3. OUTLINE OF THE CHAPTERS
3.2. THE CASE LAW OF THE SUPREME COURT OF INDIA
3.2.2. An Overview Concerning the Background of the Case Law
The beginning of the basic structure doctrine goes back to a sequence of the Supreme Court’s decisions and amendments of the constitution by parliament to overturn those Supreme Court decisions. As the basic structure doctrines stemmed from a certain context we shall investigate the Indian context in depth in order to fully grasp it.
As mentioned earlier, the Indian society (of which Hindus are the majority) was (and is still) based on the caste system, which is what the Constitution wanted to abolish.522 The caste system is accompanied by large-scale poverty and backwardness, and especially a concentration of private property in the hands of a few. Considering how important
521 Article 368 specifies further that Article 241, Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part
XI, the Seventh Schedule, the representation of states in Parliament and this provision.
522 Part III and especially Article 15 (2) (a) (Prohibition of discrimination to access to public restaurants, hotels,
agricultural activities are in India,523 land and tenure systems and the land reform legislation introduced thereupon are of special importance in order to understand the context, from which the basic structure doctrine emerged.
In this regard, the zamindari (meaning landholder in Persian) land and revenue system524 together with other complex land and tenure systems, like the ryotwari (meaning subject or cultivator in Persian) system, were the targets to abolish. A significant number of land reform acts had been passed to abolish these systems even before the entry into force of the Constitution by many state legislatures. The zamindari system was introduced first by the Mongol emperors,525 but was later recognised officially by the British colonial power with the Permanent Settlement Act in 1793526 and inherited thenceforth. It became the tool for the concentration of large tracts of land in the hands of a few. This system is conceived as a form of feudalism. As it contributed to socio-economic inequalities, its abolishment became a goal for the Indian National Congress Party.
Under the Government of India Act, 1935, zamindari’s rights were treated as vested rights.527 Thus, no estate could be acquired compulsorily, even for public interest, by the (Indian) Federal and Provincial governments without providing compensation for such property.528 However, when independence was achieved “it was felt that there was no need for protection of any vested rights”529 under the (new) Constitution. In fact, paying compensation for compulsory acquisitions of property became one of the reasons for the division in the National Congress Party before and during the drafting period of the Constitution.530 Article 31, which dealt with the compulsory acquisition of property and some exceptions for the
523 For example, at the beginning of its independence, the total population of India was reported as 356.8 million,
249.1 million of which “depend for their livelihood on farming” M. L. Dantwalla, “Land Reforms in India”
International Labour Review 66 (1952), p. 420.
524“The basis of this system is that the State purported to fix in perpetuity the dues from the land. In addition, the
zamindars, who were to a considerable extent revenue farmers, were declared to be the owners of the land” R. S. Gae, “Land Law in India: With Special Reference to the Constitution” International and Comparative Law
Quarterly 22 (1973), p. 314 In other words, “Zamindari system refers to a superior form of interest in land, …
the holder of which in collected rents from those having subordinate interests and paid land revenue to the Government” Gae, “Land Law in India: With Special Reference to the Constitution”, footnote 12 at p. 314.
525
Konrad Bekker, “Land Reform Legislation in India” Middle East Journal 5, no. 3 (1951), p. 320.
526
Dantwalla, “Land Reforms in India”, p.421.
527 The Government of Indian Act can be found at
http://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf
528
Article 299 of the Government of Indian Act, 1935.
529 Gae, “Land Law in India: With Special Reference to the Constitution”, p.315.
530Granville Austin, The Indian Constitution- Cornerstone of a Nation (New Delhi: Oxford University Press,
1966; reprint, Seventeenth impression (2012)), pp. 23-24 ; Gae, “Land Law in India: With Special Reference to the Constitution”, p.316. Also see Gae, “Land Law in India: With Special Reference to the Constitution”, p.316.
conditions of compensation, was a kind of compromise between the different views about this compensation.531
Before its total abolishment by the Forty-Fourth Amendment in 1978, Article 31 guaranteed right to property and laid down some principles for compulsory acquisition of private property. In Clause 2 of Article 31, some conditions were laid down in order for private properties to be acquired compulsorily by the State (state is used here in the large sense covering all state authorities, federal, local, etc.). According to this clause, a private property could be acquired by the state:
a) only by the authority of law (thus not by an ordinance);
b) for public purposes;
c) by providing compensation. (although it did not mention just or equal compensation).532
However, some exceptions to these conditions were also introduced as part of the compromise between the National Congress Party and the communist-wing within the Constituent Assembly – in clauses 4, 6 533 (and also 5) of Article 31. While clause 4 intended to protect agrarian reform acts, clause 6 provided for the protection to the acts enacted not more than eighteen months before the commencement of the Constitution. Clause 5 (a) was designed to protect existing legislation which dealt with the compulsory acquisition of property and which did not provide for payment of full compensation.
Namely, the aim of these clauses was to specify that in some cases it might not be necessary that compensation be paid to the owners, and that when compensation is paid, its amount
531
There were different suggestions on the issue of compensation for compulsory acquisition of zamidars’ rights: For example, some suggested ‘equitable compensation’, others no compensation at all. On this see K. C. Suri, “The Agrarian Question in India During the National Movement, 1885-1947” Social Scientist 15, no. 10 (1987), p. 34, 35 and 38.
532
Clause 2 of Article 31, as it stood originally, read: No property shall be compulsorily acquired or
requisitioned save for a public purpose and save by authority of a law which provides compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the grounds that the compensation provided by law is not adequate.
533
Clause 4 reads: If any Bill pending at the commencement of this Constitution in the Legislature of a State has,
after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the grounds that it contravenes the provision of Clause (2).
Clause 6 reads: Any law of the State enacted not more than eighteen months before the commencement of this
Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the grounds that it contravenes the provision of Clause (2) of this article…
would not be called in question in any court on that ground. The goal of these two clauses (4 and 6) – even though they did not mention it explicitly – was to secure the Acts which aimed to abolish the zamindari system, and which were adopted earlier by the legislatures of various states before the entering into force of the Constitution.534 In short, with Clauses 4 and 6, the framers of the Constitution tried to confer immunity of non-justiciability on some acts on the grounds of their violation to the general principle of clause 2.
The path these reform acts followed can be summarised as follows: “…the trend of land law and land reform in India, which initially commenced with the abolition of zamindari and the permanent settlement, subsequently extended in the first place to security of tenure to the tenant and thereafter to the fixation of limits on the rent payable by him. This virtually culminated in the fixation of ceilings on land-holding by a family. Land above the ceiling were acquired and distributed amongst the landless and other weaker sections of the community”535 This must be borne in mind in the following parts, which will make easier to understand the complex context of land reform, which gave rise to complex case law.
However, in spite of the existence of clauses 4 and 6, some petitioners holding zamindari rights challenged before the high courts of their respective provinces and/or the Supreme Court the constitutionality of those acts abolishing the zamindari system. However, since the petitioners could not legally challenge the validity of such acts on the grounds of their (possible) violation of clause 2 of Article 31, they tried to rely on the fact that those acts were unconstitutional because they treated owners of land discriminatorily (unequally) in terms of the payment of compensation. In fact, in some land reform acts it was observed that when compensation was offered, it was provided that for bigger estates a lower rate of compensation would be paid than for smaller estates.536 For example, the petitioners in Kameshwar v. State Bihar 537 challenged the Bihar Land Reform Act, 1950 before the Patna High Court on the grounds that it contravened the equal protection clause (Art. 14) of the Constitution. The petitioner succeeded in their challenge, i.e. the Patna High Court found the
534 The Agrarian Reform Legislations in India, which had been adopted by the legislatures of various states, were
many (more than 30). For the full list of the legislations, which would be recognized within the scope of clauses 4 and 6 of Article 31, see Dantwalla, “Land Reforms in India”, pp. 442-443.
535 Gae, “Land Law in India: With Special Reference to the Constitution”, p.326.
536S. P. Sathe, “India: From Positivism to Structuralism” in Interpreting Constitutions, a Comparative Study, ed.
Jeffrey Goldsworthy (Oxford: Oxford University Press, 2007), p. 240.
537
Act to be unconstitutional on the basis of discriminatory treatment of owners, thus declared the Act null and void.538
Parliament, following this type of challenge before the High Courts and/or the Supreme Court, passed the First Amendment in 1951 to the Constitution with a view to securing the constitutional validity of the acts abolishing the zamindari system.539 With the First Amendment, two new articles, among other things, were inserted into the Constitution: Article 31A 540 and 31B.541 The former set general rules and aimed to entrench the constitutionality and non-justiciability of the acts abolishing the zamindari system. The latter, being a specific version of the former, created the Ninth Schedule, which listed all land reform acts and granted immunity on them from judicial challenge before any court on the grounds that those acts are inconsistent with, or take away, or abridge any of the rights conferred by any provisions of the Part III (Fundamental Rights).
However, the First Amendment could not stop judicial challenges of the land reform acts before the courts. This time, however, the target was inadequacy of compensation. The
538 Gae, “Land Law in India: With Special Reference to the Constitution”, p.319. During the appeal process of
this case (together with the other two cases) before the Supreme Court, Parliament passed the First Amendment (in 1951). The Supreme Court reversed the Patna High Court decision in the appeal with the help of the First Amendment. The State of Bihar vs Maharajadhiraja Sir Kameshwar, 1952 1 SCR 889; 1975 AIR 1083. It can be found at http://judis.nic.in/supremecourt/chejudis.asp
539 It was clearly stated in the ‘Statement of Objects and Reasons’ of the First Amendment that “[t]he validity of
agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clause (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as a result of which the implementation of these important measures, affecting a large number of people, has been held up” The Constitution (First) Amendment Act, 1951, Statement of Objects and Reasons can be found at http://indiacode.nic.in/coiweb/amend/amend1.htm last visited on 15th August, 2011.
540
Section 4 of the Amendment Act reads: Insertion of new article 31A- After article 31 of the Constitution following article shall be inserted, and shall be deemed always have been inserted, namely:- Saving of laws providing for acquisition of estates, etc. (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the grounds that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part.
Provided that where such law is a law 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.
(2) In this article,-
(a) the expression “estate” shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant;
(b) the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue.
541 Validation of certain Acts and Regulations.-Without prejudice to the generality of the provisions contained in
article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the grounds that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
famous case of this era was State of West Bengal v Bela Banerjeee.542 In this case, the West Bengal Land Development and Planning Act, 1948, was challenged on the grounds that the compensation the Act provided for compulsory acquisition of land was inconsistent with the right to property and the principles laid down in Article 31, clause 2. The provision of section 8 of the said Act provided that regardless of when land was acquired, the ceiling limit of any payable compensation to the owner would be the market value of the land on 31 December 1946. For example, if land were acquired in 1952, the ceiling of the compensation would be the market price as of December 1946
At the time when the State of West Bengal v Bela Banerjeee case was pending, the said Act was not under the protection of clauses 4 or 6 of Article 31, since it was not submitted to the President for his assent (as these clauses required). Nor was it under the protection of Article 31B.543Therefore, it did not have specially-protected constitutional status and thus was open to judicial challenge on the grounds of contravening clause 2 of Article 31 and any other provision guaranteed under Part III (Fundamental Rights). For this reason, the Supreme Court held in State of West Bengal v Bela Banerjeee case that “compensation, … is… just equivalent of what the owner has been deprived of”544 Therefore, the Act was declared unconstitutional on the grounds that it violated clause 2 of Article 31.545
The State of West Bengal v Bela Banerjeee case and other cases of this kind 546resulted in the adoption of the Fourth Amendment in 1955, which amended clause 2 of Article 31547 and Article 31A, and also added a new clause (2A); seven more Acts were also added to the Ninth Schedule. By the amendment to clause 2 of Article 31, it was laid down that the adequacy of compensation to be paid for compulsory acquisition (and requisition) of estates shall not be called in question in any court. Article 31A548 was also amended with a view to preventing
542 West Bengal v Bela Banerjeee ,1954 AIR 170 ; 1954 SCR 558. The case can be found at
http://judis.nic.in/supremecourt/chejudis.asp.
543 It was only by the Fourth Amendment (1955) that the said Act was inserted into the Ninth Schedule. 544
West Bengal v Bela Banerjeee, 1954 SCR, parag. 563.
545Ibid. parag. 565.
546 Other cases of this type were: State of West Bengal v. Subodh Gopal Bose, (1954) S.C.R 587, Dwarkadas
Srivinas v. Sholapur Spinning and Weaving Co. Ltd. (1954) S.C.R. 674, Saghir Ahmad v. State of Uttar Pradesh
(1955) 1 S.C.R 707. (321)
547
It read: No property shall be compulsorily acquired or requisitioned save for a public purpose and save by
authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the grounds that the compensation provided by that law is not adequate. (emphasis added)
548 Section 3 of the Amendment Act: (a) for clause (1), the following clause shall be, and shall be deemed
always to have been, substituted, namely:-
the land reform acts from any challenge before courts on the grounds that they are inconsistent with, or take away from, or abridge any of the rights conferred by Article 14 (equal protection clause) Article 19 (including right to property) and Article 31 (protection of right to property and principles for compensation to be paid in case of compulsory acquisition of estates). Obviously, the aim of the amendment, which was indeed explicitly stated in the ‘Statement of Objects and Reasons’ of the Amendment Act, was to overturn the Supreme Court’s decisions on compensation.
However, the Fourth Amendment did not stop judicial challenges of the land reform acts. For example, the Kerala Agrarian Relations Act, 1961 was found to be unconstitutional by the Supreme Court in Karimbil Kunhikoman v. State of Kerala549 with regard to its application to ryotwari lands, which were effective in the State of Madras at that time. The case was brought before the Supreme Court after its failure before the High Court of the State of Kerala. The petitioners, who were ryotwari tenants,550 submitted six grounds for challenge in their appeal.551 The Supreme Court accepted four grounds, but rejected the others. One of the accepted grounds was that the rights of ryotwari tenants were not within the meaning of “estate” as defined in sub-clause (a) of clause 2 of Article 31A, as inserted by the First
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public