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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 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 [AIR 1973 SC 1461] 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]. 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. [AIR 1972 SC 2240] 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.
4. In the referral order, the Constitution Bench observed that, according to Waman Rao v. Union of India [AIR 1981 SC 271], 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 [AIR 1980 SC 1789] and Bhim Singhji v. Union of India [AIR 1981 SC 234] were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found
by 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.
Development of the law
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.
10. The constitutional validity of the First Amendment was upheld in Sankari Prasad Singh Deo v. Union of India [AIR 1952 SC 458].
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 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], the law declared in Sankari Prasad 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.
14. In Golak Nath v. State of Punjab [AIR 1967 SC 1643], a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh. 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, 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.
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 and Entry 66 – Kerala Land Reforms Amendment Act, 1971.
21. These amendments were challenged in Kesavananda Bharati case. The decision in Kesavananda Bharati case was rendered on 24-4-1973 by a thirteen-Judge Bench and by majority of seven to six Golak Nath case 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 [AIR 1975 SC 2299], 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 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.”
29. During Emergency, the fundamental rights were read even more restrictively as interpreted by the majority in ADM, Jabalpur v. Shivakant Shukla [AIR 1976 SC 1207]. The decision in ADM, Jabalpur 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] interpreting the words “according to procedure established by law” to mean only enacted law, received enlarged interpretation in Maneka Gandhi v. Union of India [AIR 1978 SC 597]. A.K. Gopalan was no longer good law. In Maneka Gandhi a Bench of seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights.
31. In Minerva Mills case the Court struck down clauses (4) and (5) of Article 368 finding that they violated the basic structure of the Constitution.
33. In Bhim Singhji 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. 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.
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 | Amendment Acts | Provisions added |
| 1st Amendment (1951) | 1-13 | 40th Amendment (1976) | 125-188 |
| 4th Amendment (1955) | 14-20 | 47th Amendment (1984) | 189-202 |
| 17th Amendment (1964) | 21-64 | 66th Amendment (1990) | 203-257 |
| 29th Amendment (1971) | 65-66 | 76th Amendment (1994) | 257-A |
| 34th Amendment (1974) | 67-86 | 78thAmendment (1995) | 258-284 |
| 39th Amendment (1975) | 87-124 |
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] to the following effect: “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.
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.
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.
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 has to apply.
49. Granville Austin has been extensively quoted and relied on in Minerva Mills. 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). 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.” (Minerva Mills.) 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):
“[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 show how clause (4) of Article 368 would result in enlarging the amending power of Parliament contrary to the dictum in Kesavananda Bharati case. 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 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. 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 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, 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 breaks new ground, which has important effects on Kesavananda Bharati case itself”. Further the author says that:
“No one can now write on the amending power, without taking into account the effect of Election case.”
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.
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.
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 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.
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 by the majority. Later, it was reiterated in Indira Gandhi case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.
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.
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 in respect of his opinion in Kesavananda Bharati case 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.
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 the majority opinion upheld the validity of the Kerala Act which had been set aside in Kunjukutty Sahib v. State of Kerala 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 a seven- Judge Constitution Bench, post-decision in Kesavananda Bharati case 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
78. We have examined various opinions in Kesavananda Bharati case 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 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.
Kesavananda Bharati case
80. The contention urged on behalf of the respondents that all the Judges, except Sikri, C.J., in Kesavananda Bharati case held that the 29th Amendment was valid and applied Jeejeebhoy case is not based on correct ratio of Kesavananda Bharati case. 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 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)
“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).
“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. In that case, Ray, C.J. observed:
“152. The Constitution (Twenty-ninth Amendment) Act was considered by this Court in Kesavananda Bharati case. 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 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 by majority of seven against six Judges.
153. Second, the majority view in Kesavananda Bharati case 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)
88. On the issue of how the 29th Amendment in Kesavananda Bharati case was decided, in Minerva Mills, Bhagwati, J. has said thus:
“The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case, 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 and Sajjan Singh case and were accepted as valid in Golak Nath case and the Twenty-ninth Amendment Act was also held valid in Kesavananda Bharati case, 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 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 is not conclusive of matters under consideration before us.
90. In order to understand the view of Khanna, J. in Kesavananda Bharati, it is important to take into account his later clarification. In Indira Gandhi, Khanna, J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed as follows:
“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 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 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:
“Although in his judgment in Election case, Khanna, J. clarified his judgment in Kesavananda case, 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 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.” * * * * *
But while the clarification in Election case 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 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 Chandrachud, J., and in Minerva Mills case Bhagwati, J. have not considered the binding effect of majority judgments in Kesavananda Bharati case. In these decisions, the development of law post- Kesavananda Bharati case has been considered. The conclusion has rightly been reached, also having regard to the decision in Indira Gandhi case that post-Kesavananda Bharati case 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 but its effect, impact and working was examined in Indira Gandhi case, Waman Rao case and Minerva Mills case. To say that these judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati case is not based on a correct reading of Kesavananda Bharati.
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, by Krishna Iyer, J. in Bhim Singh case and Bhagwati, J. in Minerva Mills case. 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. Therefore, Kesavananda Bharati case 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. Further, doubt, if any, as to the opinion of Khanna, J. stood resolved on the clarification given in Indira Gandhi case by the learned Judge that in Kesavananda Bharati case 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 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 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 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 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 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 clearly indicates that the view in Kesavananda Bharati case is that at least some fundamental rights do form part of the basic structure of the Constitution. Detailed discussion in
Kesavananda Bharati case 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 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 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 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.
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 as follows:
[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.
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. 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 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.
121. As already stated, in Indira Gandhi case 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. 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.
123. It is Kesavananda Bharati case read with clarification of Khanna, J. in Indira
Gandhi case 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 and Indira Gandhi 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 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. 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.
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 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 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.
138. The relevance of Indira Gandhi case, Minerva Mills case and Waman Rao case 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 Article 368 is subject to implied limitation of basic structure.
139. The question examined in Waman Rao case 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 and Indira Gandhi 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 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 and Indira Gandhi 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 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 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 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 read with Indira Gandhi case requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.
(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. 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.
(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.
