In Property Owners’ Association v. State of Maharashtra (2024), at its core, the dispute concerned whether the text of Article 31-C as it stood prior to the Forty-Second Amendment can continue to be given legal effect after the Court in Minerva Mills invalidated Section 4 of the Forty-Second Amendment. The appellants contended that the unamended Article 31-C (as it stood prior to the Forty-Second Amendment) does not automatically revive after the decision in Minerva Mills.
The essence of the argument of the appellants was that when Minerva Mills stuck down the Forty-Second Amendment, only the newly inserted language expanding Article 31-C’s exemption to cover all Directive Principles was struck down. However, the Amendment’s function of omitting the words “the principles specified in clause (b) or clause (c) of article 39” still stands. Hence, it was urged that even after the decision in Minerva Mills, these words stand omitted from Article 31-C.
The Court answering the question analysed the issue of substitution and revival of statutes and said that, It is not appropriate to separate an amendment which substitutes certain words with certain other words into multiple steps and examine the legal effect of invalidation on each of these steps independently. This is because when a legislature enacts a substitution, it is only removing certain text to make space for the new text it wishes to enact. Simply put, the legislature would not remove the text in question without at the same time inserting alternate text. Given that the legislative intent is composite and indivisible, to remove and insert simultaneously, a judicial approach which disaggregates these two steps and treats them differently would amount to the court re-writing the law contrary to the legislative intent.
As the decisions from the United States note, in such cases, there are two expressions of legislative intent, the original text and the amended text. If the amended text is invalidated, the only valid expression of legislative intent is the original text. If a court were to find that even the original text could not be given legal effect because it had been repealed, this would result in a third outcome, a legal vacuum which was neither intended by the legislature that enacted the original text nor by the legislature which adopted the amended the text. Crucially, this third outcome would fail to give effect to either legislative intent despite there being no constitutional fault in the original provision.
As the decisions in Laxmibai, Central Provinces Manganese Ore, and DK Trivedi & Sons note, if a court were to not only invalidate the newly inserted text but also hold that the old text stands repealed it could lead to absurd outcomes or render the text wholly unworkable. The practical effect of such an outcome would be that a judicial decision invalidating an unconstitutional amendment would also inadvertently nullify a valid and constitutional provision which the legislature would never have repealed without providing a replacement.
Insofar as the argument that the original rule had been repealed by the legislature itself and thus ought not to be given effect, as noted above, this reasoning is negated by the inference that the legislature would never have repealed the original text without simultaneously adopting the amended text. While a court cannot give effect to text that the legislature has repealed, as noted in Shamarao Parulekar, a case where a legislature has engaged in substitution, and the newly enacted text has been invalidated, is materially different. There may exist a narrow sub-set of cases where it is evident from the legislative circumstances or external aids to statutory interpretation, that the legislature would have in fact repealed the provision or words in question independent of its enactment of an alternative provision.
Therefore, it is incumbent on courts to ask the question posed by Justice Beg in Central Provinces Manganese Ore, is there “intention to repeal, without a substitution”? Although some of the precedents discussed frame the question as ‘would the legislature have repealed the original text if it knew a court would invalidate the amended text?’, a more appropriate framing of the question would be, “Would the legislature have repealed the original text without giving effect to the amended text?” for this is the result of a court invalidating the amended text. If in cases where a legislature has repealed text and inserted other text, there is clear evidence that the legislature would have repealed the text in question independent of its decision to give effect to new or alternate language, then a court can continue to give effect to the repeal despite invalidating the new text.
This is because, in such cases, the legislative intent is not composite or indivisible, and it is evident that the legislature contemplated that the original text would be repealed independent of whether the new text was given effect or not. However, absent such clear legislative intent, where a legislature substitutes a text by amendment and the amendment is invalidated, it is presumed that the unamended text stands revived.
This analysis of whether legislative intent is composite or not is relevant to the case of substitutions. However, there is another reason why the argument of the appellants that repealed text can never be enforced after a court invalidates an amendment may be flawed, and that is the case of a repeal simpliciter. Let us imagine a situation where Parliament were to by constitutional amendment, repeal protections concerning tenure or salary granted to constitutional functionaries such as Judges or Election Commissioners. This would be a case of an amendment that only repealed constitutional text. Such an amendment would likely violate the basic structure of the Constitution. If this Court were to invalidate such an amendment, could it be contended that the protections do not revive? The only logical relief in such a case is the revival of those protections.
These protections would be enforceable despite the fact that they have been omitted from the statute book or constitutional text by the legislature. This would not be a case of the court re-writing the law but merely nullifying the effect of the repeal. Thus, it cannot be said that a court cannot nullify the effect of a repeal. The case of substitutions is admittedly more complicated, as the Court must investigate whether the legislative intent to repeal and enact is composite and indivisible. However, once it is demonstrated that the legislature would not have repealed without simultaneously enacting, there can be no doubt that a court can reverse both the effects of the enactment and the repeal.
Finally, in addition to looking at the totality of the legislative circumstances, the court must also examine the consequence of the original text reviving or not reviving vis-a-vis the principles espoused in the judgement. Ordinarily, where an unconstitutional provision is struck down, it is presumed that the original text is constitutional and thus there are no adverse consequences flowing from its reviving. However, there may exist cases where the underlying or original rule itself is unconstitutional or that to revive the situation that existed prior to the amendment would either severely undermine the legal principles set out in the judgement invalidating the amendment or result in some other adverse consequences. In such cases, courts have the flexibility to appropriately shape reliefs. Having clarified the position of law, we now apply the tests outlined above to the question concerning Article 31-C before us.
By Section 4 of the Forty-Second Amendment the words “the principles specified in clause (b) or clause (c) of article 39” in Article 31-C were replaced with the words “all or any of the principles laid down in Part IV.” This is a case of substitution. Section 4 of the Forty-Second Amendment was subsequently struck down in Minerva Mills. As noted above, where an amendment substituting certain text with certain alternate text is invalidated, the effect is that the unamended text continues in force. This is because the legislative intent of repeal and enactment in such cases is composite and cannot be separated. To give effect to the repeal and not the enactment would result in an outcome which does not correlate with legislative intent, and, as Justice Hidayatullah noted in Laxmibai “leave the original section truncated” resulting in absurd outcomes.
This would in effect invalidate the original, valid and constitutional provision despite there being no constitutional fault with it nor the legislature intending to repeal it. Thus, the presumption would be that after Minerva Mills, the unamended Article 31-C would continue in force. Indeed, it is evident that cases such as Bhim Singh and Sanjeev Coke proceeded on this presumption.
The only plausible exception to this presumption would be if it could be demonstrated that Parliament, when enacting the Forty-Second Amendment would have repealed the words “the principles specified in clause (b) or clause (c) of article 39” independent of their enactment of the words “all or any of the principles laid down in Part IV.” In this case, no reference to the broader legislative proceedings or external aids is necessary to arrive at the inference that Parliament would not have independently repealed these words. The text of the amendment adopted by Parliament itself makes it abundantly clear that there was no independent intention to repeal. The effect of Section 4 of the Forty-Second Amendment was to expand the scope of the immunity provided by Article 31-C to legislation. Under the unamended Article 31-C, immunity was only provided to legislation if it gave effect to the Directive Principles found in clause (b) or clause (c) of Article 39.
However, by Section 4 of the Forty-Second Amendment, the scope of this immunity was significantly expanded to immunise legislations that gave effect to any or all of the Directive Principles in Part IV of the Constitution. Thus, the intention of Parliament in enacting Section 4 of the constitutional amendment was undoubtedly to expand the scope of the immunity granted by Article 31-C. This being the situation, it cannot be suggested that Parliament would have repealed the words “the principles specified in clause (b) or clause (c) of article 39” if it did not simultaneously enact the broader language expanding the scope of Article 31-C. If Parliament had independently repealed these words, it would have not just reduced the scope of Article 31-C but altogether eliminated the effect of the Article.
Without the words “the principles specified in clause (b) or clause (c) of article 39” in Article 31-C, the provision would have been rendered nugatory. Given Parliament’s manifest intention to expand the scope of Article 31-C by Section 4 of the Forty-Second Amendment, it is not plausible to hold that Parliament independently sought to repeal the words “the principles specified in clause (b) or clause (c) of article 39” from Article 31-C.
Therefore, it is evident that the legislative intent of Parliament when adopting Section 4 of the Forty-Second Amendment was composite, to repeal and enact (i.e., to substitute) through one single action. This Court cannot therefore disaggregate the steps of repeal and enactment and give effect to the repeal even after invalidating the enactment. After Minerva Mills invalidated Section 4 of the Forty-Second Amendment, the composite legal effect of Section 4 is nullified and the unamended text of Article 31-C stands revived.
The final question is whether the revival of the unamended text of Article 31-C would in some way manifestly contravene the principles laid down in the judgment of Minerva Mills or result in some other adverse consequence. The text of the unamended Article 31-C was challenged, and the first part of the Article was upheld by thirteen-judge decision in Kesavananda Bharati while the latter half of the Article was invalidated. Therefore, the first half of unamended Article 31-C, which is the subject matter of the present controversy, was undoubtedly constitutional as held by the thirteen-judge decision in Kesavananda Bharati and further by the Constitution Bench in Waman Rao.
Therefore, if as a consequence of the decision in Minerva Mills, the unamended Article 31-C continues in force, there can be no question of any unconstitutionality or adverse consequences associated with the unamended Article 31-C. Indeed, both the Constitution Benches in Minerva Mills and Waman Rao expressly noted that the first half of Article 31-C had been held to be constitutional in Kesavananda Bharati. Further, given that the unamended Article 31-C has been given effect for over four decades as demonstrated by the decisions in Bhim Singh and Sanjeev Coke, no argument can be raised concerning any legal or practical difficulties with the operation of the unamended Article 31-C. Given these findings, we conclude that the unamended Article 31-C continues in force.
One final observation may be made. The principles discussed in this section of the judgement concerning the consequences of a substitution being invalidated emanate from cases concerning the invalidation of statutory provisions or delegated legislation. While constitutional amendments undoubtedly stand on a different footing legally, there is no reason that these principles concerning statutory interpretation would not apply equally to constitutional amendments. Indeed, the respondents before us highlighted a reason for them to apply with even greater force to constitutional amendments. The underlying rationale of the basic structure doctrine concerning constitutional amendments is that the amendment must not impermissibly deviate from the core principles that structure and govern our constitutional democracy.
An amendment can be invalidated when it modifies, obliterates, or adds some feature to the Constitution that is anathema to the principles that emerge upon a structural reading of the constitutional text. While Parliament undoubtedly has a constitutional prerogative to amend the Constitution and continually give constitutional character to the citizens’ democratic aspirations, the question in basic structure review is a question of the degree of deviation from the principles that undergird the Constitution. If an amendment is invalidated because it causes a drastic deviation from the principles that govern our constitutional democracy, the consequences must be a return to those principles.
Article 31-C represented a delicate balance between the goals of Part IV and the rights of Part III of the Constitution. This balance was held to not impermissibly deviate from the core principles that govern our Constitution by the thirteen judges’ decision of this Court in Kesavananda Bharati. However, in Minerva Mills, Section 4 of the Forty-Second Amendment was held to violate these core principles that form the basic structure. The logical result of such a ruling is that the constitutional text must return to within the fold of the basic structure.
To give effect to the repealing portions of Section 4 of the Forty-Second Amendment while also invalidating the enactment would not result in a return to a constitutional text that is in conformity with the basic structure. Rather, it would result in a novel third outcome, the constitutionality of which would be uncertain, untested, and may itself violate the basic structure. Therefore, the consequence of invalidating Section 4 of the Forty-Second Amendment must be that the unamended Article 31-C is revived.