Holding

The Court did not decide the substantive question but referred the controversy to a larger bench to determine the validity of post‑1973 Ninth Schedule insertions in view of the basic structure doctrine.

Summary

The petitioners challenged the insertion of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 and the West Bengal Land Holding Revenue Act, 1979 into the Ninth Schedule of the Constitution after they had been struck down as unconstitutional. The issue was whether such post‑1973 insertions, protected by Article 31B, violate the basic structure doctrine, particularly the basic feature of judicial review and the protection of fundamental rights under Articles 14, 19 and 31. The Court examined the precedents set in Waman Rao (1981), Bhim Singh (1985), Kesavananda Bharati (1973) and related cases, noting that amendments to the Ninth Schedule after 24 April 1973 are open to challenge if they damage the Constitution’s basic structure. It observed that earlier insertions before that date enjoy a shield, but later insertions do not automatically receive protection. The Court therefore ordered that the matter be referred to a larger bench for a definitive ruling, leaving the appeals and writ petitions pending.

Issues considered

Whether an Act or part of an Act that has been declared unconstitutional can be validly inserted into the Ninth Schedule after 24 April 1973.
Whether such insertion defeats the basic structure of the Constitution, particularly the doctrine of judicial review and fundamental rights under Articles 14, 19 and 31.
Whether Article 31B provides blanket protection to statutes placed in the Ninth Schedule after the Kesavananda Bharati judgment.

Legislation cited

Subjects

Ninth ScheduleBasic Structure DoctrineJudicial ReviewConstitutional AmendmentFundamental RightsArticle 31BLand ReformSupreme CourtReference to Larger Bench

Judgment

A LR. COELHO (DEAD) BY LRS. ETC.
v.
THE STATE OF TAMIL NADU ETC.

SEPTEMBER 14, 1999

B [S.P. BHARUCHA, B.N. KIRPAL, V.N. KHARE, SYED SHAH
MOHAMMED QUADRI AND D.P. MOHAPATRA, JJ.]

Constitution of India:

C Articles 3 I A and 31 B-lnsertion of Gudalur Janmam Estates (Abolition
and Conversion into Ryotwari) Act, 1969 and West Bengal Land Holding
Revenue Act 1979 in Ninth Schedule to the Constitution-Validity of-
Matter referred to larger Bench-Judgments in Waman Rao and Bhim Singh
Ji also to be considered by larger Bench.

D Waman Rao & Ors. Etc. Etc. v. Union of India and Ors., [1981) 2 SCR
l and Maharao Sahib Sri Bhim Sing Ji Etc. Etc. v. Union of India & Ors.
Etc. Etc., (1985) Suppl. 1 SCR 862, referred to.

Balmadies v. State of Tamil Nadu, (1973) 1 SCR 258; Holiness
E Kesavananda Bharti Sripadagalvaru v. State of Kera/a, [1973) Suppl. SCR
1 and Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1981) 1 SCR 206,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1344-45
of 1976 Etc.
F From the Judgment and Order dated 23.9.76 of the Madras High Court
in W.P. Nos. 4386of1974 and 90of1975.

K.N. Rawat, Additional Solicitor General, F.S. Nariman, P.P. Rao, Raju
Ramachandran, Shanti Bhushan, R. Mohan, P.H. Parekh, Amit Dhingra, Ms.
G Indoo P. Verma, Prashant Kumar, Joseph Pookkatt, Rajeev Sharma, Sanjay
Hegde, Ms. Sushma Suri, Mrs. Anil Katiyar, P. Parmeshwaran, Krishan Mahajan,
R.K. Gupta, A. Mariarputham, Ms. ArunaMathur, M. Krishnamurthy, H.V.P.
Sharma, R. Nedumaran, Tara Chandra Sharma, Rathin Das, Rajesh and Ejaz
Maqbool for the appearing parties.

The following Order of the Court was delivered :
H 394
1.R. COELHO v. STATE OF TAMIL NADU 395
The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) A

-
"
Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam
estates in the State of Tamil Nadu, was struck down by this Court in Balmadies
v. State of Tamil Nadu, [1973] 1 SCR 258 because this was not found to be
. a measure of agrarian reform protected by Article 3 lA of the Constitution.
Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck B
down by the Calcutta High Court as being arbitrary and, therefore,
unconstitutional and the special leave petition filed against the judgment by
the State of West Bengal was dismissed. By the Constitution (Thirty fourth
Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth
Schedule. By the Constitution (Sixty sixth Amendment) Act, the West Bengal
Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth C
Schedule. These insertions are the subject matter of challenge in these appeals
and writ petitions. The contention is that these Acts, inclusive of the portions
thereof which had been struck down, could not have been validly inserted
in the Ninth Schedule. It rests on two counts: ( l) Judicial review is a basic
feature of the Constitution; to insert in the Ninth Schedule an Act which, or D
·part of which, has been struck down as unconstitutional in exercise of the
power of judicial review is to destroy or damage the basic structure of the
Constitution. (2) To insert into the Ninth Schedule after 24th April, 1973, an
Act which, or part of which, has been struck down as being violative of the
fundamental rights conferred by Part-III of the Constitution is to destroy or
damage its basic structure. E
Article 31 B provides :

"31 B. Validation of certain Acts and Regulations.-Without prejudice
to the generality of the provisions contained in Article 3 lA, none of
the Acts and Regulations specified in the Ninth Schedule nor any of F
the provisions thereof shall be deemed to be void, or ever to have
become void, on the ground that such Act, Regulation or provision
is inconsistent with, or takes away or abridges any of the rights
conferred by, any provisions of this Part, and notwithstanding any
judgment, decree or order of any court or tribunal to the contrary,
each of the said Acts and Regulations shall, su~ject to the power of G
any competent Legislature to repeal or amend it, continue in force."

The judgment of a Constitution Bench of this Court in Waman Rao &
Ors. etc. etc. v. Union ofIndia and Ors., [1981] 2 SCR 1 dealt with Article 31B.
It referred to the judgment of this Court in the case of Kesavananda Bharti,
(1973] Suppl. SCR 1, decided on 24th April, 1973, where it was held by the H
396 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A majority "that Parliament has no power to amend the Constitution so as to
damage or destroy its basic or essential features or its basic structure." The
order in Waman Rao 's case was that all amendments to the Constitution which
were made before 24th April, 1973 and by which the Ninth Schedule was
amended from time to time by the inclusion of various Acts and Regulations
B therein, were valid and constitutional. Amendments to the Constitution made
on or after 24th April, 1973 by which the Ninth Schedule was amended from
time to time by the inclusion of various Acts and Regulations therein were
"open to challenge on the ground that they, or any one or more of them are
beyond the constituent power of the Parliament since they damage the basic
and essential features of the Constitution or its basic structure." The order
C in Waman Rao "did not pronounce upon the validity of such subsequent
constitutional amendments except to say that if any Act or Regulation included.
in the Ninth Schedule by a constitutional amendment made after April 24, 1973
is saved by Article 31 A, or by Article 31 C as it stood prior to its amendment
by the forty second amendment, the challenge to the validity of the relevant
D Constitutional Amendment by which that Act or Regulation is put in the
Ninth Schedule on the ground that the amendment damages or destroys a
basic or essential feature of the Constitution or its basic structure as reflected
in Articles 14, 19 or 31, will become otiose." Chandrachud, C.J., in his judgment
in Waman Rao, said that laws and regulations included in the Ninth Schedule
prior to 24th April, 1973 "will not be open to challenge on the ground that
E they are inconsistent with or take away or abridge any of the rights conferred
by any of the provisions of Part III of the Constitution. Acts and Regulations
which are or will be included in the Ninth Schedule on or after April 24, 1973
will not receive the protection of Article 31 B for the plain reason that in the
face of the judgment in Kesavanand Bharti (supra) there was no justification
for making additions to the Ninth Schedule with a view to conferring a blanket
F protection on the laws included therein. The various constitutional amendments
by which additions were made to the Ninth Schedule on or after April 24, 1973
will b.e valid only if they do not damage or destroy the basic structure of the
Constitution". Bhagwati, J. delivered a judgment that is common to Waman
~'-- __Rao and Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR
G 206. He said that "all constitutional amendments made after the decision in
Keshavananda Bharti's case would have to be tested by reference to the
basic structure doctrine, for Parliament would then have no excuse for saying
that it did not know the limitation on its amending powers". He added that
"in every case where a constitutional amendment includes a statute or statutes
in the Ninth Schedule, its constitutional validity would have to be considered
H by reference to the basic structure doctrine and such constitutional amendment
I.R. COELHO v.STATE OF TAMIL NADU 397
would be liable to be declared invalid to the extent to which it damages or A
destroys the basic structure of the Constitution by according protection
against violation of any particular fundamental right."

The judgment in Waman Rao needs to be considered by a larger Bench
so that the apparent inconsistencies therein are reconciled and it is made clear
whether an Act or Regulation which,, or a part of which, is or has been found B
by this Court to be violative of one or more of the fundamental rights
conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or
whether it is only a constitutional amendment amending the Ninth Schedule
that damages or destroys the basic structure of the Constitution that can be
struck down. C
The Constitution Bench that had decided Waman Rao also decided the
case of Maharao Sahib Sri Bhim Singh Ji Etc. Etc. v. Union of India & Ors.
Etc. Etc., [1985] Suppl. 1 SCR 862. The Urban Land (Ceiling and Regulation)
Act, 1976 was the subject matter of the decision. It had been inserted into
the Ninth Schedule by the Constitution (Fortieth Amendment) Act. Tuizapurkar, D
J. held the entire Act to be unconstitutional. The other four learned Judges
agreed with him to the extent that a part of Section 27(1) of the Act was
unconstitutional. Section 27(1) read thus :

"27(1) Notwithstanding anything contained in any other law for the
time being in force, but subject to the provisions of sub-section (3) E
of Section 5 and sub-section (4) of Section 10, no person shall transfer
by way of sale, mortgage, gift, lease for a period exceeding ten years,
or otherwise, any urban or urbanisable land with a building (whether
constructed before or after the commencement of this Act) or a portion
only of such building for a period of ten years of such commencement F
or from the date on which the building is constructed, whichever is

•
later, except with the previous permission in writing of the competent
authority."

Tulzapurkar, J., Krishna Iyer, J. and A.P. Sen, J. delivered separate
judgments. Chandrachud, CJ., on behalf of himself and Bhagwati, J., stated G
that they would deliver a detailed judgment later; but, later, they passed an
order stating that they had gone through the judgment of Krishna Iyer, J. and
found that there was nothing that they could usefully add to it. Tulzapurkar,
J. struck down Section 27(1) for the reason that it did not adequately control
the arbitrary exercise of the power to grant or refuse the permission. The
provision was found by him to be violative of Article 14 and was, therefore. H
..
398 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R. _

A struck down as being ultra vires and unconstitutional. A.P. Sen, J. took the
view that there was no justification for the freezing of transactions by way
of sale, mortgage, gift or lease of vacant land or building for a period exceeding
ten years even though such land, with or wi.thout building thereon, fell within
the ceiling limits. The right to acquire, hold and dispose of property guaranteed
to a citizen under Article 19(1 )( t) carried with it the right not to hold any
B property. It was difficult to appreciate how a citizen could be compelled to
own property against his will. If vacant land owned by a person fell within
the ceiling limits for an urban agglomeration, he was outside the purview of
the Act and could not be governed by any of the provisions of the Act. It
was, therefore held by the learned Judge that the provisions of Section 27(1)
C were invalid insofar as they sought to affect a citizen's right to dispose of his
urban property in an urban agglomeration within the ceiling· limits. Krishna
Iyer, J. did not discuss the provisions of Section 27(1), but he agreed with
the learned Chief Justice "regarding the partial invalidation of Section 27(1)".
The learned Chief Justice had said in his brief earlier order that Section 27(1)
was invalid insofar as it imposed a restriction on the transfer of any urban
D or urbanisable property within the ceiling area. ·such property was transferable
without the constraints mentioned in Section 27(1).

What is relevant is that whereas Tulzapurkar, J. and A.P.Sen, J. struck
down Section 27(1), in part, for violation of the fundamental rights conferred
E by Articles 14 and 19(l)(t) respectively, without more, Krishna Iyer, J. said:

"What is a betrayal of the basic feature is not a mere violation of
Article 14 but a shocking, unconscienable or unscrupulous travesty
of the quintessence of equal justice. If a legislation does go that far
it shakes the democratic foundation and must suffer the death penalty."
F The decision in Bhim Singh Ji case will also have to be considered by
the larger Bench for the purposes of arriving at the conclusion aforementioned.

We deem it fit, accordingly, to refer these writ petitions and appeals for
decision to a larger Bench, preferably of nine learned Judges. The paper5 and
G proceedings shall be placed before the Hon'ble the Chief Justice of India for
appropriate orders.

RP. Appeal and petition still pending.