This judgment opened up a Pandora’s box with Tamil Nadu Chief Minister Karunanidhi asking for the Constitution to be re written since the state government order for 69% reservations as opposed to 50% limit laid down by the Apex Court would now be open to judicial scrutiny. We have reproduced the judgment verbatim for your reference.
To understand the importance & impact of this judgment read this article by Indira Jaisingh titled “Ninth Schedule: What the Supreme Court judgment means”.
Enjoy! Sanjeev Nayyar
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 1344-45 of 1976 with WP (C) Nos. 242 of 1988, 751 of 1990, 259, 454 and 473 of 1994, 238 of 1995, 35 of 1996 and 408/03, CA Nos. 6045 and 6046 of 2002 and SLP (C) Nos. 14182, 14245, 14248, 14249, 14940, 14946, 14947, 14949, 14950, 14965, 14993, 15020, 15022, 15029, 26879, 26880, 26881, 26882, 26883, 26884, 26885 and 26886 of 2004
Counsels: For Appearing Parties: Goolam E. Vahanvati, S.G., Gopal Subramaniam, Amarjit Singh, R. Mohan, A.S.Gs., Uday Holla, A.G., Raman, A.A.G., F.S. Nariman, Harish N. Salve, Raju Ramachandran, Milind Sathe, A.S. Qureshi, A.S. Nambiar, K.M. Vijayan, Soli J. Sorabjee, T.R. Andhyarujina, R. Shanmugasundaram, Ram Jethamalani, Dushyant Dave, Ashok H. Desai, Jugalkishore Gilda, Sr. Advs., P.H. Parekh, Sailesh Mahintura, Sameer Parekh, E.R. Kumar, Subhash Sharma, Gopal Sankaranarayanan, Sonali Basu Parekh, Nitin Thukral, Rukhmini Bobde, Kush Chaturvedi, Rohan Thawani, Joseph Pookkatt, Attreyee Majumdar, Pooja Dhar, Nikhil Majithia, Saurabh Sinha, Rishab, Prashant Kumar, A.N. Bardiyar, Rachana Joshi Issar, A. Rasheed Qureshi, Banamali Sil, Sewa Ram, Jacob Mathew, P.K. Manohar, Anip Sachthey, Harin P. Raval, Huzefa Ahmadi, Mohit Paul, Meenakshi Grover, Aprajita Singh, Gayatri Goswami, Kamal Deep, Pawan Kumar, Tejveer Singh, Pradyuman Gohil, Arijit Prasad, Ravinder Aggarwal, K.V. Mohan, K.V. Balakrishnan, S.R. Setia, Kiran Suri, Madhumita Bhattacharjee, Avijit Bhattacharjee, M.A. Chinnasamy, J. John, K. Krishna Kumar, V.N. Subramaniyam, A. Subba Rao, Hrishikesh Baruah, Devdatt Kamat, C.P. Sharma, Mrinalini Sen, V.K. Verma, Sushma Suri, P. Parmeswaran, Satyakam, R. Basant, V.G. Pragasam, S. Vallinayagam, Preetesh Kapur, Ashish Chugh, Anand Misra, Ardhendumauli Prasad, Ananth Srinivasan, P.R. Mala, Sanjay R. Hegde, Anil K. Mishra, Vikrant Yadav, Sashidhar, Tara Chandra Sharma, Neelam Sharma, Rajeev Sharma, Ajay Sharma, Rupesh Kumar, Ramesh Singh, Hemantika Wahi, Shivangi, Sumita Hazarika, Rutwik Panda, Sadhana Sandhu, Pinky Behera, Rathin Das, A. Subba Rao, A. Mariarputham, Aruna Mathur, Advs. for Arputham, Aruna & Co., A.V. Rangam, A. Ranganadhan, Buddy A. Ranganadhan, M.T. George, Parmanand Gaur, V. Krishna Murthy, M.A. Chinnasamy, V. Senthil Kumar, V.N. Subramaniyam, Kirti Mishra, E.C. Vidya Sagar, Sewa Ram, Jacob Mathew, P.K. Manohar, A. Subhashini and V.R. Anumolu, Advs.
Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969; West Bengal Land Holding Revenue Act, 1979 - Section 2; Constitution of India (Thirty-fourth Amendment) Act; Constitution of India (Sixty-sixth Amendment) Act; Constitution of India (First Amendment) Act, 1951; Constitution of India (Seventeenth Amendment) Act, 1964; Constitution of India (24th Amendment) Act, 1971; Constitution of India (25th Amendment) Act, 1971; Constitution of India (26th Amendment) Act, 1971; Constitution of India (29th Amendment) Act, 1972; Constitution of India (29th Amendment) Act, 1972; Kerala Land Reforms (Amendment) Act, 1969; Kerala Land Reforms (Amendment) Act, 1971; Constitution of India (39th Amendment) Act, 1975; Constitution of India (40th Amendment) Act, 1976; Constitution of India (42nd Amendment) Act, 1976 - Sections 4, 55; Constitution of India (44th Amendment) Act, 1978; Constitution of India Act, 1982; Constitution of India - Articles 13, 13(2), 13(4), 14, 15, 15(1), 15(4), 16(1), 16(4), 16(4A), 16(4B), 19, 19(1), 20, 21, 31, 31A, 31B, 31C, 32, 39, 226, 291, 300A, 329, 329A, 329A(4), 358, 359, 362, 363, 363A, 368 and 368(1); Maintenance of Internal Security Act, 1971; Prevention of Publication of Objectionable Matter Act, 1976; Urban Land (Ceiling and Regulation) Act, 1976 - Section 27(1); Internal Security Act; Human Rights Act
Cases Referred: A.K Gopalan v. The State of Madras 1950 SCR 88; Additional District Magistrate, Jabalpur v. Shivakant Shukla MANU/SC/0062/1976; Attorney General for India and Ors. v. Amratlal Prajivandas and Ors. MANU/SC/0774/1994; Balmadies Plantations Ltd. and Anr. v. State of Tamil Nadu MANU/SC/0037/1972; Daryao and Ors. v. The State of U.P. and Ors. MANU/SC/0012/1961; Fertilizer Corporation Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors. MANU/SC/0010/1980; Haradhan Saha and Anr. v. The State of West Bengal and Ors. MANU/SC/0419/1974; His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala and Anr.MANU/SC/0445/1973; I.C. Golak Nath and Ors. v. State of Punjab and Anr. MANU/SC/0029/1967; I.R. Coelho (Dead) by LRs. v. State of Tamil NaduMANU/SC/0562/1999; Kameshwar v. State of Bihar AIR 1951 Patna 91; Kathi Raning Rawat v. The State of Saurashtra  S.C.R. 435; Keshavananda Bharati v. State of Kerala  Suppl. SCR 1; Khudiram Das v. The State of West Bengal and Ors. MANU/SC/0423/1974; Kunjukutty Sahib etc. etc. v. The State of Kerala and Anr. MANU/SC/0634/1972; L. Chandra Kumar v. Union of India and Ors. MANU/SC/0261/1997; M. Krishna Swami v. Union of India and Ors. MANU/SC/0222/1993; M. Nagaraj and Ors. v. Union of India and Ors. MANU/SC/4560/2006; Maharao Sahib Shri Bhim Singhji v. Union of India and Ors. MANU/SC/0509/1980; Menaka Gandhi v. Union of India MANU/SC/0133/1978; Minerva Mills Ltd. and Ors. v. Union of India and Ors.MANU/SC/0075/1980; Rustom Cavasjee Cooper v. Union of India MANU/SC/0011/1970; S.R. Bommai and Ors. v. Union of India and Ors. MANU/SC/0444/1994; Sajjan Singh v. State of Rajasthan MANU/SC/0052/1964; Sakal Papers (P) Ltd. and Ors. v. The Union of India MANU/SC/0090/1961; Sambhu Nath Sarkar v. The State of West Bengal and Ors. MANU/SC/0163/1973; Smt. Indira Nehru Gandhi v. Raj Narain 1975 Supp. (1) SCC 1 ; Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar (1952) SCR 89; State of Bombay v. Bhanji Munji and Anr. MANU/SC/0034/1954; State of Madras v. V.G. Row 1952 SCR 597; State of Maharashtra and Ors. v. Man Singh Suraj Singh Padvi and Ors. MANU/SC/0413/1978; State of Rajasthan v. Union of India and Ors. MANU/SC/0370/1977; State of West Bengal v. Anwar Ali Sarkar  S.C.R. 284; Waman Rao and Ors. v. Union of India and Ors. MANU/SC/0091/1980; In Re: Kerala Education Bill and then on to All India Bank Employees Union, next to Sakal Newspapers, crowning in Cooper  3 S.C.R. 530
Prior History:From the Judgment and Order dated 23.9.1976 of the High Court of Judicature at Madras in W.P. Nos. 4386/1974 and 90/1975
Authorities Referred: H.M. Seervai in Constitutional Law of India (Fourth Edition Volume III)
** Relied On
A.K Gopalan v. The State of Madras *****
Additional District Magistrate, Jabalpur v. Shivakant Shukla *
Attorney General for India & Ors. v. Amratlal Prajivandas & Ors. ***
Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu *
Daryao & Ors. v. The State of U.P. & Ors. *
Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India and Ors. *
Haradhan Saha & Anr. v. The State of West Bengal & Ors. *
His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala & Anr. **
I.C. Golak Nath & Ors. v. State of Punjab & Anr. ***
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu *
In Re: Kerala Education Bill *
Kameshwar v. State of Bihar *****
Kathi Raning Rawat v. The State of Saurashtra *
Khudiram Das v. The State of West Bengal & Ors. *
Kunjukutty Sahib etc. etc. v. The State of Kerala & Anr. *
L. Chandra Kumar v. Union of India & Ors. *****
M. Krishna Swami v. Union of India & Ors. *
M. Nagaraj & Ors. v. Union of India & Ors. *****
Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. *
Menaka Gandhi v. Union of India *****
Minerva Mills Ltd. & Ors. v. Union of India & Ors. ***
Rustom Cavasjee Cooper v. Union of India *****
S.R. Bommai & Ors. v. Union of India & Ors. *****
Sajjan Singh v. State of Rajasthan ***
Sakal Papers (P) Ltd. & Ors. v. The Union of India *****
Sambhu Nath Sarkar v. The State of West Bengal & Ors *
Smt. Indira Nehru Gandhi v. Raj Narain **
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar ***
State of Madras v. V.G. Row *****
State of Maharashtra & Ors. v. Man Singh Suraj Singh Padvi & Ors. *****
State of Rajasthan v. Union of India & Ors. *
The State of Bombay v. Bhanji Munji & Anr. *****
The State of West Bengal v. Anwar Ali Sarkar *
Waman Rao & Ors. v. Union of India & Ors. ***
Y.K. Sabharwal, C.J.
1. In these matters we are confronted with a very important yet not very easy task of determining the nature and character of protection provided by Article 31-B of the Constitution of India, 1950 (for short, the 'Constitution') to the laws added to the Ninth Schedule by amendments made after 24th April, 1973. The relevance of this date is for the reason that on this date judgment in His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala and Anr. MANU/SC/0445/1973 was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments.
Re : Order of Reference
2. The order of reference made more than seven years ago by a Constitution Bench of Five Judges is reported in I.R. Coelho (Dead) by LRs. v. State of Tamil NaduMANU/SC/0562/1999 (14.9.1999) . The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. and Anr. v. State of Tamil NaduMANU/SC/0037/1972 because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. These insertions were the subject matter of challenge before a Five Judge Bench.
The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule.
3. In the referral order, the Constitution Bench observed that, according to Waman Rao and Ors. v. Union of India and Ors. MANU/SC/0091/1980, amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure. The decision in Minerva Mills Ltd. and Ors. v. Union of India and Ors. MANU/SC/0075/1980, Maharao Sahib Shri Bhim Singhji v. Union of India and Ors. MANU/SC/0509/1980 were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine Judges. This is how these matters have been placed before us.
4. The fundamental question is whether on and after 24th April, 1973 when basic structures doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court.
Development of the Law
5. First, we may consider, in brief, the factual background of framing of the Constitution and notice the developments that have taken place almost since inception in regard to interpretation of some of Articles of the Constitution.
The Constitution was framed after an in depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State's welfare obligations in Part-IV. The Constitutions of various countries including that of United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32.
6. The High Court of Patna in Kameshwar v. State of Bihar AIR 1951 Patna 91 held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void.
Articles 31A and 31B read as under:
31A. Saving of laws providing for acquisition of estates, etc.- [(1) Notwithstanding anything contained in article 13, no law providing for-
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or Article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article, -
(a) the expression "estate", shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwary settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.
31B. Validation of certain Acts and Regulations.- 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.
The Constitutional validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar (1952) SCR 89. The main object of the amendment was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad that Article 13(2) does not affect amendments to the Constitution made under Article 368 because such amendments are made in the exercise of constituent power. The Constitution Bench held that to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament.
7. The Constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v. State of RajasthanMANU/SC/0052/1964 the law declared in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were added to the Constitution realizing that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that the genesis of the amendment made by adding Articles 31A and 31B is to assist the State Legislatures to give effect to the economic policy to bring about much needed agrarian reforms. It noted that if pith and substance test is to apply to the amendment made, it would be clear that the Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy viz. a policy in which the party in power believes. The Court further noted that the impugned act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted that the object of the Act was to amend the relevant Articles in Part III which confer Fundamental Rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of Clause (b) of that proviso. The Court, however, noted, that if the effect of the amendment made in the Fundamental Rights on Article 226 is direct and not incidental and if in significant order, different considerations may perhaps arise.
8. Justice Hidayattulah, and Justice J.R. Mudholkar, concurred with the opinion of Chief Justice Gajendragadkar upholding the amendment but, at the same time, expressed reservations about the effect of possible future amendments on Fundamental Rights and basic structure of the Constitution. Justice Mudholkar questioned that "It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of the Article 368?"