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CONSTITUTIONAL VALIDITY OF NINTH SCHEDULE OF CONSTITUTION OF INDIA

I.R. Coelho (Dead) By LRs. v. State of Tamil Nadu
AIR 2007 SC 861: 2007 (1) SCALE 197: (2007) 2 SCC 1
Judges: Y.K. Sabharwal, C.J. and Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain, JJ.
Date of Decision: 11-1-2007

FACTS
In this case the issue that was raised before the Supreme Court was the nature and character of protection provided by article 31B of the Constitution of India, 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 Keshavananda Bharati, Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225, was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments.

ISSUE
The fundamental question was 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 into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court?

JUDGMENT
The Constitution was framed after an indepth 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. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court is vested with original jurisdiction as contained in article 32.

In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845: (1965) 1 SCR 933, it was noted that articles 31A and 31B were added to the Constitution realizing that 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 31A and 31B 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 the Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment 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 might perhaps arise.

The decision in Keshavananda Bharati’s case was rendered on 24th April, 1973 by a 13 Judges Bench. The majority opinion held that article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the First Part of article 31C was also held to be valid. However, the Second Part of article 31C 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 Constitution 29th Amendment was held valid. The majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that article 368 had implied limitations. Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution. The majority held that the power of amendment of the Constitution under article 368 did not enable Parliament to alter the basic structure of the Constitution.

The rights and freedoms created by the Fundamental Rights Chapter could 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 31B but that was inevitable in view of the progress the laws had made post-Keshavananda Bharati’s case which had limited the power of the Parliament to amend the Constitution under article 368 of the Constitution by making it subject to the doctrine of basic structure.

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, Supreme Court has been vested with the power to ensure compliance of Part III. The responsibility to judge the constitutionality of all laws is that of judiciary. Thus, when power under article 31B 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.

The 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. 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 basic structure then it will be struck down. The extent of abrogation and limit of abridgement shall have to be examined in each case.

Article 31B 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 the Keshavananda Bharati’s case. Therefore article 31B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity. To legislatively override entire Part III of the Constitution by invoking article 31B 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.

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. 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.

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. 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, 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.

The power to grant absolute immunity at will is not compatible 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, article 19, and article 15 and the principles underlying these Articles. The doctrine of basic structure as a principle has now become an axiom. Prior to Keshavananda Bharati, the axiom was not there. Fictional validation based on the power of immunity exercised by the 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. The Supreme Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinize 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.

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. The 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. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle of articles 14, 19 and 21 is the basic feature of the Constitution as it stands for equality and rule of law.

HELD
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 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.

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 or pertain to the basic structure.

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