Constitutionality of 25th Amendment Act

Insertion of Article 31C and the25th Amendment

Submitted to:

Mr. Girish

Submitted by:

10A007

GUJARAT NATIONAL LAW UNIVERSITY

Acknowledgement I would like to thank Mr. Girish to have helped me

in classes to take interest in this topic. This

paper is merely an attempt, and it would not have

been successful without his knowledge on the topic.

I would also like to thank the library department of

our University for their support while I was

carrying on with my work.

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Table of Contents

Topic PageList of Abbreviations 4

Introduction 5Inter-Relationship

between Directive

Principles and

Fundamental Rights

7

Judicial Review 13Conclusion 18References 19

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List of Abbreviations

AIR……………………………………………………..….All India Reporter

Art……………………………………………………………………….Article

Id……………………………………………………………….………….Ibid.

Jour………………………………………………….………………..Journal

P…………………………………………………………………………Page

SC…………………………………..……………………….Supreme Court

SCC………………………………………………….Supreme Court Cases

SCR……………………………………..………..Supreme Court Reporter

Supp…………………………………………………………Supplementary

UoI………………………………………………………….…Union of India

v……………………………………………………………………..…versus

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Introduction

The 25th amendment of the Constitution in 1971 added

a new clause, Article 31C to the Constitution.

Article 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 all or any of

the principles laid down in Part IV 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 or Article 19 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 where 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

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the President, has received his assent Right to

Constitutional Remedies.

For the protection of Art. 31C, the law must be:

1. A law for giving effect to the policy of the

State to implement a Directive Principle in Art.

39(b) or (c).1

2. The legislature making a declaration to that

effect.

After a simple reading of the bare text, it is

conceivable that the intent of the legislature to

put forth such an Act was to give precedence to the

directive principles of the state policy. Upto 1971,

the position was that fundamental rights prevailed

over the directive principles of State Policy and

that a law enacted to implement a directive

principle could not be valid if it conflicted with a

fundamental right. Article 31C sought to change this

relationship to some extent by conferring primacy on

1 Minerva Mills v. UoI, AIR 1980 SC 1789, P. 1810

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Articles 39(b) and 39(c) over Articles 14, 19 and

31.2

The second part of Article 31C contained rather

controversial words that were interpreted by the

Apex Court as an attempt by the Parliament to oust

the jurisdiction of the Courts, thereby violating

the principle of Judicial Review, which is an

intrinsic part of the Constitution.

2 The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth Amendment by Upendra Baxi, (1971) 2 SCC (Jour) 11

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Inter-Relationship between

Directive Principles of State

Policy & Fundamental Rights

Articles 36 to 51 contain the Directive Principles

of State Policy. The idea to have such principles

has been borrowed by the Irish Constitution. The

makers of the Constitution realized that in a poor

country like India, political democracy would be

useless without economic democracy. Accordingly,

they incorporated a few provisions in the

Constitution with a view to achieve amelioration of

the socio-economic condition of the masses. In an

era of welfare state, these principles aim to

achieve the well-being of the people by seeking to

lay down some socio-economic goals which the various

governments have to strive to achieve.3

3 M.P. Jain, Indian Constitutional Law, 6th Edition Reprint, 2011, LexisNexis Butterworths, Page 1485

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By their very nature, Directive Principles imply a

lot of social engineering and social control. Some

of the legislations enacted with a view to giving

effect to the Directive Principles are bound to

impinge on Fundamental Rights. Thus the question

arose before the court that whether a legislation

violative of Fundamental Rights could be upheld on

the basis of one or more Directive Principles.

Before the 25 th Amendment Act

Before the insertion of Article 31C by the 25th

Amendment Act, the Courts had generally held

Fundamental Rights more supreme than Directive

Principles. This point was settled by the Supreme

Court in State of Madras v. Champakam Dorairajan, where a

government Order in conflict with Art. 29(2), a

Fundamental Right, was declared invalid, although

the government took the defense that it was made in

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pursuance to Art. 46, a Directive Principle.4 But

the Courts also adopted a view that in determining

the scope and ambit of Fundamental Rights, The

Directive Principles should not be completely

ignored, and that the Courts should adopt a

principle of harmonious construction and attempt to

give effect to both as far as possible. For example,

as early as 1958, in Kerala Education Bill5, Das, C.J.,

while affirming the primacy of Fundamental Rights

over Directive Principles, qualified the same by

pleading for a harmonious interpretation of the two.

In 1970, Hegde, J., observed, “While rights

conferred under Part III are fundamental, the

directives given under Part IV are fundamental to

the governance of the country. We see no conflict

between the provisions contained in Part III and

Part IV. The provisions are complementary and

supplementary to each other.”6In this case, the4 AIR 1951 SC 2265 In re Kerala Education Bill, AIR 1958 SC 9566 Chandra Bhawan Boarding v. State of Mysore, AIR 1970 SC 2042, p. 2050.

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Supreme Court was concerned with the validity of

certain provisions in the Minimum Wages Act, 1948

which were alleged to be violative of Article 14.

The challenge failed, though the case was not really

argued on the basis of Fundamental Rights versus the

Directive Principles.

Since then, the judicial attitude has become

positive and affirmative towards Directive

Principles, and both Fundamental Rights and

Directive Principles have come to be regarded as co-

equal. There is in effect a judicial tendency to

interpret Fundamental Rights in the light of, and so

as to promote, the values underlying the Directive

Principles.

The 25 th Amendment Act and after

There were a lot of events which led upto the fifth

parliament passing the 25th Amendment that gave

precedence to Directive Principles over certain

Fundamental Rights. Till then the topic had been

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widely debated by scholars such as Seervai and Prof.

P.K.Tripathi7. However the Supreme Court had

observed that a law which is otherwise valid, cannot

be held invalid because it was not in conformity

with the Directive Principles.8 The Supreme Court

struck to the position firmly that Fundamental

Rights were sacrosanct and transcendental.9 Events

moved fast. The Supreme Court then held the Bank

Nationalization law10 and Privy Purses abolition law11

as unconstitutional.

These decisions led to the mid-term poll, and the

fifth parliament passed the 25th Amendment. This

Amendment gave precedence to Articles 39(b) and (c)

over the Fundamental Rights in Articles 14, 19, 31

which was done so to usher in the era of economic

democracy and social welfare. This amendment, except

7 Principles of State Policy: The Lawyers, Approach to them hitherto parochial, Injurious and unconstitutional, 1954 SCJ(J) 1 at 12.8 State of Bombay v. Balsara, AIR 1951 SC 3189 Paras Diwan, Peeyushi Diwan, Human Rights and the Law: Universal and Indian, Page 50810 R.C. Cooper v. UoI, AIR 1970 SC 56911 Madhav Rao Scindia v. UoI, AIR 1971 SC 530

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for the latter patter of Article 31C which claimed

to oust the jurisdiction of the Courts, was held

valid by the Supreme Court in Kesavananda Bharati case.

Kesavananda Bharati Case

In this mammoth judgment, Article 31-C first

half was declared valid by seven justices (Ray,

Palekar, Khanna, Mathew, Beg, Dwivedi and

Chandrachud, JJ.); invalid by five (Sikri, C.J.,

Shelat, Grover, Hegde and Mukherjea, JJ.); and valid

upon severance by Jaganmohan Reddy, J.

Hegde and Mukherjee,12 JJ., observed:

“The Indian Constitution is first and foremost a

social document. The majority of its provisions

are either directly aimed at furthering the goals

of social revolution by establishing the

conditions necessary for its achievement yet

despite the permeation of the entire Constitution

by the aim of national renaissance, the core of

12 AIR 1973 SC 1461

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the commitment to the social revolution lies in

Parts III and IV, in the Fundamental Rights and

the Directive Principles of State Policy. These

are the conscience of the Constitution.”

“There is no antithesis between the Fundamental

Rights and Directive Principles… and one

supplements the other.”

Matthew, J. observed: “in building up a just social

order it is sometimes imperative that the

Fundamental Rights should be subordinated to

Directive Principles.” Holding Article 31C valid,

the learned Judge observed that if Parliament in its

capacity as an amending body, decides to amend the

constitution in such a way as to take away or

abridge Fundamental Rights to give priority value to

the moral claims embodied in Part IV, the court

cannot adjudge the constitutional amendment as bad

for the reason that what was intended to be made

subsidiary by the Constitution-makers has been made

dominant.

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The Fifth Parliament subsequently amended Article 31

to give precedence to all Directive Principles over

Articles 14, 19, 31. But the decision of the

majority in the Minerva Mills case13 which was to the

effect that the 1976 amendment, extending the shield

of Art. 31C to all the Directive Principles in Part

IV was unconstitutional, so that Art 31C is confined

to its pre-1976 position, namely, protecting laws

implementing Art 39(b) and (c) has not yet been

over-ruled by any larger Bench.

I R Coelho case14

In the present case, the Apex Court re-analyzed therelationship between Fundamental Rights andDirective Principles, in the light of previousjudgments of the Court.

Talking about the validity of 25th Constitutionalvalidity and the Kesavananda Bharati case, the Courtheld:

“If the doctrine of basic structure provides atouchstone to test the amending power or its

13 Minerva Mills v. UoI, AIR 1980 sc 1789 at 181014 I. R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861

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exercise, there can be no doubt and it has to beso accepted that Part III of the Constitution hasa key role to play in the application of the saiddoctrine. Regarding the status and stature inrespect of fundamental rights in Constitutionalscheme, it is to be remembered that FundamentalRights are those rights of citizens or thosenegative obligations of the State which do notpermit encroachment on individual liberties. TheState is to deny no one equality before the law.The object of the Fundamental Rights is to fosterthe social revolution by creating a societyegalitarian to the extent that all citizens areto be equally free from coercion or restrictionby the State. By enacting Fundamental Rights andDirective Principles which are negative andpositive obligations of the States, theConstituent Assembly made it the responsibilityof the Government to adopt a middle path betweenindividual liberty and public good. FundamentalRights and Directive Principles have to bebalanced. That balance can be tilted in favour of the publicgood. The balance, however, cannot be overturned by completelyoverriding individual liberty. This balance is an essential feature ofthe Constitution.”15

15 Ibid. ¶ 54

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Economic growth and social equity are the two pillars of ourConstitution which are linked to the rights of an individual (right toequal opportunity), rather than in the abstract.16

This case was decided by a three judge Bench whichheld, in conclusion, that a law that abrogates orabridges rights guaranteed by Part III of theConstitution may violate the basic structuredoctrine or it may not. If former is the consequenceof law, whether by amendment of any Article of PartIII or by an insertion in the Ninth Schedule, suchlaw will have to be invalidated in exercise ofjudicial review power of the Court.

16 Ibid. ¶ 57

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Judicial Review

Article 31C contained the following clause: “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”. These words, constituting second

part of Art 31C, sought to oust the jurisdiction of

the courts to find out whether the law for the

protection of which Art 31C was invoked, really gave

effect to the principles in Art 39(b) or (c). But

this part has been held invalid by the majority of

judges in Kesavananda’s case17, on the ground that

judicial review is the basic feature of the

Constitution of India, which cannot be done away

with by the amendment under Art 368.

While Art 31C continues to remain in the text of the

Constitution as amended by the Constitution (42nd

17 1973 Supp SCR 1

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Amendment) Act 1976, all the cases under it are

being decided as it was before the Amendment.18 The

question whether Art 31C as amended by the 42nd

Amendment and declared invalid in Kesavananda Bharati’s

case19and re-affirmed in Minerva Mills case20 revives the

original Art 31C or Art 31C does not survive any

more in any form has been referred to be heard by a

larger Bench. It was not contended that the doctrine

of revival as it applies to ordinary statutes could

not apply to constitutional amendment.21 Initially it

was heard by a Bench of three Judges which was

subsequently heard by five Judges on reference,

which again was referred to be heard by a Bench of

seven Judges.22 The Bench of seven Judges has

referred the matter to be heard by a Bench of nice

Judges.

Determination of nexus23

18 DD Basu, Constitution Law of India, Vol. 3, Page 3704.19 (1973) 4 SCC 22520 (1986) 4 SCC 22221 Property Owners’ Association v. State of Maharashtra, AIR 2001 SC 166822 Ibid.23 Supra Note 13; State of Tamil Nadu v. Abu Kavur, AIR 1984 SC 326

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In order to decide whether a law gives effect to the

policy of the State towards securing Directive

Principles specified in Art 39(b) and (c), a court

will have to examine the ‘pith and substance’, the

true nature and character of the law as also its

design and the subject-matter dealt by it together

with its object and scope. If a law passed

ostensibly to give effect to the policy of the State

is in truth and substance, one for accomplishing an

unauthorized object, the court would be entitled to

tear the veil created by the declaration and decide

according to the real nature of the law (Per

Matthew, J.). The declaration annexed to law by

itself would not preclude a judicial examination of

the nexus so that the courts can still determine

whether the law passed is really one covered by the

field carved out by Art 31C or merely pretends to be

so protected by parading under cover of the

declaration (Per Beg, J.).

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Criticism for the ouster clause

There is no dearth of precedents to show that such

attempts by the Parliament in the past to oust the

jurisdiction of the courts have failed them. The

Parliament passed Constitution (Fourth Amendment)

Act, 1955. Among other things it provided: '. . . no

such law shall be called in question in any court on

the ground that the compensation provided by that

law is inadequate.' The purpose of this was to make

the issue of adequacy of compensation non-

justiciable. Parliament miserably failed there and

the courts asserted their power of judicial review

in matters of compensation by holding that law

providing for compensation, to justify itself, has

to provide payment of "just equivalent" at or about

the time of acquisition, to the property acquired.24

Same was the experience of the Parliament when it

passed Constitution (Fifteenth Amendment) Act, 1963

24 Vajravelu v. Special Dy. Collector, AIR 1965 SC 1017;Union of India v. Metal Corporation, AIR 1967 SC 637.

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which added a clause to Article 217. The added

clause (3) which was given retrospective effect

provided:

"If any question arises as to the age of a judge of

a High Court the question shall be decided by the

President after consultation with the Chief Justice

of India and the decision of the President shall be

final."

The object of this provision was to give the

President final say in any dispute relating to the

age of a judge and to that the jurisdiction of the

courts was expressly barred. But even here the

Constitution Fifteenth Amendment Act did not succeed

in abolishing judicial review. Justice J.P. Mitter

successfully persuaded the High Court of Calcutta

and the Supreme Court to review the order of the

President of India under Article 217(3) deciding the

question of his age. Justice D.D. Basu of the

Calcutta High Court who heard the petition said "the

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jurisdiction of this Court to interfere — is not

barred by the finality clause under Article 217(3)"25

The same view was taken by the Supreme Court when it

heard the case on certificate granted by the High

Court under Article 132. Hon'ble Shah, C.J. (as he

was then), who delivered the judgment observed:

"Notwithstanding the declared finality of the order

of the President the Court has jurisdiction in

appropriate cases to set aside the order."26

It becomes clear from the above discussion that no

attempt to oust the jurisdiction of the courts even

by amending the Constitution can bar judicial review

so long as Articles 32 and 226 are in the

Constitution. Any provision which ousts the

jurisdiction of the courts shall be construed in a

manner that will not affect the constitutional

jurisdiction of the Supreme Court and High Courts.27

25 1971(1) SCC 404.26 Ibid. P. 411.27 Constitution Twenty-Fifth Amendment Bill vis-a-vis the Power of Judicial Review by I.P. Massey, (1971) 2 SCC (Jour) 37

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Conclusion

The 25th Amendment Act was criticized intensively in

the Kesavananda Bharati judgment, especially the clause

for ouster of jurisdiction. It was seen as a blatant

attempt by the Parliament to encroach upon the

powers of the Judiciary, which are violative of the

Basic Structure doctrine, which was laid down in the

same case.

Upon a bare reading of the case judgment, one might

get the feeling that the Amendment was not

appreciated by the Judiciary. However, it does have

certain salient features. The object of the Bill

further seeks to introduce a new article 31C which

provides that if any law is passed to give effect to

the Directive Principles contained in clauses (b)

and (c) of article 39 and contains a declaration to

that effect, such law shall not be deemed to be void

on the ground that it takes away or abridges any of

the rights contained in article 14, 19 or 31 and

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shall not be questioned on the ground that it does

not give effect to those principles. This object was

given a green signal by the Judiciary, and was much

applauded.

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ReferencesArticles Referred

Constitution Twenty-Fifth Amendment Bill vis-a-vis the Power of

Judicial Review, by I.P. Massey, (1971) 2 SCC (Jour)

37

Principles of State Policy: The Lawyers, Approach to them

hitherto parochial, Injurious and unconstitutional, by Prof.

P.K. Tripathi 1954 SCJ(J) 1 at 12

The Constitutional Quicksands of Kesavananda Bharati and the

Twenty-Fifth Amendment, by Upendra Baxi, (1971) 2

SCC (Jour) 11

Books Referred

D.D.Basu, Shorter Constitution of India. Wadhwa and

Company, Nagpur,13th edn., 2004.

V.N.Shukla and M.P.Singh, Constitution of India,

Eastern Book Company, Lucknow, 11th edn., 2008.

D.D.Basu, Commentary on the Constitution of India,

Wadhwa and Company, Nagpur, vol-1, 8th edn.,

2007.

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Vepa P.Sarathi, Interpretation of Statutes, Easter

Book Company, Lucknow 4th edn. 2003.

D.D.Basu, Comparative Constitutional law, Wadhwa and

Company, Nagpur, 2nd edn., 2008.

M.P.Jain, Indian Constitutional Law, Lexis Nexis

Butterworths Wadhwa, Nagpur,vol-1, 6th edn.,

2010.

H.M. Seervai, Constitutional law of India, 4th edn.,

Tripathy Private Limited, Bombay, 1991.

Cases Referred

Chandra Bhawan Boarding v. State of Mysore, AIR 1970

SC 2042

In re Kerala Education Bill, AIR 1958 SC 956

Kesavananda Bharati v. Union of India, AIR 1973 SC

1461

Madhav Rao Scindia v. UoI, AIR 1971 SC 530

Minerva Mills v. UoI, AIR 1980 SC 1789

Property Owners’ Association v. State of Maharashtra, AIR

2001 SC 1668

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R.C. Cooper v. Union of India, AIR 1970 SC 569

State of Bombay v. Balsara, AIR 1951 SC 318

State of Madras v. Champakam Dorairajan, AIR 1951 SC

226

State of Tamil Nadu v. Abu Kavur, AIR 1984 SC 326

Union of India v. Metal Corporation, AIR 1967 SC 637

Vajravelu v. Special Dy. Collector, AIR 1965 SC 1017

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Constitutionality of 25th Amendment Act

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