Brief History of Article 31-C
Article 31-C provides statutes with immunity against constitutional challenges for alleged breaches of Articles 14 and 19 provided that the statutes give effect to the principles set out in clauses (b) or (c) of Article 39. Article 31-C represents a constitutionally sanctioned limitation on the operation of certain Part III rights insofar as they give effect to the Directive Principles contained in clauses (b) and (c) of Article 39.
When inserted into the Constitution in 1971, Article 31-C provided that no law giving effect to a State policy securing the principles set out in clauses (b) or (c) of Article 39 was void on the ground that it impermissibly abridged the rights conferred by Articles 14, 19, or 31. However, Article 31-C has been amended by Parliament and interpreted by Supreme Court on several occasions.
Article 31-C was inserted into the Constitution by Section 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971. At the time of its inclusion in the Constitution, it read as follows:
“31C. Saving of laws giving effect to certain directive principles. – Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 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, article 19 or article 31;
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 when 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.”
Judicial Interpretations
Kesavananda Bharati v State of Kerala (1973)
Article 31-C, along with Article 31-A, was challenged in Kesavananda Bharati v State of Kerala (1973). In the decision in that case, a majority comprising of seven of the thirteen judges consisting of Justices KK Mathew, AN Ray, DG Palekar, HR Khanna, YV Chandrachud, MH Beg, and SN Dwivedi upheld the constitutional validity of the first part of Article 31-C which provided immunity from challenges under Article 14, Article 19, and Article 31 to laws giving effect to the Directive Principles set out in clauses (b) or (c) of Article 39.
In the case of six of the Judges (Mathew, Ray, Palekar, Chandrachud, Beg, and Dwivedi JJ), this flowed from their reasoning that Parliament’s power to amend the Constitution was unbounded and courts could not judicially review the validity of a constitutional amendment even if it modified the application of fundamental rights. Justice Khanna, however, did not subscribe to the view that Parliament’s power to amend the Constitution was unlimited.
Nonetheless, on an independent analysis of Article 31-C, Justice Khanna found that the first part of Article 31-C which immunised laws from Article 14, Article 19, and Article 31 challenges did not violate the basic structure of the Constitution.
In Kesavananda Bharati, there also arose substantial disagreement concerning the second half of Article 31-C which stated that no law containing a declaration that the statute gave effect to a policy furthering the principles in clause (b) or (c) of Article 39 could be questioned by a court on the ground that it did not in fact give effect to such policy.
A majority of seven judges consisting of Chief Justice SM Sikri, and Justices JM Shelat, AN Grover, KS Hegde, AK Mukherjea, P Jaganmohan Reddy, and HR Khanna found that the latter half of Article 31-C violated the basic structure and was therefore invalid.
Thus, the final outcome of the decision in Kesavananda Bharati as concerns Article 31- C was that
(i) the first half of Article 31-C granting immunity to laws enacted in furtherance of clauses (b) or (c) of Article 39 against challenges based on Articles 14,19 and 31 was valid; and
(ii) the second half of Article 31-C excluding judicial review over whether a law in truth furthers the principles set out in clauses (b) or (c) of Article 39 was struck down.
As Justice HR Khanna succinctly recorded in his conclusions:
“1537. … (xiii) The first part of Article 31-C introduced by the Constitution (Twenty-fifth) Amendment Act is valid. The said part is as under:
“31-C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (a) or clause (c) of Article 39 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, Article 19 or Article 31: Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply there to unless such law, having been reserved for the consideration of the President, has received this assent.”
(xiv) The second part of Article 31-C contains the seed of national disintegration and is invalid on the following two grounds:
(1) It gives a carte blanche to the legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31-C taken along with its second part gives in effect the power to the legislature including a State Legislature, to amend the Constitution in important respects.
(2) The legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in Article 31-C. The vice of the second part of Article 31-C lies in the fact that even if the law enacted is not for the object mentioned in Article 31-C, the declaration made by the legislature precludes a party from showing that the law is not for the object and prevents a court from going into the question as to whether the law enacted is really for that object.
The exclusion by the legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31-C goes beyond the permissible limit of what constitutes amendment under Article 368. The second part of Article 31-C can be severed from the remaining part of Article 31-C and its invalidity would not affect the validity of the remaining part.
I would, therefore, strike down the following words in Article 31-C – “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.”
In essence, the second half of Article 31-C was severed from the first half and struck down. The second half of Article 31-C was thus no longer legally enforceable.
42nd Amendment, 1976
Subsequently, Article 31-C was further amended by the Constitution (Forty-second Amendment) Act, 1976 (“Forty-Second Amendment”). By Section 4 of this Act, the words “the principles specified in clause (b) or clause (c) of article 39” were replaced with the words “all or any of the principles laid down in Part IV.”
Forty-fourth Amendment) Act, 1978
Shortly thereafter, Article 31-C was once again amended by Section 8 of the Constitution (Forty-fourth Amendment) Act, 1978. This amendment removed reference to Article 31 of the Constitution contained in Article 31-C. This was alogical corollary to the omission of Article 31 itself from the Constitution. As Article 31 had been removed from the Constitution, it was no longer necessary that Article 31-C provide legislation with immunity from Article 31 challenges.
Minerva Mills v Union of India (1980) and Waman Rao Case
The amendment to Article 31-C by Section 4 of the Forty-Second Amendment was challenged in Minerva Mills v Union of India. The petitioners had challenged the Sick Textile Undertakings (Nationalisation) Act, 1974, and the order dated 19 October 1971 nationalising their business.
However, at the time of the challenge, the impugned legislation had already been inserted into the Ninth Schedule of the Constitution. Thus, to secure the ultimate relief of reversing the nationalisation, the petitioners in Minerva Mills also challenged the thirty-ninth amendment to the Constitution which had inserted the impugned legislation into the Ninth Schedule of the Constitution and Section 55 of the Forty-Second Amendment which modified Article 368 to exclude constitutional amendments from judicial review.
As part of this broader challenge, the petitioners in Minerva Mills also separately challenged Section 4 of the Forty-Second Amendment on the ground that the amendment to Article 31-C violated the basic structure of the Constitution. Parallel to the Constitution Bench proceedings in Minerva Mills, a separate Constitution Bench heard the challenge to the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 in Waman Rao v Union of India (1981).
Although Chief Justice YV Chandrachud and Justice PN Bhagwati sat on both Constitution Benches (and indeed Justice Bhagwati authored a common opinion for both cases), the remaining three judges on both Constitution Benches were different and the two cases dealt with separate issues. In Waman Rao, the petitioners sought to assail the unamended portion of Article 31-C. In Minerva Mills, the Constitution Bench decided the validity of the changes wrought to Article 31-C by the Forty-Second Amendment while in Waman Rao, the Constitution Bench dealt with arguments concerning the validity of Article 31-C as it stood prior to the Forty-Second Amendment.
This is clarified by the observation of Chief Justice YV Chandrachud, speaking for the majority in Minerva Mills, where he noted:
“24. … Mr. Palkhivala did not challenge the validity of the unamended Article 31-C, and indeed that could not be done. The unamended Article 31-C forms the subject-matter of a separate proceeding and we have indicated therein that it is constitutionally valid – to the extent to which it is upheld in Kesavananda Bharati.”
The separate proceedings that the learned Chief Justice was adverting to were those in Waman Rao. It is also worth referring to the opinion of Justice PN Bhagwati (as he then was) in the decision of Minerva Mills. Justice Bhagwati authored a common judgment for both the decisions in Minerva Mills and Waman Rao. In his common judgment he stated:
“84. Now, in Waman Rao case the broad argument of Mr Phadke on behalf of the petitioners […] that the fundamental rights enshrined in Articles 14 and 19 form the basic structure of the Constitution and therefore Article 31-A, Article 31-B read with Ninth Schedule and the unamended Article 31-C insofar as they exclude the applicability of Articles 14 and 19 to certain kinds of legislation emasculate those fundamental rights and thereby damage the basic structure of the Constitution… […]
The argument of Mr. Palkhivala on behalf of the petitioners in the Minerva Mills case was a little different. He too attacked the vires of clause (4) and 5) of Article 368 since they barred at the threshold any challenge against the constitutional validity of the amendment made in Article 31-C but so far as Article 31-A, Article 31-B and the unamended Article 31-C were concerned, he did not dispute their validity and, as pointed out by us earlier, he conceded and in fact gave cogent reasons showing that they were constitutionally valid.
His only attack was against the validity of the amendment made in Article 31-C by Section 4 of the Constitution (Forty-second Amendment) Act, 1976 and he contended that this amendment, by making the directive principles supreme over the fundamental rights, damaged or destroyed the basic structure of the Constitution….”
The opinion of Justice PN Bhagwati clearly delineates the scope of the contentions, and consequently the decisions in Minerva Mills and Waman Rao. In the former case, the amendment to Article 31-C, which expanded the scope of immunity provided to legislation, was challenged. In the latter case, the petitioners sought to challenge the unamended Article 31-C that had already been partly upheld and partly invalidated in Kesavananda Bharati.
The Constitution Bench of five judges of Supreme Court in Minerva Mills invalidated Section 4 of the Forty-Second Amendment.
Chief Justice YV Chandrachud, speaking for the majority held:
“58. … On any reasonable interpretation, there can be no doubt that by the amendment introduced by Section 4 of the 42nd Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31-C. The startling consequence which the amendment has produced is that even if a law is in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State policy. […]
A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of that State towards securing some principle or the other laid down in Part IV. In respect of such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn…”
Chief Justice YV Chandrachud noted that the amendment to Article 31-C provided immunity to a sweeping range of legislation and the threshold for availing of such immunity was remarkably low. This severely undermined the protections granted to citizens by Articles 14 and 19. This reasoning led the majority in Minerva Mills to conclude that:
“75.…Section 4 of the Constitution (Forty-second Amendment) Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure to the total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.”
Before examining the legal effect of the Minerva Mills decision on Article 31- C, we may briefly advert to the decision in Waman Rao which was delivered four months after the decision in Minerva Mills. As noted above, the Constitution Bench in Waman Rao was faced with arguments that the unamended Article 31-C was also unconstitutional.
The petitioners in Waman Rao challenged the Maharashtra Lands (Ceiling on Holdings) Act, 1961 which had been placed in the Ninth Schedule of the Constitution. The respondents relied on Articles 31A, 31B, and 31C to contend that the impugned legislation was immunised from constitutional challenges grounded in Articles 14 and 19. In response to this defence, the petitioners contended that the aforementioned constitutional provisions were themselves unconstitutional and assailed the constitutional amendments which inserted them into the Constitution.
In doing so, the petitioners challenged Article 31-C (as it stood prior to the Forty-Second Amendment). To obviate the precedent in Kesavananda Bharati, where the vires of Article 31-C had already been disputed and arguably settled, the petitioners in Waman Rao contended that no clear holding concerning Article 31-C was discernible from the numerous opinions in Kesavananda Bharati. The Constitution Bench in Waman Rao rejected this contention.
Chief Justice YV Chandrachud, speaking for the majority, held:
“53. Shri M.N. Phadke, who led the argument on behalf of the petitioners, built a formidable attack against the vires of Article 31-C. But, with respect to the learned counsel, the effort is fruitless because the question as regards the validity of Article 31-C is no longer res integra. The opening clause of Article 31-C was upheld by the majority in Kesavananda Bharati and we do not quite see how the petitioners can be permitted to go behind this decision. […]
It is well known that six learned Judges who were in minority in Kesavananda Bharati upheld the first part of Article 31-C, which was a logical and inevitable consequence of Parliament’s power to amend the Constitution.
Khanna, J. did not subscribe to that view but, all the same, he upheld the first part of Article 31-C for different reasons. The question of the validity of the Twenty-fifth Amendment by which the unamended Article 31-C was introduced into the Constitution was specifically raised before the court and the arguments in that behalf were specifically considered by all the six minority Judges and by Khanna, J. It seems to us difficult, in these circumstances, to hold that no common ratio can be culled from the decision of the majority of the seven judges who upheld the validity of Article 31-C.
Putting it simply, there is no reason why simple matters should be made complicated, the ratio of the majority judgements in Kesavananda Bharati is that the first part of Article 31-C is valid.”
The majority of the Constitution Bench in Waman Rao ultimately held that:
“68. … (3) Article 31-C of the Constitution, as it stood prior to its amendment by Section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Kesavananda Bharati. Article 31-C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure….”
The decision in Waman Rao upheld the validity of Article 31-C (as it stood prior to the Forty-Second Amendment) insofar as it had already been upheld in Kesavananda Bharati.
To sum up, the decision in Kesavananda Bharati upheld the first half of Article 31-C to the extent that it provided immunity to statutes from Article 14 and Article 19 challenges if they gave effect to the principles in clause (b) or clause (c) of Article 39. The decision in Kesavananda Bharati also struck down the second half of Article 31-C which prevented judicial review of whether a law in fact gave effect to these principles.
The decision in Minerva Mills invalidated Section 4 of the Forty-Second Amendment which expanded the scope of the immunity provided by Article 31-C from laws giving effect to the principles in clause (b) or clause (c) of Article 39 to laws giving effect to any Directive Principle.
The decision in Waman Rao, which concerned Article 31-C prior to the Forty-Second Amendment, reiterated the position set out in Kesavananda Bharati, that the first half of the unamended Article 31-C was constitutionally valid and the second half was not.