How welfare state has impacted Fundamental Rights ?
Fundamental Rights are already subject to various reasonable restrictions. Parliament has further diluted Fundamental Rights for fulfilling social objectives by abolishing Right to Property and inserting Articles 31 A, 31 B and 31 C.
What was right to property ? (Art 31)
Right to property was also a fundamental right under Article 31 of the Constitution. This article has been abolished vide 44th Amendment. Now, Right to Property is a constitutional right under Article 300A.
What is Article 31 A ?
Article 31A was inserted by the 1st Amendment of the Constitution. Article 31A dilutes Article 14 and Article 19. Laws providing for the following actions will not be deemed to 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.
- The acquisition by the State or any estate or of any rights therein or the extinguishment or modification of any such rights; or
- The taking over of management of any property by the State for a limited period either in the public interest or in order to secure the proper management of property, or
- The amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
- The extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
- The extinguishment or modification of any rights accruing by virtue of any agreement, lease or license for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination of cancellation of any such agreement, lease or license.
Any such law passed by state legislature has to receive assent of the President.
What is Article 31 B ?
Article 31 B was also introduced by 1st Amendment of the Constitution. Ninth Schedule to the Constitution was added vide this amendment to the Constitution. This amendment was necessitated to safeguard various Acts which have been passed for land reforms. Article 31 B provides that Acts and regulations specified in the Ninth Schedule will not be void on the aground that it is inconsistent with or takes away or abridges Fundamental Rights. As such Ninth Schedule gives complete immunity to laws included under 9th Schedule from violation of Fundamental Rights
A number of legislations have been placed under Ninth Schedule.
In Waman Rao Vs. Union of India (1981) 2 SCC 362 the Supreme Court held that amendments made in Ninth Schedule made before the decision in Keshavanand Bharati were beyond challenge while amendment made after Keshavanand Bharti could be tested on the ground of amendment of basis structure.
In I R Coelho Vs. State of Tamil Nadu (AIR 2007 SC 861) Supreme Court reiterated that laws included in Ninth Schedule before Keshavanand Bharati is beyond challenge while laws included after that will be open to challenge on the ground that they are against or destructive of basic structure of the Constitution.
What is Article 31 C ?
Article 31 C was inserted in the Constitution vide 25th Amendment.
Article 31C originally provided as under:
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 the principles specified in clause (b) or clause (c) of article 39 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, article 19 or article 31; 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.
Thus Article 31 C gave complete immunity to laws covered under Article 31 C from judicial scrutiny.
This amendment has been brought to get over judgement passed by Supreme Court in Golak Nath Vs. State of Punjab (1967 AIR 1643) wherein the Supreme Court has held that Parliament cannot amend Fundamental Rights.
25th Amendment was challenged in the Kesavanand Bharti Vs. State of Kerala ((1973) 4 SCC 225) . In Kesavanand Bharti upheld the power to amend the Fundamental Rights but basic structure of the constitution can not be amended. The portion of 31C was struck down which barred the judicial review of laws falling under Article 31 C.
By 42nd Amendment “clause (b) and clause (c) of Article 39” were substituted for “all or any of the principles laid down in Part IV”. Thus 42nd amendment gave primacy of Directive Principles of State Policy over Fundamental Rights.
This was challenged before the Supreme Court in Minerva Mills Vs. Union of India (AIR 1980 SC 1789) . The Supreme Court observed that Fundamental Rights and Directive Principles of State Policy both constituted commitment to social revolution. To give absolute primacy to one after another will disturb the harmony of the constitution. The harmony and balance between the Fundamental Rights and Directive Principal of State Policy is an essential feature of basic structure of Constitution and anything which destroys the balance between the two parts will destroy basic structure of the Constitution. The Supreme Court in this case set aside the modification made by 42nd Amendment in Article 31C.
So now the position exists that any law to give effect to Clause (b) and (c) of Article 39 will not be void for being inconsistent with Article 14 or 19. Any such laws can be reviewed by the Supreme Court or High Courts.
_______________________________
Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.