Status of Article 31A

Laws providing for acquisition of estates, takeover of corporation, etc. have been saved by Article 31A against challenge on the ground of alleged infringement of Article 14 or Article 19.

By Article 31B, acts and regulations specified in the Ninth Schedule have been saved against challenge on the ground of inconsistency with taking away or abridging any fundamental right. However, after the decision in Keshavananda’s case, inclusion in the Ninth Schedule of any law is open to challenge on the ground of damage to the basic structure of the Constitution.Thus, the court can still consider whether a particular law purporting to implement any directive principle is valid if it finds that the nexus between that law and the Directive Principle relied on is illusory or colourable or whether it be direct and reasonable nexus with the directive principle in Article 39(b) or Article 39(c).

The agrarian reform legislation is generally considered synonymous with ceiling legislation. But “a law providing for agrarian reform need not provide for land ceiling.” It includes host of other measures.

It includes land tenure systems in the areas under Permanent Settlement and under Ryotwari settlement in South India. Excess land includes waste land, forest land, land for pasture or sites of buildings occupied by cultivators of land.

Article 31A (2)(b) also provides constitutional protection to tenure holders, i.e., Bataidars or Bargadars or sharecroppers. Thus, Article 31A covers most of the tenure holdings including right in all types of land, viz. waste land, forest land, land for pasture, sites of buildings occupied by cultivators, agricultural labourers and even village artisans.

The above rights have found place in the new Land Acquisition Act titled ‘The Right to fair Compensation and Transparency in Land Acquisition. Rehabilitation and Resettlement Act, 2013. The compensation is now about four times the market value for rural areas and twice the market value in urban areas. It shows that Parliament has tried to undo injustice so far done to the farmers or landowners in the name of land acquisition for public purpose.

In Shantilal Mangaldas cases, the Supreme Court held that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the Legislature for determination of compensation was not justiciable. However, it should not be illusory. In Banks’ Nationalisation case, the Supreme Court adopted earlier line and held that the bank nationalization law was liable to be struck down as it failed to provide to the expropriated banks compensation determined according to the relevant principles. The principle specified by law for determining compensation was beyond the pale of challenge only if it was relevant for the determination of compensation. Time will only tell what stand will be taken by the Apex Court whereas under the new Land Acquisition Act, 2013, the amount of compensation to be determined and paid is two to four times of the market value of the land or property to be acquired for the public purpose along with resettlement and rehabilitation is cases of land acquisition for schemes involving 100 acres or more lands. Calcutta High Court also thwarted the attempt by the group of land owners to shall the land reform implementation by the Left Front Government by holding that the State can give retrospective effect to such legislations to give effect to Articles 39(b) and (c).

However, executive orders are not sufficient to deprive of a person of his/her property. It has been held that a law which aims at elevating the statutes of tenants, (sharecroppers) by conferring on them ‘bhoomidhari’ rights (full ownership rights) cannot be said to be wanting in public purpose. Similarly, there is a public purpose where the property is taken over to keep labour going on and contended and to maintain the supply of essential commodities. Such was the commitment of the Supreme Court towards ceiling laws or land reform legislations. Due to patronage of the Supreme Court, the laws kept in the Ninth Schedule enjoyed immunity and the executive had free hand to undertake implementation of land reform measures like distribution of surplus vested land among the landless and marginal farmers in India and recording of sharecropper (Bargadars in West Bengal) who are poorest among poor in India and require maximum attention or patronage from the State. They also constitute the majority of persons below poverty line. Democracy and republic are meaningless to them unless they can have two meals a day. They can fight hunger if they are provided land to work on it. Otherwise, they will remain unemployed. Even 100 or 150 day work to them under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 will not be effective to them for the rest of the year. Secondly, in a corrupt system like ours, the unvocal or silent majority of landless poor or land poor cannot secure their due rights under MNREGA or the Food Security Act. The only protection to them against hunger is to equip them with land or right of cultivation as sharecropper, which can only be implemented if arable land is vested in government or acquired by government through ceiling or other land reform legislations. The Supreme Court was well appreciating their predicament but after the Keshavananda Bharati case, the Supreme Court has started scrutinising the laws being put under the Ninth Schedule of the Constitution whether these laws are just and reasonable and fulfill the object or purpose of the legislation. In Ratnagiri Engineering Pvt. Ltd. the Supreme Court has gone to the extent of declaring the order of Government of West Bengal in said for not allowing the conversion of land from the industrial classification to the real estate purpose. The justification was that lands were held for very long time with the petitioner and were lying unutilised. If this is allowed unfettered, the employment through industries will not be generated, which is mainstay to provide livelihood to the urban poor. I am sure that Supreme Court will reconsider its decisions and will reconsider its earlier stand specially when the State Government has passed the law invalidating the judgement of Supreme Court. In the present era of globalisation, the poorest of the poor in India are left with only ray hope in the Supreme Court. The Supreme Court cannot appreciate that its small leeway to the landed rich or capitalists is implemented in a big way by the pro-rich executive and its bureaucratic instrumentality and police, whereas its most favourable orders in the interest of the land poor or urban poor are treated with indifference by the executing agency of the state. The Supreme Court, being the part of the State, has onerous responsibility and a sacrosanct duty to protect the interest of the poor, who form the backbone of the Republic of India. Their interest is to be guarded against the flurry of pleadings by great legal experts and battery of very important advocates, who can only be hired to argue before the Supreme Court by the haves or rich clients. It is higher courts themselves, when they are elevated to the seat of justice by the State.

Justice Krishna Iyer has summarized the line of demarcation between the private right vis-à-vis social welfare as below:

“If legislation does go that far, it shakes the democratic foundation and must suffer the death penalty. But to permit the Kesvananda Bharati’s ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of Parliamentary function.”