In the present study this chapter is of utmost importance as it is the recent case relating to the confrontation of power between the Supreme Court and the Parliament. The judgement in this case put an end to the politico-legal controversy by holding the Parliament’s amending power subject to Judicial Review in line with
Kesavananda Bharti’s decision that the violation of Doctrine of Basic Structure will never to tolerated.
The Nine-Judge bench headed by Y.K. Subharwal, C.J.I., after a reference being made to it by a three-judge bench has unanimously pronounced upon the constitutional validity of the Ninth-Schedule laws that, in the post-1973 era, they are open to attack for causing the infraction which affects the basic structure of the Constitution. Such laws will not get the protection of the Ninth Schedule for escaping the judicial scrutiny and are open to challenge in the courts of law.
In the present chapter, the researcher has analysed the case by stating the facts of the case, the issues involved, the contentions of the petitioner and respondents and the concluding decision of the Apex Court which is most important. The researcher has placed the development of law that has been considered by the Supreme Court. The researcher’s conclusion is given at the end of chapter.
I. R. Coelho Vs. State of Tamil Nadu
Appellants : I.R. Coelho (Dead) by LRS. VS Respondent : State of Tamil Nadu
Quorum : Y.K. Sabharwal, CJI., Ashok Bhan, Arijit Pasayat,
B.B. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain, JJ.
It is an unanimous judgement of the nine judge bench of the Supreme Court of India, wherein the court is confronted with a very important yet not very easy task of determining the nature and character of the protection provided by Article 31B of the Constitution of India to the laws added to the Ninth Schedule by amendments made after 24th April 1973, the date on which the judgement was pronounced in the famous Kesavananda Bharti’s case propounding the doctrine of Basic structure of the Constitution to test the validity of constitutional amendments.
Facts of the Case:- The Facts of the case are as follows.
The order of reference was made more than seven years ago by a Constitution Bench of Five Judges is reported in
I.R. Cohelo (Dead) by LRs V. State of Tamil Nadu . The Gudalur Janmann Estates (Abolition and Conversion into Ryotwari), Act, 1969 (the Janman Act), in so far as it vested forest lands in the Janman estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd and Anr. V. State of Tamil Nadu because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-Fourth Amendment) Act, the Janman Act, in its entirety was inserted in the Ninth Schedule. By the Constitution (Sixty – Sixth Amendment) Act, the West Bengal Land Holding Revenue, Act. 1979, in its entirety, was inserted in the Ninth Schedule. These insertions were the subject matter of challenge before a Five Judges Bench. It rests on two counts (1) Judicial review is a basic feature of the Constitution; to insert in the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review, is to destroy or damage the basic structure of the Constitution. (2) To insert in the Ninth Schedule after 24.4.1973, an Act which, or part of which, has been struck down as being violative of the fundamental rights conferred by Part III of the Constitution is to destroy or damage its basic structure. These insertions were the subject matter of challenge before a Five Judge Bench. The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule.
Five Judge Constitution Bench
The Constitution Bench observed that, according to Waman Rao and Ors. V. Union of India and Ors. amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the Constituent Power of Parliament since they damage the basic or essential features of the Constitution or its basic structure. The Decision in Minerva Mills Ltd. & Ors. V. Union of India & Ors. and Maharao Sahib Shri Bhim Singhji V. Union of India & Ors. were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which or a part of which, is or has been found by Supreme Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine judges. This is how the matters have been placed before Supreme Court’s nine judge bench.
Question before Supreme Court
Whether on and after 24th April, 1973 when Basic Structures Doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them in the Ninth Schedule and, if so, what is its effect on the power of judicial review of the court.
Development of the law considered by the Supreme Court.
The researcher thinks it proper to place the developments that have taken place and considered by the Supreme Court in the present case.
The Constitution was framed after an in depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State’s welfare obligations in Part-IV. The Constitutions of various countries including that of United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32.
The High Court of Patna in Kameshwar V. State of Bihar held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this state, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after Eighth Schedule and new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution.
Art. 31A aims at saving of laws providing for acquisition by the State of certain kind of property from the operation of Art. 13 read with other relevant articles in Part III while Art. 31B purports to validate certain specified Acts and Regulations already passed. Both these articles are discussed in detailed in Chapter V .
The Constitutional Validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo Vs. Union of India and State of Bihar .
The main object of the amendment was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad that Article 13(2) does not affect amendments to the Constitution made under Article 368 because such amendments are made in the exercise of constituent power.
The Constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh V. State of Rajasthan the law declared in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were added to the Constitution realizing that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that if pith and substance test is to apply to the amendment made, it would be clear that the Parliament is seeking to amend fundamental right solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy. The Court further noted that the impugned act does not purport to change the provisions of Article 226.
I.C. Golak Nath & Ors. V. State of Punjab & Anr. a bench of 11 judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh (Supra). By majority of six to five, these decisions were overruled. It was held that the constitutional amendment is ‘law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. It was declared that the Parliament will have no power from the date of the decision (27th February, 1967) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.
Golak Nath’s case, the Constitution (24th Amendment), Act 1971, the Constitution (25th Amendment) Act, Act. 1971, the constitution (26th Amendment) Act, 1971 and the Constitution (29th Amendment) Act, 1972 were passed.
By Constitution (24th Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4):
“13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”.
The Constitution (25th Amendment) Act, 1971 amended the provision of Article 31 dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law need to be given and this amount could not be challenged in court on the ground that it was not adequate or in cash. Further, after Article 31B of the Constitution, Article 31C was inserted.
Art. 31C provides for saving of laws giving effect to certain directive principles in Part IV against Arts. 14 and 19. Art. 31C is discussed in detailed in Chapter V .
The Constitution (26th Amendment) Act 1971 omitted from the Constitution, Articles 291 (Privy Purses) and Article 362 (rights and privileges of Rulers of Indian States) and inserted Article 363A after Article 363 providing that recognition granted to Rulers of Indian States shall cease and privy purses be abolished.
The Constitution (29th Amendment) Act, 1972 amendment the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65 Kerala Land Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of 1971).
These amendments were challenged in Kesavananda Bharti’s case . The decision in
Kesavananda Bharti’s case was rendered on 24th April, 1973 by a 13 Judges Bench and by majority of seven to six Golak Nath’s case was overruled. The majority opinion held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the first part of Article 31C was also held to be valid. However, the second part of Article 31C that “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” was declared unconstitutional. The Constitution 29th Amendment was held valid. The validity of the 26th Amendment was left to be determined by a Constitution Bench of five judges.
The majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that Article 368 has implied limitations.
Another important development took place in June, 1975 when the Allahabad High Court set aside the election of the then Prime Minster Mrs. Indira Gandhi to the first Lok Sabha on the ground of alleged corrupt practices. Pending appeal against the High Court judgement before the Supreme Court, the Constitution (39th Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article 329A.
Art. 329A Cl. (4) and (5) states that election before Thirty Ninth amendment Act, 1975 shall continue to be valid in all respects irrespective of any findings and it shall not deemed to be void and disposal of pending appeal shall be according to the amended sections.
In Smt. Indira Nehru Gandhi V. Raj Narain the aforesaid clauses were struck down by holding them to be violative of the basic structure of the Constitution.
During the emergency from 26th June, 1975 to March, 1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by virtue of Article 359.
Article 368 was amended by the constitution (42nd Amendment) Act, 1976. It, inserted in Article 368, clauses (4) and (5).
Art. 368 Cl(4) and (5) provides that amendment under this article shall not be called in question in any court on any ground and it declares that there shall be no limitation on the power of Parliament to amend the Constitution.
After the end of internal emergency the Constitution (44th Amendment) Act, 1978 was passed. Section 2, interalia, omitted sub-clauses(f) of Article 19 with the result the right to property ceased to be a fundamental right and it became only legal right by insertion of Article 300A in the Constitution. The Constitution (Forty Fourth Amendment) Act amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended.
During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur V. Shivkant Shukla . The fundamental rights received enlarged judicial interpretation in the Post Emergency period. Article 21 was given strict textual meaning in
A.K. Gopalan V. The State of Madras . In
Maneka Gandhi a Bench of Seven judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights.
In Minerva Mills case , the Court struck down clauses (4) and (5) and Article 368 finding that they violated the basic structure of the Constitution.
The next decision to be noted is that of Waman Rao . The developments that had taken place post-Kesavananda Bharti’s case have been noticed in this decision.
In Bhim Singhiji , challenge was made to the validity of Urban Land (Ceiling and Regulation), Act, 1976 which had been inserted in the Ninth Schedule after
Kesavananda Bharti’s case. The Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the ceiling limit was violative of Articles 14 and 19(1)(f) of Part III.
It was held in L. Chandra Kumar V. Union of India & Ors. that power of judicial review is an integral and essential feature of the constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Constitution of India.
Constitutional Amendment of Ninth Schedule
It would be convenient to note at one place, various constitutional amendments which added / omitted various Acts /provisions in Ninth Schedule from Item No. 1 to 284. It is as under :
Acts / Provisions Added
1st Amendment (1951)
4th Amendment (1955)
17th Amendment (1964)
29th Amendment (1971)
34th Amendment (1974)
39th Amendment (1975)
40th Amendment (1976)
47th Amendment (1984)
66th Amendment (1990)
76th Amendment (1994)
78th Amendment (1995)
Omissions:- In 1978 item 92 (Internal Security Act); item 130 (Prevention of Publication of Objectionable Matter), and item 87 (The Representation of People Act) were repealed by the Parliament by the 44th Amendment Act, 1978. Many additions are unrelated to land reforms.
The significance of jurisdiction conferred on the Supreme Court by Article 32 is descried by Dr. B. R. Ambedkar as follows :
“most important Article without which this Constitution would be nullity”
The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no act of Parliament can abrogate it or take it away.
In S.R. Bommai & Ors. V. Union of India & Ors. it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation.
The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore necessary that while constructing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.
The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principle of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers.
In Minerva Mills Justice Chandrachud observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. The goals set out in Part IV have therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Part III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy the essential element of the basic structure of the Constitution.
The observations of Justice Bhagwati in Minerva Mills case show how clause (4) of Article 368 would result in enlarging the amending power of the Parliament contrary to dictum in Kesavananda Bharti’s case. The learned judge said : “So long as clause (4) stands, an amendment of the Constitution though unconstitutional and voids as transgressing the limitation on the amending power of Parliament as laid down in Kesavanda Bharti’s case would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review.
In Minerva Mills Justice Chandrachud said :
“Section 4 of the Constitution (42nd Amendment) Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.”
The distinction is drawn by H. M. Seervai between making of a Constitution by a Constituent Assembly which was not subject to restraints by any external authority as a plenary law making power and a power to amend the Constitution, a derivative power derived from the Constitution and subject to the limitations imposed by the Constitution. No provision of the Constitution framed in exercise of plenary law making power can be ultra vires because there is no touch-stone outside the Constitution by which the validity of provision of the Constitution can be adjudged. The power for amendment cannot be equated with such power of framing the Constitution. The amending power has to be within the Constitution and not outside it.
Chief Justice Chandrachud said in Indira Gandhi’s case that for determining whether a particular feature of the Constitution is part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.
In early years, the scope of the guarantee provided by Fundamental Rights was considered to be very narrow. Over the years, the jurisprudence and development around fundamental rights has made it clear that they are not limited, narrow rights but provide a broad check against the violations or excess by the State authorities.
In the State of Bombay V. Bhanji Munji & Anr. relying on the ratio of Gopalan it was held that Article 31 was independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper Vs. Union of India (popularly known as Bank Nationalization case). The focus of the Court was on the actual impairment caused by the law rather than the literal validity of the law. The Court examined the relation between Article 19(1)(f) and Article 13 and held that they were not mutually exclusive. The ratio of Gopalan was not approved.
The Court observed in
Maneka Gandhi’s case that “if a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred Article 19 which may be applicable in a given, situation ex. hypothesi it must also be liable to be tested with reference to Article 14.
It is evident that it can no longer be contended that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by state authorities.
The Court must interpret the Constitution is a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution in the early decision of the Supreme Court in A.K. Gopalan V. State of Madras .
The Supreme Court refused to infuse the procedure with principles of natural justice. The Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ‘life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity.
The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharti’s case by the majority. Later, it was reiterated in Indira Gandhi’s case.
Contentions of the Petitioners
In the light of aforesaid developments, the main thrust of the argument of the petitioners is that post-1973, it is impermissible to immunize Ninth Schedule laws from judicial review by making Part III inapplicable to such laws. Such a course, it is contended, is incompatible with the doctrine of basic structure. The existence of power to confer absolute immunity is not compatible with the implied limitation upon the power of amendment in Article 368, is the thrust of the contention.
The contention proceeds that since fundamental rights form a part of basic structure and thus laws inserted into Ninth Schedule when tested on the ground of basic structures shall have to be examined on the fundamental rights test.
The key question, however is whether the basic structure test would include judicial review of Ninth Schedule laws on the touchstone of fundamental rights. According to the petitioners, the consequence of the evolution of the principles of basic structure is that, Ninth Schedule laws cannot be conferred with constitutional immunity of the kind created by Article 31B. Assuming that such immunity can be conferred, its constitutional validity would have to be adjudged by applying the direct impact and effect test which means the form of an amendment is not relevant, its consequence would be determinative factor.
The power to make any law at will that transgresses Part III in its entirety would be incompatible with the basic structure of the Constitution. The petitioner contended, to emasculate Art. 32 in entirety if the rights themselves (such as Art. 14) are put out of the way, the remedy under Art. 32 would be meaningless.
In fact, by the exclusion of Part, Article 32 would stand abrogated qua the Ninth Schedule laws. The contention is that the abrogation of Article 32 would be per se violative of the basic structure. The constituent power under Article 368 does not include judicial power and that the power to establish judicial remedies which is compatible with the basic structure is qualitatively different from the power to exercise judicial power. The impact is that on the one hand the power under Article 32 is removed and, on the other hand, the said power is exercised by the legislature itself by declaring in a way, Ninth Schedule laws as valid.
Contention of Respondent
On the other hand, the contention urged on behalf of the respondents is that the validity of Ninth Schedule legislations can only be tested on the touch-stone of basic structure doctrine as decided by majority in Kesavananda Bharti’s case which also upheld the Constitution 29th Amendment unconditionally and thus there can be no question of judicial review of such legislations on the ground of violation of fundamental rights chapter. The fundamental rights chapter, it is contended, stands excluded as a result of protective umbrella provided by Article 31B, and, therefore, the challenge can only be based on the ground of basic structure doctrine. Legislation can further be tested for (i) lack of legislative competence and (ii) violation of other constitutional provisions. This would also show, that there is no exclusion of judicial review and consequently, there is no violation of the basic structure doctrine.
Further, it was contended that the constitutional device for retrospective validation of laws was well known and it is legally permissible to pass laws to remove the basis of the decisions of the Court and consequently, nullify the effect of the decision. It was submitted that Article 31B and the amendments by which legislations are added to the Ninth Schedule form such a device, which cure the defect of legislation.
The respondents contend that the point in issue is covered by the majority judgment in Kesavananda Bharti’s case. According to that view, Article 31B or the Ninth Schedule is a permissible constitutional device to provide a protective umbrella to Ninth Schedule. The distinction is sought to be drawn between the necessity for the judiciary in a written constitution and judicial review by the judiciary. Whereas the existence of judiciary is part of the basic framework of the Constitution and cannot be abrogated in exercise of constituent power of the Parliament under Article 368, the power of judicial review of the judiciary can be curtailed over certain matters. The contention is that there is no judicial review in absolute terms and Article 31B only restricts that judicial review power. It is contended that after the doctrine of basic structure which came to be established in Kesavananda Bharti’s case, it is only that kind of judicial review whose elimination would destroy or damage the basic structure of the Constitution that is beyond the constituent power.
Giving immunity of Part III to the Ninth Schedule laws from judicial review, does not abrogate judicial review from the Constitution. Judicial review remains with the court but with its exclusion over Ninth Schedule laws to which Part III ceases to apply.
It was further contended that Justice Khanna in Kesavananda Bharti’s case held that subject to the retention of the basic structure or framework of the Constitution, this power of amendment is plenary and will include within itself the power to add, alter or repeal various articles including taking away or abridging fundamental rights and that the power to amend the fundamental rights cannot be denied by describing them as natural rights. The contention is that the majority in Kesavananda Bharti’s case held that there is no embargo with regard to amending any of the fundamental rights in Part III subject to basic structure theory and therefore the petitioners are not right in the contention that in the said case the majority held that the fundamental rights form part of the basic structure and cannot be amended. The further contention is that if Fundamental Rights can be amended, which is the effect of Kesvananda Bharti’s case overruling Golak Nath’s case, then fundamentals rights cannot be said to be the part of the basic structure, unless the nature of the amendment is such which destroys the nature and character of the Constitution.
It is contended that the test for judicially reviewing the Ninth Schedule Laws cannot be on the basis of mere infringement of the rights guaranteed under Part III of the Constitution. The correct test is whether such laws damage or destroy that part of fundamental rights which form part of the basic structure. Thus, it is contended that judicial review of Ninth Schedule laws is not completely barred. The only area where such laws get immunity is from the infraction of rights guaranteed under Part III of the Constitution.
The Court observed the following on the issue of validity of Art. 31B and the nature and extent of immunity provided by Art. 31B:
It is contended that the power to pack up laws in the Ninth Schedule in absence of any indicia in Article 31B has been abused and that abuse is likely to continue.
The Court said that, the validity of Article 31B is not in question before them. Further, mere possibility of abuse is not a relevant test to determine the validity of a provision. We, therefore, cannot make any assumption about the alleged abuse of the power.
There was some controversy on the question whether validity of Article 31B was under challenge or not in Kesavananda Bharti. The petitioners produced before the Court copy of the Civil Misc. Petition which was filed in Kesavananda Bharti, by which the relief originally asked for were modified. It appears that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution. The validity of the 1st Amendment was not questioned.
The Court said that, they have examined various opinions in Kesavananda Bharti’s case but are unable to accept the contention that Article 31B read with the Ninth Schedule was held to be constitutionally valid in that case. The validity thereof was not in question. The constitutional amendments under challenge in Kesavananda Bharti’s case were examined assuming the constitutional validity of Article 31B. Its validity was not in issue in that case. Be that as it may, we will assume Article 31B as valid. The validity of the 1st Amendment inserting in the Constitution, Article 31B is not in challenge before us.
The real crux of the problem is as to the extent and nature of immunity that Article 31B can validly provide.
The six Judges which held 29th Amendment unconditionally valid did not subscribe to the doctrine of basic structure. The other six held 29th Amendment valid subject to it passing the test of basic structure doctrine.
The 13th Learned Judge (Khanna, J.), though subscribed to basic structure doctrine, upheld the 29th Amendment agreeing with six learned Judges who did not subscribe to the basic structure doctrine. Therefore, it would not be correct to assume that all Judges or Judges in majority on the issue of basic structure doctrine upheld the validity of 29th Amendment unconditionally.
While upholding the Twenty-ninth amendment, there was no mention of the test that is to be applied to the legislations inserted in the Ninth Schedule. The decision in Kesavananda Bharti regarding the Twenty ninth amendment is restricted to that particular amendment and no principle flows there from.
The Court observed :
The first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-à-vis the laws that are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. It means an unlimited power totally nullify Part III in so far as Ninth Schedule legislations are concerned. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary. The responsibility to judge the constitutionality of all laws is that of judiciary.
If Article 31B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is not longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.
Since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgements shall have to be examined in each case.
We are of the view that while laws may be added to the Ninth Schedule, once Article 32 is triggered, these legislations must answer to the complete test of Fundamental Rights. Every insertion into the Ninth Schedule does not restrict Part III review, it completely excludes Part III at will. For this reason, every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III.
If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31B cannot be so used as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendments has to be compatible with the limits on the power of amendments. This limit came with the Kesavananda Bharti’s case. Therefore Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity.
To legislatively override entire Part III of the Constitution by invoking Article 31-B would not only make the Fundamental Rights overridden by Directive Principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review, which are the basic feature of the Constitution and essential elements of rule of law and that too without any yardstick standard being provided under Article 31-B.
Every amendment to the Constitution whether it be in the form of amendment of any Article or amendment by insertion of an Act in the Ninth Schedule has to be tested by reference to the doctrine of basic structure which includes reference to Article 21 read with Article 14, Article 15 etc. As stated, laws included in Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by the Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken. In respect of that exercise the principle of compatibility will come in. One has to see the effect of the impugned law and the exclusion of Part III in its entirety at the will of the Parliament. In Waman Rao, it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection.
Application of doctrine of Basic Structure
The Court observed :
There is difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By addition of the words ‘constitution power’ in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words ‘constituent power’ are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to the Parliament. It is on this premise that clause 4 and 5 inserted in Article 368 by 42nd Amendment were struck down in Minerva Mills Case.
The relevance of Indira Gandhi’s case, Minerva Mills case and Waman Rao’s case lies in the fact that every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of 42nd Amendment have been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review.
We have to examine the power of immunity bearing in mind that after Kesavananda Bharti’s case. Article 368 is subject to implied limitation of basic structure.
The question examined in Waman Rao’s case was whether the device of Article 31B could be used to immunize Ninth Schedule laws from judicial review by making the entire Part III inapplicable to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in affirmative. It has been said that it is likely to make the controlled Constitution uncontrolled. It would render doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and Article 19 in its entirety for examining the validity of Ninth Schedule laws as it makes the entire Part III inapplicable at the will of the Parliament. This results in the change of the identify of the Constitution which brings about incompatibility not only with the doctrine of basic structure but also with the very existence of limited power of amending the Constitution. The extent of judicial review is to be examined having regard to these factors.
The object behind Article 31B is to remove difficulties and not to obliterate Part III in its entirety or judicial review. The doctrine of basic structure is propounded to save the basic features.
The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution.
In Minerva Mills and Indira Gandhi’s case, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, is incompatible with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied.
Part III is amendable subject to basic structure doctrine. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31B but subject to right of citizen to assail it on the enlarged judicial review concept. The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.
The Constitutional amendments are subject to limitations and if the question of limitation is to be decided by the Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights in part III can only be examined by another independent organ, namely the judiciary.
The power to grant absolute immunity at will is not compatible with basic structure doctrine and, therefore, after 24th April, 1973 the laws included in the Ninth Schedule would not have absolute immunity. Thus, validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19. Article 15 and the principles underlying these Articles.
By constitution (44th Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Article 20 and 21 cannot be suspended. This is the recognition given by the Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for the conclusion that these rights are part of the basic structure or framework of the Constitution and thus, immunity by suspending those rights by placing any law in the Ninth Schedule would not be countenanced. It would be an implied limitation on the constituent power of amendment under Article 368. Same would be the position in respect of the rights under Article 32, again, a part of the basic structure of the Constitution.
The doctrine of basic structure as a principle has now become an axiom. It is premised on the basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic structure doctrine.
The existence of the power of Parliament to amend the Constitution at will, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.
The power to amend the Constitution is subject to aforesaid axiom. Prior to Kesavananda Bharti, the axiom was not there. Fictional validation based on the power of immunity exercised by the Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinize the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule Law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substances, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Article 31B gives validation based on frictional immunity.
The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where Judicial Review comes in. The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent.
The degree of invasion is for the Court to decide. Compatibility is one of the species of Judicial Review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the constitution as it stands for equality and rule of laws.
Concluding decision of the Apex Court:-
The Court held that Constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, i.e. rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor. The court held the following :
A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court.
The majority judgment in Kesavananda Bharti’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.
All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure
Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and the extent of infraction of a Fundamental Right by a statute, sought to be Constitutional protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the ‘rights test’ and the ‘essence of the right’ test. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.
As to the question referred to them vide order dated 14th September, 1999 in I.R. Cohelo Vs. State of Tamil Nadu , the court answered the following :
If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation / infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.
Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.
Thereafter, the Court directed to place the petitions / appeal for hearing before a Three Judge Bench for giving decision according to the principles laid down in this judgment.
According to the researcher the decision of the Supreme Court that if a law abrogates or abridges the rights guaranteed by Part III and by applying the direct impact and effect text, if it is found that, it is violating the basic structure doctrine then such law can be invalidated by exercising the power of judicial review by the courts is a correct one having rationale basis.
The researcher is supporting the courts view that even though an Act is put in the Ninth Schedule by constitutional amendment, its provisions are open to attack on the ground that they destroy or damage the basic structure of the Constitution, because the doctrine aims to afford protection to the rights of people and also aims to preserve the principle of constitutionalism in democratic polity by keeping the power of judicial review intact with the judiciary.
The researcher sticks to the assertion of the court that the justification for conferring protection on the laws included in the Ninth Schedule shall be matter of constitutional adjudication, as it observed from the developments in past that the protective umbrella of Ninth schedule and Art. 31B is being misused to the purposes contrary of its creation by the parliamentarians and the executives. The researcher finds the judgment to be correct one and opines that the attitude of judiciary should not be considered as against the socio-economic development of the nation.
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