The Ninth Schedule Judgement

Y.K. Sabharwal, CJI.

In these matters we are confronted with a very importantyet not very easy task of determining the nature and characterof protection provided by Article 31-B of the Constitution ofIndia, 1950 (for short, the 'Constitution') to the laws added tothe Ninth Schedule by amendments made after 24th April,1973. The relevance of this date is for the reason that on thisdate judgment in His Holiness Kesavananda Bharati,Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC225] was pronounced propounding the doctrine of BasicStructure of the Constitution to test the validity ofconstitutional amendments.

Re : Order of Reference

The order of reference made more than seven years agoby a Constitution Bench of Five Judges is reported in I.R.Coelho (Dead) by LRs. v. State of Tamil Nadu [(1999) 7 SCC580] (14.9.1999) . The Gudalur Janmam Estates (Abolitionand Conversion into Ryotwari) Act, 1969 (the Janmam Act),insofar as it vested forest lands in the Janmam estates in theState of Tamil Nadu, was struck down by this Court inBalmadies Plantations Ltd. & Anr. v. State of Tamil Nadu[(1972) 2 SCC 133] because this was not found to be ameasure of agrarian reform protected by Article 31-A of theConstitution. Section 2(c) of the West Bengal Land HoldingRevenue Act, 1979 was struck down by the Calcutta HighCourt as being arbitrary and, therefore, unconstitutional andthe special leave petition filed against the judgment by theState of West Bengal was dismissed. By the Constitution(Thirty-fourth Amendment) Act, the Janmam Act, in itsentirety, was inserted in the Ninth Schedule. By theConstitution (Sixty-sixth Amendment) Act, the West BengalLand Holding Revenue Act, 1979, in its entirety, was insertedin the Ninth Schedule. These insertions were the subjectmatter of challenge before a Five Judge Bench.

The contention urged before the Constitution Bench wasthat the statutes, inclusive of the portions thereof which hadbeen struck down, could not have been validly inserted in theNinth Schedule.

In the referral order, the Constitution Bench observedthat, according to Waman Rao & Ors. v. Union of India &Ors. [(1981) 2 SCC 362], amendments to the Constitutionmade on or after 24th April, 1973 by which the Ninth Schedulewas amended from time to time by inclusion of various Acts,regulations therein were open to challenge on the ground thatthey, or any one or more of them, are beyond the constituentpower of Parliament since they damage the basic or essentialfeatures of the Constitution or its basic structure. Thedecision in Minerva Mills Ltd. & Ors. v. Union of India &Ors. [(1980) 3 SCC 625)], Maharao Sahib Shri BhimSinghji v. Union of India & Ors. [(1981) 1 SCC 166] werealso noted and it was observed that the judgment in WamanRao needs to be reconsidered by a larger Bench so that theapparent inconsistencies therein are reconciled and it is madeclear whether an Act or regulation which, or a part of which, isor has been found by this Court to be violative of one or moreof the fundamental rights conferred by Articles 14, 19 and 31can be included in the Ninth Schedule or whether it is only aconstitutional amendment amending the Ninth Schedulewhich damages or destroys the basic structure of theConstitution that can be struck down. While referring thesematters for decision to a larger Bench, it was observed thatpreferably the matters be placed before a Bench of nineJudges. This is how these matters have been placed beforeus.

Broad Question

The fundamental question is whether on and after 24thApril, 1973 when basic structures doctrine was propounded, itis permissible for the Parliament under Article 31B toimmunize legislations from fundamental rights by insertingthem into the Ninth Schedule and, if so, what is its effect onthe power of judicial review of the Court.

Development of the Law

First, we may consider, in brief, the factual backgroundof framing of the Constitution and notice the developmentsthat have taken place almost since inception in regard tointerpretation of some of Articles of the Constitution. The Constitution was framed after an in depth study ofmanifold challenges and problems including that of poverty,illiteracy, long years of deprivation, inequalities based oncaste, creed, sex and religion. The independence struggle andintellectual debates in the Constituent Assembly show thevalue and importance of freedoms and rights guaranteed byPart III and State's welfare obligations in Part-IV. TheConstitutions of various countries including that of UnitedStates of America and Canada were examined and afterextensive deliberations and discussions the Constitution wasframed. The Fundamental Rights Chapter was incorporatedproviding in detail the positive and negative rights. It providedfor the protection of various rights and freedoms. Forenforcement of these rights, unlike Constitutions of most ofthe other countries, the Supreme Court was vested withoriginal jurisdiction as contained in Article 32.

The High Court of Patna in Kameshwar v. State ofBihar [AIR 1951 Patna 91] held that a Bihar legislationrelating to land reforms was unconstitutional while the HighCourt of Allahabad and Nagpur upheld the validity of thecorresponding legislative measures passed in those States.The parties aggrieved had filed appeals before the SupremeCourt. At the same time, certain Zamindars had alsoapproached the Supreme Court under Article 32 of theConstitution. It was, at this stage, that Parliament amendedthe Constitution by adding Articles 31-A and 31-B to assistthe process of legislation to bring about agrarian reforms andconfer on such legislative measures immunity from possibleattack on the ground that they contravene the fundamentalrights of the citizen. Article 31-B was not part of the originalConstitution. It was inserted in the Constitution by theConstitution (First Amendment) Act, 1951. The sameamendment added after Eighth Schedule a new NinthSchedule containing thirteen items, all relating to land reformlaws, immunizing these laws from challenge on the ground ofcontravention of Article 13 of the Constitution. Article 13,inter alia, provides that the State shall not make any lawwhich takes away or abridges the rights conferred by Part IIIand any law made in contravention thereof shall, to theextent of the contravention, be void.

Articles 31A and 31B read as under :

"31A. Saving of laws providing foracquisition of estates, etc.

[(1)Notwithstanding anything contained inarticle 13, no law providing for

(a) the acquisition by the State of anyestate or of any rights therein or theextinguishment or modification ofany 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.

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 Rajasthan [(1965) 1 SCR 933] 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.

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?"

In I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh (supra). By majority of six to five, these decisions were overruled. It was held that the constitutional amendment is 'law' within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. It was declared that the Parliament will have no power from the date of the decision (27th February, 1967) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.Soon after Golak Nath's case, the Constitution (24th Amendment) Act, 1971, the Constitution (25th Amendment) Act, Act, 1971, the Constitution (26th Amendment) Act, 1971 and the Constitution (29th Amendment) Act, 1972 were passed.

By Constitution (24th Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4) :

"13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368."

Article 368 was also amended and in Article 368(1) thewords "in exercise of its constituent powers" were inserted. The Constitution (25th Amendment) Act, 1971 amendedthe provision of Article 31 dealing with compensation foracquiring or acquisition of properties for public purposes sothat only the amount fixed by law need to be given and thisamount could not be challenged in court on the ground that itwas not adequate or in cash. Further, after Article 31B of theConstitution, Article 31C was inserted, namely :

"31C.Saving of laws giving effect tocertain directive principles.

Notwithstanding anything contained inarticle 13, no law giving effect to thepolicy of the State towards securing all orany of the principles laid down in Part IVshall be deemed to be void on the groundthat it is inconsistent with, or takes awayor abridges any of the rights conferred byarticle 14 or article 19 and no lawcontaining a declaration that it is for givingeffect to such policy shall be called inquestion in any court on the ground that itdoes not give effect to such policy :

Provided that where such law is made bythe Legislature of a State, the provisionsof this article shall not apply theretounless such law, having been reserved forthe consideration of the President, hasreceived his assent."

The Constitution (26th Amendment) Act, 1971 omittedfrom Constitution Articles 291 (Privy Purses) and Article 362(rights and privileges of Rulers of Indian States) and insertedArticle 363A after Article 363 providing that recognitiongranted to Rulers of Indian States shall cease and privy pursesbe abolished.

The Constitution (29th Amendment) Act, 1972 amendedthe Ninth Schedule to the Constitution inserting therein twoKerala Amendment Acts in furtherance of land reforms afterEntry 64, namely, Entry 65  Kerala Land ReformsAmendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of1971).

These amendments were challenged in KesavanandaBharati's case. The decision in Kesavananda Bharati'scase was rendered on 24th April, 1973 by a 13 Judges Benchand by majority of seven to six Golak Nath's case wasoverruled.