Saving of Laws: Articles 31A, 31B and 31C

That is the structural objection. Article 31B does not describe a class of law at all. It protects whatever Parliament chooses to list, which means Parliament can, by a constitutional amendment listing a statute, place any statute beyond the reach of any fundamental right. A device created to solve a specific problem became a general escape from Part III.

Article 31C, and the two attempts to widen it

As enacted in 1971, article 31C had two limbs. The first protected a law giving effect to article 39(b) and (c) from articles 14 and 19. The second provided that 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.

The second limb was struck down in Kesavananda Bharati, on the ground that it made the legislature the judge of whether its own law fell within the protection, and so excluded judicial review. The first limb survived. Kesavananda is in the case bank's queue and is named here without a citation.

The Forty-second Amendment 1976 widened the first limb, by section 4, so that it protected a law giving effect to all or any of the directive principles in Part IV, not merely article 39(b) and (c).

Facts. Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789, (1981) 1 SCR 206, decided 31 July 1980 by five judges. Challenge to sections 4 and 55 of the Forty-second Amendment. Section 55 had inserted clauses (4) and (5) in article 368: clause (4) that no amendment shall be called in question in any court, clause (5) that there shall be no limitation whatever on the constituent power of Parliament.

Held. Clause (5) is unconstitutional: it demolishes the pillars on which the Preamble rests by conferring constituent power without any limitation whatever, and the power to destroy is not a power to amend. A limited amending power is itself a basic feature, and the donee of a limited power cannot by exercising it convert that power into an unlimited one. Clause (4) is equally void, being interlinked with clause (5): the Constitution rests on a balance among the three wings, it is the duty of judges to pronounce on the validity of laws, and rights without remedies are as writ in water. On section 4, the majority struck down the widening of article 31C, holding that giving the directive principles blanket primacy over articles 14 and 19 destroys the balance between Parts III and IV, which is itself a basic feature. Bhagwati J. dissented on this point, holding that fundamental rights and directive principles are both part of the broad spectrum of human rights and that the primacy did not damage the basic structure.

Why it matters. It restored article 31C to its 1971 width, and it made the balance between Parts III and IV a basic feature. It is also the case that made the limited nature of the amending power itself unamendable.

The end of the sanctuary

Facts. I.R. Coelho v. State of Tamil Nadu, decided 11 January 2007 by nine judges. Whether a law placed in the Ninth Schedule, and so protected by article 31B, may nevertheless be attacked as damaging the basic structure.

Held, in six numbered propositions.

A law that abrogates or abridges Part III rights may or may not violate the basic structure; if it does, whether by amending Part III or by insertion in the Ninth Schedule, it must be invalidated.

The validity of each new amendment is judged on its own merits, by the actual effect and impact of the law on Part III rights. That is the impact test.

All amendments adding laws to the Ninth Schedule on or after 24 April 1973, the date of Kesavananda Bharati, must be tested against the basic or essential features as reflected in article 21 read with articles 14 and 19 and the principles underlying them. An Act in the Ninth Schedule is therefore open to attack if the right taken away pertains to the basic structure.

The protection is not blanket: the nature and extent of the infraction is examined by the rights test and the essence of the right test.

Where the validity of a Ninth Schedule law has already been upheld it may not be challenged again on these principles; but a law held violative of Part III and afterwards incorporated in the Schedule may be challenged.

Actions taken and transactions finalised are not open to challenge.

Why it matters. It ends the Ninth Schedule as a sanctuary. The date, 24 April 1973, is the single most quotable fact in this chapter: it is the day Kesavananda was decided, and it marks the point from which Parliament knew the amending power was limited.

The 24 April 1973 cut-off was drawn earlier, in Waman Rao v. Union of India, decided 9 May 1980. That case is in the case bank's queue and is named without a citation.

A worked example

In 2020 Parliament amends the Constitution to insert a State statute into the Ninth Schedule. The statute abolishes a class of tenancy without any hearing, and bars any suit or proceeding in relation to it. A tenant challenges the amendment and the statute.

Does article 31B protect the statute from Part III? On its terms, yes: article 31B says none of the Acts specified in the Ninth Schedule shall be deemed void on the ground of inconsistency with any of the rights in Part III.

Is that the end of it? No. On Coelho, an amendment adding a law to the Schedule on or after 24 April 1973 is tested against the basic structure as reflected in article 21 read with articles 14 and 19. This amendment is from 2020, so it is squarely within the rule.

What test is applied? Not whether the statute is inconsistent with a fundamental right, which article 31B forgives, but the impact test: what is the actual effect of the law on the rights in Part III, and does the right taken away pertain to the basic structure. The rights test and the essence of the right test are applied, taking a synoptic view of Part III.

Apply it. Abolishing a right of property is not by itself basic structure, since property ceased to be a fundamental right in 1978. But excluding any hearing and barring any proceeding engages article 21 read with article 14, and the exclusion of judicial remedy engages the reasoning in Minerva Mills that rights without remedies are as writ in water. The challenge is therefore arguable on the second limb and weak on the first.

Would article 31A help the State instead? Only if the statute falls within one of its five classes, and only against articles 14 and 19, not against article 21. And a State law needs the President's assent under the proviso.

Would article 31C? Only if the law gives effect to article 39(b) or (c), and only against articles 14 and 19. After Minerva Mills it cannot be invoked for the directive principles generally.

Quick revision

• Article 31A: immunity by SUBJECT MATTER, five classes, from articles 14 and 19 only, with a proviso requiring the President's assent for a State law.
• Article 31B: immunity for NAMED STATUTES in the Ninth Schedule, from the whole of Part III, notwithstanding any judgment.
• Article 31C: immunity by PURPOSE, for a law giving effect to article 39(b) and (c), from articles 14 and 19.
• The Ninth Schedule was drafted for thirteen land laws and now holds hundreds, many unrelated to land. It protects whatever Parliament lists.
• Kesavananda struck down article 31C's second limb, which had excluded judicial review of the declaration.
• Minerva Mills struck down clauses (4) and (5) of article 368 and the Forty-second Amendment's widening of article 31C. Power to destroy is not a power to amend; rights without remedies are as writ in water; Bhagwati J. dissented on article 31C.
• I.R. Coelho: laws added to the Ninth Schedule on or after 24 APRIL 1973 are testable against the basic structure as reflected in article 21 with articles 14 and 19, by the impact test.

Test yourself

1. What historical problem produced all three articles, and why did the Constitution's original text not solve it?

2. Distinguish articles 31A, 31B and 31C by what each immunises and from which rights.

3. What is the structural objection to article 31B, as distinct from an objection to any particular listed law?

4. Trace article 31C through 1971, Kesavananda, 1976 and Minerva Mills.

5. State the six holdings in I.R. Coelho, and explain the significance of 24 April 1973.

6. Does a law in the Ninth Schedule still get any protection at all after Coelho? Explain precisely.