I.R.Coelho V. State of Tamil Nadu
AIR 2007, SC 861
By Swati Ghildiyal,CLC, Faculty of Law, DU.
Justice Mathew, in Indira Gandhi case[i] had perceptively stated “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 an ordinary law”. I.R Coelho case, is the latest of the land mark judgments on the interpretation of the doctrine of basic structure of the constitution as laid down in Kesavananda Bharti case[ii]. The court in the present case went a step further and articulated a distinction between what is termed as the “essence of the rights test” and the “rights test” corresponding to the distinction between the foundational value behind an express right and the express right provided for in the constitutional text in this context. What adds to its importance is the fact that, IR Coelho was decided by a nine judge bench, headed by Y.K. Subharwal, C.J.I, after a reference being made to it by a five-judge bench, gave a unanimous decision.
Facts of the case:
The case arose out of an order of reference made by a five judge constitution bench in 1999. The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, that vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by the Supreme Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu[iii], as it was found to be outside the scope of protection provided to agrarian reforms under article 31-A of the Constitution. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act was inserted in the ninth schedule, which was challenged. In its referral order, the constitution bench noted that, according to Waman Rao & Ors. v. Union of India & Ors[iv], amendments to the Constitution made on or after 24.4.1973 (the date of the Kesavananda Bharati judgment) inserting various laws in the ninth schedule were open to challenge on the ground that such amendments are beyond the constituent power of Parliament since they damage the basic structure of the Constitution. The referral order further stated that the judgment in Waman Rao needs to be reconsidered by a larger bench so that it is made clear “whether an Act or regulation which, or a part of which, is or has been found by the courts to be violative of one or more of the fundamental rights conferred by articles 14, 19 or 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”.
The fundamental question decided in this case was, whether on and after 24.4.1923(Date of the judgment in kesavananda Bharti V. State of Kerala when the basic structure doctrine was propounded, is it permissible for the parliament under Article 31-B to immunise legislations by inserting them into the ninth schedule and thus outside the purview of the courts and, if so, what was its effect on the power of judicial review of the court.
Historical Background of the Ninth Schedule:
After the Constitution was enacted, several agrarian and land reforms legislations were passed. These were challenged in State High Courts on the ground of violation of fundamental rights. The Patna High Court struck down certain land reform legislation as being violative of fundamental rights. Similar legislation was upheld by the Allahabad and Nagpur High Courts and appeals from these judgments were pending in the Supreme Court. The Union Government, with a view to put an end to all this litigation, passed in Parliament the Constitution [First Amendment] Act, 1951. By this amendment Article 31-B and Ninth Schedule were enacted in the Constitution. The intent and effect was that any legislation placed in the Ninth Schedule could not be challenged on the ground that it was violative of any fundamental right. It is interesting to note that only thirteen Acts, all dealing with agrarian reforms, were initially placed in the Ninth Schedule. In course of time that number swelled to 284. Many of the Acts, which had no relation with agrarian or socio-economic reforms, were indiscriminately placed in the Ninth Schedule.
Development of law:
- Pre Kesavananda Bharti case
The dispute arose right after the first amendment Act, inserting Article 31-B & ninth schedule. Its constitutional validity was upheld in Sri Sankari Prasad Singh Deo vs. Union of India and State of Bihar[v]; it was held 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. In a major breakthrough, in Golak Nath & ors. Vs. State of Punjab & Anr[vi], a bench of 11 judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh case. 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 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. These amendments were challenged in Kesavananda Bharti case. In this case, the constitutionality of the 29th Amendment was challenged which amended the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms. By a majority of seven to six, Golak Nath’s case was overruled. The majority opinion held that though the amending power of the Parliament extends to all the Articles, Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. There are implied or inherent limitations on the power of amendment under Article 368.Within these limits, every article can be amended.
- Post Kesavananda Bharti Case
In the case of Indira Nehru Gandhi v. Raj Narain, Sub clause (4) and (5) of Article 329A, that tried to keep the election matters outside the purview of the courts, were struck down by the court as they were found to be violative of the basic structure of the constitution. It was assumed that even after a statue is included in the 9th Schedule, its provision would be open to challenge on the ground that they took away or abrogated all or any of the fundamental rights and therefore damaged or destroyed a Basic Structure. The view that the legislation included in the Schedule is subject to the test of basic structure, expressed by Justice Mathew in Indira Gandhi case, found the support of a unanimous court in Waman Rao v. Union of India. The court identified article 32 as part of the basic structure. Then citing Minerva Mills case[vii] wherethecourt by a majority of 4 to 1 struck down clauses (4) and (5) of Article 368 which provided for exclusion of judicial review and unlimited amendment power to the Parliament respectively. Judicial review held to be a basic feature of the constitution. Similar views were reiterated in L. Chandra Kumar V. Union of India & Ors[viii]. In S.R Bommai & Ors. V. Union of India & Ors[ix], it was again 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.
The court held:
Citing all the aforementioned cases and recognizing the judicial mandate on doctrine of basic structure and the power of judicial review, it concluded that after 24th April 1973 ( the date of the decision in Kesavananda Bharati), laws placed in the Ninth Schedule would not enjoy blanket immunity but the court will examine 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. Applying the above mentioned 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.
With regard to a law judicially pronounced to be violative of fundamental rights and which is subsequently inserted in the Ninth Schedule after the 24th April 1973, the Court ruled that 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 Article 14, Article 19 and the principles underlying thereunder..
The court held that the constitutional validity of the ninth schedule laws could be adjudged by applying the direct impact and effect test, i.e., rights test, which requires that it is not the form of a law, but its effect, that would be the determinative factor. It is the court that is to decide if this interference is justified and if does or does not amount to violation of the basic structure. As stated, the role of the court is “determination by court whether invasion was necessary and if so to what extent”. This position then serves to shift the determination of the need for the law from the Parliament to the courts for decision. It also allows the courts the flexibility of both the rights test and the essence of rights test in dealing with the validity of such cases. The determination of the effect of the infringement in either case would be for the courts to determine. This ultimately may be the key point in the judgment .It could be said to be a modified version of Golaknath judgement, because in Golak Nathany abridgement of part III would be invalid, but here the degree of invasion would be examined by the courts in the light of tests subsequently developed to test the infringement of fundamental rights
Criticism of the judgment:
Soli Sorabjee, the former Attorney General of India in a Lecture in the Oslo University in October 2008, pointed out that “The judgment clearly imposes further limitations on the constituent power of Parliament with respect to the principles underlying certain fundamental rights. With the utmost respect the judgment is not conducive to clarity. It has introduced nebulous concepts like the essence of the rights test. Besides apart from the express terms of Articles 21, 14 and 19, what are the principles underlying there under? One does not have to be a prophet to visualize further litigation to explain the Coelho judgment which is sure to add to the prevailing confusion.” Thus, there is no certainty or unanimity about what constitutes the essential or basic features of the Constitution.
The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic structure. Indeed it has gone further and held that a constitutional amendment which entails violation of any fundamental rights which the Court regards as forming part of the basic structure of the Constitution then the same can be struck down depending upon its impact and consequences.
Thanks to the basic structure doctrine the judiciary cannot be deprived of the power of judicial review nor can the rule of law be abrogated. Again thanks to this doctrine, federalism cannot be obliterated and States made vassals of the Centre. The bad experiences of the emergency period have further added the significance to the power of the judicial review, which is the most powerful remedy against the state arbitrariness and protection of fundamental rights. In the Indian context and experience substantial gains resulting from the basic structure doctrine and a bulwark against further erosion of basic fundamental rights.
1. IR Coelho (dead) V. State of Tamil Nadu. http://www.indiankanoon.org/doc/1906027/
[i]AIR 1975 SC 2299
[ii]AIR 1973 SC 1461.
[iii]1972) 2 SCC 133
[iv](1981) 2 SCC 362
[v]AIR 1952 SC 458
[vi]AIR 1967 SC 1643
[vii]AIR 1980 SC 1789
[viii](1997) 3 SCC 261
[ix](1994) 3 SCC 1
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