In the light of aforesaid developments, the main thrust ofthe argument of the petitioners is that post-1973, it isimpermissible to immunize Ninth Schedule laws from judicialreview by making Part III inapplicable to such laws. Such acourse, it is contended, is incompatible with the doctrine ofbasic structure. The existence of power to confer absoluteimmunity is not compatible with the implied limitation uponthe power of amendment in Article 368, is the thrust of thecontention.
Further relying upon the clarification of Khanna, J, asgiven in Indira Gandhi's case, in respect of his opinion inKesavananda Bharati's case, it is no longer correct to saythat fundament rights are not included in the basic structure.Therefore, the contention proceeds that since fundamentalrights form a part of basic structure and thus laws insertedinto Ninth Schedule when tested on the ground of basicstructure shall have to be examined on the fundamental rightstest.
The key question, however, is whether the basicstructure test would include judicial review of Ninth Schedulelaws on the touchstone of fundamental rights. Thus, it isnecessary to examine what exactly is the content of the basicstructure test. According to the petitioners, the consequenceof the evolution of the principles of basic structure is thatNinth Schedule laws cannot be conferred with constitutionalimmunity of the kind created by Article 31B. Assuming thatsuch immunity can be conferred, its constitutional validitywould have to be adjudged by applying the direct impact andeffect test which means the form of an amendment is notrelevant, its consequence would be determinative factor.The power to make any law at will that transgressesPart III in its entirety would be incompatible with the basicstructure of the Constitution. The consequence also is,learned counsel for the petitioners contended, to emasculateArticle 32 (which is part of fundamental rights chapter) in itsentirety if the rights themselves (including the principle ofrule of law encapsulated in Article 14) are put out of the way,the remedy under Article 32 would be meaningless. In fact, bythe exclusion of Part III, Article 32 would stand abrogated quathe Ninth Schedule laws. The contention is that theabrogation of Article 32 would be per se violative of the basicstructure. It is also submitted that the constituent powerunder Article 368 does not include judicial power and that thepower to establish judicial remedies which is compatible withthe basic structure is qualitatively different from the power toexercise judicial power. The impact is that on the one handthe power under Article 32 is removed and, on the other hand,the said power is exercised by the legislature itself bydeclaring, in a way, Ninth Schedule laws as valid.
On the other hand, the contention urged on behalf of therespondents is that the validity of Ninth Schedule legislationscan only be tested on the touch-stone of basic structuredoctrine as decided by majority in Kesavananda Bharati'scase which also upheld the Constitution 29th Amendmentunconditionally and thus there can be no question of judicialreview of such legislations on the ground of violation offundamental rights chapter. The fundamental rights chapter,it is contended, stands excluded as a result of protectiveumbrella provided by Article 31B and, therefore, the challengecan only be based on the ground of basic structure doctrineand in addition, legislation can further be tested for (i) lack oflegislative competence and (ii) violation of other constitutionalprovisions. This would also show, counsel for the respondentsargued, that there is no exclusion of judicial review andconsequently, there is no violation of the basic structuredoctrine.
Further, it was contended that the constitutional devicefor retrospective validation of laws was well known and it islegally permissible to pass laws to remove the basis of thedecisions of the Court and consequently, nullify the effect ofthe decision. It was submitted that Article 31B and theamendments by which legislations are added to the NinthSchedule form such a device, which 'cure the defect' oflegislation.
The respondents contend that the point in issue iscovered by the majority judgment in Kesavananda Bharati'scase. According to that view, Article 31B or the NinthSchedule is a permissible constitutional device to provide aprotective umbrella to Ninth Schedule laws. The distinction issought to be drawn between the necessity for the judiciary in awritten constitution and judicial review by the judiciary.Whereas the existence of judiciary is part of the basicframework of the Constitution and cannot be abrogated inexercise of constituent power of the Parliament under Article368, the power of judicial review of the judiciary can becurtailed over certain matters. The contention is that there isno judicial review in absolute terms and Article 31B onlyrestricts that judicial review power. It is contended that afterthe doctrine of basic structure which came to be established inKesavananda Bharati's case, it is only that kind of judicialreview whose elimination would destroy or damage the basicstructure of the Constitution that is beyond the constituentpower.
However, in every case where the constituent powerexcludes judicial review, the basic structure of theConstitution is not abrogated. The question to be asked ineach case is, does the particular exclusion alter the basicstructure. Giving immunity of Part III to the Ninth Schedulelaws from judicial review, does not abrogate judicial reviewfrom the Constitution. Judicial review remains with the courtbut with its exclusion over Ninth Schedule laws to which PartIII ceases to apply.
The effect of placing a law in NinthSchedule is that it removes the fetter of Part III by virtue ofArticle 31B but that does not oust the court jurisdiction. Itwas further contended that Justice Khanna in KesavanandaBharati's case held that subject to the retention of the basicstructure or framework of the Constitution, the power ofamendment is plenary and will include within itself the powerto add, alter or repeal various articles including taking away orabridging fundamental rights and that the power to amend thefundamental rights cannot be denied by describing them asnatural rights. The contention is that the majority inKesavananda Bharati's case held that there is no embargowith regard to amending any of the fundamental rights in PartIII subject to basic structure theory and, therefore, thepetitioners are not right in the contention that in the said casethe majority held that the fundamental rights form part of thebasic structure and cannot be amended. The furthercontention is that if fundamental rights can be amended,which is the effect of Kesavananda Bharati's case overrulingGolak Nath's case, then fundamental rights cannot be saidto be part of basic structure unless the nature of theamendment is such which destroys the nature and characterof the Constitution. It is contended that the test for judiciallyreviewing the Ninth Schedule laws cannot be on the basis ofmere infringement of the rights guaranteed under Part III ofthe Constitution. The correct test is whether such lawsdamage or destroy that part of fundamental rights which formpart of the basic structure. Thus, it is contended that judicialreview of Ninth Schedule laws is not completely barred. Theonly area where such laws get immunity is from the infractionof rights guaranteed under Part III of the Constitution.
To begin with, we find it difficult to accept the broadproposition urged by the petitioners that laws that have beenfound by the courts to be violative of Part III of theConstitution cannot be protected by placing the same in theNinth Schedule by use of device of Article 31B read withArticle 368 of the Constitution. In Kesavananda Bharti'scase, the majority opinion upheld the validity of the Kerala Actwhich had been set aside in Kunjukutty Sahib etc. etc. v.The State of Kerala & Anr. [(1972) 2 SCC 364] and thedevice used was that of the Ninth Schedule. After a law isplaced in the Ninth Schedule, its validity has to be tested onthe touchstone of basic structure doctrine. In State ofMaharashtra & Ors. v. Man Singh Suraj Singh Padvi &Ors. [(1978) 1 SCC 615], a Seven Judge Constitution Bench,post-decision in Kesavananda Bharati's case upheldConstitution (40th Amendment) Act, 1976 which wasintroduced when the appeal was pending in Supreme Courtand thereby included the regulations in the Ninth Schedule. Itwas held that Article 31B and the Ninth Schedule cured thedefect, if any, in the regulations as regards anyunconstitutionality alleged on the ground of infringement offundamental rights.
It is also contended that the power to pack up laws in theNinth Schedule in absence of any indicia in Article 31B hasbeen abused and that abuse is likely to continue. It issubmitted that the Ninth Schedule which commenced withonly 13 enactments has now a list of 284 enactments. Thevalidity of Article 31B is not in question before us. Further,mere possibility of abuse is not a relevant test to determine thevalidity of a provision. The people, through the Constitution,have vested the power to make laws in their representativesthrough Parliament in the same manner in which they haveentrusted the responsibility to adjudge, interpret and construelaw and the Constitution including its limitation in thejudiciary. We, therefore, cannot make any assumption aboutthe alleged abuse of the power.
Validity of 31B
There was some controversy on the question whethervalidity of Article 31B was under challenge or not inKesavananda Bharati. On this aspect, Chief JusticeChandrachud has to say this in Waman Rao :
In Sajjan Singh v. State of Rajasthan[(1965) 1 SCR 933], the Court refused toreconsider the decision in SankariPrasad (supra), with the result that thevalidity of the 1st Amendment remainedunshaken. In Golaknath, it was held bya majority of 6 : 5 that the power toamend the Constitution was not locatedin Article 368. The inevitable result ofthis holding should have been thestriking down of all constitutionalamendments since, according to the viewof the majority, Parliament had no powerto amend the Constitution in pursuanceof Article 368. But the Court resorted tothe doctrine of prospective overruling andheld that the constitutional amendmentswhich were already made would be leftundisturbed and that its decision willgovern the future amendments only. As aresult, the 1st Amendment by whichArticles 31A and 31B were introducedremained inviolate. It is trite knowledgethat Golaknath was overruled inKesavananda Bharati (supra) in whichit was held unanimously that the powerto amend the Constitution was to befound in Article 368 of the Constitution.
The petitioners produced before us a copyof the Civil Misc. Petition which was filedin Kesavananda Bharati, (supra) bywhich the reliefs originally asked for weremodified. It appears thereform that whatwas challenged in that case was the 24th,25th and the 29th Amendments to theConstitution. The validity of the 1stAmendment was not questioned KhannaJ., however, held-while dealing with thevalidity of the unamended Article 31Cthat the validity of Article 31A was upheldin Sankari Prasad, (supra) that itsvalidity could not be any longerquestioned because of the principle ofstare decisis and that the ground onwhich the validity of Article 31A wassustained will be available equally forsustaining the validity of the first part ofArticle 31C (page 744) (SCC p.812, para1518).
We have examined various opinions in KesavanandaBharati's case but are unable to accept the contention thatArticle 31B read with the Ninth Schedule was held to beconstitutionally valid in that case. The validity thereof was notin question. The constitutional amendments under challengein Kesavananda Bharati's case were examined assumingthe constitutional validity of Article 31B. Its validity was notin issue in that case. Be that as it may, we will assume Article31B as valid. The validity of the 1st Amendment inserting inthe Constitution, Article 31B is not in challenge before us.Point in issue
The real crux of the problem is as to the extent andnature of immunity that Article 31B can validly provide. Todecide this intricate issue, it is first necessary to examine insome detail the judgment in Kesavananda Bharati's case,particularly with reference to 29th Amendment.
