I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors
(Former Chief Justice of India Y.K. Sabharwal)
Facts
By way, the 34th
and 66th constitutional Amendment Act, Gudalur Janmam Estates
(Abolition and Conversion into Ryotwari) Act, 1969 and the West Bengal Land
Holding Revenue Act, 1979, both in its entirety, were inserted in the Ninth
Schedule respectively by the state government. These insertions were the
subject matter of challenge because theses both laws were struck down by the
respective High Courts when were not inserted into the 9th schedule
via constitutional amendment on the grounds that they were not a measure of
agrarian reforms as protected u/a 31 A and were arbitrary in nature.
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 31-B 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.
Issue
Determining the nature and character of protection provided by Article 31-B of the Constitution
Petitioner
Statement
of jurisdiction: The Constitution was framed after an
in-depth study of manifold challenges and problems including that of poverty,
illiteracy, inequalities based on caste, creed, sex and religion. The
Fundamental Rights Chapter was incorporated providing in detail the positive
and negative rights. It provided for the protection of various rights and
freedoms.
Arguments:
1. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and the State's welfare obligations in Part IV. And for enforcement of these rights, the Supreme Court was vested with original jurisdiction as contained in Article 32.
2. The equality, rule of law, judicial review,
and separation of powers form parts of the basic structure of the Constitution.
Each of these concepts is intimately connected. There can be no rule of law if
there is no equality before the law. These would be meaningless if the
violation were not subject to judicial review. All these would be redundant if
the legislative, executive and judicial powers are vested in one organ.
4. 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 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 of the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary. In the SR Bommai v Union of India case, it was reiterated that the judicial review the basic feature of the Constitution and that this power cannot be abrogated by the process of judicial interpretation.
5. Contrary to the Shankari Prasad Deo case, it may be noted that the mere fact that rule of law, separation of power and judicial review which are part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent them 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 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.
6. 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 State of Madras[1] interpreting the words "according to procedure established by law" to mean only enacted law, received enlarged interpretation in Maneka Gandhi v Union of India[2]. 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.
7. As article 31-B was not the part of original Constitution and
it was inserted via the first Constitutional amendment in 1951, therefore, it does
not hold the same pedestal as that of other fundamental rights in the Constitution
and hence it can be declared as unconstitutional and violative of fundamental right
and basic structure doctrine.
Prayer: Ninth
Schedule, its constitutional validity would have to be considered by
reference to the basic structured
doctrine and such constitutional amendment would be liable to be
declared invalid to the extent to which it damages
or destroys the basic structure of the Constitution by according
to
protection against violation of any particular fundamental right.
The principle of
constitutionalism is now a legal principle that requires control over the
exercise of Governmental power to ensure that it does not destroy the
democratic principles upon which it is based. These democratic principles
include the protection of fundamental rights. The principle of
constitutionalism advocates a check and balance model of the separation of
powers, it requires a diffusion of powers, necessitating different independent
centres 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.
Chief Justice Patanjali
Sastri in State of Madras v V.G. Row [3] has said that:
"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."
Respondent
1. The Parliament is seeking to amend fundamental rights
solely with the object of removing any possible obstacle in the fulfilment of
the socio-economic policy viz. a policy in which the party in power
believes. Even if the court would apply the doctrine of pith and substance
it would see that the real objective of the legislature is to remove the
obstacles for implementing the socio-economic policy for the sake of public
interest.
2. There is a clear demarcation between ordinary law, which is
made in the exercise of legislative power, and constitutional law, which is
made in the exercise of constituent power. Dicey defines constitutional law as
including "all rules which directly or indirectly affect the distribution
or the exercise of the sovereign power in the State." Having
regard to the considerations adverted to above, the context of Article 13 law
must be taken to mean rules or regulations made in exercise of ordinary
legislative power and not amendments to the Constitution made in exercise of
constituent power, with the result that Article 13 does not
affect amendments made under article 368. It is even provided under article
13(4) of the constitution “nothing in this article shall apply to any
amendment of this Constitution made under article 368”. The 24th
Constitutional Amendment Act of 1971 was held to be valid in the case of Keshavananda
Bharti v State of Kerala.
3. Article 31-A and 31-B adds several acts to the 9th schedule of the Constitution, and it does not amend the provisions of the Part III of the Constitution but makes an independent provision too article 368. If the Parliament thought that instead of adopting cumbersome process of amending each relevant article in the part III, it would be more appropriate to add article 31-A and 31-B, then what parliament did in the 1951 has afforded a valid basis for further amendments.
4. The answer is that, as has been stated, articles 31 A and 31 B
really seek to save a certain class of laws and certain specified laws already
passed from the combined operation of article 13 read with other relevant articles of Part III.
That the laws thus saved relate to matters covered by List II does not in
any way affect the position. But to make a law that contravenes the
constitution constitutionally valid is a matter of constitutional amendment, and
as such, it falls within the exclusive power of Parliament.
Judgement
The 9-judge bench held that 9th
schedule is not immune from the power of judicial review as it is the part of
the Constitution. If any law in this schedule is violative of the fundamental rights
then it would be subject to the judicial scrutiny. The very object of the
article 31-B was to remove the difficulties and not to wipe out the process of judicial
review. Therefore, it was allowed to the legislature to amend the 9th
schedule but any new amendments or alteration in the Constitution would be
subject to judicial review and be tested on the merits to see if it is
violative of the basic structure doctrine. As fundamental rights form the core
value of the Constitution which is allowed to be abrogated then it would
completely change the nature of Constitution.
The
cut-off date decided by the court was 24:04:1973 and any law inserted after
this date would be subject to the judicial review if violative of Part III of
the Constitution, as on this date the doctrine of basic structure was formed.
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