Judicial Review

We are considering the question as to the extent ofjudicial review permissible in respect of Ninth Schedule lawsin the light of the the basic structure theory propounded inKesavananda Bharati's case. In this connection, it isnecessary to examine the nature of the constituent powerexercised in amending a Constitution. 

We have earlier noted that the power to amend cannot beequated with the power to frame the Constitution. This powerhas no limitations or constraints, it is primary power, a realplenary power. The latter power, however, is derived from theformer. It has constraints of the document viz. Constitutionwhich creates it. This derivative power can be exercised withinthe four corners of what has been conferred on the bodyconstituted, namely, the Parliament. The question before us isnot about power to amend Part III after 24th April, 1973. Asper Kesavananda Bharati, power to amend exists in theParliament but it is subject to the limitation of doctrine ofbasic structure. The fact of validation of laws based onexercise of blanket immunity eliminates Part III in entiretyhence the 'rights test' as part of the basic structure doctrinehas to apply.

In Kesavananda Bharati's case, the majority held thatthe power of amendment of the Constitution under Article 368did not enable Parliament to alter the basic structure of theConstitution. 

Kesavananda Bharati's case laid down a principle asan axiom which was examined and worked out in IndiraGandhi's case, Minerva Mills, Waman Rao and BhimSingh.

As already stated, in Indira Gandhi's case, for the firsttime, the constitutional amendment that was challenged didnot relate to property right but related to free and fair election.As is evident from what is stated above that the power ofamending the Constitution is a species of law making powerwhich is the genus. It is a different kind of law making powerconferred by the Constitution. It is different from the power toframe the Constitution i.e. a plenary law making power asdescribed by Seervai in Constitutional Law of India (4th Edn.).

The scope and content of the words 'constituent power'expressly stated in the amended Article 368 came up forconsideration in Indira Gandhi's case. Article 329-A(4) wasstruck down because it crossed the implied limitation ofamending power, that it made the controlled constitutionuncontrolled, that it removed all limitations on the power toamend and that it sought to eliminate the golden triangle ofArticle 21 read with Articles 14 and 19. (See also MinervaMills case).

It is Kesavananda Bharati's case read withclarification of Justice Khanna in Indira Gandhi's casewhich takes us one step forward, namely, that fundamentalrights are interconnected and some of them form part of thebasic structure as reflected in Article 15, Article 21 read withArticle 14, Article 14 read with Article 16(4) (4A) (4B) etc.Bharti and Indira Gandhi's cases have to be read togetherand if so read the position in law is that the basic structure asreflected in the above Articles provide a test to judge thevalidity of the amendment by which laws are included in theNinth Schedule.

Since power to amend the Constitution is not unlimited,if changes brought about by amendments destroy the identityof the Constitution, such amendments would be void. That iswhy when entire Part III is sought to be taken away by aconstitutional amendment by the exercise of constituent powerunder Article 368 by adding the legislation in the NinthSchedule, the question arises as to the extent of judicialscrutiny available to determine whether it alters thefundamentals of the Constitution. Secularism is one suchfundamental, equality is the other, to give a few examples toillustrate the point. It would show that it is impermissible todestroy Article 14 and 15 or abrogate or en bloc eliminatethese Fundamental Rights. To further illustrate the point, itmay be noted that the Parliament can make additions in thethree legislative lists, but cannot abrogate all the lists as itwould abrogate the federal structure. 

The question can be looked at from yet another anglealso. Can the Parliament increase the amending power byamendment of Article 368 to confer on itself the unlimitedpower of amendment and destroy and damage thefundamentals of the Constitution? The answer is obvious.Article 368 does not vest such a power in the Parliament. Itcannot lift all restrictions placed on the amending power orfree the amending power from all its restrictions. This is theeffect of the decision in Kesavananda Bharati's case as aresult of which secularism, separation of power, equality, etc.to cite a few examples would fall beyond the constituent powerin the sense that the constituent power cannot abrogate thesefundamentals of the Constitution. Without equality the rule oflaw, secularism etc. would fail. That is why Khanna, J. heldthat some of the Fundamental Rights like Article 15 form partof the basic structure.

If constituent power under Article 368, the other namefor amending power, cannot be made unlimited, it follows thatArticle 31B cannot be so used as to confer unlimited power.Article 31B cannot go beyond the limited amending powercontained in Article 368. The power to amend Ninth Scheduleflows from Article 368. This power of amendment has to becompatible with the limits on the power of amendment. Thislimit came with the Kesavananda Bharati's case. ThereforeArticle 31-B after 24th April, 1973 despite its wide languagecannot confer unlimited or unregulated immunity.

To legislatively override entire Part III of the Constitutionby invoking Article 31-B would not only make theFundamental Rights overridden by Directive Principles but itwould also defeat fundamentals such as secularism,separation of powers, equality and also the judicial reviewwhich are the basic feature of the Constitution and essentialelements of rule of law and that too without anyyardstick/standard being provided under Article 31-B.

Further, it would be incorrect to assume that socialcontent exist only in Directive Principles and not in theFundamental Rights. Article 15 and 16 are facets of Article14. Article 16(1) concerns formal equality which is the basis ofthe rule of law. At the same time, Article 16(4) refers toegalitarian equality. Similarly, the general right of equalityunder Article 14 has to be balanced with Article 15(4) whenexcessiveness is detected in grant of protective discrimination.Article 15(1) limits the rights of the State by providing thatthere shall be no discrimination on the grounds only ofreligion, race, caste, sex, etc. and yet it permits classificationfor certain classes, hence social content exists in FundamentalRights as well. All these are relevant considerations to test thevalidity of the Ninth Schedule laws.

Equality, rule of law, judicial review and separation ofpowers form parts of the basic structure of the Constitution.Each of these concepts are intimately connected. There can beno rule of law, if there is no equality before the law. Thesewould be meaningless if the violation was not subject to thejudicial review. All these would be redundant if the legislative,executive and judicial powers are vested in one organ.Therefore, the duty to decide whether the limits have beentransgressed has been placed on the judiciary.

Realising that it is necessary to secure the enforcement ofthe Fundamental Rights, power for such enforcement hasbeen vested by the Constitution in the Supreme Court and theHigh Courts. Judicial Review is an essential feature of theConstitution. It gives practical content to the objectives of theConstitution embodied in Part III and other parts of theConstitution. It may be noted that the mere fact that equalitywhich is a part of the basic structure can be excluded for alimited purpose, to protect certain kinds of laws, does notprevent it from being part of the basic structure. Therefore, itfollows that in considering whether any particular feature ofthe Constitution is part of the basic structure — rule of law,separation of power — the fact that limited exceptions are madefor limited purposes, to protect certain kind of laws, does notmean that it is not part of the basic structure.

On behalf of the respondents, reliance has been placedon the decision of a nine Judge Constitution Bench inAttorney General for India & Ors. v. AmratlalPrajivandas & Ors. [(1994) 5 SCC 54] to submit thatargument of a violation of Article 14 being equally violative ofbasic structure or Articles 19 and 21 representing the basicstructure of the Constitution has been rejected. Para 20referred to by learned counsel for the respondent reads asunder :

"Before entering upon discussion of theissues arising herein, it is necessary tomake a few clarificatory observations.Though a challenge to the constitutionalvalidity of 39th, 40th and 42ndAmendments to the Constitution waslevelled in the writ petitions on theground that the said Amendments -effected after the decision inKeshavananda Bharati v. State ofKerala [1973] Suppl. SCR 1 - infringethe basic structure of the Constitution,no serious attempt was made during thecourse of arguments to substantiate it. Itwas generally argued that Article 14 isone of the basic features of theConstitution and hence anyconstitutional amendment violative ofArticle 14 is equally violative of the basicstructure. This simplistic argumentoverlooks the reason d'etre of Article 31B- at any rate, its continuance andrelevance after Bharati - and of the 39thand 40th Amendments placing the saidenactments in the IXth Schedule. 

Acceptance of the petitioners' argumentwould mean that in case of post-Bharaticonstitutional amendments placing Actsin the IXth Schedule, the protection ofArticle 31-B would not be availableagainst Article 14. Indeed, it wassuggested that Articles 21 and 19 alsorepresent the basic features of theConstitution. If so, it would mean afurther enervation of Article 31B. Be thatas it may, in the absence of any effort tosubstantiate the said challenge, we donot wish to express any opinion on theconstitutional validity of the saidAmendments. We take them as they are,i.e., we assume them to be good andvalid. We must also say that no effort hasalso been made by the counsel toestablish in what manner the saidAmendment Acts violate Article 14."

It is evident from the aforenoted passage that the question of violation ofArticles 14, 19 or 21 was not gone into. The bench did not express any opinionon those issues. No attempt was made to establish violation of these provisions.In Para 56, while summarizing the conclusion, the Bench did not express anyopinion on the validity of 39th and 40th Amendment Acts to the Constitution ofIndia placing COFEPOSA and SAFEMA in the Ninth Schedule. These Acts were assumedto be good and valid. No arguments were also addressed with respect to thevalidity of 42nd Amendment Act.
Every amendment to the Constitution whether it be in the form of amendment ofany Article or amendment by insertion of an Act in the Ninth Schedule has to betested by reference to the doctrine of basic structure which includes referenceto Article 21 read with Article 14, Article 15 etc. As stated, laws included inthe Ninth Schedule do not become part of the Constitution, they derive theirvalidity on account of the exercise undertaken by the Parliament to include themin the Ninth Schedule. That exercise has to be tested every time it isundertaken. In respect of that exercise the principle of compatibility will comein. One has to see the effect of the impugned law on one hand and the exclusionof Part III in its entirety at the will of the Parliament.

In Waman Rao, it was accordingly rightly held that the Acts inserted in theNinth Schedule after 24th April, 1973 would not receive the full protection.

Exclusion of Judicial Review compatible with the doctrine of basicstructure — concept of Judicial Review

Judicial review is justified by combination of 'the principle of separationof powers, rule of law, the principle of constitutionality and the reach ofjudicial review' (Democracy through Law by Lord Styen, Page 131).

The role of the judiciary is to protect fundamental rights. A moderndemocracy is based on the twin principles of majority rule and the need toprotect fundamental rights. According to Lord Styen, it is job of the Judiciaryto balance the principles ensuring that the Government on the basis of numberdoes not override fundamental rights.

Application of doctrine of basic structure

In Kesavananda Bharati's case, the discussion was on the amending powerconferred by unamended Article 368 which did not use the words 'constituentpower'. We have already noted difference between original power of framing theConstitution known as constituent power and the nature of constituent powervested in Parliament under Article 368. By addition of the words 'constituentpower' in Article 368, the amending body, namely, Parliament does not become theoriginal Constituent Assembly. It remains a Parliament under a controlledConstitution. Even after the words 'constituent power' are inserted in Article368, the limitations of doctrine of basic structure would continue to apply tothe Parliament. It is on this premise that clauses 4 and 5 inserted in Article368 by 42nd Amendment were struck down in Minerva Mills case.
The relevance of Indira Gandhi's case, Minerva Mills case and Waman Rao's caselies in the fact that every improper enhancement of its own power by Parliament,be it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of42nd Amendment have been held to be incompatible with the doctrine of basicstructure as they introduced new elements which altered the identity of theConstitution or deleted the existing elements from the Constitution by which thevery core of the Constitution is discarded. They obliterated important elementslike judicial review. They made Directive Principles en bloc a touchstone forobliteration of all the fundamental rights and provided for insertion of laws inthe Ninth Schedule which had no nexus with agrarian reforms. It is in thiscontext that we have to examine the power of immunity bearing in mind that afterKesavananda Bharati's case, Article 368 is subject to implied limitation ofbasic structure.

The question examined in Waman Rao's case was whether the device of Article31-B could be used to immunize Ninth Schedule laws from judicial review bymaking the entire Part III inapplicable to such laws and whether such a powerwas incompatible with basic structure doctrine. The answer was in affirmative.It has been said that it is likely to make the controlled Constitutionuncontrolled. It would render doctrine of basic structure redundant. It wouldremove the golden triangle of Article 21 read with Article 14 and Article 19 inits entirety for examining the validity of Ninth Schedule laws as it makes theentire Part III inapplicable at the will of the Parliament. This results in thechange of the identify of the Constitution which brings about incompatibilitynot only with the doctrine of basic structure but also with the very existenceof limited power of amending the Constitution. The extent of judicial review isto be examined having regard to these factors.

The object behind Article 31-B is to remove difficulties and not toobliterate Part III in its entirety or judicial review. The doctrine of basicstructure is propounded to save the basic features. Article 21 is the heart ofthe Constitution. It confers right to life as well as right to choose. When thistriangle of Article 21 read with Article 14 and Article 19 is sought to beeliminated not only the 'essence of right' test but also the 'rights test' hasto apply, particularly when Keshavananda Bharti and Indira Gandhi cases haveexpanded the scope of basic structure to cover even some of the FundamentalRights.

The doctrine of basic structure contemplates that there are certain parts oraspects of the Constitution including Article 15, Article 21 read with Article14 and 19 which constitute the core values which if allowed to be abrogatedwould change completely the nature of the Constitution. Exclusion of fundamentalrights would result in nullification of the basic structure doctrine, the objectof which is to protect basic features of the Constitution as indicated by thesynoptic view of the rights in Part III.

There is also a difference between the 'rights test' and the 'essence ofright test'. Both form part of application of the basic structure doctrine. Whenin a controlled Constitution conferring limited power of amendment, an entireChapter is made inapplicable, 'the essence of the right' test as applied in M.Nagaraj's case (supra) will have no applicability. In such a situation, to judgethe validity of the law, it is 'right test' which is more appropriate. We mayalso note that in Minerva Mills and Indira Gandhi's cases, elimination of PartIII in its entirety was not in issue. We are considering the situation whereentire equality code, freedom code and right to move court under Part III areall nullified by exercise of power to grant immunization at will by theParliament which, in our view, is incompatible with the implied limitation ofthe power of the Parliament. In such a case, it is the rights test that isappropriate and is to be applied. In Indira Gandhi's case it was held that forthe correct interpretation, Article 368 requires a synoptic view of theConstitution between its various provisions which, at first sight, lookdisconnected. Regarding Articles 31-A and 31-C (validity whereof is not inquestion here) having been held to be valid despite denial of Article 14, it maybe noted that these Articles have an indicia which is not there in Article 31-B.

Part III is amendable subject to basic structure doctrine. It is permissiblefor the Legislature to amend the Ninth Schedule and grant a law the protectionin terms of Article 31B but subject to right of citizen to assail it on theenlarged judicial review concept. The Legislature cannot grant fictionalimmunities and exclude the examination of the Ninth Schedule law by the Courtafter the enunciation of the basic structure doctrine.