Chapters :
  • THE FUNDAMENTAL RIGHTS – 10
  • Article 31: Right to Property
  • Article 19(1)(f)
  • Article 31A
  • Article 31B
  • Article 31C
  • Criticisms to Fundamental Rights

THE FUNDAMENTAL RIGHTS – 10

Exceptions to Fundamental Rights

Since the commencement of the constitution, the now deleted article, Article 31 under Part III had been a point of contention between the Supreme Court and the Parliament. This led to numerous constitutional amendments which introduced three new articles 31A, 31B and 31C to the constitution.

Article 31: Right to Property

It says that every person, both citizens and non-citizens has the right against deprivation of his property except by the authority of law. It empowers the State to acquire or demand the use of a private property, but under two conditions

  1. The acquired property should be used for public purpose and
  2. The State should provide compensation to the property owner.

Article 19(1)(f): It says that every citizen has the right to acquire, hold and dispose properties.

The protection guaranteed under the articles 31 and 19(1)(f) obstructed with the State’s land reform initiatives. This led to constant confrontations between the Supreme Court and the Parliament. Thus, by the 44th constitutional amendment act, both the articles 31 and 19(1)(f) were repealed and a new article, Article 300A was inserted under Part XII. Article 300A deals with the Right to property, which has been made as a legal right. The articles 31A, 31B and 31C were retained as exceptions to fundamental rights under Part III.

Article 31A: Saving of laws providing for acquisition of estates, etc

Article 31A was introduced to save certain laws from being challenged in the Courts for violating the fundamental rights. It protects five categories of laws such as the laws related to

  1. Acquisition of estates by the State and related rights;
  2. Taking over management of properties by the State;
  3. Amalgamation of corporations;
  4. Extinguishing or modifying the rights of directors, share holders, etc of corporations and
  5. Extinguishing or modifying mining leases.

Note: Article 31A says that the State should guarantee compensation at market value while acquiring properties that are used for private cultivation and are under the statutory ceiling limits.

Article 31B: Validation of certains acts and regulations

Article 31B saves any law that is kept under Ninth Schedule from being challenged for violating fundamental rights. The scope of 31B is wider than 31A, as it saves ‘any’ law from judicial review. In 2007, the Supreme Court held that, all the laws enacted after April 24, 1973 are open to judicial review, which forms a part of the basic structure of the constitution and thus cannot be curtailed. The basic structure doctrine was first put forward in April 21, 1973.

Article 31C: Saving laws giving effect to certain Directive Principles of State Policy (DPSP)

Article 31C originally contained two provisions

  1. The laws that are enacted to give effect to the socialist principles under article 39(c) and 39(d) shall not be declared void for violating fundamental rights under Articles 14 and 19.
  2. The Courts shall not question the laws made under article 31C on whether the laws really give effect to article 39(c) and (d).

The Supreme Court held the second provision unconstitutional and invalid.

Note:

  • Article 39(c) directs the State on formulating policies for preventing the accumulation of wealth and means of production.
  • Article 39(d) talks of equal pay for equal work to both men and women.

 Criticisms to Fundamental Rights

The Fundamental Rights guaranteed under Part III have been criticised for the following reasons

  1. Excessive Limitations: The fundamental rights enshrined in the constitution are not absolute. They are not natural rights, but special legal rights. These rights can be restricted by the State by law. These rights come with inbuilt restrictions that are justified on the grounds of public good.
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