Author: Ritik Saluja
I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors AIR 2007 SC 861
Justice Y.K. Sabharwal, Justice Ashok Bhan, Justice Arijit Pasayat, Justice B.P. Singh, Justice S.H. Kapadia, Justice C.K. Thakker, Justice P.K. Balasubramanyan, Justice Altamas Kabir and Justice D.K. Jain
I.R. Coelho (Dead) By LRs
State of Tamil Nadu & Ors.
DATE OF JUDGMENT: 11/01/2007
- 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. & Anr. v. State of Tamil Nadu [(1972) 2 SCC 133] because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution.
- Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional.
- The special leave petition filed against the judgment by the State of West Bengal was dismissed.
- By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule.
- By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule.
- These insertions were the subject matter of challenge before a Five Judge Bench.
- Whether on and after 24th April 1973 when Basic Structures Doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them in the Ninth Schedule.
- What is its effect on the power of judicial review of the court?
The contention of the Parties
The contention of Petitioner :
- Petitioner contended that 34th Amendment Act and 66th Amendment Act which insert The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 and the West Bengal Land Holding Revenue Act, 1979 respectively in 9th Schedule, should be struck down as some provisions in both these mentioned Acts have been declared void.
- None of the laws inserted in the 9th Schedule should be immune from judicial review as judicial review is a part of the basic structure of the constitution and such immunization will amount to a violation of basic structure.
- It is contended that after the doctrine of basic structure which came to be established in Kesavananda Bharati’s case, it is only that kind of judicial review whose elimination would destroy or damage the basic structure of the Constitution that is beyond the constituent power. However, in every case where the constituent power excludes judicial review, the basic structure of the Constitution is not abrogated.
- The respondents contend that the point in issue is covered by the majority judgment in Kesavananda Bharati’s case. According to that view, Article 31B or the Ninth Schedule is a permissible constitutional device to provide a protective umbrella to Ninth Schedule laws.
- The Supreme Court ultimately decided that if the validity of any 9th Schedule law has already been upheld by the Supreme Court (in its earlier judgments), it would not be open to challenge such law again on the principles declared by this judgment.
- However, if a law is held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/ infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.
- Supreme Court further said that judicial review is a part of the basic structure of the constitution, thus no law can be immunized from judicial review even by a constitutional amendment and insertion of such law in 9th Schedule.
Ratio Decidendi: The object behind Article 31B is to remove difficulties and not to obliterate part III in its entirety or judicial review. The doctrine of basic structure is propounded to save the basic features. 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. Thus insertion of laws and regulations in the 9th Schedule despite being permissible, will not make any such laws or regulations immune from judicial review.
Obiter Dicta :
- Constitutional Amendments are also subject to some limitations. And such limitations can’t be left to be decided by parliament. Parliament making laws and declaring such laws valid itself by inserting such laws in the 9th Schedule is a clear violation of the doctrine of checks and balances.
- Though Article 368 includes the words constituent power of Parliament. Such Amending powers do not put parliament in par with Constituent Assembly. Parliament remains a body controlled by the constitution. The limitations of basic structure doctrine would still apply to parliament.
Laws Referred :
- Constitution of India – Article 13, Article 14, Article 19, Article 21, Article 31-A, Article 31-B, Article 32, Article 368
- Basic Structure Doctrine
- The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969
- West Bengal Land Holding Revenue Act, 1979
- Kameshwar Prasad v. State of Bihar [A.I.R. 1951 Patna 91],
- Shankari Prasad Singh Deo v. State of Bihar [A.I.R. 1951 S.C. 458],
- Sajjan Singh v. State of Rajasthan [A.I.R. 1965 S.C. 845],
- I.C. Golak Nath and Ors. v. State of Punjab [(1967) 2 SCR 762],
- His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [A.I.R. 1974 S.C. 1461],
- Smt. Indira Nehru Gandhi v. Raj Narain [A.I.R. 1975 S.C. 2299],
- Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625],
- Waman Rao and Ors. v. Union of India [(1981) 2 SCC 362],
- Maharao Sahib Shri Bhim Singhji v. Union of India and Ors. [(1981) 1 SCC 166],
- I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu and Ors., [(1999) 7 SCC 580] and M.
- Nagaraj and Ors. Vs. Union of India and Ors. [(2006) 8 SCC 212]
- In the case of Kesavananda Bharati v. State of Kerala and Anr. 1973 majority of 7 judges out of 13 ruled in favour of basic structure doctrine. But at the same time validity of Article 31-B and the power of parliament to insert various laws and regulations in the 9tb Schedule was also recognized and upheld. Such provision in the constitution was added by Constituent Assembly after a lot of deliberations. Thus it is absolutely correct to recognize the need for such provision and need of some kind of restrictions on challenges to laws in the Supreme Court.
- The court was also correct in its observation that judicial review is a part of the basic structure of the constitution. Thus it can’t be violated by any act of parliament.
- 9th Schedule in any condition can’t act as a blanket of immunity for the laws inserted in it by parliament by making a constitutional amendment. Laws inserted in 9th Schedule after 24-4-1973( date of judgement of Kesavananda Bharati case) will be reviewed by the court on the touchstone of 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’s case.
- If any law which is inserted in the 9th Schedule, whose validity has already been upheld by the court will not be open to any challenges any further.
- But if any law or some provision(s), which already has been declared null and void by the court is inserted in the 9th Schedule then such law will be open to challenges on the ground that it violates the basic structure of the constitution.
- The court was also absolutely correct in its observation that the insertion of any law in the 9th Schedule by a constitutional amendment will not make such a law part of constitution. Thus such law could not only be challenged on grounds of violation of basic structure but also on other grounds such as competency of parliament in making such law etc. also.
- But at the same time judgment can be criticized on the grounds that it has applied tests such as essence of rights test etc. which is not expressed in clear terms and is conducive to ambiguities and anonymity in the future.
- Any criticism of judgment can be unanimity of what constitutes basic structure which will only add to the already prevailing confusions.
But overall it can be concluded that the Supreme Court has taken a great step in direction of protection of individual liberties and spirit of constitutionalism by upheld the power of this honorable court to review the laws inserted in the 9th Schedule.