This article is written by S A Rishikesh, from Shri Ramswaroop Memorial University, Lucknow. This article looks back at the historical judgment of I.R. Coelho v. State of Tamil Nadu. While making a basic understanding of the Ninth Schedule of the Indian Constitution, mode of making amendments in the Indian Constitution, understanding the basic structure doctrine, and finally the observation of the court in the following case.
The IR Coelho v. State of Tamil Nadu (2007) is one of the most important judgments of the Supreme Court of India to date. It determined 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 the fundamental rights, from judicial review. The judgment used the Kesavananda Bharati v State of Kerala (1973) as precedent. The supremacy of the judiciary as the final interpreter of law was finally restored.
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 needs to be amended with the changing time and the needs of the society. The power to amend the Constitution was given in the hands of the legislature. In order to free India from the zamindari system. The Constitution went through its First Amendment, in the year 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. The Ninth Schedule is the detailed explanation of Article 31-B of the Indian Constitution. Initially, it had 13 laws, all of them aimed at land reforms but presently it contains 284 laws covering reservation, trade, industries, mine, etc. The tool to bring land reforms in India became a dustbin for governments. A constitutional dustbin of limitless capacity.
Article 31-B reads: “Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”
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 in the Ninth Schedule after it is declared unconstitutional, it will be considered valid and part of the schedule from the date of its commencement.
The Constitution of India has divided the powers of the legislature, the executive, and the judiciary. The judiciary is the final interpreter and the guardian of the Constitution. Judicial review is the power of the judiciary to check if the laws made by the legislature or the executives are in accordance with the constitutional values. This prevents the executive and the Legislature from acting in an arbitrary manner, maintaining the supremacy of the Constitution, and protecting the rights of the people.
Mode of making amendments to the Constitution
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, 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 the 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 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 the year 1973 when the Apex Court held Article 368 can even amend Part 3 of the Indian Constitution, it basically can amend everything contained in the Constitution only keeping in mind it does not disrupt the ‘basic structure’.
Basic structure doctrine
The validity of the Twenty-Fourth Amendment Act 1971 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 judgment, 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 the 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.
Facts of the case
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 judgment 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 judgment 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 in the said Articles. Thus, the case was referred to a larger bench of nine judges to relook into the judgment of the Waman Rao case and determine the final stance of the Supreme Court.
Issues at hand
- The basic question that was in front of the Apex Court was whether, after the Keshvananda Bharati judgment, laws in the Ninth Schedule be exempted from judicial review considering it to be violative of the basic structure?
- The aim to introduce the Ninth Schedule in the Constitution was to bring legislative reforms in the agrarian sector with the advent of time legislature used it as a tool to bypass the process of judicial review. To what extent does the Ninth Schedule provide immunity to the laws?
Judgment of the nine-member bench of Supreme Court
The bench consisted of Justice Y.K. Sabharwal, Justice Ashok Bhan, Justice Arijit Pasayat, Justice B.P. Singh, Justice S.H. Kapadia, Justice C.K. Thakker, Justice P.K. Balasubramanyan, Justice Altamas Kabir, and Justice D.K. Jain.
The Court in the following case observed that it is the duty of the judiciary to protect the fundamental rights of the citizens. It also noted that Article 368 does not make the legislature the original Constituent Assembly. Article 368 comes with restriction and that restriction is of basic structure. The basic structure could not be harmed or damaged by any amendment. No cover can be given to any law which violates the basic structure of the Indian Constitution. The Court further went on to say the objective of Article 31-B was to bring legislative reforms without difficulty not to use it as a shield against laws violating the rights of the people and overcome the process of judicial review.
The judgment of the Court:
- The basic structure is the very essence of the Indian Constitution any law amendment found inconsistent with Part 3 of the Indian Constitution even if it is in the Ninth Schedule would be struck down by the process of judicial review.
- Every constitutional amendment has to be judged on its own merits. The ‘effect and impact’ test should be considered while determining if any law is damaging or destroying the basic structure. Effect and Impact test means that what part of the Constitution is being amended will not be considered for checking its validity, rather the consequences of the amendment on the Constitution will be a determinative factor.
- All the amendments made to the Constitution after 24th April 1973 have to go through a test if it is in accordance with the essential features of the Constitution as reflected in Article 21 read with Article 14 and Article 19.
- Judicial review is a part of the basic structure and any law cannot be shielded from it.
- The validity of the Ninth Schedule has already been upheld by this court and it will not be open to challenges on the principles declared in the judgment. However, any law added in the Ninth Schedule after 24th April 1973 violative of Article 21 read with Article 19 Article 14 and the principles underlying thereunder can be challenged.
Criticism of the decision
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.’
The judgment has further strengthened the concept of basic structure doctrine in a constitutional setup that is so diverse that needs new amendments every now and then. The importance of Judicial review was again emphasized as it is an effective tool to protect the rights of the people. The sole intention of bringing the ninth schedule was to bring land reforms but soon enough it lost its focus and became a shield in the hands of the legislature, who abused this power. The judiciary through this case in very clear words stated that anything that is violative of the basic structure would be struck down. Thus, taking away the shield highlighting the basic structure doctrine.
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