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CASE NO.: Appeal (civil)  1344-45 of 1976

PETITIONER: I.R. Goelho (Dead) By LRs

RESPONDENT: State of Tamil Nadu & Ors

DATE OF JUDGMENT: 11/01/2007

BENCH: Y.K. Sabharwal Ashok Bhan Arijit Pasayat B.P. Singh, S.H. Kapadia C.K. Thakker & P.K. Balasu bramanyan Altamas Kabir  D.K. Jain

JUDGMENT: J U D G M E N T

[With 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.

       In these matters we are confronted with a very important  yet not very easy task of determining the nature and character  of protection provided by Article 31-B of the Constitution of  India, 1950 (for short, the ’Constitution’) to the laws added to  the Ninth Schedule by amendments made after 24th April,  1973.  The relevance of this date is for the reason that on this  date judgment in His Holiness Kesavananda Bharati,  Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC  225] was pronounced propounding the doctrine of Basic  Structure of the Constitution to test the validity of  constitutional amendments. Re : 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.  Coelho (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 Bench.         The contention urged before the Constitution Bench was  that the statutes, inclusive of the portions thereof which had

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been struck down, could not have been validly inserted in the  Ninth Schedule.           In the 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. Broad 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. Development 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.          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.   The 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.   The parties aggrieved had filed appeals before the Supreme  Court.  At the same time, certain Zamindars had also  approached the Supreme Court under Article 32 of the  Constitution.  It was, at this stage, that Parliament amended

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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.         Articles 31A and 31B read as under : "31A.   Saving of laws providing for  acquisition of estates, etc.\027 [(1)  Notwithstanding anything contained in  article 13, no law providing for\027  (a)    the acquisition by the State of any  estate or of any rights therein or the  extinguishment or modification of  any such rights, or  (b)    the taking over of the management  of any property by the State for a  limited period either in the public  interest or in order to secure the  proper management of the property,  or

(c)      the amalgamation of two or more  corporations either in the public  interest or in order to secure the  proper management of any of the  corporations, or   (d)     the 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   (e)     the extinguishment or modification  of any rights accruing by virtue of  any agreement, lease or licence for  the purpose of searching for, or  winning, any mineral or mineral oil,  or the premature termination or  cancellation of any such agreement,  lease or licence,

shall be deemed to be void on the ground  that it is inconsistent with, or takes away  or abridges any of the rights conferred by  article 14 or article 19 : Provided that where such law is a law  made by the Legislature of a State, the  provisions of this article shall not apply  thereto unless such law, having been  reserved for the consideration of the  President, has received his assent :   Provided further that where any law

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makes any provision for the acquisition  by the State of any estate and where any  land comprised therein is held by a  person under his personal cultivation, it  shall not be lawful for the State to  acquire any portion of such land as is  within the ceiling limit applicable to him  under any law for the time being in force  or any building or structure standing  thereon or appurtenant thereto, unless  the law relating to the acquisition of such  land, building or structure, provides for  payment of compensation at a rate which  shall not be less than the market value  thereof.  (2) In this article,\027  (a)     the expression "estate", shall, in  relation to any local area, have the  same meaning as that expression or  its local equivalent has in the  existing law relating to land tenures  in force in that area and shall also  include\027 (i)     any jagir, inam or muafi or  other similar grant and in the  States of Tamil Nadu and  Kerala, any janmam right;    (ii)    any land held under ryotwary  settlement;   (iii)   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 artisans;   (b)     the expression "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 land revenue.

31B. Validation of certain Acts and  Regulations.\027Without 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

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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].  The 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 Parliament.          The 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 arise.         Justice 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.  [(1967) 2 SCR 762] a Bench of 11 Judges considered the

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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.         Soon 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.         By Constitution (24th Amendment) Act, 1971, Article 13  was amended and after clause (3), the following clause was  inserted as Article 13(4) : "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.         The 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, namely : "31C.\027Saving of laws giving effect to  certain directive principles.\027 Notwithstanding 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 :

Provided 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.         The 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 \026 Kerala Land Reforms

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Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 \026  Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of  1971).         These 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.         The 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.         Another 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 : "(4) No law 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 effect. (5) 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)."

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       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.         In Smt. 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  Constitution.   About 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.   By 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 reforms.         Article 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) : "368(4) 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. (5)     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 Constitution.   Articles 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 emergency.   The Maintenance of Internal Security Act, 1971 and the  Prevention of Publication of Objectionable Matter Act, 1976  which had been placed in the Ninth Schedule were repealed.   The 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.   During 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 decisions.         The 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,

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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.         In 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. The 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  decision.   In Bhim 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.  It was 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.  

Constitutional 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 : "Amendment 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. In 1977 item 130 (Prevention of

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Publication of Objectionable Matter) was  repealed. In 1978 the 44th amendment omitted  items 87 (The Representation of People  Act), 92 and 130." Many additions are unrelated to land  reforms.

The 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 it".   Reference 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 : "This 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 (supra).   In S.R. Bommai & Ors. v. Union of India & Ors.  [(1994) 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. It is the duty of this Court to uphold the constitutional  values and enforce constitutional limitations as the ultimate  interpreter of the Constitution. Principles 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.   The 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

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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 statutes.  Common Law Constitutionalism         The protection of fundamental constitutional rights  through the common law is main feature of common law  constitutionalism.         According 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.         According 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.   Under 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 maintained. Principles 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. Granville 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.   Fundamental 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 \026 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

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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 yardstick.   The developments made in the field of interpretation and  expansion of judicial review shall have to be kept in view while  deciding the applicability of the basic structure doctrine \026 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.           The 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 : "So 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

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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 : "Section 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.  Seervai 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 \026  ’constituent power’, ’Rigid’ (controlled), or ’flexible’  (uncontrolled) constitution, ’primary power’, and ’derivative  power’.  The 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 \026derived 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. For 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).  The fundamentalness 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.  It is, 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

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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.   This 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. Views taken in Bank Nationalization case has been  reiterated in number of cases (see Sambhu Nath Sarkar v.  The State of West Bengal & Ors. [(1974) 1 SCR 1],  Haradhan Saha & Anr. v. The State of West Bengal &  Ors. [(1975) 1 SCR 778] and Khudiram Das v. The State of  West Bengal & Ors. [(1975) 2 SCR 832]  and finally the  landmark judgment in the case of Maneka Gandhi (supra).   Relying 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: "The 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.  This proposition can no longer be  disputed after the decisions in R. C.  Cooper’s 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

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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 [1952] S.C.R. 284 and Kathi  Raning Rawat v. The State of Saurashtra  [1952] 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: "\005In 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;  otherwise, it would be no procedure at all  and the requirement of Article 21 would  not be satisfied.  

Any 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".                                                 [emphasis supplied]

The above position was also reiterated by Krishna Iyer J.,  as follows : "The Gopalan (supra) verdict, with the  cocooning of Article 22 into a self  contained code, has suffered

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supersession at the hands of R. C.  Cooper(1) 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 [1973] 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.  Man is 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.    The 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: "This 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.

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Every 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 is incorporated.  Fundamental 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

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guarantees". [Emphasis 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. Seperation 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.   In 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).   There 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 government.   Alexander 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:  

"The 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:

"There 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."

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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]. Contentions    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 the  contention. Further 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.   Therefore, 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. The 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 determinative factor.   The 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 \026 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. On the 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

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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. Further, 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.  The 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.   Whereas 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

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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.         To 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. etc. v.  The 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.         It is 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. Validity 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 : In Sajjan 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

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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 Constitution.  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, para  1518).

       We 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.   Point 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. Kesavananda 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

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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. Six 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.   While 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 doctrine. Justice Khanna upheld the 29th Amendment in the  following terms: "We 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: "(xv) 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.   They have also relied on observations by Ray CJ., as  quoted below, in Indira Gandhi (supra).  In that case, Ray  CJ. observed: "The 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\005. 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

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the Schedule beyond any attack that  these infringe Part III of the Constitution.  The 29th Amendment is affirmed in  Kesavananda Bharati’s case (supra) by  majority of seven against six Judges.  

\005.Second, 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.   On the issue of how 29th Amendment in Kesavananda  Bharati case was decided, in Minerva Mills, Bhagwati, J.  has said thus : "The 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

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basic structure doctrine, the factum of validity of 29th  mendment in Kesavananda Bharati case is not conclusive of  matters under consideration before us. In 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: "There 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.  What 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\005.

\005.The 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".

Thus, 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

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unconditionally valid is of no consequence on the point in  issue in view of peculiar position as to majority abovenoted.   Such an analysis is supported by Seervai, in his book  Constitutional Law of India (4th edition, Volume III), as follows:

"Although 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 \026 the scope  of amending power \026 it raises complicated  problems of its own.  Was Khanna J.  right in 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.  9\005.Taking 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)\005.

But if the power of amendment is limited  by the doctrine of basic structure, a grave  problem immediately arises\005.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 \026 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.   If Parliament, exercising constituent  power cannot enact an amendment  destroying the secular character of the

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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.   To 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\005.  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. We are 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

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majority judgment in Kesavananda Bharati’s case is not  based on a correct reading of Kesavananda Bharati.   On the 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. Next, 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 the Constitution.              The 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.  To 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

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are concerned.  The supremacy of the Constitution mandates  all constitutional bodies to comply with the provisions of the  Constitution. It also mandates a mechanism for testing the  validity of legislative acts through an independent organ, viz.  the judiciary.   While 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.   If the 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 doctrine.   Regarding 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.   Fundamental rights enshrined in Part III were added to  the Constitution as a check on the State power, particularly  the legislative power.  Through Article 13, it is provided that  the State cannot make any laws that are contrary to Part III.   The framers of the Constitution have built a wall around  certain parts of fundamental rights, which have to remain  forever, limiting ability of majority to intrude upon them.  That  wall is the ’Basic Structure’ doctrine.  Under Article 32, which  is also part of Part III, Supreme Court has been vested with  the power to ensure compliance of Part III.  The responsibility  to judge the constitutionality of all laws is that of judiciary.   Thus, when power under Article 31B is exercised, the  legislations made completely immune from Part III results in a  direct way out, of the check of Part III, including that of Article  32.  It 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. Indeed, if Article 31B only provided restricted immunity  and it seems that original intent was only to protect a limited  number of laws, it would have been only exception to Part III  and the basis for the initial upholding of the provision.   However, the unchecked and rampant exercise of this power,

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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.           It is 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.   The 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  Directive Principles. 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. After enunciation of the basic structure doctrine, full  judicial review is an integral part of the constitutional scheme.   Justice 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

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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  Article 31B. In Indira 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. Dealing 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.   Can it 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.   It 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. The 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

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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.   Even 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.   Certain 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.  Our 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. Other 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 constitutional commitments.   India’s constitutional history has led us to include the essence  of each of our fundamental rights in the basic structure of our  Constitution.   The 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.   The extent of abrogation and limit of abridgment shall have to  be examined in each case. We may also recall the observations made in Special  Reference No.1/64 [(1965) 1 SCR 413] as follows : "...[W]hether 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

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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 Part III.

Extent 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 Constitution.   We 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. In Kesavananda 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.   Kesavananda 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. As 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.   As is 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.). The 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

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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  Mills case). 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.    Bharti 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  Ninth Schedule. Since power to amend the Constitution is not unlimited,  if changes brought about by amendments destroy the identity  of the Constitution, such amendments would be void.  That is  why when entire Part III is sought to be taken away by a  constitutional amendment by the exercise of constituent power  under Article 368 by adding the legislation in the Ninth  Schedule, the question arises as to the extent of judicial  scrutiny available to determine whether it alters the  fundamentals of the Constitution.  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.   The 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.   Article 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.  to 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 basic structure. If constituent power under Article 368, the other name  for amending power, cannot be made unlimited, it follows that  Article 31B cannot be so used as to confer unlimited power.   Article 31B cannot go beyond the limited amending power  contained in Article 368. The power to amend Ninth 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. To legislatively override entire Part III of the Constitution  by invoking Article 31-B would not only make the  Fundamental Rights overridden by Directive Principles but it  would also defeat fundamentals such as secularism,  separation of powers, equality and also the judicial review  which are the basic feature of the Constitution and essential

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elements of rule of law and that too without any  yardstick/standard being provided under Article 31-B. Further, 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  14.  Article 16(1) concerns formal equality which is the basis of  the rule of law.  At the same time, Article 16(4) refers to  egalitarian equality.  Similarly, the general right of equality  under Article 14 has to be balanced with Article 15(4) when  excessiveness is detected in grant of protective discrimination.   Article 15(1) limits the rights of the 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. Equality, rule of law, judicial review and separation of  powers form parts of the basic structure of the Constitution.   Each of these concepts are intimately connected. There can be  no rule of law, if there is no equality before the law.  These  would be meaningless if the violation was not subject to the  judicial review.  All these would be redundant if the legislative,  executive and judicial powers are vested in one organ.   Therefore, the duty to decide whether the limits have been  transgressed has been placed on the judiciary. Realising 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 \026 rule of law,  separation of power \026 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.         On 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 : "Before entering upon discussion of the  issues arising herein, it is necessary to  make a few clarificatory observations.  Though 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 [1973] 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

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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.  Acceptance 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.   The 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. Every amendment to the Constitution whether it be in  the form of amendment of any Article or amendment by  insertion of an Act in the Ninth Schedule has to be tested by  reference to the doctrine of basic structure which includes  reference to Article 21 read with Article 14, Article 15 etc.  As  stated, laws included in 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. In Waman Rao, it was accordingly rightly held that the  Acts inserted in the Ninth Schedule after 24th April, 1973  would not receive the full protection. Exclusion of Judicial Review compatible with the doctrine  of basic structure \026 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). The role of the judiciary is to protect fundamental rights.  

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A modern democracy is based on the twin principles of  majority rule and the need to protect fundamental rights.   According 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 rights. Application 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.         The 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.         The 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.         The object behind Article 31-B is to remove difficulties  and not to obliterate Part III in its entirety or judicial review.   The doctrine of basic structure is propounded to save the  basic features.  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.

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       The 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.   Exclusion of fundamental rights would result in nullification of  the basic structure doctrine, the object of which is to protect  basic features of the Constitution as indicated by the synoptic  view of the rights in Part III.         There 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.   Regarding 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. Part III is amendable subject to basic structure doctrine.  It is 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. The constitutional amendments are subject to limitations  and if the question of limitation is to be decided by the  Parliament itself which enacts the impugned amendments and  gives that law a complete immunity, it would disturb the  checks and balances in the Constitution.  The authority to  enact law and decide the legality of the limitations cannot vest  in one organ.  The validity to the limitation on the rights in  Part III can only be examined by another independent organ,  namely, the judiciary.           The power to grant absolute immunity at will is not  compatible with basic structure doctrine and, therefore, after  24th April, 1973 the laws included in the Ninth Schedule  would not have absolute immunity.  Thus, validity of such  laws can be challenged on the touchstone of basic structure  such as reflected in Article 21 read with Article 14 and Article  19, Article 15 and the principles underlying these Articles.           It has to be borne in view that the fact that some Articles  in Part III stand alone has been recognized even by the  Parliament, for example, Articles 20 and 21.  Article 359  provides for suspension of the enforcement of the rights  conferred by Part III during emergencies.  However, by  Constitution (44th Amendment) Act, 1978, it has been provided  that even 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

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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 Constitution.         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.         The 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.         Article 31B gives validation based on fictional immunity.  In 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

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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.         The 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. In conclusion, we hold that : (i)     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.   (ii)    The majority 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 challenge. (iii)   All amendments 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. (iv)    Justification for conferring protection, not blanket  protection, on the laws included in the Ninth Schedule by  Constitutional Amendments shall be a matter of  Constitutional adjudication by examining the nature 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.                 This is our answer to the question referred to us  vide Order dated 14th September, 1999 in I.R. Coelho v.  State of Tamil Nadu [(1999) 7 SCC 580]. (v)     If the validity of any Ninth Schedule law has already been

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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.  (vi)    Action taken and transactions finalized as a result of the  impugned Acts shall not be open to challenge. We 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.