I.R. Coelho v. State of Tamil Nadu

A Nine-Judge Constitution Bench had to decide whether Parliament can place laws in the Ninth Schedule after 24 April 1973 and shut out every fundamental-rights challenge. The Court held that such laws stay open to challenge on the basic structure. The test looks at the real effect of the law on rights in Part III, not at the form of the amendment.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

I.R. Coelho (Dead) by LRs — petitioner/appellant named first in the reference. The reference concerns the Ninth Schedule insertion of the Gudalur Janmam Estates Act and the West Bengal Land Holding Revenue Act.

State of Tamil Nadu and Ors. — respondents.

Connected matters — the judgment lists writ petitions, civil appeals and special leave petitions heard with the lead case. These are listed only by number: WP (C) Nos. 242 of 1988, 751 of 1990, 408/03, 454, 473 and 259 of 1994, 238 of 1995 and 35 of 1996; CA Nos. 6045 and 6046 of 2002; and a series of SLP (C) Nos. of 2004.

Procedural History

1. Balmadies Plantations decision. This Court struck down the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, so far as it vested forest lands in the Janmam estates. It was not a measure of agrarian reform protected by Article 31A (Balmadies Plantations Ltd. v. State of Tamil Nadu, (1972) 2 SCC 133).
2. Calcutta High Court. It struck down Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 as arbitrary. The State's special leave petition against that judgment was dismissed.
3. 34th Amendment. It inserted the Janmam Act in its entirety in the Ninth Schedule.
4. 66th Amendment. It inserted the West Bengal Land Holding Revenue Act, 1979 in its entirety in the Ninth Schedule.
5. Challenge before a Five-Judge Bench. The contention was that the statutes, including the portions already struck down, could not validly be inserted in the Ninth Schedule.
6. Order of reference, 14 September 1999. The Constitution Bench of five judges, in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (1999) 7 SCC 580, made the reference. It noted that Waman Rao held post-24 April 1973 amendments to the Ninth Schedule open to challenge on the ground that they damage the basic structure.
7. Points noted in the reference. It also noted Minerva Mills and Maharao Sahib Shri Bhim Singhji v. Union of India. It said Waman Rao needed reconsideration by a larger Bench, to reconcile apparent inconsistencies.
8. The question to be settled. Can an Act, or part of an Act, already found to violate Articles 14, 19 or 31 be included in the Ninth Schedule? Or can only a constitutional amendment that damages or destroys the basic structure be struck down?
9. Bench strength. The reference said the matters should preferably go to a Bench of nine judges. That is how they came before this Bench.
10. Decision, 11 January 2007. This Bench answered the reference and directed that the petitions and appeals go to a Three Judge Bench for decision on the principles laid down.

Facts

1. The Constitution (First Amendment) Act, 1951 inserted Article 31B and a Ninth Schedule of thirteen items, all land reform laws. This followed decisions such as Kameshwar v. State of Bihar, AIR 1951 Patna 91, where the Patna High Court held a Bihar land reform law unconstitutional while Allahabad and Nagpur upheld similar laws.
2. The Ninth Schedule grew by later amendments, from 13 items to 284 by the 78th Amendment (1995). Many of the additions were unrelated to land reforms.
3. The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 vested forest lands of the Janmam estates in Tamil Nadu. This Court struck it down in Balmadies Plantations (1972).
4. The 34th Amendment (1974) then inserted the whole Janmam Act in the Ninth Schedule.
5. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court. The special leave petition against that ruling was dismissed. The 66th Amendment (1990) then inserted the Act in the Ninth Schedule.
6. The petitioners argued that Ninth Schedule insertions made after 24 April 1973, the date of Kesavananda Bharati, are open to challenge.
7. A Five-Judge Bench referred the question to a larger Bench on 14 September 1999. The matter was heard by nine judges.

Issues Raised

1. The basic structure doctrine (limits on Parliament's power to amend the Constitution) was propounded on 24 April 1973. On and after that date, can Parliament under Article 31B immunise laws from fundamental rights by inserting them in the Ninth Schedule?
2. If it can, what is the effect on the power of judicial review (the courts' power to test the validity of laws) of the Court?
3. Does the basic structure test include review of Ninth Schedule laws on the touchstone of fundamental rights?
4. Can a law already found by a court to violate Part III be protected by placing it in the Ninth Schedule?
5. Was the validity of Article 31B, or of the Twenty-ninth Amendment, settled by Kesavananda Bharati?

Arguments Contended

For the petitioners

1. After 1973 it is impermissible to immunise Ninth Schedule laws from judicial review by making Part III inapplicable to them. That course is incompatible with the doctrine of basic structure.
2. The power to confer absolute immunity does not fit the implied limit on the amending power in Article 368.
3. Khanna, J. clarified in Indira Gandhi's case that his view in Kesavananda Bharati does not exclude fundamental rights from the basic structure. So laws inserted in the Ninth Schedule must be examined on the fundamental rights test.
4. Any such immunity should be judged by the direct impact and effect test. The form of the amendment is not relevant. Its consequence decides validity.
5. A power to make any law at will that goes past Part III in its entirety is incompatible with the basic structure.
6. Article 32 is part of the fundamental rights chapter. The rights themselves may be put out of the way. This includes the rule of law (the principle that everyone, including the State, is under the law) in Article 14. Then the remedy under Article 32 becomes meaningless. Article 32 would stand abrogated for Ninth Schedule laws. That is per se violative of the basic structure.
7. The constituent power under Article 368 does not include judicial power. Power to create judicial remedies is different from power to exercise judicial power. Parliament removes the Article 32 power and, in effect, itself declares Ninth Schedule laws valid.

For the respondents

1. Ninth Schedule laws can be tested only on the basic structure doctrine as decided by the majority in Kesavananda Bharati, which upheld the Twenty-ninth Amendment unconditionally. So there is no review on fundamental rights.
2. Part III stands excluded under the protective umbrella of Article 31B. The only challenges left are the basic structure, lack of legislative competence and violation of other constitutional provisions.
3. Because those grounds remain, there is no exclusion of judicial review and no violation of the basic structure.
4. Retrospective validation of laws is a well-known constitutional device. A law may be passed to remove the basis of a court decision and so nullify its effect. Article 31B and the Ninth Schedule are such a device that cures the defect.
5. The point is covered by the majority in Kesavananda Bharati. Article 31B and the Ninth Schedule are a permissible device giving a protective umbrella.
6. The existence of a judiciary is part of the basic framework and cannot be abrogated under Article 368. But the power of judicial review over certain matters can be curtailed. Placing a law in the Ninth Schedule removes the fetter of Part III but does not oust the court's jurisdiction.
7. Only a kind of judicial review whose elimination would destroy or damage the basic structure lies beyond constituent power. Each exclusion must be asked about separately.
8. Khanna, J. held that, subject to the basic structure, the power of amendment is plenary and includes taking away or abridging fundamental rights. It cannot be denied by calling them natural rights.
9. Fundamental rights can be amended, as the overruling of Golak Nath shows. So they are not part of the basic structure unless the amendment destroys the nature and character of the Constitution.
10. The test for reviewing Ninth Schedule laws is not mere infringement of Part III. It is whether the laws damage or destroy that part of the fundamental rights that forms the basic structure. Judicial review is not completely barred. Only infraction of Part III rights is immunised.
11. They relied on observations of Ray, C.J. in Indira Gandhi's case that the majority in Kesavananda Bharati held the Twenty-ninth Amendment and Article 31B immune from challenge on basic structure or fundamental rights grounds.
12. They relied on Attorney General for India v. Amratlal Prajivandas (nine judges) to say that the argument that Article 14 violation offends the basic structure was rejected.
13. They said Waman Rao and Minerva Mills did not consider the binding effect of the majority in Kesavananda Bharati.

The petitioners also said the power to add laws to the Ninth Schedule, with no indicia in Article 31B, has been abused and will continue to be. The Court's answer to this point is under Court's Reasoning.

Court's Reasoning

The judgment is a single opinion by Y.K. Sabharwal, C.J.I., for the Bench. It has no numbered paragraphs, so steps follow the judgment's own headings and no paragraph numbers are given.

Opinion of Y.K. Sabharwal, C.J.I. (for the nine-judge Bench)

Re: Order of reference and the broad question

1. Noted: the task is to decide the nature and character of the protection Article 31B gives to laws added to the Ninth Schedule after 24 April 1973. That is the date of Kesavananda Bharati.
2. Noted: the Janmam Act was struck down in Balmadies Plantations. The West Bengal Act was struck down by the Calcutta High Court. Both were later put in the Ninth Schedule by the 34th and 66th Amendments.
3. Noted: the referral order said the Ninth Schedule amendments after 24 April 1973 are open to challenge as damaging the basic structure. It sought reconciliation of the apparent inconsistencies in Waman Rao, Minerva Mills and Bhim Singhji.
4. Noted: the broad question is whether, after 24 April 1973, Parliament can use Article 31B to immunise legislation from fundamental rights, and its effect on judicial review.

Development of the law

5. Noted: the Constitution was framed after deep study of poverty, illiteracy, deprivation and inequality. The Fundamental Rights chapter gives positive and negative rights. Article 32 gives the Supreme Court original jurisdiction to enforce them.
6. Noted: after the Patna, Allahabad and Nagpur High Court decisions on land reform, Parliament added Articles 31A and 31B. The First Amendment (1951) added Article 31B and the Ninth Schedule of thirteen land reform laws, to protect them from a challenge under Article 13.
7. Noted: the Court sets out the text of Article 31A, which saves laws on acquiring estates and similar matters from Articles 14 and 19. It sets out Article 31B, which says no Act in the Ninth Schedule is void for inconsistency with Part III, notwithstanding any court judgment.
8. Noted: Sankari Prasad Singh Deo v. Union of India upheld the First Amendment. It held that Article 13(2) does not cover amendments under Article 368, made in exercise of constituent power.
9. Noted: Sajjan Singh v. State of Rajasthan upheld the Seventeenth Amendment and repeated Sankari Prasad. It said Articles 31A and 31B help State legislatures carry out agrarian reform. Hidayatullah and Mudholkar, JJ. concurred but doubted future amendments. Mudholkar, J. asked if changing a basic feature is an amendment or a rewriting of the Constitution.
10. Noted: I.C. Golak Nath v. State of Punjab (eleven judges, six to five) overruled Sankari Prasad and Sajjan Singh. It held that a constitutional amendment is law under Article 13 and void if it abridges Part III. It denied Parliament power to amend Part III from 27 February 1967.
11. Noted: soon after, the 24th Amendment (1971) added Article 13(4) and the words in exercise of its constituent powers to Article 368(1). The 25th Amendment changed Article 31 on compensation and inserted Article 31C. The 26th Amendment omitted Articles 291 and 362 and inserted Article 363A, ending privy purses. The 29th Amendment (1972) inserted the Kerala Land Reforms Amendment Acts as Entries 65 and 66.
12. Noted: Kesavananda Bharati, decided on 24 April 1973 by thirteen judges, overruled Golak Nath by seven to six. The majority held that Article 368 does not let Parliament alter the basic structure or framework. It upheld the 24th Amendment, the first part of Article 31C and the 29th Amendment. It struck down the second part of Article 31C. The validity of the 26th Amendment was left to a five-judge Bench.
13. Noted: in June 1975 the Allahabad High Court set aside the Prime Minister's election. The 39th Amendment inserted Article 329A(4) and (5) and added Entries 87 to 124 to the Ninth Schedule. Many entries had nothing to do with land reform. Indira Nehru Gandhi v. Raj Narain struck down the Article 329A clauses as violating the basic structure.
14. Noted: an internal emergency was proclaimed from 26 June 1975 to March 1977. Article 19 was suspended by Article 358, and Articles 14 and 21 by Article 359. The 40th Amendment added Entries 125 to 188 to the Ninth Schedule, many unrelated to land reform.
15. Noted: the 42nd Amendment inserted clauses (4) and (5) in Article 368. They barred any court challenge to an amendment and declared no limit on the constituent power.
16. Noted: the 44th Amendment (1978) omitted Article 19(1)(f), so property ceased to be a fundamental right and became a legal right under Article 300A. It amended Article 359 so that Articles 20 and 21 cannot be suspended during an emergency. The Internal Security Act and the Prevention of Publication of Objectionable Matter Act were repealed.
17. Noted: ADM Jabalpur v. Shivakant Shukla read life and liberty restrictively in the emergency. Later decisions impliedly overruled it. Article 21 was read narrowly in A.K. Gopalan v. State of Madras, but received enlarged meaning in Maneka Gandhi v. Union of India (seven judges). Procedure under Article 21 must be reasonable and not violate Article 14. A.K. Gopalan is no longer good law.
18. Noted: Minerva Mills struck down clauses (4) and (5) of Article 368. Waman Rao noticed the developments after Kesavananda Bharati.
19. Noted: in Bhim Singhji, the Court unanimously held Section 27(1) of the Urban Land (Ceiling and Regulation) Act, 1976 violative of Articles 14 and 19(1)(f). That Act had been inserted in the Ninth Schedule after Kesavananda Bharati.
20. Noted: L. Chandra Kumar v. Union of India held that judicial review is an integral and essential feature, and that the High Courts' and Supreme Court's jurisdiction is part of the basic structure.

Constitutional amendment of the Ninth Schedule

21. Noted: the Court tabulates the additions. 1st Amendment (1951) items 1-13. 4th (1955) 14-20. 17th (1964) 21-64. 29th (1971) 65-66. 34th (1974) 67-86. 39th (1975) 87-124. 40th (1976) 125-188. 47th (1984) 189-202. 66th (1990) 203-257. 76th (1994) 257A. 78th (1995) 258-284.
22. Noted: omissions were item 92 (Internal Security Act, repealed 1978) and item 130 (Prevention of Publication of Objectionable Matter, repealed 1977). The 44th Amendment (1978) omitted items 87 (Representation of the People Act), 92 and 130. Many additions are unrelated to land reform.

Article 32

23. Noted: Dr. B.R. Ambedkar called Article 32 the most important article, without which the Constitution would be a nullity, and its very soul and very heart. Patanjali Sastri, C.J. in State of Madras v. V.G. Row called the Court a watchful guard of fundamental rights.
24. Held: the jurisdiction under Article 32 is an important and integral part of the basic structure. No Act of Parliament can abrogate it, except by impermissible erosion of fundamental principles. The Court cites Fertilizer Corporation Kamgar Union, State of Rajasthan v. Union of India, M. Krishna Swami, Daryao and L. Chandra Kumar.
25. Noted: S.R. Bommai reiterated that judicial review is a basic feature and a constituent power that cannot be abrogated by judicial interpretation. No one is the sole judge of the power given by the Constitution. It is the Court's duty to uphold constitutional values and limits as ultimate interpreter.

Principles of construction

26. Noted: the Constitution is a living document. Its provisions must be read with the march of time and the development of law. The basic structure doctrine must be read with the decisions that expanded the law.
27. Noted: constitutionalism is now a legal principle. It requires control over government power so that democratic principles, including protection of fundamental rights, are not destroyed. It needs checks and balances and a diffusion of powers. It underpins the principle of legality. The Legislature can restrict fundamental rights, but laws protecting them cannot be impliedly repealed by later statutes.
28. Noted: under common law constitutionalism, protecting fundamental constitutional rights through the common law is a main feature. The Court cites Dr. Amartya Sen, who says such rights are protected because protection is the best way to promote a just and tolerant society.
29. Noted: Lord Steyn says the judiciary is the best institution to protect fundamental rights, because it is independent and interprets values as well as text. Even in England, where Parliament is sovereign, courts may have to modify parliamentary sovereignty if judicial review is sought to be abolished.
30. Noted: parliamentary sovereignty and constitutional sovereignty differ. The Constitution was framed by a Constituent Assembly, not Parliament. Articles 14, 19 and 21 represent foundational values. They are the principles of constitutionality that support judicial review, the rule of law and separation of powers. The basic structure doctrine applies when judicial review is sought to be abolished by a constituent amendment.
31. Noted: Chandrachud, C.J. in Minerva Mills, relying on Granville Austin, said destroying the guarantees of Part III to achieve the goals of Part IV subverts the Constitution. Parts III and IV together are the conscience of the Constitution. Anything that destroys the balance between them destroys an essential element of the basic structure.
32. Noted: the same judgment said total deprivation of fundamental rights, even in a limited area, can amount to abrogation. It also said that withdrawing Articles 14 and 19 for an unlisted variety of laws would turn fundamental freedoms into a parchment in a glass case.
33. Noted: Bhagwati, J. in Minerva Mills said clause (4) of Article 368 would enlarge Parliament's amending power covertly. It would damage two essential features: the limited amending power and the power of judicial review. Chandrachud, C.J. held Section 4 of the 42nd Amendment void, since it totally excluded challenge to laws under Article 31C on Articles 14 and 19.
34. Noted: Indira Gandhi's case was the first challenge to an amendment about an electoral law, not property or social welfare. Seervai says it broke new ground.
35. Noted: Seervai distinguishes two powers. One is the making of a Constitution by a Constituent Assembly, which is plenary and unlimited. The other is the derivative power to amend it, which is subject to the limits the Constitution imposes. The amending power must be within the Constitution.
36. Noted: whether a feature is part of the basic structure depends on three things (Chandrachud, C.J. in Indira Gandhi). These are its place in the scheme, its object and purpose, and the consequence of its denial for the Constitution's integrity.
37. Noted: the fundamentalness of fundamental rights must be seen in light of their development. Early cases read them as distinct, narrow rights. Over the years they have become a broad check on state power.
38. Noted: State of Bombay v. Bhanji Munji relied on Gopalan to hold Article 31 independent of Article 19(1)(f). Rustom Cavasjee Cooper v. Union of India (the Bank Nationalization case) seriously disapproved Gopalan. It looked at the actual impairment caused by the law. This followed Sakal Papers v. Union of India, which looked at the actual effect on the right.
39. Noted: Cooper was repeated in Sambhu Nath Sarkar v. State of West Bengal, Haradhan Saha v. State of West Bengal and Khudiram Das v. State of West Bengal. The landmark is Maneka Gandhi.
40. Noted: Maneka Gandhi held Article 21 does not exclude Article 19. A law depriving personal liberty must also meet Article 14. The Court quotes State of West Bengal v. Anwar Ali Sarkar and Kathi Raning Rawat v. State of Saurashtra on Article 14.
41. Noted: Maneka Gandhi also held equality and arbitrariness are sworn enemies. Article 14 strikes at arbitrariness. Procedure under Article 21 must be right, just and fair. Krishna Iyer, J. said no article in Part III is an island, and Article 21 does not exclude Article 19 if both are breached.
42. Held: fundamental rights no longer act as isolated pools. They form a comprehensive guarantee against arbitrary state power. Post-Maneka Gandhi, the protection of fundamental rights has been considerably widened.
43. Noted: M. Nagaraj v. Union of India said fundamental rights are not a gift of the State. Part III confirms them and does not confer them. A right becomes fundamental because of its foundational value. The Constitution must be read generously and purposively. The life in Article 21 includes living with human dignity. The Court also cites Sakal Papers (AIR 1967 SC 305) and A.K. Gopalan in that passage.
44. Held: the abrogation or abridgment of Part III rights must be examined on broad interpretation. Narrow reading is a thing of the past. The Constitution must be read so citizens enjoy the rights in the fullest measure.

Separation of powers

45. Noted: the majority in Kesavananda Bharati found separation of powers to be part of the basic structure. Indira Gandhi and many later cases repeat it.
46. Noted: the Court cites Madison (Federalist 47, 48 and 51), Montesquieu's Spirit of Laws and Hamilton (Federalist 78) on why separate powers preserve liberty. Montesquieu says there is no liberty if the powers are united or if judicial power is not separate from legislative and executive power. Hamilton says limits on legislative authority can be preserved only through courts that declare contrary acts void.
47. Noted: even before the basic structure doctrine, this Court recognised the importance of separation of powers in Special Reference No. 1 of 1964.

Contentions

48. Noted: the Court records the petitioners' and respondents' contentions (see Arguments Contended).
49. Noted: the key question is whether the basic structure test includes review of Ninth Schedule laws on the touchstone of fundamental rights. So the content of the basic structure test must be examined.
50. Held: the Court finds it difficult to accept a broad proposition. The proposition is that laws found by courts to violate Part III cannot be protected by placing them in the Ninth Schedule through Article 31B read with Article 368.
51. Noted: the majority in Kesavananda Bharati upheld the Kerala Act set aside in Kunjukutty Sahib v. State of Kerala, using the Ninth Schedule device. After a law is placed in the Ninth Schedule, its validity must be tested on the basic structure doctrine.
52. Noted: State of Maharashtra v. Man Singh Suraj Singh Padvi, a seven-judge decision after Kesavananda Bharati, upheld the 40th Amendment. It held that Article 31B and the Ninth Schedule cured any defect in the regulations about fundamental rights.
53. Held: the petitioners say the power to add laws has been abused and the Schedule grew from 13 to 284 enactments. The validity of Article 31B is not in question. The mere possibility of abuse is not a relevant test of validity. The Court cannot assume abuse.

Validity of Article 31B

54. Noted: the Court quotes Chandrachud, C.J. in Waman Rao on the history. Sajjan Singh left the First Amendment untouched. Golak Nath used prospective overruling, so earlier amendments stayed. The Kesavananda Bharati petition was changed before hearing, so it challenged the 24th, 25th and 29th Amendments, not the First. Khanna, J. said Article 31A's validity could not be questioned because of stare decisis.
55. Held: the Court cannot accept that Kesavananda Bharati held Article 31B read with the Ninth Schedule constitutionally valid. Its validity was not in issue. The amendments there were examined assuming Article 31B valid.
56. Held: the Court will itself assume Article 31B is valid. The First Amendment inserting it is not challenged.

Point in issue

57. Noted: the real crux is the extent and nature of immunity that Article 31B can validly give. To decide it, the judgment in Kesavananda Bharati, particularly on the 29th Amendment, must be examined.

Kesavananda Bharati's case

58. Held: the respondents' contention that all judges except Sikri, C.J. upheld the 29th Amendment, and applied Jeejeebhoy, is not the correct ratio of Kesavananda Bharati.
59. Noted: six judges (Ray, Phalekar, Mathew, Beg, Dwivedi and Chandrachud) upheld the 29th Amendment but did not accept the basic structure doctrine. Six others (Sikri, C.J., Shelat, Grover, Hegde, Mukherjee and Reddy) upheld it subject to the basic structure test. Khanna, J. accepted the doctrine but upheld the Amendment with the first six.
60. Held: so it is not correct to assume that the majority on the basic structure unconditionally upheld the 29th Amendment. Six judges held it valid only if the added laws did not violate the basic structure.
61. Noted: Khanna, J. said fundamental rights can be amended so long as the basic structure is not destroyed. He held the 29th Amendment valid and found no infirmity. His final conclusion (xv) says it does not suffer from any infirmity. He mentioned no test for Ninth Schedule laws.
62. Noted: the respondents relied on Ray, C.J. in Indira Gandhi. He said the 29th Amendment was upheld unanimously. He said the majority view was that Article 31B is a device to place statutes beyond attack under Part III and the basic structure.
63. Noted: Bhagwati, J. in Minerva Mills said the 29th Amendment and earlier amendments were held valid on the earlier unlimited power and should not be reopened. But all amendments after Kesavananda Bharati must be tested by the basic structure, since Parliament then would have no excuse for not knowing the limit.
64. Held: the Court agrees with Bhagwati, J. and respectfully differs from Ray, C.J. that the 29th Amendment was unanimously upheld. So its validity in Kesavananda Bharati is not conclusive of the matters before this Bench.
65. Noted: Khanna, J. clarified in Indira Gandhi that he never held fundamental rights outside the basic structure. His holding was that no article is immune from amendment because it is in Part III. His long discussion on the right to property would have been needless if no fundamental right formed part of the basic structure.
66. Held: after that clarification, Khanna, J.'s view cannot exclude fundamental rights from the basic structure. His Twenty-ninth Amendment ruling, even if unconditional, is of no consequence on the point in issue given the peculiar majority.
67. Noted: Seervai supports this. He notes that Minerva Mills solved the problem by holding Acts inserted in the Ninth Schedule after 25 April 1973 not unconditionally valid, but subject to fundamental rights. The Acts do not become part of the Constitution. They owe validity to the amending power. If Parliament cannot destroy secularism by amendment, it cannot protect laws that destroy it. To hold otherwise would abandon the basic structure for every part, by enacting laws and then protecting them in the Ninth Schedule. Khanna, J. laid down the scope of the amending power correctly but misapplied it to Article 31B.
68. Held: the Kesavananda Bharati decision on the Twenty-ninth Amendment is restricted to that Amendment. No principle flows from it.
69. Held: the Court cannot accept that Chandrachud, J. in Waman Rao and Bhagwati, J. in Minerva Mills ignored the binding effect of the majority in Kesavananda Bharati. They considered later law. The conclusion, also reached in Indira Gandhi, is that after 24 April 1973 Ninth Schedule laws do not have full protection. The doctrine was involved in Kesavananda Bharati, but its effect was worked out in Indira Gandhi, Waman Rao and Minerva Mills.
70. Held: on equality, there is no contradiction among Chandrachud, J. in Indira Gandhi, Krishna Iyer, J. in Bhim Singhji and Bhagwati, J. in Minerva Mills. Each violation must be examined to see whether it amounts to destruction of the basic structure.

Extent of immunity given by Article 31B

71. Noted: Sikri, C.J. held that amendments violating the basic structure are struck down, and this applies to amendments adding laws to the Ninth Schedule. Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. gave substantially similar opinions. They read an implied limit into the amending power.
72. Held: Khanna, J. also read the implied limit of basic structure but upheld the 29th Amendment without sending it to a smaller Bench. That produced the argument that Part III is outside the basic structure. Khanna, J. did not say so. He did not want to elevate the right to property in Article 19(1)(f) to basic structure. That explains the ratio.
73. Held: any doubt was resolved by his clarification in Indira Gandhi that he never held fundamental rights outside the basic structure.
74. Held: rights in Part III can be taken away or destroyed by amending the relevant article, subject to the limit of basic structure. That may reduce the efficacy of Article 31B. That is inevitable, given the law after Kesavananda Bharati.
75. Held: two aspects must be borne in mind. First, each insertion in the Ninth Schedule completely removes Part III for the added laws. Second, insertion is not controlled by defined criteria. It nullifies Part III with no constitutional control. It amounts to an unlimited power to nullify Part III for those laws.
76. Noted: the supremacy of the Constitution mandates all bodies to comply with it. It also mandates testing of legislative acts by an independent organ, the judiciary.
77. Noted: in Kesavananda Bharati, the second part of Article 31C was struck down because vesting the power to exclude judicial review in a legislature strikes at the basic structure. So Part III has a key role in applying the doctrine.
78. Noted: fundamental rights are negative obligations on the State that do not permit encroachment on individual liberty. Their object is to foster a social revolution and an egalitarian society. Fundamental Rights and Directive Principles must be balanced. The balance may tilt to the public good but cannot be overturned by overriding individual liberty completely. That balance is an essential feature.
79. Noted: Part III checks state power, especially legislative power. Article 13 bars laws contrary to it. The framers built a wall around certain parts of fundamental rights that must remain forever. That wall is the basic structure doctrine. Under Article 32 the Supreme Court ensures compliance with Part III. Judging constitutionality of all laws is the judiciary's responsibility.
80. Held: when Article 31B is used, laws made completely immune from Part III escape the check of Part III, including Article 32. The same Constitution that provides a check on legislative power cannot decide whether the check is needed. That would negate the Constitution.
81. Noted: Waman Rao said an amendment cannot transform the original into its opposite. A comparison of the amendment with the original can give useful results even in constitutional law.
82. Held: suppose Article 31B gave only restricted immunity, protecting a limited number of laws. It would then have been an exception to Part III, which was the basis for its initial upholding. But the unchecked and rampant use, from 13 to 284, shows it is no longer a mere exception. With no guidelines, there is no constitutional control. That destroys constitutional supremacy, creates parliamentary dominance and removes full judicial review.
83. Held: the respondents argue that Article 31A excludes review from Articles 14 and 19 and has been held not to violate the basic structure. The Court is not holding such laws per se invalid. It is examining the extent of the power the Legislature will have. Article 31A gives a standard for exclusion. Article 31C uses as yardstick Article 39(b) and (c), on equitable distribution of resources. Article 31B has no such standard.
84. Noted: fundamental rights have always had a special place. Economic growth and social equity are two pillars linked to individual rights. Article 21 read with Articles 14 and 15 represents fundamentals such as secularism. As held in Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4), (4A) and (4B). So it is wrong to say equity and justice appear only in the Directive Principles.
85. Held: Parliament can amend Part III to abridge or take away fundamental rights, but only subject to the basic structure. Whether an amendment violates it must be examined case by case.
86. Noted: the Court gives two examples. Freedom of the press is read into Article 19(1)(a). If that article were amended to abrogate it, the respondents' view would put the law outside judicial scrutiny once placed in the Ninth Schedule. Even abridgment may destroy real press freedom. Secularism is drawn from various articles in Part III. If it is not found in Part III, it is found nowhere else. So a synoptic view of Part III articles is needed. It is unnecessary to multiply illustrations.
87. Held: after the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. Khanna, J.'s remark that no article is immune from amendment was made when considering property. He also said amendment of the Constitution cannot destroy the basic structure or framework.
88. Held: Khanna, J.'s opinion in Indira Gandhi shows that at least some fundamental rights form part of the basic structure. His detailed discussion of property shows the same. Four matters cannot be shut out by the fictional immunity of Article 31B. These are the place of a right in the scheme and the impact of the offending law. They also include the effect of excluding the right from review and the abrogation of the principle behind the right.
89. Noted: in Indira Gandhi, Chandrachud, J. said equality in Article 14 is part of the basic structure and a basic postulate. In Minerva Mills, Articles 14, 19 and 21 were held part of the basic structure. Three articles, and only three, stand between the heaven of freedom and the abyss of unrestrained power.
90. Held: after the doctrine, exclusion of these rights at Parliament's will, with no standard, cannot be shielded from judicial scrutiny by Article 31B. The answer must be no: such exclusion cannot escape judicial scrutiny.
91. Held: some fundamental rights form the basic structure. So the laws cannot be immune from full scrutiny. Two grounds for immunity fail. One is that fundamental rights are not part of it. The other is that Part III is unavailable because of Article 31B. The essence of the principle behind Article 14 is part of the basic structure. The essence or principle of a right and the nature of its violation matter more than equality in the abstract.
92. Held: the majority in Kesavananda Bharati holds that the principles behind fundamental rights are part of the basic structure. Fundamental rights are the heart and soul of the Constitution. They are deeply interconnected. The Constitution is a living document. That is the ratio of Indira Gandhi.
93. Noted: modern democracy has been a history of securing basic rights. The US Bill of Rights was added on ratification. The French Revolution declared the Rights of Man. New states after colonialism and the Cold War put rights in their constitutions. The United Kingdom adopted the Human Rights Act in 1998, giving effect to the European Convention on Human Rights. Canada enacted the Constitution Act of 1982. Germany embraced a basic structure.
94. Held: certain fundamental rights and their principles are foundational to Indian democracy and to democracies elsewhere. India's constitutional history led to including the essence of each fundamental right in the basic structure. India will not outgrow the need to protect the principles behind them.
95. Held: since the basic structure includes some fundamental rights, any law given Ninth Schedule protection must be tested against these principles. If the law infringes the essence of any fundamental right or another aspect of the basic structure, it will be struck down. The extent of abrogation and the limit of abridgment must be examined case by case.
96. Noted: the Court recalls Special Reference No. 1 of 1964. Whether or not there is rigid separation of powers, the Constitution gives the judiciary the task of construing it and safeguarding fundamental rights. Whether the Legislature exceeded its authority or contravened fundamental rights cannot be decided by the Legislature itself.
97. Held: laws may be added to the Ninth Schedule, but once Article 32 is triggered they must answer to the complete test of fundamental rights. Every insertion completely excludes Part III at will. So every addition triggers Article 32 as part of the basic structure and is subject to review on fundamental rights as they stand in Part III.

Extent of judicial review in the context of amendments to the Ninth Schedule

98. Noted: the power to amend cannot be equated with the power to frame the Constitution. The framing power is primary and plenary. The amending power is derived and has constraints from the Constitution. It can be used only within what was conferred on Parliament.
99. Held: the question is not about the power to amend Part III after 24 April 1973. That power exists but is subject to the basic structure. Validating laws by blanket immunity eliminates Part III entirely, so the rights test as part of the basic structure doctrine must apply.
100. Noted: the Kesavananda Bharati majority held that Article 368 does not let Parliament alter the basic structure. That principle was an axiom, worked out in Indira Gandhi, Minerva Mills, Waman Rao and Bhim Singhji.
101. Noted: in Indira Gandhi the amendment concerned free and fair election, not property. The amending power is a species of law-making power, different from the plenary power to frame the Constitution (Seervai).
102. Noted: the words constituent power in amended Article 368 were considered in Indira Gandhi. Article 329A(4) was struck down. It crossed the implied limit and made a controlled Constitution uncontrolled. It removed all limits on the amending power. It tried to eliminate the golden triangle of Article 21 with Articles 14 and 19.
103. Held: Kesavananda Bharati read with Khanna, J.'s clarification takes the law one step further. Fundamental rights are interconnected. Some form part of the basic structure, as seen in Article 15, Article 21 with Article 14 and Article 14 with Article 16(4), (4A) and (4B). Read together, the basic structure reflected in these articles gives a test for the amendments adding laws to the Ninth Schedule.
104. Held: because the amending power is limited, amendments that destroy the Constitution's identity are void. When all of Part III is taken away by adding a law to the Ninth Schedule, the extent of judicial scrutiny arises. Secularism and equality are examples. It is impermissible to destroy or eliminate as a whole Articles 14 and 15. Similarly, Parliament can add to the three legislative lists but cannot abrogate them all, since that would abrogate the federal structure.
105. Held: Parliament cannot, by amending Article 368, give itself unlimited power to amend and destroy the Constitution's fundamentals. Kesavananda Bharati means secularism, separation of powers, equality and similar features are beyond constituent power. Without equality, the rule of law and secularism would fail. That is why Khanna, J. held that some rights, such as Article 15, form the basic structure.
106. Held: if constituent power under Article 368 cannot be unlimited, Article 31B cannot confer unlimited power. Its power to amend the Ninth Schedule flows from Article 368 and must fit the limits on amendment. The Court states the point in these words: "Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity."
107. Held: overriding the entire Part III by Article 31B would let Directive Principles override fundamental rights. It would also defeat secularism, separation of powers, equality and judicial review. It would do this without any standard under Article 31B.
108. Noted: it is wrong to think social content lies only in the Directive Principles. Articles 15 and 16 are facets of Article 14. Article 16(1) is formal equality, the basis of the rule of law. Article 16(4) refers to egalitarian equality. Article 14 must be balanced with Article 15(4). Article 15(1) bars discrimination only on grounds of religion, race, caste, sex and so on, yet permits some classification. So the Fundamental Rights have social content. These are relevant considerations for testing Ninth Schedule laws.
109. Held: equality, rule of law, judicial review and separation of powers form parts of the basic structure and are intimately connected. There is no rule of law without equality before the law. These would be meaningless if violations were not subject to judicial review. They would be redundant if legislative, executive and judicial power were vested in one organ. So the duty to decide whether limits are crossed rests on the judiciary.
110. Noted: to secure enforcement of Fundamental Rights, the Constitution vests power in the Supreme Court and High Courts. Judicial review is an essential feature that gives practical content to Part III and the other objectives of the Constitution.
111. Held: the fact that equality can be excluded for a limited purpose, to protect certain laws, does not stop it from being part of the basic structure. The same goes for rule of law and separation of powers. Limited exceptions for limited purposes do not remove a feature from the basic structure.
112. Noted: the respondents relied on the nine-judge decision in Attorney General for India v. Amratlal Prajivandas (the twentieth paragraph of that judgment). It said no serious effort was made to substantiate a basic structure challenge to the 39th, 40th and 42nd Amendments, and it assumed them valid. It did not express an opinion on Articles 14, 19 or 21 as basic structure. It did not consider the validity of placing COFEPOSA and SAFEMA in the Ninth Schedule.
113. Held: it is evident that Amratlal did not examine violation of Articles 14, 19 or 21 and expressed no opinion on those issues. The Court did not accept the respondents' reading.
114. Held: every amendment, whether of any article or by inserting an Act in the Ninth Schedule, must be tested on the basic structure doctrine. That includes Article 21 read with Article 14, Article 15 and so on. Laws in the Ninth Schedule do not become part of the Constitution. They get validity from Parliament's exercise in including them. That exercise must be tested every time. The principle of compatibility applies. The Court looks at the effect of the law on one side and the exclusion of Part III in its entirety at Parliament's will on the other.
115. Held: Waman Rao rightly held that Acts inserted in the Ninth Schedule after 24 April 1973 do not receive full protection.

Exclusion of judicial review compatible with the doctrine of basic structure

116. Noted: judicial review rests on the principle of separation of powers, the rule of law, the principle of constitutionality and the reach of judicial review (Lord Steyn, Democracy through Law). The judiciary's role is to protect fundamental rights. A modern democracy rests on majority rule and the need to protect fundamental rights. The judiciary balances them, so that government does not override rights on numbers.

Application of the doctrine of basic structure

117. Noted: Kesavananda Bharati dealt with unamended Article 368, which lacked the words constituent power. Adding them does not make Parliament the original Constituent Assembly. It remains a Parliament under a controlled Constitution. The basic structure limit still applies. On this premise clauses (4) and (5) of Article 368 were struck down in Minerva Mills.
118. Noted: Indira Gandhi, Minerva Mills and Waman Rao show that every improper enlargement of Parliament's power was held incompatible with the basic structure. Clause (4) of Article 329A, clauses (4) and (5) of Article 368 and Section 4 of the 42nd Amendment altered the identity of the Constitution. They removed judicial review, made Directive Principles a touchstone to obliterate fundamental rights and put in the Ninth Schedule laws with no link to agrarian reform.
119. Noted: Waman Rao asked whether Article 31B can immunise Ninth Schedule laws by making all of Part III inapplicable, and whether that fits the basic structure. The answer was yes, it is incompatible. It would make a controlled Constitution uncontrolled, render the doctrine redundant and remove the golden triangle. The identity of the Constitution would change.
120. Held: the object behind Article 31B is to remove difficulties, not to obliterate Part III or judicial review. Article 21 is the heart of the Constitution and confers right to life and right to choose. When the golden triangle is sought to be eliminated, both the essence of right test and the rights test apply.
121. Held: the basic structure contemplates core values, including Article 15 and Article 21 with Articles 14 and 19. Their abrogation would change the Constitution completely. Excluding fundamental rights would nullify the doctrine, whose object is to protect basic features, judged by a synoptic view of Part III.
122. Held: the rights test and the essence of the right test both form part of the basic structure doctrine. When an entire chapter is made inapplicable, the essence of the right test used in M. Nagaraj has no use. The rights test is more appropriate. Minerva Mills and Indira Gandhi did not concern elimination of all of Part III. Here the entire equality code, freedom code and the right to move court are nullified by immunity at will, which is incompatible with the implied limit. Indira Gandhi requires a synoptic view of the Constitution.
123. Held: Articles 31A and 31C were held valid despite excluding Article 14. They have indicia that Article 31B lacks.
124. Held: Part III can be amended, subject to the basic structure. Parliament may amend the Ninth Schedule and give a law Article 31B protection. But citizens may still assail it on the enlarged concept of judicial review. Parliament cannot grant fictional immunities and bar examination of a Ninth Schedule law after the doctrine.
125. Held: if the limits on constitutional amendments are decided by Parliament itself, which gives the law complete immunity, checks and balances are disturbed. The authority to enact law and to decide the legality of its limits cannot rest in one organ. Only the judiciary can examine limits on Part III rights.
126. Held: "The power to grant absolute immunity at will is not compatible with basic structure doctrine". After 24 April 1973, laws in the Ninth Schedule do not have absolute immunity. They can be challenged on the basic structure as reflected in Article 21 read with Articles 14 and 19, Article 15 and their principles.
127. Noted: Parliament itself recognises that some articles stand alone. The 44th Amendment (1978) made Articles 20 and 21 non-suspendable during emergencies under Article 359.
128. Held: no argument is needed to conclude that Articles 20 and 21 are part of the basic structure. Immunity that suspends them by placing a law in the Ninth Schedule cannot be allowed. It would be an implied limit on the amending power in Article 368. The same applies to Article 32.
129. Held: "The doctrine of basic structure as a principle has now become an axiom." It is based on the idea that invasion of certain freedoms needs justification. Some freedoms may justifiably be interfered with, as in terrorism cases, but the same test cannot apply to all offences. Applying the standard is the Court's task, not that of a prescribed authority under Article 368.
130. Held: a power in Parliament to amend at will, with the needed votes, is incompatible with the basic structure if it excludes Part III including judicial review under Article 32. Such an exercise, if challenged, must be tested on the basic structure in Article 21 read with Articles 14 and 19, Article 15 and their principles.
131. Held: the amending power is no longer plenary in the absolute sense. Before Kesavananda Bharati the axiom did not exist. Fictional validation based on immunity under Article 368 is not compatible with the doctrine. So the laws in the Ninth Schedule must be examined individually, to see whether the amendments putting them there damage or destroy the basic structure.
132. Held: the Court must scrutinise Ninth Schedule laws. It examines the terms of the statute and the nature of the rights involved. It asks whether, in effect and substance, the statute violates essential features. First it must find whether the law violates Part III. If yes, it must ask whether the violation destroys the basic structure. If yes again, the law is invalid.
133. Held: harking back to Kesavananda Bharati upholding Article 31B every time is the surest means of drastic erosion of Part III. Article 31B gives validation on fictional immunity. The impact test guides validity. The doctrine requires the State to justify the degree of invasion. Parliament is presumed to legislate compatibly with fundamental rights, and that is where judicial review comes in. The greater the invasion, the greater the need for justification and for court determination. The degree of invasion is for the Court to decide.
134. Held: compatibility is one species of judicial review, premised on rights regarded as fundamental. Immunity at will, on a fictional basis and without full judicial review, will nullify the whole basic structure doctrine. The golden triangle is a basic feature, since it stands for equality and the rule of law.
135. Held: the validity of Ninth Schedule laws on the basic structure can be judged by the direct impact and effect test, that is, the rights test. The form of an amendment is not relevant. Its consequence decides.

Authorities

• His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. ((1973) 4 SCC 225; the judgment's text also spells it Keshavananda Bharati): thirteen judges; basic structure doctrine. The Twenty-ninth Amendment and Article 31C were considered. The ratio on the 29th Amendment was held not conclusive here.
• Waman Rao v. Union of India ((1981) 2 SCC 362): held post-24 April 1973 Ninth Schedule Acts do not get full protection; followed.
• Minerva Mills Ltd. v. Union of India ((1980) 3 SCC 625): struck down clauses (4) and (5) of Article 368 and Section 4 of the 42nd Amendment; Bhagwati, J. followed on the 29th Amendment.
• Maharao Sahib Shri Bhim Singhji v. Union of India ((1981) 1 SCC 166): Section 27(1) of the Urban Land Act held violative of Articles 14 and 19(1)(f); noted.
• Indira Nehru Gandhi v. Raj Narain (1975 Supp (1) SCC 1): Article 329A(4) and (5) struck down; Khanna, J.'s clarification and Chandrachud, J.'s views on Article 14 relied on.
• I.C. Golak Nath & Ors. v. State of Punjab & Anr. ((1967) 2 SCR 762): eleven judges, six to five; amendment is law under Article 13; overruled in Kesavananda Bharati.
• Sri Sankari Prasad Singh Deo v. Union of India ((1952) SCR 89): upheld the First Amendment; overruled in Golak Nath, which was in turn overruled in Kesavananda Bharati.
• Sajjan Singh v. State of Rajasthan ((1965) 1 SCR 933): upheld the Seventeenth Amendment; concurring doubts of Hidayatullah and Mudholkar, JJ. noted.
• Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu ((1972) 2 SCC 133): struck down the Janmam Act as to forest lands; background.
• I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu ((1999) 7 SCC 580): the referral order of 14 September 1999; answered.
• Kameshwar v. State of Bihar (AIR 1951 Patna 91): Patna High Court held a Bihar land reform law unconstitutional; background to the First Amendment.
• Additional District Magistrate, Jabalpur v. Shivakant Shukla ((1976) 2 SCC 521): restrictive reading of life and liberty; impliedly overruled by later decisions.
• A.K. Gopalan v. The State of Madras (1950 SCR 88): narrow reading of Article 21; no longer good law.
• Maneka Gandhi v. Union of India ((1978) 1 SCC 248): seven judges; Articles 14, 19 and 21 are not mutually exclusive; procedure must be reasonable; relied on.
• L. Chandra Kumar v. Union of India ((1997) 3 SCC 261): judicial review is part of the basic structure; followed.
• State of Madras v. V.G. Row (1952 SCR 597): the Court as sentinel on the qui vive for fundamental rights; quoted.
• Fertilizer Corporation Kamgar Union (Regd.), Sindri v. Union of India ((1981) 1 SCC 568), State of Rajasthan v. Union of India ((1977) 3 SCC 592), M. Krishna Swami v. Union of India ((1992) 4 SCC 605) and Daryao & Ors. v. The State of U.P. & Ors. ((1962) 1 SCR 574): cited for Article 32 being part of the basic structure.
• S.R. Bommai v. Union of India ((1994) 3 SCC 1): judicial review is a basic feature; relied on.
• The State of Bombay v. Bhanji Munji ((1955) 1 SCR 777): relied on Gopalan to hold Article 31 independent of Article 19(1)(f); noted.
• Rustom Cavasjee Cooper v. Union of India ((1970) 3 SCR 530): the Bank Nationalization case; disapproved Gopalan; effect of the law is what counts.
• Sakal Papers (P) Ltd. v. The Union of India ((1962) 3 SCR 842; also cited as AIR 1967 SC 305 in the Nagaraj passage): actual effect on the right must be considered.
• Sambhu Nath Sarkar v. The State of West Bengal ((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 ((1975) 2 SCR 832): reiterated the Cooper view.
• The State of West Bengal v. Anwar Ali Sarkar ([1952] SCR 284) and Kathi Raning Rawat v. The State of Saurashtra ([1952] SCR 435): earlier decisions applying Article 14, as recorded in Maneka Gandhi.
• M. Nagaraj v. Union of India ((2006) 8 SCC 212): fundamental rights are not a state gift; generous construction; the essence of right test; egalitarian equality.
• Special Reference No. 1 of 1964 ((1965) 1 SCR 413): the judiciary decides whether the Legislature exceeded its authority or breached fundamental rights.
• Kunjukutty Sahib v. The State of Kerala ((1972) 2 SCC 364): Kerala Act set aside, then protected by the Ninth Schedule device in Kesavananda Bharati; noted.
• State of Maharashtra & Ors. v. Man Singh Suraj Singh Padvi & Ors. ((1978) 1 SCC 615): seven judges; the Ninth Schedule cured defects in the regulations; noted.
• Attorney General for India & Ors. v. Amratlal Prajivandas & Ors. ((1994) 5 SCC 54): nine judges; relied on by respondents; the Court held it did not decide the Article 14 basic structure point.
• Jeejeebhoy's case: named as applied to the 29th Amendment; the respondents' reading of Kesavananda Bharati rejected.
• Bennet Coleman, All India Bank Employees Union and In re: Kerala Education Bill: named in Krishna Iyer, J.'s passage in Maneka Gandhi. The passage covers the run of decisions leading to Cooper.
• Other authorities: Seervai, Constitutional Law of India (4th Edn.); Granville Austin; Dr. Amartya Sen; Lord Steyn (Democracy through Law); Madison, Hamilton (Federalist Nos. 47, 48, 51, 78) and Montesquieu (Spirit of Laws).

Provisions mentioned

• Article 31A: saves laws on acquiring estates and similar matters from being void under Articles 14 and 19; it has a standard for what is saved.
• Article 31B: says Acts and Regulations in the Ninth Schedule are not void for inconsistency with Part III, notwithstanding any court judgment. It was inserted by the First Amendment, 1951.
• Article 31C: saves laws giving effect to Directive Principles from Articles 14 and 19. Its second part was struck down in Kesavananda Bharati; the Court says it uses Article 39(b) and (c) as its yardstick.
• Ninth Schedule: a list of laws that grew from 13 to 284 by the 78th Amendment.
• Article 13: bars laws that take away or abridge Part III rights; Article 13(4) was added by the 24th Amendment.
• Article 14: equality before the law; Article 15 bars discrimination on grounds only of religion, race, caste, sex etc., with Article 15(4) permitting special provision.
• Article 16: equality of opportunity; clauses (1), (4), (4A) and (4B) discussed.
• Article 19: freedoms; Article 19(1)(a) covers freedom of speech and the press; Article 19(1)(f) (property) was omitted in 1978.
• Article 20 and Article 21: Articles 20 and 21 cannot be suspended in an emergency after the 44th Amendment.
• Article 32: the right to move the Supreme Court for enforcement of fundamental rights; part of the basic structure.
• Article 31: compensation for property; amended by the 25th Amendment.
• Article 39(b) and (c): Directive Principles on equitable distribution of resources; the Court says Article 31C uses them as its yardstick.
• Article 226: the High Courts' writ power, mentioned in Sajjan Singh.
• Article 291, Article 362, Article 363 and Article 363A: privy purses and rulers' rights; omitted and inserted by the 26th Amendment.
• Article 300A: the legal right to property, inserted by the 44th Amendment.
• Article 329 and Article 329A(4) and (5): Article 329A was inserted after Article 329 by the 39th Amendment on the Prime Minister's election. Clauses (4) and (5) were struck down in Indira Gandhi.
• Article 22 and Section 55 of the 42nd Amendment Act: Article 22 is mentioned in Krishna Iyer, J.'s passage on Gopalan treating it as a self-contained code. Section 55 inserted clauses (4) and (5) in Article 368.
• Article 358 and Article 359: suspension of Article 19 and enforcement of other rights during emergencies.
• Article 368: the amending power; clauses (4) and (5) inserted by the 42nd Amendment were struck down in Minerva Mills.
• Section 2(c), West Bengal Land Holding Revenue Act, 1979; Gudalur Janmam Estates Act, 1969; Urban Land (Ceiling and Regulation) Act, 1976: the laws at issue or discussed.
• Constitution Amendments: 1st (1951), 4th (1955), 17th (1964), 24th, 25th, 26th, 29th (1971-72), 34th (1974), 39th (1975), 40th, 42nd (1976), 44th (1978), 47th (1984), 66th (1990), 76th (1994), 78th (1995).

Judgement

The Court answered the reference of 14 September 1999 as follows.

1. A law that abrogates or abridges Part III rights may or may not violate the basic structure. If it does, whether by amending an article of Part III or by insertion in the Ninth Schedule, the Court must invalidate it in judicial review. Validity is tested on the principles laid down in this judgment.
2. The Kesavananda Bharati majority read with Indira Gandhi requires each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on Part III rights must be considered. The impact test decides the challenge.
3. All amendments made on or after 24 April 1973 adding laws to the Ninth Schedule must be tested on the basic or essential features. These are the features reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. Even if an Act is placed in the Ninth Schedule, its provisions are open to attack. This applies if the fundamental right or rights taken away pertain to the basic structure.
4. Justification for protection, not blanket protection, of Ninth Schedule laws is a matter of constitutional adjudication. The Court examines the nature and extent of infraction of a fundamental right, on the basic structure doctrine as reflected in Article 21 read with Articles 14 and 19. It applies the rights test and the essence of the right test, taking the synoptic view of Part III as in Indira Gandhi. If the infraction affects the basic structure, the law will not get the protection of the Ninth Schedule.
5. If the validity of any Ninth Schedule law has already been upheld by this Court, it cannot be challenged again on the principles in this judgment. A different rule applies to a law already held violative of Part III rights. Suppose it is later incorporated in the Ninth Schedule after 24 April 1973. That violation is open to challenge on the ground that it destroys or damages the basic structure. The basic structure is indicated in Article 21 read with Article 14, Article 19 and their principles.
6. Action taken and transactions finalised as a result of the impugned Acts are not open to challenge.
7. The petitions and appeals are to be placed for hearing before a Three Judge Bench for decision on the principles laid down.
8. The judgment records no order on costs.

Legal Principle / Ratio

After 24 April 1973, Article 31B cannot give a law absolute immunity from Part III. A Ninth Schedule law stays open to challenge if it destroys or damages the basic structure. The Court applies the direct impact and effect test to the law's real consequences. Key holding: "The power to grant absolute immunity at will is not compatible with basic structure doctrine".

Critical Analysis

Analysis based on the judgment text.

• Article 31B is assumed valid, not tested. The Court says its validity was not in issue in Kesavananda Bharati and we will assume it valid. The result narrows the effect of Article 31B without ruling on the Article itself.
• The test needs case-by-case application. The Court says the extent of abrogation and the limit of abridgment must be examined in each case. It does not list which fundamental rights beyond Articles 14, 15, 19, 20, 21 and 32 belong to the basic structure.
• Two tests, one chosen for this setting. The judgment says the rights test and the essence of the right test both form part of the doctrine. It says that when a whole chapter is made inapplicable, the rights test is more appropriate. It does not say how the two apply when only some rights are excluded.
• Earlier decisions are left in place. Laws already upheld are not reopened, and finalised transactions stay protected. The judgment gives no yardstick for what counts as finalized.
• The Bench does not decide the individual laws. It sends the petitions and appeals to a three-judge Bench, so the fate of the Janmam Act and the West Bengal Act is not decided here.

Significance

• The judgment settles that the Ninth Schedule does not give absolute immunity after 24 April 1973. Judicial review of fundamental rights survives for such laws through the basic structure doctrine.
• It reads Kesavananda Bharati together with Khanna, J.'s clarification in Indira Gandhi. It holds that Part III rights, at least in the golden triangle and Article 15, are part of the basic structure.
• It holds Waman Rao rightly decided. It finds no contradiction on equality among Indira Gandhi, Bhim Singhji and Minerva Mills.
• It treats Article 32 and judicial review as part of the basic structure. It ties the doctrine to constitutionalism, separation of powers and the rule of law.
• The Court states that the test looks at the law's effect and not the form of the amendment.

Exam-Important Points

• Bench and date: nine judges, Y.K. Sabharwal, C.J.I., 11 January 2007. It answered the reference made by a five-judge Bench on 14 September 1999.
• Cut-off date: 24 April 1973, the date of Kesavananda Bharati. Insertions on or after it are open to basic structure review.
• Test: the direct impact and effect test. Read Article 21 with Articles 14 and 19, and Article 15. Both the rights test and the essence of the right test are part of the doctrine.
• Two-step check: first ask whether the Ninth Schedule law violates Part III. If yes, ask whether that violation destroys the basic structure. If yes again, the law is invalid.
• Trap: the Court did not strike down Article 31B. It assumed Article 31B valid and did not decide the validity of the First Amendment.
• Trap: laws already upheld by the Court cannot be reopened on these principles. Actions and transactions finalised under the impugned Acts cannot be challenged.
• Kesavananda Bharati on the 29th Amendment: six judges upheld it without the basic structure test. Six upheld it subject to the test. Khanna, J. upheld it with the first six. Ray, C.J.'s view that it was unanimous was not followed.
• Article 31A and 31C differ from Article 31B: they carry a standard or yardstick. Article 31B has none, and its use grew from 13 to 284 laws.
• Authorities to remember: Kesavananda Bharati, Indira Gandhi v. Raj Narain, Minerva Mills, Waman Rao, Bhim Singhji, Maneka Gandhi and M. Nagaraj.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so no paragraph numbers are cited.