I.R Coelho (Dead) By Lrs. v. State Of T.N .

Summary of Arguments

I. Mr F.S Nariman, Senior Advocate, on behalf of the petitioners

II. Mr Goolam E. Vahanvati, Solicitor General of India, for the Union of India

III. Mr Soli J. Sorabjee, Senior Advocate, on behalf of the State of Tamil Nadu

IV. Mr T.R Andhyarujina, Senior Advocate, on behalf of the State of Tamil Nadu

I. Mr F.S Nariman, Senior Advocate, on behalf of the petitioners

Submissions on Article 31-B

1. The Constitution (First Amendment) Act, 1951 introducing Article 31-B with 13 items in the Ninth Schedule was—a one-time measure—and valid as a one-time measure:

(a) The marginal note to Article 31-A (Saving of laws providing for acquisition of estates, etc.) and the marginal note to Article 31-B (Validation of certain Acts and regulations) are to be contrasted.

(b) Article 31-B was obviously not intended as a general saving of laws which were to be enacted in the future; the language of Article 31-B also did not countenance adding more enactments in the Ninth Schedule (the words are “none of the Acts and regulations specified in the Ninth Schedule.…”), the language is not “none of the Acts and regulations specified and to be specified in the Ninth Schedule”. In Sankari Prasad (1952) this has been emphasised (SCR at p. 108).

(c) The words “nor any of the provisions thereof” (i.e of the Acts and regulations specified in the Ninth Schedule) “shall be deemed to be void or ever to have become void” were on account of important historic circumstances—noticed in the judgment in Sajjan Singh (1965) (SCR at pp. 942-44; AIR at pp. 852-53, paras 10-14).

2. The extension of this one-time measure by the Fourth and Seventeenth Amendment Acts which added Items 14 to 64 in the Ninth Schedule (without re-enacting or even mentioning Article 31-B) was tolerated on account of the circumstances stated in Sankari Prasad (1952) and held to be valid in Golak Nath (1967):

(i) either on the basis of “earlier decisions of this Court” (Subba Rao, C.J, or

(ii) on the basis of “acquiescence for a long time” (Hidayatullah, J.).

3. As a consequence of the majority decision in Kesavananda Bharati (that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”) not only was there no further justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein but the “device” of making valid what was void (by a deeming fiction—Article 31-B) was itself violative of one of the most basic features of our Constitution viz. judicial review by the courts which ordinarily enforced fundamental rights (viz. the High Courts under Article 226 and the Supreme Court under Article 32). After Kesavananda Bharati (1973) it is no longer open to say [as was said by Patanjali Sastri, J. in Sankari Prasad (AIR p. 464, para 15)—“But to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, …”

The various constitutional amendments, by which additions were made to the Ninth Schedule on or after 24-4-1973, were “open to challenge on the ground that they or any one or more of them are beyond the constituent power of Parliament since they damage the basic or essential feature of the Constitution or its basic structure”; a proposition set out in the order dated 9-5-1980 in Waman Rao, Waman Rao v. Union of India, SCC at pp. 397-98.

4. The “basic or essential features of the Constitution” did not exclude, and do not exclude, the provisions in the fundamental rights chapter [except property rights in Articles 19(1)(f) and 31]. As a matter of fact the basic or essential features would necessarily include Part III of the Constitution; though they would not be restricted only to Part III.

5. The impression that after the decision in Kesavananda Bharati (1973) the majority had held that fundamental rights were not “basic or essential features of the Constitution” was soon dispelled, when the “basic structure test” was applied to the provisions of the Thirty-ninth Amendment Act, 1975 (in Indira Gandhi Election case in 1975) where Khanna, J. (himself part of that Bench), being aware that his own somewhat ambiguous observations in Kesavananda Bharati had fuelled the impression that fundamental rights were not part of the basic structure: Khanna, J. had expressly clarified that what he meant was that property rights were never part of the basic structure, not that the other fundamental rights were not part of the basic structure. (Indira Gandhi, SCC at p. 116 para 252)

Application of the test (the basic structure test)

6. To speak of something more would introduce great uncertainty in the law—almost like the “Chancellor's foot”; and it would lead to spiralling litigation if it were held that something more than what was contained in the fundamental rights chapter was required to be established when the constitutional validity of constitutional amendments placing ordinary laws in the Ninth Schedule (post-April 1973) was questioned. It is respectfully submitted that the test of “basic structure” would exclude property rights but not other fundamental rights—it may include also other aspects of “basic structure” such as “rule of law”, “separation of powers”, “secularism”, “federalism”, etc.

7. It is respectfully submitted that permitting Acts put in the Ninth Schedule after April 1973 to be challenged also on the ground of violation of fundamental rights would not at all disable Parliament from making effective and valid constitutional amendments. The decision in Minerva Mills and in Waman Rao clearly establishes this:

(a) In Minerva Mills (1980) for instance, the Court expressly struck down the extension of Article 31-C into the entire field of directive principles [not restricted to only Articles 39(b) and (c)] on the ground that such extension disturbed the balance in the Constitution—a balance which permits fundamental rights to be so amended as to conform with one or another of the principles mentioned in Part IV but not so as to completely override the same; by contrast Article 31-C as originally enacted—and limited only to Articles 39(b) and (c) (25th Amendment) was expressly upheld in Kesavananda (1973) (except the latter part making the legislative declaration final and beyond judicial review).

(b) In Waman Rao (1980) the Court unanimously upheld the validity of Article 31-A although it took away fundamental rights under Articles 14 and 19 from individuals whose rights under those articles were challenged in respect of specified type of laws. This was in the context of the larger good e.g for implementing programme of agrarian reform (see Waman Rao, SCC at pp. 378-84). Article 31-A had sufficient guidelines and did not exclude judicial review of the courts (which enforced fundamental rights)—hence the constitutional validity of Article 31-A was upheld.

It is respectfully submitted that the continued invocation of Article 31-B merely by placing further Acts in the Ninth Schedule post-April 1973 would lead to the impossibility of any effective judicial review—simply because there would be no parameters on the basis of which the validity of the constitutional amendments could be tested—since Article 31-B contemplates any laws whether of the State Legislatures or of Parliament which Parliament by a 2/3rd majority may choose to place in the Ninth Schedule.

8. After more than 50 years of the working of our Constitution (and after deletion of property rights from the fundamental rights chapter), it is respectfully submitted that the power of Parliament and of the State Legislatures to make laws only in conformity with fundamental rights, and not in contravention of them, should be held by Your Lordships to be a part of the basic feature or framework of the Constitution. As to whether a particular constitutional amendment damages or destroys a basic feature has to be judged on some higher principle—a balancing of individual rights against societal rights, for example—which can be judicially scrutinised by the court—by the same court which is empowered to enforce fundamental rights. It is on this principle that the validity of Article 31-A was upheld by the Court in Waman Rao (1980); denying the benefit to individuals of their fundamental right of equality under Article 14 in agrarian reform legislation which conforms to the principle of agrarian reform, such as distribution of lands to the landless, etc., has been upheld on the larger concept of equality when applied to the interests of society as a whole, as opposed to individual interests. In other words, the salus populli est suprema lex principle (Broom's Legal Maxims, 7th Edn., p. 1) “regard for the public welfare is the highest law”; “public welfare” being judged initially by those who framed the laws, and judged ultimately by those whose constitutional duty it is to interpret them.

9. In the reference order reported in I.R Coelho v. State of T.N the specific question referred to this Hon'ble Bench of nine Judges is “whether a provision of an Act which has already been struck down by this Hon'ble Court could or could not be validly inserted in the Ninth Schedule”. The questions have been framed in two parts viz:

“(1) Judicial review is a basic feature of the Constitution; to insert in the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy or damage the basic structure of the Constitution.

(2) To insert in the Ninth Schedule after 24-4-1973, an Act which, or part of which, has been struck down as being violative of the fundamental rights conferred by Part III of the Constitution is to destroy or damage its basic structure.”

It is respectfully submitted that judicial review being a basic feature of the Constitution, it should be held that to insert in the Ninth Schedule after 24-4-1973 an Act which, or a part of which, has been struck down as unconstitutional in exercise of the power of judicial review would per se destroy or damage the basic structure of the Constitution.

10. It should also be held by this Hon'ble Court that to insert in the Ninth Schedule after 24-4-1973 an Act which, or a part of which has been struck down as being violative of fundamental rights conferred by Part III of the Constitution, would also per se destroy or damage the basic structure of the Constitution.

The supremacy of the Constitution has been stated to be a basic feature of the Constitution: its relevance to Coelho case

(A) Kesavananda Bharati (Sikri, C.J)

(B) State of Rajasthan v. Union of India (Beg, J.), SCC para 49

(C) Indira Gandhi v. Raj Narain (Beg, J.), SCC para 521, p. 197 and paras 571-74, pp. 217-18.

11. The doctrine of basic structure can be meaningful only if its applicability is with reference to concepts. Apart from the question whether any fundamental rights constitute a basic feature of the Constitution, Part III in its totality codifies the concept of fundamental rights—it establishes the supremacy of the Constitution. Part III itself is undoubtedly a basic feature of the Constitution. The effect of Article 31-B and the Ninth Schedule is to bring into existence a Constitution without Part III insofar as the Ninth Schedule Acts are concerned. The Constitution without Part III is basically different from the Constitution of India, as conceived and promulgated. Article 368 does not confer constituent power on Parliament to make a different Constitution—at least not after 24-4-1973.

12. In Coelho case the object of the Thirty-fourth Amendment Act (Entry 80) is to declare as valid what the highest court of the land had pronounced to be unconstitutional and invalid viz. Section 3 of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 — Balmadies (SCC at p. 150, para 22) thereby impairing or destroying not only judicial review but also the supremacy of the Constitution. There can be no doubt that supremacy of the Constitution as a basic feature is achieved and maintained only by judicial review, namely, the power of the courts to uphold the supremacy of the Constitution by deciding whether laws enacted are repugnant to Part III or not. Hence it is that, supremacy of the Constitution and judicial review are both basic features of our written Constitution.

Consequences

13. If laws which are struck down as violating fundamental rights can also be put in the Ninth Schedule, even after 24-4-1973 there is an end to all our freedoms. For instance, take freedom of the press. Laws which have been struck down as violating Article 19(1)(a) will get full force and vigour if included in the Ninth Schedule. The old newsprint policy—struck down in Bennett Coleman (4:1) as violative of Article 19(1)(a) of the Constitution could be revived by enacting a law to that effect and putting it in the Ninth Schedule; it will be recalled that the old newsprint policy was aimed at the major print media which criticised the Government.

14. To take another instance, after the clamour of election laws to be more transparent, all political parties agreed to the Representation of the People (Third Amendment) Act, 2002 being enacted which however included Section 33-B quoted below:

“33-B. Candidate to furnish information only under the Act and the rules.—Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.”

The judgment referred to was Union of India v. Assn. for Democratic Reforms.

15. Article 33-B was struck down by this Court in PUCL v. Union of India as violating Article 19(1)(a) and also because it overrode a prior judgment of the Court (without attempting to remove the defect). Since all political parties had agreed on the formulation of Section 33-B, it is possible to imagine a constitutional Amendment including Section 33-B of the Representation of the People (Third Amendment) Act, 2002 in the Ninth Schedule; a “struck down” provision—Section 33-B—would then revive if the contention of the respondents in this reference were to prevail.

Conclusions

16. (1) The “basic structure” doctrine has been an evolutionary process—its foundation was laid (at first only tentatively) in Sajjan Singh (1965) by Mudholkar, J., SCR at pp. 966, 967 and 969 F. It was then authoritatively enunciated in Kesavananda, SCC at p. 1007 (“Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”): “Authoritatively” not merely because the majority of Judges (7:6) said that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”, but additionally, because the doctrine was actually applied in the same case when striking down the last part of Article 31-C (Twenty-fifth Amendment Act, 1971)—each of the Judges so struck it down on the basis of different facets of the “basic structure”. Sikri, C.J, Kesavananda, SCC at p. 405, para 475(g); Shelat, J. and Grover, J. in para 608(6) at p. 463; Hegde and Mukherjea, JJ. in para 744(7) at p. 512; Khanna, J. in para 1537(XIV) from pp. 824 and 825; and Jaganmohan Reddy, J. in para 1205 at p. 662.

(2) The constitutional doctrine was accepted in Waman Rao, by Chandrachud, C.J who spoke for the Bench of 5 Judges, though it was he who had initially dissociated himself from that doctrine (minority opinion in Kesavananda Bharati case).

(3) The approach to the enactments put in the Ninth Schedule after 24-4-1973 has been uniform and in line with the last sentence of para 51, pp. 397-98 in Waman Rao case viz.

“The various constitutional Amendments by which additions were made to the Ninth Schedule on or after 24-4-1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.”

(4) After Kesavananda Bharati case a Bench of thirteen Judges were again assembled on 10-11-1975 after the Union of India (and the Attorney General) had made an application on 1-9-1975 for reconsideration.

H.M Seervai in the fourth edition of his Constitutional Law of India (Vol. II) at p. 1957 comments:

“On 20-10-1975, the Court indicated that on 10-11-1975 the petitions would be heard by a Bench of thirteen Judges for considering: (1) whether the power of amendment of the Constitution was restricted by the theory of basic structure and framework as propounded in Kesavananda case and (2) whether Bank Nationalisation case was correctly decided. However, before the hearing could take place on 10 November the judgment of five Judges in the Election case, (Indira Gandhi v. Raj Narain) four of them clearly affirming the doctrine of the basic structure, had been delivered. On 10-11-1975 when a large number of writ petitions were placed before a Bench of thirteen Judges an objection was raised to the Union Government's application for a reconsideration of Kesavananda case on the theory of the basic structure and framework of the Constitution on the ground that no case had been made out for such reconsideration. Arguments were heard for two days but then on 12-11-1975, as soon as the Court reassembled, Ray, C.J, informed the parties that the Bench had been dissolved, and the specified matter would be posted for hearing before the Constitution Bench which, after considering the matter might, if it thought necessary, refer the matter to a larger Bench.”

Seervai then adds:

“This sequence of events would suggest that Ray, C.J, realised, before 10-11-1975, that his brother Judges in the Election case were not likely to depart from the theory of the basic structure; and it would also suggest that the two days' hearing before the Bench of thirteen Judges satisfied him that the doctrine of the basic structure would not be reconsidered by the present Bench.”

(5) Subsequent legislative history noted below shows that when an attempt was made by the Government of the day to introduce amendments in Article 368 amplifying some aspects of the “basic structure”, the attempt was not successful.

(A) Bill 88 of 1978, titled the Constitution (Forty-fifth Amendment) Bill, 1978 was introduced in the Lok Sabha on 15-5-1978. The Bill sought to amend various articles, including Article 368 of the Constitution—after clause (2) of Article 368 the following proviso was sought to be inserted viz.

Provided further that if such amendment—

(a) seeks to make any change which, if made, would have the effect of—

(i) impairing the secular or democratic character of this Constitution; or

(ii) abridging or taking away the rights of citizens under Part III; or

(iii) prejudicing or impeding free and fair elections to the House of the People or the Legislative Assemblies of States on the basis of adult suffrage; or

(iv) compromising the independence of the judiciary; or

(b) seeks to amend this proviso the amendment shall also require to be approved by the people of India at a referendum under clause (4);

and for clauses (4) and (5)—inserted by the Forty-second Amendment Act, the following clauses were proposed to be substituted:

“(4) The referendum for the purpose of seeking the approval of the people of India for any amendment of the nature referred to in the second proviso to clause (2) shall be through a poll, and

(i) all persons who are for the time being eligible to be voters under Article 326 at elections to the House of the People shall be entitled to vote at such poll; and

(ii) any such amendment shall be deemed to have been approved by the people of India if such amendment is approved by a majority of the voters voting at such poll and the voters voting at such poll constitute not less than fifty-one per cent of the voters entitled to vote at such poll.

(5) The superintendence, direction and control of the preparation of the rolls of voters for, and the conduct of every referendum under this article shall vest in the Election Commission and the result of such referendum as declared by the Election Commission shall not be called in question in any court.

(6) Subject to the provisions of clauses (4) and (5), Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with referenda under this article, including the preparation of the rolls of voters.”

(B) Bill 88 of 1978 was considered by the Lok Sabha on 7-8-1978 to 12-8-1978 and 21-8-1978 to 23-8-1978, and as amended passed on 23-8-1978.

(i) (Article 368) = Clause 45 (Lok Sabha Debates dated 23-8-1978) p=43 to 54

“That clause 45 stands part of the Bill.”

Votes: Ayes — 314 Noes — 88

Note.—The motion was carried by a majority of the total membership of the House and by a majority of not less than two-thirds of the Members present and voting.

(ii) Lok Sabha Debates 23-8-1978 (p=107 to 116)

“The whole Bill as amended be passed.”

Votes: Ayes — 355 Noes — NIL

Note.—The motion was carried by a majority and was adopted.

(C) Bill 88 of 1978 was considered by the Rajya Sabha from 28-8-1978 to 31-8-1978 and passed with amendments on 31st August.

(i) Clause 45 (amendment of Article 368) p=270 to 281 of Debates

“That clause 45 stands part of the Bill.”

Votes: Ayes — 91 Noes — 86

Note.—Motion was declared not carried by the requisite 2/3rd majority of the Members present and voting.

(ii) “That the Bill, as amended, be passed.”

Votes: Ayes — 182 Noes — 1

Note.—Motion carried by a 2/3rd majority.

(D) The Bill as amended by the Rajya Sabha was again considered by the Lok Sabha on 6-12-1978 and 7-12-1978: Amendments made by the Rajya Sabha were agreed to by the Lok Sabha on 7-12-1978. The Bill as amended was thus passed by the Lok Sabha on 7-12-1978.

(i) Re: Clause 45: on 7-12-1978 (Lok Sabha Debates 7-12-1978) p=304 to 314 the motion was put to vote:

“That at pp. 13 and 14, clause 45 be deleted.”

Votes: Ayes — 342 Noes — 41

Note.—Motion was carried with 2/3rd majority and adopted.

(ii) Entire Bill was passed on 7-12-1978 p=324 to 333

“That the Bill as amended by the amendments agreed to be passed.”

Votes: Ayes — 357 Noes — 1

Note.—Motion was carried by a majority of 2/3rd and adopted.

Hence, there was no amendment to Article 368 as proposed in Bill 88 of 1978 and Article 368 [as amended by Section 55 of the Constitution (Forty-second Amendment) Act by inserting clauses (4) and (5)] remained unaltered.

(6) Parliament has never attempted to reformulate any facets of basic structure since then and has continuously accepted that it is for the judiciary to explain and expound on a case-to-case basis.

(7) In Kesavananda Bharati (1973) itself, the latter part of Article 31-C introduced by the Constitution (Twenty-fifth Amendment) Act, 1971 was struck down inter alia on one aspect of the “basic features” mentioned by two Judges viz. that it violated judicial review [Khanna, J. and Jaganmohan Reddy, J. at para 1537(xiv), p. 825 and para 1205, p. 662 respectively]. Courts have in subsequent decisions consistently held that judicial review of constitutional Amendments through the Court's scrutiny under Article 226 and Article 136 is one of the basic features of the Constitution (see L. Chandra Kumar case).

(8) It is submitted that Article 31-B which has been consistently held to be a “constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution” (see N.B Jeejeebhoy v. Assistant Collector, Thane) can no longer survive after the fruition of the concept of judicial review of constitutional Amendment—because laws enacted either by Parliament or the State Legislatures which take away or abridge any of the fundamental rights of Part III of the Constitution are expressly declared void under Article 13, and the concept of “supremacy of the Constitution” (itself a basic feature) precludes the notion of two sets of laws—one which is subject to court's scrutiny for violation of fundamental rights under Articles 32, 226 or 136 and another set of laws which the High Courts and the Supreme Court are not permitted to scrutinise only because of the “constitutional device” by which they are placed in the Ninth Schedule. Article 31-B has now become totally otiose and cannot be invoked by Parliament to make void laws valid (void because they infringe all or any of the rights mentioned in Part III). Khanna, J. has explained and clarified in Indira Gandhi v. Raj Narain (1975) that he did not say in Kesavananda (1973) that “fundamental rights are not a part of the basic structure” (paras 251-52, pp. 114-16 in Indira Gandhi case). He has explained how his observation in Kesavananda militates against the (ill-founded) contention that “according to my judgment fundamental rights are not a part of the basic structure of the Constitution”.

(9) In the first case dealing with Article 31-B (Sankari Prasad v. Union of India) Patanjali Sastri, J. said at p. 109 “to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional Amendment”. No longer. After the basic structure theory became part of Indian constitutional law—as from 24-4-1973—it is impermissible to make a law which contravenes the Constitution, constitutionally valid—if it violates any of the basic features of the Constitution.

II. Mr Goolam E. Vahanvati, Solicitor General of India, for the Union of India

Scope and object of Article 31-B of the Constitution

1. Article 31-A as well as Article 31-B were incorporated by way of the Constitution (First Amendment) Act, 1951. The object and purpose of the Constitution (First Amendment) Act, 1951, as is discernible from the Parliamentary Debates, is to achieve the constitutional objectives of social equality. Directive principles of State policy points out the way in which the State should achieve this goal. Part III of the Constitution also guarantees fundamental rights. Both are important. The directive principles of State policy represent a dynamic move towards a certain objective. The fundamental rights appears to be static. Both are fundamental and constitute the core. However, it is conceivable that dynamic movement and static influences collide. Therefore, a legislature must have the power to bring about the broader social equality even if it be at the expense of particular individual freedoms. Otherwise, the State fails to do what it has been commanded to do by this Constitution. This does not mean that the Constitution is changed; in fact it is made stronger. This merely gives effect to the real intentions of the framers of the Constitution, and to the wording of the Constitution.

Interaction between Article 31-A and Article 31-B

2. The expression, “without prejudice to the generality of the provisions contained in Article 31-A” in Article 31-B, indicates that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31-A, this article would become redundant. Article 31-B is not governed by Article 31-A. See N.B Jeejeebhoy v. Asstt. Collector, Thana Prant, (5 Judges); State of Bihar v. Kameshwar Singh (5 Judges); Kesavananda Bharati v. State of Kerala (13 Judges). (Paras 463, 608, 742-43, 1062, 1211, 1332, 1536, 1782, 1851, 1992, 2136)

3. There are significant dissimilarities in the device or mechanism created by Articles 31-A and 31-B. Article 31-A enables the passing of laws of the description mentioned in clauses (a) to (e), in violation of the guarantees afforded by Articles 14 and 19. Parliament is not required, in the exercise of its constituent power or otherwise, to undertake an examination of the laws which are to receive the protection of Article 31-A. In other words, when a competent legislature passes a law within the purview of clauses (a) to (e), it automatically receives the protection of Article 31-A, with the result that the law cannot be challenged on the ground of its violation of Articles 14 and 19. Insofar as Article 31-B is concerned, it does not define the category of laws which are to receive its protection, and secondly, going little further than Article 31-A, it affords protection to Schedule laws against all the provisions of Part III of the Constitution. No Act can be placed in the Ninth Schedule except by Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution. Thus, Article 31-B read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the Schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31-A protects laws of a defined category, Article 31-B empowers Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. See Waman Rao v. Union of India (5 Judges).

4. There is no warrant or justification in restricting the laws to be protected by Article 31-B to only the laws saved by Article 31-A. In this regard, see the holding of this Hon'ble Court in Waman Rao v. Union of India (5 Judges), SCC at p. 396 through the learned Chief Justice Chandrachud (for himself, Tulzapurkar and Sen, JJ.). Attention is invited also to the judgment of this Hon'ble Court in Godavari Sugar Mills v. S.B Kamble (3 Judges), SCC at p. 706 (per Khanna, J.)

Article 31-B as a validating and curing provision

5. It is well settled that a validating statute can render a judgment of the court ineffective. It is also well settled that a validating statute has to remove the basis on which the judgment was rendered. [See Prithvi Cotton Mills v. Broach Borough Municipality (5 Judges), SCC at para 4]. It is respectfully submitted that Article 31-B is a constitutional mechanism for validating statutes which have been struck down on the ground of violation of Part III of the Constitution. See Sasanka Sekhar Maity v. Union of India (5 Judges).

6. When a statute is included in the Ninth Schedule, the vice or the defect of unconstitutionality of the legislation on the ground of infringement of fundamental rights is cured. Article 31-B itself acts as a deeming validating provision. It is submitted that there is no necessity of a separate validating Act taking away the basis of the judgment before the Act is put in the Ninth Schedule. The very factum of inclusion in the Ninth Schedule of the Act cures the Act of the defect/basis which is pointed out in the judgment holding the legislation to be unconstitutional. In this context, the words “shall be deemed to be void or ever to have become void” are relevant and significant.

7. It is submitted that a legislation which has been struck down on the ground of violation of fundamental rights is cured of the defect/vice by its inclusion in the Ninth Schedule by a deeming fiction as if Part III of the Constitution was never available as a challenge to such statute. Article 31-B creates a sphere whereby legislation or regulation provided in the Ninth Schedule would not attract the application of Part III of the Constitution.

8. This Hon'ble Court in Prag Ice & Oil Mills v. Union of India (7 Judges) through Chandrachud, J. (for himself, Bhagwati, Fazal Ali, Shinghal and Jaswant Singh, JJ.) held that when an enactment is challenged on the ground of violation of fundamental rights, and the defence of the State is that the legislation is included in the Ninth Schedule, the narrow question to which one must address oneself is whether the impugned law is specified in that Schedule. If it is, the provisions of Article 31-B would be attracted and the challenge has to fail without any further inquiry. See also Standard Chartered Bank v. Directorate of Enforcement (3 Judges), SCC paras 17 & 18.

Amending power and Article 31-B

9. This Hon'ble Court in Golak Nath v. State of Punjab (11 Judges) through Bachawat, J. held as under:

“Article 31-B retrospectively validated the Acts mentioned in the Ninth Schedule notwithstanding any judgment, decree or order of any court though they take away or abridge the rights conferred by Part III. It is said that the Acts are stillborn and cannot be validated. But by force of Article 31-B the Acts are deemed never to have become void and must be regarded as valid from their inception. The power to amend the Constitution carries with it the power to make a retrospective amendment. It is said that Article 31-B amends Article 141 at it alters the law declared by this Court on the validity of the Acts. This argument is baseless. As the Constitution is amended retrospectively, the basis upon which the judgments of this Court were pronounced no longer exists, and the law declared by this Court can have no application. It is said that Article 31-B is a law with respect to land and other matters within the competence of the State Legislature, and Parliament has no power to enact such a law. The argument is based on a misconception. Parliament has not passed any of the Acts mentioned in the Ninth Schedule. Article 31-B removed the constitutional bar on the making of the Acts. Only Parliament could remove the bar by the Constitution amendment. It has done so by Article 31-B. Parliament could amend each article in Part III separately and provide that the Acts would be protected from attack under each article. Instead of amending each article separately, Parliament has by Article 31-B made a comprehensive amendment of all the articles by providing that the Acts shall not be deemed to be void on the ground that they are inconsistent with any of them. The Acts as they stood on the date of the Constitution amendments are validated. By the last part of Article 31-B the competent legislatures will continue to retain the power to repeal or amend the Acts. The subsequent repeals and amendments are not validated. If in future the competent legislature passes a repealing or amending Act which is inconsistent with Part III it will be void.”

(emphasis supplied)

This principle of law laid down by Bachawat, J. holds good till now. This principle has never been overruled.

Mere infringement of a fundamental right may not violate the basic structure

10. The core issue which arises for consideration is the nature of the challenge available to test the validity of constitutional amendments, inserting and making additional entries in the Ninth Schedule. It is submitted that this Hon'ble Court in Kesavananda Bharati case held by a majority that the power to amend the Constitution has an inherent limitation i.e it cannot amend, alter or destroy the basic structure of the Constitution. Therefore, an amendment to the Constitution cannot be done when the amendment violates the basic structure of the Constitution. This is an inherent limitation of the powers provided under Article 368 of the Constitution.

11. It is submitted that when a constitutional amendment Act inserts a legislation into the Ninth Schedule, the Act which is inserted by the Constitution Amendment Act still remains an ordinary legislation and does not partake the character of a constitutional provision. Mathew, J. in Indira Gandhi Nehru case, (SCC para 358) considered the effect of inserting a legislation into the Ninth Schedule.

12. The question which then arises is the limits of judicial review while testing a constitutional amendment inserting an act in the Ninth Schedule. It is submitted that by virtue of the law laid down in Kesavananda Bharati case the constitutional amendment would be ultra vires the amending power conferred by Article 368, if it comprehends within it the damaging or destruction of the basic structure. Therefore, a constitutional amendment which incorporates a legislation in the Ninth Schedule has to be tested on the ground whether it violates the basic structure of the Constitution. In the event, the constitutional amendment Act incorporates an Act which violates the basic structure then such an amendment would be ultra vires the powers provided by Article 368 and therefore invalid and the protection provided under Article 31-B would not be available.

13. The question which then arises is what is the test of judicial review of such legislation inserted in the Ninth Schedule. It is respectfully submitted that challenge to such a legislation incorporated by a constitutional amendment in the Ninth Schedule on the ground of basic structure is limited to the extent that the fundamental rights which the legislation takes away, damages or destroys the basic structure of the Constitution. It is therefore submitted that the correct approach while testing a legislation incorporated in the Ninth Schedule on the ground of basic structure was formulated by Mathew, J. in Indira Gandhi Nehru case, (SCC para 358)

“The utmost that can be said is as I indicated, that even after putting them in the Ninth Schedule their provisions would be open to challenge on the ground that they took away or abrogated all or any of the fundamental rights and therefore damaged or destroyed the basic structure if the fundamental rights or right taken away or abrogated constitutes a basic structure.”

It is submitted that an Act which is inserted in the Ninth Schedule cannot be tested on the broad parameters of basic structure doctrine except as indicated above.

14. There is a vital difference between the invalidation of legislation because of infringement of Article 14 of the Constitution and invalidation of a constitutional amendment on account of the total destruction or annihilation of the concept of equality, which would form part of the basic feature. It is therefore submitted that mere curtailment of a fundamental right might not offend the basic structure of the Constitution. In this regard, see Bhim Singhji v. Union of India (5 Judges). See also R.S Garg v. State of U.P (2 Judges).

Judicial review and basic structure

15. Though in L. Chandra Kumar v. Union of India (7 Judges) this Hon'ble Court concluded that,

“It appears that this Court has always considered the power of judicial review vested in the High Courts and in this Court, under Article 226 and Article 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts to be integral to our constitutional scheme; the fact remains that under the Constitution itself there are several articles which exclude judicial review.”

[See for instance, Article 33, Article 74(2), Article 103(1), Article 105(2), Article 122, Article 136(2), Article 163(3), Article 194(2), Article 212, Article 262(2), Article 329-A and Article 363.]

16. It is also necessary to note that there is a distinction between total exclusion of judicial review and a validation of an Act which has been struck down on the principles applicable to ordinary legislation, namely, violation of Part III of the Constitution or legislative competence. See the observations of Ray, C.J in Indira Nehru Gandhi v. Raj Narain (5 Judges), SCC para 138:

17. The fact that Article 31-A and Article 31-C which provide for protection from the challenge to Articles 14 and 19, have been upheld so that this does not amount to an exclusion of judicial review.

18. This apart, though the judgment in Indira Gandhi case has been extensively quoted in L. Chandra Kumar the conclusion drawn therein namely that judicial review of election disputes is not a compulsion and this is part of a constitutional scheme, has not been doubted.

19. It is well settled that judicial review of statutes, which are afforded the protection under Article 31-B, is not completely barred. The only area where such Acts get immunity is from the mere infraction of rights guaranteed under Part III of the Constitution. One of the areas where judicial review can be exercised relates to compliance with the form and procedure and requirements prescribed by Article 368.

20. The other recognised area where Acts under the Ninth Schedule can be judicially reviewed is in relation to the question of legislative competence. See State of Bihar v. Kameshwar Singh (5 Judges).

21. Judicial review of Acts falling under the Ninth Schedule is also permissible in a case where an Act which is put in the Ninth Schedule is amended, then the amended provision can be judicially reviewed on the touchstone of Article 13. The reason being that Article 31-B should be interpreted strictly. But even interpreting it strictly, the only requirement which is laid down by Article 31-B is that the Act should be specified in the Ninth Schedule. Therefore, in the absence of the amendment being specified in the Ninth Schedule the amendment cannot be protected for infringement of the rights under Part III of the Constitution. See State of Maharashtra v. Madhavrao Damodar Patil (7 Judges). This principle has been reiterated by this Hon'ble Court in Ramanlal Gulabchand Shah v. State of Gujarat (7 Judges) and in Sri Ram Ram Narain Medhi v. State of Bombay (5 Judges).

22. There is one more area where judicial review of Acts falling under the Ninth Schedule is permissible. After the law laid down by this Hon'ble Court in Kesavananda Bharati the Acts which are inserted in the Ninth Schedule could be judicially reviewed if they violate the basic structure of the Constitution as stated hereinabove. This principle was laid down by this Hon'ble Court in Waman Rao v. Union of India (5 Judges). Chandrachud, C.J (for himself and Krishna Iyer, Tulzapurkar and A.P Sen, JJ.) held as under:

“Thus, insofar as the validity of Article 31-B read with the Ninth Schedule is concerned, we hold that all Acts and regulations included in the Ninth Schedule prior to 24-4-1973 will receive the full protection of Article 31-B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and regulations, which are or will be included in the Ninth Schedule on or after 24-4-1973 will not receive the protection of Article 31-B for the plain reason that in the face of the judgment in Kesavananda Bharati there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after 24-4-1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.”

This test has been accepted by Bhagwati, J. [SCC para 64] in his partly dissenting opinion. This test has also been applied in various cases such as Minerva Mills Ltd. v. Union of India (5 Judges) as well as Bhim Singhji v. Union of India (5 Judges). It is submitted that there is no inconsistencies in the law laid down by this Hon'ble Court in Waman Rao, and the test laid down by this Hon'ble Court in the said case has been accepted in Minerva Mills case as well as Bhim Singhji case. This test has also been applied in Attorney General for India v. Amratlal Prajivandas (9 Judges).

23. It is submitted that the test for judicially reviewing the Acts cannot be on the basis of mere infringement of the rights guaranteed under Part III of the Constitution or the broad doctrine of basic structure of the Constitution. The correct test has to be that the Acts which are included in the Ninth Schedule can only be judicially reviewed only if they damage or destroy that part of the fundamental rights which forms a part of the basic structure. Any other view would make Article 31-B of the Constitution otiose and redundant.

24. The petitioners have proceeded on the basis of certain assumptions with reference to Article 31-B which need to be noticed and highlighted in the forefront:

(A) It has been submitted that Articles 31-A and 31-B are part of a common scheme. In this regard, reliance has been placed on the judgment of Bhagwati, J. in Minerva Mills v. Union of India (SCC para 91) in which it is stated that the Ninth Schedule of Article 31-B was not intended to include laws other than those covered by Article 31-A and that Articles 31-A and 31-B were intended to serve the same purpose of protecting the legislation falling within a certain category.

(B) It has been submitted that the scope and validity of Article 31-B must be judged having regard to the situation subsisting after the judgment in Kesavananda Bharati v. State of Kerala and the introduction of the concept of basic structure and the basic features of the Constitution implying that Article 31-B and the Ninth Schedule did not fall for consideration in this judgment.

25. It is respectfully submitted that the first assumption is erroneous in law. It ignores that the approach of Bhagwati, J. is in fact contrary to what judges in Kesavananda Bharati case have expressly held. As set out hereinafter, the learned Judges in Kesavananda Bharati expressly negatived the arguments of Mr Palkhivala with regard to the interaction between Articles 31-A and 31-B and this is contrary to the approach of Bhagwati, J. in Minerva Mills.

26. It is submitted that the second assumption is equally fallacious in law since it ignores the observations of the Judges made in relation to Article 31-B and the Twenty-ninth Amendment in Kesavananda Bharati case. It will be demonstrated that all the Judges were fully alive to the consequences of the introduction of the basic structure doctrine, and responded to it.

Are fundamental rights unamendable?

27. The submission of the petitioners that fundamental rights cannot be amended at all is not correct. None of the Judges who constituted the majority in Kesavananda Bharati in relation to the basic structure doctrine have so stated.

Are all fundamental rights part of the basic structure?

28. This leads to the next issue, namely, whether all fundamental rights are part of the essential feature or basic structure of the Constitution. The answer to this must be in the negative. The effect of overruling the law laid down in Golak Nath case in Kesavananda Bharati case is that fundamental rights can be amended. If fundamental rights can be amended, fundamental rights cannot be said to be part of the basic structure, unless the nature of the amendment is such as which essentially destroys the nature and character of the Constitution. This depends on the nature of the right sought to be amended and the extent to which it is sought to be amended.

29. It is submitted that a fundamental right may not be an essential feature or basic structure of the Constitution. This has been recognised in Kesavananda Bharati case. In that case, the majority held that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential feature. No part of a fundamental right can claim immunity from the amendatory process by being described as the essence or core of that right.

30. It is also submitted that a particular fundamental right may not be a basic feature of the Constitution. For example, Article 19(1)(f) as well as Article 31 of the Constitution was deleted from Part III of the Constitution by the Constitution (Forty-fourth Amendment) Act, 1948. See Raghunathrao Ganpatrao v. Union of India (5 Judges), Indira Nehru Gandhi v. Raj Narain (5 Judges) through Ray, C.J (SCC at paras 53-54), Khanna, J. (at para 251), Mathew, J. (at paras 328-30 & 334)

31. In this connection it is also important to note that all the Judges upheld the validity of the Twenty-fourth Amendment Act [which inserted Article 13(4) and Article 368(3)]. The effect of the said amendments is that the restriction under Article 13(2) was inapplicable to constitutional amendment. See Sikri, C.J (paras 395-96), Shelat & Grover, JJ. (para 583), Hegde & Mukherjea, JJ. (paras 673 & 678), Ray, J. (para 1064), Jaganmohan Reddy, J. (para 1162), Palekar, J. [paras 1318, 1333(3)], Khanna, J. (para 1510), Mathew, J. (para 1716), Beg, J. (para 1851), Dwivedi, J. (paras 1955, 1958), Chandrachud, J. (paras 2109, 2110).

Is judicial review a part of basic structure?

32. It is really not necessary to consider whether judicial review is a part of the basic feature of the Constitution. In the present case, there is no total exclusion of judicial review. The Acts placed in the Ninth Schedule can be reviewed on the touchstone of whether they destroy the essential features of the Constitution.

33. It is submitted that the test for judicially reviewing the Acts cannot be on the basis of mere infringement of the rights guaranteed under Part III of the Constitution. The correct test has to be that the Acts which are included in the Ninth Schedule if they damage or destroy that part of the fundamental rights which form a part of the basic structure.

34. It is well settled that judicial review of statutes, which are afforded the protection under Article 31-B, is not completely barred. The only area where such Acts get immunity is from the mere infraction of rights guaranteed under Part III of the Constitution. Another area where judicial review can be exercised relates to compliance with the form and procedure and requirements prescribed by Article 368.

35. Further, the question of legislative competence is always open. See State of Bihar v. Kameshwar Singh (5 Judges).

36. The amendments made to an Act specified in the Ninth Schedule is also amenable to judicial review. Judicial review of Acts falling under the Ninth Schedule is permissible in a case where an Act which is put in the Ninth Schedule is amended. The amended provision can be judicially reviewed on the touchstone of Article 13. The reason being that Article 31-B should be interpreted strictly. The only requirement which is laid down by Article 31-B is that the Act should be specified in the Ninth Schedule. Therefore, in the absence of the amendment being specified in the Ninth Schedule the amendment cannot be protected for infringement of the rights under Part III of the Constitution. See State of Maharashtra v. Madhavrao Damodar Patil (7 Judges). This principle has been reiterated by this Hon'ble Court in Ramanlal Gulabchand Shah v. State of Gujarat (7 Judges) and in Sri Ram Ram Narain Medhi v. State of Bombay (5 Judges).

37. In connection with the aspect of exclusion of judicial review, the extracts from the judgment of Khanna, J. in Kesavananda Bharati case (SCC para 1533) are very relevant.

38. The reliance placed by the petitioners in the judgment of this Hon'ble Court in L. Chandra Kumar v. Union of India (7 Judges) is misplaced. Though this Hon'ble Court concluded that,

“It appears that this Court has always considered the power of judicial review vested in the High Courts and in this Court, under Article 226 and Article 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts to be integral to our constitutional scheme;”

the fact remains that under the Constitution itself there are several articles which exclude judicial review. [See for instance, Article 33, Article 74(2), Article 103(1), Article 105(2), Article 122, Article 136(2), Article 163(3), Article 194(2), Article 212, Article 262(2), Article 329(a) and Article 363.]

39. There is a distinction between total exclusion of judicial review and a validation of an Act which has been struck down on the principles applicable to ordinary legislation, namely, violation of Part III of the Constitution or legislative competence.

The fact that Article 31-A and Article 31-C which provide protection to Acts from the challenge under Articles 14 and 19 has been upheld would show that this does not amount to an exclusion of judicial review.

40. This apart, though the judgment in Indira Gandhi case has been extensively quoted in L. Chandra Kumar the conclusion drawn therein, namely, that judicial review of election disputes is not a compulsion and this is part of a constitutional scheme, has not been doubted.

Possibility of abuse is no ground to test the validity of a provision

41. It is well settled that possibility of abuse cannot be a ground to test the validity of a constitutional provision. Fear of perversion is no test of power. In Kesavananda Bharati a majority of seven Judges held that merely because wide powers were conferred, it would not render a constitutional power unconstitutional.

What is the test to be applied to Article 31-B?

42. The controversy with regard to the distinction between ordinary law and constitutional amendments is really irrelevant. The distinction is valid and the decisions from Indira Gandhi case up to Kuldip Nayar v. Union of India case represents the correct law. It has no application in testing the constitutional amendment placing the Acts in the Ninth Schedule. There is no manner of doubt that:

(A) In Kesavananda Bharati case Sikri, C.J [para 475(h)], Shelat & Grover, JJ. [paras 607, 608(7)], Hegde & Mukherjea, JJ. [paras 742, 744(8)] and Jaganmohan Reddy, J. [paras 1211, 1212(4)] all clearly held that the Acts placed in the Ninth Schedule and the provisions thereof have to be subjected to the basic structure test.

(B) Chandrachud, C.J in Waman Rao case, followed the path laid down by 6 Judges in Kesavananda Bharati without quoting from their conclusions and without attempting to reconcile their views with the subsequent development in the law regarding the distinction between ordinary legislations and constitutional amendments.

43. Therefore, a constitutional amendment which incorporates a legislation in the Ninth Schedule has to be tested on the ground whether such legislation or its provisions violate the basic structure of the Constitution. In the event, the constitutional amendment Act incorporates an Act which violates the basic structure then such an amendment would be ultra vires the powers provided by Article 368 and therefore invalid and the protection provided under Article 31-B would not be available.

44. It is respectfully submitted that challenge to such a legislation incorporated by a constitutional amendment in the Ninth Schedule on the ground of basic structure is limited to the extent that the fundamental rights which the legislation takes away, damages or destroys the basic structure of the Constitution. It is therefore submitted that the correct approach while testing a legislation incorporated in the Ninth Schedule on the ground of basic structure was formulated by Mathew, J. in Indira Gandhi Nehru case (SCC para 358):

“358. The utmost that can be said is as I indicated, that even after putting them in the Ninth Schedule their provisions would be open to challenge on the ground that they took away or abrogated all or any of the fundamental rights and therefore damaged or destroyed the basic structure if the fundamental rights or right taken away or abrogated constitutes a basic structure.”

Is Article 31-B a one-time exercise?

45. There is no substance in the argument that Article 31-B is “a one-time exercise”. Article 31-B protects Acts and regulations specified in the Ninth Schedule. There is no prohibition that Acts and regulations cannot be included/specified in the Ninth Schedule later. The power to amend the Ninth Schedule flows from the power to amend the Constitution from Article 368. This is the only way in which Article 31-B, the Ninth Schedule and Article 368 can be read together. There are several provisions in the Constitution which contain similar provisions. Under Article 1(2), the States and Territories of India shall be as specified in the First Schedule. Similarly, in Article 1(3)(b), the territory of India shall comprise inter alia of the Union Territories specified in the First Schedule. This does not mean that the First Schedule cannot be changed. Similarly, languages are specified in the Eighth Schedule (see 344 & 351). The Eighth Schedule has been amended from time to time to include several other languages other than those which were there originally.

46. This apart, the provisions of Article 367 expressly provides that the General Clauses Act would apply for the purpose of the interpretation of the Constitution as it applies to the interpretation of an Act of the legislature. Therefore, Section 14 of the General Clauses Act would clearly apply.

Constituent power

47. (A) The argument is sought to be made with regard to constitutional amendment and constituent powers and it has been contended that constitutional amendment cannot interfere with the judicial power to enforce fundamental rights. This submission is not correct. In the first place, Article 368 itself provides that the power of amendment is in exercise of constituent power.

(B) Secondly, Article 368 does not impose any restriction with regard to amendment of Part III of the Constitution. In this connection, it is also important to note that the Twenty-fourth Amendment which inserted clause (4) in Article 13, and clause (3) in Article 368 has been upheld. The distinction between a law made in exercise of legislative power and a law made in exercise of a constituent power has been recognised in Sasanka Sekhar Maity v. Union of India, SCC para 35.

Conclusion

48. In Attorney General for India v. Amratlal Prajivandas (9 Judges) Jeevan Reddy, J. for the unanimous Court observed as follows:

“20. Before entering upon discussion of the issues arising herein, it is necessary to make a few clarificatory observations. Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was levelled in the writ petitions on the ground that the said Amendments—effected after the decision in Kesavananda Bharati v. State of Kerala—infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the basic structure. This simplistic argument overlooks the raison d'être of Article 31-B—at any rate, its continuance and relevance after Bharati—and of the 39th and 40th Amendments placing the said enactments in the Ninth Schedule. Acceptance of the petitioners' argument would mean that in case of post-Bharati constitutional amendments placing Acts in the Ninth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31-B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are i.e we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14.”

(emphasis supplied)

49. It is submitted that the abovequoted passage shows that the Bench:

(i) dismissed as simplistic the argument of a violation of Article 14 being equally violative of the basic structure;

(ii) recognised the raison d'être of Article 31-B and its continuance and relevance after the judgment of Kesavananda Bharati case;

(iii) repudiated the contention that if Articles 21 and 19 also represented the basic features of the Constitution then it would lead to further enervation of Article 31-B.

Further Submissions: Validity of Article 31-B

50. In the first two days of opening arguments, the judgment in Kesavananda Bharati case was not analysed. In the rejoinder the petitioners have made the following submissions with regard to Kesavananda Bharati case:

(i) that the validity of Article 31-B was not in question in Kesavananda Bharati case;

(ii) that the question of considering the validity of a provision like Article 31-B to validate Acts and the constitutionality thereof, was also not in issue before thirteen Judges in Kesavananda Bharati case.

51. It was therefore felt necessary to take a search of the papers and proceedings in Kesavananda Bharati case. It is important to note that an application to urge additional grounds and for amendment of Writ Petition No. 135 of 1972 was made by the petitioners in Kesavananda Bharati case on 4-8-1972. This application was allowed by an order dated 10-8-1972. This fact has been noted by Sikri, C.J in his judgment at paras 6 and 7 and by Chandrachud, J. at para 2021. A certified copy of the application is annexed hereto and marked as Annexure 1.

52. It is respectfully submitted that the grounds taken in the said application completely belie the submissions made on behalf of the petitioners that the validity of Article 31-B was never raised in Kesavananda Bharati case. It is submitted that the grounds taken in the aforesaid application with regard to the Twenty-ninth Amendment and the validity of Article 31-B completely negates the aforesaid argument on behalf of the petitioners. The relevant portion of the grounds are extracted hereunder:

“(xxiii) that, in any event, the scheme of the Constitution does not confer any power on Parliament to have a permanent validating provision by virtue of Article 31-B and the Ninth Schedule to the Constitution by which from time to time invalid Acts are automatically made valid and screened from judicial scrutiny by its insertion in the Ninth Schedule.

Such a power is ultra vires the Constitution and, therefore the provisions of Article 31-B and the Ninth Schedule to the Constitution are unconstitutional and void, being beyond the competence of Parliament.

Furthermore, in any event, Article 31-B was never enacted to be a permanent provision of validating invalid Acts passed by legislatures and was only intended to validate certain Acts and inserted in the Ninth Schedule when Article 31-B was enacted.

In any event, Parliament had no power to validate statutes by merely inserting them in the Ninth Schedule without amending the main provision of Article 31-B.”

53. The above ground shows that the following was directly in issue:

(i) That the petitioners in Kesavananda Bharati case had submitted “that the scheme of the Constitution does not confer any power on Parliament to have a permanent validating provision by virtue of Article 31-B and the Ninth Schedule of the Constitution by which from time to time invalid Acts are automatically made valid and screened from judicial scrutiny by its insertion in the Ninth Schedule”.

(ii) That the petitioners had specifically contended that “such a power is ultra vires the Constitution and therefore the provisions of Article 31-B and the Ninth Schedule of the Constitution are unconstitutional and void, being beyond the competence of Parliament”.

(iii) That the further contention was that “furthermore, in any event, Article 31-B was never enacted to be a permanent provision for validating invalid Acts passed by legislatures and was only intended to validate certain Acts inserted in the Ninth Schedule when Article 31-B was enacted”.

(iv) That the petitioners finally contended that in any event, Parliament had no power to validate statutes by merely inserting them in the Ninth Schedule without amending the main provisions of Article 31-B.

54. The nature of the issues before thirteen Judges can also be seen from the propositions of law submitted by one of the petitioners/intervenors before thirteen Judges. A certified copy of the written submissions is annexed hereto as Annexure 2. In the written submissions dated 28-10-1972 the following submissions were made:

“Article 31-B does not confer power to add to the Schedule. This Court is invited to hold that Article 31-B was intended to protect only those Acts specified in the Schedule. Article 31-B should have been given a very restricted and narrow interpretation. If such an interpretation is not given to the provisions of the Constitution, the legislatures can make a mockery of the Constitution. Engrafting of exceptions after exceptions to the articles of the Constitution which will eventually result in total emasculation of the Constitution cannot be considered amendments of the Constitution. Abuses of the amending process is a fraud on the Constitution….”

55. It is respectfully submitted that all the above issues were the subject-matter before the thirteen Judges in Kesavananda Bharati case. Only Sikri, C.J upheld to some extent the above argument and held that the device of Article 31-B was bad insofar as it protects statutes even if they take away fundamental rights.

56. In this context, it is important to note that though the ground relating to the validity of Article 31-B had been raised the argument regarding the validity of Article 31-B was not pressed. Hegde and Mukherjea, JJ. and Chandrachud, J. in this regard held as under:

Hegde and Mukherjea, JJ. (para 738)

“738. The learned counsel for the petitioners did not challenge the validity of Article 31-B. Its validity has been accepted in a number of cases decided by this Court.”

Chandrachud, J. (para 2136)

“2136. The validity of Article 31-B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to reopen that question, nor indeed did the learned counsel for the petitioner challenge the validity of that article.”

57. Counsel for the petitioner did not urge this contention apparently recognising, as observed in para 1.7 hereinabove that “the validity had been accepted in a number of cases” as can be seen from the quotations set out hereinabove. Twelve out of the thirteen Judges proceeded on the basis that it was too late in the day to challenge the validity of Article 31-B having regard to the various decisions of the Supreme Court upholding Article 31-B.

58. Further, the argument that a permanent validating provision like Article 31-B was invalid was also specifically raised before the thirteen Judges in the amendment. The fact that it was not argued makes no difference. This very same argument is now sought to be raised before your Lordships by saying that this argument was not raised before thirteen Judges—the basis of which is incorrect. A Nine-Judge Bench is, in effect, asked to reconsider an issue which was raised before a Bench of thirteen Judges and which was not pressed into service.

59. It is submitted that the argument that Article 31-B was never enacted to be a permanent provision for validating invalid Acts passed by legislature and was only intended to validate certain Acts in the Ninth Schedule when Article 31-B was inserted was sought to be urged by the counsel for the petitioner in Kesavananda Bharati case in a slightly extended form by linking Article 31-B with Article 31-A and contending that it was limited to agrarian reform. This argument was expressly rejected. This has already been pointed out in the written submissions which had been submitted on 1-11-2006 in paras III and IV.

60. It is therefore respectfully submitted that the exercise sought to be undertaken by the petitioners before a Bench of 9 Hon'ble Judges is entirely impermissible as the issue of validity of Article 31-B is no longer res integra in view of Kesavananda Bharati case. It is, therefore, too late in the day to reopen issues which are expressly concluded.

61. It is also significant to note that in Sasanka Sekhar Maity case decided on 9-5-1980 (the same date on which the order in Waman Rao case and in Minerva Mills case was passed) a constitutional Bench of five Judges noted the application to urge additional grounds filed in Kesavananda Bharati case. In para 33 of the said judgment, it has been noted that the challenge to the validity of the Constitution (Twenty-ninth Amendment) Act, was allowed to be raised as an additional ground in Kesavananda Bharati case. (See Sasanka Sekhar Maity case, SCC at p. 728.)

The judgment in Bhim Singhji case

62. The petitioner's contention that a Constitution Bench of this Hon'ble Court in Bhim Singhji v. Union of India had not applied the test of “basic structure doctrine” while testing the validity of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 is completely incorrect. In that case, Chandrachud, C.J (for himself and Bhagwati, J.) upheld the various provisions of the Act except Section 27(1) of the Act. The opinion of Chandrachud, C.J stated at para 7 that fuller reasons will follow later. Krishna Iyer, J. in his concurring opinion, also upheld the validity of the various provisions of the Act except Section 27(1) of the Act. Subsequently, Chandrachud, C.J (speaking for himself and Bhagwati, J.) in the same case Bhim Singhji v. Union of India held that they “fully agreed with the reasons given by Krishna Iyer, J. in his judgment”. It is therefore submitted that the majority in Bhim Singhji case, did not strike down Section 21(1) on the basis of violation of a particular fundamental right like Article 14 of the Constitution. On the contrary, Krishna Iyer, J.'s opinion at para 20 clearly indicates that the test which was applied was the basic structure doctrine rather than the violation of a particular fundamental right. It is therefore submitted that the contention of the petitioner that this Hon'ble Court struck down the provisions of the Act for abridging Article 14 in the aforementioned case is incorrect.

III. Mr Soli J. Sorabjee, Senior Advocate, on behalf of the State of Tamil Nadu

63. The inescapable inference and the legal position which emerges from the overruling of the decision in Golak Nath case and the ratio laid down by this Hon'ble Court in Kesavananda case is that subject to the retention of the basic structure the plenary power of amendment reaches every part of the Constitution including articles relating to fundamental rights [See Kesavananda Bharati case, SCC at p. 824 (vii).] In short, fundamental rights are not unamendable and they have been expressly held to be amendable. The theory of implied limitations on the amending power as far as fundamental rights are concerned was expressly negatived by the majority of the Judges in Kesavananda case and what is more important also by Khanna, J. in Kesavananda case. [See Kesavananda Bharati case; Shelat and Grover, JJ., paras 608(2)(a) and (7); Hegde and Mukherjea, JJ., paras 744(2), (4) and (8); Ray, J., paras 866-68, 1064; Jaganmohan Reddy, J., paras 1094, 1212; Palekar, J., paras 1279 and 1333(1); Khanna, J. at paras 1421, 1464, 1465 and the conclusion in paras 1537(iii), (vii) and (ix); Mathew, J., paras 1784 and 1786; Beg, J., paras 1851, 1857(1) and (2); Dwivedi, J., para 1884; Chandrachud, J., paras 2075, 2076 and paras 2142(iii) and (iv)].

64. Fundamental rights do occupy an important place in our Constitution. But no fundamental right is expressly made unamendable as was attempted to be done in the Draft Constitution, see SCC para 1092 of Kesavananda. In some Constitutions fundamental rights are inalienable, for example Article 1 of the German Constitution, Article 5 of the US Constitution (see Article 11 of the Japanese Constitution). The status and position of fundamental rights in our Constitution can be gauged by reference to Article 33. It is also extremely significant that Part III of the Constitution is not one of the articles amendment to which requires ratification by the legislatures of not less than one-half of the States. In short, fundamental rights under our Constitution are not untouchable and sacrosanct. If fundamental rights were unamendable then it could possibly be argued that Article 31-B is unconstitutional because it permits abrogation of unamendable fundamental rights.

65. It is a fallacy to regard that Article 31-B read with Ninth Schedule excludes judicial review in the matter of violation of fundamental rights. The effect of Article 31-B is to remove a fetter on the power of Parliament to pass a law in violation of fundamental rights. On account of Article 31-B, cause of action for violation of fundamental right is not available because the fetter placed by Part III on legislative power is removed and is non-existent. Non-availability of cause of action based on breach of fundamental right cannot be regarded as exclusion or ouster of judicial review. As a result of the operation of Article 31-B read with the Ninth Schedule, occasion for exercise of judicial review does not arise (see Article 358). But there is no question of exclusion or ouster of judicial review. The two concepts are different and have been confused in the submissions of the petitioner.

66. Retrospective validation of a statute which was void at its inception either because of lack of legislative competence or because of violation of fundamental rights is perfectly permissible. See M.P.V Sundararamier, SCR at pp. 1438-41, 1467-68, 1476, see also West Ramnad, SCR at pp. 758, 762; Indira Gandhi, SCC at p. 138 as per Ray, C.J A fortiori the same can be effected by a constitutional validating and curative provision like Article 31-B.

67. Neutralising a judgment or making it ineffective by removing retrospectively the cause or basis which imparted unconstitutionality or invalidity to a statute is neither a trespass into a judicial field nor an usurpation of judicial power. Even in such cases judicial review is available to determine whether (1) the legislature has the requisite legislative competence or (2) whether the validation is effective or it has misfired. It is a fallacy to equate neutralisation of the effect of a judgment by means of a validating mechanism with nullification or defiance of a judgment. It is submitted that when a court declares a statute unconstitutional it does not nullify the will of the people nor does it encroach on Parliament's sovereignty. Likewise when a decision is neutralised by appropriate legislation or constitutional amendment or validation there is no question of defiance or disobedience of the judgment of the court.

68. Article 31-B is a constitutional curative validating mechanism to remove the basis of the judgment which pronounced the legislation to be unconstitutional by retrospectively deeming that no Article in Part III was ever in existence and retrospectively curing the defect and removing the basis of the judgment, namely, the particular article in Part III. (See Jagannath, SCC at pp. 897-98 and 905; Padvi, SCC at p. 619.)

69. To elaborate, if the Act was struck down because of infraction of Article 19 but Article 19 was not available because of the deeming fiction and retrospective operation of Article 31-B, the very basis for striking down the legislation has disappeared and the source or the cause which injected the infirmity of unconstitutionality has been fictionally removed by reason of the deeming provision in Article 31-B. Consequently, the legislation is cured of the defect, by the provisions of Article 31-B and the law was never unconstitutional because of the operation of deeming fiction to which full effect must be given without allowing the imagination to boggle (Arooran Sugars, SCC at pp. 336-37, J.K Cotton). Validating and curative exercise by the legislature whereby the effect of the earlier judgment is neutralised or the same is rendered irrelevant and unenforceable cannot be called an impermissible legislative overruling of the judicial decision. (See Prithvi Cotton Mills, SCR at pp. 392-93; Indira Gandhi, SCC at p. 138; Ujagar Prints, SCC at p. 517, para 65; Arooran Sugars, SCC at p. 341; Bhubaneshwar Singh, SCC paras 9-12; Meerut Development, SCC at p. 469 and Virender Singh Hooda.)

70. Article 31-B has stood the test of time and has successfully weathered constitutional challenges. It is a part of our Constitution and was validly enacted by compliance with the requirements of Article 368. Article 31-B was enacted by the same people who enacted the Constitution and the chapter on fundamental rights after full deliberations. It was not enacted by a motley conglomeration in order to deprive the people of fundamental rights.

71. One of the reasons for putting an Act in the Ninth Schedule is to remove uncertainties about its validity arising out of forensic challenges, divided judicial pronouncements and to prevent time consuming litigation which would impede the speedy and effective implementation of statute in question. (See Statement of Objects and Reasons, para 18 of Waman Rao, SCC at p. 382.) It is incredible but true that despite Article 31(4) which expressly protected zamindari land reform legislation the same was struck down by the Patna High Court in Kameshwar Singh v. State of Bihar on the ground of Article 14. This is an instance of the need to avoid such invalidation of legislation by hyper active judges. The Allahabad and Nagpur High Courts upheld the legislation. (See in this connection observations of Patanjali Sastri, J. extracted in Waman Rao, SCC at p. 383 and also paras 22, 23 at pp. 384-86.) There is no warrant to assume that the Acts are put in the Ninth Schedule with the sole purpose of preventing judicial scrutiny. That would be attributing mala fide to Parliament which is not permissible. [See also observations of Khanna, J. in Kesavananda case, SCC at p. 824, para (vi).] Another basic fallacy in the arguments of the petitioners is that Article 31-B read with the Ninth Schedule totally excludes or ousts judicial scrutiny. This Hon'ble Court has laid down in a number of cases that judicial scrutiny is available with respect to (a) legislative competence of the State or Parliament which has enacted the statute, (b) whether the provisions of Article 368 have been complied with, and (c) whether an amendment has been made to the statute after the insertion of parent statute in which case the amending statute will also have to meet the discipline and requirement of Article 368. Furthermore, judicial scrutiny will also be available whether (a) the statute in question violates Article 286 of the Constitution or (b) is violative of Article 301 of the Constitution. Above all, judicial review and scrutiny is always available in respect of the basic condition which a constitutional amendment has to satisfy, namely, that it does not damage or is violative of the basic structure of the Constitution.

72. It is inarguable and indeed unstatable that a constitutional provision Article 31-B has become otiose or redundant or it has outlived its utility. In other words that it has become obsolete. The history and operation of Article 31-B clearly militate against its obsolescence or its having fallen into desuetude. There is no warrant in fact or in law for this submission. Occasions may well arise in the future to insert laws in the Ninth Schedule because of their possible challenge in courts, divergent judgments of the courts and the time and resources expended in time-consuming litigation. (See Hindustan Aluminium Corpn., SCC at pp. 253-54, paras 65, 66; Krishan Murgai, SCC at p. 263, para 51; Narayan Shamrao Puranik, SCC at pp. 529, 530; Bharat Forge, SCC at p. 445 and Cantonment Board, SCC at p. 461, para 16.)

73. Power under Article 31-B can be exercised from time to time by virtue of Section 14 of the General Clauses Act, 1897 read with Article 367 of the Constitution. (See Sampat Prakash v. State of J&K, SCR at p. 375; Epuru Sudhakar v. Govt. of A.P)

74. The purpose, scope and effect of Article 31-B

(a) “The object of this article (Article 31-B) is to give blanket protection to the Acts and regulations specified in the Ninth Schedule and the provisions of those Acts and regulations against any challenge to those Acts, regulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. The result is that howsoever violative of the fundamental rights may be the provisions of an Act or regulation once the Act or regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any court or tribunal to the contrary.”

(emphasis supplied)

Godavari Sugar Mills v. S.B Kamble, SCC at p. 706

Article 31-B provides a protective umbrella to all Acts of whatever character.

(b) Article 31-B is a constitutional device or mechanism for validating statutes which have been struck down on the ground that they infringe Part III of the Constitution.

Jeejeebhoy, SCR at p. 648; Indira Gandhi v. Raj Narain, per Ray C.J; Sasanka Sekhar Maity, SCC at pp. 728-29 and Waman Rao, SCC paras 45-46.

(c) Article 31-B effects fictional validation by removing or curing the constitutional vice or defect by the express words of the deeming fiction. There is no requirement that before placing the Act in the Ninth Schedule the defect should be cured by a separate validating Act. This argument was expressly rejected in (Jagannath, SCC para 23). Article 31-B itself cures the defect which takes “place with retrospective operation from the dates on which the Acts were put on the statute-book”.

Article 31-B in substance and effect is a curative provision and by the very terms of Article 31-B and the Ninth Schedule it cures the defect, if any, in the various Acts mentioned in the said Schedule as regards any unconstitutionality alleged on the ground of infringement of fundamental rights. Moreover by the express words of Article 31-B such curing of the defect takes “place with retrospective operation from the dates on which the Acts were put on the statute-book”.

(emphasis supplied) (See Jagannath, SCC para 23.)

(d) In State of Maharashtra v. M.S Padvi decided on 14-2-1978 i.e after the decision in Kesavananda Bharati case, legislation which was struck down by the Bombay High Court as unconstitutional, while the appeal against the judgment was pending in the Supreme Court, was placed in the Ninth Schedule. A Bench of seven Judges by a unanimous judgment held as follows:

“The effect of the inclusion was that the West Khandesh Mehwassi Estate (Proprietary Rights Abolition, etc.) Regulation, 1961 was immunised from challenge on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Part III of the Constitution and hence its constitutional validity could no longer be assailed on the ground that it violated Article 19(1)(f). Article 31-B and the Ninth Schedule cured the defect, if any, in the West Khandesh Mehwassi Estate (Proprietary Rights Abolition, etc.) Regulation, 1961 as regards any unconstitutionality alleged on the ground of infringement of fundamental rights and by the express words of Article 31-B, such curing of the defect took place with retrospective operation from the date on which this Regulation was enacted by the Governor. This Regulation, even if inoperative or void at the time when it was issued by the Governor on account of infringement of Article 19(1)(f) of the Constitution, assumed full force and vigour from the date of its enactment by reason of its inclusion in the Ninth Schedule.” (para 4)

(emphasis supplied)

(e) The issue about the curative consequences resulting from the insertion of an Act which has been struck down as unconstitutional in the Ninth Schedule has been authoritatively and categorically answered by two decisions of this Hon'ble Court viz. Jagannath and Padvi, both of which are unanimous judgments of seven Judges. The law laid down in these two decisions is that the mere insertion of the legislation in the Ninth Schedule has the effect of curing the infirmity or defect because the basis of the judgment, namely, Article 14 or 19 or 31, as the case may be, on the basis of which legislation was declared unconstitutional, is removed retrospectively by the deeming clause in Article 31-B and the non-obstante clause.

The binding nature of the law so declared about the scope and effect of Article 31-B is not in any manner affected save and except that the curative consequence of Article 31-B will not extend to nor will it protect any legislation which damages the basic structure of the Constitution.

The Seven-Judge Bench decision in Padvi which is after Kesavananda Bharati, is binding and its ratio is not in any manner affected by the decision in Waman Rao, . Waman Rao, is a Five-Judge Bench decision. It has not noticed Padvi a Seven-Judge Bench decision, and to that extent it is per incuriam. In any event Waman Rao, cannot even remotely be said to have impliedly overruled Padvi.

75. It is submitted that once an Act has been inserted in the Ninth Schedule the effect of Article 31-B is that the basis or the ground of invalidation, namely, violation of a fundamental right no longer exists and thus the basis of the judgment is removed or fundamentally altered.

It is submitted that Article 31-B itself operates as a deeming validating provision. It is submitted that there is no necessity of a separate validating Act taking away the basis of the judgment before the Act is put in the Ninth Schedule. The very factum of inclusion in the Ninth Schedule of the Act cures the Act of the defect by removing the basis which is pointed out in the judgment holding the legislation to be unconstitutional. In this context, the words “shall be deemed to be void or ever to have become void” are significant and should be given full effect.

76. The rationale of validating provisions in the wake of court judgments has been enunciated in the classic judgment of this Hon'ble Court in Prithvi Mills v. Broach Municipality (SCC para 4).

77. The same principle was reiterated by another Constitution Bench decision in Ujagar Prints v. Union of India (SCC at p. 517). These principles have been reiterated and the scope of deeming fiction has been explained by a recent Constitution Bench decision in State of T.N v. Arooran Sugars Ltd. (SCC at pp. 336-37; 340-41, para 16).

78. In the leading judgment of this Hon'ble Court in West Ramnad Electric Distribution Co. Ltd. v. State of Madras, the specific contention was that “the earlier Act of 1949 being dead and non-existent, the impugned notification contravened Article 31(1) and this contravention of a fundamental right cannot be cured by the legislature by passing a subsequent law and making it retrospective” (see SCR at p. 762). The said contention was expressly rejected in these words: “… if the legislature can validate actions taken under one class of void legislation, there is no reason why it cannot exercise its legislative power to validate actions taken under the other class of void legislation. We are, therefore, not prepared to accept Mr Nambiar's contention that where the contravention of fundamental rights is concerned, the legislature cannot pass a law retrospectively validating actions taken under a law which was void because it contravened fundamental rights” (see SCR at p. 764).

Thus it is settled law that validating legislation can be passed prospectively, or retrospectively to remove the basis of the judgment.

79. It is a misconception to consider such legislative exercises as a trespass or an encroachment on judicial powers. The aforesaid principles relating to validation of ordinary legislation apply a fortiori to Article 31-B which is a constitutional mechanism to remove the basis of the judgment which pronounced the legislation to be unconstitutional by retrospectively deeming that no article in Part III was ever in existence and therefore the basis of the judgment, say violation of a particular article in Part III, is displaced. To elaborate, if the Act was struck down because of infraction of Article 19 and Article 19 is no longer available because of retrospective operation of Article 31-B, the very basis for striking down the legislation has disappeared, the source or the cause which injected the infirmity of unconstitutionality has been fictionally removed by reason of the deeming provision in Article 31-B. Consequently, the legislation is cured of the defect by the provisions of Article 31-B and is no longer nor ever was unconstitutional. That is the result of the deeming fiction and full effect must be given to it without allowing the imagination to boggle. Validating and curative exercise by the legislature whereby the effect of the earlier judgment is neutralised or the same is rendered irrelevant and unenforceable cannot be called an impermissible legislative overruling of the judicial decision.

“In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made.”

[See Meerut Development Authority v. Satbir Singh, SCC at p. 469 (c-d).]

80. Attention is also invited to the observations of this Hon'ble Court in Raghunathrao Ganpatrao v. Union of India: (SCC at p. 218, para 91)

“The Twenty-sixth Amendment itself was passed by Parliament to overcome the effect of this judgment.”

81. It is a fallacy to equate neutralisation of the effect of a judgment by means of a validating mechanism with nullification or defiance of a judgment. It is submitted that when a court declares a statute unconstitutional it does not nullify the will of the people nor does it encroach on Parliament's sovereignty. Likewise when a decision is neutralised by appropriate legislation or constitutional amendment or validation there is no question of defiance or disobedience of the judgment of the court.

82. Constitutional amendments have been made in other jurisdictions which have a Bill of Rights and the rule of law is respected to neutralise the effect of the judgment of the highest court of the land. The rationale is that the most straightforward way to respond to a Supreme Court decision with which there is disagreement, is to amend the Constitution. Indeed that is an effective answer to critics who regard judicial review as undemocratic. (See Stone Seidman's Constitutional Law, 2nd Edn., p. 72.)

83. For example, in the United States there have been four or perhaps five occasions to override Supreme Court's decisions. (See Tribe's American Constitutional Law, 2nd Edn., pp. 64-65, and in particular fn 10.)

84. In England, Parliament has exercised the power to legalise past illegalities and to alter the law retrospectively. This power has been used by an executive with a secure majority in Parliament to reverse inconvenient decisions of an impartial judiciary. (emphasis added) (See Bradley's Constitutional and Administrative Law, 12th Edn., p. 61.)

85. In Australia, when a judgment of the Full Court of the Supreme Court of Queensland was pending in appeal in the High Court of Australia the validating legislation with a deeming provision was passed. In view of the amending and validating Act the High Court of Australia rescinded the special leave granted by it. The Privy Council upheld the judgment of the High Court of Australia. (See Western Transport v. Kropp.)

86. In Malaysia, a provision of the Federal Constitution was amended by adding a proviso, which was deemed to have retrospective effect from 27-8-1957. The amendment was effected on 27-8-1976 after the High Court held in favour of the appellant on 21-3-1976. The Federal Court of Malaysia, in allowing the government's appeal, held that this proviso operated to validate the appellant's dismissal.

87. The Privy Council upheld the judgment of the Malaysian Federal Court in Zainal v. Malaysian Govt. Viscount Dilhorne. Reference is invited to the observations of the Privy Council at p. 245 between (f) & (h).

88. According to the majority decision in Kesavananda Bharati a constitutional amendment can be challenged on the ground that it damages the basic structure of the Constitution and abrogates its essential features. However, in this connection it is submitted that each and every fundamental right is not an essential feature of the Constitution and the same can be amended.

89. It is submitted that the inevitable and inescapable consequence of overruling Golak Nath in Kesavananda Bharati case is that fundamental rights can be amended. If fundamental rights can be amended fundamental rights cannot be said to be part of the basic structure.

90. According to the majority judgment in Kesavananda Bharati fundamental rights are amendable and not unamendable. The correct legal position has been set out in Justice Khanna's judgment in Kesavananda Bharati, SCC para 1537(vii).

The position is further clarified in Indira Gandhi v. Raj Narain, SCC at p. 114, para 251 and SCC at p. 116.

91. In any event it is submitted that right to property has been held not to be a part of the basic structure. See Kesavananda Bharati, SCC para 1537(viii); Indira Nehru Gandhi, SCC at p. 116. See also Raghunathrao Ganpatrao v. Union of India (SCC at p. 231, para 157):

“The right to property even as a fundamental right was not a part of the basic structure.”

92. Equality by itself is not part of the basic structure. See Indira Nehru Gandhi, SCC at p. 135.

Outright negation of equality by placing a particular individual above the law and which also destroyed the basis of the rule of law was regarded as an essential feature of the Constitution by Chandrachud, J. in Indira Nehru Gandhi case (SCC at pp. 257-58).

(emphasis added)

93. There is a vital distinction between the invalidation of legislation because of infringement of Article 14 and invalidation of a constitutional amendment on account of violation of the essential feature of equality.

For example, (a) legislation struck down because of unfettered discretion to licensing authorities; (b) different procedures for acquisition; (c) excise exemption granted to certain manufacturing industries and not to others; and (d) cases of underinclusion or overinclusion. In the above illustrative cases, it is submitted that even though Article 14 may be infringed there is no violation of the basic structure.

94. It is submitted that any and every infraction of Article 14 simpliciter irrespective of its repercussions on other articles of Constitution cannot tantamount to the violation of the basic structure.

For example, legislation which strikes at the root of the equality principle, which violates the essence of equality and which has its repercussions on other essential features of the Constitution may not be protected by Article 31-B and the Ninth Schedule because such legislation can be regarded as damaging the basic structure of the Constitution. For example, (a) legislation that persons belonging to a particular community alone can occupy certain high offices. Such legislation strikes at the essence of the equality which underlies the essential feature of the secularism; (b) bar of any civil or criminal proceedings against a particular individual or a class of persons in respect of malfeasance or criminal misconduct—in such a case the essential feature of rule of law is also damaged; and (c) trial of criminal offences in respect of some individuals alone by military tribunals in camera, this would be violative of Article 14 read with Article 21, and damage the basic structure.

95. The decision in Bhim Singhji was reached after examining the provisions of the Act and reaching the conclusion that Section 27(1) of the Urban Land Ceiling Act was violative of the basic structure inter alia because it ran counter to the directive principles. See pp. 899 and 932-33 and hence was not protected by Article 31-B. There was no occasion to consider Jagannath nor Padvi and the said decisions have not been noticed. Bhim Singhji, is not an authority for the proposition that mere insertion of an Act which has been declared unconstitutional in the Ninth Schedule is itself unconstitutional. Bhim Singhji case recognises that there are shades and degrees of inequalities and is a complete answer to the petitioner's contention to the contrary. (See SCC para 20.)

96. The observations in Bhim Singhji relevant for the present case are

97. There is no total exclusion or complete ouster of judicial review on account of the insertion of an Act in the Ninth Schedule. Judicial review is available with regard to (a) compliance with the form and procedure and requirements prescribed by Article 368; (b) the question of legislative competence of the Union or the State which passed the Act, as the case may be; (c) whether the Act inserted in the Ninth Schedule violates the basic structure of the Constitution; and (d) if the legislature amends any of the provisions contained in the said Acts, the amended provisions would not receive the protection of Article 31-B and its validity may be liable to be examined on merits. (See State of Bihar v. Kameshwar Singh.)

98. The effect of insertion of a piece of legislation in the Ninth Schedule is that “only a certain class of cases has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases”. (See Sankari Prasad v. Union of India, SCR at p. 108.)

99. In Sajjan Singh case the specific contention was that the insertion of the Act in the Ninth Schedule “purports in substance to set aside decisions of courts of competent jurisdiction and therefore the same was unconstitutional”. That contention was negatived (see SCR at p. 945). The effect of Article 31-B read with Ninth Schedule is that “certain area of cases in which the said powers could have been exercised had been withdrawn” [see SCR at p. 947(F)].

100. The impugned Act which is inserted in the Ninth Schedule as Item 80 was struck down on the ground that it did not have protection of Article 31-A. Consequently, the Act was in violation of the fundamental right of property under Article 19(1)(f) and Article 31(2). The Act was not struck down on the ground of Article 14.

101. It is submitted that the constitutionality of the very Thirty-fourth Amendment by which the State Act in question was inserted in the Ninth Schedule has been upheld by the Constitution Bench of this Hon'ble Court in its decision in Sasanka Sekhar Maity (SCC at pp. 721, 728, paras 7 and 34).

It is significant that the judgment in Maity case was pronounced on the same date as the judgment in Waman Rao case (i.e on 9-5-1980).

It is submitted that the constitutionality of the insertion of the Thirty-fourth Amendment Act in the Ninth Schedule is no longer res integra and is concluded by the decision in Maity case.

102. It is further submitted that the impugned legislation dealt with property rights. It was struck down on the ground that the acquisition of the forests on the pannan land was not protected by Article 31-A. Consequently, Article 31(2) was violated.

103. After the judgment, the Constitution (Twenty-fifth Amendment) Act amended Article 31(2). The expression “amount” was substituted for the expression “compensation”. Thus the defect, if any, was cured.

104. In any event impugned legislation can be sustained under Article 31-C as it is covered by Articles 39(b) and (c) of the Constitution. In that event the question of considering the scope and effect of Article 31-B does not arise.

105. It is respectfully submitted that the decisions of the Hon'ble Court which have held the field and stood test of time should not be overruled unless compelling public interest is cogently established. See Ambika Prasad Mishra v. State of U.P, SCC para 5, wherein the Hon'ble Court observed that

“it is fundamental that the nation's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow up”.

106. This judicial approach and thinking are also reflected by Bhagwati, J. in Minerva Mills Ltd. v. Union of India (SCC para 90).

107. In this connection attention is also invited to the observations in the judgment of this Hon'ble Court in Rupa Ashok Hurra v. Ashok Hurra (SCC at pp. 408-410, paras 29-33).

108. The petitioner's submission regarding “total exclusion” of judicial review proceeds on a misconception that there is complete ouster of judicial review of an Act even on the touchstone of Part III. On the contrary, judicial review is available even on the ground that the Act takes away fundamental rights guaranteed in Part III, provided that the extent and nature of abrogation of the fundamental rights in question damages the basic structure of the Constitution. Any and every abrogation of a fundamental right is not immunised. It depends on the nature of the right, its place in the constitutional scheme and the impact of the abrogation or violation of the fundamental right on other fundamental rights and the essential features of the Constitution. In a given case abrogation of a fundamental right by a statute placed in the Ninth Schedule may amount to damage or impairment of the basic structure and struck down as unconstitutional. In other words, judicial review is available even on the touchstone of rights mentioned in Part III, by application of the basic structure test. Further, it would only be the courts, in exercise of powers under Articles 226 and 32 which would be competent to determine whether the impugned abrogation of fundamental rights is destructive of the basic structure of the Constitution. Hence there is no question of total ouster of judicial review.

109. For example, a law nationalising all newspapers can be successfully challenged on the ground of violation of the basic structure because free press is an instrument of democratic control and accountability and is necessary for the functioning of democracy and by the abrogation of this right a basic feature of the Constitution, namely, democracy is impaired. Again, suppose a law is passed prohibiting profession and propagation of religion. Violation of Article 25 in this case would also tantamount to a violation of basic feature of the Constitution because religious freedom is an essential feature of the Constitution. A law which provides for trial of criminal offences by military or non-judicial personnel and denies legal assistance to the accused and the trial is held in camera, could be challenged on the ground that it damages the basic structure because it violates the essence of Article 21 which is a basic feature of the Constitution. Suppose a law is passed which reserves the offices of the President, Vice-President and the Prime Minister to be occupied by persons belonging only to a particular community or it debars persons belonging to certain communities and religion from occupying these offices. Even if such a law is inserted in the Ninth Schedule it is liable to be struck down because it affects the quintessence of equality and also impacts on the essential feature of secularism.

110. On the other hand, suppose a law which prohibits chit funds and lotteries and make them unlawful and that law is put in the Ninth Schedule to forestall and avoid forensic challenges, uncertainties of litigation and divergent judicial decisions. Such a law would not damage the basic structure of the Constitution having regard to the fundamental rights involved. It may be mentioned that lottery and gambling have been held by this Hon'ble Court to be res extra commercium and not entitled to the benefit of Article 19. A law which bans the production and sale of liquor and is put in the Ninth Schedule cannot be said to damage the basic structure of the Constitution in view of the nature of the activity which this Court in Har Shankar case held not to enjoy the status of fundamental rights. On the other hand, in view of the espionage activities and leakage of secret vital information by armed forces, suppose a law is passed which permits surveillance and interception of communication in military establishment to combat espionage activities cannot be said to damage the basic structure of the Constitution even if some of its provisions do not provide for a full hearing or for cross-examination. What is sought to be emphasised is that in every case judicial review with regard to damage to the basic structure or otherwise is available depending on the nature of the fundamental rights and to the extent of its abridgement and its impact on the essential features of the Constitution.

111. It needs to be emphasised that this Court has effectively exercised its power of judicial review and held constitutional amendments to be unconstitutional. For example, see Indira Gandhi case, Minerva Mills, L. Chandra Kumar and Bhim Singhji, . The Bombay High Court has also ruled that MRTP Act in its application to the press is unconstitutional. On the other hand, Twenty-sixth Amendment relating to abolition of privy purse and insertion of SAFEMA in the Ninth Schedule has been held to be constitutional.

112. Attention is invited to the observations of Chandrachud, J. in Indira Gandhi case (SCC at para 666) where the learned judge has observed as follows:

“… the Constitution, as originally enacted, expressly excluded judicial review in a large variety of important matters. Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(1) are some of the instances in point. True, that each of these provisions has a purpose behind it but these provisions show that the Constitution did not regard judicial review as an indispensable measure of the legality or propriety of every determination. Article 136(2) expressly took away the power of the Supreme Court to grant special leave to appeal from the decisions of any court or tribunal constituted by a law relating to the armed forces. Article 262(2) authorised Parliament to make a law providing that the Supreme Court or any other court shall have no jurisdiction over certain river disputes. …” (See)

113. Alternatively, it is submitted that a citizen whose fundamental rights are violated is not without a remedy. In the first place, if the violation is of a nature which damages the basic structure he can approach the High Courts under Article 226 or the Supreme Court under Article 32. If the Court accepts the petitioner's contention then the legislation in question enjoys no immunity from Part III of the Constitution the petitioner can have such a law struck down under Article 13.

114. It needs to be emphasised that this Hon'ble Court did not hold that the constitutional device of retrospectively validating laws which were found to be in breach of fundamental rights was invalid or unconstitutional. It is only Sikri, J. who held that the device of Article 31-B and the Ninth Schedule is bad insofar as it protects a statute even though it takes away fundamental rights. (See Kesavananda Bharati, SCC at p. 404, para 469.)

115. There is a fundamental and qualitative distinction between Article 31-A and Article 31-B. In the first place, it should be noted that the Acts are not inserted in the Ninth Schedule upon any executive determination or decision. Secondly, Article 31-A excludes fundamental rights mentioned therein on the basis of an ordinary law passed by Parliament or by a State Legislature. The same is the position with regard to Article 31-C.

116. On the other hand, a constitutional amendment inserting Acts in the Ninth Schedule can be brought only by exercise of constituent power by Parliament when the Bill is passed in each house by a majority of the total membership of the House and by a majority of not less than two-third members of the House present and voting. Furthermore, certain articles as mentioned therein by the proviso if they are sought to be amended the amendment shall required to be ratified by the legislatures of not less than one-half of the States.

117. It is settled that possibility of abuse of power is not a ground for denying existence and exercise of power in Matajog Dobey. Constitutional provisions should not be interpreted on apprehensions of their possible abuse. (See Kesavananda Bharati, SCC at pp. 762-63, paras 1417-18.)

118. The doctrine of consequences has no application in construing grant of power conferred by a Constitution. In considering grant of power the largest meaning should be given to the words of the power in order to effectuate it fully. [See Kesavananda Bharati, SCC at p. 565, para 849. See also Ajay Pradhan (Dr.), SCC at pp. 518-19, para 7.]

119. The level and intensity of judicial scrutiny has to be the same in respect of the Acts placed in the Ninth Schedule irrespective of their character. Different levels of judicial scrutiny are unwarranted. In America, strict scrutiny is applied in cases of legislation based on suspect classification, namely, those based on gender or race.

120. It is submitted that there is no scope for applying this principle to a constitutional provision like Article 31-B in which there is no inbuilt inhibition about the nature or character of laws that may be included in the Ninth Schedule.

121. The so-called laundry bag of the Ninth Schedule is not overflowing as was sought to be projected. Several Acts are Acts effecting amendments to the parent Act already inserted in the Ninth Schedule.

122. It is open to the Court in determining whether a statute violates the basic structure to consider not, namely, the terms of the statute but also the direct effect of its operation.

123. The Statement of Objects and Reasons can be looked at to ascertain why the statute was put in the Ninth Schedule.

Further Submissions:

124. In the rejoinder it was submitted by Senior Counsel F.S Nariman that this Hon'ble Court in Bhim Singhji case struck down the law on the ground of violation of Article 14. This is demonstrably incorrect. It needs to be noticed that Tulzapurkar, J. alone struck down the entire Act on the ground that its provisions “flagrantly violate those aspects of fundamental rights that constitute basic structure” (see. In other words, on the ground that the Act violated the basic structure and not on the ground of violation of Article 14. Tulzapurkar, J. was clearly in the minority about the striking down of the entire Act. The majority consisting of Chandrachud, C.J, Bhagwati, J., and Krishna Iyer, J., who have emphatically disagreed with Tulzapurkar, J. partially struck down Section 27(1) of the Act. There is not a word or a statement that Section 27(1) was partially struck down on account of violation of Article 14. A.P Sen, J. struck down some other provisions of the said Act in addition to partial striking down of Article 27(1) but that was not on the ground of violation of Article 14 per se. Sen, J. also disagreed about the striking down of the Act in its entirety. Thus the submission that in Bhim Singhji the Act was not struck down on the violation of Article 14 simpliciter is incorrect.

125. Furthermore, the petitioner's reading of the judgment in Waman Rao case is flawed. It is erroneous to read a judgment by picking out one sentence and trying to read it in isolation or dehors the context. Senior Counsel F.S Nariman for the petitioner has placed heavy reliance on one sentence by Chandrachud, C.J in para 51, namely, that “Acts and regulations, which are or will be included in the Ninth Schedule on or after 24-4-1973 will not receive the protection of Article 31-B….” On the basis of this sentence torn out of context it is submitted that no constitutional amendment after 24-4-1973 will receive the protection of Article 31-B. The subsequent paragraphs would clearly establish that this reading is not correct because what the learned Chief Justice obviously meant was that the laws included in the Ninth Schedule post-1973, will not receive the “full protection” or the “blanket protection” of Article 31-B but that these laws “… will be valid only if they do not damage or destroy the basic structure of the Constitution”. This is evident from the very next sentence. This is also obvious from the statement of the learned Chief Justice in para 55. This is also plain from the statement in the operative part of the order of the Court passed on 9-5-1980 and set out in SCC para 63 at p. 403.

126. Senior Counsel for the petitioner has, in rejoinder, strongly for the first time relied upon the judgment of a Constitution Bench in Minerva Mills case in particular SCC paras 56-61. By drawing an analogy it was sought to be contended that a mechanism like Article 31-B virtually tears away the basic fundamental freedoms and gives primacy to all laws in the Ninth Schedule over Part III, and thereby, ipso facto, destroys the basic structure of the Constitution. It is submitted that since this judgment was read for the first time in rejoinder, and for lack of time the respondents could not point out that this judgment has been strongly criticised by a Constitution Bench of this Hon'ble Court in Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., SCC paras 9-16 at p. 159.

127. The submission of the petitioners that Article 31-B provides no standard and therefore, considering the width of the power, the provision itself is invalid proceeds on a conceptual misconception. It is submitted that though Article 31-B provides constitutional immunity to laws mentioned in the Ninth Schedule, the source of the power to add to the said Schedule lies in Article 368 itself. In other words, once a law is put in the Ninth Schedule in exercise of constituent power, the “standard” for review of such inclusion will necessarily be the basic structure test, which is a matter of objective determination by the Court. The emphatic conclusion in Kesavananda case is that there can be no limitation on the exercise of constituent power except the test of basic structure. In other words, the necessary consequence of Kesavananda case is that the only standard available for judging the validity of a constitutional amendment is the basic structure test and no other. Reading in any other additional limitation on the exercise of constituent power would run counter to the authoritative ruling of Kesavananda case.

128. If Parliament can, in the exercise of its constituent power, amend each and every provision of Part III, the legal sequitur is that Parliament can also in the exercise of the same constituent power, grant immunity to certain laws that may be inconsistent with or abridge the provisions of Part III—subject of course to the limitation that the grant of immunity under Article 31-B to any particular law does not destroy or damage the basic structure of the Constitution.

129. Further, the Court in Kesavananda case not only held that Article 31-B is not controlled by Article 31-A but also specifically upheld the Twenty-ninth Constitution Amendment whereby certain Kerala Land Reform Acts were included in the Ninth Schedule, after those Acts had been struck down by the Supreme Court in Kunjukutty case. The only logical basis for upholding the Twenty-ninth Amendment is that the Court was of the opinion that the mechanism of Article 31-B, by itself, is valid, though each time Parliament in exercise of its constituent power added a law in the Ninth Schedule, such exercise would have to be tested on the touchstone of the basic structure test. [See Shelat & Grover, JJ., paras 607 & 608(7); Hegde & Mukherjea, JJ., paras 738-43, 744(8); Ray, J., paras 1055-60, 1064; Jaganmohan Reddy, J., para 1212(4); Palekar, J., para 1333(3); Khanna, J., paras 1522, 1536, 1537(xv); Mathew, J., para 1782; Beg, J., paras 1857(6); Dwivedi, J., para 1994, 1995(4) and Chandrachud, J., paras 2136-41 and 2142(10).]

130. As pointed out it is a fallacy to regard that Article 31-B read with the Ninth Schedule excludes judicial review in the matter of violation of fundamental rights. The effect of Article 31-B is to remove a fetter on the power of Parliament to pass a law in violation of fundamental rights. On account of Article 31-B, cause of action for violation of fundamental right is not available because the fetter placed by Part III on legislative power is removed and is non-existent. Non-availability of cause of action based on breach of fundamental right cannot be regarded as exclusion or ouster of judicial review. As a result of the operation of Article 31-B read with the Ninth Schedule, occasion for exercise of judicial review does not arise. But there is no question of exclusion or ouster of judicial review. The two concepts are different.

131. A Constitution Bench of this Hon'ble Court in West Ramnad Electric Distribution Co. Ltd. v. State of Madras held that retrospective validation of a statute which was ab initio void at its inception either because of lack of legislative competence or because of violation of fundamental rights is perfectly permissible. The decision in West Ramnad was not questioned in rejoinder. A fortiori retrospective validation can be effected by a constitutional validating and curative provision specifically enacted for that purpose like Article 31-B which has been upheld by this Hon'ble Court.

132. Submission of one of the counsel for petitioners was that the principle that legal fiction created in Article 31-B should be given full effect to without allowing the imagination to be boggled, is applicable only in case of statute and not in the cases of constitutional provision like Article 31-B. This submission is bereft of any logic, principle or authority.

133. It is a well-settled legal position that Article 31-B is not controlled by Article 31-A. Accordingly, the laws which can be inserted in the Ninth Schedule do not have to be of the character or nature of laws specified in Article 31-A. The first 13 Acts inserted by the Constitution First Amendment Acts related to agrarian reforms. As Article 31-B is not so controlled, laws other than Article 31-A laws can be inserted. Therefore, to say that Article 31-B has spent itself upon the inclusion of 13 Acts in the Ninth Schedule is totally unwarranted. It needs to be emphasised that grave situations may arise which may necessitate the inclusion of laws in the Ninth Schedule because of the urgency of the matter and the need for speedy implementation unhindered by tardy litigation and divided judicial verdicts. The submission of one of the counsel of petitioners was that in such an eventuality a separate article was necessary in the Constitution like Article 31-D but the Ninth Schedule cannot be amended by inserting in it such a law. The said submission is not based on any principle or logic. The additional Article 31-D et seq would require a constitutional amendment and would have to undergo the same procedure under Article 368 for an insertion of an Act in the Ninth Schedule. Furthermore, it needs to be noticed that amendments to the parent Acts already inserted in the Ninth Schedule would become necessary. As pointed out in the submissions of Senior Counsel T.R Andhyarujina there are 142 Amendment Acts in the Ninth Schedule (see Annexure I to the submissions of T.R Andhyarujina). If the contention of the petitioner's counsel is correct and accepted, the Constitution would be cluttered by Articles like 31-D going up to Article 31-ZZ which would bring down the level and status of the paramount law of the land to the status of the Income Tax Act. If once it is accepted that such a power is necessary and there can be proper occasion for the exercise of that power, the suggested methodology of non-amendment of the Ninth Schedule but enactment of separate constitutional provisions makes no sense.

134. Senior Counsel F.S Nariman submitted that Article 31-B has spent itself. The submission is not supported by any material or authority but is a mere ipse dixit. In fact the history and operation of Article 31-B clearly negative that this constitutional provision has spent itself or has become obsolete. Only one sentence from the judgment of this Court in State of U.P v. Hindustan Aluminium Corpn. was read out in which it is mentioned that a statute can become obsolete if it has spent itself. The significant passages in the judgment are omitted, namely:

“It has to be appreciated that the power to legislate is both positive in the sense of making a law, and negative in the sense of repealing a law or making it inoperative. In either case, it is a power of the legislature and should like where it belongs. Any other view will be hazardous and may well be said to be an encroachment on the legislative field. In an extreme and a clear case, no doubt, an antiquated law may be said to have become obsolete—the more so if it is a penal law and has become incapable of user by a drastic change in the circumstances. But the judge of the change should be the legislature, and courts are not expected to undertake that duty unless that becomes unavoidable and the circumstances are so apparent as to lead to one and only one conclusion. This is equally so in regard to the delegated or subordinate legislation.” (SCC para 66 at p. 254)

(emphasis added)

The same view has been taken by the Court in other cases mentioned in para 11, above.

135. Validating legislation after it has been pronounced unconstitutional is a method employed by democratic countries. There is nothing inherently outrageous about such a method. Attention is also invited to the provisions in Section 33 of the Canadian Charter of Human Rights. Respondents in this behalf adopt the supplementary submission of Senior Counsel T.R Andhyarujina.

136. It is submitted that this Hon'ble Court has clearly laid down that the right to property is not part of the basic structure. It has further been held by this Hon'ble Court in State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., SCC at p. 727 that “In fact in Balmadies case, referred to above, the acquisition of forests owned by janmies was set aside on the sole ground that the impugned law on the material on record did not indicate that the transfer of forests from the janmies to the Government was linked in any way with a scheme of agrarian reform or for betterment of village economy.”

(emphasis supplied)

137. The standards for review of a constitutional amendment is that of the basic structure test which, if it pertains to a fundamental right, must be such a “shocking betrayal” of the quintessence of the concerned right. As held by Krishna Iyer, J. in Bhim Singhji case (SCC at p. 186, para 20) “Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty.”

IV. Mr T.R Andhyarujina, Senior Advocate, on behalf of the State of Tamil Nadu

Binding nature of the majority judgment in Kesavananda Bharati case of thirteen Judges on Article 31-B

138. In the first place, it is submitted that the decision of the Thirteen-Judge Bench in Kesavananda Bharati case by a majority 7 to 6 is that Article 31-B read with the Ninth Schedule is constitutionally valid.

139. Kesavananda Bharati case considered the validity of the Twenty-ninth Amendment Act, 1972 which introduced Items 65 and 66 into the Ninth Schedule viz. the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971. The “view of the majority” stated by 9 out of thirteen Judges is that “the Constitution (Twenty-ninth Amendment) Act, 1971 is valid”..

140. Khanna, J. who held that the constituent power could not alter the basic structure of the Constitution nevertheless held:

“I have been able to find no infirmity in the Constitution (Twenty-ninth Amendment) Act.”

141. If Article 31-B suffered from violating the basic structure, Khanna, J. would have declared that Article 31-B was unconstitutional as he did for the second part of Article 31-C.

142. Six other Judges viz. Ray, Palekar, Mathew, Baig, Dwivedi and Chandrachud, JJ. held that there were no limitations on the constituent power to amend the Constitution and hence found that the Twenty-ninth Amendment Act was valid.

143. The minority of 6 Judges viz. Sikri, C.J, para 472, Shelat, J., para 607, Grover, J., Hegde, J., para 508, Mukherjea, J., para 404 and Jaganmohan Reddy, J., para 1214 held that later constitutional Benches would decide whether the impugned Acts inserted into the Ninth Schedule by the Twenty-ninth Amendment were valid. Sikri, C.J went further and held that Article 31-B and the Ninth Schedule was bad as it protects statutes even if they take away fundamental right.

144. Significantly, the summary of “the majority view” at p. 1007 also does not state that the Kerala Acts in the Twenty-ninth Amendment Act would have to be examined by the Court for their validity. The two Kerala Acts in the Twenty-ninth Amendment Act were not thereafterwards considered for their validity.

145. It is thus clear that the majority view in Kesavananda Bharati is that Article 31-B and the Ninth Schedule is a permissible constitutional device and there is no infirmity in it. The position was summarised by Ray, C.J in Indira Gandhi v. Raj Narain.

146. After 1973, the following decisions of this Court applied Article 31-B as per se protecting the impugned Act in the Ninth Schedule:

(1) Godavari Sugar Mills v. S.B Kamble (H.R Khanna, P.N Bhagwati and P.K Goswami, JJ.) per Khanna, J. held that the Maharashtra Agricultural Land (Ceilings or Holdings) Act was fully protected by its inclusion in the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964.

(2) State of Maharashtra v. M.S Padvi (7 Judges), per Bhagwati, J., held that a law declared unconstitutional by the High Court was validated by its insertion into the Ninth Schedule by the Constitution (Fortieth Amendment) Act, 1976.

(3) Prag Ice v. Union of India (7 Judges) per Chandrachud, J., SCC at p. 485 held that the Essential Commodities Act put in the Ninth Schedule by the Fortieth Amendment Act, 1976 protected it from the challenge of fundamental rights under Part III.

In none of these cases (which were post-1973) was Article 31-B doubted as giving protection to the scheduled Act and none of the scheduled Acts were required to be examined if it violated the basic structure.

147. There is no consideration of the binding effect of the majority judgments in Kesavananda Bharati case in either Waman Rao v. Union of India, SCC at p. 397 by Chandrachud, C.J, or in Minerva Mills by Bhagwati, J. (SCC at p. 683, para 91) both of which were by 5 Judges.

Nor do these cases even refer to Godavari Sugar Mills case, Padvi case (7 Judges) or Prag Ice case (7 Judges).

148. In effect sub silentio ignoring the binding decision of Kesavananda Bharati on Article 31-B, both Waman Rao, and Minerva Mills have adopted the minority view of 6 Judges in Kesavananda Bharati case that Article 31-B is valid but the specified Acts/regulations in the Ninth Schedule have to be examined, if they damage or destroy the basic structure.

Validity of Article 31-B and the Ninth Schedule res integra

149. On the basis that Kesavananda Bharati case did not decide the validity of Article 31-B and it was res integra after the criterion of the limitation of the basic structure, the position will be thus:

Fundamental right

If the inconsistency of a protected Act with a particular fundamental right is only its abridgement (e.g Article 14) but does not abrogate or destroy or damage the fundamental right, Article 31-B will give protection to the inconsistency. If the inconsistency is such that it abrogates or destroys or damages the particular fundamental right, the Act will be declared as void for that reason.

150. The correct position is given by Mathew, J. in Indira Gandhi, SCC at p. 141, paras 356 to 358. This is also the view of Bhagwati, J. in Minerva Mills, SCC at p. 686, para 91 and of Chandrachud, C.J, in Waman Rao, SCC at p. 397, para 51 read with p. 399, para 55 and the conclusion at p. 403, para 63.

151. The effect of the application of the limitation of the basic structure to a scheduled Act is that Article 31-B read with the Ninth Schedule is no longer not subject to judicial review. Judicial review is, therefore, very much present.

Waman RaoA6, para 51 correct in all respects

152. It is not correct to rewrite para 51 of Waman Rao in the manner sought to be done by the petitioners. The last sentence in para 51 is crucial and cannot be rewritten to refer without any context suddenly to “a post-1973 non-Article 31-B Amendment of the Constitution”. Waman Rao was only considering the validity of Article 31-A (which was held fully protected at all times) and Article 31-B which was held not protected after 24-4-1973, and Article 31-C (first part) which was protected at all times. No other Constitution Amendments came up for consideration in Waman Rao or were in contemplation.

153. It is not at all correct that the last sentence of para 55 requires to be re-read to apply only to “a post-1973 non-Article 31-B constitutional amendment”.

Relationship between judicial review and the basic structure or framework of the Constitution

154. In the first place, it is necessary to distinguish between the necessity for the judiciary in a written Constitution and judicial review by the judiciary. The existence of the judiciary is part of the basic framework of the Constitution. The constituent power of Parliament under Article 368 of the Constitution cannot abrogate the existence of the judiciary.

155. On the other hand, the power of judicial review is a power of the judiciary over certain matters. There is no judicial review in absolute terms given to the judiciary under the Constitution.

The Constitution itself has provisions for specifically excluding judicial review in certain matters e.g repealed Articles 31(4) and 31(6), present Article 74(2), Article 33, Article 103(1), Article 105(2), Article 122(1), Article 136(2), Article 262(2), Article 227(4), Article 329(a) and Article 363. The exclusion of judicial review by the Constitution itself in certain fields shows that judicial review is not in absolute terms and there is a necessity to limit it in certain areas. Chandrachud, J. in Indira Gandhi case said:

“These provisions show that the Constitution did not regard judicial review as an indispensable measure of legality or propriety of every determination.” (per Chandrachud, J., p. 253, para 666)

156. In Kesavananda Bharati case there is no mention of the feature of judicial review as such being part of the basic structure.

157. Khanna, J. found that the first part of Article 31-C was not unconstitutional though on its plain terms it eliminated judicial review in respect of laws which gave effect to the directive principles in Article 39(b) and Article 39(c) of the Constitution or breach of Articles 14, 19 and 31.

158. However, he held that the second part of the article had peculiar vices.

Article 31-C contained an unchallengeable declaration by any legislature including a State Legislature that a law was giving effect to these directive principles. This would provide,

“The cover for making laws with a regional bias even though such laws imperil the oneness of the nation and contain seeds of national disintegration.” (p. 814, para 1519).

159. Khanna, J. held:

“In empowering a State Legislature to make laws violative of Articles 14, 19 and 31 of the Constitution and in further empowering the State Legislature to make laws immune from attack on the ground of being violative of Articles 14, 19 and 31, by inserting the requisite declaration, the authority vested with the power to make amendment under Article 368 (viz. the prescribed majority in each House of Parliament) has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature.” (p. 817, para 1526)

Summing up, he held:

“In my opinion, the second part of Article 31-C is liable to be quashed on the following grounds:

(1) It gives a carte blanche to the legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31-C taken along with its second part gives in effect the power to the legislature, including a State Legislature, to amend the Constitution.

(2) The legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in Article 31-C. The vice of the second part of Article 31-C lies in the fact that even if the law enacted is not for the object mentioned in Article 31-C, the declaration made by the legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by the legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31-C goes beyond the permissible limit of what constitutes amendment under Article 368. (p. 822, para 1535-A)

Thus, it was a particular type of elimination of judicial review from the second part of Article 31-C which was held to be violative of the basic structure of the Constitution.

160. On the other hand, Khanna, J. specifically approved the exclusion of judicial review by Article 31-B in contradistinction to the elimination of judicial review by a declaration by the legislature under the second part of Article 31-C. The relevant part of Khanna, J.'s judgment is at pp. 813 to 825.

161. Judicial review is also excluded by Article 31-A and Article 31-C (first part).

Article 31-A excludes judicial review of certain laws from the application of Articles 14, 19 and 31. Article 31-A was held not violative of the basic structure unanimously in Waman Rao, and Minerva Mills case (post-1973).

162. Likewise, the first part of unamended Article 31-C which excluded judicial review of certain laws was held by a majority of 7 to 6 not to destroy the basic structure of the Constitution in Kesavananda Bharati case and affirmed in Waman Rao, and Minerva Mills case (post-1973) as valid. The upholding of the validity of Articles 31-A and 31-C shows that judicial review of this type may legitimately be excluded.

163. In Indira Gandhi v. Raj Narain also there is no proposition that judicial review as such is a basic structure of the Constitution and cannot be excluded. In fact, even in respect of as vital a matter as election disputes, Ray, C.J, and Chandrachud, J. held that there was no necessity of judicial review.

Therefore, after the theory of basic structure which came to be established in Kesavananda Bharati case, it is only that kind of judicial review whose elimination would destroy or damage the basic structure of the Constitution that is beyond the constituent power. In every case where a constituent power excludes judicial review, the basic structure of the Constitution is not abrogated. The question to be asked in each case is, does the particular exclusion alter the basic structure of the Constitution.

For example, Article 243-O made by the Seventy-third Amendment, 1993 on 20-4-1993 (i.e post-1973) bars the interference by courts in electoral matters relating to electoral rolls and elections to Panchayat. Such an exclusion of judicial review does not in any manner affect the basic structure of the Constitution.

164. On the other hand, an amendment introducing clause (2)(d) of Article 323-A and clause (3)(d) of Article 232-B of the Constitution by the Constitution (Forty-second Amendment) Act, 1976 which excluded jurisdiction of the High Courts and the Supreme Court under Articles 226 and 227 and Article 32 of the Constitution was declared unconstitutional as altering the basic structure of the Constitution as the entire jurisdiction of the High Courts and the Supreme Court was abrogated. (L. Chandra Kumar v. Union of India).

165. Judicial review under the Constitution is comprehensive in nature. The broad areas are:

1. Over legislative competence of Parliament and the State Legislatures;

2. Over executive and administrative actions;

3. Over specific limitations in the Constitution e.g Articles 265, 286, 301, etc.;

4. Over limits of various authorities under the Constitution, and;

5. Breach of Part III of the Constitution.

166. Giving immunity of Part III to specified laws from judicial review does not abrogate judicial review from the Constitution. Judicial review remains with the courts but with its exclusion over certain enacted laws to which Part III will not apply. The effect of Article 31-B is to remove the fetter of Part III but does not oust the court's jurisdiction.

167. As constitutional amendment of Article 31-B read with the Ninth Schedule does not make any change in the court's jurisdiction, it does not require ratification as held in Sankari Prasad and Sajjan Singh.

168. Justice O.W Holmes said in a celebrated passage—

“I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperilled if we could not make that declaration as to the laws of the several States.” [Holmes, Collected Legal Papers (1920), 295-96).

169. The exclusion of judicial review of specified Acts in the Ninth Schedule is not done by the State Legislatures making laws conforming either to certain types of laws or to certain directive principles as in the case of Article 31-A and Article 31-C but the very enacted Act is the subject-matter of Parliament's consideration. Parliament, by a special majority of two-thirds of each House, on a consideration, makes the already enacted law to which, in its opinion, the provisions of Part III should not apply. No sense of irresponsibility can be ascribed or attributed to the representatives of the people.

170. Nor can a power be denied because of the possibility of its abuse. Rhetorical arguments of misuse of power (e.g “abyss” or “laundry bag” of the Ninth Schedule, etc.) are always appealing but are irrelevant to the test of power. The width of a power to be considered is different from the possibility of its abuse. In Kesavananda Bharati 7 Judges have held that it is not a legitimate mode of construing a power to consider its worst use or abuse. See per Ray, J., pp. 565-66, paras 948-51; per Jaganmohan Reddy, J., p. 613, para 1103; per Khanna, J., p. 762, paras 1416-17; per Mathew, J., p. 863, para 1662; per Dwivedi, J., p. 947, paras 1949-52; per Chandrachud, J., p. 991, para 2093 and per Palekar, J., p. 690, para 1263.

Conclusion

171. In the final analysis, it is submitted that the power to include Acts in the Ninth Schedule has been entrusted to the peoples' representatives in Parliament. Like with other vast powers entrusted to them, we must presume that they would be exercised in a responsible way.

172. The peoples' representatives under our Constitution are vested with larger powers over the lives of the nation. No assumption can be made that they will be misused. From 1950, under the interpretation given by this Court in Gopalan case there was no protection given in matters of life and personal liberty except by such law as Parliament would make till 28 years later this Court in Maneka Gandhi case introduced for all practical purposes the due process of law in matters relating to life and personal liberty.

For over 23 years with the full amending power up to 1973 no abuse of amending power can be said to have made.

173. The analysis of the Ninth Schedule Acts show that the bulk of the Acts are those relating to land reforms. Even in respect of other Acts, it cannot be said that any of the Acts are such that they are oppressive or destroy the personal liberties of citizens.

174. Parliament can be trusted with the power to insert Acts in the Ninth Schedule and not to misuse the power as indeed it has not done so far.

Further Submissions:

Relationship between Article 31-A and Article 31-B

175. Articles 31-A and 31-B were enacted originally by the First Amendment Act in 1951. It was said, therefore, that Articles 31-A and 31-B were enacted to serve the same purpose of making legislation falling within a certain category, namely, relating to agrarian reforms.

176. However, from 1955, Article 31-A no longer exclusively dealt with estates or agrarian reforms. At the same time, by the same Constitution (Fourth Amendment) Act, six other Acts were included in the Ninth Schedule, namely, Items 14 to 20 which had no connection with land agrarian reforms.

177. Thus, after the Constitution (Fourth Amendment) Act, 1955 Article 31-B had no similarity even to the contents of Article 31-A. It is significant that the Constitution (Fourth Amendment) Act, 1955 was piloted in Parliament on 17-12-1954 by Pt. Jawaharlal Nehru himself who had earlier stated at the time of the First Amendment in 1951 that “the Ninth Schedule consisted of a particular type of legislation generally speaking and that another type should not come in…”

178. It is, therefore, only partially true that Article 31-B was adopted only as a means of giving definite and assured protection to legislation already protected under Article 31-A. From 1955 onwards, this was no longer true as Article 31-A itself changed its character.

179. An analysis of the 285 entries in the Ninth Schedule inserted up to 1995 shows:

(1) 17 Acts are not relatable to any clause in Article 31-A.

(2) 11 Acts are relatable to Articles 31-A(b) to (e).

(3) Remaining 257 Acts are relatable to land reforms/land acquisition.

Re: Submission of logical follow up from invalidation of Article 31-C by Constitution (Forty-second Amendment) Act

180. It has been argued that if the majority judgment in Minerva Mills case found Article 31-C as amended by the Forty-second Amendment Act, 1976 to be an invalid constitutional amendment, logically Article 31-B which according to the petitioners has a wider reach cannot be valid.

181. The factual foundations of this argument is not correct. Article 31-C as amended by the Constitution (Forty-second Amendment) Act was held to be damaging the basic structure of the Constitution by the majority judgment in Minerva Mills Ltd. case (Bhagwati, J. dissenting) because the Forty-second Amendment gave absolute primacy to the whole of Part IV over Part III and the harmony between the fundamental rights and directive principles which was an essential feature of the basic structure of the Constitution was damaged [see, Chandrachud, C.J in Minerva Mills case, SCC at p. 654, para 56].

Re: Argument that Article 31-B renders the Constitution “uncontrolled”

182. It is been argued that the continued retention of Article 31-B makes the Constitution cease to be “a controlled Constitution”. This is total misunderstanding of the concept of “controlled” and “uncontrolled” Constitution. An uncontrolled Constitution (corresponding to a flexible Constitution) does not have any special procedure for amending the Constitution in respect of any part of the Constitution whether a vital part or an innocuous part of it. Thus, as it has been said in England, Parliament may amend the Bill of Rights with as much ease and without any special procedure as the Dogs Act or the Dentists Act. On the other hand, in a controlled Constitution, the amendment of the Constitution cannot be made by an ordinary law but by special procedure which renders the Constitution controlled (or rigid). This distinction was made in the leading Privy Council case of McCawley v. King.

183. See the distinction between “controlled” and “uncontrolled” Constitutions in the following parts of Kesavananda Bharati case:

(a) Ray, J. at pp. 521-22, para 782.

(b) Khanna, J. at pp. 735-36, para 1345.

(c) Palekar, J. at pp. 670-71, para 1222; at pp. 682-83, para 1243.

(d) Mathew, J. at pp. 832-33, para 1569; at p. 839, para 1592.

(e) Shelat and Grover, JJ. at pp. 408-409, para 486; pp. 432, para 540.

(f) Dwivedi, J. at pp. 927, para 1878; pp. 939, para 1920.

(g) Chandrachud, J. at pp. 985, paras 2073-2074.

Wrong foundation of the petitioners' submissions

184. Besides this, the petitioners lay a wholly wrong foundation for their arguments. They suggest that each and every article of Part III of the Constitution in its entirety is excluded by Article 31-B as if Part III does not exist. This is totally erroneous. Article 31-B gives immunity only to specified laws in the Ninth Schedule from the challenge of fundamental rights in Part III. It does not wipe out Part III from the Constitution.

Re: Submission of absence of “criteria or standard” in Article 31-B

185. The petitioners submit that there is no criterion or standard in Article 31-B for inclusion of Acts in the Ninth Schedule. The answer is that the criterion is that those Acts which in Parliament's considered opinion are necessary for giving immunity from Part III and which if not given would result in long and dilatory challenge and would frustrate the objectives of the scheduled Act are included in the Ninth Schedule. Article 31-B affords a better protection than leaving all legislatures in India free to make laws with reference to any subject related to Article 31-A(1) and making fundamental rights immune to the challenge of fundamental rights and by Article 31-C leaving all legislatures to make laws in pursuance of the directive principles of State Policy in Articles 39(b) and (c) and making them immune. As Khanna, J. observed in Kesavananda Bharati Parliament's scrutiny of the specified Acts by two-thirds majority is a solid protection which makes Article 31-B unobjectionable (see Khanna, J. in Kesavananda Bharati, SCC at p. 815, para 1522; p. 818, para 1539; and p. 820, para 1533).

186. Parliament does not recklessly put in Acts in the Ninth Schedule. The petitioners have not shown that any Act in the Schedule is oppressive or destructive of fundamental freedom. As shown earlier, out of the present Ninth Schedule of 285 Acts, 257 Acts are relatable estate and land reform, etc. 11 Acts are relatable to Articles 31-A(b) to (e).

187. A complete analysis of the Acts and Regulations in the Ninth Schedule is annexed to these submissions as Annexure I.

Submission that after 24-4-1973, Article 31-B ceases to have efficacy or must cease

188. There is no legal basis for the proposition that Article 31 “has spent itself” or “has become obsolete” or because “it has accomplished its purpose”. Even an ordinary statute does not cease to operate by desuetude, much less a part of the Constitution which is a living document for all times can be so condemned or the court can be invited to do so.

Analogous provision to Article 31-B in Canada

189. A significant analogy to Article 31-B exists in the Canadian Constitution Act, 1982 which introduced the Canadian Charter of Rights and Freedoms.

190. Various rights and freedoms are guaranteed in the Charter. However, the Charter itself carries an exception in Section 33 to exclude rights and freedoms by an express declaration in an Act of Parliament or of the legislature of the province by which that Act will operate notwithstanding certain rights and provisions of the Charter.

191. The material portions of Section 33 are as follows:

33. Exception where express declaration.—(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in Section 2 or Sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

192. Section 33 allows Parliament or a Provincial Legislature to limit the rights granted in Sections 2 (fundamental freedoms) and 7 to 15 (legal and equality rights) of the Charter. This can be done by means of an ordinary statute, passed either prior to a constitutional challenge, or in response to a finding of unconstitutionality by a court. If Section 33 is invoked, there is no requirement that the legislation be reasonable or demonstrably justified under Section 1 of the Charter. Moreover, when Section 33 is invoked, courts have no ability to review the legislation, except with respect to compliance with Section 33 itself.

193. This shows there is nothing per se objectionable in other democratic Constitutions to the legislature excluding fundamental freedoms to a particular Act if the legislature deems fit.

———

The Judgment of the Court was delivered by

Y.K Sabharwal, C.J— In these matters we are confronted with a very important yet not very easy task of determining the nature and character of protection provided by Article 31-B of the Constitution of India, 1950 (for short “the Constitution”) to the laws added to the Ninth Schedule by amendments made after 24-4-1973. The relevance of this date is for the reason that on this date the judgment in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 was pronounced propounding the doctrine of basic structure of the Constitution to test the validity of constitutional amendments.

Re: Order of reference

2. The order of reference made more than seven years ago by a Constitution Bench of five Judges is reported in I.R Coelho v. State of T.N (1999) 7 SCC 580 (14-9-1999). The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. v. State of T.N (1972) 2 SCC 133 because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. These insertions were the subject-matter of challenge before a five-Judge Bench.

3. The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule.

4. In the referral order, the Constitution Bench observed that, according to Waman Rao v. Union of India (1981) 2 SCC 362 amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure. The decisions in Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 and Bhim Singhji v. Union of India (1981) 1 SCC 166 were also noted and it was observed that the judgment in Waman Rao (1981) 2 SCC 362 needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine Judges. This is how these matters have been placed before us.

Broad question

5. The fundamental question is whether on and after 24-4-1973 when the basic structure doctrine was propounded, it is permissible for Parliament under Article 31-B to immunise legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court.

Development of the law

6. First, we may consider, in brief, the factual background of framing of the Constitution and notice the developments that have taken place almost since inception in regard to interpretation of some of the articles of the Constitution.

7. The Constitution was framed after an in-depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State's welfare obligations in Part IV. The Constitutions of various countries including that of the United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The fundamental rights chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32.

8. The High Court of Patna in Kameshwar Singh v. State of Bihar AIR 1951 Pat 91 held that a Bihar legislation relating to land reforms was unconstitutional while the High Courts of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after the Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunising these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void.

9. Articles 31-A and 31-B read as under:

“31-A. Saving of laws providing for acquisition of estates, etc.—(1) Notwithstanding anything contained in Article 13, no law providing for—

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19:

Provided that where such law is a law made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article,—

(a) the expression ‘estate’, shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—

(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;

(ii) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;

(b) the expression ‘rights’, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

31-B. Validation of certain Acts and Regulations.—Without prejudice to the generality of the provisions contained in Article 31-A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force.”

10. The constitutional validity of the First Amendment was upheld in Sankari Prasad Singh Deo v. Union of India AIR 1951 SC 458, 1952 SCR 89.

11. The main object of the amendment was to fully secure the constitutional validity of zamindari abolition laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad AIR 1951 SC 458, 1952 SCR 89 that Article 13(2) does not affect amendments to the Constitution made under Article 368 because such amendments are made in the exercise of constituent power. The Constitution Bench held that to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament.

12. The constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v. State of Rajasthan AIR 1965 SC 845, (1965) 1 SCR 933 the law declared in Sankari Prasad AIR 1951 SC 458, 1952 SCR 89 was reiterated. It was noted that Articles 31-A and 31-B were added to the Constitution realising that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that the genesis of the amendment made by adding Articles 31-A and 31-B is to assist the State Legislatures to give effect to the economic policy to bring about much needed agrarian reforms. It noted that if pith and substance test is to apply to the amendment made, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socio-economic policy viz. a policy in which the party in power believes. The Court further noted that the impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted that the object of the Act was to amend the relevant articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of clause (b) of that proviso. The Court, however, noted, that if the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and if in significant order, different considerations may perhaps arise.

13. Hidayatullah and J.R Mudholkar, JJ. concurred with the opinion of Gajendragadkar, C.J upholding the amendment but, at the same time, expressed reservations about the effect of possible future amendments on fundamental rights and basic structure of the Constitution. Mudholkar, J. questioned that: (Sajjan Singh case AIR 1965 SC 845, (1965) 1 SCR 933, AIR p. 864, para 58)

“58. It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”

14. In Golak Nath v. State of Punjab AIR 1967 SC 1643, (1967) 2 SCR 762 a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad AIR 1951 SC 458, 1952 SCR 89 and Sajjan Singh AIR 1965 SC 845, (1965) 1 SCR 933. By majority of six to five, these decisions were overruled. It was held that the constitutional amendment is “law” within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. It was declared that Parliament will have no power from the date of the decision (27-2-1967) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

15. Soon after Golak Nath case AIR 1967 SC 1643, (1967) 2 SCR 762 the Constitution (Twenty-fourth Amendment) Act, 1971, the Constitution (Twenty-fifth Amendment) Act, 1971, the Constitution (Twenty-sixth Amendment) Act, 1971 and the Constitution (Twenty-ninth Amendment) Act, 1972 were passed.

16. By the Constitution (Twenty-fourth Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4):

“13. (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.”

17. Article 368 was also amended and in Article 368(1) the words “in exercise of its constituent powers” were inserted.

18. The Constitution (Twenty-fifth Amendment) Act, 1971 amended the provision of Article 31 dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law need to be given and this amount could not be challenged in court on the ground that it was not adequate or in cash. Further, after Article 31-B of the Constitution, Article 31-C was inserted, namely:

“31-C. Saving of laws giving effect to certain directive principles.—Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:

Provided that where such law is made by the legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”

(emphasis supplied)

19. The Constitution (Twenty-sixth Amendment) Act, 1971 omitted from the Constitution Article 291 (privy purses) and Article 362 (rights and privileges of rulers of Indian States) and inserted Article 363-A after Article 363 providing that recognition granted to rulers of Indian States shall cease and privy purses be abolished.

20. The Constitution (Twenty-ninth Amendment) Act, 1972 amended the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65— Kerala Land Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66—Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of 1971).

21. These amendments were challenged in Kesavananda Bharati case (1973) 4 SCC 225. The decision in Kesavananda Bharati case (1973) 4 SCC 225 was rendered on 24-4-1973 by a thirteen-Judge Bench and by majority of seven to six Golak Nath case AIR 1967 SC 1643, (1967) 2 SCR 762 was overruled. The majority opinion held that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution. The Constitution (Twenty-fourth Amendment) Act, 1971 was held to be valid. Further, the first part of Article 31-C was also held to be valid. However, the second part of Article 31-C that

“no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy”

was declared unconstitutional. The 29th Constitution Amendment was held valid. The validity of the 26th Amendment was left to be determined by a Constitution Bench of five Judges.

22. The majority opinion did not accept the unlimited power of Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

23. Another important development took place in June 1975, when the Allahabad High Court set aside the election of the then Prime Minister Mrs Indira Gandhi to the fifth Lok Sabha on the ground of alleged corrupt practices. Pending appeal against the High Court judgment before the Supreme Court, the Constitution (Thirty-ninth Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article 329-A after Article 329. Sub-clauses (4) and (5) of Article 329-A read as under:

“329-A. (4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, insofar as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

(5) Any appeal or cross-appeal against any such order of any court as is referred to in clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of clause (4).”

24. Clause (5) of the Amendment Act inserted after Entry 86, Entries 87 to 124 in the Ninth Schedule. Many of the entries inserted were unconnected with land reforms.

25. In Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1 the aforesaid clauses were struck down by holding them to be violative of the basic structure of the Constitution.

26. About two weeks before the Constitution Bench rendered the decision in Indira Gandhi case 1975 Supp SCC 1 internal Emergency was proclaimed in the country. During the Emergency from 26-6-1975 to March 1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by virtue of Article 359. During internal Emergency, Parliament passed the Constitution (Fortieth Amendment) Act, 1976. By clause (3) of the said amendment, in the Ninth Schedule, after Entry 124, Entries 125 to 188 were inserted. Many of these entries were unrelated to land reforms.

27. Article 368 was amended by the Constitution (Forty-second Amendment) Act, 1976. It, inter alia, inserted by Section 55 of the Amendment Act, in Article 368, after clause (3), the following clauses (4) and (5):

“368. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”

28. After the end of internal Emergency, the Constitution (Forty-fourth Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-clause (f) of Article 19 with the result that the right to property ceased to be a fundamental right and it became only legal right by insertion of Article 300-A in the Constitution. Articles 14, 19 and 21 became enforceable after the end of Emergency. Parliament also took steps to protect fundamental rights that had been infringed during the Emergency. The Maintenance of Internal Security Act, 1971 and the Prevention of Publication of Objectionable Matter Act, 1976 which had been placed in the Ninth Schedule were repealed. The Constitution (Forty-fourth Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the Emergency, rights conferred by Articles 20 and 21 could not be suspended.

29. During Emergency, the fundamental rights were read even more restrictively as interpreted by the majority in ADM, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521. The decision in ADM, Jabalpur (1976) 2 SCC 521 about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions.

30. The fundamental rights received enlarged judicial interpretation in the post-Emergency period. Article 21 which was given strict textual meaning in A.K Gopalan v. State of Madras AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 interpreting the words “according to procedure established by law” to mean only enacted law, received enlarged interpretation in Maneka Gandhi v. Union of India (1978) 1 SCC 248. A.K Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 was no longer good law. In Maneka Gandhi (1978) 1 SCC 248 a Bench of seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights.

31. In Minerva Mills case (1980) 3 SCC 625 the Court struck down clauses (4) and (5) of Article 368 finding that they violated the basic structure of the Constitution.

32. The next decision to be noted is that of Waman Rao (1981) 2 SCC 362. The developments that had taken place post-Kesavananda Bharati case (1973) 4 SCC 225 have been noticed in this decision.

33. In Bhim Singhji (1981) 1 SCC 166 challenge was made to the validity of the Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted in the Ninth Schedule after Kesavananda Bharati case (1973) 4 SCC 225. The Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the ceiling limit was violative of Articles 14 and 19(1)(f) of Part III. When the said Act was enforced in February 1976, Article 19(1)(f) was part of fundamental rights chapter and as already noted it was omitted therefrom only in 1978 and made instead only a legal right under Article 300-A.

34. It was held in L. Chandra Kumar v. Union of India (1997) 3 SCC 261 that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of the Constitution of India.

Constitutional amendment of the Ninth Schedule

35. It would be convenient to note at one place, various constitutional amendments which added/omitted various Acts/provisions in the Ninth Schedule from Items 1 to 284. It is as under:

“Amendment Acts/Provisions added 1st Amendment (1951) 1-13 4th Amendment (1955) 14-20 17th Amendment (1964) 21-64 29th Amendment (1971) 65-66 34th Amendment (1974) 67-86 39th Amendment (1975) 87-124 40th Amendment (1976) 125-188 47th Amendment (1984) 189-202 66th Amendment (1990) 203-257 76th Amendment (1994) 257-A 78th Amendment (1995) 258-284

Omissions

In 1978 Item 92 (the Internal Security Act) was repealed by the parliamentary Act.

In 1977 Item 130 (the Prevention of Publication of Objectionable Matter) was repealed.

In 1978 the 44th Amendment omitted Items 87 (the Representation of People Act), 92 and 130.”

Many additions are unrelated to land reforms.

36. The question is as to the scope of challenge to the Ninth Schedule laws after 24-4-1973.

Article 32

37. The significance of jurisdiction conferred on this Court by Article 32 is described by Dr. B.R Ambedkar as follows: (Constituent Assembly Debates, Vol. IX, p. 953)

“most important article without which this Constitution would be a nullity”.

Further, it has been described as “the very soul of the Constitution and the very heart of it”.

38. Reference may also be made to the opinion of Patanjali Sastri, C.J in State of Madras v. V.G Row AIR 1952 SC 196, 1952 SCR 597, 1952 Cri LJ 966 to the following effect: (AIR p. 199, para 13)

“This is especially true as regards the ‘fundamental rights’, as to which [the Supreme Court] has been assigned the role of a sentinel on the ‘qui vive’. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.”

39. The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no Act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme, are settled propositions of Indian jurisprudence [see Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India (1981) 1 SCC 568, State of Rajasthan v. Union of India (1977) 3 SCC 592, Krishna Swami v. Union of India (1992) 4 SCC 605, Daryao v. State of U.P AIR 1961 SC 1457, (1962) 1 SCR 574 and L. Chandra Kumar (1997) 3 SCC 261.]

40. In S.R Bommai v. Union of India (1994) 3 SCC 1 it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution.

41. It is the duty of this Court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution.

Principles of construction

42. The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.

43. The principle of constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers; it requires a diffusion of powers, necessitating different independent centres of decision-making. The principle of constitutionalism underpins the principle of legality which requires the courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

Common law constitutionalism

44. The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism.

45. According to Dr. Amartya Sen, the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society.

46. According to Lord Steyn, the judiciary is the best institution to protect fundamental rights, given its independent nature and also because it involves interpretation based on the assessment of values besides textual interpretation. It enables application of the principles of justice and law.

47. Under the controlled Constitution, the principles of checks and balances have an important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain circumstances, courts may be forced to modify the principle of parliamentary sovereignty, for example, in cases where judicial review is sought to be abolished. By this the judiciary is protecting a limited form of constitutionalism, ensuring that their institutional role in the Government is maintained.

Principles of constitutionality

48. There is a difference between parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not Parliament. It is in the exercise of law-making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If in future, judicial review was to be abolished by a constitutional amendment, as Lord Steyn says, the principle of parliamentary sovereignty even in England would require a relook. This is how law has developed in England over the years. It is in such cases that doctrine of basic structure as propounded in Kesavananda Bharati case (1973) 4 SCC 225 has to apply.

49. Granville Austin has been extensively quoted and relied on in Minerva Mills (1980) 3 SCC 625. Chandrachud, C.J observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. Fundamental rights occupy a unique place in the lives of civilised societies and have been described in judgments as “transcendental”, “inalienable” and “primordial”. They constitute the ark of the Constitution (Kesavananda Bharati (1973) 4 SCC 225, 999). The learned Chief Justice held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. “Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.” (emphasis supplied) (Minerva Mills (1980) 3 SCC 625) Further observes the learned Chief Justice, that the matters have to be decided not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The observations made in the context of Article 31-C have equal and full force for deciding the questions in these matters. Again the observations made in para 70 are very relevant for our purposes. It has been observed that (Minerva Mills case (1980) 3 SCC 625, para 70, p. 659)

“[I]f by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a ‘parchment in a glass case’ to be viewed as a matter of historical curiosity.”

These observations are very apt for deciding the extent and scope of judicial review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick.

50. The developments made in the field of interpretation and expansion of judicial review shall have to be kept in view while deciding the applicability of the basic structure doctrine—to find out whether there has been violation of any fundamental right, the extent of violation, does it destroy the balance or it maintains the reasonable balance.

51. The observations of Bhagwati, J. in Minerva Mills case (1980) 3 SCC 625 show how clause (4) of Article 368 would result in enlarging the amending power of Parliament contrary to the dictum in Kesavananda Bharati case (1973) 4 SCC 225. The learned Judge has said in para 85 that:

“So long as clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati case (1973) 4 SCC 225 would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged, contrary to the decision of this Court in Kesavananda Bharati case (1973) 4 SCC 225. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers.”

52. In Minerva Mills (1980) 3 SCC 625 while striking down the enlargement of Article 31-C through 42nd Amendment which had replaced the words “of or any of the principles laid down in Part IV” with “the principles specified in clause (b) or clause (c) and Article 39”, Chandrachud, J. said:

“Section 4 of the Constitution (Forty-second Amendment) Act is beyond the amending power of Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.”

53. In Indira Gandhi case 1975 Supp SCC 1, for the first time the challenge to the constitutional amendment was not in respect of the rights to property or social welfare, the challenge was with reference to an electoral law. Analysing this decision, H.M Seervai in Constitutional Law of India (4th Edn.) says that “the judgment in Election case 1975 Supp SCC 1 breaks new ground, which has important effects on Kesavananda Bharati case (1973) 4 SCC 225 itself” (para 30.18). Further the author says that:

“No one can now write on the amending power, without taking into account the effect of Election case 1975 Supp SCC 1.” (para 30.19)

The author then goes on to clarify the meaning of certain concepts — “constituent power”, “rigid” (controlled), or “flexible” (uncontrolled) constitution, “primary power” and “derivative power”.

54. The distinction is drawn by the author between the making of a Constitution by a Constituent Assembly which was not subject to restraints by any external authority as a plenary law-making power and a power to amend the Constitution, a derivative power derived from the Constitution and subject to the limitations imposed by the Constitution. No provision of the Constitution framed in exercise of plenary law-making power can be ultra vires because there is no touchstone outside the Constitution by which the validity of provision of the Constitution can be adjudged. The power for amendment cannot be equated with such power of framing the Constitution. The amending power has to be within the Constitution and not outside it.

55. For determining whether a particular feature of the Constitution is part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country's governance (Chandrachud, C.J in Indira Gandhi case 1975 Supp SCC 1).

56. The fundamentalness of fundamental rights has thus to be examined having regard to the enlightened point of view as a result of development of fundamental rights over the years. It is, therefore, imperative to understand the nature of guarantees under fundamental rights as understood in the years that immediately followed after the Constitution was enforced when fundamental rights were viewed by this Court as distinct and separate rights. In early years, the scope of the guarantee provided by these rights was considered to be very narrow. Individuals could only claim limited protection against the State. This position has changed since long. Over the years, the jurisprudence and development around fundamental rights has made it clear that they are not limited, narrow rights but provide a broad check against the violations or excesses by the State authorities. The fundamental rights have in fact proved to be the most significant constitutional control on the Government, particularly legislative power. This transition from a set of independent, narrow rights to broad checks on State power is demonstrated by a series of cases that have been decided by this Court. In State of Bombay v. Bhanji Munji AIR 1955 SC 41, (1955) 1 SCR 777 relying on the ratio of Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 it was held that Article 31 was independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248, (1970) 3 SCR 530 (popularly known as Bank Nationalisation case) that the viewpoint of Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 was seriously disapproved. While rendering this decision, the focus of the Court was on the actual impairment caused by the law, rather than the literal validity of the law. This view was reflective of the decision taken in Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305, (1962) 3 SCR 842 where the Court was faced with the validity of certain legislative measures regarding the control of newspapers and whether it amounted to infringement of Article 19(1)(a). While examining this question the Court stated that the actual effect of the law on the right guaranteed must be taken into account. This ratio was applied in Bank Nationalisation case (1970) 1 SCC 248, (1970) 3 SCR 530. The Court examined the relation between Article 19(1)(f) and Article 13 and held that they were not mutually exclusive. The ratio of Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 was not approved.

57. View taken in Bank Nationalisation case (1970) 1 SCC 248, (1970) 3 SCR 530 has been reiterated in number of cases (see Sambhu Nath Sarkar v. State of W.B (1973) 1 SCC 856, (1974) 1 SCR 1, Haradhan Saha v. State of W.B (1975) 3 SCC 198, (1975) 1 SCR 778 and Khudiram Das v. State of W.B (1975) 2 SCC 81, (1975) 2 SCR 832 and finally the landmark judgment in Maneka Gandhi (1978) 1 SCC 248). Relying upon Cooper case (1970) 1 SCC 248, (1970) 3 SCR 530 it was said that Articles 19(1) and 21 are not mutually exclusive. The Court observed in Maneka Gandhi case (1978) 1 SCC 248:

“The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R.C Cooper case (1970) 1 SCC 248, (1970) 3 SCR 530, Sambhu Nath Sarkar case (1973) 1 SCC 856, (1974) 1 SCR 1 and Haradhan Saha case (1975) 3 SCC 198, (1975) 1 SCR 778. Now, if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A.K Gopalan case AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 that Article 21 ‘presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for’, including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, State of W.B v. Anwar Ali Sarkar AIR 1952 SC 75, 1952 SCR 284, 1952 Cri LJ 510 and Kathi Raning Rawat v. State of Saurashtra AIR 1952 SC 123, 1952 SCR 435, 1952 Cri LJ 805….”

(emphasis supplied)

58. The decision also stressed on the application of Article 14 to a law under Article 21 and stated that even principles of natural justice be incorporated in such a test. It was held:

“ ‘… In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.’ Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21.”

(emphasis supplied)

59. The above position was also reiterated by Krishna Iyer, J., as follows:

“The Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 verdict, with the cocooning of Article 22 into a self-contained code, has suffered supersession at the hands of R.C Cooper (1970) 1 SCC 248, (1970) 3 SCR 530. By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietarist have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of subconscious forces in judicial noesis when the cycloramic review starts from Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383, moves on to Kerala Education Bill, 1957, In re AIR 1958 SC 956 and then on to All India Bank Employees' Assn. AIR 1962 SC 171, next to Sakal Papers AIR 1962 SC 305, (1962) 3 SCR 842, crowning in Cooper (1970) 1 SCC 248, (1970) 3 SCR 530 and followed by Bennett Coleman (1972) 2 SCC 788 and Sambhu Nath Sarkar (1973) 1 SCC 856, (1974) 1 SCR 1. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.”

(emphasis supplied)

60. It is evident that it can no longer be contended that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by State authorities. Thus post-Maneka Gandhi case (1978) 1 SCC 248 it is clear that the development of fundamental rights has been such that it no longer involves the interpretation of rights as isolated protections which directly arise but they collectively form a comprehensive test against the arbitrary exercise of State power in any area that occurs as an inevitable consequence. The protection of fundamental rights has, therefore, been considerably widened.

61. The approach in the interpretation of fundamental rights has been evidenced in a recent case M. Nagaraj v. Union of India (2006) 8 SCC 212 in which the Court noted:

“20. This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part III as a fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 305, (1962) 3 SCR 842 this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in A.K Gopalan v. State of Madras AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that ‘procedure established by law’ means any procedure established by law made by Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K Gopalan AIR 1950 SC 27, 1950 SCR 88, 1950 Cri LJ 1383 and held in its landmark judgment in Maneka Gandhi v. Union of India (1978) 1 SCC 248 that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ‘life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part III on the principle that certain unarticulated rights are implicit in the enumerated guarantees.”

(emphasis supplied)

62. The abrogation or abridgment of the fundamental rights under Chapter III have, therefore, to be examined on broad interpretation, the narrow interpretation of fundamental rights chapter is a thing of past. Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure.

Separation of powers

63. The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati case (1973) 4 SCC 225 by the majority. Later, it was reiterated in Indira Gandhi case 1975 Supp SCC 1. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.

64. In fact, it was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In The Federalist Nos. 47, 48, and 51, James Madison details how a separation of powers preserves liberty and prevents tyranny. In The Federalist No. 47, Madison discusses Montesquieu's treatment of the separation of powers in Spirit of Laws, (Book XI, Chapter 6). There Montesquieu writes,

“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty … Again, there is no liberty, if the judicial power be not separated from the legislative and executive.”

Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of Government should not be entirely in the hands of another department of Government.

65. Alexander Hamilton in The Federalist No. 78, remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” (434)

66. Montesquieu finds that tyranny pervades when there is no separation of powers:

“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

67. The Supreme Court has long held that the separation of powers is part of the basic structure of the Constitution. Even before the basic structure doctrine became part of constitutional law, the importance of the separation of powers on our system of governance was recognised by this Court in Special Reference No. 1 of 1964 AIR 1965 SC 745, (1965) 1 SCR 413.

Contentions

68. In the light of aforesaid developments, the main thrust of the argument of the petitioners is that post-1973, it is impermissible to immunise Ninth Schedule laws from judicial review by making Part III inapplicable to such laws. Such a course, it is contended, is incompatible with the doctrine of basic structure. The existence of power to confer absolute immunity is not compatible with the implied limitation upon the power of amendment in Article 368, is the thrust of the contention.

69. Further, relying upon the clarification of Khanna, J., as given in Indira Gandhi case 1975 Supp SCC 1 in respect of his opinion in Kesavananda Bharati case (1973) 4 SCC 225 it is no longer correct to say that fundamental rights are not included in the basic structure. Therefore, the contention proceeds that since fundamental rights form a part of basic structure thus laws inserted into the Ninth Schedule when tested on the ground of basic structure shall have to be examined on the fundamental rights test.

70. The key question, however, is whether the basic structure test would include judicial review of the Ninth Schedule laws on the touchstone of fundamental rights. Thus, it is necessary to examine what exactly is the content of the basic structure test. According to the petitioners, the consequence of the evolution of the principles of basic structure is that the Ninth Schedule laws cannot be conferred with constitutional immunity of the kind created by Article 31-B. Assuming that such immunity can be conferred, its constitutional validity would have to be adjudged by applying the direct impact and effect test which means the form of an amendment is not relevant, its consequence would be determinative factor.

71. The power to make any law at will that transgresses Part III in its entirety would be incompatible with the basic structure of the Constitution. The consequence also is, learned counsel for the petitioners contended, to emasculate Article 32 (which is part of fundamental rights chapter) in its entirety—if the rights themselves (including the principle of rule of law encapsulated in Article 14) are put out of the way, the remedy under Article 32 would be meaningless. In fact, by the exclusion of Part III, Article 32 would stand abrogated qua the Ninth Schedule laws. The contention is that the abrogation of Article 32 would be per se violative of the basic structure. It is also submitted that the constituent power under Article 368 does not include judicial power and that the power to establish judicial remedies which is compatible with the basic structure is qualitatively different from the power to exercise judicial power. The impact is that on the one hand the power under Article 32 is removed and, on the other hand, the said power is exercised by the legislature itself by declaring, in a way, the Ninth Schedule laws as valid.

72. On the other hand, the contention urged on behalf of the respondents is that the validity of the Ninth Schedule legislations can only be tested on the touchstone of basic structure doctrine as decided by the majority in Kesavananda Bharati case (1973) 4 SCC 225 which also upheld the 29th Constitution Amendment unconditionally and thus there can be no question of judicial review of such legislations on the ground of violation of fundamental rights chapter. The fundamental rights chapter, it is contended, stands excluded as a result of protective umbrella provided by Article 31-B and, therefore, the challenge can only be based on the ground of basic structure doctrine and in addition, legislation can further be tested for (i) lack of legislative competence, and (ii) violation of other constitutional provisions. This would also show, counsel for the respondents argued, that there is no exclusion of judicial review and consequently, there is no violation of the basic structure doctrine.

73. Further, it was contended that the constitutional device for retrospective validation of laws was well known and it is legally permissible to pass laws to remove the basis of the decisions of the Court and consequently, nullify the effect of the decision. It was submitted that Article 31-B and the amendments by which legislations are added to the Ninth Schedule form such a device, which “cure the defect” of legislation.

74. The respondents contend that the point in issue is covered by the majority judgment in Kesavananda Bharati case (1973) 4 SCC 225. According to that view, Article 31-B or the Ninth Schedule is a permissible constitutional device to provide a protective umbrella to the Ninth Schedule laws. The distinction is sought to be drawn between the necessity for the judiciary in a written Constitution and judicial review by the judiciary. Whereas the existence of judiciary is part of the basic framework of the Constitution and cannot be abrogated in exercise of constituent power of Parliament under Article 368, the power of judicial review of the judiciary can be curtailed over certain matters. The contention is that there is no judicial review in absolute terms and Article 31-B only restricts that judicial review power. It is contended that after the doctrine of basic structure which came to be established in Kesavananda Bharati case (1973) 4 SCC 225 it is only that kind of judicial review whose elimination would destroy or damage the basic structure of the Constitution that is beyond the constituent power. However, in every case where the constituent power excludes judicial review, the basic structure of the Constitution is not abrogated. The question to be asked in each case is, does the particular exclusion alter the basic structure. Giving immunity of Part III to the Ninth Schedule laws from judicial review, does not abrogate judicial review from the Constitution. Judicial review remains with the Court but with its exclusion over the Ninth Schedule laws to which Part III ceases to apply. The effect of placing a law in the Ninth Schedule is that it removes the fetter of Part III by virtue of Article 31-B but that does not oust the court's jurisdiction. It was further contended that Khanna, J. in Kesavananda Bharati case (1973) 4 SCC 225 held that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and will include within itself the power to add, alter or repeal various articles including taking away or abridging fundamental rights and that the power to amend the fundamental rights cannot be denied by describing them as natural rights. The contention is that the majority in Kesavananda Bharati case (1973) 4 SCC 225 held that there is no embargo with regard to amending any of the fundamental rights in Part III subject to the basic structure theory and, therefore, the petitioners are not right in the contention that in the said case the majority held that the fundamental rights form part of the basic structure and cannot be amended. The further contention is that if fundamental rights can be amended, which is the effect of Kesavananda Bharati case (1973) 4 SCC 225 overruling Golak Nath case AIR 1967 SC 1643, (1967) 2 SCR 762, then fundamental rights cannot be said to be part of the basic structure unless the nature of the amendment is such which destroys the nature and character of the Constitution. It is contended that the test for judicially reviewing the Ninth Schedule laws cannot be on the basis of mere infringement of the rights guaranteed under Part III of the Constitution. The correct test is whether such laws damage or destroy that part of fundamental rights which form part of the basic structure. Thus, it is contended that judicial review of the Ninth Schedule laws is not completely barred. The only area where such laws get immunity is from the infraction of rights guaranteed under Part III of the Constitution.

75. To begin with, we find it difficult to accept the broad proposition urged by the petitioners that laws that have been found by the courts to be violative of Part III of the Constitution cannot be protected by placing the same in the Ninth Schedule by use of device of Article 31-B read with Article 368 of the Constitution. In Kesavananda Bharati case (1973) 4 SCC 225 the majority opinion upheld the validity of the Kerala Act which had been set aside in Kunjukutty Sahib v. State of Kerala (1972) 2 SCC 364 and the device used was that of the Ninth Schedule. After a law is placed in the Ninth Schedule, its validity has to be tested on the touchstone of basic structure doctrine. In State of Maharashtra v. Man Singh Suraj Singh Padvi (1978) 1 SCC 615 a seven-Judge Constitution Bench, post-decision in Kesavananda Bharati case (1973) 4 SCC 225 upheld the Constitution (Fortieth Amendment) Act, 1976 which was introduced when the appeal was pending in the Supreme Court and thereby included the regulations in the Ninth Schedule. It was held that Article 31-B and the Ninth Schedule cured the defect, if any, in the regulations as regards any unconstitutionality alleged on the ground of infringement of fundamental rights.

76. It is also contended that the power to pack up laws in the Ninth Schedule in absence of any indicia in Article 31-B has been abused and that abuse is likely to continue. It is submitted that the Ninth Schedule which commenced with only 13 enactments has now a list of 284 enactments. The validity of Article 31-B is not in question before us. Further, mere possibility of abuse is not a relevant test to determine the validity of a provision. The people, through the Constitution, have vested the power to make laws in their representatives through Parliament in the same manner in which they have entrusted the responsibility to adjudge, interpret and construe law and the Constitution including its limitation in the judiciary. We, therefore, cannot make any assumption about the alleged abuse of the power.

Validity of Article 31-B

77. There was some controversy on the question whether validity of Article 31-B was under challenge or not in Kesavananda Bharati (1973) 4 SCC 225. On this aspect, Chandrachud, C.J has say to this in Waman Rao (1981) 2 SCC 362:

“In Sajjan Singh v. State of Rajasthan AIR 1965 SC 845, (1965) 1 SCR 933 the Court refused to reconsider the decision in Sankari Prasad AIR 1951 SC 458, 1952 SCR 89 with the result that the validity of the 1st Amendment remained unshaken. In Golak Nath AIR 1967 SC 1643, (1967) 2 SCR 762, it was held by a majority of 6 : 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368. But the Court resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already made would be left undisturbed and that its decision will govern the future amendments only. As a result, the 1st Amendment by which Articles 31-A and 31-B were introduced remained inviolate. It is trite knowledge that Golak Nath AIR 1967 SC 1643, (1967) 2 SCR 762 was overruled in Kesavananda Bharati (1973) 4 SCC 225 in which it was held unanimously that the power to amend the Constitution was to be found in Article 368 of the Constitution. The petitioners produced before us a copy of the civil miscellaneous petition which was filed in Kesavananda Bharati (1973) 4 SCC 225 by which the reliefs originally asked for were modified. It appears therefrom that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution. The validity of the 1st Amendment was not questioned. Khanna, J., however, held while dealing with the validity of the unamended Article 31-C that the validity of Article 31-A was upheld in Sankari Prasad AIR 1951 SC 458, 1952 SCR 89 that its validity could not be any longer questioned because of the principle of stare decisis and that the ground on which the validity of Article 31-A was sustained will be available equally for sustaining the validity of the first part of Article 31-C (p. 744).”

78. We have examined various opinions in Kesavananda Bharati case (1973) 4 SCC 225 but are unable to accept the contention that Article 31-B read with the Ninth Schedule was held to be constitutionally valid in that case. The validity thereof was not in question. The constitutional amendments under challenge in Kesavananda Bharati case (1973) 4 SCC 225 were examined assuming the constitutional validity of Article 31-B. Its validity was not in issue in that case. Be that as it may, we will assume Article 31-B as valid. The validity of the 1st Amendment inserting in the Constitution, Article 31-B is not in challenge before us.

Point in issue

79. The real crux of the problem is as to the extent and nature of immunity that Article 31-B can validly provide. To decide this intricate issue, it is first necessary to examine in some detail the judgment in Kesavananda Bharati case (1973) 4 SCC 225 particularly with reference to the 29th Amendment.

Kesavananda Bharati case (1973) 4 SCC 225

80. The contention urged on behalf of the respondents that all the Judges, except Sikri, C.J, in Kesavananda Bharati case (1973) 4 SCC 225 held that the 29th Amendment was valid and applied Jeejeebhoy case AIR 1965 SC 1096 is not based on correct ratio of Kesavananda Bharati case (1973) 4 SCC 225. Six learned Judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.) who upheld the validity of 29th Amendment did not subscribe to the basic structure doctrine. The other six learned Judges (Sikri, C.J, Shelat, Grover, Hegde, Mukherjea and Reddy, JJ.) upheld the 29th Amendment subject to it passing the test of basic structure doctrine. The 13th learned Judge (Khanna, J.), though subscribed to basic structure doctrine, upheld the 29th Amendment agreeing with six learned Judges who did not subscribe to the basic structure doctrine. Therefore, it would not be correct to assume that all Judges or Judges in majority on the issue of basic structure doctrine upheld the validity of 29th Amendment unconditionally or were alive to the consequences of basic structure doctrine on 29th Amendment.

81. Six learned Judges otherwise forming the majority, held 29th Amendment valid only if the legislation added to the Ninth Schedule did not violate the basic structure of the Constitution. The remaining six who are in minority in Kesavananda Bharati case (1973) 4 SCC 225 insofar as it relates to laying down the doctrine of basic structure, held 29th Amendment unconditionally valid.

82. While laying the foundation of basic structure doctrine to test the amending power of the Constitution, Khanna, J. opined that the fundamental rights could be amended, abrogated or abridged so long as the basic structure of the Constitution is not destroyed but at the same time, upheld the 29th Amendment as unconditionally valid. Thus, it cannot be inferred from the conclusion of the seven Judges upholding unconditionally the validity of 29th Amendment that the majority opinion held fundamental rights chapter as not part of the basic structure doctrine. The six Judges who held the 29th Amendment unconditionally valid did not subscribe to the doctrine of basic structure. The other six held 29th Amendment valid subject to it passing the test of basic structure doctrine.

83. Khanna, J. upheld the 29th Amendment in the following terms: (Kesavananda Bharati case (1973) 4 SCC 225)

“1536. We may now deal with the Constitution (Twenty-ninth Amendment) Act. This Act, as mentioned earlier, inserted Kerala Act 35 of 1969 and Kerala Act 25 of 1971 as Entries 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the Constitution (Twenty-ninth Amendment) Act.”

84. In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J. held as follows: (Kesavananda Bharati case (1973) 4 SCC 225)

“1537. (xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid.”

85. Thus, while upholding the Twenty-ninth Amendment, there was no mention of the test that is to be applied to the legislations inserted in the Ninth Schedule. The implication that the respondents seek to draw from the above is that this amounts to an unconditional upholding of the legislations in the Ninth Schedule.

86. They have also relied on observations by Ray, C.J, as quoted below, in Indira Gandhi 1975 Supp SCC 1. In that case, Ray, C.J observed:

“152. The Constitution (Twenty-ninth Amendment) Act was considered by this Court in Kesavananda Bharati case (1973) 4 SCC 225. The Twenty-ninth Amendment Act inserted in the Ninth Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the Twenty-ninth Amendment Act. … The view of seven Judges in Kesavananda Bharati case (1973) 4 SCC 225 is that Article 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati case (1973) 4 SCC 225 by majority of seven against six Judges.

153. … Second, the majority view in Kesavananda Bharati case (1973) 4 SCC 225 is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights.”

(emphasis supplied)

87. The respondents have particularly relied on the aforesaid highlighted portions.

88. On the issue of how the 29th Amendment in Kesavananda Bharati case (1973) 4 SCC 225 was decided, in Minerva Mills (1980) 3 SCC 625, Bhagwati, J. has said thus:

“The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case (1973) 4 SCC 225, but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, J. (as he then was), it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case AIR 1951 SC 458, 1952 SCR 89 and Sajjan Singh case AIR 1965 SC 845, (1965) 1 SCR 933 and were accepted as valid in Golak Nath case AIR 1967 SC 1643, (1967) 2 SCR 762 and the Twenty-ninth Amendment Act was also held valid in Kesavananda Bharati case (1973) 4 SCC 225, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31-A with the possible exception of only four Acts referred to above, I do not think, we would be justified in reopening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati case (1973) 4 SCC 225 would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power.”

89. To us, it seems that the position is correctly reflected in the aforesaid observations of Bhagwati, J. and with respect we feel that Ray, C.J is not correct in the conclusion that the 29th Amendment was unanimously upheld. Since the majority which propounded the basic structure doctrine did not unconditionally uphold the validity of the 29th Amendment and six learned Judges forming the majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic structure doctrine, the factum of validity of the 29th Amendment in Kesavananda Bharati case (1973) 4 SCC 225 is not conclusive of matters under consideration before us.

90. In order to understand the view of Khanna, J. in Kesavananda Bharati (1973) 4 SCC 225, it is important to take into account his later clarification. In Indira Gandhi 1975 Supp SCC 1 Khanna, J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed as follows:( & 116, paras 251 & 252)

“251. There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati case (1973) 4 SCC 225 that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution. …

252. … The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution.”

91. Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna, J. in Kesavananda Bharati (1973) 4 SCC 225 so as to exclude fundamental rights from the purview of the basic structure. The import of this observation is significant in the light of the amendment that he earlier upheld. It is true that if the fundamental rights were never a part of the basic structure, it would be consistent with an unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a part of the basic structure, any amendment having an impact on fundamental rights would necessarily have to be examined in that light. Thus, the fact that Khanna, J. held that some of the fundamental rights were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth Amendment and the validity of the Twenty-ninth Amendment must necessarily be viewed in that light. His clarification demonstrates that he was not of the opinion that all the fundamental rights were not part of the basic structure and the inevitable conclusion is that the Twenty-ninth Amendment, even if treated as unconditionally valid, is of no consequence on the point in issue in view of peculiar position as to majority abovenoted.

92. Such an analysis is supported by Seervai, in his book Constitutional Law of India (4th Edn., Vol. III), as follows: (para 30.65, pp. 3150-51)

“Although in his judgment in Election case 1975 Supp SCC 1, Khanna, J. clarified his judgment in Kesavananda case (1973) 4 SCC 225, that clarification raised a serious problem of its own. The problem was: in view of the clarification, was Khanna, J. right in holding that Article 31-B and Schedule IX were unconditionally valid? Could he do so after he had held that the basic structure of the Constitution could not be amended? As we have seen, that problem was solved in Minerva Mills case (1980) 3 SCC 625 by holding that Acts inserted in Schedule IX after 25-4-1973 were not unconditionally valid, but would have to stand the test of fundamental rights. (para 30.48, p. 3138)

But while the clarification in Election case 1975 Supp SCC 1 simplifies one problem—the scope of the amending power—it raises complicated problems of its own. Was Khanna, J. right in holding Article 31-B (and Schedule IX) unconditionally valid by holding the 29th Amendment unconditionally valid? And was he right when he held the substantive part of Article 31-C unconditionally valid? An answer to these questions requires an analysis of the function of Article 31-B and Schedule IX …. Taking Article 31-B and Schedule IX first, their effect is to confer validity on laws already enacted which would be void for violating one or more of the fundamental rights conferred by Part III (fundamental rights). … But if the power of amendment is limited by the doctrine of the basic structure, a grave problem immediately arises. … The thing to note is that though such Acts do not become a part of the Constitution, by being included in Schedule IX they owe their validity to the exercise of the amending power. Can Acts, which destroy the secular character of the State, be given validity and be permitted to destroy a part of the basic structure as a result of the exercise of the amending power? That, in the last analysis, is the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there can be only one answer. If Parliament, exercising constituent power cannot enact an amendment destroying the secular character of the State, neither can Parliament, exercising its constituent power, permit Parliament or the State Legislatures to produce the same result by protecting laws, enacted in the exercise of legislative power, which produce the same result. To hold otherwise would be to abandon the doctrine of the basic structure in respect of fundamental rights, for every part of that basic structure can be destroyed by first enacting laws which produce that effect, and then protecting them by inclusion in Schedule IX. Such a result is consistent with the view that fundamental rights are not part of the basic structure; it is wholly inconsistent with the view that some fundamental rights are a part of the basic structure, as Khanna, J. said in his clarification. … In other words, the validity of the 25th and 29th Amendments raised the question of applying the law laid down as to the scope of the amending power when determining the validity of the 24th Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly applied. Therefore the conflict between Khanna, J.'s views on the amending power and on the unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Article 31-B and Schedule IX unconditionally valid …. Consistently with his view that some fundamental rights were part of the basic structure, he ought to have joined the 6 other Judges in holding that the 29th Amendment was valid, but the Acts included in Schedule IX would have to be scrutinised by the Constitution Bench to see whether they destroyed or damaged any part of the basic structure of the Constitution, and if they did, such laws would not be protected.”

(portion in italics is emphasis in original, portion underlined is emphasis supplied herein)

93. The decision in Kesavananda Bharati (1973) 4 SCC 225 regarding the Twenty-ninth Amendment is restricted to that particular amendment and no principle flows therefrom.

94. We are unable to accept the contention urged on behalf of the respondents that in Waman Rao case (1981) 2 SCC 362 Chandrachud, J., and in Minerva Mills case (1980) 3 SCC 625 Bhagwati, J. have not considered the binding effect of majority judgments in Kesavananda Bharati case (1973) 4 SCC 225. In these decisions, the development of law post-Kesavananda Bharati case (1973) 4 SCC 225 has been considered. The conclusion has rightly been reached, also having regard to the decision in Indira Gandhi case 1975 Supp SCC 1 that post-Kesavananda Bharati case (1973) 4 SCC 225 or after 24-4-1973, the Ninth Schedule laws will not have the full protection. The doctrine of basic structure was involved in Kesavananda Bharati case (1973) 4 SCC 225 but its effect, impact and working was examined in Indira Gandhi case 1975 Supp SCC 1, Waman Rao case (1981) 2 SCC 362 and Minerva Mills case (1980) 3 SCC 625. To say that these judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati case (1973) 4 SCC 225 is not based on a correct reading of Kesavananda Bharati (1973) 4 SCC 225.

95. On the issue of equality, we do not find any contradiction or inconsistency in the views expressed by Chandrachud, J. in Indira Gandhi case 1975 Supp SCC 1, by Krishna Iyer, J. in Bhim Singh case (1981) 1 SCC 166 and Bhagwati, J. in Minerva Mills case (1980) 3 SCC 625. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of the basic structure of the Constitution.

96. Next, we examine the extent of immunity that is provided by Article 31-B. The principle that constitutional amendments which violate the basic structure doctrine are liable to be struck down will also apply to amendments made to add laws in the Ninth Schedule is the view expressed by Sikri, C.J Substantially similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. In the four different opinions six learned Judges came substantially to the same conclusion. These Judges read an implied limitation on the power of Parliament to amend the Constitution. Khanna, J. also opined that there was implied limitation in the shape of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld the 29th Amendment and did not say, like the remaining six Judges, that the Twenty-ninth Amendment will have to be examined by a smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Khanna, J. however, does not so say in Kesavananda Bharati case (1973) 4 SCC 225. Therefore, Kesavananda Bharati case (1973) 4 SCC 225 cannot be said to have held that fundamental rights chapter is not part of basic structure. Khanna, J. while considering the Twenty-ninth Amendment, had obviously in view the laws that had been placed in the Ninth Schedule by the said amendment related to the agrarian reforms. Khanna, J. did not want to elevate the right to property under Article 19(1)(f) to the level and status of basic structure or basic framework of the Constitution, that explains the ratio of Kesavananda Bharati case (1973) 4 SCC 225. Further, doubt, if any, as to the opinion of Khanna, J. stood resolved on the clarification given in Indira Gandhi case 1975 Supp SCC 1 by the learned Judge that in Kesavananda Bharati case (1973) 4 SCC 225 he never held that fundamental rights are not a part of the basic structure or framework of the Constitution.

97. The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant article, but subject to limitation of the doctrine of basic structure. True, it may reduce the efficacy of Article 31-B but that is inevitable in view of the progress the laws have made post-Kesavananda Bharati case (1973) 4 SCC 225 which has limited the power of Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to the doctrine of basic structure.

98. To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each exercise of the amending power inserting laws into the Ninth Schedule entails a complete removal of the fundamental rights chapter vis-à-vis the laws that are added in the Ninth Schedule. Secondly, insertion in the Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. It means an unlimited power to totally nullify Part III insofar as the Ninth Schedule legislations are concerned. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ viz. the judiciary.

99. While examining the validity of Article 31-C in Kesavananda Bharati case (1973) 4 SCC 225 it was held that the vesting of power of the exclusion of judicial review in a legislature including a State Legislature, strikes at the basic structure of the Constitution. It is on this ground that second part of Article 31-C was held to be beyond the permissible limits of power of amendment of the Constitution under Article 368.

100. If the doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no doubt and it has to be so accepted that Part III of the Constitution has a key role to play in the application of the said doctrine.

101. Regarding the status and stature in respect of fundamental rights in constitutional scheme, it is to be remembered that fundamental rights are those rights of citizens or those negative obligations of the State which do not permit encroachment on individual liberties. The State is to deny no one equality before the law. The object of the fundamental rights is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. By enacting fundamental rights and directive principles which are negative and positive obligations of the States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental rights and directive principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.

102. Fundamental rights enshrined in Part III were added to the Constitution as a check on the State power, particularly the legislative power. Through Article 13, it is provided that the State cannot make any laws that are contrary to Part III. The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon them. That wall is the “basic structure” doctrine. Under Article 32, which is also part of Part III, the Supreme Court has been vested with the power to ensure compliance with Part III. The responsibility to judge the constitutionality of all laws is that of judiciary. Thus, when power under Article 31-B is exercised, the legislations made completely immune from Part III results in a direct way out of the check of Part III, including that of Article 32. It cannot be said that the same Constitution that provides for a check on legislative power, will decide whether such a check is necessary or not. It would be a negation of the Constitution. In Waman Rao case (1981) 2 SCC 362 while discussing the application of basic structure doctrine to the first amendment, it was observed that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original; you cannot by an amendment transform the original into opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law.

103. Indeed, if Article 31-B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.

104. It is also contended for the respondents that Article 31-A excludes judicial review of certain laws from the applications of Articles 14 and 19 and that Article 31-A has been held to be not violative of the basic structure. The contention, therefore, is that exclusion of judicial review would not make the Ninth Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power which the legislature will come to possess. Article 31-A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from judicial review. Likewise, Article 31-C applies as a yardstick the criteria of sub-clauses (b) and (c) of Article 39 which refers to equitable distribution of resources.

105. The fundamental rights have always enjoyed a special and privileged place in the Constitution. Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism, etc. As held in Nagaraj (2006) 8 SCC 212 egalitarian equality exists in Article 14 read with Articles 16(4), (4-A), (4-B) and, therefore, it is wrong to suggest that equity and justice finds place only in the directive principles.

106. Parliament has power to amend the provisions of Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the impact of such amendment results in violation of basic structure has to be examined with reference to each individual case. Take the example of freedom of press which, though not separately and specifically guaranteed, has been read as part of Article 19(1)(a). If Article 19(1)(a) is sought to be amended so as to abrogate such right (which we hope will never be done), the acceptance of the respondent's contention would mean that such amendment would fall outside the judicial scrutiny when the law curtailing these rights is placed in the Ninth Schedule as a result of immunity granted by Article 31-B. The impact of such an amendment shall have to be tested on the touchstone of rights and freedoms guaranteed by Part III of the Constitution. In a given case, even abridgement may destroy the real freedom of the press and, thus, be destructive of the basic structure. Take another example. The secular character of our Constitution is a matter of conclusion to be drawn from various articles conferring fundamental rights; and if the secular character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part III stands either for a principle or a matter of detail. Therefore, one has to take a synoptic view of the various articles in Part III while judging the impact of the laws incorporated in the Ninth Schedule on the articles in Part III. It is not necessary to multiply the illustrations.

107. After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. Khanna, J. in Kesavananda Bharati case (1973) 4 SCC 225 was considering the right to property and it is in that context it was said that no article of the Constitution is immune from the amendatory process. We may recall what Khanna, J. said while dealing with the words “amendment of the Constitution”. His Lordship said that these words with all the wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. The opinion of Khanna, J. in Indira Gandhi 1975 Supp SCC 1 clearly indicates that the view in Kesavananda Bharati case (1973) 4 SCC 225 is that at least some fundamental rights do form part of the basic structure of the Constitution. Detailed discussion in Kesavananda Bharati case (1973) 4 SCC 225 to demonstrate that the right to property was not part of the basic structure of the Constitution by itself shows that some of the fundamental rights are part of the basic structure of the Constitution. The placement of a right in the scheme of the Constitution, the impact of the offending law on that right, the effect of the exclusion of that right from judicial review, the abrogation of the principle or the essence of that right is an exercise which cannot be denied on the basis of fictional immunity under Article 31-B.

108. In Indira Gandhi case 1975 Supp SCC 1 Chandrachud, J. posits that equality embodied in Article 14 is part of the basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our Constitution.

109. Dealing with Articles 14, 19 and 21 in Minerva Mills case (1980) 3 SCC 625 it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated. It was observed that three articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. These articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament's will without any standard, cannot be subjected to judicial scrutiny as a result of the bar created by Article 31-B? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or on the ground that Part III provisions are not available as a result of immunity granted by Article 31-B. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati case (1973) 4 SCC 225 clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case 1975 Supp SCC 1.

110. The history of the emergence of modern democracy has also been the history of securing basic rights for the people of other nations also. In the United States the Constitution was finally ratified only upon an understanding that a Bill of Rights would be immediately added guaranteeing certain basic freedoms to its citizens. At about the same time when the Bill of Rights was being ratified in America, the French Revolution declared the Rights of Man to Europe. When the death of colonialism and the end of World War II birthed new nations across the globe, these States embraced rights as foundations to their new Constitutions. Similarly, the rapid increase in the creation of Constitutions that coincided with the end of the Cold War has planted rights at the base of these documents.

111. Even countries that have long respected and upheld rights, but whose governance traditions did not include their constitutional affirmation have recently felt they could no longer leave their deep commitment to rights, left unstated. In 1998, the United Kingdom adopted the Human Rights Act which gave explicit effect to the European Convention on Human Rights. In Canada, “the Constitution Act of 1982” enshrined certain basic rights into their system of governance. Certain fundamental rights, and the principles that underlie them, are foundational not only to the Indian democracy, but democracies around the world. Throughout the world nations have declared that certain provisions or principles in their constitutions are inviolable.

112. Our Constitution will almost certainly continue to be amended as India grows and changes. However, a democratic India will not grow out of the need for protecting the principles behind our fundamental rights.

113. Other countries having controlled constitutions, like Germany, have embraced the idea that there is a basic structure to their constitutions and in doing so have entrenched various rights as core constitutional commitments. India's constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution.

114. The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of the basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case.

115. We may also recall the observations made in Special Reference No. 1 of 1964 AIR 1965 SC 745, (1965) 1 SCR 413 as follows: (AIR p. 763, para 42)

“[W]hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and their functions are normally confined to legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the judicature of this country;”

(emphasis supplied)

116. We are of the view that while laws may be added to the Ninth Schedule, once Article 32 is triggered, these legislations must answer to the complete test of fundamental rights. Every insertion into the Ninth Schedule does not restrict Part III review, it completely excludes Part III at will. For this reason, every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III.

Extent of judicial review in the context of amendments to the Ninth Schedule

117. We are considering the question as to the extent of judicial review permissible in respect of the Ninth Schedule laws in the light of the basic structure theory propounded in Kesavananda Bharati case (1973) 4 SCC 225. In this connection, it is necessary to examine the nature of the constituent power exercised in amending a Constitution.

118. We have earlier noted that the power to amend cannot be equated with the power to frame the Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The latter (sic former) power, however, is derived from the former (sic latter). It has constraints of the document viz. Constitution which creates it. This derivative power can be exercised within the four corners of what has been conferred on the body constituted, namely, Parliament. The question before us is not about power to amend Part III after 24-4-1973. As per Kesavananda Bharati (1973) 4 SCC 225 power to amend exists in Parliament but it is subject to the limitation of doctrine of basic structure. The fact of validation of laws based on exercise of blanket immunity eliminates Part III in entirety hence the “rights test” as part of the basic structure doctrine has to apply.

119. In Kesavananda Bharati case (1973) 4 SCC 225 the majority held that the power of amendment of the Constitution under Article 368 did not enable Parliament to alter the basic structure of the Constitution.

120. Kesavananda Bharati case (1973) 4 SCC 225 laid down a principle as an axiom which was examined and worked out in Indira Gandhi case 1975 Supp SCC 1, Minerva Mills (1980) 3 SCC 625, Waman Rao (1981) 2 SCC 362 and Bhim Singhji (1981) 1 SCC 166.

121. As already stated, in Indira Gandhi case 1975 Supp SCC 1 for the first time, the constitutional amendment that was challenged did not relate to property right but related to free and fair election. As is evident from what is stated above that the power of amending the Constitution is a species of law-making power which is the genus. It is a different kind of law-making power conferred by the Constitution. It is different from the power to frame the Constitution i.e a plenary law-making power as described by Seervai in Constitutional Law of India (4th Edn.).

122. The scope and content of the words “constituent power” expressly stated in the amended Article 368 came up for consideration in Indira Gandhi case 1975 Supp SCC 1. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled Constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19. (See also Minerva Mills case (1980) 3 SCC 625.)

123. It is Kesavananda Bharati case (1973) 4 SCC 225 read with clarification of Khanna, J. in Indira Gandhi case 1975 Supp SCC 1 which takes us one step forward, namely, that fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read with Articles 16(4), (4-A), (4-B), etc. Bharati (1973) 4 SCC 225 and Indira Gandhi 1975 Supp SCC 1 cases have to be read together and if so read the position in law is that the basic structure as reflected in the above articles provide a test to judge the validity of the amendment by which laws are included in the Ninth Schedule.

124. Since power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void. That is why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It would show that it is impermissible to destroy Articles 14 and 15 or abrogate or en bloc eliminate these fundamental rights. To further illustrate the point, it may be noted that Parliament can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure.

125. The question can be looked at from yet another angle also. Can Parliament increase the amending power by amendment of Article 368 to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in Parliament. It cannot lift all restrictions placed on the amending power or free the amending power from all its restrictions. This is the effect of the decision in Kesavananda Bharati case (1973) 4 SCC 225 as a result of which secularism, separation of power, equality, etc., to cite a few examples, would fall beyond the constituent power in the sense that the constituent power cannot abrogate these fundamentals of the Constitution. Without equality the rule of law, secularism, etc. would fail. That is why Khanna, J. held that some of the fundamental rights like Article 15 form part of the basic structure.

126. If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31-B cannot be so used as to confer unlimited power. Article 31-B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the power of amendment. This limit came with Kesavananda Bharati case (1973) 4 SCC 225. Therefore Article 31-B after 24-4-1973 despite its wide language cannot confer unlimited or unregulated immunity.

127. To legislatively override entire Part III of the Constitution by invoking Article 31-B would not only make the fundamental rights overridden by directive principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review which are the basic features of the Constitution and essential elements of rule of law and that too without any yardstick/standard being provided under Article 31-B.

128. Further, it would be incorrect to assume that social content exists only in directive principles and not in the fundamental rights. Articles 15 and 16 are facets of Article 14. Article 16(1) concerns formal equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality. Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when excessiveness is detected in grant of protective discrimination. Article 15(1) limits the rights of the State by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc. and yet it permits classification for certain classes, hence social content exists in fundamental rights as well. All these are relevant considerations to test the validity of the Ninth Schedule laws.

129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.

130. Realising that it is necessary to secure the enforcement of the fundamental rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality, which is a part of the basic structure, can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure—rule of law, separation of powers—the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure.

131. On behalf of the respondents, reliance has been placed on the decision of a nine-Judge Constitution Bench in Attorney General for India v. Amratlal Prajivandas (1994) 5 SCC 54 to submit that argument of a violation of Article 14 being equally violative of basic structure or Articles 19 and 21 representing the basic structure of the Constitution has been rejected. Para 20 referred to by learned counsel for the respondent reads as under:

“20. Before entering upon discussion of the issues arising herein, it is necessary to make a few clarificatory observations. Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was levelled in the writ petitions on the ground that the said amendments—effected after the decision in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225—infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the basic structure. This simplistic argument overlooks the raison d'être of Article 31-B—at any rate, its continuance and relevance after Bharati (1973) 4 SCC 225—and of the 39th and 40th Amendments placing the said enactments in the Ninth Schedule. Acceptance of the petitioners' argument would mean that in case of post-Bharati constitutional amendments placing Acts in the Ninth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31-B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said amendments. We take them as they are i.e we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14.”

132. It is evident from the aforenoted passage that the question of violation of Articles 14, 19 or 21 was not gone into. The Bench did not express any opinion on those issues. No attempt was made to establish violation of these provisions. In para 56, while summarising the conclusion, the Bench did not express any opinion on the validity of the Thirty-ninth and Fortieth Amendment Acts to the Constitution of India placing cofeposa and safema in the Ninth Schedule. These Acts were assumed to be good and valid. No arguments were also addressed with respect to the validity of the Forty-second Amendment Act.

133. Every amendment to the Constitution whether it be in the form of amendment of any article or amendment by insertion of an Act in the Ninth Schedule, has to be tested by reference to the doctrine of basic structure which includes reference to Article 21 read with Article 14, Article 15, etc. As stated, laws included in the Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken. In respect of that exercise the principle of compatibility will come in. One has to see the effect of the impugned law on one hand and the exclusion of Part III in its entirety at the will of Parliament.

134. In Waman Rao (1981) 2 SCC 362 it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24-4-1973 would not receive the full protection.

Exclusion of judicial review if compatible with the doctrine of basic structure—concept of judicial review

135. Judicial review is justified by combination of “the principle of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review” (Democracy Through Law by Lord Styen, p. 131).

136. The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights. According to Lord Styen, it is job of the judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights.

Application of doctrine of basic structure

137. In Kesavananda Bharati case (1973) 4 SCC 225 the discussion was on the amending power conferred by unamended Article 368 which did not use the words “constituent power”. We have already noted the difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By addition of the words “constituent power” in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words “constituent power” are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to Parliament. It is on this premise that clauses (4) and (5) inserted in Article 368 by the 42nd Amendment were struck down in Minerva Mills case (1980) 3 SCC 625.

138. The relevance of Indira Gandhi case 1975 Supp SCC 1, Minerva Mills case (1980) 3 SCC 625 and Waman Rao case (1981) 2 SCC 362 lies in the fact that every improper enhancement of its own power by Parliament, be it clause (4) of Article 329-A or clauses (4) and (5) of Article 368 or Section 4 of the 42nd Amendment has been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made directive principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian reforms. It is in this context that we have to examine the power of immunity bearing in mind that after Kesavananda Bharati case (1973) 4 SCC 225 Article 368 is subject to implied limitation of basic structure.

139. The question examined in Waman Rao case (1981) 2 SCC 362 was whether the device of Article 31-B could be used to immunise the Ninth Schedule laws from judicial review by making the entire Part III inapplicable to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in the affirmative. It has been said that it is likely to make the controlled Constitution uncontrolled. It would render the doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and Article 19 in its entirety for examining the validity of the Ninth Schedule laws as it makes the entire Part III inapplicable at the will of Parliament. This results in the change of the identity of the Constitution which brings about incompatibility not only with the doctrine of basic structure but also with the very existence of limited power of amending the Constitution. The extent of judicial review is to be examined having regard to these factors.

140. The object behind Article 31-B is to remove difficulties and not to obliterate Part III in its entirety or judicial review. The doctrine of basic structure is propounded to save the basic features. Article 21 is the heart of the Constitution. It confers right to life as well as right to choose. When this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the “essence of right” test but also the “rights test” has to apply, particularly when Kesavananda Bharati (1973) 4 SCC 225 and Indira Gandhi 1975 Supp SCC 1 cases have expanded the scope of basic structure to cover even some of the fundamental rights.

141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.

142. There is also a difference between the “rights test” and the “essence of right” test. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire chapter is made inapplicable, “the essence of right” test as applied in M. Nagaraj case (2006) 8 SCC 212 will have no applicability. In such a situation, to judge the validity of the law, it is the “rights test” which is more appropriate. We may also note that in Minerva Mills (1980) 3 SCC 625 and Indira Gandhi 1975 Supp SCC 1 cases elimination of Part III in its entirety was not in issue. We are considering the situation where the entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunisation at will by Parliament which, in our view, is incompatible with the implied limitation of the power of Parliament. In such a case, it is the rights test that is appropriate and is to be applied. In Indira Gandhi case 1975 Supp SCC 1 it was held that for the correct interpretation, Article 368 requires a synoptic view of the Constitution between its various provisions which, at first sight, look disconnected. Regarding Articles 31-A and 31-C (validity whereof is not in question here) having been held to be valid despite denial of Article 14, it may be noted that these articles have an indicia which is not there in Article 31-B.

143. Part III is amendable subject to basic structure doctrine. It is permissible for the legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31-B but subject to right of citizen to assail it on the enlarged judicial review concept. The legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the court after the enunciation of the basic structure doctrine.

144. The constitutional amendments are subject to limitations and if the question of limitation is to be decided by Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary.

145. The power to grant absolute immunity at will is not compatible with basic structure doctrine and, therefore, after 24-4-1973 the laws included in the Ninth Schedule would not have absolute immunity. Thus, validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these articles.

146. It has to be borne in view that the fact that some articles in Part III stand alone has been recognised even by Parliament, for example, Articles 20 and 21. Article 359 provides for suspension of the enforcement of the rights conferred by Part III during Emergencies. However, by the Constitution (Forty-fourth Amendment) Act, 1978, it has been provided that even during Emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended. This is the recognition given by Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for the conclusion that these rights are part of the basic structure or framework of the Constitution and, thus, immunity by suspending those rights by placing any law in the Ninth Schedule would not be countenanced. It would be an implied limitation on the constituent power of amendment under Article 368. Same would be the position in respect of the rights under Article 32, again, a part of the basic structure of the Constitution.

147. The doctrine of basic structure as a principle has now become an axiom. It is premised on the basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic structure doctrine. Certain freedoms may justifiably be interfered with. If freedom, for example, is interfered with in cases relating to terrorism, it does not follow that the same test can be applied to all the offences. The point to be noted is that the application of a standard is an important exercise required to be undertaken by the Court in applying the basic structure doctrine and that has to be done by the Courts and not by prescribed authority under Article 368. The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.

148. The power to amend the Constitution is subject to the aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati (1973) 4 SCC 225 the axiom was not there. Fictional validation based on the power of immunity exercised by Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinise the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati (1973) 4 SCC 225 upholding the validity of Article 31-B is a surest means of a drastic erosion of the fundamental rights conferred by Part III.

149. Article 31-B gives validation based on fictional immunity. In judging the validity of constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where judicial review comes in. Greater the invasion into essential freedoms, greater is the need for justification and determination by Court whether invasion was necessary and if so, to what extent. The degree of invasion is for the Court to decide. Compatibility is one of the species of judicial review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the Constitution as it stands for equality and rule of law..

150. The result of the aforesaid discussion is that the constitutional validity of the Ninth Schedule laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test i.e rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.

151. In conclusion, we hold that:

(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of the law, whether by amendment of any article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati case (1973) 4 SCC 225 read with Indira Gandhi case 1975 Supp SCC 1 requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by constitutional amendments shall be a matter of constitutional adjudication by examining the nature and extent of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the articles in Part III as held in Indira Gandhi case 1975 Supp SCC 1. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such law(s) will not get the protection of the Ninth Schedule.

This is our answer to the question referred to us vide order dated 14-9-1999 in I.R Coelho v. State of T.N (1999) 7 SCC 580

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24-4-1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.

(vi) Action taken and transactions finalised as a result of the impugned Acts shall not be open to challenge.

152. We answer the reference in the above terms and direct that the petitions/appeals be now placed for hearing before a three-Judge Bench for decision in accordance with the principles laid down herein.