which is of some significance and to avoid the question being reagitated before another Bench of less than five Judges, the more appropriate course is to refer these matters for being heard and decided by a Bench of not less than five Judges.”

Do you think there is anything in I.R. coelho Vs.State of Tamil Nadu case which can be said to have dealt on this issue. This matter was further referred to a Nine Judge Bench to even decide whether material resources of the community under Article 39(b) covers what is privately owned>
What is your take on this case ?

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