4.

1 Constitutional Law

Submitted by:

Name: Pratik Shende

ID No.: UG16-44

2017-18 (Semester IV)

Submitted to:

Associate Prof. (Dr.) Vijay Pratap Tiwari

Associate Prof. (Dr.) Anirban Chakrborty

Assistant Prof. Ms. Karishma Gavai

Maharashtra national law university, Nagpur

Table of Contents
Introduction of Facts ..................................................................................................................................... 3
ARGUMENTS ADVANCED .............................................................................................................................. 4
Issues to be Addressed ................................................................................................................................. 6
JUDGEMENT .................................................................................................................................................. 6
Ratio of Judgment ................................................................................................................................... 13
Minority View...................................................................................................................................... 13
Critical Analysis and Recommendations ..................................................................................................... 14
Introduction of Facts

There was an Act called Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962,
hereinafter referred as the Act, imposed a ceiling on agricultural lands. Thereafter the ceiling was
revised from time to time and certain other amendments were brought into operation. The
validity of these Acts were challenged before the Bombay High Court on the ground that they
take away the fundamental rights. Articles 31A and 31B were also brought under the purview of
challenge on the ground that they infringe the basic structure of the constitution. But in the High
Court level all challenges were rejected. Against the decision appeal was filed in the Supreme
Court in the case of 1Dattatraya Govind Vs State of Maharashtra (1977 2 SCR 790). But
those appeals were also dismissed on reasons stated by the Court. This judgment of Duttatraya
case was delivered during emergency. As the emergency had been revoked the petitions were
filed in the Court seeking review of the Dattatraya case. Therefore the present case has basically
emerged as a review of the Dattatraya case.

In this case the main challenge was the constitutional validity of Articles 31A, 31B and un-
amended article 31C. It was strongly argued against the protective nature of these articles which
exclude all possibilities of challenge to the laws included under the shield. They argued that such
shield will violate certain fundamental rights enshrined under part III of the constitution. The
appellants replied that the very provisions of the constitution which the respondents rely to save
impugned laws are invalid as the later amendments infringe the basic essential structure of the
constitution as propounded in Keshavananda Bharati Case. The Petitioners also challenged the
validity of constitutional fortieth amendment on the ground that it was passed in such a duration
when the Parliament was not in lawful existence as it was on an extended tenure.

1
Dattatraya Govind Vs State of Maharashtra 1977 2 SCR 790
ARGUMENTS ADVANCED
1) Whether in enacting article 31A (1) by the way of constitution amendment, the parliament
transgressed its power of constitutional amendment.

The validity of the article 31A was challenged on the ground that it takes away the fundamental
rights and thus contrary to the basic structure of the constitution. But the Court negated this
contention by saying that it would be a misconception that every case where the protection of the
fundamental right is withdrawn can’t be said to be damaging the basic structure of the
constitution. While dealing with this very issue the Court has gone to the historical perspective of
the Constitution First Amendment Act. From the statement of reasons given thereon the Court
has inferred that the main reason behind the inclusion of article 31A was to make the zamindari
abolition laws effective and to remove other difficulties that may arise. The Court has also
referred to the speech given by J.L. Nehru which gives a clear picture that there indeed was a
necessity to remove the glaring disparities and thereby to strengthen the structure of the
constitution.

The Court said that the 1st amendment was aimed in removing the glaring social and economic
disparities in the agricultural sector. But while removing wide disparities, the Court said, it may
possible that certain marginal and incidental inequalities may arise and it is impossible for any
government to remove all the disparities without causing certain hardship to a class of people
who are also entitled to equal treatment under the law. Thus the Court opined that the 1st
amendment of the constitution does not jeopardize any basic structure of the constitution.

The Court also referred four other landmark cases where also the validity of article 31A was
challenged. These cases are 2Shankariprasad Vs Union of India AIR 1951 SC 458, 3Sajjansingh
Vs State of Rajasthan 1965 1 SCR 933, 4Golaknath AIR 1967 SC 1643 and most importantly
Keshavananda Bharati AIR 1973 SC 1461. In all the cases the constitutional validity of Article
31 has been recognized, sometimes directly and sometimes indirectly.

2
Shankariprasad Vs Union of India AIR 1951 SC 458
3
Sajjansingh Vs State of Rajasthan 1965 1 SCR 933
4
Golaknath AIR 1967 SC 1643
Therefore it can be concluded that Article 31A breathes its own validity from the basic tenets of
the constitution and it has satisfactorily survived all the challenges.

2) Whether article 31A (1) gives sufficient protection to the laws included under it from being
challenged on the alleged ground of fundamental rights namely articles 14, 19 and 31.

3) Whether article 31B which provides for Ninth Schedule can be challenged on the ground of
being inconsistent with the fundamental rights of the citizens.

This is pertaining to the validity of Article 21B. This Article creates most Disputed Ninth
Schedule and proclaims that once the respective Acts are included in this schedule then they can
not deemed to be void on the ground of violation of fundamental rights. The contents of this
Article are expressed without prejudice to the generality of the provisions contained under
Article 31A. The ninth Schedule was added to the constitution after the first amendment to the
constitution. Here the Court proposed to treat decision of Keshavananda Bharati as the
benchmark. Several Acts were put in the Ninth Schedule prior to that decision on the supposition
that the power of the parliament to amend the constitution was wide and untrammeled. Therefore
the Court will not be justified in upsetting the settled claims by leaving those Acts open to
challenge. This will avoid creating confusion in a lawful and orderly society.

The Court said that as far as the validity of the Ninth Schedule is concerned, the Acts and
regulations included in the Ninth Schedule prior to the date of Keshavananda Bharati, will
receive the full protection of this Article. Those laws and regulations will not be open to
challenge on the ground that they are inconsistent with any of the provisions of part III of the
constitution. But the Acts and regulations which have been included after the date of
Keshavananda Bharati judgment shall be open to scrutiny on the ground and will not
automatically receive the blanket protection of the Ninth Schedule. Therefore the Acts and
regulations added after the said date can only find themselves placed in the Ninth Schedule if
they can satisfy that they do not harm the basic structure of the constitution.
 Issues to be Addressed
In this instant case the Court has framed the following issues to be addressed:
1) Whether in enacting article 31A (1) by the way of constitution amendment, the parliament
transgressed its power of constitutional amendment.

2) Whether article 31A (1) gives sufficient protection to the laws included under it from being
challenged on the alleged ground of fundamental rights namely articles 14, 19 and 31.

3) Whether article 31B which provides for Ninth Schedule can be challenged on the ground of
being inconsistent with the fundamental rights of the citizens.

4) Whether article 31C which aims to achieve the goals laid down under article 39 can be opened
to challenge on the alleged ground of violation of fundamental rights.

5) Whether the proclamation of emergency was mala-fide and the 40th amendment which was
enacted by extending the life of the parliament were valid or not.

6) Whether the doctrine of stare decisis can be applied in upholding the constitutional validity of
any Article of the constitution or this principle can apply on to laws sought to be protected by
those Articles.

JUDGEMENT

 The High Court held that the provisions of the aforesaid Acts were not open to challenge on the
ground that they were inconsistent with or took away or abridged any of the rights conferred by
Part III of the Constitution, since those Acts were placed in the Ninth
 Schedule by the Constitution (17th Amendment) Act, 1964, and the Constitution (40th
Amendment) Act, 1976, and also because of the promulgation of Emergency as a result of
which, the rights under Articles 14 and 19 of the Constitution could not be enforced.

 The High Court also repelled the challenge to the validity of Article 31-B itself by holding that
far from damaging the basic structure of the Constitution, the Constitution (First Amendment)
Act, 1951, which introduced Article 31-B into the Constitution, fortified that structure by
subserving a fundamental constitutional purpose.

 The second proviso to Article 31-A(1) was held not to have been contravened.

 (4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this Article [whether before or after the commencement of Section 55
of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any
court on any ground.

 The question as to whether Articles 31-A(1)(a), 31-B and the unamended Article 31-C are valid
shall have to be decided on the basis that clause (5) of Article 368 is ineffective to enlarge the
Parliament's amending power so as to empower it to make amendments which will damage or
destroy any of the basic features of the Constitution and clause (4) is ineffective to take away the
power of the courts to pronounce a constitutional amendment invalid, if it damages or destroys
any of the basic features of the Constitution.

 The main question arising before us has to be decided by applying the ratio of
Kesavananda Bharati, in its pristine form.

 10. The first question to which we have to address ourselves is whether in enacting
Article 31-A(1)(a) by way of amendment of the Constitution, the Parliament transgressed
its power of amending the Constitution.

 Article 31-A was inserted in the Constitution by Section 4 of the Constitution (First
Amendment) Act, 1951 with retrospective effect from the commencement of the
Constitution.
 14. The validity of the constitutional amendment by which Article 31-A(1)(a) was
introduced is challenged by the petitioners on the ground that it damages the basic
structure of the Constitution by destroying one of its basic features, namely, that no law
can be made by the legislature so as to abrogate the guarantees afforded by Articles 14,
19 and 31.

 The law on the subject of the Parliament's power to amend the Constitution must now be
taken as well settled, the true position being that though the Parliament has the power to
amend each and every article of the Constitution including the provisions of Part III, the
amending power cannot be exercised so as to damage or destroy the basic structure of the
Constitution.

 The precise question then for consideration is whether Section 4 of the Constitution (First
Amendment) Act, 1951 which introduced Article 31-A into the Constitution damages or
destroys the basic structure of the Constitution.

 The main objects of this Bill are to amend Article 19 for the purposes indicated above
and to insert provisions fully securing the constitutional validity of zamindari abolition
laws in general and certain specified State Acts in particular

 Certain Zamindars, feeling themselves aggrieved, attacked the validity of those Acts in
courts of law on the ground that they contravened the fundamental rights conferred on
them by Part III of the Constitution.

 "It will be recalled that the Zamindari abolition laws which came first in our programme
of social welfare legislation were attacked by the interests affected mainly with reference
to Articles 14, 19 and 31, and that in order to put an end to the dilatory and wasteful
litigation and place these laws above challenge in the courts, Articles 31-A and 31-B and
the Ninth Schedule were enacted by the Constitution (First Amendment) Act.

 It is proposed in clause 3 of the Bill to extend the scope of Article 31-A so as to cover
these categories of essential welfare legislation."
 In bringing this Bill forward I do so and the government does so in no spirit of
lightheartedness, in no haste, but after the most careful thought and scrutiny given to this
problem.

 I have a certain emotional reaction to them and awareness of them which is much more
than merely an intellectual appreciation.

 We have to think in terms of these big changes, and changes and the like and we thought
of amending Article 31.

 I am merely giving effect to the real intentions of the framers of the Constitution, and to
the wording of the Constitution, unless it is interpreted in a very narrow and legalistic
way.

 These loud arguments and these repeated appeals in courts are dangerous to the State,
from the security point of view, from the food production point of view and from the
individual point of view, whether it is that of the Zamindar or the tenant or any
intermediary.

 But before doing that, we desire only to state that these amendments, especially the 1st,
were made so closely on the heels of the Constitution that they ought to be considered as
a part and parcel of the Constitution itself.

 The Amendments are not born of second thoughts and they do not reflect a fresh look at
the Constitution in order to deprive the people of the gains of the Constitution.

 It is obviously unjust to allow the exploitation of any large surface of land by a single
individual unless other overwhelming reasons make this highly desirable.

 In the context of the current socio-political climate, redistribution of land would rather
appear to be imperative."

 Agrarian reform requires, inter_alia, the reduction of the larger holdings and distribution
of the excess land according to social and economic considerations.
 The adoption of "family unit" as the unit of application for the revised ceilings may cause
incidental hardship to minor children and to unmarried daughters.

 31. For the reasons, we are of the view that the Amendment introduced by Section 4 of
the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic
structure of the Constitution.

 The Amendment must be upheld on its own merits.

 We have heard long and studied arguments on that question also, in deference to which
we must consider the alternate submission as to whether the doctrine of stare decisis can
save Article 31-A, if it is otherwise violative of the basic structure of the Constitution.

 In Golak Nath8 it was held by a majority of 6:5 that the power to amend the Constitution
was not located in

 The inevitable result of this holding should have been the striking down of all
constitutional amendments since, according to the view of the majority, Parliament had
no power to amend the Constitution in pursuance of Article 368.

 But the court resorted to the doctrine of prospective overruling and held that the
constitutional amendments which were already made would be left undisturbed and that
its decision will govern the future amendments only.

 The 1st Amendment by which Articles 31-A and 31-B were introduced remained
inviolate.

 It is trite knowledge that Golak Nath was overruled in Kesavananda Bharati in which it
was held unanimously that the power to amend the Constitution was to be found in
Article 368 of the Constitution. Go to

 It is sufficient for invoking the rule of stare decisis that a certain decision was arrived at
on a question which arose or was argued, no matter on what reason the decision rests or
what is the basis of the decision.
 The reason why Article 31-A was upheld in the earlier decisions, if it was, are not
germane for the purpose of deciding whether this is a fit and proper case in which to
apply that rule.

 In the first place, Article 31-A breathes its own vitality, drawing its sustenance from the
basic tenets of our Constitution.

 Its unstated premise is an integral part of the very making of the Constitution and it holds,
as it were, a mirror to the ideals which inspired the framing of the Constitution.

 Sankari Prasad involved the larger question as to whether constitutional amendments fall
within the purview of Article 13(2) of the Constitution.

 Article 31-B read with the Ninth Schedule provides what is generally described as, a
protective umbrella to all Acts which are included in the schedule, no matter of what
character, kind or category they may be.

 Several Acts were put in the Ninth Schedule prior to that decision on the supposition that
the power of the Parliament to amend the Constitution was wide and untrammelled.

 The theory that the Parliament cannot exercise its amending power so as to damage or
destroy the basic structure of the Constitution, was propounded and accepted for the first
time in Kesavananda Bharati.

 Those laws and regulations will not be open to challenge on the ground that they are
inconsistent with or take away or abridge any of the rights conferred by any of the
provisions of Part III of the Constitution.

 The various constitutional amendments, by which additions were made to the Ninth
Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy
the basic structure of the Constitution.

 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
 their view that there were no inherent or implied limitations on the Parliament's power to
amend the Constitution.

 The laws shall have to be examined individually for determining whether the
constitutional amendments by which they were put in the Ninth Schedule, damage or
destroy the basic structure of the Constitution in any manner.

 56. Apart from the challenges to the various constitutional amendments, the petitioners
have also challenged the validity of the Constitution (Fortieth Amendment) Act, 1976, by
which the Amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 were placed in the Ninth
Schedule.

 The provisions of Article 352 should be interpreted in a liberal and progressive manner so
that the democratic ideal of the Constitution will be furthered and not frustrated. Go to

 The attempt of the petitioners has been to assail the continuance of the state of emergency
under that proclamation.

 The 40th and the 42nd Constitutional Amendments cannot be struck down on the ground
that they were passed by a Lok Sabha which was not lawfully in existence.

 (1) The Constitution (First Amendment) Act, 1951 which introduced Article 31-A into
the Constitution with retrospective effect, and Section 3 of the Constitution (Fourth
Amendment) Act, 1955 which substituted a new clause (1), sub-clauses (a) to (e), for the
original clause (1) with retrospective effect, do not damage any of the basic or essential
features of the Constitution or its basic structure and are valid and constitutional, being
within the constituent power of the Parliament.

 In Kesavananda Bharati decided on April 24, 1973 it was held by the majority that
Parliament has no power to amend the Constitution so as to damage or destroy its basic or
essential features or its basic structure.

 We hold that all amendments to the Constitution which were made before April 24, 1973
and by which the 9th Schedule to the Constitution was amended from time to time by the
inclusion of various Acts and Regulations therein, are valid and constitutional.
  (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.

 In Kesavananda Bharati23 decided on April 24, 1973 it was held by the majority that
Parliament has no power to amend the Constitution so as to damage or destroy its basic or
essential features or its basic structure.

 It is not necessary to reiterate those reasons over again but they may be treated as forming
part of this judgment and a copy of my judgment in Minerva Mill case may be attached
as an annexure to this judgment.

 The note struck by later cases reversing Golak Nath does not militate against the vires of
Article 31-A. Suffice it to say that in the Kesavananda Bharati case Article 31-A was
challenged as beyond the amendatory power of Parliament and invalid.

 I cannot despite the high regard and great respect which I have for the learned Chief
Justice, agree with him that the doctrine of stare decisis cannot be invoked for upholding
the validity of Article 31-A, since that would be in direct contradiction of what has been
held by this very Bench in Ambika Prasad Mishra v. State of U.P

Ratio of Judgment
The bench which gave this judgment was consisting of Chandrachud C.J, V.R Krishna Iyer, V.D.
Tulzapurkar, A.P. Sen and Bhagwati. The majority judgment was delivered by Chandrachud C.J
on behalf of V.R Krishna Iyer, V.D. Tulzapurkar; A.P. Sen. Justice Bhagwati gave his dissenting
opinion. The judgment is split in a ratio of 4:1.

Minority View
In this very case Justice Bhagwati gave his dissenting opinion. He found himself unable to agree
with the majority view that doctrine of stare decisis can not be applied to uphold the validity of
the Articles but to the laws only which are protected by that Article. He found that this very
bench has upheld the constitutional validity of Article 31A by simple application of this doctrine.
In Keshavananda Bharati case the validity of Article 31A was upheld. This decision binds the
present one on the simple ground of stare decisis. Therefore he is not able to agree with the
majority view as that would be in conflict with what this very bench has said in Ambika Prasad
case.

Critical Analysis and Recommendations

The decision of Waman Rao Vs Union of India is regarded as one of the benchmarks in the
constitutional jurisprudence of India. This case in a way a unique one as it re-clarifies various
doubts arose out of Keshavananda Bharati case. It has set up a clear line of demarcation to avoid
all kind of future doubts also.

This judgment is a sound one in the sense that before coming to decide the issues directly the
Court has taken a very wide consideration of various other things. We will discuss all of them
one by one.

Let us first come to the point of land reform and laws pertaining to it. Land reform is a scheme
which was introduced by the government immediately after attaining freedom. The framers of
the constitution has given adequate space in the constitution itself for land reform and therefore
one can easily infer that this a very important aspect. India since its freedom wanted to achieve
an egalitarian pattern of society. India is a large country having ample quantity of land and
countless poor people. Majority of the people meet their livelihood by agricultural activities.
During the British period, there were few farmers who used to hold land of their personal
capacity. Acres of land were owned by Zamindars and all. They use to employ laborers for
agriculture and pay very less amount. It was difficult for those people to earn their livelihood in a
decent way. All these had resulted in huge economic and social disparities in the agricultural
sector which is the primary source of livelihood in our country. The constitution framers had
sufficiently noticed it and created mechanism in the constitution itself to address these
disparities.
The constitution was amended in the year 1951 for the first time. This amendment led several
modifications in the fundamental rights and started the era of land reform through constitutional
mechanism. It has introduced two new articles namely 31A and 31B and the infamous ninth
schedule so as to make the laws acquiring zamindaris unchallengeable in the Court of law. This
has because of the land reform legislations were being challenged before various high courts like
Patna, Nagpur, Allahabad etc on the ground of inconsistency with the fundamental rights
specially Article 14. But the high Court varied in their opinions. These kinds of litigations were
causing delay in the process of agrarian reforms which was supposed to be speedy. Therefore it
was thought to bypass these wasteful litigations in order to give true effect to the land reform
process.

Nehru was an ardent supporter of the scheme of agrarian reforms which was regarded as process
of social reform and social engineering. The centre wanted to remove any impediment to such
land reform laws being declared invalid by the courts and hence the amendment was made. In
this regard the ninth schedule was an important innovation in the area of constitutional
amendment. A new technique of bypassing judicial review was initiated. Any Act which is
incorporated in this schedule became fully protected against any kind of in a Court of law under
any fundamental right. Even an Act declared invalid by Court becomes valid retrospectively after
being put into this schedule. Initially 13 Acts pertaining zamindari abolition was put.

Now in the present case the Court has rightly recognized the need of furthering this process of
land reform in order to further the need of achieving an egalitarian pattern of society. Indian
agrarian sector is full of economic and social disparities and to remove the same stress on
agrarian reforms can not be ignored at any cost. But this also true that in doing so the privileges
of some people will be infringed upon. But still to achieve larger interest, small personal interests
can be sacrificed and this is no wrong. The Court has remarked that it is entirely for the
legislature to decide what policy to be adopted for the purpose of restructuring the agrarian
system and the Court should not assume the role of an economic adviser for pronouncing upon
the wisdom of such policy. One may totally agree with this remark to be very practical and
sound.
Article 31C was introduced by the Twenty Fifth Amendment Act to the constitution. This clause
declares that a law giving effect to the state policy towards securing the directive principles
contained under articles 39b or c would not be held void because of its inconsistency with
articles 14, 19 and 31. There was a further declaration that if a law was so enacted to give effect
to such policy would be immune from being challenged in any Court of law on the ground that
that it did not give effect to such policy. Now in the present case the Court has referred to the
case of Keshavanada Bharati case in which majority of the judges held this Article
constitutionally valid. Therefore the Court has not gone in much detail. The precedent value of
the Keshavananda Bharati Case was enough for the Court to decide on the validity of this article.
I totally agree with the observation of the Court as far as the validity of this Article is concerned.
This Article is meant for the protection of those laws which are to give effect to the directive
principles of state policy under Article 39(b) and (c). And laws made for this purpose must be
held good and valid as they aim to achieve certain greater benefit for the society. Thus
apparently it is not possible to call those laws invalid merely because they are sometimes
inconsistent with the fundamental rights. They aim to reduce various social and economic
disparities existing within the society. It is therefore expected that parliament while making laws
to give effect to achieve goals must exercise the power with due care and consideration to make
sure that the purpose is not diluted. If so done then it will definitely fortify the basic structure by
giving maximum potential to those laws. However this judgment is not free from lacunae. The
lacunae can be seen in two facets—one is pertaining to the interpretation of Article 31C and
another is regarding understanding of the doctrine of stare decisis.

These two are discussed herein after and recommendations made.

While introducing Article there was an additional declaration that the laws which are meant for
the achievement of goals laid down under Article 39(b) and (c) can not be rendered void on the
ground that it has not been able to achieve the purpose for what it is meant for. This provision
does not appear to be fair and reasonable. When a law pertaining to socio-economic reforms has
been enacted then people do gradually have certain expectations out of it. Therefore it the law
fails to meet the expectations of the people then it should be struck down. But in this case the
Court has failed to see this side and merely said that if a law is based on Article 39(a) and (c) and
it is taken for granted that such law will bring some welfare. The Court has failed to observe that
such a law shall thoroughly be scrutinized and it shall only stand in the face of judicial review
only when it is satisfied that it can achieve the purpose successfully. This can be one of the
lacunae and we can strongly recommend that it such a law fails achieve the purpose then it shall
be struck down.

In the second criticism one may fully agree with Justice Bhagwati who said that it is unknown in
this very judgment as to why doctrine of stare decisis can not be applied to uphold the
constitutional validity of an Article. The Court has said that the doctrine of stare decisis can not
be applied to uphold the constitutional validity of an Article itself but only to those laws sought
to be protected by the Article. This is one of the reasons in issue no. 6 but the Court has forgotten
to give any specific reason for saying so. This is one of the biggest lacunae in this very judgment
and one may strongly recommend that this very observation is very inconsistent with the
observation of this very bench in the case of Ambika Prasad Mishra Vs State of UP. Thus this
observation is seemed to be overruling the earlier decision of this very bench and therefore gross
violation of the doctrine of stare decisis.