| Headnote |
Constitution of India, 1950:Article 368 read with Article 31-B, Article 32 - Ninth Schedule - Amendment of Constitution-Inclusion of enactments in Ninth Schedule - Judicial review of - Held: a law that abrogates or abridges rights guaranteed by Part Ill of the Constitution and also violates the basic structure doctrine, whether by amendment of any Article of Part III or by an insertion in Ninth Schedule, such law will have to be invalidated in exercise of power of judicial review of the Court - All amendments to the Constitution made on or after 24.4.1973 by which Ninth Schedule is amended by inclusion of various laws therein can be tested on the touchstone of basic or essential features of Constitution as reflected in Article 21 read with Articles 14 and 19 and the principles underlying them by application of the "right test" and the "essence of the right test" - While laws may be added to the Ninth Schedule, once Article 32 is resorted to the legislation concerned must answer to the complete test of fundamental rights - Article 31-B after 24.4.1973, despite its wide language, cannot confer unlimited or unregulated immunity - If infraction affects the basic structure, such a law will not get protection of Ninth Schedule - Saving - If validity of any Ninth Schedule law has already been upheld by Supreme Court, it would not be open to challenge again on principles declared in this judgment - Action taken and transactions finalized as a result of impugned Acts shall not be open to challenge - Constitutionalism - Doctrine of separation of powers - Doctrine of basic structure - Judicial review. Constitutionalism - Constitution of India - Doctrine of basic structure - Held, equality, rule of law, judicial review, separation of powers, secularism, reasonable balance between Fundamental Rights and Directive Principles, form part of the basic structure - Each of these concepts are intimately connected - After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme - Constitution of India - Articles 14,15,16,19,20,21 and 32.lnterpretation of Constitution - Constitutional provisions have to be construed having regard to the march of time and the development of law-Abrogation and abridgement of fundamental rights, therefore, have to be examined on broad interpretation. On the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 having been struck down by the Supreme Court, and section 2(c) of the West Bengal Land Holding Revenue Act, 1979 having c been struck down by the Calcutta High Court, and the Supreme Court having dismissed the consequential special leave petition filed by the State Government, the Parliament, by the Constitution (Thirty-Fourth Amendment) Act, inserted the Janmam Act in the Ninth Schedule to the Constitution of India and, by the Constitution (Sixty-sixth Amendment) Act, inserted the West Bengal Land Holding Revenue Act, 1979 in the Ninth Schedule. These insertions were challenged before a Constitution Bench of the Supreme Court The said Constitution Bench was of the opinion that the decision in Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SC 362 to the effect that amendments to the Constitution on or after 24th April 1973 (i.e. the date of decision in His Holiness Kesavananda Bharti Sripadagulvaru v. State of Kerala and Anr., [1973] 4 SCC 225 by which the Ninth Schedule was amended from time to time by inclusion of various Acts and, regulations therein, were open to challenge on the ground that they, or anyone or more of them, were beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure, would need reconsideration by a larger Bench preferably of nine Judges. Thus, the matter was placed before the present nine-Judge Bench.On the questions: whether on and after 24th April, 1973 when basic structure 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; and what is the extent and nature of immunity that Article 31-B can provide |
