constitutional amendment
Image Source: https://bit.ly/2MioeoG

This article is written by Shanvi Aggarwal, student of (School of Law, Christ Deemed to be University, Bengaluru).

All persons in positions of power ought to be strongly and lawfully impressed with an idea that “they act in trust,” and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people.

 – Edmund Burke

Introduction

The Constituent Assembly of India sat for the first time on December 9, 1946, focusing on deliberations on specific features or segments which led to the adoption of the Constitution and a democratic republic. The intention of the constitution-makers can be inferred by the Judiciary’s integral role as a protector of the constitutional values, to undo the harm done by the legislature and the executive. In this article, I would try to highlight the Fourth and Fifth Constitutional Amendments. The rule of law is the bedrock of democracy and is the basic feature of the constitution, which cannot be altered or amended. It is the role of judicial review, to ensure that democracy is inclusive and that there is accountability since India opted for a parliamentary form of democracy, where every section is involved in policy-making and decision-making. The concept of accountability in any republican democracy while exercising public power has to be taken into consideration, irrespective of the extra expressed expositions in the constitution. Therefore, the aim of such emerging constitutional deliberations in India should be to ensure equitable and participative development which is the need of the hour in Indian social-economic-political milieu.

The Fourth Constitutional Amendment Act, 1955

The statement of objects and reasons of the bill aimed to amend Articles 31, 31A and 305 and Ninth Schedule of the Constitution of India.

The landmark decisions of the Supreme Court of India gave a wide meaning to clauses (1) and (2) of Article 31. The deprivation of property in the clause (1) was to be inferred in the widest sense, in order to be valid according to the decisions; provision for compensation under clause (2) of the Article was the intention. Therefore, to re-state the State’s power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in “deprivation of property”, it was considered as a necessary step.

The laws which came in as social welfare legislation were taken into consideration to analyse their constitutionality with respect to the Articles 14, 19 and 31 and the Articles 31A and 31B and the Ninth Schedule were enacted by the Constitution (First Amendment) Act. Another proposal was to include in the Ninth Schedule to the Constitution two more State Acts and four Central Acts which fall within the scope of the sub-clauses (d) and (f) of the clause (1) of the revised article 31A.

In Saghir Ahmed v. State of Uttar Pradesh[1], the Supreme Court considered the issue of “whether an Act providing for a State monopoly in a particular trade or business conflicts with the freedom of trade and commerce guaranteed by Article 301”, but left the question undecided. Thus, another proposal was to bring clarity to Article 301.

The History behind Article 31A

In Kameshwar Singh v State of Bihar[2], the Bihar Land Reforms Act, 1950 was held invalid under the Article 14 for it classified the zamindars in a discriminatory manner for the purpose of compensation. The Central Government added into the Constitution, a new provision – Article 31A providing for the acquisition by the state of any estate or of any rights therein, or for the extinguishing or modifying any such rights, no law would be void on the ground of any inconsistency with any of the fundamental rights contained in the Articles 14, 19 and 31.

Article 31 was the only Constitutional Provision providing for compensation. The only exception was that such law should receive the assent of the President. The second proviso to Article 31A (1) refers to the ceiling limits. In the case of Bhagat Ram v State of Punjab[3], the object of this proviso was taken into consideration, it was stated 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 Article 31A unless the compensation at market rate is given”.

The Constitutionality of Article 31A

In Ambika Mishra v State of Uttar Pradesh[4], the Supreme Court upheld the constitutionality of the clause (a) of the Article 31A (1) on the test of the basic structure. In Minerva Mills v Union of India[5], the Court held that the whole of Article 31A is unassailable on the basis of stare decisis, a quietus that should not allow being disturbed. In Waman Rao[6] and I R Coelho[7], the First Amendment in which the Article 31A was introduced and Fourth Amendment which substituted new clauses to this Article have been held constitutional.

The Section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub-clauses (a) to (e) for the original clause (1) with retrospective effect, do not violate any of the basic or essential features of the Constitution or its basic structure and was held valid and constitutional within the constituent power of the Parliament of India under the Constitution.

Various other objectives of the Act were:

  1. With respect to the land reform, to fix limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of the landowners and the tenants in the agricultural holdings.
  2. With respect to the proper plan urban and the rural areas for the beneficial utilisation of the vacant and the wastelands and the clearance of the slum areas.
  3. In the public interest, to take over a commercial or industrial undertaking or other property, in order to secure the better management of the undertaking or property.

The Fifth Constitutional Amendment Act, 1955

It amended Article 3 of the Indian Constitution which provides the Parliament to effect, by law, reorganisation inter se of the states constituting the Indian Union. The Parliament is empowered to enact a law to reorganise the existing states by establishing new states out of the territories of the existing states, by uniting two or more states or parts of states, by uniting any territory to a part of any state, by altering their boundaries; or by separating territory from, increasing or diminishing the area of, or by changing the name of, a state.[8]

The History behind the Amendment

When Article 3 was drafted, the Princely States were not fully integrated and there existed the possibility of reorganisation of states on linguistic basis. Thus, the Constituent Assembly had foreseen that such reorganisation could not be postponed for long.

It did not lay down a time-limit within which the states concerned were to express their views, which could cause delay or even bring the parliamentary legislation to a standstill. The government of India wanted the reorganisation of the states on a linguistic basis which was hampered by the non-expression for any length of time.

https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy

Click Above

The Amending Act provided for the President to set a time-limit through which the Parliament could proceed with the matter without waiting for the views of the state concerned. Thus, made the proceedings regarding the reorganisation of states efficient and this propelled the states to check on the issues related to them responsibly. After the amendment, the procedure was changed and the exercise of this power by the Parliament was subject to the following two conditions:

  1. A Bill for any such purpose cannot be introduced in the Parliament except on the recommendation of the President and
  2. If the Bill affects the area, name or boundaries of a State, then before recommending its consideration to the Parliament, the President has to refer the same to the State Legislature concerned.

The Post Amendment Changes

Andhra Pradesh was the first state to be reorganized after independence wherein it was separated from the erstwhile Madras Province. The formation of Andhra Pradesh was one such example of the reorganization which became a reason for the amendment to the said article.

Article 3 provided the State Legislature and the Parliament with the authority to pass the bill of the reorganisation. The purpose was to give an opportunity to the concerned State Legislature to express its views on the proposals contained in the bill.

After the amendment, a lot of confusion surfaced regarding the meaning of the terms “express view of the State Legislature” resulting in a blatant violation of the Article 3 and in a drastic increase in the number of cases. The confusion was finally put to rest by the Apex Court in Babulal Parate v. The State of Bombay[9], when the State Reorganization Bill was introduced in the Lok Sabha. Some of its clauses, precisely Clause 8, 9 and 10, contained a proposal for the formation of the three separate units, namely,

  1. Union Territory of Bombay;
  2. State of Maharashtra including Marathwada and Vidharbha and
  3. State of Gujarat including Saurashtra and Cutch.

The Bill was introduced in the Lok Sabha on the recommendation of the President as required by the proviso to Article 3 of the Constitution. This was then referred to the Joint Select Committee of both the houses which made its report dated July 16, 1956. In furtherance of the Report, some parts of the Bill were amended by the Parliament. On being passed by both the houses, it received the President’s assent and came to be known as the State Reorganisation Act, 1956. Instead of the three separate units, a composite state of Bombay was constituted under Section 8(1) of the Act.

Hence, there is no violation of Article 3 of the Constitution and the Act or any of its provisions are not invalid on that ground.

Conclusion

To conclude it all, the fourth and fifth constitutional amendment came to be a help and has played an effective and efficient role in reorganising the states as per the need. Henceforth, the amendment which brought in the clauses relating to the time limit helped in persuading the state governments as well as the Parliament to seek their attention in the matters related to the state reorganisation.

Bibliography

Case Laws 

  1. Ambika Mishra v. State of Uttar Pradesh, I.R. 1980 S.C. 1762 (India).
  2. Babulal Parate v. The State of Bombay, 1960 A.I.R. 51 (India).
  3. Bhagat Ram v. the State of Punjab, I.R. 1970 PH 9 (India).
  4. I R Coelho v. State of Tamil Nadu, (1981) 2 S.C.C. 362 (India).
  5. Kameshwar Singh v. the State of Bihar, I.R. 1953 Pat 167 (India).
  6. Minerva Mills v. Union of India, I.R. 1980 S.C. 1789 (India).
  7. Saghir Ahmed v. State of Uttar Pradesh, 1954 A.I.R. 728 (India).
  8. Waman Rao v. Union of India, (1981) 2 S.C.C 362 (India).

Secondary Sources 

  1. Bakshi P.M., The Constitution of India, Universal Law Publishing Co.
  2. Basu D.D., Commentary on the Constitution of India, 8th edn 2008, Vol. 3 Lexis Nexis Buttorworths Wadhwa Nagpur.
  3. Jain M.P., Indian Constitutional Law, 5th edition, 2008, Lexis Nexis, Buttorworths Wadhwa Nagpur.
  4. Seervai, H.M. Constitutional Law of India, A critical Commentary, 4th edn. Universal Law Publishing Co. Pvt. Ltd.
  5. Shukla V.N., Constitution of India, 10 edn., 2001, Eastern Book Co.

Online Sources

  1. http://www.legalservicesindia.com/articles/tradeci.htm
  2. http://www.mightylaws.in/725/telangana-constitutional-issues-state-formation
  3. https://www.constitution.org/cons/india/tamnd4.htm (Last visited on 03-07-2019).
  4. https://www.mitrasias.com/exceptions-to-fundamental-rights/
  5. Vyshnavi Neelakantapillai, “Right to Property under the Indian Constitution” available at http://www.lawyersclubindia.com/articles/Right-to-Property-under-the-Indian-Constitution-3515.asp (Last visited on 03-07-2019).

Endnotes 

[1] 1954 AIR 728.

[2] AIR 1953 Pat 167.

[3] AIR 1970 P H 9.

[4] AIR 1980 SC 1762.

[5] AIR 1980 SC 1789.

[6] (1981) 2 SCC 362.

[7] (1981) 2 SCC 362.

[8] M P JAIN, Indian Constitutional Law 8 (Justice Jasti Chelameswar, Justice Dama Seshadri Naidu, 2018).

[9] 1960 AIR 51.


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY