Supreme Court of India
GLANROCK ESTATE (P) LTD.versusSTATE OF TAMIL NADU
- Citation
- 2010 INSC 589
- Decided
- 9 September 2010
- Disposal
- Dismissed
- Bench
- S H KAPADIA
Holding
The Constitution (Thirty‑fourth Amendment) Act, 1974 inserting the Janmam Act in the Ninth Schedule does not violate the basic structure and the Act is constitutionally valid.
Summary
The petitioners, Glanrock Estate Ltd., challenged the validity of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act) after it was placed in the Ninth Schedule by the Constitution (Thirty‑fourth Amendment) Act, 1974. They argued that the Act violated Articles 14, 19 and 300A, that the Tamil Nadu Legislature lacked competence to enact it, and that its operation conflicted with the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1972. The Court examined the scope of immunity under Article 31B, the doctrine of basic structure, and the pith‑and‑substance of the Janmam Act, concluding that the amendment did not abrogate the basic structure and that the Act fell within the State's legislative competence. It held that any alleged violation of equality or property rights did not amount to a breach of the basic structure, and that the Janmam Act was valid despite the inclusion of forest lands. Consequently, the petitions were dismissed.
Issues considered
- What is the scope of immunity granted to laws placed in the Ninth Schedule under Article 31B?
- Did the Tamil Nadu Legislature have the constitutional competence to enact the Janmam Act?
- Can the Janmam Act be applied notwithstanding the earlier proceedings under the Ceiling Act of 1972?
Legislation cited
- Constitution (Forty‑fourth Amendment) Act, 1978
- Constitution (Thirty‑fourth Amendment) Act, 1974
- Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969s. 10, s. 11, s. 3, s. 8, s. 9
- Land Acquisition Act, 1894
- Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (as amended by 1972)
Subjects
Article 31Bbasic structure doctrineninth schedulelegislative competenceland reformequality clausejudicial review
Judgment
[2010] 12 S.C.R. 597
GLANROCK ESTATE (P) LTD. A
V.
STATE OF TAMIL NADU
(Writ Petition (Civil) No. 242 of 1988)
SEPTEMBER 9, 2010
B
[S.H. KAPADIA, CJI., K.S. PANICKER
RADHAKRISHNAN AND SWATANTER KUMAR, JJ.]
Constitution of India, 1950:
c
Articles 368, 14, 19, 21, 300A and Ninth Schedule rlw.
Article 31 B - Immunity to laws inserted in Ninth Schedule -
Scope of - Constitutional validity of Janmam Act upheld in
Balmadies case* except the provisions thereof which
provided for acquisition of forest Land - Insertion of the Act
0
in the Ninth Schedule - Proceedings in respect of the land
in question, under Janmam Act - Challenged - High Court
upheld the proceedings - On appeal, matter referred to
Constitution Bench of Supreme Court - The Constitution
Bench in l.R. Coe/ho's case*** held that Article 31B was valid
- Plea that insertion of the Act in the Ninth Schedule E
abrogated the basic structure of the Constitution, namely,
· judicial review, rule of law, separation of powers and principle
of equality and hence not validated under Article 31 B - Held:
Inclusion of Janmam Act in the Ninth Schedule by Thirty-
-fourth constitutional amendment did not amount to violation F
of doctrine of basic structure - The challenge to the thirty-
fourth amendment is based on the right to property in the garb
of over-arching principles like separation of powers, rule of law
and abrogation of power of judicial review - Gudalur Janmam
Estates (Abolition and Conversion into Ryotwari) Act, 1969. G
Article 368 - Power to amend the Constitution - Nature
and limitations of - Held: Power to amend the Constitution is
a derivative power - Therefore, it is subject to two limitations
597 H
598 SUPREME COURT REPORTS [2010) 12 S.C.R.
A i.e. doctrine of basic structure and lack of legislative
competence -- The concepts like secularism, democracy,
separation of powers, power of judicial review fall outside the
scope of amendatory powers of Parliament under Article 368
- Doctrine of Basic Structure ..
B
Article 14 - It is only that breach of principle of equality
which is of the character of destroying the basic framework of
the Constitution, which will not be protected by Article 31 B and
not every breach of principle of equality - In cases of violation
of Article 14 distinction between constitutional law and ordinary
C law is required to be kept in mind - Ordinary law can be
challenged on the touchstone of Article 14 - Constitutional
amendment violating any over-arching principle in the
Constitution i.e. concepts like secularism, democracy.
separation of powers, power of judicial review fall outside the
D scope of amendatory powers of Parliament under Article 368
- If any of these were to be deleted, it would require changes
to be made not only in Part Ill of the Constitution but also in
Articles 245 and the three Lists of the Constitution resulting
in the change of the very structure or framework of the
E Constitution.
Seventh Schedule, List Ill Entry 42 and List II Entry 18 -
Article 31 (2) - Enactment of Guda/ur Janmam Estates
(Abolition and Conversion into Ryotwari) Act, 1969 - Whether
F the enactment liable to be struck down for lack of legislative
competence - Held: The requirement of public purpose and
compensation are not legislative requirements of the
competence of Legislature to make laws under Entry 18 of List
II or Entry 42 of List Ill, but are conditions and restrictions
under Article 31 (2) - Thus, the Act received immunity from
G Article 31 (2) with retrospective effect, when it was included in
the Ninth Sche1du/e - In pith and substance, the Act was in
respect of 'Land' and 'Land tenure" under Entry 18 of List II -
Thus. the Act not liable to be struck down for lack of legislative
competence -- Gudalur Janmam Estates (Abolition and
H
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 599
NAOU
Conversion into Ryotwari) Act, 1969. A
Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 - Applicability of the Act - The Act notified
in 1974 - Proceedings in respect of the land in question
initiated under Ceiling Act, before the date of notification of
8
the Janmam Act - After the notification, proceedings initiated
under Janmam Act in respect of the land in question - Held:
Even if the proceedings had been initiated under the Ceiling
Act, it was open to the State to act according to provisions of
the Janmam Act - Tamil Nadu Land Reforms (Fixation of
Ceiling on Land) Act, 1961 [As amended by Tamil Nadu C
Reforms (Fixation of Ceiling on Land) Second Amendment
Act, 1972 (Act 20 of 1972).
Doctrines/Principles:
0
Doctrine of basic structure - Discussed. ·
Doctrine of pith and substance - Applicability of.
Over-arching principles in the Constitution of India -
Discussed. E
Words & Phrases.
'Equalitarian equality', 'inter-generational equity' and
'sustainable development' - Meaning of.
F
In 1961 the Tamil Nadu Land Reforms (Fixation of
Ceiling on Land) Act, 1961 (Land Reforms Act, 1961) was
enacted. Thereafter, Gudalur Janmam Estates (Abolition
and Conversion into Ryotwari) Act, 1969 (Janmam Act)
was enacted providing for acquisition of the rights of G
janmis in Janmam Estates in the Gudalur Taluk of the
Nilgiris district and for the introduction of Ryotwari
settlement in such estates. The constitutional validity of
the Janmam Act was upheld by the High Court. In appeal,
the Constitution Bench of the Supreme Court in
H
600 SUPREME COURT REPORTS [2010) 12 S.C.R.
A Balmadies Plantations Ltd. vs. State of Tamil Nadu held that
the Act was immune to challenge from Articles 14, 19 and
31 of the Constitution, as the same was an Act for
acquisition of an estate under Article 31A. However,
acquisition of the forest land under the Act was held
B violative of the Constitution, as the same could not be
considered as agrarian reform under Article 31A.
In the meantime, Land Reforms Act, 1961 (Principal
Act) was amended by Tamil Nadu Land Reforms (Fixation
of Ceiling o:i Land) Second Amendment Act, 1972 (Act 20
C of 1972), whereby the provisions of the principal Act were
extended. The Ceiling Act (Act 20 of 1972) was notified
and made applicable to hill areas. Proceedings were
initiated under the Ceiling Act, in respect of non-
plantation lands of the petitioners. However, the
D proceedings under the Ceiling Act were temporarily
deferred.
Janmam Act was inserted in the Ninth Schedule of
the Constitution, by Constitution (Thirty Fourth
E Amendment) Act, 1974. Thereafter, proceedings were
initiated under Janmam Act in respect of the land of the
petitioners. Petitioners filed writ petitions seeking
direction to the State to complete the proceedings under
the Ceiling Act and to refrain from proceeding under the
F Janmam Act. The High Court dismissed the writ petitions.
SLPs were preferred against the order. Writ petitions were
also filed before the Supreme Court. The matters were
referred to the Constitution Bench which was further
referred to larger Bench of nine Judges. The nine Judge
Constitution Bench in l.R. Coelho vs. State of Tamil Nadu
G answered the reference by holding Article 31 B to be valid
and directed the instant cases to be placed before a three
Judge Bench. The points for consideration before the
three Judge Bench were:
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NADU
(a) What was the scope of immunity to laws inserted A
in the Ninth
Schedule of the Constitution r/w Article 31 B?
(b) Whether the Tamil Nadu State Legislature lacked
B
legislative
competence to enact Janmam Act? and
(c) Whether the Janmam Act could not be applied
because of the Ceiling Act (Act 20 of 1972)? c
Dismissing the appeals and the writ petition, the
Court
HELD:
D
Per S.H. Kapadia, CJI: (For himself and .for Swatanter
Kumar, J.)
1.1 In a rigid Constitution, power to amend the
Constitution is a derivative power, which is an aspect of
the constituent power. Since the power to amend the E
Constitution is a derivative power, the exercise of such
power to amend the Constitution is subject to two
limitations, namely, the doctrine of basic structure and
lack of legislative competence. The doctrine of basic
structure is brought in as a window to keep the power F
of judicial review intact, as abrogation of such a power
would result in violation of basic structure. [Para 8] [623-
A-C)
. 1.2 Discrimination or arbitrary classification G
constitutes violation of Article 14 of the Constitution. In
. this connection, the distinction between constitutional
law and ordinary law in a rigid Constitution like that of
India is to be kept in mind. The said distinction proceeds
on the assumption that ordinary law can be challenged
H
602 SUPREME COURT REPORTS (2010] 12 S.C.R.
A on the touchstone of the Constitution. Therefore, when
an ordinary law seeks to make a classification without
any rational basis and without any nexus with the object
sought to be achieved, such ordinary law could be
chal!enged on the touchstone of Article 14 of the
B Constitution. However, when it comes to the validity of a
constitutional amendment, one has to examine the validity
of such amendment by asking the question as to
whether such an amendment violates any over-arching
principle in the Constitution. The concepts like
c secularism, aemocracy, separation of powers, power of
judicial review fall outside the scope of amendatory
powers of the Parliament under Article 368. If any of these
were to be deleted, it would require changes to be made
not only in Part Ill of the Constitution but also in Articles
0 245 and the three Lists of the Constitution resulting in the
change of the very structure or framework of the
Constitution. When an impugned Act creates a
classification without any rational basis and having no
nexus with the objects sought to be achieved, the
E principle of equality before law is violated undoubtedly.
Such an Act can be declared to be violative of Article 14.
Such a violation does not require re-writing of the
Constitution. This would be a case of violation of ordinary
principle of equality before law. [Para 8] [623-D-H; 624-A]
F 1.3 "Egalitarian equality" is also a much wider
concept. When the Court talks about concepts of 'inter-
generational equity' and 'sustainable development'
which came to be discussed in the case of T.N.
Godavarman vs. Union of India, an ordinary principle of
G equality is being elevated to the level of over-arching
principle. Equality doctrine has various facets. It is in this
sense that in l.R. Coelho case, this Court has read Article
21 with Article 14. Therefore, it is only that breach of the
principle of equality which is of the character of
H
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destroying the basic framework of the Constitution which A
will not be protected by Article 31 B. If every breach of
Article 14, however, egregious, is held to be unprotected
by Article 31 B, there would be no purpose in protection
by Article 31 B. [Para 8] [624-B-H; 625-A]
B
1.4 Article 368 of the Constitution does not vest such
a power in Parliament whereby Parliament can increase
its amending power by amendment of Article 368, so as
to confer on itself the unlimited power of amendment and
destroy and damage the fundamentals of the
Constitution. It cannot lift all limitations/ restrictions C
placed on the amending power or free the amending
power from all limitations. This is the effect of the
decision in Kesavananda Bharati** case. When
constitutional law is challenged, one has to apply the
"effect test" to find out the degree of abrogation. This is D
the "degree test". If one finds that the constitutional
amendrr.ent seeks to abrogate core values/ over-arching
principles like secularism,· egalitarian equality, etc. and
which would warrant re-writing of the Constitution then
such constitutional law would certainly violate the basic E
structure. In other words, such over-arching principles
would fall outside the amendatory power under Article
368 in the sense that the said power cannot be exercised
even by the Parliament to abrogate such over-arching
principles. [Para 8] [625-B-E] F
**His Holiness Kesavananda Bharati Sripadaga/varu v.
State of Kera/a 1973 (4) SCC 225; Smt. Indira Nehru Gandhi
V. Shri RajNarain 1975 (Supp.) sec 1- referred to.
1.5 Very often the expression "Rule of Law" is used G
to convey the idea of a Government that is limited by law.
The expression "Rule of Law" describes a society in
which Government must act in accordance with law. A
society governed by law is the foundation of personal
liberty. It is also the foundation of economic development H
604 SUPREME COURT REPORTS [2010J 12 S.C.R.
A since investment will not take place in a country where
rights are not respected. It is in that sense that the
expression "Rule of Law" constitutes an overarching
principle embodied in Article 21, one aspect of which is
equality. It is in that context that this Court has used the
B phrase "Article 21 read with Article 14" in the judgment
in the case of IR. Coelho.***[Para 8] [625-F-H; 626-A]
***l.R. Coelho vs. State of Tamil Nadu 2007 (2) SCC 1
- followed and explained.
C 1.6 In the instant case, the Court is concerned with
the validity of the Constitution (Thirty-fourth Amendment)
Act, 1974. It is true that all lands including forests falling
in the janmam estate vest in the State u/s. 3 of the
Janmam Act. Under that Act, the State gave pattas for
D cultivable lands though such pattas were not given for
forests wl')ich vested in the State. It is also true that after
Act 20 of 1972 forests which earlier stood exempted from
the provisions of the Land Reforms Act, 1961 (principal
Act) got included in the Ceiling Act (Act 20 of 1972).
E Therefore, on and after 1.3.1972, the holder was entitled
to hold the lands subject to ceiling including forests
under the Ceiling Act (Act 20 of 1972) whereas forests
falling in Janmam estate vested in the State. It is the case
of the petitioners that by reason of the forests vesting in
F the State under the Janmam Act "the rule of equality in
law" stood violated which violation amounted to
abrogation of Article 14. [Para 9] [626-E-H]
1.7 The doctrine of classification under Article 14 has
several facets and none of those facets have been
G abrogated by the Constitution (Thirty-fourth Amendment)
Act, 1974. Equality is a comparative concept. A person
is treated unequally only if that person is treated worse
than others, and those others (the comparison group)
must be those who are "similarly situated" to the
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complainant. The "similarly situated test" is not attracted A
in the instant case for the simple reason that the two Acts,
namely, the Janmam Act, which seeks to abolish a tenure,
is distinct and separate from the Ceiling Act (Act 20 of
1972). Therefore, in the present case, not even an
ordinary principle of equality under Article 14, leave aside B
the egalitarian equality as an over-arching principle, is
violated. Even assuming for the sake of argument that
Article 14 stood violated, even then the Janmam Act in
any event stood validated by its insertion in the Ninth
Schedule vide Constitution (Thirty-fourth Amendment) C
Act, 1974. [Para 9] [627-C-E]
1.8 In the instant case, the essence of the challenge
to the Constitution (Thirty-fourth Amendment) Act, 1974,
is in the context of "right to property". By the
Constitution (Forty-fourth Amendment) Act, 1978, "right D
to property" has ceased to be a fundamental right under
Article 19(1 )(f). The Constitution first, seventeenth,
twenty-fifth, twenty-sixth, twenty-ninth amendments were
all in the context of "right to property". The challenge to
the Constitution twenty-fourth amendment on the ground E
of unlimited power to amend the Constitution was also
in the context of right to property. The challenges to all
these Constitutional amendments have been negatived.
In the instant case, in the garb of "rule of law" and
"separation of powers", the challenge is laid against the F
Constitution (Thirty-fourth Amendment) Act, 1974, which,
in essence, is the challenge in the context of "right to
property". [Paras 6] [619-F-H; 620-A-C]
1.9 One of the reasons for deletion of the "right to
property" from Part Ill of the Constitution vide the G
Constitution (Forty-fourth Amendment) Act, 1978 was
that the economic liberties of freedom of property came
in direct conflict with egalitarian values including inter-
generational equity. This aspect needs to be kept in
H
·---- ---·--
606 SUPREME COURT REPORTS (2010] 12 S.C.R.
A mind, as in the instant case the substantive challenge to
the Constitution (Thirty-fourth Amendment) Act, 1974 is
based on the right to property in the garb of over-arching
principles like separation of powers, rule of law and
abrogation of the power of judicial review. [Para 9] [627-
B A-8]
1.10 It is not correct to say that inclusion of the
Janmam Act in the Ninth Schedule amounted to direct
negation and abrogation of judicial review as the
impugned Constitution (Thirty-fourth Amendment) Act,
c 1974 confers naked power on the Parliament to obliterate
the judicial decision in Balmadies case* which became
final, without changing the basis of the decision or the
law and, thernfore, the said impugned Constitutional
Amendment Act destroys the basic feature of the
D Constitution, namely, judicial review. The amending
power under Article 368 of the Constitution is a derivative
power. The doctrine of basic structure provides a
touchstone on which the validity of the Constitutional
Amendment Act could be judged. While applying this
E doctrine, one need not go by the content of a "right" but
by the test of justifiability under which one has to see the
scope and the object of the Constitutional Amendment.
[Para 9] [626-B-0]
F *Balmadies Plantations Ltd. v. State of Tamil Nadu 1972
(2) sec 133 -· relied on and explained.
1.11 It cannot be said that the Parliament has
obliterated the judicial decision of this Court in Balmadies
case without changing its basis. On reading the judgment
G of the Constitution Bench in Balmadies case, in its
entirety, it is found that although the Janmam Act was
challenged on the ground nf the Act being violative of
Articles 14, 19 and 31, this Court in Balmadies case struck
down Section 3 to the extent of acquisition of forests in
H
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 607
NADU
the Janmam estate only on the ground that there was A
nothing in the Janmam Act (Act 24 of 1969) to show the
purpose for which the forest lands stood acquired and,
therefore, this Court gave a declaration that in the
absence of anything in the Act to show the purpose for
which forest lands stood acquired, protection under B
Article 31A was not available. From this it cannot be said
that this Court in Balmadies case has held that Section
3, insofar as forests are concerned, violated Articles 14,
19 and 31 of the Constitution. The judgment of the
Constitution Bench in Balmadies case was delivered on c
19.4.1972. Even assuming for the sake of argument that
the Janmam Act so far as the forests are concerned, was
held to be violative of Articles 14 and 19 of the
Constitution in Balmadies case, still it cannot be said that
the Constitution (Thirty-fourth Amendment) Act, 1974
0
conferred naked power on the Parliament to obliterate the
judicial decision in Balmadies case without changing the
basis of the decision because it is pursuant to such
declaration by the Constitution Bench of this Court in
Balmadies case that the Parliament inserted the Janmam
E
Act into the Ninth Schedule by invoking Article 31A. [Para
7] [621-F-H; 622-A-D]
Balmadies Plantations Ltd. v. State of Tamil Nadu 1972
(2) sec 133 - relied on and explained.
F
Smt. Indira Nehru Gandhi v. Shri Raj Narain 1975
(Supp.) SCC 1 - distinguished.
2. There is no merit in the plea that the Tamil Nadu
Legislature had no legislative competence to enact the
Janmam Act. The legislative competence of the Tamil G
Nadu Legislature to enact the Janmam Act was not in
issue in Balmadies case. Further, Balmadies case did not
hold that there was no public purpose in acquisition of
forests. It only held that there was nothing in the Act to
H
608 SUPREME COURT REPORTS [2010] 12 S.C.R.
A show that acquisition of forests would be for agrarian
reform. Consequently, it was held in Balmadies case that
acquisition could not get protected under Article 31A. It
is correct to say that the Janmam Act is a piece of
legislation for abolishing feudal tenure and is a measure
B of land reform in pursuance of Directive Principles of
State Policy. Even assuming that there was no public
purpose in the acquisition of forests, the requirement of
public purpose and compensation are not legislative
requirements of the competence of Legislature to make
c laws under Entry 18 of List II or Entry 42 of List 111, but
are conditions or restrictions under Article 31 (2) of the
Constitution as the said Article stood in 1969. 8reach of
such conditions would attract only Part Ill challenge.
Therefore, when the Janmam Act was put in the Ninth
0 Schedule in 1974, the Act received immunity from Article
31(2) with retrospective effect. Lastly, in pith and
substance, the Janmam Act was in respect of "land" and
"land tenure" under Entry 18, List II of the Constitution.
[Para 13] [629-8-C; 630-A-C]
E Balmadies Plantations Ltd. v. State of Tamil Nadu 1972
(2) sec 133 - relied on and explained.
State of Kera/a v. The Gwalior Rayon Silk Manufacturing
(WVG.) Co. Ltd. Etc. (1973) 2 SCC 713; The State of Bihar
F v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and
Ors. 1952 SCR 889 - relied on.
3. There is no merit in the plea that both the Acts,
namely, the Jammam Act and Act 20of1972 (Ceiling Act),
operated in the same field and, consequently, it was not
G open to the State Government to act according to the
provisions of the Janmam Act. Firstly, because the
Janmam Act was enacted to provide for acquisition of the
rights of janmis in Janmam estate in the Gudalur taluk of
the Nilgiris district and for introduction of ryotwari
H settlement in such estates. The scope of the Janmam Act
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 609
NADU
was entirely different from the Ceiling Act for the simple A
reason that the Janmam Act was enacted to acquire the
rights of janmis in Janmam estates in Gudalur taluk and
to introduce ryotwari settlement, whereas the object
behind enactment of the Ceiling Act was to fix a ceiling
on the land holdings and to distribute the excess lands B
to the landless and agricultural population. Therefore, the
scope and ambit of the two Acts are completely different
and they operate in different spheres. Secondly, because
the Ceiling Act came into force from 1.3.1972. Prior to that
date, forests stood exempted from the provisions of the c
1961 Act (principal Act). It is only on and after 1.3.1972
that forests stood included in the 1961 Act by virtue of
the Ceiling Act. Before ceiling could be determined and
before compensation could be paid for excess lands
which vested in the State under the Ceiling Act, the
0
Janmam Act came into force on 27.11.1974 under which
the forests vested in the State. The main focus of the
Ceiling Act was to fix a ceiling of agricultural land holding
and to distribute the excess lands to the landless and
other agricultural population. The scope of the Ceiling Act E
was made wide enough to cover the lands in the hilly
areas. Thus before the excess lands could be determined
for vesting in the State under the Ceiling Act, the Janmam
Act came into force, which operated in a different sphere
vis-a-vis the Ceiling Act. [Para 14] [630-E-H; 631-A-E]
F
Per K.S. Panicker Radhakrishnan, J. (Concurring) :
HELD:
1. Fundamental rights enshrined in Part Ill of the
Constitution of India can be extinguished by G
constitutional amendments and if it abrogates or abridges
such rights, would not as such, abrogate or abridge the
basic structure. The test is whether it has the effect of
nullifying the over-arching principles of equality,
secularism, liberty and so on, especially when such a law H
•
610 SUPREME COURT REPORTS [2010] 12 S.C.R.
A is placed in the 9th Schedule. [Para 15] [643-D-E]
2. Right to Equality before law, Right to Equality of
Opportunity in matters of public employment, Right to
Protection of life and personal liberty, Right against
B Exploitation, Right to Freedom of Religion etc. are all
fundamental rights guaranteed under Part Ill of the
Constitution and a common thread running through all
the Articles in Part Ill of the Constitution have a common
identity committed to an over-arching principle which is
the basic structure of the Constitution. Rule of law is
c often said as closely inter-related principle and when
interpreted as a principle of law, it envisager separation
of powers, judicial review, restriction on the absolute and
arbitrary powers, equality, liberty etc. Separation of
powers is integral part of rule of law which guarantees
D independence of judiciary which is a fundamental
principle viewed as a safeguard against arbitrary exercise
of powers, legislative and constitutional. Doctrine of
absolute or unqualified parliamentary sovereignty is
antithesis to rule of law. Doctrine of parliamentary
E sovereignty may, at times, make rule of law and
separation of powers subservient to the wish of the
majority in parliament. Parliamentary supremacy cannot
be held unqualified so as to undo the basic structure.
Basic structure doctrine is, in effect, a constitutional
F limitation against parliamentary autocracy. The principles
of equality inherent in the rule of law is not averse to the
imposition of special burdens, grant special benefits and
privileges to secure to all citizens justice, social and
economic and for implementing the directive principles
G of state policy for establishing an egalitarian society.
Thus, the over-arching principles would fall outside the
amendatory power under Article 368 and the petitioner in
the case has not succeeded in establishing that any of
those principles have been violated. [Paras 12 and 13]
H [641-D-H; 642-A-Cl
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 611
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I. R. Coelho (Dead) by L. Rs. v. State of Tamil Nadu A
(2007) 2 sec 1 - followed.
Ashok Kumar Thakur v. Union of India and Ors. (2008)
6 SCC 1; State of West Bengal and Ors. v. Committee for
Protection of DemocraticRights, West Bengal and Ors. 2010
8
. (3) sec 571 - relied on.
3. Right not to be deprived of property, save by
authority of law is no longer a fundamental right, but only
a constitutional right which has never been treated as
part of the basic structure of the Constitution. Hence it C
is not correct to say that Section 3 of Janmam Act
violates Articles 14 and 300A of the Constitution.
Petitioner has not succeeded in establishing that the Act
or its provisions have violated any of the fundamental
rights guaranteed to them and, therefore, the petitioner D
has failed to satisfy the first test laid down in Coelho's
case. i.e. Article 21 rlw Articles 14, 15 and 19, if abrogated
would result in nullification of the basic structure
doctrine and the laws included in the Ninth Schedule after
24.4.1973, would not have absolute immunity and, thus, E
validity of such laws could be challenged on the
touchstone of basic structure. Consequently, the
question whether the Janmam Act and its provisions
have violated the basic structure of the Constitution does
not call for examination. [Para 11) [640-G-H; 641-A] F
4. The plea raised alleging violation of Articles 14 and
300A cannot stand, since the petitioner is holding private
forest by way of janmam, which are rights of hereditary
proprietorship and those rights are like the rights created
by grant of jagir or inam relating to land. The object and G
purpose of Janmam Act is to do away with such
hereditaryship. Janmam estate which takes in forests,
mines and minerals, quarries, rivers and streams, tanks
and irrigation work, fisheries and so on, stood vested in
the State, free from all encumbrances. Janmies are also H
612 SUPREME COURT REPORTS (2010] 12 S.C.R.
A entitled to get ryotwari patta in respect of all lands, if they
establish that they have been cultivating lands for a
continuous period of three agricultural years immediately
before the 1st day of June, 1969. Provision for payment
of compensation has also been provided under the Act.
B [Para 1O] [640-D-F]
Manjushree Plantation Ltd. and Ors. v. State of Tamil
Nadu and Ors 1989 (3) SCC 282; Waman Rao and Ors. etc.
v. Union of India and Ors. 1981 (2) SCC 362; His Holiness
C Kesavananda Bharati Sripadagalvaru etc. v. State of Kera/a
and Anr (1973) 4 SCC 225; M. Nagraj and Ors. v. Union of
India and Ors. (2006) 8 SCC 212; Sri Sankari Prasad Singh
Dea v. Union of India and State of Bihar (1952) SCR 89;
Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1;
Balmadies Plantations Ltd. and Anr etc. v. State of Tamil
0 Nadu (1972) 2 Sec 133; State of Kera/a and Anr. v. The
Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc. (1973)
2 SCC 713; Kavalappara Kottarathil Kochuni and Ors. vs.
State of Madras and Ors. (1960) 3 SCR 887; State of UP.
v. Raja Anand Brahma Shah (1967) 1 SCR 362 - referred
E to.
Case Law Reference:
In the Judgment of S.H. Ka12adia 1 eJI.
F 1975 (Supp.) sec 1 distinguished Para 7
2001 (2) sec 1 followed and
explained Para 8
1973 (4) sec 225 referred to Para 8
G 1975 (Supp.) sec 1 distinguished Para 8
(1973) 2 sec 713 relied on Para 13
1952 SeR 889 relied on Para 13
1912 (2) sec 133 relied on and
H explained Para 13
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 613
NADU
In the Judgment of K.S. Panicker Radhakrishnan, J. A
1989 (3) sec 282 Referred to Para 1
1981 (2) sec 362 Referred to Para 1
(1973) 4 sec 225 Referred to Para 1 B
(2006) 8 sec 212 Referred to Para 1
(1952) SCR 89 Referred to Para 1
(1975) Supp sec 1 Referred to. Para 1
c
(1972) 2 sec 133 Referred to Para 4
(1973) 2 sec 113 Referred to Para 5
(1960) 3 SCR 887 Referred to Para 5
(1967) 1 SCR 362 Referred to Para 5 D
(2008) 6 sec 1 Relied on Para 14
201 o (3) sec 571 Relied on Para 14
(2001) 2 sec 1 followed Para 14 E
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
242 of 1988.
With
F
Writ Petition No. 408 of 2003, C.A. No. 1344-1345 of 1976.
K.V. Viswanathan, A.S. Nambiar, P.H. Parekh, T.R.
Andhyarujina, A. Mariarputham, Joseph Pookkatt, Anurag
Sharma, Prashant Kumar, P.K. Manohar, Sewa Ram, R.K.
Bachchan, Sameer Parekh, E.R. Kumar, Ranjeeta Rohtagi, G
Shakun Sharma, Nitin Thukral, Rukhmini Bobde (for Parekh &
Co.), S.C. Paul, Roopa Paul, Saurabh Yadava, Kusum
Chaudhary, R. Nedumaran, Soumik Ghosal, Vimal Dubey for
the appearing parties.
H
614 SUPREME COURT REPORTS (2010] 12 S.C.R.
A The Judgment of the Court was delivered by
S. H. KAPADIA, CJI 1. Some doctrines die hard. That
certainly is true of the doctrine of basic structure of the
Constitution.
B 2. Against this backdrop, we need to examine the
constitutional validity of the Constitution (Thirty-fourth
Amendment) Act, 1974. By the said Amendment Act, the
Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 [for short "the Janmam Act (Act 24 of
C 1969)"] stood inserted in the Ninth Schedule to the Constitution
as Item No. 80.
Facts
- -
3. In 1961, the Tamil Nadu Land Reforms (Fixation of
D Ceiling on Land) Act, 1961 (for short "the 1961 Act"] was
enacted. However, by virtue of Section 73(v), the said Act was
made inapplicable to Hill Areas. On 6.12.1969, the Janmam
Act (Act 24 of 1969) was enacted but not notified till
27.11.1974. Thei Janmam Act (Act 24 of 1969) was enacted
E inter alia to provide for acquisition of the rights of janmis in
Janmam estates in the Gudalur taluk of the Nilgiris district and
for the introduction of ryotwari settlement in such estates. On
26.10.1970, the~ Madras High Court dismissed nine writ
petitions filed by the janmis challenging the constitutional validity
F of the Janmam Act (Act 24 of 1969). By a judgment dated
19.4.1972 delivered by a Constitution Bench of this Court in
the case of Balmadies Plantations Ltd. v. State of Tamil Nadu
[(1972) 2 SCC 133], it was held that the Janmam Act (Act 24
of 1969) was immune to challenge from Articles 14, 19 and 31
G as it was an Act for acquisition of an estate under Article 31A
with one exception of acquisition of forest lands which could
not be considered as agrarian reforms under Article 31A in the
absence of anything in the Act to show the purpose for which
the forest land stood acquired (see para 18). Consequently,
H acquisition of forest lands was held to be violative of the
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 615
NADU [S.H. KAPADIA, CJI.]
Constitution. Meanwhile on 29.6.1972, the Tamil Nadu Land A
Reforms (Fixation of Ceiling on Land) Second Amendment Act,
1972 (Act 20 of 1972) [for short "the Ceiling Act (Act 20 of
1972)"] was passed so as to extend the provisions of the
principal Act. Proceedings were initiated under the Ceiling Act
(Act 20 of 1972) in regard to non-plantation lands of the B
petitioner(s) (plantations being exempted from the purview of
the Ceiling Act (Act 20 of 1972)). Under the Ceiling Act (Act
20 of 1972), a family was not entitled to hold lands in excess
of the ceiling area, i.e., 15 standard acres [see Section 5 read
with Section 7 of the Ceiling Act (Act 20 of 1972)]. Hence, C
under the Ceiling Act (Act 20 of 1972), the petitioner(s) was
entitled to hold 15 standard acres per family. On 1. 7.1972, the
Ceiling Act (Act 20 of 1972) was notified and made applicable
to Hill Areas. Thus, 1.7.1972 became the notified date under
Section 3(31) of the Ceiling Act (Act 20 of 1972). By the Ceiling D
Act (Act 20 of 1972), it was inter alia provided that if by virtue
of the Ceiling Act (Act 20 of 1972) the total extent of the land
held by any person exceeded the ceiling area then in relation
to such person the date of commencement of the Ceiling Act
(Act 20 of1972) will mean 1.3.1972. On 20.11.1972, the
petitioner(s) herein submitted their returns under the Ceiling Act E
(Act 20 of 1972). On 24. 7.1973, the authorized officer wrote
to the petitioner(s) that he would inspect their estates on
4.8.1973. On 24.4.1973 came the decision of this Court in His
Holiness Kesavananda Bharati Sripadaga/varu v. State of
Kera/a [(1973) 4 SCC 225]. This date, namely, 24.4.1973 is F
crucial as it is the cut-off date under the judgment of this Court
in Waman Rao v. Union of India [(1981) 2 SCC 362]. It was
held in Waman Rao (supra) that all amendments to the
Constitution made on or after 24.4.1973 and by which the Ninth
Schedule to the Constitution stood amended from time to time G
by inclusion of various Acts and Regulations therein were open
to challenge on the ground that they, or anyone or more of them,
are beyond the constituent power of the Parliament since they
damage the basic or essential features of the Constitution or
its basic structure. Consequently, all such amendments to the H
616 SUPREME COURT REPORTS (2010] 12 S.C.R.
A Constitution made on or before 24.4.1973, by which the Ninth
Schedule stood amended from time to time, were held to be
valid and constitutional. On 17.8.1973, the authorized officer
under the Ceiling Act (Act 20 of 1972) informed the petitioner(s)
that the action under the Ceiling Act (Act 20 of 1972) stood
B temporarily deferred. Soon thereafter on 7.9.1974, the
Janmam Act (Act 24 of 1969) was inserted as Item No. 80 in
the Ninth Schedule of the Constitution by the Constitution (Thirty-
fourth Amendment) Act, 1974. On 25.11.1974, the Collector
of Nilgiris issued a notice to the petitioner(s) herein asking them
c to hand over the possession of their lands under the Janmam
Act (Act 24 of 1969). On 27.11.1974, as stated above, the
Janmam Act (Act 24 of 1969) stood notified. Till this date, no
proceedings were taken under the Ceiling Act (Act 20 of 1972).
Hence, ceiling was not determined till that date. In fact on
16.12.1974, writ petitions were filed by the petitioner{s) herein
0
seeking a direction to the State to complete proceedings under
the Ceiling Act (Act 20 of 1972) and to refrain from proceeding
under the Janmam Act (Act 24 of 1969). On 23.9.1976, the
writ petitions were dismissed by the Madras High Court against
E which Special LeavH Petition No. 8994 of 1976 was filed in this
Court; leave was granted by this Court as Civil Appeal No.
1345 of 1976. In 1988, writ petition No. 242 of 1988 was also
filed by the petitioner(s) under Article 32 of the Constitution in
which vide order dated 17.2.1989, a Division Bench of this
Court referred the case to the Constitution Bench [see (1989)
F 3 SCC 282]. On 14.9.1999, a Constitution Bench of this Court
referred the matters to a larger Bench of 9-Judges [see (1999)
7 SCC 580]. Finally, by a judgment of 9-Judge Constitution
Bench dated 11.1.2007 in Civil Appeal Nos. 1344-45 of 1976
etc. etc. reported as l.R. Coelho v. State of Tamil Nadu [(2007)
2 sec 1], this Court answered the reference by holding Article
~
..:i
31 Bas introduced by the Constitution (First Amendment) Act,
1951 to be valid. Applying the tests laid down in l.R. Coelho's
case, tMe 9-Judge Constitution Bench directed the Civil Appeal
Nos. 1344-45 of 1976 with Writ Petition Nos. 242 of 1988 and
H 408 of 2003 to be placed for hearing before a 3-Judge Bench
•
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 617
1 NADU [S.H. KAPADIA, CJI.]
for decision in accordance with the principles laid down therein. A
Accordingly, these matters have now come before us. In these
matters, we are required to apply the principles laid down in
l.R. Coelho's case in the matter of challenge to the Janmam
Act (Act 24 of 1969) on the ground that the said Act is beyond
the constituent power of the Parliament since the Janmam Act B
(Act 24 of 1969) damages the basic or essential features of
the Constitution.
Points for Consideration
4. (A)What is the scope of immunity to laws C
inserted in the Ninth Schedule of the
Constitution read with Article 31 B?
(B) Whether the Tamil Nadu State Legislature
lacked legislative competence to enact D
Janmam Act (Act 24 of 1969)?
(C) Whether the Janmam Act (Act 24 of 1969)
could not be applied because of the Ceiling
Act (Act 20 of 1972)?
E
Scope of immunity to laws inserted in the Ninth Schedule
read with Article 31 B
5. Shri K.V. Viswanathan, learned senior counsel
appearing on behalf of the petitioner(s), submitted that F
"separation of powers" and "rule of law" are basic features of
the Constitution of India. In the context of separation of powers,
learned counsel submitted that on 19.4.1972 the Constitution
Bench of this Court in Balmadies case held that Section 3 of
the Janmam Act (Act 24 of 1969) insofar as it related to transfer
of forests in Janmam estate was unconstitutional as it was not G
a measure of agrarian reform protected by Article 31A of the
Constitution. According to the learned counsel, inclusion of the
Janmam Act (Act 24of1969) on 7.9.1974 by the Constitution
(Thirty-fourth Amendment) Act, 1974 in the Ninth Schedule (Item
H
618 SUPREME COURT REPORTS [2010] 12 S.C.R
A No. 80) amounted to direct negation and abrogation of judicial
review as the impugned Constitution (Thirty-fourth Amendment)
Act, 1974 confers naked power on the Parliament to obliterate
the judicial decision in Balmadies case which became final,
without changing the basis of the decision or the law and,
B therefore, the said impugned Constitutional Amendment Act
destroys the basic feature of the Constitution, namely, judicial
review. Similarly, according to the learned counsel, the
Constitution (Thirty-fourth Amendment) Act, 1974 violated the
basic structure of rule of law and equality. In this connection, it
c was submitted that in Tamil Nadu in respect of lands held in
excess of the ceiling limits there is an Act called the Tamil Nadu
Land Reforms (Fixation of Ceiling on Land) Act, 1961 which
came into force on 6.4.1960. The said Act stands inserted in
the Ninth Schedule as Item No. 46 on 20.6.1964. At this stage,
0 it may be noted that the forest lands fell outside the said 1961
Act prior to 1.3.1972. By Ceiling Act (Act 20 of 1972), hilly
areas stood included in the said 1961 Act The Ceiling Act (.A ct
20 of 1972) also stood inserted in the Ninth Schedule of the
Constitution as Item No. 169 on 27.5.1976 by the Constitution
E (Fortieth Amendment) Act, 1976. Consequently, the provisions
of the Ceiling Act (Act 20 of 1972), according to the learned
counsel, became applicable to 20,000 acres of forest lands
which came to be included in the ceiling area by reason of the
Ceiling Act (Act 20 of 1972) by which exemption of forest land
from the ceiling area stood withdrawn. That, the Janmam Act
F (Act 24 of 1969) came into force from 27 .11.1974 whereas the
Ceiling Act (Act 20 of 1972) came into force from 1.3.1972,
though it was notified on 1. 7.1972. According to the learned
counsel, principle of equality is the basic feature of the
Constitution; that the Amending Act 20 of 1972 which brought
G in the "forests" within the purview of the 1961 Act and the
Janmam Act (Act 24 of 1969) operated in the same field and
yet under the ceiling law the compensation provided for was at
a higher rate as compared to the rate mentioned in the Janmam
Act (Act 24 of 1969) being Rs. 50 per acre (maximum); that
H whereas forests in Janmam estate stood automatically vested
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 619
NADU [S.H. KAPADIA, CJI.]
in the State under the Janmam Act (Act 24 of 1969), under the A
Amending Act 20 of 1972, the petitioner (s) was permitted to
hold the ceiling area including forests upto the prescribed ceiling
limit; that under the Janmam Act (Act 24 of 1969) not only
forests in the Janmam estate stood vested in the Government
but also the occupants were not given pattas for such lands 8
which pattas were given for cultivable lands only under the
Janmam Act (Act 24 of 1969) whereas under the Amending Act
20 of 1972 forests could form part of the holding of the
petitioner (s) subject to the ceiling limit of 15 standard acres.
According to the learned counsel, the above invidious distinction C
violated the rule of equality in law without any avowed public
purpose and in the absence of any provisions for distribution
of lands having vested in the State, the impugned Section 3 of
the Janmam Act (Act 24 of 1969) and its insertion in the Ninth
Schedule to the Constitution as Item 80 was arbitrary,
discriminatory and not only violated Article 14 but also the basic D
structure of the Constitution in terms of separation of powers
and rule of law. According to the learned counsel, the impugned
legislation inter alia violated the rule of law which is a facet of
the doctrine of equality and, therefore, it is not validated under
Article 31 B of the Constitution. E
6. We find no merit in the above submissions for the
following reasons:
At the outset, we may state that in this case the essence
F
of the challenge to the Constitution (Thirty-fourth Amendment)
Act, 1974, in our view, is in the conte1<t of "right to property". In
this connection, we must bear in mlnd that by the Constitution
(Forty-fourth Amendment) Act, 1978, "right to property" has
ceased to be a fundamental right under Article 19(1 )(f). If one
sees the history of amendments to the Indian Constitution, one G
finds that the Constitution (First Amendment) Act, 1951, the
Constitution (Seventeenth Amendment) Act, 1964, the
Constitution (Twenty-fifth Amendment) Act, 1971, the
Constitution (Twenty-sixth Amendment) Act, 1971 and the
H
620 SUPREME COURT REPORTS (2010] 12 S.C.R
A Constitution (Twenty-ninth Amendment) Act, 1972 were all in
the context of "right to property". The challenge to the
Constitution (Twenty-fourth Amendment) Act. 1971 on the
ground of unlimitE~d power to amend the Constitution was also
in the same context of right to property. The challenges to all
these Constitutional Amendment Acts, referred to hereinabove,
8
have been negatived. This aspect is important because in the
present case in the garb of "rule of law" and "separation of
powers" the challenge is laid against the Constitution (Thirty-
fourth Amendment) Act, 1974, which, as stated above, is in
essence the challenge in the context of "right to property". The
C basic contention of the petitioner(s) in these cases is that the
Constitution (Thirty-fourth Amendment) Act, 1974 by which the
Janmam Act (Act 24 of 1969) has been inserted in the Ninth
Schedule as Item No. 80 seeks to confer naked power on
Parliament to obliterate the judicial decision of this Court in
D Ba/madies case which became final without changing the basis
of the decision or the law and, therefore, the said Constitution
(Thirty-fourth Amendment) Act, 1974 destroys the basic feature
of the Constitution, namely, judicial review and separation of
powers as well as rule of law. To answer this point, one needs
E to consider the judgment of the Constitution Bench of this Court
in Ba/madies case. It is vehemently submitted on behalf of the
petitioner(s) that in Balmadies case, this Court has held
Section 3 of the Janmam Act (Act 24 of 1969) to be
unconstitutional, as violative of Articles 14, 19 and 31. In our
F view, it is not so. One of the questions which arose for
consideration by this Court in Ba/madies case was whether
acquisition of the lands under the Janmam Act (Act 24 of 1969)
was for agrarian reform? This Court observed that in order to
invoke Article 31A, it has to be shown that acquisition of the
G "estate" was with the view to implement agrarian reform. It was
further observed that Article 31A is confined only to agrarian
reform and its provisions would apply only to a law made for
acquisition by the State of any rights therein if such acquisition
is connected with the agrarian reform. On examination of the
H Janmam Act (Act 24 of 1969), this Court held that it was
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 621
NADU [S.H. KAPADIA, CJI.]
manifest from the perusal of the Objects and Reasons and the A
general scheme of the Janmam Act (Act 24 of 1969) that the
enactment was made to abolish intermediaries between the
State and the cultivators; that the Janmam Act (Act 24 of 1969)
in its broad outlines should be held to be a measure of agrarian
reform and, consequently, it stood protected by Article 31A of B
the Constitution. However, this Court held that so far as forests
in Janmam estates are concerned the acquisition of those
forests cannot be said to be in furtherance of the objective of
agrarian reform because in the absence of anything in the
Janmam Act (Act 24 of 1969) to show the purpose for which c
the forests are to be used by the Government, it cannot be said
that acquisition of forests in Janmam estate is for a purpose
related to agrarian reform. Therefore, although the
constitutional validity of the Janmam Act (Act 24 of 1969) by
and large stood upheld by this Court, it was held in Ba/madies D
case that Section 3 of the Janmam Act (Act 24 of 1969) insofar
as it related to transfer of forests in Janmam estates was
violative of the Constitution and as such Section 3 to that extent
was struck down. It was held that invalidity of Section 3 to the
above extent would not affect the validity of the other provisions E
of the Act as the two were distinct and severable.
7. On reading the judgment of the Constitution Bench of
this Court in Ba/madies case, in its entirety, we find that
although the Janmam Act (Act 24 of 1969) was challenged on
the ground of the Act being violative of Articles 14, 19 and 31, F
this Court in Balmadies case struck down Section 3 to the
extent of acquisition of forests in the Janmam estate only on
the ground that there was nothing in the Janmam Act (Act 24
of 1969) to show the purpose for which the forest lands stood
acquired and, therefore, this Court gave a declaration that in G
the absence of anything in the Act to show the purpose for which
forest lands stood acquired, protection under Article 31A was
not available. (see para 18 of the judgment) From this it cannot
be said that this Court in Balmadies case has held that Section
3 insofar as forests are concerned violated Articles 14, 19 and H
622 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 31 of the Constitution. Be that as it may, the judgment of the
Constitution Bench in Balmadies case was delivered on
19.4.1972. Even assuming for the sake of argument that the
Janmam Act (Act 24 of 1969), so far as the forests are
concerned, was held to be violative of Articles 14 and 19 of
B the Constitution in Balmadies case as contended on behalf of
the petitioner(s), still it cannot be said that the Constitution
(Thirty-fourth Amendment) Act, 1974 conferred naked power on
the Parliament to obliterate the judicial decision in Balmadies
case without changing the basis of the decision because it is
c pursuant to such declaration by the Constitution Bench of this
Court in Balmaclies case that the Parliament inserted the
Janmam Act (Act 24 of 1969) into the Ninth Schedule by
invoking Article 31 A. Therefore, one cannot say that the
Parliament has obliterated the judicial decision of this Court in
Balmadies case without changing its basis. The challenge to
0
Article 329A(4) succeeded in Election Case [Smt. Indira
Nehru Gandhi v. Shri Raj Narain 1975 (Supp.) SCC 1]
because the impugned Amendment was held to be Legislative
Judgment being validated which is not the case herein. On the
contrary, pursuant to the declaration in Balmadies case, the
E Parliament inserted the Janmam Act (Act 24 of 1969) in the
Ninth Schedule which would mean that the Parliament has
implemented in a way the decision of this Court in Ba/madies
case by validating the law.
F 8. Coming to the applicability of the judgment of the 9-
Judge Bench decision of this Court in /.R. Coelho (supra), time
has come for us to explain certain concepts in that judgment
like egalitarian equality, over-arching principles and reading of
Article 21 with Article 14. In this connection, one needs to keep
G in mind what is called as the "degree test". Ultimately, in
applying the above three concepts enumerated herein, one has
to go by the degree of abrogation as well as the degree of
elevation of an ordinary principle of equality to the level of over-
arching principle (s). One must keep in mind that in this case
H the challenge is not to the ordinary law of the land. The challenge
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 623
NADU [S.H. KAPADIA, CJI.]
is to the constitutional amendment. 1.n a rigid Constitution [See A
Article 368] power to amend the Constitution is a derivative
power, which is an aspect of the constituent power. The
challenge is to the exercise of derivative power by the
Parliament in the matter of inclusion of the Janmam Act (Act
24 of 1969) as Item No. 80 in the Ninth Schedule of the B
Constitution vide the Constitution (Thirty-fourth Amendment)
Act, 1974. Since the power to amend the Constitution is a
· derivative power, the exercise of such power to amend the
Constitution is subject to two limitations, namely, the doctrine
of basic structure and lack of legislative competence. The c
doctrine of basic structure is brought in as a window to keep
the power of judicial review intact as abrogation of such a
power would result in violation of basic structure. When we
speak of discrimination or arbitrary classification, the same
constitutes violation of Article 14 of the Constitution. In this
D
connection, the distinction between constitutional law and
ordinary law in a rigid Constitution like ours is to be kept in
mind. The said distinction proceeds on the assumption that
ordinary law can be challenged on the touchstone of the
Constitution. Therefore, when an ordinary law seeks to make
E
a classification without any rational basis and without any nexus
with the object sought to be achieved, such ordinary law could
be challenged on the touchstone of Article 14 of the
Constitution. However, when it comes to the validity of a
constitutional amendment, one has to examine the validity of
such amendment by asking the question as to whether such an F
amendment violates any over-arching principle in the
Constitution. What is over-arching principle? Concepts like
secularism, democracy, separation of powers, power of judicial
review fall outside the scope of amendatory powers of the
Parliament under Article 368. If any of these were to be deleted G
it would require changes to be made not only in Part Ill of the
Constitution but also in Articles 245 and the three Lists of the
Constitution resulting in the change of the very structure or
framework of the Constitution. When an impugned Act creates
a classification without any rational basis and having no nexus H
624 SUPREME COURT REPORTS [2010] 12 S.C.R.
A with the objects sought to be achieved, the principle of equality
before law is violated undoubtedly. Such an Act can be
declared to be violative of Article 14. Such a violation does not
require re-writing of the Constitution. This would be a case of
violation of ordinary principle of equality before law. Similarly,
B "egalitarian equality" is a much wider concept. It is an over-
arching principle. Take the case of acquisition of forests.
Forests in India are an important part of environment. They
constitute national asset. In various judgments of this Court
delivered by the Forest Bench of this Court in the case of TN.
c Godavarman v. Union of India [Writ Petition No. 202 of 1995],
it has been held that "inter-generational equity" is part of Article
21 of the Constitution. What is inter-generational equity? The
present generation is answerable to the next generation by
giving to the nE~xt generation a good environment. We are
answerable to the next generation and if deforestation takes
0
place rampantly then inter-generational equity would stand
violated. The doctrine of sustainable development also forms
part of Article 21 of the Constitution. The "precautionary
principle" and the "polluter pays principle" flow from the core
value in Article 21. The important point to be noted is that in
E this case we are concerned with vesting of forests in the State.
When we talk about inter-generational equity and sustainable
development, we are elevating an ordinary principle of equality
to the level of over-arching principle. Equality doctrine has
various facets. It is in this sense that in /.R. Coe/ho's case this
F Court has read Article 21 with Article 14. The above example
indicates that when it comes to preservation of forests as well
as environment vis-a-vis development, one has to look at the
constitutional amendment not from the point of view of formal
equality or equality enshrined in Article 14 but on a much wider
G platform of an egalitarian equality which includes the concept
of "inclusive growth". It is in that sense that this Court has used
the expression Article 21 read with Article 14 in l.R. Coe/ho's
case. Therefore, it is only that breach of the principle of equality
which is of the character of destroying the basic framework of
H the Constitution which will not be protected by Article 318. If
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 625
NADU [S.H. KAPADIA, CJI.]
every breach of Article 14, however, egregious, is held to be A
unprotected by Article 31 B, there would be no purpose in
protection by Article 31 B. The question can be looked at from
yet another angle. Can Parliament increase its amending
power by amendment of Article 368 so as to confer on itself
the unlimited power of amendment and destroy and damage B
the fundamentals of the Constitution? The answer is obvious.
Article 368 does not vest such a power in Parliament. It cannot
lift all limitations/ restrictions placed on the amending power or
free the amending power from ah limit?tions. This is the effect
of the decision in Kesavananda Bharati (supra). The point to c
be noted, therefore, is !hat when constitutional law is challenged,
one has to apply the "effect test" to find out the degree of
abrogation. This is the "degree test" which has been referred
to earlier. If one finds that the constitutional amendment seeks
to abrogate core values/ over-arching principles like secularism,
0
egalitarian equality, etc. and which would warrant re-writing of
the Constitution then such constitutional law would certainly
violate the basic structure. In other words, such over-arching
principles would fall outside the amendatory power under Article
368 in the sense that the said power cannot be exercised even
by the Parliament to abrogate such over-arching principles. It E
is important to bear in mind that according to Justice Mathew's
observations in Smt. Indira Nehru Gandhi (supra), equality is
a feature of rule of law and not vice-versa, as submitted by Mr.
Viswanathan, learned counsel for the petitioner(s). Very often
the expression "Rule of Law" is used to convey the idea of a F
Government that is limited by law. The expression "Rule of Law"
describes a society in which Government must act in
accordance with law. A society governed by law is the
foundation of personal liberty. It is also the foundation of
economic development since investment will not take place in G
a country where rights are not respected. It is in that sense that
the expression "Rule of Law" constitutes an overarching principle
embodied in Article 21, one aspect of which is equality. It is in
that context that this Court has used the phrase "Article 21 read
H
/
''
626 SUPREME COURT REPORTS [2010) 12 S.C.R.
A with Article 14" in the judgment in the case of I. R. Coelho
(supra) to which one of us Kapadia. J. was a party.
9. Applying the above tests to the present case, we find
no merit in the submissions advanced by Shri Viswanathan,
learned senior counsel for the petitioner (s) that inclusion of the
8
Janmam Act (Act 24 of 1969) in the Ninth Schedule (Item No.
80) amounted to direct negation and abrogation of judicial
review as the impugned Constitution (Thirty-fourth Amendment)
Act, 1974 confers naked power on the Parliament to obliterate
C the judicial decision in Balmadies case which became final,
without changing the basis of the decision or the law and,
therefore, the said impugned Constitutional Amendment Act
destroys the basic feature of the Constitution, namely. judicial
review. As stated above, the amending power under Article 368
of the Constitution is a derivative power. The doctrine of basic
D structure provides a touchstone on which the validity of the
Constitutional Amendment Act could be judged. While applying
this doctrine. one need not go by the content of a "right" but by
the test of justifiability under which one has to see the scope
and the object of the Constitutional Amendment. In the present
E case, we are concerned with the validity of the Constitution
(Thirty-fourth Amendment) Act, 1974. It is true that all lands
including forests falling in the janmam estate vest in the State
under Section 3 of the Janmam Act (Act 24 of 1969). Under
that Act, the State gave pattas for cultivable lands though such
F pattas were not given for forests which vested in the State. It
is also true that after Act 20 of 1972 forests which earlier stood
exempted from the provisions of the Ceiling Act, 1961 got
included in the Ceiling Act (Act 20 of 1972). Therefore, on and
after 1.3.1972, the holder was entitled to hold the lands subject
G to ceiling including forests under the Ceiling Act (Act 20 of 1972)
whereas forests falling in Janmam estate vested in the State.
It is the case of the petitioners that by reason of the forests
vesting in the State under the Janmam Act (Act 24 of 1969) "the
rule of equality in law'' stood violated which violation amounted
H to abrogation of Article 14. One of the reasons for deletion of
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 627
NADU [S.H. KAPADIA, CJI.]
the "right to property" from Part Ill of the Constitution vide the A
Constitution (Forty-fourth Amendment) Act, 1978 was that the
economic liberties of freedom of property came in direct conflict
with egalitarian values including inter-generational equity. This
aspect needs to be kept in mind as in this case the substantive
challenge to the Constitution (Thirty-fourth Amendment) Act, B
1974 is based on the right to property in the garb of over-arching
principles like separation of powers, rule of law and abrogation
of the power of judicial review. The doctrine of classification
._under Article 14 has several facets and none of those facets
have been abrogated by the Constitution (Thirty-fourth c
Amendment) Act, 1974. Equality is a comparative concept. A
person is treated unequally only if that person is treated worse
than others. and those others (the comparison group) must be
those who are "similarly situated" to the complainant. The
"similarly situated test" is not attracted in this case for the simple D
reason that the two Acts, namely, the Janmam Act (Act 24 of
1969), which seeks to abolish a tenure, is distinct and separate
from the Ceiling Act (Act 20 of 1972). Therefore, in the present
case, not even an ordinary principle of equality under Article 14,
leave aside the egalitarian equality as an over-arching principle, E
is violated. Even assuming for the sake of argument that Article
14 stood violated, even then the Janmam Act (Act 24 of 1969)
in any event stood validated by its insertion in the Ninth
Schedule vide Constitution (Thirty-fourth Amendment) Act,
1974.]
F
Legislative competence of Tamil Nadu State Legislature
to enact the Janmam Act (Act 24 of 1969)
10. Mr. P.H. Parekh, learned senior counsel appearing on
behalf of one of the appellants submitted that the Tamil Nadu G
Legislature did not have legislative competence to enact
Section 3 of the Janmam Act (Act 24 of 1969) insofar as the
said Act related to transfer of forests in Janmam estates•to the
State without any public purpose. According to the learned
counsel, the Janmam Act (Act 24 of 1969) providing for vesting H
628 SUPREME COURT REPORTS (2010) 12 S.C.R.
A of Janmam estates in the State stood enacted under Entry 42.
List Ill of the Sevemth Schedule of the Constitution.
11. Before us it was submitted that the right to legislate
under Entry 42 of List Ill postulates the existence of a public
purpose. According to the learned counsel, in the present case,
8
Entry 42 of List Ill was required to be read with Article 31(2),
as it then stood, on the day the Janmam Act (Act 24 of 1969)
was enacted, and if so read, the requirement of public purpose
must be read into Entry 42 of List Ill and since in the present
C case the impugned enactment stood unprotected by Article 31A
as held in Balmadies case, the Janmam Act (Act 24 of 1969)
was liable to be struck down for want of legislative competence.
In reply, Mr. T.R. Andhyarujina, learned senior counsel
appearing on behalf of the State, submitted that in Balmadies
case the legislative competence of the Tamil Nadu Legislature
D to enact the Janmam Act (Act 24 of 1969) was never doubted.
It was further submitted that even assuming for the sake of
argument that there was no public purpose in the acquisition
of forest lands, the requirement of public purpose and
compensation are conditions or requirements under Article
E 31 (2) of the Constitution, as it stood in 1969 and that the
requirement of public purpose and compensation was not a
legislative requirement. Therefore, even assuming for the sake
of argument that the Janmam Act (Act 24 of 1969) violated the
requirement of public purpose and compensation, the said Act
F got validated when it stood incorporated in the Ninth Schedule
in 1974.
12. To answer the contentions raised hereinabove, we are
required to quote Entry 18, List II, Entry 42, List Ill and Entry 19,
G List II, as it stood then:
"18. Land, that is to say, rights in or over land, land tenures
including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural
land; land improvement and agricultural loans;
H
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 629
NADU [S.H. KAPADIA, CJI.]
colonization." A
"42. Acquisition and requisitioning of property"
"19. Forests"
13. We find no merit in the arguments advanced on behalf B
of the petitioners. At the outset, it may be noted that the
legislative competence of the Tamil Nadu Legislature to enact
the Janmam Act (Act 24 of 1969) was not in issue in
Ba/madies case. Further, Bafmadies case did not hold that
there was no public purpose in acquisition of forests. It only C
held that there was nothing in the Act to show that acquisition
of forests would be for agrarian reform. Consequently, it was
held in Balmadies case that acquisition could not get protected
under Article 31A. In contrast, a Constitution Bench of this
Court in State of Kera/a v. The Gwalior Rayon Silk D
Manufacturing (WVG.) Co. Ltd. Etc. [(1973) 2 SCC 713] held
that the Kerala Private Forests (Vesting and Assignment) Act
26 of 1971 was enacted to provide for the vesting in the
Government of private forests including those in the Janmam
estates and for the assignment thereof to agriculturists and E
agricultural labourers for cultivation. This Court examined the
preamble of the Act and held that the Legislature thought that
private forests be treated as agricultural lands in the sense that
they should be utilized to increase agricultural production in the
State. Consequently, it was held that since the purpose was
F
clearly spelt out in the impugned Kerala Private Forests
(Vesting and Assignment) Act 26 of 1971, the Act stood
protected as a measure of agrarian reform under Article 31A.
Further, we find merit in the argument of Mr. T.R. Andharujina,
learned senior counsel appearing on behalf of the State ,of
Tamil Nadu that the Janmam Act (Act 24 of 1969) is a piece G
of legislation for abolishing feudal tenure and is a measure of
land reform in pursuance of Directed Principles of Sta}e Policy.
[See The State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh of Darbhanga and Others, 1952 SCR 889 at pages 941,
942, 997 and 1014] Assuming for the sake of argument that H
630 SUPREME COURT REPORTS [2010) 12 S.C.R.
A there was no public purpose in the acquisition of forests, as
contended on behalf of the petitioners, we are of the view that
the requirement of public purpose and compensation are not
legislative requirements of the competence of Legislature to
make laws under Entry 18, List II or Entry 42, List Ill, but are
B conditions or restrictions under Article 31 (2) of the Constitution
as the said Article stood in 1969. Breach of such conditions
would attract only Part Ill challenge. Therefore, when the
Janmam Act (Act 24 of 1969) was put in the Ninth Schedule in
1974, the Act received immunity from Article 31 (2) with
c retrospective effect. Lastly, in pith and substance, we are of
the view that the Janmam Act (Act 24 of 1969) was in respect
of "land" and "land tenure" under Entry 18, List II of the
Constitution. For the afore-stated reasons, we find no merit in
the contention of the learned counsel for the petitioners that the
Tamil Nadu Legislature had no legislative competence to enact
0
the Janmam Act (Act 24 of 1969).
Whether the Janmam Act (Act 24 of 1969) could not be
applied because of the Ceiling Act (Act 20 of 1972)?
E 14. One of the main contentions raised in this batch of
cases is whether the Government is at liberty to apply the
Janmam Act (Act 24 of 1969) after it stood notified on
27.11.1974, thou9h proceedings were taken by the Government
under the Ceiling Act (Act 20 of 1972) prior to 27.11.1974. We
F find no merit in this argument for two reasons. Firstly, the
Janmam Act (Act 24 of 1969) was enacted to provide for
acquisition of the rights of janmis in Janmam estate in the
Gudalur taluk of the Nilgiris district and for introduction of
ryotwari settlement in such estates. We agree with the view
G expressed by the Madras High Court in the impugned judgment
that the scope of the Janmam Act (Act 24 of 1969) was entirely
different from the Ceiling Act (Act 20 of 1972) for the simple
reason that the Janmam Act (Act 24 of 1969) was enacted to
acquire the rights of janmis in Janmam estates in Gudalur taluk
and to introduce ryotwari settlement, whereas the object behind
H
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 631
NADU [S.H. KAPADIA, CJI.]
enactment of the Ceiling Act (Act 20 of 1972) was to fix a ceiling A
on the land holdings and to distribute the excess lands to the
landless and agricultural population. Therefore, in our view, the
scope and ambit of the two Acts are completely different and
they operate in different spheres. Secondly, the Ceiling Act
(Act 20of1972) came into force from 1.3.1972. Prior to that B
date, forests stood exempted from the provisions of the 1961
Act. It is only on and after 1.3.1972 that forests stood included
in the 1961 Act by virtue of the Ceiling Act (Act 20 of 1972).
The important point to be noted that before ceiling could be
determined and before compensation to be paid for excess c
lands which vested in the State under the Ceiling Act (Act 20
of 1972), the Janmam Act (Act 24 of 1969) came into force on
27.11.1974 under which the forests vested in the State. The
main focus of the Ceiling Act (Act 20 of 1972) was to fix a
ceiling of agricultural land holding and to distribute the excess D
lands to the landless and other agricultural population. The
scope of the Ceiling Act (Act 20 of 1972) was made wide
enough to cover the lands in the hilly areas. In short, before
the excess lands could be determined for vesting in the State
under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act
24 of 1969) came into force which, as stated above, operated E
in a different sphere vis-a-vis the Ceiling Act (Act 20 of 1972).
For the afore-stated reasons, we find no merit in the argument
on behalf of the petitioners that both the Acts operated in the
same field and, consequently, it was not open to the State
Government to act according to the provisions of the Janmam F
Act (Act 24 of 1969).
Conclusion
15. For the afore-stated reasons, we see no merit in this G
batch of cases. Accordingly, the same are dismissed with no
order as to costs.
K. S. Radhakrishnan, J. 1. We are in these cases
concerned with the validity of the Constitution (Thirty-fourth
H
632 SUPREME COURT REPORTS [2010] 12 S.C.R.
A Amendment) Act, 1974 by which the Gudalur Janmam Estates
(Abolition and Conversion into Ryotwari) Act, 1969, (in short
'the Janmam Act') was included in the 9th Schedule under
Article 31-B of the Constitution. These petitions earlier came
up for consideration before a Bench of two Judges of this Court
B and the Bench felt that matter should be heard by a larger Bench
since the case involved substantial questions of law pertaining
to the interpretation of the Constitution. The order is reported
in Manjushree Plantation Ltd. and others v. State of Tamil
Nadu and others 1989 (3) SCC 282. Consequently, the matter
C came up before a Constitution Bench of five Judges on 14th
September, 1999, and the Court felt that the impact of the
judgment in Waman Rao and others etc. v. Union of India and
others 1981 (2) SCC 362 be considered by a larger Bench so
that apparent inconsistencies therein could be reconciled and
the question whether an Act or Regulation which, or a part of
0
which, was or had been found by this Court to be violative of
one or more of the fundamental rights conferred by Articles 14,
19 and 31 would be included in the Ninth Schedule or whether
it was only a constitutional amendment amending the Ninth
Schedule that damaged or destroyed the basic structure of the
E Constitution that could be struck down. The order is reported
in (1999) 7 SCC 580. The matter was then placed before a
Constitution Bench of nine Judges. The fundamental question
which came up for consideration was whether on and after 24th
April, 1973, when the basic structure doctrine was propounded,
F was it permissible for the Parliament under Article 31-B to
immunize legislations from fundamental rights by inserting them
into the Ninth Schedule and also its effect on the power of
judicial review of the Court. The Bench laid down certain
parameters for the application of the basic structure doctrine
G propounded in His Holiness Kesavananda Bharati
Sripadagalvaru etc. v. State of Kera/a and another (1973) 4
SCC 225 and later explained in M. Nagraj & Others v. Union
of India & Others (2006) 8 sec 212. The Court set at rest
some of the inconsistencies which were brought in by Waman
H Rao's Case by analyzing the judgment from Sri Sankari Prasad
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 633
NADU [S.H. KAPADIA, CJI.)
Singh Oeo v. Union of India and State of Bihar (1952) SCR A
89 to Kesavananda Bharati (supra) and then to Waman Rao's
case (supra). The Court held that the theory of basic structure
is applicable to the laws included in the Ninth Schedule also.
The Court declared Article 31-B valid and held if there is any
violation, restriction or encroachment upon the fundamental B
rights, guaranteed under Articles 14, 15, 19 and 21, the State
must justify its action on the touch stone of the doctrine of basic
structure of the Constitution. The judgment is reported in l.R.
Coelho (Dead) by L. Rs. v. State of Tamil Nadu (2007) 2 SCC
1. c
Coelho Principle:
Coelho held that the object behind Article 31 B is to validate
certain legislations, which otherwise may be invalid and not to
obliterate Part Ill in its entirety or to dispense with judicial review D
of those legislations. The Court held that Article 21 confers right
to life, which is the heart of the Constitution and when Article
21 read with Articles 14, 15 and 19 is sought to be eliminated
not only the "essence of right" test but also the "right test" has
to be applied, particularly when cases in Kesavananda Bharati E
(supra) and Indira Nehru Gandhi v. Raj Narain (1975) Supp
sec 1, have expanded the scope of the basic structure to cover
even some of the fundamental rights. Further, it was also
pointed out by the Court that there are certain parts or aspects
of the Constitution including Article 15, Article 21 read with F
Articles 14 and 19 which constitute the core values which if
allowed to be abrogated would change completely the nature
of the Constitution. The exclusion of the fundamental rights
would result in nullification of the basic structure doctrine, the
object of which is to protect the basic features of the G
Constitution. Referring to the "rights test" and the "essence of
right" test, the Court held that there is a difference between both
the tests and both form part of application of the basic structure
doctrine. The Court pointed out that the power to grant absolute
immunity at will is not compatible with basic structure doctrine
H
634 SUPREME COURT REPORTS [2010) 12 S.C.R.
A and after 24.4. Hl73 the laws included in the Ninth Schedule
would not have absolute immunity and thus validity of such laws
could be challenged on the touchstone of basic structure as
reflected in Article 21 read with Article 14, 15 and 19 and the
principles underlying in those articles.
B
2. Coelho (supra) expressed in clear terms that the
functional validity based on the power of immunity exercised
by the Parliament under Article 368 is not compatible with the
basic structure doctrine and, therefore, laws that are included
in the Ninth Schedule have to be examined individually for
C determining whether the constitutional amendments by which
they are put in the Ninth Schedule damage or destroy the basic
structure of the Constitution and, in that process, the Court has
to examine the terms of the statute, the nature of the rights
involved and in substance the statute violates the special
D features of the Constitution and, for doing so, it has first to find
whether the Ninth Schedule law is violative of Part Ill. If, on such
examination, the answer is in the affirmative, the further
examination is to be undertaken whether the violation found is
destructive of the basic structure doctrine and if, on such further
E examination, the answer is again in affirmative, the result would
be invalidation of the Ninth Schedule law.
Facts of the present case
Janmam Act, 1969, enacted by the Legislature of the
F State of Tamil Nadu, received the assent of the President on
December 6, 1969. The Act was enacted to provide for the
acquisition of the rights of the janmies in Janmam Estate in
Gudalur Taluk and for the introduction of the ryotwari rights in
the State. Chapter 2 of the Act deals with the vesting of
G Janmam estates in the State. Petitioner submits that, by virtue
of the Janmam Act, janmies are being deprived of their rights
over their forest land on which they have full proprietorship.
According to the petitioner, the whole purpose of the vesting
of the forest under Section 3 of the Janmam Act is to acquire
H the forest for the Government on payment of nominal
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 635
NADU [S.H. KAPADIA, CJI.]
compensation which would amount to confiscation of property. A
Petitioner also stated that acquisition of property without
~resorting to the provisions of the Land Acquisition Act, 1894 is
violative of Articles 14 and 300A of the Constitution and equality
clause enshrined in the Constitution. Petitioner further
submitted that the petitioner should have been subjected to the B
provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling
on Land) Act, 1961 (in short 'the Ceiling Act') rather than the
Janmam Act, in which case, petitioner could have retained at
least a portion of forest land exercising the right of option and
would have got more amount of compensation for the lands c
vested in the State. Petitioner was, therefore, treated unequally
violating the petitioner's fundamental right guaranteed under
Article 14 of the Constitution.
3. Petitioner has also submitted that the rule of law, rule of
equality and separation of powers have been held to be part D
of the basic structure of the Constitution and by the inclusion of
the Janmam Act in the Ninth Schedule tho~e rights have been
abrogated violating the basic structure of th'eConstitution.
4. The Constitutional validity of the Act has already been E
upheld by this Court in Balmadies Plantations Ltd. and another
etc. v. State of Tamil Nadu (1972) 2 SCC 133, except that the
provisions of Section 3 (Vesting Section) in so far as it relates
to the transfer of forest area, in Janmam Estate, was held to
be not a measure of agrarian reforms and hence would not get F
the protection of Article 31-A of the Constitution of India. In that
connection, reference may also be made to the Ceiling Act
which was also included in the Ninth Schedule. The Ceiling Act,
however, was not earlier made applicable to the Janmam
Estate in the Gudalur Taluk, but was later made applicable and G
certain proceedings had started in respect of determination of
ceiling of land held by either the janmies or the lessees. The
stand of the State of Tamil Nadu is that those janmies who have
been given ryotwari pattas under the Janmam Act became
pattadars/land owners and the provisions of the Ceiling Act
H
636 SUPREME COURT REPORTS (2010] 12 S.C.R.
A have also been made applicable.
5. We are, in this case, concerned only with the question
whether the vesting of forest land, included in the Janmam
Estate, in the State would abrogate or destroy tlie basic
structure of the Constitution. A Five Judges Constitution Bench
8
of this Court in State of Kera/a and another v. The Gwalior
Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc. (1973) 2 SCC
713 had occasion to examine the nature of private forest
situated in the old State of Madras and Kerala. In that case
the Kerala Private Forests (Vesting and Assignment) Act, 1971
C (Act No.26) was challenged on the ground that it had violated
the petitioner's fundamental rights guaranteed under Articles 14,
19(1)(f),(g) and was not immunized by Articles 31 and 31-A of
the Constitution. While examining the Constitutional validity of
the said Act, the scope of Article 31-A(2)(a) of the Constitution
D and the meaning of the word 'estate' also fell for consideration.
The Court noticed that the Janmam rights in the States of
Madras and Kerala are, as explained by Subba Rao, J. in
Kavalappara Kottarathil Kochuni and Others vs. State of
Madras and others (1960) 3 SCR 887, are rights of hereditary
E proprietorship in land. The Court held those rights, like the rights
created by grant of jagir or inam relating to land, which included
agricultural land or waste lands or forests and hills are brought
within the definition of Estates and, therefore, have to be
acquired by the State under Article 31-A(1)(a) of the
F Constitution. Reference was also made to the decision of this
Court in State of UP. v. Raja Anand Brahma Shah (1967) 1
SCR 362, wherein the Court pointed out that the elimination of
ancient Janmam rights may per se be regarded as possessing
the attributability of agrarian reforms because to wipe out feudal
G vestiges from our country side and to streamline land ownership
are preliminaries in the projection of a Socialistic order which
Part IV and A11icle 31-A of the Constitution str;ve to achieve.
Referring to Balmadies Plantations (supra), this Court in
Gwalior Rayon (supra) case stated as follows:
H "33. It is not disputed that all the private forests with which
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 637
NADU [S.H. KAPADIA, CJI.]
we are now concerned are held in Janman right - Janman A
rights being an 'estate' are liable to be acquired by the
State under Article 31-A(1)(a) as a necessary step to the
implementation of agrarian reform. Section 3 of the
impugned Act vests the ownership and possession of all
private forests in the State. Therefore they would attract B
the protection of Article 31-A(1 ). It would not be, in such
a case, necessary to further examine if the lands so vested
in the Government are agricultural lands falling within sub-
clause (iii).
34. Indeed this does not mean that the State is absolved
c
from showing that the acquisition is for the purpose of
agrarian reform. In fact in Balmadies case (supra),
referred to above, the acquisition of forests owned by
janmies was set aside on the sole ground that the
impugned law on the material on record did not indicate D
that the transfer of forests from the janmies to the
Government was linked in any way with a scheme of
agrarian reform or betterment of village economy."
6. The Constitution Bench noticed that in Balmadies case E
(supra) acquisition of forest by janmies was set aside on the
sole ground that the impugned law, on the material on record,
did not indicate that the transfer of forest from janmies land to
the government was linked in any way with the agrarian reforms
or betterment of the village economy. The Court, however, F
recognized the fact that the elimination of ancient janmies had
the effect of wiping out feudal vestiges from countryside and
to streamline land ownership was preliminaries of the projection
of a Socialistic order which Part IV of the Constitution strive to
create. Further, let me indicate, that for understanding the real G
scope of Articles 14, 19 and 21, the impact of Articles 48A and
51A must also be taken into consideration. It is with this in
mind, the Parliament has enacted the Forest (Conservation)
Act, 1980, the Wild Life (Protection) Act, 1972 as amended by
Act 28 of 1986, the Environment (Protection) Act, 1986 and so
H
638 SUPREME COURT REPORTS [2010] 12 S.C.R.
A on. With this background, we have to examine the challenge
against vesting of forest, held in janmam in the State of Tamil
Nadu under the Janmam Act.
7. Janmam Act provides for the vesting of forest and
certain other categories of land under Section 3 of the Janmam
8
Act for which provision for payment of compensation is also
provided in the Act. Section 8 of the Act says that janmi would
also be entitled to a ryotwari patta in respect of all lands proved
to have been cultivated by the janmi himself, except the forest
land which would vest in the State. Section 9 also entitles a
c tenant to a ryotwari patta in respect of the lands in his
occupation. Section 10 states that where no person is entitled
to a ryotwari patta in respect of a land in a janman estate under
Sections 8 or 9 and the land vests in the Government, a person
who had been personally cultivating such land for a continuous
D period of three years immediately before the 1st day of June,
1969 shall be entitled to a ryotwari patta in respect of that land.
8. Section 11 stipulates that no ryotwari patta shall be
granted in respect of forests, which stood vested in the State.
E Such a provision was introduced in the Act so as to preserve
forest wealth, its flora and fauna and to maintain ecological
balance in tune with Article 48A and 51A(g) of the Constitution.
For understanding the real scope of Article 14, 19 and 21 the
impact of the abovE~ mentioned provisions has to be kept in
F mind.
9. The only question is, in such a situation, whether the
vesting of private forest in the State, by virtue of Section 3 of
the Act, in any way, violates any of the fundamental rights
guaranteed to the petitioner under Part Ill of the Constitution and,
G if that be so, whether that provision abrogates or destroys the
basic structure of the Constitution, which exercise has to be
undertaken in the light of the principles laid down by the
Constitution Bench in Coelho's case (supra).
H
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 639
NADU [S.H. KAPADIA, CJI.]
Application of the Coelhos's principle: A
First stage: We have to first examine whether the
provisions of Janmam Act included in the Ninth Schedule by
the Constitution (34th Amendment Act 1974) is violating any of
the rights guaranteed under Part Ill of the Constitution, and if
8
our answer is in the affirmative, our further enquiry would be
whether the violation so found has abrogated or destroyed the
basic structure of the Constitution. On such examination, if our
answer is in the affirmative, the result would be invalidation of
the Act to the extent of its violation. Petitioner, therefore, cannot C
succeed merely by establishing that any of his fundamental
rights have been violated but he has to further show that the
violation has the effect of abrogating the basic structure of the
Constitution. Once it is established, the onus shift to the State
to justify the infraction of the fundamental right, and if they fail,
still State can show, that such infraction has not abrogated ,or D
destroyed the basic structure of the Constitution. Violation of
fundamental right, may not, therefore, ipso facto, violate the
basic structure doctrine, but a law which violates the basic
structure invariably violates some of the rights guaranteed under
Part 111, but not vice versa. A law which infringes a basic feature E
of the Constitution cannot be validated under Article 318, by
inserting it in the 9th Schedule of the Constitution.
10. Let us now examine whether any of the fundamental
rights guaranteed to the petitioner has been violated by any of F
the provisions of the Janmam Act, which has been included in
the Ninth Schedule. The main plank of attack is on Section 3(b)
ofI the Janmam Act by which, forest, which formed the part of
the Janmam estate of the petitioner stood vested in the State
free from all encumbrances which according to the petitioner G
has violated Article 14, 19 and 300A of the Constitution of India.
Article 14 of the Constitution states that the State shall not deny
to any pE:rson equality before the law or the equal protection of
the laws within the territory of India. Plea of inequality was raised
on the ground that if ceiling Act was made applicable to the H
640 SUPREME COURT REPORTS (2010] 12 S.C.R.
A petitioner, it could have got the benefit of ceiling provision,
consequently a portion of forest land could have been retained,
and for the rest the petitioners would have got enhanced
compensation. Further it was pointed out that there was
obvious inconsistency between various clauses of the Ceiling
B Act and the Janmam Act and the petitioner was discriminated
in their application violating Article 14 of the Constitution of
India. Further it was contended that when the forest land was
acquired applying the provisions of Land Acquisition Act, 1894,
the petitioner would have got ma~'<et value, for the forest land
C acquired and the inadequacy of compensation would amount
to deprivation of property, violating Article 300A of the
Constitution. In my considered view, the plea raised alleging
violation of Articles 14 and 300A cannot stand, since the
petitioner is holding private forest in the Gudalur Taluk by way
of janmam, which are rights of hereditary proprietorship and
0
those rights are like the rights created by grant of jagir or inam
relating to land. The object and purpose of Janmam Act is to
do away with such hereditaryship. Janmam estate which takes
in forests, mines and minerals, quarries, rivers and streams,
tanks and irrigation work, fisheries and so on stood vested in
E the State free from all encumbrances. Janmies are also entitled
to get ryotwari patta in respect of all lands, if they establish they
have been cultivating lands for a continuous period of three
agricultural years immediately before the 1st day of June, 1969.
Provision for payment of compensation has also been provided
F under the Act.
11. Right not to be deprived of property, save by authority
of law is no longer a fundamental right but only a constitutional
right which has never been treated as part of the basic structure
G of the Constitution. Hence the contention that Section 3
violates Articles 14 and 300A of the Constitution is without any
basis. PetitionHr has, therefore, not succeeded in establishing
that, the Act or its provisions have violated any of the
fundamental rights guaranteed to them and, therefore, the
H petitioner has failed to satisfy the first test laid down in
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 641
NADU [S.H. KAPADIA, CJI.]
Coe/ho's case (supra). Consequently, the question whether the A
Janmam Act and its provisions have violated the basic structure
of the Constitution does not call for examination. Our judicial
journey should end here, and we are least concerned with the
violation of any constitutional or statutory rights, inadequacy of
compensation etc. Assuming that in our onward journey, we B
carry with us a bundle of right's violations, which are
fundamental, then the question is whether those violations, have
the effect of abrogating or destroying the basic structure of the
Constitution.
Second stage: Petitioner urged that the violations which
c
it has pointed out have the effect of shaking the confidence of
the public in the rule of law, equality and judicial review which
are basic features of the Constitution, among others.
12. Right to Equality before law, Right to Equality of D
. Opportunity in matters of public employment, Right to Protection
of life and personal liberty, Right against Exploitation, Right to
Freedom of Religion etc. are all fundamental rights guaranteed
under Part Ill of the Constitution and a common thread running
through all the Articles in Part Ill of the Constitution have a E
common identity committed to an overarching principle which
is the basic structure of the Constitution. Rule of law is often
said as closely inter-related principle and when interpreted as
a principle of law, it envisages separation of powers, judicial
review, restriction on the absolute and arbitrary powers, F
equality, liberty etc. Separation of powers is integral part of rule
of law which guarantee independence of judiciary which is a
fundamental principle viewed as a safeguard against arbitrary
exercise of powers, legislative and constitutional. Doctrine
of absolute or unqualified parliamentary sovereignty is G
antithesis to rule of law. Doctrine of parliamentary sovereignty
may, at times, make rule of law and separation of powers
subservient to the wish of the majority in parliament.
Parliamentary supremacy cannot be held unqualified so as to
undo the basic structure. Basic structure doctrine is, in effect, H
642 SUPf~EME COURT REPORTS (2010] 12 S.C.R.
A a constitutional limitation against parliamentary autocracy. Let
us, however, be clear that the principles of equality inherent in
the rule of law does not averse to the imposition of special
burdens, grant special benefits and privileges to secure to all
citizens justice, social and economic and for implementing the
B directive principles of state policy for establishing an egalitarian
society.
13. I, therefore, fully concur with the views expressed by
the Lord Chief Justice that the over arching principles as
C explained above would fall outside the amendatory power under
Article 368 and the petitioner in the case has not succeeded
in establishing that any of those principles have been violated.
14. Principles laid down in Coe/ho's case (supra) were
subsequently followed by a five Judges Bench in Ashok Kumar
D Thakur v. Union of India and others (2008) 6 SCC 1 wherein
Constitution (93rd Amendment) Act, 2005 and the enactment
of the Central Educational Institutions (Reservation in
Admission) Act, 2006 were impugned. Referring Article
19(1 )(g) Court held that if any constitutional amendment is
E made which moderately abridges the principle under Article
19(1 )(g), it cannot be held that it violates the basic structure of
the Constitution. For determining whether a particular feature
of the Constitution is part of basic structure, it has to be
examined in each individual case, keeping in mind, the scheme
F of the Constitution, its object and purpose, and the integrity of
the Constitution as a fundamental instrument for the complete
governance. Further it was pointed out that the principle of
equality is a delicate, vulnerable and supremely precious
concept for our society and has embraced a critical and
G essential component of constitutional identity. Principles of
equality of course cannot be completely taken away so as to
leave citizens in a state of lawlessness, but it was pointed out
that the facets of the principle of equality can always be altered,
especially to carry out the directive principles of State policy.
Similar view has been taken in State of West Bengal and
H
GLANROCK ESTATE (P) LTD. v. STATE OF TAMIL 643
NADU [S.H. KAPADIA, CJI.]
others v. Committee for Protection of Democratic Rights, West A
Bengal and others 2010 (3) SCC 571, where the Court was
examining the powers of the High Court under Article 226 of
the Constitution to order investigation by the Central Bureau
of Investigation in respect of a cognizable offence. In
conclusion the Bench held as follows: B
"The fundamental rights, enshrined in Part Ill of the
Constitution are inherent and cannot be extinguished by
any constitutional or statutory provision. Any law that
abrogates or abridges such rights would be violative of the C
basic structure. The actual effect and impact of the law
on the rights guaranteed under Part Ill has to be taken into
account in determining whether or not it destroys the basic
structure."
15. Fundamental rights enshrined in Part Ill can be D
extinguished by Constitutional amendments and if it abrogates
or abridges such rights, would not as such, abrogate or abridge
the basic structure. The test is whether it has the effect of
nullifying the over arching principles of equality, secularism,
liberty and so on especially when such a law is placed in the E
9th Schedule, which test in the present case has not been
satisfied.
16. I, therefore, fully concur with the view of the Lord Chief
Justice that the writ petitions and the civil appeals deserve F
dismissal, and there shall be no order as to costs.
K.K.T. Appeals and writ Petition dismissed.
G
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