Uncategorized B.B Bagga And V.K Diwan

Article 31A, 31B & 31C Constitution of India

Articles 31A, 31B and 31 C

 

This textual trinity is devised, in the triage room of constitutional amendments, to prevent nosocomial  disorders in the socio-economic health of the nation.

 

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.

(2)In this article- [(a) the expression “estate” shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-

(i)   any jagir, inam or muafi or other similar grant and in the States of [Tamil Nadu] and Kerala, any janmam right;

(ii)   any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;]

(iv)  the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, (raiyat, under raiyat) or other intermediary and any rights or privileges in respect of land revenue.]

 

The story of India from the year 1500 to 1950, painfully speaks volumes for the oppression and exploitation to which the humble peasantry remained mercilessly exposed. During the Monarchy, Indian land system was governed by a hierarchy under the Monarch. The said hierarchy comprised of Jagirdars, Zamindars and at the lowest level peasants. Jagirdars and Zamindars were appointed by the Monarchs to manage designated Jagirs. The Zamindars appointed peasants as their workers. The profits were shared between Zamindars, Jagirdars to a mutually agreeable extent, while lion’s share of the profits was added to the treasury of the Monarch as their bounden duty.The peasants were left with pittance to enable them to survive.

 

In 1793, Lord Cornwallis introduced permanent settlement scheme and Jagirdars were dispensed with. Zamindars were appointed under the Peermanent settlement who, in turn, engaged peasants to work in the fields. Zamindars under the scheme of Lord Cornwallis were recognized in the revenue record as owner of their respective Estates. The system of Zamindari was better than erstwhile system of Jagirdari. Under the Zamindari system of Lord Cornwallis, which is known as ‘Permanent Settlement of Land’? However, under the Permanent Settlement East India Company was entitled to 10/11the share of revenue while 1/11 share was in the hands of the Zamindars.

 

In the  year 1820, during the tenure of Lord Munro, the Zamindari system was replaced by Ryotwari System. Under the Ryotwari system, the East India Company started collecting the profit directly from the farmers. Under the Ryotwari System, the peasants were required to share to the extent of 50% in the irrigated land and 40% in the unirrigated land.

 

Thereafter, Lord Bentick in the year 1833, introduced the system of Mahalwars. Under the said system Mahals were created a Mahal comprised of more than one village and system of village committees was introduced. Village Committees were made responsible for collection of revenue from the peasants in the villages under the Mahal. The village Committee was empowered to collect the revenue in respect of all land-holdings within the Mahal for payment to the East India company, while ownership was transferred in favour of the peasants.

 

Thus the land revenue system with very minor modifications over the period of time, despite some restricted and limited transfer of small landholdings within the Mahals in the name of farmers remained critically hostile to the peasants.

 

After independence, when India adopted its Constitution with lofty ideals enshrined in the glorious chapter on fundamental rights, the Nation faced a grave challenge to implement concept of equality in letter and spirit in favour of the oppressed peasantry. The said challenge could not be resolved in the existing constitutional scheme. Thus the (first amendment) Act of 1951(Section 4 Of The Constitution First Amendment Act 1951 followed by The Constitution Fourth Amendment Act 1955 ), Article 31A, 31B and 31C in their present form were introduced with a focus to abolish Permanent settlement , acquire Zamindari and also to introduce agrarian reforms in the country.

 

  1. Legislative Changes. This Article was inserted by the Constitution (First Amendment) Act 1951 with retrospective effect. Subsequently, it was amended by the Constitution (Fourth Amendment) Act 1955 with retrospective effect, the Constitution (Seventeenth Amendment) Act 1964 with retrospective effect and the Constitution (Forty-Fourth Amendment) Act 1978 with effect from 20th June 1979.

Article 31A and 31B have been judicially interpreted as two independent provisions. Apparently, 31B offers complete immunity from Court intervention to the laws on the enumerated subjects on the anvil of any fundamental right, while 31A restricts such immunity to the specific laws only within the ambit of Articles 14 and 19 of Constitution of India.

The scope of Article 31A extends to four different contingencies:

  • Acquisition of an Estate.
  • Acquisition of right in an Estate.
  • Extinguishment of rights in an Estate.
  • Modification of rights in an Estate.

 

The aforesaid quartet of contingencies is co-related agrarian reforms. ‘Agrarian Reform’ as an expression  in these Articles is liberally interpreted in Kochunni, KK Vs. State of Madras, AIR 1960 SC 1080. Thus this expression is held to include-

  • Provisions for the development of rural economy, including consolidation of holding.
  • Increasing agricultural production.
  • Encouraging self-cultivation.
  • Equitable distribution of lands and agricultural income between landlord and tenant, in order to prevent concentration of lands in the hands of a few landholders.
  • Provisions ancillary to agrarian reform, e.g., annulment of anticipatory transfers to defeat a law of agrarian reform; transfer of surplus land to the village Panchayat for the use of the general community, such as promotion of agriculture or welfare of the agricultural population; acquisition of private forest lands belonging to a Jagir or inam for such purposes; for settlement of agricultural labour; fixing a ceiling area and providing for distribution of the surplus amongst the tillers of the soil, acquisition of the land together with standing crops and improvements.
  • Increase in employment opportunities.

 

A well delineated conspectus of judicial exposition of the agrarian reforms , inter alia, in the following cases  elucidate the reach and scope of ‘agrarian reforms’ in the context of Article 31 A ;

  • Ranjit Singh Vs. State of Punjab, AIR 1965 SC 632: 1965 (1) SCR 82
  • State of Kerala Vs. Silk Mfg. Co. Gwalior Rayon, AIR 1973 SC 2734 (paras 19,30,31): (1973) 2 SCC 713; K.D. Hills Produce Co. Ltd. Vs. State of Kerala, AIR 1972 SC 2301 (para 63): (1972) 2 SCC 218.
  • Thippeswamy Vs. State of Karnataka, AIR 1975 Knt. 53 (para 7): (1974) 2 Kant.
  • Godavari Sugar Mills Ltd., Vs. S.B. Kamble, (1975) UJSC 66n.: AIR 1975 SC 1193: (1975) 1 SCC 696.
  • Madhusudan Singh Vs. UOI, AIR 1984 SC 374 (para 14): (1984) 2 SCC 381
  • Gangadhar Rao Vs. State of Bombay, AIR 1961 SC 288: 1961 (1) SCR 943.]

 

The interpretation of the expression ‘agrarian reforms’ permits inclusion even of ancillary measures in the fold of the said expression. A law for the acquisition of an estate etc. does not lose the protection of Art.31A (1), merely because some ancillary provisions form part of such law. Thus the following enumeration in different cases was treated as protected under the umbrella of Article 31 A;

  • A provision for acquisition of buildings as appurtenant to the estates within which they lie.
  • A provision for the investigation into an annulment of transfers fraudulently made immediately preceding the enactment of an Act for abolition of zamindari, with the object of defeating the provisions of the Act.
  • A provision for encouragement of self-cultivation of the land, after abolition of the intermediaries.
  • Development of vacant and waste land.

 

  1. It follows that where an Act relates to agrarian reforms, another Act which is merely clarificatory in nature or forms a chain in the agrarian reform will also ipso facto be protected by Art.31A (1)(a). The following judgments are relevant in clarification of immunity available to the ancillary provisions;

[(i)       Sankarsana Ramanuja Das Goswami Mahant Vs. Orissa State, AIR 1967 SC 59: 1962 (3) SCR 250.

(ii)        Gajapati Narayan Deo, K.C. Vs. State of Orissa, (1954) SCR 1: AIR 1953 SC 375; Kamakshya Narain Singh Vs. Collector and Deputy Commissioner, (1955) SCA 494 (499): AIR 1956 SC 63.

  • Raghubir Singh Vs. State of Ajmer, AIR 1959 SC 475 (477): 1959 Supp. (1) SCR 478.
  • Ranjit Singh Vs. State of Punjab, AIR 1965 SC 632: 1965 (1) SCR 82.
  • Patel Ambalal Gokalbhai Vs. State of Gujarat, AIR 1982 SC 1090: (1982) 3 SCC 316; Nand Lal Vs. State of Haryana, AIR 1980 SC 2097: 1980 Supp. SCC 574.]

 

31B. Validation of certain Acts and Regulations Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

This Article was inserted by the Constitution (First Amendment) Act 1951.

Article 31B has been inserted to immunize all acts which are enumerated in the 9th Schedule of the Constitution from any intervention of the Court on the grounds of infringement of enumerated rights under Part III of the constitution. Article 31B does not restrict the scope of Article 31A. Article 31B is an independent provision not to be treated merely as illustrative of the fundamentals of Article 31A.

 

Scope of Art.31B.-

  1. The protection under Art.31B is available only if and to the extent an Act or Regulation is expressly included in the Ninth Schedule.
  2. Nor only the Acts themselves but notifications subsequently issued in exercise of powers conferred by these Acts are also entitled to the protection of Art.31B.
  3. Acts included in the Ninth Schedule should be interpreted by giving their words their ordinary meaning, uninfluenced by any preconceived notion.
  4. Article 31B saves a law coming under it from inconsistency with any of the fundamental rights included in Part III, e.g., Art.14, Art.19(1)(g), Proviso 2 to Art.31A(1) or, if it is a pre Constitution Law, from validity for contravention of s.299(2) of the Govt. of India Act, 1935.
  5. But the protection of Art.31B is against the ground of contravention of Fundamental Rights,- not other grounds, e.g., want of legislative competence.

 

9th Schedule – legislatively constructed ‘safety niche’ in the constitutional scheme.

When India got independence, the rank and file of the nation was inspired by lofty ideals of egalitarianism and liberty. India, with zeal to resurrect its glorious status, adopted well-drafted constitution on 26th January 1950 with a golden Chapter in Part 3, containing Fundamental Rights. The task of introducing agrarian reforms in furtherance of concept of equality was a herculean task for the nation, which was bound to fail on the plank of the then existing Article 31. In order to grant immunity from court intervention in the array of the chosen subjects, which were indispensable for promoting the socio-economic paradigms in accordance with constitutional scheme, 9th Schedule was adopted through 1st Amendment Act 1951.  The original 9th schedule had 13 items originally. Today there are 284 items in the said schedule. The last addition made in 9th schedule was in the year 1991. The subjects enumerated in schedule 9 of Constitution of India are immune from any challenge before any Court on the ground of being violative of the fundamental rights of the schedule. However, in Kesavananda Bharati Vs. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225, the concept of basic structure was expounded and challenge to the 9th Schedule on the basis of the said concept was held permissible. It needs to be understood that the concept of basic structure, which per se is ever- expanding concept is now an imperishable principle of judicial review and even 9th schedule is not out of reach.

 

However, in I.R.Coelho Vs. State of T.N., (2007) 2 SCC 1 (para 107): AIR 2007 SC 861, it was held as under:

“While laws may be added to the Ninth Schedule, once Art.32 is triggered, these legislations must answer to the complete test of fundamental rights. Whether the impact of an amendment to Part III results in violation of the basic structure, and the extent of abrogation and limit of abridgment shall have to be examined in each individual case. The placement of a right in the scheme of the Constitution, the impact of the offending law on that right, the effect of the exclusion of that right from judicial review, the abrogation of the principle or the essence of that right is an exercise which cannot be denied on the basis of fictional immunity under Art.31B.”

The third limb of the textual trinity is Article 31 C. the said enabling and empowering Article reads as under;

 

31C. 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.

 

This Article was inserted by the Constitution (Twenty-fifth Amendment) Act 1971 with effect from 20th April 1972. Subsequently, it was amended by the Constitution (Forty-second Amendment) Act 1976 and the Constitution (Forth-fourth Amendment) Act 1978 with effect from 20th June 1979.

Expatiating on the  reach and scope of 31C,Hon’ble Bench in State of T.N. Vs. Abu Kavar Bai, L., AIR 1984 SC 326 (para 13ff) the history of article 31 C was traced, while observing as under;

 

  • The constitution (25th Amendment) Act 1971 led to insertion of this Article to facilitate  hurdle-free implementation of Directive principles of State policy enshrined in Part IV of the Constitution.
  • As it originally stood, (a) it shielded from any challenge on the ground of violation of Arts.14, 19 and 31 any law enacted for implementing the Directives in Cls. (b)-(c) of Ar.39; and (b) further provided that the declaration in such law that it was enacted for the purpose of giving effect to the policy under Art.39(b)-(c) would not be open to judicial review. This second part was struck down as offending against the basic structure of the Constitution, in the case of Keshavananda, but the rest of the Article was held valid.
  • In pursuance to Kesvanand Bharati( AIR 1973 SC 1461) judgement, this Article was amended by 42nd Amendment in the year 1976 to extend the protection to all the directives in part IV in lieu of erstwhile scheme restricting the protection only to 39 (b) to 39 (c).The said amendment was undone by the ratio of Minerava Mills case(AIR 1980 SC1789 ).Thus the second part of 31 C having been held to be violative of basic structure stood evaporated in letter and spirit from Constitution of India.

 

Human ingenuity has not discovered, and never will, how to get over the perennial injustice of the ‘lives of wise men at the mercy of fools.’

 

The Hon’ble Supreme Court in ‘63 Moons Technologies Ltd. Vs. Union of India’, (2019) 18 SCC 401, while removing the administrative orders from the over-arching shadow of immunity under Articles 31A to 31 C,  emphatically explained the legal position as under;

 

“the expression “law”, as defined in Article 13(3)(a), includes an Ordinance, rule, regulation, notification, and custom or usage having in the territory of India the force of law. Obviously, therefore, when the expression “order” is used, it would take colour from Ordinance, rule, regulation, notification, which are all legislative in nature, and not administrative – Further, the Central Government’s order passed under S.396 of the 1956 Act, directly impacts the rights and liabilities of the Companies, their shareholders and creditors, sought to be amalgamated under the order and such order is not an order in general which applies to all such companies, but only to the particular companies sought to be amalgamated and there is no general rule of conduct, without reference to the particular case that is laid down by such an order – Further, the Central Government order impugned herein, ultimately, makes a specific direction qua two specific companies which are to be amalgamated – Thus, such an order is not in the nature of legislation or delegated legislation – Thus, the Central Government order, made under Section 396 of the 1956 Act, must conform to the fundamental rights guaranteed by Arts. 14 and 19(1)(g) of the Constitution – Companies Act, 1956 – S.396 – Companies Act, 2013 – S.237 – Words and Phrases – “Law”, “legislation” how to be distinguished from “administrative orders”.

 

The immunity under these three Articles pertains to the bunch of categories defining the expression ‘Law’ and enumerated in Article 13(3) of Constitution of India.

These three Articles i.e. Article 31A to Article 31C describe the Sisyphean struggle of the State across the ascents of its own constitutional terrain.

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