I.R. Coelho v. State of Tamil Nadu:Case Analysis1 The nine judges' Bench presided by Mr. Justice Y.K.

Sabharwal, the then C.J.I. delivered a unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu and others2, upholding the 'Basic Structure Doctrine', and the authority of the judiciary to review any such laws , which destroy or damage the basic structure as indicated in Art.21 read with Art.14, Art.19 and the principles underlying there under, even if they have been put in 9th Schedule after 14th April, 1973. This case is popularly known as The Ninth Schedule Case. This case is famously known as the Ninth Schedule case due of the politics involved and the exhaustive discussions on the validity of the Article 31 (b) of our Indian Constitution. Brief Facts: The Gudalur Janmann Estates (Abolition and Conversion into Ryotwari), Act, 1969 (the Janman Act), in so far as it vested forest lands in the Janman estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd and Anr. V. State of Tamil Nadu3,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 Janman 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 Judges Bench. The Issues rose were: 1. Is it permissible to make the 9th Schedule immunized from the Judicial Review of the Supreme Court? 2. Whether the Basic Structure test would include Judicial Review of Ninth Schedule laws on the touchstone of Fundamental Rights?

1 2

Kumar Harshvardhan,Roll-68,sem-ii,sec-A,NUSRL,RANCHI (1999) 7 SCC 580 3 (1972) 2 SCC 133

THE CONTENTIONS

Contentions of the Petitioner

F.S. Nariman, submitted that it is impermissible to immunise the 9th Schedule from judicial review as it is violative of basic structure. The basic structure test will include judicial review of 9th Schedule on the touchstone of fundamental rights. The constitutional validity has to be judged on the direct impact and effect test, which means the impact and not the form of amendment, is relevant.

Contentions of the Respondent

Per contra the respondents submitted that validity of 9th Schedule can only be tested on touchstone of basic structure doctrine and there was no question of judicial review of such legislations on the ground of violation of fundamental rights, which stand excluded by protective umbrella of Art.31-B and therefore, the challenge can be based only on the ground of basic structure doctrine and in addition (1) lack of legislation competence and (2) violation of other constitutional provisions. It was contended that issues covered by majority judgment in Keshvanand Bharati case4.

The Court observed:The first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-vis the laws that 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 totally nullify Part III in so far as 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. The responsibility to judge the constitutionality of all laws is that judiciary.
4

(1973) 4 SCC 225

The Constitution Bench observed that, according to Waman Rao and Ors. v. Union of India and Ors.5 Amendments to the Constitution made on or after 24th April, 1973, inclusion of various Acts, regulations therein are 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. But, subsequently in the decisions of Minerva Mills Ltd. & Ors. v. Union of India & Ors6. And Maharao Sahib Shri Bhim Singhji v. Union of India & Ors.7 It was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench, and that if any act, rules or regulations inserted in the Ninth Schedule is found to be violative of Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. If Article 31B 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 not 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. 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 abridgements shall have to be examined in each case. 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.If 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 amend Ninth
5 6

(1981) 2 SCC 362 (1980) 3 SCC 625 7 (1981) 1 SCC 166

Schedule flows from Article 368. This power of amendments has to be compatible with the limits on the power of amendments. This limit came with the Kesavananda Bhartis case. Therefore Article 31-B 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 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.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 Ninth Schedule do not become part of the Constitution; they derive their validity on account of the exercise undertaken by the 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 and the exclusion of Part III in its entirety at the will of the Parliament. In Waman Rao, it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection. CRITICAL ANALYSIS The present case is entirely relied upon and the judgment is based upon the very famous case of His Holiness Kesavananda Bharti Sripadagalvaru v. State of Kerala and Anr. 8 The Supreme Court relied upon Dr. Amartya Sen, Lord Steyn, and Granville Austin in holding primacy of fundamental rights not on the assumption that they are higher rights but that their protection is the best way to promote a just and tolerant society and the right of judiciary to protect constitutionalism and further to declare that Art.14, 19 and 21 represent the foundational values, which form the basis of rule of law. These are principles of constitutionality, which form the basis of judicial review apart from the rule of law and separation of powers. Anything that destroys the balance will ipso facto destroy the essential elements of the basic structure of the Constitution.

[(1973) 4 SCC 225

The Court also relied upon James Madison, Federalist 47, 48 and 51 in which he discusses Montesquieu's treatment of the separation of powers in the spirit of laws 9 in which he writes that when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. Again there is no liberty, if judicial power be not separated from legislative and executive. Montesquieu finds Tyranny pervades where there is no separation of powers and Supreme Court found that Separation of powers is part of basic structure of the Constitution. The judgment is not in the adversial form in which the counsels raised arguments and the Court decided issues. It is rather a judgment of affirmation of the right of judicial review as the basic feature of the Constitution and to do away with the fictional immunity given by Art.31-B to the laws put in the well of the 9th Schedule. The judgment seeks to lay down the supremacy of the judicial review of the laws by Courts and none else and separation of powers and to guard the fundamental rights. It may be argued that in 2007 there is no threat to the private property rights as the country has shifted its stand from socialism to neo capitalism and that the goals have shifted from equal distribution of wealth to accumulation of wealth by the nation through the individuals, organisations and corporations, for economic growth without compromising with socialistic pattern of society. With weak governments at the centre there is no real or apparent threat abrogating the fundamental rights by constitutional amendments. The judgment in fact comes by way of affirming of the judicial powers of review of all the laws on the touchstone of rights guaranteed in Part III and thereafter basic structured doctrine. The unanimity of the judgment is a unique feature. So far all the cited judgments were delivered with divided opinions. It may be argued that since the law is fairly settled, there was no cause for division of opinion. But for the scholars of law the unanimity of opinion amongst judges even to establish law, is an encouraging feature of the strength of judiciary. References:(1) Balmadies Plantations Ltd. & Anr. Vs. State of Tamil Nadu, (1972) 2 SCC 133, (2) His Holiness Kesavananda Bharati, Sripadagalvaru Vs. State of Kerala & Anr., (1973) 4 SCC 225, (3) Minerva Mills Ltd. Vs. Union of India, (1980) 3 SCC 625, (4) Waman Rao & Ors. Vs. Union of India, (1981) 2 SCC 362, (5) Maharao Sahib Shri Bhim Singhji Vs. Union of India & Ors., (1981) 1 SCC 166, (6) I.R. Coelho (Dead) by Lrs. Vs. State of Tamil Nadu & Ors., (1999) 7 SCC 580

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(Book XI,Ch.6)