The contention urged on behalf of the respondents thatall the Judges, except Chief Justice Sikri, in KesavanandaBharati's case held that 29th Amendment was valid andapplied Jeejeebhoy's case, is not based on correct ratio ofKesavananda Bharati's case. Six learned Judges (Ray, Phalekar, Mathew, Beg, Dwivedi andChandrachud, JJ) whoupheld the validity of 29th Amendment did not subscribe tobasic structure doctrine. The other six learned Judges (ChiefJustice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ)upheld the 29th Amendment subject to it passing the test ofbasic structure doctrine. The 13th learned Judge (Khanna, J),though subscribed to basic structure doctrine, upheld the 29thAmendment agreeing with six learned Judges who did notsubscribe to the basic structure doctrine. Therefore, it wouldnot be correct to assume that all Judges or Judges in majorityon the issue of basic structure doctrine upheld the validity of29th Amendment unconditionally or were alive to theconsequences of basic structure doctrine on 29th Amendment.
Six learned Judges otherwise forming the majority, held29th amendment valid only if the legislation added to the NinthSchedule did not violate the basic structure of theConstitution. The remaining six who are in minority inKesavananda Bharati's case, insofar as it relates to layingdown the doctrine of basic structure, held 29th Amendmentunconditionally valid.
While laying the foundation of basic structure doctrine totest the amending power of the Constitution, Justice Khannaopined that the fundamental rights could be amendedabrogated or abridged so long as the basic structure of theConstitution is not destroyed but at the same time, upheld the29th Amendment as unconditionally valid. Thus, it cannot beinferred from the conclusion of the seven judges upholdingunconditionally the validity of 29th Amendment that themajority opinion held fundamental rights chapter as not partof the basic structure doctrine. The six Judges which held29th Amendment unconditionally valid did not subscribe to thedoctrine of basic structure. The other six held 29thAmendment valid subject to it passing the test of basicstructure doctrine.
Justice Khanna upheld the 29th Amendment in thefollowing terms:
"We may now deal with the Constitution(Twenty ninth Amendment) Act. This Act,as mentioned earlier, inserted the KeralaAct 35 of 1969 and the Kerala Act 25 of1971 as entries No. 65 and 66 in theNinth Schedule to the Constitution. Ihave been able to find no infirmity in theConstitution (Twenty ninth Amendment)Act."
In his final conclusions, with respect to the Twenty-ninthAmendment, Khanna, J. held as follows:
"(xv) The Constitution (Twenty-ninthAmendment) Act does not suffer from anyinfirmity and as such is valid."
Thus, while upholding the Twenty-ninth amendment,there was no mention of the test that is to be applied to thelegislations inserted in the Ninth Schedule. The implicationthat the Respondents seek to draw from the above is that thisamounts to an unconditional upholding of the legislations inthe Ninth Schedule.
They have also relied on observations by Ray CJ., asquoted below, in Indira Gandhi (supra). In that case, RayCJ. observed:
"The Constitution 29th Amendment Actwas considered by this Court inKesavananda Bharati's case. The 29thAmendment Act inserted in the NinthSchedule to the Constitution Entries 65and 66 being the Kerala Land ReformsAct, 1969 and the Kerala Land ReformsAct, 1971. This Court unanimouslyupheld the validity of the 29thAmendment Act.
The view of sevenJudges in Kesavananda Bharati's case isthat Article 31-B is a constitutionaldevice to place the specified statutes inthe Schedule beyond any attack thatthese infringe Part III of the Constitution.The 29th Amendment is affirmed inKesavananda Bharati's case (supra) bymajority of seven against six Judges.Second, the majority view inKesavananda Bharati's case is that the29th Amendment which put the twostatutes in the Ninth Schedule andArticle 31-B is not open to challenge onthe ground of either damage to ordestruction of basic features, basicstructure or basic framework or on theground of violation of fundamentalrights."
[Emphasis supplied]
The respondents have particularly relied on aforesaidhighlighted portions.
On the issue of how 29th Amendment in KesavanandaBharati case was decided, in Minerva Mills, Bhagwati, J.has said thus
"The validity of the Twenty-ninthAmendment Act was challenged inKesavananda Bharati case but by amajority consisting of Khanna, J. and thesix learned Judges led by Ray, J. (as hethen was) it was held to be valid. Since allthe earlier constitutional amendmentswere held valid on the basis of unlimitedamending power of Parliament recognisedin Sankari Prasad case and SajianSingh's case and were accepted as validin Golak Nath case and the TwentyNinth Amendment Act was also held validin Kesavananda Bharati case, thoughnot on the application of the basicstructure test, and these constitutionalamendments have been recognised asvalid over a number of years andmoreover, the statutes intended to beprotected by them are all falling withinArticle 31A with the possible exception ofonly four Acts referred to above, I do notthink, we would be justified in re-openingthe question of validity of theseconstitutional amendments and hence wehold them to be valid. But, allconstitutional amendments made afterthe decision in Kesavananda Bharaticase would have to be tested by referenceto the basic structure doctrine, forParliament would then have no excuse forsaying that it did not know the limitationon its amending power."
To us, it seems that the position is correctly reflected inthe aforesaid observations of Bhagwati, J. and with respect wefeel that Ray CJ. is not correct in the conclusion that 29thAmendment was unanimously upheld. Since the majoritywhich propounded the basic structure doctrine did notunconditionally uphold the validity of 29th Amendment and sixlearned judges forming majority left that to be decided by asmaller Bench and upheld its validity subject to it passingbasic structure doctrine, the factum of validity of 29thmendment in Kesavananda Bharati case is not conclusive ofmatters under consideration before us.
In order to understand the view of Khanna J. inKesavananda Bharati (supra), it is important to take intoaccount his later clarification. In Indira Gandhi (supra),Khanna J. made it clear that he never opined thatfundamental rights were outside the purview of basicstructure and observed as follows:
"There was a controversy during thecourse of arguments on the point as towhether I have laid down in my judgmentin Kesavananda Bharati's case thatfundamental rights are not a part of thebasic structure of the Constitution. Asthis controversy cropped up a number oftimes, it seems apposite that before Iconclude I should deal with thecontention advanced by learned SolicitorGeneral that according to my judgment inthat case no fundamental right is part ofthe basic structure of the Constitution.
Ifind it difficult to read anything in thatjudgment to justify such a conclusion.What has been laid down in thatjudgment is that no article of theConstitution is immune from theamendatory process because of the factthat it relates to a fundamental right andis contained in Part III of theConstitution——The above observations clearly militateagainst the contention that according tomy judgment fundamental rights are nota part of the basic structure of theConstitution. I also dealt with the matterat length to show that the right toproperty was not a part of the basicstructure of the Constitution. This wouldhave been wholly unnecessary if none ofthe fundamental rights was a part of thebasic structure of the Constitution".
Thus, after his aforesaid clarification, it is not possible toread the decision of Khanna J. in Kesavananda Bharati soas to exclude fundamental rights from the purview of the basicstructure. The import of this observation is significant in thelight of the amendment that he earlier upheld. It is true that ifthe fundamental rights were never a part of the basicstructure, it would be consistent with an unconditionalupholding of the Twenty-ninth Amendment, since its impacton the fundamental rights guarantee would be renderedirrelevant. However, having held that some of thefundamental rights are a part of the basic structure, anyamendment having an impact on fundamental rights wouldnecessarily have to be examined in that light. Thus, the factthat Khanna J. held that some of the fundamental rights werea part of the basic structure has a significant impact on hisdecision regarding the Twenty-ninth amendment and thevalidity of the Twenty-ninth amendment must necessarily beviewed in that light. His clarification demonstrates that hewas not of the opinion that all the fundamental rights were notpart of the basic structure and the inevitable conclusion isthat the Twenty-ninth amendment even if treated asunconditionally valid is of no consequence on the point inissue in view of peculiar position as to majority abovenoted.Such an analysis is supported by Seervai, in his bookConstitutional Law of India (4th edition, Volume III), as follows:
"Although in his judgment in the ElectionCase, Khanna J. clarified his judgment inKesavananda's Case, that clarificationraised a serious problem of its own. Theproblem was: in view of the clarification,was Khanna J. right in holding thatArticle 31-B and Sch. IX wereunconconditionally valid? Could he do soafter he had held that the basic structureof the Constitution could not beamended? As we have seen, that problemwas solved in Minerva Mills Case byholding that Acts inserted in Sch. IX after25 April, 1973 were not unconditionallyvalid, but would have to stand the test offundamental rights. (Para 30.48, page3138)
But while the clarification in the ElectionCase simplifies one problem — the scopeof amending power — it raises complicatedproblems of its own. Was Khanna J.right in holding Art. 31-B (and Sch. 9)unconditionally valid? An answer tothese questions requires an analysis ofthe function of Art. 31-B and Sch.9. Taking Art. 31-B and Sch. 9 first,their effect is to confer validity on lawsalready enacted which would be void forviolating one of more of the fundamentalrights conferred by Part III (fundamentalrights)—.
But if the power of amendment is limitedby the doctrine of basic structure, a graveproblem immediately arises—.The thingto note is that though such Acts do notbecome a part of the Constitution, bybeing included in Sch.9 [footnote: This isclear from the provision of Article 31-Bthat such laws are subject to the power ofany competent legislature to repeal oramend them — that no State legislaturehas the power to repeal or amend theConstitution, nor has Parliament such apower outside Article 368, except wheresuch power is conferred by a few articles.]they owe their validity to the exercise ofthe amending power. Can Acts, whichdestroy the secular character of the State,be given validity and be permitted todestroy a basic structure as a result ofthe exercise of the amending power?That, in the last analysis is the realproblem; and it is submitted that if thedoctrine of the basic structure isaccepted, there can be only one answer.If Parliament, exercising constituentpower cannot enact an amendmentdestroying the secular character of theState, neither can Parliament, exercisingits constituent power, permit theParliament or the State Legislatures toproduce the same result by protectinglaws, enacted in the exercise of legislativepower, which produce the same result.To hold otherwise would be to abandonthe doctrine of basic structure in respectof fundamental rights for every part ofthat basic structure can be destroyed byfirst enacting laws which produce thateffect, and then protecting them byinclusion in Sch. 9. Such a result isconsistent with the view that somefundamental rights are a part of the basicstructure, as Khanna J. said in hisclarification. (Para30.65, pages 3150-3151)
In other words, the validity of the 25thand 29th Amendments raised the questionof applying the law laid down as to thescope of the amending power whendetermining the validity of the 24thAmendment. If that law was correctlylaid down, it did not become incorrect bybeing wrongly applied. Therefore theconflict between Khanna J.'s views on theamending power and on theunconditional validity of the 29thAmendment is resolved by saying that helaid down the scope of the amendingpower correctly but misapplied that lawin holding Art. 31-B and Sch. 9unconditionally valid—. Consistentlywith his view that some fundamentalrights were part of the basic structure, heought to have joined the 6 other judges inholding that the 29th Amendment wasvalid, but Acts included in Sch. 9 wouldhave to be scrutinized by the Constitutionbench to see whether they destroyed ordamaged any part of the basic structureof the Constitution, and if they did, suchlaws would not be protected. (Para30.65,page 3151)"
The decision in Kesavananda Bharati (supra) regardingthe Twenty-ninth amendment is restricted to that particularamendment and no principle flows therefrom.
We are unable to accept the contention urged on behalfof the respondents that in Waman Rao's case JusticeChandrachud and in Minerva Mills case, Justice Bhagwatihave not considered the binding effect of majority judgmentsin Kesavananda Bharati's case. In these decisions, thedevelopment of law post-Kesavananda Bharati's case hasbeen considered. The conclusion has rightly been reached,also having regard to the decision in Indira Gandhi's casethat post-Kesavananda Bharati's case or after 24th April,1973, the Ninth Schedule laws will not have the fullprotection. The doctrine of basic structure was involved inKesavananda Bharati's case but its effect, impact andworking was examined in Indira Gandhi's case, WamanRao's case and Minerva Mills case. To say that thesejudgments have not considered the binding effect of themajority judgment in Kesavananda Bharati's case is notbased on a correct reading of Kesavananda Bharati.On the issue of equality, we do not find any contradictionor inconsistency in the views expressed by JusticeChandrachud in Indira Gandhi's case, by Justice KrishnaIyer in Bhim Singh's case and Justice Bhagwati in MinervaMills case. All these judgments show that violation inindividual case has to be examined to find out whetherviolation of equality amounts to destruction of the basicstructure of the Constitution.
Next, we examine the extent of immunity that is providedby Article 31B. The principle that constitutional amendmentswhich violate the basic structure doctrine are liable to bestruck down will also apply to amendments made to add lawsin the Ninth Schedule is the view expressed by Chief Justice Sikri. Substantially, similar separate opinions were expressedby Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. In thefour different opinions six learned judges came tosubstantially the same conclusion. These judges read animplied limitation on the power of the Parliament to amend theConstitution. Justice Khanna also opined that there wasimplied limitation in the shape of the basic structure doctrinethat limits the power of Parliament to amend the Constitutionbut the learned Judge upheld 29th Amendment and did notsay, like remaining six Judges, that the Twenty-NinthAmendment will have to be examined by a smallerConstitution Bench to find out whether the said amendmentviolated the basic structure theory or not. This gave rise to theargument that fundamental rights chapter is not part of basicstructure. Justice Khanna, however, does not so say inKesavananda Bharati's case. Therefore, KesavanandaBharati's case cannot be said to have held that fundamentalrights chapter is not part of basic structure. Justice Khanna,while considering Twenty-Ninth amendment, had obviously inview the laws that had been placed in the Ninth Schedule bythe said amendment related to the agrarian reforms. JusticeKhanna did not want to elevate the right to property underArticle 19(1)(f) to the level and status of basic structure orbasic frame-work of the Constitution, that explains the ratio ofKesavananda Bharati's case. Further, doubt, if any, as tothe opinion of Justice Khanna stood resolved on theclarification given in Indira Gandhi's case, by the learnedJudge that in Kesavananda Bharati's case, he never heldthat fundamental rights are not a part of the basic structureor framework of the Constitution.
The rights and freedoms created by the fundamentalrights chapter can be taken away or destroyed by amendmentof the relevant Article, but subject to limitation of the doctrineof basic structure. True, it may reduce the efficacy of Article31B but that is inevitable in view of the progress the laws havemade post-Kesavananda Bharati's case which has limitedthe power of the Parliament to amend the Constitution underArticle 368 of the Constitution by making it subject to thedoctrine of basic structure.
To decide the correctness of the rival submissions, thefirst aspect to be borne in mind is that each exercise of theamending power inserting laws into Ninth Schedule entails acomplete removal of the fundamental rights chapter vis-`-visthe laws that are added in the Ninth Schedule. Secondly,insertion in Ninth Schedule is not controlled by any definedcriteria or standards by which the exercise of power may beevaluated.
