Holding

A law that abrogates or abridges rights guaranteed by Part III, even if placed in the Ninth Schedule, is subject to judicial review and must satisfy the basic structure "rights test"; blanket immunity under Article 31B is unconstitutional.

Summary

The case arose from a reference concerning whether statutes placed in the Ninth Schedule after the Kesavananda Bharati judgment (24 April 1973) can enjoy absolute immunity from judicial review under Article 31B. The petitioners argued that such immunity would violate the basic structure doctrine by abrogating fundamental rights in Part III, while the respondents contended that the Ninth Schedule provides a valid constitutional shield. The nine‑Judge Bench examined the evolution of the basic structure doctrine, the limited nature of Parliament's amending power under Article 368, and the essential role of Articles 14, 19, 21 and 32 as part of the basic structure. It held that any law, even if placed in the Ninth Schedule, must be tested against the basic structure and the "rights test"; blanket immunity is not permissible. Consequently, the reference was answered and the matters were remitted to a three‑Judge Bench for further hearing.

Issues considered

Whether statutes inserted in the Ninth Schedule after 24 April 1973 can be granted absolute immunity from judicial review under Article 31B.
Whether such immunity would violate the basic structure doctrine, particularly the essential features of Articles 14, 19, 21 and 32.
Whether the power to amend the Constitution under Article 368 is subject to implied limitations derived from the basic structure doctrine.
What test (rights test, essence of right test, impact test) should be applied to assess the validity of Ninth Schedule laws post‑Kesavananda Bharati.

Legislation cited

Constitution (42nd Amendment) Act, 1976
Constitution of Indias. Article 13, s. Article 14, s. Article 19, s. Article 21, s. Article 31A, s. Article 31B, s. Article 31C, s. Article 32, s. Article 359, s. Article 368, s. Article 44th Amendment

Subjects

basic structure doctrineNinth ScheduleArticle 31Bjudicial reviewfundamental rightsconstitutional amendmentseparation of powersequalityrule of law

Judgment

A LR. COELHO (DEAD) BY LRS. ~
V.

STATE OF TAMIL NADU

JANUARY I I, 2007

B (Y.K. SABHARWAL,CJI, ASHOK BHAN, DR. ARIJIT PASAYAT,
B.P. SINGH, S.H. KAPADIA, C.K. THAKKER, P.K.
BALASUBRAMANYAN, ALTAMAS KABIR AND D.K. JAIN, JJ.] r
Constitution of India, 1950:
c
Article 368 read with Article 31-B, Article 32-Ninth Schedule-
Amendment of Constitution-Inclusion of enactments in Ninth Schedule-
Judicial review of-Held: a law that abrogates or abridges rights guaranteed
by Part Ill of the Constitution and also violates the basic structure
doctrine, whether by amendment ofany Article ofPart Ill or by an insertion
D in Ninth Schedule, such law will have to be invalidated in exercise of
power ofjudicial review of the Court-All amendments to the Constitution
made on or after 24.4.1973 by which Ninth Schedule is amended by
inclusion of various laws therein can be tested on the touchstone of basic
or essential features of Constitution as reflected in Article 21 read with
E Articles 14 and 19 and the principles underlying them by application of
the "right test" and the "essence of the right test"-While laws may be
added to the Nfnth Schedule, once Article 32 is resorted to the legislation
concerned must answer to the complete test offundamental rights-Article
31-B after 24.4.1973, despite its wide language, cannot confer unlimited
or unregulated immunity- If infraction affects the basic structure, such a
F A.
law will not get protection of Ninth Schedule -Saving-If validity of any
Ninth Schedule law has already been upheld by Supreme Court, it would
not be open to challenge again on principles declared in this judgment-
Action taken and transactions finalized as a result of impugned Acts shall :'
not be open to challenge-Constitutionalism-Doctrine of separation of
G powers-Doctrine of basic structure--Judicial review.

Constitutional ism-Constitution of India-Doctrine of basic
.....
~
structure-Held, equality, rule of law, judicial review, separation ofpowers,
f
secularism, reasonable balance between Fundamental Rights and Directive
H Principles, form part of the basic structure-Each of these concepts are
706
~-
LR.COELHO (DEAD) BY LRs. v. STATE 707

J
intimately connected-After enunciation of the basic structure doctrine, A
full judicial review is an integral part of the constitutional scheme-
Constitution of India-Articles 14,15,16,19,20,2Jand 32.

lnte1pretation of Constitution-Constitutional provisions have to be
construed having regard to the march of time and the development of
law-Abrogation and abridgement of fundamental rights, therefore, have
B
to be examined on broad interpretation.

On the Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969 having been struck down by the Supreme Court1, and
section 2(c) of the West Bengal Land Holding Revenue Act, 1979 having c
been struck down by the Calcutta High Court, and the Supreme Court
-.<
~ having dismissed the consequential special leave petition filed by the State
Government, the Parliament, by the Constitution (fhirty-Fourth Amendment)
Act, inserted the Janmam Act in the Ninth Schedule to the Constitution of
India and, by the Constitution (Sixty-sixth Amendment) Act, inserted the
West Bengal Land Holding Revenue Act, 1979 in the Ninth Schedule.
D
These insertions were challenged before a Constitution Bench of the
Supreme Court The said Constitution Bench was of the opinion 2 that the
decision in Waman Rao and Ors. v. Union of India and Ors., (1981) 2 SC
3623 to the effect that amendments to the Constitution on or after 24th
April 1973 (i.e. the date of decision in His Holiness Kesavananda Bharti E
Sripadagulvaru v. State of Kera/a and Anr., [1973] 4 SCC 2254 by which
the Ninth Schedule was amended from time to time by inclusion of various
Acts and, regulations therein, were open to challenge on the ground that
they, or anyone or more of them, were beyond the constituent power of
Parliament since they damage the basic or essential features of the F
->. Constitution or its basic structure, would need reconsideration by a larger
Bench preferably of nine Judges. Thus, the matter was placed before the
present nine-Judge Bench.

1. Balmadies Plantations Ltd & Anr. v. State of Tamil Nadu [1972] 2 SCC
133=[1973] 1 SCR258.
G
2.1.R. Coelho v. State ofTamil Nadu, [1999] 7 SCC 580=[1999] Supp. 2 SCR
,f'I
394.
3. [1981] 2 SCR I.
4. [1973] Supp. 1 SCR I. H
~
... ;"

708 SUPREME COURT REPORTS [2007) I S.C.R.

A On the questions: whether on and after 24th April, 1973 when basic ..
.
structure doctrine was propounded, it is permissible for the Parliament ·
under Article 31B to immunize legislations from fundamental rights by
inserting them into the Ninth Schedule and, if so, what is its effect on the
power of judicial review of the Court; and what is the extent and nature of
immunity that Article 31-B can provide,
B
Answering the reference, the Court

HELD: 1.1. The Constitution of India is a living document, and its
interpretation may change as the time and circumstances change, to keep·
c pace with it. The constitutional provisions have to be construed ·having
regard to the march of time and the development of law. The principle of
constitutionalism is now a legal principle which requires control over the ·II'

exercise of Governmental power to ensure that it does not destroy the
democratic principles upon which it is based. These democratic principles
include the protection of fundamental rights. The principle of t·
D I
constitutionalism advocates a check and balance model of the separation of
powers, it requires a diffusion of powers, necessitating different independent /
centers of decision making. The principle of constitutionalism underpins
the principle oflegality which requires the Courts to interpret legislation
on the assumption that Parliament would not wish to legislate contrary to
E fundamental rights. The Legislature can restrict fundamental rights but
it is impossible for laws protecting fundamental rights to be impliedly
repealed by future statutes. [Paras 43, 44 and 110] [759-E, 732-A-D] ..,.,

1.2. The fundamentalness of fundamental rights has to be examined
F having regard to the enlightened point of view as a result of development
j...
of fundamental rights over the years. The abrogation or abridgment of the
fundamental rights under Chapter III have, therefore, to be examined on
broad interpretation. [Paras 57 and 63] [736-C, 741!..B]
:"-
His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kera/a
G & Anr., (1973] 4 SCC 225= [1973] Suppl. 1 SCR 1; Minerva Mills Ltd. &
Ors. v. Union of India & Ors., [1980] 3 SCC 625=[1981]1 SCR 206;
Additional District Magistrate, Jabalpur v. Shivakant Shukla, [1976) 2
'"ti
SCC 521= (1976) Supp. SCR 172; Smt. Indira Nehru Gandhiv. Raj Narain,
(1975) Supp. 1SCC1=[1976) 2 SCR 454; Waman Rao and Ors. v. Union
H of India and Ors., (1981} 2 SC 362= (1981) 2 SCR 1; Maharao Sahib Shri
I
>-
LR.COELHO (DEAD) BY LRs. v. STATE 7(1)

Bhim Singhji v. Union of India & Ors., (1981] 1 SCC 166=(1985] Suppl. A
1 SCR 862; A.K Gopalan v. The State of Madras, [1950] SCR 88; Menaka
Gandhi v. Union of India, (1978] 1 SCC 248 =(1978] 2 SCR 621; and L.
Chandra Kumarv. Union ofIndia & Ors., (1997] 3 SCC 261=(1997] 2 SCR
1186, relied on.

Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, B
(1952) SCR 89; Sajjan Singh v. State ofRajasthan, (1965] 1 SCR 933; and
Kameshwar v. State of Bihar, AIR (1951) Patna 91, cited.

The State of Bombay v. Bhanji Munji & Anr.,(1955] 1 SCR 777;
Rustom Cavasjee Cooper v. Union of India, (1970] 3 SCR 530; Sakal C
Papers (P) Ltd. & Ors. v. The Union of India, (1962] 3 SCR 842 ; Sambhu
Nath Sarkar v. The State of West Bengal & Ors., [1974] 1 SCR 1;
Haradhan Saha & Anr. v. The State of West Bengal & Ors., (1975] 1 SCR
778; Khudiram Das v. The State of West Bengal & Ors., (1975] 2 SCR 832
and M Nagaraj & Ors. v. Union of India & Ors., [2006] 8 SCC 212,
referred to. D
t\. 1.3. By enacting Fundamental Rights and Directive Principles which
are negative and positive obligations of the States, the Constituent Assembly
made it the responsibility of the Government to adopt a middle path between
individual liberty and public good. Fundamental Rights and Directive
Principles have to be balanced. That balance can be tilted in favour of the
E
public good. The balance, however, cannot be overturned by completely
overriding individual liberty. This balance is an essential feature of the
Constitution. [Para 102] (756-A-B]

1.4. The framers of the Constitution have built a wall around certain F
parts of fundamental rights, which have to remain forever, limiting ability
of majority to intrude upon them. That wall is the 'Basic Structure'
doctrine. The developments made in the field of interpretation and expansion
of judicial review shall have to be kept in view while deciding the applicability
of the basic structure doctrine - to find out whether there has been
violation of any fundamental right, the extent of violation, does it destroy G
the balance or it maintains the reasonable balance. Since the doctrine of
basic structure provides a touchstone to test the amending power or its
exercise, there can be no doubt and it has to be so accepted that Part III
of the Constitution has a key role to play in the application of the said
doctrine. [Paras 51, 102 and103] [756-C, 734-D] H'
; .
I~
710 SUPREME COURT REPORTS (2007] 1 S.C.R

A 1.5. It cannot be said that essence of the principle behind Article 14
is not part of the basic structure. In fact, essence or principle of the
right or nature of violation is more important than the equality in the
abstract or formal sense. The majority opinion in Kesavananda Bharati 's
case clearly is that the principles behind fundamental rights are part of
the basic structure of the Constitution. The fundamental rights are
B deeply interconnected. Each supports and strengthens the work of the
others. [Para llO] [759-C-E]

2.1.The doctrine of basic structure contemplates that there are
certain parts or aspects of the Constitution including Article 15, Article
C 21 read with Articles 14 and 19 which constitute the core values which if
allowed to be abrogated, would change completely the nature of the
Constitution. Exclusion of fundamental rights would result in nullification
of the basic structure doctrine, the object of which is to protect basic
features of the Constitution as indicated by the synoptic view of the rights
D in Part III. (Para 142] [768-D]

2.2. Equality, rule of law, judicial review and separation of powers }
form parts of the basic structure of the Constitution. Each of these
concepts are intimately connected. There can be no rule of law, ifthere is
no equality before the law. These would be meaningless ifthe violation was
E not subject to the judicial review. All these would be redundant if the
legislative, executive and judicial powers are vested in one organ. Therefore,
the duty to decide whether the limits have been transgressed has been
placed on the judiciary. [Para 130] [764-E]

F His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kera/a L
& Anr., [1973] 4 SCC 225= [1973] Suppl. 1 SCR 1; Smt. Indira Nehru .°"
Gandhi v. Raj Narain, [1975] Supp. (1) SCC 1=[1976] 2 SCR 454; Waman
Rao and Ors. v. Union of India and Ors., [_1981] 2 SC 362= (1981] 2 SCR
1; and Special Reference No. 1 of 1964, [i965] 1 SCR 413, relied on.
G
Sprit of Laws Boox XI, Ch.6, referred to.

2.3. The jurisdiction conferred on this Court by Article 32 is an
important and integral patt of the basic structure of the Constitution of
H India and no act of Parliament can abrogate it or take it away except by way
I.R.COELHO(DEAD)BYLRs. v. STATE 711

of impermissible erosion of fundamental principles of the constitutional A
..~ • scheme are settled propositions of Indian jurisprudence. It is the duty
of this Court to uphold the constitutional values and enforce constitutional
limitations as the ultimate interpreter of the Constitution.
[Paras 40 and 421 (731-E-H]

Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union B
of India and Ors., (1981] l SCC 568=(1981) 2 SCR 52; State of Rajasthan
v. Union of India & Ors., (1977) 3 SCC 592=(1978] 1 SCR 1 M Krishna
Swami v. Union of India & Ors., (1992) 4 SCC 605=(1992) Suppl. 1 SCR
53; Daryao & Ors. v. The State of UP & Ors., (1962) 1 SCR 574; S.R.
Bommai & Ors. v. Union of India & Ors., [1994) 3 SCC 1=[1994] 2 SCR C
644; L. Chandra Kumar v. Union ofIndia & Ors., (1997] 3 SCC 261=[1997]
2SCR1186; and State of Madras v. V.G. Row, [1952] SCR 597, relied on.

2.4. The constitutional amendments are subject to limitations and if
the question of limitation is to be decided by the Parliament itself which
enacts the impugned amendments and gives that law a complete immunity, D
it would disturb the checks and balances in the Constitution. The authority
~ to enact law and decide the legality of the limitations cannot vest in one
organ. The validity to the limitation on the rights in Part III can only be
examined by another independent organ, namely, the judiciary.
[Para 145) [769-C-D) E
2.5. While laws may be added to the Ninth Schedule, once Article 32
is triggered, these legislations must answer to the complete test of
fundamental rights. It has to be borne in mind firstly, that each exercise
of the amending power inserting laws into the Ninth Schedule entails a
complete removal of the fundamental rights chapter vis-a-vis the laws that F
..J
are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule
is not controlled by any defined criteria or standards by which the exercise
of power may be evaluated. The consequence of insertion is that it nullifies
entire Part III of the Constitution. There is no constitutional control on
such nullification. It means an unlimited power to totally nullify Part III
in so far as the Ninth Schedule legislations are concerned. For this reason, G
every addition to the Ninth Schedule triggers Article 32 as part of the basic
structure and is consequently subject to the review of the fundamental
rights as they stand in Part III. .The supremacy of the Constitution
mandates an constitutional bodies to comply with the provisions of the
Constitution. It also mandates a mechanism for testing the validity of H
712 SUPREME COURT REPORTS [2007] I S.C.R.

A legislative acts through an independent organ, viz. the judiciary. (Paras 99
4
and 117] (761-D, 755-C-D] •,

Waman Rao and Ors. v. Union of India and Ors., [1981) 2 SC 362=
(1981) 2 SCR 1, upheld.

B 3.1. In considering the question as to the extent of judicial review
permissible in respect of the Ninth Schedule laws in the light of the basic
structure theory propounded in Kesavananda Bharati 's case, it is necessary
to examine the nature of the constituent power exercised in amending the
Constitution. [Para 118] [761-F)
c
3.2. To legislatively override entire Part III of the Constitution by
invoking Article 31-B would not only make the Fundamental Rights
overridden by Directive Principles but it would also defeat fundamentals
such as secularism, separation of powers, equality and also the' judicial
review which are the basic feature of the Constitution and essential
D elements of rule of law and that too without any yardstick/ standard being
provided under Article 31-B. [Para 128) [764-A-B)

3.3. It would be incorrect to assume that social content exist only in
Directive Principles and not in the Fundamental Rights. Articles 15 and
E 16 are facets of Article 14. Article 16(1) concerns formal equality which
is the basis of the rule of law. At the same time, Article 16(4) refers to
egalitarian equality. Similarly, the general right of equality under Article
14 has to be balanced with Article 15(4) when excessiveness is detected in
grant of protective discrimination. Article 15(1) limits the rights of the
F State by providing that there shall be no discrimination on the grounds only
of religion, race, caste, sex, etc. and yet it permits classification for certain '-
classes, hence social content exists in Fundamental Rights as well. All --'r
these are relevant considerations to test the validity of the Ninth Schedule
laws. [Para 129) [764-B-D)

G 3.4. The power to amend cannot be equated with the power to frame
the Constitution, which has no lim.itations or constraints, it is primary
power, a real plenary power. The latter power, however, is derived from the
former. It has constraints of the document viz. Constitution which creates
it. This derivative power can be exercised within the four corners of what \
H has been conferred on the body constituted, namely, the Parliament. Power
LR.COELHO (DEAD) BY LRs. v. STATE 713

,,/ to amend exists in the Parliament but it is subject to the limitation of A
doctrine of basic structure. The fact of validation of laws based on exercise
of blanket immunity eliminates Part III in entirety hence the 'rights test'
as part of the basic structure doctrine has to apply.
[Para 119] [761-G, 762-A-B]

His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kera/a B
& Anr., [1973] 4 SCC 225= 11973] Suppl. 1 SCR 1 and Menaka Gandhi
v. Union of India, [1978] 1 SCC 248 =[1978] 2 SCR 621, relied on.

3.5. Since power to amend the Constitution is not unlimited, if
changes brought about by amendments destroy the identity of the c
Constitution, such amendments would be void. That is why when entire
Part III is sought to be taken away by a constitutional amendment by the
exercise of constituent power under Article 368 by adding the legislation
in the Ninth Schedule, the question arises as to the extent of judicial
scrutiny available to determine whether it alters the fundamentals of the
Constitution. [Para 125) [763-A-B] D

3.6. Since constituent power under Article 368, the other name for
amending power, cannot be made unlimited, it follows that Article 31B
cannot be so used as to confer unlimited power. Article 31B cannot go
beyond the limited amending power contained in Article 368. The power to E
amend the Ninth Schedule flows from Article 368. This power of amendment
has to be compatible with the limits on the power of amendment. This limit
came with the Kesavananda Bharati's case. Therefore Article 31B after
24th April, 1973 despite its wide language cannot confer unlimited or
unregulated immunity. [Para 127] [763-F-G]
F
3. 7. Articles 14, 19 and 21 clearly form part of the basic structure
of the Constitution. After the evolution of the basic structure doctrine, it
cannot be said that exclusion of these rights at Parliament's will without
any standard, cannot be subjected to judicial scrutiny as a result of the bar
created by Article 31B. lfsome of the fundamental rights constitute a basic G
structure, it would not be open to immunise those legislations from full
judicial scrutiny eithel' on the ground that the fundament!ll rights are not
part of the basic structure or on the ground that Part III provisJons are not
available as a result of immunity granted by Article 31B.
[Para 110] [759-A-C]
H
714 SUPREME COURT REPORTS [2007] I S.C.R.

A Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1980) 3 SCC
625=[1981)1 SCR 206; Menaka Gandhi v. Union of India, [1978) 1 SCC
248 =[1978) 2 SCR 621; The State of Bombay v. Bhanji Munji & Anr.,
(1955) 1 SCR 777; Rustom Cavasjee Cooper v. Union of India, [1970) 3
SCR 530; Sakal Papers (P) Ltd. & Ors. v. The Union of India, [1962J 3
SCR 842; Sambhu Nath Sarkar v. The State of West Bengal & Ors., [1974]
B 1 SCR 1; Haradhan Saha.& Anr. v. The State of West Bengal & Ors.,
[1975] 1 SCR 778 and Khudiram Das v. The State of West Bengal & Ors.,
(1975] 2 SCR 832, referred to. ·

4.1. To begin with, it cannot be said that laws that have been found by
C the courts to be violative of Part ill of the Constitution cannot be protected
by placing the same in the Ninth Schedule by use of device of Article 31B
read with Article 368 of the Constitution. Further, mere possibility of
abuse is not a relevant test to determine the validity of a provision. The
people, through the Constitution, have vested the power to make laws in
their representatives through Parliament in the same manner in which
D
they have entrusted the responsibility to adjudge, interpret and construe
law and the Constitution including its limitation in the judiciary. Therefore,
no assumption can be made. However, after a law is placed in the Ninth
Schedule, its vali.dity has. to be tested on the touchstone of basic structure
doctrine. (Paras 76 and 77] (745-D-F;746-A-B)
E
Kunjukutty Sahib Etc. Etc. ".· The State of Kera/a & Anr., [1972] 2
SCC 364=[1973) 1 SCR 326; State of Maharashtra & Ors. v. Man Singh
Sura) Singh Padvi & Ors., (1978] 1 SCC 615; Attorney General for India
& Ors. v. Amratla/ Prajivandas & Ors., (1994] 5 SCC 54=[1994] Suppl.
F 1 SCR 1, referred to.

4.2. However, a situation where entire equality code, freedom code and
right to move court under Part III are all nullified by exercise of power to
grant immunization at will by the Parliament is incompatible with the
implied limitation of the power of the Parliament. In such a case, it is
G the rights test that is appropriate and is to be applied. As held in
Indira Gandhi's case for the correct interpretation, Article 368
requires a synoptic view . of the Constitution between its various
provisions. Part III is amendable subject to basic structure doctrine. It is '\
permissible for the Legislature to amend the Ninth Schedule and grant a
H law the protection in terms of Article 31B but subject to right of
LR.COELHO (DEAD) BY LRs. v. STATE 715

citizen to assail it on the eolarged judicial review concept. The Legislature A
cannot grant fictional immunities and exclude the examination of the Ninth
Schedule law by the Court after the enunciation of the basic structure
doctrine. [Paras 143 - 144] [768-F-H, 769-A-B]

4.3. The power to grant absolute immunity at will is not compatible
with basic structure doctrine and, therefore, after 24th April, 1973 the B
laws included in the Ninth Schedule would not have absolute immunity.
,.... Thus, validity of such laws can be challenged on the touchstone of basic
structure such as reflected in Article 21 read with Article 14 and Article
19, Article 15 and the principles underlying these Articles.
[Para 146] [769-E] c

-
4.4. It has to be borne in view that the fact that some Articles in Part
III stand alone has been recognized even by the Parliament, for example,
Articles 20 and 21. Article 359 provides for suspension of the enforcement
of the rights conferred by Part III during emergencies. However, by
Constitution (44th Amendment) Act, 1978, it has been provided that even D
during emergencies, the enforcement of the rights under Articles 20 and
~
21 cannot be suspended. This is the recognition given by the Parliament
to the protections granted under Articles 20 and 21. No discussion or
argument is needed for the conclusion that these rights are part of the
basic structure or framework of the Constitution and, thus, immunity by
suspending those rights by_placing any law in the Ninth Schedule would
E
not be countenanced. It would be an implied limitation on the constituent
power of amendment under Article 368. Same would be the position in
respect of the rights under Article 32, again, a part of the basic structure
of the Constitution. [Para 147) (769-F-H, 770-A]
..J F
4.5. Fundamental rights are interconnected and some of them form
part of the basic structure as reflected in Article 15, Article 21 read with
Article 14, Article 14 read with Article 16(4) (4A) (4B) etc. The basic
structure as reflected in the above Articles provide a test to judge the
validity of the amendment by which laws are included in the Ninth
Schedule. [Para 124) (762-G-H] G

His Holiness Kesavananda Bharati, Sripadagalvaru v. State of
Kera/a & Anr., [1973) 4 SCC 225= (1973) Suppl. 1 SCR 1; Smt. Indira
r /
Nehru Gandhi v. Raj Narain, [1975] Supp. 1 SCC 1=[1976] 2 SCR 454,
referred to. H
716 SUPREME COURT REPORTS [2007] I S.C.R. "
A 4.6. The constitutional validity of the Ninth Schedule laws on the
touchstone of basic structure doctrine can be adjudged by applying the
'-
direct impact and effect test, i.e., rights test, which means the form of an
amendment is not the relevant factor, but the consequence thereof would be
determinative factor. (Para 151] [771-EI

B 5.1. A law that abrogates or abridges rights guaranteed by Part III of
the Constitution may violate the basic structure doctrine or it may not. If
former is the consequence oflaw, whether by amendment of any Article of -:\
Part III or by an insertion in the Ninth Schedule, such law will have to be
invalidated in exercise of judicial review power of the Court. The validity
c or invalidity would be tested in each case on the principles laid down in this
judgment. [Para 152(i)] [771-G]

Waman Rao and Ors. v. Union of India and Ors., [1981) 2 SCC 362=
[1981] 2 SCR 1, upheld.

D 5.2. The majority judgment in Kesavananda Bharati's case read with
Indira Gandhi's case, requires th.e validity of each new constitutional
amendment to be judged on its own merits. The actual effect and impact
of the law on the rights guaranteed under Part III has to be taken into
account for determining whether or not it destroys basic structure. The
E impact test would determine the validity of the challenge.
(Para 152 (ii)] (771-H]

5.3. All amendments to the Constitution made on or after 24th April,
1973 by which the Ninth Schedule is amended by inclusion of various laws
therein shall have to be tested on the touchstone of the basic or essential
F features of the Constitution as reflected in Article 21 read with Article 14,
--\
Article 19, and the principles underlying them. Even though an Act is put
in the Ninth Schedule by a constitutional amendment, its provisions would
be open to attack on the ground that they destroy or damage the basic
structure if the fundamental right or rights taken away or abrogated
G pertains or pertain to the basic structure. (Para 152 (iii)] (772-B-C]

5.4. Justification for conferring protection, not blanket protection, on
the laws included in the Ninth Schedule by Constitutional Amendments
~\.
shall be a matter of Constitutional adjudication by examining the nature
and extent of infraction of a Fundamental Right by a statute, sought to be
H
I.RCOELHO (DEAD) BY LRs. v. STATE 717

,l Constitutionally protected, and on the touchstone of the basic structure A
doctrine as reflected in Article 21 read with Article 14 and Article 19 by
application of the "rights test" and the "essence of the right" test taking
the synoptic view of the Articles in Part III as held in Indira Gandhi's case.
Applying the above tests to the Ninth Schedule laws, if the infraction affects
the basic structure then such a law(s) will not get the protection of the
Ninth Schedule. (Para 152 (iv)] (772-D-E) B

6.1. If the validity of any Ninth Schedule law has already been upheld
by this Court, it would not be open to challenge such law again on the
principles declared by this judgment. However, if a law held to be violative
of any rights in Part III is subsequently incorporated in the Ninth Schedule C
after 24th April, 1973, such a violation/infraction shall be open to challenge
on the ground that it destroys or damages the basic structure as indicated
in Article 21 read with Article 14, Article 19 and the principles underlying
thereunder. (Para 152 (v)) (772-G-H)

6.2. Action taken and transactions finalized as a result of the impugned
D
Acts shall not be open to challenge. (Para 152 (vi)) 1773-A)

7. The petitions/appeals be now placed for hearing before a three-
Judge Bench. (Para 153) [773-B)
E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1344-1345 of
1976.

From the Judgment and Order dated 23.9.1976 of the High Court of
Judicature at Madras in W.P. Nos. 4386/1974 and 9011975.
F
WITH

WP (C) Nos. 242of1988, 751of1990, CA Nos. 6045 & 6046 of2002,
WP (C) No. 408/03, SLP (C) Nos. 14182, 14245, 14248, 14249, 26879, 14946,
14947,26889,26881,14949,26882, 14950,26883,14965,26884,14993, 15020, (}
26885, 15022, 15029, 14940 & 26886 of2004, WP (C) Nos. 454, 473 & 259 of

- 1994, WP (C) No. 238 of 1995 and WP (C) No. 35 of 1996.

Goolam E. Vahanvati, S.G, Gopal Subramanium, A.S.G., Amarjit Singh,
A.S.G., R. Mohan, A.S.G. Uday Holla, A.G., Raman, A.A.G., F.S. Nariman, H
718 SUPREME COURT REPORTS [2007] 1 S.C.R.
.
Harish N. Salve, Raju Ramachandran, Milind Sathe, _A.S Qureshi, A.S:
A
Nambiar, K.M. Vijayan, Soli J. Sorabjee, T.R., Andhyarujina, R.
Shunmugasundaram, Ram Jethamalani, Dushyant Dave, Ashok H. Desai, -. .
Jugalkishore Gilda, Sr. Advs., P.H. Parekh, Sailesh Mahintura, Sameer Parekh,
E.R. Kumar, Subhash Sharma, Gopal Sankaranarayanan, Sonali Basu Parekh,
Nitin Thukral, Rukhmini Bobde, Kush Chaturvedi, Rohan Thawani, Joseph
B Pookkatt, Attreyee Majumdar, Pooja Dhar, Nikhil Majithia, Saurabh Sinha,
Rishab, Prashant Kumar, A.N. Bardiyar, Rachana Joshi Jssar, A. Rasheed
Qureshi, Banamali Sil, Sewa Ram, Jacob Mathew, P.K. Manohar, Anip
Sachthey, Harin P. Raval, Huzefa Ahmadi, Mohit Paul, Meenakshi Grover,
Aprajita Singh, Gayatri Goswami, Kamal Deep, Pawan Kumar, Tejveer Singh
c Pradyuman Gohil, Arijit Prasad, Ravinder Aggarwal, K.V. Mohan, K.V.
Balakrishnan, S.R. Setia; Kiran Suri, Madhumita Bhattacharjee, Avijit'
Bhattacharjee, M.A. Chinnasamy, J. John, K. Krishna Kumar, V.N.
Subramaniyam, A. Subba Rao, Hrishikesh Baruah, Devdatt Kamat, C.P.
Sharma, Mrinalini Sen, V .K. Verma, Sushma Suri, P. Parmeshwaran, Satyakam,
R. Basant, V.G. Pragasam, S. Vallinayagam, Preetesh Kapur, Ashish Chugh,
D
Anand Misra, Ardhendumauli Prasad, Ananth Srinivasan, P.R. Mala, Sanjay
R. Hegde, Anil K. Mishra, Vikrant Yadav, Sashidhar, Tara Chandra Sharma,
Neelam Sharma, Rajeev Sharma, Ajay Sharma, Rupesh Kumar, Ramesh
Singh, Hemantika Wahi, Shivangi, Sumita Hazarika, Rutwik Panda, Sadhana
Sandhu, Pinky Behera, Rathin Das, A. Subba Rao, A. Mariarputham, Aruna
E Mathur (for Mis. Arputham, Aruna & Co.), A.V. Rangam, A. Ranganadhan,
Buddy A. Ranganadhan, M.T. George, Parmanand Gaur, V. Krishna Murthy,
M.A. Chinnasamy, V. Senthil Kumar, V.N. Subramaniyam, Kirti Mishra, E.C.
Vidya Sagar, Sewa Ram, Jacob Mathew, P.K. Manohar, A. Subhashini and
V.R. Anumolu, for the appearing parties.
F
The Judgment of the Court was delivered by

Y.K. SABHARWAL, CJI. : In these matters we are confronted with
a very important yet not very easy task of determining the nature and
character of protection provided by Article 31 B of the Constitution of India,
G 1950 (for short, the 'Constitution') to the laws added to the Ninth Schedule
by amendments made after 24th April, 1973. The relevance of this date is
for the reason that on this date judgment in His Holiness Kesavananda
Bharati, Sripadagalvaru v. State of Kera/a & Anr., [1973] 4 SCC 225 was
pronounced propounding the doctrine of Basic Structure of the Constitution
-
H
LR.COELHO (DEAD) BY LRs. v. STATE [Y .K. SABHARWAL, CJ.] 719

;/ to test the validity of constitutional amendments. A
Re : Order of Reference

2. The order of reference made more than seven years ago by a
Constitution Bench of Five Judges is reported in I.R. Coelho (Dead) by LRs.
B
v. State of Tamil Nadu, [1999] 7 SCC 580 (14.9.1999). The Gudalur Janmam
Estates (Abolition and Conversion into Ryotwari) 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 Plantations ltd.
& Anr. v. State ofTamii Nadu, [1972] 2 SCC 133 because this was not found
to be a measure of agrarian reform protected by Article 31 A of the c
Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act,
1979 was struck 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 D
, 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 Schedule. These insertions were the subject matter of
challenge before a Five Judge Bench.

E
3. The contention urged before the Constitution Bench was that the
statutes, inclusive of the portions thereof which had been struck down,
could not have been validly inserted in the Ninth Schedule.

4. In the referral order, the Constitution Bench observed that, according
... to Waman Rao & Ors. v. Union of India & Ors., [1981] 2 SCC 362, F
~

amendments to the Constitution made on or after 24th April, 1973 by which
the Ninth Schedule was amended from time to time by inclusion of various
Acts, regulations therein were open to challenge on the ground that they,
•
or any one or more of them, are beyond the constituent power of Parliament
since they damage the basic or essential features of the Constitution or its G
basic structure. The decision in Minerva Mills Ltd. & Ors. v. Union of India

- ;.
& Ors., [1980] 3 SCC 625, Maharao Sahib Shri Bhim Singhji v. Union of
India & Ors., [1981] l SCC 166 were also noted and it was observed that
the judgment in Waman Rao needs to be reconsidered by a larger Bench so
that the apparent inconsistencies therein are reconciled and it is made clear
H
720 SUPREME COURT REPORTS [2007] I S.C.R

A whether an Act or regulation which, or a part of which, is or has been found
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 which damages or destroys the basic structure of the
Constitution that can be struck down. While referring these matters for
B decision to a larger Bench, it was observed that preferably the matters be
placed before a Bench of nine Judges. This is how these matters have been
placed before us.

Broad Question
c
5. The fundamental question is whether on and after 24th April, 1973
when basic structures doctrine was propounded, it is permissible for the
Parliament under Article 31 B to immunize legislations from fundamental
rights by inserting them into the Ninth Schedule and, if so, what is its effect
D on the power of judicial review of the Court.

Development of the Law

6. First, we may consider, in brief, the factual background of framing
E of the Constitution and notice the developments that have taken place
almost since inception in regard to interpretation of some of Articles of the
Constitution.

7. The Constitution was framed after an in depth study of manifold
challenges and problems including that of poverty, illiteracy, long years of
F deprivation, inequalities based on caste, creed, sex and religion. The
independence struggle and intellectual debates in the Constituent Assembly
show the value and importance of freedoms and rights guaranteed by Part
III and State's welfare obligations in Part-IV. The Constitutions of various
countries including that of United States of America and Canada were
G examined and after extensive deliberations and discussions the Constitution
was framed. The Fundamental Rights Chapter was incorporated providing
in detail the positive and negative rights. It provided for the protection of
various rights and freedoms. For enforcement of these rights, unlike
Constitutions of most of the other countries, the Supreme Court was vested
-
H with original jurisdiction as contained in Article 32.
)

.h.
I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 721

8. The High Court of Patna in Kameshwar v. State ofBihar, AIR (1951) A
Patna 91 held that a Bihar legislation relating to land reforms was
unconstitutional while the High Courts of Allahabad and Nagpur upheld the
validity of the corresponding legislative measures passed in those States.
The parties aggrieved had filed appeals before the Supreme Court. At the
same time, certain Zamindars had also approached the Supreme Court under
Article 32 of the Constitution. It was, at this stage, that Parliament affi('nded
B
the Constitution by adding Articles 31-A and 31-8 to assist the process of
legislation to bring about agrarian reforms and confer on such legislative
,-
measures immunity from possible attack on the ground that they contravene
the fundamental rights of the citizen. Article 31-B was not part of the
original Constitution. It was inserted in the Constitution by the Constitution c
(First Amendment) Act, 1951. The same amendment added after Eighth
Schedule a new Ninth Schedule containing thirteen items, all relating to land
reform laws, immunizing these laws from challenge on the ground of
contravention of Article 13 of the Constitution. Article 13, inter alia,
provides that the State shall not make any law which takes away or abridges D
the rights conferred by Part III and any law made in contravention thereof
shall, to the extent of the contravention, be void.

9. Articles 3 lA and 3 lB read as under :

"31A. Saving of laws providing for acquisition of estates, etc.- E
[(I) Notwithstanding anything contained in article 13, no law
providing for -

(a) the acquisition by the State of any estate or of any rights
therein or the extinguishment or modification of any such
, ..J
rights, or F

(b) the taking over of the management of any property by the
State for a limited period either in the public interest or in

- (c)
order to secure the proper management of the property, or

the amalgamation of two or more corporations either in the G
public interest or in order to secure the proper management
of any of the corporations, or

(d) the extinguishment or modification of any rights of managing
agents, secretaries and treasurers, managing directors, directors H
)
722. SUPREME COURT REPORTS [2007] I S.C.R.

A or managers of corporations, or of any voting rights of
shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by
virtue of any agreement, lease or licence for the purpose of
searching for, or winning, any mineral or mineral oil, or the
B premature termination or cancellation of any such agreement,
lease or licence,

shall be deemed to be void on the ground that it is inconsistent
with, or takes away or abridges any of the rights conferred by
c article 14 or article 19 :

Provided that where such law is a law made by the Legislature of
a State, the provisions of this article shall not apply thereto unless
such law, having been reserved for the consideration of the
President, has received his assent :
D
Provided further that where any law makes any provision for
the acquisition by the State of any estate and where any land
comprised therein is held by a person under his personal cultivation,
it shall not be lawful for the State to acquire any portion of such
land as is within the ceiling limit applicable to him under any law
E for the time being in force or any building or structure standing
thereon or appurtenant thereto, unless the law relating to the
acquisition of such land, building or structure, provides for payment
of compensation at a rate which shall not be less than the market
value thereof.
F
(2) In this article,-

(a) the expression "estate", shall, in relation to any local area,
have the same meaning as that expression or its local equivalent
has in the existing law relating to land tenures in force in that
..
G area and shall also include -

(i) any jagir, inam or muafi or other similar grant and in the
States of Tamil Nadu and Kerala, any janmam right;

(ii) any land held under ryotwary settlement;
H
LR.COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 723

(iii) any land held or let for purposes of agriculture or for A
purposes ancillary thereto, including waste land, forest
land, land for pasture or sites of buildings and other
structures occupied by cultivators of land, agricultural
labourers and village artisans;

(b) the expression "rights", in relation to an estate, shall include B
any rights vesting in a proprietor, sub-proprietor, under-
proprietor, tenure-holder, r1'iyat, under-raiyat or other
intermediary and any rights or privileges in respect of land
revenue.
c
JIB. Validation of certain Acts and Regulations.-Without
prejudice to the generality of the provisions contained in article
3 IA, none of the Acts and Regulations specified in the Ninth
Schedule nor any of the provisions thereof shall be deemed to be
void, or ever to have become void, on the ground that such Act, D
Regulation or provision is inconsistent with, or takes away or
abridges any of the rights conferred by any provisions of this Part,
and notwithstanding any judgment, decree or order of any court or
tribunal to the contrary, each of the said Acts and Regulations
shall, subject to the power of any competent Legislature to repeal
or amend it, continue in force." E

10. The Constitutional validity of the First Amendment was upheld in
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1952]
SCR89.
F
11. The main object of the amendment was to fully secure the
constitutional validity of Zamindari Abolition Laws in general and certain
specified Acts in particular and save those provisions from the dilatory
litigation which resulted in holding up the implementation of the social
reform measures affecting large number of people. Upholding the validity
of the amendment, it was held in Sankari Prasad that Article 13(2) does not G
affect amendments to the Constitution made under Article 368 because such
amendments are made in the exercise of constituent power. The Constitution
Bench held that to make a law which contravenes the Constitution
constitutionally valid is a matter of constitutional amendment and as such
it falls within the exclusive power of Parliament. H
724 SUPREME COURT REPORTS [2007] I S.C.R.

A 12. The Constitutional validity of the Acts added to the Ninth Schedule
by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in
petitions filed under Article 32 of the Constitution. Upholding the
constitutional amendment and repelling the challenge in Sajjan Singh v.
State of Rajasthan, ( 1965] I SCR 933 the law declared in Sankari Prasad
was reiterated. It was noted that Articles 31 A and 31 B were added to the
B Constitution realizing that State legislative measures adopted by certain
States for giving effect to the policy of agrarian reforms have to face serious
challenge in the courts of~law on the ground that they contravene the
fundamental rights guaranteed to the citizen by Part III. The Court observed
that the genesis of the amendment made by adding Articles 3 IA and 3 IB I

c is to assist the State Legislatures to give effect to the economic policy to
'

bring about much needed agrarian reforms. It noted that if pith and
substance test is to apply to the amendment made, it would be clear that
the Parliament is seeking to amend fundamental rights solely with the object
of removing any possible obstacle in the fulfillment of the socio-economic
policy viz. a policy in which the party in power believes. The Court further
D
noted that the impugned act does not purport to change the provisions of
Article 226 and it cannot be said even to have that effect directly or in any
appreciable measure. It noted that the object of the Act was to amend the
relevant Articles in Part III which confer Fundamental Rights on citizens and
as such it falls under the substantive part of Article 368 and does not attract
E the provision of clause (b) of that proviso. The Court, however, noted, that
if the effect of the amendment made in the Fundamental Rights on Article
226 is direct and not incidental and if in significant order, different
considerations may perhaps arise. ......
F 13. Justice Hidayattulah, and Justice J.R. Mudholkar, concurred with
the opinion of Chief Justice Gajendragadkar upholding the amendment but,
at the same time, expressed reservations about the effect of possible future
amendments on Fundamental Rights and basic structure of the Constitution.
Justice Mudholkar questioned that "It is also a matter for consideration
whether making a change in a basic feature of the Constitution can be
G regarded merely as an amendment or would it be, in effect, rewriting a part
of the Constitution; and if the latter, would it be within the purview of the
Article 3'68?"

14. In IC. GolakNath & Ors. v. State ofPunjab & Anr., [1967] 2 SCR
H 762 a Bench of 11 Judges considered the correctness of the view that had
I.RCOELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 725

been taken in Sankari Prasad and Sajjan Singh (supra). By majority of six A
-t to five, these decisions were overruled. It was held that the constitutional
amendment is 'law' within the meaning of Article 13 of the Constitution and,
therefore, if it takes away or abridges the rights conferred by Part III thereof,
it is void. It was declared that the Parliament will have no power from the
date of the decision (27th February, 1967) to amend any of the provisions
of Part III of the Constitution so as to take away or abridge the fundamental
B
rights enshrined therein.

15. Soon after Golak Nath's case, the Constitution (24th Amendment)
Act, 1971, the Constitution (25th Amendment) Act, 1971, the Constitution
(26th Amendment) Act, 1971 and the Constitution (29th Amendment) Act, C
1972 were passed.

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

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

17. Article 368 was also amended and in Article 368(1) the words "in E
exercise of its constituent powers" were inserted.

18. The Constitution (25th Amendment) Act, 1971 amended the provision
of Article 31 dealing with compensation for acquiring or acquisition of
properties for public purposes so that only the amount fixed by law need
to be given and this amount could not be challenged in court on the ground F
that it was not adequate or in cash. Further, after Article 3 lB of the
Constitution, Article 31 C was inserted, namely :

"3JC. Saving of laws giving effect to certain directive principles.-
Notwithstanding anything contained in article 13, no law giving G
effect to the policy of the State towards securing all or any of the
principles laid down in Part IV shall be deemed to be void on the
ground that it is inconsistent with, or takes away or abridges any
-~
of the rights conferred by article 14 or article 19 Qnd no law
containing a declaration that it is for giving effect to such policy H

-\
\

~
126 SUPREME COURT REPORTS [2007) 1 S.C.R.

A shall be called in question in any court on the ground that it does
not give effect to such policy : ':.
•
Provided that where such law is made by the Legislature of a State,
t-
the provisions of this article shall not apply thereto unless such
r
law, having been reserved for the consideration of the President,
B has received his assent."
'
~
i
~
19. The Constitution (26th Amendment) Act, 1971 omitted from
""'I
Constitution Articles 291 (Privy Purses) and Article 362 (Rights and Privileges
of Rulers of Indian States) and inserted Article 363A after Article 363
c providing that recognition granted to Rulers of Indian States shall cease and
privy purses be abolished. ~

l.-
20. The Constitution (29th Amendment) Act, 1972 amended the Ninth
Schedule to the Constitution inserting therein two Kerala Amendment Acts
D in furtherance ofland reforms after Entry 64, namely, Entry 65 Kerala Land
Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala
Land Reforms Amendment Act, 1971 (Kerala Act 35of1971). ,r

21: These amendments were challenged in Kesavananda Bharati 's
.l
j
case. The decision in Kesavananda Bharati 's case was rendered on 24th t
E April, 1973 by a 13 Judges Bench and by majority of seven to six Go/ak
Nath 's case was overruled. The majority opinion held that Article 368 did r=
not enable the Parliament to alter the b?sic structure or framework of the r
)
Constitution. The Constitution (24th Amendment) Act, 1971 was held to be
valid. Further, the first part of Article 31 C was also held to be valid.
t-
F However, the second part of Article 31 C that "no law containing a declaration ~=

that it is for giving effect to such policy shall be c~lled in question in any
~
---
court on the ground that it does not give effect to such policy" was declared
-'1 r-
i
unconstitutional. The Constitution 29th Amendment was held valid. The \
~

validity of the. 26th Amendment was left to be determined by a Constitution
!-
G Bench of five Judges.
·~

22. The majority opinion did not accept the unlimited power of the
~
Parliament to amend the Constitution and instead held that Article 368 has
i
implied limitations. Article 368 does not enable the Parliament to alter the
--'.
basic structure or framework of the Constitution. ,.___
H

I
I.RCOELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 727

23. Another important development took place in June, 1975, when the A
Allahabad High Court set aside the election of the then Prime Minister Mrs.
Indira Gandhi to the fifth Lok Sabha on the ground of alleged corrupt
practices. Pending appeal against the High Court judgment before the
Supreme Court, the Constitution (39th Amendment) Act, 1975 was passed.
Clause (4) of the amendment inserted Article 329A after Article 329. Sub-
clauses (4) and (5) of Article 329A read as under :
B

"(4) No law made by Parliament before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it
relates to election petitions and matters connected therewith, shall
apply or shall be deemed ever to have applied to or in relation to C
the election of any such person as is referred to in Clause (1) to
either House of Parliament and such election shall not be deemed
to be void or ever to have become void on any ground on which
such election could be declared to be void or has, before such
commencement, been declared to be void under any such law and D
notwithstanding any order made by any court, before such
commencement, declaring such election to be void, such election
shall continue to be valid in all respects and any such order and
any finding on which such order is based shall be and shall be ·
deemed always to have been void and of no effect.
E
(5) Any appeal or cross appeal against any such order of any court
as is referred to in Clause (4) pending immediately before the
commencement of the Constitution (Thirty-ninth Amendment) Act,
1975, before the Supreme Court shall be disposed of in confonnity
with the provisions of Clause (4)." F

»- 24. Clause (5) of the Amendment Act inserted after Entry 86, Entries
87 to 124 in the Ninth Schedule. Many of the Entries inserted were
unconnected with land refonns.

25. In Smt. Indira Nehru Gandhi v. Raj Narain, [1975] Supp. 1 SCC G
1, the aforesaid clauses were struck down by holding them to be violative
of the basic structure of the Constitution.

}. 26. About two weeks before the Constitution Bench rendered decision
in Indira Gandhi's case, internal emergency was proclaimed in the country. H
728 SUPREME COURT REPORTS [2007] 1 S.C.R

A During the emergency from 26th June, 197 5 to March 1977, Article 19 of the
Constitution stood suspended by virtue of Article 358 and Articles 14 and
21 by virtue of Article 359. During internal emergency, Parliament passed
Constitution (40th Amendment) Act, 1976. By clause (3) of the said
amendment, in the Ninth Schedule, after Entry 124, Entries 125 to 188 were
inserted. Many of these entries were unrelated to land reforms.
B
27. Article 368 was amended by the Constitution (42nd Amendment)
Act, 1976. It, inter alia, inserted by Section 55 of the Amendment Act, in
Article 368, after clause (3), the following clauses (4) and (5) :

c "368(4) No amendment of this Constitution (including the provisions
of Part III) made or purporting to have been made under this article
whether before or after the commencement of section 55 of the
Constitution (Forty-second Amendment) Act, 1976 shall be called
in question in any court on any ground.

D (5) For the removal of doubts, it is hereby declared that there shall
be no limitation whatever on the constituent power of Parliament
to amend by way of addition, variation or repeal the provisions of
this Constitution under this article."

E 28. After the end of internal emergency, the Constitution (44th
Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-
clauses (f) of Article 19 with the result the right to property ceased to be
a fundamental right and it became only legal right by insertion of Article
300A in the Constitution. Articles 14, 19 and 21 became enforceable after
the end of emergency. The Parliament also took steps to protect fundamental
F
rights that had been infringed during emergency. The Maintenance of )o..

~-·
Internal Security Act, 1971 and the Prevention of Publication of Objectionable
Matter Act, 1976 which had been placed in the Ninth Schedule were
repealed. The Constitution (44th Amendment) Act also amended Article 359
of the Constitution to provide that even though other fundamental rights
G could be suspended during the emergency, rights conferred by Articles 20
and 21 could not be suspended.

29. During emergency, the fundamental rights were read even
more restrictiveJy as interpreted by majority in Additional District -\
H Magistrate, Jabalpur v. Shivakant Shukla, [1976] 2 sec 521. The decision
LR.COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 729

in Additional District Magistrate, Jabalpur about the restrictive reading A
of right to life and liberty stood impliedly overruled by various subsequent
decisions.

30. The fundamental rights received enlarged judicial interpretation in
the post-emergency period. Article 21 which was given strict textual
meaning in A.K Gopa/an v. The State of Madras, [ 1950] SCR 88 interpreting
B
the words "according to procedure established by law" to mean only
_,.,
I
enacted law, received enlarged interpretation in Mena/ca Gandhi v. Union
of India, [1978] l SCC 248. A.K. Gopalan was no longer good law. In
Mena/ca Gandhi a Bench of Seven Judges held that the procedure established
by law in Article 21 had to be reasonable and not violative of Article 14 and c
also that fundamental rights guaranteed by Part III were distinct and
mutually exclusive rights.

34. In Minerva Mills case (supra), the Court struck down clauses (4)
and (5) and Article 368 finding that they violated the basic structure of the D
Constitution.

32. The next decision to be noted is that of Waman Rao (supra). The
developments that had taken place post- Kesavananda Bharati's case have
been noticed in this decision.
E
33. In Bhim Singhji (supra), challenge was made to the validity of
Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted in
the Ninth Schedule after Kesavananda Bharati 's case. The Constitution
Bench unanimously held that Section 27(1) which prohibited disposal of
property within the ceiling limit was violative of Articles 14 and 19(1 )(f) of F
Part III. When the said Act was enforced in February 1976, Article 19(l)(f)
was part of fundamental rights chapter and as already noted it was omitted
therefrom only in 1978 and made instead only a legal right under Article
300A.

34. It was held in L. Chandra Kumar v. Union of India & Ors., [1997]
G
3 SCC 261 that power of judicial review is an integral and essential feature
of the Constitution constituting the basic part, the jurisdiction so conferred
on the High Courts and the Supreme Court is a part of inviolable basic
structure of Constitution of India.
H
730 SUPREME COURT REPORTS [2007] 1 S.C.R.

A Constitutional Amendment of Ninth Schedule

35. It would be convenient to note at one place, various constitutional
amendments which added/omitted various Acts/provisions in Ninth Schedule
from Item No. I to 284. It is as under :

B "'Amendment Acts/Provisions added
lst Amendment (1951) 1-13
4th Amendment (1955) 14-20
17th Amendment (1964) 21-64
c 29th Amendment ( 1971) 65-66
34th Amendment (1974) 67-86
39th Amendment (1975) I 87-124

40th Amendment (1976) / 125-188
D
47th Amendment (1984) 189~202

66th Amendment (1990) 203-257
76th Amendment ( 1994) 257A
78th Amendment (1995) 258-284'
E
Omission

In 1978 item 92 (Internal Security Act) was repealed by Parliamentary
Act.
F >-
In 1977 item 130 (Prevention of Publication of Objectionable Matter) ~
was repealed.

In 1978 the 44th amendment omitted items 87 (The Representation
of People Act), 92 and 130."
G
Many additions are unrelated to land reforms.

36. The question is as to the scope of challenge to Ninth Schedule laws --\
after 24th April, 1973.
H
I.R.COELHO (DEAD) BY LR.s. v. STATE [Y.K SABHARWAL, CJ.] 731

Article 32. A
37. The significance of jurisdiction conferred on this Court by Article
32 is described by Dr. B.R. Ambedkar as follows :

"most important Article without which this Constitution would be
nullity" B
38. Further, it has been described as "the very soul of the Constitution
-r and the very heart of it".

39. Reference may also be made to the opinion of Chief Justice Patanjali
Sastri in State of Madras v. VG. Row, [1952) SCR 597 to the following C
effect.:

"This is especially true as regards the "fundamental rights" as to
which the Supreme Court has been assigned the role of a sentinel
on the qui vive. While the Court naturally attaches great weight to
the legislative judgment, it cannot desert its own duty to determine D
finally the constitutionality of an impugned statute."

40. The jurisdiction conferred on this Court by Article 32 is an
important and integral part of the basic structure of the Constitution oflndia
and no act of Parliament can abrogate it or take it away except by way of
impermissible erosion of fundamental principles of the constitutional scheme E
are settled propositions of Indian jurisprudence [see Fertilizer Corporation
Kamgar Union (Regd.), Sindri & Ors. v. Union of India and Ors., [1981)
1SCC568, State ofRajasthan v. Union of India & Ors., [1977) 3 SCC 592,
M Krishna Swami v. Union of India & Ors., [1992] 4 SCC 605, Daryao &
Ors. v. The State of UP. & Ors., [1962] 1SCR574 and L. Chandra Kumar
(supra). F

41. In S.R. Bommai & Ors. v. Union of India & Ors., [1994] 3 SCC 1
it was reiterated that the judicial review is a basic feature of the Constitution
and that the power of judicial review is a constituent power that cannot be
abrogated by judicial process of interpretation. It is a cardinal principle of G
our Constitution that no one can claim to be the sole judge of the power
given under the Constitution and that its actions are within the confines of
the powers given by the Constitution.

42. It is the duty of this Court to uphold the constitutional values and
enforce constitutional limitations as the ultimate interpreter of the Constitution. H
732 SUPREME COURT REPORTS [2007] 1 S.C.R.

A Principles of Construction

43. The Constitution is a living document. The constitutional provisions
h!!ve to ?e construed having regard to the march of time and the development
of law., It is, therefore, necessary that while construing the doctrine of basic
structure due regard be had to various decisions which led to expansion and
B development of the law.
;-
44. The principle of constitutionalism is now a legal principle which
requires control over the exercise of Governmental power to ensure that it
does not destroy the democratic principles upon which it is based. These
c democratic principles include the protection of fundamental rights. The
principle of constitutionalism advocates a check and balance model of the
separation of powers, it requires a diffusion of powers, necessitating
different independent centers of decision making. The principle of
constitutionalism underpins the principle of legality which requires the
Courts to interpret legislation on the assumption that Parliament would not
D wish to legislate contrary to fundamental rights. The Legislature can restrict
fundamental rights but it is impossible for laws protecting fundamental /
J,

rights to be impliedly repealed by future statutes.

Common, Law Constitutionalism
E 45. The protection of fundamental constitutional rights through the
common law is main feature of common law constitutionalism.

46. According to Dr. Amartya Sen, the justification for protecting
fundamental rights is not on the assumption that they are higher rights, but
F that protection is the best way to promote a just and tolerant society. 1-

4 7. According to Lord Steyn, judiciary is the best institution to protect
fundamental rights, given its independent nature and also because it
involves interpretation based on the assessment of values besides textual
interpretation. It enables application of the principles of justice and law.
G
48. Under the controlled Constitution, the principles of checks and
balances have an important role to play. Even in England where Parliament
is sovereign, Lord Steyn has observed that in certain circumstances, Courts
may be forced to modify the principle of parliamentary sovereignty, for
H example, in cases where judicial review is sought to be abolished. By ~his
I

)-
LR COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 733

- J: the judiciary is protecting a limited form of constitutionalism, ensuring that
their institutional role in the Government is maintained.
A

Principles of Constitutionality

49. There is a difference between Parliamentary and constitutional
sovereignty. Our Constitution is framed by a Constituent Assembly which B
was not the Parliament. It is in the exercise of law making power by the
Constituent Assembly that we have a controlled Constitution. Articles 14,
19, 21 represent the foundational values which form the basis of the rule of
law. These are the principles of constitutionality which form the basis of
judicial review apart from the rule of law and separation of powers. If in c
future, judicial review was to be abolished by a constituent amendment, as
Lord Steyn says, the principle of parliamentary sovereignty even in England
would require a re look. This is how law has developed in England over the
years. It is in such cases that doctrine of basic structure as propounded
in Kesavananda Bharati's case has to apply.

50. Granville Austin has been extensively quoted and relied on in
Minerva Mills. Chief Justice Ch.andrachud observed that to destroy the
guarantees given by Part III in order to purportedly achieve the goals of Part
IV is plainly to subvert the Constitution by destroying its basic structure.
Fundamental rights occupy a unique place in the lives of civilized societies E
and have been described in judgments as "transcendental", "inalienable"
and "primordial". They constitute the ark of the Constitution. (Kesavananda
Bharati P.991, P.999). The learned Chief Justice held that Parts III and
IV together constitute the core of commitment to social revolution and they,

• • together, are the conscience of the Constitution. It is to be traced for a deep
understanding of the scheme of the Indian Constitution. The goals set out
F

in Part IV have, therefore, to be achieved without the abrogation of the
means provided for by Part III. It is in this sense that Parts III and IV
together constitute the core of our Constitution and combine to form its
conscience. Anything that destroys the balance between the two parts will
ipso facto destroy the essential element of the basic structure of the G
Constitution. [Emphasis supplied] (Para 57). Further observes the learned
Chief Justice, that the matters have to be decided not by metaphysical
subtlety, nor as a matter of semantics, but by a broad and liberal approach.
We must not miss the wood for the trees. A total deprivati.on of fundamental
rights, even in a limited area, can amount to abrogation of a fundamental H
734 SUPREME COURT REPORTS [2007] I S.C.R.

A right just as partial deprivation in every area can. The observations made
in the context of Article 31 C have equal and full force for deciding the
questions in these matters. Again the observations made in Para 70 are very
relevant for our purposes. It has been observed that if by a Constitutional
Amendment, the application of Articles 14 and 19 is withdrawn from a
.
y

defined.field oflegislative activity, which is reasonably in public interest, the
B basic framework of the Constitution may remain unimpaired. But if the
protection of those Articles is withdrawn in respect of an uncatalogued
variety of laws, fundamental freedoms will become a 'parchment in a glass
case' to be viewed as a matter of historical curiosity. These observations
are very apt for deciding the extent and scope of judicial review in cases
C wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded
without any yardstick.

51. The developments made in the field of interpretation and expansion
ofjudicial review shall have to be kept in view while deciding the applicability
of the basic structure doctrine to find out whether there has been violation
D
of any fundamental right, the extent of violation, does it destroy the balance
or it maintains the reasonable balance.

52. The observations of Justice Bhagwati in Minerva Mills case show
how clause (4) of Article 368 would result in enlarging the amending power
E of the Parliament contrary to dictum in Kesavananda Bharati's case. The
learned Judge has said in Paragraph 85 that :

"So Jong as clause (4) stands, an amendment of the Constitution
though unconstitutional and void as transgressing the limitation on
the amending power of Parliament as laid down in Kesavananda
F
Bharati's case, would be unchallengeable in a court of law. The
consequence of this exclusion of the power of judicial review would
be that,~ in effect and substance, the limitation on the amending
power of Parliament would, from a practical point of view, become
non-existent and it would not be incorrect to say that, covertly and
G indirectly, by the exclusion of judicial review, the amending power
of Parliament would stand enlarged, contrary to the decision of this
Court. in Kesavananda Bharati case. This would undoubtedly
damage the basic structure of the Constitution, because there are
two essential features of the basic structure which would be
H violated, namely, the limited amending power of Parliament and the
I.R.COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 735

j' power of judicial review with. a view to examining whether any A
authority under the Constitution has exceeded the limits of its
powers."

53. In Minerva Mills while striking down the enlargement of Article
31 C through 42nd Amendment which had replaced the words "of or any of
the principles laid down in Part IV" with "the principles specified in clause B
(b) or clause (c) and Article 39", Justice Chandrachud said :

"Section 4 of the Constitution (42nd Amendment) Act is beyond
the amending power of the Parliament and is void since it damages
the basic or essential features of the Constitution and destroys its
basic structure by a total exclusion of challenge to any law on the
c
ground that it is inconsistent with, or takes away or abridges any
of the rights conferred by Article 14 or Article 19 of the Constitution,
if the law is for giving effect to the policy of the State towards
securing all or any of the principles laid down in Part IV of the
Constitution." D
(
54. In Indira Gandhi's case, for the first time the challenge to the
constitutional amendment was not in respect of the rights to property or
social welfare, the challenge was with reference to an electoral law. Analysing
this decision, H.M. Seervai in Constitutional Law of India (Fourth Edition)
says that "the judgment in the election case break new ground, which has E
important effects on Kesavananda Bharati 's case itself (Para 30.18). Further
the author says that "No one can now write on the amending power, without
taking into account the effect of the Election case". (Para 30.19). The author
then goes on to clarify the meaning of certain concepts 'constituent power',
'Rigid' (controlled), or 'flexible' (uncontrolled) constitution, 'primary power', F
and 'derivative power'.

55. The distinction is drawn by the author between making of a
Constitution by a Constituent Assembly which was not subject to restraints
by any external authority as a plenary law making power and a power to
amend the Constitution, a derivative power derived from the Constitution G
and subject to the limitations imposed by the Constitution. No provision
of the Constitution framed in exercise of plenary law making power can be
ultra vires because there is no touch-stone outside the Constitution by
which the validity of provision of the Constitution can be adjudged. The
power for amendment cannot be equated with such power of framing the H
736 SUPREME COURT REPORTS [2007] I S.C.R.

A Constitution. The amending power has to be within the Constitution and not '\. ...
outside it.

56. For determining whether a particular feature of the Constitution is
part of its basic structure, one has per force to examine in each individual
case the place of the particular feature in the scheme of our Constitution,
B its object and purpose, and the consequences of its denial on the integrity
of the Constitution as a fundamental instrument of the country's governance
(Chief Justice Chandrachud in Indira Gandhi's case). ""').

57. The fundamentalness of fundamental rights has thus to be examined
having regard to the enlightened point of view as a result of development
c of fundamental rights over the years. It is, therefore, imperative to understand
the nature of guarantees under fundamental rights as understood in the
years that immediately followed after the Constitution was enforced when
fundamental rights were viewed by this Court as distinct and separate rights.
In early years, the scope of the guarantee provided by these rights was
D considered to be very narrow. Individuals could only claim limited protection
against the State. This position has changed since long. Over the years, )
the jurisprudence and development around fundamental rights has made it
clear that they are not limited, narrow rights but provide a broad check
against the violations or excesses by the State authorities. The fundamental
rights have in fact proved to be the most significant constitutional control
E on the Government, particularly legislative power. This transition from a set
of independent, narrow rights to broad checks on state power is demonstrated
by a series of cases that have been decided by this Court. In The State of
Bombay v. BhanjiMunji & Anr., [1955] I SCR 777 relying on the ratio of
Gopalan it was held that Article 31 was independent of Article 19(l)(f).
F However, it was inRustom Cavasjee Cooperv. Union ofIndia, [1970] 3 SCR t- .
530 (popularly known as Bank Nationalization case) the view point of -'i
Gopalan was seriously disapproved. While rendering this decision, the
focus of the Court was on the actual impairment caused by the law, rather
than the literal validity of the law. This view was reflective of the decision
taken in the case of Sakal Papers (P) Ltd & Ors. v. The Union of India,
G [1962] 3 SCR 842 where the court was faced with the validity of certain
legislative measures regarding the control of newspapers and whether it
amounted to infringement of Article 19(I)(a). While examining this question
the Court stated that the actual effect of the law on the right guaranteed -)
must be taken into account. This ratio was applied in Bank Nationalization
H case. The Court examined the relation between Article 19(1)(£) and Article
1.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 737

13 and held that they were not mutually exclusive. The ratio of Gopalan was A
i J. not approved.

58. Views taken in Bank Nationalization case has been reiterated in
number of cases (see Sambhu Nath Sarkar v. The State of West Bengal &
Ors., [1974] 1 SCR I, Haradhan Saha & Anr. v. The State of West Bengal
& Ors., [1975] 1 SCR 778 and Khudiram Das v. The State of West Bengal B
& Ors., [1975] 2 SCR 832 and finally the landmark judgment in the case of
Maneka Gandhi (supra). Relying upon Cooper's case it was said that
Articles 19(1) and 21 are not mutually exclusive. The Court observed in
Maneka Gandhi's case:

"The law, must, therefore, now be taken to be well settled that
c
Article 2 I does not exclude Article I 9 and that even if there is a
law prescribing a procedure for depriving a person of 'persona[
liberty' and there is consequently no infringement of the
fundamental right conferred by Article 2 I, such law, in so far as
it abridges or takes away any fundamental right under Article 19 D
would have to meet the challenge of that article. This proposition
can no longer be disputed after the decisions in R. C. Cooper's
case, Shambhu Nath Sarkar 's case and Haradhan Saha 's case.
Now, if a law depriving a person of ''personal liberty' and
prescribing a procedure for that purpose within the meaning of E
Article 21 has to stand the test of one or more of the fundamental
rights conferred under Article 19 which may be applicable in a
given, situation, ex hypothesi it must also' be liable to be tested
with reference to Article I 4. This was in fact not disputed by the
learned Attorney General and indeed he could not do so in view
of the clear and categorical statement made by Mukherjea, J., in A. F
K. Gopalan 's case that Article 21 "presupposes that the law is a
valid and binding law under the provisions of the Constitution

- having regard to the competence of the legislature and the subject
it "relates to and does not infringe any of the fundamental
rights which the Constitution provides for", including Article 14.
This Court also applied Article 14 in two of its earlier decisions,
G

namely, The State of West Bengal v. Anwar Ali Sarkar, [1952] SCR
284 and Kathi Raning Rawat v. The State of Saurashtra, [1952]
SCR435."
(emphasis supplied] H
738 SUPREME COURT REPORTS [2007] I S.C.R.

A 59. The decision also stressed on the application of Article 14 to a law
under Article 21 and stated that even principles of natural justice be
incorporated in such a test. It was held:

" ... .In fact equality and arbitrariness are sworn enemies; one belongs
to the rule of Jaw in a republic, while the other, to the whim and
B caprice of an absolute monarch. WJ:iere an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14". Article
14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. The principle of reasonableness, which
c legally as well as philosophically, is an essential element of
equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must
answer the best of reasonableness in order to be in conformity
with Article 14. It must be "right and just and fair" and not
D arbitrary, fanciful or oppressive; otherwise, it would be no
procedure at all and the requirement of Article 21 would not be
satisfied.
>
Any procedure which permits impairment of the constitutional right
to go abroad without giving reasonable opportunity to show cause
E cannot but be condemned as unfair and unjust and hence, there is
in the present case clear infringement of the requirement of Article
21".

[emphasis supplied]
F
60. The above position was also reiterated by Krishna Iyer J., as
follows:

"The Gopalan (supra) verdict, with the cocooning of Article 22 into
a self contained code, has suffered supersession at the hands of
G
R. C. Cooper (1) By way of aside, the fluctuating fortunes of
fundamental rights, when the proletarist and the proprietariat have
asserted them in Court, partially provoke sociological research and
hesitantly project the Cardozo thesis of sub-conscious forces in
judicial noesis when the cyclorarmic review starts from Gopalan,
H
I.R.COELHO(DEAD)BYLRs. v. STATE(Y.K.SABHARWAL,CJ.] 739

moves on to In re : Kera/a Education Bill and then on to All India A
J Bank Employees Union, next to Sakal Newspapers, crowning in
Cooper (1973] 3 S.C.R. 530 and followed by Bennet Coleman and
Sambu Nath Sarkar. Be that as it may, the law is now settled, as
I apprehend it, that no article in Part Ill is an island but part of
a continent, and the conspectus of the whole part gives the
B
directions and correction needed for interpretation of these basic
provisions. Man is not dissectible into separate limbs and, likewise,
cardinal rights in an organic constitution, which make man human
have a synthesis. The proposition is indubitable that Article 21
does not, in a given situation, exclude Article 19 if both rights are
breache<;I." c
(emphasis supplied]

61. It is evident that it can no longer be contended that protection
provided by fundamental rights comes in isolated pools. On the contrary,
these rights together provide a comprehensive guarantee against excesses D
by state authorities. Thus post-Maneka Gandhi's case it is clear that the
development of fundamental rights has been such that it no longer involves
the interpretation of rights as isolated protections which directly arise but
they collectively form a comprehensive test against the arbitrary exercise of
state power in any area that occurs as an inevitable consequence. The E
protection of fundamental rights has, therefore, been considerably widened.

62. The approach in the interpretation of fundamental rights has been
evidenced in a recent case M Nagaraj & Ors. v. Union of India & Ors.
(2006] 8 SCC 212 in which the Court noted:
F
"This principle of interpretation is particularly apposite to the
interpretation of fundamental rights. It is a fallacy to regard
fundamental rights as a gift from the State to its citizens. Individuals
possess basic human rights independently of any constitution by
reason of the basic fact that they are members of the human race. G
These fundamental rights are important as they possess intrinsic
value. Part-Ill of the Constitution does not confer fundamental
rights. It confirms their existence and gives them protection. Its
purpose is to withdraw certain subjects from the area of political
controversy to place them beyond the reach of majorities and H
I
},,
740 SUPREME COURT REPORTS [2007] I S.C.R.

A officials and to establish them as legal principles to be applied
by the courts. Every right has a content. Every foundational value \
is put in Part III as fimdamental right as it has intrinsic value. The
converse does not apply. A right becomes a fundamental right
because it has foundational value. Apart from the principles, one
has also to see the structure ofthe Article in which the fundamental
B
value is incorporated. Fundamental right is· a limitation on the
power of the State. A Constitution, and in particular that of it which
~-
protects and which entrenches fundamental rights and freedoms to
'-l·
which all persons in the State are to be entitled is to be given a
generous and purposive construction. In Sakal Papers (P) Ltd. v.
c Union ofIndia and Ors., AIR (1967) SC 305 this Court has held that
while considering the nature and content of fundamental rights, the
Court must not be too astute to interpret the language in a literal
sense so as to whittle them down. The Court must interpret the
t--
Constitution in a manner which would enable the citizens to enjoy .r-
D the rights guaranteed by it in the fullest measure. An instance of
literal and narrow interpretation of a vital fundamental right in the
Indian Constitution is the early decision of the :Supreme Court in ;>
A.K. Gopalan v. State of Madras. Article 21 of the Constitution
provides that no person shall be deprived of his life and personal
liberty except according to procedure established by law. The
E Supreme Court by a majority held that 'procedure established by
law' means any procedure established by law made by the Parliament
or the legislatures of the State. The Supreme Court refused to
infuse the procedure with principles ofnaturaljustice. It concentrated
solely upon the existence of enacted law. After three decades, the
F Supreme Court overruled its previous decision in A.K. Gopalan
F-
and held in its landmark judgment in Maneka Gandhi v. Union ·-'(
of India, {1978} I SCC 248 that the procedure contemplated by
Article 21 must answer the test of reasonableness. The Court
further held that the procedure should also be in conformity with
G the principles of natural justice. This example is given to
demonstrate an instance of expansive interpretation of a
fundamental right. The expression 'life' in Article 21 does not
connote merely physical or animal existence. The right to life ...
includes right to live with human dignity. This Court has in
+
numerous cases deduced fundamental features which are not
H
I.RCOELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 741

specifically mentioned in Part-III on the principle that certain A
unarticulated rights are implicit in the enumerated guarantees".
[Emphasis supplied]

63. The abrogation or abridgment of the fundamental rights under
Chapter III have, therefore, to be examined on broad interpretation, the
narrow interpretation of fundamental rights chapter is a thing of past. B
Interpretation of the Constitution has to be such as to enable the citizens
.;-
to enjoy the Y\ghts guaranteed by Part III in the fullest measure .

, Separation of Po.wers
' c
64. The sepa}ation of powers between Legislature, Executive and the
Judiciary constitutes basic structure, has been found in Kesavananda
-<(
Bharati's case by the ~ajority. Later, it was reiterated in Indira Gandhi's
case. A large number of judgments have reiterated that the separation of
powers is one of the basic features of the Constitution.
r~
D
65. In fact, it was settled 'Centuries ago that for preservation of liberty
{,
and prevention of tyranny it is absolutely essential to vest separate powers
in three different organs. In Fede~alist 47, 48 and 51 James Madison details
how a separation of powers preserves liberty and prevents tyranny. In
Federalist 47, Madison discusses Montesquieu's treatment of the separation E
of powers in the Spirit of Laws (Boox XI, Ch. 6). There Montesquieu writes,
"When the legislative and executive po.l'ers are united in the same person,
or in the same body of magistrates, there can be no liberty... Again, there
is no liberty, if the judicial power be not separated from the legislative and
executive." Madison points out that Montesquieu did not feel that different
-I
F
branches could not have overlapping functions, but rather that the power
~ '!'-
of one department of government should not be entirely in the hands of
( another department of government.
\
.,,
~

66. Alexander Hamilton in Federalist 78 remarks on the importance of
the independence of the judiciary to preserve the separation of powers and G
the rights of the people:
.,
.
"The complete independence of the courts of justice is peculiarly
"
-}
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the H

I
\
742 SUPREME COURT REPORTS [2007] 1 S.C.R.

A legislative authority; such, for instance, that it shall pass no bills .
of attainder, no ex post facto Jaws, and the like. Limitations"of this
kind can be preserved in practice in no other way than thr~ugh the
medium of courts of justice, whose duty it must be to declare ·all
acts contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or privileges
B would amount to nothing." (434)

67. Montesquieu finds tyranny pervades when there is.Ei6 separation
of powers:
J
c "There would be an end of everything, were the same man or same
1
body, whether of the nobles or of the people, to exercise those
three powers,· that of enacting Jaws, that of executing the public
resolutions, and of trying the causes of inpividuals."
)
,)

68. The Supreme Court has long held that .the separation of powers is
D part of the basic structure of the Constitutieirt. Even before the basic
structure doctrine became part of Constitutionaf Jaw, the importance of the
separation of powers on our system of gov,ernance was recognized by this
Court in Special Reference No.I of 1964 _{(1965) 1 SCR 413}.
' ;~
""
E Contentions

69. In the light of aforesaid developments, the main thrust of the
argument of the petitioners is that pot-I 973, it is impermissible to immunize ~
Ninth Schedule laws from judicial review by making Part III inapplicable to ).

such laws. Such a course, it is contended, is incompatible with the doctrine
F I-
of basic structure. The existence of power to confer absolute immunity is
not compatible with the implied limitation upon the power of amendment in "'! ii>
i
Article 368, is the thrust of the contention.
F
'I
70. Further relying upon the clarification of I\hanna, J, as given in
'
G Indira Gandhi's case, in respect of his opinion in Kesavananda Bharati's
case, it is no longer correct to say that fundament rights are not included
~
in the basic structure. Therefore, the contention proceeds that since
fundamental rights form a part of basic structlte and thus laws inserted into
Ninth Schedule when tested on the ground of basic structure shall have to + t
H be examined on the fundamental rights test.

.,,f"

j
l.RCOELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 743

71. The key question, however, is whether the basic structure test A
would include judicial review of Ninth Schedule laws on the touchstone of
fundamental rights. Thus, it is necessary to examine what exactly is the
content of the basic structure test. According to the petitioners, the
consequence of the evolution of the principles of basic structure is that
Ninth Schedule laws cannot be conferred with constitutional immunity of the
kind created by Article 3 lB. Assuming that such immunity can be conferred,
B
its constitution'!'! validity would have to be adjudged by applying the direct
impact and effect, test which means the form of an amendment is not
relevant, its conseciiuence would be determinative factor.

72. The power>to make any law at will that transgresses Part III in its C
entirety would be incompatible with the basic structure of the Constitution.
The consequence also is,,Jeamed counsel for the petitioners contended, to
emasculate Article 32 (which is part of fundamental rights chapter) in its
entirety if the rights themselves (including the principle of rule of law
- encapsulated in Article 14) ar.-put out of the way, the remedy under Article D
32 would be meaningless. In fact, by the exclusion of Part III, Article 32
would stand abrogated qua the Ninth Schedule laws. The contention is that
the abrogation of Article 32 would ~e per se violative of the basic structure.
It is also submitted that the constifuent power under Article 368 does not
include judicial power and that the power to establish judicial remedies
which is compatible with the basic structure is qualitatively different from E
the power to exercise judicial power. T11.e impact is that on the one hand
the power under Article 32 is removed and, on the other hand, the said
power is exercised by the legislature itself by declaring, in a way, Ninth
Schedule laws as valid.
F
73. On the other hand, the contention urged on behalf of the
respondents is that the validity of Ninth Schedule legislations can only be
tested on the touch~stone of basic structure doctrine as decided by majority
in Kesavananda Bharati's case which also upheld the Constitution 29th
Amendment unconditionally and thus there can be no question of judicial
review of such legislations on the ground of violation of fundamental rights G
chapter. The fundamental rights chapter, it is contended, stands excluded
as a result of protective umbrella provided by Article 31 B and, therefore, the .
+ challenge can only be based on the ground of basic structure d~ctrine and
in addition, legislation can further be tested for (i) lack of legislative
competence and (ii) violation of other constitutional provisions. Th~ woul~ H
744 SUPREME COURT REPORTS [2007] l S.C.R.

A also show, counsel for the respondents argued, that there is no exclusion \
of judicial review and consequently, there is no violation of the basic
structure doctrine.

74. Further, it was contended that the constitutional device for
retrospective validation of laws was well known and it is legally permissible
B to pass laws to remove the basis of the decisions of the Court and
consequently, nullify the effect of the decision. It was sub~il!ed that Article
3 lB and the amendments by which legislations are a9ded to the Ninth
Schedule form such a device, which 'cure the defect' qf legislation.
f
C 75. The respondents contend that the point in issfre is covered by the
majority judgment in Kesavananda Bharati 's case. According to that view,
Article 3 lB or the Ninth Schedule is a permissib~e constitutional device to
provide a protective umbrella to Ninth Schedule laws. The distinction is
sought to be drawn between the· necessity for the judiciary in a written
constitution and judicial review by the judiq,~. Whereas the existence of
D
judiciary is part of the basic framework of the Constitution and cannot be
abrogated in exercise of constituent pow.er of the Parliament under Article
368, the power of judicial review of the j~iciary can be curtailed over certain
matters. The contention is that there is t'lo judicial review in absolute terms
and Article 3 lB only restricts that judicial review power. It is contended that
E after the doctrine of basic structure which came to be established in
Kesavananda Bharati's case, it is/) only that kind of judicial review whose
elimination would destroy or damage the basic structure of the Constitution
that is beyond the constituent power. However, in every case where the
constituent power excludes judicial review, the basic structure of the
F Constitution is not abrogated. The question to be asked in each case is, 1-
does the particular exclusion alter the basic structure. Giving immunity of
Part III to the Ninth Schedule laws from judicial review, does not abrogate
judicial review from the Constitution. Judicial review remains with the court
but with its exclusion over Ninth Schedule laws to which Part III ceases to
apply. The effect of placing a law in Ninth Schedule is that it removes the
G fetter of Part III by virtue of Article 31 B but that does not oust the court
jurisdiction. It was further contended that Justice Khanna in Kesavananda
Bharati 's case held that subject to the retention of the basic structure or
framework of the Constitution, the power of amendment is plenary and will +
include within itself the power to add, alter or repeal various articles
H includiif'taking away or abridging fundamental rights and that the power
IJ
I
r
LR.COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 745

j
to amend the fundamental rights cannot be denied by describing them as A
natural rights. The contention is that the majority in Kesavananda Bharati 's
cas'e held that there is no embargo with regard to amending any of the
fundamental rights in Part III subject to basic structure theory and, therefore,
the petitioners are not right in the contention that in the said case the
majority held that the fundamental rights form part of the basic structure and
cannot be amended. The further contention is that if fundamental rights can
B
be amended, which is the effect of Kesavananda Bharati 's case overruling
Golak Nath~~case; then fundamental rights cannot be said to be part of
basic structure lmless the nature of the amendment is such which destroys
the nature and character of the Constitution. It is contended that the test
for judicially re~ewing the Ninth Schedule laws cannot be on the basis of C
mere infringement of the rights guaranteed under Part III of the Constitution.
The correct test is whether such laws damage or destroy that part of
fundamental rights which form part of the basic structure. Thus, it is
contended that judicial review of Ninth Schedule laws is not completely
barred. The only area where such laws get immunity is from the infraction D
of rights guaranteed undeltNart.,
III of the Constitution .

76. To begin with, we fintl it difficult to accept the broad proposition
urged by the petitioners that l~_ws that have been found by the courts to
be violative of Part III of the Constitution cannot be protected by placing
the same in the Ninth Schedule by use of device of Article 3 lB read with E
Article 368 of the Constitution. In Kesavananda Bharti's case, the majority
opinion upheld the validity of the Kepla Act which had been set aside in
Kunjukutty Sahib Etc. Etc. v. The State of Kera/a & Anr., [1972] 2 SCC 364
and the device used was that of the Ninth Schedule. After a law is placed
in the Ninth Schedule, its validity has to be tested on the touchstone of F
basic structure doctrine. In State of Maharashtra & Ors. v. Man Singh
Suraj Singh Padvi & Ors., [1978] 1 SCC 615, a Seven Judge Constitution
Bench, post-decision in Kesavananda Bharati's case upheld Constitution
(40th Amendment) Act, 1976 which was introduced when the appeal was
pending in Supreme Court and thereby included the regulations in the Ninth
Schedule. It was held that Article 3 lB and the Ninth Schedule cured the G
defect, if any, in the regulations as regards any unconstitutionality alleged
on the ground of infringement of fundamental rights. , .

11. It is also contended that the power to pack up laws in the Ninth
Schedule in absence of any indicia in Article 3 lB has been abused and that H
<t.

I
\
i
746 SUPREME COURT REPORTS [2007] I S.C.R

A abuse is likely to continue. It is submitted that the Ninth-Schedule which
commenced with only 13 enactments has now a list of284 enactments. The
validity of Article 3 IB is not in question before us. Further, mere possibility
of abuse is not a relevant test to determine the validity ofa provision. The
people, through the Constitution, have vested the power to make laws in
their representatives through Parliament in the same manner in· which they
B have entrusted the responsibility_ to adjudge, interpret and construe Jaw and
the Constitution including its limitation in the judiciary. We, therefore,
cannot make any assumption about the alleged abuse of t~'power.
-"'
Validity of 31B
c j
78. There was some controversy on the question whether validity of
Article 31 B was under challenge or not in Kesavananda Bharati.. On this
aspect, Chief Justice Chandrachud has to say this ~n Woman Rao :

In Sajjan Singh v. State of Rajasthan, [1965] l SCR 933, the Court
D refused to reconsider the decision in·4'nkari Prasad (supra), with
the result that the validity of the l st Amendment remained unshaken .
. In Golaknath, it was held by a majority of 6 : 5 that the power to
amend the Constitution was not locpted in Article 368. The inevitable
result of this holding should haVe been the striking down of all
E constitutional amendments since, according to the view of the
majority, Parliament had no power to amend the Constitution in
pursuance of Article 368. But the Court resorted to the doctrine of
prospective overruling and held that the constitutional amendments
which were already made would be left undisturbed and that its
decision will govern the future amendments only. As a ·result, the
F
lst Amendment by which Articles 3 lA and 3 IB were introduced
remained inviolate. It is trite knowledge that Golaknath was
overruled in Kesavananda Bharati (supra) in which it was held
unanimously that the power to amend the Constitution was to be
found in Article 368 of the Constitution. The petitioners produced
G before us a copy of the Civil Misc. Petition which was filed in
Kesavananda Bharati (supra) by which the reliefs originally asked
for were modified. It appears thereform that what was challenged
in that case was the 24th, 25th and the 29th Amendments ·to the.
Constitution. The validity of the 1st Amendment was not questioned
H Khanna J., however, held-while dealing with the validity of the

'*''
<
1
I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL.,"CJ.] 747
j
unamended Article 31 C that the validity of Article 3 lA was upheld A
in Sankari Prasad (supra) that its validity could not be any longer
questioned because of the principle of stare decisis and that the
ground on which the validity of Article 31 A was sustained will be
available equally for sustaining the validity of the first part of
Article 3 lC (page 744) (SCC p. 812, para 1518).
B
~

1·
79. Wi!'".have examined various opinions in Kesavananda Bharati's
case but are unable to accept the contention that Article 31 B read with the
Ninth Schedule was held to be constitutionally valid in that case. The
validity thereof was not in question. The constitutional amendments under
challenge in Kes~ananda Bharati 's case were examined assuming the c
constitutional validity of Article 3 lB. Its validity was not in issue in that
case. Be that as it may, we will assume Article 31 B as valid. The validity
of the 1st Amendment inserting in the Constitution, Article 3 lB is not in
cnallenge before us.

C:.
Point in issue -·- D

80. The real crux of the ),roblem is as to the extent and nature of
immunity that Article 3 lB can va,idly provide. To decide this intricate issue,
it is first necessary to examine in some detail the judgment in Kesavananda
Bharati 's case, particularly with reference to 29th Amendment. E

Kesavananda Bharati 's case

81. The contention urged on behalf of the respondents that all the
Judges, except Chief Justice Sikri, in Kesavananda Bharati's case held that F
29th Amendment was valid and applied Jeejeebhoy's case, is not based on
correct ratio of Kesavananda Bharati's case. Six learned Judges (Ray,
Phalekar, Mathew, Beg, Dwivedi and Chandrachud, JJ) who upheld the
validity of 29th Amendment did not subscribe to·· basic structure doctrine.
The other six learned Judges (Chief Justice Sikri, Shelat, Grover, Hegde,
Mukherjee and Reddy, JJ) upheld the 29th Amendment subject to it passing G
the test of basic structure doctrine. The 13th learned Judge (Khanna, J),
though subscribed to basic structure doctrine, upheld tlie 29th Amendment
agreeing with six learned Judges who did not subscribe to the basic
structure doctrine. Therefore, it would not be correct to assume that all
Judges or Judges in majority on the issue of basic structure d~ine upheld H
\
\
748 SUPREME COURT REPORTS [2007] I S.C.R.

A the validity of 29th Amendment unconditionally or were alive to the
consequences of basic structure doctrine on 29th Amendment.

82. Six learned Judges otherwise forming the majority, held 29th
amendment valid only if the legislation added to the Ninth Schedule did not
violate the basic structure of the Constitution. The remaining six who are in
B minority in Kesavananda Bharati 's case, insofar as it relates to laying down
the doctrine of basic structure, held 29th Amendment unconc~,ifi:<mally valid.

83. While laying the foundation of basic structure do~trine to test the
amending power of the Constitution, Justice Khanna" opined that the
C fundamental rights could be amended abrogated or abridged so long as the
basic structure of the Constitution is not destroyed but at the same time,
upheld the 29th Amendment as unconditionally valid. Thus, it cannot be
inferred from the conclusion of the seven judges upholding unconditionally
the validity of 29th Amendment that the majority opinion held fundamental
rights chapter as not part of the basic structuri_ doctrine. The six Judges
D
which held 29th Amendment unconditionally valid did not subscribe to the
doctrine of basic structure. The other s,ix held 29th Amendment valid
subject to it passing the test of basic structure doctrine.
(

!.
84. Justice Khanna upheld the 29th Amendment in the following terms:
E
"We may now deal with the Constitution (Twenty ninth
Amendment) Act. This At:t, as mentioned earlier, inserted the
Kerala Act 35of1969 and the Kerala Act 25of1971 as entries No.
65 and 66 in the Ninth Schedule to the Constitution. I have been
F able to find. no infirmity in the Constitution (Twenty ninth
Amendment) Act."

85.' In his final conclusions, with respect to the Twenty-ninth
Amendment, Khanna, J.. held as follows:

G "(xv) The Constitution (Twenty-ninth Amendment) Act does not suffer
from any infirmity and as such is valid."

86. Thus, while upholding the Twenty-ninth amendment, there was no
mention of the test that is to be applied to th.e legislations inserted in the
H Ninth Schedule. The implication that the Respondents seek to draw from
y·

r
'
~-

l.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 749

- the above is that this amounts to an unconditional upholding of the
legislations in the Ninth Schedule.
A

They have also relied on observations by Ray CJ., as quoted below,
in Indira Gandhi (supra). In that case, Ray CJ. observed:

"The Constitution 29th Amendment Act was considered by this B
Court in Kesavananda Bharati 's case. The 29th Amendment Act
inserted in the Ninth Schedule to the Constitution Entries· 65 and
66 being the Kerala Land Reforms Act, 1969 and the Kerala Land
Reforms Act, 1971. This Court unanimously upheld the validity of
the 29th Amendment Act.... The view of s·even Judges in C
Kesavananda Bharati 's case is that Article 31-B is a constitutional
device to place the specified statutes in the Schedule beyond any
attack that these infringe Part III of the Constitution. The 29th
Amendment is affirmed in Kesavananda Bharati 's case (supra) by
majority of seven against six Judges.
D
.... Second, the majority view in Kesavananda Bharati 's case is that
the 29th Amendment which put the two statutes in the Ninth
Schedule and Article 31-B is not open to challenge on the ground
of either damage to or destruction of basic features, basic structure
or basic framework or on the ground of violation of fundamental E
rights."
[Emphasis supplied]

88. The respondents have particularly relied on aforesaid highlighted
portions. F

89. On the issue of how 29th Amendment in Kesavananda Bharati
case was decided, in Minerva Mills, Bhagwati, J. has said thus :

"The validity of the Twenty-ninth Amendment Act was challenged
in Kesavananda Bharati case but by a majority consisting of G
Khanna, J. and the six learned Judges led by Ray, J. (as he then
was) it was held to be valid. Since all the earlier constitutional
amendments were held valid on the basis of unlimited amending
power of Parliament recognised in Sankari Prasad case and
Sajjan Singh 's case and were accepted as valid in Golak Nath case H
750 SUPREME COURT REPORTS (2007) I S.C.R.

A and the Twenty Ninth Amendment Act was also held valid in
Kesavananda Bharati case, though not on the application of the
basic structure test, and these constitutional amendments have
been recognised as valid over a number of years and moreover, the
statutes intended to be protected by them are all falling within
Article 3 IA with the possible exception of only four Acts referred
B to· above., I do not think, we would be justified in re-opening the
question of validity of these constitutional amendments and hence
we hold them to be valid. But, all constitutional amendments made
after the decision in Kesavananda Bharati case would have to be
tested by reference to the basic structure doctrine, for Parliament
c would then have no excuse for saying ~that it did not know the
limitation on its amending power."

90. To us, it seems that the position is correctly reflected in the
aforesaid observations of Bhagwati, J. and with respect we feel that Ray CJ.
.•
is not .correct in the conclusion that 29th Amendment was unanimously
D
upheld. Since•the majority which propounded the basic structure doctrine
did not unconditionally uphold the validity of 29th Amendment and six
learned judges forming majority left that to be decided by a smaller Bench
and upheld its validity subject to it passing basic structure doctrine.J the
factum of validity of 29th amendment in Kesavananda Bharati case is not
E conclusive of matters under consideration before us.

91. In order to understand the view of Khanna J. in Kesavananda
Bharati (supra), it is important to take into account his later clarification. In
Indira Gandhi (supra), Khanna J. made it clear that he never opined that
F fundamental rights were outside the purview of basic structure and observed ....
as follows:

"There was a controversy during the course of arguments on the
point as to whether I have laid down in my judgment in
Kesavananda Bharati's case that fundamental rights are not a part
G of the basic structure of the Constitution. As this controversy
cropped up a number of times, it seems apposite that before I
conclude I should deal with the contention advanced by learned
Solicitor General that according to my judgment in that case no .
fundamental right is part of the basic structure of the Constitution.
H I find it difficult to read anything in that judgment to justify such
LR.COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 751

a conclusion. What has been laid down in that judgment is that no A
article of the Constitution is immune from the amendatory process
because of the fact that it relates to a fundamental right and is
contained in Part III of the Constitution .....

.. .... The above observations clearly militate against the contention
that according to my judgment fundamental rights are not a part of
B
the basic structure of the Constitution. I also dealt with the matter
at length to show that the right to property was not a part of the
basic structure of the Constitution. This would have been wholly
unnecessary if none of the fundamental rights was a part of the
basic structure of the Constitution". C

92. Thus, after his aforesaid clarification, it is not possible to read the
decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental
rights from the purview of the basic structure. The import of this observation
is significant in the light of the amendment that he earlier upheld. It is true
that if the fundamental rights were never a part of the basic structure, it
D
would be consistent with an unconditional upholding of the Twenty-ninth
Amendment, since its impact on the fundamental rights guarantee would be
rendered irrelevant. However, having held that some of the fundamental
rights are a part of the basic structure, any amendment having an impact on
fundamental rights would necessarily have to be examined in that light. E
Thus, the fact that Khanna J. held that some of the fundamental rights were
a part of the basic structure has a significant impact on his decision
regarding the Twenty-ninth amendment and the validity of the Twenty-ninth
amendment must necessarily be viewed in that light. His clarification
demonstrates that he was not of the opinion that all the fundamental rights F
' ... were not part of the basic structure and the inevitable conclusion is that the
Twenty-ninth amendment even if treated as unconditionally valid is of no
consequence on the point in issue in view of peculiar position as to majority
abovenoted.

93. Such an analysis is supported by Seervai, in his book Constitutional G
Law of India (4th edition, Volume III), as follows:

"Although in his judgment in the Election Case, Khanna J. clarified
his judgment in Kesavananda 's Case, that clarification raised a
serious problem of its own. The problem was: in view of the H
752 SUPREME COURT REPORTS [2007] 1 S.C.R.

A clarification, was Khanna J right in holding that Article 31-B
and Sch. IX were unconditionally valid ? Could he do so after
he had held that the basic structure of the Constitution could not
be amended ? As we have seen, that problem was solved in
Minerva Mills Case by holding that Acts inserted in Sch. IX after
25 April, 1973 were not unconditionally valid, but would have to
B stand the test of fundamental rights. (Paras 30.48, page 3138)

But while the clarification in the Election Case simplifies one
problem the scope of amending power it raises complicated
problems of its own. Was Khanna J right in holding Art. 31-B
c (and Sch. 9) unconditionally valid? An answer to these questions
requires an analysis of the function of Art. 31-B and Sch. 9.Taking
Art. 31-B and Sch. 9 first, their effect is to confer validity on laws
already enacted which would be void for violating one of more of
the fundamental rights conferred by Part. III (fundamental rights) ....
D
But if the power of amendment is limited by the doctrine of basic
structure, a grave problem immediately arises .... The thing to note
is that though such Acts do not become a part of the Constitution,
by being included in Sch.9 [footnote: This is clear from the
provision of Article 31-B that such laws are subject to the power
E of any competent legislature to repeal or amend them - that no
State legislature has the power to repeal or amend the Constitution,
nor has Parliament such a power outside Article 368, except where
such power is conferred by a few articles.] they owe their validity
to the exercise of the amending power. Can Acts, which destroy
F the secular character of the State, be given validity and be
permitted to destroy a basic structure as a result of the exercise
of the amending power? That, in the last analysis is the real
problem; and it is submitted that if the doctrine of the basic
structure is accepted, there can be only one answer. If Parliament,
exercising constituent power cannot enact an amendment destroying
-G the secular character of the State, neither can Parliament, exercising
its constituent power, permit the Parliament or the State Legislatures
to produce the same result by protecting laws, enacted in the
exercise of legislative power, which produce the same result. To
-{
hold otherwise would be to abandon the doctrine of basic structure
H in respect of fundamental rights for every part of that basic
l.RCOELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 753

:l structure can be destroyed by first enacting laws which produce A
that effect, and then protecting them by inclusion in Sch. 9. Such
a result is consistent with the view that some fundamental rights
are a part of the basic structure, as Khanna J. said in his clarification.
~ (Paras 30.65, pages 3150-3151)

In other words, the validity of the 25th and 29th Amendments
B
_. raised the question of applying the law laid down as to the scope
.. of the amending power when determining the validity of the 24ih
Amendment. If that law was correctly laid down, it did not
become incorrect by being wrongly applied. Therefore the conflict
between Khanna J.'s views on the amending power and on the c
unconditional validity of the 29th Amendment is resolved by
saying that he laid down the scope of the amending power
correctly but misapplied that law in holding Art. 31-B and Sch. 9
unconditionally valid...... Consistently with his view that some
fundamental rights were part of the basic structure, he ought to
D
have joined the 6 other judges in holding that the 29th Amendment
was valid, but Acts included in Sch. 9 would have to be scrutinized
by the Constitution bench to see whether they destroyed or
damaged any part of the basic structure of the Constitution, and
if they did, such laws would not be protected. (Para 30.65, page
3151)" [Emphasis supplied] E

94. The decision in Kesavananda Bharati (supra) regarding the Twenty-
ninth amendment is restricted to that particular amendment and no principle
flows therefrom.
.... F
~
95. We are unable to accept the contention urged on behalf of the
respondents that in Waman Rao 's case Justice Chandrachud and in Minerva
Mills case, Justice Bhagwati have not considered the binding effect of
majority judgments in Kesavananda Bharati's case. In these decisions, the
development of law post-Kesavananda Bharati 's case has been considered.
The conclusion has rightly been reached, also having regard to the decision G
in Indira Gandhi's case that post-Kesavananda Bharati's case or after
':
24th April, 1973, the Ninth Schedule laws will not have the full protection.
The doctrine of basic structure was involved in Kesavananda Bharati 's
t
case but its effect, impact and working was examined in Indira Gandhi's
case, Waman Rao 's case and Minerva Mills case. To say that these H
754 SUPREME COURT REPORTS [2007] 1 S.C.R.

A judgments have not considered the binding effect of the majority judgment
in Kesavananda Bharati 's case is not based on a correct reading of
Kesavananda Bharati.

96. On the issue of equality, we do not find any contradiction or
inconsistency in the views expressed by Justice Chandrachud in Indira
B Gandhi's case, by Justice Krishna Iyer in Bhim Singh's case and Justice
Bhagwati in Minerva Mills case. All these judgments show that violation
in individual case has to be examined to find out whether violation of
equality amounts to destruction of the basic structure of the Constitution.

c 97. Next, we examine the extent of immunity that is provided by Article
3 lB. The principle that constitutional amendments which viotate the basic
structure doctrine are liable to be struck down will also apply to amendments
made to add laws in the Ninth Schedule is the view expressed by Chief
Justice Sikri. Substantially, similar separate opinions were expressed by
Shelat, Grover, Hegde, Mukherjee and Reddy, JJ. In the four different
D opinions six learned judges came to substantially the same conclusion.
These judges read an implied limitation on the power of the Parliament to
amend the Constitution. Justice Khanna also opined that there was implied
limitation in the shape of the basic structure doctrine that limits the power
of Parliament to amend the Constitution but the learned Judge upheld 29th
E Amendment and did not say, like remaining six Judges, that the Twenty-
Ninth Amendment will have to be examined by a smaller Constitution Bench
to find but whether the said amendment violated the basic structure theory
or not. This gave rise to the argument that fundamental rights chapter is
not part of basic structure. Justice Khanna, however, does not so say in
F Kesavananda Bharati 's case. Therefore, Kesavananda Bharati 's case ...
cannot be said to have held that fundamental rights chapter is not part of
basic structure. Justice Khanna, while considering Twenty-Ninth amendment,

G
had obviously in view the laws that had been placed in the Ninth Schedule
by the said amendment related to the agrarian reforms. Justice Khanna did
not want to elevate the right to property under Article 19(l)(t) to the level
and status of basic structure or basic frame-work of the Constitution, that
-
explains the ratio of Kesavananda Bharati 's case. Further, doubt, if any,
as to the opinion of Justice Khanna stood resolved on the clarification given
in Indira Gandhi's case, by the learned Judge that in Kesavananda
Bharati 's case, he never held that fundamental rights are not a part of the
H basic structure or framework of the Constitution.
1.R.COELHO(DEAD)BYLRs. v. STATE[Y.K.SABHARWAL,CJ.] 755

98. The rights and freedoms created by the fundamental rights chapter A
can be taken away or destroyed by amendment of the relevant Article, but
subject to limitation of the doctrine of basic structure. True, it may reduce
the efficacy of Article 3 lB but that is inevitable in view of the progress the
Jaws have made post-Kesavananda Bharati's case wh.ich has limited the
power of the Parliament to amend the Constitution under Article 368 of the
Constitution by making it subject to the doctrine of basic structure.
B

99. To decide the correctness of the rival submissions, the first aspect
to be borne in mind is that each exercise of the amending power inserting
laws into Ninth Schedule entails a complete removal of the fundamental
rights chapter vis-a-vis the laws that are added in the Ninth Schedule. C
Secondly, insertion in Ninth Schedule is not conttolled by any defined
criteria or standards by which the exercise of power ~ay be evaluated. The
consequence of insertion is that it nullifies entire Part III of the Constitution.
There is no constiitutional control on such nullification. It means an
unlimited power to totally nullify Part III in so far as Ninth Schedule D
legislations are concerned. The supremacy of the Constitution mandates aU
constitutional bodies to comply with the provisions of the Constitution. It
f also mandates a mechanism for testing the validity of legislative acts
through an independent organ, viz. the judiciary.

100. While examining the validity of Article 31 C in Kesavananda E
Bharati 's case, it was held that .the vesting of power of the exclusion of
, judicial review in a legislature including a State legislature, strikes at the
I basic structure of the Constitution. It is on this ground that second part
of Article 31 C was held to be beyond the permissible limits of power of
amendment of the Constitution under Article 368. F

101. If the doctrine of basic structure provides a touchstone to test the
amending power or its exercise, there can be no dobt and it has to be so
accepted that Part III of the Constitution has a key role to play in the
application of the said doctrine.
G
102. Regarding the status and stature in respect of fundamental rights
in Constitutional scheme, it is to be remembered that Fundamental Rights are
those rights of citizens or those negative obligations of the State which do'
not permit encroachment on individual liberties. The State is to deny no one
equality before the law. The object of the Fundamental Rights is to foster H
756 SUPREME COURT REPORTS (2007] 1 S.C.R.

A the social revolution by creating a society egalitarian to the extent that all
citizens are to be equally free from coercion or restriction by the State. By
enacting Fundamental Rights and Directive Principles which are negative
and positive obligations of the States, the Constituent Assembly made it the
responsibility of the Government to adopt a middle path between individual
liberty and public good. Fundamental Rights and Directive Principles have
B to be balanced. That balance can be tilted in favour of the public good.
The balance, however, cannot be overturned by completely overriding
individual liberty. This balance is an essential feature of the Constitution.

103. Fundamental rights enshrined in Part III were added to the
c Constitution as a check on the State power, particularly the legislative
power. Through Article 13, it is provided that the State cannot make any
laws that are contrary to Part III. The framers of the Constitution have built
a wall around certain parts of fundamental rights, which have to remain
forever, limiting ability of majority to intrude upon them. That wall is the
'Basic Structure' doctrine. Under Article 32, which is also part of Part III,
D
Supreme Court has been vested with the power to ensure compliance of Part
III. The responsibility to judge the constitutionality of all laws is that of
judiciary. Thus, when power under Article 3 IB is exercised, the legislations
made ·completely immune from Part III results in a direct way out, of the
check of Part III, including that of Article 32. It cannot be said that the same
E Constitution that provides for a check on legislative power, will decide
whether such a check is necessary or not. It would be a negation of the
Constitution. In Waman Rao 's case, while discussing the application of
basic structure doctrine to the first amendment, it was observed that the
measure of the permissibility of an amendment of a pleading is how far it
F is consistent with the original; you cannot by an amendment transform the
original into opposite of what it is. For that purpose, a comparison is
undertaken to match the amendment with the original. Such a comparison
can yield fruitful results even in the rarefied sphere of constitutional law.

104. Indeed, if Article 3 IB only provided restricted immunity and it
G seems that original intent was only to protect a limited number of laws, it
would have been only exception to Part III and the basis for the initial
upholding of the provision. However, the unchecked and rampant exercise
of this power, the number having gone from 13 to 284, shows that it is no .
longer a mere exception. The absence of guidelines for exercise of such
H power means the absence of constitutional control which results in
l.RCOELHO(DEAD)BYLRs. v. STATE[Y.K.SABHARWAL,CJ.] 757

destruction of constitutional supremacy and creation of parliamentary A
hegemony and absence of full power of judicial review to determine the
constitutional validity of such exercise.

I 05. It is also contended for the respondents that Article 31 A excludes
judicial review of certain laws from the applications of Articles 14 and 19 and
that Article 3 lA has been held to be not violative of the basic structure. The B
contention, therefore, is that exclusion of judicial review would not make the
Ninth Schedule law invalid. We are not holding such law per se invalid but,
examining the extent of the power which the Legislature will come to
possess. Article 3 IA does not exclude uncatalogued number of laws from
challenge on the basis of Part III. It provides for a standard by which laws c
stand excluded from Judicial Review. Likewise, Article 31 C applies as a
yardstick the criteria of sub-clauses (b) and (c) of Article 3 9 which refers to
equitable distribution of resources.

l 06. The fundamental rights have always enjoyed a special and
D
privileged place in the Constitution. Economic growth and social equity are
the two pillars of our Constitution which are linked to the rights of an
individual (right to equal opportunity), rather than in the abstract. Some of
the rights in Part III constitute fundamentals of the Constitution like Article
21 read with Articles 14 and 15 which represent secularism etc. As held in
Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4) (4A) E
(48) and, therefore, it is wrong to suggest that equity and justice finds place
only in the Directive Principles .
.
l 107. The Parliament has power to amend the provisions of Part III so
as to abridge or take away fundamental rights, but that power is subject to F
the limitation of basic structure doctrine. Whether the impact of such
amendment results in violation of basic structure has to be examined with
reference to each individual case. Take the example of freedom of Press
which, though not separately and specifically guaranteed, has been read as
part of Article 19(l)(a). If Article 19(l)(a) is sought to be amended so as
to abrogate such right (which we hope will never be done), the acceptance G
of respondents contention would mean that such amendment would fall
outside the judicial scrutiny when the law curtailing these rights is placed
. in the Ninth Schedule as a result of immunity granted by Article 3 IB. The
> impact of such an amendment shall have to be tested on the touchstone of
rights and freedoms guaranteed by Part III of the Constitution. In a given H
758 SUPREME COURT REPORTS [2007] 1 S.C.R.

A case, even abridgement may destroy the real freedom of the Press and, thus,
destructive of the basic structure. Take another example. The secular
character of our Constitution is a matter of conclusion to be drawn from
various Articles conferring fundamental rights; and if the secular character
is not to be found in Part III, it cannot be found anywhere else in the
Constitution because every fundamental right in Part III stands either for a
B principle or a matter of detail. Therefore, one has to take a synoptic view
of the various Articles in Part III while judging the impact of the laws
incorporated in the Ninth Schedule on the Articles in Part III. It is not
necessary to 'multiply the illustrations.

c l 08. After enunciation of the basic structure doctrine, full judicial
review is an integral part of the constitutional scheme. Justice Khanna in
Kesavananda Bharati's case was considering the right to property and it
is in that context it was said that no Article of the Constitution is immune
from the amendatory process. We may recall what Justice Khanna said
while dealing with the words "amendment of the Constitution". His
D Lordship said that these words with all the wide sweep and amplitude
cannot have the effect of destroying or abrogating the basic structure or 1'
framework of the Constitution. The opinion of Justice Khanna in Indira
Gandhi clearly indicates that the view in Kesavananda Bharati's case is
that at least some fundamental rights do form part of basic structure of the
E Constitution. Detailed discussion in Kesavananda Bharati 's case to
demonstrate that the right to property was not part of basic structure of the
Constitution by itself shows that some of the fundamental rights are part of
the basic structure of the Constitution. The placement of a right in the
scheme of the Constitution, the impact of the offending law on that right,
F the effect of the exclusion of that right from judicial review, the abrogation "·
of the principle on the essence of that right is an exercise which cannot be ~
denied on the basis of fictional immunity under Article 3 lB.

109. In lndir~ Gandhi's case, Justice Chandrachud posits that equality
embodied in Article 14 is part of the basic structure of the Constitution and,
G therefore, cannot be abrogated by observing that the provisions impugned
in that case are an outright negation of the right of equality conferred by
Article 14, a right which more than any other is a basic postulate of our
constitution.

H 110. Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was
LR.COELHO (DEAD) BY LR.s. v. STATE [Y.K. SABHARWAL, <;./.] 759

said that these clearly form part of the basic structure of the Constitution A
and cannot be abrogated. It was observed that three Articles of our
Constitution, and only three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the abyss of unrestrained
power. These Articles stand on altogether different footing. Can it be said,
after the evolution of the basic structure doctrine, that exclusion of these
rights at Parliament's will without any standard, cannot be subjected to
B
judicial scrutiny as a result of the bar created by Article 3 lB? The obvious
answer has to be in the negative. If some of the fundamental rights
constitute a basic structure, it would not be open to immunise those
legislations from full judicial scrutiny either on the ground that the fundamental
rights are not part of the basic structure or on the ground that Part III c
provisions are not available as a result of immunity granted by Article 3 lB.
It cannot be held that essence of the principle behind Article 14 is not part
of the basic structure. In fact, essence or principle of the right or nature
of violation is more important than the equality in the abstract or formal
sense. The majority opinion in Kesavananda Bharati 's case clearly is that
D
the principles behind fundamental rights are part of the basic structure of
the Constitution. It is necessary to always bear in mind that fundamental
rights have been considered to be heart and soul of the Constitution. Rather
these rights have been further defined and redefined through various trials
having regard to various experiences and some attempts to invade and
nullify these rights. The fundamental rights are deeply interconnected. E
Each supports and strengthens the work of the others. The Constitution
is a living document, its interpretation may change as the time and
circumstances change to keep pace with it. This is the ratio of the decision
in Indira Gandhi case.
F
111. The history of the emergence of modem democracy has also been
the history of securing basic rights for the people of other nations also. In
the United States the Constitution was finally ratified only upon an
understanding that a Bill of Rights would be immediately added guaranteeing
certain basic freedoms to its citizens. At about the same time when the Bill
of Rights was being ratified in America, the French Revolution declared the G
Rights of Man to Europe. When the death of colonialism and the end of
World War II birthed new nations. across the globe, these states embraced
rights as foundations to their new constitutions. Similarly, the rapid increase
in the creation of constitutions that coincided with the end of the Cold War
has planted rights at the base of these documents. H
7(fJ SUPREME COURT REPORTS [2007] 1 S.C.R.

A 112. Even countries that have bng respected and upheld rights, but
whose governance traditions did not include their constitutional affinnation
have recently felt they could no longer leave their deep commitment to
rights, left unstated. In 1998, the United Kingdom adopted the Human
Rights Act which gave explicit affect to the European Convention on Human
Rights. In Canada, the "Constitution Act of 1982" enshrined certain basic
B rights into their system of governance. Certain fundamental rights, and the
principles that underlie them__, are foundational not only to the Indian
democracy, but democracies around the world. Throughout the world
nations have declared that certain provisions or principles in their
Constitutions are inviolable.
c
113. Our Constitution will almost certainly continue to be amended as
India grows and changes. However, a democratic India will not grow ·out
of the need ·for protecting the principles behind our fundamental rights.

114. Other countries having controlled constitution, like Gennany, have
D embraced the idea that there is a basic structure to their Constitutions and
in doing so have entrenched various rights as core constitutional t
commitments. India's constitutional history has led us to include the
essence of each of our fundamental rights in the basic structure of our
Constitution.
E
115. The result of the aforesaid discussion is that since the basic
structure of the Constitution includes some of the fundamental rights, any
law granted Ninth Schedule protection deserves to be tested against these
principles. If the law infringes the essence of any of the fundamental rights
p or any other aspect of basic structure then it will be struck down. The extent
of abrogation and limit of abridgment shall have to be examined in each case.

116. We may also recall the observations made in Special Reference
No.1164 [(1965) 1 SCR413] as follows:

G " .. .[W}hether or not there is distinct and rigid separation of
powers under the Indian Constitution, there is no doubt that the
constitution has entrusted to the Judicature in this country the
task of construing the provisions of the Constitution and of
safeguarding the fundamental rights of the citizens. When a
H statute is challenged on the ground that it has been passed by a
I.RCOELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 761

Legislature without authority, or has otherwise unconstitutionally A
trespassed on fundamental rights, it is for the courts to determine
the dispute and decide whether the law passed by the legislature
is valid or not. Just as the legislatures are conferred legislative
authority and there functions are normally confined to legislative
functions, and the function and authority of the executive lie within
the domain of executive authority, so the jurisdiction and authority
B
of the Judicature in this country lie within the domain of adjudication.
f If the validity of any law is challenged before the courts, it is never
suggested that the material question as to whether legislative
authority has been exceeded or fundamental rights have been
contravened, can be decided by the legislatures themselves. C
. Adjudication of such a dispute is entrusted solely and exclusively
to the Judicature of this country."

117. We are of the view that while laws may be added to the Ninth
Schedule, once Article 32 is triggered, thest: legislations must answer to the D
complete test of fundamental rights. Every insertion into the Ninth Schedule
does not restrict Part III review, it completely excludes Part III at will. For
this reason, every addition to the Ninth Schedule triggers Article 32 as part
of the basic structure and is consequently subject to the review of the
fundamental rights as they stand in Part III.
E
Extent of Judicial Review in the context of Amendments to the Ninth
Schedule

118. We are considering the question as to the extent of judicial review
... permissible in respect of Ninth Schedule laws in the light of the basic F
structure theory propounded in Kesavananda Bharati 's case. In this
connection, it is necessary to examine the nature of the constituent power
exercised in amending the Constitution.

119. We have earlier noted that the power to amend cannot be equated
with the power to frame the Constitution. This power has no limitations or G
constraints, it is primary power, a real plenary power. The latter power,
however, is derived from the former. It has constraints of the document viz.
Constitution which creates it. This derivative power can be exercised within
the four comers of what has been conferred on the body constituted,
namely, the Parliament. The question before us is not about power to amend H
762 SUPREME COURT REPORTS [2007] 1 S.C.R.

A Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend ;.
exists in the Parliament but it is subject to the limitation of doctrine of basic
structure. The fact of validation of laws based on exercise of blanket
immunity eliminates Part III in entirety hence the 'rights test' as part of the
basic structure doctrine has to apply.

B 120. In Kesavananda Bharati's case, the majority h~ld that the power
of amendment of the Constitution under Article 368 did riot enable Parliament
to alter the basic structure of the Constitution.

121. Kesavananda Bharati's case laid down a principle as an axiom
c which was examined and worked out in Indira Gandhi's case, Minerva
Mills; Waman Rao and Bhim Singh.

122. As already stated, in Indira Gandhi's case, for the frrst time, the
constitutional amendment that was challenged did not relate to property
right but related to free and fair election. As is evident from what is stated
D
above that the power of amending the Constitution is a species of law
making power which is the genus. It is a different kind of law making power
conferred by the Constitutio~. It is different from the power to frame the
Constitution i.e. a plenary law making power as described by Seervai in
Constitutional Law of India (4th Edn.).
E
123. The scope and content of the words 'coristittierit power' expressly
stated in the amended Article 36~ came up for consideration in Indira
Gandhi's case. Article 329-A(4) was struck down because it crossed the
implied limitation of amending power, that it made the controlled constitution
uncontrolled, that it removed all limitations on the power to amend and that
F
it sought to eliminate the golden triangle of J\rticle 21 read with Articles 14
and 19. (See also Minerva Mills case).

124. It is Kesavananda Bharati's case read with clarification ofJustice
Khanna in Indira Gandhi's case which takes us one step forward, namely,
G that fundamental rights are interconnected and some of them form part of
the basic structure as reflected in Article 15, Article 21 read with Article 14,
Article 14 "read with Article 1.6(4) (4A) (4B) etc. Bharti and1ndira Gandhi's
cases have to be read together and if so read the position iii law is that the -{
basic structure as reflected in the above Articles provide a test to judge the
H validity of the amendment by which laws are included iri the Ninth Schedule.
I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL, CJ.] 763

125. Since power to amend the Constitution is not unlimited, if changes A
brought about by amendments destroy the identity of the Constitution, such
amendments would be void. That is why when entire Part III is sought to
be taken away by a constitutional amendment by the exercise of constituent
power under Article 368 by adding the legislation in the Ninth Schedule, the
question arises as to the extent of judicial scrutiny available to determine
whether it alters the fundamentals of the Constitution. Secularism is one
B
such fundamental, equality is the other, to give a few examples to illustrate
the point. It would show that it is impermissible to destroy Articles 14 and
15 or abrogate or en bloc eliminate these Fundamental Rights. To further
illustrate the point, it may be noted that the Parliament can make additions
in the three legislative lists, but cannot abrogate all the lists as it would C
abrogate the federal structure.

126. The question can be looked at from yet another angle also. Can
the Parliament increase the amending power bY amendment of Article 368 to
confer on itself the unlimited power of amendment and destroy and damage D
the fundamentals of the Constitution? The answer is obvious. Article 368
does not vest such a power in the Parliament. It cannot lift all restrictions
placed on the amending power or free the amending power from all its
restrictions. This is the effect of the decision in Kesavananda Bharati 's
case as a result of which secularism, separation of power, equality, etc. to
cite a few examples would fall beyond the constituent power in the sense E
that the constituent power cannot abrogate these fundamentals of the
Constitution. Without equality the rule of law, secularism etc. would fail.
That is why Khanna, J. held that some of the Fundamental Rights like Article
15 form part of the basic structure.

.. 127. If constituent powerunder Article 368, the othername for amending
F
power, cannot be made unlimited, it follows that Article 31 B cannot be so
used as to confer unlimited power. Article 3 lB cannot go beyond the limited
amending power contained in Article 368. The power to amend Ninth
Schedule flows from Article 368. This power of amendment has to be
compatible with the limits on the power of amendment. This limit came with G
the Kesavananda Bharati 's case. Therefore Article 31-B after 24th April,
1973 despite its wide language cannot confer unlimited or unregulated
immunity.

128. To legislatively override entire Part III of the Constitution by H
764 SUPREME COURT REPORTS [2007] l S.C.R.

A invoking Article 3 I -B would not only make the Fundamental Rights overridden
by Directive Principles but it would also defeat fundamentals such as
secularism, separation of powers, equality and also the judicial review which
are the basic feature of the Constitution and essential elements of rule of
law and that too without any yardstick/standard being provided under
Article 31-B.
B
129. Further, it would be incorrect to assume that social content exist
only in Directive Principles and not in the Fundamental Rights. Articles 15
and 16 are facets of Article 14. Article 16(1) concerns fonnal equality which
is the basis of the rule of law. At the same time, Article 16(4) refers to
C egalitarian equality. Similarly, the general right of equality under Article 14
has to be balanced with Article 15(4) when excessiveness is detected in
grant of protective discrimination. Article 15(1) limits the rights of the State
by providing that there shall be no discrimination on the grounds only of
religion, race, caste, sex, etc. and yet it permits classification for certain
classes, hence social content exists in Fundamental Rights as well. All these
D
are relevant considerations to test the validity of the Ninth Schedule laws.

130. Equality, rule oflaw,judicial review and separation of powers form
parts of the basic structure of the Constitution. Each of these concepts are
intimately connected. There can be no rule of law, if there is no equality
E before the law. These would be meaningless ifthe violation was not subject
to the judicial review. All these would be redundant if the legislative,
executive and judicial powers are vested in one organ. Therefore, the duty
to decide whether the limits have been transgressed has been placed on the
judiciary.
F
131. Realising that it is necessary to secure the enforcement of the
Fundamental Rights, power for such enforcement has been vested by the
Constitution in the Supreme Court and the High Courts. Judicial Review is
an essential feature of the Constitution. It gives practical content to the
objectives of the Constitution embodied in Part III and other parts of the
G Constitution. It may be noted that the mere fact that equality which is a part
of the basic ·structure can be excluded for a limited purpose, to protect
certain kinds of laws, does not prevent it from being part of the basic
structure. Therefore, it follows that in considering whether any particular
feature of the Constitution is part of the basic structure rule of law, -(

H separation of power the fact that limited exceptions are made for limited
l.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 765

purposes, to protect certain kind of laws, does not mean that it is not part A
of the basic structure.

132. On behalf of the respondents, reliance has been placed on the
decision of a nine Judge Constitution Bench in Attorney General for India
& Ors. v. Amratlal Prajivandas & Ors., [1994] 5 SCC 54 to submit that
B
argument of a violation of Article 14 being equally violative of basic
structure or Articles 19 and 21 representing the basic structure of the
Constitution has been rejected. Para 20 referred to by learned counsel for
the respondent reads as under :

"Before entering upon discussion of the issues arising herein, it is c
necessary to make a few clarificatory observations. Though a
challenge to the constitutional validity of 39th, 40th and 42nd
Amendments to the Constitution was levelled in the writ petitions
on the ground that the said Amendments - effected after the
decision in Keshavananda Bharati v. State of Kera/a, [1973] D
Suppl. SCR 1 - infringe the basic structure of the Constitution, no
serious attempt was made during the course of arguments to
substantiate it. It was generally argued that Article 14 is one of the
basic features of the Constitution and hence any constitutional
amendment violative of Article 14 is equally violative of the basic
E
structure. This simplistic argument overlooks the raison d'etre of
Article 3 lB - at any rate, its continuance and relevance after
Bharati - and of the 39th and 40th Amendments placing the said
enactments in the IXth Schedule. Acceptance of the petitioners'

. ~-
argument would mean that in case of post-Bharati constitutional
amendments placing Acts in the IXth Schedule, the protection of
Article 31-B would not be available against Article 14. Indeed, it
F

was suggested that Articles 21 and 19 also represent the basic
features of the Constitution. If so, it would mean a further enervation
of Article 3 lB. Be that as it may, in the absence of any effort to
substantiate the said challenge, we do not wish to• express any G
opinion on the constitutional validity of the said Amendments. We
take them as they are, i.e., we assume them to be good and valid.
We must also say that no effort has also been made by the counsel
to establish in what manner the said Amendment Acts violate
Article 14."
H
766 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 133. It is evident from the aforenoted passage that the question of
violation of Article 14, 19 or 21 was not gone into. The Bench did not
express any opinion on those issues. No attempt was made to establish
violation of these provisions. In Para 56, while summarizing the conclusion,
the Bench did not express any opinion on the validity of 39th and 40th
Amendment Acts to the Constitution of India placing COFEPOSA and
B
SAFEMA in the Ninth Schedule. These Acts were assumed to be good and
valid. No arguments were also addressed with respect to the validity of
42nd Amendment Act.

134. Every amendment to the Constitution whether it be in the form of
C amendment of any Article or amendment by insertion of an Act in the Ninth .,
Schedule has to be tested by reference to the doctrine of basic structure
which includes reference to Article 21 read with Article 14, Article 15, etc.
As stated, laws included in the Ninth Schedule do not become part of the
Constitution, they derive their validity on account of the exercise undertaken
D by the Parliament to include them in the Ninth Schedule. That exercise has
to be tested every time it is undertaken. In respect of that exercise the
principle of compatibility will come in. One has to see the effect of the
impugned law on one hand and the exclusion of Part III in its entirety at the
will of the Parliament.

E 135. In Waman Rao, it was accordingly rightly held that the Acts
inserted in the Ninth Schedule after 24th April, 1973 would not receive the
full protection.

Exclusion ofJudicial Review compatible with th,e doctrine ofbasic structure-
F concept of Judicial Review

136. Judicial review is justified by combination of 'the principle of
separation of powers, rule of law, the principle of constitutionality and the
reach ofjudicial review' (Democracy through Law by Lord Styen, Page 131 ).
G
137. The role of the judiciary is to protect fundamental rights. A
modem democracy is based on the twin principles of majority rule and the
need to protect fundamental rights. According to Lord Styen, it is job of
the Judiciary to balance the principles ensuring that the Government on the
basis of number does not override fundamental rights.
H
I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 767

Application of doctrine of basic structure A
138. In Kesavananda Bharati's case, the discussion was on the
amending power conferred by unamended Article 368 which did not use the
words 'constituent power'. We have already noted difference between
original power of framing the Constitution known as constituent power and
the nature of constituent power vested in Parliament under Article 368. By B
addition of the words 'constituent power' in Article 368, the amending body,
namely, Parliament does not become the original Constituent Assembly. It
remains a Parliament under a controlled Constitution. Even after the words
'constituent power' are inserted in Article 368, the limitations of doctrine of
basic structure would continue to apply to the Parliament. It is on this C
premise that clauses 4 and 5 inserted in Article 368 by 42nd Amendment
were struck down in Minerva Mills case.

139. The relevance of Indira Gandhi's case, Minerva Mills case and
Waman Rao's case lies in the fact that every improper enhancement of its
own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 D
of Article 368 or Section 4 of 42nd Amendment have been held to be
incompatible with the doctrine of basic structure as they introduced new
elements which altered the identity of the Constitution or deleted the
existing elements from the Constitution by which the very core of the
Constitution is discarded. They obliterated important elements like judicial
review. They made Directive Principles en bloc a touchstone for obliteration
E
of all the fundamental rights and provided for insertion of laws in the Ninth
Schedule which had no nexus with agrarian refonns. It is in this context that
we have to examine the power of immunity bearing in mind that after

.. Kesavananda Bharati's case, Article 368 is subject to implied limitation of
basic structure. F
140. The question examined in Waman Rao's case was whether the
device of Article 31-B could be used to immunize Ninth Schedule laws from
judicial review by making the entire Part III inapplicable to such laws and
whether such a power was incompatible with basic structure doctrine. The
answer was in affinnative. It has been said that it is likely to make the G
controlled Constitution uncontrolled. It would render doctrine of basic
structure redundant. It would remove the golden triangle of Article 21 read
with Article 14 and Article l 9 in its entirety for examining the vaiidity of
Ninth Schedule laws as it makes the entire Part III inapplicable at the will
of the Parliament. This results in the change of the identify of the Constitution H
'
768 SUPREME COURT REPORTS [2007] 1 S.C.R.

A which brings about incompatibility not only with the doctrine of basic •
.l..
structure but also with the very existence of limited power of amending the
Constitution. The extent of judicial review is to be examined having regard
to these factors.

141. The object behind Article 31-B is to remove difficulties and not
B to obliterate Part III in its entirety or judicial review. The doctrine of basic
structure is propounded to save the basic features. Article 21 is the heart
of the Constitution. It confers right to life as well as right to choose. When
this triangle of Article 21 read with Article 14 and Article 19 is sought to
be eliminated not only the 'essence of right' test but also the 'rights test'
c has to apply, particularly when Keshavananda Bharti and Indira Gandhi
cases have expanded the scope of basic structure to cover even some of
the Fundamental Rights.

142. The doctrine of basic structure contemplates that there are certain
·parts or aspects of the Constitution including Article 15, Article 21 read with
D Articles 14 and 19 which constitute the core values which if allowed to be
abrogated would change completely the nature of the Constitution. Exclusion
of fundamental rights would result in nullification of the basic structure
doctrine, the object of which is to protect basic features cf the Constitution
as indicated by the synoptic view of the rights in Part III.

E 143. There is also· a difference between the 'rights test' and the
'essence of right test'. Both form part of application of the basic structure
doctrine. When in a controlled Constitution conferring limited power of
amendment, an entire Chapter is made inapplicable, 'the essence of the right'
test as applied in M Nagaraj 's case (supra) will have no applicability. In
F such a situation, to judge the validity of the law, it is 'right test' which is
more appropriate. We may also note that in Minerva Mills and Indira
Gandhi's cases, elimination of Part III in its entirety was not in issue. We
are considering the situation where entire equality code, freedom code and
right to move court under Part III are all nullified by exercise of power to
grant immunization at will by the Parliament which, in our view, is incompatible
G with the implied limitation of the power of the Parliament. In such a case,
it is the rights test that is appropriate and is to be applied. In Indira
Gandhi's case it was held that for the correct interpretation, Article 368 ;
requires a synoptic view of the Constitution between its various provisions
which, at first sight, look disconnected. Regarding Articles 31-A and 31-C
H (validity whereof is not in question here) having been held to be valid
I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K.SABHARWAL,CJ.] 769

despite denial of Article 14, it may be noted that these Articles have an A
indicia which is not there in Article 31-B.

144. Part III is amendable subject to basic structure doctrine. It is
permissible for the Legislature to amend the Ninth Schedule and grant a law
the protection in terms of Article 31 B but subject to right of citizen to assail
it on the enlarged judicial review concept. The Legislature cannot grant
B
fictional immunities and exclude the examination of the Ninth Schedule law
by the Court after the enunciation of the basic structure doctrine.

145. The constitutional amendments are subject to limitations and ifthe
question of limitation is to be decided by the Parliament itself which enacts C
the impugned amendments and gives that law a complete immunity, it would
disturb the checks and balances in the Constitution. The authority to enact
law and decide the legality of the limitations cannot vest in one organ. The
validity to the limitation on the rights in Part III can only be examined by
another independent organ, namely, the judiciary. D
146. The power to grant absolute immunity at will is not compatible
with basic structure doctrine and, therefore, after 24th April, 1973 the laws
included in the Ninth Schedule would not have absolute immunity. Thus,
validity of such laws can be challenged on the touchstonP, of basic structure
such as reflected in Article 21 read with Article 14 and Article 19, Article 15 E
and the principles underlying these Articles.

147. It has to be borne in view that the fact that some Articles in Part
III stand alone has been recognized even by the Parliament, for example,
' .,. . Articles 20 and 21. Article 359 provides for suspension of the enforcement F
of the rights conferred by Part III during emergencies. However, by
Constitution (44th Amendment) Act, 1978, it has been provided that even
during emergencies, the enforcement of the rights under Articles 20 and 21
cannot be suspended. This is the recognition given by the Parliament to
the protections granted under Articles 20 and 21. No discussion or G
argument is needed for the conclusion that these rights are part of the basic
structure or framework of the Constitution and, thus, immunity by suspending
those rights by placing any law in the Ninth Schedule would not be
countenanced. It would be an implied limitation on the constituent power
of amendment under Article 368. Same would be the position in respect of
H
770 SUPREME COURT REPORTS (2007] 1 S.C.R

A the rights under Article 32, again, a part of the basic structure of the
Constitution.

148. The doctrine of basic structure as a principle has now become an
axiom. It is premised on the basis that invasion of certain freedoms needs
to be justified. It is the invasion which attracts the basic structure doctrine.
B Certain freedoms may justifiably be interfered with. If freedom, for example,
is interfered in cases relating to terrorism, it does not follow that the same
test can be applied to all the offences. The point to be noted is that the
application of a standard is an important exercise required to be undertaken
by the Court in applying the basic structure doctrine and that has to be done
C by the Courts and not by prescribed authority under Article 368. The
existence of the power of Parliament to amend the Constitution at will, with
requis;.te voting strength, so as to make any kind of laws that excludes Part
III including power of judicial review under Article 32 is incompatible with
the basic structure doctrine. Therefore, such an exercise if challenged, has
D to be tested on the touchstone of basic structure as reflected in Article 21
read with Article 14 and Article 19, Article 15 and the principles thereunder.

149. The power to amend the Constitution is subject to aforesaid axiom.
It is, thus, no more plenary in the absolute sense of the term. Prior to
Kesavananda Bharati, ·the axiom was not there. Fictional validation based
E on the power of immunity exercised by the Parliament under Article 368 is
not compatible with the basic structure doctrine and, therefore, the laws that
are included in the Ninth Schedule have to be examined individually for
determining whether the constitutional amendments by which they are put
in the Ninth Scl:edule damage or destroy the basic structure ·of· the
F Constitution. This Court being bound by all the provisions of the Constitution
and also by the basic structure doctrine has necessarily to scrutinize the
Ninth Schedule laws. It has to examine the terms of the statute, the nature
of the rights involved, etc. to determine whether in effect and substance the
statute violates the essential features of the Constitution. For so doing, it
G has to first find whether the Ninth Schedule law is violative of Part III. If
on such examination, the answer is in the affirmative, the further examination
to be undertaken is whether the violation found is destructive of the basic
structure doctrine. If on such further examination the answer is again in
affirmative, the result would be invalidation of the Ninth Schedule Law.
Therefore, first the violation of rights of Part III is required to be determined,
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I

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l.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 771

then its impact examined and if it shows that in effect and substance, it A
destroys the basic structure of the Constitution, the consequence of
invalidation has to follow. Every time such amendment is challenged, to
hark back to Kesavananda Bharati upholding the validity of Article 3 IB is
a surest means of a drastic erosion of the fundamental rights conferred by
Part III.
B
150. Article 3 lB gives validation based on fictional immunity. In
judging the validity of constitutional amendment we have to be guided by
the impact test. The basic structure doctrine requires the State to justify
the degree of invasion of fundamental rights. Parliament is presumed to
legislate compatibly with the fundamental rights and this is where Judicial c
Review comes in. The greater the invasion into essential freedoms, greater
is the need for justification and determination by court whether invasion was
necessary and if so to what extent. The degree of invasion is for the Court
to decide. Compatibility is one of the species of Judicial Review which is
premised on compatibility with rights regarded as fundamental. The power
to grant immunity, at will, on fictional basis, without full judicial review, will D
nullify the entire basic structure doctrine. The golden triangle referred to
above is the basic feature of the Constitution as it stands for equality and
rule of law.

151. The result of aforesaid discussion is that the constitutional E
validity of the Ninth Schedule Laws on the touchstone of basic structure
doctrine can be adjudged by applying the direct impact and effect test, i.e.,
rights test, which means the form of an amendment is not the relevant factor,
but the consequence thereof would be determinative factor.

152. In conclusion, we hold that : F
(I) A law that abrogates or abridges rights guaranteed by Part III of the
Constitution may violate the. basic structure doctrine or it may not. If
fom1er is the consequence of law, whether by amendment of any
Article of Part III or by an insertion in the Ninth Schedule, such law
will have to be invalidated in exercise of judicial review power of the
G
.. Court. The validity or invalidity would be tested on the principles laid
down in this judgment.

(iij The majority judgment in Kesavananda Bharati's case read with
Indira Gandhi's case, requires the validity of each new constitutional H
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772 SUPREME COURT REPORTS [2007] I S.C.R.
,,
A amendment to be judged on its own merits. The actual effect and
impact of the law on the rights guaranteed under Part III has to be
:....-
taken into account for determining whether or not it destroys basic
structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24th April, 1973
B by which the Ninth Schedule is amended by inclusion of various laws
therein shall have to be tested on the touchstone of the basic or
essential features of the Constitution as reflected in Article 21 read _.,
~
with Article 14, Article 19, and the principles underlying them. To put
it differently even though an Act is put in the Ninth Schedule by a
c constitutional amendment, its provisions would be open to attack on
the ground that they destroy or damage the basic structure if the
fundamental right or rights taken away or abrogated pertains or pertain
to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the
D laws included in the Ninth Schedule by Constitutional Amendments
shall be a matter of Constitutional adjudication by examining the nature
and extent of infraction of a Fundamental,..Right by a statute, sought +
t'
to be Constitutionally protected, and on the touchstone of the basic
structure doctrine as reflected in Article 21 read with Article 14 and
Article 19 by application of the "rights test" and the "essence of the
E
right" test taking the synoptic view of the Articles in Part III as held
in Indira Gandhi's case. Applying the above tests to the Ninth
Schedule laws, if the infraction affects the basic structure then such
a law(s) will not get the protection of the Ninth Schedule.

F This is our answer to the question referred to us vide Order dated 14th •
September, 1999 in l.R. Coelho v. State of Tamil Nadu, [1999] 7 SCC -Jr
580.

(v) If the validity of any Ninth Schedule law has already been upheld by
this Court, it would not be open to challenge such law again on the
G principles declared by this judgment. However, if a law held to be
violative of any rights in Part III is subsequently incorporated in the
Ninth Schedule after 24th April, 1973, such a violation/infraction shall
be open to challenge on the ground that it destroys or damages the
..
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basic structure as indicated in Article 21 read with Articlel4, Article 19
'r-
H and the principles underlying thereunder.
I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K.SABHARWAL,CJ.] 773

(vi) Action taken and transactions finalized as a result of the impugned A
Acts shall not be open to challenge.

153. We answer the reference in the above terms and direct that the
petitions/appeals be now placed for hearing before a Three Judge Bench for
decision in accordance with the principles laid down herein.
B
RP. Reference answered.

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