IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 242 OF 1988
Glanrock Estate (P) Ltd. .... Petitioner(s)
Versus
The State of Tamil Nadu ....Respondent(s)
with
Writ Petition (C) No. 408 of 2003 and Civil Appeal Nos.
1344-1345 of 1976.
J U D G M E N T
S. H. KAPADIA, CJI
Some doctrines die hard. That certainly is
true of the doctrine of basic structure of the
Constitution.
2. Against this backdrop, we need to examine the
constitutional validity of the Constitution (Thirty-
fourth Amendment) Act, 1974. By the said Amendment
Act, the Gudalur Janmam Estates (Abolition and
Conversion into Ryotwari) Act, 1969 [for short “the
Janmam Act (Act 24 of 1969)”] stood inserted in the
Ninth Schedule to the Constitution as Item No. 80.
Facts
1
3. In 1961, the Tamil Nadu Land Reforms (Fixation
of Ceiling on Land) Act, 1961 [for short “the 1961
Act”] was enacted. However, by virtue of Section
73(v), the said Act was made inapplicable to Hill
Areas. On 6.12.1969, the Janmam Act (Act 24 of 1969)
was enacted but not notified till 27.11.1974. The
Janmam Act (Act 24 of 1969) was enacted inter alia to
provide for acquisition of the rights of janmis in
Janmam estates in the Gudalur taluk of the Nilgiris
district and for the introduction of ryotwari
settlement in such estates. On 26.10.1970, the
Madras High Court dismissed nine writ petitions filed
by the janmis challenging the constitutional validity
of the Janmam Act (Act 24 of 1969). By a judgment
dated 19.4.1972 delivered by a Constitution Bench of
this Court in the case of Balmadies Plantations Ltd.
v. State of Tamil Nadu [(1972) 2 SCC 133], it was
held that the Janmam Act (Act 24 of 1969) was immune
to challenge from Articles 14, 19 and 31 as it was an
Act for acquisition of an estate under Article 31A
with one exception of acquisition of forest lands
which could not be considered as agrarian reforms
2
under Article 31A in the absence of anything in the
Act to show the purpose for which the forest land
stood acquired (see para 18). Consequently,
acquisition of forest lands was held to be violative
of the Constitution. Meanwhile on 29.6.1972, the
Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Second Amendment Act, 1972 (Act 20 of 1972) [for
short “the Ceiling Act (Act 20 of 1972)”] was passed
so as to extend the provisions of the principal Act.
Proceedings were initiated under the Ceiling Act (Act
20 of 1972) in regard to non-plantation lands of the
petitioner(s) (plantations being exempted from the
purview of the Ceiling Act (Act 20 of 1972)). Under
the Ceiling Act (Act 20 of 1972), a family was not
entitled to hold lands in excess of the ceiling area,
i.e., 15 standard acres [see Section 5 read with
Section 7 of the Ceiling Act (Act 20 of 1972)].
Hence, under the Ceiling Act (Act 20 of 1972), the
petitioner(s) was entitled to hold 15 standard acres
per family. On 1.7.1972, the Ceiling Act (Act 20 of
1972) was notified and made applicable to Hill Areas.
Thus, 1.7.1972 became the notified date under Section
3
3(31) of the Ceiling Act (Act 20 of 1972). By the
Ceiling Act (Act 20 of 1972), it was inter alia
provided that if by virtue of the Ceiling Act (Act 20
of 1972) the total extent of the land held by any
person exceeded the ceiling area then in relation to
such person the date of commencement of the Ceiling
Act (Act 20 of 1972) will mean 1.3.1972. On
20.11.1972, the petitioner(s) herein submitted their
returns under the Ceiling Act (Act 20 of 1972). On
24.7.1973, the authorized officer wrote to the
petitioner(s) that he would inspect their estates on
4.8.1973. On 24.4.1973 came the decision of this
Court in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala [(1973) 4 SCC 225].
This date, namely, 24.4.1973 is crucial as it is the
cut-off date under the judgment of this Court in
Waman Rao v. Union of India [(1981) 2 SCC 362]. It
was held in Waman Rao (supra) that all amendments to
the Constitution made on or after 24.4.1973 and by
which the Ninth Schedule to the Constitution stood
amended from time to time by inclusion of various
Acts and Regulations therein were open to challenge
4
on the ground that they, or anyone or more of them,
are beyond the constituent power of the Parliament
since they damage the basic or essential features of
the Constitution or its basic structure.
Consequently, all such amendments to the Constitution
made on or before 24.4.1973, by which the Ninth
Schedule stood amended from time to time, were held
to be valid and constitutional. On 17.8.1973, the
authorized officer under the Ceiling Act (Act 20 of
1972) informed the petitioner(s) that the action
under the Ceiling Act (Act 20 of 1972) stood
temporarily deferred. Soon thereafter on 7.9.1974,
the Janmam Act (Act 24 of 1969) was inserted as Item
No. 80 in the Ninth Schedule of the Constitution by
the Constitution (Thirty-fourth Amendment) Act, 1974.
On 25.11.1974, the Collector of Nilgiris issued a
notice to the petitioner(s) herein asking them to
hand over the possession of their lands under the
Janmam Act (Act 24 of 1969). On 27.11.1974, as
stated above, the Janmam Act (Act 24 of 1969) stood
notified. Till this date, no proceedings were taken
under the Ceiling Act (Act 20 of 1972). Hence,
5
ceiling was not determined till that date. In fact
on 16.12.1974, writ petitions were filed by the
petitioner(s) herein seeking a direction to the State
to complete proceedings under the Ceiling Act (Act 20
of 1972) and to refrain from proceeding under the
Janmam Act (Act 24 of 1969). On 23.9.1976, the writ
petitions were dismissed by the Madras High Court
against which Special Leave Petition No. 8994 of 1976
was filed in this Court; leave was granted by this
Court as Civil Appeal No. 1345 of 1976. In 1988,
writ petition No. 242 of 1988 was also filed by the
petitioner(s) under Article 32 of the Constitution in
which vide order dated 17.2.1989, a Division Bench of
this Court referred the case to the Constitution
Bench [see (1989) 3 SCC 282]. On 14.9.1999, a
Constitution Bench of this Court referred the matters
to a larger Bench of 9-Judges [see (1999) 7 SCC 580].
Finally, by a judgment of 9-Judge Constitution Bench
dated 11.1.2007 in Civil Appeal Nos. 1344-45 of 1976
etc. etc. reported as I.R. Coelho v. State of Tamil
Nadu [(2007) 2 SCC 1], this Court answered the
reference by holding Article 31B as introduced by the
6
Constitution (First Amendment) Act, 1951 to be valid.
Applying the tests laid down in I.R. Coelho’s case,
the 9-Judge Constitution Bench directed the Civil
Appeal Nos. 1344-45 of 1976 with Writ Petition Nos.
242 of 1988 and 408 of 2003 to be placed for hearing
before a 3-Judge Bench for decision in accordance
with the principles laid down therein. Accordingly,
these matters have now come before us. In these
matters, we are required to apply the principles laid
down in I.R. Coelho’s case in the matter of challenge
to the Janmam Act (Act 24 of 1969) on the ground that
the said Act is beyond the constituent power of the
Parliament since the Janmam Act (Act 24 of 1969)
damages the basic or essential features of the
Constitution.
Points for Consideration
4. (A) What is the scope of immunity to laws
inserted in the Ninth Schedule of the Constitution
read with Article 31B?
(B) Whether the Tamil Nadu State Legislature lacked
legislative competence to enact Janmam Act (Act 24 of
1969)?
7
(C) Whether the Janmam Act (Act 24 of 1969) could
not be applied because of the Ceiling Act (Act 20 of
1972)?
Scope of immunity to laws inserted in the Ninth
Schedule read with Article 31B
5. Shri K.V. Viswanathan, learned senior counsel
appearing on behalf of the petitioner(s), submitted
that “separation of powers” and “rule of law” are
basic features of the Constitution of India. In the
context of separation of powers, learned counsel
submitted that on 19.4.1972 the Constitution Bench of
this Court in Balmadies case held that Section 3 of
the Janmam Act (Act 24 of 1969) insofar as it related
to transfer of forests in Janmam estate was
unconstitutional as it was not a measure of agrarian
reform protected by Article 31A of the Constitution.
According to the learned counsel, inclusion of the
Janmam Act (Act 24 of 1969) on 7.9.1974 by the
Constitution (Thirty-fourth Amendment) Act, 1974 in
the Ninth Schedule (Item No. 80) amounted to direct
negation and abrogation of judicial review as the
impugned Constitution (Thirty-fourth Amendment) Act,
8
1974 confers naked power on the Parliament to
obliterate the judicial decision in Balmadies case
which became final, without changing the basis of the
decision or the law and, therefore, the said impugned
Constitutional Amendment Act destroys the basic
feature of the Constitution, namely, judicial review.
Similarly, according to the learned counsel, the
Constitution (Thirty-fourth Amendment) Act, 1974
violated the basic structure of rule of law and
equality. In this connection, it was submitted that
in Tamil Nadu in respect of lands held in excess of
the ceiling limits there is an Act called the Tamil
Nadu Land Reforms (Fixation of Ceiling on Land) Act,
1961 which came into force on 6.4.1960. The said Act
stands inserted in the Ninth Schedule as Item No. 46
on 20.6.1964. At this stage, it may be noted that
the forest lands fell outside the said 1961 Act prior
to 1.3.1972. By Ceiling Act (Act 20 of 1972), hilly
areas stood included in the said 1961 Act. The
Ceiling Act (Act 20 of 1972) also stood inserted in
the Ninth Schedule of the Constitution as Item No.
169 on 27.5.1976 by the Constitution (Fortieth
9
Amendment) Act, 1976. Consequently, the provisions
of the Ceiling Act (Act 20 of 1972), according to the
learned counsel, became applicable to 20,000 acres of
forest lands which came to be included in the ceiling
area by reason of the Ceiling Act (Act 20 of 1972) by
which exemption of forest land from the ceiling area
stood withdrawn. That, the Janmam Act (Act 24 of
1969) came into force from 27.11.1974 whereas the
Ceiling Act (Act 20 of 1972) came into force from
1.3.1972, though it was notified on 1.7.1972.
According to the learned counsel, principle of
equality is the basic feature of the Constitution;
that the Amending Act 20 of 1972 which brought in the
“forests” within the purview of the 1961 Act and the
Janmam Act (Act 24 of 1969) operated in the same
field and yet under the ceiling law the compensation
provided for was at a higher rate as compared to the
rate mentioned in the Janmam Act (Act 24 of 1969)
being Rs. 50 per acre (maximum); that whereas forests
in Janmam estate stood automatically vested in the
State under the Janmam Act (Act 24 of 1969), under
the Amending Act 20 of 1972, the petitioner (s) was
10
permitted to hold the ceiling area including forests
upto the prescribed ceiling limit; that under the
Janmam Act (Act 24 of 1969) not only forests in the
Janmam estate stood vested in the Government but also
the occupants were not given pattas for such lands
which pattas were given for cultivable lands only
under the Janmam Act (Act 24 of 1969) whereas under
the Amending Act 20 of 1972 forests could form part
of the holding of the petitioner (s) subject to the
ceiling limit of 15 standard acres. According to the
learned counsel, the above invidious distinction
violated the rule of equality in law without any
avowed public purpose and in the absence of any
provisions for distribution of lands having vested in
the State, the impugned Section 3 of the Janmam Act
(Act 24 of 1969) and its insertion in the Ninth
Schedule to the Constitution as Item 80 was
arbitrary, discriminatory and not only violated
Article 14 but also the basic structure of the
Constitution in terms of separation of powers and
rule of law. According to the learned counsel, the
impugned legislation inter alia violated the rule of
11
law which is a facet of the doctrine of equality and,
therefore, it is not validated under Article 31B of
the Constitution.
6. We find no merit in the above submissions for
the following reasons:
At the outset, we may state that in this case
the essence of the challenge to the Constitution
(Thirty-fourth Amendment) Act, 1974, in our view, is
in the context of “right to property”. In this
connection, we must bear in mind that by the
Constitution (Forty-fourth Amendment) Act, 1978,
“right to property” has ceased to be a fundamental
right under Article 19(1)(f). If one sees the
history of amendments to the Indian Constitution, one
finds that the Constitution (First Amendment) Act,
1951, the Constitution (Seventeenth Amendment) Act,
1964, the Constitution (Twenty-fifth Amendment) Act,
1971, the Constitution (Twenty-sixth Amendment) Act,
1971 and the Constitution (Twenty-ninth Amendment)
Act, 1972 were all in the context of “right to
property”. The challenge to the Constitution
(Twenty-fourth Amendment) Act, 1971 on the ground of
12
unlimited power to amend the Constitution was also in
the same context of right to property. The
challenges to all these Constitutional Amendment
Acts, referred to hereinabove, have been negatived.
This aspect is important because in the present case
in the garb of “rule of law” and “separation of
powers” the challenge is laid against the
Constitution (Thirty-fourth Amendment) Act, 1974,
which, as stated above, is in essence the challenge
in the context of “right to property”. The basic
contention of the petitioner(s) in these cases is
that the Constitution (Thirty-fourth Amendment) Act,
1974 by which the Janmam Act (Act 24 of 1969) has
been inserted in the Ninth Schedule as Item No. 80
seeks to confer naked power on Parliament to
obliterate the judicial decision of this Court in
Balmadies case which became final without changing
the basis of the decision or the law and, therefore,
the said Constitution (Thirty-fourth Amendment) Act,
1974 destroys the basic feature of the Constitution,
namely, judicial review and separation of powers as
well as rule of law. To answer this point, one needs
13
to consider the judgment of the Constitution Bench of
this Court in Balmadies case. It is vehemently
submitted on behalf of the petitioner(s) that in
Balmadies case, this Court has held Section 3 of the
Janmam Act (Act 24 of 1969) to be unconstitutional,
as violative of Articles 14, 19 and 31. In our view,
it is not so. One of the questions which arose for
consideration by this Court in Balmadies case was
whether acquisition of the lands under the Janmam Act
(Act 24 of 1969) was for agrarian reform? This Court
observed that in order to invoke Article 31A, it has
to be shown that acquisition of the “estate” was with
the view to implement agrarian reform. It was
further observed that Article 31A is confined only to
agrarian reform and its provisions would apply only
to a law made for acquisition by the State of any
rights therein if such acquisition is connected with
the agrarian reform. On examination of the Janmam
Act (Act 24 of 1969), this Court held that it was
manifest from the perusal of the Objects and Reasons
and the general scheme of the Janmam Act (Act 24 of
1969) that the enactment was made to abolish
14
intermediaries between the State and the cultivators;
that the Janmam Act (Act 24 of 1969) in its broad
outlines should be held to be a measure of agrarian
reform and, consequently, it stood protected by
Article 31A of the Constitution. However, this Court
held that so far as forests in Janmam estates are
concerned the acquisition of those forests cannot be
said to be in furtherance of the objective of
agrarian reform because in the absence of anything in
the Janmam Act (Act 24 of 1969) to show the purpose
for which the forests are to be used by the
Government, it cannot be said that acquisition of
forests in Janmam estate is for a purpose related to
agrarian reform. Therefore, although the
constitutional validity of the Janmam Act (Act 24 of
1969) by and large stood upheld by this Court, it was
held in Balmadies case that Section 3 of the Janmam
Act (Act 24 of 1969) insofar as it related to
transfer of forests in Janmam estates was violative
of the Constitution and as such Section 3 to that
extent was struck down. It was held that invalidity
of Section 3 to the above extent would not affect the
15
validity of the other provisions of the Act as thetwo were distinct and severable.
7. On reading the judgment of the Constitution
Bench of this Court in Balmadies case, in its
entirety, we find that although the Janmam Act (Act
24 of 1969) was challenged on the ground of the Act
being violative of Articles 14, 19 and 31, this Court
in Balmadies case struck down Section 3 to the extent
of acquisition of forests in the Janmam estate only
on the ground that there was nothing in the Janmam
Act (Act 24 of 1969) to show the purpose for which
the forest lands stood acquired and, therefore, this
Court gave a declaration that in the absence of
anything in the Act to show the purpose for which
forest lands stood acquired, protection under Article
31A was not available. (see para 18 of the judgment)
From this it cannot be said that this Court in
Balmadies case has held that Section 3 insofar as
forests are concerned violated Articles 14, 19 and 31
of the Constitution. Be that as it may, the judgment
of the Constitution Bench in Balmadies case was
delivered on 19.4.1972. Even assuming for the sake
16
of argument that the Janmam Act (Act 24 of 1969), so
far as the forests are concerned, was held to be
violative of Articles 14 and 19 of the Constitution
in Balmadies case as contended on behalf of the
petitioner(s), still it cannot be said that the
Constitution (Thirty-fourth Amendment) Act, 1974
conferred naked power on the Parliament to obliterate
the judicial decision in Balmadies case without
changing the basis of the decision because it is
pursuant to such declaration by the Constitution
Bench of this Court in Balmadies case that the
Parliament inserted the Janmam Act (Act 24 of 1969)
into the Ninth Schedule by invoking Article 31A.
Therefore, one cannot say that the Parliament has
obliterated the judicial decision of this Court in
Balmadies case without changing its basis. The
challenge to Article 329A(4) succeeded in Election
Case [Smt. Indira Nehru Gandhi v. Shri Raj Narain
1975 (Supp.) SCC 1] because the impugned Amendment
was held to be Legislative Judgment being validated
which is not the case herein. On the contrary,
pursuant to the declaration in Balmadies case, the
17
Parliament inserted the Janmam Act (Act 24 of 1969)
in the Ninth Schedule which would mean that the
Parliament has implemented in a way the decision of
this Court in Balmadies case by validating the law.
8. Coming to the applicability of the judgment of
the 9-Judge Bench decision of this Court in I.R.
Coelho (supra), time has come for us to explain
certain concepts in that judgment like egalitarian
equality, over-arching principles and reading of
Article 21 with Article 14. In this connection, one
needs to keep in mind what is called as the “degree
test”. Ultimately, in applying the above three
concepts enumerated herein, one has to go by the
degree of abrogation as well as the degree of
elevation of an ordinary principle of equality to the
level of over-arching principle (s). One must keep
in mind that in this case the challenge is not to the
ordinary law of the land. The challenge is to the
constitutional amendment. In a rigid Constitution
[See Article 368] power to amend the Constitution is
a derivative power, which is an aspect of the
constituent power. The challenge is to the exercise
18
of derivative power by the Parliament in the matter
of inclusion of the Janmam Act (Act 24 of 1969) as
Item No. 80 in the Ninth Schedule of the Constitution
vide the Constitution (Thirty-fourth Amendment) Act,
1974. Since the power to amend the Constitution is a
derivative power, the exercise of such power to amend
the Constitution is subject to two limitations,
namely, the doctrine of basic structure and lack of
legislative competence. The doctrine of basic
structure is brought in as a window to keep the power
of judicial review intact as abrogation of such a
power would result in violation of basic structure.
When we speak of discrimination or arbitrary
classification, the same constitutes violation of
Article 14 of the Constitution. In this connection,
the distinction between constitutional law and
ordinary law in a rigid Constitution like ours is to
be kept in mind. The said distinction proceeds on
the assumption that ordinary law can be challenged on
the touchstone of the Constitution. Therefore, when
an ordinary law seeks to make a classification
without any rational basis and without any nexus with
19
the object sought to be achieved, such ordinary law
could be challenged on the touchstone of Article 14
of the Constitution. However, when it comes to the
validity of a constitutional amendment, one has to
examine the validity of such amendment by asking the
question as to whether such an amendment violates any
over-arching principle in the Constitution. What is
over-arching principle? Concepts like secularism,
democracy, separation of powers, power of judicial
review fall outside the scope of amendatory powers of
the Parliament under Article 368. If any of these
were to be deleted it would require changes to be
made not only in Part III of the Constitution but
also in Articles 245 and the three Lists of the
Constitution resulting in the change of the very
structure or framework of the Constitution. When an
impugned Act creates a classification without any
rational basis and having no nexus with the objects
sought to be achieved, the principle of equality
before law is violated undoubtedly. Such an Act can
be declared to be violative of Article 14. Such a
violation does not require re-writing of the
20
Constitution. This would be a case of violation of
ordinary principle of equality before law.
Similarly, “egalitarian equality” is a much wider
concept. It is an over-arching principle. Take the
case of acquisition of forests. Forests in India are
an important part of environment. They constitute
national asset. In various judgments of this Court
delivered by the Forest Bench of this Court in the
case of T.N. Godavarman v. Union of India [Writ
Petition No. 202 of 1995], it has been held that
“inter-generational equity” is part of Article 21 of
the Constitution. What is inter-generational equity?
The present generation is answerable to the next
generation by giving to the next generation a good
environment. We are answerable to the next
generation and if deforestation takes place rampantly
then inter-generational equity would stand violated.
The doctrine of sustainable development also forms
part of Article 21 of the Constitution. The
“precautionary principle” and the “polluter pays
principle” flow from the core value in Article 21.
The important point to be noted is that in this case
21
we are concerned with vesting of forests in the
State. When we talk about inter-generational equity
and sustainable development, we are elevating an
ordinary principle of equality to the level of over-
arching principle. Equality doctrine has various
facets. It is in this sense that in I.R. Coelho’s
case this Court has read Article 21 with Article 14.
The above example indicates that when it comes to
preservation of forests as well as environment vis-`-
vis development, one has to look at the
constitutional amendment not from the point of view
of formal equality or equality enshrined in Article
14 but on a much wider platform of an egalitarian
equality which includes the concept of “inclusive
growth”. It is in that sense that this Court has
used the expression Article 21 read with Article 14
in I.R. Coelho’s case. Therefore, it is only that
breach of the principle of equality which is of the
character of destroying the basic framework of the
Constitution which will not be protected by Article
31B. If every breach of Article 14, however,
egregious, is held to be unprotected by Article 31B,
22
there would be no purpose in protection by Article
31B. The question can be looked at from yet another
angle. Can Parliament increase its amending power by
amendment of Article 368 so as to confer on itself
the unlimited power of amendment and destroy and
damage the fundamentals of the Constitution? The
answer is obvious. Article 368 does not vest such a
power in Parliament. It cannot lift all limitations/
restrictions placed on the amending power or free the
amending power from all limitations. This is the
effect of the decision in Kesavananda Bharati
(supra). The point to be noted, therefore, is that
when constitutional law is challenged, one has to
apply the “effect test” to find out the degree of
abrogation. This is the “degree test” which has been
referred to earlier. If one finds that the
constitutional amendment seeks to abrogate core
values/ over-arching principles like secularism,
egalitarian equality, etc. and which would warrant
re-writing of the Constitution then such
constitutional law would certainly violate the basic
structure. In other words, such over-arching
23
principles would fall outside the amendatory power
under Article 368 in the sense that the said power
cannot be exercised even by the Parliament to
abrogate such over-arching principles. It is
important to bear in mind that according to Justice
Mathew’s observations in Smt. Indira Nehru Gandhi
(supra), equality is a feature of rule of law and not
vice-versa, as submitted by Mr. Viswanathan, learned
counsel for the petitioner(s). Very often the
expression “Rule of Law” is used to convey the idea
of a Government that is limited by law. The
expression “Rule of Law” describes a society in which
Government must act in accordance with law. A society
governed by law is the foundation of personal
liberty. It is also the foundation of economic
development since investment will not take place in a
country where rights are not respected. It is in that
sense that the expression “Rule of Law” constitutes
an overarching principle embodied in Article 21, one
aspect of which is equality. It is in that context
that this Court has used the phrase “Article 21 read
with Article 14” in the judgment in the case of I.R.
24
Coelho (supra) to which one of us Kapadia, J. was a
party.
9. Applying the above tests to the present case,
we find no merit in the submissions advanced by Shri
Viswanathan, learned senior counsel for the
petitioner (s) that inclusion of the Janmam Act (Act
24 of 1969) in the Ninth Schedule (Item No. 80)
amounted to direct negation and abrogation of
judicial review as the impugned Constitution (Thirty-
fourth Amendment) Act, 1974 confers naked power on
the Parliament to obliterate the judicial decision in
Balmadies case which became final, without changing
the basis of the decision or the law and, therefore,
the said impugned Constitutional Amendment Act
destroys the basic feature of the Constitution,
namely, judicial review. As stated above, the
amending power under Article 368 of the Constitution
is a derivative power. The doctrine of basic
structure provides a touchstone on which the validity
of the Constitutional Amendment Act could be judged.
While applying this doctrine, one need not go by the
content of a “right” but by the test of
25
justifiability under which one has to see the scope
and the object of the Constitutional Amendment. In
the present case, we are concerned with the validity
of the Constitution (Thirty-fourth Amendment) Act,
1974. It is true that all lands including forests
falling in the janmam estate vest in the State under
Section 3 of the Janmam Act (Act 24 of 1969). Under
that Act, the State gave pattas for cultivable lands
though such pattas were not given for forests which
vested in the State. It is also true that after Act
20 of 1972 forests which earlier stood exempted from
the provisions of the Ceiling Act, 1961 got included
in the Ceiling Act (Act 20 of 1972). Therefore, on
and after 1.3.1972, the holder was entitled to hold
the lands subject to ceiling including forests under
the Ceiling Act (Act 20 of 1972) whereas forests
falling in Janmam estate vested in the State. It is
the case of the petitioners that by reason of the
forests vesting in the State under the Janmam Act
(Act 24 of 1969) “the rule of equality in law” stood
violated which violation amounted to abrogation of
Article 14. One of the reasons for deletion of the
26
“right to property” from Part III of the Constitution
vide the Constitution (Forty-fourth Amendment) Act,
1978 was that the economic liberties of freedom of
property came in direct conflict with egalitarian
values including inter-generational equity. This
aspect needs to be kept in mind as in this case the
substantive challenge to the Constitution (Thirty-
fourth Amendment) Act, 1974 is based on the right to
property in the garb of over-arching principles like
separation of powers, rule of law and abrogation of
the power of judicial review. The doctrine of
classification under Article 14 has several facets
and none of those facets have been abrogated by the
Constitution (Thirty-fourth Amendment) Act, 1974.
Equality is a comparative concept. A person is
treated unequally only if that person is treated
worse than others, and those others (the comparison
group) must be those who are “similarly situated” to
the complainant. The “similarly situated test” is
not attracted in this case for the simple reason that
the two Acts, namely, the Janmam Act (Act 24 of
1969), which seeks to abolish a tenure, is distinct
27
and separate from the Ceiling Act (Act 20 of 1972).
Therefore, in the present case, not even an ordinary
principle of equality under Article 14, leave aside
the egalitarian equality as an over-arching
principle, is violated. Even assuming for the sake
of argument that Article 14 stood violated, even then
the Janmam Act (Act 24 of 1969) in any event stood
validated by its insertion in the Ninth Schedule vide
Constitution (Thirty-fourth Amendment) Act, 1974.
Legislative competence of Tamil Nadu State
Legislature to enact the Janmam Act (Act 24 of 1969)
10. Mr. P.H. Parekh, learned senior counsel
appearing on behalf of one of the appellants
submitted that the Tamil Nadu Legislature did not
have legislative competence to enact Section 3 of the
Janmam Act (Act 24 of 1969) insofar as the said Act
related to transfer of forests in Janmam estates to
the State without any public purpose. According to
the learned counsel, the Janmam Act (Act 24 of 1969)
providing for vesting of Janmam estates in the State
stood enacted under Entry 42, List III of the Seventh
Schedule of the Constitution.
11. Before us it was submitted that the right to
28
legislate under Entry 42 of List III postulates the
existence of a public purpose. According to the
learned counsel, in the present case, Entry 42 of
List III was required to be read with Article 31(2),
as it then stood, on the day the Janmam Act (Act 24
of 1969) was enacted, and if so read, the requirement
of public purpose must be read into Entry 42 of List
III and since in the present case the impugned
enactment stood unprotected by Article 31A as held in
Balmadies case, the Janmam Act (Act 24 of 1969) was
liable to be struck down for want of legislative
competence. In reply, Mr. T.R. Andhyarujina, learned
senior counsel appearing on behalf of the State,
submitted that in Balmadies case the legislative
competence of the Tamil Nadu Legislature to enact the
Janmam Act (Act 24 of 1969) was never doubted. It
was further submitted that even assuming for the sake
of argument that there was no public purpose in the
acquisition of forest lands, the requirement of
public purpose and compensation are conditions or
requirements under Article 31(2) of the Constitution,
as it stood in 1969 and that the requirement of
29
public purpose and compensation was not a legislative
requirement. Therefore, even assuming for the sake
of argument that the Janmam Act (Act 24 of 1969)
violated the requirement of public purpose and
compensation, the said Act got validated when it
stood incorporated in the Ninth Schedule in 1974.
12. To answer the contentions raised hereinabove,
we are required to quote Entry 18, List II, Entry 42,
List III and Entry 19, List II, as it stood then:
“18. Land, that is to say, rights in or over land,
land tenures including the relation of landlord and
tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and
agricultural loans; colonization.”
“42. Acquisition and requisitioning of property”
“19. Forests”
13. We find no merit in the arguments advanced on
behalf of the petitioners. At the outset, it may be
noted that the legislative competence of the Tamil
Nadu Legislature to enact the Janmam Act (Act 24 of
1969) was not in issue in Balmadies case. Further,
Balmadies case did not hold that there was no public
purpose in acquisition of forests. It only held that
there was nothing in the Act to show that acquisition
30
of forests would be for agrarian reform.
Consequently, it was held in Balmadies case that
acquisition could not get protected under Article
31A. In contrast, a Constitution Bench of this Court
in State of Kerala v. The Gwalior Rayon Silk
Manufacturing (WVG.) Co. Ltd. Etc. [(1973) 2 SCC 713]
held that the Kerala Private Forests (Vesting and
Assignment) Act 26 of 1971 was enacted to provide for
the vesting in the Government of private forests
including those in the Janmam estates and for the
assignment thereof to agriculturists and agricultural
labourers for cultivation. This Court examined the
preamble of the Act and held that the Legislature
thought that private forests be treated as
agricultural lands in the sense that they should be
utilized to increase agricultural production in the
State. Consequently, it was held that since the
purpose was clearly spelt out in the impugned Kerala
Private Forests (Vesting and Assignment) Act 26 of
1971, the Act stood protected as a measure of
agrarian reform under Article 31A. Further, we find
merit in the argument of Mr. T.R. Andharujina,
31
learned senior counsel appearing on behalf of the
State of Tamil Nadu that the Janmam Act (Act 24 of
1969) is a piece of legislation for abolishing feudal
tenure and is a measure of land reform in pursuance
of Directed Principles of State Policy. [See The
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of Darbhanga and Others, 1952 SCR 889 at pages 941,
942, 997 and 1014] Assuming for the sake of argument
that there was no public purpose in the acquisition
of forests, as contended on behalf of the
petitioners, we are of the view that the requirement
of public purpose and compensation are not
legislative requirements of the competence of
Legislature to make laws under Entry 18, List II or
Entry 42, List III, but are conditions or
restrictions under Article 31(2) of the Constitution
as the said Article stood in 1969. Breach of such
conditions would attract only Part III challenge.
Therefore, when the Janmam Act (Act 24 of 1969) was
put in the Ninth Schedule in 1974, the Act received
immunity from Article 31(2) with retrospective
effect. Lastly, in pith and substance, we are of the
32
view that the Janmam Act (Act 24 of 1969) was in
respect of “land” and “land tenure” under Entry 18,
List II of the Constitution. For the afore-stated
reasons, we find no merit in the contention of the
learned counsel for the petitioners that the Tamil
Nadu Legislature had no legislative competence to
enact the Janmam Act (Act 24 of 1969).
Whether the Janmam Act (Act 24 of 1969) could not be
applied because of the Ceiling Act (Act 20 of 1972)?
14. One of the main contentions raised in this
batch of cases is whether the Government is at
liberty to apply the Janmam Act (Act 24 of 1969)
after it stood notified on 27.11.1974, though
proceedings were taken by the Government under the
Ceiling Act (Act 20 of 1972) prior to 27.11.1974. We
find no merit in this argument for two reasons.
Firstly, the Janmam Act (Act 24 of 1969) was enacted
to provide for acquisition of the rights of janmis in
Janmam estate in the Gudalur taluk of the Nilgiris
district and for introduction of ryotwari settlement
in such estates. We agree with the view expressed by
the Madras High Court in the impugned judgment that
the scope of the Janmam Act (Act 24 of 1969) was
33
entirely different from the Ceiling Act (Act 20 of
1972) for the simple reason that the Janmam Act (Act
24 of 1969) was enacted to acquire the rights of
janmis in Janmam estates in Gudalur taluk and to
introduce ryotwari settlement, whereas the object
behind enactment of the Ceiling Act (Act 20 of 1972)
was to fix a ceiling on the land holdings and to
distribute the excess lands to the landless and
agricultural population. Therefore, in our view, the
scope and ambit of the two Acts are completely
different and they operate in different spheres.
Secondly, the Ceiling Act (Act 20 of 1972) came into
force from 1.3.1972. Prior to that date, forests
stood exempted from the provisions of the 1961 Act.
It is only on and after 1.3.1972 that forests stood
included in the 1961 Act by virtue of the Ceiling Act
(Act 20 of 1972). The important point to be noted
that before ceiling could be determined and before
compensation to be paid for excess lands which vested
in the State under the Ceiling Act (Act 20 of 1972),
the Janmam Act (Act 24 of 1969) came into force on
27.11.1974 under which the forests vested in the
34
State. The main focus of the Ceiling Act (Act 20 of
1972) was to fix a ceiling of agricultural land
holding and to distribute the excess lands to the
landless and other agricultural population. The
scope of the Ceiling Act (Act 20 of 1972) was made
wide enough to cover the lands in the hilly areas.
In short, before the excess lands could be determined
for vesting in the State under the Ceiling Act (Act
20 of 1972), the Janmam Act (Act 24 of 1969) came
into force which, as stated above, operated in a
different sphere vis-`-vis the Ceiling Act (Act 20 of
1972). For the afore-stated reasons, we find no
merit in the argument on behalf of the petitioners
that both the Acts operated in the same field and,
consequently, it was not open to the State Government
to act according to the provisions of the Janmam Act
(Act 24 of 1969).
Conclusion
15. For the afore-stated reasons, we see no merit
in this batch of cases. Accordingly, the same are
dismissed with no order as to costs.
35
…………………….CJI
(S. H. Kapadia)
………………………..J.
(Swatanter Kumar)
New Delhi;
September 9, 2010
36
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO.242 OF 1988
WITH
WRIT PETITION (CIVIL) NO.408 OF 2003
And
CIVIL APPEAL NOs.1344-1345 of 1976
GLANROCK ESTATE (P) LETD. …Petitioner(s)
Versus
THE STATE OF TAMIL NADU ..Respondent(s)
JUDGMENT
K. S. Radhakrishnan, J.
1. We are in these cases concerned with the validity of
the Constitution (Thirty-fourth Amendment) Act, 1974 by which the
Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act,
1969, (in short `the Janmam Act’) was included in the 9th Schedule under
Article 31-B of the Constitution. These petitions earlier came up for
consideration before a Bench of two Judges of this Court and the Bench
felt that matter should be heard by a larger Bench since the case
involved substantial questions of law pertaining to the interpretation of
the Constitution. The order is reported in Manjushree Plantation Ltd.
and others v. State of Tamil Nadu and others 1989 (3) SCC 282.
37
Consequently, the matter came up before a Constitution Bench of five
Judges on 14th September, 1999, and the Court felt that the impact of the
judgment in Waman Rao and others etc. v. Union of India and others
1981 (2) SCC 362 be considered by a larger Bench so that apparent
inconsistencies therein could be reconciled and the question whether an
Act or Regulation which, or a part of which, was or had been found by
this Court to be violative of one or more of the fundamental rights
conferred by Articles 14, 19 and 31 would be included in the Ninth
Schedule or whether it was only a constitutional amendment amending
the Ninth Schedule that damaged or destroyed the basic structure of the
Constitution that could be struck down. The order is reported in (1999)
7 SCC 580. The matter was then placed before a Constitution Bench
of nine Judges. The fundamental question which came up for
consideration was whether on and after 24th April, 1973, when the basic
structure doctrine was propounded, was it permissible for the Parliament
under Article 31-B to immunize legislations from fundamental rights by
inserting them into the Ninth Schedule and also its effect on the power of
judicial review of the Court. The Bench laid down certain parameters
for the application of the basic structure doctrine propounded in His
Holiness Kesavananda Bharati Sripadagalvaru etc. v. State of
Kerala and another (1973) 4 SCC 225 and later explained in M. Nagraj
& Others v. Union of India & Others (2006) 8 SCC 212. The Court
set at rest some of the inconsistencies which were brought in by Waman
38
Rao’s Case by analyzing the judgment from Sri Sankari Prasad Singh
Deo v. Union of India and State of Bihar (1952) SCR 89 to
Kesavananda Bharati (supra) and then to Waman Rao’s case (supra).
The Court held that the theory of basic structure is applicable to the laws
included in the Ninth Schedule also. The Court declared Article 31-B
valid and held if there is any violation, restriction or encroachment upon
the fundamental rights, guaranteed under Articles 14, 15, 19 and 21, the
State must justify its action on the touch stone of the doctrine of basic
structure of the Constitution. The judgment is reported in I.R. Coelho
(Dead) by L.Rs. v. State of Tamil Nadu (2007) 2 SCC 1.
Coelho Principle:
Coelho held that the object behind Article 31B is to validate certain
legislations, which otherwise may be invalid and not to obliterate Part III
in its entirety or to dispense with judicial review of those legislations.
The Court held that Article 21 confers right to life, which is the heart of
the Constitution and when Article 21 read with Articles 14, 15 and 19 is
sought to be eliminated not only the “essence of right” test but also the
“right test” has to be applied, particularly when cases in Kesavananda
Bharati (supra) and Indira Nehru Gandhi v. Raj Narain (1975) Supp
SCC 1, have expanded the scope of the basic structure to cover even
some of the fundamental rights. Further, it was also pointed out by the
Court that there are certain parts or aspects of the Constitution including
39
Article 15, Article 21 read with Articles 14 and 19 which constitute the
core values which if allowed to be abrogated would change completely
the nature of the Constitution. The exclusion of the fundamental rights
would result in nullification of the basic structure doctrine, the object of
which is to protect the basic features of the Constitution. Referring to the
“rights test” and the “essence of right” test, the Court held that there is a
difference between both the tests and both form part of application of the
basic structure doctrine. The Court pointed out that the power to grant
absolute immunity at will is not compatible with basic structure doctrine
and after 24.4.1973 the laws included in the Ninth Schedule would not
have absolute immunity and thus validity of such laws could be
challenged on the touchstone of basic structure as reflected in Article 21
read with Article 14, 15 and 19 and the principles underlying in those
articles.
2. Coelho (supra) expressed in clear terms that the
functional validity based on the power of immunity exercised by the
Parliament under Article 368 is not compatible with the basic structure
doctrine and, therefore, 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 and, in that
process, the Court has to examine the terms of the statute, the nature of
the rights involved and in substance the statute violates the special
40
features of the Constitution and, for doing so, it has first to find whether
the Ninth Schedule law is violative of Part III. If, on such examination,
the answer is in the affirmative, the further examination is to be
undertaken whether the violation found is destructive of the basic
structure doctrine and if, on such further examination, the answer is
again in affirmative, the result would be invalidation of the Ninth
Schedule law.
Facts of the present case
Janmam Act, 1969, enacted by the Legislature of the State of Tamil
Nadu, received the assent of the President on December 6, 1969. The
Act was enacted to provide for the acquisition of the rights of the janmies
in Janmam Estate in Gudalur Taluk and for the introduction of the
ryotwari rights in the State. Chapter 2 of the Act deals with the vesting of
Janmam estates in the State. Petitioner submits that, by virtue of the
Janmam Act, janmies are being deprived of their rights over their forest
land on which they have full proprietorship. According to the petitioner,
the whole purpose of the vesting of the forest under Section 3 of the
Janmam Act is to acquire the forest for the Government on payment of
nominal compensation which would amount to confiscation of property.
Petitioner also stated that acquisition of property without resorting to the
provisions of the Land Acquisition Act, 1894 is violative of Articles 14 and
300A of the Constitution and equality clause enshrined in the
Constitution. Petitioner further submitted that the petitioner should have
41
been subjected to the provisions of the Tamil Nadu Land Reforms
(Fixation of Ceiling on Land) Act, 1961 (in short `the Ceiling Act’) rather
than the Janmam Act, in which case, petitioner could have retained at
least a portion of forest land exercising the right of option and would
have got more amount of compensation for the lands vested in the State.
Petitioner was, therefore, treated unequally violating the petitioner’s
fundamental right guaranteed under Article 14 of the Constitution.
3. Petitioner has also submitted that the rule of law, rule
of equality and separation of powers have been held to be part of the
basic structure of the Constitution and by the inclusion of the Janmam
Act in the Ninth Schedule those rights have been abrogated violating the
basic structure of the Constitution.
4. The Constitutional validity of the Act has already been
upheld by this Court in Balmadies Plantations Ltd. and another etc. v.
State of Tamil Nadu (1972) 2 SCC 133, except that the provisions of
Section 3 (Vesting Section) in so far as it relates to the transfer of forest
area, in Janmam Estate, was held to be not a measure of agrarian
reforms and hence would not get the protection of Article 31-A of the
Constitution of India. In that connection, reference may also be made to
the Ceiling Act which was also included in the Ninth Schedule. The
Ceiling Act, however, was not earlier made applicable to the Janmam
Estate in the Gudalur Taluk, but was later made applicable and certain
proceedings had started in respect of determination of ceiling of land
42
held by either the janmies or the lessees. The stand of the State of
Tamil Nadu is that those janmies who have been given ryotwari pattas
under the Janmam Act became pattadars/land owners and the
provisions of the Ceiling Act have also been made applicable.
5. We are, in this case, concerned only with the question
whether the vesting of forest land, included in the Janmam Estate, in the
State would abrogate or destroy the basic structure of the Constitution.
A Five Judges Constitution Bench of this Court in State of Kerala and
another v. The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd.
etc. (1973) 2 SCC 713 had occasion to examine the nature of private
forest situated in the old State of Madras and Kerala. In that case the
Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act No.26)
was challenged on the ground that it had violated the petitioner’s
fundamental rights guaranteed under Articles 14, 19(1)(f),(g) and was
not immunized by Articles 31 and 31-A of the Constitution. While
examining the Constitutional validity of the said Act, the scope of Article
31-A(2)(a) of the Constitution and the meaning of the word `estate’ also
fell for consideration. The Court noticed that the Janmam rights in the
States of Madras and Kerala are, as explained by Subba Rao, J. in
Kavalappara Kottarathil Kochuni and Others vs. State of Madras
and others (1960) 3 SCR 887, are rights of hereditary proprietorship in
land. The Court held those rights, like the rights created by grant of jagir
or inam relating to land, which included agricultural land or waste lands
43
or forests and hills are brought within the definition of Estates and,
therefore, have to be acquired by the State under Article 31-A(1)(a) of
the Constitution. Reference was also made to the decision of this Court
in State of U.P. v. Raja Anand Brahma Shah (1967) 1 SCR 362,
wherein the Court pointed out that the elimination of ancient Janmam
rights may per se be regarded as possessing the attributability of
agrarian reforms because to wipe out feudal vestiges from our country
side and to streamline land ownership are preliminaries in the projection
of a Socialistic order which Part IV and Article 31-A of the Constitution
strive to achieve. Referring to Balmadies Plantations (supra), this
Court in Gwalior Rayon (supra) case stated as follows:
“33. It is not disputed that all the private forests with which we are now
concerned are held in Janman right – Janman rights being an `estate’ are
liable to be acquired by the State under Article 31-A(1)(a) as a necessary step
to the implementation of agrarian reform. Section 3 of the impugned Act vests
the ownership and possession of all private forests in the State. Therefore
they would attract the protection of Article 31-A(1). It would not be, in such a
case, necessary to further examine if the lands so vested in the Government
are agricultural lands falling within sub-clause (iii).
34. Indeed this does not mean that the State is absolved from
showing that the acquisition is for the purpose of agrarian reform. In fact in
Balmadies case (supra), referred to above, the acquisition of forests owned
by janmies was set aside on the sole ground that the impugned law on the
material on record did not indicate that the transfer of forests from the janmies
to the Government was linked in any way with a scheme of agrarian reform or
betterment of village economy.”
6. The Constitution Bench noticed that in Balmadies
case (supra) acquisition of forest by janmies was set aside on the sole
ground that the impugned law, on the material on record, did not indicate
44
that the transfer of forest from janmies land to the government was
linked in any way with the agrarian reforms or betterment of the village
economy. The Court, however, recognized the fact that the elimination
of ancient janmies had the effect of wiping out feudal vestiges from
countryside and to streamline land ownership was preliminaries of the
projection of a Socialistic order which Part IV of the Constitution strive to
create. Further, let me indicate, that for understanding the real scope of
Articles 14, 19 and 21, the impact of Articles 48A and 51A must also be
taken into consideration. It is with this in mind, the Parliament has
enacted the Forest (Conservation) Act, 1980, the Wild Life (Protection)
Act, 1972 as amended by Act 28 of 1986, the Environment (Protection)
Act, 1986 and so on. With this background, we have to examine the
challenge against vesting of forest, held in janmam in the State of Tamil
Nadu under the Janmam Act.
7. Janmam Act provides for the vesting of forest and
certain other categories of land under Section 3 of the Janmam Act for
which provision for payment of compensation is also provided in the Act.
Section 8 of the Act says that janmi would also be entitled to a ryotwari
patta in respect of all lands proved to have been cultivated by the janmi
himself, except the forest land which would vest in the State. Section 9
also entitles a tenant to a ryotwari patta in respect of the lands in his
occupation. Section 10 states that where no person is entitled to a
ryotwari patta in respect of a land in a janman estate under Sections 8 or
45
9 and the land vests in the Government, a person who had been
personally cultivating such land for a continuous period of three years
immediately before the 1st day of June, 1969 shall be entitled to a
ryotwari patta in respect of that land.
8. Section 11 stipulates that no ryotwari patta shall be
granted in respect of forests, which stood vested in the State. Such a
provision was introduced in the Act so as to preserve forest wealth, its
flora and fauna and to maintain ecological balance in tune with Article
48A and 51A(g) of the Constitution. For understanding the real scope of
Article 14, 19 and 21 the impact of the above mentioned provisions has
to be kept in mind.
9. The only question is, in such a situation, whether the
vesting of private forest in the State, by virtue of Section 3 of the Act, in
any way, violates any of the fundamental rights guaranteed to the
petitioner under Part III of the Constitution and, if that be so, whether that
provision abrogates or destroys the basic structure of the Constitution,
which exercise has to be undertaken in the light of the principles laid
down by the Constitution Bench in Coelho’s case (supra).
Application of the Coelhos’s principle:
First stage: We have to first examine whether the provisions of
Janmam Act included in the Ninth Schedule by the Constitution (34th
Amendment Act 1974) is violating any of the rights guaranteed under
Part III of the Constitution, and if our answer is in the affirmative, our
46
further enquiry would be whether the violation so found has abrogated or
destroyed the basic structure of the Constitution. On such examination,
if our answer is in the affirmative, the result would be invalidation of the
Act to the extent of its violation. Petitioner, therefore, cannot succeed
merely by establishing that any of his fundamental rights have been
violated but he has to further show that the violation has the effect of
abrogating the basic structure of the Constitution. Once it is established,
the onus shift to the State to justify the infraction of the fundamental
right, and if they fail, still State can show, that such infraction has not
abrogated or destroyed the basic structure of the Constitution. Violation
of fundamental right, may not, therefore, ipso facto, violate the basic
structure doctrine, but a law which violates the basic structure invariably
violates some of the rights guaranteed under Part III, but not vice versa.
A law which infringes a basic feature of the Constitution cannot be
validated under Article 31B, by inserting it in the 9th Schedule of the
Constitution.
10. Let us now examine whether any of the fundamental
rights guaranteed to the petitioner has been violated by any of the
provisions of the Janmam Act, which has been included in the Ninth
Schedule. The main plank of attack is on Section 3(b) of the Janmam
Act by which, forest, which formed the part of the Janmam estate of the
petitioner stood vested in the State free from all encumbrances which
according to the petitioner has violated Article 14, 19 and 300A of the
47
Constitution of India. Article 14 of the Constitution states that the State
shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Plea of inequality was
raised on the ground that if ceiling Act was made applicable to the
petitioner, it could have got the benefit of ceiling provision, consequently
a portion of forest land could have been retained, and for the rest the
petitioners would have got enhanced compensation. Further it was
pointed out that there was obvious inconsistency between various
clauses of the Ceiling Act and the Janmam Act and the petitioner was
discriminated in their application violating Article 14 of the Constitution of
India. Further it was contended that when the forest land was acquired
applying the provisions of Land Acquisition Act, 1894, the petitioner
would have got market value, for the forest land acquired and the
inadequacy of compensation would amount to deprivation of property,
violating Article 300A of the Constitution. In my considered view, the
plea raised alleging violation of Articles 14 and 300A cannot stand, since
the petitioner is holding private forest in the Gudalur Taluk by way of
janmam, which are rights of hereditary proprietorship and those rights
are like the rights created by grant of jagir or inam relating to land. The
object and purpose of Janmam Act is to do away with such
hereditaryship. Janmam estate which takes in forests, mines and
minerals, quarries, rivers and streams, tanks and irrigation work,
fisheries and so on stood vested in the State free from all
48
encumbrances. Janmies are also entitled to get ryotwari patta in respect
of all lands, if they establish they have been cultivating lands for a
continuous period of three agricultural years immediately before the 1st
day of June, 1969. Provision for payment of compensation has also
been provided under the Act.
11. Right not to be deprived of property, save by authority
of law is no longer a fundamental right but only a constitutional right
which has never been treated as part of the basic structure of the
Constitution. Hence the contention that Section 3 violates Articles 14
and 300A of the Constitution is without any basis. Petitioner has,
therefore, not succeeded in establishing that, the Act or its provisions
have violated any of the fundamental rights guaranteed to them and,
therefore, the petitioner has failed to satisfy the first test laid down in
Coelho’s case (supra). Consequently, the question whether the
Janmam Act and its provisions have violated the basic structure of the
Constitution does not call for examination. Our judicial journey should
end here, and we are least concerned with the violation of any
constitutional or statutory rights, inadequacy of compensation etc.
Assuming that in our onward journey, we carry with us a bundle of right’s
violations, which are fundamental, then the question is whether those
violations, have the effect of abrogating or destroying the basic structure
of the Constitution.
Second stage: Petitioner urged that the violations which it has pointed
49
out have the effect of shaking the confidence of the public in the rule of
law, equality and judicial review which are basic features of the
Constitution, among others.
12. Right to Equality before law, Right to Equality of
Opportunity in matters of public employment, Right to Protection of life
and personal liberty, Right against Exploitation, Right to Freedom of
Religion etc. are all fundamental rights guaranteed under Part III of the
Constitution and a common thread running through all the Articles in Part
III of the Constitution have a common identity committed to an
overarching principle which is the basic structure of the Constitution.
Rule of law is often said as closely inter-related principle and when
interpreted as a principle of law, it envisages separation of powers,
judicial review, restriction on the absolute and arbitrary powers, equality,
liberty etc. Separation of powers is integral part of rule of law which
guarantee independence of judiciary which is a fundamental principle
viewed as a safeguard against arbitrary exercise of powers, legislative
and constitutional. Doctrine of absolute or unqualified parliamentary
sovereignty is antithesis to rule of law. Doctrine of parliamentary
sovereignty may, at times, make rule of law and separation of powers
subservient to the wish of the majority in parliament. Parliamentary
supremacy cannot be held unqualified so as to undo the basic structure.
Basic structure doctrine is, in effect, a constitutional limitation against
parliamentary autocracy. Let us, however, be clear that the principles of
50
equality inherent in the rule of law does not averse to the imposition of
special burdens, grant special benefits and privileges to secure to all
citizens justice, social and economic and for implementing the directive
principles of state policy for establishing an egalitarian society.
13. I, therefore, fully concur with the views expressed by
the Lord Chief Justice that the over arching principles as explained
above would fall outside the amendatory power under Article 368 and
the petitioner in the case has not succeeded in establishing that any of
those principles have been violated.
14. Principles laid down in Coelho’s case (supra) were
subsequently followed by a five Judges Bench in Ashok Kumar Thakur
v. Union of India and others (2008) 6 SCC 1 wherein Constitution (93rd
Amendment) Act, 2005 and the enactment of the Central Educational
Institutions (Reservation in Admission) Act, 2006 were impugned.
Referring Article 19(1)(g) Court held that if any constitutional amendment
is made which moderately abridges the principle under Article 19(1)(g), it
cannot be held that it violates the basic structure of the Constitution. For
determining whether a particular feature of the Constitution is part of
basic structure, it has to be examined in each individual case, keeping in
mind, the scheme of the Constitution, its object and purpose, and the
integrity of the Constitution as a fundamental instrument for the complete
governance. Further it was pointed out that the principle of equality is a
delicate, vulnerable and supremely precious concept for our society and
51
has embraced a critical and essential component of constitutional
identity. Principles of equality of course cannot be completely taken
away so as to leave citizens in a state of lawlessness, but it was pointed
out that the facets of the principle of equality can always be altered,
especially to carry out the directive principles of State policy. Similar
view has been taken in State of West Bengal and others v.
Committee for Protection of Democratic Rights, West Bengal and
others 2010 (3) SCC 571, where the Court was examining the powers of
the High Court under Article 226 of the Constitution to order
investigation by the Central Bureau of Investigation in respect of a
cognizable offence. In conclusion the Bench held as follows:
“The fundamental rights, enshrined in Part III of the Constitution are inherent
and cannot be extinguished by any constitutional or statutory provision. Any
law that abrogates or abridges such rights would be violative of the basic
structure. The actual effect and impact of the law on the rights guaranteed
under Part III has to be taken into account in determining whether or not it
destroys the basic structure.”
15. Fundamental rights enshrined in Part III can be
extinguished by Constitutional amendments and if it abrogates or
abridges such rights, would not as such, abrogate or abridge the basic
structure. The test is whether it has the effect of nullifying the over
arching principles of equality, secularism, liberty and so on especially
when such a law is placed in the 9th Schedule, which test in the present
case has not been satisfied.
16. I, therefore, fully concur with the view of the Lord Chief
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Justice that the writ petitions and the civil appeals deserve dismissal,
and there shall be no order as to costs.
………………………J.
( K.S. Radhakrishnan)
New Delhi
September 9, 2010
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