NOTES

The Complexity and Controversy of Article 31, 31A, 31B, and 31C

The ‘Right to Property’ is one of the most controversial and complicated subjects under Constitutional Law. Originally Right to Property was a fundamental right enshrined under Article 19(1)(f) and Article 31. Both of these articles were repealed by the 44th Amendment Act of the Indian Constitution.

Article 19 (1) (f) of the Indian Constitution states that every person has the right to hold and dispose of their personal property as they see fit and as long as it’s within the concurrent laws. Article 31 of the Indian Constitution states that no person can be deprived of his property without the consent of a proper authority. These rights were not absolute and provided with some restrictions or exceptions for example, the property can be acquisition-ed for the general welfare of the public, or protection of the interests of the scheduled tribes.

The controversies which were revolving around the “Right to Property” introduced several amendments such as 1st, 4th, 7th, 25th, 39th, 40th, and 42nd.  These amendments either modified the existing articles or added some new articles or modified the. Articles 31A(added by 1st amendment and amended by 4th, 17th, and 44th amendments), 31B (added by 1st amendment) and 31C(added by 25th amendment and amended by 42nd and 44th amendments) were results of the same process.

44th Amendment Act of the Indian Constitution was challenged in the RC Cooper vs Union of India case popularly known as the Nationalization case. The union government under Mrs. Indira Gandhi acquisition the private banks in order to achieve farmer’s growth and provide easy loans. The banks called it an inadequate acquisition as the compensation was for their properties, they were not compensated for their reputation. The Supreme Court observed that ‘The compensation provided to the banks under Article 31 of the constitution can’t be illusory or arbitrary’. The non-tangible assets of the banks should also be compensated for. In the Keshavananda Bharti case of 1973, the Supreme Court ruled that the amount cannot be arbitrary.

Article 31A, 31B, 31C, and The 9th Schedule

Article 31A

Parliament added Article 31a to the Indian Constitution by the 1st Constitutional Amendment of 1951. The Article gave a right to the government that it can acquire the property of the people and by doing so, the fundamental rights mentioned in Article 14 and 19 of the Indian Constitution shall not be violated.

This amendment allowed the government to enhance the growth of the nation in the following manner:

1. Introduced for the purpose of the abolition of the Zamindari system as the government took the land from the Zamindars and used it for public welfare by either redistribution or agriculture.

2. The government took control of different private companies in order to use them for enhanced growth. However, this could be done for a fixed amount of time after which, the control had to be returned.

3. The government redistributed the mining rights from my lords.

4. The government took control of the production and distribution of various other resources like oil.

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Article 31B

Article 31B was also introduced in the constitution by the 1st Constitutional Amendment of 1951. It was introduced with respect to giving validation to certain acts and regulations. The article provides that the provisions mentioned in Article 31a are immune from the Indian judiciary and cannot be nulled on the basis that they might violate the fundamental rights mentioned in Articles 14, 19 and 31 of the Indian Constitution. Supreme Court in Waman Rao Case ruled that the acts and laws mentioned in the IX schedule till date, shall not be changed or challenged, but any attempt to amend or add more acts to that schedule will suffer close inspection and examination by the judiciary system.

 

Schedule IX

Ninth Schedule was added to the constitution by the first constitutional amendment in 1951. The reason for adding the ninth schedule to the Constitution was that at that point of time various State Govt. and Union Govt. wanted to implement policy of zamindari abolition and other land reforms. The Supreme Court in Kameshwar Singh case had ruled that the right to property cannot be taken away. Therefore, Ninth Schedule was added which made provision that any law put in Ninth Schedule will be outside the purview of Courts and Courts cannot question the validity of those laws which are put under the Ninth Schedule. In the I.R. Coelho case, Supreme Court finally held that Judicial Review is the basic feature of the Constitution and the Supreme Court can test the validity of law if it violates the basic feature of the Constitution even if it is put under Ninth Schedule.

 

Article 31C

Article 31C was included in the Constitution by the 25th Amendment of the Constitution in 1971. With these articles, the government tried to give primacy to some Directive Principles of State Policy over the Fundamental Rights. Article 31C intends to fulfill two objectives:

  • Any law made in order to give effect to Article 39b and Article 39c of the Indian Constitution will avoid the scrutiny of courts even if it violates Article 14 and Article 19 of the Indian Constitution.
  • Courts will not have the jurisdiction to decide whether the law enabled really gives effect to the principles mentioned in Article 39cand 39b of the Indian Constitution.

 

 

In the first look, it may seem that the provisions discussed above are arbitrary and parliament has tried all means to keep the ball in its court in the name of growth and welfare of general. It may be true to some extent but the judiciary tried its best to keep up the ‘Spirit of Constitution’ and safeguarded the rights of people. Through several judgments by evolving the concept of Basic Structure the Supreme Court has time to time have protected the Fundamental Rights guaranteed to people under the Constitution of India.