Coelho Vs. State of Tamil Nadu &
Ors  Insc 31 (11 January 2007)
Sabharwal Ashok Bhan Arijit Pasayat B.P. Singh, S.H. Kapadia C.K. Thakker &
P.K. Balasubramanyan Altamas Kabir D.K. Jain
WP (C) Nos.242 of 1988, 751 of 1990, CA Nos.6045 & 6046 of 2002, WP (C)
No.408/03, SLP (C) Nos.14182, 14245, 14248, 14249, 26879, 14946, 14947, 26880,
26881, 14949, 26882, 14950, 26883, 14965, 26884, 14993, 15020, 26885, 15022,
15029, 14940 & 26886 of 2004, WP (C) Nos.454, 473 & 259 of 1994, WP (C)
No.238 of 1995 and WP (C) No.35 of 1996] Y.K. Sabharwal, CJI.
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 Kerala & Anr.
[(1973) 4 SCC 225] was pronounced propounding the doctrine of Basic Structure
of the Constitution to test the validity of constitutional amendments.
Order of Reference The order of reference made more than seven years ago by a
Constitution Bench of Five Judges is reported in I.R.
(Dead) by LRs. 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 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 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.
These insertions were the subject matter of challenge before a Five Judge
contention urged before the Constitution Bench was that the statutes, inclusive
of the portions thereof which had been struck down, could not have been validly
inserted in the Ninth Schedule.
referral order, the Constitution Bench observed that, according 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 basic
structure. The decision in Minerva Mills Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625)], Maharao
Sahib Shri Bhim Singhji v. Union of India
& Ors. [(1981) 1 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 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.
Question 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 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.
of the Law First, we may consider, in brief, the factual background of framing
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 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 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.
High Court of Patna in Kameshwar v. State of Bihar [AIR 1951 Patna 91] held
that a Bihar legislation relating to land
reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the
corresponding legislative measures passed in those States.
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 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 the rights conferred by Part III and any law made in
contravention thereof shall, to the extent of the contravention, be void.
31A and 31B read as under :
"Saving of laws providing for acquisition of estates, etc.
anything contained in article 13, no law providing for:-
by the State of any estate or of any rights therein or the extinguishment or
modification of any such rights, or
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
of two or more corporations either in the public interest or in order to secure
the proper management of any of the corporations, or
extinguishment or modification of any rights of managing agents, secretaries
and treasurers, managing directors, directors or managers of corporations, or
of any voting rights of shareholders thereof, or
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 :
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 :
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.
"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
any jagir, inam
or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any
any land held
under ryotwary settlement;
any land held or
let for purposes of agriculture or for purposes ancillary thereto, including
waste land, forest land, land for pasture or sites of buildings and other
structures occupied by cultivators of land, agricultural labourers and village
"rights", in relation to an estate, shall include any rights vesting
in a proprietor, sub- proprietor, under-proprietor, tenure- holder, raiyat,
under-raiyat or other intermediary and any rights or privileges in respect of
Validation of certain Acts and Regulations.:-
prejudice to the generality of the provisions contained in article 31A, none of
the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on
the ground that such Act, Regulation or provision is inconsistent with, or
takes away or abridges any of the rights conferred by any provisions of this
Part, and notwithstanding any judgment, decree or order of any court or tribunal
to the contrary, each of the said Acts and Regulations shall, subject to the
power of any competent Legislature to repeal or amend it, continue in
force." The Constitutional validity of the First Amendment was upheld in
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [(1952) SCR 89].
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
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 [(1965) 1 SCR 933] the law declared
in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were
added to the Constitution realizing 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 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 may perhaps
Hidayattulah, and Justice J.R. Mudholkar, concurred with the opinion of Chief
Justice Gajendragadkar upholding the amendment but, at the same time, expressed
reservations about the effect of possible future amendments on Fundamental
Rights and basic structure of the Constitution. Justice Mudholkar questioned
that "It is also a matter for consideration whether making a change in a
basic feature of the Constitution can be regarded merely as an amendment or
would it be, in effect, rewriting a part of the Constitution; and if the
latter, would it be within the purview of the Article 368?" In I.C. Golak Nath
& Ors. v. State of Punjab & Anr.
2 SCR 762] a Bench of 11 Judges considered the correctness of the view that had
been taken in Sankari Prasad and Sajjan Singh (supra). 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 the Parliament will have no power
from the date of the decision (27th February, 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.
after Golak Nath's case, the Constitution (24th Amendment) Act, 1971, the
Constitution (25th Amendment) Act, Act, 1971, the Constitution (26th Amendment)
Act, 1971 and the Constitution (29th Amendment) Act, 1972 were passed.
Constitution (24th Amendment) Act, 1971, Article 13 was amended and after
clause (3), the following clause was inserted as Article 13(4) :
Nothing in this article shall apply to any amendment of this Constitution made
under article 368." Article 368 was also amended and in Article 368(1) the
words "in exercise of its constituent powers" were inserted.
Constitution (25th 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 31B of the Constitution, Article 31C was inserted,
of laws giving effect to certain directive principles.
anything contained in article 13, no law giving effect to the policy of the
State towards securing all or any of the principles laid down in Part IV 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 and 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 :
that where such law is 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." The
Constitution (26th Amendment) Act, 1971 omitted from Constitution Articles 291
(Privy Purses) and Article 362 (rights and privileges of Rulers of Indian
States) and inserted Article 363A after Article 363 providing that recognition
granted to Rulers of Indian States shall cease and privy purses be abolished.
Constitution (29th 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 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act,
1971 (Kerala Act 35 of 1971).
amendments were challenged in Kesavananda Bharati's case. The decision in Kesavananda
Bharati's case was rendered on 24th April, 1973
by a 13 Judges Bench and by majority of seven to six Golak Nath's case was overruled. 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 validity of the 26th Amendment was left to be determined by a Constitution
Bench of five Judges.
majority opinion did not accept the unlimited power of the Parliament to amend
the Constitution and instead held that Article 368 has implied limitations.
Article 368 does not enable the Parliament to alter the basic structure or
framework of the Constitution.
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 (39th
Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article
329A after Article 329. Sub-clauses (4) and (5) of Article 329A read as under :
made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far 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
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)." 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.
Indira Nehru Gandhi v. Raj Narain [1975 Supp. (1) SCC 1] the aforesaid clauses
were struck down by holding them to be violative of the basic structure of the
two weeks before the Constitution Bench rendered decision in Indira Gandhi's
case, internal emergency was proclaimed in the country. During the emergency
from 26th June, 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
Constitution (40th Amendment) Act, 1976.
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
368 was amended by the Constitution (42nd 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) :
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.
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." After the end of internal emergency, the Constitution (44th
Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-clauses (f)
of Article 19 with the result the right to property ceased to be a fundamental
right and it became only legal right by insertion of Article 300A in the
14, 19 and 21 became enforceable after the end of emergency. The Parliament
also took steps to protect fundamental rights that had been infringed during
of Internal Security Act, 1971 and the Prevention of Publication of
Objectionable Matter Act, 1976 which had been placed in the Ninth Schedule were
Constitution (44th Amendment) Act also amended Article 359 of the Constitution
to provide that even though other fundamental rights could be suspended during
the emergency, rights conferred by Articles 20 and 21 could not be suspended.
emergency, the fundamental rights were read even more restrictively as
interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant
Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of
right to life and liberty stood impliedly overruled by various subsequent
fundamental rights received enlarged judicial interpretation in the
post-emergency period. Article 21 which was given strict textual meaning in A.K
Gopalan v. The State of Madras [1950 SCR 88] interpreting the words
"according to procedure established by law" to mean only enacted law,
received enlarged interpretation in Menaka Gandhi v. Union of India [(1978) 1
SCC 248]. A.K. Gopalan was no longer good law. In Menaka 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.
Minerva Mills case (supra), the Court struck down clauses (4) and (5) and
Article 368 finding that they violated the basic structure of the Constitution.
next decision to be noted is that of Waman Rao (supra). The developments that
had taken place post- Kesavananda Bharati's case have been noticed in this
Singhji (supra), challenge was made to the validity of Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted
in the Ninth Schedule after Kesavananda Bharati's 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 300A.
held in L. Chandra Kumar v. Union of India & Ors. [(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
Constitution of India.
Amendment of Ninth Schedule It would be convenient to note at one place,
various constitutional amendments which added/omitted various Acts/provisions
in Ninth Schedule from Item No.1 to 284. It is as under :
Acts/Provisions added 1st Amendment (1951) 1-13 4th Amendment (1955) 14-20 17th
Amendment (1964) 21-64 29th Amendment (1971) 65-66 34th Amendment (1974) 67-86
39th Amendment (1975) 87-124 40th Amendment (1976) 125-188 47th Amendment
(1984) 189-202 66th Amendment (1990) 203-257 76th Amendment (1994) 257A 78th
Amendment (1995) 258-284 Omission In 1978 item 92 (Internal Security Act) was
repealed by Parliamentary Act.
1977 item 130 (Prevention of Publication of Objectionable Matter) was repealed.
1978 the 44th amendment omitted items 87 (The Representation of People Act), 92
and 130." Many additions are unrelated to land reforms.
question is as to the scope of challenge to Ninth Schedule laws after 24th
April, 1973 Article 32 The significance of jurisdiction conferred on this Court
by Article 32 is described by Dr. B.R. Ambedkar as follows "most important
Article without which this Constitution would be nullity" Further, it has
been described as "the very soul of the Constitution and the very heart of
may also be made to the opinion of Chief Justice Patanjali Sastri in State of
Madras v. V.G. Row [1952 SCR 597] to the following effect :
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." 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 [see Fertilizer Corporation Kamgar
Union (Regd.), Sindri & Ors. v. Union of India and Ors.[(1981) 1 SCC 568],
State of Rajasthan v.
Union of India & Ors. [(1977) 3 SCC
592], M. Krishna Swami v. Union of India
& Ors. [(1992) 4 SCC 605], Daryao & Ors. v. The State of U.P. & Ors. [(1962) 1 SCR 574] and L. Chandra Kumar
S.R. Bommai & Ors. v. Union of India
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.
the duty of this Court to uphold the constitutional values and enforce
constitutional limitations as the ultimate interpreter of the Constitution.
of Construction 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.
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
centers 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
Law Constitutionalism The protection of fundamental constitutional rights
through the common law is main feature of common law constitutionalism.
to Dr. Amartya Sen, the justification for protecting fundamental rights is not
on the assumption that they are higher rights, but that protection is the best
way to promote a just and tolerant society.
to Lord Steyn, judiciary is the best institution to protect fundamental rights,
given its independent nature and also because it involves interpretation based
on the assessment of values besides textual interpretation. It enables application
of the principles of justice and law.
the controlled Constitution, the principles of checks and balances have an
important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain
circumstances, Courts may be forced to modify the principle of parliamentary
sovereignty, for example, in cases where judicial review is sought to be
abolished. By this the judiciary is protecting a limited form of
constitutionalism, ensuring that their institutional role in the Government is
of Constitutionality There is a difference between Parliamentary and
constitutional sovereignty. Our Constitution is framed by a Constituent
Assembly which was not the 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 constituent 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's case
has to apply.
Austin has been extensively quoted and relied on in Minerva Mills. Chief
Justice Chandrachud 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.
rights occupy a unique place in the lives of civilized societies and have been
described in judgments as "transcendental", "inalienable"
and "primordial". They constitute the ark of the Constitution. (Kesavananda
Bharati P.991, P.999). 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 Part 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 the essential element of the basic structure of the Constitution.
[Emphasis supplied] (Para 57). 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 31C 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 if 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
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.
observations of Justice Bhagwati in Minerva Mills case show how clause (4) of
Article 368 would result in enlarging the amending power of the Parliament
contrary to dictum in Kesavananda Bharati's case. The learned Judge has said in
Paragraph 85 that :
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's 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." In Minerva
Mills while striking down the enlargement of Article 31C through 42nd Amendemnt
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", Justice Chandrachud said :
4 of the Constitution (42nd Amendment) Act is beyond the amending power of the
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." In Indira Gandhi's 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.
in Constitutional Law of India (Fourth Edition) says that "the judgment in
the election case break new ground, which has important effects on Kesavananda Bharati's
case itself (Para 30.18). Further the author says that "No one can now
write on the amending power, without taking into account the effect of the
Election case". (Para 30.19). The author then goes on to
clarify the meaning of certain concepts 'constituent power', 'Rigid'
(controlled), or 'flexible' (uncontrolled) constitution, 'primary power', and
distinction is drawn by the author between making of a Constitution by a
Constituent Assembly which was not subject to restraints by any external
authority as a plenary law making power and a power to amend the Constitution,
a derivative power derived from the Constitution and subject to the limitations
imposed by the Constitution. No provision of the Constitution framed in
exercise of plenary law making power can be ultra vires because there is no
touch-stone outside the Constitution by which the validity of provision of the
Constitution can be adjudged. The power for amendment cannot be equated with
such power of framing the Constitution. The amending power has to be within the
Constitution and not outside it.
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 (Chief
Justice Chandrachud in Indira Gandhi's case).
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.
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.
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. In The State of Bombay v. Bhanji Munji & Anr. [(1955)
1 SCR 777] relying on the ratio of Gopalan it was held that Article 31 was
independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v.
Union of India [(1970) 3 SCR 530] (popularly known as Bank Nationalization
case) the view point of Gopalan was seriously disapproved. While rendering this
decision, the focus of the Court was on the actual impairment caused by the
law, rather than the literal validity of the law. This view was reflective of
the decision taken in the case of Sakal Papers (P) Ltd. & Ors. v. The Union
of India [(1962) 3 SCR 842] where the court was faced with the validity of
certain legislative measures regarding the control of newspapers and whether it
amounted to infringement of Article 19(1)(a). While examining this question the
Court stated that the actual effect of the law on the right guaranteed must be
taken into account. This ratio was applied in Bank Nationalization case. The
Court examined the relation between Article 19(1)(f) and Article 13 and held
that they were not mutually exclusive. The ratio of Gopalan was not approved.
taken in Bank Nationalization case has been reiterated in number of cases (see Sambhu
Nath Sarkar v.
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] and
finally the landmark judgment in the case of Maneka Gandhi (supra).
upon Cooper's case it was said that Article 19(1) and 21 are not mutually
exclusive. The Court observed in Maneka Gandhi's case:
law, must, therefore, now be taken to be well settled that Article 21 does not
exclude Article 19 and that even if there is a law prescribing a procedure for
depriving a person of 'personal liberty' and there is consequently no
infringement of the fundamental right conferred by Article 21, such law, in so
far as it abridges or takes away any fundamental right under Article 19 would
have to meet the challenge of that article.
proposition can no longer be disputed after the decisions in R. C.
case, Shambhu Nath Sarkar's case and Haradhan Saha's case. Now, if a law
depriving a person of ''personal liberty' and prescribing a procedure for that
purpose within the meaning of Article 21 has to stand the test of one or more
of the fundamental rights conferred under Article 19 which may be applicable in
a given, situation, ex hypothesi it must also' be liable to be tested with
reference to Article 14. This was in fact not disputed by the learned Attorney
General and indeed he could not do so in view of the clear and categorical
statement made by Mukherjea, J., in A. K. Gopalan's case that Article 21
"presupposes that the law is a valid and binding law under the provisions
of the Constitution having regard to the competence of the legislature and the
subject it "relates to and does not infringe any of the fundamental rights
which the Constitution provides for", including Article 14. This Court
also applied Article 14 in two of its earlier decisions, namely, The State of
West Bengal v. Anwar Ali Sarkar  S.C.R. 284 and Kathi Raning Rawat v. The
State of Saurashtra  S.C.R. 435]" [emphasis supplied] The decision
also stressed on the application of Article 14 to a law under Article 21 and
stated that even principles of natural justice be incorporated in such a test.
It was held:
fact equality and arbitrariness are sworn enemies; one belongs to the rule of
law in a republic, while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore violative
of Article 14". Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality
or non-arbitrariness pervades Article 14 like a brooding omnipresence and the
procedure contemplated by Article 21 must answer the best of reasonableness in
order to be in conformity with Article 14. It must be "right and just and
fair" and not arbitrary, fanciful or oppressive;
it would be no procedure at all and the requirement of Article 21 would not be
procedure which permits impairment of the constitutional right to go abroad
without giving reasonable opportunity to show cause cannot but be condemned as
unfair and unjust and hence, there is in the present case clear infringement of
the requirement of Article 21".
supplied] The above position was also reiterated by Krishna Iyer J., as follows
Gopalan (supra) verdict, with the cocooning of Article 22 into a self contained
code, has suffered supersession at the hands of R. C.
By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist
and the proprietariat have asserted them in Court, partially provoke
sociological research and hesitantly project the Cardozo thesis of sub-
conscious forces in judicial noesis when the cyclorarmic review starts from Gopalan,
moves on to In re : Kerala Education Bill and then on to All India Bank
Employees Union, next to Sakal Newspapers, crowning in Cooper  3 S.C.R.
530 and followed by Bennet Coleman and Sambu Nath Sarkar. Be that as it may,
the law is now settled, as I apprehend it, that no article in Part III is an
island but part of a continent, and the conspectus of the whole part gives the
directions and correction needed for interpretation of these basic provisions.
not dissectible into separate limbs and, likewise, cardinal rights in an
organic constitution, which make man human have a synthesis. The proposition is
indubitable that Article 21 does not, in a given situation, exclude Article 19
if both rights are breached." [emphasis supplied] 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's 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.
approach in the interpretation of fundamental rights has been evidenced in a
recent case M. Nagaraj & Ors. v.
Union of India & Ors. [(2006) 8 SCC
212] in which the Court noted:
principle of interpretation is particularly apposite to the interpretation of
fundamental rights. It is a fallacy to regard fundamental rights as a gift from
the State to its citizens. Individuals possess basic human rights independently
of any constitution by reason of the basic fact that they are members of the human
race. These fundamental rights are important as they possess intrinsic value.
Part-III of the Constitution does not confer fundamental rights. It confirms
their existence and gives them protection. Its purpose is to withdraw certain
subjects from the area of political controversy to place them beyond the reach
of majorities and officials and to establish them as legal principles to be
applied by the courts.
right has a content. Every foundational value is put in Part-III as fundamental
right as it has intrinsic value. The converse does not apply. A right becomes a
fundamental right because it has foundational value. Apart from the principles,
one has also to see the structure of the Article in which the fundamental value
right is a limitation on the power of the State. A Constitution, and in
particular that of it which protects and which entrenches fundamental rights
and freedoms to which all persons in the State are to be entitled is to be
given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India and Ors.
[AIR 1967 SC 305] this Court has held that while considering the nature and
content of fundamental rights, the Court must not be too astute to interpret
the language in a literal sense so as to whittle them down. The Court must
interpret the Constitution in a manner which would enable the citizens to enjoy
the rights guaranteed by it in the fullest measure. An instance of literal and
narrow interpretation of a vital fundamental right in the Indian Constitution
is the early decision of the Supreme Court in A.K. Gopalan v. State of Madras.
Article 21 of the Constitution provides that no person shall be deprived of his
life and personal liberty except according to procedure established by law. The
Supreme Court by a majority held that 'procedure established by law' means any
procedure established by law made by the Parliament or the legislatures of the
State. The Supreme Court refused to infuse the procedure with principles of
natural justice. It concentrated solely upon the existence of enacted law.
After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan
and held in its landmark judgment in Maneka Gandhi v. Union of India [(1978) 1
SCC 248] that the procedure contemplated by Article 21 must answer the test of
reasonableness. The Court further held that the procedure should also be in
conformity with the principles of natural justice. This example is given to
demonstrate an instance of expansive interpretation of a fundamental right. The
expression 'life' in Article 21 does not connote merely physical or animal
existence. The right to life includes right to live with human dignity. This
Court has in numerous cases deduced fundamental features which are not
specifically mentioned in Part-III on the principle that certain unarticulated
rights are implicit in the enumerated guarantees".
supplied] 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.
of Powers The separation of powers between Legislature, Executive and the
Judiciary constitutes basic structure, has been found in Kesavananda Bharati's
case by the majority. Later, it was reiterated in Indira Gandhi's case. A large
number of judgments have reiterated that the separation of powers is one of the
basic features of the Constitution.
fact, it was settled centuries ago that for preservation of liberty and
prevention of tyranny it is absolutely essential to vest separate powers in
three different organs. In Federalist 47, 48, and 51 James Madison details how
a separation of powers preserves liberty and prevents tyranny. In Federalist
47, Madison discusses Montesquieu's treatment
of the separation of powers in the Spirit of Laws (Boox XI, Ch. 6).
Montesquieu writes, "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 the judicial power be not separated
from the legislative and executive." Madison points out that Montesquieu did not feel that different branches could
not have overlapping functions, but rather that the power of one department of
government should not be entirely in the hands of another department of
Hamilton in Federalist 78 remarks on the importance of the independence of the
judiciary to preserve the separation of powers and the rights of the people:
complete independence of the courts of justice is peculiarly essential in a
limited Constitution. By a limited Constitution, I understand one which
contains certain specified exceptions to the legislative authority; such, for
instance, that it shall pass no bills of attainder, no ex post facto laws, and
the like. Limitations of this kind can be preserved in practice in no other way
than through the medium of courts of justice, whose duty it must be to declare
all acts contrary to the manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount to
nothing." (434) Montesquieu finds tyranny pervades when there is no
separation of powers:
would be an end of everything, were the same man or same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws,
that of executing the public resolutions, and of trying the causes of
individuals." 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 recognized by this
Court in Special Reference No.1 of 1964 [(1965) 1 SCR 413].
In the light of aforesaid developments, the main thrust of the argument of the
petitioners is that post-1973, it is impermissible to immunize 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
relying upon the clarification of Khanna, J, as given in Indira Gandhi's case,
in respect of his opinion in Kesavananda Bharati's case, it is no longer
correct to say that fundament rights are not included in the basic structure.
the contention proceeds that since fundamental rights form a part of basic
structure and thus laws inserted into Ninth Schedule when tested on the ground
of basic structure shall have to be examined on the fundamental rights test.
key question, however, is whether the basic structure test would include
judicial review of 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 Ninth Schedule laws cannot be
conferred with constitutional immunity of the kind created by Article 31B.
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
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, Ninth Schedule laws as valid.
other hand, the contention urged on behalf of the respondents is that the
validity of Ninth Schedule legislations can only be tested on the touch-stone
of basic structure doctrine as decided by majority in Kesavananda Bharati's
case which also upheld the Constitution 29th Amendment unconditionally and thus
there can be no question of judicial review of such legislations on the ground
of violation of fundamental rights chapter. The fundamental rights chapter, it
is contended, stands excluded as a result of protective umbrella provided by
Article 31B and, therefore, the challenge can only be based on the ground of
basic structure doctrine and in addition, legislation can further be tested for
(i) lack of legislative competence and (ii) violation of other constitutional
provisions. This would also show, counsel for the respondents argued, that
there is no exclusion of judicial review and consequently, there is no
violation of the basic structure doctrine.
it was contended that the constitutional device for retrospective validation of
laws was well known and it is legally permissible to pass laws to remove the
basis of the decisions of the Court and consequently, nullify the effect of the
decision. It was submitted that Article 31B and the amendments by which
legislations are added to the Ninth Schedule form such a device, which 'cure
the defect' of legislation.
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 distinction is sought to be drawn between
the necessity for the judiciary in a written constitution and judicial review
by the judiciary.
the existence of judiciary is part of the basic framework of the Constitution
and cannot be abrogated in exercise of constituent power of the Parliament
under Article 368, the power of judicial review of the judiciary can be
curtailed over certain matters. The contention is that there is no judicial
review in absolute terms and Article 31B only restricts that judicial review
power. 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 question to be asked in each case is, does
the particular exclusion alter the basic structure. Giving immunity of Part III
to the Ninth Schedule laws from judicial review, does not abrogate judicial
review from the Constitution. Judicial review remains with the court but with
its exclusion over Ninth Schedule laws to which Part III ceases to apply. The
effect of placing a law in Ninth Schedule is that it removes the fetter of Part
III by virtue of Article 31B but that does not oust the court jurisdiction. It
was further contended that Justice Khanna in Kesavananda Bharati's case held
that subject to the retention of the basic structure or framework of the
Constitution, the power of amendment is plenary and will include within itself
the power to add, alter or repeal various articles including taking away or
abridging fundamental rights and that the power to amend the fundamental rights
cannot be denied by describing them as natural rights. The contention is that
the majority in Kesavananda Bharati's case held that there is no embargo with
regard to amending any of the fundamental rights in Part III subject to basic
structure theory and, therefore, the petitioners are not right in the
contention that in the said case the majority held that the fundamental rights
form part of the basic structure and cannot be amended. The further contention
is that if fundamental rights can be amended, which is the effect of Kesavananda
Bharati's case overruling Golak Nath's case, then fundamental rights cannot be
said to be part of basic structure unless the nature of the amendment is such
which destroys the nature and character of the Constitution. It is contended
that the test for judicially reviewing the Ninth Schedule laws cannot be on the
basis of mere infringement of the rights guaranteed under Part III of the
Constitution. The correct test is whether such laws damage or destroy that part
of fundamental rights which form part of the basic structure. Thus, it is
contended that judicial review of Ninth Schedule laws is not completely barred.
The only area where such laws get immunity is from the infraction of rights
guaranteed under Part III of the Constitution.
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 31B read with Article 368 of the
Constitution. In Kesavananda Bharti's case, the majority opinion upheld the
validity of the Kerala Act which had been set aside in Kunjukutty Sahib etc.
State of Kerala & Anr. [(1972) 2 SCC 364] 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 & Ors. v. Man Singh Suraj Singh Padvi & Ors.
[(1978) 1 SCC 615], a Seven Judge Constitution Bench, post-decision in Kesavananda
Bharati's case upheld Constitution (40th Amendment) Act, 1976 which was
introduced when the appeal was pending in Supreme Court and thereby included
the regulations in the Ninth Schedule. It was held that Article 31B 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.
also contended that the power to pack up laws in the Ninth Schedule in absence
of any indicia in Article 31B 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 31B 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.
of 31B There was some controversy on the question whether validity of Article
31B was under challenge or not in Kesavananda Bharati. On this aspect, Chief
Justice Chandrachud has to say this in Waman Rao :
Singh v. State of Rajasthan [(1965) 1 SCR 933], the Court
refused to reconsider the decision in Sankari Prasad (supra), with the result
that the validity of the 1st Amendment remained unshaken. In Golaknath, it was
held by a majority of 6 : 5 that the power to amend the Constitution was not
located in Article 368. The inevitable result of this holding should have been
the striking down of all constitutional amendments since, according to the view
of the majority, Parliament had no power to amend the Constitution in pursuance
of Article 368. But the Court resorted to the doctrine of prospective
overruling and held that the constitutional amendments which were already made would
be left undisturbed and that its decision will govern the future amendments
only. As a result, the 1st Amendment by which Articles 31A and 31B were
introduced remained inviolate. It is trite knowledge that Golaknath was
overruled in Kesavananda Bharati (supra) in which it was held unanimously that
the power to amend the Constitution was to be found in Article 368 of the
petitioners produced before us a copy of the Civil Misc. Petition which was
filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for
were modified. It appears thereform that what was challenged in that case was
the 24th, 25th and the 29th Amendments to the Constitution. The validity of the
1st Amendment was not questioned Khanna J., however, held-while dealing with
the validity of the unamended Article 31C that the validity of Article 31A was
upheld in Sankari Prasad, (supra) that its validity could not be any longer
questioned because of the principle of stare decisis and that the ground on
which the validity of Article 31A was sustained will be available equally for
sustaining the validity of the first part of Article 31C (page 744) (SCC p.812,
have examined various opinions in Kesavananda Bharati's case but are unable to
accept the contention that Article 31B 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's
case were examined assuming the constitutional validity of Article 31B. Its
validity was not in issue in that case. Be that as it may, we will assume
Article 31B as valid. The validity of the 1st Amendment inserting in the
Constitution, Article 31B is not in challenge before us.
in issue The real crux of the problem is as to the extent and nature of
immunity that Article 31B can validly provide. To decide this intricate issue,
it is first necessary to examine in some detail the judgment in Kesavananda Bharati's
case, particularly with reference to 29th Amendment.
Bharati's case The contention urged on behalf of the respondents that all the
Judges, except Chief Justice Sikri, in Kesavananda Bharati's case held that
29th Amendment was valid and applied Jeejeebhoy's case, is not based on correct
ratio of Kesavananda Bharati's case. Six learned Judges (Ray, Phalekar, Mathew,
Beg, Dwivedi and Chandrachud, JJ) who upheld the validity of 29th Amendment did
not subscribe to basic structure doctrine. The other six learned Judges (Chief
Justice Sikri, Shelat, Grover, Hegde, Mukherjee 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.
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's
case, insofar as it relates to laying down the doctrine of basic structure,
held 29th Amendment unconditionally valid.
laying the foundation of basic structure doctrine to test the amending power of
the Constitution, Justice Khanna 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 which held 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
Khanna upheld the 29th Amendment in the following terms:
may now deal with the Constitution (Twenty ninth Amendment) Act. This Act, as
mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of
1971 as entries No. 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." In his final conclusions, with respect to the Twenty-ninth
Amendment, Khanna, J. held as follows:
The Constitution (Twenty-ninth Amendment) Act does not suffer from any
infirmity and as such is valid." 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.
have also relied on observations by Ray CJ., as quoted below, in Indira Gandhi
(supra). In that case, Ray CJ. observed:
Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharati's
case. The 29th 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 29th
Amendment Act. The view of seven Judges in Kesavananda Bharati's 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.
29th Amendment is affirmed in Kesavananda Bharati's case (supra) by majority of
seven against six Judges.
the majority view in Kesavananda Bharati's 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] The respondents have particularly
relied on aforesaid highlighted portions.
issue of how 29th Amendment in Kesavananda Bharati case was decided, in Minerva
Mills, Bhagwati, J.
said thus :
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 Sajian Singh's 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 31A with the
possible exception of only four Acts referred to above, I do not think, we
would be justified in re-opening 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." To us, it seems that the position is
correctly reflected in the aforesaid observations of Bhagwati, J. and with respect
we feel that Ray CJ. is not correct in the conclusion that 29th Amendment was
unanimously upheld. Since the majority which propounded the basic structure
doctrine did not unconditionally uphold the validity of 29th Amendment and six
learned judges forming 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 29th mendment in Kesavananda Bharati case is not conclusive of
matters under consideration before us.
order to understand the view of Khanna J. in Kesavananda Bharati (supra), it is
important to take into account his later clarification. In Indira Gandhi
(supra), Khanna J. made it clear that he never opined that fundamental rights
were outside the purview of basic structure and observed as follows:
was a controversy during the course of arguments on the point as to whether I
have laid down in my judgment in Kesavananda Bharati's 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.
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.
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".
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.
an analysis is supported by Seervai, in his book Constitutional Law of India
(4th edition, Volume III), as follows:
in his judgment in the Election Case, Khanna J. clarified his judgment in Kesavananda's
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 Sch. IX were unconconditionally 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 Sch. IX after 25 April, 1973 were not unconditionally valid, but
would have to stand the test of fundamental rights. (Para 30.48, page 3138) But while the clarification in the
Election Case simplifies one problem the scope of amending power it raises
complicated problems of its own. Was Khanna J.
holding Art. 31-B (and Sch. 9) unconditionally valid? An answer to these
questions requires an analysis of the function of Art. 31-B and Sch.
Art. 31-B and Sch. 9 first, their effect is to confer validity on laws already
enacted which would be void for violating one of more of the fundamental rights
conferred by Part III (fundamental rights).
the power of amendment is limited by the doctrine of 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 Sch.9 [footnote: This
is clear from the provision of Article 31-B that such laws are subject to the
power of any competent legislature to repeal or amend them that no State
legislature has the power to repeal or amend the Constitution, nor has
Parliament such a power outside Article 368, except where such power is
conferred by a few articles.] 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 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.
Parliament, exercising constituent power cannot enact an amendment destroying
the secular character of the State, neither can Parliament, exercising its
constituent power, permit the 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.
hold otherwise would be to abandon the doctrine of 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 Sch. 9. Such a result is consistent with the view that some
fundamental rights are a part of the basic structure, as Khanna J. said in his
clarification. (Para30.65, pages 3150- 3151) 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 Art. 31-B and Sch. 9 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 Acts included in Sch. 9 would have to be scrutinized
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. (Para30.65, page 3151)" The decision in Kesavananda Bharati
(supra) regarding the Twenty-ninth amendment is restricted to that particular
amendment and no principle flows therefrom.
unable to accept the contention urged on behalf of the respondents that in Waman
Rao's case Justice Chandrachud and in Minerva Mills case, Justice Bhagwati have
not considered the binding effect of majority judgments in Kesavananda Bharati's
case. In these decisions, the development of law post-Kesavananda Bharati's
case has been considered. The conclusion has rightly been reached, also having regard
to the decision in Indira Gandhi's case that post-Kesavananda Bharati's case or
after 24th April, 1973, the Ninth Schedule laws will not
have the full protection. The doctrine of basic structure was involved in Kesavananda
Bharati's case but its effect, impact and working was examined in Indira
Gandhi's case, Waman Rao's case and Minerva Mills case. To say that these
judgments have not considered the binding effect of the majority judgment in Kesavananda
Bharati's case is not based on a correct reading of Kesavananda Bharati.
issue of equality, we do not find any contradiction or inconsistency in the
views expressed by Justice Chandrachud in Indira Gandhi's case, by Justice
Krishna Iyer in Bhim Singh's case and Justice Bhagwati 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.
we examine the extent of immunity that is provided by Article 31B. 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 Chief Justice Sikri.
Substantially, similar separate opinions were expressed by Shelat, Grover, Hegde,
Mukherjea and Reddy, JJ. In the four different opinions six learned judges came
to substantially the same conclusion. These judges read an implied limitation
on the power of the Parliament to amend the Constitution. Justice Khanna 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 29th Amendment and did not say, like 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. Justice Khanna, however, does not so
say in Kesavananda Bharati's case. Therefore, Kesavananda Bharati's case cannot
be said to have held that fundamental rights chapter is not part of basic
structure. Justice Khanna, while considering 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. Justice Khanna did not want to
elevate the right to property under Article 19(1)(f) to the level and status of
basic structure or basic frame-work of the Constitution, that explains the
ratio of Kesavananda Bharati's case. Further, doubt, if any, as to the opinion
of Justice Khanna stood resolved on the clarification given in Indira Gandhi's
case, by the learned Judge that in Kesavananda Bharati's case, he never held
that fundamental rights are not a part of the basic structure or framework of
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 31B
but that is inevitable in view of the progress the laws have made post-Kesavananda
Bharati's case which has 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.
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 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 to 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.
examining the validity of Article 31C in Kesavananda Bharati's 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 31C was held to
be beyond the permissible limits of power of amendment of the Constitution
under Article 368.
doctrine of basic structure provides a touchstone to test the amending power or
its exercise, there can be no dobt 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
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.
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.
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.
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
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's 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.
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.
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.
also contended for the respondents that Article 31A excludes judicial review of
certain laws from the applications of Articles 14 and 19 and that Article 31A
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 31A 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 31C applies as a yardstick the criteria of sub-clauses (b)
and (c) of Article 39 which refers to equitable distribution of resources.
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 Article 16(4) (4A) (4B) and, therefore,
it is wrong to suggest that equity and justice finds place only in 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. 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 respondents 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 31B. 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, 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.
enunciation of the basic structure doctrine, full judicial review is an
integral part of the constitutional scheme.
Khanna in Kesavananda Bharati's 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 Justice Khanna 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 Justice Khanna in Indira Gandhi clearly indicates
that the view in Kesavananda Bharati's case is that at least some fundamental
rights do form part of basic structure of the Constitution. Detailed discussion
in Kesavananda Bharati's case to demonstrate that the right to property was not
part of 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 on the essence of that right
is an exercise which cannot be denied on the basis of fictional immunity under
Gandhi,s case, Justice Chandrachud 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.
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.
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 31B? 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 31B.
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's 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.
history of the emergence of modern democracy has also been the history of
securing basic rights for the people of other nations also. In the United States the Constitution was finally
ratified only upon an understanding that a Bill of Rights would be immediately
added guaranteeing certain basic freedoms to its citizens. At about the same
time when the Bill of Rights was being ratified in America, the French Revolution declared the
Rights of Man to Europe. When the death of colonialism and
the end of World War II birthed new nations across the globe, these states
embraced rights as foundations to their new constitutions. Similarly, the rapid
increase in the creation of constitutions that coincided with the end of the
Cold War has planted rights at the base of these documents.
countries that have long respected and upheld rights, but whose governance
traditions did not include their constitutional affirmation have recently felt
they could no longer leave their deep commitment to rights, left unstated. In
1998, the United
Kingdom adopted the
Human Rights Act which gave explicit affect to the European Convention on Human
Rights. In Canada, the "Constitution Act of
1982" enshrined certain basic rights into their system of governance.
fundamental rights, and the principles that underlie them, are foundational not
only to the Indian democracy, but democracies around the world. Throughout the
world nations have declared that certain provisions or principles in their
Constitutions are inviolable.
Constitution will almost certainly continue to be amended as India grows and changes. However, a
democratic India will not grow out of the need for
protecting the principles behind our fundamental rights.
countries having controlled constitution, like Germany, have embraced the idea that there is a basic structure to
their Constitutions and in doing so have entrenched various rights as core
India's constitutional history has led us
to include the essence of each of our fundamental rights in the basic structure
of our Constitution.
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
basic structure then it will be struck down.
extent of abrogation and limit of abridgment shall have to be examined in each
also recall the observations made in Special Reference No.1/64 [(1965) 1 SCR
413] as follows :
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 there functions are normally confined to
legislative functions, and the function 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." 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
of Judicial Review in the context of Amendments to the Ninth Schedule We are
considering the question as to the extent of judicial review permissible in
respect of Ninth Schedule laws in the light of the the basic structure theory
propounded in Kesavananda Bharati's case. In this connection, it is necessary
to examine the nature of the constituent power exercised in amending a
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 power, however, is derived from
the former. 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, the Parliament. The question
before us is not about power to amend Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend exists in the
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.
Bharati's case, 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.
Bharati's case laid down a principle as an axiom which was examined and worked
out in Indira Gandhi's case, Minerva Mills, Waman Rao and Bhim Singh.
already stated, in Indira Gandhi's case, for the first time, the constitutional
amendment that was challenged did not relate to property right but related to
free and fair election.
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.).
scope and content of the words 'constituent power' expressly stated in the
amended Article 368 came up for consideration in Indira Gandhi's 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. (See also Minerva
It is Kesavananda
Bharati's case read with clarification of Justice Khanna in Indira Gandhi's
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 Article
16(4) (4A) (4B) etc.
and Indira Gandhi's 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
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 Article 14 and 15 or abrogate or en bloc
eliminate these Fundamental Rights. To further illustrate the point, it may be
noted that the Parliament can make additions in the three legislative lists,
but cannot abrogate all the lists as it would abrogate the federal structure.
question can be looked at from yet another angle also. Can the 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.
368 does not vest such a power in the 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's
case as a result of which secularism, separation of power, equality, etc.
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
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
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 Kesavananda Bharati's case. Therefore Article 31-B after 24th April, 1973 despite its wide language cannot
confer unlimited or unregulated immunity.
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.
it would be incorrect to assume that social content exist only in Directive
Principles and not in the Fundamental Rights. Article 15 and 16 are facets of
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.
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.
rule of law, judicial review and separation of powers form parts of the basic
structure of the Constitution.
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.
the duty to decide whether the limits have been transgressed has been placed on
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 power 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.
behalf of the respondents, reliance has been placed on the decision of a nine
Judge Constitution Bench in Attorney General for India & Ors. v. Amratlal Prajivandas
& Ors. [(1994) 5 SCC 54] to submit that argument of a violation of Article
14 being equally violative of basic structure or Articles 19 and 21
representing the basic structure of the Constitution has been rejected. Para 20 referred to by learned counsel for the respondent
reads as under :
entering upon discussion of the issues arising herein, it is necessary to make
a few clarificatory observations.
a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to
the Constitution was levelled in the writ petitions on the ground that the said
Amendments - effected after the decision in Keshavananda Bharati v. State of Kerala
 Suppl. SCR 1 - infringe the basic structure of the Constitution, no
serious attempt was made during the course of arguments to substantiate it. It
was generally argued that Article 14 is one of the basic features of the
Constitution and hence any constitutional amendment violative of Article 14 is
equally violative of the basic structure. This simplistic argument overlooks
the reason d'etre of Article 31B - at any rate, its continuance and relevance
after Bharati - and of the 39th and 40th Amendments placing the said enactments
in the IXth Schedule.
of the petitioners' argument would mean that in case of post-Bharati
constitutional amendments placing Acts in the IXth Schedule, the protection of
Article 31-B would not be available against Article 14. Indeed, it was
suggested that Articles 21 and 19 also represent the basic features of the
Constitution. If so, it would mean a further enervation of Article 31B. Be that
as it may, in the absence of any effort to substantiate the said challenge, we
do not wish to express any opinion on the constitutional validity of the said
Amendments. We take them as they are, i.e., we assume them to be good and
valid. We must also say that no effort has also been made by the counsel to
establish in what manner the said Amendment Acts violate Article 14." It
is evident from the aforenoted passage that the question of violation of
Articles 14, 19 or 21 was not gone into.
bench did not express any opinion on those issues. No attempt was made to
establish violation of these provisions. In Para 56, while summarizing the
conclusion, the Bench did not express any opinion on the validity of 39th and
40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in
the Ninth Schedule. These Acts were assumed to be good and valid. No arguments
were also addressed with respect to the validity of 42nd Amendment Act.
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 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 on one hand and the
exclusion of Part III in its entirety at the will of the Parliament.
Rao, it was accordingly rightly held that the Acts inserted in the Ninth
Schedule after 24th April, 1973 would not receive the full protection.
of Judicial Review compatible with the doctrine of basic structure concept of
Judicial Review 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, Page 131).
role of the judiciary is to protect fundamental rights.
modern democracy is based on the twin principles of majority rule and the need
to protect fundamental rights.
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
of doctrine of basic structure In Kesavananda Bharati's 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 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 the Parliament. It is on this premise that
clauses 4 and 5 inserted in Article 368 by 42nd Amendment were struck down in
Minerva Mills case.
relevance of Indira Gandhi's case, Minerva Mills case and Waman Rao's case lies
in the fact that every improper enhancement of its own power by Parliament, be
it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of
42nd Amendment have 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's case, Article 368 is subject
to implied limitation of basic structure.
question examined in Waman Rao's case was whether the device of Article 31-B
could be used to immunize 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 affirmative. It
has been said that it is likely to make the controlled Constitution
uncontrolled. It would render 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 Ninth Schedule laws as it makes the
entire Part III inapplicable at the will of the Parliament. This results in the
change of the identify 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.
object behind Article 31-B is to remove difficulties and not to obliterate Part
III in its entirety or judicial review.
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 Keshavananda Bharti and Indira
Gandhi cases have expanded the scope of basic structure to cover even some of
the Fundamental Rights.
doctrine of basic structure contemplates that there are certain parts or
aspects of the Constitution including Article 15, Article 21 read with Article
14 and 19 which constitute the core values which if allowed to be abrogated
would change completely the nature of the Constitution.
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.
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 the right' test as applied in M. Nagaraj's
case (supra) will have no applicability. In such a situation, to judge the
validity of the law, it is 'right test' which is more appropriate. We may also
note that in Minerva Mills and Indira Gandhi's cases, elimination of Part III
in its entirety was not in issue. We are considering the 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 which, in
our view, 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. In Indira Gandhi's 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.
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.
III is amendable subject to basic structure doctrine.
permissible for the Legislature to amend the Ninth Schedule and grant a law the
protection in terms of Article 31B 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.
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.
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 and Article 19, Article 15
and the principles underlying these Articles.
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 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
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
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 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.
power to amend the Constitution is subject to 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 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. This 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. 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 31B is a surest means of a drastic erosion of the
fundamental rights conferred by Part III.
31B gives validation based on fictional immunity.
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. 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.
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.
result of 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.
conclusion, we hold that :
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. The validity or invalidity
would be tested on the principles laid down in this judgment.
judgment in Kesavananda Bharati's case read with Indira Gandhi's 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
to the Constitution made on or after 24th April, 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.
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'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.
is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v.
of Tamil Nadu [(1999) 7 SCC 580].
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 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 Article14,
Article 19 and the principles underlying thereunder.
Action taken and
transactions finalized as a result of the impugned Acts shall not be open to
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.