Why in News?

While hearing a case to decide whether the government can acquire and redistribute private property, a 9-judge Bench of the SC decided to take up another issue of “radical constitutional consequence”: does Article 31C still exist?

What’s in Today’s Article?

• What is Article 31C of the Indian Constitution?
• Introduction of Article 31C
• The Journey of Article 31C
• The Ongoing Case in SC
• What are the Arguments in the SC?

What is Article 31C of the Indian Constitution?

• Article 31C protects laws enacted to ensure -
  • The “material resources of the community” are distributed to serve the common good (Article 39(b)) and
  • That wealth and the means of production are not “concentrated” to the “common detriment” (Article 39(c)).
• As per Article 31C, these particular directive principles (Articles 39(b) and 39(c)) cannot be challenged by invoking the right to equality (Article 14) or the rights under Article 19 (freedom of speech, right to assemble peacefully, etc).

Introduction of Article 31C:

• Article 31C was introduced by the Constitution (25th) Amendment Act 1971.
  • The amendment specifically mentioned the “Bank Nationalisation Case”, in which the SC stopped the Centre from acquiring control of 14 commercial banks by enacting the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969.
  • In this case, the court held that the ‘right to compensation’ was not appropriately ensured by the Banking Act.
• The 25th Amendment sought to surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy. One of the means employed to do so was the introduction of Article 31C.

The Journey of Article 31C:

• The 25th amendment was challenged in the Kesavananda Bharati case (1973) in which 13 judges held by a narrow 7-6 majority that the Constitution has a “basic structure” that cannot be altered, even by a constitutional amendment.
• As a part of this verdict, the court struck down the last portion of Article 31C, which states that no law giving effect to DPSP shall be called in question in any court on the ground that it does not give effect to such policy.
  • This opened the door for the court to examine laws that had been enacted to further Articles 39(b) and 39(c).
• In 1976, Parliament enacted the Constitution (42nd) Amendment Act, which expanded the protection under Article 31C.
  • As a result, every single directive principle (Articles 36-51) was protected from challenges under Articles 14 and 19 of the Constitution.
  • It was meant to give precedence to the directive principles over those fundamental rights which hinders socio-economic reforms for implementing the directive principles.
• In 1980, in the Minerva Mills v. UoI case, the SC struck down the above clause of the 42nd amendment.
  • The five-judge Bench held that Parliament’s power to amend the Constitution was limited, and it could not be used to remove these limitations and grant itself “unlimited” and “absolute” powers of amendment.
• However, the ruling resulted in a conundrum - By striking down part of the 25th amendment, did the court strike down Article 31C as a whole.

The Ongoing Case in SC:

• The court is hearing a challenge to Chapter VIII-A of the Maharashtra Housing and Area Development Act, 1976 (MHADA).
  • This chapter, introduced by an amendment in 1986, allows the government to acquire “cessed” properties in Mumbai, citing the obligation under Article 39(b) of the Constitution.
• In 1991, the Bombay High Court upheld the amendment, citing the protection granted by Article 31C to laws enacted in furtherance of Article 39(b).
• This decision was appealed at the SC in 1992, where the question eventually became whether “material resources of the community” under Article 39(b) included private resources such as cessed properties.

What are the Arguments in the SC?

• When the hearing began, the 9-judge Bench seemed to agree with the Centre’s submission that the case should be restricted to interpreting Article 39(b).
• However, the very next day, the Bench stated that the question of whether Article 31C still lives following the Minerva Mills decision has to be decided to avoid “constitutional uncertainty”.
• Senior Advocate (appearing for the petitioners) argued that the original version of Article 31C was ‘substituted’ with the expanded version provided in the 42nd Amendment.
  • Therefore, when this new Article 31C was struck down in Minerva Mills, the older provision would not automatically be revived.
• On the other hand, the Solicitor General (appearing for the Centre) argued that the doctrine of revival must apply in this case, and the post-Kesavananda Bharati position on Article 31C must be restored.
  • To explain the doctrine and justify its application, he relied on Justice Kurian Joseph’s observations in the case where the court struck down the Constitution (99th) Amendment Act (NJAC).
  • Justice Joseph held that once the process of substitution and insertion by way of a constitutional amendment is itself held to be bad and impermissible, the pre-amended provisions automatically resurface and revive.