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Article 31D of the Indian Constitution: Saving of laws in respect of anti-national activities

Part: III
Shorthand Notes: Anti-national activities, 42A, Repealed by 43A

Article 31D was a controversial provision introduced into the Indian Constitution during the period of national emergency. Inserted by the Constitution (Forty-second Amendment) Act, 1976, it sought to provide a constitutional shield to laws enacted by the Parliament or State Legislatures aimed at preventing or prohibiting “anti-national activities” and “anti-national associations”.

This article effectively granted immunity to such laws from challenge on the grounds of violation of key fundamental rights enshrined in Articles 14 (Equality before law), 19 (Protection of certain rights regarding freedom of speech, etc.), and 31 (Right to property - which was later repealed from Part III). However, its existence was short-lived, as it was subsequently omitted by the Constitution (Forty-third Amendment) Act, 1977, following the end of the Emergency and a change in government.

Original Text

The original text of Article 31D as inserted by the 42nd Amendment Act, 1976:

31D. Saving of laws in respect of anti-national activities.

(1) Notwithstanding anything in Article 14, Article 19 or Article 31, no law providing for—

(a) the prevention or prohibition of any anti-national activity; or

(b) the formation of, or the prohibition of the formation of, any association or union which has for its object any anti-national activity,

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, such articles.

(2) In this article,—

(a) “anti-national activity”, in relation to an individual or association, means any action taken by such individual or association—

(i) which is intended, or which is likely, to bring about—

(A) the cession of a part of the territory of India or the secession of a part of the territory of India or which incites any individual or group of individuals to bring about such cession or secession;

(B) the disruption of the sovereignty and integrity of India;

(C) the disruption of the harmony between different religious, racial, language or regional groups or castes or communities;

(D) the overthrow by force the Government as by law established;

(E) the destruction of, or damage to, any property, or the disruption of any services essential to the community;

(F) the creation of internal disturbance or the disruption of public services;

(ii) which is intended, or which is likely, to threaten the security of the State;

(iii) which is intended, or which is likely, to cause fear or alarm to the public or to any section of the public; or

(iv) which is intended, or which is likely, to affect prejudicially the defence of India, the security of the State, public order, friendly relations with foreign States or incitement to any offence;

(b) “anti-national association” means an association or union—

(i) which has for its object any anti-national activity; or

(ii) which encourages or aids persons to undertake or engage in any anti-national activity; or

(iii) the members whereof undertake or engage in any anti-national activity.

Detailed Explanation

Article 31D was a significant, albeit temporary, insertion into the Constitution under Part III, dealing with Fundamental Rights. Its primary purpose was to immunize laws dealing with “anti-national activities” and “anti-national associations” from judicial review on the touchstone of Articles 14, 19, and 31.

Clause (1) of the article contained a non-obstante clause (“Notwithstanding anything in Article 14, Article 19 or Article 31”), clearly indicating that the provisions of this article would prevail over the mentioned fundamental rights. It stated that no law designed to prevent or prohibit anti-national activities, or to regulate/prohibit anti-national associations, would be deemed void for contravening Articles 14, 19, or 31. This effectively placed such laws beyond the scope of challenge based on equality, freedoms (speech, assembly, association, movement, residence, profession), and the right to property.

Clause (2) provided elaborate definitions for the terms “anti-national activity” and “anti-national association”. The definition of “anti-national activity” was extremely broad, encompassing a wide range of actions, from territorial claims (cession/secession) and disruption of sovereignty to creating disharmony, overthrowing the government by force, damaging property, disrupting essential services, causing internal disturbance, threatening state security, causing public fear or alarm, and prejudicing defence, public order, or foreign relations. This wide definition granted significant power to the state to define and classify activities as ‘anti-national’.

The definition of “anti-national association” was linked directly to the definition of “anti-national activity”. It included any association with the object of anti-national activity, or one that encouraged/aided such activities, or one whose members engaged in such activities.

The insertion of Article 31D was a direct consequence of the Emergency declared in 1975 and the perceived need by the then government to combat dissent and activities deemed detrimental to national security and integrity. It was widely criticized for severely curtailing fundamental rights and empowering the state with draconian powers, undermining the principles of rule of law and judicial review in matters concerning civil liberties.

Following the lifting of the Emergency and the electoral defeat of the government that had introduced the 42nd Amendment, the new government undertook constitutional reforms. The Constitution (Forty-third Amendment) Act, 1977, specifically aimed at restoring some of the fundamental rights curtailed by the 42nd Amendment. Article 31D was one of the provisions repealed by this amendment, indicating a legislative intent to roll back the expansive powers granted to the state under the pretext of preventing ‘anti-national’ actions.

Detailed Notes

  • Purpose: To save laws related to preventing/prohibiting “anti-national activities” and regulating/prohibiting “anti-national associations”.
  • Constitutional Amendment: Inserted by the Constitution (Forty-second Amendment) Act, 1976.
  • Placement: Placed under Part III of the Constitution (Fundamental Rights).
  • Effect on Fundamental Rights: Provided immunity to specified laws from challenge based on Articles 14, 19, and 31.
    • Article 14: Right to Equality.
    • Article 19: Various freedoms (speech, assembly, association, movement, residence, profession).
    • Article 31: Right to Property (though Article 31 in Part III was later repealed by the 44th Amendment, it was present when 31D was inserted).
  • Non-Obstante Clause: Included “Notwithstanding anything in Article 14, Article 19 or Article 31” to ensure its overriding effect.
  • Definitions:
    • “Anti-national activity”: Broadly defined, including actions intended or likely to cause:
      • Cession/secession of Indian territory.
      • Disruption of sovereignty/integrity of India.
      • Disruption of harmony between groups (religious, racial, language, regional, caste, community).
      • Overthrow of government by force.
      • Damage to property or disruption of essential services.
      • Creation of internal disturbance or disruption of public services.
      • Threat to State security.
      • Fear or alarm to the public.
      • Prejudice to defence, security, public order, foreign relations, or incitement to offence.
    • “Anti-national association”: Defined as an association with an anti-national object, or one that encourages/aids anti-national activity, or whose members engage in such activity.
  • Historical Context: Introduced during the 1975-1977 National Emergency.
  • Criticism: Heavily criticized for being draconian, vague, and infringing upon fundamental rights and judicial review.
  • Repeal: Omitted by the Constitution (Forty-third Amendment) Act, 1977.
  • Significance: Represents a period where fundamental rights were significantly curtailed under the pretext of national security, and highlights the importance of judicial review in protecting civil liberties.

Additional Comments

  • Article 31D, along with other provisions introduced by the 42nd Amendment, is often cited as an example of how constitutional amendments can potentially undermine the basic structure of the Constitution, particularly the principles of democracy, rule of law, and fundamental rights.
  • The repeal of Article 31D by the 43rd Amendment demonstrated a political will to reverse some of the key changes made during the Emergency period, aiming to restore a greater balance between state power and individual liberties.
  • Although repealed, the concept of ‘anti-national’ activities and the state’s power to deal with them continues to be a subject of legal and political debate in India, albeit under different legal frameworks like the Unlawful Activities (Prevention) Act (UAPA), which must still generally conform to fundamental rights.

Summary

Article 31D, inserted by the 42nd Amendment in 1976 during the Emergency, aimed to protect laws related to “anti-national activities” and “anti-national associations” from being challenged on the grounds of violating fundamental rights guaranteed by Articles 14, 19, and 31. It provided broad definitions for these terms, granting wide powers to the state. Heavily criticized for curbing civil liberties, this article was omitted shortly thereafter by the 43rd Amendment Act in 1977, reflecting a move to restore fundamental rights curtailed during the Emergency period. Its brief existence highlights a controversial phase in India’s constitutional history concerning the balance between state security and individual freedoms.
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