NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY

LL.B. IVTH YEAR

CONSTITUTIONAL LAW-1, CODE 4.2
JANUARY 2017
DR.TOPI BASAR1

COURSE CONTENTS

MODULE ONE: PREAMBLE AND PHILOSOPHY OF THE INDIAN CONSTITUTION

Values that inspired and guided the freedom struggle formed the foundation for Indias
democracy. These values are embedded in the Preamble of the Indian Constitution. The core
philosophy underlying the basic foundation of Indias Constitution. How did it influence the
making of Indias Constitution and its future course?
1. Objectives in the Preamble.
2. Is Preamble part of the Constitution?
3. Meaning of Secularism, Socialist, Sovereign, Republic.
Cases: Berubari Union case (1960), Keshavananda Bharti v. State of Kerela (1973), Indira Nehru
Gandhi v. Raj Narain (1975), Minerva Mills Ltd. V. Union of India (1980), ADM, Jabalpur v.
Shivakant Shukla, S.R. Bommai v. Union of India (1994).
MODULE TWO: FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF
STATE POLICY
Part III and Part IV taken together can be safely described as containing the philosophy of the
Constitution. In the words of Justice Bhagwati, It is not possible to fit Fundamental Rights and
Directive Principles in two distinct and strictly defined categories, but it may be stated broadly
that Fundamental Rights represent civil and political rights while Directive Principles embody
social and economic rights. Both are clearly part of the board spectrum of human rights.
MODULE THREE: PARLIAMENTARY FORM OF GOVERNMENT AND RELATION
BETWEEN THE PARLIAMENT AND THE JUDICIARY
The Parliamentary or the Cabinet system originated in England. This form of government exists
in countries like Britain, India and Canada. This Parliamentary form of government is also called
Responsible government. The power of parliament to amend the Constitution has been a rich

1
The given course material is prepared by the above named author for NLUJAA but the author claims her copy
right on the same.
area of case law in the Constitutional history of India. Is the power of parliament unlimited?
What are the extent and scope of the power of Parliament to amend the Constitution?
MODULE FOUR: CONSTITUTIONAL POSITION OF THE PRESIDENT AND
GOVERNOR
The Executive power of the Union and the State is vested in the President and the Governor.
Both are called the head of the State. The Council of Ministers will aid and advise the President
and the Governor. Exercise of power under Article 356 has been the hotbed of controversy in the
Constitutional history. The delicate balance of Centre-State relation rests squarely on the just,
fair and impartial role falling within the constitutional boundary of executive power and
authority.

CHAPTER 1: PHILOSOPHY OF THE INDIAN CONSTITUTION

INTRODUCTION
In December 1946 a Constituent Assembly which derived from the people.all power and
authority was convened. It prospered and ultimately provided Indians with an Indian-made
Constitution. And its indigenous nature has been the major reason for the Constitutions success.
Indians have been less likely to fault the Constitution and more likely to view it with pride, both
because they did themselves create it and because, having written it themselves, it was better
suited to their needs. K.C. Wheare has named the principle of constitutional autochthony, or the
desire for a constitution sprung from the land itself.2 The Constitution was to foster the
achievement of many goals. Eternal among them was that of social revolution.The Constituent
Assembly was able to draft a constitution that was both a declaration of social intent and
blueprint for Indias future.
Rejecting adult suffrage as too cumbersome and slow, the Cabinet Mission Plan provided that
the provincial legislatures elect the Assembly. The provinces were to be represented in the
Assembly in the approximate ratio of one to one million of their population. The members of
three communal categories in the legislatures, Muslim, Sikh, and General (Hindus and all other
communities), would elect separately, according to their percentage of the provinces population.
The princely States, according to the Mission Plan, were to have ninety-three representatives in
the Assembly, but the method of selecting them was left to consultation between the Assembly
and the States rulers.3The Cabinet Mission had failed. It failed because the Congress and the
Muslim League under Jinnah had almost certainly become too estranged for reconciliation.
When the Assembly began its three-year task on 9 December, the representatives of nearly 100
million Indian Muslims were absent. All the other communities of India were there. The Indian
Independence Act passed by the British Parliament came into effect on 15 August 1947, giving
legally to the Constituent Assembly the status it had assumed since its inception and the
Constituent Assembly settled down to draft free Indias constitution.

2
Granville Austin, the Indian Constitution cornerstone of a Nation, Oxford University Press, 1966.
3
Ibid.
 Granville Austin, the most celebrated author of the Indian Constitution cornerstone of a
Nation said that Indias founding fathers and mothers established in the Constitution both the
nations ideals and the institutions and processes for achieving them. He profusely praised the
framers for successfully articulating the nations goals and in designing the necessary governing
structures. According to Austin, the Constitution has served the nation remarkably well. Has the
Constitution withstood the test of time? In other words have we achieved all those ideals and
objectives set out in the Constitution? As Chief Justice John Marshal said, a Constitution is
framed for ages to come, but its course cannot always be tranquil. Indias struggle for
independence and main essence of a free Nation and freedom of person left a permanent mark on
the words and letters of the Constitution. The preamble to the Constitution of India embodies the
spiritual and philosophical foundation of our society to be achieved by every generation with
some new insights to it. The means to achieve those ideals may undergo change but the ideals
remain static. For instance, during the period from 1946 to 1950 creating a united India to pursue
national development was the governments and the framers highest priority. It holds true even
today.
It is important to understand the political philosophy behind the Constitution. By political
philosophy we mean the conceptual structure of the constitution. It helps us to understand the
meanings of terms like 'rights', 'citizenship', or democracy. It explains the values on which our
constitution is build. It would also mean that Indian Constitution must be read along
with Constituent Assembly debates so that we can know what were the reasons for enacting all
those provisions? Therefore, political philosophy not only helps in finding the moral value of the
law but also it helps to arbitrate between varying interpretations of the values in our polity. This
means that political philosophy helps in giving various interpretations of the Constitution.

1. Sovereign Socialist Secular Democratic Republic

The Constituent Assembly in the Objectives Resolution and the debate on it established that the
Constitution must be dedicated to some form of socialism and to the social regeneration of India.
The ideals of socialism, secularism and democracy are elaborated by the enacting provisions of
the Constitution. The word sovereign means that the State has power to legislate on any
subject in conformity with constitutional limitations. Being a sovereign State, India is free from
any type of external control. It can acquire foreign territory and, if necessary, cede a part of the
territory in favour of a foreign State, subject to certain constitutional requirements.4The word
socialist, read with Articles 14 and 16, enabled the Court to deduce a fundamental right to
equal pay for equal work. The Court has invoked Preamble on many occasion to determine the
ambit of Fundamental Rights and Directive Principles of State policy. In Keshavananda Bharti
case, the Supreme Court said that Preamble is part of the Constitution and the objectives
specified in the Preamble contain the basic structure of the Constitution.

4
Maganbhai Ishwarbhai Patel v. Union of India.
The word secularism was added by the 42nd Amendment of the Constitution of India enacted
in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, neither
India's constitution nor its laws define the relationship between religion and state. The laws
implicitly require the state and its institutions to recognize and accept all religions, enforce
parliamentary laws instead of religious laws, and respect pluralism. India does not have an
official state religion. Secularism (whatever it may mean) is a basic feature of the Constitution.5
Cultural tolerance and protection of minorities are fundamental to unity in diversity-one of the
core philosophy of India. The past experience of partition of India had its own indelible impact
on the future of Indias Constitution. The Constitution had to ensure guaranteed religious
freedom and protection of cultural and linguistic minorities.
A republic (from Latin: res publica) is a sovereign state, country, or government which is
organized with a form of government in which power resides in elected individuals representing
the citizen body and government leaders exercise power according to the rule of law. In modern
times, the definition of a republic commonly refers to a government which excludes a monarch.
The Preamble describes India as a democratic state. The prime philosophy and ideal of the Indian
Constitution is to make India a democratic state. India is regarded as the largest democratic state
in the World. According to Abraham Lincoln, Democracy is by the people, for the people and
of the people. The Constitution of India has established a parliamentary democracy in India
marked by universal adult franchise, periodic election to choose the government, majority rule,
rule of law, decentralization of power, rule of law, independence of the judiciary, etc.
2. Social, economic and political justice
Justice P.B. Gajendragadkar, By social justice we mean ending all kinds of social inequalities
and then to provide equal opportunities to everyone. Both part III and part IV of the
Constitution embodies the concept of distributive justice. Social Justice is taken to mean that all
the people in a society are to be equal and there is be no discrimination on the basis of religion,
caste, creed, colour, sex or status. In the Indian Constitution several provisions have been
provided with a view to secure social economic and political justice. Untouchability has been
constitutionally abolished. Every citizen has been granted an equal right of access to any public
place, place of worship and use of places of entertainment. Absence of privileged classes in
society is an essential attribute of social justice. Social, economic and political empowerment of
the backward classes of the citizens of India is concomitant part of social justice. As long as
society is thronged by underprivileged sections due to poverty and general backwardness, the
pursuit of social justice will be a continuous challenge for the country. Equality in all respects is
what an ideal society aspire for seemingly impossible though.
Economic Justice means no discrimination between man and man on the basis of income, wealth
and economic status. It stands for equitable distribution of wealth, economic equality, end of
monopolistic control over means of production and distribution, decentralization of economic
resources, and securing of adequate opportunities to all for earning their livelihoods.

5
S.R. Bommai v. Union of India.
Political Justice means equal, free and fair opportunities to the people for participation in the
political process. It stands for the grant of equal political rights to all the people without any
discrimination. The Constitution of India provides for a liberal democracy in which all the
people have the right and freedom to participate.
3. Liberty, Equality and Fraternity

The Constitution assures every citizen of India the freedom of speech and expression,
religious independence and choice of going by one's own belief, Equality - which
connotes equal opportunity and status for one and Fraternity - which works towards
keeping the integrity and strength of the country intact along with special stress on
individual dignity.

They are the cherished goals and objectives of the Indian Constitution. The framers gave equal
impetus to individual freedom, right to life and human dignity, freedom of expression, principle
of equal rights and protection of laws as a befitting tribute to the people of India who gave to
themselves their first Constitution on her independence. The basic ethos and principle of the
Constitution still remains a cherished goal for the people of this great country even today after 70
years of working of the Constitution. The social and political realities of India have undergone a
sea change from early decades of Constitution and the present time which is an inevitable
process. The framers intended to lay down the philosophical values to guide present as well as
future India through the elaborately designed Constitution. The philosophical content to work the
Constitution in much more effective way to deal with the vagaries of society gets enriched as per
new changes. The Constitution in that sense is static yet dynamic, rigid as well as flexible as per
new outlook and social matrix. However, the core philosophical values contained in the
Preamble, Fundamental Rights and Directive Principles are integral part often declared as the
basic structure of the Constitution which makes a Country a Nation like India. A Nation
essentially is a political creation of the Constitution. What makes a dictatorship different from a
democracy is the power of Constitution derived from the people and its philosophical values and
idealism.

CHAPTER 2 FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE

POLICY

The Indian constitution is basically a social document. The majority of its provisions are meant
for achieving social revolution by creating the conditions necessary for its achievement. The aim
is to bring a national renascence, the core of the commitment to the social revolution lies in parts
III and IV, in the Fundamental Rights and in the Directive Principles of State Policy. According
to Austin, these are the conscience of the Constitution. The Rights and Principles is a connecting
bridge between Indias future, present, and past, and essence to the pursuit of the social
revolution in India.
1. ORIGIN AND DEVELOPMENT
The Indian desire for civil rights had its inception in the nineteenth century. It was implicit in the
formation of the Indian National Congress in 1885. Indians wanted the same rights and
privileges enjoyed in India by their British masters. Perhaps the first explicit demand for
fundamental rights appeared in the Constitution of India Bill, 1895. Thereafter a series of
Congress resolutions adopted between 1917 and 1919 repeated the demand for civil rights and
equality of status with the Englishmen. The Fundamental Rights of the Nehru Report were
reminiscent of those of the American and post-war European constitutions, and were in several
cases taken word for word from the rights listed in the Common wealth of India Bill of Mrs.
Annie Besant.
The Fundamental Rights became well-known since the drafting of the Bill of Rights of the
American Constitution. It consist of both positive rights for citizens and negative obligations of
the State not to encroach on individual liberty. It protects individual and minority groups from
arbitrary, prejudicial, state action and also to protect the individual against the action of other
private citizens. The Directive Principles contain basic principles for the guidance of the State.
By nature they are not justiciable as the court cannot enforce them, but they are to be,
nevertheless, fundamental in the governance of the country. At the core of the Directive
Principle lie Article 38 stating: the State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice, social, economic,
and political, shall inform all the institutions of the national life. It was also hoped that within ten
years of the adoption of the constitution there will be compulsory primary education for children
up to the age of fourteen years.
2. ARTICLE 12 AND ITS SIGNIFICANCE

According to Article 12 of the Constitution of India, the term State can be used to denote the
union and state governments, the Parliament and state legislatures and all local or other
authorities within the territory of India or under the control of the Indian government.

Over the period of time, the Supreme Court has expanded the ambit of State to include
Corporation such as LIC and ONGC since they perform tasks very close to governmental or
sovereign functions. In fact, the term State also accommodates any authority thats created by
the Constitution of India and has the power to make laws. It need not perform governmental or
sovereign functions. In Ajay Hasia case, Justice Bhagwati enunciated the following test for
determining whether an entity is an instrumentality or agency of the State6:-

1) Whether the entire share capital of the corporation is held by Government, it would go a
long way to towards indicating that the corporation is an instrumentality or agency or
Government.

6
Ajay Hasia v. Khalid Mujib.
 2) Where the financial assistance of the State is so much as to meet almost entire
expenditure of the corporation, it would afford some indication of the corporation being
impregnated with governmental character.
3) It may also be a relevant factor whether the corporation enjoys monopoly status which is
the State conferred or State protected.
4) Existence of deep and pervasive State control may afford an indication that the
corporation is a State agency or instrumentality.
5) If the functions of the corporation of public importance and closely related to
governmental functions, it would be a relevant factor in terming the corporation as a
instrumentality or agency of Government.
6) Particularly, if a department of Government is transferred to a corporation, it would be a
strong factor supportive of this inference of the corporation being an instrumentality or
agency of Government.

For eg, BCCI is not financially, functionally or administratively dominated by Government nor it
is under control of Government, therefore not a State.7 It may be mentioned here that BCCI is a
registered society. In the early decades of the Constitution, the Courts gave an expansive
interpretation to Article 12 to widen the ambit and scope of fundamental rights. However, it will
be interesting to see how the Courts apply Article 12 in the current era of rampant privatization.
As Indias economic policies have undergone sea change from the socialistic era of the
Nehruvian model.

It will not be wrong to say that Article 12 is the backbone of Fundamental Rights and Directive
Principles. It is Article 12 which renders Fundamental Rights a justiciable matter against the
State and its instrumentalities.

3. FUNDAMENTAL RIGHTS AND JUDICIAL REVIEW (ARTICLE 13)

Article 13 makes all laws in force in the country immediately before the commencement of the
constitution void so far they are inconsistent with the provisions of the part III. This means that if
there was a law in action before the commencement of the constitution which in any ways did
not conform to the fundamental rights, the law would stand void. Then, the same Article makes
clear that in future, the State shall not make any law which takes away the Fundamental Rights
given by Part III. The law here does not only include the legislation but also an ordinance, order,
bye-law, rule, regulation, notification or custom. This means that Parliament cannot make any
law which takes away the fundamental rights of the individuals. This also means that Article 13
provides for the judicial review of all legislations in India, past as well as future. All laws
whether made by a legislature or by a delegated authority and all executive acts must respect and
conform to the fundamental rights. The Ordinances promulgated by the President under Art.123
or by the Governor under Art. 213 must not be inconsistent with the fundamental rights. Art. 13
imposes an obligation on the State to respect and implement the fundamental rights and at the
same time confers a power on the courts (Supreme and High courts via 32 and 226 respectively)
to declare a law/Act void if it infringes a fundamental right. Art.13, thus, provides teeth to the
fundamental rights and makes them justiciable in the court of law. Some of the landmark cases
on Art.13 are:
7
Zee Telefilms Ltd. V. Union of India.
Shankari Prasad Singh Deo v. Union of India- The Supreme Court held that the word law in
Article 13 (2) would only mean Parliamentary legislation or ordinary law and not constitutional
amendments. Thus, any or all fundamental rights could be taken away by a constitutional
amendment made in exercise of the constituent power and Art. 13 (2) would not apply. From
1951 to 1965, the power of Parliament to amend any part of the Constitution was unlimited.

Sajjan Singh v. State of Rajasthan- By 3:2, the majority held that parliament could amend
fundamental rights and did not go into the question of any limitation on the amending power.
Chief Justice Gajendragadkar in a terse and conservative judgment, adopted the principle of strict
construction and observed that there was no need to reconsider Shankari Prasads case. The word
law in Article 13 would exclude amendments made in exercise of constituent power. Justice
Hidayatullah and Justice Mudholkar (Minority judges) cautioned the danger of giving
uncontrolled power to parliament to amend the Constitution. Seventeen years after the
Constitution came in to force, the misuse of the Ninth Schedule gradually came to light.

I.C. Golak Nath v. State of Punjab-(Bench of eleven judges)-

Punjab Security of Land Tenures Act, 1953 and Mysore Land Reforms Act, 1961 were
challenged as these were included in the Ninth Schedule to the Constitution by the Seventeenth
Amendment Act, 1964.The Ninth Schedule made these laws immune from attack on the ground
of violating Article 14, 19 or 31.Also challenged Constitution First and fourth Amendment.
Distinction between ordinary law and Constitutional amendment was made in relation to Art.13
(2).The Consequence of the majority judgment was that Parliament became completely
powerless to amend or alter any of the FRs contained in Articles 14 to 32 of the Constitution; it
was a shift from total freedom to a total embargo and this was difficult for parliament to accept.
Although the Constitutional amendments first, fourth and seventeenth were upheld in
Golaknath, but doctrine of prospective overruling , as applied, meant that laws taking away FRs
could not be made in future. Hence, Sankari Prasad and Sajjan Singh was overruled but not
retrospectively as it would have nullified all those land reform laws already implemented. The
majority verdict by the Chief Justice Subba Rao held that the amending power would not enable
Parliament to override all express or implied limitations on that power and that Parliament could
not amend Part III of the Constitution. This verdict set the SC on a direct collision course with
Parliament and the ruling Congress Party led by Mrs. Indira Gandhi.

Kesavananda Bharati v. State of Kerela (Bench of thirteen judges) the saving of Indias
Constitution, doctrine of basic structure

This was the largest Bench that had heard the lengthiest arguments and covered the widest area
of case law and legal literature in the history of the Supreme Court. The judgment profoundly
altered the future of the Indian Republic. If there is one case that Palkhivala will always be
remembered for, it is this, more popularly known as the Fundamental Rights case. 8The moot
question before the court was did Parliament have unlimited power to amend the Constitution or

8
Soli J Sorabjee and Arvind P Datar, Nani Palkhivala the courtroom genius, Lexis Nexis Butterworths,2012.
was there any implied or inherent limitation on such amending power? 9Every major
constitutional decision has a political or social background behind it.

Pre-kesavananda developments were-

1. Abolition of privy purses by Mrs. Gandhi and losing the case10 in the Supreme Court
followed by Indira Gandhis landslide victory in the 1971 election enabled her to amend
the Constitution that abolished the Privy Purses and extinguished all rights and privileges
of the rulers by the Twenty-sixth Amendment Act 1971.
2. Three important judgments Golak Nath, Bank Nationalization and Privy Purses had gone
against Mrs. Gandhi.
3. Twenty-fourth (intended to supersede Golak Nath) and Twenty-fifth Constitutional
amendment was passed amending Arts. 13 & 368. 25th AA amended Art. 31 and inserted
Article 31 C.11
4. Twenty-ninth Amendment Act, 1972 inserted Kerela Land Reforms Act 1963 in the
Ninth Schedule.

Kesavananda judgment-in nutshell

Palhivala argued for the petitioner and H.M Seervai was the main counsel for Union of India and
Kerala.The main issues that arose for consideration were:-

(i) Was Golak Nath correctly decided or was it liable to be overruled?

(ii) Was the Twenty-fourth Amendment, which gave unlimited powers to Parliament to
add, vary or repeal any provision of the Constitution valid?
(iii) Was Section 2 of the Twenty-fifth Amendment that substituted the word amount for
the word compensation in Art. 31 valid?
(iv) Was Section 3 of the Twenty-fifth Amendment which inserted Article 31 C valid?
(v) Was the Twenty-Ninth Amendment, which inserted two Kerala Land Reform
Amendments in the Ninth Schedule valid?
By a wafer-thin majority of 7:6, in fact, the majority is not really 7:6. If the decision
of Justice Khanna is vivisected carefully, one would find that the verdict is really 6.6:
6.4!12

Held,

9
H.M. Seervai was one of the staunchest supporters of the unlimited power of Parliament to amend the
Constitution.But later admitted honestly, if doctrine of basic structure was not laid down India would have been in
danger of being converted into a police State as the experience f the emergency clearly showed.
10
Madhav Rao Scindia v. Union of India.
11
Article 31C had the ostensible object of protecting laws for implementing the Directive Principles specified in
Article 39 (b) and (c). It also excluded judicial review.
12
Supra note 8.
 i) Nine of the thirteen judges expressly overruled Golak Nath and made a clear
distinction between an ordinary law and the Constitution. The distinction between the
two was based on the criterion of validity. This was based on the premise that while
an ordinary law depended on a higher law for establishing its own validity, a
provision of the Constitution did not depend on another law and, instead, generated
its own validity.
ii) Chief Justice Sikri and Justices Shelat, Grover, Hegde, Reddy and Mukherjea, were
of the view fundamental rights, being part of the essential elements or basic features
of the Constitution, could not be abrogated or emasculated by the exercise of the
power of amendment under Article 368.
iii) Justices Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, held that the power
of amendment did not have any limitation or restriction.13
iv) Regarding Art. 31 (2), all the judges upheld the substitution of the word amount for
the word compensation and held that the amount and the principles on which such
amount was arrived at would still be subject to judicial scrutiny.
v) Seven out of thirteen judges held that the latter part of Art. 31C which made the
fundamental rights subservient to the directive principles was invalid as it would
destroy the basic structure of the Constitution.

Basic structure doctrine

The most important outcome of this judgement is the basic structure theory. This
theory or doctrine arrived at a workable compromise between two diametrically
opposite views represented by the pre and post Golak Nath phases. The basic
structure theory restores the power of Parliament to amend any part of the
Constitution. At the same time, Paliaments power is not unlimited and no
amendment can violate the fundamental or essential features or, as they are now
famously called, the basic structure of the Constitution. There is no such phrase in the
Constitution and no part of the Constitution can be said to constitute the basic
structure. Its lack of rigidity is itself its most important virtue. 14 But, there was no
unanimity on what constituted the basic structure of the Constitution.

Criticisms

In his autobiography, Justice Jagamohan Reddy recollects: I got the impression

[from the first day] that minds were closed and views were determined. It is said the
Government was in possession of some of the draft judgments even before they were
delivered on April 24, 1973 and had consequently decided to appoint Justice Ray as
the Chief Justice by superseding three senior judges.Prof Tripathi criticized the
concession made by H.M.Seervai and Niren De that the power of amendment under
Art.368 did not extend to the repeal or abrogation of the whole Constitution.

13
Justice Khanna tilted the balance in favour of the majority. He was supportive of the view that power of
amendment did not have any limitation or restriction. But wrt Article 31 C he said the basic structure or framework
of the Constitution could not be abrogated.
14
Supra note 8.
It was in a sense, a judicial compromise as the power of Parliament to amend the
Constitution o a very large extent was restored. The only limitation was it could not
alter the basic structure or essential features. While conceding this power to
Parliament, the Supreme Court reserved to itself the power of judicial review and thus
ensured a system of checks and balances amongst the three wings of Government.
This doctrine was used later on to struck down several constitutional amendments
passed during Indira Gandhis regime notably Art.39th and 42nd Amendment. The
subsequent events have shown the necessity of the basic structure doctrine and it has
been the bulwark against repeated attempts of politicians to subvert the Constitution.
It is now accepted by everyone in India that Parliament should not be given unlimited
power to amend the Constitution.

Relationship between Fundamental Rights and Directive Principles

Throughout the freedom struggle, the demand for Fundamental Rights was in
forefront. The country was unanimous that we should include all human, political,
civil, economic, cultural and social rights. The Fundamental Rights envisaged by the
Indian National Congress were ultimately divided into two; Political and Civil Rights;
and Social and Economic Rights. The former are termed Fundamental Rights and the
latter are called Directive Principles of State Policy. This division was adopted from
Irish Constitution. The Universal Declaration of Human Rights and parts III and IV of
the Constitution of India have much in common. Article 32 and 226 provide for the
enforcement of Fundamental Rights by Courts. However, Article 37 says that the
provisions contained in Part IV shall not be enforceable by any court but the
principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making laws.

The relation between Fundamental Rights and Directive Principles changed from time
to time in the light of judicial interpretation which can be categorised in the following
ways:
1) Fundamental Rights are superior to Directive Principles.
2) The nature and scope of Fundamental Rights can be determined by Directive
Principles as reasonable restrictions.
3) Directive Principles are superior to Fundamental Rights.
4) Principles of Harmonious construction.

The State of Madras vs Champakam Dorairajan

This conflict between Fundamental Rights and DPSP came to the Supreme Court for
the first time in Champakam Dorairajan Case (1952). Smt Champakam Dorairajan
was a woman from the State of Madras. In 1951, she was not admitted to a medical
college because of a Communal G.O. (Government Order) which had provided caste
based reservation in government jobs and college seats. This GO was passed in 1927
in the Madras Presidency. Champakam Dorairajan Case was a first major verdict of
the Supreme Court on the issue of Reservation. Champakam Dorairajan Case led to
the First amendment of Indian Constitution. This was the case, which when was in
Supreme Court; the Lok Sabha was not formed. Lok Sabha was formed in 1952. The
conflict was between article 16(2) from the chapter of Fundamental Rights and
Article 46 of the Constitution. Article 16(2) says that: No citizen shall, on grounds
only of religion, race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any employment or office under
the State. And article 46 says: The State shall promote with special care the
educational and economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation. The Supreme Court held that
Article 37 expressly says that the directive principles are not enforceable by court.
Supreme Court mandated that the chapter on Fundamental rights in the constitution is
sacrosanct and the directive principles have to conform to and run subsidiary to the
chapter on Fundamental Rights.

Right to property, Fundamental Rights, Directive Principles and Ninth Schedule

The Constitution (Forty-Fourth Amendment) Act, 1978, signifies the demise of the
fundamental Right to Property. Before 1978, there were mainly two articles to protect
private property, Arts. 19(1) (f) and 31, but they were repealed by constitutional
amendments, and thus private property was left defenseless.

U S Constitution in its Vth amendment ordains that- No person can be deprived of

his life, liberty or property without due process of law.
Unlike other fundamental rights the scope of right to property is continuously
diminished by curtailing it through constitutional amendments. Practically the right to
property has ceased to exist in India. Much important litigation in Constitutional law
has arisen in the field of property rights because of the large legislation enacted by the
state and the central governments to control the property rights. The most important
question in these controversies was the payment of compensation for the property
rights acquired. Important constitutional battles have been fought around this question
and the constitution has been amended several times to get over some inconvenient
judicial rulings.As a result Article 31 has been shifted to article 300A as a new
insertion in Chapter IV in part XII of the constitution.

After 1978, in the area of property, there were only four constitutional provisions i.e.
Art. 31, 31B, 31C and 300A. Though Art. 31A, 31B and 31C are included in the
chapter of fundamental rights they cannot be called as fundamental rights in the real
sense, as they do not confer fundamental right but impose certain restriction on right
to property. The main object of these provisions was to provide immunity to various
laws curtailing property right.

The object behind the amendment was to abolish the large land holdings with
zamindars and other rich people and to distribute it to the landless peasants. But now
when the object seems to be almost achieved the importance of this amendment is in
question.
44th constitutional amendment eliminated the right to property as a fundamental
right. After 44th amendment right to property became a statutory right. Article 31
which contained right to property was shifted to Article 300. This transfer was done
to affirm that no person is deprived of his property save by the authority of law. The
amendment expanded the power of the state to appropriate property for social welfare
purposes.

Doctrine of Eminent Domain and Right to Property

Doctrine of Eminent Domain is a concept in the American Constitution. It is the
acquisition of private property by the state for a public purpose with paying certain
amount of compensation. Initially when India got Independence, the legislature to
abolish the Zamindari System, enacted various laws through which it took the
property from various land holders and used it for public purpose. In the case of State
of Bihar v Kameshwar Singh, Supreme Court defined eminent Domain as the power
of a sovereign to take property for public use without the owners consent upon
making just compensation.

Article 31A, 31B and 31C as well as Art. 300A are the existing constitutional
provisions concerning private property. Article31A
was added to the Constitution of India by the First Amendment Act 1951. Later, the
Fourth Amendment substituted various clauses in it.

Historical background

After independence when Congress was in power at Centre it decided to launched the
abolition of Zamindari Programme in which it abolished the Zamindari system and
acquired the lands of Zamindars. But the main difficulty before the government was
of paying compensation. In Art. 31(2) the word compensation was used without any
adjective like just or reasonable. Thus Supreme Court interpreted its meaning as just
compensation. Various land legislations were declared invalid and were challenged
under Article 14 and 19(1)(f). In Kameshwar Singh v State of Bihar, the Bihar Land
Reforms Act, 1950 was held invalid under Art 14 for it classified the zamindars in a
discriminatory manner for the purpose of compensation. Therefore, finding
Zamindari Abolition Programme in danger because of these judicial pronouncements,
the central government amended the Constitution and a new provision A. 31A was
added. .

In Waman Rao and I R Coelho case, the First Amendment in which the Art. 31A was
introduced and Fourth Amendment which substituted new clauses to this Article has
been held constitutional. Therefore relying on the judgments of Minerva Mills,
Waman Rao and Coelho case Article 31A can be stated as constitutionally valid.

Article 31 B
Art.31B was added to the Constitution by the Constitution (First Amendment) Act,
1951. It was added as a constitutional device to protect the specified statutes from any
attack on the ground that they infringe Part III of the Constitution. It has retrospective
effect which is clear from the words ever to have become void. The introduction of
this provision has cured the defects in various acts of the Ninth schedule as regards to
the unconstitutionality alleged on the grounds of infringement of Part III of
the Constitution, these Acts even if void or inoperative at the time, they were inactive
by reason of infringement of Article 13(2) of the constitution assumes full force from
the respective dates of their enactment after their inclusion in the Ninth schedule read
with Article 31B of the Constitution.

In Waman Rao v. Union of India, the court held that amendments in the Ninth
schedule made before the decision of Keshavananda Bharti v. State of Kerala that is
before 24.04.1973 were beyond challenge but the amendments made afterwards could
be tested on the grounds of amendment of basic structure. Similar views were given
by the court in Minerva Mills v. Union of India and Bhim Singhji v. Union of India .
In I.R. Coelho v. State of Tamil Nadu the nine judge bench of the Supreme Court
unanimously decided that as held in Keshavananda Bharti case and later clarified in
Waman Rao case while the laws included in the Ninth schedule before the decision in
Keshavananda Bharti case are immune from any challenge on the grounds of
violation of fundamental rights or basic structure and the Acts included after the
decision shall be open to challenge. The Court reaffirmed that Article 31B did not
destroy or damage the basic structure of the Constitution.

Article 31 C

Article 31-C 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 the President, has received his assent.

The insertion of this article made Art. 14, 19 and 31 inapplicable to certain laws made
by Parliament or any legislature. Along with this it was also added that a declaration
in the law that is to implement the directive principles enshrined in A. 39(b) and (c)
cannot be questioned in a court of law. Therefore, the insertion of this article granted
complete immunity to a law from judicial scrutiny if the President certified that it was
enacted to promote the policy laid down in A. 39(a) and (b). The provisions of
this Article would apply only if the law had received the assent of the President.
This article was inserted by the 25th Constitutional Amendment to get over the
difficulties placed by judicial decisions in the way of giving effect to the Directive
Principles in Part IV. It provided immunity from any challenge on the grounds of
violation of Article14, 19 and 31 any law enacted for implementing the directives in
clause (b) and (c) of Article 39. In the 25th amendment it was further provided that
such law made to give effect to the policy under Article 39(b) and (c), would not be
open to judicial review. However, this second part was struck down in Keshavananda
Bharti v State of Kerala, but rest of the Article was held valid. After this amendment
42nd Constitutional Amendment Act was passed by the Parliament which
replaced Article 39(b)-(c) by all Directives contained in Part IV of the Constitution.
The part which was held unconstitutional in the Keshavananda Case, but was not
omitted from the official text of the Constitution, since later cases seems to restrict
the scope of judicial review of the statutory declaration only to the narrow question
whether there is a reasonable nexus between the Act passed and the objects of the
directive it seeks to implement. But in the Minerva mills v Union of India, it was held
that extending the immunity of Article 31C to all the Directives of Part IV by the
42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976
position, which has not been overruled by any larger bench yet.

The validity of the 25th Constitutional Amendment was questioned in Keshavananda

Bharti v State of Kerala, Sikri C.J. held that since Parliament cannot under article 368
abrogate fundamental rights; equally it cannot enable the legislature to abrogate them.
Therefore article 31C must be declared unconstitutional. The second part of Article
31C was held unconstitutional on the ground that it ousted the jurisdiction of the
Courts which is a basic feature of the constitution and which cannot be done away
with an amendment under Article 368.

Minerva Mills Ltd. v. Union of India, the extended version of article 31C was struck
down by the Supreme Court. The Court ruled that the extension of the shield of article
31C to all the Directive Principles was beyond the amending power of Parliament
under article 368 because by giving primacy to all Directive Principles over the
Fundamental Rights in articles 14 and 19, the basic or essential features of the
constitution viz., judicial review has been destroyed.
Waman Rao v. Union of India, the Supreme Court maintained that article 31C as it
stood prior to the 42nd Amendment Act made in 1978, was valid as its
constitutionality had been upheld in Keshavananda Bharti case.

Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd., the
Supreme Court struck down article 31C as unconstitutional (Amended portion in
42nd Amendment Act) on the ground that it destroys the "basic features" of
the Constitution. The goal set out in Part IV has to be achieved without abrogating the
means provided for by Part III. Thus there is no conflict between the directive
principles and the fundamental rights. These are meant to supplement one another.
The Court held that article 31C as originally introduced by the 25th Amendment is
constitutionally valid.
I.R. Coelho v. State of Tamil Nadu, the Supreme Court held that any law which
infringes basic structure of the Constitution can be struck down. Parliament has
power to amend Part III so as to abridge or take away fundamental rights but that
power is subject to the limitation of basic structure doctrine. There should be a
balance between fundamental rights and Directive Principles of State Policy.

In Minnerva Mills Ltd v. Union of India, the Supreme Court struck down clauses 4
and 5 of Article 368 inserted by 42nd amendment Act as violative of the doctrine of
basic structure of the Constitution.