# LR. COELHO (DEAD) BY LRS. ~ v. STATE OF TAMIL NADU

- **Citation:** [2007] 1 S.C.R. 706
- **Court:** Supreme Court of India
- **Decided:** 2007
- **Case number:** Civil Appeal Nos. 1344-1345 of 1976
- **Bench:** Y.K. Sabharwal, Ashok Bhan, Dr. Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lr-coelho-dead-by-lrs-v-state-of-tamil-nadu-22862
- **Pages:** 68

## Headnote

r
Constitution of India, 1950:
c
Article 368 read with Article 31-B, Article 32-Ninth ScheduleAmendment of Constitution-Inclusion of enactments in Ninth ScheduleJudicial review of-Held: a law that abrogates or abridges rights guaranteed
by Part Ill of the Constitution and also violates the basic structure
D
doctrine, whether by amendment of any Article of Part Ill or by an insertion
in Ninth Schedule, such law will have to be invalidated in exercise of
power of judicial review of the Court-All amendments to the Constitution
made on or after 24.4.1973 by which Ninth Schedule is amended by
inclusion of various laws therein can be tested on the touchstone of basic
or essential features of Constitution as reflected in Article 21 read with
E
Articles 14 and 19 and the principles underlying them by application of
the "right test" and the "essence of the right test"-While laws may be
added to the Nfnth Schedule, once Article 32 is resorted to the legislation
concerned must answer to the complete test of fundamental rights-Article
31-B after 24.4.1973, despite its wide language, cannot confer unlimited
F
or unregulated immunity- If infraction affects the basic structure, such a
law will not get protection of Ninth Schedule -Saving-If validity of any
A.
Ninth Schedule law has already been upheld by Supreme Court, it would
not be open to challenge again on principles declared in this judgmentAction taken and transactions finalized as a result of impugned Acts shall
:'
G
not be open to challenge-Constitutionalism-Doctrine of separation of
powers-Doctrine of basic structure--Judicial review.
Constitutional ism-Constitution of India-Doctrine of basic
structure-Held, equality, rule of law, judicial review, separation of powers,
~ .....
secularism, reasonable balance between Fundamental Rights and Directive
f
H
Principles, form part of the basic structure-Each of these concepts are
706
~-
LR.COELHO (DEAD) BY LRs. v. ST ATE
707
J
intimately connected-After enunciation of the basic structure doctrine,
A
full judicial review is an integral part of the constitutional schemeConstitution of India-Articles 14,15,16,19,20,2Jand 32.
lnte1pretation of Constitution-Constitutional provisions have to be
construed having regard to the march of time and the development of B
law-Abrogation and abridgement of fundamental rights, therefore, have
to be examined on broad interpretation.
On the Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 having been struck down by the Supreme Court1, and
section 2(c) of the West Bengal Land Holding Revenue Act, 1979 having c
been struck down by the Calcutta High Court, and the Supreme Court
-.<
having dismissed the consequential special leave petition filed by the State
~
Government, the Parliament, by the Constitution (fhirty-Fourth Amendment)
Act, inserted the Janmam Act in the Ninth Schedule to the Constitution of
India and, by the Constitution (Sixty-sixth Amendment) Act, inserted the
D
West Bengal Land Holding Revenue Act, 1979 in the Ninth Schedule.
These insertions were challenged before a Constitution Bench of the
Supreme Court The said Constitution Bench was of the opinion2 that the
decision in Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SC
3623 to the effect that amendments to the Constitution on or after 24th
April 1973 (i.e. the date of decision in His Holiness Kesavananda Bharti
E
Sripadagulvaru v. State of Kera/a and Anr., [1973] 4 SCC 2254 by which
the Ninth Schedule was amended from time to time by inclusion of various
Acts and, regulations therein, were open to challenge on the ground that
they, or anyone or more of them, were beyond the constituent power of
Parliament since they damage the basic or essential features of the
F
->.
Constitution or its basic structure, would need reconsideration by a larger
Bench preferably of nine Judges. Thus, the matter was placed before the
present nine-Judge Bench.
1. Balmadies Plantations Ltd & Anr. v. State of Tamil Nadu [1972] 2 S

## Text

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A
LR. COELHO (DEAD) BY LRS.
~
V.
STATE OF TAMIL NADU
JANUARY I I, 2007
B
(Y.K. SABHARWAL,CJI, ASHOK BHAN, DR. ARIJIT PASAYAT,
B.P. SINGH, S.H. KAPADIA, C.K. THAKKER, P.K.
BALASUBRAMANYAN, ALTAMAS KABIR AND D.K. JAIN, JJ.]
r
Constitution of India, 1950:
c
Article 368 read with Article 31-B, Article 32-Ninth ScheduleAmendment of Constitution-Inclusion of enactments in Ninth ScheduleJudicial review of-Held: a law that abrogates or abridges rights guaranteed
by Part Ill of the Constitution and also violates the basic structure
D
doctrine, whether by amendment of any Article of Part Ill or by an insertion
in Ninth Schedule, such law will have to be invalidated in exercise of
power of judicial review of the Court-All amendments to the Constitution
made on or after 24.4.1973 by which Ninth Schedule is amended by
inclusion of various laws therein can be tested on the touchstone of basic
or essential features of Constitution as reflected in Article 21 read with
E
Articles 14 and 19 and the principles underlying them by application of
the "right test" and the "essence of the right test"-While laws may be
added to the Nfnth Schedule, once Article 32 is resorted to the legislation
concerned must answer to the complete test of fundamental rights-Article
31-B after 24.4.1973, despite its wide language, cannot confer unlimited
F
or unregulated immunity- If infraction affects the basic structure, such a
law will not get protection of Ninth Schedule -Saving-If validity of any
A.
Ninth Schedule law has already been upheld by Supreme Court, it would
not be open to challenge again on principles declared in this judgmentAction taken and transactions finalized as a result of impugned Acts shall
:'
G
not be open to challenge-Constitutionalism-Doctrine of separation of
powers-Doctrine of basic structure--Judicial review.
Constitutional ism-Constitution of India-Doctrine of basic
structure-Held, equality, rule of law, judicial review, separation of powers,
~ .....
secularism, reasonable balance between Fundamental Rights and Directive
f
H
Principles, form part of the basic structure-Each of these concepts are
706
~-
LR.COELHO (DEAD) BY LRs. v. ST ATE
707
J
intimately connected-After enunciation of the basic structure doctrine,
A
full judicial review is an integral part of the constitutional schemeConstitution of India-Articles 14,15,16,19,20,2Jand 32.
lnte1pretation of Constitution-Constitutional provisions have to be
construed having regard to the march of time and the development of B
law-Abrogation and abridgement of fundamental rights, therefore, have
to be examined on broad interpretation.
On the Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 having been struck down by the Supreme Court1, and
section 2(c) of the West Bengal Land Holding Revenue Act, 1979 having c
been struck down by the Calcutta High Court, and the Supreme Court
-.<
having dismissed the consequential special leave petition filed by the State
~
Government, the Parliament, by the Constitution (fhirty-Fourth Amendment)
Act, inserted the Janmam Act in the Ninth Schedule to the Constitution of
India and, by the Constitution (Sixty-sixth Amendment) Act, inserted the
D
West Bengal Land Holding Revenue Act, 1979 in the Ninth Schedule.
These insertions were challenged before a Constitution Bench of the
Supreme Court The said Constitution Bench was of the opinion2 that the
decision in Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SC
3623 to the effect that amendments to the Constitution on or after 24th
April 1973 (i.e. the date of decision in His Holiness Kesavananda Bharti
E
Sripadagulvaru v. State of Kera/a and Anr., [1973] 4 SCC 2254 by which
the Ninth Schedule was amended from time to time by inclusion of various
Acts and, regulations therein, were open to challenge on the ground that
they, or anyone or more of them, were beyond the constituent power of
Parliament since they damage the basic or essential features of the
F
->.
Constitution or its basic structure, would need reconsideration by a larger
Bench preferably of nine Judges. Thus, the matter was placed before the
present nine-Judge Bench.
1. Balmadies Plantations Ltd & Anr. v. State of Tamil Nadu [1972] 2 SCC
G
133=[1973] 1 SCR258.
2.1.R. Coelho v. State ofTamil Nadu, [1999] 7 SCC 580=[1999] Supp. 2 SCR
,f'I
394.
3. [1981] 2 SCR I.
4. [1973] Supp. 1 SCR I.
H
~ ...
;"
708
SUPREME COURT REPORTS
[2007) I S.C.R.
A
On the questions: whether on and after 24th April, 1973 when basic
.
..
structure doctrine was propounded, it is permissible for the Parliament ·
under Article 31B to immunize legislations from fundamental rights by
inserting them into the Ninth Schedule and, if so, what is its effect on the
power of judicial review of the Court; and what is the extent and nature of
B
immunity that Article 31-B can provide,
Answering the reference, the Court
HELD: 1.1. The Constitution of India is a living document, and its
interpretation may change as the time and circumstances change, to keep·
c pace with it. The constitutional provisions have to be construed ·having
regard to the march of time and the development of law. The principle of
constitutionalism is now a legal principle which requires control over the
·II'
exercise of Governmental power to ensure that it does not destroy the
democratic principles upon which it is based. These democratic principles
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include the protection of fundamental rights.
The principle of
t·
I
constitutionalism advocates a check and balance model of the separation of
powers, it requires a diffusion of powers, necessitating different independent
/
centers of decision making. The principle of constitutionalism underpins
the principle oflegality which requires the Courts to interpret legislation
E
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. [Paras 43, 44 and 110] [759-E, 732-A-D]
..,.,
1.2. The fundamentalness of fundamental rights has to be examined
F
having regard to the enlightened point of view as a result of development
j...
of fundamental rights over the years. The abrogation or abridgment of the
fundamental rights under Chapter III have, therefore, to be examined on
broad interpretation. [Paras 57 and 63] [736-C, 741!..B]
:"-
G
His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kera/a
& Anr., (1973] 4 SCC 225= [1973] Suppl. 1 SCR 1; Minerva Mills Ltd. &
Ors. v. Union of India & Ors., [1980] 3 SCC 625=[1981]1 SCR 206;
Additional District Magistrate, Jabalpur v. Shivakant Shukla, [1976) 2
SCC 521= (1976) Supp. SCR 172; Smt. Indira Nehru Gandhiv. Raj Narain,
'"ti
(1975) Supp. 1SCC1=[1976) 2 SCR 454; Waman Rao and Ors. v. Union
H
of India and Ors., (1981} 2 SC 362= (1981) 2 SCR 1; Maharao Sahib Shri
I
>-
t\.
LR.COELHO (DEAD) BY LRs. v. STATE
7(1)
Bhim Singhji v. Union of India & Ors., (1981] 1 SCC 166=(1985] Suppl.
A
1 SCR 862; A.K Gopalan v. The State of Madras, [1950] SCR 88; Menaka
Gandhi v. Union of India, (1978] 1 SCC 248 =(1978] 2 SCR 621; and L.
Chandra Kumarv. Union of India & Ors., (1997] 3 SCC 261=(1997] 2 SCR
1186, relied on.
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar,
B
(1952) SCR 89; Sajjan Singh v. State of Rajasthan, (1965] 1 SCR 933; and
Kameshwar v. State of Bihar, AIR (1951) Patna 91, cited.
The State of Bombay v. Bhanji Munji & Anr.,(1955] 1 SCR 777;
Rustom Cavasjee Cooper v. Union of India, (1970] 3 SCR 530; Sakal
C
Papers (P) Ltd. & Ors. v. The Union of India, (1962] 3 SCR 842 ; Sambhu
Nath Sarkar v. The State of West Bengal & Ors., [1974] 1 SCR 1;
Haradhan Saha & Anr. v. The State of West Bengal & Ors., (1975] 1 SCR
778; Khudiram Das v. The State of West Bengal & Ors., (1975] 2 SCR 832
and M Nagaraj & Ors. v. Union of India & Ors., [2006] 8 SCC 212,
referred to.
1.3. 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. [Para 102] (756-A-B]
D
E
1.4. The framers of the Constitution have built a wall around certain
F
parts of fundamental rights, which have to remain forever, limiting ability
of majority to intrude upon them. That wall is the 'Basic Structure'
doctrine. 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. Since 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
G
doctrine. [Paras 51, 102 and103] [756-C, 734-D]
H'
; .
710
SUPREME COURT REPORTS
(2007] 1 S.C.R
A
1.5. It cannot be said that essence of the principle behind Article 14
B
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 's
case clearly is that the principles behind fundamental rights are part of
the basic structure of the Constitution. The fundamental rights are
deeply interconnected. Each supports and strengthens the work of the
others. [Para llO] [759-C-E]
2.1.The doctrine of basic structure contemplates that there are
certain parts or aspects of the Constitution including Article 15, Article
C
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
D
in Part III. (Para 142] [768-D]
I~
2.2. 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, ifthere is
E
no equality before the law. These would be meaningless ifthe 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. [Para 130] [764-E]
F
His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kera/a
L
& Anr., [1973] 4 SCC 225= [1973] Suppl. 1 SCR 1; Smt. Indira Nehru
.°"
Gandhi v. Raj Narain, [1975] Supp. (1) SCC 1=[1976] 2 SCR 454; Waman
Rao and Ors. v. Union of India and Ors., [_1981] 2 SC 362= (1981] 2 SCR
1; and Special Reference No. 1 of 1964, [i965] 1 SCR 413, relied on.
G
Sprit of Laws Boox XI, Ch.6, referred to.
2.3. The jurisdiction conferred on this Court by Article 32 is an
important and integral patt of the basic structure of the Constitution of
H
India and no act of Parliament can abrogate it or take it away except by way
I.R.COELHO(DEAD)BYLRs. v. STATE
711
of impermissible erosion of fundamental principles of the constitutional
A
.. ~
• scheme are settled propositions of Indian jurisprudence. It is the duty
of this Court to uphold the constitutional values and enforce constitutional
limitations as the ultimate interpreter of the Constitution.
[Paras 40 and 421 (731-E-H]
Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union
B
of India and Ors., (1981] l SCC 568=(1981) 2 SCR 52; State of Rajasthan
v. Union of India & Ors., (1977) 3 SCC 592=(1978] 1 SCR 1 M Krishna
Swami v. Union of India & Ors., (1992) 4 SCC 605=(1992) Suppl. 1 SCR
53; Daryao & Ors. v. The State of UP & Ors., (1962) 1 SCR 574; S.R.
Bommai & Ors. v. Union of India & Ors., [1994) 3 SCC 1=[1994] 2 SCR
C
644; L. Chandra Kumar v. Union of India & Ors., (1997] 3 SCC 261=[1997]
2SCR1186; and State of Madras v. V.G. Row, [1952] SCR 597, relied on.
2.4. The constitutional amendments are subject to limitations and if
the question of limitation is to be decided by the Parliament itself which
enacts the impugned amendments and gives that law a complete immunity,
D
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.
. .J
[Para 145) [769-C-D)
E
2.5. 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. It has to be borne in mind firstly, that each exercise
of the amending power inserting laws into the Ninth Schedule entails a
complete removal of the fundamental rights chapter vis-a-vis the laws that
F
are added in the Ninth Schedule. Secondly, insertion in 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
in so far as the Ninth Schedule legislations are concerned. 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 . .The supremacy of the Constitution
mandates an constitutional bodies to comply with the provisions of the
Constitution. It also mandates a mechanism for testing the validity of
G
H
712
SUPREME COURT REPORTS
[2007] I S.C.R.
A
legislative acts through an independent organ, viz. the judiciary. (Paras 99
and 117] (761-D, 755-C-D]
4
•,
B
c
D
Waman Rao and Ors. v. Union of India and Ors., [1981) 2 SC 362=
(1981) 2 SCR 1, upheld.
3.1. In 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 's case, it is necessary
to examine the nature of the constituent power exercised in amending the
Constitution. [Para 118] [761-F)
3.2. 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 feature of the Constitution and essential
elements of rule of law and that too without any yardstick/ standard being
provided under Article 31-B. [Para 128) [764-A-B)
3.3. It would be incorrect to assume that social content exist only in
Directive Principles and not in the Fundamental Rights. Articles 15 and
E
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
F
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. [Para 129) [764-B-D)
G
3.4. The power to amend cannot be equated with the power to frame
the Constitution, which has no lim.itations or constraints, it is primary
power, a real plenary power. The latter power, however, is derived from the
former. It has constraints of the document viz. Constitution which creates
'-
--'r
it. This derivative power can be exercised within the four corners of what
\
H
has been conferred on the body constituted, namely, the Parliament. Power
LR.COELHO (DEAD) BY LRs. v. ST ATE
713
,,/
to amend exists in the Parliament but it is subject to the limitation of
A
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.
[Para 119] [761-G, 762-A-B]
His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kera/a
& Anr., [1973] 4 SCC 225= 11973] Suppl. 1 SCR 1 and Menaka Gandhi
v. Union of India, [1978] 1 SCC 248 =[1978] 2 SCR 621, relied on.
3.5. 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. [Para 125) [763-A-B]
B
c
D
3.6. Since constituent power under Article 368, the other name for
amending power, cannot be made unlimited, it follows that Article 31B
cannot be so used as to confer unlimited power. Article 31B cannot go
beyond the limited amending power contained in Article 368. The power to
E
amend the 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 the Kesavananda Bharati's case. Therefore Article 31B after
24th April, 1973 despite its wide language cannot confer unlimited or
unregulated immunity. [Para 127] [763-F-G]
3. 7. Articles 14, 19 and 21 clearly form part of the basic structure
of the Constitution. After the evolution of the basic structure doctrine, it
cannot be said 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 31B. lfsome of the fundamental rights constitute a basic
structure, it would not be open to immunise those legislations from full
judicial scrutiny eithel' on the ground that the fundament!ll rights are not
part of the basic structure or on the ground that Part III provisJons are not
available as a result of immunity granted by Article 31B.
[Para 110] [759-A-C]
F
G
H
A
B
714
SUPREME COURT REPORTS
[2007] I S.C.R.
Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1980) 3 SCC
625=[1981)1 SCR 206; Menaka Gandhi v. Union of India, [1978) 1 SCC
248 =[1978) 2 SCR 621; The State of Bombay v. Bhanji Munji & Anr.,
(1955) 1 SCR 777; Rustom Cavasjee Cooper v. Union of India, [1970) 3
SCR 530; Sakal Papers (P) Ltd. & Ors. v. The Union of India, [1962J 3
SCR 842; Sambhu Nath Sarkar v. The State of West Bengal & Ors., [1974]
1 SCR 1; Haradhan Saha.& Anr. v. The State of West Bengal & Ors.,
[1975] 1 SCR 778 and Khudiram Das v. The State of West Bengal & Ors.,
(1975] 2 SCR 832, referred to.
·
4.1. To begin with, it cannot be said that laws that have been found by
C
the courts to be violative of Part ill of the Constitution cannot be protected
by placing the same in the Ninth Schedule by use of device of Article 31B
read with Article 368 of the Constitution. 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
D
E
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. Therefore,
no assumption can be made. However, after a law is placed in the Ninth
Schedule, its vali.dity has. to be tested on the touchstone of basic structure
doctrine. (Paras 76 and 77] (745-D-F;746-A-B)
Kunjukutty Sahib Etc. Etc. ".· The State of Kera/a & Anr., [1972] 2
SCC 364=[1973) 1 SCR 326; State of Maharashtra & Ors. v. Man Singh
Sura) Singh Padvi & Ors., (1978] 1 SCC 615; Attorney General for India
& Ors. v. Amratla/ Prajivandas & Ors., (1994] 5 SCC 54=[1994] Suppl.
F
1 SCR 1, referred to.
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4.2. However, a situation where entire equality code, freedom code and
right to move court under Part III are all nullified by exercise of power to
grant immunization at will by the Parliament is incompatible with the
implied limitation of the power of the Parliament. In such a case, it is
the rights test that is appropriate and is to be applied. As held in
Indira Gandhi's case for the correct interpretation, Article 368
requires a synoptic view . of the Constitution between its various
provisions. Part III is amendable subject to basic structure doctrine. It is
'\
permissible for the Legislature to amend the Ninth Schedule and grant a
H
law the protection in terms of Article 31B but subject to right of
, ....
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LR.COELHO (DEAD) BY LRs. v. ST ATE
715
citizen to assail it on the eolarged judicial review concept. The Legislature
A
cannot grant fictional immunities and exclude the examination of the Ninth
Schedule law by the Court after the enunciation of the basic structure
doctrine. [Paras 143 - 144] [768-F-H, 769-A-B]
4.3. The power to grant absolute immunity at will is not compatible
B
with basic structure doctrine and, therefore, after 24th April, 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.
[Para 146] [769-E] c
4.4. It has to be borne in view that the fact that some Articles in Part
III stand alone has been recognized even by the 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
Constitution (44th Amendment) Act, 1978, it has been provided that even
D
during emergencies, the enforcement of the rights under Articles 20 and
21 cannot be suspended. This is the recognition given by the 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
E
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. [Para 147) (769-F-H, 770-A]
F
4.5. 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 Article 16(4) (4A) (4B) etc. 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
G
Schedule. [Para 124) (762-G-H]
His Holiness Kesavananda Bharati, Sripadagalvaru v. State of
Kera/a & Anr., [1973) 4 SCC 225= (1973) Suppl. 1 SCR 1; Smt. Indira
Nehru Gandhi v. Raj Narain, [1975] Supp. 1 SCC 1=[1976] 2 SCR 454,
referred to.
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4.6. 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. (Para 151] [771-EI
B
5.1. 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 oflaw, 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
c or invalidity would be tested in each case on the principles laid down in this
judgment. [Para 152(i)] [771-G]
Waman Rao and Ors. v. Union of India and Ors., [1981) 2 SCC 362=
[1981] 2 SCR 1, upheld.
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5.2. The majority judgment in Kesavananda Bharati's case read with
Indira Gandhi's case, requires th.e 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
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impact test would determine the validity of the challenge.
(Para 152 (ii)] (771-H]
5.3. All amendments to the Constitution made on or after 24th April,
1973 by which the Ninth Schedule is amended by inclusion of various laws
F
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. 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
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pertains or pertain to the basic structure. (Para 152 (iii)] (772-B-C]
5.4. 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
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and extent of infraction of a Fundamental Right by a statute, sought to be
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I.RCOELHO (DEAD) BY LRs. v. STATE
717
,l
Constitutionally protected, and on the touchstone of the basic structure
A
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.
Applying the above tests to the Ninth Schedule laws, if the infraction affects
the basic structure then such a law(s) will not get the protection of the
Ninth Schedule. (Para 152 (iv)] (772-D-E)
6.1. 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
B
of any rights in Part III is subsequently incorporated in the Ninth Schedule
C
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. (Para 152 (v)) (772-G-H)
6.2. Action taken and transactions finalized as a result of the impugned
Acts shall not be open to challenge. (Para 152 (vi)) 1773-A)
7. The petitions/appeals be now placed for hearing before a threeJudge Bench. (Para 153) [773-B)
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1344-1345 of
1976.
From the Judgment and Order dated 23.9.1976 of the High Court of
Judicature at Madras in W.P. Nos. 4386/1974 and 9011975.
WITH
WP (C) Nos. 242of1988, 751of1990, CA Nos. 6045 & 6046 of2002,
WP (C) No. 408/03, SLP (C) Nos. 14182, 14245, 14248, 14249, 26879, 14946,
D
E
F
14947,26889,26881,14949,26882, 14950,26883,14965,26884,14993, 15020,
(}
26885, 15022, 15029, 14940 & 26886 of2004, WP (C) Nos. 454, 473 & 259 of
1994, WP (C) No. 238 of 1995 and WP (C) No. 35 of 1996.
Goolam E. Vahanvati, S.G, Gopal Subramanium, A.S.G., Amarjit Singh,
A.S.G., R. Mohan, A.S.G. Uday Holla, A.G., Raman, A.A.G., F.S. Nariman,
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SUPREME COURT REPORTS
[2007] 1 S.C.R.
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Harish N. Salve, Raju Ramachandran, Milind Sathe, _ A.S Qureshi, A.S:
Nambiar, K.M. Vijayan, Soli J. Sorabjee, T.R., Andhyarujina, R.
Shunmugasundaram, Ram Jethamalani, Dushyant Dave, Ashok H. Desai,
Jugalkishore Gilda, Sr. Advs., P.H. Parekh, Sailesh Mahintura, Sameer Parekh,
E.R. Kumar, Subhash Sharma, Gopal Sankaranarayanan, Sonali Basu Parekh,
Nitin Thukral, Rukhmini Bobde, Kush Chaturvedi, Rohan Thawani, Joseph
Pookkatt, Attreyee Majumdar, Pooja Dhar, Nikhil Majithia, Saurabh Sinha,
Rishab, Prashant Kumar, A.N. Bardiyar, Rachana Joshi Jssar, A. Rasheed
Qureshi, Banamali Sil, Sewa Ram, Jacob Mathew, P.K. Manohar, Anip
Sachthey, Harin P. Raval, Huzefa Ahmadi, Mohit Paul, Meenakshi Grover,
Aprajita Singh, Gayatri Goswami, Kamal Deep, Pawan Kumar, Tejveer Singh
Pradyuman Gohil, Arijit Prasad, Ravinder Aggarwal, K.V. Mohan, K.V.
Balakrishnan, S.R. Setia; Kiran Suri, Madhumita Bhattacharjee, Avijit'
Bhattacharjee, M.A. Chinnasamy, J. John, K. Krishna Kumar, V.N.
Subramaniyam, A. Subba Rao, Hrishikesh Baruah, Devdatt Kamat, C.P.
Sharma, Mrinalini Sen, V .K. Verma, Sushma Suri, P. Parmeshwaran, Satyakam,
R. Basant, V.G. Pragasam, S. Vallinayagam, Preetesh Kapur, Ashish Chugh,
Anand Misra, Ardhendumauli Prasad, Ananth Srinivasan, P.R. Mala, Sanjay
R. Hegde, Anil K. Mishra, Vikrant Yadav, Sashidhar, Tara Chandra Sharma,
Neelam Sharma, Rajeev Sharma, Ajay Sharma, Rupesh Kumar, Ramesh
Singh, Hemantika Wahi, Shivangi, Sumita Hazarika, Rutwik Panda, Sadhana
Sandhu, Pinky Behera, Rathin Das, A. Subba Rao, A. Mariarputham, Aruna
Mathur (for Mis. Arputham, Aruna & Co.), A.V. Rangam, A. Ranganadhan,
Buddy A. Ranganadhan, M.T. George, Parmanand Gaur, V. Krishna Murthy,
M.A. Chinnasamy, V. Senthil Kumar, V.N. Subramaniyam, Kirti Mishra, E.C.
Vidya Sagar, Sewa Ram, Jacob Mathew, P.K. Manohar, A. Subhashini and
V.R. Anumolu, for the appearing parties.
The Judgment of the Court was delivered by
Y.K. SABHARWAL, CJI. : In these matters we are confronted with
a very important yet not very easy task of determining the nature and
character of protection provided by Article 31 B of the Constitution of India,
1950 (for short, the 'Constitution') to the laws added to the Ninth Schedule
by amendments made after 24th April, 1973. The relevance of this date is
for the reason that on this date judgment in His Holiness Kesavananda
Bharati, Sripadagalvaru v. State of Kera/a & Anr., [1973] 4 SCC 225 was
pronounced propounding the doctrine of Basic Structure of the Constitution
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LR.COELHO (DEAD) BY LRs. v. STA TE [Y .K. SABHAR WAL, CJ.] 719
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to test the validity of constitutional amendments.
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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 (Dead) by LRs.
B
v. State of Tamil Nadu, [1999] 7 SCC 580 (14.9.1999). The Gudalur Janmam
Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam
!-
Act), insofar as it vested forest lands in the Janmam estates in the State of
Tamil Nadu, was struck down by this Court in Balmadies Plantations ltd.
& Anr. v. State ofTamii Nadu, [1972] 2 SCC 133 because this was not found c
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
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,
in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act,
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the West Bengal Land Holding Revenue Act, 1979, in its entirety, was
inserted in the Ninth Schedule. These insertions were the subject matter of
challenge before a Five Judge Bench.
3. The contention urged before the Constitution Bench was that the
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statutes, inclusive of the portions thereof which had been struck down,
could not have been validly inserted in the Ninth Schedule.
...
4. In the referral order, the Constitution Bench observed that, according
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to Waman Rao & Ors. v. Union of India & Ors., [1981] 2 SCC 362,
~
amendments to the Constitution made on or after 24th April, 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
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basic structure. The decision in Minerva Mills Ltd. & Ors. v. Union of India
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& Ors., [1980] 3 SCC 625, Maharao Sahib Shri Bhim Singhji v. Union of
;.
India & Ors., [1981] l SCC 166 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
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SUPREME COURT REPORTS
[2007] I S.C.R
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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
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Constitution that can be struck down.
While referring these matters for
decision to a larger Bench, it was observed that preferably the matters be
placed before a Bench of nine Judges. This is how these matters have been
placed before us.
Broad Question
5. The fundamental question is whether on and after 24th April, 1973
when basic structures doctrine was propounded, it is permissible for the
Parliament under Article 31 B to immunize legislations from fundamental
rights by inserting them into the Ninth Schedule and, if so, what is its effect
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on the power of judicial review of the Court.
Development of the Law
6. First, we may consider, in brief, the factual background of framing
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of the Constitution and notice the developments that have taken place
almost since inception in regard to interpretation of some of Articles of the
Constitution.
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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 United States of America and Canada were
G
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
H
with original jurisdiction as contained in Article 32.
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.h.
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I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 721
8. The High Court of Patna in Kameshwar v. State ofBihar, AIR (1951)
A
Patna 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 affi('nded
the Constitution by adding Articles 31-A and 31-8 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
B
c
(First Amendment) Act, 1951. The same amendment added after Eighth
Schedule a new Ninth Schedule containing thirteen items, all relating to land
reform laws, immunizing 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
D
the rights conferred by Part III and any law made in contravention thereof
shall, to the extent of the contravention, be void.
9. Articles 3 lA and 3 lB read as under :
"31A. Saving of laws providing for acquisition of estates, etc.-
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[(I) Notwithstanding anything contained in article 13, no law
providing for -
(a)
the acquisition by the State of any estate or of any rights
therein or the extinguishment or modification of any such
rights, or
(b)
the taking over of the management of any property by the
State for a limited period either in the public interest or in
order to secure the proper management of the property, or
(c)
the amalgamation of two or more corporations either in the
public interest or in order to secure the proper management
of any of the corporations, or
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( d)
the extinguishment or modification of any rights of managing
agents, secretaries and treasurers, managing directors, directors
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SUPREME COURT REPORTS
[2007] I S.C.R.
or managers of corporations, or of any voting rights of
shareholders thereof, or
the extinguishment or modification of any rights accruing by
virtue of any agreement, lease or licence for the purpose of
searching for, or winning, any mineral or mineral oil, or the
premature termination or cancellation of any such agreement,
lease or licence,
shall be deemed to be void on the ground that it is inconsistent
with, or takes away or abridges any of the rights conferred by
article 14 or article 19 :
Provided that where such law is a law made by the Legislature of
a State, the provisions of this article shall not apply thereto unless
such law, having been reserved for the consideration of the
President, has received his assent :
Provided further that where any law makes any provision for
the acquisition by the State of any estate and where any land
comprised therein is held by a person under his personal cultivation,
it shall not be lawful for the State to acquire any portion of such
land as is within the ceiling limit applicable to him under any law
for the time being in force or any building or structure standing
thereon or appurtenant thereto, unless the law relating to the
acquisition of such land, building or structure, provides for payment
of compensation at a rate which shall not be less than the market
value thereof.
(2) In this article,-
(a)
the expression "estate", shall, in relation to any local area,
have the same meaning as that expression or its local equivalent
has in the existing law relating to land tenures in force in that
area and shall also include -
(i)
any jagir, inam or muafi or other similar grant and in the
States of Tamil Nadu and Kerala, any janmam right;
(ii)
any land held under ryotwary settlement;
)
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LR.COELHO (DEAD) BY LRs. v. STATE [Y.K.