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‘Basic Structure of Constitution' from the prism of Article 31A, 31B & 31C in light of pre and post Kesavananda Bharati cases

Samrat Bandopadhyay is Joint Director, Central Government Civil Services Officer, Government of India & presently pursuing LL.B at RGSOIPL, IIT Kharagpur & Abdur Rahman Mallick is Post Graduate Law Student from ILS Pune

Published onMay 11, 2022
‘Basic Structure of Constitution' from the prism of Article 31A, 31B & 31C in light of pre and post Kesavananda Bharati cases


‘Constitutionalism is the idea’ which necessitates that Government can/should be limited in its powers and the Government’s authority depends on its observing these limitations. The Constitution helps establish a stable framework for the exercise of public power, whereby Constitutionalism is a living entity. It grows and develops in tandem with changing political values and principles of the times. It helps give recognition to the governmental power. ‘Constitution Law’ is a species of generic term ‘Constitution’ which is used to demote part of the organic instrument which is directly enforceable in a Court of law. The ‘Constitution of India is an organic living document’, which has changed with the passage of time and which is a dynamic document which has changed with enshrines the ‘Basic structure of the Constitution’. As the basic feature remain unalterable, the interpretation of the flexible provisions of the Constitution is accompanied by dynamism which has to interpreted in a manner that the three organs Legislative, Executive and Judiciary work in harmonious manner. They are not ‘water tight in the strict sense’ but their functioning overlap each other.

Keywords: Basic Structure of Constitution; Constitutionalism; Rule of Law; Federalism; Eminent Domain; Separation of power; Independence of Judiciary; Written Constitution; Free Election.


The constitutional validity of Article 31A, 31B, and 31C of the Indian Constitution is at the ‘core of Basic Structure of Constitution’ and is analyzed pre and post-Kesavananda Bharati case.1 The varied facets of ‘Basic Structure of Constitution’ have been a moot point of deliberation as seen from the prism of Constitutional validity which is in conformance to the broader ambit, ideals, and touchstone of the Constitution of India. The interpretations of these Articles in view of “Eminent Domain” and the purported dichotomy resulting in the bone of contention between the legislature and the judiciary have been the subject matter of debate for decades. The seminal aspect of ‘Basic Structure of Constitution’ cannot be discounted and hold a ground of supremacy and is the heart of the essence of Constitutionalism.

In an overview, it could be said that Constitution particularly the ‘Basic Structure of the Constitution, helps define the domain of the political community, the nature and authority of the political community, and the rights and duties of citizens, clearly laying out the shared power between different layers of government or sub-state communities, guiding and giving the broader contours of states to particular social, economic or developmental goals. However, it tells us that such power should not be used in such a way so that one can draw the conclusion that a government has become despotic and authoritarian in nature.

Facets of ‘Basic Structure of the Constitution’

It involves a host of vital aspects which has to be seen constructively and harmoniously in a synergistic manner:

  •  A written Constitution

  •  Independent judiciary with the power of judicial review

  •  Rule of law

  •  Separation of power

  •  Free election

  •  Fundamental rights of the people

  •  Federalism

Article 31 embodies ‘Saving of certain laws’

Article 31 has to be seen from the perspective of ‘Compulsory acquisition of private property for a public purpose’, which is the concept of “Eminent Domain”. The ‘Right to Property’, has to be interpreted as the ‘Right to acquire, hold and dispose of property’. It is pertinent to that cognizance of the fact that, the Constitution (44th Amendment) Act, 1978 omitted Article 19(1)(f). With the effect that Chapter IV has been inserted in Part XII of the Constitution and the provision in Article 31 has been transferred there as Article 300A, which is ‘no person shall be deprived of his property save by authority of law’.

Article 31A of the Constitution of India was originally enacted by way of exception to the right to property (that is, Article 31), Article 14 and Article 19(1)(g). This Article has been inserted by the 1st Amendment to the Constitution of India made way back in 1951. The object was to protect and validate the laws extinguishing the Zamindari and similar rights (notwithstanding anything contained in Article 13). Further, the background merited to look at Article 31A, 31 B and 31C from the perspective of state acquisition and land reforms in the context of the Zamindari and Ryotwari system prevalent in India at that time after independence. It was further amended to enlarge the scope of the exception and to take away the agrarian reforms and other legislation from the purview of the courts.

Article 31B pertains to ‘Validation of Certain Acts’ in context of 9th schedule

The 9th schedule was inserted by the 1st Amendment, 1951 and it consisted at that time, of 13 entries in that schedule. The number of entries since then has increased by successive amendments (4th, 17th, 39th, 42nd, 44th, 47th, 66th, 75th, and 78th amendments), resulting in a total of 282 entries. The Acts specified in 9th schedule have been added to provide the protection. It is important and pertinent to understand that anything added prior to Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.2 judgment, that is 24.4.1973 are having complete protection and even that protection extended to interpretation in judicial rulings and pronouncements. In this context comes the ‘Doctrine of Prospective Overruling’, that is a decision made in a particular case would have operation only in the future and would not connote any retrospective effect on any past decisions.

The Acts added subsequent to the date of the decision of Kesavananda Bharati case, are open to challenge on the ground of being opposed to the basic structure and to the mandate of Equality and Fundamental Rights as interpreted in the case, Waman Rao v Union of India.3

The protection provided in the perspective of Article 31B covers those acts as they stood on the date it was included in the 9th Schedule. It would include all amendments made in the Cat till that date. As such, subsequent amendments would have no claim to immunity. They must be in conformity as the touchstone is the Fundamental Rights and other Constitutional provisions as seen in Raman Lal v State of Gujarat.4 The main objective of insertion of Article 31B and the 9th Schedule of the Constitution of India was primarily for the promotion of agrarian reforms and other similar welfare measures. The Constitution (76th Amendment) Act,1994 seeks to provide protection to a Tamil Nadu ct which reserves 69 percent seats for backward classes in educational institutions and for appointments in the State machinery. This is to avert the 50 percent capping brought forward by Indra Sawhney & Ors vs Union Of India & Ors5 is another dimension of the protection provided in the ambit of 9th schedule entry.

Article 31C pertains Saving of Laws giving effect to Directive Principles

Article 31C was introduced by the 25th Amendment with effect from 20.4.1972. The objective was to take away the jurisdiction of the courts to determine the adequacy of compensation on acquisition of property and to add a new Article 31C, which specified that, “No law which enlisted to give effect to the principles specified in clause (b) and (c) of Article 39 would be called in question on the ground that it is inconsistent with the Fundamental Rights...”

In the Kesavananda Bharati case, the emphasis was primacy provided to the ‘Basic feature of the Constitution and the judicial review. After the Kesavananda Bharati case, the court continued to have the power of judicial review in relation to any Act covered by Article 31C. The 42nd Amendment Act, 1976, vide section 4 sought to extend the protection of Article 31C to all those Acts which were meant to implement any of the Directive Principles of State Policy. The effect of such an endeavor was far-fetched and far-reaching and practically provided seemingly primacy of the Directive Principles of State Policy vis-a-vis the Fundamental Rights of the Constitution of India.

In Minerva Mills v. Union of India6, the observation of the Hon’ble Supreme Court of India as it held that Section 4, was unconstitutional and consequentially void. It observed with clarity that, the Act destroyed the basic feature of the Constitution by excluding from the challenge all such laws which give effect to a Directive Principle. There has to be harmonious construction between the Directive Principles of State Policy and the Fundamental Rights. To provide primacy to one over the other is to disturb the intrinsic harmony between the two.

It is vital to understand that Hon'ble Justice Bhagawati while delivering the judgment of Waman Rao v Union of India7 case and Minerva Mills Ltd. and Ors. v. Union of India and Ors8, it has observed that "all constitutional amendments made after the decision in Keshavananda Bharti's case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending powers..."

The creation of the Constitution is a definite process and here the rationale and the mind of the framers of the Constitution play a pivotal role to understand the basic structure which has been spelled with clarity. The provisions in the Constitution are vivid and provide clarity. One end of the continuum is ‘Parliament enacting of statutes and its implementation by Executives’ is a process of understanding the basis and the requirement of law. The other end pertains to rationality and challenging the basis from the ‘Judicial perspective’. In this context, the basic feature of Judicial Review plays a pivotal and quintessential role. This has multiple dimensions, inter alia, Constitution, Rule of Law, Socialism, Secularism, Welfare State, such as Federalism is also connected and has to be seen in unison and in totality for harmonious construction and framework of Issue Identification:

  • Humanitarian Ground- examples of Human Rights

  • The socio-economic ground of welfare of the society

  • States’ role in Governance for just, fairness, and equity of citizens

  • Inalienable rights of any human being, for example to Right to Air, water and shelter

  • India’s ratification in International Conventions and Regulatory Framework such as UNFCCC (United Nations Framework Convention on Climate Change), UNHCR (United Nations High Commissioner for Refugees), and UNHRC (United Nations Human Rights Council) among others.

  • Obligatory duty on the part of the nation to comply with International Laws, though it may be only suggestive and not compulsory, issue of Climate Refugee as a result of Internally and international displaced persons because of Calamity. Is there any scope for taking the matter to the International Court of Justice?

  • Another dimension could be how and what rationale is being put forth for the State to justify its action for the maintenance of law, public order, peace and tranquillity, and good governance.

  • A Strong Centre to control and assert its position in cases of territorial disputes in cases of conflict.

  • The determining factors of social structure and fabric of the society and its bearing on cases based on rationality, over and under inclusiveness and connected with Manifestation tests, Arbitrary Test (read along with provisions of the Constitution).

Constituent Assembly member Shri Alladi Krishnaswami Ayyar said in the debate on the citizenship provisions of the Constitution in the Constituent Assembly, “We may make a distinction between people who have voluntarily and deliberately chosen another country as their home and those who want to retain their connection with this country, But we cannot on any racial or religious or other grounds make a distinction between one kind of persons and another, or one sect of persons and another sect of persons...”.


The preamble to a written Constitution tells what it seeks to establish and promote. It provides clarity at the time of ambiguity in the legal interpretation of the organic document that is the Constitution. As can be seen from the Kesavananda Bharati case, after deliberation by 13 judges Constitution bench of Hon'ble Supreme Court of India, which outlines the very important “Basic structure of Constitution” doctrine, as it set to tell that though Parliament has 'wide' powers, nonetheless it is limited and does not have the power to affect the 'Basic Structure', meaning the basic elements or fundamental features of the Constitution.

There is another dimension of ‘Basic Structure of Constitution’ as seen in the seminal case, S.R. Bommai v. Union of India9, it was seen that Hon’ble Supreme Court of India deliberated at length about the provisos of the Constitution, including Article 368, mentioned about President's rule to be imposed over state governments and about how Preamble is an integral component of the Constitution and the very democratic form of government as well as the federal structure. In Samatha v. State of Andhra Pradesh10 AIR 1997 SC 3297, the Apex Court, Hon'ble Supreme Court of India mentioned about “Establishment of the egalitarian social order through rule of law is the basic structure of the Constitution...” Poverty and landlessness are a few dimensions that call into question whether ‘Socialism’ means ‘distributive justice’, another facet of ‘Basic Structure of Constitution’?

To conclude, as Chairman of the Constituent Drafting committee, independent India's first Minister of Law and Justice, Dr. BR Ambedkar rightly sums it up as he is Quoted as-

“The principles of liberty, equality, and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without the liberty would kill individual initiative...”

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