In the fourth essay in an eight-part series on The Right to Property, we look at how our early legislators subverted the spirit of the constitution. Earlier essays: One, Two, Three.
The urgency and inevitability of land reform in India was the single most important agenda while formulating the provision on eminent domain power of the state. In my third essay in this series, I detailed the dilemma before the members of the constituent assembly. It was clear through the various debates, that (1) many members did not want zamindari-abolition-related land reforms to be included within the purview of the eminent domain clause, and (2) they did not want the question of compensation to be justiciable in courts. Though both these points of view were considered, and concessions were made, they did not eventually prevail completely while drafting the original Article 31. These were nevertheless the dominant points of view within the constituent assembly and the first post-colonial government.
This difference in opinion was not limited to debates in abstract to frame constitutional provisions. The government was on the cusp of the post-constitutional policy agenda as the constitution was being drafted and adopted. But the conflict did not disappear, as members began transitioning to a different role. Even before the constitution was adopted in January 1950, legislation abolishing zamindari was challenged as unconstitutional. And both the provincial and the union government was facing a lot of litigation by zamindars.
Sometimes all these different worlds and roles collided. For instance, Maharaja Sir Kameshwar Singh (Zamindar of Darbanga) was a member of the Constituent Assembly of India, and also one of the most vocal litigants challenging the constitutionality of the land reform legislation. Simultaneously, other members of the Constituent Assembly were on the opposing side. Nehru was the Prime Minister leading the charge against zamindari, and C Rajagopalachari was the Governor General who actually assented to the provincial land reform laws. This new conflict was not played out in parliament, but in a different venue before judges.
So the questions debated within the assembly now became the questions on which the court determined actual constitutionality of legislation. The gist of Article 31 was that the government may only take property by enacting legislation, for a valid public purpose, by providing compensation. Clauses (4-6) of Article 31 provided exceptions to this main provision, mainly to allow for zamindari abolition. The government felt, that with the inclusion of these exceptions, land reform legislation passed with the proper procedure would be immune to constitutional challenge. This was no coincidence as during the debates, the Bihar, UP, and MP laws were bring formulated, and some were even under challenge. And the different courts in India had different points of view with respect to these laws.
The most notable of these were the laws passed in Bihar. The Bihar Land Reforms Act, 1950 was challenged on the following grounds: (1) the Bihar Legislature had no competence to pass it; (2) it violated Article 31(1); (3) acquisition was not for a public purpose and the provision for compensation was illusory; (4) it violated Article 19(1)(f); (5) some of its provisions were invalid on the ground of delegation of legislative powers; (6) it was a fraud on the Constitution; and (7) it was unconstitutional as it contravened Article 14 of the Constitution.
The Patna High court only upheld the last challenge on Article 14. The court held that the land acquisition under the Bihar law was for a public purpose, and was saved by the exceptions provided by Article 31. The Bihar law assessed the compensation payable to the owner of property acquired at 20 times the assessment for a poor (small holdings) owner and at 3 times the assessment for a rich (large holdings) owner. In providing this graduated scale for compensation based on the size of land holdings, the court held that the law set up an unreasonably discriminatory classification. While the issue of compensation relating to Article 31(2) was saved by Article 31(4); nothing in Article 31(4) could apply to equal protection provided under Article 14. And therefore the Act was unconstitutional as it contravened Article 14 of the constitution.
However, not all Courts ruled like the Patna High Court. In Surya Pal Singh v State of UP (AIR 1951 All 674) the Allahabad High Court upheld the validity of the United Province land reform legislation. Similarly, the Nagpur High Court held the Madhya Pradesh law constitutional. These decisions, along with Bihar, were challenged and pending appeal to the Supreme Court.
It should be noted at this point that the High Courts, both Patna and Allahabad, had a deferential view with respect to public purpose. This implies that while evaluating legislation the court assumes that principles on which the legislature was enacted must conform to public purpose. This deference to the legislature on public purpose initially by the High Courts, has been the dominant jurisprudence with respect to the right to property. Specially in the case of land reform, the question of public purpose was never seriously considered to formulate a doctrine on cases which would fall outside the purview of the public purpose requirement. The matter usually came down to the question of compensation.
The Patna High court therefore deferred on the question of public purpose, and also did not challenge the compensation schedule under Article 31 (as was feared by the constituent assembly). To that extent, the plan of the assembly to immunize the land reform laws was successful. The Newly minted Article 31 was sufficiently diluted to allow for most of the land reform agenda.
However, the constituent assembly had not considered the question of discriminatory compensation, and did not make any provision for such discriminatory scheme. Therefore, the Courts had to read Article 14 as it was intended.
The First Amendment
While the challenge was pending in the Supreme Court, the Constituent Assembly, which, at the time, was the Provisional Parliament (pending elections), wanted to amend the constitution to overcome these legal troubles. Members of the Provisional Parliament in 1951 were members of the Constituent Assembly that drafted the constitution. So this was the same body that debated and adopted the constitution. However, the shift in the role from constituent assembly to a provisional post-constitutional legislature also shifted the perspective on the problems of the government.
The First Amendment attempted to remove many difficulties that the government faced due to the constraints imposed on fundamental rights. Pertinent to the right to property was the addition of Articles 31A and 31B.
Article 31A was almost a direct response to the Patna High Court judgement in Kameshwar Singh. The Provisional Parliament, which during its role as the constituent assembly, had intended that Articles 31(4-6) would provide sufficient immunity to the land reform agenda of the government, realized that it may not be adequate in light of discriminatory compensation. So Article 31A was intended to make any taking immune from challenges on other grounds. It listed certain types of acquisition (broader than the original land reform agenda) and stated that they shall not “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 or Article 19.”
Article 31B on the other hand attempted to solve the problem that came up during the constituent assembly debates. Nehru and Pant had felt strongly that the question of compensation should be called into question in courts. Article 31B was a clever legal innovation to solve this issue. The First Amendment created a list of preferred legislation called the Ninth Schedule. Article 31B stated that laws listed in the Ninth Schedule could not become void on the ground that they violated any provision in Part III (i.e. Fundamental Rights). The government proposed to protect land redistribution legislation by including it in the Ninth Schedule. However, it should be noted that this was a far broader protection than what Nehru had originally argued for before the assembly.
The Ninth Schedule protected laws from judicial review for any violation of fundamental rights, not just the issue of compensation. And second, 31B did not limit this protection to land reform legislation, but left it open to all legislation. The actual procedure for Ninth Schedule protection was to pass a constitutional amendment listing the legislation that was to be protected. There was no limit on the number of laws that could be added through a single constitutional amendment. and therefore creating a way to circumvent judicial review for legislation declared invalid by the Courts to become valid retrospectively. The government proposed to include 13 laws relating to land reform in the Ninth Schedule.
Nehru justified this course of action during debates in the Parliament. He described this tension as one between the policies of the state, “which represent dynamic movement towards a certain objective,” and Fundamental Rights, which “represent something static, to preserve certain rights.” He also argued for the inclusion of the Ninth Schedule immunity. “A schedule attached of a number of Acts passed by State Legislatures, some of which have been challenged or might be challenged and we thought it best to save them from long delays and these difficulties, so that this process of change which has been initiated by the States should go ahead. . . . . lawyers represent precedent and tradition and not change, not a dynamic process. Above all the lawyer represents litigation.” (Nehru’s speech in Parliamentary Debate on the Constitution (First Amendment) Bill, 1951).
A Select Committee debated this aspect of the First Amendment. G Durgabhai, HN Kunzru, SP Mookerjee, Hukum Singh, KT Shah and Naziruddin Ahmed wrote Minutes of Dissent to the Select Committee Report for the Constitution (First Amendment) Bill. The dissent noted that there are many references to litigation in other states, but no clear detrimental decision other than the Patna High Court decision. The Committee also wanted more stringent provisions for inclusion of laws in the Ninth Schedule, and were worried that the Ninth Schedule would be abused by Parliament. However, none of these suggestions were heeded. The First Amendment passed in Parliament with a majority of 228 to 20.
The Statement of Objects and Reasons forming part of the First Amendment explicitly stated, “The validity of agrarian reforms … formed the subject-matter of dilatory litigation, as a result of which the implementation of these important measures [land reform], affecting large numbers of people, has been held up. … The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that arise.”
The First Amendment through the Ninth Schedule, placed within the Constitution a list of laws to supersede the Constitution. Article 31B stated that laws to be listed in the Ninth Schedule could not become void on the ground that they violated any Fundamental Right. The “few minor amendments to other articles in order to remove difficulties” essentially defeated the purpose of the constitutional constraint.
In 1951, the First Amendment was challenged in the Supreme Court in Shankari Prasad Singh v Union of India (AIR 1951 SC 458). The Court held that Parliament was empowered to amend the Constitution without any restrictions as long as it followed the procedure laid down for amendment in the Constitution.
The Power to Remove Difficulties
The episode of the Provisional Parliament enacting the First Amendment deserves detailed analysis that has been overlooked by historians and legal scholars. First, it shows that there was a severe failure in terms of post-constitutional credible commitment. The Provisional Parliament was a little too eager to amend the takings provision and dilute the protection to the right to property. Political exigencies trumped constitutional principles. While this is expected to some extent by all legislatures, it is a shame that the provisional parliament, which was essentially the same individuals as constituent assembly in a different role, made this hasty move. It also goes to show that incentives matter. The members of the provisional parliament now faced different incentives in the post-constitutional world, where they had to contest elections. Populism must necessarily trump principle.
Second, it seems that the members of the government never quite intended to treat the constitutional document as sacred. Instead of a document that constraints the legislature and the executive from arbitrary actions, they simply thought of the constitution as a broad set of principles, that could be tweaked or amended when inconvenient. What Nehru’s government wanted was not a constitution, but a convenient constitution, one that lacks constraints, and is therefore not really a constitution.
Finally, the creation of the Ninth Schedule is one of the most shameful and careless provisions ever written in constitutional history. It gave enormous power to the government to essentially circumvent fundamental rights, as well as separation of powers, by excluding judicial review for legislation infringing on individual rights. With this single move, the Indian framers showed that they were democrats, but at best reluctant constitutionalists. Constitutional principles could be, and would be, readily sacrificed for political convenience. They couched it in a lovely and innocent legal phrasing, “the power to remove difficulties” when it fact it was ominous in its consequences for individual liberty.
Also listen to: Imagine No Possessions, Episode 26 of The Seen and the Unseen, in which Shruti Rajagopalan talks to host Amit Varma about The Right to Property.