Exceptions and Criticisms of Fundamental Rights in India: Understanding Articles 31A, 31B, and 31C

The Indian Constitution includes specific provisions under Articles 31A, 31B, and 31C that exempt certain laws from being challenged as violations of Fundamental Rights. These exceptions are designed to balance state policies with constitutional values. This article explores these provisions, their scope, and the criticisms surrounding the broader framework of Fundamental Rights in India.

Balancing Rights and Governance: Exceptions to Fundamental Rights and Their Criticisms in the Indian Constitution

• Exceptions to Fundamental Rights: The provisions mentioned relate to Articles 31A, 31B, and 31C of the Indian Constitution, each dealing with the protection of certain laws from judicial review based on contravention of Fundamental Rights. 

Detailed Explanation Of These Articles Are

Article 31A:  Saving Of Laws Providing For Acquisition Of Estates, Etc.

• This article protects specific laws related to land reforms and other economic measures from being challenged on the grounds of violating the fundamental rights under Articles 14 (equality before the law) and 19 (protection of certain rights regarding freedom of speech, etc.).
• Covered Laws: It covers laws dealing with the acquisition of estates, taking over property management by the state, amalgamation of corporations, modification of rights in corporations, and modification of mining leases.
• Procedure for Immunity: However, for a state law to enjoy this immunity, it must be reserved for the President’s consideration and receive his assent.
• Compensation Requirement: It also mandates compensation at market value for land acquisitions within certain limits.

Article 31B: Validation of Certain Acts and Regulations

• Broad Protection for Laws in the Ninth Schedule: Article 31B provides a broader protection than Article 31A. It safeguards any laws in the Ninth Schedule of the Constitution from being invalidated for infringing any fundamental rights.
• Expansion of the Ninth Schedule: Initially, the Ninth Schedule contained only 13 acts, but as of 2016, it includes 282 acts, primarily related to land reforms and the abolition of the zamindari system.
• Judicial Review Limitations: However, the Supreme Court in the I.R. Coelho case (2007) held that laws in the Ninth Schedule post-April 24, 1973 (the date of the Kesavananda Bharati judgment introducing the ‘basic structure’ doctrine), could be subject to judicial review if they violate fundamental rights or the constitution’s basic structure.

Article 31c: Saving Of Laws Giving Effect To Certain Directive Principles

• Provisions: Inserted by the 25th Amendment Act of 1971, Article 31C initially had two provisions. 
  • Protection for Laws Implementing Directive Principles: The first stated that laws implementing certain directive principles, especially those in Article 39(b) and (c), cannot be voided for contravening Articles 14 and 19.
  • Court Challenge Ban Declared Unconstitutional: The second provision, which prevented any law containing a declaration for implementing such policies from being questioned in court, was declared unconstitutional in the Kesavananda Bharati case (1973) as it violated the basic structure of the Constitution.
• Expansion of Protection by the 42nd Amendment Act (1976): The 42nd Amendment Act of 1976 tried to expand this protection to any law implementing any directive principles, 
  • However, this extension was struck down in the Minerva Mills case (1980).
• Balancing State Policies and Fundamental Rights: These articles illustrate the complex balance between protecting certain state policies, particularly in land and economic reform, and maintaining the supremacy of fundamental rights and the constitution’s basic structure.

Criticism of Fundamental Rights

Criticism of fundamental rights in the Indian Constitution often revolves around several key points, each highlighting perceived limitations or issues in their implementation and scope. 

Some of them are as follows:

• Lack of Social and Economic Rights: Fundamental rights primarily focus on civil and political rights, with less emphasis on socio-economic rights like the right to work, education, or health. 
• Example: The right to education was added much later (86th Amendment, 2002), highlighting initial gaps in addressing social rights.
• Suspension during Emergency: Article 359 allows the suspension of fundamental rights during a national emergency. 
• • This provision was controversially used during the Emergency (1975-1977), leading to widespread violations of civil liberties.
• Restrictive Nature of Some Rights: Certain rights come with inherent restrictions in the interest of public order, morality, and health. 
  • For instance, the freedom of speech and expression is not absolute and can be restricted to maintain public order, affecting its practical applicability.
• Limited Reach and Enforcement: Despite being guaranteed by the Constitution, the enforcement of fundamental rights can be uneven, especially in rural or marginalized communities. 
  • For instance, cases of discrimination and untouchability still exist, despite being prohibited under Article 17.
• Absence of Universal Application: Certain fundamental rights, like cultural and educational rights given under Articles 29 and 30, are specifically designed for minorities, leading to debates about unequal privileges and their impact on social harmony.
• Conflict with Directive Principles: Often, there is a conflict between fundamental rights and the Directive Principles of State Policy. 
  • Example: The right to property was a fundamental right but was later removed to facilitate land reforms as per the Directive Principles.
• Ambiguity in Interpretation: The broad and ambiguous wording of some rights leads to varying interpretations. 
  • Example: The interpretation of what constitutes ‘public order’ or ‘morality’ for limiting freedom of speech can vary, leading to inconsistent judicial decisions.
• Economic and Social Constraints: The effective realization of fundamental rights is often hampered by economic and social constraints. 
  • Example: The right against exploitation is hindered by the widespread poverty and lack of education, which forces many into exploitative labor conditions.
• Implementation Issues: There is often a gap between the legal provision of rights and their actual implementation on the ground. 
  • For instance, the right to equality is challenged by pervasive caste and gender discrimination in various spheres of life.
• Overemphasis on Individual Rights: Some critics argue that the Constitution overemphasizes individual rights at the expense of community welfare. 
  • This can sometimes lead to conflicts where individual rights clash with collective interests.

Rights Outside Part III

Rights Enshrined Outside Part III: The Indian Constitution, while primarily known for its Fundamental Rights listed in Part III, also enshrines other important rights in its different parts. 

• These rights, though justiciable, differ from the Fundamental Rights in their nature and the remedies available upon their violation. 
• These are constitutional or legal rights, not classified as Fundamental Rights. 
• They are part of various other sections of the Constitution.
• Some of them are: 
  • Article 265 (Part XII): This article states that no tax shall be levied or collected without the authority of law, ensuring that taxation is done legally and transparently.
  • Article 300-A (Part XII): It provides that no person shall be deprived of their property except by the authority of law. 
    • This article was added to the Constitution after the right to property was removed from the list of Fundamental Rights.
  • Article 301 (Part XIII): This guarantees the freedom of trade, commerce, and intercourse throughout the territory of India, fostering a unified market and economic unity within the country.
• Justiciability and Enforcement:
  • Justiciability of Rights Outside Part III: While these rights are justiciable (meaning they can be enforced in courts), the process for their enforcement differs from that of Fundamental Rights.
  • Enforcement of Fundamental Rights: In case of a violation of Fundamental Rights, the aggrieved person can directly approach the Supreme Court under Article 32, which itself is a Fundamental Right, providing an effective and expedient remedy.
  • Enforcement of Rights Outside Part III: If there is a violation of these constitutional rights, the aggrieved individual cannot use Article 32. 
    • Instead, they must approach the High Court under Article 226 or file an ordinary lawsuit. 
    • Article 226 empowers High Courts to issue certain writs for the enforcement of these rights and offers a broader scope compared to Article 32.

Evolution and Current Status of the Right to Property in India

Original Status

• Fundamental Right: Initially, the right to property was among the seven fundamental rights under Part III of the Constitution, addressed by Article 19(1)(f) and Article 31.
• Article 19(1)(f): Guaranteed every citizen the right to acquire, hold, and dispose of property.
• Article 31: Assured every person, citizen or not, protection against property deprivation, subject to lawful authority. 
• It also set conditions for state acquisition or requisition of property: for public purpose and with compensation.

Controversies and Amendments

• Source of Disputes: This right caused frequent confrontations between the Supreme Court and Parliament, resulting in numerous amendments (1st, 4th, 7th, 25th, 39th, 40th, 42nd) to mitigate the impact of court judgments and protect certain laws from being challenged on the basis of fundamental rights.
• Issues of Compensation: A major legal contention was the state’s obligation to compensate for the acquisition or requisition of private property.

44th Amendment Act of 1978

• Abolition as Fundamental Right: The 44th Amendment removed the right to property from the list of fundamental rights by repealing Article 19(1)(f) and Article 31.
• Article 300A Introduction: A new Article 300A was inserted in Part XII, ensuring that no person shall be deprived of their property except by authority of law.
• Current Status: The right to property remains a constitutional right but not a fundamental one. It’s not part of the Constitution’s basic structure.
  • Supreme Court’s Ruling on Property Rights Post-Abolition: After the Fundamental Right to Property was abolished, the Supreme Court upheld its significance as a Fundamental Right in Bhim Singh v. Union of India (1981). 
    • Lacking the fundamental property right, the Court used Article 14’s principle of reasonableness to challenge aspects of urban land ceiling laws
  • Supreme Court Ruling: In B. K. Ravichandra v. Union of India (2020), the Supreme Court ordered the return of land to its owners, underscoring the right’s importance.
  • Legal Protection: The Court’s decisions and historical context show that, despite debates on its fundamental status, the right is safeguarded by the rule of law.
  • Article 300-A: This Article, akin to Articles 21 and 265, emphasizes the significance of legal protection and reinforces the rule of law.
• Right to Property as a Human Right
  • Pension as Property: The Bombay High Court in 2016 treated pension payments as property rights, emphasizing that they should not be postponed.
  • Human Rights Aspect: The Supreme Court in 2020 highlighted that Article 300A, along with Article 25(1) of the Universal Declaration of Human Rights (UDHR), aims to protect property from arbitrary executive action and minor constraints on state power.
  • Legal Authority Required: Allahabad High Court in Gayatri Devi v. State of UP (2019) reinforced that property cannot be taken away without legal authority, making it both a constitutional and human right.
  • Recent Confirmation: In Hari Krishna Mandir Trust v. State of Maharashtra (2020), a two-judge bench reaffirmed that property cannot be seized without following legal procedures, upholding its status under Article 300A.

Implications of Current Status

Right to Property as a Constitutional and Human Right: The Right to Property is no longer a fundamental right but remains a constitutional and human right, as confirmed in cases like State of Haryana v. Mukesh Kumar (2011).

• Regulation by Parliament: The right can be regulated, curtailed, or modified by ordinary law without needing a constitutional amendment.
• Protection Against Executive Action: It offers protection against executive actions but not against legislative ones.
• Legal Recourse: In case of violation, one cannot directly approach the Supreme Court under Article 32 but can approach the High Court under Article 226.
• No Guaranteed Compensation: There’s no inherent right to compensation for state acquisition or requisition of private property.

Exceptions in Part III

Article 30: Guarantees compensation when state acquires property from a minority educational institution (added by the 44th Amendment Act of 1978).

• Article 31A: Ensures compensation for land under personal cultivation within statutory limits (added by the 17th Amendment Act of 1964).

Conclusion

Articles 31A, 31B, and 31C highlight the constitutional balance between state policies and individual rights. 

• Criticisms of Fundamental Rights point to gaps and limitations in their scope and implementation. 
• Understanding these exceptions and criticisms is crucial for assessing the effectiveness and fairness of India’s constitutional protections.

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