IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO. 242 OF 1988

Glanrock Estate (P) Ltd. …. Petitioner(s)

              Versus

The State of Tamil Nadu ….Respondent(s)

with  Writ Petition (C) No. 408 of 2003 and Civil Appeal Nos.  

1344-1345 of 1976.

J U D G M E N T

S. H. KAPADIA, CJI

Some doctrines die hard.  That certainly is  

true of the doctrine of basic structure of the  

Constitution.

2. Against this backdrop, we need to examine the  

constitutional validity of the Constitution (Thirty-

fourth Amendment) Act, 1974.  By the said Amendment  

Act,  the  Gudalur  Janmam  Estates  (Abolition  and  

Conversion into Ryotwari) Act, 1969 [for short “the  

Janmam Act (Act 24 of 1969)”] stood inserted in the  

Ninth Schedule to the Constitution as Item No. 80.  

Facts

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3. In 1961, the Tamil Nadu Land Reforms (Fixation  

of Ceiling on Land) Act, 1961 [for short “the 1961  

Act”]  was  enacted.   However,  by  virtue  of  Section  

73(v),  the  said  Act  was  made  inapplicable  to  Hill  

Areas.  On 6.12.1969, the Janmam Act (Act 24 of 1969)  

was enacted but not notified till 27.11.1974.  The  

Janmam Act (Act 24 of 1969) was enacted inter alia to  

provide for acquisition of the rights of janmis in  

Janmam estates in the Gudalur taluk of the Nilgiris  

district  and  for  the  introduction  of  ryotwari  

settlement  in  such  estates.   On  26.10.1970,  the  

Madras High Court dismissed nine writ petitions filed  

by the janmis challenging the constitutional validity  

of the Janmam Act (Act 24 of 1969).  By a judgment  

dated 19.4.1972 delivered by a Constitution Bench of  

this Court in the case of Balmadies Plantations Ltd.  

v.  State of Tamil Nadu [(1972) 2 SCC 133], it was  

held that the Janmam Act (Act 24 of 1969) was immune  

to challenge from Articles 14, 19 and 31 as it was an  

Act for acquisition of an estate under Article 31A  

with  one  exception  of  acquisition  of  forest  lands  

which  could  not  be  considered  as  agrarian  reforms  

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under Article 31A in the absence of anything in the  

Act to show the purpose for which the forest land  

stood  acquired  (see  para  18).   Consequently,  

acquisition of forest lands was held to be violative  

of  the  Constitution.   Meanwhile  on  29.6.1972,  the  

Tamil Nadu Land Reforms (Fixation of Ceiling on Land)  

Second  Amendment  Act,  1972  (Act  20  of  1972)  [for  

short “the Ceiling Act (Act 20 of 1972)”] was passed  

so as to extend the provisions of the principal Act.  

Proceedings were initiated under the Ceiling Act (Act  

20 of 1972) in regard to non-plantation lands of the  

petitioner(s)  (plantations  being  exempted  from  the  

purview of the Ceiling Act (Act 20 of 1972)).  Under  

the Ceiling Act (Act 20 of 1972), a family was not  

entitled to hold lands in excess of the ceiling area,  

i.e.,  15  standard  acres  [see  Section  5  read  with  

Section  7  of  the  Ceiling  Act  (Act  20  of  1972)].  

Hence, under the Ceiling Act (Act 20 of 1972), the  

petitioner(s) was entitled to hold 15 standard acres  

per family.  On 1.7.1972, the Ceiling Act (Act 20 of  

1972) was notified and made applicable to Hill Areas.  

Thus, 1.7.1972 became the notified date under Section  

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3(31) of the Ceiling Act (Act 20 of 1972).  By the  

Ceiling  Act  (Act  20  of  1972),  it  was  inter  alia  

provided that if by virtue of the Ceiling Act (Act 20  

of 1972) the total extent of the land held by any  

person exceeded the ceiling area then in relation to  

such person the date of commencement of the Ceiling  

Act  (Act  20  of  1972)  will  mean  1.3.1972.   On  

20.11.1972, the petitioner(s) herein submitted their  

returns under the Ceiling Act (Act 20 of 1972).  On  

24.7.1973,  the  authorized  officer  wrote  to  the  

petitioner(s) that he would inspect their estates on  

4.8.1973.   On  24.4.1973  came  the  decision  of  this  

Court  in  His  Holiness  Kesavananda  Bharati  

Sripadagalvaru v. State of Kerala [(1973) 4 SCC 225].  

This date, namely, 24.4.1973 is crucial as it is the  

cut-off  date  under  the  judgment  of  this  Court  in  

Waman Rao v. Union of India [(1981) 2 SCC 362].  It  

was held in Waman Rao (supra) that all amendments to  

the Constitution made on or after 24.4.1973 and by  

which the Ninth Schedule to the Constitution stood  

amended  from  time  to  time  by  inclusion  of  various  

Acts and Regulations therein were open to challenge  

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on the ground that they, or anyone or more of them,  

are beyond the constituent power of the Parliament  

since they damage the basic or essential features of  

the  Constitution  or  its  basic  structure.  

Consequently, all such amendments to the Constitution  

made  on  or  before  24.4.1973,  by  which  the  Ninth  

Schedule stood amended from time to time, were held  

to be valid and constitutional.  On 17.8.1973, the  

authorized officer under the Ceiling Act (Act 20 of  

1972)  informed  the  petitioner(s)  that  the  action  

under  the  Ceiling  Act  (Act  20  of  1972)  stood  

temporarily deferred.  Soon thereafter on 7.9.1974,  

the Janmam Act (Act 24 of 1969) was inserted as Item  

No. 80 in the Ninth Schedule of the Constitution by  

the Constitution (Thirty-fourth Amendment) Act, 1974.  

On  25.11.1974,  the  Collector  of  Nilgiris  issued  a  

notice  to  the  petitioner(s)  herein  asking  them  to  

hand  over  the  possession  of  their  lands  under  the  

Janmam  Act  (Act  24  of  1969).   On  27.11.1974,  as  

stated above, the Janmam Act (Act 24 of 1969) stood  

notified.  Till this date, no proceedings were taken  

under  the  Ceiling  Act  (Act  20  of  1972).   Hence,  

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ceiling was not determined till that date.  In fact  

on  16.12.1974,  writ  petitions  were  filed  by  the  

petitioner(s) herein seeking a direction to the State  

to complete proceedings under the Ceiling Act (Act 20  

of  1972)  and  to  refrain  from  proceeding  under  the  

Janmam Act (Act 24 of 1969).  On 23.9.1976, the writ  

petitions  were  dismissed  by  the  Madras  High  Court  

against which Special Leave Petition No. 8994 of 1976  

was filed in this Court; leave was granted by this  

Court as Civil Appeal No. 1345 of 1976.  In 1988,  

writ petition No. 242 of 1988 was also filed by the  

petitioner(s) under Article 32 of the Constitution in  

which vide order dated 17.2.1989, a Division Bench of  

this  Court  referred  the  case  to  the  Constitution  

Bench  [see  (1989)  3  SCC  282].   On  14.9.1999,  a  

Constitution Bench of this Court referred the matters  

to a larger Bench of 9-Judges [see (1999) 7 SCC 580].  

Finally, by a judgment of 9-Judge Constitution Bench  

dated 11.1.2007 in Civil Appeal Nos. 1344-45 of 1976  

etc. etc. reported as  I.R. Coelho v.  State of Tamil  

Nadu [(2007)  2  SCC  1],  this  Court  answered  the  

reference by holding Article 31B as introduced by the  

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Constitution (First Amendment) Act, 1951 to be valid.  

Applying the tests laid down in I.R. Coelho’s case,  

the  9-Judge  Constitution  Bench  directed  the  Civil  

Appeal Nos. 1344-45 of 1976 with Writ Petition Nos.  

242 of 1988 and 408 of 2003 to be placed for hearing  

before  a  3-Judge  Bench  for  decision  in  accordance  

with the principles laid down therein.  Accordingly,  

these  matters  have  now  come  before  us.   In  these  

matters, we are required to apply the principles laid  

down in I.R. Coelho’s case in the matter of challenge  

to the Janmam Act (Act 24 of 1969) on the ground that  

the said Act is beyond the constituent power of the  

Parliament  since  the  Janmam  Act  (Act  24  of  1969)  

damages  the  basic  or  essential  features  of  the  

Constitution.      

Points for Consideration

4.      (A) What is the scope of immunity to laws  

inserted in the Ninth Schedule of the Constitution  

read with Article 31B?

(B) Whether the Tamil Nadu State Legislature lacked  

legislative competence to enact Janmam Act (Act 24 of  

1969)?

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(C) Whether the Janmam Act (Act 24 of 1969) could  

not be applied because of the Ceiling Act (Act 20 of  

1972)?

Scope  of  immunity  to  laws  inserted  in  the  Ninth  Schedule read with Article 31B

5. Shri K.V. Viswanathan, learned senior counsel  

appearing on behalf of the petitioner(s), submitted  

that  “separation  of  powers”  and  “rule  of  law”  are  

basic features of the Constitution of India.  In the  

context  of  separation  of  powers,  learned  counsel  

submitted that on 19.4.1972 the Constitution Bench of  

this Court in  Balmadies case held that Section 3 of  

the Janmam Act (Act 24 of 1969) insofar as it related  

to  transfer  of  forests  in  Janmam  estate  was  

unconstitutional as it was not a measure of agrarian  

reform protected by Article 31A of the Constitution.  

According to the learned counsel, inclusion of the  

Janmam  Act  (Act  24  of  1969)  on  7.9.1974  by  the  

Constitution (Thirty-fourth Amendment) Act, 1974 in  

the Ninth Schedule (Item No. 80) amounted to direct  

negation  and  abrogation  of  judicial  review  as  the  

impugned Constitution (Thirty-fourth Amendment) Act,  

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1974  confers  naked  power  on  the  Parliament  to  

obliterate  the  judicial  decision  in  Balmadies  case  

which became final, without changing the basis of the  

decision or the law and, therefore, the said impugned  

Constitutional  Amendment  Act  destroys  the  basic  

feature of the Constitution, namely, judicial review.  

Similarly,  according  to  the  learned  counsel,  the  

Constitution  (Thirty-fourth  Amendment)  Act,  1974  

violated  the  basic  structure  of  rule  of  law  and  

equality.  In this connection, it was submitted that  

in Tamil Nadu in respect of lands held in excess of  

the ceiling limits there is an Act called the Tamil  

Nadu Land Reforms (Fixation of Ceiling on Land) Act,  

1961 which came into force on 6.4.1960.  The said Act  

stands inserted in the Ninth Schedule as Item No. 46  

on 20.6.1964.  At this stage, it may be noted that  

the forest lands fell outside the said 1961 Act prior  

to 1.3.1972.  By Ceiling Act (Act 20 of 1972), hilly  

areas  stood  included  in  the  said  1961  Act.   The  

Ceiling Act (Act 20 of 1972) also stood inserted in  

the Ninth Schedule of the Constitution as Item No.  

169  on  27.5.1976  by  the  Constitution  (Fortieth  

9

Amendment) Act, 1976.  Consequently, the provisions  

of the Ceiling Act (Act 20 of 1972), according to the  

learned counsel, became applicable to 20,000 acres of  

forest lands which came to be included in the ceiling  

area by reason of the Ceiling Act (Act 20 of 1972) by  

which exemption of forest land from the ceiling area  

stood withdrawn.  That, the Janmam Act (Act 24 of  

1969)  came  into  force  from  27.11.1974  whereas  the  

Ceiling Act (Act 20 of 1972) came into force from  

1.3.1972,  though  it  was  notified  on  1.7.1972.  

According  to  the  learned  counsel,  principle  of  

equality is the basic feature of the Constitution;  

that the Amending Act 20 of 1972 which brought in the  

“forests” within the purview of the 1961 Act and the  

Janmam  Act  (Act  24  of  1969)  operated  in  the  same  

field and yet under the ceiling law the compensation  

provided for was at a higher rate as compared to the  

rate mentioned in the Janmam Act (Act 24 of 1969)  

being Rs. 50 per acre (maximum); that whereas forests  

in Janmam estate stood automatically vested in the  

State under the Janmam Act (Act 24 of 1969), under  

the Amending Act 20 of 1972, the petitioner (s) was  

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permitted to hold the ceiling area including forests  

upto  the  prescribed  ceiling  limit;  that  under  the  

Janmam Act (Act 24 of 1969) not only forests in the  

Janmam estate stood vested in the Government but also  

the occupants were not given pattas for such lands  

which  pattas  were  given  for  cultivable  lands  only  

under the Janmam Act (Act 24 of 1969) whereas under  

the Amending Act 20 of 1972 forests could form part  

of the holding of the petitioner (s) subject to the  

ceiling limit of 15 standard acres.  According to the  

learned  counsel,  the  above  invidious  distinction  

violated  the  rule  of  equality  in  law  without  any  

avowed  public  purpose  and  in  the  absence  of  any  

provisions for distribution of lands having vested in  

the State, the impugned Section 3 of the Janmam Act  

(Act  24  of  1969)  and  its  insertion  in  the  Ninth  

Schedule  to  the  Constitution  as  Item  80  was  

arbitrary,  discriminatory  and  not  only  violated  

Article  14  but  also  the  basic  structure  of  the  

Constitution  in  terms  of  separation  of  powers  and  

rule of law.  According to the learned counsel, the  

impugned legislation inter alia violated the rule of  

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law which is a facet of the doctrine of equality and,  

therefore, it is not validated under Article 31B of  

the Constitution.    

6. We find no merit in the above submissions for  

the following reasons:

At the outset, we may state that in this case  

the  essence  of  the  challenge  to  the  Constitution  

(Thirty-fourth Amendment) Act, 1974, in our view, is  

in  the  context  of  “right  to  property”.   In  this  

connection,  we  must  bear  in  mind  that  by  the  

Constitution  (Forty-fourth  Amendment)  Act,  1978,  

“right to property” has ceased to be a fundamental  

right  under  Article  19(1)(f).   If  one  sees  the  

history of amendments to the Indian Constitution, one  

finds  that  the  Constitution  (First  Amendment)  Act,  

1951, the Constitution (Seventeenth Amendment) Act,  

1964, the Constitution (Twenty-fifth Amendment) Act,  

1971, the Constitution (Twenty-sixth Amendment) Act,  

1971  and  the  Constitution  (Twenty-ninth  Amendment)  

Act,  1972  were  all  in  the  context  of  “right  to  

property”.   The  challenge  to  the  Constitution  

(Twenty-fourth Amendment) Act, 1971 on the ground of  

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unlimited power to amend the Constitution was also in  

the  same  context  of  right  to  property.   The  

challenges  to  all  these  Constitutional  Amendment  

Acts, referred to hereinabove, have been negatived.  

This aspect is important because in the present case  

in  the  garb  of  “rule  of  law”  and  “separation  of  

powers”  the  challenge  is  laid  against  the  

Constitution  (Thirty-fourth  Amendment)  Act,  1974,  

which, as stated above, is in essence the challenge  

in the context of “right to property”.  The basic  

contention  of  the  petitioner(s)  in  these  cases  is  

that the Constitution (Thirty-fourth Amendment) Act,  

1974 by which the Janmam Act (Act 24 of 1969) has  

been inserted in the Ninth Schedule as Item No. 80  

seeks  to  confer  naked  power  on  Parliament  to  

obliterate  the  judicial  decision  of  this  Court  in  

Balmadies  case which  became  final  without  changing  

the basis of the decision or the law and, therefore,  

the said Constitution (Thirty-fourth Amendment) Act,  

1974 destroys the basic feature of the Constitution,  

namely, judicial review and separation of powers as  

well as rule of law.  To answer this point, one needs  

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to consider the judgment of the Constitution Bench of  

this  Court  in  Balmadies  case.   It  is  vehemently  

submitted  on  behalf  of  the  petitioner(s)  that  in  

Balmadies case, this Court has held Section 3 of the  

Janmam Act (Act 24 of 1969) to be unconstitutional,  

as violative of Articles 14, 19 and 31.  In our view,  

it is not so.  One of the questions which arose for  

consideration  by  this  Court  in  Balmadies  case  was  

whether acquisition of the lands under the Janmam Act  

(Act 24 of 1969) was for agrarian reform?  This Court  

observed that in order to invoke Article 31A, it has  

to be shown that acquisition of the “estate” was with  

the  view  to  implement  agrarian  reform.   It  was  

further observed that Article 31A is confined only to  

agrarian reform and its provisions would apply only  

to a law made for acquisition by the State of any  

rights therein if such acquisition is connected with  

the agrarian reform.  On examination of the Janmam  

Act (Act 24 of 1969), this Court held that it was  

manifest from the perusal of the Objects and Reasons  

and the general scheme of the Janmam Act (Act 24 of  

1969)  that  the  enactment  was  made  to  abolish  

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intermediaries between the State and the cultivators;  

that the Janmam Act (Act 24 of 1969) in its broad  

outlines should be held to be a measure of agrarian  

reform  and,  consequently,  it  stood  protected  by  

Article 31A of the Constitution.  However, this Court  

held that so far as forests in Janmam estates are  

concerned the acquisition of those forests cannot be  

said  to  be  in  furtherance  of  the  objective  of  

agrarian reform because in the absence of anything in  

the Janmam Act (Act 24 of 1969) to show the purpose  

for  which  the  forests  are  to  be  used  by  the  

Government,  it  cannot  be  said  that  acquisition  of  

forests in Janmam estate is for a purpose related to  

agrarian  reform.   Therefore,  although  the  

constitutional validity of the Janmam Act (Act 24 of  

1969) by and large stood upheld by this Court, it was  

held in  Balmadies case that Section 3 of the Janmam  

Act  (Act  24  of  1969)  insofar  as  it  related  to  

transfer of forests in Janmam estates was violative  

of the Constitution and as such Section 3 to that  

extent was struck down.  It was held that invalidity  

of Section 3 to the above extent would not affect the  

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validity of the other provisions of the Act as the  

two were distinct and severable.   

7. On  reading  the  judgment  of  the  Constitution  

Bench  of  this  Court  in  Balmadies  case,  in  its  

entirety, we find that although the Janmam Act (Act  

24 of 1969) was challenged on the ground of the Act  

being violative of Articles 14, 19 and 31, this Court  

in Balmadies case struck down Section 3 to the extent  

of acquisition of forests in the Janmam estate only  

on the ground that there was nothing in the Janmam  

Act (Act 24 of 1969) to show the purpose for which  

the forest lands stood acquired and, therefore, this  

Court  gave  a  declaration  that  in  the  absence  of  

anything in the Act to show the purpose for which  

forest lands stood acquired, protection under Article  

31A was not available. (see para 18 of the judgment)  

From  this  it  cannot  be  said  that  this  Court  in  

Balmadies  case has  held  that  Section  3  insofar  as  

forests are concerned violated Articles 14, 19 and 31  

of the Constitution.  Be that as it may, the judgment  

of  the  Constitution  Bench  in  Balmadies  case was  

delivered on 19.4.1972.  Even assuming for the sake  

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of argument that the Janmam Act (Act 24 of 1969), so  

far  as  the  forests  are  concerned,  was  held  to  be  

violative of Articles 14 and 19 of the Constitution  

in  Balmadies  case  as  contended  on  behalf  of  the  

petitioner(s),  still  it  cannot  be  said  that  the  

Constitution  (Thirty-fourth  Amendment)  Act,  1974  

conferred naked power on the Parliament to obliterate  

the  judicial  decision  in  Balmadies  case without  

changing  the  basis  of  the  decision  because  it  is  

pursuant  to  such  declaration  by  the  Constitution  

Bench  of  this  Court  in  Balmadies  case that  the  

Parliament inserted the Janmam Act (Act 24 of 1969)  

into  the  Ninth  Schedule  by  invoking  Article  31A.  

Therefore,  one  cannot  say  that  the  Parliament  has  

obliterated the judicial decision of this Court in  

Balmadies  case  without  changing  its  basis.   The  

challenge  to  Article  329A(4)  succeeded  in  Election  

Case  [Smt.  Indira  Nehru  Gandhi  v.  Shri  Raj  Narain  

1975 (Supp.) SCC 1]  because the impugned Amendment  

was held to be Legislative Judgment being validated  

which  is  not  the  case  herein.   On  the  contrary,  

pursuant to the declaration in  Balmadies case, the  

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Parliament inserted the Janmam Act (Act 24 of 1969)  

in  the  Ninth  Schedule  which  would  mean  that  the  

Parliament has implemented in a way the decision of  

this Court in Balmadies case by validating the law.

8. Coming to the applicability of the judgment of  

the  9-Judge  Bench  decision  of  this  Court  in  I.R.  

Coelho (supra),  time  has  come  for  us  to  explain  

certain  concepts  in  that  judgment  like  egalitarian  

equality,  over-arching  principles  and  reading  of  

Article 21 with Article 14.  In this connection, one  

needs to keep in mind what is called as the “degree  

test”.   Ultimately,  in  applying  the  above  three  

concepts  enumerated  herein,  one  has  to  go  by  the  

degree  of  abrogation  as  well  as  the  degree  of  

elevation of an ordinary principle of equality to the  

level of over-arching principle (s).  One must keep  

in mind that in this case the challenge is not to the  

ordinary law of the land.  The challenge is to the  

constitutional  amendment.   In  a  rigid  Constitution  

[See Article 368] power to amend the Constitution is  

a  derivative  power,  which  is  an  aspect  of  the  

constituent power.  The challenge is to the exercise  

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of derivative power by the Parliament in the matter  

of inclusion of the Janmam Act (Act 24 of 1969) as  

Item No. 80 in the Ninth Schedule of the Constitution  

vide the Constitution (Thirty-fourth Amendment) Act,  

1974.  Since the power to amend the Constitution is a  

derivative power, the exercise of such power to amend  

the  Constitution  is  subject  to  two  limitations,  

namely, the doctrine of basic structure and lack of  

legislative  competence.   The  doctrine  of  basic  

structure is brought in as a window to keep the power  

of  judicial  review  intact  as  abrogation  of  such  a  

power would result in violation of basic structure.  

When  we  speak  of  discrimination  or  arbitrary  

classification,  the  same  constitutes  violation  of  

Article 14 of the Constitution.  In this connection,  

the  distinction  between  constitutional  law  and  

ordinary law in a rigid Constitution like ours is to  

be kept in mind.  The said distinction proceeds on  

the assumption that ordinary law can be challenged on  

the touchstone of the Constitution.  Therefore, when  

an  ordinary  law  seeks  to  make  a  classification  

without any rational basis and without any nexus with  

19

the object sought to be achieved, such ordinary law  

could be challenged on the touchstone of Article 14  

of the Constitution.  However, when it comes to the  

validity of a constitutional amendment, one has to  

examine the validity of such amendment by asking the  

question as to whether such an amendment violates any  

over-arching principle in the Constitution.  What is  

over-arching  principle?   Concepts  like  secularism,  

democracy,  separation  of  powers,  power  of  judicial  

review fall outside the scope of amendatory powers of  

the Parliament under Article 368.  If any of these  

were to be deleted it would require changes to be  

made not only in Part III of the Constitution but  

also  in  Articles  245  and  the  three  Lists  of  the  

Constitution  resulting  in  the  change  of  the  very  

structure or framework of the Constitution.  When an  

impugned  Act  creates  a  classification  without  any  

rational basis and having no nexus with the objects  

sought  to  be  achieved,  the  principle  of  equality  

before law is violated undoubtedly.  Such an Act can  

be declared to be violative of Article 14.  Such a  

violation  does  not  require  re-writing  of  the  

20

Constitution.  This would be a case of violation of  

ordinary  principle  of  equality  before  law.  

Similarly,  “egalitarian  equality”  is  a  much  wider  

concept.  It is an over-arching principle.  Take the  

case of acquisition of forests.  Forests in India are  

an important part of environment.  They constitute  

national asset.  In various judgments of this Court  

delivered by the Forest Bench of this Court in the  

case  of  T.N.  Godavarman  v.  Union  of  India [Writ  

Petition  No.  202  of  1995],  it  has  been  held  that  

“inter-generational equity” is part of Article 21 of  

the Constitution.  What is inter-generational equity?  

The  present  generation  is  answerable  to  the  next  

generation by giving to the next generation a good  

environment.   We  are  answerable  to  the  next  

generation and if deforestation takes place rampantly  

then inter-generational equity would stand violated.  

The  doctrine  of  sustainable  development  also  forms  

part  of  Article  21  of  the  Constitution.   The  

“precautionary  principle”  and  the  “polluter  pays  

principle” flow from the core value in Article 21.  

The important point to be noted is that in this case  

21

we  are  concerned  with  vesting  of  forests  in  the  

State.  When we talk about inter-generational equity  

and  sustainable  development,  we  are  elevating  an  

ordinary principle of equality to the level of over-

arching  principle.   Equality  doctrine  has  various  

facets.  It is in this sense that in  I.R. Coelho’s  

case this Court has read Article 21 with Article 14.  

The  above  example  indicates  that  when  it  comes  to  

preservation of forests as well as environment vis-à-

vis  development,  one  has  to  look  at  the  

constitutional amendment not from the point of view  

of formal equality or equality enshrined in Article  

14 but on a much wider platform of an egalitarian  

equality  which  includes  the  concept  of  “inclusive  

growth”.  It is in that sense that this Court has  

used the expression Article 21 read with Article 14  

in  I.R. Coelho’s case.  Therefore, it is only that  

breach of the principle of equality which is of the  

character of destroying the basic framework of the  

Constitution which will not be protected by Article  

31B.   If  every  breach  of  Article  14,  however,  

egregious, is held to be unprotected by Article 31B,  

22

there would be no purpose in protection by Article  

31B.  The question can be looked at from yet another  

angle.  Can Parliament increase its amending power by  

amendment of Article 368 so as to confer on itself  

the  unlimited  power  of  amendment  and  destroy  and  

damage  the  fundamentals  of  the  Constitution?   The  

answer is obvious.  Article 368 does not vest such a  

power in Parliament.  It cannot lift all limitations/  

restrictions placed on the amending power or free the  

amending  power  from  all  limitations.   This  is  the  

effect  of  the  decision  in  Kesavananda  Bharati  

(supra).  The point to be noted, therefore, is that  

when  constitutional  law  is  challenged,  one  has  to  

apply the “effect test” to find out the degree of  

abrogation.  This is the “degree test” which has been  

referred  to  earlier.   If  one  finds  that  the  

constitutional  amendment  seeks  to  abrogate  core  

values/  over-arching  principles  like  secularism,  

egalitarian  equality,  etc.  and  which  would  warrant  

re-writing  of  the  Constitution  then  such  

constitutional law would certainly violate the basic  

structure.   In  other  words,  such  over-arching  

23

principles  would  fall  outside  the  amendatory  power  

under Article 368 in the sense that the said power  

cannot  be  exercised  even  by  the  Parliament  to  

abrogate  such  over-arching  principles.   It  is  

important to bear in mind that according to Justice  

Mathew’s  observations  in  Smt.  Indira  Nehru  Gandhi  

(supra), equality is a feature of rule of law and not  

vice-versa, as submitted by Mr. Viswanathan, learned  

counsel  for  the  petitioner(s).  Very  often  the  

expression “Rule of Law” is used to convey the idea  

of  a  Government  that  is  limited  by  law.  The  

expression “Rule of Law” describes a society in which  

Government must act in accordance with law. A society  

governed  by  law  is  the  foundation  of  personal  

liberty.  It  is  also  the  foundation  of  economic  

development since investment will not take place in a  

country where rights are not respected. It is in that  

sense that the expression “Rule of Law” constitutes  

an overarching principle embodied in Article 21, one  

aspect of which is equality.  It is in that context  

that this Court has used the phrase “Article 21 read  

with Article 14” in the judgment in the case of I.R.  

24

Coelho (supra) to which one of us Kapadia, J. was a  

party.

9. Applying the above tests to the present case,  

we find no merit in the submissions advanced by Shri  

Viswanathan,  learned  senior  counsel  for  the  

petitioner (s) that inclusion of the Janmam Act (Act  

24  of  1969)  in  the  Ninth  Schedule  (Item  No.  80)  

amounted  to  direct  negation  and  abrogation  of  

judicial review as the impugned Constitution (Thirty-

fourth Amendment) Act, 1974 confers naked power on  

the Parliament to obliterate the judicial decision in  

Balmadies case which became final, without changing  

the basis of the decision or the law and, therefore,  

the  said  impugned  Constitutional  Amendment  Act  

destroys  the  basic  feature  of  the  Constitution,  

namely,  judicial  review.  As  stated  above,  the  

amending power under Article 368 of the Constitution  

is  a  derivative  power.   The  doctrine  of  basic  

structure provides a touchstone on which the validity  

of the Constitutional Amendment Act could be judged.  

While applying this doctrine, one need not go by the  

content of  a  “right”  but  by  the  test  of  

25

justifiability under which one has to see the scope  

and the object of the Constitutional Amendment.  In  

the present case, we are concerned with the validity  

of  the  Constitution  (Thirty-fourth  Amendment)  Act,  

1974.  It is true that all lands including forests  

falling in the janmam estate vest in the State under  

Section 3 of the Janmam Act (Act 24 of 1969).  Under  

that Act, the State gave pattas for cultivable lands  

though such pattas were not given for forests which  

vested in the State.  It is also true that after Act  

20 of 1972 forests which earlier stood exempted from  

the provisions of the Ceiling Act, 1961 got included  

in the Ceiling Act (Act 20 of 1972).  Therefore, on  

and after 1.3.1972, the holder was entitled to hold  

the lands subject to ceiling including forests under  

the  Ceiling  Act  (Act  20  of  1972)  whereas  forests  

falling in Janmam estate vested in the State.  It is  

the case of the petitioners that by reason of the  

forests  vesting  in  the  State  under  the  Janmam  Act  

(Act 24 of 1969) “the rule of equality in law” stood  

violated  which  violation  amounted  to  abrogation  of  

Article 14.  One of the reasons for deletion of the  

26

“right to property” from Part III of the Constitution  

vide the Constitution (Forty-fourth Amendment) Act,  

1978 was that the economic liberties of freedom of  

property  came  in  direct  conflict  with  egalitarian  

values  including  inter-generational  equity.   This  

aspect needs to be kept in mind as in this case the  

substantive  challenge  to  the  Constitution  (Thirty-

fourth Amendment) Act, 1974 is based on the right to  

property in the garb of over-arching principles like  

separation of powers, rule of law and abrogation of  

the  power  of  judicial  review.   The  doctrine  of  

classification  under  Article  14  has  several  facets  

and none of those facets have been abrogated by the  

Constitution  (Thirty-fourth  Amendment)  Act,  1974.  

Equality  is  a  comparative  concept.   A  person  is  

treated  unequally  only  if  that  person  is  treated  

worse than others, and those others (the comparison  

group) must be those who are “similarly situated” to  

the complainant.  The “similarly situated test” is  

not attracted in this case for the simple reason that  

the  two  Acts,  namely,  the  Janmam  Act  (Act  24  of  

1969), which seeks to abolish a tenure, is distinct  

27

and separate from the Ceiling Act (Act 20 of 1972).  

Therefore, in the present case, not even an ordinary  

principle of equality under Article 14, leave aside  

the  egalitarian  equality  as  an  over-arching  

principle, is violated.  Even assuming for the sake  

of argument that Article 14 stood violated, even then  

the Janmam Act (Act 24 of 1969) in any event stood  

validated by its insertion in the Ninth Schedule vide  

Constitution (Thirty-fourth Amendment) Act, 1974.

Legislative  competence  of  Tamil  Nadu  State  Legislature to enact the Janmam Act (Act 24 of 1969)

10. Mr.  P.H.  Parekh,  learned  senior  counsel  

appearing  on  behalf  of  one  of  the  appellants  

submitted  that  the  Tamil  Nadu  Legislature  did  not  

have legislative competence to enact Section 3 of the  

Janmam Act (Act 24 of 1969) insofar as the said Act  

related to transfer of forests in Janmam estates to  

the State without any public purpose.  According to  

the learned counsel, the Janmam Act (Act 24 of 1969)  

providing for vesting of Janmam estates in the State  

stood enacted under Entry 42, List III of the Seventh  

Schedule of the Constitution.   

11. Before us it was submitted that the right to  

28

legislate under Entry 42 of List III postulates the  

existence  of  a  public  purpose.   According  to  the  

learned  counsel,  in  the  present  case,  Entry  42  of  

List III was required to be read with Article 31(2),  

as it then stood, on the day the Janmam Act (Act 24  

of 1969) was enacted, and if so read, the requirement  

of public purpose must be read into Entry 42 of List  

III  and  since  in  the  present  case  the  impugned  

enactment stood unprotected by Article 31A as held in  

Balmadies case, the Janmam Act (Act 24 of 1969) was  

liable  to  be  struck  down  for  want  of  legislative  

competence.  In reply, Mr. T.R. Andhyarujina, learned  

senior  counsel  appearing  on  behalf  of  the  State,  

submitted  that  in  Balmadies  case the  legislative  

competence of the Tamil Nadu Legislature to enact the  

Janmam Act (Act 24 of 1969) was never doubted.  It  

was further submitted that even assuming for the sake  

of argument that there was no public purpose in the  

acquisition  of  forest  lands,  the  requirement  of  

public  purpose  and  compensation  are  conditions  or  

requirements under Article 31(2) of the Constitution,  

as  it  stood  in  1969  and  that  the  requirement  of  

29

public purpose and compensation was not a legislative  

requirement.  Therefore, even assuming for the sake  

of  argument  that  the  Janmam  Act  (Act  24  of  1969)  

violated  the  requirement  of  public  purpose  and  

compensation,  the  said  Act  got  validated  when  it  

stood incorporated in the Ninth Schedule in 1974.

12. To answer the contentions raised hereinabove,  

we are required to quote Entry 18, List II, Entry 42,  

List III and Entry 19, List II, as it stood then:

“18. Land, that is to say, rights in or over land,  land tenures including the relation of landlord and  tenant,  and  the  collection  of  rents;  transfer  and  alienation of agricultural land; land improvement and  agricultural loans; colonization.”

“42. Acquisition and requisitioning of property”

“19. Forests”

13. We find no merit in the arguments advanced on  

behalf of the petitioners.  At the outset, it may be  

noted that the legislative competence of the Tamil  

Nadu Legislature to enact the Janmam Act (Act 24 of  

1969) was not in issue in  Balmadies case.  Further,  

Balmadies case did not hold that there was no public  

purpose in acquisition of forests.  It only held that  

there was nothing in the Act to show that acquisition  

30

of  forests  would  be  for  agrarian  reform.  

Consequently,  it  was  held  in  Balmadies  case that  

acquisition  could  not  get  protected  under  Article  

31A.  In contrast, a Constitution Bench of this Court  

in  State  of  Kerala  v.  The  Gwalior  Rayon  Silk  

Manufacturing (WVG.) Co. Ltd. Etc. [(1973) 2 SCC 713]  

held  that  the  Kerala  Private  Forests  (Vesting  and  

Assignment) Act 26 of 1971 was enacted to provide for  

the  vesting  in  the  Government  of  private  forests  

including  those  in  the  Janmam  estates  and  for  the  

assignment thereof to agriculturists and agricultural  

labourers for cultivation.  This Court examined the  

preamble  of  the  Act  and  held  that  the  Legislature  

thought  that  private  forests  be  treated  as  

agricultural lands in the sense that they should be  

utilized to increase agricultural production in the  

State.   Consequently,  it  was  held  that  since  the  

purpose was clearly spelt out in the impugned Kerala  

Private Forests (Vesting and Assignment) Act 26 of  

1971,  the  Act  stood  protected  as  a  measure  of  

agrarian reform under Article 31A.  Further, we find  

merit  in  the  argument  of  Mr.  T.R.  Andharujina,  

31

learned  senior  counsel  appearing  on  behalf  of  the  

State of Tamil Nadu that the Janmam Act (Act 24 of  

1969) is a piece of legislation for abolishing feudal  

tenure and is a measure of land reform in pursuance  

of  Directed  Principles  of  State  Policy.  [See  The  

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh  

of Darbhanga and Others, 1952 SCR 889 at pages 941,  

942, 997 and 1014]  Assuming for the sake of argument  

that there was no public purpose in the acquisition  

of  forests,  as  contended  on  behalf  of  the  

petitioners, we are of the view that the requirement  

of  public  purpose  and  compensation  are  not  

legislative  requirements  of  the  competence  of  

Legislature to make laws under Entry 18, List II or  

Entry  42,  List  III,  but  are  conditions  or  

restrictions under Article 31(2) of the Constitution  

as the said Article stood in 1969.  Breach of such  

conditions  would  attract  only  Part  III  challenge.  

Therefore, when the Janmam Act (Act 24 of 1969) was  

put in the Ninth Schedule in 1974, the Act received  

immunity  from  Article  31(2)  with  retrospective  

effect.  Lastly, in pith and substance, we are of the  

32

view that the Janmam Act (Act 24 of 1969) was in  

respect of “land” and “land tenure” under Entry 18,  

List II of the Constitution.  For the afore-stated  

reasons, we find no merit in the contention of the  

learned counsel for the petitioners that the Tamil  

Nadu  Legislature  had  no  legislative  competence  to  

enact the Janmam Act (Act 24 of 1969).  

Whether the Janmam Act (Act 24 of 1969) could not be  applied because of the Ceiling Act (Act 20 of 1972)?

14. One  of  the  main  contentions  raised  in  this  

batch  of  cases  is  whether  the  Government  is  at  

liberty  to  apply  the  Janmam  Act  (Act  24  of  1969)  

after  it  stood  notified  on  27.11.1974,  though  

proceedings were taken by the Government under the  

Ceiling Act (Act 20 of 1972) prior to 27.11.1974.  We  

find  no  merit  in  this  argument  for  two  reasons.  

Firstly, the Janmam Act (Act 24 of 1969) was enacted  

to provide for acquisition of the rights of janmis in  

Janmam estate in the Gudalur taluk of the Nilgiris  

district and for introduction of ryotwari settlement  

in such estates.  We agree with the view expressed by  

the Madras High Court in the impugned judgment that  

the scope of the Janmam Act (Act 24 of 1969) was  

33

entirely different from the Ceiling Act (Act 20 of  

1972) for the simple reason that the Janmam Act (Act  

24  of  1969)  was  enacted  to  acquire  the  rights  of  

janmis  in  Janmam  estates  in  Gudalur  taluk  and  to  

introduce  ryotwari  settlement,  whereas  the  object  

behind enactment of the Ceiling Act (Act 20 of 1972)  

was to fix a ceiling on the land holdings and to  

distribute  the  excess  lands  to  the  landless  and  

agricultural population.  Therefore, in our view, the  

scope  and  ambit  of  the  two  Acts  are  completely  

different  and  they  operate  in  different  spheres.  

Secondly, the Ceiling Act (Act 20 of 1972) came into  

force  from  1.3.1972.   Prior  to  that  date,  forests  

stood exempted from the provisions of the 1961 Act.  

It is only on and after 1.3.1972 that forests stood  

included in the 1961 Act by virtue of the Ceiling Act  

(Act 20 of 1972).  The important point to be noted  

that before ceiling could be determined and before  

compensation to be paid for excess lands which vested  

in the State under the Ceiling Act (Act 20 of 1972),  

the Janmam Act (Act 24 of 1969) came into force on  

27.11.1974  under  which  the  forests  vested  in  the  

34

State.  The main focus of the Ceiling Act (Act 20 of  

1972)  was  to  fix  a  ceiling  of  agricultural  land  

holding  and  to  distribute  the  excess  lands  to  the  

landless  and  other  agricultural  population.   The  

scope of the Ceiling Act (Act 20 of 1972) was made  

wide enough to cover the lands in the hilly areas.  

In short, before the excess lands could be determined  

for vesting in the State under the Ceiling Act (Act  

20 of 1972), the Janmam Act (Act 24 of 1969) came  

into  force  which,  as  stated  above,  operated  in  a  

different sphere vis-à-vis the Ceiling Act (Act 20 of  

1972).   For  the  afore-stated  reasons,  we  find  no  

merit in the argument on behalf of the petitioners  

that both the Acts operated in the same field and,  

consequently, it was not open to the State Government  

to act according to the provisions of the Janmam Act  

(Act 24 of 1969).

Conclusion

15. For the afore-stated reasons, we see no merit  

in this batch of cases.  Accordingly, the same are  

dismissed with no order as to costs.

35

…………………….CJI             (S. H. Kapadia)

………………………..J.    (Swatanter Kumar)

New Delhi;  September 9,  2010

36

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO.242 OF 1988

WITH  

WRIT PETITION (CIVIL) NO.408 OF 2003  

And

CIVIL APPEAL NOs.1344-1345 of 1976

GLANROCK ESTATE (P) LETD.     …Petitioner(s)

Versus  

THE STATE OF TAMIL NADU         ..Respondent(s)

J U D G M E N T

K. S. Radhakrishnan, J.

1. We are in these cases concerned with the validity of  

the  Constitution  (Thirty-fourth  Amendment)  Act,  1974  by  which  the  

Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act,  

1969, (in short ‘the Janmam Act’) was included in the 9th Schedule under  

Article  31-B  of  the  Constitution.  These  petitions  earlier  came  up  for  

consideration before a Bench of two Judges of this Court and the Bench  

felt  that  matter  should  be  heard  by  a  larger  Bench  since  the  case  

involved substantial questions of law pertaining to the interpretation of  

the Constitution.  The order is reported in Manjushree Plantation Ltd.  

and others v.  State of Tamil  Nadu and others  1989 (3)  SCC 282.   

37

Consequently, the matter came up before a Constitution Bench of five  

Judges on 14th September, 1999, and the Court felt that the impact of the  

judgment in Waman Rao and others etc. v. Union of India and others  

1981 (2) SCC 362 be considered by a larger Bench so that apparent  

inconsistencies therein could be reconciled and the question whether an  

Act or Regulation which, or a part of which, was or had been found by  

this  Court  to  be  violative  of  one  or  more  of  the  fundamental  rights  

conferred  by  Articles  14,  19  and  31  would  be  included  in  the  Ninth  

Schedule or whether it was only a constitutional amendment amending  

the Ninth Schedule  that damaged or destroyed the basic structure of the  

Constitution that could be struck down.    The order is reported in (1999)  

7 SCC 580.    The matter was then placed before a Constitution Bench  

of  nine  Judges.    The  fundamental  question  which  came  up  for  

consideration was whether on and after 24th April, 1973, when the basic  

structure doctrine was propounded, was it permissible for the Parliament  

under Article 31-B to immunize legislations from fundamental rights by  

inserting them into the Ninth Schedule and also its effect on the power of  

judicial review of the Court.    The Bench laid down certain parameters  

for  the  application  of  the  basic  structure  doctrine  propounded in  His  

Holiness  Kesavananda  Bharati  Sripadagalvaru  etc. v.  State  of  

Kerala and another (1973) 4 SCC 225 and later explained in M. Nagraj  

& Others  v. Union of India & Others  (2006) 8 SCC 212.  The Court  

set at rest some of the inconsistencies which were brought in by Waman  

38

Rao’s Case by analyzing the judgment from Sri Sankari Prasad Singh  

Deo v.  Union  of  India  and  State  of  Bihar  (1952)  SCR  89  to  

Kesavananda Bharati (supra)  and then to Waman Rao’s case (supra).  

The Court held that the theory of basic structure is applicable to the laws  

included in the Ninth Schedule also.  The Court declared Article 31-B  

valid and held if there is any violation, restriction or encroachment upon  

the fundamental rights, guaranteed under Articles 14, 15, 19 and 21, the  

State must justify its action on the touch stone of the doctrine of basic  

structure of the Constitution.  The judgment is reported in  I.R. Coelho  

(Dead) by L.Rs. v. State of Tamil Nadu (2007) 2 SCC 1.

Coelho Principle:

Coelho held  that  the  object  behind  Article  31B is  to  validate  certain  

legislations, which otherwise may be invalid and not to obliterate Part III  

in its  entirety or  to dispense with  judicial  review of  those legislations.  

The Court held that Article 21 confers right to life, which is the heart of  

the Constitution and when Article 21 read with Articles 14, 15 and 19 is  

sought to be eliminated not only the “essence of right” test but also the  

“right test” has to be applied, particularly when cases in  Kesavananda  

Bharati  (supra) and Indira Nehru Gandhi v.  Raj Narain (1975) Supp  

SCC 1, have expanded the scope of the basic structure to cover even  

some of the fundamental rights.  Further, it was also pointed out by the  

Court that there are certain parts or aspects of the Constitution including  

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Article 15, Article 21 read with Articles 14 and 19 which constitute the  

core values which if allowed to be abrogated would change completely  

the nature of the Constitution.  The exclusion of the fundamental rights  

would result in nullification of the basic structure doctrine, the object of  

which is to protect the basic features of the Constitution.  Referring to the  

“rights test” and the “essence of right” test, the Court held that there is a  

difference between both the tests and both form part of application of the  

basic structure doctrine.  The Court pointed out that the power to grant  

absolute immunity at will is not compatible with basic structure doctrine  

and after 24.4.1973 the laws included in the Ninth Schedule would not  

have  absolute  immunity  and  thus  validity  of  such  laws  could  be  

challenged on the touchstone of basic structure as reflected in Article 21  

read with Article 14, 15 and 19 and the principles underlying in those  

articles.   

2. Coelho (supra)  expressed  in  clear  terms  that  the  

functional  validity  based  on  the  power  of  immunity  exercised  by  the  

Parliament under Article 368 is not compatible with the basic structure  

doctrine  and,  therefore,  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 and, in that  

process, the Court has to examine the terms of the statute, the nature of  

the  rights  involved  and  in  substance  the  statute  violates  the  special  

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features of the Constitution and, for doing so, it has first to find whether  

the Ninth Schedule law is violative of Part III.  If, on such examination,  

the  answer  is  in  the  affirmative,  the  further  examination  is  to  be  

undertaken  whether  the  violation  found  is  destructive  of  the  basic  

structure  doctrine  and  if,  on  such  further  examination,  the  answer  is  

again  in  affirmative,  the  result  would  be  invalidation  of  the  Ninth  

Schedule law.    

Facts of the present case

Janmam Act,  1969,  enacted by the  Legislature  of  the  State of  Tamil  

Nadu, received the assent of the President on December 6, 1969.  The  

Act was enacted to provide for the acquisition of the rights of the janmies  

in  Janmam  Estate  in  Gudalur  Taluk  and  for  the  introduction  of  the  

ryotwari rights in the State.  Chapter 2 of the Act deals with the vesting of  

Janmam estates in the State.  Petitioner submits that, by virtue of the  

Janmam Act, janmies are being deprived of their rights over their forest  

land on which they have full proprietorship.  According to the petitioner,  

the whole purpose of the vesting of the forest under Section 3 of the  

Janmam Act is to acquire the forest for the Government on payment of  

nominal compensation which would amount to confiscation of property.  

Petitioner also stated that acquisition of property without resorting to the  

provisions of the Land Acquisition Act, 1894 is violative of Articles 14 and  

300A  of  the  Constitution  and  equality  clause  enshrined  in  the  

Constitution.  Petitioner further submitted that the petitioner should have  

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been  subjected  to  the  provisions  of  the  Tamil  Nadu  Land  Reforms  

(Fixation of Ceiling on Land) Act, 1961 (in short ‘the Ceiling Act’) rather  

than the Janmam Act, in which case, petitioner could have retained at  

least a portion of forest  land exercising the right  of  option and would  

have got more amount of compensation for the lands vested in the State.  

Petitioner  was,  therefore,  treated  unequally  violating  the  petitioner’s  

fundamental right guaranteed under Article 14 of the Constitution.    

3. Petitioner has also submitted that the rule of law, rule  

of equality and separation of powers have been held to be part of the  

basic structure of the Constitution and by the inclusion of the Janmam  

Act in the Ninth Schedule those rights have been abrogated violating the  

basic structure of the Constitution.     

4. The Constitutional validity of the Act has already been  

upheld by this Court in Balmadies Plantations Ltd. and another etc. v.  

State of Tamil Nadu (1972) 2 SCC 133, except that the provisions of  

Section 3 (Vesting Section) in so far as it relates to the transfer of forest  

area,  in  Janmam Estate,  was  held  to  be  not  a  measure  of  agrarian  

reforms and hence would not get the protection of Article 31-A of the  

Constitution of India.  In that connection, reference may also be made to  

the Ceiling Act which was also included in the Ninth Schedule.   The  

Ceiling Act, however, was not earlier made applicable to the Janmam  

Estate in the Gudalur Taluk, but was later made applicable and certain  

proceedings had started in respect  of  determination of  ceiling of  land  

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held by either the  janmies or the lessees.    The stand of the State of  

Tamil Nadu is that those janmies who have been given  ryotwari pattas  

under  the  Janmam  Act  became  pattadars/land  owners  and  the  

provisions of the Ceiling Act have also been made applicable.    

5. We are, in this case, concerned only with the question  

whether the vesting of forest land, included in the Janmam Estate, in the  

State would abrogate or destroy the basic structure of the Constitution.  

A Five Judges Constitution Bench of this Court in State of Kerala and  

another  v.  The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd.   

etc.  (1973) 2 SCC 713 had occasion to examine the nature of private  

forest situated in the old State of Madras and Kerala.  In that case the  

Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act No.26)  

was  challenged  on  the  ground  that  it  had  violated  the  petitioner’s  

fundamental  rights guaranteed under Articles 14,  19(1)(f),(g)  and was  

not  immunized  by  Articles  31  and  31-A  of  the  Constitution.   While  

examining the Constitutional validity of the said Act, the scope of Article  

31-A(2)(a) of the Constitution and the meaning of the word ‘estate’ also  

fell for consideration.  The Court noticed that the Janmam rights in the  

States  of  Madras and Kerala  are,  as  explained by Subba Rao,  J.  in  

Kavalappara  Kottarathil  Kochuni  and Others vs.  State  of  Madras  

and others (1960) 3 SCR 887, are rights of hereditary proprietorship in  

land.  The Court held those rights, like the rights created by grant of jagir   

or inam relating to land, which included agricultural land or waste lands  

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or  forests  and  hills  are  brought  within  the  definition  of  Estates  and,  

therefore, have to be acquired by the State under Article 31-A(1)(a) of  

the Constitution.   Reference was also made to the decision of this Court  

in  State  of  U.P. v.  Raja  Anand  Brahma Shah (1967)  1  SCR 362,  

wherein the Court  pointed out that the elimination of ancient Janmam  

rights  may  per  se be  regarded  as  possessing  the  attributability  of  

agrarian reforms because to wipe out feudal vestiges from our country  

side and to streamline land ownership are preliminaries in the projection  

of a Socialistic order which Part IV and Article 31-A of the Constitution  

strive  to  achieve.   Referring  to  Balmadies  Plantations (supra),  this  

Court in Gwalior Rayon (supra) case stated as follows:   

“33.   It is not disputed that all the private forests with which we are now  concerned are held in Janman right  – Janman rights being an ‘estate’  are  liable to be acquired by the State under Article 31-A(1)(a) as a necessary step  to the implementation of agrarian reform.  Section 3 of the impugned Act vests  the ownership and possession of all private forests in the State.  Therefore  they would attract the protection of Article 31-A(1).  It would not be, in such a  case, necessary to further examine if the lands so vested in the Government  are agricultural lands falling within sub-clause (iii).

34.  Indeed this does not mean that the State is absolved from  showing that the acquisition is for the purpose of agrarian reform.  In fact in  Balmadies case (supra), referred to above, the acquisition of forests owned  by  janmies was set aside on the sole ground that the impugned law on the  material on record did not indicate that the transfer of forests from the janmies  to the Government was linked in any way with a scheme of agrarian reform or  betterment of village economy.”   

6. The  Constitution  Bench  noticed  that  in  Balmadies  

case (supra) acquisition of forest by janmies was set aside on the sole  

ground that the impugned law, on the material on record, did not indicate  

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that  the  transfer  of  forest  from  janmies land  to  the  government  was  

linked in any way with the agrarian reforms or betterment of the village  

economy.  The Court, however, recognized the fact that the elimination  

of  ancient  janmies had  the  effect  of  wiping  out  feudal  vestiges  from  

countryside and to streamline land ownership was preliminaries of the  

projection of a Socialistic order which Part IV of the Constitution strive to  

create.  Further, let me indicate, that for understanding the real scope of  

Articles 14, 19 and 21, the impact of Articles 48A and 51A must also be  

taken  into  consideration.   It  is  with  this  in  mind,  the  Parliament  has  

enacted the Forest (Conservation) Act, 1980, the Wild Life (Protection)  

Act, 1972 as amended by Act 28 of 1986, the Environment (Protection)  

Act, 1986 and so on.   With this background, we have to examine the  

challenge against vesting of forest, held in janmam in the State of Tamil  

Nadu under the Janmam Act.  

7. Janmam  Act  provides  for  the  vesting  of  forest  and  

certain other categories of land under Section 3 of the Janmam Act for  

which provision for payment of compensation is also provided in the Act.  

Section 8 of the Act says that janmi would also be entitled to a ryotwari   

patta in respect of all lands proved to have been cultivated by the janmi  

himself, except the forest land which would vest in the State.  Section 9  

also entitles a tenant to a  ryotwari patta in respect of the lands in his  

occupation.   Section  10 states  that  where  no  person is  entitled  to  a  

ryotwari patta in respect of a land in a janman estate under Sections 8 or  

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9  and  the  land  vests  in  the  Government,  a  person  who  had  been  

personally cultivating such land for a continuous period of three years  

immediately  before  the  1st day  of  June,  1969  shall  be  entitled  to  a  

ryotwari patta in respect of that land.   

8. Section  11 stipulates  that  no  ryotwari  patta shall  be  

granted in respect of forests, which stood vested in the State. Such a  

provision was introduced in the Act so as to preserve forest wealth, its  

flora and fauna and to maintain ecological balance in tune with Article  

48A and 51A(g) of the Constitution.   For understanding the real scope of  

Article 14, 19 and 21 the impact of the above mentioned provisions has  

to be kept in mind.

9.  The only question is, in such a situation, whether the  

vesting of private forest in the State, by virtue of Section 3 of the Act, in  

any  way,  violates  any  of  the  fundamental  rights  guaranteed  to  the  

petitioner under Part III of the Constitution and, if that be so, whether that  

provision abrogates or destroys the basic structure of the Constitution,  

which exercise has to be undertaken in the light of the principles laid  

down by the Constitution Bench in Coelho’s case (supra).

Application of the Coelhos’s principle:     

First stage:  We  have  to  first  examine  whether  the  provisions  of  

Janmam Act  included in  the Ninth  Schedule  by the  Constitution  (34th  

Amendment Act 1974) is violating any of the rights guaranteed under  

Part III  of the Constitution, and if  our answer is in the affirmative, our  

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further enquiry would be whether the violation so found has abrogated or  

destroyed the basic structure of the Constitution.  On such examination,  

if our answer is in the affirmative, the result would be invalidation of the  

Act to the extent of its violation.  Petitioner, therefore, cannot succeed  

merely  by  establishing  that  any of  his  fundamental  rights  have  been  

violated but he has to further show that the violation has the effect of  

abrogating the basic structure of the Constitution.  Once it is established,  

the onus shift  to the State to justify the infraction of  the fundamental  

right, and if they fail, still  State can show, that such infraction has not  

abrogated or destroyed the basic structure of the Constitution.  Violation  

of  fundamental  right,  may not,  therefore,  ipso facto,  violate  the basic  

structure doctrine, but a law which violates the basic structure invariably  

violates some of the rights guaranteed under Part III, but not vice versa.  

A  law  which  infringes  a  basic  feature  of  the  Constitution  cannot  be  

validated under  Article  31B,  by inserting it  in  the  9th Schedule of  the  

Constitution.

10. Let us now examine whether any of the fundamental  

rights  guaranteed  to  the  petitioner  has  been  violated  by  any  of  the  

provisions of the Janmam Act, which has been included  in the Ninth  

Schedule.  The main plank of attack is on Section 3(b) of the Janmam  

Act by which, forest, which formed the part of the Janmam estate of the  

petitioner stood vested in the State free from all encumbrances which  

according to the petitioner has violated Article 14, 19 and 300A of the  

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Constitution of India.  Article 14 of the Constitution states that the State  

shall  not  deny  to  any  person  equality  before  the  law  or  the  equal  

protection of the laws within the territory of India.  Plea of inequality was  

raised  on  the  ground  that  if  ceiling  Act  was  made  applicable  to  the  

petitioner, it could have got the benefit of ceiling provision, consequently  

a portion of forest land could have been retained, and for the rest the  

petitioners  would  have  got  enhanced  compensation.   Further  it  was  

pointed  out  that  there  was  obvious  inconsistency  between  various  

clauses of the Ceiling Act and the Janmam Act and the petitioner was  

discriminated in their application violating Article 14 of the Constitution of  

India.  Further it was contended that when the forest land was acquired  

applying  the  provisions  of  Land  Acquisition  Act,  1894,  the  petitioner  

would  have  got  market  value,  for  the  forest  land  acquired  and  the  

inadequacy of compensation would amount to deprivation of property,  

violating Article 300A of the Constitution.  In my considered view, the  

plea raised alleging violation of Articles 14 and 300A cannot stand, since  

the petitioner is holding private forest in the Gudalur Taluk by way of  

janmam,  which are rights of hereditary proprietorship and those rights  

are like the rights created by grant of jagir or inam relating to land.  The  

object  and  purpose  of  Janmam  Act  is  to  do  away  with  such  

hereditaryship.   Janmam  estate  which  takes  in  forests,  mines  and  

minerals,  quarries,  rivers  and  streams,  tanks  and  irrigation  work,  

fisheries  and  so  on  stood  vested  in  the  State  free  from  all  

48

encumbrances.  Janmies are also entitled to get ryotwari patta in respect  

of  all  lands,  if  they  establish  they  have  been  cultivating  lands  for  a  

continuous period of three agricultural years immediately before the 1st  

day of  June,  1969.   Provision for  payment  of  compensation has also  

been provided under the Act.    

11.    Right not to be deprived of property, save by authority  

of  law is no longer a fundamental  right  but  only a constitutional  right  

which  has  never  been  treated  as  part  of  the  basic  structure  of  the  

Constitution.  Hence the contention that Section 3 violates Articles 14  

and  300A  of  the  Constitution  is  without  any  basis.   Petitioner  has,  

therefore, not succeeded in establishing that,  the Act or its provisions  

have violated any of  the fundamental  rights  guaranteed to  them and,  

therefore, the petitioner has failed to satisfy the first test laid down in  

Coelho’s  case  (supra).  Consequently,  the  question  whether  the  

Janmam Act and its provisions have violated the basic structure of the  

Constitution does not call for examination.  Our judicial journey should  

end  here,  and  we  are  least  concerned  with  the  violation  of  any  

constitutional  or  statutory  rights,  inadequacy  of  compensation  etc.  

Assuming that in our onward journey, we carry with us a bundle of right’s  

violations, which are fundamental,  then the question is whether those  

violations, have the effect of abrogating or destroying the basic structure  

of the Constitution.    

Second stage:   Petitioner urged that the violations which it has pointed  

49

out have the effect of shaking the confidence of the public in the rule of  

law,  equality  and  judicial  review  which  are  basic  features  of  the  

Constitution, among others.  

12.  Right  to  Equality  before  law,  Right  to  Equality  of  

Opportunity in matters of public employment, Right to Protection of life  

and  personal  liberty,  Right  against  Exploitation,  Right  to  Freedom of  

Religion etc. are all fundamental rights guaranteed under Part III of the  

Constitution and a common thread running through all the Articles in Part  

III  of  the  Constitution  have  a  common  identity  committed  to  an  

overarching  principle  which is  the  basic  structure  of  the  Constitution.  

Rule  of  law  is  often  said  as  closely  inter-related  principle  and  when  

interpreted  as  a  principle  of  law,  it  envisages  separation  of  powers,  

judicial review, restriction on the absolute and arbitrary powers, equality,  

liberty etc.   Separation of powers is integral  part  of rule of law which  

guarantee independence of  judiciary which is  a fundamental  principle  

viewed as a safeguard against arbitrary exercise of powers, legislative  

and constitutional.    Doctrine of absolute or unqualified parliamentary  

sovereignty  is  antithesis  to  rule  of  law.  Doctrine  of  parliamentary  

sovereignty may, at times, make rule of law and separation of powers  

subservient  to  the  wish  of  the  majority  in  parliament.   Parliamentary  

supremacy cannot be held unqualified so as to undo the basic structure.  

Basic structure doctrine is,  in effect,  a constitutional  limitation against  

parliamentary autocracy.  Let us, however, be clear that the principles of  

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equality inherent in the rule of law does not averse to the imposition of  

special  burdens,  grant  special  benefits  and privileges to secure to  all  

citizens justice, social and economic and for implementing the directive  

principles of state policy for establishing an egalitarian society.

13.   I, therefore, fully concur with the views expressed by  

the  Lord  Chief  Justice  that  the  over  arching  principles  as  explained  

above would fall  outside the amendatory power under Article 368 and  

the petitioner in the case has not succeeded in establishing that any of  

those principles have been violated.    

14.  Principles  laid  down in  Coelho’s  case  (supra)  were  

subsequently followed by a five Judges Bench in Ashok Kumar Thakur  

v. Union of India and others (2008) 6 SCC 1 wherein Constitution (93rd  

Amendment)  Act,  2005 and the enactment of  the Central  Educational  

Institutions  (Reservation  in  Admission)  Act,  2006  were  impugned.  

Referring Article 19(1)(g) Court held that if any constitutional amendment  

is made which moderately abridges the principle under Article 19(1)(g), it  

cannot be held that it violates the basic structure of the Constitution.  For  

determining whether  a particular  feature of  the Constitution is  part  of  

basic structure, it has to be examined in each individual case, keeping in  

mind, the scheme of the Constitution, its object and purpose, and the  

integrity of the Constitution as a fundamental instrument for the complete  

governance.   Further it was pointed out that the principle of equality is a  

delicate, vulnerable and supremely precious concept for our society and  

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has  embraced  a  critical  and  essential  component  of  constitutional  

identity.   Principles  of  equality  of  course  cannot  be completely  taken  

away so as to leave citizens in a state of lawlessness, but it was pointed  

out  that  the facets of  the principle of  equality can always  be altered,  

especially to carry out the directive principles of State policy.  Similar  

view  has  been  taken  in  State  of  West  Bengal  and  others v.  

Committee for Protection of Democratic Rights, West Bengal and  

others 2010 (3) SCC 571, where the Court was examining the powers of  

the  High  Court  under  Article  226  of  the   Constitution  to  order  

investigation  by  the  Central  Bureau  of  Investigation  in  respect  of  a  

cognizable offence.  In conclusion the Bench held as follows:

“The fundamental rights, enshrined in Part III of the Constitution are inherent  and cannot be extinguished by any constitutional or statutory provision.  Any  law that  abrogates  or  abridges such rights  would  be violative of  the basic  structure.  The actual effect and impact of the law on the rights guaranteed  under Part III  has to be taken into account in determining whether or not it  destroys the basic structure.”

15. Fundamental  rights  enshrined  in  Part  III  can  be  

extinguished  by  Constitutional  amendments  and  if  it  abrogates  or  

abridges such rights, would not as such, abrogate or abridge the basic  

structure.  The  test  is  whether  it  has  the  effect  of  nullifying  the  over  

arching principles of  equality,  secularism, liberty and so on especially  

when such a law is placed in the 9th Schedule, which test in the present  

case has not been satisfied.   

16. I, therefore, fully concur with the view of the Lord Chief  

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Justice that the writ  petitions and the civil  appeals deserve dismissal,  

and there shall be no order as to costs.   

..…………………….J. ( K.S. Radhakrishnan)

New Delhi September 9,  2010                                      

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