I R COELHO VS STATE OF TAMIL NADU : CASE SUMMARY
The Constitution Bench of Supreme Court in I R Coelho (dead ) by LRs Vs State of Tamil Nadu (1999) 7 SCC 580 held that a legislation placed in 9th Schedule after Kesavanand Bharati judgment can be reviewed on the ground that it has abrogated or abridged such fundamental rights as reflected in Article 14, 19 and 21.
THE ISSUE BEFORE THE COURT
The broad question before the Court was whether it is permissible for the Parliament under Article 31 B to immunize legislations from Fundamental Rights by inserting them in 9th Schedule on or after 24th April, 1973.
THE NINTH SCHEDULE
The High Court of Patna in Kameshwar Vs State of Bihar (AIR 1951 PATNA 246 ) has held unconstitutional legislation relating to land reform. Several zamindars had also filed several writ petitions under Article 32 of the Constitution of India. At this stage, Parliament inserted Article 31 B by First Amendment. By the same amendment Parliament added 9th Schedule. Article 31 B immunized laws contained therein on the ground that it violates any fundamental rights. The 1st Amendment was challenged in Sankri Prasad Singh Deo Vs Union of India (1951 AIR 458 ) wherein 1st Amendment was held valid. Validity of several acts inserted in 9th Schedule vide 17th amendment was challenged in Sajjan Singh Vs State of Rajasthan (1965) AIR 845 wherein it was held valid and constitutional. In I. C. Golaknath vs State of Punjab 967 AIR 1643, the judgment of Sankari Prasad was overruled and held that Fundamental Rights can not be amended with prospective effect.
Vide 24th Amendment Act Article 13 was amended to provide that it will not apply to amendment made under Article 368 of the Constitution. This was challenged before the Supreme Court in Kesavanand Bharati Vs State of Kerala (1973) 4 SCC 225. Supreme Court in Kesavanand Bharti held that basic structure can not be amended but what forms basis structure was not exhaustively defined.
EVOLUTION OF BASIC STRUCTURE
In Indira Nehru Gandhi Vs Raj Narayan (1975) AIR 1590 , the Supreme Court held that 39th amendment providing for barring of judicial review of election of Prime Minister was unconstitutional as it violated basic structure of the Constitution.
In Minerva Mills Ltd Vs Union of India ( 1986 ) AIR 2030 case struck down clause (4) and (5) of the Article 368 on the ground that it violates basic structure.
In Waman Rao Vs Union of India (1981) 2SCC362 the Supreme Court held that legislations inserted in 9th Schedule after Kesavananda Bharti judgment is not immune from judicial review.
In L. Chandra Kumar Vs Union of India 1997 (3) SCC 261 the Supreme Court held that judicial Review is part of basic structure of the Constitution of India.
Separation of powers has been also held to be part of basic structure in several judgments.
FUNDAMENTAL RIGHTS AND BASIC STRUCTURE
Modern democracy is based on principle of constitutionalism which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based.
Some of Fundamental Rights are part of doctrine of basic structure of Indian Constitution. Article 14, 19 and 21 reflect the foundational values of the Constitution which forms the basis of rule of law and judicial review.
Dr. Ambedkar has said that Article 32 is the most important provision among Fundamental Right without which constitution would be nullity. Article 32 has been held to be part of basic structure in several judgments by the Supreme Court including L. Chandra Kumar and S. R. Bommai Vs Union of India (1994) AIR 1918.
Fundamental Rights have to be examined in light of development of interpretation over the years. Fundamental Rights were earlier understood to be distinct and separate. But this view has been discarded in Rustom Cavasjee Cooper Vs Union of India (1970) 3 SCR 530 wherein the Supreme Court disapproved the view that every Fundamental Right is separate and distinct. This view was further strengthened in Maneka Gandhi Vs Union of India AIR (1978) SC 597. Fundamental Rights together provide comprehensive guarantee against excess of state authorities. Thus, any abrogation of fundamental rights has to be examined on the basis of the broad interpretation of the Fundamental Rights.
9th Schedule has been inserted to provide immunity to land reform laws. But subsequently legislations having no nexus with land reforms have been included in the 9th Schedule. Further, a number of legislations have been placed under 9th Schedule. Barring judicial review to such large number of legislations is contrary to constitutional supremacy.
Parliament has power to amend Fundamental Rights but this power is subject to basic structure of the Constitution.
CONCLUSION
A law that abrogates or abridges Fundamental Rights may violate basic structure or may not. Validity of each amendment has to be tested on its merits. An amendment made to the 9th Schedule made after Kesavanand Bharati case can be judicially reviewed on the ground of violation of basic structure as reflected in Article 14, 19 and 21 by application of “rights test” and “essence of rights test”.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.