{"id":251173,"date":"2007-01-11T00:00:00","date_gmt":"2007-01-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/i-r-coelho-dead-by-lrs-vs-state-of-tamil-nadu-ors-on-11-january-2007"},"modified":"2015-05-02T07:11:50","modified_gmt":"2015-05-02T01:41:50","slug":"i-r-coelho-dead-by-lrs-vs-state-of-tamil-nadu-ors-on-11-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/i-r-coelho-dead-by-lrs-vs-state-of-tamil-nadu-ors-on-11-january-2007","title":{"rendered":"I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors on 11 January, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors on 11 January, 2007<\/div>\n
Author: S . Y.K.<\/div>\n
Bench: Y.K. Sabharwal Singh, S.H. Kapadia Thakker, P.K. Balasubramanyan Jain<\/div>\n
           CASE NO.:\nAppeal (civil)  1344-45 of 1976\n\nPETITIONER:\nI.R. Coelho (Dead) By LRs\n\nRESPONDENT:\nState of Tamil Nadu & Ors.\n\nDATE OF JUDGMENT: 11\/01\/2007\n\nBENCH:\nY.K. Sabharwal Ashok Bhan Arijit Pasayat B.P. Singh, S.H. Kapadia C.K. Thakker & P.K. Balasubramanyan Altamas Kabir  D.K. Jain\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
[With WP (C) Nos.242 of 1988, 751 of 1990, CA Nos.6045 &
\n6046 of 2002, WP (C) No.408\/03, SLP (C) Nos.14182,
\n14245, 14248, 14249, 26879, 14946, 14947,  26880,
\n26881, 14949, 26882, 14950, 26883, 14965, 26884,
\n14993, 15020, 26885, 15022, 15029, 14940 & 26886 of
\n2004, WP (C) Nos.454, 473 & 259 of 1994, WP (C) No.238
\nof 1995 and WP (C) No.35 of 1996]<\/p>\n
Y.K. Sabharwal, CJI.\n<\/p>\n
\tIn these matters we are confronted with a very important
\nyet not very easy task of determining the nature and character
\nof protection provided by Article 31-B<\/a> of the Constitution of
\nIndia, 1950 (for short, the ‘Constitution’) to the laws added to
\nthe Ninth Schedule by amendments made after 24th April,
\n1973.  The relevance of this date is for the reason that on this
\ndate judgment in His Holiness Kesavananda Bharati,
\nSripadagalvaru v. State of Kerala & Anr<\/a>. [(1973) 4 SCC
\n225] was pronounced propounding the doctrine of Basic
\nStructure of the Constitution to test the validity of
\nconstitutional amendments.\n<\/p>\n
Re : Order of Reference
\n\tThe order of reference made more than seven years ago
\nby a Constitution Bench of Five Judges is reported in I.R.
\nCoelho (Dead) by LRs. v. State of Tamil Nadu [(1999) 7 SCC
\n580] (14.9.1999) .  The Gudalur Janmam Estates (Abolition
\nand Conversion into Ryotwari) Act, 1969 (the Janmam Act),
\ninsofar as it vested forest lands in the Janmam estates in the
\nState of Tamil Nadu, was struck down by this Court in
\nBalmadies Plantations Ltd. & Anr. v. State of Tamil Nadu<\/a>
\n[(1972) 2 SCC 133] because this was not found to be a
\nmeasure of agrarian reform protected by Article 31-A<\/a> of the
\nConstitution.  Section 2(c) of the West Bengal Land Holding
\nRevenue Act, 1979 was struck down by the Calcutta High
\nCourt as being arbitrary and, therefore, unconstitutional and
\nthe special leave petition filed against the judgment by the
\nState of West Bengal was dismissed.  By the Constitution
\n(Thirty-fourth Amendment) Act, the Janmam Act, in its
\nentirety, was inserted in the Ninth Schedule.  By the
\nConstitution (Sixty-sixth Amendment) Act, the West Bengal
\nLand Holding Revenue Act, 1979, in its entirety, was inserted
\nin the Ninth Schedule.  These insertions were the subject
\nmatter of challenge before a Five Judge Bench.
\n \tThe contention urged before the Constitution Bench was
\nthat the statutes, inclusive of the portions thereof which had
\nbeen struck down, could not have been validly inserted in the
\nNinth Schedule.\n<\/p>\n
\tIn the referral order, the Constitution Bench observed
\nthat, according to Waman Rao & Ors. v. Union of India &
\nOrs<\/a>. [(1981) 2 SCC 362], amendments to the Constitution
\nmade on or after 24th April, 1973 by which the Ninth Schedule
\nwas amended from time to time by inclusion of various Acts,
\nregulations therein were open to challenge on the ground that
\nthey, or any one or more of them, are beyond the constituent
\npower of Parliament since they damage the basic or essential
\nfeatures of the Constitution or its basic structure.  The
\ndecision in Minerva Mills Ltd. & Ors. v. Union of India &
\nOrs<\/a>. [(1980) 3 SCC 625)], Maharao Sahib Shri Bhim
\nSinghji v. Union of India & Ors<\/a>. [(1981) 1 SCC 166] were
\nalso noted and it was observed that the judgment in Waman
\nRao needs to be reconsidered by a larger Bench so that the
\napparent inconsistencies therein are reconciled and it is made
\nclear whether an Act or regulation which, or a part of which, is
\nor has been found by this Court to be violative of one or more
\nof the fundamental rights conferred by Articles 14, 19 and 31
\ncan be included in the Ninth Schedule or whether it is only a
\nconstitutional amendment amending the Ninth Schedule
\nwhich damages or destroys the basic structure of the
\nConstitution that can be struck down.  While referring these
\nmatters for decision to a larger Bench, it was observed that
\npreferably the matters be placed before a Bench of nine
\nJudges.  This is how these matters have been placed before
\nus.\n<\/p>\n
Broad Question
\nThe fundamental question is whether on and after 24th
\nApril, 1973 when basic structures doctrine was propounded, it
\nis permissible for the Parliament under Article 31B<\/a> to
\nimmunize legislations from fundamental rights by inserting
\nthem into the Ninth Schedule and, if so, what is its effect on
\nthe power of judicial review of the Court.
\nDevelopment of the Law
\n\tFirst, we may consider, in brief, the factual background
\nof framing of the Constitution and notice the developments
\nthat have taken place almost since inception in regard to
\ninterpretation of some of Articles of the Constitution.
\n\tThe Constitution was framed after an in depth study of
\nmanifold challenges and problems including that of poverty,
\nilliteracy, long years of deprivation, inequalities based on
\ncaste, creed, sex and religion.  The independence struggle and
\nintellectual debates in the Constituent Assembly show the
\nvalue and importance of freedoms and rights guaranteed by
\nPart III and State’s welfare obligations in Part-IV.  The
\nConstitutions of various countries including that of United
\nStates of America and Canada were examined and after
\nextensive deliberations and discussions the Constitution was
\nframed.  The Fundamental Rights Chapter was incorporated
\nproviding in detail the positive and negative rights.  It provided
\nfor the protection of various rights and freedoms.  For
\nenforcement of these rights, unlike Constitutions of most of
\nthe other countries, the Supreme Court was vested with
\noriginal jurisdiction as contained in Article 32.<\/a>
\nThe High Court of Patna in Kameshwar v. State of
\nBihar<\/a> [AIR 1951 Patna 91] held that a Bihar legislation
\nrelating to land reforms was unconstitutional while the High
\nCourt of Allahabad and Nagpur upheld the validity of the
\ncorresponding legislative measures passed in those  States.
\nThe parties aggrieved had filed appeals before the Supreme
\nCourt.  At the same time, certain Zamindars had also
\napproached the Supreme Court under Article 32<\/a> of the
\nConstitution.  It was, at this stage, that Parliament amended
\nthe Constitution by adding Articles 31-A and 31-B to assist
\nthe process of legislation to bring about agrarian reforms and
\nconfer on such legislative measures immunity from possible
\nattack on the ground that they contravene the fundamental
\nrights of the citizen.  Article 31-B<\/a> was not part of the original
\nConstitution.  It was inserted in the Constitution by the
\nConstitution (First Amendment) Act, 1951.  The same
\namendment added after Eighth Schedule a new Ninth
\nSchedule containing thirteen items, all relating to land reform
\nlaws, immunizing these laws from challenge on the ground of
\ncontravention of Article 13<\/a> of the Constitution.  Article 13<\/a>,
\ninter alia, provides that the State shall not make any law
\nwhich takes away or abridges the rights conferred by Part III
\nand any law made in contravention thereof  shall, to the
\nextent of the contravention, be void.\n<\/p>\n
\tArticles 31A and 31B read as under :\n<\/p>\n
“31A.\tSaving of laws providing for
\nacquisition of estates, etc. [(1)
\nNotwithstanding anything contained in
\narticle 13<\/a>, no law providing for\n<\/p>\n
 (a)   \tthe acquisition by the State of any
\nestate or of any rights therein or the
\nextinguishment or modification of
\nany such rights, or\n<\/p>\n
 (b)   \tthe taking over of the management
\nof any property by the State for a
\nlimited period either in the public
\ninterest or in order to secure the
\nproper management of the property,
\nor<\/p>\n
(c)  \t the amalgamation of two or more
\ncorporations either in the public
\ninterest or in order to secure the
\nproper management of any of the
\ncorporations, or<\/p>\n
(d) \tthe extinguishment or modification
\nof any rights of managing agents,
\nsecretaries and treasurers,
\nmanaging directors, directors or
\nmanagers of corporations, or of any
\nvoting rights of shareholders
\nthereof, or<\/p>\n
(e)\tthe extinguishment or modification
\nof any rights accruing by virtue of
\nany agreement, lease or licence for
\nthe purpose of searching for, or
\nwinning, any mineral or mineral oil,
\nor the premature termination or
\ncancellation of any such agreement,
\nlease or licence,<\/p>\n
shall be deemed to be void on the ground
\nthat it is inconsistent with, or takes away
\nor abridges any of the rights conferred by
\narticle 14<\/a> or article 19 :<\/a>\n<\/p>\n
Provided that where such law is a law
\nmade by the Legislature of a State, the
\nprovisions of this article shall not apply
\nthereto unless such law, having been
\nreserved for the consideration of the
\nPresident, has received his assent :\n<\/p>\n
  Provided further that where any law
\nmakes any provision for the acquisition
\nby the State of any estate and where any
\nland comprised therein is held by a
\nperson under his personal cultivation, it
\nshall not be lawful for the State to
\nacquire any portion of such land as is
\nwithin the ceiling limit applicable to him
\nunder any law for the time being in force
\nor any building or structure standing
\nthereon or appurtenant thereto, unless
\nthe law relating to the acquisition of such
\nland, building or structure, provides for
\npayment of compensation at a rate which
\nshall not be less than the market value
\nthereof.\n<\/p>\n
 (2) In this article,\n<\/p>\n
(a) \tthe expression “estate”, shall, in
\nrelation to any local area, have the
\nsame meaning as that expression or
\nits local equivalent has in the
\nexisting law relating to land tenures
\nin force in that area and shall also
\ninclude\n<\/p>\n
(i)   \tany jagir, inam or muafi or
\nother similar grant and in the
\nStates of Tamil Nadu and
\nKerala, any janmam right;\n<\/p>\n
(ii)\tany land held under ryotwary
\nsettlement;\n<\/p>\n
(iii)  \tany land held or let for
\npurposes of agriculture or for
\npurposes ancillary thereto,
\nincluding waste land, forest
\nland, land for pasture or sites
\nof  buildings and other
\nstructures occupied by
\ncultivators of land, agricultural
\nlabourers and village artisans;\n<\/p>\n
(b)\tthe expression “rights”, in relation to
\nan estate, shall include any rights
\nvesting in a proprietor, sub-\n<\/p>\n
proprietor, under-proprietor, tenure-
\nholder, raiyat, under-raiyat or other
\nintermediary and any rights or
\nprivileges in respect of land revenue.\n<\/p>\n
31B. Validation of certain Acts and
\nRegulations.Without prejudice to the
\ngenerality of the provisions contained in
\narticle 31A<\/a>, none of the Acts and
\nRegulations specified in the Ninth
\nSchedule nor any of the provisions
\nthereof shall be deemed to be void, or
\never to have become void, on the ground
\nthat such Act, Regulation or provision is
\ninconsistent with, or takes away or
\nabridges any of the rights conferred by
\nany provisions of this Part, and
\nnotwithstanding any judgment, decree or
\norder of any court or tribunal to the
\ncontrary, each of the said Acts and
\nRegulations shall, subject to the power of
\nany competent Legislature to repeal or
\namend it, continue in force.”\n<\/p>\n
\tThe Constitutional validity of the First Amendment was
\nupheld in Sri Sankari Prasad Singh Deo v. Union of India
\nand State of Bihar<\/a> [(1952) SCR 89].\n<\/p>\n
The main object of the amendment was to fully secure
\nthe constitutional validity of Zamindari Abolition Laws in
\ngeneral and certain specified Acts in particular and save those
\nprovisions from the dilatory litigation which resulted in
\nholding up the implementation of the social reform measures
\naffecting large number of people.  Upholding the validity of the
\namendment, it was held in Sankari Prasad that Article 13(2)<\/a>
\ndoes not affect amendments to the Constitution made under
\nArticle 368<\/a> because such amendments are made in the
\nexercise of constituent power.  The Constitution Bench held
\nthat to make a law which contravenes the Constitution
\nconstitutionally valid is a matter of constitutional amendment
\nand as such it falls within the exclusive power of Parliament.
\n\tThe Constitutional validity of the Acts added to the Ninth
\nSchedule by the Constitution (Seventeenth Amendment) Act,
\n1964 was challenged in petitions filed under Article 32<\/a> of the
\nConstitution.  Upholding the constitutional amendment and
\nrepelling the challenge in Sajjan Singh v. State of
\nRajasthan<\/a> [(1965) 1 SCR 933] the law declared in Sankari
\nPrasad  was reiterated.  It was noted that Articles 31A and
\n31B were added to the Constitution realizing that State
\nlegislative measures adopted by certain States for giving effect
\nto the policy of agrarian reforms have to face serious challenge
\nin the courts of law on the ground that they contravene the
\nfundamental rights guaranteed to the citizen by Part III.  The
\nCourt observed that the genesis of the amendment made by
\nadding Articles 31A and 31B is to assist the State Legislatures
\nto give effect to the economic policy to bring about much
\nneeded agrarian reforms.  It noted that if pith and substance
\ntest is to apply to the amendment made, it would be clear that
\nthe Parliament is seeking to amend fundamental rights solely
\nwith the object of removing any possible obstacle in the
\nfulfillment of the socio-economic policy viz. a policy in which
\nthe party in power believes.  The Court further noted that the
\nimpugned act does not purport to change the provisions of
\nArticle 226<\/a> and it cannot be said even to have that effect
\ndirectly or in any appreciable measure.  It noted that the
\nobject of the Act was to amend the relevant Articles in Part III
\nwhich confer Fundamental Rights on citizens and as such it
\nfalls under the substantive part of Article 368<\/a> and does not
\nattract the provision of clause (b) of that proviso.  The Court,
\nhowever, noted, that if the effect of the amendment made in
\nthe Fundamental Rights on Article 226<\/a> is direct and not
\nincidental and if in significant order, different considerations
\nmay perhaps arise.\n<\/p>\n
\tJustice Hidayattulah, and Justice J.R. Mudholkar,
\nconcurred with the opinion of Chief Justice Gajendragadkar
\nupholding the amendment but, at the same time, expressed
\nreservations about the effect of possible future amendments
\non Fundamental Rights and basic structure of the
\nConstitution.  Justice Mudholkar questioned that “It is also a
\nmatter for consideration whether making a change in a basic
\nfeature of the Constitution can be regarded merely as an
\namendment or would it be, in effect, rewriting a part of the
\nConstitution; and if the latter, would it be within the purview
\nof the Article 368?”<\/a>\n<\/p>\n
\tIn I.C. Golak Nath & Ors. v. State of Punjab & Anr<\/a>.
\n[(1967) 2 SCR 762] a Bench of 11 Judges considered the
\ncorrectness of the view that had been taken in Sankari
\nPrasad and Sajjan Singh (supra).  By majority of six to five,
\nthese decisions were overruled.  It was held that the
\nconstitutional amendment is ‘law’ within the meaning of
\nArticle 13<\/a> of the Constitution and, therefore, if it takes away or
\nabridges the rights conferred by Part III thereof, it is void.  It
\nwas declared that the Parliament will have no power from the
\ndate of the decision (27th February, 1967) to amend any of the
\nprovisions of Part III of the Constitution so as to take away or
\nabridge the fundamental rights enshrined therein.
\n\tSoon after Golak Nath’s case, the Constitution (24th
\nAmendment) Act<\/a>, 1971, the Constitution (25th Amendment)
\nAct<\/a>, Act, 1971, the Constitution (26th Amendment) Act<\/a>, 1971
\nand the Constitution (29th Amendment) Act<\/a>, 1972 were
\npassed.\n<\/p>\n
\tBy Constitution (24th Amendment) Act<\/a>, 1971, Article 13<\/a>
\nwas amended and after clause (3), the following clause was
\ninserted as Article 13(4) :<\/a>\n<\/p>\n
“13(4) Nothing in this article shall apply
\nto any amendment of this Constitution
\nmade under article 368.”<\/a>\n<\/p>\n
\tArticle 368<\/a> was also amended and in Article 368(1)<\/a> the
\nwords “in exercise of its constituent powers” were inserted.
\n\tThe Constitution (25th Amendment) Act<\/a>, 1971 amended
\nthe provision of Article 31<\/a> dealing with compensation for
\nacquiring or acquisition of properties for public purposes so
\nthat only the amount fixed by law need to be given and this
\namount could not be challenged in court on the ground that it
\nwas not adequate or in cash.  Further, after Article 31B<\/a> of the
\nConstitution, Article 31C<\/a> was inserted, namely :
\n“31C.Saving of laws giving effect to
\ncertain directive principles.
\nNotwithstanding anything contained in
\narticle 13<\/a>, no law giving effect to the
\npolicy of the State towards securing all or
\nany of the principles laid down in Part IV
\nshall be deemed to be void on the ground
\nthat it is inconsistent with, or takes away
\nor abridges any of the rights conferred by
\narticle 14<\/a> or article 19<\/a> and no law
\ncontaining a declaration that it is for giving
\neffect to such policy shall be called in
\nquestion in any court on the ground that it
\ndoes not give effect to such policy :\n<\/p>\n
Provided that where such law is made by
\nthe Legislature of a State, the provisions
\nof this article shall not apply thereto
\nunless such law, having been reserved for
\nthe consideration of the President, has
\nreceived his assent.”\n<\/p>\n
\tThe Constitution (26th Amendment) Act<\/a>, 1971 omitted
\nfrom Constitution Articles 291 (Privy Purses) and Article 362
\n(rights<\/a> and privileges of Rulers of Indian States)<\/a> and inserted
\nArticle 363A<\/a> after Article 363<\/a> providing that recognition
\ngranted to Rulers of Indian States shall cease and privy purses
\nbe abolished.\n<\/p>\n
\tThe Constitution (29th Amendment) Act<\/a>, 1972 amended
\nthe Ninth Schedule to the Constitution inserting therein two
\nKerala Amendment Acts in furtherance of land reforms after
\nEntry 64, namely, Entry 65  Kerala Land Reforms
\nAmendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66
\nKerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of
\n1971).\n<\/p>\n
\tThese amendments were challenged in Kesavananda
\nBharati’s case.  The decision in Kesavananda Bharati’s
\ncase was rendered on 24th April, 1973 by a 13 Judges Bench
\nand by majority of seven to six Golak Nath’s case was
\noverruled.  The majority opinion held that Article 368<\/a> did not
\nenable the Parliament to alter the basic structure or
\nframework of the Constitution.  The Constitution (24th
\nAmendment) Act<\/a>, 1971 was held to be valid.  Further, the first
\npart of Article 31C<\/a> was also held to be valid.  However, the
\nsecond part of Article 31C<\/a> that “no law containing a
\ndeclaration that it is for giving effect to such policy shall be
\ncalled in question in any court on the ground that it does not
\ngive effect to such policy” was declared unconstitutional.  The
\nConstitution 29th Amendment was held valid.  The validity of
\nthe 26th Amendment was left to be determined by a
\nConstitution Bench of five Judges.\n<\/p>\n
\tThe majority opinion did not accept the unlimited power
\nof the Parliament to amend the Constitution and instead held
\nthat Article 368<\/a> has implied limitations.  Article 368<\/a> does not
\nenable the Parliament to alter the basic structure or
\nframework of the Constitution.\n<\/p>\n
\tAnother important development took place in June,
\n1975, when the Allahabad High Court set aside the election of
\nthe then Prime Minister Mrs. Indira Gandhi to the fifth Lok
\nSabha on the ground of alleged corrupt practices.  Pending
\nappeal against the High Court judgment before the Supreme
\nCourt, the Constitution (39th Amendment) Act<\/a>, 1975 was
\npassed.  Clause (4) of the amendment inserted Article 329A<\/a>
\nafter Article 329.<\/a>  Sub-clauses (4) and (5) of Article 329A<\/a> read
\nas under :\n<\/p>\n
“(4) No law made by Parliament before the
\ncommencement of the Constitution
\n(Thirty-ninth Amendment) Act, 1975, in
\nso far as it relates to election petitions
\nand matters connected therewith, shall
\napply or shall be deemed ever to have
\napplied to or in relation to the election of
\nany such person as is referred to in
\nClause (1) to either House of Parliament
\nand such election shall not be deemed to
\nbe void or ever to have become void on
\nany ground on which such election could
\nbe declared to be void or has, before such
\ncommencement, been declared to be void
\nunder any such law and notwithstanding
\nany order made by any court, before such
\ncommencement, declaring such election
\nto be void, such election shall continue to
\nbe valid in all respects and any such
\norder and any finding on which such
\norder is based shall be and shall be
\ndeemed always to have been void and of
\nno effect.\n<\/p>\n
(5) Any appeal or cross appeal against
\nany such order of any court as is referred
\nto in Clause (4) pending immediately
\nbefore the commencement of the
\nConstitution (Thirty-ninth Amendment)
\nAct, 1975, before the Supreme Court
\nshall be disposed of in conformity with
\nthe provisions of Clause (4).”\n<\/p>\n
\tClause (5) of the Amendment Act<\/a> inserted after Entry 86,
\nEntries 87 to 124 in the Ninth Schedule.  Many of the Entries
\ninserted were unconnected with land reforms.
\n\tIn Smt. Indira Nehru Gandhi v. Raj Narain<\/a> [1975
\nSupp. (1) SCC 1] the aforesaid clauses were struck down by
\nholding them to be violative of the basic structure of the
\nConstitution.\n<\/p>\n
About two weeks before the Constitution Bench rendered
\ndecision in Indira Gandhi’s case, internal emergency was
\nproclaimed in the country.  During the emergency from 26th
\nJune, 1975 to March, 1977, Article 19<\/a> of the Constitution
\nstood suspended by virtue of Article 358<\/a> and Articles 14 and
\n21 by virtue of Article 359.<\/a>  During internal emergency,
\nParliament passed Constitution (40th Amendment) Act<\/a>, 1976.
\nBy clause (3) of the said amendment, in the Ninth Schedule,
\nafter Entry 124, Entries 125 to 188 were inserted.  Many of
\nthese entries were unrelated to land reforms.
\n\tArticle 368<\/a> was amended by the Constitution (42nd
\nAmendment) Act<\/a>, 1976. It, inter alia, inserted by Section 55<\/a> of
\nthe Amendment Act, in Article 368<\/a>, after clause (3), the
\nfollowing clauses (4) and (5) :\n<\/p>\n
“368(4)\tNo amendment of this
\nConstitution (including the provisions of
\nPart III) made or purporting to have been
\nmade under this article whether before or
\nafter the commencement of section 55 of
\nthe Constitution (Forty-second
\nAmendment) Act, 1976 shall be called in
\nquestion in any court on any ground.\n<\/p>\n
(5)\tFor the removal of doubts, it is
\nhereby declared that there shall be no
\nlimitation whatever on the constituent
\npower of Parliament to amend by way of
\naddition, variation or repeal the
\nprovisions of this Constitution under this
\narticle.”\n<\/p>\n
\tAfter the end of internal emergency, the Constitution
\n(44th Amendment) Act<\/a>, 1978 was passed.  Section 2<\/a>, inter alia,
\nomitted sub-clauses (f) of Article 19<\/a> with the result the right to
\nproperty ceased to be a fundamental right and it became only
\nlegal right by insertion of Article 300A<\/a> in the Constitution.
\nArticles 14, 19 and 21 became enforceable after the end of
\nemergency.  The Parliament also took steps to protect
\nfundamental rights that had been infringed during emergency.
\nThe Maintenance of Internal Security Act, 1971 and the
\nPrevention of Publication of Objectionable Matter Act, 1976
\nwhich had been placed in the Ninth Schedule were repealed.
\nThe Constitution (44th Amendment) Act<\/a> also amended Article
\n359<\/a> of the Constitution to provide that even though other
\nfundamental rights could be suspended during the emergency,
\nrights conferred by Articles 20 and 21 could not be suspended.
\nDuring emergency, the fundamental rights were read
\neven more restrictively as interpreted by majority in
\nAdditional District Magistrate, Jabalpur v. Shivakant
\nShukla<\/a> [(1976) 2 SCC 521].  The decision in Additional
\nDistrict Magistrate, Jabalpur  about the restrictive reading
\nof right to life and liberty stood impliedly overruled by various
\nsubsequent decisions.\n<\/p>\n
\tThe fundamental rights received enlarged judicial
\ninterpretation in the post-emergency period.  Article 21<\/a> which
\nwas given strict textual meaning in A.K Gopalan v. The State
\nof Madras<\/a> [1950 SCR 88] interpreting the words “according
\nto procedure established by law” to mean only enacted law,
\nreceived enlarged interpretation in Menaka Gandhi v. Union
\nof India<\/a> [(1978) 1 SCC 248].  A.K. Gopalan was no longer
\ngood law.   In Menaka Gandhi a Bench of Seven Judges held
\nthat the procedure established by law in Article 21<\/a> had to be
\nreasonable and not violative of Article 14<\/a> and also that
\nfundamental rights guaranteed by Part III were distinct and
\nmutually exclusive rights.\n<\/p>\n
\tIn Minerva Mills case (supra), the Court struck down
\nclauses (4) and (5) and Article 368<\/a> finding that they violated
\nthe basic structure of the Constitution.
\nThe next decision to be noted is that of Waman Rao
\n(supra).  The developments that had taken place post-
\nKesavananda Bharati’s case have been noticed in this
\ndecision.\n<\/p>\n
In Bhim Singhji (supra), challenge was made to the
\nvalidity of Urban Land (Ceiling and Regulation) Act<\/a>, 1976
\nwhich had been inserted in the Ninth Schedule after
\nKesavananda Bharati’s case. The Constitution Bench
\nunanimously held that Section 27(1)<\/a> which prohibited disposal
\nof property within the ceiling limit was violative of Articles 14
\nand 19(1)(f) of Part III.  When the said Act was enforced in
\nFebruary 1976, Article 19(1)(f)<\/a> was part of fundamental rights
\nchapter and as already noted it was omitted therefrom only  in
\n1978 and made instead only a legal right under Article 300A.<\/a>
\nIt was held in L. Chandra Kumar v. Union of India &
\nOrs<\/a>. [(1997) 3 SCC 261] that power of judicial review is an
\nintegral and essential feature of the Constitution constituting
\nthe basic part, the jurisdiction so conferred on the High
\nCourts and the Supreme Court is a part of inviolable basic
\nstructure of Constitution of India.\n<\/p>\n
Constitutional Amendment of Ninth Schedule
\nIt would be convenient to note at one place, various
\nconstitutional amendments which added\/omitted various
\nActs\/provisions in Ninth Schedule from Item No.1 to 284.  It is
\nas under :\n<\/p>\n
“Amendment
\nAct<\/a>s\/Provisions
\nadded
\n1st Amendment (1951)
\n1-13
\n4th Amendment (1955)
\n14-20
\n17th Amendment  (1964)
\n21-64
\n29th Amendment (1971)
\n65-66
\n34th Amendment (1974)
\n67-86
\n39th Amendment (1975)
\n87-124
\n40th Amendment (1976)
\n125-188
\n47th Amendment (1984)
\n189-202
\n66th Amendment (1990)
\n203-257
\n76th Amendment (1994)
\n257A
\n78th Amendment (1995)
\n258-284
\n Omission
\nIn 1978 item 92 (Internal Security Act)
\nwas repealed by Parliamentary Act<\/a>.\n<\/p>\n
In 1977 item 130 (Prevention of
\nPublication of Objectionable Matter) was
\nrepealed.\n<\/p>\n
In 1978 the 44th amendment omitted
\nitems 87 (The Representation of People
\nAct<\/a>), 92 and 130.”\n<\/p>\n
Many additions are unrelated to land
\nreforms.\n<\/p>\n
The question is as to the scope of challenge to Ninth
\nSchedule laws after 24th April, 1973
\nArticle 32<\/a>
\nThe significance of jurisdiction conferred on this Court by
\nArticle 32<\/a> is described by Dr. B.R. Ambedkar as follows
\n“most important Article without which
\nthis Constitution would be nullity”\n<\/p>\n
Further, it has been described as “the very soul of the
\nConstitution and the very heart of it”.
\nReference may also be made to the opinion of Chief
\nJustice Patanjali Sastri in State of Madras v. V.G. Row<\/a>
\n[1952 SCR 597] to the following effect :
\n“This is especially true as regards the
\n“fundamental rights” as to which the
\nSupreme Court has been assigned the
\nrole of a sentinel on the qui vive. While
\nthe Court naturally attaches great weight
\nto the legislative judgment, it cannot
\ndesert its own duty to determine finally
\nthe constitutionality of an impugned
\nstatute.”\n<\/p>\n
The jurisdiction conferred on this Court by Article 32<\/a> is
\nan important and integral part of the basic structure of the
\nConstitution of India and no act of Parliament can abrogate it
\nor take it away except by way of impermissible erosion of
\nfundamental principles of the constitutional scheme are
\nsettled propositions of Indian jurisprudence [see Fertilizer
\nCorporation Kamgar Union (Regd.), Sindri & Ors. v. Union
\nof India and Ors<\/a>.[(1981) 1 SCC 568], State of Rajasthan v.
\nUnion of India & Ors<\/a>. [(1977) 3 SCC 592], M. Krishna
\nSwami v. Union of India & Ors<\/a>. [(1992) 4 SCC 605],
\nDaryao & Ors. v. The State of U.P. & Ors. [(1962) 1 SCR
\n574] and L. Chandra Kumar (supra).\n<\/p>\n
In S.R. Bommai & Ors. v. Union of India & Ors<\/a>.
\n[(1994) 3 SCC 1] it was reiterated that the judicial review is a
\nbasic feature of the Constitution and that the power of judicial
\nreview is a constituent power that cannot be abrogated by
\njudicial process of interpretation.   It is a cardinal principle of
\nour Constitution that no one can claim to be the sole judge of
\nthe power given under the Constitution and that its actions
\nare within the confines of the powers given by the
\nConstitution.\n<\/p>\n
It is the duty of this Court to uphold the constitutional
\nvalues and enforce constitutional limitations as the ultimate
\ninterpreter of the Constitution.\n<\/p>\n
Principles of Construction
\nThe Constitution is a living document.  The constitutional
\nprovisions have to be construed having regard to the march of
\ntime and the development of law.  It is, therefore, necessary
\nthat while construing the doctrine of basic structure due
\nregard be had to various decisions which led to expansion and
\ndevelopment of the law.\n<\/p>\n
The principle of constitutionalism is now a legal principle
\nwhich requires control over the exercise of Governmental
\npower to ensure that it does not destroy the democratic
\nprinciples upon which it is based.  These democratic principles
\ninclude the protection of fundamental rights.  The principle of
\nconstitutionalism advocates a check and balance model of the
\nseparation of powers, it requires a diffusion of powers,
\nnecessitating different independent centers of decision
\nmaking.  The principle of constitutionalism underpins the
\nprinciple of legality which requires the Courts to interpret
\nlegislation on the assumption that Parliament would not wish
\nto legislate contrary to fundamental rights.  The Legislature
\ncan restrict fundamental rights but it is impossible for laws
\nprotecting fundamental rights to be impliedly repealed by
\nfuture statutes.\n<\/p>\n
Common Law Constitutionalism
\n\tThe protection of fundamental constitutional rights
\nthrough the common law is main feature of common law
\nconstitutionalism.\n<\/p>\n
\tAccording to Dr. Amartya Sen, the justification for
\nprotecting fundamental rights is not on the assumption that
\nthey are higher rights, but that protection is the best way to
\npromote a just and tolerant society.\n<\/p>\n
\tAccording to Lord Steyn, judiciary is the best institution
\nto protect fundamental rights, given its independent nature
\nand also because it involves interpretation based on the
\nassessment of values besides textual interpretation.  It enables
\napplication of the principles of justice and law.
\nUnder the controlled Constitution, the principles of
\nchecks and balances have an important role to play.  Even in
\nEngland where Parliament is sovereign, Lord Steyn has
\nobserved that in certain circumstances, Courts may be forced
\nto modify the principle of parliamentary sovereignty, for
\nexample, in cases where judicial review is sought to be
\nabolished.  By this the judiciary is protecting a limited form of
\nconstitutionalism, ensuring that their institutional role in the
\nGovernment is maintained.\n<\/p>\n
Principles of Constitutionality
\nThere is a difference between Parliamentary and
\nconstitutional sovereignty.  Our Constitution is framed by a
\nConstituent Assembly which was not the Parliament.  It is in
\nthe exercise of law making power by the Constituent Assembly
\nthat we have a controlled Constitution.  Articles 14, 19, 21
\nrepresent the foundational values which form the basis of the
\nrule of law.  These are the principles of constitutionality which
\nform the basis of judicial review apart from the rule of law and
\nseparation of powers.  If in future, judicial review was to be
\nabolished by a constituent amendment, as Lord Steyn says,
\nthe principle of parliamentary sovereignty even in England
\nwould require a relook.  This is how law has developed in
\nEngland over the years.  It is in such cases that doctrine of
\nbasic structure as propounded in Kesavananda Bharati’s
\ncase has to apply.\n<\/p>\n
Granville Austin has been extensively quoted and relied
\non in Minerva Mills.  Chief Justice Chandrachud observed
\nthat to destroy the guarantees given by Part III in order to
\npurportedly achieve the goals of Part IV is plainly to subvert
\nthe Constitution by destroying its basic structure.
\nFundamental rights occupy a unique place in the lives of
\ncivilized societies and have been described in judgments as
\n“transcendental”, “inalienable” and “primordial”.  They
\nconstitute the ark of the Constitution.  (Kesavananda
\nBharati  P.991, P.999).  The learned Chief Justice held that
\nParts III and IV together constitute the core of commitment to
\nsocial revolution and they, together, are the conscience of the
\nConstitution.  It is to be traced for a deep understanding of the
\nscheme of the Indian Constitution.  The goals set out in Part
\nIV have, therefore, to be achieved without the abrogation of the
\nmeans provided for by Part III.  It is in this sense that Part III
\nand IV together constitute the core of our Constitution and
\ncombine to form its conscience.  Anything that destroys the
\nbalance between the two parts will ipso facto destroy the
\nessential element of the basic structure of the
\nConstitution. [Emphasis supplied] (Para 57).  Further
\nobserves the learned Chief Justice, that the matters have to be
\ndecided not by metaphysical subtlety, nor as a matter of
\nsemantics, but by a broad and liberal approach.  We must not
\nmiss the wood for the trees.  A total deprivation of
\nfundamental rights, even in a limited area, can amount to
\nabrogation of a fundamental right just as partial deprivation in
\nevery area can.  The observations made in the context of
\nArticle 31C<\/a> have equal and full force for deciding the questions
\nin these matters.  Again the observations made in Para 70 are
\nvery relevant for our purposes.  It has been observed that if by
\na Constitutional Amendment, the application of Articles 14
\nand 19 is withdrawn from a defined field of legislative activity,
\nwhich is reasonably in public interest, the basic framework of
\nthe Constitution may remain unimpaired.  But if the
\nprotection of those Articles is withdrawn in respect of an
\nuncatalogued variety of laws, fundamental freedoms will
\nbecome a ‘parchment in a glass case’ to be viewed as a matter
\nof historical curiosity.  These observations are very apt for
\ndeciding the extent and scope of judicial review in cases
\nwherein entire Part III, including Articles 14, 19, 20, 21 and
\n32, stand excluded without any yardstick.
\nThe developments made in the field of interpretation and
\nexpansion of judicial review shall have to be kept in view while
\ndeciding the applicability of the basic structure doctrine  to
\nfind out whether there has been violation of any fundamental
\nright, the extent of violation, does it destroy the balance or it
\nmaintains the reasonable balance.\n<\/p>\n
\tThe observations of Justice Bhagwati in Minerva Mills
\ncase show how clause (4) of Article 368<\/a> would result in
\nenlarging the amending power of the Parliament contrary to
\ndictum in Kesavananda Bharati’s case.  The learned Judge
\nhas said in Paragraph 85 that :\n<\/p>\n
“So long as clause (4) stands, an
\namendment of the Constitution though
\nunconstitutional and void as
\ntransgressing the limitation on the
\namending power of Parliament as laid
\ndown in Kesavananda Bharati’s case,
\nwould be unchallengeable in a court of
\nlaw. The consequence of this exclusion of
\nthe power of judicial review would be
\nthat, in effect and substance, the
\nlimitation on the amending power of
\nParliament would, from a practical point
\nof view, become non-existent and it would
\nnot be incorrect to say that, covertly and
\nindirectly, by the exclusion of judicial
\nreview, the amending power of Parliament
\nwould stand enlarged, contrary to the
\ndecision of this Court in Kesavananda
\nBharati case. This would undoubtedly
\ndamage the basic structure of the
\nConstitution, because there are two
\nessential features of the basic structure
\nwhich would be violated, namely, the
\nlimited amending power of Parliament
\nand the power of judicial review with a
\nview to examining whether any authority
\nunder the Constitution has exceeded the
\nlimits of its powers.”\n<\/p>\n
\tIn Minerva Mills while striking down the enlargement of
\nArticle 31C<\/a> through 42nd Amendemnt which had replaced the
\nwords “of or any of the principles laid down in Part IV” with
\n“the principles specified in clause (b) or clause (c) and Article
\n39<\/a>“, Justice Chandrachud said :\n<\/p>\n
“Section 4<\/a> of the Constitution (42nd
\nAmendment) Act<\/a> is beyond the amending
\npower of the Parliament and is void since
\nit damages the basic or essential features
\nof the Constitution and destroys its basic
\nstructure by a total exclusion of challenge
\nto any law on the ground that it is
\ninconsistent with, or takes away or
\nabridges any of the rights conferred by
\nArticle 14<\/a> or Article 19<\/a> of the
\nConstitution, if the law is for giving effect
\nto the policy of the State towards
\nsecuring all or any of the principles laid
\ndown in Part IV of the Constitution.”\n<\/p>\n
In Indira Gandhi’s case, for the first time the challenge
\nto the constitutional amendment was not in respect of the
\nrights to property or social welfare, the challenge was with
\nreference to an electoral law.  Analysing this decision, H.M.
\nSeervai in Constitutional Law of India (Fourth Edition) says
\nthat “the judgment in the election case break new ground,
\nwhich has important effects on Kesavananda Bharati’s case
\nitself (Para 30.18).  Further the author says that “No one can
\nnow write on the amending power, without taking into account
\nthe effect of the Election case”. (Para 30.19).  The author then
\ngoes on to clarify the meaning of certain concepts
\n‘constituent power’, ‘Rigid’ (controlled), or ‘flexible’
\n(uncontrolled) constitution, ‘primary power’, and ‘derivative
\npower’.\n<\/p>\n
The distinction is drawn by the author between making
\nof a Constitution by a Constituent Assembly which was not
\nsubject to restraints by any external authority as a plenary law
\nmaking power and a power to amend the Constitution, a
\nderivative power derived from the Constitution and subject to
\nthe limitations imposed by the Constitution.   No provision of
\nthe Constitution framed in exercise of plenary law making
\npower can be ultra vires because there is no touch-stone
\noutside the Constitution by which the validity of provision of
\nthe Constitution can be adjudged.  The power for amendment
\ncannot be equated with such power of framing the
\nConstitution. The amending power has to be within the
\nConstitution and not outside it.\n<\/p>\n
For determining whether a particular feature of the
\nConstitution is part of its basic structure, one has per force to
\nexamine in each individual case the place of the particular
\nfeature in the scheme of our Constitution, its object and
\npurpose, and the consequences of its denial on the integrity of
\nthe Constitution as a fundamental instrument of the country’s
\ngovernance (Chief Justice Chandrachud in Indira Gandhi’s
\ncase).\n<\/p>\n
The fundamentalness of fundamental rights has thus to
\nbe examined having regard to the enlightened point of view as
\na result of development of fundamental rights over the years.
\nIt is, therefore, imperative to understand the nature of
\nguarantees under fundamental rights as understood in the
\nyears that immediately followed after the Constitution was
\nenforced when fundamental rights were viewed by this Court
\nas distinct and separate rights.  In early years, the scope of the
\nguarantee provided by these rights was considered to be very
\nnarrow.  Individuals could only claim limited protection
\nagainst the State.  This position has changed since long.  Over
\nthe years, the jurisprudence and development around
\nfundamental rights has made it clear that they are not limited,
\nnarrow rights but provide a broad check against the violations
\nor excesses by the State authorities.  The fundamental rights
\nhave in fact proved to be the most significant constitutional
\ncontrol on the Government, particularly legislative power.
\nThis transition from a set of independent, narrow rights to
\nbroad checks on state power is demonstrated by a series of
\ncases that have been decided by this Court.  In The State of
\nBombay v. Bhanji Munji & Anr<\/a>. [(1955) 1 SCR 777] relying
\non the ratio of Gopalan it was held that Article 31<\/a> was
\nindependent of Article 19(1)(f).<\/a> However, it was in Rustom
\nCavasjee Cooper v. Union of India<\/a> [(1970) 3 SCR 530]
\n(popularly known as Bank Nationalization case) the view
\npoint of Gopalan was seriously disapproved.  While rendering
\nthis decision, the focus of the Court was on the actual
\nimpairment caused by the law, rather than the literal validity
\nof the law.  This view was reflective of the decision taken in the
\ncase of Sakal Papers (P) Ltd. & Ors. v. The Union of India<\/a>
\n[(1962) 3 SCR 842] where the court was faced with the
\nvalidity of certain legislative measures regarding the control of
\nnewspapers and whether it amounted to infringement of
\nArticle 19(1)(a).<\/a>  While examining this question the Court
\nstated that the actual effect of the law on the right guaranteed
\nmust be taken into account.  This ratio was applied in Bank
\nNationalization case.  The Court examined the relation
\nbetween Article 19(1)(f)<\/a> and Article 13<\/a> and held that they were
\nnot mutually exclusive.  The ratio of Gopalan was not
\napproved.\n<\/p>\n
Views taken in Bank Nationalization case has been
\nreiterated in number of cases (see Sambhu Nath Sarkar v.
\nThe State of West Bengal & Ors<\/a>. [(1974) 1 SCR 1],
\nHaradhan Saha & Anr. v. The State of West Bengal &
\nOrs<\/a>. [(1975) 1 SCR 778] and Khudiram Das v. The State of
\nWest Bengal & Ors<\/a>. [(1975) 2 SCR 832]  and finally the
\nlandmark judgment in the case of Maneka Gandhi (supra).
\nRelying upon Cooper’s case it was said that Article 19(1)<\/a> and
\n21<\/a> are not mutually exclusive.  The Court observed in Maneka
\nGandhi’s case:\n<\/p>\n
“The law, must, therefore, now be taken
\nto be well settled that Article 21<\/a> does not
\nexclude Article 19<\/a> and that even if there
\nis a law prescribing a procedure for
\ndepriving a person of ‘personal liberty’
\nand there is consequently no
\ninfringement of the fundamental right
\nconferred by Article 21<\/a>, such law, in so
\nfar as it abridges or takes away any
\nfundamental right under Article 19<\/a> would
\nhave to meet the challenge of that article.
\nThis proposition can no longer be
\ndisputed after the decisions in R. C.\n<\/p>\n
Cooper’s case, Shambhu Nath Sarkar’s
\ncase and Haradhan Saha’s case. Now, if a
\nlaw depriving a person of ”personal
\nliberty’ and prescribing a procedure for
\nthat purpose within the meaning of
\nArticle 21<\/a> has to stand the test of one or
\nmore of the fundamental rights conferred
\nunder Article 19<\/a> which may be applicable
\nin a given, situation, ex hypothesi it must
\nalso’ be liable to be tested with reference
\nto Article 14.<\/a> This was in fact not
\ndisputed by the learned Attorney General
\nand indeed he could not do so in view of
\nthe clear and categorical statement made
\nby Mukherjea, J., in A. K. Gopalan’s case
\nthat Article 21 “<\/a>presupposes that the law
\nis a valid and binding law under the
\nprovisions of the Constitution having
\nregard to the competence of the
\nlegislature and the subject it “relates to
\nand does not infringe any of the
\nfundamental rights which the
\nConstitution provides for”, including
\nArticle 14.<\/a> This Court also applied Article
\n14<\/a> in two of its earlier decisions, namely,
\nThe State of West Bengal v. Anwar Ali
\nSarkar<\/a> [1952] S.C.R. 284 and Kathi
\nRaning Rawat v. The State of Saurashtra<\/a>
\n[1952] S.C.R. 435]”\n<\/p>\n
\t\t\t\t        [emphasis supplied]<\/p>\n
The decision also stressed on the application of Article 14<\/a>
\nto a law under Article 21<\/a> and stated that even principles of
\nnatural justice be incorporated in such a test.  It was held:
\n“In fact equality and arbitrariness are
\nsworn enemies; one belongs to the rule of
\nlaw in a republic, while the other, to the
\nwhim and caprice of an absolute
\nmonarch. Where an act is arbitrary, it is
\nimplicit in it that it is unequal both
\naccording to political logic and
\nconstitutional law and is therefore
\nviolative of Article 14″.<\/a> Article 14<\/a> strikes
\nat arbitrariness in State action and
\nensures fairness and equality of
\ntreatment. The principle of
\nreasonableness, which legally as well as
\nphilosophically, is an essential element of
\nequality or non-arbitrariness pervades
\nArticle 14<\/a> like a brooding omnipresence
\nand the procedure contemplated by
\nArticle 21<\/a> must answer the best of
\nreasonableness in order to be in
\nconformity with Article 14.<\/a> It must be
\n“right and just and fair” and not
\narbitrary, fanciful or oppressive;\n<\/p>\n
otherwise, it would be no procedure at all
\nand the requirement of Article 21<\/a> would
\nnot be satisfied.\n<\/p>\n
Any procedure which permits impairment
\nof the constitutional right to go abroad
\nwithout giving reasonable opportunity to
\nshow cause cannot but be condemned as
\nunfair and unjust and hence, there is in
\nthe present case clear infringement of the
\nrequirement of Article 21″.<\/a>\n<\/p>\n
\t\t\t\t\t\t[emphasis supplied]<\/p>\n
The above position was also reiterated by Krishna Iyer J.,
\nas follows :\n<\/p>\n
“The Gopalan (supra) verdict, with the
\ncocooning of Article 22<\/a> into a self
\ncontained code, has suffered
\nsupersession at the hands of R. C.\n<\/p>\n
Cooper(1) By way of aside, the fluctuating
\nfortunes of fundamental rights, when the
\nproletarist and the proprietariat have
\nasserted them in Court, partially provoke
\nsociological research and hesitantly
\nproject the Cardozo thesis of sub-\n<\/p>\n
conscious forces in judicial noesis when
\nthe cyclorarmic review starts from
\nGopalan, moves on to In re : Kerala
\nEducation Bill and then on to All India
\nBank Employees Union, next to Sakal
\nNewspapers, crowning in Cooper [1973] 3
\nS.C.R. 530 and followed by Bennet
\nColeman and Sambu Nath Sarkar. Be
\nthat as it may, the law is now settled, as I
\napprehend it, that no article in Part III is
\nan island but part of a continent, and the
\nconspectus of the whole part gives the
\ndirections and correction needed for
\ninterpretation of these basic provisions.
\nMan is not dissectible into separate limbs
\nand, likewise, cardinal rights in an
\norganic constitution, which make man
\nhuman have a synthesis. The proposition
\nis indubitable that Article 21<\/a> does not, in
\na given situation, exclude Article 19<\/a> if
\nboth rights are breached.”\n<\/p>\n
\t\t\t\t[emphasis supplied]<\/p>\n
It is evident that it can no longer be contended that
\nprotection provided by fundamental rights comes in isolated
\npools.  On the contrary, these rights together provide a
\ncomprehensive guarantee against excesses by state
\nauthorities.   Thus post-Maneka Gandhi’s case it is clear
\nthat the development of fundamental rights has been such
\nthat it no longer involves the interpretation of rights as
\nisolated protections which directly arise but they collectively
\nform a comprehensive test against the arbitrary exercise of
\nstate power in any area that occurs as an inevitable
\nconsequence.  The protection of fundamental rights has,
\ntherefore, been considerably widened.
\nThe approach in the interpretation of fundamental rights
\nhas been evidenced in a recent case M. Nagaraj & Ors. v.
\nUnion of India & Ors<\/a>. [(2006) 8 SCC 212] in which the
\nCourt noted:\n<\/p>\n
“This principle of interpretation is
\nparticularly apposite to the interpretation
\nof fundamental rights. It is a fallacy to
\nregard fundamental rights as a gift from
\nthe State to its citizens. Individuals
\npossess basic human rights
\nindependently of any constitution by
\nreason of the basic fact that they are
\nmembers of the human race. These
\nfundamental rights are important as they
\npossess intrinsic value. Part-III of the
\nConstitution does not confer fundamental
\nrights. It confirms their existence and
\ngives them protection. Its purpose is to
\nwithdraw certain subjects from the area
\nof political controversy to place them
\nbeyond the reach of majorities and
\nofficials and to establish them as legal
\nprinciples to be applied by the courts.
\nEvery right has a content. Every
\nfoundational value is put in Part-III as
\nfundamental right as it has intrinsic
\nvalue. The converse does not apply. A
\nright becomes a fundamental right
\nbecause it has foundational value. Apart
\nfrom the principles, one has also to see
\nthe structure of the Article in which the
\nfundamental value is incorporated.\n<\/p>\n
Fundamental right is a limitation on the
\npower of the State. A Constitution, and in
\nparticular that of it which protects and
\nwhich entrenches fundamental rights and
\nfreedoms to which all persons in the
\nState are to be entitled is to be given a
\ngenerous and purposive construction. In
\nSakal Papers (P) Ltd. v. Union of India
\nand Ors<\/a>. [AIR 1967 SC 305] this Court
\nhas held that while considering the
\nnature and content of fundamental
\nrights, the Court must not be too astute
\nto interpret the language in a literal sense
\nso as to whittle them down. The Court
\nmust interpret the Constitution in a
\nmanner which would enable the citizens
\nto enjoy the rights guaranteed by it in the
\nfullest measure. An instance of literal and
\nnarrow interpretation of a vital
\nfundamental right in the Indian
\nConstitution is the early decision of the
\nSupreme Court in A.K. Gopalan v. State
\nof Madras<\/a>. Article 21<\/a> of the Constitution
\nprovides that no person shall be deprived
\nof his life and personal liberty except
\naccording to procedure established by
\nlaw. The Supreme Court by a majority
\nheld that ‘procedure established by law’
\nmeans any procedure established by law
\nmade by the Parliament or the
\nlegislatures of the State. The Supreme
\nCourt refused to infuse the procedure
\nwith principles of natural justice. It
\nconcentrated solely upon the existence of
\nenacted law. After three decades, the
\nSupreme Court overruled its previous
\ndecision in A.K. Gopalan and held in its
\nlandmark judgment in Maneka Gandhi
\nv. Union of India<\/a> [(1978) 1 SCC 248]
\nthat the procedure contemplated by
\nArticle 21<\/a> must answer the test of
\nreasonableness. The Court further held
\nthat the procedure should also be in
\nconformity with the principles of natural
\njustice. This example is given to
\ndemonstrate an instance of expansive
\ninterpretation of a fundamental right. The
\nexpression ‘life’ in Article 21<\/a> does not
\nconnote merely physical or animal
\nexistence. The right to life includes right
\nto live with human dignity. This Court
\nhas in numerous cases deduced
\nfundamental features which are not
\nspecifically mentioned in Part-III on the
\nprinciple that certain unarticulated rights
\nare implicit in the enumerated
\nguarantees”.\n<\/p>\n
[Emphasis supplied]<\/p>\n
The abrogation or abridgment of the fundamental rights
\nunder Chapter III have, therefore, to be examined on broad
\ninterpretation, the narrow interpretation of fundamental rights
\nchapter is a thing of past.   Interpretation of the Constitution
\nhas to be such as to enable the citizens to enjoy the rights
\nguaranteed by Part III in the fullest measure.
\nSeperation of Powers
\nThe separation of powers between Legislature, Executive
\nand the Judiciary constitutes basic structure, has been found
\nin Kesavananda Bharati’s case by the majority.  Later, it
\nwas reiterated in Indira Gandhi’s case.  A large number of
\njudgments have reiterated that the separation of powers is one
\nof the basic features of the Constitution.
\nIn fact, it was settled centuries ago that for preservation
\nof liberty and prevention of tyranny it is absolutely essential to
\nvest separate powers in three different organs. In Federalist
\n47, 48, and 51 James Madison details how a separation of
\npowers preserves liberty and prevents tyranny.  In Federalist
\n47, Madison discusses Montesquieu’s treatment of the
\nseparation of powers in the Spirit of Laws (Boox XI, Ch. 6).
\nThere Montesquieu writes, “When the legislative and executive
\npowers are united in the same person, or in the same body of
\nmagistrates, there can be no liberty. . . Again, there is no
\nliberty, if the judicial power be not separated from the
\nlegislative and executive.”  Madison points out that
\nMontesquieu did not feel that different branches could not
\nhave overlapping functions, but rather that the power of one
\ndepartment of government should not be entirely in the hands
\nof another department of government.\n<\/p>\n
Alexander Hamilton in Federalist 78 remarks on the
\nimportance of the independence of the judiciary to preserve
\nthe separation of powers and the rights of the people:\n<\/p>\n
“The complete independence of the courts
\nof justice is peculiarly essential in a
\nlimited Constitution.  By a limited
\nConstitution, I understand one which
\ncontains certain specified exceptions to
\nthe legislative authority; such, for
\ninstance, that it shall pass no bills of
\nattainder, no ex post facto laws, and the
\nlike.  Limitations of this kind can be
\npreserved in practice in no other way
\nthan through the medium of courts of
\njustice, whose duty it must be to declare
\nall acts contrary to the manifest tenor of
\nthe Constitution void.  Without this, all
\nthe reservations of particular rights or
\nprivileges would amount to nothing.”\n<\/p>\n
(434)<\/span><\/p>\n
Montesquieu finds tyranny pervades when there is no
\nseparation of powers:\n<\/p>\n
“There would be an end of everything,
\nwere the same man or same body,
\nwhether of the nobles or of the people, to
\nexercise those three powers, that of
\nenacting laws, that of executing the
\npublic resolutions, and of trying the
\ncauses of individuals.”\n<\/p>\n
The Supreme Court has long held that the separation of
\npowers is part of the basic structure of the Constitution.  Even
\nbefore the basic structure doctrine became part of
\nConstitutional law, the importance of the separation of powers
\non our system of governance was recognized by this Court in
\nSpecial Reference No.1 of 1964 [(1965) 1 SCR 413].
\nContentions
\nIn the light of aforesaid developments, the main thrust of
\nthe argument of the petitioners is that post-1973, it is
\nimpermissible to immunize Ninth Schedule laws from judicial
\nreview by making Part III inapplicable to such laws.  Such a
\ncourse, it is contended, is incompatible with the doctrine of
\nbasic structure.  The existence of power to confer absolute
\nimmunity is not compatible with the implied limitation upon
\nthe power of amendment in Article 368<\/a>, is the thrust of the
\ncontention.\n<\/p>\n
Further relying upon the clarification of Khanna, J, as
\ngiven in Indira Gandhi’s case,  in respect of his opinion in
\nKesavananda Bharati’s case, it is no longer correct to say
\nthat fundament rights are not included in the basic structure.
\nTherefore, the contention proceeds that since fundamental
\nrights form a part of basic structure and thus laws inserted
\ninto Ninth Schedule when tested on the ground of basic
\nstructure shall have to be examined on the fundamental rights
\ntest.\n<\/p>\n
The key question, however, is whether the basic
\nstructure test would include judicial review of Ninth Schedule
\nlaws on the touchstone of fundamental rights.  Thus, it is
\nnecessary to examine what exactly is the content of the basic
\nstructure test.  According to the petitioners, the consequence
\nof the evolution of the principles of basic structure is that
\nNinth Schedule laws cannot be conferred with constitutional
\nimmunity of the kind created by Article 31B.<\/a>  Assuming that
\nsuch immunity can be conferred, its constitutional validity
\nwould have to be adjudged by applying the direct impact and
\neffect test which means the form of an amendment is not
\nrelevant, its consequence would be determinative factor.
\nThe power to make any law at will that transgresses
\nPart III in its entirety would be incompatible with the basic
\nstructure of the Constitution.  The consequence also is,
\nlearned counsel for the petitioners contended, to emasculate
\nArticle 32 (which is part of fundamental rights chapter)<\/a> in its
\nentirety  if the rights themselves (including the principle of
\nrule of law encapsulated in Article 14<\/a>) are put out of the way,
\nthe remedy under Article 32<\/a> would be meaningless.  In fact, by
\nthe exclusion of Part III, Article 32<\/a> would stand abrogated qua
\nthe Ninth Schedule laws.  The contention is that the
\nabrogation of Article 32<\/a> would be per se violative of the basic
\nstructure.  It is also submitted that the constituent power
\nunder Article 368<\/a> does not include judicial power and that the
\npower to establish judicial remedies which is compatible with
\nthe basic structure is qualitatively different from the power to
\nexercise judicial power.  The impact is that on the one hand
\nthe power under Article 32<\/a> is removed and, on the other hand,
\nthe said power is exercised by the legislature itself by
\ndeclaring, in a way, Ninth Schedule laws as valid.
\nOn the other hand, the contention urged on behalf of the
\nrespondents is that the validity of Ninth Schedule legislations
\ncan only be tested on the touch-stone of basic structure
\ndoctrine as decided by majority in Kesavananda Bharati’s
\ncase which also upheld the Constitution 29th Amendment
\nunconditionally and thus there can be no question of judicial
\nreview of such legislations on the ground of violation of
\nfundamental rights chapter.  The fundamental rights chapter,
\nit is contended, stands excluded as a result of protective
\numbrella provided by Article 31B<\/a> and, therefore, the challenge
\ncan only be based on the ground of basic structure doctrine
\nand in addition, legislation can further be tested for (i) lack of
\nlegislative competence and (ii) violation of other constitutional
\nprovisions.  This would also show, counsel for the respondents
\nargued, that there is no exclusion of judicial review and
\nconsequently, there is no violation of the basic structure
\ndoctrine.\n<\/p>\n
Further, it was contended that the constitutional device
\nfor retrospective validation of laws was well known and it is
\nlegally permissible to pass laws to remove the basis of the
\ndecisions of the Court and consequently, nullify the effect of
\nthe decision.  It was submitted that Article 31B<\/a> and the
\namendments by which legislations are added to the Ninth
\nSchedule form such a device, which ‘cure the defect’ of
\nlegislation.\n<\/p>\n
The respondents contend that the point in issue is
\ncovered by the majority judgment in Kesavananda Bharati’s
\ncase.  According to that view, Article 31B<\/a> or the Ninth
\nSchedule is a permissible constitutional device to provide a
\nprotective umbrella to Ninth Schedule laws.  The distinction is
\nsought to be drawn between the necessity for the judiciary in a
\nwritten constitution and judicial review by the judiciary.
\nWhereas the existence of judiciary is part of the basic
\nframework of the Constitution and cannot be abrogated in
\nexercise of constituent power of the Parliament under Article
\n368<\/a>, the power of judicial review of the judiciary can be
\ncurtailed over certain matters.  The contention is that there is
\nno judicial review in absolute terms and Article 31B<\/a> only
\nrestricts that judicial review power.  It is contended that after
\nthe doctrine of basic structure which came to be established in
\nKesavananda Bharati’s case, it is only that kind of judicial
\nreview whose elimination would destroy or damage the basic
\nstructure of the Constitution that is beyond the constituent
\npower.  However, in every case where the constituent power
\nexcludes judicial review, the basic structure of the
\nConstitution is not abrogated.  The question to be asked in
\neach case is, does the particular exclusion alter the basic
\nstructure.  Giving immunity of Part III to the Ninth Schedule
\nlaws from judicial review, does not abrogate judicial review
\nfrom the Constitution.  Judicial review remains with the court
\nbut with its exclusion over Ninth Schedule laws to which Part
\nIII ceases to apply.  The effect of placing a law in Ninth
\nSchedule is that it removes the fetter of Part III by virtue of
\nArticle 31B<\/a> but that does not oust the court jurisdiction.  It
\nwas further contended that Justice Khanna in Kesavananda
\nBharati’s case held that subject to the retention of the basic
\nstructure or framework of the Constitution, the power of
\namendment is plenary and will include within itself the power
\nto add, alter or repeal various articles including taking away or
\nabridging fundamental rights and that the power to amend the
\nfundamental rights cannot be denied by describing them as
\nnatural rights.  The contention is that the majority in
\nKesavananda Bharati’s case held that there is no embargo
\nwith regard to amending any of the fundamental rights in Part
\nIII subject to basic structure theory and, therefore, the
\npetitioners are not right in the contention that in the said case
\nthe majority held that the fundamental rights form part of the
\nbasic structure and cannot be amended.  The further
\ncontention is that if fundamental rights can be amended,
\nwhich is the effect of Kesavananda Bharati’s case overruling
\nGolak Nath’s case, then fundamental rights cannot be said
\nto be part of basic structure unless the nature of the
\namendment is such which destroys the nature and character
\nof the Constitution.  It is contended that the test for judicially
\nreviewing the Ninth Schedule laws cannot be on the basis of
\nmere infringement of the rights guaranteed under Part III of
\nthe Constitution.  The correct test is whether such laws
\ndamage or destroy that part of fundamental rights which form
\npart of the basic structure.  Thus, it is contended that judicial
\nreview of Ninth Schedule laws is not completely barred.  The
\nonly area where such laws get immunity is from the infraction
\nof rights guaranteed under Part III of the Constitution.
\n\tTo begin with, we find it difficult to accept the broad
\nproposition urged by the petitioners that laws that have been
\nfound by the courts to be violative of Part III of the
\nConstitution cannot be protected by placing the same in the
\nNinth Schedule by use of device of Article 31B<\/a> read with
\nArticle 368<\/a> of the Constitution.  In Kesavananda Bharti’s
\ncase, the majority opinion upheld the validity of the Kerala Act
\nwhich had been set aside in Kunjukutty Sahib etc. etc. v.
\nThe State of Kerala & Anr. [(1972) 2 SCC 364] and the
\ndevice used was that of the Ninth Schedule.  After a law is
\nplaced in the Ninth Schedule, its validity has to be tested on
\nthe touchstone of basic structure doctrine.  In State of
\nMaharashtra & Ors. v. Man Singh Suraj Singh Padvi &
\nOrs<\/a>. [(1978) 1 SCC 615], a Seven Judge Constitution Bench,
\npost-decision in Kesavananda Bharati’s case upheld
\nConstitution (40th Amendment) Act<\/a>, 1976 which was
\nintroduced when the appeal was pending in Supreme Court
\nand thereby included the regulations in the Ninth Schedule.  It
\nwas held that Article 31B<\/a> and the Ninth Schedule cured the
\ndefect, if any, in the regulations as regards any
\nunconstitutionality alleged on the ground of infringement of
\nfundamental rights.\n<\/p>\n
\tIt is also contended that the power to pack up laws in the
\nNinth Schedule in absence of any indicia in Article 31B<\/a> has
\nbeen abused and that abuse is likely to continue.  It is
\nsubmitted that the Ninth Schedule which commenced with
\nonly 13 enactments has now a list of 284 enactments.  The
\nvalidity of Article 31B<\/a> is not in question before us.  Further,
\nmere possibility of abuse is not a relevant test to determine the
\nvalidity of a provision.  The people, through the Constitution,
\nhave vested the power to make laws in their representatives
\nthrough Parliament in the same manner in which they have
\nentrusted the responsibility to adjudge, interpret and construe
\nlaw and the Constitution including its limitation in the
\njudiciary.  We, therefore, cannot make any assumption about
\nthe alleged abuse of the power.\n<\/p>\n
Validity of 31B
\nThere was some controversy on the question whether
\nvalidity of Article 31B<\/a> was under challenge or not in
\nKesavananda Bharati.  On this aspect, Chief Justice
\nChandrachud has to say this in Waman Rao :
\nIn Sajjan Singh v. State of Rajasthan<\/a>
\n[(1965) 1 SCR 933], the Court refused to
\nreconsider the decision in Sankari
\nPrasad (supra), with the result that the
\nvalidity of the 1st Amendment remained
\nunshaken. In Golaknath, it was held by
\na majority of 6 : 5 that the power to
\namend the Constitution was not located
\nin Article 368.<\/a> The inevitable result of
\nthis holding should have been the
\nstriking down of all constitutional
\namendments since, according to the view
\nof the majority, Parliament had no power
\nto amend the Constitution in pursuance
\nof Article 368.<\/a> But the Court resorted to
\nthe doctrine of prospective overruling and
\nheld that the constitutional amendments
\nwhich were already made would be left
\nundisturbed and that its decision will
\ngovern the future amendments only. As a
\nresult, the 1st Amendment by which
\nArticles 31A and 31B were introduced
\nremained inviolate. It is trite knowledge
\nthat Golaknath was overruled in
\nKesavananda Bharati (supra) in which
\nit was held unanimously that the power
\nto amend the Constitution was to be
\nfound in Article 368<\/a> of the Constitution.
\nThe petitioners produced before us a copy
\nof the Civil Misc. Petition which was filed
\nin Kesavananda Bharati, (supra) by
\nwhich the reliefs originally asked for were
\nmodified. It appears thereform that what
\nwas challenged in that case was the 24th,
\n25th and the 29th Amendments to the
\nConstitution. The validity of the 1st
\nAmendment was not questioned Khanna
\nJ., however, held-while dealing with the
\nvalidity of the unamended Article 31C<\/a>
\nthat the validity of Article 31A<\/a> was upheld
\nin Sankari Prasad, (supra) that its
\nvalidity could not be any longer
\nquestioned because of the principle of
\nstare decisis and that the ground on
\nwhich the validity of Article 31A<\/a> was
\nsustained will be available equally for
\nsustaining the validity of the first part of
\nArticle 31C (page 744) (SCC p.812<\/a>, para
\n1518).<\/a>\n<\/p>\n
\tWe have examined various opinions in Kesavananda
\nBharati’s case but are unable to accept the contention that
\nArticle 31B<\/a> read with the Ninth Schedule was held to be
\nconstitutionally valid in that case.  The validity thereof was not
\nin question.  The constitutional amendments under challenge
\nin Kesavananda Bharati’s case were examined assuming
\nthe constitutional validity of Article 31B.<\/a>  Its validity was not
\nin issue in that case.  Be that as it may, we will assume Article
\n31B<\/a> as valid.  The validity of the 1st Amendment inserting in
\nthe Constitution, Article 31B<\/a> is not in challenge before us.
\nPoint in issue
\nThe real crux of the problem is as to the extent and
\nnature of immunity that Article 31B<\/a> can validly provide.  To
\ndecide this intricate issue, it is first necessary to examine in
\nsome detail the judgment in Kesavananda Bharati’s case,
\nparticularly with reference to 29th Amendment.
\nKesavananda Bharati’s case
\n\tThe contention urged on behalf of the respondents that
\nall the Judges, except Chief Justice Sikri, in Kesavananda
\nBharati’s case held that 29th Amendment was valid and
\napplied Jeejeebhoy’s case, is not based on correct ratio of
\nKesavananda Bharati’s case.  Six learned Judges (Ray,
\nPhalekar, Mathew, Beg, Dwivedi and Chandrachud, JJ) who
\nupheld the validity of 29th Amendment did not subscribe to
\nbasic structure doctrine.  The other six learned Judges (Chief
\nJustice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ)
\nupheld the 29th Amendment subject to it passing the test of
\nbasic structure doctrine.  The 13th learned Judge (Khanna, J),
\nthough subscribed to basic structure doctrine, upheld the 29th
\nAmendment agreeing with six learned Judges who did not
\nsubscribe to the basic structure doctrine.  Therefore, it would
\nnot be correct to assume that all Judges or Judges in majority
\non the issue of basic structure doctrine upheld the validity of
\n29th Amendment unconditionally or were alive to the
\nconsequences of basic structure doctrine on 29th Amendment.
\nSix learned Judges otherwise forming the majority, held
\n29th amendment valid only if the legislation added to the Ninth
\nSchedule did not violate the basic structure of the
\nConstitution. The remaining six who are in minority in
\nKesavananda Bharati’s case, insofar as it relates to laying
\ndown the doctrine of basic structure, held 29th Amendment
\nunconditionally valid.\n<\/p>\n
While laying the foundation of basic structure doctrine to
\ntest the amending power of the Constitution, Justice Khanna
\nopined that the fundamental rights could be amended
\nabrogated or abridged so long as the basic structure of the
\nConstitution is not destroyed but at the same time, upheld the
\n29th Amendment as unconditionally valid.  Thus, it cannot be
\ninferred from the conclusion of the seven judges upholding
\nunconditionally the validity of 29th Amendment that the
\nmajority opinion held fundamental rights chapter as not part
\nof the basic structure doctrine.  The six Judges which held
\n29th Amendment unconditionally valid did not subscribe to the
\ndoctrine of basic structure.  The other six held 29th
\nAmendment valid subject to it passing the test of basic
\nstructure doctrine.\n<\/p>\n
Justice Khanna upheld the 29th Amendment in the
\nfollowing terms:\n<\/p>\n
“We may now deal with the Constitution
\n(Twenty ninth Amendment) Act<\/a>. This Act<\/a>,
\nas mentioned earlier, inserted the Kerala
\nAct 35 of 1969 and the Kerala Act 25 of
\n1971 as entries No. 65 and 66 in the
\nNinth Schedule to the Constitution. I
\nhave been able to find no infirmity in the
\nConstitution (Twenty ninth Amendment)
\nAct<\/a>.”\n<\/p>\n
In his final conclusions, with respect to the Twenty-ninth
\nAmendment, Khanna, J. held as follows:
\n“(xv) The Constitution (Twenty-ninth
\nAmendment) Act does not suffer from any
\ninfirmity and as such is valid.”\n<\/p>\n
Thus, while upholding the Twenty-ninth amendment,
\nthere was no mention of the test that is to be applied to the
\nlegislations inserted in the Ninth Schedule.  The implication
\nthat the Respondents seek to draw from the above is that this
\namounts to an unconditional upholding of the legislations in
\nthe Ninth Schedule.\n<\/p>\n
They have also relied on observations by Ray CJ., as
\nquoted below, in Indira Gandhi (supra).  In that case, Ray
\nCJ. observed:\n<\/p>\n
“The Constitution 29th Amendment Act<\/a>
\nwas considered by this Court in
\nKesavananda Bharati’s case. The 29th
\nAmendment Act<\/a> inserted in the Ninth
\nSchedule to the Constitution Entries 65
\nand 66 being the Kerala Land Reforms
\nAct, 1969 and the Kerala Land Reforms
\nAct, 1971. This Court unanimously
\nupheld the validity of the 29th
\nAmendment Act<\/a>. The view of seven
\nJudges in Kesavananda Bharati’s case is
\nthat Article 31-B<\/a> is a constitutional
\ndevice to place the specified statutes in
\nthe Schedule beyond any attack that
\nthese infringe Part III of the Constitution.
\nThe 29th Amendment is affirmed in
\nKesavananda Bharati’s case (supra) by
\nmajority of seven against six Judges.\n<\/p>\n
.Second, the majority view in
\nKesavananda Bharati’s case is that the
\n29th Amendment which put the two
\nstatutes in the Ninth Schedule and
\nArticle 31-B<\/a> is not open to challenge on
\nthe ground of either damage to or
\ndestruction of basic features, basic
\nstructure or basic framework or on the
\nground of violation of fundamental
\nrights.”\n<\/p>\n
\t\t\t[Emphasis supplied]<\/p>\n
The respondents have particularly relied on aforesaid
\nhighlighted portions.\n<\/p>\n
On the issue of how 29th Amendment in Kesavananda
\nBharati case was decided, in Minerva Mills, Bhagwati, J.
\nhas said thus :\n<\/p>\n
“The validity of the Twenty-ninth
\nAmendment Act was challenged in
\nKesavananda Bharati case but by a
\nmajority consisting of Khanna, J. and the
\nsix learned Judges led by Ray, J. (as he
\nthen was) it was held to be valid. Since all
\nthe earlier constitutional amendments
\nwere held valid on the basis of unlimited
\namending power of Parliament recognised
\nin Sankari Prasad case and Sajian
\nSingh’s case and were accepted as valid
\nin Golak Nath case and the Twenty
\nNinth Amendment Act was also held valid
\nin Kesavananda Bharati case, though
\nnot on the application of the basic
\nstructure test, and these constitutional
\namendments have been recognised as
\nvalid over a number of years and
\nmoreover, the statutes intended to be
\nprotected by them are all falling within
\nArticle 31A<\/a> with the possible exception of
\nonly four Acts referred to above, I do not
\nthink, we would be justified in re-opening
\nthe question of validity of these
\nconstitutional amendments and hence we
\nhold them to be valid. But, all
\nconstitutional amendments made after
\nthe decision in Kesavananda Bharati
\ncase would have to be tested by reference
\nto the basic structure doctrine, for
\nParliament would then have no excuse for
\nsaying that it did not know the limitation
\non its amending power.”\n<\/p>\n
To us, it seems that the position is correctly reflected in
\nthe aforesaid observations of Bhagwati, J. and with respect we
\nfeel that Ray CJ. is not correct in the conclusion that 29th
\nAmendment was unanimously upheld.  Since the majority
\nwhich propounded the basic structure doctrine did not
\nunconditionally uphold the validity of 29th Amendment and six
\nlearned judges forming majority left that to be decided by a
\nsmaller Bench and upheld its validity subject to it passing
\nbasic structure doctrine, the factum of validity of 29th
\nmendment in Kesavananda Bharati case is not conclusive of
\nmatters under consideration before us.
\nIn order to understand the view of Khanna J. in
\nKesavananda Bharati (supra), it is important to take into
\naccount his later clarification.  In Indira Gandhi (supra),
\nKhanna J. made it clear that he never opined that
\nfundamental rights were outside the purview of basic
\nstructure and observed as follows:\n<\/p>\n
“There was a controversy during the
\ncourse of arguments on the point as to
\nwhether I have laid down in my judgment
\nin Kesavananda Bharati’s case that
\nfundamental rights are not a part of the
\nbasic structure of the Constitution. As
\nthis controversy cropped up a number of
\ntimes, it seems apposite that before I
\nconclude I should deal with the
\ncontention advanced by learned Solicitor
\nGeneral that according to my judgment in
\nthat case no fundamental right is part of
\nthe basic structure of the Constitution. I
\nfind it difficult to read anything in that
\njudgment to justify such a conclusion.
\nWhat has been laid down in that
\njudgment is that no article of the
\nConstitution is immune from the
\namendatory process because of the fact
\nthat it relates to a fundamental right and
\nis contained in Part III of the
\nConstitution.\n<\/p>\n
.The above observations clearly militate
\nagainst the contention that according to
\nmy judgment fundamental rights are not
\na part of the basic structure of the
\nConstitution. I also dealt with the matter
\nat length to show that the right to
\nproperty was not a part of the basic
\nstructure of the Constitution. This would
\nhave been wholly unnecessary if none of
\nthe fundamental rights was a part of the
\nbasic structure of the Constitution”.\n<\/p>\n
Thus, after his aforesaid clarification, it is not possible to
\nread the decision of Khanna J. in Kesavananda Bharati so
\nas to exclude fundamental rights from the purview of the basic
\nstructure.  The import of this observation is significant in the
\nlight of the amendment that he earlier upheld.  It is true that if
\nthe fundamental rights were never a part of the basic
\nstructure, it would be consistent with an unconditional
\nupholding of the Twenty-ninth Amendment, since its impact
\non the fundamental rights guarantee would be rendered
\nirrelevant.  However, having held that some of the
\nfundamental rights are a part of the basic structure, any
\namendment having an impact on fundamental rights would
\nnecessarily have to be examined in that light.  Thus, the fact
\nthat Khanna J. held that some of the fundamental rights were
\na part of the basic structure has a significant impact on his
\ndecision regarding the Twenty-ninth amendment and the
\nvalidity of the Twenty-ninth amendment must necessarily be
\nviewed in that light.  His clarification demonstrates that he
\nwas not of the opinion that all the fundamental rights were not
\npart of the basic structure and the inevitable conclusion is
\nthat the Twenty-ninth amendment even if treated as
\nunconditionally valid is of no consequence on the point in
\nissue in view of peculiar position as to majority abovenoted.
\nSuch an analysis is supported by Seervai, in his book
\nConstitutional Law of India (4th edition, Volume III), as follows:\n<\/p>\n
“Although in his judgment in the Election
\nCase, Khanna J. clarified his judgment in
\nKesavananda’s Case, that clarification
\nraised a serious problem of its own.  The
\nproblem was: in view of the clarification,
\nwas Khanna J. right in holding that
\nArticle 31-B<\/a> and Sch. IX were
\nunconconditionally valid?  Could he do so
\nafter he had held that the basic structure
\nof the Constitution could not be
\namended?  As we have seen, that problem
\nwas solved in Minerva Mills Case by
\nholding that Acts inserted in Sch. IX after
\n25 April, 1973 were not unconditionally
\nvalid, but would have to stand the test of
\nfundamental rights. (Para 30.48, page
\n3138)<\/p>\n
But while the clarification in the Election
\nCase simplifies one problem  the scope
\nof amending power  it raises complicated
\nproblems of its own.  Was Khanna J.\n<\/p>\n
right in holding Art. 31-B (<\/a>and Sch.<\/a> 9)
\nunconditionally valid?  An answer to
\nthese questions requires an analysis of
\nthe function of Art. 31-B<\/a> and Sch.\n<\/p>\n
9.Taking Art. 31-B<\/a> and Sch. 9 first,
\ntheir effect is to confer validity on laws
\nalready enacted which would be void for
\nviolating one of more of the fundamental
\nrights conferred by Part III (fundamental
\nrights).\n<\/p>\n
But if the power of amendment is limited
\nby the doctrine of basic structure, a grave
\nproblem immediately arises.The thing
\nto note is that though such Acts do not
\nbecome a part of the Constitution, by
\nbeing included in Sch.9 [footnote: This is
\nclear from the provision of Article 31-B<\/a>
\nthat such laws are subject to the power of
\nany competent legislature to repeal or
\namend them  that no State legislature
\nhas the power to repeal or amend the
\nConstitution, nor has Parliament such a
\npower outside Article 368<\/a>, except where
\nsuch power is conferred by a few articles.]
\nthey owe their validity to the exercise of
\nthe amending power.  Can Act<\/a>s, which
\ndestroy the secular character of the State,
\nbe given validity and be permitted to
\ndestroy a basic structure as a result of
\nthe exercise of the amending power?\n<\/p>\n
That, in the last analysis is the real
\nproblem; and it is submitted that if the
\ndoctrine of the basic structure is
\naccepted, there can be only one answer.
\nIf Parliament, exercising constituent
\npower cannot enact an amendment
\ndestroying the secular character of the
\nState, neither can Parliament, exercising
\nits constituent power, permit the
\nParliament or the State Legislatures to
\nproduce the same result by protecting
\nlaws, enacted in the exercise of legislative
\npower, which produce the same result.\n<\/p>\n
To hold otherwise would be to abandon
\nthe doctrine of basic structure in respect
\nof fundamental rights for every part of
\nthat basic structure can be destroyed by
\nfirst enacting laws which produce that
\neffect, and then protecting them by
\ninclusion in Sch. 9.  Such a result is
\nconsistent with the view that some
\nfundamental rights are a part of the basic
\nstructure, as Khanna J. said in his
\nclarification.  (Para30.65, pages 3150-
\n3151)
\nIn other words, the validity of the 25th
\nand 29th Amendments raised the question
\nof applying the law laid down as to the
\nscope of the amending power when
\ndetermining the validity of the 24th
\nAmendment.  If that law was correctly
\nlaid down, it did not become incorrect by
\nbeing wrongly applied.  Therefore the
\nconflict between Khanna J.’s views on the
\namending power and on the
\nunconditional validity of the 29th
\nAmendment is resolved by saying that he
\nlaid down the scope of the amending
\npower correctly but misapplied that law
\nin holding Art. 31-B<\/a> and Sch. 9
\nunconditionally valid.  Consistently
\nwith his view that some fundamental
\nrights were part of the basic structure, he
\nought to have joined the 6 other judges in
\nholding that the 29th Amendment was
\nvalid, but Acts included in Sch. 9 would
\nhave to be scrutinized by the Constitution
\nbench to see whether they destroyed or
\ndamaged any part of the basic structure
\nof the Constitution, and if they did, such
\nlaws would not be protected.  (Para30.65,
\npage 3151)”\n<\/p>\n
The decision in Kesavananda Bharati (supra) regarding
\nthe Twenty-ninth amendment is restricted to that particular
\namendment and no principle flows therefrom.
\nWe are unable to accept the contention urged on behalf
\nof the respondents that in Waman Rao’s case Justice
\nChandrachud and in Minerva Mills case, Justice Bhagwati
\nhave not considered the binding effect of majority judgments
\nin Kesavananda Bharati’s case.  In these decisions, the
\ndevelopment of law post-Kesavananda Bharati’s case has
\nbeen considered.  The conclusion has rightly been reached,
\nalso having regard to the decision in Indira Gandhi’s case
\nthat post-Kesavananda Bharati’s case or after 24th April,
\n1973, the Ninth Schedule laws will not have the full
\nprotection.  The doctrine of basic structure was involved in
\nKesavananda Bharati’s case but its effect, impact and
\nworking was examined in Indira Gandhi’s case, Waman
\nRao’s case and Minerva Mills case.  To say that these
\njudgments have not considered the binding effect of the
\nmajority judgment in Kesavananda Bharati’s case is not
\nbased on a correct reading of Kesavananda Bharati.
\nOn the issue of equality, we do not find any contradiction
\nor inconsistency in the views expressed by Justice
\nChandrachud in Indira Gandhi’s case, by Justice Krishna
\nIyer in Bhim Singh’s case and Justice Bhagwati in Minerva
\nMills case.  All these judgments show that violation in
\nindividual case has to be examined to find out whether
\nviolation of equality amounts to destruction of the basic
\nstructure of the Constitution.\n<\/p>\n
Next, we examine the extent of immunity that is provided
\nby Article 31B.<\/a>  The principle that constitutional amendments
\nwhich violate the basic structure doctrine are liable to be
\nstruck down will also apply to amendments made to add laws
\nin the Ninth Schedule is the view expressed by Chief Justice
\nSikri.  Substantially, similar separate opinions were expressed
\nby Shelat, Grover, Hegde, Mukherjea and Reddy, JJ.  In the
\nfour different opinions six learned judges came to
\nsubstantially the same conclusion.  These judges read an
\nimplied limitation on the power of the Parliament to amend the
\nConstitution.  Justice Khanna also opined that there was
\nimplied limitation in the shape of the basic structure doctrine
\nthat limits the power of Parliament to amend the Constitution
\nbut the learned Judge upheld 29th Amendment and did not
\nsay, like remaining six Judges, that the Twenty-Ninth
\nAmendment will have to be examined by a smaller
\nConstitution Bench to find out whether the said amendment
\nviolated the basic structure theory or not.  This gave rise to the
\nargument that fundamental rights chapter is not part of basic
\nstructure.  Justice Khanna, however, does not so say in
\nKesavananda Bharati’s case.  Therefore, Kesavananda
\nBharati’s case cannot be said to have held that fundamental
\nrights chapter is not part of basic structure.  Justice Khanna,
\nwhile considering Twenty-Ninth amendment, had obviously in
\nview the laws that had been placed in the Ninth Schedule by
\nthe said amendment related to the agrarian reforms.  Justice
\nKhanna did not want to elevate the right to property under
\nArticle 19(1)(f)<\/a> to the level and status of  basic structure or
\nbasic frame-work of the Constitution, that explains the ratio of
\nKesavananda Bharati’s case.  Further, doubt, if any, as to
\nthe opinion of Justice Khanna stood resolved on the
\nclarification given in Indira Gandhi’s case, by the learned
\nJudge that in Kesavananda Bharati’s case, he never held
\nthat fundamental rights are not a part of the basic structure
\nor framework of the Constitution.\n<\/p>\n
\tThe rights and freedoms created by the fundamental
\nrights chapter can be taken away or destroyed by amendment
\nof the relevant Article, but subject to limitation of the doctrine
\nof basic structure.  True, it may reduce the efficacy of Article
\n31B<\/a> but that is inevitable in view of the progress the laws have
\nmade post-Kesavananda Bharati’s case which has limited
\nthe power of the Parliament to amend the Constitution under
\nArticle 368<\/a> of the Constitution by making it subject to the
\ndoctrine of basic structure.\n<\/p>\n
To decide the correctness of the rival submissions, the
\nfirst aspect to be borne in mind is that each exercise of the
\namending power inserting laws into Ninth Schedule entails a
\ncomplete removal of the fundamental rights chapter vis-`-vis
\nthe laws that are added in the Ninth Schedule.  Secondly,
\ninsertion in Ninth Schedule is not controlled by any defined
\ncriteria or standards by which the exercise of power may be
\nevaluated.  The consequence of insertion is that it nullifies
\nentire Part III of the Constitution.  There is no constitutional
\ncontrol on such nullification.  It means an unlimited power to
\ntotally nullify Part III in so far as Ninth Schedule legislations
\nare concerned.  The supremacy of the Constitution mandates
\nall constitutional bodies to comply with the provisions of the
\nConstitution. It also mandates a mechanism for testing the
\nvalidity of legislative acts through an independent organ, viz.
\nthe judiciary.\n<\/p>\n
While examining the validity of Article 31C<\/a> in
\nKesavananda Bharati’s case, it was held that the vesting of
\npower of the exclusion of judicial review in a legislature
\nincluding a State legislature, strikes at the basic structure of
\nthe Constitution.  It is on this ground that second part of
\nArticle 31C<\/a> was held to be beyond the permissible limits of
\npower of amendment of the Constitution under Article 368.<\/a>
\nIf the doctrine of basic structure provides a touchstone to
\ntest the amending power or its exercise, there can be no dobt
\nand it has to be so accepted that Part III of the Constitution
\nhas a key role to play in the application of the said doctrine.
\nRegarding the status and stature in respect of
\nfundamental rights in Constitutional scheme, it is to be
\nremembered that Fundamental Rights are those rights of
\ncitizens or those negative obligations of the State which do not
\npermit encroachment on individual liberties.  The State is to
\ndeny no one equality before the law.  The object of the
\nFundamental Rights is to foster the social revolution by
\ncreating a society egalitarian to the extent that all citizens are
\nto be equally free from coercion or restriction by the State.  By
\nenacting Fundamental Rights and Directive Principles which
\nare negative and positive obligations of the States, the
\nConstituent Assembly made it the responsibility of the
\nGovernment to adopt a middle path between individual liberty
\nand public good.  Fundamental Rights and Directive Principles
\nhave to be balanced.   That balance can be tilted in favour of
\nthe public good.  The balance, however, cannot be overturned
\nby completely overriding individual liberty.  This balance is an
\nessential feature of the Constitution.
\nFundamental rights enshrined in Part III were added to
\nthe Constitution as a check on the State power, particularly
\nthe legislative power.  Through Article 13<\/a>, it is provided that
\nthe State cannot make any laws that are contrary to Part III.
\nThe framers of the Constitution have built a wall around
\ncertain parts of fundamental rights, which have to remain
\nforever, limiting ability of majority to intrude upon them.  That
\nwall is the ‘Basic Structure’ doctrine.  Under Article 32<\/a>, which
\nis also part of Part III, Supreme Court has been vested with
\nthe power to ensure compliance of Part III.  The responsibility
\nto judge the constitutionality of all laws is that of judiciary.
\nThus, when power under Article 31B<\/a> is exercised, the
\nlegislations made completely immune from Part III results in a
\ndirect way out, of the check of Part III, including that of Article\n<\/p>\n
32.  It cannot be said that the same Constitution that provides
\nfor a check on legislative power, will decide whether such a
\ncheck is necessary or not.  It would be a negation of the
\nConstitution.  In Waman Rao’s case, while discussing the
\napplication of basic structure doctrine to the first amendment,
\nit was observed that the measure of the permissibility of an
\namendment of a pleading is how far it is consistent with the
\noriginal; you cannot by an amendment transform the original
\ninto opposite of what it is.  For that purpose, a comparison is
\nundertaken to match the amendment with the original.  Such
\na comparison can yield fruitful results even in the rarefied
\nsphere of constitutional law.\n<\/p>\n
Indeed, if Article 31B<\/a> only provided restricted immunity
\nand it seems that original intent was only to protect a limited
\nnumber of laws, it would have been only exception to Part III
\nand the basis for the initial upholding of the provision.
\nHowever, the unchecked and rampant exercise of this power,
\nthe number having gone from 13 to 284, shows that it is no
\nlonger a mere exception.  The absence of guidelines for
\nexercise of such power means the absence of constitutional
\ncontrol which results in destruction of constitutional
\nsupremacy and creation of parliamentary hegemony and
\nabsence of full power of judicial review to determine the
\nconstitutional validity of such exercise.
\n\tIt is also contended for the respondents that Article 31A<\/a>
\nexcludes judicial review of certain laws from the applications
\nof Articles 14 and 19 and that Article 31A<\/a> has been held to be
\nnot violative of the basic structure.  The contention, therefore,
\nis that exclusion of judicial review would not make the Ninth
\nSchedule law invalid.  We are not holding such law per se
\ninvalid but, examining the extent of the power which the
\nLegislature will come to possess.   Article 31A<\/a> does not exclude
\nuncatalogued number of laws from challenge on the basis of
\nPart III.  It provides for a standard by which laws stand
\nexcluded from Judicial Review. Likewise, Article 31C<\/a> applies
\nas a yardstick the criteria of sub-clauses (b) and (c) of Article
\n39<\/a> which refers to equitable distribution of resources.
\nThe fundamental rights have always enjoyed a special
\nand privileged place in the Constitution.  Economic growth
\nand social equity are the two pillars of our Constitution which
\nare linked to the rights of an individual (right to equal
\nopportunity), rather than in the abstract. Some of the rights in
\nPart III constitute fundamentals of the Constitution like Article
\n21<\/a> read with Articles 14 and 15 which represent secularism
\netc.  As held in Nagaraj, egalitarian equality exists in Article
\n14<\/a> read with Article 16(4) (4A) (4B)<\/a> and, therefore, it is wrong
\nto suggest that equity and justice finds place only in the
\nDirective Principles.\n<\/p>\n
The Parliament has power to amend the provisions of
\nPart III so as to abridge or take away fundamental rights, but
\nthat power is subject to the limitation of basic structure
\ndoctrine.  Whether the impact of such amendment results in
\nviolation of basic structure has to be examined with reference
\nto each individual case.  Take the example of freedom of Press
\nwhich, though not separately and specifically guaranteed, has
\nbeen read as part of Article 19(1)(a).<\/a>  If Article 19(1)(a)<\/a> is
\nsought to be amended so as to abrogate such right (which we
\nhope will never be done), the acceptance of respondents
\ncontention would mean that such amendment would fall
\noutside the judicial scrutiny when the law curtailing these
\nrights is placed in the Ninth Schedule as a result of immunity
\ngranted by Article 31B.<\/a>  The impact of such an amendment
\nshall have to be tested on the touchstone of rights and
\nfreedoms guaranteed by Part III of the Constitution.  In a given
\ncase, even abridgement may destroy the real freedom of the
\nPress and, thus, destructive of the basic structure.  Take
\nanother example. The secular character of our Constitution is
\na matter of conclusion to be drawn from various Articles
\nconferring fundamental rights; and if the secular character is
\nnot to be found in Part III, it cannot be found anywhere else in
\nthe Constitution because every fundamental right in Part III
\nstands either for a principle or a matter of detail.  Therefore,
\none has to take a synoptic view of the various Articles in Part
\nIII while judging the impact of the laws incorporated in the
\nNinth Schedule on the Articles in Part III.  It is not necessary
\nto multiply the illustrations.\n<\/p>\n
After enunciation of the basic structure doctrine, full
\njudicial review is an integral part of the constitutional scheme.
\nJustice Khanna in Kesavananda Bharati’s case was
\nconsidering the right to property and it is in that context it
\nwas said that no Article of the Constitution is immune from
\nthe amendatory process.  We may recall what Justice Khanna
\nsaid while dealing with the words “amendment of the
\nConstitution”.  His Lordship said that these words with all the
\nwide sweep and amplitude cannot have the effect of destroying
\nor abrogating the basic structure or framework of the
\nConstitution.  The opinion of Justice Khanna in Indira
\nGandhi clearly indicates that the view in Kesavananda
\nBharati’s case is that at least some fundamental rights do
\nform part of basic structure of the Constitution.  Detailed
\ndiscussion in Kesavananda Bharati’s case to demonstrate
\nthat the right to property was not part of basic structure of the
\nConstitution by itself shows that some of the fundamental
\nrights are part of the basic structure of the Constitution.  The
\nplacement of a right in the scheme of the Constitution, the
\nimpact of the offending law on that right, the effect of the
\nexclusion of that right from judicial review, the abrogation of
\nthe principle on the essence of that right is an exercise which
\ncannot be denied on the basis of fictional immunity under
\nArticle 31B.<\/a>\n<\/p>\n
In Indira Gandhi,s case, Justice Chandrachud posits
\nthat equality embodied in Article 14<\/a> is part of the basic
\nstructure of the Constitution and, therefore, cannot be
\nabrogated by observing that the provisions impugned in that
\ncase are an outright negation of the right of equality conferred
\nby Article 14<\/a>, a right which more than any other is a basic
\npostulate of our constitution.\n<\/p>\n
Dealing with Articles 14, 19 and 21 in Minerva Mills
\ncase, it was said that these clearly form part of the basic
\nstructure of the Constitution and cannot be abrogated.  It was
\nobserved that three Articles of our constitution, and only
\nthree, stand between the heaven of freedom into which Tagore
\nwanted his country to awake and the abyss of unrestrained
\npower.  These Articles stand on altogether different footing.
\nCan it be said, after the evolution of the basic structure
\ndoctrine, that exclusion of these rights at Parliament’s will
\nwithout any standard, cannot be subjected to judicial scrutiny
\nas a result of the bar created by Article 31B?<\/a>  The obvious
\nanswer has to be in the negative.  If some of the fundamental
\nrights constitute a basic structure, it would not be open to
\nimmunise those legislations from full judicial scrutiny either
\non the ground that the fundamental rights are not part of the
\nbasic structure or on the ground that Part III provisions are
\nnot available as a result of immunity granted by Article 31B.<\/a>
\nIt cannot be held that essence of the principle behind Article
\n14<\/a> is not part of the basic structure.  In fact, essence or
\nprinciple of the right or nature of violation is more important
\nthan the equality in the abstract or formal sense.  The majority
\nopinion in Kesavananda Bharati’s case clearly is that the
\nprinciples behind fundamental rights are part of the basic
\nstructure of the Constitution.  It is necessary to always bear in
\nmind that fundamental rights have been considered to be
\nheart and soul of the Constitution.  Rather these rights have
\nbeen further defined and redefined through various trials
\nhaving regard to various experiences and some attempts to
\ninvade and nullify these rights.  The fundamental rights are
\ndeeply interconnected.  Each supports and strengthens the
\nwork of the others.  The Constitution is a living document, its
\ninterpretation may change as the time and circumstances
\nchange to keep pace with it.  This is the ratio of the decision in
\nIndira Gandhi case.\n<\/p>\n
The history of the emergence of modern democracy has
\nalso been the history of securing basic rights for the people of
\nother nations also.  In the United States the Constitution was
\nfinally ratified only upon an understanding that a Bill of
\nRights would be immediately added guaranteeing certain basic
\nfreedoms to its citizens.  At about the same time when the Bill
\nof Rights was being ratified in America, the French Revolution
\ndeclared the Rights of Man to Europe.  When the death of
\ncolonialism and the end of World War II birthed new nations
\nacross the globe, these states embraced rights as foundations
\nto their new constitutions.  Similarly, the rapid increase in the
\ncreation of constitutions that coincided with the end of the
\nCold War has planted rights at the base of these documents.
\nEven countries that have long respected and upheld
\nrights, but whose governance traditions did not include their
\nconstitutional affirmation have recently felt they could no
\nlonger leave their deep commitment to rights, left unstated.  In
\n1998, the United Kingdom adopted the Human Rights Act<\/a>
\nwhich gave explicit affect to the European Convention on
\nHuman Rights.  In Canada, the “Constitution Act<\/a> of 1982″
\nenshrined certain basic rights into their system of governance.
\nCertain fundamental rights, and the principles that underlie
\nthem, are foundational not only to the Indian democracy, but
\ndemocracies around the world.  Throughout the world nations
\nhave declared that certain provisions or principles in their
\nConstitutions are inviolable.\n<\/p>\n
Our Constitution will almost certainly continue to be
\namended as India grows and changes.  However, a democratic
\nIndia will not grow out of the need for protecting the principles
\nbehind our fundamental rights.\n<\/p>\n
Other countries having controlled constitution, like
\nGermany, have embraced the idea that there is a basic
\nstructure to their Constitutions and in doing so have
\nentrenched various rights as core constitutional commitments.
\nIndia’s constitutional history has led us to include the essence
\nof each of our fundamental rights in the basic structure of our
\nConstitution.\n<\/p>\n
The result of the aforesaid discussion is that since the
\nbasic structure of the Constitution includes some of the
\nfundamental rights, any law granted Ninth Schedule
\nprotection deserves to be tested against these principles.  If the
\nlaw infringes the essence of any of the fundamental rights or
\nany other aspect of basic structure then it will be struck down.
\nThe extent of abrogation and limit of abridgment shall have to
\nbe examined in each case.\n<\/p>\n
We may also recall the observations made in Special
\nReference No.1\/64 [(1965) 1 SCR 413] as follows :
\n“…[W]hether or not there is distinct and
\nrigid separation of powers under the
\nIndian Constitution, there is no doubt
\nthat the constitution has entrusted to the
\nJudicature in this country the task of
\nconstruing the provisions of the
\nConstitution and of safeguarding the
\nfundamental rights of the citizens. When
\na statute is challenged on the ground
\nthat it has been passed by a Legislature
\nwithout authority, or has otherwise
\nunconstitutionally trespassed on
\nfundamental rights, it is for the courts to
\ndetermine the dispute and decide
\nwhether the law passed by the legislature
\nis valid or not. Just as the legislatures
\nare conferred legislative authority and
\nthere functions are normally confined to
\nlegislative functions, and the function
\nand authority of the executive lie within
\nthe domain of executive authority, so the
\njurisdiction and authority of the
\nJudicature in this country lie within the
\ndomain of adjudication. If the validity of
\nany law is challenged before the courts, it
\nis never suggested that the material
\nquestion as to whether legislative
\nauthority has been exceeded or
\nfundamental rights have been
\ncontravened, can be decided by the
\nlegislatures themselves. Adjudication of
\nsuch a dispute is entrusted solely and
\nexclusively to the Judicature of this
\ncountry.”\n<\/p>\n
\tWe are of the view that while laws may be added to the
\nNinth Schedule, once Article 32<\/a> is triggered, these legislations
\nmust answer to the complete test of fundamental rights. Every
\ninsertion into the Ninth Schedule does not restrict Part III
\nreview, it completely excludes Part III at will.  For this reason,
\nevery addition to the Ninth Schedule triggers Article 32<\/a> as part
\nof the basic structure and is consequently subject to the
\nreview of the fundamental rights as they stand in Part III.\n<\/p>\n
Extent of Judicial Review in the context of Amendments
\nto the Ninth Schedule<\/p>\n
We are considering the question as to the extent of
\njudicial review permissible in respect of Ninth Schedule laws
\nin the light of the the basic structure theory propounded in
\nKesavananda Bharati’s case.  In this connection, it is
\nnecessary to examine the nature of the constituent power
\nexercised in amending a Constitution.
\nWe have earlier noted that the power to amend cannot be
\nequated with the power to frame the Constitution.  This power
\nhas no limitations or constraints, it is primary power, a real
\nplenary power.  The latter power, however, is derived from the
\nformer.  It has constraints of the document viz. Constitution
\nwhich creates it.  This derivative power can be exercised within
\nthe four corners of what has been conferred on the body
\nconstituted, namely, the Parliament.  The question before us is
\nnot about power to amend Part III after 24th April, 1973.  As
\nper Kesavananda Bharati, power to amend exists in the
\nParliament but it is subject to the limitation of doctrine of
\nbasic structure.  The fact of validation of laws based on
\nexercise of blanket immunity eliminates Part III in entirety
\nhence the ‘rights test’ as part of the basic structure doctrine
\nhas to apply.\n<\/p>\n
In Kesavananda Bharati’s case, the majority held that
\nthe power of amendment of the Constitution under Article 368<\/a>
\ndid not enable Parliament to alter the basic structure of the
\nConstitution.\n<\/p>\n
Kesavananda Bharati’s case laid down a principle as
\nan axiom which was examined and worked out in Indira
\nGandhi’s case, Minerva Mills, Waman Rao and Bhim
\nSingh.\n<\/p>\n
As already stated, in Indira Gandhi’s case, for the first
\ntime, the constitutional amendment that was challenged did
\nnot relate to property right but related to free and fair election.
\nAs is evident from what is stated above that the power of
\namending the Constitution is a species of law making power
\nwhich is the genus.  It is a different kind of law making power
\nconferred by the Constitution.  It is different from the power to
\nframe the Constitution i.e. a plenary law making power as
\ndescribed by Seervai in Constitutional Law of India (4th Edn.).
\nThe scope and content of the words ‘constituent power’
\nexpressly stated in the amended Article 368<\/a> came up for
\nconsideration in Indira Gandhi’s case.  Article 329-A(4)<\/a> was
\nstruck down because it crossed the implied limitation of
\namending power, that it made the controlled constitution
\nuncontrolled, that it removed all limitations on the power to
\namend and that it sought to eliminate the golden triangle of
\nArticle 21<\/a> read with Articles 14 and 19. (See also Minerva
\nMills case).\n<\/p>\n
It is Kesavananda Bharati’s case read with
\nclarification of Justice Khanna in Indira Gandhi’s case
\nwhich takes us one step forward, namely, that fundamental
\nrights are interconnected and some of them form part of the
\nbasic structure as reflected in Article 15<\/a>, Article 21<\/a> read with
\nArticle 14<\/a>, Article 14<\/a> read with Article 16(4) (4A) (4B)<\/a> etc.
\nBharti and Indira Gandhi’s cases have to be read together
\nand if so read the position in law is that the basic structure as
\nreflected in the above Articles provide a test to judge the
\nvalidity of the amendment by which laws are included in the
\nNinth Schedule.\n<\/p>\n
Since power to amend the Constitution is not unlimited,
\nif changes brought about by amendments destroy the identity
\nof the Constitution, such amendments would be void.  That is
\nwhy when entire Part III is sought to be taken away by a
\nconstitutional amendment by the exercise of constituent power
\nunder Article 368<\/a> by adding the legislation in the Ninth
\nSchedule, the question arises as to the extent of judicial
\nscrutiny available to determine whether it alters the
\nfundamentals of the Constitution.  Secularism is one such
\nfundamental, equality is the other, to give a few examples to
\nillustrate the point.  It would show that it is impermissible to
\ndestroy Article 14<\/a> and 15<\/a> or abrogate or en bloc eliminate
\nthese Fundamental Rights.  To further illustrate the point, it
\nmay be noted that the Parliament can make additions in the
\nthree legislative lists, but cannot abrogate all the lists as it
\nwould abrogate the federal structure.
\nThe question can be looked at from yet another angle
\nalso.  Can the Parliament increase the amending power by
\namendment of Article 368<\/a> to confer on itself the unlimited
\npower of amendment and destroy and damage the
\nfundamentals of the Constitution?  The answer is obvious.
\nArticle 368<\/a> does not vest such a power in the Parliament.  It
\ncannot lift all restrictions placed on the amending power or
\nfree the amending power from all its restrictions.  This is the
\neffect of the decision in Kesavananda Bharati’s case as a
\nresult of which secularism, separation of power, equality, etc.
\nto cite a few examples would fall beyond the constituent power
\nin the sense that the constituent power cannot abrogate these
\nfundamentals of the Constitution.  Without equality the rule of
\nlaw, secularism etc. would fail.  That is why Khanna, J. held
\nthat some of the Fundamental Rights like Article 15<\/a> form part
\nof the basic structure.\n<\/p>\n
If constituent power under Article 368<\/a>, the other name
\nfor amending power, cannot be made unlimited, it follows that
\nArticle 31B<\/a> cannot be so used as to confer unlimited power.
\nArticle 31B<\/a> cannot go beyond the limited amending power
\ncontained in Article 368.<\/a> The power to amend Ninth Schedule
\nflows from Article 368.<\/a> This power of amendment has to be
\ncompatible with the limits on the power of amendment.  This
\nlimit came with the Kesavananda Bharati’s case.  Therefore
\nArticle 31-B<\/a> after 24th April, 1973 despite its wide language
\ncannot confer unlimited or unregulated immunity.
\nTo legislatively override entire Part III of the Constitution
\nby invoking Article 31-B<\/a> would not only make the
\nFundamental Rights overridden by Directive Principles but it
\nwould also defeat fundamentals such as secularism,
\nseparation of powers, equality and also the judicial review
\nwhich are the basic feature of the Constitution and essential
\nelements of rule of law and that too without any
\nyardstick\/standard being provided under Article 31-B.<\/a>
\nFurther, it would be incorrect to assume that social
\ncontent exist only in Directive Principles and not in the
\nFundamental Rights.  Article 15<\/a> and 16<\/a> are facets of Article\n<\/p>\n
14.  Article 16(1)<\/a> concerns formal equality which is the basis of
\nthe rule of law.  At the same time, Article 16(4)<\/a> refers to
\negalitarian equality.  Similarly, the general right of equality
\nunder Article 14<\/a> has to be balanced with Article 15(4)<\/a> when
\nexcessiveness is detected in grant of protective discrimination.
\nArticle 15(1)<\/a> limits the rights of the State by providing that
\nthere shall be no discrimination on the grounds only of
\nreligion, race, caste, sex, etc. and yet it permits classification
\nfor certain classes, hence social content exists in Fundamental
\nRights as well.  All these are relevant considerations to test the
\nvalidity of the Ninth Schedule laws.\n<\/p>\n
Equality, rule of law, judicial review and separation of
\npowers form parts of the basic structure of the Constitution.
\nEach of these concepts are intimately connected. There can be
\nno rule of law, if there is no equality before the law.  These
\nwould be meaningless if the violation was not subject to the
\njudicial review.  All these would be redundant if the legislative,
\nexecutive and judicial powers are vested in one organ.
\nTherefore, the duty to decide whether the limits have been
\ntransgressed has been placed on the judiciary.
\nRealising that it is necessary to secure the enforcement of
\nthe Fundamental Rights, power for such enforcement has
\nbeen vested by the Constitution in the Supreme Court and the
\nHigh Courts.  Judicial Review is an essential feature of the
\nConstitution.  It gives practical content to the objectives of the
\nConstitution embodied in Part III and other parts of the
\nConstitution.  It may be noted that the mere fact that equality
\nwhich is a part of the basic structure can be excluded for a
\nlimited purpose, to protect certain kinds of laws, does not
\nprevent it from being part of the basic structure.  Therefore, it
\nfollows that in considering whether any particular feature of
\nthe Constitution is part of the basic structure  rule of law,
\nseparation of power  the fact that limited exceptions are made
\nfor limited purposes, to protect certain kind of laws, does not
\nmean that it is not part of the basic structure.
\n\tOn behalf of the respondents, reliance has been placed
\non the decision of a nine Judge Constitution Bench in
\nAttorney General for India & Ors. v. Amratlal
\nPrajivandas & Ors<\/a>. [(1994) 5 SCC 54] to submit that
\nargument of a violation of Article 14<\/a> being equally violative of
\nbasic structure or Articles 19 and 21 representing the basic
\nstructure of the Constitution has been rejected.  Para 20
\nreferred to by learned counsel for the respondent reads as
\nunder :\n<\/p>\n
“Before entering upon discussion of the
\nissues arising herein, it is necessary to
\nmake a few clarificatory observations.
\nThough a challenge to the constitutional
\nvalidity of 39th, 40th and 42nd
\nAmendments to the Constitution was
\nlevelled in the writ petitions on the
\nground that the said Amendments –\n<\/p>\n
effected after the decision in
\nKeshavananda Bharati v. State of
\nKerala<\/a> [1973] Suppl. SCR 1 – infringe
\nthe basic structure of the Constitution,
\nno serious attempt was made during the
\ncourse of arguments to substantiate it. It
\nwas generally argued that Article 14<\/a> is
\none of the basic features of the
\nConstitution and hence any
\nconstitutional amendment violative of
\nArticle 14<\/a> is equally violative of the basic
\nstructure. This simplistic argument
\noverlooks the reason d’etre of Article 31B<\/a>\n<\/p>\n
– at any rate, its continuance and
\nrelevance after Bharati – and of the 39th
\nand 40th Amendments placing the said
\nenactments in the IXth Schedule.\n<\/p>\n
Acceptance of the petitioners’ argument
\nwould mean that in case of post-Bharati
\nconstitutional amendments placing Acts
\nin the IXth Schedule, the protection of
\nArticle 31-B<\/a> would not be available
\nagainst Article 14.<\/a> Indeed, it was
\nsuggested that Articles 21 and 19 also
\nrepresent the basic features of the
\nConstitution. If so, it would mean a
\nfurther enervation of Article 31B.<\/a> Be that
\nas it may, in the absence of any effort to
\nsubstantiate the said challenge, we do
\nnot wish to express any opinion on the
\nconstitutional validity of the said
\nAmendments. We take them as they are,
\ni.e., we assume them to be good and
\nvalid. We must also say that no effort has
\nalso been made by the counsel to
\nestablish in what manner the said
\nAmendment Act<\/a>s violate Article 14.”<\/a>\n<\/p>\n
\tIt is evident from the aforenoted passage that the
\nquestion of violation of Articles 14, 19 or 21 was not gone into.
\nThe bench did not express any opinion on those issues.  No
\nattempt was made to establish violation of these provisions.  In
\nPara 56, while summarizing the conclusion, the Bench did not
\nexpress any opinion on the validity of 39th and 40th
\nAmendment Act<\/a>s to the Constitution of India placing
\nCOFEPOSA and SAFEMA in the Ninth Schedule.  These Act<\/a>s
\nwere assumed to be good and valid.  No arguments were also
\naddressed with respect to the validity of 42nd Amendment Act<\/a>.
\nEvery amendment to the Constitution whether it be in
\nthe form of amendment of any Article or amendment by
\ninsertion of an Act in the Ninth Schedule has to be tested by
\nreference to the doctrine of basic structure which includes
\nreference to Article 21<\/a> read with Article 14<\/a>, Article 15<\/a> etc.  As
\nstated, laws included in the Ninth Schedule do not become
\npart of the Constitution, they derive their validity on account
\nof the exercise undertaken by the Parliament to include them
\nin the Ninth Schedule.  That exercise has to be tested every
\ntime it is undertaken.  In respect of that exercise the principle
\nof compatibility will come in.  One has to see the effect of the
\nimpugned law on one hand and the exclusion of Part III in its
\nentirety at the will of the Parliament.
\nIn Waman Rao, it was accordingly rightly held that the
\nActs inserted in the Ninth Schedule after 24th April, 1973
\nwould not receive the full protection.
\nExclusion of Judicial Review compatible with the doctrine
\nof basic structure  concept of Judicial Review<\/p>\n
 \tJudicial review is justified by combination of ‘the
\nprinciple of separation of powers, rule of law, the principle of
\nconstitutionality and the reach of judicial review’ (Democracy
\nthrough Law by Lord Styen, Page 131).\n<\/p>\n
The role of the judiciary is to protect fundamental rights.
\nA modern democracy is based on the twin principles of
\nmajority rule and the need to protect fundamental rights.
\nAccording to Lord Styen, it is job of the Judiciary to balance
\nthe principles ensuring that the Government on the basis of
\nnumber does not override fundamental rights.
\nApplication of doctrine of basic structure
\nIn Kesavananda Bharati’s case, the discussion was on
\nthe amending power conferred by unamended Article 368<\/a>
\nwhich did not use the words ‘constituent power’.  We have
\nalready noted difference between original power of framing the
\nConstitution known as constituent power and the nature of
\nconstituent power vested in Parliament under Article 368.<\/a>  By
\naddition of the words ‘constituent power’ in Article 368<\/a>, the
\namending body, namely, Parliament does not become the
\noriginal Constituent Assembly.  It remains a Parliament under
\na controlled Constitution.  Even after the words ‘constituent
\npower’ are inserted in Article 368<\/a>, the limitations of doctrine of
\nbasic structure would continue to apply to the Parliament.  It
\nis on this premise that clauses 4 and 5 inserted in Article 368<\/a>
\nby 42nd Amendment were struck down in Minerva Mills case.
\n\tThe relevance of Indira Gandhi’s case, Minerva Mills
\ncase and Waman Rao’s case lies in the fact that every
\nimproper enhancement of its own power by Parliament, be it
\nclause 4 of Article 329-A<\/a> or clause 4 and 5 of Article 368<\/a> or
\nSection 4<\/a> of 42nd Amendment have been held to be
\nincompatible with the doctrine of basic structure as they
\nintroduced new elements which altered the identity of the
\nConstitution or deleted the existing elements from the
\nConstitution by which the very core of the Constitution is
\ndiscarded.  They obliterated important elements like judicial
\nreview.  They made Directive Principles en bloc a touchstone
\nfor obliteration of all the fundamental rights and provided for
\ninsertion of laws in the Ninth Schedule which had no nexus
\nwith agrarian reforms.  It is in this context that we have to
\nexamine the power of immunity bearing in mind that after
\nKesavananda Bharati’s case, Article 368<\/a> is subject to
\nimplied limitation of basic structure.
\n\tThe question examined in Waman Rao’s case was
\nwhether the device of Article 31-B<\/a> could be used to immunize
\nNinth Schedule laws from judicial review by making the entire
\nPart III inapplicable to such laws and whether such a power
\nwas incompatible with basic structure doctrine.  The answer
\nwas in affirmative.  It has been said that it is likely to make
\nthe controlled Constitution uncontrolled.  It would render
\ndoctrine of basic structure redundant.  It would remove the
\ngolden triangle of Article 21<\/a> read with Article 14<\/a> and Article 19<\/a>
\nin its entirety for examining the validity of Ninth Schedule laws
\nas it makes the entire Part III inapplicable at the will of the
\nParliament.  This results in the change of the identify of the
\nConstitution which brings about incompatibility not only with
\nthe doctrine of basic structure but also with the very existence
\nof limited power of amending the Constitution.  The extent of
\njudicial review is to be examined having regard to these
\nfactors.\n<\/p>\n
\tThe object behind Article 31-B<\/a> is to remove difficulties
\nand not to obliterate Part III in its entirety or judicial review.
\nThe doctrine of basic structure is propounded to save the
\nbasic features.  Article 21<\/a> is the heart of the Constitution.  It
\nconfers right to life as well as right to choose.  When this
\ntriangle of Article 21<\/a> read with Article 14<\/a> and Article 19<\/a> is
\nsought to be eliminated not only the ‘essence of right’ test but
\nalso the ‘rights test’ has to apply, particularly when
\nKeshavananda Bharti  and Indira Gandhi cases  have
\nexpanded the scope of basic structure to cover even some of
\nthe Fundamental Rights.\n<\/p>\n
\tThe doctrine of basic structure contemplates that there
\nare certain parts or aspects of the Constitution including
\nArticle 15<\/a>, Article 21<\/a> read with Article 14<\/a> and 19<\/a> which
\nconstitute the core values which if allowed to be abrogated
\nwould change completely the nature of the Constitution.
\nExclusion of fundamental rights would result in nullification of
\nthe basic structure doctrine, the object of which is to protect
\nbasic features of the Constitution as indicated by the synoptic
\nview of the rights in Part III.\n<\/p>\n
\tThere is also a difference between the ‘rights test’ and the
\n‘essence of right test’.  Both form part of application of the
\nbasic structure doctrine. When in a controlled Constitution
\nconferring limited power of amendment, an entire Chapter is
\nmade inapplicable, ‘the essence of the right’ test as applied in
\nM. Nagaraj’s case (supra) will have no applicability.  In such
\na situation, to judge the validity of the law, it is ‘right test’
\nwhich is more appropriate.  \tWe may also note that in
\nMinerva Mills and Indira Gandhi’s cases, elimination of
\nPart III in its entirety was not in issue.  We are considering the
\nsituation where entire equality code, freedom code and right to
\nmove court under Part III are all nullified by exercise of power
\nto grant immunization at will by the Parliament which, in our
\nview, is incompatible with the implied limitation of the power
\nof the Parliament.  In such a case, it is the rights test that is
\nappropriate and is to be applied.  In Indira Gandhi’s case it
\nwas held that for the correct interpretation, Article 368<\/a>
\nrequires a synoptic view of the Constitution between its
\nvarious provisions which, at first sight, look disconnected.
\nRegarding Articles 31-A and 31-C (validity whereof is not in
\nquestion here) having been held to be valid despite denial of
\nArticle 14<\/a>, it may be noted that these Articles have an indicia
\nwhich is not there in Article 31-B.<\/a>\n<\/p>\n
Part III is amendable subject to basic structure doctrine.
\nIt is permissible for the Legislature to amend the Ninth
\nSchedule and grant a law the protection in terms of Article
\n31B<\/a> but subject to right of citizen to assail it on the enlarged
\njudicial review concept.  The Legislature cannot grant fictional
\nimmunities and exclude the examination of the Ninth
\nSchedule law by the Court after the enunciation of the basic
\nstructure doctrine.\n<\/p>\n
The constitutional amendments are subject to limitations
\nand if the question of limitation is to be decided by the
\nParliament itself which enacts the impugned amendments and
\ngives that law a complete immunity, it would disturb the
\nchecks and balances in the Constitution.  The authority to
\nenact law and decide the legality of the limitations cannot vest
\nin one organ.  The validity to the limitation on the rights in
\nPart III can only be examined by another independent organ,
\nnamely, the judiciary.\n<\/p>\n
\tThe power to grant absolute immunity at will is not
\ncompatible with basic structure doctrine and, therefore, after
\n24th April, 1973 the laws included in the Ninth Schedule
\nwould not have absolute immunity.  Thus, validity of such
\nlaws can be challenged on the touchstone of basic structure
\nsuch as reflected in Article 21<\/a> read with Article 14<\/a> and Article
\n19<\/a>, Article 15<\/a> and the principles underlying these Articles.
\n\tIt has to be borne in view that the fact that some Articles
\nin Part III stand alone has been recognized even by the
\nParliament, for example, Articles 20 and 21.  Article 359<\/a>
\nprovides for suspension of the enforcement of the rights
\nconferred by Part III during emergencies.  However, by
\nConstitution (44th Amendment) Act<\/a>, 1978, it has been provided
\nthat even during emergencies, the enforcement of the rights
\nunder Articles 20 and 21 cannot be suspended.  This is the
\nrecognition given by the Parliament to the protections granted
\nunder Articles 20 and 21.  No discussion or argument is
\nneeded for the conclusion that these rights are part of the
\nbasic structure or framework of the Constitution and, thus,
\nimmunity by suspending those rights by placing any law in
\nthe Ninth Schedule would not be countenanced.  It would be
\nan implied limitation on the constituent power of amendment
\nunder Article 368.<\/a>  Same would be the position in respect of
\nthe rights under Article 32<\/a>, again, a part of the basic structure
\nof the Constitution.\n<\/p>\n
\tThe doctrine of basic structure as a principle has now
\nbecome an axiom.  It is premised on the basis that invasion of
\ncertain freedoms needs to be justified.  It is the invasion which
\nattracts the basic structure doctrine.  Certain freedoms may
\njustifiably be interfered with.  If freedom, for example, is
\ninterfered in cases relating to terrorism, it does not follow that
\nthe same test can be applied to all the offences.  The point to
\nbe noted is that the application of a standard is an important
\nexercise required to be undertaken by the Court in applying
\nthe basic structure doctrine and that has to be done by the
\nCourts and not by prescribed authority under Article 368.<\/a>  The
\nexistence of the power of Parliament to amend the
\nConstitution at will, with requisite voting strength, so as to
\nmake any kind of laws that excludes Part III including power
\nof judicial review under Article 32<\/a> is incompatible with the
\nbasic structure doctrine.  Therefore, such an exercise if
\nchallenged, has to be tested on the touchstone of basic
\nstructure as reflected in Article 21<\/a> read with Article 14<\/a> and
\nArticle 19<\/a>, Article 15<\/a> and the principles thereunder.
\n\tThe power to amend the Constitution is subject to
\naforesaid axiom.  It is, thus, no more plenary in the absolute
\nsense of the term.   Prior to Kesavananda Bharati, the axiom
\nwas not there.  Fictional validation based on the power of
\nimmunity exercised by the Parliament under Article 368<\/a> is not
\ncompatible with the basic structure doctrine and, therefore,
\nthe laws that are included in the Ninth Schedule have to be
\nexamined individually for determining whether the
\nconstitutional amendments by which they are put in the Ninth
\nSchedule damage or destroy the basic structure of the
\nConstitution.  This Court being bound by all the provisions of
\nthe Constitution and also by the basic structure doctrine has
\nnecessarily to scrutinize the Ninth Schedule laws.  It has to
\nexamine the terms of the statute, the nature of the rights
\ninvolved, etc. to determine whether in effect and substance the
\nstatute violates the essential features of the Constitution.  For
\nso doing, it has to first find whether the Ninth Schedule law is
\nviolative of Part III.  If on such examination, the answer is in
\nthe affirmative, the further examination to be undertaken is
\nwhether the violation found is destructive of the basic
\nstructure doctrine.  If on such further examination the answer
\nis again in affirmative, the result would be invalidation of the
\nNinth Schedule Law.  Therefore, first the violation of rights of
\nPart III is required to be determined, then its impact examined
\nand if it shows that in effect and substance, it destroys the
\nbasic structure of the Constitution, the consequence of
\ninvalidation has to follow.  Every time such amendment is
\nchallenged, to hark back to Kesavananda Bharati upholding
\nthe validity of Article 31B<\/a> is a surest means of a drastic
\nerosion of the fundamental rights conferred by Part III.
\n\tArticle 31B<\/a> gives validation based on fictional immunity.
\nIn judging the validity of constitutional amendment we have to
\nbe guided by the impact test.   The basic structure doctrine
\nrequires the State to justify the degree of invasion of
\nfundamental rights.  Parliament is presumed to legislate
\ncompatibly with the fundamental rights and this is where
\nJudicial Review comes in.  The greater the invasion into
\nessential freedoms, greater is the need for justification and
\ndetermination by court whether invasion was necessary and if
\nso to what extent.  The degree of invasion is for the Court to
\ndecide.  Compatibility is one of the species of Judicial Review
\nwhich is premised on compatibility with rights regarded as
\nfundamental.  The power to grant immunity, at will, on
\nfictional basis, without full judicial review, will nullify the
\nentire basic structure doctrine.  The golden triangle referred to
\nabove is the basic feature of the Constitution as it stands for
\nequality and rule of law.\n<\/p>\n
\tThe result of aforesaid discussion is that the
\nconstitutional validity of the Ninth Schedule Laws on the
\ntouchstone of basic structure doctrine can be adjudged by
\napplying the direct impact and effect test, i.e., rights test,
\nwhich means the form of an amendment is not the relevant
\nfactor, but the consequence thereof would be determinative
\nfactor.\n<\/p>\n
In conclusion, we hold that :\n<\/p>\n
(i)\tA law that abrogates or abridges rights guaranteed by
\nPart III of the Constitution may violate the basic
\nstructure doctrine or it may not.  If former is the
\nconsequence of law, whether by amendment of any
\nArticle of Part III or by an insertion in the Ninth
\nSchedule, such law will have to be invalidated in exercise
\nof judicial review power of the Court.  The validity or
\ninvalidity would be tested on the principles laid down in
\nthis judgment.\n<\/p>\n
(ii)\tThe majority judgment in Kesavananda Bharati’s case
\nread with Indira Gandhi’s case, requires the validity of
\neach new constitutional amendment to be judged on its
\nown merits.  The actual effect and impact of the law on
\nthe rights guaranteed under Part III has to be taken into
\naccount for determining whether or not it destroys basic
\nstructure.  The impact test would determine the validity
\nof the challenge.\n<\/p>\n
(iii)\tAll amendments to the Constitution made on or after 24th
\nApril, 1973 by which the Ninth Schedule is amended by
\ninclusion of various laws therein shall have to be tested
\non the touchstone of the basic or essential features of the
\nConstitution as reflected in Article 21<\/a> read with Article
\n14<\/a>, Article 19<\/a>, and the principles underlying them.  To
\nput it differently even though an Act is put in the Ninth
\nSchedule by a constitutional amendment, its provisions
\nwould be open to attack on the ground that they destroy
\nor damage the basic structure if the fundamental right or
\nrights taken away or abrogated pertains or pertain to the
\nbasic structure.\n<\/p>\n
(iv)\tJustification for conferring protection, not blanket
\nprotection, on the laws included in the Ninth Schedule by
\nConstitutional Amendments shall be a matter of
\nConstitutional adjudication by examining the nature and
\nextent of infraction of a Fundamental Right by a statute,
\nsought to be Constitutionally protected, and on the
\ntouchstone of the basic structure doctrine as reflected in
\nArticle 21<\/a> read with Article 14<\/a> and Article 19<\/a> by
\napplication of the “rights test” and the “essence of the
\nright” test taking the synoptic view of the Articles in Part
\nIII as held in Indira Gandhi’s case.  Applying the above
\ntests to the Ninth Schedule laws, if the infraction affects
\nthe basic structure then such a law(s) will not get the
\nprotection of the Ninth Schedule.\n<\/p>\n
\t\tThis is our answer to the question referred to us
\nvide Order dated 14th September, 1999 in I.R. Coelho v.
\nState of Tamil Nadu<\/a> [(1999) 7 SCC 580].\n<\/p>\n
(v)\tIf the validity of any Ninth Schedule law has already been
\nupheld by this Court, it would not be open to challenge
\nsuch law again on the principles declared by this
\njudgment.  However, if a law held to be violative of any
\nrights in Part III is subsequently incorporated in the
\nNinth Schedule after 24th April, 1973, such a
\nviolation\/infraction shall be open to challenge on the
\nground that it destroys or damages the basic structure as
\nindicated in Article 21<\/a> read with Article14, Article 19<\/a> and
\nthe principles underlying thereunder.\n<\/p>\n
(vi)\tAction taken and transactions finalized as a result of the
\nimpugned Acts shall not be open to challenge.
\nWe answer the reference in the above terms and direct
\nthat  the  petitions\/appeals be now placed for hearing before a <\/p>\n
Three Judge Bench for decision in accordance with the
\nprinciples laid down herein.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors on 11 January, 2007 Author: S . Y.K. Bench: Y.K. Sabharwal Singh, S.H. Kapadia Thakker, P.K. Balasubramanyan Jain CASE NO.: Appeal (civil) 1344-45 of 1976 PETITIONER: I.R. Coelho (Dead) By LRs RESPONDENT: State of Tamil Nadu & Ors. DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-251173","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nI.R. 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