In Property Owners Association v State of Maharashtra (2024), a nine-judge Constitution Bench of the Supreme Court reserved judgement on whether private property is a “material resource of the community” under Article 39(b) of the Constitution. The Bench will decide a crucial constitutional question: does the original provision come back to life when an amendment is declared unconstitutional by the Court?
The provision at the centre of the storm is Article 31C that was inserted in 1971 to protect laws that advance Directive Principles against fundamental rights challenges.
In the Property Owners case, the government of Maharashtra is defending a law which gives a public housing body the power to takeover certain dilapidated, privately-owned buildings on the ground that they can be considered a “material resource of the community”.
The landlords argued that the law violates their fundamental rights under Article 14 and can be challenged because Article 31C is no longer on the books after it was struck down by the Supreme Court in 1980.
The doctrine of revival is central to the question of an original provision being resurrected after an amendment is struck down. In this analysis, after recounting a brief history of Article 31C, I look at the Supreme Court’s somewhat inconsistent stance on substitution and revival.
I argue that the closest the Court has come to establishing a ‘test’ in this regard is the ‘context and circumstances’ formulation in Indian Express Newspapers (1984) and the NJAC case (2015). Through the piece, I try to contextualise the arguments made by the petitioners and respondents around Article 31C in the Property Owners case. The question, really, seems to be whether the existence of Article 31C will cause ‘constitutional chaos’ or not.
A brief history of Article 31C
Article 31C was inserted by the 25th Amendment Act in 1971. It read as follows:
“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.
There is general agreement over the fact that the second part of Article 31C was struck down by the 13-judge bench in Kesavananda Bharati v State of Kerala (1973) on the ground that judicial review was part of the Basic Structure of the Constitution. What survived of Article 31C after Kesavananda Bharati was the first part, which prevented a fundamental rights challenge to a law enacted to advance the two DPSPs—Articles 39(b) and (c). Article 39(c) states that the State must ensure that there is no inequitable concentration of “wealth and means of production.”
Subsequently, Section 4 of the 42nd Constitutional Amendment Act, 1976, broadened the scope of Article 31C to all of the DPSPs, not just Articles 39(b) and (c). In Minerva Mills v Union of India (1980), the Supreme Court struck down this expansion of Article 31C on the ground that it “destroys” the harmony between Parts III and IV of the Constitution, and therefore, the Basic Structure itself.
This is where things get unclear. Minerva Mills left open the question of whether the original Article 31C, with its scope limited to Articles 39(b) and (c), comes back into effect.
The position after Minerva Mills
Before the nine-judge Bench in Property Owners, the respondents argued that it was clear that the first part of Article 31C, which was upheld in Kesavananada Bharati continued to exist. They relied on the Court’s decision in Waman Rao v Union of India (1980) which followed Minerva Mills. There, a five-judge bench had noted:
Article 31C of the Constitution, as it stood prior to its amendment by Section 4 of the Constitution (42nd Amendment), Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati. Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure.
The respondents asserted that only Section 4 of the 42nd Amendment Act was invalidated, leaving the pre-amended Article 31C intact. They contended that the doctrine of revival automatically applied on Article 31C after the decision in Minerva Mills.
Senior Advocate Zal Andhyarujina, representing the petitioners, argued that after Minerva Mills, Article 31C ceased to exist altogether. He contended that the decision in Waman Rao must be understood in the context of the challenge in that case—that the unamended Article 31C was in breach of the basic features of the Constitution. The Bench upholding the unamended 31C did not mean that the provision was immune from challenge forever.
Further, the petitioners argued that the substituted Article 31C in the 42nd Amendment had already replaced its previous version—it came into force after it was passed by both the houses and received presidential assent. Therefore, once it was declared unconstitutional by the Supreme Court, only an explicit law made by Parliament could revive the provision that existed before the 42nd Amendment. In other words, the substituted provision obliterated its older version, and therefore, reinstatement could not be automatic.
Substitution, supercession, revival
In support of their argument that the unamended 31C continued to exist after Minerva Mills, the respondents relied on the doctrine of revival. The doctrine states that when a law is repealed by a second law, and a third law repeals the second law, the first law will be revived, unless the authority repealing it expresses an intention to the contrary.
The Supreme Court’s acceptance of the applicability of the doctrine of revival has been inconsistent over the years. In a 1952 decision in Ameer-un-Nissa Begum v Mahboob Begum, the Supreme Court seemed to have applied the doctrine of revival while noting: “Under the English Common Law, when a repealing enactment was repealed by another statute, the repeal of the second Act revived the former Act ‘ab initio’.”
However, later, in B.N. Tiwari v Union of India (1964), the Court noted that a striking down of a two-year carry forward rule on reservations in its judgement in T. Devadasan v Union of India (1963) did not restore a previous memorandum mandating a one-year carry forward rule.
Other cases that considered the effect of substitution have also adopted contrasting views. In Firm A. T. B. Mehtab Majid & Co. v State of Madras (1962), the Court held the substitution was a two-step process. First, the original provision ceases to exist. Second, the new provision takes the place of the original provision. Therefore, even if the Court strikes down the new provision, the original provision cannot come back into effect. In Property Owners, this line of reasoning anchored the petitioner’s argument that Article 31C ceased to exist after Minerva Mills.
However, in State of Maharashtra Etc v The Central Provinces Manganese Ore Co. (1976), the Court rejected the separation of the process of substitution. It held:
“We do not think that the word substitution necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps…”
Most importantly, in Central Provinces, the Court went on to say that “there could be no repeal if substitution failed” since the “two were a part and parcel of a single indivisible process and not bits of a disjointed operation.”
The ‘circumstances and context’ test
The closest the Supreme Court has come to establishing a ‘test’ in the context of substitution and revival is a formulation first presented in Indian Express Newspapers (Bombay) v Union of India (1984).
In Indian Express, the Court emphasised the need to look at the circumstances and context instead of narrowly construing whether the repeal of the previous law is by substitution or supersession. Here’s what it noted: “Legal effect… does not depend merely upon the use of words like ‘substitution’, or ‘supersession’. It depends upon the totality of circumstances and the context in which they are used.”
In 2015, the Supreme Court relied on this reasoning in Supreme Court Advocates-On-Record v Union of India (2015) (also known as the NJAC case) while striking down the 99th Amendment Act of 2014. This amendment created the National Judicial Appointments Commission to appoint judges to the Supreme Court.
Authoring the majority opinion, Justice J.S. Khehar noted that if repealing the Amendment Act didn’t revive the original method for appointment of judges, then there would be a “breakdown of the constitutional machinery.” The Court looked at three factors to decide if the original provision was meant to be restored in case the amendment was struck down: (a) the intention of Parliament; (b) the effect of the amendment in toto; and (c) the effect of striking down the amendment.
“When a judgement sets aside an amendment or a repeal by the legislature, it is but natural that the status quo ante would stand restored,” Chief Justice Kehar concluded.
While these precedents may hint towards the application of doctrine of revival to the unamended Article 31C, the petitioners in Property Owners have pointed out that the effect of Parliament itself repealing a constitutional provision (or a part of it) is different from a court declaring that a substituted provision is unconstitutional.
The effect of the court’s declaration, they argued, was that the provision was inoperative but remained in the statute books. It was up to Parliament to then delete it. In case of a substitution, it was up to Parliament to reinstate the substituted provision through legislative means. The substituted provision was not automatically revived.
Further, the petitioners in Property Owners submitted that the doctrine of revival could not be applied to constitutional provisions the way it did to statutes. The respondents, on their part, stated that the onus was on the petitioners to show why this was the case.
On the application of the NJAC judgement in this case, the petitioners contended that only Chief Justice Khehar dealt with the doctrine of revival.
Justice Kurian Joseph, in his opinion, pointed out that the cases cited in favour of non-revival were related to statutes and not constitutional amendments. He left open-ended the question of how this rule of repeal and revival will apply to constitutional amendments. Instead, he focused on the effect of not reviving the pre-amended provision. According to Justice Joseph, if the pre-amended version did not revive in NJAC, then the “result would be calamitous.”
Together, the position taken by the Court in Indian Express and NJAC seems to suggest that revival will be determined by the effect it has on the Constitution, and the wider context and circumstances of the substitution. If a “breakdown” or a “calamitous” result is anticipated, then the likely conclusion is that the original version of the provision would stand revived.
Will the absence of Article 31C create ‘constitutional chaos’?
In Property Owners, the respondents highlighted that by not reviving Article 31C, a constitutional vacuum would be created impacting several laws.
Petitioners argued that the absence of Article 31C will not create “constitutional chaos.” Andhyarujina noted that “if the law is correctly made towards the purpose of 39(b) and (c),…a challenge under [Articles] 14 and 19, would then never survive.” The petitioners also asserted that no less than a parliamentary enactment could revive the pre-amendment version of Article 31C.
The decision in Property Owners, then, could come down to the effect of revival or non-revival of the pre-amendment version of the provision. The Court will also have to decide whether the statutory rule of revival applies to judicial decisions. The nine judges have the opportunity to have the last word on this constitutional conundrum.
Neha Vinod is a research associate at the Centre for Law and Policy Research.