I R COELHO Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), in sofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies v. State of Tamil Nadu (1973) 1 SCR 258 because this was not found to be a measure of agraian reform protected by Art. 31A of the 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 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 are the subject matter of challenge in these appeals and writ petitions. The contention is that these Acts, inclusive of the portions thereof which had been struck down could not have been validly inserted in the Ninth Schedule. It rests on two counts. (1) Judicial review is a basic feature of the Constitution, to insert in the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy or damage the basic structure of the Constitution. (2) To insert into the Ninth Schedule after 24th April, 1973, an Act which, or part of which, has been struck down as being violative of the fundamental rights conferred by Part III of the Constitution is to destroy or damage its basic structure.

(2.) Article 31B provides:

(3.) The judgment of a Constitution Bench of this Court in Waman Rao v. Union of India, (1981) 2 SCR 1 , dealt with Art. 31B. It referred to the judgment of this Court in the case of Kesavananda Bharti, (1973) Suppl. SCR 1, decided on 24th April, 1973, wherei it was held by the majority "that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure." The order in Waman Raoa's case was that all amendments to the Constitution which were made before 24th April, 1973 and by which the Ninth Schedule was amended from time to time by the inclusion of various Acts and Regulations therein, were valid and constitutional. Amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by the inclusion of various Acts and Regulations therein were "open to challenge on the ground that they, or any one or more of them are beyond the constituent power of the Parliament since they damage the basic and essential features of the Constitution or its basic structure. " The order in Waman Rao "did not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the Ninth Schedule by a constitutional amendment made after April 24, 1973 is saved by Art. 31A, or by Art. 31C as it stood prior to its amendment by the forty second amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the Ninth Schedule on the ground that the amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Art. 14, 19 or 31, will become otiose." Chandrachud, C. J., in his judgment in Waman Rao, said that laws and regulations included in the Ninth Schedule prior to 24th April, 1973 "will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Art. 31B for the plain reason that in the face of the judgment in Kesavanand Bharti (supra) there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments by which additions were made to the Ninth Schedule on or after April 24, 1973 will be valid only if they do not damage or destroy the basic structure of the Constitution". Bhagwati, J. delivered a judgment that is common to Waman Rao, (supra) and Minerva Mills Ltd. v. Union of India, (1981) 1 SCR 206 . He said that "all constitutional amendments made after the decision in Keshavannda Bharti's case (supra) would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending powers." He added that "in every case where a constitutional amendment includes a statute or statutes in the Ninth Schedule, its constitutional validity would have to be considered by reference to the basic structure doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right."