This article has been written by Sunanda Mohan.
Table of Contents
Introduction
Our Indian Constitution is a mirror which reflects various democratic and welfare principles and these principles have been well adapted in our Country to combat the situation of poverty, inequality and to accelerate economic growth. Long before Article 31 was repealed by the 44th amendment in the year 1978, Article 31B was one such addition to the Constitution which was introduced by our draughtsmen under Nehru’s regiment to revamp India’s reforms on land and agriculture but as soon after being introduced it was dressed down and severely criticized by the citizens of the Country.
Background
The Rights to Property can be divided into two timelines:
- Pre-1978 position
- Post-1978 position
Pre-1978
The main provisions that dealt with Property laws were:
- Article 31 – of the Indian Constitution provided the citizens of India with Right to property. It stated that no person can be deprived of his or her property save by the authority of law.
- Article 19(1)(g) – This provision allowed citizens ‘to acquire, hold and dispose of property’ with certain restrictions being that such rights shall not affect the rights or interest of the general public or for safeguarding the interests of aboriginal tribes.
Even after Independence, Zamindari system was predominant, so with a view to obliterate such an oppressive system and to shape a just and egalitarian society Article 31A & 31B along with the Ninth Schedule were inserted to Article 31 through First Amendment Act, 1951.
Article 31C was introduced later in the year 1971 through the 25th Amendment.
Even though Article 31A, 31B and 31C also form the part III of the Indian Constitution but in practice, these specific Articles curtails our basic rights i.e. Fundamental Rights.
Generally, whenever a law is inconsistent with the Part III (Fundamental Rights section) of the Constitution it is declared as void but when it comes to Article 31A, B and C, any laws which emanate from these provisions are kept out of the purview of Judicial Review irrespective of the fact that it might be contradicting to the Article 14 and Article 19.
Post-1978
The 44th Amendment introduced in the year 1978 brought about significant changes in the Constitution. The Fundamental Right under Article 19(1)(f); 19(5) and Article 31 were omitted through this amendment. It means that Right to Property was removed from the list of fundamental rights (Article 31) and was made a legal right under Article 300A.
Article 300A states that an individual is secured from intrusion by the State and that such an individual cannot be deprived of this right unless it is in accordance with the procedure established by law.
Though the rest of the provisions i.e. Article 31(A), 31(B) & 31(C) still continues to operate.
But what exactly is Article 31B?
With the vision to establish an egalitarian society, the then National Government enacted Zamindari Programme which empowered them to possess the lands of scourge zamindars. However, several laws under this programme were declared ‘arbitrary’ and ‘unconstitutional’ by Judicial Courts as it infringed the basic rights of the zamindars.
In State of Bihar v. Kameshwar Singh: the Bihar Land Reforms Act, 1950, was declared to be unenforceable as it categorized the zamindars in a discriminatory manner for the purpose of compensation.
With such judicial decisions, the then National Government feared and felt that their goal of eradication of the Zamindari system might be at peril and therefore, amended the Constitution and a new provision i.e Article 31A was added.
Article 31(A) provides that if any law is legislated and is related to:
- to the acquisition of any estate by the state.
- Right of the government to take over or manage any property in public interest.
- The amalgamation of two or more corporation’s property in public interest.
- Elimination or modification of rights of managing agents, shareholders, directors etc.
- Elimination, modification or termination of rights which is the result of a lease, license or agreement for the purpose of searching for minerals or minerals oils will not deemed to be void or null even if it abridges any of the rights conferred by Article 14 or Article 19 until it has received the assent of the President.
Article 31(B) Validation of certain Acts and Regulations
Article 31B needs to be read with 9th schedule of the Constitution as it furnishes that none of the acts and regulations mentioned in the Ninth Schedule to the Constitution, shall be considered to be void on the ground that they are inconsistent with any rights mentioned in Part III of the Constitution. However, the Legislature is competent to amend and repeal these acts.
Moreover, this Article functions in addition to, regardless of any laws for the acquisition of estates by the State which are protected from Article 14 and Article 19 under Article 31A. The working of the provisions of this Article does not sabotage any provision contained in Article 31A.
Challenges with Article 31B
Article 31A and 31B are of retrospective effects. They are immune from Indian Judiciary and cannot be challenged in the Court of Law. The explanation was given in the case Godavari Sugar Mills v. S.B Kamble that Courts should not be allowed to get in the way of socialist policies such as land reforms.
The civil society viewed The First Amendment Act,1951 with discontent and considered it as a wicked act of the Parliament but the Apex Court regarded this extensive power of the Legislature as a necessity to deter subjugation by the hands of Zamindars and to create an equal society. Nevertheless, the tussle between the Judiciary and Legislature started really soon. With the advent of Indra’s Government, the legislature recklessly abused their power as a means to attain their political goals.
Election Laws (Amendment) Act, 1975; Maintenance of Internal Security Act and Prevention of Publication of Objectionable Matters and many other acts passed in various States were included in the ninth schedule.
This led the Judiciary to take any action to suppress the authority of the legislature. In 1967 while pronouncing Judgement in Golaknath case, the Hon’ble Court held that “the parliament has no power to deprive the Citizens of their basic rights as rendered by part III of the Constitution.” The Court emphasised that “the provision pertaining to the fundamental rights or the basic structure of the Constitution could not be amended and if any Constitutional Amendment tries to alter the basic structure of the Constitution then it could be struck down by the Court.”
In the landmark case Waman Rao v. Union Of India, it was decided that “those amendments which were made in the constitution before 24th April 1973 (date on which judgement in Keshavananda Bharati was delivered) are constitutionally valid and but those which are enacted after 24th April 1973 can be subjected to Judicial scrutiny and challenged on the ground that it violates the basic foundation of the Constitution and the State is only protected for their acts before the judgement in Kesavananda Bharati”.
In IR Coelho V State of Tamil Nadu, the scrupulous Supreme Court dealt with two new issues which were not raised in Waman Rao’s case. The issue was whether an act or regulation which has been declared to be violative of any of the Articles 14, 19 and 31 by the Supreme Court can be included in the Ninth Schedule and whether the Constitutional Amendment which introduced the Ninth schedule contradicts the basic structure of the Constitution should be struck down?
The higher bench of the Apex Court held that “even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its provision would be open to attack on the ground that they affect the basic structure of the Constitution by taking away the Fundamental rights guaranteed to the people” and further added that:
“If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law has already been held as violative of any rights in Part III of the Constitution and later on, subsequently incorporated in the Ninth Schedule after 24th April 1973, such an infraction shall be open to challenge on the ground that it damages the basic structure as designated in Article 21 read with Article 14, Article 19, and the ideologies implicit therein.”
Recently, in 2018, the Supreme Court refused to hear the plea of a group of farmers who moved the Court for the abolishment of Article 31B stating that it is an evil law which is responsible for a multitude of suicides committed by the Farmers. The counsel on behalf of the farmers portrayed their suffering by stating that in accordance with Essential Commodities Act, every person, except farmers, who is carrying out a business has the right to determine the value of their product, storage capacity and transportation costs.
Pointing out the unfairness in the process the counsel pointed out that for all the hard work put in by our farmers, it is the Central Government who decides prices of agricultural produce and everything related to it and in addition to this, the government has authority to restrict land holdings of farmers. The petitioner stated that due to protection under 31B certain draconian laws which takes away basic rights of the farmers cannot be challenged.
Conclusion
The objective behind the insertion of Article 31B might have been great on papers but in reality, it gave a huge amount of power to the Legislature, who not to anybody’s surprise tried to misuse it to achieve their political goals. Rendering unnecessary authority to the draft makers who can easily incorporate void and illegal Acts into the Constitution certainly has its ill effects especially on the farmers, whose privilege to approach the custodians of Fundamental Rights i.e the supreme Court and High Court has been snatched because of this ‘draconian article’. Moreover, this provision has been used many times to shield even those acts which are not related to agrarian reforms.
The opinion of the Parliament was that the Land reform programmes shared a deeper nexus with Fundamental Right of right to property and therefore excluded the subject of Agrarian Reforms from Judicial review. But now, one may ask that after omission of right to property as a Fundamental Right, do we really need to seclude laws of Ninth Schedule from being challenged in the Court or shouldn’t the Parliament have come up with certain guidelines or alterations to use the powers conferred by this Article after the Right to Property was omitted?
One of the simple answers can be that Parliament wanted to show its supremacy by altering the Constitution and thereby giving itself superfluous privileges over Judiciary. This can be projected as disloyalty on the part of the Parliament as it not only affects the identity of the Constitution but also imposes a great threat to democracy.
This unbridled and pervasive power has eroded the original intent of the Legislature to bring about social and economic changes and has rather created a paradoxical situation where some acts are safeguarded and cannot be challenged ever after contradicting the touchstone of the Constitution.
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