Topics Covered in this article
- Justice Y.K. Sabharwal
- Justice Ashok Bhan
- Justice Arijit Pasayat
- Justice BP Singh
- Justice S.H. Kapadia
- Justice C.K. Thakkar
- Justice P.K. Balasubramanyam
- Justice Altamas Kabir
- Justice D.K. Jain
Respondent- I.R. Coelho (Dead) by LRs
Petitioner- State of Tamil Nadu & Ors
“The concept of basic structure as a brooding omnipresence in the sky apart from specific provisions of the constitution is too vague and indefinite to provide a yardstick for the validity of an ordinary law” –Justice K.K. Mathew
I.R. Coelho case was a judgement delivered unanimously in 2007 where the judgment was upholding the Basic Structure doctrine which was laid down in Kesavananda Bharati case This case is famously known as the Ninth Schedule case due to political background involved during discussions on the validity of Article 31(b) of the Indian Constitution. The apex court also upheld the power of the judiciary to review any law which in its opinion would in any way destroy the basic structure of the Constitution.
Facts of the Case
The case came out of reference made by a five judge constitution bench in the case of Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu where the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act) was struck down by the court. This was done because this was found to be outside the scope of agrarian reforms under Article 31-A of the constitution.
Side by side, section 2(c) of West Bengal Land Holding Revenue Act, 1979 was called arbitrary by the Calcutta HC and hence struck down.
The Janmam Act 1969 and the West Bengal Land Holding Revenue Act, 1979 was inserted in the Ninth schedule through 34th and 66th Constitutional Amendment Act in its entirety. These Insertions were challenged in the court and it was contended that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule. It rested originally on 2 counts-
- Judicial review is considered as the basic feature of the Indian constitution and to insert an Act in the ninth schedule, which had already been struck down, as unconstitutional.
- To insert a struck down act or its part under 9th Schedule after the Basic Structure judgement is violative of the Part III of Indian Constitution.
In a referral order, the court mentioned the Judgement in Waman Rao case and propounded that Amendments made in the Constitution, inclusion of statutes or regulations made after 24th April, 1973 are subject to be challenged if they are causing damage to the basic structure of the Constitution. Subsequently, this decision was questioned in Minerva Mills v. Union of India and it was observed by the court that the judgement of Waman Rao needs to be reconsidered by a larger bench and the elements damaging the basic structure of the constitution should be struck down.
Issues of the Case
- Is it permissible to make the 9th Schedule immunized from the judicial review of the court?
- Whether the test for basic structure would include judicial review of Ninth Schedule laws on the touchstone of fundamental rights?
Relevant Case Laws
- Shankari Prasad Singh Deo v. Union of India– The Apex Court, in this case, upheld the constitutional validity of the First Constitutional Amendment. This amendment was enacted with an objective to secure the constitutional validity of Zamindari laws in India. The Court, while upholding the validity of Article 13 (2) did not affect the amendments made to Article 368 of the Constitution.
- Sajjan Singh v. State of Rajasthan– The Supreme Court in this case upheld the constitutionality of the Ninth Schedule Constitution (Seventeenth Amendment) Act, 1864. The Court also opined that the insertion of Article 31-A and 31-B was to realise the State Legislative measures adopted by various States concerning the agrarian reforms as challenging them on the ground of contravening the Fundamental Rights and would only delay their implementation. On the Doctrine of Pith and Substance, the court held that they were seeking to amend the Fundamental Rights to remove any obstruction coming in their way to implement the socio-economic policies.
- IC Golaknath v. State of Punjab– The 11-judge bench of this case overruled the judgment laid down in Sajjan Singh and Shankari Prasad case. The bench gave its judgment with a majority of 6:5 and held that the constitutional amendment was within the meaning of Article 13 of the Constitution and if it abridged the rights conferred by Part III of the Indian Constitution, then such an amendment would be void. The Court further held that post February 27, 1967, the Parliament could not amend any provision of Part III.
- Smt. Indira Nehru Gandhi v. Raj Narain– In this case, the Parliament had passed the 39th Amendment Act, 1975 while the order of the appeal regarding the election of the then Prime Minister was pending before the Supreme Court, in this case, the Apex Court had struck down the clause (4) of the 39th Amendment Act.
Judgment of the Case
Citing the development of law and historical background of Ninth Schedule, the court recognised the doctrine of basic structure and the power of judicial review, elaborated in Kesavananda Bharati case, and held that the laws placed in Ninth Schedule would not enjoy the immunity. Elaborating issue 1, the court held that it is absolutely not permissible to make the 9th Schedule immunized from the judicial review. The court held that the Doctrine of Basic structure is the very essence of the constitution and none can overrule it. Since, the Fundamental rights forms a part of basic structure, every act to be inserted in the Ninth Schedule has to undergo a Fundamental Rights test.
The Fundamental Rights test basically means to check that the law or regulation inserted in the Ninth schedule determines whether they are transgressing their border or violating Part III of the Constitution. If the law is inconsistent with the provisions of Fundamental rights, then the law needs to be struck down.
Also, since, Ninth schedule is the part and parcel of Indian Constitution, no additions or alterations can be made without complying with the restrictive provisions governing the amendments of the constitution.
But the court will carry on examining the nature and eliminating the unrequited to the extent of infarction of a fundamental right, sought to be protected by a statute and on the touchstone of basic structure doctrine as reflected in Article 21 read with Article 14 and 19 of Indian Constitution by application of rights and the essence of the right test.
Answering issue 2, the court held that the basic structure is a fundamental aspect of the Constitution and this cannot be abridged or destroyed. Basic structure is the most important organ of the Constitution. Though, it is not defined anywhere in the constitution but the bench in Kesavananda Bharati v. State of Kerala sought to define the basic structure and propounded that it includes Judicial Review, Arts.32 and 226; Federalism; Secularism; The sovereign, democratic, republican structure; Freedom and dignity of the individual; Unity and integrity of the Nation. The Judges also referenced Justice Khanna’s opinion in the Basic structure case-
“We can notice that the fundamental rights can be amended, abrogated or abridged so long as the Basic Structure of the Constitution is not destroyed. Moreover, Article 32 is the very part of the Fundamental Rights chapter and therefore, the inclusion of an act in 9th Schedule does not exclude the check of Part III including that of Art.32.”
Through cases like Kesvananda Bharti v State of Kerala and Indira Nehru Gandhi v Raj Narain the SC held that every constitutional amendment shall have its own merits and the actual effect and impact of the law on the rights guaranteed as Fundamental rights should be taken into account.
The Parliament’s power to amend the Constitution to check the validity of laws inserted but also the laws inserted in the Ninth Schedule on the touchstone of the Constitution. The Parliament while amending the Constitution and exercising its power under Article 368 cannot destroy the Basic structure as guaranteed.
The doctrine of Basic Structure provides a touchstone to test the amending power and in its exercise, Part III of Fundamental rights play a very important role. These were added to check the state legislative power adding up to Article 13 which provides that State cannot make any laws that are contrary to Part III. Since fundamental rights form a special and privileged right in the Constitution, it is essential that Ninth schedule laws should be tested on the touchstone of Fundamental Rights.
Therefore, the constitutional validity of Ninth Schedule laws on the touchstone of the Basic structure doctrine which can be adjudged by applying the direct impact and effects of right’s test, determining the factor of law and not a particular law. It is for the court to decide if this interference is justified or if it does or does not amount to violation of the basic structure. The court stated- “the role of the court is “determination by court whether invasion was necessary and if so to what extent.”
Analysis of the Judgment
This judgment was a landmark one and the Court was very conscious in dealing with this case. Though, the judgment was criticised in many ways. The Court kept on adding new principles to the doctrine of basic structure. This, however, hampered the legislature and led to forming of new legislations which caused vagueness and perplexity. There is no specific definition of basic structure but it has been a basket of different principles.
On the other hand, looking at the positive side of this landmark judgment, the basic structure doctrine is affirmative which entails violation of any fundamental right which is a part of this doctrine and can be struck down depending on its impact and consequences. This case has in some way corrected the pronouncement of Golaknath case as in this case if any law abridged Part III of the constitution, it would be declared invalid but this case covered this concept broadly by saying that the degree of breach was necessarily examined by the Courts to determine the infringement of Fundamental rights.
Further, Justice Mathew, in the Indira Gandhi case stated that the concept of basic structure is too vague and indefinite to provide a benchmark for the viability of an ordinary law. Also, the former Attorney General, Soli Sorabjee in one of his lectures ruled out that the judgment of IR Coelho imposes certain limitations on the powers of the Parliament with respect to fundamental rights. The judgement only revolves around the golden triangle, that is, Article 14, 19 and 21 of the Constitution of India. Thus, there is no certainty or solidarity about what constitutes the basic structure of the constitution.
India is a country where many essential features like separation of power exists. As per this concept, the three organs of the government have their separate roles to play. This way, no single authority has to bear the load and each and every organ plays their role efficiently. One of the most common and important doctrines is the Basic Structure doctrine which was propounded in the Kesavananda Bharati case and is far away from amendments. This concept includes many features like Fundamental Rights, federalism, independence, judicial review, judiciary, and federalism. Thus, the law of our country has always played a crucial role in setting up the constitutional status.
 I. R. Coelho v. State Of Tamil Nadu, AIR 2007 SC 861.
 AIR 1973 SC 1461.
 (1972) 2 SCC 133.
 1980 AIR 1789.
 AIR 1952 SC 458.
 AIR 1965 SC 845.
 AIR 1967 SC 1643.
 AIR 1957 SC 2299.
 The Constitution of India, 1950, Article 368.