Home Constitution I.R. Coelho vs. State of Tamil Nadu (2007)

I.R. Coelho vs. State of Tamil Nadu (2007)

September 18, 2024

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This article was written by S A Rishikesh and further updated by Monesh Mehndiratta. The article explains one of the landmark judgments of the Supreme Court in the case of I.R. Coelho v. State of Tamil Nadu (2007). It explains the background of the case, facts, issues, judgement of the court, observations of the court and applicable law, further providing its critical analysis.

Introduction

Do you know that our Constitution can be amended?

Yes, there can be amendments made to our Constitution by virtue of which something can be added, changed or altered in our Constitution. However, this power has only been given to the Parliament. This power has been exercised many times by the parliament. Another major power given to the parliament is that it can prevent any statute or Act from being challenged in court on the grounds of violation of fundamental rights given in the Constitution. This can be done by inserting statutes and legislations in the Ninth Schedule of the Constitution.

By exercising these powers, the parliament has inserted many statutes in the schedule as a result of which they are protected from being challenged in the court. However, these actions and powers of the parliament have been criticised, and many cases have been filed in this regard. The IR Coelho v. State of Tamil Nadu (2007) is one such case.

This case highlighted the importance of judicial review and the powers of the judiciary in this aspect. The case is also referred to as the 9th Schedule Case and involved an exhaustive discussion on Article 31-B of the Indian Constitution. This case removed the shield that the legislature took to shield the laws violative of fundamental rights from judicial review. The judgement used Kesavananda Bharati v State of Kerala (1973) as a precedent. The present article explains the facts of this case, background of the case, issues involved therein, judgement of the court and the opinion of judges along with its critical analysis.

Details of the case

Name of the case: I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu

Citation: (2007) 2 SCC 1, 2007 SCC OnLine SC 71.

Date of decision: 11/01/2007

Court: Supreme Court of India

Bench: The bench consisted of 9 judges, namely:

Chief Justice Y.K. Sabharwal
Justice Ashok Bhan
Justice Dr. Arijit Pasayat
Justice B.P. Singh
Justice S.H. Kapadia
Justice C.K. Thakkar
Justice P.K. Balasubramanyam
Justice Altamas Kabir
Justice D.K. Jain

Name of the petitioner: I.R. Coelho (Dead) by LRs

Name of the respondent: State of Tamil Nadu & Union of India

Laws applied: Article 31-B and the Ninth Schedule to the Constitution

Background of the case

The framers of the Indian Constitution were aware of the fact that no generation has a monopoly of wisdom, nor has it the right to place its decisions on future generations to mould the machinery of government according to their requirements. The Constituent Assembly had two choices in front of them. The first one was to follow the United Kingdom, where the Parliament is supreme and, therefore, has a very flexible Constitution, and a Constitutional Amendment can be brought by a simple majority. The second was the Constitution of the United States of America, where the Constitution is supreme, which makes the amendments too rigid, a characteristic of a federal form of government, written and rigid Constitution. The framers of the Constitution took a middle path and made the Constitution of India rigid as well as flexible. Dr. Ambedkar called it a flexible federation.

Part XX of the Indian Constitution contains Article 368. This article gives the Parliament power to amend the Constitution. It mentions two types of amendment:

By a special majority of both the houses of the Parliament (the Lok Sabha and the Rajya Sabha)
By a special majority of both houses of the Parliament and ratified by half of the states. Ratified here means introduced as a bill on the floor of the state assembly and passed by a simple majority, i.e., more than fifty percent are present and voting.

But Article 368 has always been surrounded by questions. What is the scope of Article 368? Can it amend Part 3 of the Indian Constitution? All the clouds of confusion were cleared in 1973 when the Apex Court held Article 368 could even amend Part III of the Indian Constitution. It basically can amend everything contained in the Constitution, only keeping in mind it does not disrupt the ‘basic structure’.

Brief facts of I.R. Coelho vs. State of Tamil Nadu (2007)

This case was referred to by a five-judge Constitution bench in 1999. After the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 was struck down by the Supreme Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu (1972). The Act was inserted in the Ninth Schedule by the Thirty-fourth Amendment Act (1974) of the Constitution. Similarly, Section 2(c) of the West Bengal Land Holding Revenue Act, 1979, was held unconstitutional by the Calcutta High Court as arbitrary. This Act was also inserted in the Ninth Schedule by the Sixty-sixth Amendment Act (1990). These amendments were the subject matter in front of the five judges’ bench.

The Constitutional bench took the reference of the Supreme Court judgement of Waman Rao & Ors. v. Union of India & Ors. (1981) and held that the laws inserted in the Ninth Schedule, by an amendment made after 24th April 1973 (the day Keshvananda Bharati case judgement was passed), can be challenged on the basis of it being violative of the basic structure. That is reflected in Article 14, Article 19, Article 21 and the principles underlying the said Articles. Thus, the case was referred to a larger bench of nine judges to relook into the judgement of the Waman Rao case and determine the final stance of the Supreme Court.

Issues involved in the case

Whether the Parliament can immune legislation from the fundamental rights by using the Ninth Schedule of the Constitution after the doctrine of Basic structure has been propounded.
What would be the effect of such power of the Parliament on the judicial review of the Court?

Contentions of parties

Arguments put forth by the petitioner

The petitioner argued that Article 31-B with 13 items, was introduced by the Constitution (First Amendment) Act, 1951 as a one-time measure. The language of the article did not provide that more enactments could be added in the Ninth Schedule, and that thus has been highlighted in the case of Shankari Prasad v. Union of India (1951). Further, items were added either on the basis of earlier decisions of the court or acquiescence for a long time. Relying on the judgement of Kesavananda Bharati v. State of Kerala (1973), it was argued that Parliament has no power to alter the basic structure or framework of the Constitution and that there is no justification for adding more enactments to the schedule. Enactments added thereafter were open to challenge on the grounds of violation of the basic structure of the Constitution.

It was further argued that this continuous practice of invoking Article 31-B and placing legislations and enactments in the Ninth Schedule would result in the impossibility of effective judicial review. This is because there would be no parameters upon which the validity of the constitutional amendments could be checked. The petitioners further contended that the power of Parliament and state legislatures to make laws in conformity with fundamental rights must be treated as a part of the basic structure of the Constitution. Whether a Constitutional Amendment destroys basic features of the Constitution must be judged by some principle, that is, individual rights against societal rights. To put it simply, “regard for the public welfare is the highest law” (salus populli est suprema lex principle).

It was further submitted that the judicial review is a part of the basic structure of the Constitution and that it must be made a part of the Ninth Schedule. It was contended that if any act or provision which has been held unconstitutional by the courts is inserted in the Ninth Schedule, it would destroy the doctrine of the basic structure of the Constitution. Inserting any act or provision that has been held as unconstitutional on the ground that it violates fundamental rights conferred in Part III of the Constitution in the Ninth Schedule would again destroy the basic structure doctrine. This would also violate the freedoms given to citizens. For example, any law which has been struck down on the ground that it violated Article 19(1)(a) of the Constitution would come into force if inserted in the Ninth Schedule.

Arguments put forth by the respondent

It was argued that Articles 31-A and 31-B were incorporated to achieve the goal of social equality. The directive principles of state policy (DPSPs) and fundamental rights both provide to achieve this goal. However, DPSPs are dynamic, while the fundamental rights are static. Further, it was contended that when a competent legislature passes a law, it automatically receives the protection of Article 31A, which leads to a conclusion that the law cannot be challenged on the grounds of Article 14 & Article 19. Article 31B does not provide any category which should be given the protection. The respondents contended that Article 31-B provides a constitutional mechanism for validating statutes that have been struck down on the grounds that they violated fundamental rights contained in Part III of the Constitution. When a statute is inserted in the schedule, any defects of unconstitutionality pertaining to the violation of fundamental rights are cured.

It was further argued that whenever a statute is inserted in the Ninth Schedule, it still remains ordinary legislation. The protection of Article 31B would not be available to such a statute, which violates the basic structure and is still included in the schedule. The respondents further contended that the judicial review of statutes that have been given protection under Article 31-B is not completely denied. It can be done regarding the requirements of Article 368 and legislative competence. Also, the fundamental rights have not been made unamendable, untouchable or sacrosanct. If this was possible then only it could be argued that Article 31-B is unconstitutional because it allows abrogation of unamendable fundamental rights.

It is a fallacy that judicial review is excluded by the said article and schedule in matters related to the violation of fundamental rights. It was contended by the respondent that when a statute is declared unconstitutional by the courts, it neither nullifies the will of the people nor encroaches on the sovereignty of parliament. Similarly, when a decision is neutralised by constitutional amendment, there is no disobedience of the decision of the court. The respondents further argued that Article 31-B has stood the test of time and is a part of the Constitution, which was validly enacted by complying with the conditions and requirements of Article 368 by the same people who enacted and drafted the Constitution and fundamental rights. It was not enacted with the aim of depriving people of their fundamental rights.

The respondents went on to argue that one reason for including a statute in the Ninth Schedule is to remove any uncertainties regarding its validity due to various challenges and judicial pronouncements and to prevent a long litigation process. There might be instances in future where laws and statutes have to be inserted in the Ninth Schedule due to possible challenges in courts, different judgements and resources spent in time-consuming litigation. The respondents provided that analysing the Ninth Schedule revealed that the statutes contained therein mostly relate to land reforms and do not violate the personal liberties of any person. Parliament must be trusted with the insertion of statutes in the schedule and that the power would not be misused. The respondents pointed out that Article 31B does not wipe out Part III of the Constitution entirely but gives immunity only to particular laws contained in the said schedule from being challenged on the grounds of fundamental rights.

Judgement of the court

Ratio Decidendi

The Supreme Court held that:

A law that abrogates fundamental rights contained in Part III of the Constitution may or may not violate the doctrine of the basic structure of the Constitution. However, if a law is abrogated and still inserted in the Ninth Schedule, its validity will be tested, and if provided, it will be invalidated by judicial review.
In order to determine whether a statute violates the basic structure of the Constitution, its effects on Part III of the Constitution have to be considered.
All the statutes which have been inserted in the said schedule after the judgement of the Kesavananda Bharati case will have to be tested on the basis of essential features of the Constitution. Thus, even if a statute is put in the said schedule by way of amendment, it would be open to challenge on the grounds of basic structure if it violates fundamental rights.
Whether a statute has to be given protection under the Ninth Schedule has to be determined by examining the nature and extent of infraction of fundamental rights by such a statute and on the basis of the basic structure of the Constitution as reflected by Article 21 along with Article 14 & 19, by applying the rights test. The right test provides that the form of amendment is not a relevant factor, but its consequences are the determining factor.
If any statute which has been included in the said schedule is upheld by the court, it cannot be challenged again. However, if the statute is held to be violative of Part III of the Constitution and still incorporated in the Ninth Schedule after 24.04.1973, it would be open to challenge on the grounds of the basic structure of the Constitution.

Obiter dicta

The Court took into consideration the background of the Constitution, its aim and development so far since its inception. It observed that the Constitution was framed after a detailed study of numerous challenges and problems like poverty, illiteracy, deprivation, and inequalities on the basis of caste, creed, sex and religion. The debates in the constituent assembly provide the importance of fundamental rights contained in Part III and the obligations of a welfare state in Part IV of the Constitution. The Court took into consideration various judgements pertaining to the Ninth Schedule and Constitutional Amendments.

It was observed that there is a difference between parliamentary and constitutional sovereignty. Articles 14, 19 & 21 form the basis of the rule of law and judicial review. No provision in the Constitution which has been framed or inserted by exercising plenary law-making power can be ultra vires as there is no ground for challenging its validity outside the Constitution. So, the amending power has to be within the limits of the Constitution. To determine whether a particular principle or article of the Constitution falls within the ambit of its basic structure, the object, purpose and consequences of adding such principle to the basic structure have to be considered. For example, separation of powers has been held as a part of the basic structure of the Constitution.

The Court observed that, as contended in the arguments by the parties, the power to incorporate laws in the said schedule without any set criteria has been abused. However, the mere possibility of abuse is not a valid test to determine the validity of any provision. Thus, there can be no assumptions regarding the alleged abuse. It was observed that exercising the power to amend and insert laws in the Ninth Schedule entails a complete removal of fundamental rights. Secondly, the incorporation of statutes in the said schedule is not controlled by any criteria or factors which could be evaluated. It results in the nullification of fundamental rights and no control over them.

It was further observed that the aim of fundamental rights is to foster social well-being and revolution by creating a society in which all citizens are free from coercion or restrictions of the state. By introducing fundamental rights and DPSPs, the framers of the Constitution made it obligatory for the government to adopt a middle path between individual liberty and public welfare. This balance is an essential component of the Constitution. Fundamental rights provide a check on the power of the state. Thus, when a statute is incorporated into the said schedule, it is completely immune from Part III of the Constitution, including Article 32. It was further observed that the original intention of Article 31-B was to protect a limited number of legislations and statutes, but an unchecked and rampant exercise of the power has led to an increase in the number of statutes inserted in the Ninth Schedule from 13 to 284 which shows that it is not a mere exception anymore. The absence of any guidelines regarding the exercise of these powers leads to the absence of constitutional control, which destroys its supremacy and creates parliamentary hegemony and the absence of judicial review to challenge the validity of such statutes and power.

It was further observed by the court that Article 31-B decides validity on the basis of fictional immunity. While judging the validity of the constitutional amendment, the impact test has to be applied. The doctrine of the basic structure of the Constitution requires the state to justify the invasion and degree of invasion of fundamental rights. There is a presumption that parliament must legislate in a way that is compatible with fundamental rights. The degree of invasion has to be decided by the court. Therefore, firstly, whether the fundamental rights have been violated has to be determined. Secondly, its impact has to be examined, and if it is revealed that it affects or destroys the basic structure of the Constitution, the consequences must be taken into consideration.

Laws applied in the case

Article 31-B of the Constitution

Article 31-B has been inserted in the Constitution by the Constitution (First Amendment) Act, 1951. It provides that no Act or regulation mentioned in the Ninth Schedule of the Constitution would be void on the ground that it is inconsistent with or abridges rights contained in Part III of the Constitution, and they will continue to remain in force notwithstanding any judgement, decree or order of any court contrary to such Act or regulations.

Ninth Schedule of the Constitution

The Constitution of India is an organic or living document. The makers of the Constitution knew very well that the Constitution needed to be amended with the changing times and the needs of society. The power to amend the Constitution was given to the hands of the legislature. In order to free India from the Zamindari system. The Constitution went through its First Amendment in 1951 when the Ninth Schedule became part of this document. It contains a list of central and state laws that are shielded from Judicial review. Initially, the schedule had 13 laws, all of them aimed at land reforms, but presently, it contains 284 laws covering reservation, trade, industries, mining, etc. The tool to bring land reforms in India became a dustbin for governments. A constitutional dustbin of limitless capacity.

In simple words, the Ninth Schedule tied the hands of the judiciary. Even if a law violated the fundamental rights it could be protected from being declared void by the judiciary by simply placing it in the Ninth Schedule outside the scope of judicial review. A key feature of the Ninth Schedule is that it is retrospective in nature. If a law is added to the Ninth Schedule after it is declared unconstitutional, it will be considered valid and part of the schedule from the date of its commencement.

Basic Structure Doctrine

The validity of the Constitution Twenty-Fourth Amendment Act 1971, along with the Constitution Twenty Fifth Amendment Act, 1972 and the Constitutional (Twenty Ninth Amendment) Act, 1972 was challenged in the Kesavananda Bharati vs State of Kerala (1973), popularly known as the Fundamental Rights case. One of the questions involved in this case was, what is the extent of the amending power conferred by Article 368 of the Constitution? A special bench of 13 judges was constituted to hear the case. In the judgement, the court held that Article 368 confers vast power to the legislature to amend all the parts of the Constitution as long as it does not damage or destroy the essential elements or basic structure of the Constitution. In this case, the doctrine of basic structure came into existence in India. Before the Kesavananda Bharati case, the Supreme Court in I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967) held, with a 6:5 majority, that parliament has no right to amend Part III of the constitution under Article 368.

The basic structure is nothing but a tool or judicial innovation to ensure that the legislature does not abuse the power given to it in Article 368. There is no precise definition of what is part of the basic structure. It is an evolving concept, and through various judgments, we now have a list of features that are part of the basic structure. Some of the features are:

Supremacy of the Constitution.
Unity and sovereignty of India.
A democratic and republican form of government.
Federal character of the Constitution.
Secular character of the Constitution.
Separation of power.
Individual freedom.
Rule of law.
Judicial review.
Parliamentary system.
Rule of equality.
Harmony and balance between the Fundamental Rights and DPSP.
Free and fair elections.
Limited power of the parliament to amend the Constitution.
Power of the Supreme Court under Articles 32, 136, 142, and 147.
Power of the High Court under Articles 226 and 227.

This is just an indicative list and not a complete list.

Critical analysis of the case

The Supreme Court, in the present case, has rightly clarified the grey area and ambiguity regarding Article 31-B and the Ninth Schedule of the Constitution. It has highlighted the continuous abuse of power given in the article. Till the present case, there were no criteria or factors that determined the basis for inserting laws and statutes in the Ninth Schedule. The Supreme Court, in this judgement, gave the test in order to determine whether a particular statute must be provided protection under the said schedule. The court also highlighted the objective and original intention of the framers of the constitution to introduce Article 31-B of the constitution and that due to its abuse, the number of statutes in the said schedule has increased from 13-284 over time, which meant that these particular acts could not be challenged if they violated Part III of the Constitution. This issue had to be highlighted, or else it would limit the power of judicial review of the Court.

However, critics argue that the judiciary is just trying to limit the powers of the legislatures to enact laws and public policies. Propounding a new theory or doctrine every now and then is not only hampering the working of the legislature but also adding vagueness and confusion that is already surrounding the basic structure doctrine. The judiciary has never given any precise definition of the basic structure nor any complete list that contains what actually is the basic structure. Justice Mathew, in the Indira Gandhi case (1975), stated that ‘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.’

Conclusion

The legislature, executive and judiciary are the three pillars of democracy, and each of them is expected to perform their functions. The legislative functions or the function of law-making has been given in the hands of parliament. The wide powers of the parliament have been expressly mentioned in the Constitution. The judiciary, on the other hand, has been given the power to interpret laws and identify the grey areas. One such power of the parliament, which could prevent any law from being challenged in the courts by inserting it in the Ninth Schedule of the Constitution, was challenged in the present case.

The present case is one of the most impressive and important judgements delivered by the Apex Court, where it highlighted the continuous abuse of power given to the parliament in this regard and further, prevented the misuse by imposing certain restrictions. The judges interpreted the laws and identified the loopholes. It also stressed on the basic structure doctrine of the Constitution and devised a test to determine the basis upon which a statute can be inserted in the said schedule and that the judicial review can still be done if it is in violation of the Part III of the Constitution.

Frequently Asked Questions (FAQs)

Which case is famously known as the fundamental rights case?

The case of Kesavananda Bharati v. State of Kerala (1973) is popularly known as the fundamental rights case.

When was Article 31B inserted in the Constitution?

Article 31-B was inserted through the first amendment in the Constitution in 1951.

Is judicial review a part of the basic structure of the Constitution?

Yes, the principle of judicial review is a part of the basic structure of the Constitution.

References

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